Gauhati High Court
Harej Ali vs The State Of Assam & Ors on 2 May, 2016
Bench: A.K. Goswami, Indira Shah
1
GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH )
Crl. Appeal No. 54/2011
Harej Ali
S/O late Kurpan Ali
Village: Ag-gumi, P.O: Ag-Gumi
P.S. Chhaygaon
Dist. Kamrup (Assam)
- Appellant
-Versus-
1. The State of Assam
2. Md. Kala Ali, S/O Late Sallis Ali
3. Md. Isuf Ali, S/O Late Sallis Ali
4. Md. Sonful Ali, S/O Late Sallis Ali
5. Md. Bahar Ali, S/O Late Nazir Ali
6. Md. Abul Ali, S/O Late Akbar Ali
7. Md. Sundar Ali, S/O Late Sallis Ali
Respondent Nos. 2 to 7 are the residents
of Viil: Ag-Gumi, P.O. Ag-Gumi,
P.S. Chhaygaon, Dist. Kmarup (Assam).
- Respondents
BEFORE
HON'BLE MR JUSTICE A.K. GOSWAMI
HON'BLE DR (MRS) JUSTICE INDIRA SHAH
For the Appellant : Mr A.I. Uddin, Advocate.
For the Respondent Nos.2 to 7 : Mr AK Bhattacharjee,
Sr. Advocate,
Mr B.M. Chowdhury, Advocate.
For the State respondent : Mr KA Mazumdar,
Addl. Public Prosecutor, Assam.
Date of hearing & judgment : 02.05.2016
JUDGMENT AND ORDER
(ORAL)
(By A K Gowsami, J) Heard Mr A.I. Uddin, learned counsel appearing for the appellant. Also heard Mr A K Bhattacharjee, learned Senior Counsel assisted by Mr B M Chowdhury, learned counsel Crl. A. 54/ 2011 2 appearing for the respondent Nos. 2 to 7 as well as Mr KA Mazumdar, learned Additional Public Prosecutor, Assam appearing for the State respondent.
2. This is an appeal preferred by the appellant under Section 372 of the Code of Criminal Procedure, 1973 against the Judgment and Order dated 14.05.2010, rendered by the learned Addl. Sessions Judge (FTC) No. 2, Kamrup acquitting the respondent Nos. 2 to 7 in Sessions Case No. 171(K)/2003.
3. One Md Harej Ali lodged an FIR on 19.07.1999 before the Officer In-charge, Chhaygaon Police Station informing that at about 12-30 A.M. while he was sleeping in his house, on hearing something being pulled away from the front courtyard of his house, he got up from the bed and saw two persons trying to take away a piece of timber kept in the out-house. Seeing that, he suspected them as thieves and awakened his sons, namely, Tayab Ali, Allauddin Sheikh and Abdul Mazid and went in search of the thieves. They found Kala Ali and Bahar going out from his compound and when his sons intercepted them in front of his house, they inflicted grievous injury to his sons by stabbing them with sharp weapons. In the meantime, brothers of Kala Ali, namely, Isuf Ali, Sundar Ali, Sonful Ali and another person, Abdul Ali, arrived there and all of them assaulted Tayab Ali and thereafter took him to the house of Kala Ali whereupon he was tied up and confined. His two daughters, namely, Ms Rupjan Nessa and Ms Tahiron Nessa having proceeded to the road to enquire about the incident, were also assaulted by the accused persons. He later on went to get his son Tayab Ali back from the house of Kala but the accused persons restrained him. Later on, at about 2-30 A.M., he got his sons admitted in Gobordhan Hospital with the aid of police personnel but Tayab died within 15 minutes of his arrival at the hospital and his other two sons were undergoing treatment.
4. Based on the aforesaid FIR, Chhaygaon Police Station case No. 114/1999 under Section 147/148/326/325/302 IPC was registered. On completion of investigation, charge sheet was submitted against all the accused persons under Section 147/148/324/323/380/511/302 IPC and the case being exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and on receipt of the case on commitment, learned Sessions Judge transferred the case to the court of learned Addl. Sessions Judge, (FTC) No. 2, Kamrup for disposal wherein Sessions Case No. 171(K)/2003 was registered.
5. On receipt of the case on transfer, the learned Addl. Sessions Judge(FTC) No. 2, Kamrup, on perusal of records and after hearing the parties, framed charge U/s. 148/324/302/149 IPC against the accused persons. The charges, so framed, on being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried.
