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2016 DIGILAW 36 (GAU)

Jayeda Khatun v. Majibur Rahman

2016-01-20

C.R.SARMA, PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER : C.R. Sarma, J. Heard Mr. N. Uddin, Learned counsel appearing for the appellant. Also heard Ms. S. Jahan, learned Addl. Public Prosecutor and Mr. BM Choudhury, learned counsel appearing for the private respondents. 2. This appeal, against acquittal, is directed against the judgment and order, dated 23.4.2012 passed by the learned Addl Sessions Judge, (FTC), North Lakhimpur in Sessions Case No. 99(NL)/2011, whereby and where under the learned Sessions Judge acquitted the accused persons (hereinafter called the private respondents) in the said sessions case. 3. Aggrieved by the said acquittal, the informant, who is the daughter of the victim, has come up with this appeal, on the ground that the order of acquittal has been made without properly appreciating the evidence on record and that the said acquittal is not maintainable. 4. The prosecution case, in brief, is that, on 28.7.2010 at about 5 P.M., Shri Abbas Ali (herein called the deceased), went to Sonapur Chariali Chowk for marketing and as soon as he had reached the front of the house of accused Mr. Mujibur Rahman, the accused persons by forming an unlawful assembly group assaulted the deceased with the lathi etc. Hearing the hue and cry the informant and other witnesses i.e. PW-1 to PW-5 rushed to the place of occurrence and they were also assaulted by the accused persons causing injuries to their persons. Subsequently the deceased was taken to hospital and he succumbed to the injuries. On the next date i.e. on 29.7.2010, the daughter of the deceased lodged an FIR with the police. On receipt of the FIR police registered a case and launched investigation into the matter. At the close of the investigation, police submitted charge sheet under Sections 147/148/149/341/325/323/307 and 302 IPC against the accused persons. The offence being exclusively triable by the Court of sessions, the learned Magistrate committed the case to the Court of Sessions and the learned Sessions Judge framed charges under Sections 341/323/302/34 IPC against the accused persons. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution examined as many as 10 witnesses including the Medical Officer (PW-9), who performed the autopsy on the dead body and the Investigating Officer (PW-10). The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution examined as many as 10 witnesses including the Medical Officer (PW-9), who performed the autopsy on the dead body and the Investigating Officer (PW-10). At the close of the examination of the prosecution witnesses, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations and declined to adduce defence evidence. Their plea was a denial one. Considering the evidence, on record, the learned trial Judge came to the findings that the prosecution failed to prove the allegations, brought against the accused persons, beyond all reasonable doubt. Accordingly the learned Sessions Judge acquitted the accused. 6. Mr. N. Uddin, learned counsel appearing for the appellant i.e the informant, has submitted that PW-1 to PW-5, who were eyewitnesses of the occurrence, specifically stated that they had seen the accused persons assaulting the deceased and causing fatal injury and that the learned Sessions Judge failed to properly appreciate the evidence given by the said witnesses. It is also submitted that the learned Sessions Judge committed error by recording acquittal on the basis of certain minor contradictions and omissions on the part of the witnesses. Therefore, it is submitted that the impugned judgment and order is liable to be reversed and that the accused persons are to be punished for the crime committed by them. 7. Ms. S. Jahan, learned Addl. PP, supporting the impugned judgment and order has submitted that the learned Sessions Judge has properly appreciated the evidence, on record and passed the order of acquittal on the basis of the evidence adduced by the prosecution witnesses. The Addl. PP has also submitted that there is no perversity in the findings, given by the learned trial Judge and as such the impugned judgment and order needs no interference. 8. In tune with the argument advanced by the learned Addl. PP, Mr. B.M. Choudhury, learned counsel appearing for the private respondents, has submitted that the evidence given by the alleged eyewitnesses i.e. PW-1 to PW-5 suffers contradictions raising doubt about the veracity of the prosecution version. The learned counsel has submitted that the presence of the said witnesses, more particularly, the informant i.e. PW-1 and PW-3 in the place of occurrence is doubtful. The learned counsel has submitted that the presence of the said witnesses, more particularly, the informant i.e. PW-1 and PW-3 in the place of occurrence is doubtful. Referring to the contradictory evidence, given by the prosecution witnesses, regarding the place of seizure of the alleged weapon of assault and the inconsistency regarding the particulars of the seized weapon, the learned counsel has submitted that the evidence given by the said witnesses is not believable and as such the learned Sessions Judge committed no error by refusing to rely on their version. Mr. Choudhury, learned counsel appearing for the private respondents, has also submitted that PW-1 i.e. the informant and PW-2 and others in their evidence stated that they also sustained injuries at the hands of the accused persons, but the prosecution failed to adduce any medical evidence regarding the injuries sustained by the said witnesses and as such their