Sudhir Kumar Nandi vs Dhiren Nandi and Others

Sadhan Kumar Gupta, J.—This revisional application has been preferred u/s 401 read with Section 482 of the CrPC against the judgment and order of acquittal dated 22/12/1998 passed by the ld. Additional Sessions Judge, 1st Court, Midnapore in Sessions Trial No. 42/November, 1996.

The circumstances leading to filing of the case is that on 16/4/1995 while one Rabindranath Giri was returning home at about 11.30 p. m. at that time he found one motorcycle outside the house of one Sristidhar Basuri. Some of the opposite parties were present there. At that time Rabindranath Giri heard the opposite party No. 1 disclosing that petitioner Sudhir Nandi should be taught a lesson otherwise the CPI (M) party could not be strengthened in the locality. Rabindranath thereafter reported the matter to the petitioner.

On 17/4/1995 at about 8 a.m. while the petitioner was attending his customers, he heard the shouting of slogan and a procession was coming towards his house. The processionists, consisted of 50/60 persons belonging to the CPI(M) party, shouted various slogans against the petitioner and the opposite party Nos. 1 to 27 were in the said procession. When the procession came near that house at that time the petitioner''s son Tushar Nandi, Tufan Nandi and Arun Nandi, nephew of the petitioner, protested regarding the shouting of slogans against the petitioner. In fact Tufan Nandi went to the road and asked the opposite party No. 1 as to why they were abusing his father. The opposite party Nos. 4 and 2 came running towards Tufan and the opposite party No. 1 fired from his pistol. The opposite party Nos. 2 and 4 then caught hold of Tufan Nandi and opposite parties pierced the belly of Tufan by thrusting an arrow and thereafter pulled it out. Due to this Tufan fell on the ground and shouted for help disclosing that opposite party Nos. 1, 2 and 4 assaulted him in that manner. When Tushar and Arun rushed forward to save Tufan, at that time Tushar was injured on his left leg by the opposite party No.2 and Arun was injured in his left arm by an arrow. The opposite party Nos. 12 and 15 assaulted Tushar with a lathi. Arun was assaulted by fists and blows by the opposite party No. 10.

Tushar Nandi and Arun Nandi managed to take Tufan inside the house of the petitioner where Tufan informed his mother that opposite party Nos. 1, 2 and 4 assaulted him. Ultimately Tufan was taken by a ''duli'' to the Gopiballavpur B.P.H.C. where he was declared brought dead.

Thereafter the petitioner submitted a written complaint and on the basis of the Gopiballavpur P.S. case No. 15/1995 dated 17/4/1995 was started against the opposite parties/ accused persons. After completion of the investigation chargesheet was submitted against all the respondents. During trial, charges under Sections 148, 302/ 149, 324 / 149, 323 / 149 and 307 / 149 CrPC were framed and same was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. The defence case, as it appears from the trend of cross-examination of the P.Ws. as well as from the statements made by the accused persons u/s 313 Cr. PC is that of denial. Although the defence has not disputed the incident but the accused persons clearly disputed the place and the manner by which the incident was allegedly caused.

In order to prove the charges against the accused persons prosecution in all examined 25 witnesses. Defence has not adduced any evidence. Ld. Trial Judge, after consideration of the entire materials, was of the opinion that there was room for doubt regarding the alleged involvement of the accused persons and as such, he gave the benefit of doubt to the accused persons and held them not guilty for the offences charged with and acquitted all of them. Although, State has not preferred any appeal against the said order of acquittal, but the petitioner being the de facto complainant, has filed this revisional application against the said order.

It appears from the judgment of the ld. Trial Judge that he gave the benefit of doubt in favour of the accused on the grounds that no blood was seen in the P.O., the duli and the blood-stained kantha by which Tufan was carried to the hospital were not seized by the Investigating Officer, non-finding by the I.O. of the remnant of any bomb or cracker at the P.O., the seizure of brickbat from the P.O. although there is no iota of evidence to show that brickbats were thrown by the accused persons at the time of the incident, the non-examination of the wife of the deceased by the I.O. and the suppression of the fact that another counter case was filed over the self-same incident. Due to all these reasons, ld. Judge was of the opinion that defence version, that the incident did not take place in the P.O., as claimed by the prosecution, has been established and there is room for doubt regarding the involvement of the accused persons and as such he was pleased to acquit all of them.