Crl. A. 54/ 2011 36. During trial, prosecution examined eleven witnesses. Defence also examined three witnesses.
7. PW 1, Harej Ali, is the informant. PW 2, Md. Allauddin Seikh, is his son. PW 3, Ms. Rupjan Nessa, and PW 7, Ms. Tahiron Nessa, are his daughters. They all claimed to be eye witnesses to the occurrence. PW 4 (Farej Ali), PW 6 (Md. Ziad Ali), PW 8 (Chenimala Bibi) and PW 9 (Abul Kasem Ali) are co-villagers. PW 5 is Dr. Deba Ranjan Das who had examined Tayab Ali, PW 2, Md. Alauddin Seikh and Abdul Mazid. PW 10 Dr. Pratap Ch. Sarmah conducted post- mortem examination upon the dead body of Tayab Ali. PW 11 Sri Sadananda Konwar is the Investigating Officer (I.O.) of the case. Defence evidence was in the form of evidence of Faizulla Seikh as DW 1, Hamid Chowdhury as DW 2 and accused Sundar Ali as DW 3.
8. On consideration of the evidence on record, the learned trial court had acquitted all the accused persons of the charges and hence this appeal.
9. Mr A. I. Uddin, learned counsel for the appellant has submitted that the impugned judgment was rendered by the learned trial court on perverse appreciation of evidence on record and, more particularly, ignoring positive evidence of PWs 2, 3, 4 and 7. He has submitted that two incidents had taken place on the night of occurrence but the learned court below had treated both the incidents to be one single incident and therefore, the entire basis of the judgment is vitiated. He has also submitted that prosecution evidence has unequivocally demonstrated that Tayab Ali was tied up in the house of Kala Ali and the aforesaid fact having also been admitted by DWs 1 and 2, it is self-evident that the prosecution was able to prove the guilt of the accused persons beyond reasonable doubt. However, the learned trial court was unduly persuaded to take a contrary view on the basis of the Judgment rendered in GR Case No. 3210/1999 wherein PW 2, Allauddin, and Mazid were convicted under Section 324 IPC in respect of an incident which had taken place on the very same night of the present occurrence at a prior point of time. It is submitted by him that merely because PWs 1, 2, 3 and 7 happened to be related to the deceased, could not have been a ground to nullify their testimony taking them to be interested witnesses, though, in the facts of the case, they were natural witnesses. On the aforesaid premises, he has submitted that acquittal of the respondent Nos. 2 to 7 was wholly unwarranted. In support of his submissions, learned counsel for the appellant has placed reliance on the following Judgments of the Hon'ble Apex Court: N am deo -Vs- State of M aharashtra , reported in (2007) 14 SCC 150 , Bathula Nagam allesw ara R ao and Others
-Vs- State of Andhra Pradesh , reported in (2008) 11 SCC 722, Him m at Suk hadeo W ahurw agh and Others -Vs- State of M aharashtra , reported in (2009) 6 SCC 712 and Habib -Vs- State of Uttar Pradesh , reported in (2013) 12 SCC 568 .
Crl. A. 54/ 2011 410. Argument of Mr A. I. Uddin is controverted by Mr A.K. Bhattachrajee, learned Senior counsel appearing for the accused respondent Nos. 2 to 7. He has, at the first instance, dealt with the scope and ambit of the power of the appellate court in an appeal against acquittal. He has submitted that a judgement acquitting the accused can be interfered with if there is failure of justice on the ground of omission on the part of the court to take note of evidence on record in its correct perspective or wrong application of principles of law or perverse appreciation of evidence on record. The learned Senior counsel submits that the appellate court ought not to substitute its view for the view taken by the learned trial court if the view taken by the learned trial Court is a reasonable and a possible view. It is submitted by him that by no stretch of imagination can it be said that the judgment of the learned trial court is unreasonable or perverse inasmuch as on scrutiny of the evidence on record, the learned trial court had come to the conclusion that there are serious infirmities in the prosecution case which makes the defence case more probable. He has submitted that the prosecution had suppressed the injury sustained by Kala Ali and Sundar and it is an established proposition of law that the prosecution has to explain the injuries sustained by the accused and in absence of any explanation, the prosecution case becomes susceptible to doubt. In this connection, he has submitted that evidence of PW 1 goes to show that there was only one incident on the fateful night and in the said incident PW2 and Abdul Mazid were convicted in GR Case No. 340/1999, and in absence of any appeal filed against the judgment in GR Case No. 3210/1999, the same has attained finality, which cannot be simply wished away. He has submitted that the evidence of PW 6 and PW 9 testifies that a large gathering had assembled and public had beaten up Tayab. In the face of such evidence, the learned trial court has rightly acquitted the respondent Nos. 2 to 7. He has also urged that presumption of innocence of the accused persons is bolstered with the order of acquittal rendered by the trial court and such order of acquittal should not be lightly interfered with. Mr Bhattacharjee has placed reliance on the judgments of the Apex Court in the cases of Asaram Vithalsingh Pardeshi and Another -vs- State of M aharashtra , reported in (1970) 3 SCC 456 , R am aphupala R eddy and Others -vs- the State of Andhra Pradesh , reported in (1970) 3 SCC 474 , Lak shm i Singh and Others -vs- State of Bihar, reported in (1976) 4 SCC 394, Ram Sw arup and Others -vs- State of R ajasthan, reported in (2004) 13 SCC 134 , Gangabhavani -vs- R ayapati Venk at R eddy and Others , reported in (2013) 15 SCC 298 , Rabindra Kum ar Dey -vs- State of Orissa, reported in AI R 1977 SC 170 .
