IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) Criminal Appeal No. 357of 2013 Sri Rabindra Das Appellant -Versus- The State of Assam Respondent -BEFORE- HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE N. CHAUDHURY Advocate for the appellant : Advocate for the Respondents: Mr. BM Choudhury, Advocate Mr. AM Bora Advocate Mr. K Konwar, Additional Public Prosecutor, Assam Date of hearing & Judgment: JUDGMENT & ORDER (N. Chaudhury, J) This is an appeal against acquittal at the instance of the informant. The accused persons of Sessions Case No. 34/2007 were acquitted by the learned Additional Sessions Judge, Cachar at Silchar vide judgment and order dated Aggrieved, the informant approached this court under proviso to Page 1 of 8

2 Section 372 of the Code of Criminal Procedure praying for setting aside the judgment of acquittal and to convict the accused persons. 2. The appellant herein, as informant, lodged an FIR in writing before Officer In-charge of the Rangirkhari Town outpost on at around A.M. informing that on the same day at around 8 A.M. when he along with his father Sunil Das and two labourers were transplanting paddy in the field, accused Sukumar Das came and challenged them. As they asserted their title over the land he left but came back after a short while with two sons Siddhu and Sanjay armed with lathi and dao and attacked his father. They felled his father on the field and caused grievous injuries by assaulting with lathi and dao. Seeing the incident, the informant and two labourers Sajal and Moni rushed to the place of occurrence and took the victim to hospital who succumbed to the injury. On the basis of the written ejahar submitted before the Rangirkhari Town outpost, G.D. Entry No. 431, Silchar P.S. Case No. 1259/2006 under section 447/302/34 of the IPC was registered and investigation held. After completion of investigation, police submitted charge sheet No. 799/2006 on before the learned Additional Chief Judicial Magistrate, Cachar at Silchar who committed the case to the Sessions on and thereupon the aforesaid Sessions Case No. 34/2007 was registered. Learned Sessions Judge by his order dated framed charges under section 447/34 and 302/34 of the IPC against three accused persons Sukumar Das, Sidhartha Das and Sanjay Das. All of them pleaded not guilty and claimed to be tried. Page 2 of 8

3 3. In course of trial, accused No. 1, Sukumar Das committed suicide and vide order dated , the case stood abated against him. Trial was continued against accused Sidhartha Das and Sanjay Das only. 4. The learned Sessions Judge on perusal of the depositions of all the 11 prosecution witnesses and after consideration of the statements of accused persons recorded under section 313 Code of Criminal Procedure, passed the impugned judgment and order dated thereby acquitting them from the charges. 5. The learned Sessions Judge considered the depositions of all the witnesses in detail while passing the impugned judgment. Upon consideration of the evidence of PW 10, Dr. YN Singh, conducted post mortem examination over the dead body, it came to light that there were altogether three injuries on the person of the deceased. One lacerated injury was present over the volt area of scalp, parallel with mid-line measuring 9 cm x 2 cm x bone deep containing 8 stitches. One abrasion was found over the right forearm 8 cm below the right elbow joint measuring 3 cm x 2 cm and radius and ulna joint bone had a fracture at wrist joint. Medical opinion was that death was due to coma resulting from head injury. Neither the ejahar nor the testimony of the three eye witnesses can furnish any information to the fact as to who had dealt the blow on the head of deceased Sunil resulting in the aforesaid lacerated injury. The doctor rather said in course of cross examination that such type of injury might even be caused by fall on hard substance. The learned Sessions Judge was of the view that the three eye witnesses contradicted each other on material point and in view of their clarifying contradiction and discrepancies in the evidence, it is difficult to Page 3 of 8

4 rely on their testimony. PW 1, Rabindra Das, PW 5, Smti. Suma Das, PW 6 Smti. Sibani Das and PW 4 Sri Samiron Das are the members of the same family. Out of them, PW 4, Samiron Das did not see the occurrence. The testimony of PW 6, Smti. Sibani Das, was not believed by the learned Sessions Judge. She testified that on at about 8/8.30 A.M., her sister-in-law called her from the side of pond and told her to look at accused Sidhu and Sanjay along with their father going with sticks at their hand. But this fact was not disclosed by PW 5, Smti. Suma Das who is the sister-in-law of PW 6. According to PW 5, some young boys of their village informed that perhaps the accused persons were assaulting Sunil Das in the paddy field. Hearing so, she rushed to the place of occurrence. Such statement of PW 5 demolishes the testimony of PW 6 as well. The learned Sessions Judge, therefore, was of the view that none of these two witnesses had any occasion to see the occurrence. 6. PW 1, Rabindra Das, being the informant stated in course of his deposition that he rushed to the spot after his father had fallen on the ground on the result of assault by the accused persons and their deceased father Sukumar Das. But in course of cross examination, he further stated that there was no other person at the time of occurrence near them or at nearby place. He asserted that after hearing hulla, 20/25 persons came there. On his own admission, he rushed to the place of occurrence and saw his father lying with injuries. So this witness did not see as to which of the assailants had dealt the fatal blow on the head of the deceased Sunil Das. 7. PW 2, Sajal Das and PW 3 Jotesh Das are the two labourers engaged by the deceased for transplanting paddy at the place of occurrence. According to Page 4 of 8

