Calcutta High Court (Appellete Side)
In Re: Jasodhar Jadav vs V. N. Rajan & Anr on 8 November, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
6. 8.11.2011. C.R.R.2196 of 2006.
as
Re: An application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure.
In Re: Jasodhar Jadav. .......Petitioner.
Mr. Subir Ganguly.
....For the Petitioner.
Ms. Ratna Ghosh.
...For the State.
Mr. Arindam Jana.
...For the Opposite Parties.
The challenge in this revisional application is to the judgment dated 9.3.2006 in Sessions Case No.64 of 2000/Sessions Trial No. 3 of January, 2003 passed by the learned Additional District and Sessions Judge, 3rd Fast Track Court, Bichar Bhawan, Calcutta whereby the opposite party Nos.2, 3 and 4 were found not guilty and acquitted from the charges under Section 302/34 of the I.P.C.
The petitioner herein is the defacto complainant of the case who initiated criminal action into motion and challenged the legality, validity and propriety of the judgment impugned mainly on the following grounds;
a) that the learned Court failed to appreciate the evidence on record specially the evidence of eye witnesses in its true and proper perspective;
b) that the learned Court misappropriated the evidence of the P.W.5, i.e., the Doctor who conducted the post mortem report;
c) that the learned Court overlooked material evidence and put much stress on irrelevant or less important aspect of the case and recorded the acquittal; and
d) that the order of acquittal being otherwise bad in law, is liable to be set aside.
A short reference to the factual aspect of the case is given below for better appreciation of the matter.
On 17.9.1998 at about 17.35 hours, Jasodhar Yadav found some persons shouting and exchanging fists and blows in front of a Pan shop by the side of A. P. C. Bose Road, Calcutta. He and other local persons went there and found Hare Yadav was having a fight with Bhola Show and his father Mantu Show. Palat Yadav and Josodhar Yadav and others tried to pacify the quarreling parties and somehow they succeeded for the time being. A few minutes thereafter, while Jasodhar and Palat were crossing the road together, Raj Kishore Show @ Nandu (O.P.No.4) appeared in the scene and asked his brother Bhola and Mantu (O.P.Nos.2 and 3) as to who made the trouble. Bhola and Nandu then pointed out towards Palat Yadav. Nandu hit Palat with full force on his head with a Bhojali from the front side and, as a result, Palat fell on the tram track on his back. Brain materials come out from his head instantly. Jasodhar despite receiving some injuries on his finger called a taxi and took Palat Yadav to R. G. K. Kar Hospital where Palat was declared dead. One F.I.R. was lodged over the incident by Jasodhar in the Burtola Police Station which was registered as Burtolla Police Station Case No.253 dated 17.9.1988 under Sections 302/34 of the I.P.C. The case was investigated into and initially the investigating officer filed a final report with a prayer to discharge the opposite parties. However, ultimately, the case was again investigated and finally ended in a charge sheet under Sections 302/34 of the I.P.C. against the opposite parties to which they pleaded not guilty and, accordingly, the trial commenced. The learned Judge upon consideration of the evidence recorded by it and upon consideration of the documentary evidence, came to a findings that the prosecution miserably failed to bring home the charges levelled against the opposite parties and accordingly, recorded the order of acquittal which is impugned in this revisional application for the reasons mentioned earlier.
Mr. Subir Ganguly, learned Counsel appearing on behalf of the petitioner contends that the learned Judge failed to appreciate the evidence in his proper and true perspective. He takes this Court to the evidence of P.Ws.1 to 4 and contends that all of them are eye witnesses to the incident and have categorically described the incident. Their evidence are found consistent and corroborating to each other. All of them stated categorically that the deceased was hit by the opposite party Raj Kishore @ Nandu with a blunt side of Bhojali and instantly he fell down and brain materials came out from his head. All of them have also stated categorically that the other two opposite parties hit Palat, the injured, with pieces of bricks and stones when he fell on the road after being hit by Nandu.
