D. Pathak, J.
1. This appeal is directed against the Judgment and order dated 16-3-1973 passed by the learned Sessions Judge, L. A. D. Gauhati in Sessions Case No. 2 (K-B) of 1973.
2. All the 19 Respondents were tried by the learned Sessions Judge under Sections 147/447/325/326 and 302/149, Indian Penal Code arising out the following facts:
On 24-5-1971, P. W. 1 Bahar Ali lodged an ejahar stating that his relative Johar Ali, P. W. 3 raised Ahu paddy on 2 bighas of his land. On that day at about 8 A. M. some people of Pachim Deuldi, namely the accused person along with 300/400 people formed themselves into an unlawful assembly armed with daos, lathis, Khappars etc. came to the paddy field, Johar Ali, Refaz and Atowar tried to prevent the accused persons. Then accused Hala-dhar Bepari, Bhabani Sarkar and Kristo Sarkar asked the accused persons to assult Johar Ali, Refaz Ali and Atowar, Accused Khagen and Dayal assaulted Atowar and Refaz and Johar Ali with dao and Khappars causing serious injuries and Sushil and Gokul set fire to the house of Johur Ali and his three houses were gutted by fire, It was mentioned in the First Information Report that the names of the witnesses would be given later at the place of occurrence. It is further mentioned in the First Information Report that the injured persons were lying unconscious and there were many other events which would be divulged at the time of enquiry, On receipt of the First Information Report at 2 P.M., the officer-in-charge of Baghbor Police station at 2.30 P.M. immediately started investigation, went to the place of occurrence reaching there by 5 P. M. He drew up the sketch map Ext. 7 and he also held the inquest report on the dead bodies of Atowar and Refaz and then the dead bodies were sent to Goalpara Civil Hospital for post-mortem examination. The investigating officer seized soma articles and he also arranged the test identification parade by Magistrate Shri T. Hussain, (P. W. 4) of Barpeta which was held on 11-6-1971. On completion of the investigation police submitted charge-sheet against 22 accused persons Including the aforesaid 19 Respondents, The committing Court found a prima facie case against the 19 Respondents and one Dayal Sarkar and sent to the Court of Session to stand their trial. After commitment to the Court of Session accused Dayal Sarkar died and that is why only the aforesaid 19 accused persons were tried by the learned Sessions Judge.
It may be mentioned that during the pendency of this appeal Respondent No. 8, Pagal Rangdas died and his name was struck off by the order of this Court dated 16-8-1974.
3. On behalf of the presecution 12 witnesses were examined and defence did not adduce any evidence and their case is one of complete denial. On consideration of the evidence on record the learned trial Court gave a finding that the evidence adduced on behalf of the prosecution fell far short of the legal proof to bring home the charges against the Respondents. Accordingly the learned trial Court acquitted all the accused Respondents of the charges framed against them.
4. Mr. P.G. Baruah, the learned Public Prosecutor submits that on behalf of the prosecution as many as seven eye-witnesses, namely P. Ws. 1, 3, 5, 6, 8, 9 and 10 were examined and the learned Public Prosecutor submits that the learned trial Court disbelieved the evidence of those eye-witnessea without any reasonable ground. Mr. G. Sarma, the learned Counsel appearing on behalf of the Respondents submits that the learned trial Court rightly did not put reliance on the evidence of the alleged eye witnesses for the reasons stated by him.
5. Now let us see whether the trial Court was justified in not placing any reliance on the witnesses who are alleged to be the eye witnesses according to the prosecution.
6. Before adverting to the discussion of the evidence of the witnesses we may dispose of one point, namely, the criticism made by the learned trial Court regarding the test identification parade, The trial Court rightly came to to the finding that in the test identification parade there was complete irregularity and also a finding that in a case where the persons were known to each other, the test identification parade was of no value. We are completely in accord with the finding given by the trial Court.