Said order of acquittal has been challenged by the petitioner/de facto complainant by preferring revisional application. According to the ld. Advocate for the petitioner, the reasonings, as given by the ld. Judge, in holding the accused persons not guilty for the offence charged with are absolutely improper and is the result of total non-appreciation of mind resulting in gross miscarriage of justice.

In order to substantiate his argument, ld. Advocate for the petitioner pointed out that the ld. Judge took exception regarding the fact that there was no mention in the FIR about the dying declaration that was allegedly made by Tufan before his mother and this vital omission has considerably diminished the reliability of the statement made in the FIR. This finding of the ld. Judge, according to the ld. Advocate for the petitioner, is thoroughly improper.

Secondly, Mr. Basu, ld. Advocate for the petitioner argued that the ld. Judge observed that there is doubt regarding the prosecution case because the wife of the deceased was not examined at all. This observation of the ld. Trial Judge, according to Mr. Basu, is absolutely perverse in nature because of the fact that there is no such law that in a criminal trial all the witnesses are to be examined in order to prove the charge against the accused persons.

Thirdly, Mr. Basu pointed out that the ld. Trial Judge disbelieved the prosecution case also on the ground that the brickbats were seized from the P.O. although there is nothing on record to show that accused persons used the said weapon while committing the offence in question. According to the ld. Advocate for the petitioner this alleged discrepancy, as mentioned by the ld. Trial Judge cannot be of much importance in comparison to the overwhelming evidence that has been led on behalf of the prosecution against the accused persons in connection with this case.

Fourthly, Mr. Basu further pointed out that the observation of the ld. Judge that no blood was found in the place of occurrence and as such there was doubt in respect of the actual place where the incident took place, is nothing but perversity. In coming to such a conclusion, Mr. Basu argued that the ld. Trial Judge overlooked the overwhelming direct evidence that is there, so far as the present case is concerned.

Fifthly, Mr. Basu further argued that the ld. Judge observed that there was discrepancy in between the ocular and medical testimony with regard to the bleeding from the injury of the deceased Tufan Nandi. According to Mr. Basu, the ld. Judge failed to appreciate the evidence of the doctor who conducted the post-mortem examination in this respect and arrived at a conclusion which is nothing but misappreciation of the evidence that is available in the record.

Furthermore, ld. Advocate for the petitioner pointed out that the ld. Judge also disbelieved the prosecution case as because the duli and kantha by which Tufan was carried to the hospital and which were blood-stained, were not seized by the I.O. and as such, this fact also formed the basis of the opinion of the Id. Trial Judge that there was room for doubt regarding the genuineness of the prosecution case. Mr. Basu argued that this observation of the ld. Trial Judge appears to be absolutely improper, if not illegal and it has certainly caused miscarriage of justice.

Lastly, it has been contended by Mr. Basu that the ld. Judge also disbelieved the prosecution case because of the fact that there was no mentioning about the counter case which was filed by the accused persons over the selfsame incident. According to the ld. Advocate for the petitioner this finding of the ld. Trial Judge clearly manifests that he was oblivient to the actual incident and preferred to ignore the overwhelming evidence by pointing out a defect in the prosecution case, which in fact was not at all in existence.

Due to all these reasons ld. Advocate for the petitioner argued that since the judgment, as passed by the ld. Trial Judge suffers from non-appreciation of the material evidence in its proper perspective and since the finding of the ld. Trial Judge regarding the alleged non-fixing of the place of occurrence is nothing but an example of perversity, so there cannot be any doubt that the judgment, as passed by the ld. Trial Judge has certainly caused failure of justice and as such it is a. fit case for remanding the matter to the Court below for fresh trial.

On the other hand, ld. Advocate for the opposite parties/accused persons argued that the findings of the ld. Trial Judge are the result of proper appreciation of the evidence and it cannot be said that the judgment, so passed by the ld. Trial Judge suffers from perversity resulting in miscarriage of justice. According to the ld. Advocate for the opposite parties/accused persons, there is very little scope for the Revisional Court to interfere with the findings of the ld. Trial Judge since it appears that the judgment, as passed by the ld. Trial Judge, is the result of proper appreciation of evidence. According to him, it is not permissible for the Revisional Court to interfere with the findings of acquittal, as passed by the Court below as because said judgment was passed after proper appreciation of evidence and in accordance with law. In this respect he has relied upon the decisions reported in Mamfru Chowdhury and Others Vs. King-Emperor, Logendra Nath Jha and Others Vs. Shri Polailal Biswas, D. Stephens Vs. Nosibolla, and 2002 SCC (Cri) 1181 (Jagannath Chowdhury and Ors. v. Ramayan Singh and Anr.).

