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2016 DIGILAW 59 (CAL)

Sanjeev Kishor v. State

2016-01-18

DEBI PROSAD DEY

body2016
JUDGMENT : DEBI PROSAD DEY, J. This appeal is directed against the judgment and order of conviction passed by learned Sessions Judge, Andaman & Nicobar Islands, Port Blair dated 10/11.03.2015 whereby and where under learned Sessions Judge has convicted the appellant under section 147 of IPC and thereafter sentenced the appellant to suffer simple imprisonment of one year and six months and to pay a fine of Rs.2000/- in default for simple imprisonment of three months. 2. Being aggrieved by and dissatisfied with such judgment of conviction and sentence the appellant has preferred this appeal under section 374(2) of Criminal Procedure Code, 1973. The specific challenge to such judgment of conviction and sentence is that learned Sessions Judge has failed to consider that the witnesses did not corroborate each other in material particulars and thereby prosecution has failed to bring home the charges against the appellant. The appellant has further challenged such order of conviction on the ground that learned Sessions Judge did not discuss the evidences on record in it's true perspective and thereby came to an erroneous decision in the case under reference. 3. It is necessary to discuss the entire gamut of the case taking into account the evidences on record being first appellate court and therefore, it would not be out of place to mention in brief about the facts of the case including the evidences recorded by learned Session Judge. 4. The factual matrix as unfolded from the case of the prosecution is that on 14.02.2000 at 9.30 a.m. Shri K. Dilip lodged a written complaint at Aberdeen PS against Salim and others on the allegations that Salim had hit Raju with a sharp cutting weapon and thereby Raju has been seriously injured and was taken to hospital. 5. On the basis of that written complaint Aberdeen PS Case No. 126 of 2000 was started against Salim and others under sections 147/140/149/307/324 IPC. 6. Raju, however, succumbed to his injuries in hospital and accordingly 302 IPC was added. The investigation ultimately culminated in filing of charge sheet under sections 147/148/149/302/34 of Indian Penal Code against the Dinesh Rao, Simon Xaxa, Vikas Chandra Nath, Sanjib Kishor, Depish Ram, S.A. Salim and Satyavelu. Satyavalu absconded during trial and accordingly the case against Satyavelu was filed on 11.04.2007 by the Trial Court. Charges under section 147/148, 324/149 and 302/149 of Indian Penal Code were framed against the accused. Satyavalu absconded during trial and accordingly the case against Satyavelu was filed on 11.04.2007 by the Trial Court. Charges under section 147/148, 324/149 and 302/149 of Indian Penal Code were framed against the accused. The accused pleaded not guilty and claimed to be tried. 7. Leaned Session Judge acquitted all the accused persons from the charges under section 148/324/149 and under section 149/302 IPC except the convict Salim. The appellant has been convicted only under section 147 of IPC. 8. No appeal has been preferred on behalf of the State challenging the said order of acquittal by Learned Sessions Judge and accordingly we are not in a position to disturb the observation and decision of learned Sessions Judge on that score. 9. In the appeal under reference we shall confine our discussion as to how far the prosecution has been able to bring home the charge under section 147 of Indian Penal Code against the appellant. 10. The bedrock of the criminal prosecution is First information report, which sets the criminal law in motion and which is the earliest version in respect of the occurrence. The Apex Court has condemned time and again and raised suspicion in lodgement of FIR at a belated stage. Per contra, the Apex court has time and again appreciated the prompt lodgement of FIR on the ground that prompt lodging of FIR rules out the probability of embellishment or concoction of any case. 11. In the appeal under reference, we find that the place of occurrence is 5 Kms away from the Aberdeen PS and defacto complainant K Dilip lodged the FIR within one hour. The Occurrence took place at 8.30 a.m. and the FIR was lodged at 9.30 a.m. 12. The dispute cropped up amongst two groups of students of class XI of Govt. Senior Secondary School over the issue of alleged supremacy of defacto complainant in Govt. Senior Secondary School situated at School Line. Scuffling took place in between defacto complainant and his friend with another student of the selfsame school on that issue. The said student reported the matter to the Principal of that school. In turn the Principal directed the defacto complainant and others to bring their fathers to the school. 13. The defacto complainant found that the said student was moving with Simon, Ranjit and Ankush. The said student reported the matter to the Principal of that school. In turn the Principal directed the defacto complainant and others to bring their fathers to the school. 