State v. NONE

(cid:28)While the High Court can review the entire evidence and reach its own c onclusions, it will not interfere with the acquittal by the learned trial Court unless there are strong reasons based on evidence which can dislodge the finding s arrived at by the trial court, which were the basis for the acquittal. The Hig h Court has to give due importance to the conclusions of the trial court, if the y had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against acquittals, only where the trial Court makes w rong assumptions of material facts or fails to appreciate the evidence properly. If two view are reasonably possible from the evidence on record, one favouring the accused and the one against the accused, the High Court is not expected to r everse the acquittal merely because it would have taken the view against the acc used had it tried the case. The very fact that two views are possible makes it c lear that the prosecution has not proved the guilt of the accused beyond reasona ble doubt and consequently the accused is entitled to benefit of doubt. (cid:29) In the case of Syed Peda Aowlia versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad; reported in (2008) 11 SCC 394, the Hon’ble Supreme Co urt observed as below: - (cid:28)There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be int erfered with because the presumption of innocence of the accused is further stre ngthened by acquittal. The golden thread which runs though the web of administra tion of justice in criminal cases is that if two views are possible on the evide nce adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justi ce is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admis sible evidence is ignored, a duty is cast upon the appellant court to re-appreci ate the evidence where the accused has been acquitted, for the purpose of ascert aining as to whether any of the accused really committed any offences or not (se e Bhagwan Singh versus State of MP). The principle to be followed by the appella te Court considering the appeal against the judgment of acquittal is to interfer e only when there are compelling and substantial reasons for doing so. If the im pugned judgment is clearly unreasonable and relevant and convincing materials ha ve been unjustifiably eliminated in the process, it is a compelling reason for i nterference. (cid:29) In the case of Mahesh versus State of Maharashtra, reported in (2008) 13 SCC 271 , the Hon’ble Apex Court held that in an appeal against the order of acquittal, it is for the appellate court to keep in view the relevant principles of law to re-appreciate and reweigh the evidence as a whole and to come to its own conclus ion on such evidence in consonance with the principles of criminal jurisprudence . While deciding the case of Sonmoni @ Prasanta @ Santanu Bordoloi versus the St ate of Himachal Pradesh, reported in AIR 1973 SC 2773, held that the Court has t o hold the balance of justice evenly and ensure that a fair opportunity is affor ded to the accused to have his say in the matter and the Court has also to make a close and dispassionate scrutiny of the evidence on record before holding that the evidence given by prosecution is sufficiently trustworthy and reliable to h old that the case of the prosecution stands proved pointing to the guilt of the acquitted accused. The observations made by the Hon’ble Apex Court, in the above referred case run as follows: - (cid:28)It is no doubt true that wrongful acquittals are undesirable and shake the conf idence of the people in the judicial system; much worse, however, is the wrongfu l conviction of an innocent person. The consequences of the conviction of an inn ocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring, as far as po ssible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocence, of course, is always there in any syste m of the administration of criminal justice. Such a risk can be minimised but no t rule out altogether. (cid:29) In the case of State of Goa versus Sanjay Thakran; reported in (2007) 3 SCC 755, the Hon’ble Supreme Court observed as follows: (cid:28)A duty is cast upon the appellate court in such circumstances to re-appreciate the evidence to arrive at a just decision on the basis of material placed on rec ord to find out if any of the accused is connected with the commission of the cr ime he is charged with. (cid:29) oral evidence given by the deceased regarding the assault caused to her