Mr. Ganguly, learned Counsel for the petitioner also takes this Court to the judgment impugned and submits that the learned Court disbelieved their statements mainly on the grounds that there are discrepancies in the evidence of eye witnesses and the evidence of Doctor who conducted the post mortem report on the dead body of Palat. Mr. Ganguly draws attention of the Court to the evidence of P.W.5, i.e., the Doctor who conducted the post mortem of the dead body of deceased Palat and the post mortem report which was marked as Ext.3 in course of trial and submits that the injuries detected by the P.W.5 are :-
1) One abrasion - 1" X ½" obliquely placed over medium sized of right elbow joint;
2) One abrasion 1 ½" X 1" just under the chin more or less over midline;
3) One abrasion 1" X 2" over left side of upper most part of next;
4) Multiple abrasion with varying shapes and sizes varying between ½" X ½" and 1" X ½" over left side of face and neck;
5) One abrasion 2 1?2" X 2" over right check just in front of right ears;
6) One abrasion ½" X ½" placed obliquely over right check ½" lateral to right alienasi;
7) One lacerated wound 6 ½" X 2 ½" over left side of the temple obliquely placed upto middle of left side of the vault involving left frontal and left parietal region with comminuted fracture of all bones forming the vault and base of skull and both maxillae and nasal bones with gross laceration of meninges and brain and most of the brain materials were found drained out of the wound;
8) One lacerated would 2 ½" X 1" obliquely over right parietal region;
9) Multiple abrasion of varying shapes and sizes over postero laternal aspect of right arm, right elbow and right fore-arm;
10) Comminuted fracture of ribs from 3rd to 10th on right and 4th to 7th on the left side with gross laceration of both lungs against the fractured rib ends;
11) Rapture of spleen and gross rapture of liver.
Mr. Ganguly draws attention to the Court to the deposition of P.W.5 and submits that nowhere within the four corners of this deposition, Doctor has ever stated that the injuries were caused due to ordinary fall on the road and due to run over by heavy moving vehicle. In his cross examination his earlier opinion regarding the cause of death was taken into consideration by the Court at the time of trial and the learned Court disbelieved what the P.W.5 has stated in his examination-in-chief which is consistent with the post mortem report and supports the conversion of the eye witnesses of the P.Ws.1 to 4. The learned Court obviously has overlooked the material points which were to be considered by it for the proper adjudication of the matter. To be stated precisely, Mr. Ganguly submits that the learned Court ignored the direct evidence of eye witnesses, i.e., P.Ws.1 to 4 for no reason whatsoever and, as such, the order of acquittal is required to be interfered with.
Mr. Ganguly submits further that the learned Court disbelieved their evidence because it was recorded long after the incident and there was possibility of depreciation of truth. The learned Court also did not find any motive which prompted the opposite parties to cause assault on the deceased.
Mr. Arindam Jana, learned Counsel appearing on behalf of the opposite parties submits that this Court while exercising its revisional jurisdiction cannot take the role of an Appellate Court and re-appreciate the evidence in order to find out laches on the part of the learned Trial Court. He refers to the decision of the Hon'ble Apex Court in K. Ramachandran Vs. V. N. Rajan & Anr., reported in (2010) 1 SCC (Cri) 1449 in support of his contention.
It is settled principle of law that only in glaring cases of injustice resulting from some violation of fundamental principles of law by the learned Trial Court, High Court is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused. The power should be exercised sparingly and with great care and caution. The mere circumstances that a findings of fact recorded by the trial court may, in the opinion of High Court, be wrong, will not justify setting aside the acquittal and direct retrial. That view was taken by the Hon'ble Court long ago in the case of Bansi Lal & Ors. Vs. Laxman Singh, reported in 1986 Crl. L. J. 1603 and the same has been followed till this date. The Hon'ble Apex Court after taking into consideration its earlier decisions in Stephen's case,1951 SCR 284, Logendra Nath Jha Vs. Polai Lal Biswas, reported in A.I.R. 1951 SC 316 and K. Chinnaswamy Reddy Vs. State of A.P., reported in A.I.R. 1962 1788, set out the following guidelines over the issue while passing the judgment in Sheetala Prasad & Ors. Vs. Srikant & Anr., reported in A.I.R. 2010 SC 1140 as to when and why High Court interfere into a finding of trial court in exercising its revisional jurisdiction.
a) where the trial court has wrongly shut out evidence which the prosecution wished to produce;
b) where the admissible evidence is wrongly brushed aside as inadmissible;
c) where the trial court has no jurisdiction to try the case and has still acquitted the accused;
d) where the material evidence has been overlooked either by the trial court or the appellate court or the order of acquittal is passed by considering irrelevant evidence and materials;
e) where the acquittal is based on the compounding of the offence which is invalid under the law.
Mr. Jana contended further that there are material discrepancies in the evidence of P.Ws.1 to 4 and the P.W.5 over important issues like nature of injury. Besides that, he contends, the learned Trial Court had taken everything into consideration including the opinion of the Doctor who conducted the post mortem and had given a different reason of the death of the deceased. Therefore, according to him, this Court should not set aside the order and direct retrial or reconsideration of the case in exercise of its revisional jurisdiction.
Ms. Ratna Ghosh, learned Counsel appearing on behalf of the opposite party/State submits that the judgment is perverse as it appears from bare perusal of the same. The learned Court neither considered the injuries detected by the Doctor who conducted post mortem (P.W.5) nor considered the evidence of eye witnesses, i.e. P.Ws.1 to 4 properly. She contends further that the learned Court discarded the evidence of eye witnesses on flimsy grounds without assigning any cogent reason. Therefore, she supports the contention of Mr. Ganguly and prays for setting aside the judgment impugned.
