Gauhati High Court
The State Of Assam vs Rakhi Mia And Ors on 20 March, 2012
Author: A.K. Goel
Bench: A.K. Goel
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur,
Tripura, Mizoram and Arunachal Pradesh)
Crl. Appl 332/2003
The State of Assam,
.... Appellant
Versus
1. Shri Pakhi Miyan,
2. Shri Fakrul Islam,
3. Shri Faizul Haque and
4. Shri Tuta Miyan
...Respondents
BEFORE THE HON'BLE THE CHIEF JUSTICE MR. A.K. GOEL THE HON'BLE MR. JUSTICE C.R. SARMA For the appellant : Mr. K. A. Mazumdar, Addl. P.P. For the respondents : None Date of hearing : 23/1/2012 Date of judgment and order: 20.03.2012 2 JUDGMENT AND ORDER (CAV)
1. This appeal, against acquittal, has been preferred by the State against the judgment and order, dated 5/6/2003, passed by the learned Additional Sessions Judge (Adhoc), Karimganj, in Sessions Case No. 13/2002.
We have heard Mr. K. Mazumdar, learned Public Prosecutor, appearing for the State appellant. None appears for the respondents.
2. An FIR lodged by Shri Sailesh Ch. Nath, on 29/8/2000 with the Officer in Charge, Karimganj Police Stations has given rise to Sessions Case No. 13/2002 aforesaid.
The prosecution case, as revealed at the trial, is that, on 26/8/2000 at about 8.30 P.M., Smt. Sabita Nath (herein after called the deceased), a niece of the first informant aforesaid was returning home, from the house of Shri Gauranga Mahanta, a priest of the village. She was way laid and assaulted by Mr. Pakhi (servant of Fakrul), on her head with a lathi. Despite attempts made by the villagers, no settlement could be reached between the parties. However, the deceased was found missing from the morning of 29/8/2000. Subsequently, the deadbody of the deceased was found lying inside the "murta ban" (cane bush), on the bank of the pond of Mr. Fakrul. On being informed, police visited the place of occurrence and conducted inquest in respect of the dead body. On receipt of the said FIR, police, initially, registered a case under sections 325/34 IPC and at the close of investigation, police submitted charge sheet, under sections 376/302/201/34 IPC, against the respondents namely Mr. Fakrul Islam, Mr. Faizul Islam, Mr. Tuta Miya and Mr. Pakhi Mia alias Makbul Ali.
3The learned Sessions Judge framed charges against the said accused persons, under sections 302, 201 read with section 34 IPC. The charges were read over and explained to the accused persons, to which they pleaded not guilty.
3. In order to prove their case, the prosecution examined as many as 9 witnesses including the Medical Officer (PW6) who performed the autopsy of the dead body, the Investigating Police Officers (PW8 and PW9) and the Executive Magistrate (PW7), who accompanied the police to the place of occurrence at the time of seizure of a rope vide Exhibit No. 4. Four more witnesses were examined as Court witness i.e. C.W.1, CW2, CW3 and CW4. At the close of the examination of the prosecution witnesses, the accused persons were examined under section 313 Cr.P.C. They denied the allegations, brought against them. The defence examined one defence witness.
4. Considering the evidence on record, the learned Sessions Judge came to the findings that the prosecution failed to prove the charges, brought against the accused persons, beyond all reasonable doubt. Accordingly the accused persons were acquitted and set at liberty.
Aggrieved by the said order of acquittal, the State, as appellant, has come up with this appeal, seeking reversal of the impugned order of acquittal.
5. Mr. Mazumdar, learned Additional PP, taking us through the evidence, on record, has submitted that the learned Trial Judge failed to properly appreciate the evidence, more particularly the extra judicial confession, the confession leading to discovery of the dead body and the incriminating statement made by the deceased involving the appellant Mr. Pakhi Miya. It is submitted that the learned Trial Judge committed error and illegality by recording order of acquittal, despite existence of 4 sufficient materials against the respondents. The learned Additional Public Prosecutor has submitted that this is a fit case requiring reversal of the impugned order of acquittal.
6. There can be no dispute that once an accused person is acquitted by a court of law, after full trial, presumption of his innocence is fortified. Such acquittal can be interfered with if it can be shown that there was non-consideration of evidence or material on record, by the court resulting miscarriage of justice. Though the appellate court has the jurisdiction to re-appreciate the evidence, it shall not substitute its view, if the view taken by the trial court is found to be reasonable.
