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2013 DIGILAW 405 (GAU)

Hasem Ali and Ors. v. State of Assam

2013-06-12

I.A.ANSARI, INDIRA SHAH

body2013
I A. Ansari, J This is an appeal against the judgment and order, dated 26.10.2009, passed, in Sessions Case No. 39(DMFT) of 2006, by the learned Addl. Sessions Judge (FTC), Darrang, Mangaldai, convicting altogether 11 appellants, under section 148, IPC, section 302 read with section 149, IPC and section 326 read with section 149, IPC and sentencing each of the appellants, for their conviction, under section 148 IPC, to undergo rigorous imprisonment for a period of one year and also to undergo, for their conviction, under section 302 read with section 149, IPC, imprisonment for life and pay fine of Rs. 5,000 and, in default of payment of fine, undergo rigorous imprisonment for a period of six months and, further, to suffer, for their conviction under section 326 read with section 149, IPC, rigorous imprisonment for 3 years and pay fine of Rs. 2,000 and, in default of payment of fine, undergo rigorous imprisonment for 3 months, all the sentences having been directed to run concurrently. 2. The case of the prosecution may, in brief, be described, thus : (i) On 20.12.2004, at about 5 a.m., while Janab Ali (PW1), accompanied by others, was engaged in the work of shifting of Pandia Kahibari L.P. School to a new site, the accused-persons, armed with lathi, sword, spear, dagger, etc., came to the site of the school forming an unlawful assembly and started assaulting those, who were involved in the work of shifting of the school to its new site. Because of the assaults, which so took place, Sohrab Ali sustained, at the hands of the accused Mofizuddin, injury on his peritoneal cavity by means of a spear. Two more persons, namely, Akkash Ali (PW1) and Batchu Ali (PW2) too sustained injuries. They were all taken to Civil Hospital, Mangaldoi, but Sorhab succumbed to his injuries, while Akkash and Batchu Ali were treated for the injuries on their person. Following the occurrence, an Ejahar, in writing, was lodged by Jonab Ali (PW1), at Mangaldoi Police Station, naming, out of eleven persons, who had preferred this appeal, eight persons including one Abu Taher as assailants. (ii) Treating the said Ejahar as First Information Report ('FIR'), Mangaldoi Police Station Case No.313/2004, under sections 147/148/326/302/149, IPC, was registered against eight persons named in the FIR including some of the present appellants. (ii) Treating the said Ejahar as First Information Report ('FIR'), Mangaldoi Police Station Case No.313/2004, under sections 147/148/326/302/149, IPC, was registered against eight persons named in the FIR including some of the present appellants. During investigation, police visited the place of occurrence, drew sketch-map of the place of occurrence. Inquest was held on Sorhab Ali's dead body, which was also subjected to post mortem examination. On completion of investigation, charge sheet was laid against 12 persons including the said Abu Taher under sections 147/148/326/ 302/149, IPC. (iii) At the trial, when charges, under sections 147, 148, 326 read with section 149, IPC, 302 read with section 149, IPC were framed against the 12 accused persons named in the charge sheet, all of them pleaded not guilty. 3. In support of their case, prosecution examined altogether 19 witnesses. The accused, who faced the trial, were, then, examined under section 313, Cr.PC and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, their case being, in brief, thus: The complainant side, without previous permission of their co-villagers and without the knowledge of the accused-persons, started shifting the school building by breaking the same. Having seen the shifting of the school building, accused Sattar Ali and one Sabina went to the place, where the school building stood located, and raised their protest to the shifting of the school. On their arrival at the site, Md. Amir Ali (PW11) assaulted Sattar Ali and Sabina by means of a dao and caused injuries on their person and while Jonab Ali (PW1) was trying to inflict an injury, by means of a spear, on the person of accused Sattar Ali, the blow accidentally fell on Sorhab causing injury on his abdomen and it was the said injury, which resulted into Sorhab's death. Accused Sattar and Sabina were accordingly taken to Civil Hospital, Mahgaldoi, for treatment and, later on, shifted to Guwahati Medical College and Hospital. So far as accused Mahijul Haque was concerned, he took the plea of alibi in the sense that he was not present at the place of occurrence. No evidence was adduced by the defence. 4. Having found accused Abu Taher not guilty of the offences, which he, along with others, stood charged with, the learned trial court acquitted him accordingly. So far as accused Mahijul Haque was concerned, he took the plea of alibi in the sense that he was not present at the place of occurrence. No evidence was adduced by the defence. 