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2019 DIGILAW 384 (GAU)

Joydev Barhoi v. Jiten Sarkar

2019-03-27

RUMI KUMARI PHUKAN

body2019
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. This revision has been preferred against the judgment and order dated 29.06.2009, passed by the learned Sessions Judge, Morigaon in Sessions Case No. 106/2007, whereby the learned Court has convicted the accused No. 1 Rupchand Sarkar but has acquitted the accused No. 2 Jiten Sarkar. 2. The prosecution case may be briefly narrated as follows: an FIR was filed by one Joydev Baroi on 29.06.2007 alleging inter alia that on the previous night i.e. on 28.06.2007 his elder brother Arjun Baroi was sleeping along with his another brother Mahadev Baroi at the 'Pamghar' at Sutradol Village but at about 11:00 P.M., he was not found on bed. Said Mahadev hearing the cry at about 1:00 A.M. at night, searched for his brother Arjun Baroi and then he was found lying outside with a stab injury on his neck. Although some sort of nursing was provided to Arjun but he died. Said Mahadev while he went in search of Arjun, could notice three/four persons running away from the side of Arjun and two of them were Rupchand Sarkar and Jiten Sarkar. 3. On being informed about the incident by Mahadev, his brother Joydev filed the aforesaid FIR. On the basis of the FIR, the Jagiroad P.S. GDE No. 777, dated 29.06.2007 was registered u/s. 302/34 IPC. The investigation commenced forthwith, inquest on the dead body was done, post mortem examination was also conducted on the dead body. The accused persons were arrested and accused Rup Chand Sarkar made a confessional statement in the Court. The statement of the other witnesses were also recorded and after completion of the investigation, the charge sheet u/s. 302/34 of the IPC was filed against accused Rup Chand Sarkar and Jiten Sarkar. 4. The case being triable by the Court of Sessions, the case was committed to the Court of Sessions and accordingly the learned Sessions Court after hearing the learned counsel for both the parties, framed charges u/s. 302/34 of the IPC and both the accused persons pleaded not guilty to the charge. 5. During the course of hearing, the prosecution examined 15 witnesses and the defence examined none. The plea of the defence is of total denial. 6. The statement of the accused persons were recorded u/s. 313 of the CrPC. 7. 5. During the course of hearing, the prosecution examined 15 witnesses and the defence examined none. The plea of the defence is of total denial. 6. The statement of the accused persons were recorded u/s. 313 of the CrPC. 7. The accused Rup Chand Sarkar made a confessional statement before the Court and he being a dumb person, the same was interpreted by an interpreter. 8. On the conclusion of the trial, the Court held accused Rup Chand Sarkar guilty u/s. 304 Part-II IPC, instead of Section 302 IPC and sentenced him to R.I. for eight years and a fine of Rs. 1000/-, in default of fine further R.I. for one month. But however acquitted the accused Jiten Sarkar due to dearth of evidence to prove the charge against him. 9. Now the present Revision Petition has been preferred challenging the acquittal of accused Jiten Sarkar on the ground that the learned trial Court has failed to appreciate the evidence in proper perspective of law and facts which has resulted in acquittal of the accused Jiten Sarkar. It has been challenged that the learned Sessions Judge ought to have accepted the evidence of PWs. 6, 8 and 9 who disclosed the involvement of the accused Jiten Sarkar along with the other accused. Thus it has been challenged that the learned Court below whimsically has passed the order without any lawful basis and there is nothing to show that accused Jiten Sarkar is innocent to get the verdict of acquittal on the benefit of doubt. 10. The learned counsel for the appellant Mr. A. Mannaf although has submitted that there is sufficient ground to interfere into the order of acquittal passed by the learned trial Court but he has not addressed his arguments in total although he was given the opportunity to argue the case. The matter being related to 2007 and pending before this Court since 2009, the same is taken up for disposal accordingly, in presence of Mr. B.J. Dutta, learned Addl. P.P., Assam representing the State respondent and Mr. S.K. Talukdar, learned counsel for the respondent No. 1, Jiten Sarkar. 11. The learned counsel for the State have made the submission that they have not preferred any appeal against the order of acquittal but it was the informant who has preferred the appeal. B.J. Dutta, learned Addl. P.P., Assam representing the State respondent and Mr. S.K. Talukdar, learned counsel for the respondent No. 1, Jiten Sarkar. 