In fact at the time of argument, ld. Advocate for the opposite parties/accused persons heavily relied upon the decision reported in D. Stephens Vs. Nosibolla, wherein the scope for High Court to interfere in revision against an order of acquittal has been discussed. In the said decision Hon''ble Supreme Court observed:

The revisional jurisdiction conferred on the High Court u/s 439 is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal u/s 417. It could be exercised only in exceptional cases where the interest of public justice required interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the Lower Court has taken a wrong view of the law or mis-appreciated the evidence on record.

So it appears that the position has been made very clear by the Hon''ble Supreme Court. Normally against an order of acquittal, revision filed by the private complainant should not be entertained when State has not preferred any appeal. But at the same time the Hon''ble Supreme Court clearly observed that this jurisdiction can be invoked for the correction of manifest illegality or for the prevention of a gross miscarriage of justice.

Ld. Advocate for the petitioner argued that the view as taken by the Hon''ble Supreme Court in this respect still holds good and in the subsequent decisions also there is no change in respect of the ratio, as decided by the Hon''ble Supreme Court in this case. However, in addition to the said decision the ld. Advocate for the petitioner cited the decisions reported in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, on this point.

It appears that in those decisions the Hon''ble Supreme Court discussed the scope for the Revisional Court to interfere in exercise of its revisional jurisdiction on the basis of a petition filed by the de facto complainant. In the decision reported in 1982 SCC 471 (supra) the Hon''ble Supreme Court clearly observed that in case the order of acquittal appears to be the result of non-application of mind, non-consideration or improper consideration of material evidence, inconsistencies, faulty reasoning and lack of judicial approach on the part of the Court below resulting in grave miscarriage of justice then it will be always open for the High Court to interfere into the order of acquittal and to direct re-trial of the case.

So from all those decisions, as cited by the ld. Advocates for both the sides it is very much clear that in case there are glairing instances of non-appreciation of mind, faulty reasoning and lack of judicial approach on the part of the Court below which resulted in the grave miscarriage of justice then and then only the High Court can interfere in respect of an order of acquittal passed by the Court below. Keeping this legal position in mind, let us now consider as to whether it is a fit case calling for the interference of this Court against the order of acquittal passed by the ld. Trial Judge.

I have already pointed out that it is the case of the prosecution that on the date of incident a procession comprising of about 50/60 persons of a political party came near the house of the de facto complainant raising slogans against him. In order to establish this fact the prosecution has adduced sufficient evidence and in fact it appears to me that there is no dispute in this respect. It is the further case of the prosecution that when the said procession came near the house of the de facto complainant then his son Tufan along with two others came out of their house and protested against the raising of slogans making allegations against the de facto complainant. In order to establish this fact, it appears from the judgment that sufficient evidence has been adduced. It is also the case of the prosecution that when Tufan protested then one of the accused/ opposite parties, being the uncle of Tufan assaulted him with an arrow pierced the belly of Tufan and thereafter this opposite party along with others took out the said arrow causing serious injury on the person of Tufan. Evidence has also been adduced on behalf of the prosecution to show that other two persons were also injured by the members of that unlawful assembly. Prosecution has further adduced the evidence to the effect that Tufan was carried to his house which is just in front of the place of occurrence and thereafter he was taken to the hospital where he expired. It is the prosecution case that while Tufan was brought to the house/room of the complainant, then he allegedly reported his mother about the names of the persons who actually caused the injury. It may be pointed out here that regarding this alleged statement, made by Tufan, his mother has come forward to depose in favour of the prosecution.

I have already pointed out that there are eye-witnesses who. clearly and categorically stated about the alleged involvement of the accused persons and the commission of the offence. The mother of the victim also stated in her evidence without any hesitation about the names of the culprits who caused the injury to her son. Of course she has claimed that she heard this from Tufan when he was alive.