presence in the place of occurrence is doubtful. The learned counsel has also submitted that the other eyewitnesses i.e. PW-1 to PW-5, stated for the first time, during the trial, that they had seen accused Mujibur Rahman assaulting the deceased, inasmuch as they did not make such statement before the I.O. at the time of their examination under Section 161 Cr.P.C. 9. In view of the above, the learned counsel has submitted that the said witnesses have improved their version by implicating the accused persons. Referring to the evidence given by PW-6, who was the Gaon Burah, at the relevant time it has been submitted that the deceased, probably, sustained the fatal injury due to fall on a stump of a tree due to the scuffle and that the medical evidence, given by PW-9 also supports the same. 10. In view of the above, the learned counsel, appearing for the private respondents, has submitted that the prosecution miserably failed to prove beyond all reasonable doubt, that the deceased was assaulted by the accused persons causing his death. The learned counsel has submitted that the view taken by the learned trial Judge does not appear to be perverse and as such the same needs no interference. 11. Having heard the learned counsels for both the parties, we have carefully perused the evidence on record and examined the impugned judgment. We find that the learned trial Judge has applied his mind to the evidence given by the prosecution witnesses. 11. Having heard the learned counsels for both the parties, we have carefully perused the evidence on record and examined the impugned judgment. We find that the learned trial Judge has applied his mind to the evidence given by the prosecution witnesses. The learned trial Judge has held that there are contradictions in the evidence of the alleged eyewitnesses i.e. PW-1 to PW-5 regarding involvement of the accused persons and that there is no consistency in the evidence, adduced by the prosecution regarding seizure of the weapon of assault and the size and particulars of the same. 12. Considering the evidence given by PW-5 as well as the medical evidence the learned trial Judge came to the findings that the deceased probably sustained the fatal injury due to fall on a stump of a tree. In order to examine the correctness of the said finding we have carefully scrutinised the evidence of the prosecution witnesses. PW-1, who was the daughter of the deceased stated that, hearing hue and cry, she along with other members of the family had rushed to the place of occurrence and saw the accused hitting her father, on his head, with a bamboo lathi. She further stated that the accused persons had threatened them and that they were also assaulted by them, as a result of which she became senseless and that she regained her sense at her residence. She further stated that she and her brother i.e. Abu Taher (PW-3) were treated at Nawbaisa hospital. She denied the suggestion, put on behalf of the defence, that she did not tell the I.O. that she had seen the accused persons assaulting her father. This omission has been proved through the I.O. (PW-10), who stated that PW-1 did not tell him that she had seen the accused person assaulting her father. If the PW-1 had seen the accused person i.e. Mujibur Rahman assaulting her father, she would have disclosed the same, at the first available opportunity i.e. at the time of giving statement under Section 161 Cr. P.C. Her failure to do so raises doubt about the veracity of evidence given by her in Court, as PW-1. She being the informant ought to have mentioned about the role played by the accused persons in her FIR i.e. Exhibit-1. The occurrence took place at about 5 P.M. on 27.7.2010. P.C. Her failure to do so raises doubt about the veracity of evidence given by her in Court, as PW-1. She being the informant ought to have mentioned about the role played by the accused persons in her FIR i.e. Exhibit-1. The occurrence took place at about 5 P.M. on 27.7.2010. The FIR was lodged on the next day i.e. 29.7.2010. PW-3 Mr. Abu Taher, who was the son of the deceased, in his cross examination stated that they had fled away apprehending that Mujibur (one of the accused persons) would lodge a complaint and that they had called their elder sister on next day for lodging the ejahar. The said statement, made by PW-3, that he had called his elder sister i.e. the informant (PW-1) on the next day for lodging the FIR, indicates that the informant was not present on the date of occurrence, in the house of the deceased. Therefore, the said evidence given by PW-3 raises doubt about the very presence of PW-1 in the place of occurrence. PW-5 namely, Adam Ali, who was the brother of the deceased, in his cross examination, stated that as Mujibur, one of the accused persons, did not institute any case, the following day they called Jayeda (PW-1), her husband (PW-4)and son-in-law and lodged the FIR. 13. Therefore, in view of the above, the very presence of the PW-1 and her husband i.e. PW-4 in the place of occurrence and the evidence of PW-1 and PW-4 that they had seen the accused persons assaulting the deceased is doubtful. Though PW-2 and PW-3 stated that they had seen the accused persons, more particularly, Shri Mujibur Rahman assaulting the deceased, they failed to make such disclosure before the I.O. at the time of their examination under Section 161 Cr.P.C. The said omission has been proved through the I.O. i.e. PW-10. In our considered opinion, the said omission on the part of PWS-2 and PW-3, was a major omission and as such their evidence that they had seen the accused person assaulting the deceased appears to be improvement of the prosecution version. Similarly, Mr. Adam Ali (PW-5), who was the brother of the deceased also failed to state before the police at the time of his examination under Section 161 Cr.P.C, that he had seen accused persons assaulting the deceased. This has also been proved through I.O. (PW-10). 