#8. Carefully perusing the impugned judgment and order, we find, tha t the prosecution has relied on the following evidence, revealed by the witnesse s. (i) by the appellant Mr. Pakhi Miya, (ii) , Mr. Fakrul, on being led by him, (iii) e of Mr. Pakhi Miya. the recovery of the dead body of the deceased near the pond of appellant recovery of a rope from the cow shed of Mr. Fakrul/Faizul at the instanc The learned trial Judge has refused to accept the said evidence put forward by t he prosecution. 9. Keeping in mind the above principles of law and to examine the c orrectness of the findings of the learned Trial Judge, we feel it appropriate to briefly, scan the evidence on record as below. Shri Shailash Chandra Nath, who lodged the FIR, deposed as PW1. He stated that, on 26/8/2000 at about 10.30 PM, arriving at his home, he found t he deceased sitting in the varandah. He also found Mr. Pramath Nath (CW1), Mr. A bdul Gani (DW1), Mr. Binoy Nath(PW4) and Mr. Subhas Nath(PW3) sitting in their c ourtyard and came to know that Mr. Pakhi Miyan had used filthy language to the d eceased and kicked on her back from behind, on her way from the house of Shri Ga uranga Mahanta. She also disclosed that there were some other persons along with Mr. Pakhi Miyan, at the time of assaulting her. According to this witness, he w as informed that Smt. Sabita Nath, on being so attacked, had raised alarm and ma ny persons, from the neighbourhood, had gathered. This witness further stated th at though the village meeting, held on 10/10.30 A.M. was re-fixed on 29/8/2000, for final decision, the deceased was found to be missing from Monday late night. PW1 further stated that the dead body of the deceased was found, inside the (cid:28)mu rta ban (cid:29) (cane bush) situated on the bank of Fakrul’s pond, after four days from the date of lodging the FIR (Exhibit 1). He was a witness to the inquest report (Exhibit 2), prepared by the police. In his cross-examination, he stated that l ate Sabita Nath did not disclose anything except saying that she was assaulted b y Mr. Pakhi Miyan. From the above evidence of PW1 nothing, except the causing assau lt, by Pakhi Miya, on the evening of 26/8/2000, is found against the respondents i.e. the accused persons. Smt. Sukriti Nath, mother of the deceased, deposed as PW2. She s 10. tated that the deceased had informed her that Pakhi Miyan and 2/3 others, whom s he could not recognise, had assaulted her. In tune with the evidence of PW1, thi s witness also stated that a village meeting was held for reaching an amicable s ettlement of the matter but Mr. Fakrul, in whose house Pakhi Miyan was working, refused to bear the cost of treatment of the said victim. According to this witn ess, though Tuesday was fixed for final decision of the meeting, the deceased wa s found missing from the previous night. She further stated that, on a Friday i. e. after 3/4 days of missing of Sabita, police apprehended Fakrul, who had shown the dead body of the deceased in the jungle, towards the eastern bank of a pond . In her cross-examination, made on behalf of Fakrul and Faizul, this witness st ated that 10-15 days prior to the incident, Sabita had a quarrel with the family of Fakrul regarding cattle.

