Calcutta High Court (Appellete Side)
Nawab Ali Gayen vs State & Anr on 6 March, 2009
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present: The Hon'ble Mr. Justice Partha Sakha Datta CRR 1736 of 2006 Nawab Ali Gayen Vs. State & Anr.
For the Petitioner : Mr. K. S. Ahmed
For the Opposite Party: Mr. A. Mukherjee
For the State: Ms. Krishna Ghosh
Heard on: 05-02-2009
Delivered on: 6th March, 2009.
Partha Sakha Datta, J.:-
This is defacto-complainant's revisional application under Section 482 read with Section 401 of the Cr.P.C. preferred against the judgment and order of the learned Additional Sessions Judge, 9th Court at Alipore acquitting the seven accused persons of the charge under Section 302 read with Section 34 IPC dated 17th of March, 2006 passed in S.T. No. 85(8) of 2002 corresponding to S.T. No. 2(2) of 2003. At about 2-00 p.m. on 04-02-2001 the opposite parties-accused person nos. 1 to 7 chased Haran Gayen, being armed with bomb, tangee, hesua, lathi, rod etc. Haran Gayen hide himself in the bush near a tree. At first they hurled bombs against Haran. Then Yusuf Gayen dealt blow by means of hesua, while others assaulted Haran Gayen by means of rod and lathi. The defacto- complainant Nawab Ali Gayen, the son of the victim raised hue and cry whereupon the neighbours came out and at the sight of the neighbours the accused persons fled away. Haran Gayen lost consciousness. He was taken to police station and then to Nalmuri Hospital where he was pronounced death. There has been going on dispute between the Haran Gayen and the accused persons over landed properties for a long time. The accused persons were ploughing the lands when Haran Gayen raised protest, as a result of which the incident happened.
This was the FIR lodged by P.W. 1, Nawab Ali Gayen with the O.C. Bhangore P.S. against seven accused persons under section 302/34 IPC and the Bhangore P.S. registered a case, namely Bhangore P.S. Case No. 22 dated 14-02- 2001 under that Section of the law against the accused persons.
Learned Trial Judge framed charges under Section 302/34 IPC and upon completion of trial acquitted the accused persons finding certain inconsistencies in the statements of the witnesses.
It is submitted by the learned counsel for the petitioner that the judgment and order of the learned trial court suffers from basic infirmities and the material evidences were overlooked.
The law is well settled that the Revisional Court in exercise of jurisdiction under Section 482 of the Cr.P.C. would not normally interfere with the judgment and order of acquittal unless the findings of the learned trial court are perverse, or contrary to evidence or are beyond evidence or important pieces of evidence have been completely overlooked. Learned counsel for the petitioner at the very outset and before entering into the evidence of the witnesses referred to the decision in Ayodhya Dube and Ors. vs. Ram Sumer Singh, AIR 1981 SC 1415.
Of the nine witnesses examined by the prosecution the FIR maker Nawab Ali Gayen (P.W. 1), his mother Amina Bibi (P.W. 2), Saukat Ali Gazi (P.W. 3), Momina Bibi (P.W. 4) and Md. Sahidul Gazi (P.W. 5) claimed to be eye witnesses to the incident. The learned Judge was not inclined to believe the testimony of these witnesses, as a result of which the judgment and order of acquittal followed. Other witnesses are formal ones and their evidences do not touch upon the merit of the prosecution case. In order to appreciate whether the findings of the learned Judge can be said to be perverse, it is therefore necessary to state in brief evidences of the said five witnesses.