7. The law and the principles of interference by the appellate court in an appeal against acquittal, have been laid down in a catena of decisions.
An appellate Court, while dealing with an appeal against acquittal preferred under section 378 Cr.P.C., may, for want of such sufficient material, in exercise of its powers under section 386(a) Cr.P.C., refuse to interfere with the acquittal and dismiss the appeal or may reverse such order and direct further enquiry or re-trail as the case may be, or find the accused guilty and pass sentence against him according to law.
In the case of Sambhaji Hindurao Deshmukh versus State of Maharashtra; reported in (2008) 11 SCC 186, Hon'ble Supreme Court, observed as follows:
"While the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the acquittal by the learned trial Court unless there are strong reasons based on evidence which can dislodge the findings arrived at by the trial court, which were the basis for the acquittal. The High Court has to give due importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will 5 interfere in appeals against acquittals, only where the trial Court makes wrong 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 reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt."
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 Court observed as below: -
"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 interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs though the web of administration of justice in criminal cases is that if two views are possible on the evidence 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 justice 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 admissible evidence is ignored, a duty is cast upon the appellant court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offences or not (see Bhagwan Singh versus State of MP). The principle to be followed by the appellate Court considering the appeal against the judgment of acquittal is to 6 interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference."
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 conclusion on such evidence in consonance with the principles of criminal jurisprudence. While deciding the case of Sonmoni @ Prasanta @ Santanu Bordoloi versus the State of Himachal Pradesh, reported in AIR 1973 SC 2773, held that the Court has to hold the balance of justice evenly and ensure that a fair opportunity is afforded 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 hold 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: -
"It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system; much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent 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 possible, 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 7 system of the administration of criminal justice. Such a risk can be minimised but not rule out altogether."
In the case of State of Goa versus Sanjay Thakran; reported in (2007) 3 SCC 755, the Hon'ble Supreme Court observed as follows:
"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 record to find out if any of the accused is connected with the commission of the crime he is charged with."
8. Carefully perusing the impugned judgment and order, we find, that the prosecution has relied on the following evidence, revealed by the witnesses.
(i) oral evidence given by the deceased regarding the assault caused to her by the appellant Mr. Pakhi Miya,
(ii) the recovery of the dead body of the deceased near the pond of appellant, Mr. Fakrul, on being led by him,
(iii) recovery of a rope from the cow shed of Mr. Fakrul/Faizul at the instance of Mr. Pakhi Miya.
The learned trial Judge has refused to accept the said evidence put forward by the prosecution.
9. Keeping in mind the above principles of law and to examine the correctness 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 8 PM, arriving at his home, he found the deceased sitting in the varandah. He also found Mr. Pramath Nath (CW1), Mr. Abdul Gani (DW1), Mr. Binoy Nath(PW4) and Mr. Subhas Nath(PW3) sitting in their courtyard and came to know that Mr. Pakhi Miyan had used filthy language to the deceased and kicked on her back from behind, on her way from the house of Shri Gauranga 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 was informed that Smt. Sabita Nath, on being so attacked, had raised alarm and many persons, from the neighbourhood, had gathered. This witness further stated that 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 "murta ban"
(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 late Sabita Nath did not disclose anything except saying that she was assaulted by Mr. Pakhi Miyan.
From the above evidence of PW1 nothing, except the causing assault, by Pakhi Miya, on the evening of 26/8/2000, is found against the respondents i.e. the accused persons.
10. Smt. Sukriti Nath, mother of the deceased, deposed as PW2. She stated that the deceased had informed her that Pakhi Miyan and 2/3 others, whom she could not recognise, had assaulted her. In tune with the evidence of PW1, this witness also stated that a village meeting was held for reaching an amicable settlement of the matter but Mr. Fakrul, in whose house Pakhi Miyan was working, refused to bear the cost of treatment of the 9 said victim. According to this witness, though Tuesday was fixed for final decision of the meeting, the deceased was 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 stated 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. Supporting 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 "murta ban" (cane bush). He was also a witness to the inquest report (Exhibit 3). Though 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 of 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 point. PW3, further stated that accused Mr. Pakhi Miyan, on being brought by Police, putting handcuff, had in presence of all the persons, confessed that, when Sabita had gone out for attending natures call, he along with Fakrul, Faizul and Tuta Miyan had forcibly taken her to the western boundary of their house and killed her. He also stated that Pakhi Miyan had disclosed that they had strangulated her to death. According to 10 this witness, Pakhi Miyan had produced a jute rope (about 3 cubits in length) from the home of Fakrul, which they had used to strangulate the deceased.
