Kalu Barman and Others vs State of Assam

V.D. Gyani, A.C.J.

This appeal arises out of the judgment dated 27.2.88 passed by Sessions Judge, Nalbari in Sessions Case No. 39 (N)/86 thereby holding the Appellants guilty of offence punishable u/s 326/149 IPC and sentencing them to undergo rigorous imprisonment for 5 years with fine of Rs. 2,000/- each and in default of payment of fine to suffer 3 months R.I. The accused-Appellants were also charged under Sections 323/149 and 302/149 IPC, but they have been acquitted of these charges by the trial Court and no appeal against acaquittal by State of Assam has been preferred.

Aggrieved by the conviction and sentence as recorded by the trial court, the accused-Appellants have preferred this appeal. It is mainly assailed by the learned Counsel appearing for the Appellants, on the ground that the evidence adduced by the prosecution in support of the charge u/s 326/149 IPC is wholly untrustworthy and unreliable. The conviction as recorded by the trial court is, therefore, liable to be set aside.

Learned Public Prosecutor Mrs. Deka, on the other hand, maintains that the conviction as recorded by the Trial court is well supported by evidence and it does not call for any interference.

Before proceeding to deal with the rival submissions made at the bar and the evidence adduced by the prosecution, the basic facts need be noted.

On 3rd of January, 1980, the accused-Appellants having formed an unlawful assembly and armed with deadly weapons, such as, sticks, daos, axe, spear, etc. in furtherance of their common object, committed murder of one Dilip Hujuri and on the same day caused grievous hurt to one Jiten Kalita

Initially on the basis of report lodged by one Jogen Talukdar, a case u/s 148/149/302/326/325 IPC was registered at Police station Barama which was investigated by P.W. 9 the I.O. On completion of usual investigation which included visiting the spot, holding inquest, sending the dead body for post mortem examination and report, recording the statement and sending the injured for medical examination, the accused were charge sheeted and tried for the above offences. Their defence, as can be gathered from the statement recorded u/s 313 Code of Criminal Procedure and the trend of cross-examination was one of out right denial of the prosecution case and their false implication. The trial court, however, while exonerating the accused-Appellants of the charges u/s 302/149 IPC found them guilty of offence punishable u/s 326/149 IPC and sentenced them as already noted above. Hence this appeal.

Learned counsel appearing for the Appellants criticized the prosecution evidence attacking its credibility mainly on the ground that the prosecution witnesses have considerably improved upon their previous statements as recorded u/s 161 Code of Criminal Procedure, as proved by the I.O., P.W. 9. Taking the criticism to be correct on its face value, yet it does not help the Appellants in any manner. It is not the I.O. Whose statement is sought to be contradicted. The procedure laid down u/s 162 Code of Criminal Procedure read with Section 162 of the Evidence Act must be followed by any party who wants to avail of or make use of the previous statements made by a witness. Without following the procedure, simply asking the I.O. about the previous statement is nothing but a mere exercise in futility. It does not help either party and no court should permit such cross-examination of the I.O. unless the witness whose statement is sought to be contradicted has been confronted with the specific part of his or her statement and to which his or her pointed attention is invited before calling upon the witness to explain any contradiction obtaining in the previous statement A mere reading of the proviso to Sub-section (1) of Section 162 would make the position very clear. It is really a sorry state of affairs that the Supreme Court as back as in 1959 in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, having pointed out the manner in which the contradiction from previous statements and material omissions amounting to contradiction are to be proved and despite this Court having repeatedly hammered on the point, the procedure established by law is not followed. True it is that habit die hard. Even if all these contradictions as referred to P.W. 9, as already noted above, are taken on their face value, they do not in any manner affected the credibility or reliability of the witnesses since there was no attempt at all to confront the witness concerned with his previous statement Merely asking the I.O. about any such assumed contradiction is of no avail.