We have remembered that in the FIR, P.W. 1 has alleged that all the seven accused persons led by Yusuf Gayen dealt blows of hesua on the body of the deceased after the accused persons hurled bombs against him. And then other accused persons further continued with assault upon the victim by means of lathi and rod. In the FIR it is noticed that P.W. 1 claimed that when he was returning home from Baganati village at about 2-30 p.m. he noticed this incident. In evidence there is some development of the prosecution case in these terms that the accused Ejabat Gayen hurled bomb against his father and Yusuf Gayen and other accused persons were with Ejabat Gayen at that time. Ejabat Gayen sat over the chest of his father and Yusuf Gayen struck with the hesua on the leg of his father. A lady, Mafia Khatoon assaulted his father on his testicle by hesua. Then Salehar Bibi assaulted him by a spare part of a cycle on the head of his father. When he tried to reach his father Asgar Molla, Fazer Molla and Kasem Molla chased him and when his father cried out for water then Asgar Molla, Fazer Molla and Kasem Molla passed urine on the mouth of his father. They threatened P.W. 1 who then fled away.
Amina Bibi, P.W. 2 says that when she was cooking about 2-00 p.m. the occurrence took place on the western side of her house in the vegetable field. She rushed to the spot and found Ejabat Gayen hurling bomb against her husband. Then he sat on the chest of her husband and other accused persons assaulted her husband by hesua, rod etc. When her husband asked for water Fazer Ali, Kasem Ali and Asgar Molla passed urine on the mouth of her husband.
P.W. 3 says at about 2-00 p.m. the deceased came to his house but he forbade him against going to the field because the dispute was going on between the parties. The deceased then requested him to accompany him to the field. He followed the deceased. P.W. 1 also came to the field. All the accused persons hid themselves in a vegetable bush in the field of Chayed Molla. When P.W. 1 and his father reached near the place they chased P.W. 1 who then fled away. Then Ejabat, Yusuf and others being armed with hesua, rod etc started assaulting the victim. Yusuf assaulted by means of a hesua. He found bleeding injury on the person of the deceased. When he raised protest Kasem Molla assaulted him. When he along with other raised hue and cry the accused persons fled away.
P.W. 4 says that at 2-00 p.m. in the vegetable garden of Chayed Ali on 14- 02-2001 when the wife of the deceased (P.W. 2) was raising hue and cry she came out and found that Ejabat Ali Gayen sat on the chest of the deceased. Salehar Bibi had a hesua in her hand which was taken out by Yusuf and by means of the same Yusuf struck the deceased below the knee. Mafia Khatoon had a rod on her hand which she pressed on the testicle of the deceased.
P.W. 5 corroborates P.W. 4.
The learned Judge referred to certain inconsistencies in the statements of the witnesses. It appears that the occurrence took place on the vegetable field of Chayed Ali Gazi and the place of occurrence as we find from evidence of the witnesses is on the western side of the house of the deceased. It has come out in unmistakable terms that there had been going dispute over landed properties between the accused persons and the deceased. The learned Judge reasoned that P.W. 1 and P.W. 3 stated in their evidence that the deceased was in a naked condition when he was taken to the police station, while P.W. 2, the wife of the deceased deposed that her husband had a lungi and a genji in her body. It appears to be the reasoning of the learned Judge that the witnesses did not see the occurrence. Further the witnesses stated that the deceased sustained bleeding injuries at the spot and there was trail of blood on the ground but the I.O. did not find any trail of blood in between the place of occurrence and the road. Again P.W. 1, P.W. 2 and P.W. 3 deposed that their wearing apparels were stained with blood and some of them stated that they handed over the wearing apparels to the police while some other stated that the police did not seize anything. I.O. did not collect any blood stained wearing apparels from any of the witnesses who claimed to be the witnesses to the incident. I.O. said in his evidence that had he found anybody having blood stained wearing apparel he would have seized the same. Further the hesua is a sharp cutting weapon which is cylindrical or spindle in shape, while the seized weapon was found oval in shape. Learned Judge reasoned that there was exaggeration in the description of the occurrence made by the witnesses, which resulted out of animosity between the parties. It appears to the learned Judge from evidence that P.W. 3 was not disinterested witness because against the accused persons he had a civil litigation which did not yield any result in his favour. Though P.W. 3 claimed that he was assaulted by Fazer Ali there was no medical evidence in support of the alleged injury and I.O. says, contrary to the evidence of P.W. 3 that he did not narrate the incident to the I.O. Similarly, P.W. 4, though he claimed to be an eye witness to the incident did not make any statement to the I.O. P.W. 5 is a closed relation of the deceased.