4. Having found accused Abu Taher not guilty of the offences, which he, along with others, stood charged with, the learned trial court acquitted him accordingly. However, the learned trial court, having found the remaining eleven persons, who had faced the trial, guilty of the offences, which they stood charged with, convicted them accordingly and passed sentences against them as mentioned above. 5. Aggrieved by their conviction and the sentences passed against them, all the convicted persons have preferred this appeal. During pendency of the appeal, accused-appellant, Sattar Ali, died and the appeal abated against him. 6. We have heard Mr. B.M. Choudhury, learned counsel, for the appellants, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 7. During pendency of the appeal, as accused-appellant, Jakir Hussain and Ashad Ali, were found to be juvenile, their case were directed to be dealt with in terms of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, by an order passed, in this regard, in this appeal, on 23.5.2012. 8. While considering the present appeal, it needs to be borne in mind, as already indicated above, that according to the case of the defence, accused Sattar Ali and Sabina (who is not an accused in the case), have been injured on being assaulted by the complainants and that as far as Sorhab Ali is concerned, he died not because of the injury, which, according to the prosecution witnesses, had been inflicted by the accused-appellant, Mahijul Haque, on peritoneal cavity, but because of the injury, which had been caused by the informant, Jonab Ali (PW1) himself, when he (PW1), aiming to injure Sattar Ali, gave a blow with a spear, which happened to hit the peritoneal cavity of Sorhab Ali resulting, eventually, to his death. 9. With regard to the above, it is imperative to note that PW17, who is one of the Investigating Officers, and who had .conducted initial investigation, on the basis of the FIR, admitted, in his cross-examination, that before he reached Civil Hospital, Mangaldoi, one of the injured had died and two persons had sustained injuries, who were Akkash Ali and Badsha @ Basha Ali. 10. 10. In his cross-examination, the said Investigating Officer (PW17) has deposed that he also found two injured persons from the side of the accused, who were undergoing treatment. Though the defence failed to elicit from PW17 as to who those two persons from the side of the accused were undergoing treatment at the said hospital, it was, in our view, the duty of the prosecution to elicit from PW17 as to who the other two injured were, how they had sustained injuries and what were the nature of their injuries. Even if prosecution had failed, in this regard, which they had, indeed, failed, it did not absolve the learned trial court of the statutory obligation cast upon it under section 311, Cr.PC read with section 165 of the Evidence Act to elicit from PW17 and bring on record the names of the two injured, who, according to PW17, were from the side of the accused so that full facts could have been placed before the learned trial court so as to enable it to come to a correct and just finding. If there were injuries sustained by any of the accused and the injuries were not superficial in nature, then, it became the duty of the prosecution to explain, by adducing further evidence, if necessary, as to how two of the persons, from the group of the accused, happened to have sustained injuries on their person, particularly, if the injuries were not self-inflicted. This appears to have completely escaped the attention of the learned trial court. 11. It appears to have escaped attention of the learned trial court that it is empowered, under section 165 of the Evidence Act, to put any question to any witness at any stage of the trial. This apart, the trial court is also empowered by section 311, Cr.PC. to call or re-call a witness. Though a trial court is not permitted to cross-examine a witness, it remains nevertheless the duty of the trial court to ensure that whatever evidence comes on record becomes understandable by a person, who reads the evidence. 12. The role of a Prosecutor in a court of law is to place all the necessary facts before the court to ensure utmost fairness in prosecution. It is not the duty of the Prosecution to ensure conviction. 12. The role of a Prosecutor in a court of law is to place all the necessary facts before the court to ensure utmost fairness in prosecution. It is not the duty of the Prosecution to ensure conviction. The quest in the court of law is only for truth as far as possible and all the Officers of Court, be it the Judge, the Prosecutor or the Defence Counsel, must strive for bringing out the truth irrespective of the consideration whether the truth will result in acquittal or conviction. 