7. There is no dispute that Refaz and Atowar died as a result of the occurrence that took place on 24-5-1971.
8. P.W. 2, Dr. S. Kalita held the post-mortem examination on these two deceased persons on 25-5-1971. He found the following five injuries on; Refazuddin:
1. One lacerated wound 11/2' x 3/4' x 3/4' over left cheek on dorsum of mandible.
2. One penetrating wound 2/4' x 1/4' x to the bone over zygomatic process of left cheek
3. One incised wound 1'x 1/4'x 1/4' over right cheek near angle of mandible.
4. One lacerated wound 1 1/2' x 1/2' bone deep over scalp on posterior aspect of right parietal region.
5. One incised wound 11/2' x 1/2' x 1/4' over anterior aspect of the left shoulder.
In the opinion of the doctor death was due to shock and haemorrhage as a result of the injuries sustained by him.
The witness also found the following two injuries on the person of deceased Atowar Rahman:
1. One penetrating wound 1/3'x1/4'x deep to abdominal cavity over lateral aspect of abdominal wall on left side.
2. One penetrating wound 11/2' x1/4' x 11/2' over anterior aspect of neck on left side.
In his opinion the death of Atowar Rahman was due to shock and haemorrhage as a result of the injuries sustained by him.
On the same day the witness also examined Johar Ali (P. W. 3) and found the following two injuries:
1. One bruise 4' x 3' over scalp near posterior frontally,
2. One bruise 2' x 2' over posterior aspect of left arm on middle-third,
In his opinion the injuries were caused by blunt weapon and they were simple,
The witness also examined on the same day Sultan Sk. (P. W. 5) and found the following four injuries:
1. One lacerated wound 1/2'x1/2'x1/4' over scalp on left side of occipital region,
2. One lacerated wound 1'x1/2'x1/4' over left side of abdominal wall.
3. One bruise 4'x 3' over posterior aspect of right forearm on the middle-third.
4. One bruise 2' x 1' over posterior aspect of left forearm on upper third.
In the opinion of the doctor the injuries were caused by blunt weapon and they ware simple.
9. Now let us turn to the evidence of the alleged eye-witnesses. From the evidence of these witnesses it transpires that about 300 to 400 refugees came to the field of Johar to harvest paddy. All these witnesses have stated that Refaz and Atowar went ahead of all the other persons to resist harvesting of paddy by the refugees numbering 300 to 400 including the Respondents.
P.W. 1 is Bahar Ali. He filed the F.I.R. on the same day. The learned trial Court has made comment about the F.I.R. that although this witness knew how to put his signature as can be seen from Ext. 1, inquest report, where he put his signature, there was no reason as to why he should have put his thumb impression in the F.I.R. The learned trial Court observed that the entire prosecution case was on the dictation of the Investigating Officer for the reasons that the trial Court has assigned. Be that as it may, from his evidence we find that accused Khagen assaulted the deceased Refaz with lathi and Pagal Rangdas (who died during the pendency of this appeal as noticed above) assaulted deceased Rafaz with dao, Ram Sarkar assaulted Refaz with spear, Sushil used spear and other accused persons surrounded them.
But in his further evidence he says that he does not know what happened. He also does not know who assaulted Jahar. In his evidence he names about 19 persons and at certain stage of his deposition he says that he could recognize 30 to 40 persons whose names he knew. But here before the court he has mentioned only the names of Khagen, Pagla Rangdas, Ram Shankar, Sudhir, Kistoram, Bhabani Sarkar and Halad har. From his evidence it appears that Refaz and Atowar were surrended by about 300 to 400 people. Therefore it becomes doubtful as to whether he could at all see the infliction of the injuries on Refaz and Atwor by an individual accused person. He stated before the Investigating officer that he did not mention about the details of such assaults including the acts of any individual accused person and in his evidence he ultimately has stated that he cannot give the names of all the accused persons and does not know them.
It is in his evidence that about 700 to 800 families of the refugees are in the same village of Kopastolichar and they have got cultivation over 3000 to 4000 bighas of land. It is further found from his evidence that neither the witnesses nor the refugees have any specific boundaries of their land. The witnesses do not have any patta for the land, though they had earlier some pattas.