Learned counsel for the Appellants referring to the evidence of P.W. 1 submitted that the witness having ascertained and confirmed from the injured ones yet omitted to mention their names and such omission in the FIR, assumes importance. Strong reliance has been placed by the learned Counsel on the judgment of the Supreme Court in Juwarsingh and Others Vs. State of Madhya Pradesh, On a mere reading of the headnote, it would be seen that the case turns on its peculiar fact. No explanation was forthcoming from the witness for his omission to mention the other 7 accused in the FIR. A pointed query was made to the learned Counsel appearing for the Appellants, if P.W. 1 was specifically questioned about the alleged omission in the FIR and the learned Counsel was at pains to point out any such opportunity having been given to P.W. 1. to question the alleged omission. It is really regrettable that a criticism is being made with reference to an authority which is wholly turnable on record. The case relied upon turns on its own fact. Now, adverting to the evidence of P. W. 1 let us see where is he at fault At the very out set he has come out with a plain statement without missing words that he was acquainted with some of the accused by their names and some others whom he did not know by name. It is a plain statement of fact. Now, adverting to the FIR, Ext-I, having set out the names of 5 persons the FIR itself says that there were 40/50 other Bengali speaking people. Again adverting to the statement made by the witness, at the very out set he stated that he knew some of the accused persons by their names while he did not know the names of some others. If it was very objectionable to the defence, a question ought to have been put in cross-examination of this witness as to why he omitted to mention the names of these 40/50 people whom he described as 3engali speaking people. But that has not even been attempted to. Yet comes the criticism that the FIR suffers from vital omission and, therefore, the prosecution case is rendered unreliable. It is rather too uncharitable to the trial court in making such criticism. The witness has been subjected to a lengthy cross-examination running into 12 typed pages. He has been cross-examined by two learned counsel, one representing a group of accused while the other an individual accused. The cross-examination had to be adjourned and resumed from date to date lasting over three days. Going through the cross-examination part all that one finds is the distance of Indira Gandhi M.E. School from different points, the direction to Barikdanga from the school, the lanes and by-lanes and the topography of the area before reaching the police out post, the time it consumes from one end to another, the crucial question as regards omission of names of the accused in the FIR has not even been put to the witness and, yet the criticism. Learned counsel appearing for the Appellants also found fault with the line of reasoning adopted by trial Judge in recording conviction. If there is any effect in the line of reasoning of the learned trial judge, it is to the advantage of the accused-Appellants having categorically held that the homicidal death of Dilip Hujuri is proved by medical evidence, yet the trial court has acquitted the accused of the charges u/s 302/149 IPC while holding them guilty of the offence charged u/s 326/149 IPC. Committed in the same series of transaction, in the same place and hour. The hands of mis court are tigthened because of non-filing of appeal by the State. It is not only P.W. 1, just see the manner in which the evidence of P.W. 3 Jiten Kalita has been handled by the learned trial court

P.W. 3 Jiten Kalita say in his evidence that accused Narayan Chakraborty, Banamali Rudra, Ranjit Debnath and Hemanta Sarkar attacked Dilip Huzuri and him. He adds that the other accused present in the court were members of the group which mounted the assault He specifically says as follows in his examination-in-chief.

We fell down thereafter, the accused seized us by our legs and away were dragged away through the paddy field to a small pool. But it was dry. We were severely beated by the accused at that place. Accused Narayan Chakraborty struck on the head of Dilip Huzuri with an axe and as a result Dilip Huzuri fell down and instantaneously he died.

This is positive evidence, no doubt acceptability is another matter which will be discussed presently. He admits mat he did not refer in his statement to the investigating officer mat Dilip Huzuri and he were dragged by the accused seizing them by their legs.

Referring to Section 62 Code of Criminal Procedure the learned trial Judge came to the conclusion:

It is obvious that the omission in making reference in his statement to the investigating officer about dragging Dilip Huzuri and himself by the accused is a vital omission and amounts to contradiction which goes in favour of the accused.

Nothing can be more perverse than the findings recorded by the learned trial Judge. It is contrary to the provisions referred to. The evidence has been handled in most rude and crude manner, quite unbecoming of a Sessions Judge. As already discussed above, so called contradictions have not been proved at all.