From the evidence of this witness, it appears that the said extra judicial confession 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, police, 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 that, on being asked by police, Fakrul had shown the dead body of Sabita in the midst of "murta ban" (cane bush) near the pond.
From the evidence of this witness, it is found that the said extra judicial confession was made in presence and custody of the police.
13. Shri Satyendra Nath, uncle of the deceased, deposing as PW5, stated 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 evening. He further stated that Pakhi Miyan also confessed that he, along with Fakrul, Faizul and Tota Miyan, had killed the deceased by strangulation with a rope. 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, regarding recovery of the rope, at 11 the instance of Pakhi Miyan. From the evidence of this witness also, it is found that the confession was made in presence and custody of police.
14. Dr. Subrata Kr. Das, PW6 conducted the post mortem examination of the deceased on 1/9/2000 at 2.45 P.M. at Karimganj Civil Hospital. He found the following injuries in respect of the dead body.
Injury No. 1: Haematoma on the forehead over the frontal area size 2"x1".
Injury No. 2: Lacerated injury over the right mastoid region.
Size 2"x1"xbone deep. Multiple fractures of skull present.
Injury No. 3" Lacerated injury on the front of the neck.
Size1"x1/2"x muscle deep. Blood vessels are cut. Injury No. 4: Ecchymosis on the right side of the chest on the lower part size 2"x1".
2. Cranium & Spinal cannel:
(a) Scalp, skull, vertebrae: In the frontal region of the scalp haematoma was present. Size 2"x1" Lacerated injuries on the right mastoid region was also present. Seize 2"x1"xbone deep.
Multiple fractures of right mastoid bone.
(b) Membrane: Torn at the mastoid region.
(c) Brain & spinal cord: Clotting of blood in the frontal region of brain and also in the right mastoid region of the brain.
3. Thorax
(a) Walls, ribs and cartilages: walls found swollen and ribs healthy.
(b) Pleurae:Swollen
(c) Larynx and trachea: These were found swollen.
12(d) Right and left lung: Both are swollen and pale.
(e) Pericardium is also found swollen.
(f) Heat: Found swollen and empty.
(g) Vessels found empty.
4. Abdomen:
(a) Walls found swollen.
(b) Peritoneum swollen and pal.
(c) Mouth, pharynx, oesophagus were found swollen and plae.
(d) Stomach swollen and empty.
(e) Small intestine was swollen and empty.
(f) Large intestine was found swollen and empty.
(g) Liver found softened and flabby. Appearance is honeycombed.
(h) Spleen swollen and soft.
(i) Kidneys swollen.
(j) Bladder found swollen and empty.
(k) Organs of generation-external and internal was found pale uterus was found non-pregnant.
The Medical Officer opined that death of the deceased was due to shock and haemorrhage resulting from injuries.
15. Shri Bhaskar Das, Executive Magistrate, deposing as PW7 stated that, on 5/9/2000, he, along with Police staff, visited the place of occurrence and took Pakhi Miyan to the place, where the deceased was killed. According to this witness, accused Pakhi Miyan had brought out a rope from the cowshed of Fakrul and disclosed that the said rope was used in causing the death of Sabita. He was a witness to the seizure of the rope, which was seized vide Exhibit 4. He expressed ignorance about the place from where police had brought Pakhi Miyan. The said Executive Magistrate (PW7), who accompanied the police, stated about recovery of the rope, at the instance of Pakhi Miyan from the 13 cowshed of Fakrul, did not whisper regarding the confessional statement alleged to be made by accused Pakhi 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 Post. According to this witness, he recovered the dead body from the "murta ban" (cane bush) near the pond of Fakrul. He stated that, PW3 did not tell him that, on being asked by Police, Fakrul had shown the dead body inside the "murta ban" (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 of the accused persons. He was also silent about the confessional statement, if any, made by Pakhi Miyan or Fakrul. Admittedly, the accused person was taken by the police to the place occurrence. If the said accused has really made any confession, there was no reason, for the PW7, to remain silent on such vital point. His silence, in this regard raises doubt about the confession itself.
