Calcutta High Court
Monoranjan Das vs Pulak Dutta And 5 Ors. on 3 December, 2002
Equivalent citations: 2004(1)CHN328
JUDGMENT Malay Kumar Basu, J.
1. This revisional application is directed against the judgment and order dated 29.1.1992 passed in Sessions Trial No. 29/91 by the ld. Additional Sessions Judge, 2nd Court, Burdwan acquitting the accused/ O.P. of a charge under Section 302/34 and 201 I.P.C. The defecto-complainant Sri Monoranjan Das has preferred this revisional application' against the judgment of acquittal when he found that the State Govt. had not preferred any appeal against the same. The relevant facts in brief are as follows.
2. On 22nd December, 1988 the petitioner, Monoranjan Das, lodged a written complaint to the Officer-in-Charge, Katwa Police Station stating therein that on that date at about 3-30 hours in the morning one Ashok Saha and one Jatan Datta came to his house and informed him that his brother Amal Das had been taken away forcibly by a gang consisting of Pulak Dutta. Tutul, Krishna, Gora and Arun Jha on the previous night. Out of these persons two had come near the tea-stall of Nemai Pramanik when Badal Pal, Rathin, Ashok Saha, Jhulan Nandan, Bablu Roy, Tapan Karmakar and 2/3 others had been sitting there. At that time Badal asked Rathin as to why he had given his motorcycle to drunkards like Pulak Datta and his associates. At that time two boys belonging to Pulak's group had been sitting there and heard such a statement and thereafter they left that tea-stall. Then the said Amal Das came there and took his seat at that tea-stall. At this juncture the said persons who are all accused in this case came there and wanted to know the whereabouts of Rathin and Badal. After this they compelled Amal who was seated there to get up and accompany them to the houses of those two persons, Rathin and Badal. Amal took them to the house of Rathin at first but Rathin was not present at his residence and thereafter Amal was compelled again to accompany those accused persons to the residence of Badal and also Ashok Saha who were then at the house of Jatan Dutta. After this the accused Pulak Dutta and his companion took Amal with them towards Balirghat. Having received this information the informant started a search for his brother in all probable places but till the time of filing of this FIR he had not got any trace of his brother, Amal Das. He further stated in his FIR that it was his firm belief that the said Pulak Dutta and his gang-mates had kidnapped his brother with some ulterior motive. He further stated in his FIR that Pulak and all his companions were in drunk condition and were armed with weapons. On the basis of this FIR police started Katwa P.S. Case No. 19 dated 22.12.1988 under Section 365 and 368 IPC against the said accused persons. Four days after the lodging of this FIR the dead body of Amal Das was recovered from under the sandbed of Ajoy river in Begunkhola Mouza. After investigation police submitted chargesheet against the said accused persons, in all seven in number, under Sections 364, 302 and 201 read with Section 34 IPC. The case being exclusively Sessions Triable was committed to the Court of Sessions for trial of the accused persons and the ld. Addl. Sessions Judge framed the charge against the said accused persons except the accused Tutul, who had died in the meantime, under Sections 302/34 and 201 IPC for committing murder of the deceased Amal Das. All the accused persons pleaded not guilty to the charge. Thereafter the ld. Addl. Sessions Judge held trial and after obtaining evidence and hearing arguments he passed the impugned judgment under which he found that the prosecution had failed to establish its allegations and as a result the charge had not been proved and accordingly, he acquitted all the accused persons.
3. The State Govt. having not preferred any appeal against this judgment of acquittal, the defecto-complainant (P.W.1) being aggrieved has filed this revisional application under Section 401 of the Cr.P.C.
4. It is the contention of the revisional applicant that the impugned order of acquittal being erroneous, illegal, improper and against the materials on record has resulted in gross miscarriage of justice and hence it is liable to be set aside. According to Miss Rupa Banerjee, the ld. Advocate for the applicant, the ld. Trial Judge overlooked the material evidence on record and failed to appreciate the positive evidence emanating from the testimonies of the P. Ws. 3, 6, 7 & 11 and thereby committed an act of gross illegality resulting in flagrant failure of Justice and therefore it calls for intervention of this Court which should set aside the said judgment and send the case back on remand to the Court below for rehearing in the light of such observation.
5. Mr. Banerjee contends that the ld. Trial Judge has failed to consider the effect of the prosecution evidence on the point that the accused persons were last seen together with the deceased when they were found by some witnesses to forcibly take him with them while abusing him, giving him a push and also assaulting him. According to Miss Banerjee this oral evidence on such a vital question remains unshaken and the ld. Trial Judge failed to consider the legal effect of such evidence and also failed to consider the fact that this circumstance had been accompanied by certain other circumstances to form a chain which unerringly points to these accused persons as the perpetrators of the crime. The circumstances, according to Miss Banerjee, may be arrayed in the following order:
1. The deceased was found to be abused and assaulted by the accused persons and to be taken along with them in the dead hours of the night of 21st December, 1988;
2. Since thereafter he was found missing;
3. The accused persons who were seen with the deceased in such condition as stated above have not given any satisfactory explanation as regards the probable whereabouts of the deceased after the abovementioned circumstance of 'last scene together' has been in the prosecution evidence ;
4. After four days of the said occurrence the dead body of the said missing person was recovered from the sandbed of Ajoy river which is found to be near about the place towards which he was being so taken away by the accused persons ;
5. As per expert's opinion the death of the deceased was due to Strangulation which implies overpowering of the deceased by stronger hands ;
6. It was not a case of natural death and somebody must have killed him;
7. The name of no other person has been mentioned in the evidence as the probable assailant;
8. There is nothing in the evidence to indicate that there might be any other incident in which the deceased might have been killed by any other person;
9. The names of the accused persons were mentioned in the FIR, that is to soy, such names transpired soon after the occurrence;
10. It is established from evidence that the accused persons were at that time in drunk condition and they were violent being said to take revenge for the utterances made against two of them, namely, Pulak and Badal to the effect that a motorcycle belonging to Jatan Das ought not to have been given to the drunkards like them;
11. They were infuriated by the comments made by the P.W., Badal when he asked Rathin why he had given his Motor Cycle to the drunkards like Pulak & Ors;
12. All the accused persons were found absconding from their village just after the occurrence and most of them could be arrested after a long time of the I.O. (P.W.18) S.K. Roy, in his examination-in-chief at page-2 (para-2) of his deposition.