His evidence before the committing court has been tendered in the trial Court under Section 288, Cr. P. C. From his evidence before that court a very significant and surprising statement comes to light. He has stated that he knew the names of 30 to 40 persons but did not give their names in the ejahar. At that time he could remember all the names. He has also stated that when three or four days after lodging of the ejahar the Daroga came and he gave the names of 30 or 40 accused persons, and when the ejahar was read over to him he admitted the same to be true. This shows that he was guided by the dictation of the Investigating Officer, in the beginning he did not give the names of the accused persons in the ejahar but they were supplied sub-sequently to the Investigating officer three or four days after. There is a further fact which does not go unnoticed from his evidence. In the F.I.R. this witness has stated that Jahar (P. W. 3) grew paddy only on 2 bighas of land from where the accused persons reaped away the paddy but in his evidence he has stated that Johar (P. W. 3) grew paddy on 7/8 bighas of land from where the accused persons harvested the paddy. This also shows that his evidence cannot be safely relied upon. On consideration of the entire material, the learned trial Court rightly did not put reliance on his evidence.
10. P. W. 3 Jaharuddin was also with Bahar Ali (P. W. 1). He has stated that there was some altercation between Refaz and Atowar with accused Haladhar Bepari. He has stated that accused Haladhar Bepari, Kisto and Bhabani ordered others to assault them. Then a group of 10 to 15 persons surrounded Refaz. He has stated that Ram Sunder then assaulted on the face of Refaz, Pagal Rangdas (since deceased) began to assault Refaz with a dao, Govinda assaulted Refaz with dao and Khagen) there are two Khagens as Respondents and it is not certain which is this Khagen), dealt Refaz lathi blow and Sashi spared Refaz. He has also stated that he was assaulted with lathi by one Khagen. His further statement is that Surjya aimed a blow which fell on his left hand. Then Prafulla dealt a blow on him and he became senseless. In his cross-examination this witness has stated that he rushed to help his brother Refaz in the melee. The trial Court did not put any reliance on the statement that he rushed to help his brother Refaz in the melee. According to his own evidence about 300 to 400 people surrounded them and they themselves were chased by the refugees. Ultimately the witness has admitted that he could not see who assaulted Refaz and Atowar. He also has stated that he did not see any known person assaulting Refaz and Atowar because the refugees surrounded them. The further statement of this witness is that he became senseless seeing his brother Refaz injured and he did not notice well who assaulted him.
It is also further seen from the statement of this witness that the refugees are on their land for the last 3/4 years. This fact itself takes away the winds from the sail of the prosecution case, because the entire prosecution case is that the accused persons came in a body to reap away the paddy from the land of Johar where the occurrence took place. But this statement of this witness shows that the refugees including the accused persons were already for 3/4 years in the land.
That the occurrence did not take place in the manner alleged by the prosecution on the alleged land of Johar can also be found from the evidence of the Investigating Officer P. W. 11. He has stated that at the place of occurrence shown to him, he did not find any blood. He also did not seize anything stained with blood. Is it possible to believe that there would not have been any blood there if actually the occurrence would have taken place there where two persons were fatally injured? P. W. 11 has further said that he did not seize any paddy which makes the fact of harvesting paddy by the accused persons doubtful. Further in the sketch map Ext. 7, nothing is indicated that there was any sign of violence. If 300/400 persons, as alleged were in the place of occurrence, there should have been some sign of violence. This fact also makes prosecution story doubtful that the incident occurred at the place shown to P. W. 11.
From the evidence of P. W. 3, it is further seen that it was not possible on his part to witness the actual assault on Refaz and Atowar when they were surrounded by 300 to 400 refugees and also when he himself was injured. He has candidly stated that he does not know the names of all the accused persons nor does he know all of them. He has stated that all of them were not present in the Court. Due to this state of evidence the learned trial Court did not put any reliance on this witness.