11. Mr K. A. Mazumdar, learned Addl. Public Prosecutor has submitted that on the basis of the evidence on record, the learned trial court was justified in acquitting the accused persons and no interference with the impugned judgment is called for.
Crl. A. 54/ 2011 512. At the outset, it will be appropriate to examine the scope and power of the appellate Court in an appeal against an order of acquittal.
13. In R amaphupala (supra), the Apex Court summarized the legal position to the following effect:
(i) An appellate court has full powers to review the evidence upon which the order of acquittal is founded.
(ii) The different phraseology used in the judgments such as-"substantial and compelling reasons", "good and sufficiently cogent reasons", "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal but should express the reasons in its judgment which led it to hold that the acquittal was not justified. If two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the findings of the learned trial court.
14. In Asaram (supra), the Apex Court had reiterated that the appellate court should consider every one of the grounds taken into consideration in favour of the accused by the trial court before setting aside his acquittal and further bear in mind that the trial judge had the benefit of seeing the witnesses.
15. In R am Sw aroop (supra), it was emphasized by the Apex Court that the High Court ought not to interfere with the order of acquittal merely because it is possible to take a contrary view. It is not as if the power of the High Court in any way is curtailed in appreciating the evidence on record in an appeal against acquittal, but having done so, the High Court ought not to interfere with an order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse.
16. In Him m at (supra), the Supreme Court held that where the judgment of the trial Court is based on a complete misreading of the evidence and a view in favour of the accused was not justified and only one view with regard to culpability of the accused was possible, the High Court would be failing in its duty if it did not interfere.
Crl. A. 54/ 2011 617. In Gangabhavani (supra), the Apex Court has reminded that there are limitations while interfering with an order against acquittal as presumption of innocence of an accused is bolstered by the acquittal rendered by the trial court.
18. The position that has emerged with regard to the power of an appellate court while considering an appeal against acquittal is that the appellate court has the power to reappraise the evidence on record to come to its own conclusion. While doing so, it has an obligation to consider each and every matter on record having a bearing on the questions of fact and the reasons assigned by the court below in support of the order of acquittal. If two views are reasonably possible on the basis of the evidence on record, the view which is favourable to the accused must be preferred. If the view taken by the trial court while acquitting the accused is a possible and reasonable view, the High Court ought not to interfere with such an order of acquittal only because of the fact that it is possible to take a contrary view. It is only in cases where the findings recorded by the trial court are manifestly erroneous, contrary to the evidence on record or perverse, it is open to the appellate court to interfere with the order of acquittal. This necessarily goes to show that interference with the orders of acquittal cannot be resorted to in a routine manner.
19. It will be appropriate to advert to the reasoning assigned in support of the order of acquittal. The learned trial court noted that PW 2 Allaudin Seikh and Abdul Mazid were convicted in GR Case No. 3210/1999 with regard to the incident that occurred on 19.07.1999, wherein the deceased Tayab was also an accused and that in such circumstances, possibility of false implication of the accused persons in the case cannot be ruled out. The trial court noted that PW 2 Allaudin Seikh and Abdul Mazid were convicted for the offence under Section 324 IPC when they had tried to commit theft in the house of Kala Ali and, in the process, had assaulted Kala Ali and Sundar. The learned trial court also noted that PWs 1, 2, 3 and 7 belong to the same family and they are interested witnesses and that there was inimical relationship between the deceased and accused persons. The learned trial court took note of the discrepancies in the depositions of PWs 1, 2, 3 and 7.