It is a case where eye-witnesses and injured eye-witness like Jiten Kalita, P.W. 3 whose presence on the spot could not otherwise have been doubted. The learned Sessions Judge has referred to the principle governing substantial evidence and in that context relied upon a judgment of the Supreme Court as reported in AIR 1973 SC (Abdul Ghani v. State of U.P.) page not specified, it does not stand to reason how these principles governing substantial evidence are helpful when there is overwhelming eye-witness account corroborated by medical evidence available on record .P.W. 3 is the victim who has suffered the grievous hurt and he was the witness who had seen other accused assaulting Dilip Huzuri and, yet, he has been disbelieved simply because there are certain alleged contradictions or omissions in his previous statement The learned trial Judge has failed to see that a dishonest investigating officer by sheer ingenuity of recording statements may spoil a case and that is what appears to have been done in the present case. The role of an investigating officer has been dealt with by the Apex Court in State of Bihar and Another Vs. P.P. Sharma, IAS and Another,

The other eye-witness of the case is P.W. 6 Arjun Sen Deka. He has again been disbelieved for having denied the suggestion thrown to him in the cross-examination that Dilip Huzuri was dragged away after being attacked. This is unable way of discarding a witness. Without even insisting for the legal proof of alleged omission amounting to contradiction the witness is dicarded on mere suggestion by the defence. This is no way of appreciating the evidence and the trial Judge is palpably wrong in adopting such an approach in discarding the prosecution witness on a ground which is not only baseless and untenable in law, but also non-existent as such the perversity to appreciate evidence on the part of the trial Judge is writ large through out the judgment Following are the two pieces extracted therefrom.:

It is the claim of P.W. 6 that all his companion say the attack on Dilip Hujuri and P.W. 3 and P.W. 8 Dipak Tamuli was with him.

But P.W. 8 Dipak Tamuli says in examination in Chief that he could know about the death of Dilip Huzuri as a result of the attack by the accused subsequently. P.W. 8 does not claim himself as an eye-witness to the attack of Dilip Huzuri and P.W. 3 So, the testimony of P.W. 8 does not corroborate P.W. 6 though it appears that P.W. 6 claims that P.W.8 also saw the attack on Dilip Huzuri and P.W. 3.

P.W. 3 refers that Dilip Huzuri was hit by accused Narayan Chakraborty with an axe. But P.W. 6 says that the victim was attcked with sticks. The discrepancy about different weapons by these two witnesses casts grave doubts about their testimony which relates to attack on Dilip Huzuri by the accused.

This is all the important direct evidence adduced by prosecution to prove the homicidal death caused by accused. This evidence has been found to be inadequate, contradictory and discrepant in nature. But evidence can be direct or circumstantial-the factum probundum and factum probans. Direct testimony is the evidence of the witnesses who perceived it by himself. It is of positive character.

Except for using the oft-quoted expressions like "inadequate" "contradictory" and" Discrepant" there is hardly any attempt worth its name to appreciate the evidence before denouncing it as inadequate or contradictory. It does not stand to reason how P.W. 3 can be contradicted with reference to the statements made by P.W. 8. It was open to the learned trial Judge, after properly approaching and appreciating the evidence of these witnesses (P.Ws. 3, 6 and 8), to come to any conclusion, but without making any attempt whatsoever, simply denounced the evidence as in adequate, which can hardly be said to be appreciation of evidence. The impugned judgment, no doubt, suffers from infirmity as argued by the learned Counsel for the Appellants, but this infirmity tilts in favour of the accused. There is neither an appeal from the state for enhancement of the sentence, nor an appeal against acquittal and that is where the hands of this Court are tightened. The appeal fails. It is accordingly dismissed. The conviction and sentence as recorded by the trial Judge are maintained. Accused-Appellants are on bail, they shall surrender to their bail bonds to undergo the remaining part of their sentence.