13. With regard to the above, relevant observations, made in the case of Rana Sinha @ Sujit Sinha v. State of Tripura, 2011 (2) GLT 610, (2011) 5 GLR 388. , may be gainfully quoted here in order to understand the role of a prosecutor. The observations, made in Rana Sinha @ Sujit Sinha (supra), read as under : "176............ The Legislature reminds the State that the prosecution of every accused must strictly conform to fairness of a criminal trial. 177. As indicated above, a Public Prosecutor's role is not to ensure conviction of an accused, irrespective of the facts involved in the case. The attitude of the Public Prosecutor, who conducts prosecution, shall be fair not only to the court and to the investigating agencies, but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle or conceal it. On the contrary, it is the duty of the Public Prosecutor to help the court reach the truth. 178. As mentioned above, even when a defence counsel overlooks a material aspect of a case, which may help in uncovering the truth and in arriving at a just decision of the case, the Public Prosecutor has the added obligation to bring to the notice of the court such an aspect of the case. 179. Agreed the Supreme Court with the observations of a Division Bench of the High Court of Andhra Pradesh, in Medicheetty Ramakistiah and Ors. v. State of Andhra Pradesh, AIR 1959 AP 659 , which read, A prosecution, to use a familiar phrase, ought not to be a persecution. 179. Agreed the Supreme Court with the observations of a Division Bench of the High Court of Andhra Pradesh, in Medicheetty Ramakistiah and Ors. v. State of Andhra Pradesh, AIR 1959 AP 659 , which read, A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party. 180. From the observations made above, it becomes clear that a Public Prosecutor is required to deal with a case with utmost detachment and should not exhibit the intention to secure, by hook or crook, conviction of the accused. Under our criminal jurisprudence, this is one of the essential features of a fair trial." (emphasis supplied) 14. It needs to be borne in mind that in a criminal trial, accused has the right to maintain silence. What impact his silence will have on the trial is a question, which depends on the facts of a given case. However, so far as prosecution is concerned, it has the duty to place before the court not only the truth, but whole of the truth and with this end in view, prosecution must bring on record all material facts whether these facts go in favour of the prosecution's case or run contrary to the prosecution's case. If prosecution fall in error in discharging its duty, the trial court remains bound to act in accordance with law; or else, the power, vested in the trial court by the provisions of section 165 of the Evidence Act and/or section 311, Cr.PC. would become redundant and otiose. 15. If prosecution fall in error in discharging its duty, the trial court remains bound to act in accordance with law; or else, the power, vested in the trial court by the provisions of section 165 of the Evidence Act and/or section 311, Cr.PC. would become redundant and otiose. 15. Because of what have been discussed and pointed out above, we are clearly of the view that with limited materials having been made available on record, it was highly hazardous, unjust and illegal, for the learned trial court, to render its judgment. The impugned judgment cannot, therefore, be sustained. 16. Situated, thus, it is clear that the conviction of the accused-appellants needs to be set aside and the case is required to be remanded to the learned trial court so that PW17 can be re-called and the names of the injured, along with their record of treatment and findings of the doctor, be brought on record. 17. In the result and for the reasons discussed above, this appeal partly succeeds. The conviction of the accused-appellants and the sentences passed against them, by the judgment and order under appeal, are hereby set aside and the case is remanded to the learned trial court for being dealt with in accordance with law and in the light of the observations, which we have made in the preceeding paragraphs of this judgment. 18. Considering the fact that this case has been pending since 2004, the case needs to be expeditiously decided. We, therefore, direct the learned trial court to proceed with the case expeditiously and dispose of the same, preferably, within a period of three months from the date of receipt of a copy of this judgment. Depending upon what comes out of the examination of PW17, the learned trial court shall, if required, further examine the accused-appellants under section 313, Cr.PC. 19. Before parting with this appeal, we, however, make it clear that though we have set aside the conviction of the accused-appellants and the sentences, which have been passed against them, they shall be detained in custody until the end of the trial and the decision, as regard their release, will depend on the outcome of the trial. 20. With the above observations and directions, this appeal shall stand disposed of. 21. Send back the LCR.