But it appears from the judgment of the ld. Trial Judge that in fact he did not consider the evidence of the eye-witnesses as well as the mother of the victim in its proper perspective. Instead of discussing the evidence of those persons regarding their acceptability, ld. Judge proceeded with an approach to find fault in the prosecution case regarding the fixing of the place of occurrence. The approach of the ld. Judge appears to be absolutely improper and there is reason to believe that the ld. Judge was determined not to consider the evidence of the eye-witnesses and instead of that the ld. Judge was bent upon to find fault in the prosecution case regarding the fixing of the place of occurrence. Undoubtedly the place of occurrence is an important fact which the prosecution must prove. But so far as the present case is concerned, it appears that the material witnesses clearly described that the place of occurrence was in front of the house of the de facto complainant. But the ld. Judge preferred to disbelieve this claim of the witnesses on the ground that no blood was found by the I.O. in the alleged place of occurrence and that no brickbat could be recovered by the I.O. from the place of occurrence although the witnesses stated about the same in their depositions. Simply because the I.O. did not find any sign of blood in the place of occurrence or that the I.O. could not seize any brickbat from the said place that does not mean that the overwhelming evidence of the eyewitnesses should be disbelieved due to the alleged lapse on the part of the Investigating Officer. If it is allowed to be permitted, then it will give rise to a dangerous situation when a prosecution case will solely depend at the whims of the I.O. In my considered opinion the ld. Trial Judge was not at all justified in not considering the evidence of the eye-witnesses and in disbelieving their statements regarding the place of occurrence on the ground of the laches on the part of the Investigating Officer. The approach of the ld. Judge in this respect, cannot but be said to be perverse in nature and I have got no hesitation to hold that the same has caused miscarriage of justice.

It further appears that the ld. Judge observed that there is room for doubt regarding the claim of the prosecution that the alleged incident took place in front of the house of the de facto complainant. According to the Id. Trial Judge since there was a counter case filed by some of the accused persons over the alleged incident and since it was allegedly stated therein that the incident took place elsewhere, so the prosecution claim in respect of the place of occurrence must be disbelieved. The reasoning, as given by the ld. Trial Judge in this respect appears to be peculiar in nature and I have got no hesitation to hold that this finding of the ld. Trial Judge is nothing but unfair and is the result of non-application of mind. Even if for argument sake we accept that a counter case was filed by the accused persons, then also it cannot be said that non-mentioning of this counter case by the investigating agency in the case diary should be a ground for disbelieving the prosecution case so far as present case is concerned. Possibly by pointing to the counter case, the ld. Trial Judge was of the opinion that the incident did not take place in the manner, as claimed by the prosecution and that there was fighting in between the two parties resulting in the death of Tufan Nandi. But it may be pointed out that the accused persons did not adduce any evidence in support of their claim. It is the admitted position that the accused persons by filing this counter case have practically admitted that there was an incident involving the parties. Whether in that incident, actually the accused persons were assaulted and injured and as a result of that there was a fight in between the parties resulting in the death of Tufan, is to be proved by adducing evidence. Onus lies on the accused persons in this respect to establish this fact. But it appears that the accused persons did not adduce any evidence to discharge this onus. I fail to understand as to how the ld. Judge could give so much importance about the filing of the counter case in disbelieving the prosecution claim, so far as present case is concerned. This approach of the ld. Judge certainly is improper and illegal and I have got no hesitation to hold that it has certainly caused miscarriage of justice.

Ld. Trial Judge further that the doctor has said that there was possibility of blood coming out from the injury of Tufan, when he was carried to the hospital and as such the duli and kantha by which Tufan was carried to the hospital must have been besmeared with blood and those two things would have been the best evidence for proving the prosecution case. But it appears from the evidence that there is doubt regarding the claim as to whether blood came out from the injury of Tufan or not. In this respect there are clear dispute in respect of the ocular version with that of the medical evidence. Ld. Judge did not consider this aspect as to on which version the Court should place its reliance. While accepting the opinion of the doctor, ld. Judge disbelieved the evidence of the eye-witnesses in this respect without assigning any reason whatsoever. Even if for argument sake we consider that blood came from the injury of Tufan and fell on the duli and the kantha then also such non-seizure of those things cannot be of such importance, so that the entire prosecution case should be disbelieved without appreciating the evidence of the eye-witnesses. It is the settled principle of law that due to the laches on the part of the I.O. prosecution case should not suffer and only because of this laches on the part of the I.O. the prosecution case should not be disbelieved if there are other convincing materials to come to a conclusion in support of the prosecution case. This approach of the ld. Judge also, in my considered opinion, has caused failure of justice.

