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2011 DIGILAW 814 (CAL)

Banamali Pati v. The State of West Bengal

2011-06-21

KANCHAN CHAKRABORTY

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Judgment :- Kanchan Chakraborty, J. 1) The legality, validity and propriety of the judgment of acquittal passed in Sessions Trial No. 3(1) of 2001/ Sessions case no. 12(3) of 1997 passed by the learned Additional Sessions Judge, Fast Track Court Bankura on 6.8.2005 has been challenged in this revision application by Banamali Pati on the following grounds : i) that the learned Trial Court failed to appreciate the evidence on record in its true and proper perspective; ii) that the learned Trial Court ought to have relied on the evidence of eye witnesses as they made consistent statement regarding the alleged incident; iii) that the learned Trial Court failed to consider the injuries detected by the Doctor at the time of examination and conducting of post mortem on the dead body of Jakir Chowdhury; iv) that the judgment, being bad in law, is liable to be set side and order for retrial is required to be passed; 2) The short reference to the factual aspects of the prosecution case is given below: 3) Banamali Pati engaged some labourers, such as, Sudhan Khan, Kajem Ali, Jakir Chowdhury, Sadim Mondal and others on 15.5.1995 for the purpose of harvesting his land. While those persons were harvesting the land of Banamali Pati on 15.5.1995 in morning, the opposite parties no. 2 to 11/ accused persons (hereinafter referred to as the opposite parties) entered therein being arms with Tangi, ballam etc. They attacked Sudhan Khan, Kajem Ali, Sadim Mondal and caused severe injuries on there persons. The injured were taken to B.S.M.C. & hospital. Jakir Chwodhury succumbed to his head injuries on 15.5.1995 at 06.35 P.M. Sudhan Khan lodged one FIR in Indpur Police Station on 16.5.1995 at 2.45 hours and on the basis of said FIR Indpur police station case no. 8 of 1995 dated 16.5.1995 under Section 147/148/149/447/324/325/326 and 307 IPC was started. On completion of investigation, a charge-sheet was filed against the opposite parties. All the opposite parties were arrayed to face the trial under Section 147/447 while opposite party Sunil Layek, Gunadhar Layek, Jiten Bauri, Mantu Bauri were arrayed to face charges under Sections 307/149 and 302/149 of IPC. Since they pleaded not guilty of the charges so framed, the trial commenced. In all, 19 witnesses were examined on behalf of the prosecution. All the opposite parties were arrayed to face the trial under Section 147/447 while opposite party Sunil Layek, Gunadhar Layek, Jiten Bauri, Mantu Bauri were arrayed to face charges under Sections 307/149 and 302/149 of IPC. Since they pleaded not guilty of the charges so framed, the trial commenced. In all, 19 witnesses were examined on behalf of the prosecution. The FIR, inquest reports, injury reports, sketch map of the place of occurrence, seizure list, post mortem report and other medical documents were admitted into evidence and marked Exhibit on behalf of the prosecution. No witness was examined on behalf of the defense. Upon consideration of the evidence on record, oral and documentary, the learned Trial Court did not find himself satisfied with the prosecution case. He found that the prosecution case was not free from reasonable doubts. Accordingly, he recorded acquittal of the opposite parties. The petitioner herein has come up with this application for revision praying for setting aside of the order of acquittal and for retrial/rehearing of the entire case. 4) Mr. Shataroop Purkayastha, learned Counsel appearing for the petitioner contended that the learned Trial Court put unnecessary importance on the question of Bargadership of the land in question ignoring the actual case of the prosecution of causing injury by the opposite parties. He contended further that the learned Court also unnecessary put much importance as to the fact that almost all the witnesses failed to say the names of the fathers of the opposite parties. According to Mr. Purkayastha, those two issues were most irrelevant having no bearing on the prosecution case and the learned Trial Court erred in putting much stress on those two irrelevant issues/points. He contended further that the evidence of P.W. 12, P.W. 17, P.W. 19, besides the eye witnesses, ought to have been taken into consideration by the learned Trial Court because they having no connection either with the prosecution party or the defense party, supported the prosecution case. This apart, Mr. Purkayastha contended, the post mortem report shows that injury no.4 was caused by a sharp cutting weapon. The tangi was recovered at the instance of one of the accused persons when he was in police custody. Therefore, his statement ought to have been admitted under Section 27 of the Evidence Act. Mr. This apart, Mr. Purkayastha contended, the post mortem report shows that injury no.4 was caused by a sharp cutting weapon. The tangi was recovered at the instance of one of the accused persons when he was in police custody. Therefore, his statement ought to have been admitted under Section 27 of the Evidence Act. Mr. Purkayastha contended further that there was no case of suppression of FIR in true sense because learned Trial Court himself made out a third case by saying that the dead body of Jakir Chowdhury was buried on the following date i.e. on 16.5.1995 and FIR could not have been lodged before 17.5.1995. According to Mr. Purkayastha that was not the case of the prosecution nor the case of the defense. Jakir Chowdhury died on 15.5.1995 at 6.35 P.M.. His dead body is obviously reached in the village in the evening and buried thereafter. If so, lodging of the FIR on the following morning at 2.45 hours was neither impracticable nor unreasonable. Mr. Purkayastha contended that although in a case where order of acquittal is challenged by a private party by way of revision and this Court is not supposed to interfere ordinarily into the findings of the trial Court, this revisional jurisdiction can well be invoked where there was glaring mistake of fact and law resulting in gross mis-carriage of justice. Mr. Purkayastha contended that this is a fit and proper case where this Court should exercise its revisional jurisdiction in order to set aside the judgment of acquittal in question and pass an order of retrial of the acquitted accused persons. 5) Mr. Abhishek Sinha, learned Counsel for the opposite parties contended that only three witnesses could identify the opposite parties/accused persons. Most of the witnesses failed to say the names and father’s names of the opposite parties in course of trial. He contended further that name of these opposite parties was not at all uttered by any of the witnesses. None of the witnesses could say what those opposite parties actually did. This apart, he contended further, the evidence of B.L.