Gauhati High Court
Smt. Sita Devi And Anr. vs Shri Shyam Singh And Ors. on 20 May, 1993
Equivalent citations: 1994CRILJ26
ORDER M. Sharma, J.
1. This revision petition has arisen against the order dated 25-9-1990 passed in Sessions Case No. 174(N-M)/87 (GR Case No. 475/85) under Section 302, I.P.C. (SIC) then Sessions Judge, Nagaon discharging the accused persons from indictment under Section 302/34, IPC and setting them at liberty.
2. The Sessions Judge by the impugned order discharged the accused respondents holding that after perusing the case record there found nothing incriminating against them. The order, as it transpires on its reading, is not a mere order of discharge but a full-fledged judgment of acquittal as if rendered on appreciation of evidence.
3. This two petitioners knocked the door for justice against the order of discharge of the accused by the Sessions Judge, Nagaon. Police registered the case and took up investigation in which it was revealed that the husband and father of the petitioner Nos. 1 and 2 respectively was killed on 26-4-1985 at about 10.30 p.m. at village Dakhin Vidyanagar and it was suspected that the accused opposite party members along with one Mura Singh (since deceased) murdered him upon which ejahar was lodged. Police examined as many as 35 witnesses and obtained expert report on the seized articles including hawai chappal and blood stained cloths and after closing of the investigation submitted a charge sheet against four accused persons, the respondents.
4. The investigation, report relied by the prosecution revealed the following:
(a) Statements of the witnesses.
(b) Presence of Manipuri gamocha and hawai chappal.
(c) Identification of three persons by sniff dogs engaged by police.
(d) Foot prints examination report of serologist.
With these materials in hand, coming to the order of the Sessions Judge, first glaring feature noticed, is that in his order, he picked up only one part, i.e. identification of the three accused persons by sniff dog, while keeping aside the other statement of the witnesses which were on record to make out a prima facie case.
5. The prosecution case, as it appears, was that at about 9.30 p.m. on the date of occurrence while the deceased Nanda Kishore was proceeding towards his shop house at Hojai Natun Bazar from his house through Tumpring Road the accsued respondents followed him and taking advantage of the darknesss caused by rain and storm murdered him on the road at about 150 yards away from his house. PW 1 Sita Devi, the widow of the victim, clearly stated in her statement before police under Section 167, Cr.P.C. that there was a dispute between the victim and the accused persons involving some land and that about a month ago from the date of murderr the accused persons threatened to kill the victim if he would not return the land in question and consequently the victim filed a case against the accused respondents under Section 107, Cr.P.C. It was also revealed that the son of Mura Singh (since deceased) along with two other persons went to the residence of the victim and threatened him with dire consequence if he do not return the land purchased by the victim from the said Mura Singh. The eldest son of the said Mura Singh, who is a police personnel, also visited the residence of the victim and similarly warned him with dire consequence and the statements of PW 1 was supported by PWs 2, 6 and 8. Immediately after the murder, hearing the sound at the place of occurrence, neighbouring people gathered there and found deceased lying in a pool of blood and the assailants also left a 'hawai' chappal and Manipuri gamocha at the place of occurrence. Admittedly there was no direct evidence/eye-witness to the occurrence. Police took the help of dog squad to trace the assailants and on the next day of occurrence with the help of the trained dog arrested the accused persons. PWs 11 and 12 stated before the police as well as before the Magistrate under Section 164, Cr.P.C. that on the day of occurrence at about 9.30 p.m. they met four persons waiting with arms on their hand at the place of occurrence and that those persons asked the witnesses to leave the place at once and they could know that those were Manipuri persons. PWs 17 and 20 are the police personnel and they stated that the dog trained for the purpose after taking smell of the Manipuri gamocha and the hawai chappal lying at the place of occurrence rushed to the residence of the accused persons and jumped over them at their house. PW 11 also stated before the police that on the day of occurrence at the relevant time when there was rain and storm he saw three persons waiting at the place of occurrence with the help of his torch and that those persons threatened him to leave the place at once. It was also revealed in the statement of those witnesses that one of those persons was wearing a Manipuri Gamocha on his head with weapon in hand and others were also armed with weapons. The PW 24 categorically supported the statement of PW 21. With these materials on record the learned Sessions Judge took up the case for framing charge. The learned Sessions Judge by his order dated 25-9-1990 discharged the accused persons and set them at liberty holding that there was nothing incriminating against the accused persons.