#11. Shri Subhas Ch. Nath, PW3, is the brother of the deceased. Suppo rting the evidence of PW1 and PW2, this witness stated that Sabita Nath had told them that she was assaulted by Mr. Pakhi Miyan. He also stated that, after the missing of Ms. Sabita Nath, Fakrul was called by police and he led the Police to the eastern corner of his pond, where the dead body of Sabita was found in (cid:28)mur ta ban (cid:29) (cane bush). He was also a witness to the inquest report (Exhibit 3). Th ough PW1 who was a witness to the inquest report (Exhibit-2), he did not whisper anything regarding Fakrul. But PW3, who said that, PW1 was also present with him, at the time of recovery o f the dead body, stated that Fakrul had led to the recovery of the dead body. If PW1 is believed, Fakrul played no role, but according to PW3, Fakrul led to the recovery. In our considered opinion, there is a major contradiction on vital po int. PW3, further stated that accused Mr. Pakhi Miyan, on being brought by Polic e, putting handcuff, had in presence of all the persons, confessed that, when Sa bita had gone out for attending natures call, he along with Fakrul, Faizul and T uta Miyan had forcibly taken her to the western boundary of their house and kill ed her. He also stated that Pakhi Miyan had disclosed that they had strangulated her to death. According to this witness, Pakhi Miyan had produced a jute rope ( about 3 cubits in length) from the home of Fakrul, which they had used to strang ulate the deceased. From the evidence of this witness, it appears that the said extra judicial confe ssion was made by the accused person, during his custody with the police. 12. Shri Binoy Nath, another brother of the deceased deposed as PW4. He, supporting the evidence of PW1, WP2 and PW3, stated about the assault made by Pakhi Miyan. He also stated that 3/4 days after recovery of the dead body, po lice, along with Magistrate, had taken Pakhi Miya to the place of occurrence and that Pakhi Miyan confessing his guilt had stated that the deceased was taken to the house of Fakrul and that she was killed by strangulation. He also stated th at, on being asked by police, Fakrul had shown the dead body of Sabita in the mi dst of (cid:28)murta ban (cid:29) (cane bush) near the pond. From the evidence of this witness, it is found that the said extra judicial conf ession was made in presence and custody of the police. 13. Shri Satyendra Nath, uncle of the deceased, deposing as PW5, sta ted that accused Pakhi Miyan was brought to the village by Magistrate and Police and that he confessed that he had assaulted the deceased, on 26/8/2000 in the e vening. He further stated that Pakhi Miyan also confessed that he, along with Fa krul, Faizul and Tota Miyan, had killed the deceased by strangulation with a rop e. According to this witness, Pakhi Miyan had produced the rope from the cowshed of Faizul. He contradicted the evidence of PW3, PW4, PW7 and PW9 regarding the place form which the rope was produced. Contradiction on such vital point raises doubt about the credibility of the evidence adduced by the prosecution, regardi ng recovery of the rope, at the instance of Pakhi Miyan. From the evidence of th is witness also, it is found that the confession was made in presence and custod y of police. 14. Dr. Subrata Kr. Das, PW6 conducted the post mortem examination o f the deceased on 1/9/2000 at 2.45 P.M. at Karimganj Civil Hospital. He found th e following injuries in respect of the dead body. Injury No. 1: Injury No. 2: Haematoma on the forehead over the frontal area size 2 (cid:29)x1 (cid:29). Lacerated injury over the right mastoid region. Size 2 (cid:29)x1 (cid:29)xbone Lacerated injury on the front of the neck. Size1 (cid:29)x1/2 (cid:29)x muscle d deep. Multiple fractures of skull present. Injury No. 3 (cid:29) eep. Blood vessels are cut. Injury No. 4: Ecchymosis on the right side of the chest on the lower part size 2 (cid:29)x1 (cid:29).

#2. Cranium & Spinal cannel: Scalp, skull, vertebrae: In the frontal region of the scalp haematoma wa (a) s present. Size 2 (cid:29)x1 (cid:29) Lacerated injuries on the right mastoid region was also pr esent. Seize 2 (cid:29)x1 (cid:29)xbone deep. Multiple fractures of right mastoid bone. (b) (c) d also in the right mastoid region of the brain. Membrane: Torn at the mastoid region. Brain & spinal cord: Clotting of blood in the frontal region of brain an

#3. Thorax (a) (b) (c) (d) (e) (f) (g) Walls, ribs and cartilages: walls found swollen and ribs healthy. Pleurae:Swollen Larynx and trachea: These were found swollen. Right and left lung: Both are swollen and pale. Pericardium is also found swollen. Heat: Found swollen and empty. Vessels found empty.

