High Court
Case Details
Crl.A. 83/2008 BEFORE HON’BLE MR.JUSTICE A.K.GOEL, CHIEF JUSTICE AND HON’BLE MR. JUSTICE B.D.AGARWAL ( BD Agarwal,J) This appeal is at the instance of the State challenging the judgment dated 17.5. 2007 passed by the learned Sessions Judge, Darrang , Mangaldoi in Sessions Case No.176 (DM) of 2005, whereby the respondent Nos. 2, 3, 4 and 5 have been acquit ted from the offence under Section 302 read with section 34 of the IPC. Though t he respondent No.1 was convicted u/s 304 PT-II IPC he was released on probation of good conduct and also imposing fine of Rs.21,000/- (Twenty one Thousand). How ever, in the memo of appeal the State appellant has not made any specific prayer to enhance the sentence of the respondent No.1.
Legal Reasoning
2. We have Mr. D Das, learned Additional Public Prosecutor for the State an d Mr. BM Choudhury for the respondents. Also gone through the impugned judgment and the evidence of the prosecution, tendered in the trial court. 3. The prosecution story in brief is that a group of young boys had arrange d a feast in the night of 13.1.2005 on the occasion of Bihu festival. At that ti me the deceased had noticed the co-accused Abhijit stealing a carom-board from a nearby house and burning the same and, as such, the deceased scolded the co-acc used Abhijit. Noticing this accused Dipankdar Shaha @ Bura (respondent No.1) rus hed near him and retaliated with a branch of tree. In other words respondent No. 1 assaulted the deceased with a branch of tree causing injuries in the nature of swelling , laceration, bruises and fracture on the left bone and also fracture of ribs. As a result of the injuries the victim died on the next day. Subsequent ly, the FIR was lodged on 14.1.2005 and on the basis of this FIR charge sheet wa s submitted and all five respondents were tried for the offence of murder with c ommon intention. As noted earlier only respondent No.1 was convicted u/s 304 PT- II IPC and the rest of the accused persons were acquitted. 4. The learned Addl.P.P. submitted that the learned Sessions Judge did not give due weightage to the fact that all the accused persons were named in the FI R and also superficially rejected the testimony of the PW-1, who had seen the ma rpit. The learned Addl.P.P. also submitted that the evidence of PW-4 and PW-10 h ave also been discarded without assigning cogent reasons. It may be mentioned he re that these two witnesses have spoken about dying declaration of the deceased. 5. PW-1 is the brother of the deceased. He has deposed that hearing a comm otion he rushed to the place of occurrence and saw the accused persons assaultin g his brother. However, the other eye-witnesses have not corroborated the fact t hat PW-1 was present at the place of occurrence when the incident had actually t aken place. Hence, the trial court has rightly discarded the evidence of PW 1 as an eye witness. 6. PW-2 is the son of the deceased. He is also claiming to be eye-witness t o the incident. However, his testimony has been rightly rejected by the trial co urt on the ground that he could not have reached the scene immediately since he was sleeping at home. In fact PW-2 has also admitted even in the chief-examinati on that before his going to the place of occurrence his son Sanjay Mandal went a head of him. Sanjay Mandal is PW-1. Since the eye-witnesses have not supported t he claim of PW-2 being an eye witness to the incident we also cannot give undue weightage to the testimony of PW-2, who came to the place of occurrence lately. PWs- 3 and 6 are the eye-witnesses of the incident. These two witnesses 7. have deposed that initially an altercation had taken place in between the deceas ed and the co-accused Abhijit. Thereafter the deceased struck a lathi blow upon Abhijit and then the accused Dipankar intervened and dealt a lathi blow upon the deceased. In this way PWs-3 and 6 have implicated only respondent No.1 in assau lting the deceased . They are totally silent regarding any overt act of the rem aining accused persons. 8. PW-4 has also deposed that he when was sleeping at home PW-1 came to his residence and informed that his brother was being assaulted by some miscreants. Thereafter, PW-4 visited the place of occurrence and on being enquired the dece ased told him that the accused persons had injured him. As per the dying declara tion only respondent No.1 had taken an active role in assaulting the deceased. S imilar is the testimony of PW-10, who is the wife of the deceased. She has also given a causal testimony that on being enquired her husband told her that all th e accused persons had assaulted him. However, testimony of PW-10 is not corrobor ated by PW-4, who was also given alleged dying declaration by deceased, but the testimonies are different in factual narration. Even otherwise the I.O. had seiz ed only one 2 ‰ fresh branch of a tree. Had there been recovery of more weapons a view could have been taken that all the accused persons have taken part in th e marpit. Evidence of other witnesses are not of much relevance. 9. In the case of Kalu -vs- State of Madhya Pradesh: (2006 CrLJ 799), their Lordships have laid down the following guidelines for reviewing the judgment of acquittal : From the above decision, in our considered view, the following general (cid:28)30. principles regarding powers of appellate Court while dealing with an appeal agai nst an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or c ondition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on question of fact and of law; (3) Various expressions, such as, ’substantial and compelling rea sons’, ’good and sufficient grounds’, ’very strong circumstances’, ’distorted co nclusions’, ’glaring mistakes’, etc. are not intended to curtail extensive power s of an appellate Court in an appeal against acquittal. Such phraseologies are m ore in the nature of ’flourishes of language’ to emphasize the reluctance of an appellate Court in interfere with acquittal than to curtail the power of the Cou rt to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case o f acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of cri minal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secu red his acquittal, the presumption of his innocence is further reinforced, reaff irmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence o n record, the appellate court should not disturb the finding of acquittal record ed by the trial court. (cid:29) In view of established principles of law we hold that the State has fail 10. ed to make out a strong case to convert the findings of the learned Sessions Jud ge, acquitting respondent Nos. 2, 3, 4 and 5, to that of conviction . 11.
Decision
For the foregoing reasons the appeal stands dismissed.