13. The defacto complainant found that the said student was moving with Simon, Ranjit and Ankush. Seeing them the defacto complainant left the school and returned to the school along with Razak, Raja, Ravi and Raju and one Nepali boy from Austinabad junction. The defacto complainant slapped one Simon Xaxa, who was sitting at the junction. Thereafter they left the school and proceeded to their home. The defacto complainant also received a threatening call over phone in the evening of that day. The defacto complainant reported the matter to Raju on 13.02.2000 and Raju assured to accompany him to his school on the very next day. On the fateful date at about 7.30 a.m. the defacto complainant came to School Line School at about 7.30 a.m. being accompanied by Mukesh, Raju and Sanjay. On reaching there, they found Simon, Salim and other boys in front of the school. One Raju came there and tried to settle the dispute between defacto complainant and Simon. But Salim did not agree to his request and at that point of time one car No. AN-01/B-1040 came to the spot. Dinesh, Bepash and Sanjiv alighted from that car. Dinesh wanted to know about the matter and Salim then told him that though Rajive had given a proposal of compromise, but he was not agreeable to such proposal. Dinesh then challenged the defacto complainant to fight with him but the defacto complainant refused to fight with Dinesh. Raju tried to intervene but fighting between Dinesh and Raju was started. Salim stood behind Dinesh. Suddenly Salim brought out one knife and stabbed Raju in his abdomen. Thereafter Salim again attempted to stab Raju with that knife but Sanjay prevented him from doing so and as such Sanjay also sustained injury on his hand. Seeing injury on the person of Raju, the friends of Raju assaulted Salim by rod. Raju started crying with pain and accordingly Sanjay took him to the hospital and defacto complainant went to Police Station for reporting the matter to police. On the basis of that written complaint of K Dilip, the criminal law was set in motion against Salim and his friends. Raju started crying with pain and accordingly Sanjay took him to the hospital and defacto complainant went to Police Station for reporting the matter to police. On the basis of that written complaint of K Dilip, the criminal law was set in motion against Salim and his friends. Ultimately learned Sessions Judge convicted Salim for the offence under section 147 and 302 of Indian Penal Code. The prosecution has examined as many as 15 witnesses in order to bring home the charges against the appellant. During his examination under section 313 of Criminal Procedure Code the appellant pleaded not guilty. No specific case has been introduced by the appellant during his examination under section 313 of Criminal Procedure Code and no witness has been examined on behalf of the defence. 14. The record reveals that the crime case no. 126 of 2000 dated 14.02.2000 was investigated by the police and ultimately culminated in filing of charge sheet under section 147/148/149/302/324 of IPC against Dinesh Rao, Simon Xaxa, Viskash Chander Nath, Sajeev Kishor, Deepesh Ram, S.A. Salim and Satya Velu. 15. The prosecution has examined as many as 15 witnesses in order to bring home the charge against the appellant. 21 documents have been exhibited on behalf of the prosecution and the same have been marked as Exhibit-1 to Exhibit-21. Some materials have been marked as Mat Exhibit-I to Mat Exhibit-X. 16. Learned advocate for the appellant Mr. Rakesh Pal Gobind contended that the appellant was not named in the F.I.R and he was not even identified by any of the witnesses during trial. Learned advocate appearing on behalf of the appellant further contended that there is absolutely no evidence to show that this appellant took active part in the alleged offence and the learned Sessions Judge has acquitted the appellant from the charge under section 149 read with 324 of IPC holding, inter alia, that there was no common object of the appellant in the offence under reference. 17. It is specifically submitted that in absence of any common object and in absence of finding regarding the role played by the appellant, learned Sessions Judge is justified to enough to convict the present appellant under section 147 of the IPC. 17. It is specifically submitted that in absence of any common object and in absence of finding regarding the role played by the appellant, learned Sessions Judge is justified to enough to convict the present appellant under section 147 of the IPC. Learned advocate for the appellant further contended that in absence of any finding as to who was the aggressor in the aforesaid dispute between the parties, learned Sessions Judge has erroneously convicted the appellant under section 147 IPC. 18. Learned Public Prosecutor, Mr. S.K. Mandal, Senior Advocate contended that the witnesses have specifically stated that the appellant and his associates were the aggressors and the star witness of the prosecution namely PW-1, 2, 4 and 8 have duly identified the appellant in Court. According to Mr. Mandal, learned Sessions Judge was perfectly justified in holding the appellant guilty for the offence under section 147 of IPC. Mr. Mandal contended that the appeal should be dismissed. 19. It may be stated here that all the accused persons were charged under sections 147/148/149/324 IPC and under sections 302/149 of IPC. Learned Sessions Judge acquitted all the accused persons for the offence under sections 148, 149, 324 IPC and under sections 302, 149 of IPC except one S.A. Salim. Learned Sessions Judge, however, convicted the remaining accused persons under section 147 of IPC. 20. Learned Sessions Judge has categorically held while acquitting the accused persons that there was no common object of the appellant and other convicted for the offence under section 148, 302 and 324 IPC. The State did not prefer any appeal against such observations and findings of the learned Sessions Judge. Therefore, the observations and findings of the learned Sessions Judge became final and cannot be disturbed at this stage. 21. In order to bring the home charge under section 147 of the IPC, the following ingredients are required to be proved by the prosecution. (i) That they constituted an unlawful assembly within the meaning of section 147 IPC. Therefore, the observations and findings of the learned Sessions Judge became final and cannot be disturbed at this stage. 