#4. Abdomen: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) nd non-pregnant. Walls found swollen. Peritoneum swollen and pal. Mouth, pharynx, oesophagus were found swollen and plae. Stomach swollen and empty. Small intestine was swollen and empty. Large intestine was found swollen and empty. Liver found softened and flabby. Appearance is honeycombed. Spleen swollen and soft. Kidneys swollen. Bladder found swollen and empty. Organs of generation-external and internal was found pale uterus was fou The Medical Officer opined that death of the deceased was due to shock and haemo rrhage resulting from injuries. Shri Bhaskar Das, Executive Magistrate, deposing as PW7 stated t 15. hat, on 5/9/2000, he, along with Police staff, visited the place of occurrence a nd took Pakhi Miyan to the place, where the deceased was killed. According to th is witness, accused Pakhi Miyan had brought out a rope from the cowshed of Fakru l and disclosed that the said rope was used in causing the death of Sabita. He w as a witness to the seizure of the rope, which was seized vide Exhibit 4. He exp ressed ignorance about the place from where police had brought Pakhi Miyan. The said Executive Magistrate (PW7), who accompanied the police, stated about recove ry of the rope, at the instance of Pakhi Miyan from the cowshed of Fakrul, did n ot whisper regarding the confessional statement alleged to be made by accused Pa khi Miyan. Shri Jitendra Singha, one of the Investigating Officers, deposing as PW8, stated that, on 3/9/2000, Pakhi Miyan @ Makbul Ali was arrested and the case diary was handed over to Sub-Inspector N.C. Singh, Officer-in-charge of Nilambazar Out Po st. According to this witness, he recovered the dead body from the (cid:28)murta ban (cid:29) ( cane bush) near the pond of Fakrul. He stated that, PW3 did not tell him that, o n being asked by Police, Fakrul had shown the dead body inside the (cid:28)murta ban (cid:29) ( cane bush) of Khaliluddin’s pond. Though this witness stated about the recovery of the dead body he did not say anything regarding leading to discovery by any o f the accused persons. He was also silent about the confessional statement, if a ny, made by Pakhi Miyan or Fakrul. Admittedly, the accused person was taken by t he police to the place occurrence. If the said accused has really made any confe ssion, there was no reason, for the PW7, to remain silent on such vital point. H is silence, in this regard raises doubt about the confession itself. 16. PW9 is Nitai Chand Singh, who was the Officer-in-Charge of the P olice Station, also stated that accused Pakhi Miyan led him to the place where t he deceased was killed and that Pakhi Miyan had told him as to how and where she was killed. But PW8, one of the Investigating Officers, who recovered the dead body did not whisper anything about the confessional statement, made by Pakhi Mi yan, leading to discovery. PW9, Shri Nitai Chand Singh, is the Officer-in-Charge of the Police Outpost, who completed the investigation after the transfer of PW 8. He stated that he visited the place of occurrence, on 5/9/2000 along with the Executive Magistrate, PW7, taking Pakhi Miyan with them. He stated that accused Pakhi Miyan had led them to the place of occurrence disclosed as to how and whe re she was killed. He did not state anything regarding discovery of the dead bod y at the instance of Fakrul. Admittedly this witness took up the investigation a fter the discovery of the dead body by PW8. If the dead body was discovered at t he instance of Fakrul the Investigating Officer i.e. PW8 was the best person to state about the involvement of Fakrul. His silence about the discovery of the de ad body at the instance of Fakrul, raises doubt about the veracity of the prosec ution version that Fakrul had led Police to the recovery of the dead body. The e vidence of PW8 belies the statements given by PW2, PW3, PW4, PW5 and PW7 regardi ng the confessional statement made by Pakhi Miyan and leading to the discovery m ade by Fakrul. Dr. Rabindra Nath Das who was examined as CW1 stated that Smt. Sabita Nath took medical treatment under him, on 28/8/2000. According to this witness, he prescri bed her medicine for swelling of her right elbow. Shri Pramoth Nath, who deposed as CW2, stated that, hearing alarm, he rushed to the school and found Sabita therein. According to this witness, the deceased had told him that someone, whom she could not recognise, had given her 2/3 blows on her neck. There is nothing on record to show that he had either suppressed or e xaggerated the fact. Shri Harakanta Nath, who has been examined as CW3, stated that, hearing hue and cry, he rushed to the School, situated near his house and came to know that a vi llage meeting was held, in which Fakrul refused to bear the cost of medical trea tment of the deceased. This witness also stated that CW2 was a responsible perso n of the village. Shri Sudhangsu Nath, who has been examined as CW4, also stated about the village meeting. This witness for the first time, stated that the dec eased had informed them, in the meeting, that accused Pakhi Miyan, after assault ing her, made attempt to commit rape on her, but due to alarm raised by her, he fled the place. None of the other witnesses, who also attended the meeting and h eard Sabita, did not whisper regarding attempt of rape. This is a new story, rev ealed by CW4, which is not supported by others. Hence, it is found that this wit ness has the tendency of exaggerating the matter. Hence we do not find it safe t o rely on his evidence. 