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Gauhati High Court · body

2015 DIGILAW 27 (GAU)

Abdus Subh v. Jaherul Hoque

2015-01-09

BIPLAB KUMAR SHARMA

body2015
JUDGMENT Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment of acquittal dated 04.06.2013 of the learned Sessions Judge, Karimganj in Sessions case No. 46/2009. By the said judgment, the accused/respondents numbering 04 (four) have been acquitted of the charges framed against them u/s.323/436 IPC. I have heard Ms. R. Choudhury, learned counsel led by Mr. H.R.A. Choudhury, learned senior counsel appearing for the appellant and have also heard Mr. N. Dhar, learned counsel representing the accused/respondents. I have also gone through the entire materials on record. 2. The FIR that was lodged on 20.06.2007, named the accused persons with the allegations of forming an unlawful assembly, criminal trespass into the homestead of the complainant and cutting the trees and plants planted by the complainant The mother of the complainant namely, Sundari Bibi, aged about 80 years when raised protest against the same, the accused/respondents allegedly assaulted her with Dao and also with fist and blows. The FIR also alleged that the accused persons snatched away a golden necklace from the daughter of the complainant. Further allegation made in the FIR was that they also set fire in one of the houses of the complainant and also restrained the complainant for about one hour at the place of occurrence. As alleged in the FIR, the house was completely gutted by fire causing loss of valuable articles. 3. On receipt of the FIR, Patharkandi Police Station case No. 87/2007 was registered u/s. 143/447/325/435/379 IPC. The Investigating Officer entrusted with the case, conducted the investigation and on conclusion of the same, submitted Final Report. Being dissatisfied, the complainant filed Naraji Case and the learned Additional Chief Judicial Magistrate, Karimganj, after examination of the complainant and nine other witnesses, took cognizance of offence against the accused persons u/s. 323/436 IPC. Charges having been framed u/s. 323/436/34 IPC against all the accused persons and they having pleaded not guilty of the same, trial started, during which the prosecution examined five witnesses. Defence case was of complete denial and the accused persons in their statements recorded u/s. 313 Cr.P.C. pleaded not guilty. They also examined 02 (two) DWs. 4. The learned Sessions Judge having acquitted the accused/respondents of the charges framed against them, the complainant has filed this appeal. Ms. R. Choudhury, learned counsel representing the appellant placing reliance on the decision reported in 2009 (5) GLT 547 [State of Assam Vs. They also examined 02 (two) DWs. 4. The learned Sessions Judge having acquitted the accused/respondents of the charges framed against them, the complainant has filed this appeal. Ms. R. Choudhury, learned counsel representing the appellant placing reliance on the decision reported in 2009 (5) GLT 547 [State of Assam Vs. Muhammad Abdul Jalil & Ors.]; 2012 (4) GLT 959 [State of Assam Vs. Golbar Hussain & Ors.] and 2013 (5) GLT 13 [State of Assam Vs. Monindra Suklabaidya & Ors.] argued that merely because the witnesses were related, the same by itself could not have led to the inference that the prosecution failed to establish its case in absence of any independent witness. Mr. N. Dhar, learned counsel representing the accused/respondents however, placing reliance on the decision of Apex Court, reported in (2009) 14 SCC 541 [Mussauddin Ahmed Vs. State of Assam], submitted that it was the duty of the complainant to lead the best evidence in its possession towards resolution of the controversy. According to him, there being no such evidence, the prosecution failed to establish its case beyond all reasonable doubt and accordingly, the learned Trial Court rightly acquitted the accused/respondents. 5. I have given my anxious consideration to the submissions made by the learned counsels for the parties and have also perused the evidence on record. 6. PW-5 is the Medical Officer who had examined Sundari Bibi and found (i) Fresh Abrasion [3 cm x 1 cm] in the lateral side of right forearm which was caused due to friction against rough surface and was very simple in nature. He in his deposition stated that Sundari Bibi was examined on 20.06.2007 and on the same date he also examined one Must Hamida Begum, 18 years of age on police requisition and found - Fresh transverse superficial lacerated injuries across the middle of the palmer side of left middle and ring finger which according to him caused by blunt object and simple in nature. 7. PW-1 is the complainant, who in his deposition referring to the FIR lodged on 20.06.2007 stated about the incident as narrated in the FIR. PW-2 is Hamida Begum and daughter of PW-1. 