Ld. Trial Judge, it appears from its judgment, also was pleased to disbelieve the prosecution case on the ground of non-examination of the wife of the deceased. The approach of the ld. Trial Judge in this respect appears to be something peculiar in nature. No where it has been stated that the wife of the deceased witnessed the incident. If she is not an eye-witness, then the prosecution is not at all duty bound to examine this lady although she is the wife of the deceased. It is the settled principle that in a criminal trial quantity of the witness does not matter. Court should consider the quality of the witness. So far as the present case is concerned, it cannot be said that the wife of the deceased Tufan is a material witness for the purpose of this case and the prosecution is guilty of withholding such witness. The approach of the ld. Judge cannot be supported at all and I have got no hesitation to hold that this misconception of the ld. Judge has also caused failure of justice.

Lastly, it appears that the ld. Judge disbelieved the claim of the mother of the deceased that Tufan before his death informed her about the names of the actual culprits. In disbelieving this claim of the mother of the deceased, Id. Trial Judge was of the opinion that this important fact did not find place in the FIR. But it is the settled principle that all the facts, connecting with the actual incident, need not be stated in the FIR in detail. Only the relevant facts are to be mentioned. We must not forget the actual scenario when the incident took place. Grave situation was prevailing there and everybody was busy in attending the injured persons including Tufan. During such a situation the de facto complainant lodged the FIR narrating the incident as far as practicable. It is needless to mention that it is not necessary that the minute details of the incident including the alleged statement made by Tufan before his mother must be stated in the FIR. Law in this respect is well settled that all these things need not be mentioned in the FIR. Of course, it is always open for the ld. Trial Judge to consider whether the statement made by the mother of the deceased in this respect, can be accepted or not. That is a different proposition. But simply because this alleged statement of the deceased before his mother did not find place in the FIR that cannot be a ground for disbelieving the entire prosecution case without discussing the statements, as made by the eye-witnesses, so far as this case is concerned. There cannot be any doubt that the ld. Judge is duty bound to discuss the statements made by the eye-witnesses and to consider whether those statements are believable or not. But I have got no hesitation to say that instead of doing that, the ld. Judge searched out the defects in the prosecution case in fixing the place of occurrence or in not examining the wife of the deceased as a witness, to mention a few. Undoubtedly, the approach and the manner of consideration of the evidence, as done by the ld. Trial Judge, appears to be absolutely unsatisfactory and improper and I have got no hesitation to hold that the Id. Trial Judge failed to consider the statements of the eyewitnesses properly and as such it must be held that it is a case of non-appreciation of material evidence resulting in the failure of justice.

Therefore, from my above discussion, I am of opinion that so far as the present case is concerned, there cannot be any doubt that it is a case of non-application of mind on the part of the Court below. He has ignored the probative value of the FIR and the individual testimony of the eye-witnesses has not been discussed and the testimony in respect of actual incident has been totally ignored. Due to all these things it necessarily follows that the Id. Trial Judge did not consider the material evidence at all and those have been overlooked. The entire judgment of the ld. Trial Judge is full of inconsistencies and the same consists of faulty reasoning and lack of judicial approach. Accepted cannons for appreciating the evidence have been thrown to the wind. The conclusions, as arrived at by the ld. Trial Judge, are without proper consideration of the statements, as made by the vital witnesses in connection with the case.

Under such circumstances, I have got no hesitation to say that the view expressed by the Court below has resulted in grave miscarriage of justice, so far as the present case is concerned and I think that under such exceptional circumstances there should be an order of re-trial of the accused persons before the Court below.

In the result, the revisional application succeeds on contest. The order of acquittal passed by the ld. Additional Sessions Judge, 1st Court, Midnapore in Sessions Trial No. 42/November/l996 is set aside. The matter is sent back on remand to the ld. Court below for re-trial of the accused persons. It is made very clear that while proceeding with the re-trial of the accused persons, the Id. Judge should proceed independently without being influenced, in any manner, by the observations that have been made by this Court in connection with this revisional application and he is to pass the judgment after considering the entire evidence on record properly and in accordance with law.

Send a copy of this judgment along with LCR to the Court below at once far information and for taking necessary action. Xerox certified copy, if applied for, be handed over to the parties on urgent basis.