6. Miss Banerjee further contends that the ld. Trial Judge committed a mistake of wrongly appraising the evidence of the P.W.1 Monoranjan Das on the ground that the same had been contradicted by his statement before the I. O. which he did not actually do. It is not the case of the prosecution or this witness that he ever stated that he had any personal knowledge about the incident but all that he stated is that he heard the incident from Ashok and Jatan, Curiously enough, the ld. Trial Judge has erroneously taken his statement to be that he had personal knowledge of the incident while dwelling upon the contradiction taken from the evidence of the I.O. Secondly, the ld. Trial Judge has committed further mistake of law by taking omissions of the witnesses as contradictions while considering the evidence of the I.O. and thereby he has clearly violated the dictates of the Apex Court in Tahasildar Singh v. State of Uttar Pradesh, , wherein it has been enjoined that such omissions should not be treated an contradictions. Thirdly, according to Miss Banerjee the ld. Trial Judge misread the evidence when he hold that the Seizure List under which the material Exbts. were seized had not been exhibited. Thus he has committed another error of discarding of evidence wrongly, since this is not the correct factual position, such Seizure List having been duly exhibited. Fourthly, as per the contention of the ld. Advocate for the applicant the ld. Trial Judge overlooked the settled principles of law that the First Information Report was not a substantive evidence but was merely corroborative piece of evidence and also that the prosecution had the liberty and choice as regards examination of its witnesses on any particular point and when it does not examine any particular witness whose name has been given in the chargesheet or when it only tenders such a witness for cross-examination no adverse inference can be made out for that. In support of this argument she cites the decisions reported in Sardul Singh Caveeshar v. State of Bombay, ; R.K. Dalmiya v. Delhi Administration,, and Hukum Singh and Ors. v. State of Rajasthan, reported in 2000 SCC (Cri) 1416. Lastly, Miss Banerjee argues that the ld. Trial Judge overlooked the well settled principle that even in a case of circumstantial evidence is not required that the prosecution must meet any and every hypothesis put forward by the accused howsoever far-fetched and fanciful it might be, nor does it mean that the prosecution evidence must be rejected on the slightest doubt, because the law permits rejection only if such doubt is reasonable and not otherwise. In support of this contention he relies upon the Apex Court's verdict in State of U.P. v. Ashok Kr. Srivastava, and Ram Avtar v. State (Delhi Administration), . It has been held there that where circumstantial evidence consists of a chain of continuous circumstances linked up with one another, the Court has to take the cumulative effect of the entire evidence laid by the prosecution before acquitting or convicting an accused. As regards the question of motive the contention of Miss Banerjee is that it is a settled position that the circumstances which prove the guilt of the accused are not weakened at all by the fact that the motive has not been established as it often happens that only the culprit himself knows what moved him to a certain course of action (vide Rajinder Kr. v. State of Punjab) and Mulakh Raj and Ors. v. Satish Kr. and Ors., reported in 1992 SCC (Cri) 482 in which it was held that even in cases of circumstantial evidence the failure to prove motive is not factual as a matter of law and proof of motive is never indispensable for conviction. According to Miss Banerjee, the absence of proof of motive thus does not break the link in the chain of circumstances connecting the accused with the crime.