11. The learned counsel for the State have made the submission that they have not preferred any appeal against the order of acquittal but it was the informant who has preferred the appeal. The State has nothing to submit as against the judgment and order of acquittal, as the learned trial Court has vividly discussed all the facts in details in its judgment. 12. The learned counsel for the respondent No. 1, Jiten Sarkar has vehemently submitted that there was no illegality in the order of acquittal by the learned trial Court and the witnesses examined by the prosecution themselves has depicted the story which goes in favour of the accused Jiten Sarkar and the learned trial Court is bound to accept the version of those witnesses. It has been submitted that although one of the witnesses has stated that he saw the accused Jiten Sarkar running away from the side of their house along with the other accused, the same cannot be a conclusive proof as regards the involvement of the present accused with the offence alleged. It has been pointed out that in view of the voluntary confessional statement made by the accused Rupchand Sarkar (who is the father of present respondent No. 1 Jiten Sarkar), there remains no scope to suggest the complicity of the present respondent No. 1 Jiten Sarkar. Attention of the Court has also been drawn to the evidence on record in respect of his contention and has submitted that the learned trial Court has rightly appreciated the entire evidence on record while arriving at the conclusion and there was no illegality or irregularity in the aforesaid order. Further the Revisional Court has limited scope to interfere into such findings or to appreciate the evidence on record unless there is any perversity and illegality which leads to injustice. Accordingly discussing about the evidence on record, Mr. S.K. Talukdar, learned counsel for the respondent No. 1 has submitted that there is no any perversity or illegality in the impugned order to call for interference. 13. Accordingly discussing about the evidence on record, Mr. S.K. Talukdar, learned counsel for the respondent No. 1 has submitted that there is no any perversity or illegality in the impugned order to call for interference. 13. I have considered the submission of learned counsel for both the parties and also carefully examined the findings of the Court as to whether proper appreciation of evidence on record was made by the learned trial Court or there is any perversity. 14. In the present case there are two sets of witnesses: one set relates to the family of the informant/deceased person and the other set comprises the persons of the locality. 15. PW. 2 Sahadev Baroi (in the FIR it was stated as Mahadev Baroi) is the most relevant witness in this case being the brother of the deceased and the deceased was sleeping with him prior to the occurrence. According to him, on the date of occurrence, while he was sleeping with his brother Arjun Baroi at their Pumpghar but he did not know when Arjun went out of room. At about 1:00 A.M. at night, hearing the sound of crying outside, he found that his brother was not by his side on the bed. He came out from the house and saw four persons running from the backside of their house, out of which he could recognize Rupchand Sarkar and Jiten Sarkar. Then he found that his brother Arjun was lying there with injury on his neck and other parts of the body. He was suggested in his cross-examination that he has stated before the I.O. that he only suspected Rupchand Sarkar to be involved in the incident and he has not mentioned the name of other accused persons. 16. The PW. 1 Joydev Baroi and PW. 3 Smti. Chinu Baroi are the brother and mother of the deceased as well as PW. 2. Both of them are not eye witnesses to the occurrence and came to know all about the incident from PW. 2 and all of them found Arjun with cut injury on his neck who died soon thereafter. 17. As the death of the deceased is caused by cut injury is not disputed, so we need not to discuss the evidence of PW. 4 Dr. D.C. Nath, who conducted the post mortem examination on the dead body. 18. PW. 2 and all of them found Arjun with cut injury on his neck who died soon thereafter. 17. As the death of the deceased is caused by cut injury is not disputed, so we need not to discuss the evidence of PW. 4 Dr. D.C. Nath, who conducted the post mortem examination on the dead body. 18. PW. 5 Niranjan Debnath being a neighbor, who arrived at the house of the PW. 2, hearing hue and cry at midnight and upon asking as to what has happened, he was told by Upen Baroi that they could hear the voice of Rupchand Sarkar. So immediately after the occurrence, the name of accused Rupchand Sarkar was disclosed, not the name of Jiten Sarkar. 