21. In order to bring the home charge under section 147 of the IPC, the following ingredients are required to be proved by the prosecution. (i) That they constituted an unlawful assembly within the meaning of section 147 IPC. (ii) That every one of them was guilty of rioting as contemplated under section 146 IPC as soon as one or more of them used violence in prosecution of their common object, (iii) That all members of the assembly would be guilty of an offence committed in prosecution of their common object by any member of such assembly, and that (iv) On account of their being armed with weapons, they knew that they were likely to commit an offence. 22. The learned Sessions Judge has specifically observed that there was no common object of the persons involved in the alleged offence. That goes to show that one of the vital components for proving the offence under section 147 of IPC is absent as per the observations of the learned Sessions Judge yet learned Sessions Judge has convicted the appellant for the offence under section 147 of IPC only. 23. It is well settled principle of law that in case of sudden quarrel between the parties, it cannot be said that the accused present there, formed an unlawful assembly. In such a case each of the accused persons should be held liable for his own act and not vicariously liable for the acts of others. It transpires from the evidences on record that Dinesh and Raju were fighting. Participation of other persons present in the scene of occurrence in such free fighting is also absent from the evidence on record. 24. It would not be irrelevant to mention in brief about the evidence of star witness of the prosecution in order to ascertain as to how far the prosecution has been able to prove the involvement of the appellant in the commission of offence of rioting. PW-1 K. Dilip has categorically stated in his cross examination in chief that he has had no knowledge about rest of accused persons by name. That clearly depicts that PW-1 could not say anything about the appellant. PW-2 Pandi Selvam has also stated in his evidence that he could not identify the rest by name. PW-1 K. Dilip has categorically stated in his cross examination in chief that he has had no knowledge about rest of accused persons by name. That clearly depicts that PW-1 could not say anything about the appellant. PW-2 Pandi Selvam has also stated in his evidence that he could not identify the rest by name. PW 8 Abraham also could not state the name of the appellant in his examination in chief. PW4 M. Sunder has specifically stated in his examination in chief that he could not identify or recognize any of the persons who came subsequently by taxi. The remaining witnesses also did not tell anything about the involvement of the present appellant in the offence under reference. 25. It is, therefore crystal clear that the prosecution has miserably failed to prove the participation of the appellant in the alleged offence and even the star witnesses could not name the appellant as one of the member of such unlawful assembly. 26. In absence any common object and in absence of any evidence regarding participation of the appellant in the alleged offence under section 147 IPC, it is difficult to maintain such conviction under section 147 IPC against the appellant. The Hon'ble Supreme Court in very many decisions has categorically observed that in such situation each of the accused persons should be held liable for his own act and not vicariously liable for the acts of others ( AIR 1973 SC 2505 (Lalji v. State of UP)), (1997) 11 SCC 567 (Pundalik Mahadu Bhane v. State of Maharastra, AIR 1976 SC 2423 (Iswar Singh v. State of UP). 27. Learned Sessions Judge has, however, convicted one S.A. Salim under section 147/302 IPC in the selfsame judgment. The appeal preferred by S.A Salim has been decided by the Division Bench of this Court. The Single Bench of this Court is not competent to decide the appeal under section 302 IPC. Moreover, according to section 374(2) Cr.PC, the appeal is maintainable before the Division Bench only. However, the present appellant has filed this appeal against conviction and sentence passed by the learned Sessions Judge holding that the appellant is guilty for the offence under section 147 IPC. It is well settled principle of law that such matter can only be looked into by invoking revisional jurisdiction of this court. However, the present appellant has filed this appeal against conviction and sentence passed by the learned Sessions Judge holding that the appellant is guilty for the offence under section 147 IPC. It is well settled principle of law that such matter can only be looked into by invoking revisional jurisdiction of this court. There is also no bar to convert this criminal appeal into criminal revisional application. In that view of this case, the present appeal may be maintainable by converting the same as criminal revision. 28. I have already pointed out in the forgoing paragraphs, the witnesses have failed to attribute any scene of participation of the appellant in the alleged offence under section 147 IPC and the learned Sessions Judge did not find any common object of the persons assembled at the scene of occurrence. In that view of this case and being fortified by the decisions referred to hereinabove, it may safely be stated that the appellant is entitled to get the benefit of doubt and there by the appellant is entitled to get an order of acquittal. 29. In the premises set forth above the conviction of the appellant under section 147 IPC is set aside and the appellant be acquitted from the charge under section 147 IPC. 30. The appellant be set at liberty at once and be discharged from his bail bond forthwith. 31. It is made clear that this court being bereft of any jurisdiction to deal with the entire judgment of the learned sessions judge is passing such order invoking revisional jurisdiction of this court and without going into the merit of the decision of the learned sessions judge passed against accused S.A Salim. 32. Let a copy of this order be forwarded to learned Sessions Judge for information.