20. At this juncture, it will be relevant to recapitulate the law with regard to the interested witnesses. A witness who is a relative of the deceased or victim of a crime cannot be characterized as "interested". The term "interested" postulates that the witness has some direct or indirect "interest" in having the accused somehow or other convicted due to animus or for some other oblique motive. It is clear that a close relative cannot be characterized as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinized carefully. Close relationship of witness with the deceased or victim is no Crl. A. 54/ 2011 7 ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. [See Namdeo (supra)].
21. It is now well settled that mere relationship of the witnesses cannot be the sole basis to discard or disbelieve their evidence if it is otherwise found to be believable or trustworthy. However, when the court has to appreciate the evidence of any interested witness it has to be very careful in weighing their evidence. In other words, the evidence of an interested witness requires greater care and caution while scrutinizing his evidence. The court has to address itself whether there are infirmities in the evidence of such a witness; whether the evidence is reliable or trustworthy and whether the genesis of the crime unfolded by such an incident is probable or not. If the evidence of any interested witness or a relative on a careful scrutiny is found to be consistent and trustworthy or believable, free from any infirmities or any embellishment, there is no reason not to place reliance on the same. Testimony of interested witness, thus, cannot be rejected on the sole ground of interestedness, but should be subjected to close scrutiny, which, in other words, means that relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. Mechanical rejection of the evidence on the sole ground that it is interested would invariably lead to failure of justice. The truth or otherwise of the evidence has to be weighed pragmatically. [Bathula (supra), Habib (supra), Himmat (supra)]
22. It is platitude to say that the evidence has to be weighed and not counted since quality matters more than quantity in human matters and it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. Section 134 of the Evidence Act does not prescribe that any particular number of witnesses shall be required in any case for the proof of any fact. It may be possible, therefore, to rely on a solitary witness and record conviction if the evidence of such witness is found to be reliable, credible and wholly trustworthy although as a rule of prudence, court may look for corroboration.
23. In Lak hsm i Singh (supra), the Apex Court had stated non-explanation of injuries on the accused by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been suppressed.
24. As held in R abindra K umar (supra), prosecution cannot derive any strength or support from the weakness of the defence case. The prosecution has to stand on its own Crl. A. 54/ 2011 8 legs, and if it fails to prove its case beyond reasonable doubt, the entire edifice of the prosecution case would crumble down.
25. In his evidence, DW 3 had exhibited the judgment rendered in GR Case No. 3210/1999 as Ext. A. In the said case, the respondent Nos. 2 and 7 were examined as PW 1 and PW 2. A perusal of the aforesaid judgment goes to show that the deceased Tayab Ali was climbing the store room of Kala Ali where paddy was kept and, in such an attempt to commit theft of paddy, Tayab Ali was caught and, then, Allaudin and Mazid entered into their house and they assaulted him with sharp weapon. At that time, the accused respondent No. 7 arrived on the spot and he was also assaulted and the local people had shifted them to a hospital in Chhayagaon. Tayab Ali was caught red handed. The learned trial court had recorded a finding that the occurrence had taken place in the courtyard of the informant of the said case, namely, Kala Ali, the accused respondent No. 2 herein.
26. Mr. A. I. Uddin, learned counsel appearing for the appellant had tried to emphasize that there were two incidents by referring to the time indicated in the respective ejahars lodged. While in the ejahar filed by Kala Ali, the time was indicated to be around 11/12 O'Clock, in the ejahar filed by PW 1 Harej Ali, the time of incident was mentioned to be around 12-30 A.M. In both the ejahars, different versions were sought to be given. We have already noted that the case registered on the basis of ejahar lodged by Kala Ali resulted in conviction of two accused persons. In the ejahar lodged by PW 1 Harej Ali, the incident of theft was sought to be shifted to his residence and it was projected that Kala Ali and Bahar, respondent Nos. 2 and 5 herein, were intercepted by Tayab and his other two sons. Thereafter, the other respondents had arrived and had assaulted Tayab Ali and, then, had taken him to the residence of Kala Ali. We must record at this stage that neither prosecution nor defence pointed out before the learned trial court in GR Case No. 3210/1999 that with regard to the same incident another ejahar had been lodged. Defence had not even given any suggestion that during such incident Tayab Ali had died. As a result, the cases were tried in the different courts: one in the court of learned Addl. Chief Judicial Magistrate, Kamrup, and the other in the court of learned Sessions Judge (FTC) No. 2, Kamrup.