19. PW. 6 Subal Debnath and PW. 8 Narayan Debnath have stated a different story that on the day of occurrence they heard hue and cry in the house of Arjun and at that time accused Jiten Sarkar and his brother arrived in the house of PW. 6 and enquired about Niranjan Debnath who is the VDP Secretary and on being asked as to what happened, Jiten Sarkar and his brother informed that a thief entered their house and as soon as the person was grabbed, the thief fled away from their grip and their father Rupchand Sarkar has chased the thief and dealt a cut blow from backside. It was also revealed by Jiten Sarkar that the said thief was Arjun Baroi. Then all of them proceeded to the place of occurrence and Sahadeb (PW. 2) informed that Arjun was killed by dumb person Rupchand Sarkar. So facts to be noted that the PW. 2 stated only about the accused Rupchand Sarkar before the PW. 6. 20. The PW. 8 further disclosed that they were informed by Drupadi Sarkar (PW. 7 and wife of accused Rupchand Sarkar) that Arjun entered inside their house and tried to pick up their daughter Tapashi, while she was sleeping and at that point of time Jiten tried to caught hold of him but Arjun fled away and his father Rupchand Sarkar chased him and after some time Jiten also went away but both of them did not return. 21. The circumstances that has been depicted by this witness has also been supported by the other witnesses i.e. PW. 7 Drupadi Sarkar and PW. 21. The circumstances that has been depicted by this witness has also been supported by the other witnesses i.e. PW. 7 Drupadi Sarkar and PW. 12, Tapashi Sarkar (the daughter of the accused Rupchand Sarkar). Both these witnesses have narrated the story that on the day of occurrence while PW. 12 was sleeping with her younger brothers, aged about 7 years and 5 years respectively, then deceased Arjun entered into their room by cutting upon the wall made of dry stem and attempted to rape her and lift PW. 12 from her room and as she made hue and cry, all the family members including the parents woke up and her father Rupchand Sarkar chased Arjun. They could identify Arjun by the torchlight. The PW. 7 further stated that her husband Rupchand Sarkar, who chased Arjun returned after some time and reported that he had assaulted Arjun and thereafter he fled away. 22. Thus the evidence of PW. 7 and PW. 12 reveals that on the day of occurrence as the deceased Arjun entered into the house of the accused with an evil intention to commit rape upon the daughter of the accused Rupchand Sarkar, the accused chased Arjun and thereafter assaulted him with a sharp weapon, which he admitted before his wife/PW. 7. The evidence of PW. 6 also reveals that Jiten Sarkar was not with his father as because he went to his house in-search of his brother to report the incident that deceased Arjun has entered into his house and his father Rupchand Sarkar has chased him and also dealt a blow upon said Arjun. 23. The evidence of PW. 10 Dipak Pator has also lend support to the testimony of PW. 7 and PW. 12 that on the day of occurrence the PW. 7 went to their house at midnight and informed the entire episode that Arjun by entering into their house went near the bed of PW. 12 and tried to commit rape upon her and then Arjun has been chased away by her father/Rupchand Sarkar with a 'bachula' (a spade like instrument used for cutting food). 24. The PW. 11, Abdul Aziz is a hearsay witness who stated that he met both the accused persons inside the Police Station while they surrendered before the police and accused Rupchand Sarkar confessed that he has killed Arjun by his gesture and posture. 25. 24. The PW. 11, Abdul Aziz is a hearsay witness who stated that he met both the accused persons inside the Police Station while they surrendered before the police and accused Rupchand Sarkar confessed that he has killed Arjun by his gesture and posture. 25. Upon scrutiny of the evidence of PWs. 6, 7, 8, 10 and 12, it would reveals that because of serious conduct of the deceased person who attempted to commit rape upon the daughter of the accused Rupchand Sarkar, he became terribly annoyed and chased away Arjun with a weapon in his hand and dealt a cut blow upon Arjun with a spade like weapon. Their evidence is no way suggestive of complicity of the accused Jiten Sarkar with the offence. 26. On the other hand, the sole eye witness (PW. 2) arrived at the place of occurrence only after the incident and he himself has not seen as to who dealt the cut blow upon Arjun but saw that both accused Rupchand Sarkar and Jiten Sarkar along with some others fled away from the place of occurrence. 27. In the given background of the case as has been narrated by the witnesses it reveals that Rupchand Sarkar chased deceased Arjun with a weapon in his hand and also admitted to his wife that he had dealt the blow to Arjun and in the meantime, Jiten Sarkar also went out in search of his father and he may have arrived at the place of occurrence by the time, his father has dealt the cut blow upon Arjun, for which PW. 2 might have seen accused Jiten Sarkar also fleeing from the place of occurrence. 