7. Mr. K.L. Mukherjee, the ld. Counsel for the O.Ps., has at the very outset questioned the maintainability of this revisional application by adverting to the point that since under Section 401(3) of the Cr.P.C. it has been provided that a High Court is not authorised to convert a finding of acquittal into one of conviction, unless certain conditions are specifically fulfilled, this revisional Court cannot reverse an order of acquittal simply on the ground that the finding of fact arrived at by the Court below is errorneous. Mr. Mukherjee contends that in order to enable a Revisional Court to set aside such an order of acquittal it must be shown that that Trial Court has (1) failed to consider any material evidence which is on record, (2) the Trial Court has shut out any evidence. (3) the Trial Court has admitted evidence which is inadmissible and has relied upon the same and (4) where there has been some illegal error committed by the Trial Court leading to flagrant miscarriage of justice. According to Mr. Mukherjee in the present case no such exigency has taken place and the revisional powers of this Court cannot be invoked for the purpose of reversing the impugned order of acquittal. He contends that the Trial Court rightly brushed aside the efficacy of circumstantial evidence in the present case for the reason that a vital link in the chain of circumstances is missing here. According to him, as per the prosecution evidence the act of abusing Pulak and his gang-members as drunkards by Jatan let loose the whole hell and the accused persons became frantic for taking revenge against that man, Jatan, who allegedly made the filthy remark and therefore, as per the prosecution evidence itself they had nothing to grudge or have any grievance against the deceased, Amal Das and the prosecution having absolutely failed to make out any motive for murdering the said Amal Das. It cannot be said by any stretch of logic that the chain of circumstances is complete and therefore, according to Mr. Mukherjee, the circumstantial evidence transpiring herein is not complete or full-fledged and it would be dangerous to base a conviction on such circumstantial evidence of weak nature in the chain of which a vital link has been missing. In other words, according to Mr. Mukherjee the circumstances which are established here do not form a chain which can be said to be consistent with the guilt of the accused or to be inconsistent with any reasonable hypothesis of innocence of the accused. In support of his contention he cites the decision reported in AIR 1972 Cr.L.J. 23 (SC) corresponding to AIR 1972 SC 110. According to Mr. Mukherjee, again, the theory of "last seen together" on which the prosecution lays undue emphasis will not be also applicable to the facts of this case for the reason that none saw the deceased to be with the accused persons at the place where the dead body was found, nor saw him to be dragged by the accused to that place. What has been forthcoming from the evidence in this respect, according to him, is that the deceased was being taken by the accused persons to the house of Jatan, Rathin and another and nothing more. Again, the P.W.11 did not see any such incident by his own eyes. He says in his evidence what he heard from Rathin but Rathin in his turn (P.W.6) does not say in his evidence that he reported such things to the P.W.11. Also, the P.W.6, does not report to him these things. The P.W.11 in his evidence has never stated what P.W.6 said, namely, that Amal called him at the instance of the accused person. Mr. Mukherjee further contends that the I. O. P.W.18. has belied P.W.11's statement by saying that P.W.11 did not state before him that Rathin had told him that the accused persons came with Amal Das and had been taking him away assaulting him or that he (P.W.11) did not state before him that Ashis (P.W.7) had told Ashok that those five persons were taking away Amal and abusing by the side of their house assaulting Amal or that he did not state before him that Rathin reported to him that the said five accused persons had been threatening him. Further, the P.W.18 has also belied this statement of the P.W.3. Badal Pal by saying in his cross-examination that he (P.W.3) did not state before him (P.W.18) that it was 11.30 p.m. in the night when Pulak. Tutul and others went or he did not state before him that he gave the replace while standing near the window of his house. According to Mr. Mukherjee, such revealations from the evidence of the I.O. (P.W.18) make the evidence of the P.W.'s 3, 6 & 11 unworthy of reliance.
8. The next contention of Mr. Mukherjee is that as per the statements of the said witnesses, the deceased was found in the company of the accused persons upto a certain place of the village but not upto the place wherefrom the dead body of the deceased was recovered later on and the sequence of events that might have taken place in between the scene where the deceased was found in their custody as alleged at a particular place of the village and the place, namely, the sandbed of Ajoy river wherefrom the body was recovered remains totally in the darkness and no light is thrown by the evidence on record as to who could be the author of the dastardly act taking the life of the deceased. According to Mr. Mukherjee, the fact that the accused persons absconded for a long time from their residences since after the occurrence can be explained by the theory that it was due to mere fear-psychosis which pervades a young man when he sees police personnel to search for the culprits.
9. Let me now see the prosecution evidence adduced in order to bring home its charges against the accused persons. The P.W. 1 Monoranjan Das is the informant. In his FIR he has himself stated that he did not see any incident but he came to know about the incident from the reports made to him by Ashok Saha and Jatan Dutta of his village. It is his evidence that at about 2-30 to 3-00 a.m. in the night of 21st/22nd December, 1988 those two persons came to his house and informed him that the five accused persons as named above and some others had forcibly taken away his brother Amal and proceeded towards the place called Balirghat of the Ajoy river and while they were taking away him, they were assaulting him. Receiving this information from those two neighbours, the P.W.1 Monoranjan Das who happened to be elder brother of the said missing person, Amal went to the Katwa Police Station and lodged a written FIR stating that fact therein. This P.W. 1 then says that four days after of 26th December, 1988 his brother's dead body was recovered from beneath sandbed of Ajoy river within Begunkhola mouza. When he along with his another brother went to Katwa P.S. again and informed the Police Officer of this fact whereupon the S.D.P.O., Katwa informed the Ketugram P.S. wherefrom some Police Officer came to that spot and held inquest over the dead body. He identified the dead body of his brother before that Officer. So in the FIR also he has made identical statements. It has been the criticism against this witness that his evidence is hearsay, but the rules of hearsay are not observed, inasmuch as, the persons from whom he heard this fact have not stated in their evidence that they reported such incidents to this P.W.1 on that night. But on a scrutiny of the depositions on record I find that this is not correct. Ashok Saha had not been examined by the prosecution, but the other one namely, Jatan Dutta has been examined as P.W.11 and from his evidence (examination-in-chief) I find that he has clearly stated that he himself and Ashok went to Monoranjan's (P.W.1's) house and reported the incident to him just after Ashis Saha, the brother of Ashok, came to his house at about 3-00 to 3-30 p.m. on that night of 21/22nd December, 1988 and told his elder brother Ashok that the said five accused persons had taken away Amal and had passed by the side of their house. So the criticism that the rule of hearsay has not been complied with is not correct. It is true that it was Ashok who after hearing from his brother Ashis about the incident allegedly reported the same to this P.W.11, but that Ashok is not coming to the witness box. But that will not render the hearsay of the P.W.1 unlawful. The P.W.1 heard the incident from P.W.11 and accordingly he went to the P.W. and lodged the FIR. Therefore, it cannot be said that due to such reporting to the police on the basis of what the informant heard from another person who in his turn had no direct knowledge about the same would be rendered unlawful. The filing of FIR by such a person has nothing to suffer any legal infirmity. The. P.W.1 being the informant has also made statement to corroborate what he stated in his FIR on the basis of what he heard from others. The P.W.1 is not claimed by the prosecution as an eyewitness. Therefore save and except lending corroboration to the statements made in the FIR his evidence has no independent value for the purpose of substantiating the prosecution allegations. For that we are to look to the testimonies of the eye-witnesses, as examined by the prosecution. Such eye-witnesses to the occurrence are to be found in the P.W. 3, Badal Pal, P.W.6 Rathindra Nath Saha and also to some extent P.W.7 Ashis.Kr. Saha. The role of P.W.11 Jatan Dutta will be discussed later on.
