High Court
Case Details
Crl.A. 218/2007 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI This is an appeal against the judgment and order, dated 25.07.2007, pass ed, in Sessions Case No. 17 (M) of 2006, by the learned Additional Sessions Judg e No. (ii) (FTC), Tinsukia, convicting the accused-appellants under Section 147 and also under Sections 323 and 446 read with Section 149 IPC and sentencing eac h one of them to pay, for their conviction under Section 147 IPC, a fine of Rs.5 00/- and, in default of payment of fine, suffer rigorous imprisonment for 1 (one ) month and to suffer, for their conviction under Section 436 read with Section 149 IPC, rigorous imprisonment for a period of 3 (three) years and pay fine of R s.1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of 3 (three) months and to further pay, for conviction under Sec tion 323 IPC read with Section 149 IPC, a fine of Rs.500/- each and, in default of payment of fine, suffer rigorous imprisonment for a period of 1 (one) month, all the sentences having been directed to run concurrently with further directio n that on the realization of fine, the amount of fine shall be paid to the victi m. 2.
Legal Reasoning
The case of the prosecution may, in brief, be described as under: On 01.01.2005, at about 6 P.M., while the informant, Smt. Phulu Marar, w as absent from her house, accused Barun Bora, along with all other accused perso ns (who are appellants in the present appeal), entered into her house and assaul ted her son, Suresh Marar, by hand and lathi causing injuries on his person. The accused Barun Bora also gave a blow with a dao on Suresh causing injury on left side of his cheek. On hue and cry being raised, people from neighborhood, inclu ding Paresh Choudhury, came to the place of occurrence; but Paresh Choudhury, to o, was assaulted by the accused causing injuries on his person and the accused, then, set fire to the said house of the informant; as a result thereof, the dwel ling house of the informant got burnt down. On 01.01.2005 itself, the Officer-in -Charge, Margherita Police Station, was informed, at about 9.30 P.M., about the occurrence. Based on the information, so received, General Diary (in short, ’GD’ ) Entry No. 12, dated 01.01.2005, was made. On the following day, i.e., on 02.01 .2005, at about 4.30 P.M., a written Ejahar was received from the informant, Phu lu Marar, about the occurrence and treating the said Ejahar as First Information Report (in short, ’FIR’), Margherita Police Station Case No. 1 of 2005, under S ections 143/448/325/324/436 IPC, was formally registered against the present acc used-appellants. 3. During the course of investigation, police visited the place of occurren ce and seized half-burnt articles from the site of the occurrence. On completion of investigation, a charge-sheet was laid against the accused-appellants, under Sections 143/448/323/436 IPC, showing accused Haren Bora, Moni Bora and Lakhyaj it Bora Wakhet as absconders. 4. At the trial, when charges, under Section 147 and also under Sections 32 3 and 436 read with Section 149 IPC, were framed, all the accused pleaded not gu ilty thereto. 5. In support of their case, prosecution examined altogether 15 (fifteen) w itnesses. The accused were, then, examined under Section 313 Cr.PC and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. The defence also adduced evidence by examining 2 (two) witnesse s. Having, however, found all the accused guilty of the offences, which the 6. y stood charged with, the learned trial Court convicted them accordingly and pas sed sentences against them as mentioned above. Aggrieved by their conviction an
Legal Reasoning
I have heard Mr. G. P. Bhowmik, learned counsel for the appellants. I h It cannot, therefore, be said that it is not discernable from the eviden d the sentences, which have been passed against them, the accused, as convicted persons, have preferred this appeal. 7. ave also heard Mr. K. A. Mazumdar, learned Addl. Public Prosecutor, Assam. 8. It has been contended, on behalf of the accused-appellants, that though the lead role, in the occurrence, was allegedly played by accused Barun Bora, ye t it is not clear from the evidence as to who accused Barun was. While consideri ng submission so made, on behalf of the accused-appellant, Barun Bora, what need s to be noted is that in the charge-sheet, accused Barun Bora has been clearly d escribed as Chandra Kanta Bora alias Barun Bora. This apart, while framing the c harges, accused Chandra Kanta Bora was described as Chandra Kanta Bora alias Bar un Bora and to the charges, so framed, accused Chandra Kanta Bora alias Barun Bo ra pleaded not guilty. 