Gauhati High Court
Page No.# 1/9 vs The State Of Assam And Anr on 5 February, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/9
GAHC010131172013
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./348/2013
SMTI KALPANA DAS and 8 ORS.
S/O LT. MONORANJAN DAS GAGLACHERRA, KALAPAR P.S. LALA DIST.
HAILAKANDI, ASSAM.
2: KUTU DAS
S/O SMTI KALPANA DAS GAGLACHERRA
KALAPAR P.S. LALA DIST. HAILAKANDI
ASSAM.
3: SUBOL DAS
S/O SMTI KALPANA DAS GAGLACHERRA
KALAPAR P.S. LALA DIST. HAILAKANDI
ASSAM.
4: ARUN DAS
S/O SMTI KALPANA DAS GAGLACHERRA
KALAPAR P.S. LALA DIST. HAILAKANDI
ASSAM.
5: JADAB DAS
S/O UNKNOWN GAGLACHERRA
KALAPAR
P.S. LALA DIST. HAILAKANDI.
6: DULAL DAS
S/O ARUN DAS GAGLACHERRA
KALAPAR P.S. LALA DIST. HAILAKANDI
ASSAM.
7: CHANDU DAS
S/O AKHIL DAS GAGLACHERRA
KALAPAR
P.S. LALA DIST. HAILAKANDI
ASSAM.
Page No.# 2/9
8: BINDU DAS
S/O UNKNOWN GAGLACHERRA
KALAPAR
P.S. LALA DIST. HAILAKANDI
ASSAM.
9: ASHIT DAS
S/O ANAMIKA DAS GAGLACHERRA
KALAPAR
P.S. LALA DIST. HAILAKANDI
ASSAM
VERSUS
THE STATE OF ASSAM and ANR.
2:JOYGOPAL DAS
S/O GAGLACHERRA
KALPARA P.S. LALA
DIST. HAILAKANDI
ASSAM
Advocate for the Petitioner : MR.F K R AHMED, MR.A H ALAMGIR
Advocate for the Respondent : PP, ASSAM, MR.C BHATTACHARYYA,AMICUS CURIAE
BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI Date : 05-02-2025 JUDGMENT & ORDER (CAV) Heard Mr. A.H Alamgir, learned counsel for the petitioner. Also heard Mr. K.K.Parasar, learned Additional Public Prosecutor for the state.
2. By filing this application u/s 397/401 R/W Section 482 of the Cr.PC, 1973, the accused petitioners have prayed for setting aside the judgment and order Page No.# 3/9 dated 15.06.2013, passed in Crl. Appeal No.32/2009 by the learned Sessions Judge, Hailakandi dismissing the appeal and thereby affirming the judgment and order dated 07.07.2009 passed by the learned CJM, Hailakandi in C.R Case No.206/2004, u/s 323/342/34 IPC and sentencing the petitioners to pay a fine of Rs.1000/- each in default simple imprisonment for 1 month each for their conviction u/s 323/342/34 IPC on each count.
3. The prosecution story in brief is that on 06.06.2004, at around 7/8 pm, accused/petitioner Kalpana Das called complainant Joygopal Das to her residence and thereafter, the remaining accused petitioners namely Kutu Das, Subol Das, Arun Das, Jadav Das, Dulal Das, Chandu Das, Bindu Das and Ashit Das assaulted the complainant with fists and blows causing injuries on his person. Accordingly, the complainant filed a complaint case in the Court of learned CJM, Hailakandi vide C.R Case No.206/2004 and cognizance was taken. During trial, the complainant side adduced evidence to prove his case. After completion of trial and after hearing both sides, the accused petitioners were convicted as aforesaid.
4. Being highly aggrieved and dissatisfied with the aforesaid judgment and order dated 15.06.2013, passed by the learned Sessions Judge, Hailakandi, the accused petitioners have preferred this revision petition.
5. Learned counsel for the petitioners has submitted that the findings arrived at and conclusion reached by the trial court are perverse to the material on record in as much as the trial court did not deal with the fact and law in the impugned judgment which led to passing of the erroneous judgment and order.
6. It is also submitted that the trial court as well as the appellate court fails to appreciate the contradiction where the petitioners first took the complainant in Page No.# 4/9 Kalacherra Outpost on 06.06.2004 but the in-charge of outpost set the complainant free by totally disregarding the Provision of Section 47 of the Assam Police Act, 2007. The learned Court below also overlooked the evidence of the prosecution witnesses while passing the impugned judgment which is liable to be set aside.
7. It is also contended that the learned trial court and the appellate court have failed to understand PW-4 is neither friend nor enemy of the complainant, has admitted in his cross-examination that the matter in dispute was settled in Kalacherra outpost for which in-charge of the outpost set the complainant free on 06.06.2004. But subsequently, the complainant lodged the complaint on 19.06.2004 before the CJM, Hailakandi after 13 days of the alleged incident which was not considered by the trial court or the learned Sessions Judge and as such the judgment and order passed by the Court below are liable to be set aside.
8. According to the learned counsel for the petitioners, the trial court has failed to examine the police officer of Kalacherra outpost for which the true incident did not come to light. Hence, non-examination of police officer in the instant case is fatal as such the impugned judgment passed by the learned trial court as well as the appellate court is liable to be set aside.