10. The P.W.3 Badal Pal has stated that on 21st December, 1988 at about 9-00 p.m. while himself along with Rathin, Ashok and Bablu Roy was being seated in the tea shop of Nemai Pramanik at the Station Bazar, Katwa, Pulak and Tutul came there riding on a motorcycle belonging to Rathin Saha in drunk condition. They stood there for five minutes talked to each other and then went away in that motorcycle. Then this P.W.3 Badal asked Rathin as to why he had given his motorcycle to such drunkards, when Rathin gave an explanation as to under what circumstances he had to give the same to those persons. This conversation of them was overheard by two persons belonging to Pulak's gang and they named Gera and Krishna (both are accused in this case). Thereafter this P.W.3 left that tea-stall for his residence and Rathin also went to his garage. At about 11-30 p.m. on that very night the accused Tutul, Gera, Krishna, Pulak, Anup went that Amal Das to his house and Amal called him at their instance, but he did not come out of his house in fear and told them that he would meet them on the next morning and thereafter he heard that those five accused persons were abusing and assaulting Amal and they also took him towards the house of Jatan which was very near to his house. In the cross-examination of this P.W.3 it has been taken from his mouth that the presence of Gera and Krishna at the tea-stall at the time when he made the abovementioned comments against the accused Pulak and Tutul made him feel that they might inform the other accused persons of such comments made by him. It is conspicuous to note that the statements made by this witness in his examination-in-chief discussed above have not practically been challenged or assailed by the defence in his cross-examination. Moreover in the cross-examination, an explanation has been obtained from him as to why he did not come out inspite of having been called by Amal to come out at the instance of the accused persons. He has stated on being cross-examined that since he made some remarks against those two accused, namely, Pulak and Tutul while seated in the tea-stall, he did not come out in fear of retaliation. It is not suggested to him that such statements were not made by him before the Investigating Officer. It is only put to him whether he stated before the 1.0, that Pulak. Tutul and others want to the tea shop when it was 11-30 a.m. at night and he has replied that he cannot remember whether he stated such a fact to the I.O. Similarly the only other suggestion which has been given to him in this respect is whether he stated before the I. O. that he was giving reply to Amal when he called him while standing near the window of his house. In reply he has given similar answer that he does not remember if he has stated so. Besides these two suggestions not a single more suggestion touching his statement under Section 161 Cr.P.C. before the I.O. has been put to him by the defence. Coming to the P.W.18, the I. O. it is found that the said two-questions have been put before him also when this I. O. has replied that P.W.3 Badal Pal did not state before him that it was 11-30 p.m. at night when Pulak, Tutul and others went or he did not state before him that he replied while standing near window of his house. It is not understood how the time 11-30 p.m. becomes so important. Of his statements what becomes vital is that the five accused persons named above went to the house of Amal at that night and Amal called him at their instance and his further statement that he did not come in fear and told them that he would meet them on the next morning and also his statement that he could hear those five persons abusing and assaulting Amal and taking him to the side of Jatnn's house being situated near his house. It is highly significant that this vital statement of this P.W.3 have not been subjected to any meaningful cross-examination. There is nothing special in the '11-30 p.m.' of that night. The I. O. has said that the witness did not state before him that at 11-30 p.m. on that night the said accused persons along with Amal came to his house. It is not the statement of the I. O. nor the suggestion of the defence that the witness has not stated before the I.O. that the accused persons came to his house along with Amal at that night at all. The witness may have given the exact time while making his statement in the examination-in-chief without giving the said time during his examination by the I.O., but for that the statement which he actually made before the I.O. cannot be thrown away in its entirety. The ld. Trial Judge in order to ascertain the correct position in this respect ought to have consulted Section 161--statement made by this witness as recorded by the I.O. but he has also not done that. In the result, therefore, the above vital statement made by this statement (P.W.3) remains unshaken and goes a long way in establishing the allegations of the prosecution against the accused persons that they took Amal to the house of Badal Pal and/at their instance Amal called Badal and requested him to come out but Badal suffering from a fear psychosis in the context of his having used abusive language against two accused persons earlier on that day did not agree to come out at that point of time and told them that he would meet them on the next morning. This statement of Badal is corroborated by another eye-witness named Rathindra Nath Saha (P.W.6). This witness has stated that on 21st December, 1988 in the night after 8-30 p.m. he came to the tea shop of Nemai Pramanik where his friends like Amrita Pal, Badal Pal, Jatan Dutta, Ashok Saha etc. were present. He further says that Badal told him as to why he parted with motorcycle to the drunkards like Pulak and Tutul. These words of Badal were overheard by two persons named Gera and Krishna who were followers of the said Tutul and Pulak. Thereafter this witness came to his cycle garage and sometime after the said Pulak, Tutul accompanied by Arun Jha, Gera, Krishna and Anup came there while he was going towards the station G.R.P.S. after closing his garage; those persons charged him saying why he had abused Tutul and Pulak as drunkards and then they threatened that they would kill him and his friends. P.W.6 also says that those persons assaulted him there and forced him to go with him Bablu's house. But Bablu on call did not open the door in fear and then this P.W.6 was forcibly taken to Ashok Saha's, but Ashok was not present in his house at that time and then he was taken by those accused persons to the house of Badal Pal but going there he called Jatan instead of Badal and after Jatan opened the door he entered into Jatan's house while accused person remained outside on the road and then Jatan bolted the door from inside and this P.W.6 then narrated the entire incident before Jatan and also expressed his fear before him. In the meantime the accused persons standing on the road started abusing him filthily, but both himself and Jatan refused to accompany them any more. This P.W.6 further says that it was then about 11-30 p.m. and thereafter at about 12-30 a.m. on that very night those accused persons came again to Jatan's house along with Amal and they were then surrounding Amal and at their instance Amal called this P.W. and Jatan and they were also assaulting Amal. He further says that on their refusal to come out the accused persons forcibly target Amal away. P.W.6 further says that at that time Ashok Saha was also with them at Jatan's house and at about 3-00 a.m. Ashok and Jatan went out to inform Monoranjan, the elder brother of Amal about that occurrence.