7. PW-1 is the complainant, who in his deposition referring to the FIR lodged on 20.06.2007 stated about the incident as narrated in the FIR. PW-2 is Hamida Begum and daughter of PW-1. According to her, at the time of alleged occurrence her father had gone out of the house to proceed to his place of work and soon thereafter she could hear his shouts and coming out of the house could also see beating of her father by the accused/respondents. Pw-3 is the wife of the complainant, who also in her deposition stated about the incident. PW-4 is another witness, who in her deposition stated about purported attack on her father by the accused/respondents. According to her statement, the accused persons also set fire on the C.I. Sheet roof dwelling house. 8. The learned Sessions Judge upon appreciation of the aforesaid evidence has held that although in the testimonies of the PWs, there are reference of neighbourers and independent witnesses, but none having been examined, it would be unsafe to place reliance on such testimonies of related witnesses. As recorded in the impugned judgment, although in the evidence, the PWs referred to outsiders noticing the incident, but none of the outsiders could be examined by the prosecution. At the same time defence pleas are of total denial. PW-1 in his cross examination stated that the house which was burnt was of thatched roof. On the other hand, PW-4 contradicting the same, stated in her evidence that the house was of C.I. Sheet roof. 9. According to the DW-1, the complainant himself set fire on the house where 'Supari' (betel nut) had been kept. He admitted that Ext. A is a memorandum executing by and between the parties i.e. PW-1 and the accused/respondents. From the evidence on record, it appears that there was a land dispute relating to passage of water. On perusal of Ext. A, it is seen that there was a "Bichar" with regard to water passage and the complainant was party to the memorandum of understanding. His denial of holding of any such "Bichar" shows that he concealed some relevant facts in his evidence. 10. As recorded in the impugned judgment, there is also exaggeration as could be gathered from the cross examination of PW-3, who in her deposition stated about burning of valuable furniture's and other belongings. However, such statement is not corroborated by other witnesses. 10. As recorded in the impugned judgment, there is also exaggeration as could be gathered from the cross examination of PW-3, who in her deposition stated about burning of valuable furniture's and other belongings. However, such statement is not corroborated by other witnesses. In the evidence of PW-2, she did not state anything about the cutting of plants and trees. In her cross examination, she categorically stated that there was no other house in the homestead. She stated that there was no house in the Northern and Eastern side of the house. Her statement would go to show that she also concealed relevant facts in her evidence, inasmuch as, PW-3 also gave reference about Northern house in her cross examination stating that she along with her husband and others had entered into their Northern house. 11. It is in the above context, the learned counsel for the accused/respondents has placed reliance on the decision of the Apex Court in Mussauddin Ahmed (Supra), in which it was held that it is the duty of the party to lead the best evidence in its possession which would throw light on the issue in controversy and incase such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. 12. Referring to the aforesaid evidence on record and the aforesaid decision, it was contended by the learned counsel for the accused/respondents that withholding of neighbourers as witnesses by the complainant is fatal to the prosecution case inasmuch as all the witnesses examined are interested and related witnesses with inherent contradictions in their testimonies. 13. Let me now examine the evidence adduced by the defence. As noted above, DW-1 proved the Ext. A Memorandum of Understanding (MoU) that was executed between the complainant and other accused persons. DW-1 was one of the signatories as witness. He in his deposition stated that on hearing hue and cry, he went out to the place of occurrence and found the complainant and his brother Abdul Kalam standing near to one of their houses which was then burning. He further deposed that the house was used for keeping betel nuts. On quarry, they did not say anything about the cause of fire. He further deposed that the house was used for keeping betel nuts. On quarry, they did not say anything about the cause of fire. DW-2 also deposed that seeing the smoke of fire, he went out to the place of occurrence and found one Katcha house which was used for keeping betel nuts by the complainant was being gutted by fire. In tune with the evidence of DW-1, he also stated about the presence of the complainant and his brother Abdul Kalam at the place of occurrence along with their other family members. He further deposed that he could notice that the complainant side was not making any attempt to extinguish the fire. According to him, the complainant plotted the whole incident with the sole purpose of grabbing the land and falsely implicated the accused/respondents. 