Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 885 (GAU)

GIRISH BAYAN v. STATE OF ASSAM

2018-05-31

MIR ALFAZ ALI

body2018
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard learned Senior Counsel Mr. S. Dutta for the appellant and Learned Addl. Public Prosecutor Ms. S. Jahan for the State. 2. This revision petition is directed against the judgment and order dated 25.02.2010 passed by learned Sessions Judge, Dibrugarh, in Criminal Appeal No. 33(4)/09. By the said judgment learned Sessions Judge, dismissing the appeal, upheld the judgment and order dated 05.10.2009 passed by the learned Addl. Chief Judicial Magistrate, in G.R. Case No. 268/08, whereby, the petitioner was convicted u/S. 323, IPC and sentenced to simple imprisonment for 1 (one) month. 3. As per prosecution case on 07.02.2008 at about 6'Oclock in the evening, the petitioner Girish Bayan assaulted PW-1 Rupen Bayan in the campus of his house, upon instigation of Jadu Bora. An FIR was lodged by PW-2, Mamoni Bayan, on the basis of which, police registered a case and after usual investigation submitted charge sheet against the accused u/S. 341/323, IPC. Eventually the petitioner stood trial. 4. In course of trial, the prosecution examined 5 (five) witnesses and on appreciation of evidence, learned Addl. Chief Judicial Magistrate convicted the petitioner u/S. 323, IPC and awarded sentence as indicated above. On appeal, learned Sessions Judge, Dibrugarh upheld the conviction and sentence and dismissed the appeal. 5. Aggrieved, the petitioner filed this revision petition. 6. I have considered the submissions made by learned Senior Counsel Mr. S. Dutta and learned Addl. Public Prosecutor Ms. S. Jahan and also the evidence and materials brought on record. 7. The contention of learned Senior Counsel Mr. S. Dutta is that the prosecution case basically hinges on the oral testimony of the PW-1, PW-2 and PW-3, who were not all worthy of trust and as such no conviction of could be recorded on the basis of the evidence of these prosecution witnesses. Supporting the impugned judgment, learned Addl. Public Prosecutor submits, that there was no reason to disbelieve the injured, and as such the impugned judgment cannot be interfered in exercise of revisional jurisdiction by reappreciating the evidence. 8. Though, it is the settled position of law that revisional Court is empowered to exercise all powers conferred on the Appellate Court, by virtue of Section 401, Cr.P.C, the revisional Court has got its own limitation, and as such, the revisional power cannot be equated with that of an appeal. 8. Though, it is the settled position of law that revisional Court is empowered to exercise all powers conferred on the Appellate Court, by virtue of Section 401, Cr.P.C, the revisional Court has got its own limitation, and as such, the revisional power cannot be equated with that of an appeal. It has been observed by the Apex Court time and again, that unless, the finding of the court, whose decision is sought to be revised is shown to be totally unreasonable or grossly erroneous or perverse for being based on no material or wholly ignoring the materials on record, the revisional Court should refrain from interfering with the judgment or order, even if a different view is possible. At the same time revisional Court also cannot simply wash off its hands from looking into the facts of the case, if the situation necessitates the analysis of the facts or evidence for purpose of satisfying itself as to the correctness, legality or propriety of any findings sought to be revised. Keeping in view the above principles and object in view, let me go through the evidence brought on record. 9. Pw-1, the injured, deposed that while he was away from the house, beyond the embankment at a distance of 150 meters from his house, the accused suddenly came from back side and hit him with sharp weapon. He raised alarm, hearing which, his daughter came from the house and he was shifted to hospital. During cross examination, he admitted that the campus of Jadu Bora is contiguous to his campus. It is pertinent to mention that as per allegation made in the FIR, accused petitioner assaulted PW-1 upon direction of Jadu Bora, who was of course, not charge sheeted. 10. Pw-2, the daughter of the injured stated, that hearing screame of her father, she came out of the house and saw that Girish Bayan was assaulting her father. She also raised alarm, hearing which neighbouring people came and dispersed them. Accordingly to PW-2, she and PW-3 together came to the place of occurrence. Accordingly to PW-3 having noticed from the verandah, that accused petitioner was assaulting PW-1, she went to the place of occurrence, following the PW-2. However, the previous statement of these PW-2 and PW-3 recorded u/S. 161, Cr.P.C would show, that none of them witnessed the petitioner assaulting the PW-1. Accordingly to PW-3 having noticed from the verandah, that accused petitioner was assaulting PW-1, she went to the place of occurrence, following the PW-2. However, the previous statement of these PW-2 and PW-3 recorded u/S. 161, Cr.P.C would show, that none of them witnessed the petitioner assaulting the PW-1. Therefore PW-2 and PW-3 though deposed projecting themselves as eye witnesses, in fact, none of the PW-2 or PW-3 was eye witness of the occurrence as revealed from the materials on record. Therefore PW-2 and PW-3 hardly deserve any credibility. 11. In the FIR, it was stated that the occurrence took place within the campus of PW-1, whereas, during evidence, all the witnesses including the injured himself stated that the occurrence took place 150 meters away from his house beyond the embankments. 12. What therefore, appears to be most important is that both the courts below, ignored the evidence of PW-4, who was the only independent witness of the case. Testimony of the PW-4 indicated a different story. According to the PW-4, PW-1 entered into the campus of Jadu Bora for collecting firewood. On being enquired by said Jadu Bora, as to why he entered his campus, when PW-1 was hurriedly leaving the campus of Jadu Bora by crossing the fencing, he fell down by hitting the fencing wire. The story as revealed from the testimony of the PW-4 and the allegations made in the FIR, that petitioner assaulted PW-1 upon direction of Jadu Bora as well as the admission of the PW-1, that campus of Jadu Bora is contiguous to his campus, coupled with material contradiction between the FIR and the evidence of PW-1 as regards place of occurrence would speak loud and clear that the story sought to be projected by the prosecution through PW-1, PW-2 and PW-3 was hardly worthy of inspiring confidence for the simple reason that prosecution came out with two different stories, one through the PW-1, PW-2 and PW-3 and the other by the PW-4. This glaring inconsistency going to the root of the prosecution case, and having the potential to demolish the entire prosecution case, escaped the notice of both the courts below. This glaring inconsistency going to the root of the prosecution case, and having the potential to demolish the entire prosecution case, escaped the notice of both the courts below. What the prosecution evidence as deposed by PW-1, PW-2 and PW-3 crystallizes is that either all of them had lied before the Court or put forward a concocted story by suppressing the real facts and as such no credibilties could be attached to these three witnesses. After discarding the testimony of these three vital witnesses, the prosecution will be left with no evidence at all, to substantiate the charge against the petitioner. 13. Thus, totality of the evidence adduced by the prosecution as pointed out above clearly demonstrated, that the prosecution case as deposed by the PW-1, the injured or for that matter by PW-2 & PW-3 is hardly of any credence. In a criminal case no one can be convicted unless his guilt is proved beyond all reasonable doubt. The prosecution having failed to adduce any credible evidence to establish the charge against the petitioner, beyond reasonable doubt, conviction sentenced of the petitioner cannot be sustained. 14. Accordingly, the appeal is allowed and the conviction and sentence of the petitioner is set aside. 15. Send back the LCR.