11. It is to be mentioned that in his cross-examination also there is hardly anything from which can be said that the abovementioned statements made by this witness in support of the prosecution charge against the accused have in any way being assaulted. The question is put to him whether he stated before the I.O. that the accused persons had been using abusive languages from near the house of Jatan and he has answered in the affirmative. Similarly he has also said that he stated to the I.O. that he found the accused assaulting Amal being surrounded by them. Coming to the evidence of the I.O. (P.W.18) I find that the question has been put to him by the defence in his cross-examination as to whether the P.W.6 stated before him that seeing him (P.W.6) Pulak, Tutul and Arun charge him to why he told Tutul and Pulak drunkard and threatened that they would kill him and his friends and this P.W.18 has given a reply in the negative. But this is without any consequence at all. This question was never to be before the P. W. 6 in his cross-examination. Unless and until a suggestion is given to the witness himself in his cross-examination the defence cannot put any such suggestion before the I. O. straightaway for the purpose of construction. The other two questions which have been put before the I. O. are first that whether said witness (P.W.6) stated before him that he was taken to Bablu's house by the accused persons and on their comment he had to call him, but Bablu did not open the door in fear and secondly, whether he stated before the I.O. that the accused persons had been using abusive languages from near the house of Jatan and thirdly, whether he stated before the I.O. that he found the accused surrounding Amal. In respect of this three questions the I. O. 's answer has been in the negative. But the other part of the P.W.6 remain untouched. These are that the said five accused persons charged him as to why he abused Tutul and Pulak as drunkards and threatened him saying that he would kill himself and his friends or that they assaulted him there and they forced him to go with them to Bablu's house and thereafter he was forcibly taken by them to Ashok Saha's house and it would be about 11-30 p.m. when he entered Jatan's house and at about 12-30 a.m. on that night the accused person came to Jatan's house along with Amal and they got than (this witness, Jatan and Ashok) called by Amal and they were also assaulting Amal and on their refusal to come out the accused person forcibly target Amal away. The further statement of this witness that Ashok Saha was then at Jatan's house and at about 3-00 a.m. on that night Ashok Saha and Jatan went out to inform Monoranjan about such incident. It should be noted that in the very cross-examination of this witness it has to be taken by the defence that Amal called him by his name when they were on the first floor varandah and in fear they went inside the room and curiously enough there has been no further cross-examination of such statements taken from his mouth which go to support the prosecution case. This vital statement of this P. W. 6, an eye-witness, remain unshaken and unassailed. There is no escape from the conclusion that this part of the prosecution allegation has been substantiated by the testimonies of this two eye-witnesses, namely Badal Pal, P.W.3 and Rathin Saha, P.W.6. With them may be added the testimony of P.W.7 also which at least partially lends substantial corroboration to the same. Thus he has stated in his examination-in-chief that on 21st December, 1988 at about 11-30 p.m. in the night Rathin Saha along with 4/5 others some of whom he could recognised as Pulak. Tutul, Arun Jha and Pulak called denying the name of his elder brother Ashok Saha and then this witness and his mother opened the door and found 4/5 persons standing there and on their query about Ashok they told that Ashok was not in the house and thereafter again at 12-30 p.m. they came with Amal and called taking the name of his brother Ashok and this witness say them from the window of their house and again they replied that Ashok was not in the house and then they left the place while pushing Amal. In case of this witness also nothing appears in his cross-examination to give rise to any impression that his friend has been falsely given. On the other hand what he has stated his in full corroboration and consistency with the testimonies of the other two eye-witnesses (P.W.3 & 6) already discussed above. The evidence of P.W.11 Jatan Dutta also appears to be no less substantial in the matter of supporting and corroborating the statements of the other witnesses discussed above. He has stated that on 21st December, 1988 at about 10-30 to 11-00 pm. his friend Rathin Saha called him at his house and reported to him that the accused persons named above had been threatening him and at this he (P.W.11) told him to stay at his house since those accused persons were standing in front of his house and then P.W.11 took Rathin to the first floor of his house and advise him to tell the accused persons waiting outside that he would not go that night to his house and ask them to go away. This P.W.11 knew the accused Pulak and has frankly stated that he did a not personally see the persons who were waiting for Rathin on that night outside his house. He has further stated that Rathin peeped out from the varandah of the first floor of the house and then again entered into the room where he was situated and reported to him that the persons named above had come with Amal Das and also that they had been assaulting the said Amal Das. It is true that Rathin has not said that he reported this facts to this P.W.11 and therefore according to rule of hearsay this part of the evidence of the witness cannot be admissible. But even then the fact which he has testified to by way of saying what he himself saw by his own eyes will go into the evidence and therefore the first part of his evidence discussed above him very well be relied, namely, that Rathin entered into his house at that hour of night on that date of occurrence and he took him to the first floor of his house and advised him to tell the accused persons waiting outside his house to go away. Therefore it is established from the evidence of this three eye-witnesses beyond reasonable doubt that the accused persons forcibly took Amal to the houses of the said persons on that night of 21st December, 1988 and when they failed to have their purpose served namely to got Badal or Jatan to take revenge against them they took Amal as their scape goat for taking revenge and fulfilling their vengeance for the failure of the said Badal and Jatan to respond to their call.
