High Court
Case Details
Crl.A. 19/2010 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE MR. JUSTICE P.K. MUSAHARY JUDGMENT AND ORDER { IA Ansari, J } By the judgment and order, dated 30-12-2009, passed, in Sessions Case No. 130 (K ) of 2008, by the learned Additional Sessions Judge (FTC) No. 2, Kamrup, Guwahat i, the five accused-appellants, namely, Md. Chand Muhammad, Md. Safikul Ali, Md. Basarat Ali, Mustt. Safia Khatun and Md. Rafikul Ali, have been convicted under Section 302 read with Section 149 IPC and each one of them has been sentenced t o suffer imprisonment for life and pay fine of Rs.1,000/- each and, in default o f payment of fine, suffer rigorous imprisonment for a period of two months. Aggr ieved by their conviction and the sentence, which has been passed against them, the five accused, as convicted persons, have preferred this appeal. 2. set out as under: The case of the prosecution as unfolded at the trial, may, in brief, be
Legal Reasoning
On 03-11-2006, at about 6.30 a.m., when Ukil Ali, was proceeding towards a nearby shop for purchasing biscuits, the present five appellants, namely, Md. Chand Muhammad, Md. Safikul Ali, Md. Basarat Ali, Mustt. Safia Khatun and Md. R afikul Ali, came in a group, armed with various weapons and assaulted him. Ukil Ali fell down and became unconscious. On hearing hue and cry raised at the place of occurrence, Jakir Hussain (PW1), son of Ukil Ali, and others rushed to the p lace of occurrence and found all the five appellants present there with various weapons in their hands. In the presence of the persons, who had to come to the p lace of occurrence, the appellants further assaulted Ukil Ali. As Ukil Ali was s eriously injured, he was carried to Jalukbari Police Station. On the basis of th e oral information received from Jakir Hussain (PW1), GD Entry No. 94, dated 03- 11-2006, was made and the injured was sent to MMC Hospital, Guwahati. On the ver y day of the occurrence, i.e., on 03-11-2006, at about 9.00 p.m., an Ejahar, in writing, was lodged by PW1 at the said police station and treating the same as F irst Information Report (in short, ’FIR’), Jalukbari Police Station Case No. 529 /2006, under Sections 147/148/149/326 IPC, was registered. Before even the said Ejahar (Ext.1) was lodged at the said police station and treated as the FIR, the Investigating Officer (PW11), who is hereinafter referred to as the ˝/O’, visit ed the place of occurrence. The I/O also examined one witness and seized one spa de with bamboo handle. Later on, the injured was shifted to Guwahati Medical Col lege and Hospital, where he succumbed to his injuries on 10-11-2006. When Ukil A li died, Section 302 IPC was added to the said police case. The I/O held inquest over Ukil Ali’s dead body and prepared inquest report. During investigation, th e I/O also seized the wearing apparels of the deceased. Upon completion of inves tigation, police laid charge-sheet, under Sections 147/148/149/326/302 IPC, agai nst all the present five accused-appellants. 3. At the trial, when a charge, under Section 302 read with Section 149 IPC , was framed against the accused-appellants, all of them pleaded not guilty ther eto. 4. In support of their case, prosecution examined altogether 11 (eleven) wi tnesses. The accused-appellants were, then, examined under Section 313 Cr.P.C. a nd, in their examinations aforementioned, they denied that they had committed th e offence, which was alleged to have been committed by them, the case of the def ence being that of denial and of their having been falsely implicated in the cas e aforementioned. In support of their case, the defence, too, adduced evidence b y examining two witnesses, their case being that no one had seen the assailants. 5. Having, however, found all the five accused-appellants guilty of the off ence, which they stood charged with, the learned trial Court convicted them acco rdingly and passed sentence against them as mentioned above. Aggrieved by their conviction and the sentence, this appeal has been preferred by the convicted per sons. 6.