14. Similarly, Mr. Adam Ali (PW-5), who was the brother of the deceased also failed to state before the police at the time of his examination under Section 161 Cr.P.C, that he had seen accused persons assaulting the deceased. This has also been proved through I.O. (PW-10). 14. In view of the above, it appears that all the said witnesses i.e. PW-1 to PW-5, who claimed to have witnessed the occurrence, did not disclose before the I.O. i.e. at the earliest available opportunity that they had seen the accused persons assaulting the deceased. Their said omission has been proved through the I.O. (PW-10). Therefore, in our considered opinion the evidence given by PW-1 to PW-5 that they had seen the occurrence is not free from doubt. PW-6, who was the Gaon Burah, at the relevant time, stated that he heard from others that a quarrel has taken place between the deceased and the accused persons and that the deceased sustained the injury due to fall on a stump of a tree. Though this witness was declared as hostile and cross-examined by the prosecution no contradiction could be elicited and his said evidence remained undemolished. He being a Gaon Burah his said evidence can't be thrown away. The medical evidence given by PW-9 indicates that the deceased sustained massive haematoma on both temporo perietal region more on right side and fracture of right temporo parietal bone with massive extra-dural haemorrhage. He also opined that the deceased died due to haemorrhage and shock as a result of head injury. In the cross examination, made on behalf of the defence, the said medical officer stated that the injury sustained by the deceased was a single injury and that the same has been caused due to fall of hard substance as a result of scuffle between the two persons. The said medical evidence coupled with the evidence given by PW-6 has probabillised that deceased sustained the said injury due to fall on a hard substance i.e. the stump of tree. That apart, there is contradiction and inconsistency regarding the place of the seizure of the weapon of the assault and the particulars of the same. According to PW-2, the I.O. had seized a bamboo lathi about 2/3 cubic in length from the house of Mr. Mujibur Rahman i.e. one of the accused persons, after about one week of the occurrence. That apart, there is contradiction and inconsistency regarding the place of the seizure of the weapon of the assault and the particulars of the same. According to PW-2, the I.O. had seized a bamboo lathi about 2/3 cubic in length from the house of Mr. Mujibur Rahman i.e. one of the accused persons, after about one week of the occurrence. But according to PW-4 the same was seized from a field. However, PW-4 contradicted his said statement by stating that the lathi was seized from the road. According to I.O. (PW-10), he seized a bamboo post from the house of Abbas Ali and the same was not found in the place of occurrence. The informant deposing the PW-1 stated that a bamboo lathi was seized by the I.O. and that the same was in the hand of accused Mujibur Rahman. In view of the above, it appears that there is major contradiction regarding place of seizure and the particulars of the seized weapon of assault. In view of the said inconsistency in the evidence given by the said witnesses, it is not believable that the accused persons, more particularly, Mujibur had assaulted the deceased either with a bamboo lathi or a bamboo post. The bamboo lathi and a bamboo post are two different items. There can be no reason to confuse to one with the another. In view of the said contradiction regarding seizure of the weapon of assault it is doubtful as to whether the deceased died due to any assault made by the accused persons with a bamboo lathi or bamboo post. The opinion given by the Medical Officer and the evidence given by PW-5 supports the plea taken by the defence. Hence it is doubtful as to whether the deceased died due to assault made by accused or due to fall on any hard substance. 15. Law is well settled that in the event of existence of two views i.e. one going in favour of the accused person and the other in favour of the prosecution, it is always safe to accept the view in favour of the accused persons. The cardinal principle of criminal jurisdiction is that in a criminal prosecution the burden lies on the prosecution to prove the allegation, brought against the accused person, beyond all reasonable doubt and the benefit of doubt should always be given to the accused person. 16. The cardinal principle of criminal jurisdiction is that in a criminal prosecution the burden lies on the prosecution to prove the allegation, brought against the accused person, beyond all reasonable doubt and the benefit of doubt should always be given to the accused person. 16. In view of the above discussions, we find that the evidence given by the prosecution witnesses, more particularly, PW-1 to PW-5 is not free from doubt and inconsistency. Hence it is not safe to rely on their evidence to hold the accused persons guilty. Therefore, we have no hesitation in holding that the learned trial Judge committed no error, illegality or perversity in arriving at the conclusion that the prosecution failed to prove the case beyond all reasonable doubt. Hence we find no merit in this appeal, requiring interference with the impugned judgment and order. Accordingly the appeal is dismissed. 17. Return the LCR.