12. The above analysis of the evidence is not meant to be a reappraisal thereof for the purpose of getting the finding of acquittal replaced by one of conviction. On the contrary it is intended to be and indispensable exercises for the purpose of ascertaining the question whether the Court below has committed an act of gross illegality by not treating those proved facts as having constituted a chain of circumstances for the purpose of establishing the guilt of the accused persons. I am not unmindful of the established legal position that this revisional jurisdiction of this Court is not ordinarily invoked merely because the lower Court has taken a wrong view of the law or has misappreciated the evidence or there are some irregularities from which the order suffers. But at the same time the well settled principle of law should also not escape our notice that the High Court has undoubted jurisdiction to set aside and acquittal and to order retrial in exceptional cases to prevent a gross miscarriage of justice or to set right a patent wrong or error either of law or of fact (vide the decisions reported in AIR 1941 Bomb. 410, 33 CWN 576, 28 Cr.L.J. 523, 41 Cr.L.N. 891 and ).
13. The Apex Court has again and again enunciated the principle that the power of revision being invoked by a private complainant is not tea to be lightly exercised and it could be exercised in exceptional cases where the interests of justice required interference for correction of a manifest illegality or for prevention of a gross miscarriage of justice (vide , , and ). It has been reiterated by that Court in certain other subsequent decisions that such power is to be exercised only in exceptional cases of glaring defect in procedure or manifest error on a point of law resulting in flagrant miscarriage of justice. It has been further held that as Sub-section (3) forbids the convertion of a finding of acquittal into one of conviction such powers of the High Court to set aside an acquittal order can be exercised only in exceptional cases, namely, (1) where the Trial Court has no jurisdiction to try the case but has still acquitted the accused; or (ii) where the Trial Court has wrongly shut out evidence which the prosecution sought to produce; (iii) the Appellate Court has wrongly held the evidence admitted by the Trial Court to be inadmissible; or (iv) where material evidence has been overlooked by the Trial Court. The Apex Court further held that these categories are merely illustrative and there may be other cases of similar nature when retrial or rehearing of appeal will be required. In a host of other decisions of different High Courts as well the Apex Court it has been held that the High Court will interfere when there is some glaring defect or arrear either in the procedure or in the view of the law or evidence taken leading to a flagrant miscarriage of justice and also in cases where the finding of the Trial Court is manifestly wrong or perverse or where there is a gross error of law causing failure of justice or even where the judgment does not contain a proper discussion of the evidence on the question involved or where there is miscarriage of justice due to wrong exclusion of evidence (vide and 653, AIR 1942 Lahore 70, AIR 1948 Nagpur 243, 18 CWN 279 and 1244 and ).
14. On a perusal of the impugned judgment it appears that the ld. Trial Judge has not only adopted a wrong approach in appreciating certain evidence laid by the prosecution, but also he has overlooked and sidetracked some evidence which appears to be of vital importance. The prosecution evidence which I have discussed above is found to have not been taken into consideration by him although such testimonies of the witnesses remained unshaken and the ld. Judge is totally silent as to the effect of such evidence on the question how far the charge against the accused has been proved. At page 20 of the certified copy of the impugned judgment the ld. Judge appears to have discarded the evidence of P.W.11 Jatan Dutta when this witness says that he came to know from P. W.6 that the accused persons came there with Amal and were taking him away after assaulting and the ld. Judge has not accepted this testimony of this witness as true or genuine on the ground that this witness has not stated such fact to the I.O., but curiously enough the ld. Judge although is critical of the evidence of this P.W.11 has remained silent regarding the testimonies of the other three eye-witnesses, namely, P.W.3, 6 and 7. As regards P.W.11, I have already observed that his evidence being in the nature of hearsay has little importance for the purpose of furnishing proof of the prosecution allegations. But the testimonies of other three witnesses who saw the occurrences by their own eyes namely, P.W.3. 6 & 7 have been practically excluded from his discussion. He has highlighted the omission on the part of the P.W.6 to state before the I.O. that all the accused persons surrounded Amal at the time when they were waiting outside Rathin's house after calling him through Amal and has concluded that he was not a reliable witness. But, the ld. Judge has not given any reason with regard to the fact that as regards the other statement made by this P.W.6, namely, that he saw the accused persons to assault Amal and take him forcibly away. Regarding these statements of P.W.6 there is no question raised from the side of the defence as to their genuineness. But the ld. Trial Judge has overlooked this evidence which stood the test of cross-examination and showed the prosecution allegation in that respect as correct. Similarly ld. Judge remains totally as regards the unshaken evidence of the P.W.3 and 7 which I have already discussed above. As I have already observed, such evidences remaining unassailed combine to show the existence and proof of certain circumstances and it was for the ld. Trial Judge to consider whether such circumstances formed a chain which points towards the guilt of the accused persons. But the ld. Trial Judge having not dwelt upon such aspects of the evidence or, in other a words, having totally overlooked such important features of the prosecution evidence and their impact on that question whether the prosecution charge has been established against the accused persons has committed a gros error of law which in consequence given rise to flagrant miscarriage of justice.