14. When the defence witnesses have given a reverse picture of the alleged incident coupled with the inherent contradictions in the testimonies of the PWs, it will be totally unsafe to convict the accused/respondents solely on the basis of the evidence adduced by the said interested witnesses. If in such circumstance, the learned Trial Court has held that the prosecution failed to prove the offence against the accused/respondents beyond all reasonable doubt, I see no reason to interfere with the same. 15. The decisions on which the learned counsel for the appellant has placed reliance are of guiding principles of acceptability of interested witnesses. In Muhammad Abdul Jalil and others (Supra), it was observed thus:- "The acceptability of the evidence tendered by PWs 3, 4 and 6 who are related to the deceased is the first issue that will require consideration of the Court. There is no law that the evidence of a relative of a deceased person cannot be acted upon by the Court in determining the culpability of the accused. However, as a matter of prudence evidence of such witness are scrutinized by the Courts with extra care and caution to exclude interested and tainted evidence from being relied upon. There is no law that the evidence of a relative of a deceased person cannot be acted upon by the Court in determining the culpability of the accused. However, as a matter of prudence evidence of such witness are scrutinized by the Courts with extra care and caution to exclude interested and tainted evidence from being relied upon. The availability of disinterested witnesses and non-examination of such disinterested witness by the prosecution without there being any explanation, is one circumstance against relying on the evidence tendered by relatives of the deceased the inherent credibility or intrinsic worth of the evidence tendered by the relatives of the deceased; the consistency of the statement made by them if there are more than one such witness and the inherent contradictions, if, any between the evidence tendered by such witnesses are other aspects that must receive the Courts consideration before the Court proceeds to rely on the evidence of such witnesses." 16. In the instant case, as per the evidence adduced by the PWs, the neighbourers had seen the incident. If that be so, it is not understood as to why the prosecution failed to examine any such independent witnesses. It is in such circumstances, it was argued by the learned counsel for the accused/respondents that the evidence adduced by the interested witnesses is not trustworthy more particularly when there are inherent contradictions in their statements. 17. In Golbar Hussain and others (Supra), the Appellate Court having found that there was no over exaggeration of facts or material or significant infirmities in the testimonies of prime witnesses, held that the impugned judgment of acquittal suffered from perversity. Same is not the case in hand. As noted above, there are inherent contradictions in the testimonies of the PWs coupled with the fact that there is also no independent witness although said to have seen the occurrence. 18. In Monindra Suklabaidya and others (Supra), the Appellate Court setting aside the judgment of acquittal, held that the dying declaration/statement initially recorded u/s. 161 Cr.P.C., but taking shape of a dying declaration can be read in evidence both u/s. 32(1) and 157of the Evidence Act. In the said case, the legal issue with which the Appellate Court was confronted with was as to whether the statement given by the deceased before the Investigating Officer u/s. 161 Cr.P.C. can be treated as a dying declaration. In the said case, the legal issue with which the Appellate Court was confronted with was as to whether the statement given by the deceased before the Investigating Officer u/s. 161 Cr.P.C. can be treated as a dying declaration. Referring to the Apex Court decision, it was held that the law empowers prosecution to rely on such statement by treating it as a dying declaration. It was found that there was other cogent evidence on the basis of which the accused/respondents could have been convicted. 19. Unlike the said case, in the instant case there are inherent contradictions in the testimonies of the PWs coupled with the feet that the DWs have completely narrated a reverse case. Further, although in the evidence of PWs, there is reference of the independent witnesses as neighbourers, but the prosecution did not examine any such witnesses. This will have to be considered in reference to the fact that there was some land dispute and the MoU was signed by and between the parties towards resolution of such dispute. While some of the PWs referred to the house said to have been gutted with fire as C.I. Sheet roof, some others referred the same as temporary thatched house. 20. Having regard to the aforesaid evidence on record, it will be totally unsafe to hold that the prosecution could prove the offence alleged against the accused/respondents beyond all reasonable doubt. I see no reason to interfere with the impugned judgment of acquittal. Consequently the appeal stands dismissed. Registry shall transmit the case record to the learned Court below along with a copy of this judgment.