The findings of the learned Judge may be criticized on the ground that they are fallible, but when the judgment is placed or considered from the stand point of perversity or basic infirmity it cannot be said that there is any patent illegality or manifest absurdity in the finding. The inconsistencies pointed out are there, although one may differ to agree that they were at all material. The matter of the fact is that evidence of P.W. 3 can hardly be reconciled with FIR. According to P.W. 3, the victim and P.W. 1 came together with the field and P.W. 3 followed them. P.W. 1 was chased whereupon he fled away then the accused persons commenced their act of assault. Contrary to the evidence of P.W. 3 it, appears from FIR that when P.W. 1 was returning from the village of Baganati at 02-30 p.m. he found the accused persons chasing the deceased being armed with weapons. He further hid himself in a bush whereupon Yusuf dealt blow of hesua on his body. He then raised shout. It is in evidence of P.W. 1 that Ejabat Gayen hurled bomb against his father while other accused persons were present with him. P.W. 3 says that the victim did not sustain any injury, as a result of hurling of bomb. Thus, story of Ejabat sitting on the chest of his father and Mafia Khatoon assaulting his father on his testicle by the hesua and Salehar assaulting with a spare part of a cycle do not find birth in the FIR. The question is at what exact time P.W. 1 returned home from a neighbouring village --- whether it was 2-00 p.m. or 2-30 p.m. According to the evidence of P.W. 1 and P.W. 2, occurrence took place at 2-00 p.m. while in terms of FIR, P.W. 1 was returning home from a different village at about 2-30 p.m. It appears from the evidence of the I.O. that P.W. 2 did state to him that out of fear she left the place of occurrence and she also did not state to him that when her husband asked for water Fazer Ali and Kasem Ali and Asgar Molla passed urine on the mouth of her husband. Ejabat's hurling bombs as is claimed by P.W. 1 and P.W. 2 is not in the FIR in specific terms. If we believe the evidence of P.W. 3 to the effect that when P.W. 1 came to the place of occurrence he was chased by the accused persons and then he fled away, and thereafter the incident of assault commenced, then it would appear that P.W. 1 did not see the exact scene of the crime. All the five witnesses are closely related to one another. Although an interested witness may not always be disbelieved there was scope of examination of independent witnesses when the place of occurrence was encircled by a number of houses. Though the witnesses claimed that their wearing apparels were stained with blood no blood stained wearing apparels were found with them in terms of the evidence of the I.O. Unlike the claim of P.W. 4, I.O. says that P.W. 4 did not state to him that she witnessed the incident. On the contrary P.W. 4 stated to him that when she reached the spot she found the deceased lying with bleeding injuries. She also did not state to the I.O. that she found the accused Ejabat sitting on the chest of the deceased or Mafia pressing the testicle of the deceased. P.W. 3 says in his cross-examination that he did not come out with P.W. 1 from his house at the time of the incident. His house is at the distance of five minutes' walk from the place of occurrence. I.O. says that P.W. 5 did not state to him that at 2-00 p.m. on the day of the incident the accused persons hurled bombs against the deceased, nor did he say that he found the deceased lying with profused bleeding or that Yusuf struck the deceased with hesua. He also did not state to the I.O. that Mafia Khatoon pressed the testicle of the deceased. Further, I.O. says that P.W. 5 did not state to him that he saw the accused persons assaulting the deceased. It clearly appears that before the I.O. P.W. 4 and P.W. 5 claimed not to had witnessed to the incident. If evidence of P.W. 1 and P.W. 3 are considered together they failed to be placed side by side consistently. As per the evidence of P.W. 2 she left the place out of the fear.
In this scenario of evidence the learned Judge recorded an order of acquittal and it does not appear to me that the reasonings are perverse. The mere fact that another view is possible upon reading evidence of the witnesses interference with the findings should not be disturbed.
Accordingly, the revisional application is dismissed.
(Partha Sakha Datta, J.)