15. The ld. Trial Judge appears to have committed another act of illegality when he has taken omissions on the part of the witnesses to say something as contradictions before the Investigating Officer in respect of the P. Ws No. 3, 6 & 11. Again, the ld. Judge appears to have given wrong reasoning when he held that the Seizure List under which the material exhibits were seize4 had not been exhibited, although, as a matter of fact, such a Seizure List has been produced and proved and marked No. 2/2 (vide the evidence of P.W. 17 Subhas Das). Then again, the ld. Trial Judge committed a mistake of law by observing that there is no substantive evidence forthcoming from a good many important witnesses like the P.W. 4, 5, 8, 9, 10, 13, 14 & 15 all of them having been simply tendered by the prosecution. This initiates one of the fundamental principles of criminal jurisprudence. While considering the prosecution for the purpose of seeing whether the charge has been proved the Trial Court is to see whether the evidence of the witnesses given in support of the prosecution case have been sufficiently corroborated and also how far they have supported the prosecution story. But if prosecution does not examine any witness then that should not be taken to be a ground for subjecting the testimonies of the witnesses to any criticism. In other words, such non-examination of any witness by the prosecution should not be taken to have diminished the value or quality of the evidence of the other witnesses actually examined by the prosecution. It is absolutely a headache of the prosecuting agency as to which witness is to be examined for the prosecution and which not. The Court's duty is only to see how far the witnesses who have been examined by the prosecution have supported or proved the prosecution charge.
16. It is also misconceived on the part of the ld. Trial Judge to express his doubt as to the reliability of the averments in the FIR which appeared to have been corroborated by the substantive evidence and regarding which the defence also does not raise any question, Thus the ld. Trial Judge has given his reasonings as follows:
"What strikes me at the outset is that as to how P.W. 1 could give so much of information in the FIR (Ext.1) as we find it therein. At that time he had no knowledge about the incident except what he had heard from P. Ws.11 and 9. We do not get what P.W.9 had said to him. But P.W.11 is not a direct witness of the alleged assault on Amal or alleged presence of Amal at their house. It is his evidence that they were in the first floor room and witness. Witnessing VCR and when the accused persons called Rathin, he P.W.6 Rathin went out in the first floor verandah and peeped at the reported to them i.e. to him and Ashok that accused persons had come with Amal whom they had been taking away assaulting. This statement that he had gathered the knowledge as aforesaid from Rathin was not stated by him to the I.O. over the Rathin episode he has also deposed that Rathin reported him coming to his house that five persons i.e. the accused persons have been threatening him. So, in the FIR lodged at 4-30 a.m. there could be no scope for giving any information more than the above. But curiously enough I find that the FIR is replete with details of the story.
17. The FIR, as it is well known, is not a substantive evidence and its value is established after its averments are proved by its maker by means of giving substantive evidence before the Court. So there cannot be any question of throwing doubt on the story made out therein on the ground that they are not probable. The ld. Trial Judge being forgetful of this legal position has scanned the averments of this document and has cast his doubts on the probability of such happening without paying any regard to the substantive evidence of the maker thereof and also to the cross-examination to which it has been subjected to. If the FIR-averments are duly proved by the informant in his substantive evidence and on the basis thereof if the document is exhibited and admitted into evidence and if in the cross-examination of that informant-witness there is nothing to assail the reliability of such averment, then it is obsoletely uncalled for on the part of the ld. Judge to express his self-styled doubtfulness about the genuineness of such averments of the FIR from the standpoint of probability, etc. It has been argued by Mr. Mukherjee, ld. Counsel, for the O.P.s that in case of substantial evidence motive plays a vital role and since here the motive of the accused persons for killing Amal has not been proved in the least substantial evidence against them will remain incomplete. As against that Ms. Banerjee's argument has been that the circumstances which proved the guilt of the accused are never weakened by the fact that motive has not been established as it often happens that only the culprit knows what moved him to certain course of action. In support of her contention she has referred to the decision (Rajindar Kr. v. State of Punjab) and the decision reported in 1992 SCC (Cri) 482 (Mulak Raj and Ors. v. Satish Kr. and Ors.). It has been held therein that even in cases of substantial evidence the failure to prove 'motive' is not fatal as a matter of law and proof of 'motive' is never indispensable for conviction and the absence of proof of 'motive' does not break the link in the chain of circumstances connecting the accused with the crime. It has been further contended by Ms. Banerjee that the importance of 'motive' in the matter of commission of crime, particularly murder, has been paling into insignificance nowadays in the changed society of today where moral values are fast decaying and judicial notice should be taken of the fact that nowadays people do not hesitate to commit murder for a trifle or trivial reason and in the present case the simple fact that there was reluctance on the part of the deceased to oblige that gang of five persons who were rough and tough by nature and in a drunken state at that point of time may very well serve as a motive. It may be a preponderant probability that Amal was made their target out of their revengefulness and vengeance, when they found that their attempt at getting the person who originally were their targets, namely, Badal and Rathin became a failure. This conclusion should be drawn, according to Ms. Banerjee, from the evidence available that the accused persons became enraged with Amal when he could not procure the presence or appearance of the said two persons before the accused persons and this was manifest from the fact that they were abusing him and assaulting him.