17. Md. Abdul Gani, DW1, stated that hearing alarm, he rushed to the School and found the deceased, who informed that she was assaulted by some pers ons. He also stated that, on being asked, the deceased expressed her inability t o recognise the assailant. According to this witness, CW2 was also present at th e time of finding the deceased. CW2 supporting the evidence of DW1 stated that t he deceased could not recognise the assailant. Though DW1 was duly cross-examine d, on behalf of the prosecution, no incriminating material could be elicited aga inst the appellant. 18. From the above discussed evidence, it is found that PW1, PW2, PW 3, PW4 and CW4 stated that the deceased, in presence of CW2, CW3 and DW1, disclo sed that she was assaulted by Pakhi Miyan, on 26/8/2000, but CW2, CW3 and DW1 di d not support the said version of PW1, PW2, PW3, PW4 and CW4. According to CW2 and DW1, Smt. Sabita, i.e. the deceased had said that some pers ons had assaulted. PW1, clearly stated that, while disclosing the name of Pakhi Miyan, by Smt. Sabita, DW1 and CW2 were present. It appears that PW1, PW2, PW3 a nd PW4 are members of the deceased’s family and PW7 is her paternal uncle. Thoug h all of the said members of the same family stated that the deceased had told t hem that she was assaulted by Pakhi Miyan, we find no reason to disbelieve the C W2 and DW1, who were independent witnesses and appeared in the place of occurren ce, just after the incident and also attended the village meeting. They did not whisper anything incriminating against Mr. Pakhi Miyan. The CW2 and DW1 contradi cted the evidence of the said witnesses. Therefore, it is doubtful if the deceas ed had disclosed about the involvement of Pakhi Miyan in connection with the ass ault. 19. Admittedly police arrested Pakhi Miyan and took him to the place of occurrence. It is found that, at the time of making the alleged extra judici al confession, by Pakhi Miyan, before PW3, PW4, PW5 and PW7, he was in the custo dy of the police. Therefore, the extra judicial confession, alleged to be made b y Pakhi Miyan is hit by the statutory provision, prescribed by Section 26 of the Indian Evidence Act. In view of the statutory bar, the said extra judicial conf ession, even if made by Pakhi Miyan, cannot be accepted as legal evidence. 20. Another point raised, on behalf of the appellant, is that the in criminating rope, which was used by the appellants in killing the deceased, was recovered, on being shown by the appellant Pakhi Miyan. Except the said confessi onal statement, made by Pakhi Miyan, there is no other substantive evidence to s how that the said rope, was used in causing the death of the deceased. We have a lready noticed that the alleged extra judicial confessional statement has been m ade by Pakhi Miyan, during his custody with the police and as such the same, bei ng hit by Section 26 of the Indian Evidence Act, cannot be used as evidence. The refore, his statement that the said rope was used by them in causing the death o f the deceased cannot be accepted as legal evidence. The recovery of the rope, u nless, involvement of the appellants is proved, cannot itself lead to the conclu sion that the appellants had caused the death of the deceased. 21. Carefully perusing the evidence on record, we find that the lear ned Trial Judge, has meticulously scrutinised the evidence and arrived at the fi ndings, by a reasoned judgment that the prosecution failed to prove the case aga inst the appellants beyond all reasonable doubt. 22. In view of the above discussion, we are of the considered opinio n that the view, taken by the learned Trial Judge, does not suffer from any perv ersity or illegality requiring interference. Law is well settled that in crimina l cases, if two views are possible on the evidence, adduced in the case i.e. one pointing to the guilt of the accused and the other to his innocence, the view w hich is favourable to the accused should be accepted. Therefore, in the absence of any compelling and substantial reason for interfering with the impugned judgm ent and order, we are inclined to uphold the view taken by the learned Trial Jud ge. In the light of what has been discussed above, we do not find an y error in recording the acquittal of the appellants. Therefore, we do not find sufficient merit in the appeal. The appeal fails. Return the lower court records.