9. ce as to who accused Barun Bora was. 10. Though the findings of guilt, which the learned trial Court has reached, have been assailed on several other grounds, what attracts the attention, most prominently, is that the occurrence had, allegedly, taken place on 01.01.2005, a t about 6 P.M., but the written Ejahar, which has been treated as FIR of the cas e, was lodged, on 02.02.2005, at about 4.30 P.M. When called as a witness for defence, the Officer-in-Charge, Margherita 11. Police Station (DW1), has conceded that he was informed about the occurrence, on 01.01.2005 itself, at 9.30 P.M. and, in this regard, GD Entry No. 12, dated 01. 01.2005, was made. Sadly enough, the learned trial Court does not appear to have been alive to the evidence, which had so surfaced on the record. When the occur rence had been reported to the police on the night of the occurrence itself, it was incumbent, on the part of the learned trial Court, to find out from the Offi cer-in-Charge, Margherita Police Station (DW1), as to what information had been given to the police at the earliest point of time and whether any name of the cu lprit had been disclosed and, if so, whose name or names had been disclosed. 11. Coupled with the above, it was also imperative, on the part of the learn ed trial Court, to find out if the name of any of the present accused-appellants had figured as accused on the night of the occurrence itself and if not, then, what the explanation was and how far such explanation was plausible and convinci ng. This Court, while exercising the appellate jurisdiction, finds that legally sustainable approach, as indicated hereinbefore, has not been adopted by the lea rned trial Court. 12. We must bear in mind that a trial judge is not merely a recording machin e of evidence. A trial judge is not a mere umpire. He must participate in the tr ial and he must remain alive to the developments, which take place at a trial. T he duty of the trial Judge is neither to convict the accused nor to acquit him; his mission shall be to reach, and should always remain to reach the truth and, for that purpose, it must examine such witness(es), whose evidence is necessary for just decision of the case and with this object in view, or, in other words, in order to reach the truth, he must illicit all such evidence as may be relevan t and necessary without, however, doing anything, which may impair, or seen to h ave impaired, his impartiality; or else, Section 311 Cr.PC would become redundan t and Section 165 of the Evidence Act would be set at naught. A trial Judge shal l not allow himself to be led by such evidence, which is either not complete or not intelligible. 13. In the case at hand, the learned trial Court committed serious error in not bringing, on record, the contents of the GD Entry No. 12, dated 01.01.2005, and, then, deciding the case in accordance with law. Because of the lapses with which the trial of the accused-appellants suf 14. fered from, I am of the considered view that the case needs to be remanded back to the learned trial Court so that complete evidence becomes available on record for the purpose of determining the guilt or otherwise of the accused-appellants . 15. Because of what have been discussed and pointed out above, this appeal p artly succeeds. The conviction of the accused-appellants and the sentences, whic h have been passed against them, are hereby set aside and the case is remanded t o the learned trial Court for re-calling DW1 or if he is no longer alive, then, to call the present Officer-in-Charge, Margherita Police Station, along with GD Entry No. 12, dated 01.01.2005, and, upon bringing on the record contents of the said GD Entry, dispose of the case in accordance with law. 16. All the accused-appellants are hereby directed to appear in the Court of learned Sessions Judge, Tinsukia, on 12.03.2013, whereupon the learned Sessions Judge shall deal with the case in terms of the observations made, and direction s given, above. 17. Before parting with this appeal, this Court makes clear that it has not consciously entered into the discussion of the veracity or otherwise of the evid ence, which stands adduced by prosecution as well as by defence, so that the lea rned trial Court remains free and unfettered to come to its own logical conclusi on as regards guilt or otherwise of the accused-appellants. 18. 19. of. Send back the LCR. With the above observations and directions, this appeal stands disposed