18. As I have mentioned above, the testimonies of the eye-witnesses, particularly the P. Ws. 3, 6 & 7 have given rise to the emergence of a set of circumstances which I have enumerated above. In a grave case of this nature involving offences of kidnapping and murder it was for serious consideration by the ld. Trial Judge as to how far such circumstantial evidence was strong enough to bring home the prosecution charge, to consider whether such group of circumstances being linked with each other formed a chain which would point to the accused persons and no other as the perpetrator of the crime or, in other words, which led to a conclusion that was consistent with their guilt and conversely which was inconsistent with their innocence. But ld. Trial Judge does not appear to have addressed the adjudication from this angle of approach. He overlooked the existence of the set of circumstances mentioned above and did not give his thought or consideration to the question whether such set of circumstances formed a complete chain and whether it constituted infallible evidence to bind them and to prove their guilt beyond reasonable doubt. In all the relevant reported judgments referred to above it has been the principle universally settled that in a revision against acquittal by a private complainant interference of the High Court will be called for when it is evident that the Trial Court shut out any evidence which the prosecution wanted to produce or admitted any inadmissible evidence or overlooked any material evidence. (Vide the decision and ). Here although there is no case that the ld. Court below has shut out any evidence or has taken any inadmissible evidence but it is palpable that the ld. Trial Judge has failed to consider some material evidence constituting certain circumstances which ought to have been dwelt upon by the Trial Court for the purpose of determining whether the prosecution charge against the accused person had been substantiated thereby. But the ld. Trial Judge having overlooked such evidence and has not considered them from the point of view as indicated above and as a result thereof there has been a manifest illegality giving rise to a gross miscarriage of justice. In that view of the matter, intervention of this revisional Court has become necessary in order to set right the patent wrong.
19. To sum up, the ld. Judge has failed to make a proper appreciation of the evidences, particularly the circumstantial evidence. He has failed to gauge the combined effect of the set of circumstances which has been spelt out above. He has not considered the same from the angle of vision as to whether such circumstances has the effect of singling out the accused persons as the assailants of the deceased unerringly, in particular, the following three circumstances : (1) The deceased was last seen together with the accused persons all in drunk condition while being abused, assaulted and forcibly taken away by them on the night just prior to the date on and from which he was found missing; (2) All the five accused persons were found by police to have absconded from their residences just after the occurrence and they remained so untraced for a considerably long period (vide the statement of the P. W. 18, the I. O. made in his examination-in-chief); (3) No other name was forthcoming as the probable assailant of the deceased either during the investigation of the case or during the trial. This circumstances when coupled with the host of other circumstances arrayed above get an added dimension and strengthen one's belief about the proof of the guilt. It should not be forgotten that in criminal cases in our search for proof beyond reasonable doubt whether often become over-jealous and throw the baby out of the bathwater and in the name of strict proof we overlooked the materials which have the potentiality of offering sufficient proof of the involvement of the accused persons in the commission of the crime. The dictum of the criminal jurisprudence that it must be ensured before convicting or punishing an accused person that the charge levelled against him has been proved beyond all shadow of doubt because the harm inflicted to the society will be far more grave in case innocent person is found guilty and given punishment than in case a guilty person is found innocent and given acquittal should not be over-emphasised or stretched too far. The society of mankind will no less suffer if the real offenders even after committing a heinous crime is let off for the reason that evidences on record though in abundance slightly fall short of a standard which is unattainable it equally causes concern for us if an offender having actually committed a crime hoodwinks the Court and passes with impugnity.
20. In view of the entire foregoing reasons, I consider it a fit case where a Court of revision should not be dogmatic and should not shut its eyes to the reality taking a technical view of the principle that in a revision against acquittal it should not ordinarily interfere unless certain extreme conditions are fulfilled. Here, as I have repeatedly pointed, such condition has been fulfilled, that to say, as a result of the Trial Courts having failed to appreciate the evidence properly a grave miscarriage of justice has been occasioned and in that view of the matter the criminal case in question should be reheard and reconsidered by the Trial Court for a proper and thorough appreciation of the evidence already on record including the circumstantial evidence as indicated in the body of this judgment.
21. Accordingly, the revisional application be allowed. The impugned judgment of the Trial Court be set aside. The Sessions case No. 29 of 1991 be sent back on remand to the Court below for a rehearing and reconsideration of the evidence already on record in the light of the legal principle discussed above. The ld. Trial Judge shall give opportunity to the ld. Advocates for both sides to advance their arguments afresh and after considering the same shall dispose of the matter in accordance with law independently and without being influenced by any observation of this Court, if at all, touching the merits of the case.
22. The L.C.R. along with a copy of this judgment be sent down to the Court below forthwith.