6. Heard Mr. K.K. Mahanta, learned Counsel for the petitioner and Mr. B.D. Das, learned Counsel for the accused respondents.
7. On perusal of the case diary, as stated in the order, the Sessions Judge did not find any circumstantial evidence against the accused persons and that perusing the evidence of the report by the Investigating Officer under Section 161, Cr.P.C. found nothing incriminating against the accused persons. After that he based his finding that the prosecution simply testified that the police dog entered the house of the accused persons and jumped on them and there was no evidence to show that the towel and chappal found near the place of occurrence belonged to any of the accused persons. Due to his non-application of mind to the seriousness of the offence complained of, the Sessions Judge failed to restrict his scrutiny within the limits of Section 239, Cr.P.C. He has given his finding relying on the decision of this Court in 1972 Cri LJ 362 which dealt with the evidentiary value of scent identification and he viewed that the dog jumped upon three persons and not merely two and the third man, namely, Asar has not been set up by the police and brushed aside that part of evidence at the stage of framing charge holding that the accused persons cannot be dragged into criminal prosecution merely on the basis of scent identification by the police dog. At the stage of framing of charge under Section 227/228 it is to see whether a prima facie case regarding the commission of certain offence is made out. The question whether the charges has been proved or not can be determined only after evidence is recorded in the case. By his order the Sessions Judge decided the case on merits without giving the prosecution an opportunity to adduce evidence against the accused. As submitted by Mr. Mahanta, learned Counsel for the petitioner that the glaring irregular side of this order was that when the learned Sessions Judge based his finding on the evidence of the scent dog he did not consider other evidence given by the witnesses particularly PWs 1, 2 and 3. Therefore, the petitioners who are the actual aggrieved persons preferred this revision before this Court to quash the glaring irregularity which has prejudiced them. The circumstances in which the persons has to file this revision petition is reasonable and sufficient. Petitioners are therefore, well founded in seeking the quashing of the order of the Sessions Judge. Whatever be the ultimate outcome of the case the Sessions Judge should have framed charge and take the case for trial instead of discharging the accused under Section 239, Cr.P.C. on the ground that there was nothing incriminating against the accused respondents. I also find that the order of the Sessions Judge suffers from some infirmities. The first error committed by him is failing to comprehend the offence on the basis of the evidence of the prosecution witnesses who categorically stated that they found the chappal and a Manipuri gamocha and that one of the accused persons was wearing the gamocha on his head at that relevant time. The view of the Sessions Judge that the dog jumped upon three persons including one 'Asar' by name, who has not been set up by the police is clearly wrong on the facts and circumstances as revealed during investigation. During investigation many things may come before the investigating agency and it is only in trial those things/ evidence can be sifted and examined for proper decision after trial. Another error committed by the Sessions Judge is in basing his order on surmise and assumption without recording any evidence. His conclusion that accused persons cannot be dragged into criminal prosecution merely on the basis of scent identification by police dog and it would be an abortive exercise to try the accused persons for a charge of murder is based on non-application of mind and the identification by police dog is a strong circumstance against the accused persons.
8. Mr. B.D. Das, learned Counsel for the respondent strenuously submitted that the order of discharge did not call for quashing by this Court. He submitted that while the prosecution failed to identify the accused persons no case could proceed on mere allegation of the petitioners. He also pleaded that having regard to the long interval of the time that has occurred respondents may be spared with ordeal of a fresh trial and even if a trial would held the evidence adduced by the prosecution would not likely to result in conviction and their trial would only be a futile exercise.
9. As discussed above I restrain myself from expressing any opinion on the submissions as they will attach upon the merits of the case which can he judged only after evidence which will be recorded in the trial. The delay was not occurred due to the lapse of the aggrieved parties. The respondents in their zeal and anxiety to get the order of discharge at the threshold itself over reach in canvassing that the accused respondents are not guilty and claimed to be discharged. When there is glaring error on the face of record the court in revision/appeal cannot avoid the injustice appearing on the face of record, only on the ground that long interval of time will affect the case. As stated above I have not expressed any opinion so that it cannot affect the merit of the case.
10. In view of the facts and circumstances and glaring error committed by the Sessions Judge which prejudiced the aggrieved persons I direct the case to be restored to file for being proceeded further in accordance with law. It is made clear that none of my observations in this judgment should be construed as any expression on the merits of the case. It is further directed that after framing the necessary charges the Sessions Judge should try to conduct the trial expeditiously, if possible within two months from receipt of this direction.
11. In the result the petition is allowed. Petition allowed.