16. PW9 is Nitai Chand Singh, who was the Officer-in- Charge of the Police Station, also stated that accused Pakhi Miyan led him to the place where the 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 Miyan, 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 PW8. 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 14 place of occurrence disclosed as to how and where she was killed. He did not state anything regarding discovery of the dead body at the instance of Fakrul. Admittedly this witness took up the investigation after the discovery of the dead body by PW8. If the dead body was discovered at the 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 dead body at the instance of Fakrul, raises doubt about the veracity of the prosecution version that Fakrul had led Police to the recovery of the dead body. The evidence of PW8 belies the statements given by PW2, PW3, PW4, PW5 and PW7 regarding the confessional statement made by Pakhi Miyan and leading to the discovery made 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 prescribed 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 exaggerated 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 village meeting was held, in which Fakrul refused to bear the cost of medical treatment of the deceased. This witness also stated that CW2 was a responsible person 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 deceased 15 had informed them, in the meeting, that accused Pakhi Miyan, after assaulting 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 heard Sabita, did not whisper regarding attempt of rape. This is a new story, revealed by CW4, which is not supported by others. Hence, it is found that this witness has the tendency of exaggerating the matter. Hence we do not find it safe to 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 persons. He also stated that, on being asked, the deceased expressed her inability to recognise the assailant. According to this witness, CW2 was also present at the time of finding the deceased. CW2 supporting the evidence of DW1 stated that the deceased could not recognise the assailant. Though DW1 was duly cross-examined, on behalf of the prosecution, no incriminating material could be elicited against the appellant.
18. From the above discussed evidence, it is found that PW1, PW2, PW3, PW4 and CW4 stated that the deceased, in presence of CW2, CW3 and DW1, disclosed that she was assaulted by Pakhi Miyan, on 26/8/2000, but CW2, CW3 and DW1 did 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 persons 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 and PW4 are members of the deceased's family and PW7 is her paternal uncle. Though all of the said members of the same family stated that the deceased had told them that she was 16 assaulted by Pakhi Miyan, we find no reason to disbelieve the CW2 and DW1, who were independent witnesses and appeared in the place of occurrence, just after the incident and also attended the village meeting. They did not whisper anything incriminating against Mr. Pakhi Miyan. The CW2 and DW1 contradicted the evidence of the said witnesses. Therefore, it is doubtful if the deceased had disclosed about the involvement of Pakhi Miyan in connection with the assault.
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 judicial confession, by Pakhi Miyan, before PW3, PW4, PW5 and PW7, he was in the custody of the police. Therefore, the extra judicial confession, alleged to be made by 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 confession, even if made by Pakhi Miyan, cannot be accepted as legal evidence.
20. Another point raised, on behalf of the appellant, is that the incriminating rope, which was used by the appellants in killing the deceased, was recovered, on being shown by the appellant Pakhi Miyan. Except the said confessional statement, made by Pakhi Miyan, there is no other substantive evidence to show that the said rope, was used in causing the death of the deceased. We have already noticed that the alleged extra judicial confessional statement has been made by Pakhi Miyan, during his custody with the police and as such the same, being hit by Section 26 of the Indian Evidence Act, cannot be used as evidence. Therefore, his statement that the said rope was used by them in causing the death of the deceased cannot be accepted as legal evidence. The recovery of the rope, unless, involvement 17 of the appellants is proved, cannot itself lead to the conclusion that the appellants had caused the death of the deceased.
21. Carefully perusing the evidence on record, we find that the learned Trial Judge, has meticulously scrutinised the evidence and arrived at the findings, by a reasoned judgment that the prosecution failed to prove the case against the appellants beyond all reasonable doubt.
22. In view of the above discussion, we are of the considered opinion that the view, taken by the learned Trial Judge, does not suffer from any perversity or illegality requiring interference. Law is well settled that in criminal 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 which is favourable to the accused should be accepted. Therefore, in the absence of any compelling and substantial reason for interfering with the impugned judgment and order, we are inclined to uphold the view taken by the learned Trial Judge.
In the light of what has been discussed above, we do not find any 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.
JUDGE CHIEF JUSTICE RA