& R.O. (P.W. 13) shows clearly that there was dispute as to Bargadership in respect of the land wherein the deceased and injured were allegedly engaged by Banamali Pati. Mr. Sinha contended further that according to the medical report and evidence, the injuries were caused by blunt and heavy instrument. This apart, he contended further, the evidence of B.L.& R.O. (P.W. 13) shows clearly that there was dispute as to Bargadership in respect of the land wherein the deceased and injured were allegedly engaged by Banamali Pati. Mr. Sinha contended further that according to the medical report and evidence, the injuries were caused by blunt and heavy instrument. No sharp cutting injury was detected on the person of the injured and the deceased. When tangi was used for the purpose of assault, it is to be taken for granted that the person used it ordinarily wanted to use the sharp side of the same. Therefore, there is strong doubt in the prosecution case in the manner the alleged injuries were caused. This apart, Mr. Sinha contended further that scope of this Court in exercising its revisional jurisdiction against an order of acquittal when invoked by a private party, is very limited. Sixteen (16) years have already been passed since the date of occurrence. Naturally, order of rehearing/retrial of the acquitted accused after such a long period would be travesty of justice. 6) I have carefully gone through the judgment impugned. It can not be gainsaid that the death of Jakir Chowdhury was anti mortem and homicidal in nature. The post mortem report makes it explicit that the death of Jakir was caused due to injuries sustained by him on his head. The injury no. 4 was a vital one. It is also true to say that question of Bargadership and failure on the part of the witnesses to say the names of fathers of the opposite parties were not material issues/points before the learned Trial Court. It would have been proper for the learned Trial Court not to put much importance on those points. 7) However, on scanning of the evidence of record it appears to me that there are discrepancies in the statements of witnesses on material points. It also appears that the manner in which alleged incident had taken place according to the prosecution case was not stated by the witnesses correctly. The injuries detected on the persons of the injured and deceased by the Doctor and at the time of post mortem are not similar to the injuries allegedly caused by the opposite parties as stated by the witnesses. I find that the learned Trial Court considered that part of prosecution case correctly. The injuries detected on the persons of the injured and deceased by the Doctor and at the time of post mortem are not similar to the injuries allegedly caused by the opposite parties as stated by the witnesses. I find that the learned Trial Court considered that part of prosecution case correctly. It is also true that some of the opposite parties, according to the prosecution witnesses, had taken part in the alleged assault. No witness stated about the role of other opposite parties. It is also true that some of the witnesses failed to identify the opposite parties and tell their names and father’s names in course of trial. The alleged recovery of the head of tangi under a seizure list was not done in presence of any private independent witnesses. The P.W. 17, one of the witnesses to that seizure, failed to say whether opposite Jitan Bauri had made such a statement leading to discovery of the weapon used in alleged assault. I find that learned Trial Court had taken this factors also into consideration while recording acquittal of the opposite parties. Therefore, it can not be said that the learned Trial Court failed to appreciate evidence in its proper perspective and that the learned Trial Court overlooked the material evidence while coming to the findings. 8) The Apex Court has taken the consistent view right from Stippen’s case 1951 SCR 284 till this date that only in glaring case of injustice resulting from some violation of fundamental principle of law by the Trial Court, the High Court is empowered to set aside an order of acquittal and direct retrial of the acquitted accused. The Apex Court was of consistent view that this power of revision should be exercised sparingly with great care and caution. The mere circumstances that a finding of fact recorded by the Trial Court may, in the opinion of the High Court, be wrong, will not justify setting aside the acquittal and directing retrial. 9) The recent decision i.e. Sheetala Prasad & Ors. Vs. Srikant and Ors. The mere circumstances that a finding of fact recorded by the Trial Court may, in the opinion of the High Court, be wrong, will not justify setting aside the acquittal and directing retrial. 9) The recent decision i.e. Sheetala Prasad & Ors. Vs. Srikant and Ors. Reported in 2010 SC 1140, the Hon’ble Court set out the following circumstances when High Court may exercise its revisional jurisdiction and set aside an order of acquittal : a) where the Court has shut out evidence which the prosecution wished to produce; b) where admissible evidence is wrongly brushed aside as inadmissible; c) where the Trial Court has no jurisdiction to try case and has still acquitted the accused; d) where the material evidence has been overlooked either by the Trial Court or the Appellate Court or the order is passed by considering irrelevant evidence; e) where acquittal is based on compounding of offence which is invalid under the law. 10) In the facts and circumstances, I reiterate, the learned Trial Court has not overlooked material evidence on record although considered some irrelevant points. That being so, it can not be said that the judgment passed by the learned Trial Court is perverse one and that there is violation of fundamental principal of law resulting in gross mis-carriage of justice, There is no manifest illegality in the judgment impugned necessitating interference by this Court by exercising its revisional jurisdiction. 11) The alleged incident had taken place in the year 1995. A period of 15/16 years has already been elapsed. It would be futile effort to pass an order directing retrial of the case even assuming that acquittal was not justified. 12) In the premises above, I find it inexpedient to interfere into the order of acquittal under challenge by exercising revisional jurisdiction. Accordingly, the revisional application stands dismissed and is disposed of.