Judicial accountability in proper dispensation of criminal justice cannot be evaded in a manner the learned Trial Court has done in the instant case. There is no rule of law that in case of some sort of discrepancies (not gross discrepancies) between the evidence of eye witnesses and the medical witness, the evidence of eye witnesses is to be disbelieved. Medical witness who conducted the post mortem report is not an ocular witness. He is not supposed to give detail of the incident as to how the injuries caused. He can only pass an opinion regarding cause and effect of the injuries he detected at the time of post mortem. This opinion is hypothetical and cannot be accepted in absence of strong supporting evidence and circumscribed by the other factors. The Doctor, i.e., the P.W.5 in the instant case, in fact and in substance, has not denied that the deceased received one lacerated wound measuring 6 ½" X 2 ½" over and area comprising left temple to middle of left side of vault and brain materials drained out of that wound. He also detected another lacerated wound measuring 2 ½" X 1"
over right parietal region. The evidence discloses that the deceased fell on the road on his back when he was hit by the opposite party no.4. If he was ran over by a vehicle, obviously frontal region of his head would have been smashed not only the left side of the temple upto the middle side of the vault. The learned Trial Court did not consider the fact from that angle. The deceased might have received some injuries due to fall on the road but that fact does not necessarily imply that the opposite parties did not assault him as described by the P.Ws.1 to 4 specially when the multiple injuries of different nature and different sizes were found on all over the body of the deceased. The reasons assigned by the learned Court do not appear to be convincing. The Court put rather much importance on the fact that initially a final report was filed and the examination of the witnesses continued for three years. That was obviously no fault on the part of the P.Ws.1 to 4. The incident alleged was such in nature one cannot erase the same from his mind. The P.Ws.1 to 4 are grown up persons and as such, it was not very easy for them to forget the incident. Therefore, the ground given by the learned Court in the matter of disbelieving their evidence after such a long period cannot be possibly be accepted. The learned Court has overlooked some important evidence specially the evidence of eye witnesses. The learned Trial Court also failed to appreciate the evidence properly. Some points were not discussed by the learned Court at all. Some less important factors were given much importance which is gross violation of fundamental principles of law.
This appears to be a fit case where this Court should exercise its revisional jurisdiction and upset the order impugned.
Mr. Arindam Jana, learned Counsel appearing on behalf of the opposite parties refers to the decisions of the Hon'ble Court in Chandrappa & Ors. Vs. State of Karnataka, reported in (2009) 2 SCC (Cri) 481 and State of U. P. Vs. Ashok Dixit & Anr., reported in (2000) SCC (Cri) 579 in support of his contention that when no T. I. Parade was held, identification of the opposite parties in the Court during trial by the P.Ws.1 to 4 itself was doubtful. He submits further that there was delay in the trial and reliance was not placed by the learned Court on the testimonies of eye witnesses after a long period of time as their statement were discrepant as to the actual manner of assault and injuries caused.
There cannot be any debate on the principles laid down by the Hon'ble Court in the aforesaid decisions. In the instant case, however, this Court reiterates that the learned Court did not consider some important evidence of the prosecution while recording acquittal. The learned Court failed to assign proper reason as to why it disbelieved and discarded the oral testimonies of the eye witnesses when no question of identification in the Court was raised at any point of time. The learned Court did not specifically mention the differences between the injuries allegedly inflicted by the opposite parties on the body of the deceased as stated by the P.Ws.1 to 4 and as detected by the P.W.5 at the time of post mortem. The learned Court failed to overlook that the death was ante mortem in nature and caused due to the injuries sustained by the deceased and that fact was not challenged at any point of time in course of trial. The learned Court failed to assign any reason as to why the statement of the Doctor recorded at the time when the cognizance was taken was given much importance than what he has stated in course of trial when he was subjected examination and cross examination by the parties. The learned Court also failed to distinguish the importance and acceptability of the evidence of the eye witnesses and evidence of the Doctor regarding the manner in which the injuries were received by the deceased. These are all important factors in a criminal action of like nature and this Court reiterates that the learned Court failed to discharge his accountability in proper dispensation of criminal justice by not appreciating the evidence in its correct and true perspective.
In view of Sheetala Prasad's case (Supra), this Court thinks it proper to direct the learned Court to reapprise the evidence and pass an order according to law.
In view of the discussions above, the order impugned is set aside. The revisional application is allowed. The learned Court is directed to re-hear the parties and pass a fresh judgment upon proper reconsideration of the materials and evidence on record within shortest period of time.
The revisional application, thus, stands disposed of. There will be, however, no order as to costs. L.C.R. be sent back to the learned Court below.
Urgent photostat certified copy of this order, if applied for, be given to the learned Counsel of the parties upon compliance of necessary formalities.
( Kanchan Chakraborty, J. )