27. We are unable to appreciate the contention of Mr. I. A. Inamuddin that there were two separate incidents inasmuch as PW 1, in his cross-examination, had categorically stated that Kala Ali had filed a case against his sons in connection with the same incident. If that be so, the finding of the trial court in GR Case No. 3210/1999, in absence of any challenge thereto, has attained finality and such judgment cannot be ignored. The learned trial court rightly took into account the judgment rendered in GR Case No. 3204/1999. Therefore, the Crl. A. 54/ 2011 9 evidence of prosecution witnesses in the instant case has to be considered keeping in mind the findings recorded in GR Case No. 3210/1999.
28. Let us first take a look at the evidence of PW 6 and PW 9, who are no way connected to the parties. In his evidence, PW 9 had stated that hearing people shouting "thief, thief", he woke up and proceeded towards the direction from which the hue and cry was coming and accordingly reached the place of occurrence. He saw that a lot of people had gathered there and Tayab had been kept tied up at the verandah of the house of Kala Ali. He had seen bleeding injuries on the person of Kala Ali and Sundar and they had sent Kala and Sundar to Gobardhan Hospital, Chhaygaon. He had stated that people assaulted Tayab a little and after a while police had arrived there and had taken Tayab away. He has categorically stated that he did not see the accused persons assaulting Tayab and in his cross-examination, he had stated specifically that more than 100 people had gathered there.
29. PW 6 had stated that at the request of PW 1 he had gone to Kala Ali's residence. When he had gone to Kala Ali's house, he found Tayab being kept tied up and the people, who had been there, told him that they had kept Tayab tied up since Tayab had stolen paddy. In his cross-examination, he stated that he had not seen PW 3 and PW 7 in the place of occurrence and he was not told who had actually tied up or assaulted Tayab.
30. PW 8 Chenimala Bibi merely stated Tayab being kept tied up in the verandah of the house of Kala Ali.
31. Coming to the evidence of PW 1, we find that he had stated that he did not go to the house of Kala Ali on that night but had stated that a lot of people had gathered there. In the cross examination, he stated that he did not see others except Abul Ali assaulting Tayab. PW 11, the Investigating Officer, however, proved that PW1 had not stated so before him.
32. PW 2 in his cross-examination stated that he did not see who had assaulted Tayab after Tayab had been pulled away.
33. PW 3 gave a description as to how accused persons had come with Knife, Dao and Lathi etc. and how they had beaten up Tayab and then pulled him away to the house of Kala Ali and tied him up there. PW 11 had deposed that such statements were not made by PW 3 to him. PW 4 did not witness the incident of fight. He, however, saw Allauddin and Mazid lying injured and stated that police had brought Tayab from the house of Kala. In his cross-examination, he stated that he did not witness the incident. PW 7 had described the assault made on Tayab by dao. PW 11, however, stated that PW 7 did not state before him Crl. A. 54/ 2011 10 that Tayab had been hacked with a dao. It may be relevant to note that PW 6 had indicated that he had not seen PW 3 and PW 7 at the residence of Kala Ali.
34. None of the PWs explained as to how Kala Ali and Sundar had sustained injuries. It is in this context, the findings recorded in GR Case No. 3210/1999 assume importance. In respect of one incident, there cannot be two versions of the genesis of the offence. Findings recorded in the said GR Case No. 3210/1999 which are brought on record by the defence vide Ext.-A, give a version which competes in probability with the prosecution version and that itself throws suspicion on the prosecution case. On top of it, we have the evidence of PW 6 and PW 9 attributing assault on Tayab by public.
35. It cannot be ruled out that death of the deceased was not due to beating by public. Merely because the incident had taken place in the premises of Kala Ali, in the facts and circumstances of the case, it will not, ipso facto, lead to the conclusion that members of the family of Kala Ali along with Abul Ali had committed the murder of Tayab Ali.
36. We are of the view that the conclusion of the learned trial court that prosecution had failed to prove the case beyond reasonable doubt cannot be said to be unreasonable or perverse. The view taken by the learned trial court is a possible and reasonable view and, we are of the opinion that in the facts and circumstances of the case, the view taken by the learned trial court need not be interfered with.
37. Accordingly, finding no merit, the appeal is dismissed.
38. Registry will send back the records.
JUDGE JUDGE Mdb/ RK Crl. A. 54/ 2011 11 Crl. A. 54/ 2011