28. That being the position, the complicity of the accused/respondent No. 1 in the alleged commission of murder of Arjun cannot be exclusively made out by the PW. 2 himself. The PW. 2 also stated the name of accused Rupchand Sarkar only to be the perpetrator of the offence without naming the accused Jiten Sarkar. The other witnesses were persons for the locality and has supported the contention that has been raised by the wife and daughter of accused Rupchand Sarkar, which is enough to show the reason for the severe assault dealt upon the deceased on the part of the accused Rupchand Sarkar. The evidence of PW. The other witnesses were persons for the locality and has supported the contention that has been raised by the wife and daughter of accused Rupchand Sarkar, which is enough to show the reason for the severe assault dealt upon the deceased on the part of the accused Rupchand Sarkar. The evidence of PW. 12 Tapashi Sarkar also reveals that said Arjun made several attempts to commit such sexual assault upon her on earlier occasions also and the accused Rupchand Sarkar being the father could not resist his temptation to attack and assault upon the deceased who in his presence tried to commit such indecent assault upon his daughter. 29. It is to be noted that said Rupchand Sarkar made a confession before the Magistrate which was recorded by PW. 13, Mr. P.K. Borah and the accused person being a dumb person, his version was interpreted by the PW. 15, Heramba Kumar Das, who is a trained graduate teacher of Govt. Deaf and Dumb School, Khanapara and is an interpreter. On the basis of such interpretation of the statement of accused, the PW. 13, the learned Addl. CJM, Morigaon has proved the confessional statement vide Exhibit-4 and also certified that such a confessional statement given by the accused was made properly after giving him appropriate time for reflection and on being satisfied, he has recorded the confessional statement. 30. In view of such confessional statement made by the accused Rupchand Sarkar, which has been duly proved, it can be seen that accused Rupchand Sarkar himself admitted the guilt and accused Jiten Sarkar was no way implicated in his statement. The accused Rupchand Sarkar in his confessional statement has stated all about the facts that has been stated by his wife and daughter in course of evidence that as the deceased Arjun entered into their house to commit rape upon his daughter Tapashi Sarkar, so hearing hue and cry he chased away the accused Arjun who ran away from his house and thereafter gave a blow to him. He elaborately stated in his confessional statement that deceased Arjun followed his daughter with an evil intention for which he apprehends that Arjun will commit mischief upon his daughter and on the day of occurrence, while Arjun entered into their house, he tried to apprehend him but he managed to escape for which he chased him with a spade in his hand and dealt a cut blow. 31. In view of such confessional statement coupled with other evidence on record, it can be held that it was the accused Rupchand Sarkar who committed the offence and respondent No. 1, Jiten Sarkar who went in-search of Rupchand Sarkar has also arrived at the place of occurrence. That being the sequences of occurrence, which has been demonstrated by the witnesses as discussed above, the complicity of accused Jiten Sarkar cannot be made out as has been apprehended by the PW. 2. 32. The learned trial Court has fully appreciated all the evidence on record and rightly come to a decision about the guilt of the accused Rupchand Sarkar only and has acquitted accused Jiten Sarkar, as a person cannot be convicted only on suspicion without there being any cogent and convincing evidence. There appears no irregularity or illegality in the impugned judgment and order. 33. The scope of Revisional Court has been discussed by the Hon'ble Apex Court in State of Kerala vs. Puttumana Illath Jathavedan Namboodiri reported in (1999) 2 SCC 452 , where the Hon'ble Court has held as below: "5. ..... In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice...... ......". 34. ......". 34. As has been discussed above, in the instant case, nothing is brought on record to show that there was wrong-appreciation of evidence which may result in miscarriage of justice so as to interfere into the findings of the learned trial Court. The High Court cannot substitute its own opinion even after re-appreciation of evidence under the revisional jurisdiction, which is mandated by law. 35. In view of above, the revision is devoid of merit and stands dismissed accordingly. 36. Return the LCR along with a copy of this judgment immediately.