5 them, when they were working in the field at around 7 A.M., deceased Sukumar challenged them and there was a hot altercation between deceased Sunil Das on one side and Sukumar Das (since deceased) on the other side. Their testimony only shows that there was an altercation between Sunil and Sukumar who are brothers. According to them, at around 8.30 A.M., Sukumar came again with Sidhu. On the other hand, PW 1 had stated that Sukumar had returned with Sidhu and Sanjay, his two sons. According to PW 2 and PW 3, they were working at the field with their heads down and they did not follow from which side Sukumar and Sidhu had come. All on a sudden, he heard the hue and cry raised by the people including PW 1 and then ran to the place of occurrence and found Sunil was lying on the ground with injuries on his head. Both Sukumar and Sidhu were armed with sticks. This PW 2 could not definitely say as to which of the accused persons had inflicted injury on the head of Sunil Das. PW 3, Jotesh Das, spoke in the same tone and thus, there is no evidence, whatsoever, on record to hold as to who had inflicted the fatal blow on the head of the deceased for causing his death. Upon consideration all these materials, the learned Sessions Judge was of the view that prosecution failed to establish the guilt of the two accused persons, namely, Sidhu Das and Sanjay Das and accordingly they were acquitted of charges under section 447/302/34 of the IPC. 8. We have heard Mr. BM Choudhury, learned counsel for the appellant and Mr. AM Bora, learned counsel for the accused persons. Mr. K Konwar, learned Additional Public Prosecutor, is also heard. 9. Mr. BM Choudhury, learned counsel for the appellant, could not establish as to how the findings arrived at by the learned Sessions Judge as referred to Page 5 of 8

6 above, can be said to be perverse. He informed the court that accused No. 1, Sukumar Das died during trial as he had committed suicide and so, the trial was merely held against accused Sidhu Das and Sanjay Das, two sons of Sukumar Das. He fairly admitted that there is no evidence, whatsoever, against Sanjay Das but he strenuously urged that offence committed by Sidhartha Das has been proved beyond reasonable doubt. 10. Per contra, Mr. AM Bora, learned counsel for the accused persons, argued with vehemence that the prosecution has been vitiated due to exaggeration by the witnesses. PW 1 as informant asserted that the accused persons came with lathi and dao and deceased Sunil with stick as well as dao. But medical evidence belies such statement. According to Mr. Bora, since there is no injury from any sharp weapon on the person of the deceased, it is clear that the witnesses are not reliable. He further stated that PWs 2 and 3 who are the only independent witnesses in the case, did not implicate Sidhartha Das or Sanjay Das in any way and both of them claimed that they were working with their heads down and so did not see the actual occurrence. They raised their head only after hearing hue and cry raised by the people and then they noticed that deceased Sunil was already lying on the ground with injuries on his person. 11. In an appeal against acquittal the accused starts with a double presumption in his favour. First, the presumption of innocence and secondly, the accused having secured an acquittal from the trial court. Unless the findings of trial court are such that inference of guilt is irresistible, the same cannot be interfered with. If the findings recorded by trial court are not perverse or contrary to material or record and if there is no infirmity in the reasons assigned Page 6 of 8

7 by the trial court for acquitting accused persons, no interference is warranted. This is why certain cardinal principles are required to be kept in mind while deciding an appeal against acquittal and they are as follows:- (i) that there is presumption of innocence in favour of the accused strengthened by the acquittal after trial before the trial court, (ii) that if two views are possible, a view favourable to the accused should be taken, (iii) that trial Judge had the advantage of looking at the demeanour of the witnesses, and (iv) that the accused is entitled to reasonable benefit of doubt, a doubt which a thinking man will reasonably, honestly and consciously entertained. The aforesaid view expressed by the Hon ble Supreme Court in the case of State of U.P. v. Gambhir Singh & ors. (AIR 2005 SC 2439) are the guiding principles in regard to appeal against acquittal. We are, therefore, required to see as to whether the present appeal against acquittal warrants any interference. 12. Having considered the rival contentions of the parties and upon perusal of the evidence of the prosecution witnesses, we are of the opinion that the findings arrived at by the learned Sessions Judge cannot be said to be perverse. Learned Sessions Judge has considered the materials available on record and has arrived at his opinion on due perusal thereof. We do not find any error in appreciation of evidence. All the findings are based on the materials available on record. Page 7 of 8

8 13. In view of what has been stated above, we do not feel that it is a fit case for setting aside the judgment of acquittal. The appeal stands dismissed. 14. Send down the lower court records. JUDGE CHIEF JUSTICE BiswaS Page 8 of 8