9. Per contra, learned Additional Public Prosecutor for the state has argued to support the findings recorded in the impugned judgment and urged that findings of conviction concurrently recorded by the Courts below are neither perverse nor against the law and do not warrant interference by this Court. It is further pointed out by the learned Additional Public Prosecutor that the High Court in Criminal Revision against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision Page No.# 5/9 is extremely narrow. Hence, the learned Additional Public Prosecutor has prayed for dismissal of the Criminal Revision.
10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after detailed appreciation of the material and evidence brought on record. Section 397 of Cr.PC vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be well founded error which is to be determined on the merits of the individual case. It is also well settled that while considering the same, the revisional court does not dwell at length upon the facts and evidence of the case to reverse those findings.
11. The Hon'ble Supreme Court in the case Manju Ram Kalita v/s State of Assam, reported in (2009) 13 SCC 330 while dealing with scope of appreciation of evidence by Higher Court in Criminal Revision observed as follows:
" 9. So far as issue 1 is concerned i.e. as to whether the appellant got married with Smt. Ranju Sarma is a pure question of fact. All the three Courts below had given concurrent findings regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is settled legal proposition that if the Courts below have recorded the finding of fact, the question of re- appreciation of evidence by the third Court does not arise unless it is found to be totally perverse. The higher Court does not sit as a regular Court of appeal. Its function is to ensure that law is properly administered. Such a court cannot embark upon fruitless task of determining the issues by re-appreciating the evidence.
10. This Court would not ordinarily interfere with the Page No.# 6/9 concurrent findings on pure questions of fact and reveal the evidence again unless there are exceptional circumstances justifying the departure from the normal practice.....The position may undoubtedly be different if the inference is one of law from the facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure.
11.Thus it is evident from the above that this Court being the fourth Court should not interfere with the exercise of discretion by the Courts below as the said Courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth Court should not interfere even though we may exercise discretion differently had the case come before us initially. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of punishment on this count is required to be interfered with."
12. As per the settled legal position and after conviction by the trial court and the appellate court on filing the revision petition, the power of this Court is very limited. It is a settled legal proposition that if the Courts below have recorded the finding of fact, the question of re-appreciation of evidence by this Court as a third Court does not arise unless it is totally perverse.
13. In state of Orissa v/s Nakula Sahu reported in (1979) 1 SCC 328, it was held that the High Court should not have interfered with the concurrent findings recorded by the trial court and the Sessions Judge in exercise of revisional jurisdiction when there was no error of fact or law arrived at by the trial court or the Sessions Judge.
14. In state of Kerala v/s Puttumana Illah Jathavedan Namboodiri, reported in (1999) 2 SCC 452, it was held that the revisional jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the Page No.# 7/9 power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.
15. In state of Maharastra v/s Jagmohan Singh Kuldip Singh Anand and others (2004) 7 SCC 659, the Apex Court has been observed as follows -
"22. The revisional court is empowered to exercise all the powers conferred in the appellate court by virtue of the provisions contained in Section 401 Cr.PC. Section 401 Cr.PC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary in aid of power of superintendents or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 Cr.PC confers power on the High Court or Sessions Court, as the case may be for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court. It is for the above purpose, if necessary the High Court or Sessions Court can exercise all appellate powers. Section 401 Cr.PC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 Cr.PC, read together, do not indicate that the revisonal power of the High Court can be exercised as a second appellate power."
16. It is, therefore, well settled principle of law that the inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional juridisction should be exercised on a question of law. However, when a factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. (Vide Amit Kapoor v/s Ramesh Chander (2012) 9 SCC 460 ) Page No.# 8/9
17. Before appreciating the submissions of both the parties, I have gone through the evidence of the prosecution witnesses which disclose that accused Kalpana Das called the complainant/victim to her house on the date of incident and thereafter, he was restrained by all the accused petitioners and assaulted him with fists and blows causing simple injury on his person. On perusal of the evidence of the witnesses, this Court is of the view that the learned trial court and the first appellate court committed no mistake in holding all the accused petitioners guilty for restraining the way of the complainant and voluntarily causing simple hurt to the complainant/victim Joygopal Das in furtherance of common intention for the offence punishable U/S 323/342/34 IPC. Therefore, no case is made out for interference in finding of conviction as aforesaid in exercise of revisional jurisdiction.
18. So far as sentence is concerned, the revision petitioners were convicted and sentenced to pay fine of Rs.1000/- each for the offence U/S 323/342/34 of IPC on each count. The incident occurred on 06.06.2004, after that 20 years have elapsed since the date of incident, the memories of the incident would have become stale. Considering the socio-economic background of the parties, this Court is of the view that reduction in sentence of fine from Rs.2000/- each to Rs.500/- each for the offence U/S 323/342/34 of IPC would serve the ends of justice. Therefore, the revision petition is partly allowed on the ground of propriety of sentence and the sentence is modified as under -
a) The revision petitioners are directed to pay Rs.300/- each for the offence U/S 323/34 of IPC, in default, simple imprisonment for 1 month each.
b) The revision petitioners are also directed to pay Rs.200/-each for the offence U/S 342/34 of IPC, in default, simple imprisonment for Page No.# 9/9 20 days each.
19. The petitioners are directed to pay the fine amount as above before the Trial Court if not paid earlier.
20. With the above modification, the Criminal Revision Petition is disposed of.
21. Send back the trial court records.
JUDGE Comparing Assistant