Legal Reasoning
We have heard Ms. SK Nargis, learned counsel, appearing on behalf of the accused-appellants, and Mr. Z Kamar, learned Public Prosecutor, Assam. 7. While considering the present appeal, it needs to be borne in mind that deceased Ukil had sustained altogether three injuries on his left side and all t hese injuries were stitched. 8. In the case at hand, though as many as five persons had been named and s tand convicted, what is imperative to note is that the Ejahar (Ext.1) has been t reated as the FIR of this case. However, it transpires from the charge-sheet (Ex t.5) that the charge sheet contained a copy of the GD Entry No. 94, dated 03-11- 2006. This entry was, admittedly, made by the police, when Ukil Ali was brought to police station in seriously injured condition by PW1, who has been treated as the informant of this case. The contents of the said GD Entry have not been pro ved. The questions are: what information had been given to the police station, w hen the said injured was taken to the police station, and whether the names of a ll the accused-appellants were revealed to the police, as the persons, who had a ssaulted Ukil Ali, or some of them were named or none of them was named as assai lant or assailants. 9. Notwithstanding the fact that the I/O (PW1) had claimed that he had star ted investigation on 04-11-2006 (i.e., the date on which the Ejahar (Ext.1) was lodged and was treated as the FIR. He conceded, during cross-examination, that h e had actually started the investigation on the very night of 03-11-2006. 10. Clearly, therefore, the Ejahar (Ext.1) could not have been treated as th e FIR of the case. The FIR was the oral information, which had been given to the police at the said police station, when the said injured was carried there and which set the law into motion leading to the commencement of the investigation. The contents of Ext.2 can, therefore, be regarded, at best, as a statement made, in writing, to the I/O, during the course of investigation, by PW1. 11. Strangely enough, however, the prosecution did not produce and prove, at the trial, GD Entry No. 94, dated 03-11-2006. This was, undoubtedly, a serious lapse on the part of the prosecution. However, even the learned trial Judge cann ot be absolved of the responsibility, which he had inasmuch as Section 165 of th e Evidence Act read with Section 311 Cr.P.C. empowered him not only to secure th e presence of witnesses and obtain, on record, any documentary evidence, but als o put to any witness any question, which was necessary for a just decision of th e case. The learned trial Court remained, as the evidence on record discloses, a mere spectator and did not participate in the trial in the manner as he was exp ected. The resultant effect was that the oral information, which had set the pol ice machinery into motion and commenced investigation into the question as to ho w Ukil Ali had sustained injuries, was not brought on record, though this was th e most important piece of evidence inasmuch as it was the information, first, in point of time, and PW1, who claims to be an eye witness of the occurrence and w ho is the son of the said deceased, was one of the persons, who had carried the said injured to the said police station. 12. Without bringing into the evidence on record the contents of the GD Entr y No. 94, dated 03-11-2006, and without letting the prosecution as well as the d efence, if so required, if this appeal is decided, serious miscarriage of justic e is likely to take place, for, we do not know and the learned trial Court also could not find out as to whether any name had been disclosed, as the assailant o f Ukil Ali, to the police, when the injured was carried to the police station, a nd if so, whose name or names had been mentioned as the assailant or assailants of Ukil Ali. Considering the fact that if the GD Entry No. 94, dated 03-11-2006, is n 13. ot brought into the evidence on record, serious miscarriage of justice would tak e place, we are clearly of the view that in such a situation, the conviction of the accused-appellants and the sentence, which has been passed against them, can not be sustained and the case needs to be remanded to the learned trial Court fo r its disposal in accordance with law. 14. We may pause here to point out that a lacuna, in the prosecution’s case, shall not be equated with the fallout of an oversight, which a prosecutor may h ave committed, at the trial, either in producing relevant materials or in elicit ing relevant answer from the witness(s). A human being, be he a prosecutor or a defence counsel, may commit mistake. Logically extended, it would mean that la ches or mistakes, while conducting a trial, cannot be understood as lacunae. In fact, lacunae, in the prosecution’s case, must be clearly understood to be a in herent weakness or a latent wedge in the matrix of a prosecution’s case. Though the advantage of the lapse, on the part of the prosecution, should, ordinarily, go in favour of the defence, an oversight, in the management of the prosecution , cannot be treated as irreparable lacuna. Nobody can be denied the right to co rrect the errors committed in a trial unless it is shown that prejudice would be caused if the error is allowed to be corrected. With regard to the above, it must be uppermost in the mind of a Judge th 15. at if appropriate evidence is not adduced, or relevant material is not brought o n record, due to inadvertence of the counsel, the Court shall not foreclose the right of the party to correct the errors, for, Courts are required to do justice and not to count errors committed by the parties or to find out as to who, amon gst the parties, performed better. Explaining as to what can be regarded as a l acuna in a prosecution’s case, the Supreme Court, in Rajendra Prasad Vs. Narcoti c Cell, reported in (1999) 6 SCC 110, observed : \7. It is a common experience in criminal courts that defence counsel would rais e objections whenever courts exercise powers under Section 311 of the Code of un der Section 165 of the Evidence Act, 1872 by saying that the court could not \fi ll the lacuna in the prosecution case\. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor durin g trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage \to err is human\ is the recognition of the possibili ty of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna whi ch a court cannot fill up. 8. Lacuna in the prosecution must be understood as the inherent weakness or a la tent wedge in the matrix of the prosecution case. The advantage of it should nor mally go to the accused in the trial of the case, but an oversight in the manage ment of the prosecution cannot be treated as irreparable lacuna. No party in a t rial can be foreclosed from correcting errors. If proper evidence was not adduce d or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After a ll, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among t he parties performed better. 9. The very same decision MohanlalShamjiSoni Vs. Union of India 1 which cautione d against filling up lacuna has also laid down the ratio thus : (AIR Hea dnote)\it is therefore clear that the criminal court has ample power to summon a ny person as a witness or recall and re-examine any such person even if the evid ence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to b e the only safe guides and that only the requirements of justice command the exa mination of any person which would depend on the facts and circumstances of each case. \ 10. Dealing with the corresponding section in the old Code (Section 540) Hidayat ullah, J. (as the learned Chief Justice then was) speaking for a three-Judge Ben ch of this Court had said in JamatrajKewaljiGovani Vs. State of Maharashtra 2 as follows : \it would appear that in our criminal jurisdiction, statutory law con fers a power in absolute terms to be exercised at any stage of the trial to summ on a witness or examine one present in court or to recall a witness already exam ined, and makes this the duty and obligation of the court provided the just deci sion of the case demands it. In other words, where the court exercises the power under the second part, the enquiry cannot be whether the accused has brought an ything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. \ 11. Chinnappa Reddy, J. has also observed in the same tone in Ram ChanderVs. Sta te of Haryana. 12. We cannot therefore accept the contention of the appellant as a legal propos ition that the court cannot exercise power of resummoning any witness if once th at power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them du ring final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for resumm oning certain witnesses cannot therefore be spurned down or frowned at.\ (Emphasis is supplied) 16. From the observations made in Rajendra Prasad’s case (supra), it clearl y transpires that a lacuna, in the case of prosecution or defence, would mean an inherent weakness of the case and not accidental slip or omission nor does lacu na mean patent wedge, but a latent wedge. An oversight or inefficiency in the ma nagement of a case is not a lacuna. In this regard, it also becomes necessar y to redefine the role of a Prosecutor in a criminal trial. 17. The role of a Prosecutor, in a Court of law, is to place all the necess ary facts before the Court to ensure utmost fairness in prosecution. It is not t he duty of the prosecution to ensure conviction. The quest, in the Court of law, is only for truth as far as possible and all the Officers of Court, be he the J udge, the Prosecutor or the Defence Counsel, must strive for bringing out the tr uth irrespective of the consideration whether the truth will result in acquittal or conviction. 18. Because of what have been discussed and pointed out above, we hereby set aside the conviction of the accused-appellants and the sentence, which has been passed against them, by the judgment and order under appeal and remand the case to the learned trial Court for causing GD Entry No. 94, dated 03-11-2006, broug ht into the evidence on record by summoning the I/O (PW11), re-examining him and also examining or re-examining any such witness or witnesses as may be necessar y and appropriate bearing in mind the fact that the learned trial Court shall no t allow the prosecution to fill up any lacuna in the prosecution’s case. 19. Before parting with this appeal, we make it clear that we have conscious ly avoided expressing any opinion on the truthfulness or veracity of the evidenc e, given by various witnesses, so that the learned trial Court remains free and unfettered to reach to its own independent judicious finding on the basis of the evidence, which may come on record. We also make it clear that though we have set aside the conviction and t 20. he sentence of the accused-appellants, the accused-appellants, who are in prison , shall remain in prison and shall not be allowed to go on bail during the pende ncy of the trial, which shall be concluded expeditiously and preferably within 3 (three) months from the date of receipt of a copy of the judgment and order. 21. With the above observations and directions, this criminal appeal shall s
Decision
tand disposed of. 22. udge, Kamrup, Guwahati. Send, forthwith, a copy of this order, by FAX, to the learned Sessions J 23. Send back also the LCR. 24. , Assam. Furnish a copy of this order to the learned Additional Public Prosecutor