11. P. W. 5, Sultan the father of deceased Atowar-From his evidence it is found that he was assaulted by Gopens-war and Gunari but none of these two aforesaid persons are accused in the case. He has stated in his evidence that about 300 to 400 refugees surrounded them and from his evidence it is further seen that on receipt of injuries on him he became unconscious and so it was not possible for to see who were the assailants of Refaas and Atowar. He has stated in his evidence that about 1000 to 1200 refugee families were there in the same char, and there are only few Muslim families in the char. In view of the above noticed evidence of this witness, the trial Court did not put any reliance on the evidence of this witness also. Similarly the evidence of P. W. 6 was not relied upon because of the exaggeration and embellishment made by him in his evidence. The Court held that his evidence was not dependable. He is the only witness who has said about the setting of fire after the previous incident of assault. According to him Sushil and Gokul set fire to the house of Johar coming in a body of 50/60 persons. But the other witnesses were standing nearby and they did not notice the setting of fire. He could not give the names of any individual assailant of Atowar and Refaz. From his evidence also it is found that about 300 to 400 refugees surrounded Atowar and Refaz and it was difficult for them to notice well who were the actual assailants of Refaz and Atowar. This witness has further stated that the refugees reaped away the paddy from 25 to 26 bighas of land from the land of Atowar and Refaz. We have already noticed that according to the other witnesses the place of occurrence was on the land of P. W. 3 and on that land according to the F. 1. R. the cultivation was only on 2 bighas of land but in the evidence P. W. 1 has stated that it was in about 7/8 bighas of land. But this witness has stated that the refugees have reaped away paddy from 25/26 bighas of land. Therefore the learned trial Court rightly observed that this witness has deposed only from imagination.
12. P. W. 8 is Intaz Ali. He has elaborately stated about the assault on Refaz and Atowar by saying that Sudhir speared Refaz, Khagen dealt lathi blow and Ramsundar speared. Dayal assaulted Atab with lathi. Tarapada used lathi in assaulting Refaz and Ramlal used falla against Refaz and Dinesh Mondal assaulted Refaz with lathi
But it is interesting to note that he failed to identify any of them at the time of test identification parade and he could not identify any of the accused persons in the dock also.
In his evidence he has admitted that he could learn the names of the assailants from Tayeb Ali (P. W. 9) and Aseruddin (P. W. 10) afterwards. So the last statement noticed above is enough for the trial Court to hold that his evidence could not be safely relied upon.
13. P. W. 9 is Tayebuddin. He has stated that a mob of about 300 to 350 persons surrounded Refaz and Atowar and 20/25 persons came out and started assaulting Refaz and Atowar. He has stated that he saw the entire occurrence but he did not see who set fire to the house of Jahar. It is rightly found by the learned trial Court that if he was at all present at the time of occurrence he would have noticed the persons who set fire to the house of Johar Ali (P. W. 3). It is interesting to note from his evidence that during the time of test identification parade about 17 suspects were mixed up in the line but the witness has said that all the accused persons were not in the test identification parade and they were in the hajot. It shows that he could see the accused persons in the hajot. He also does not mention the name of Haladhar, Kristo and Bhabani as the persons instigating others in his statement before the Investigating Officer. He also did not state before the Investigating Officer the details of the assailants of Refaz and Atowar although he has sought to give them in the Court. His evidence is further exaggerated that Johar had 10/12 bighas of land and the refugees reaped paddy from about 3 bighas and while a few of the refugees were engaged in reaping paddy, others were engaged in assaulting. This sort of evidence was rightly not held to be dependable by the trial Court.
14. P. W. 10 Ashoruddin has stated like the other witnesses that Haladhar, Kristo and Bhabani instigated others to assault them. He has further stated that out of 300 to 400 refugees, 10/15 persons came and assaulted Refaz and Atowar. His statement is that he was the eye-witness to the occurrence. But he cannot say who assaulted Johar and Sultan. Like P. W. 9, this witness also did not mention the names before the Investigating Officer while recording his statement of Haladhar, Kristo and Bhabani to be the persons who instigated others to assault; nor did he give any detailed description of the assailants to the Investigating Officer.
15. In view of the above state of evidence the learned trial Court held that the evidence adduced on behalf of the prosecution cannot be safely relied upon and accordingly the trial Court rightly acquitted the accused-respondents of all the charges against them.
16. The scope of appeal against the order of acquittal has been succinctly laid down in a catena of decisions of the Supreme Court. In Sanwat Singh v. State of Rajasthan : 1961CriLJ766 , their lordships of the Supreme Court have neatly summarised the legal position in this regard. In that decision it has been observed-
The different phraseology used in the judgments of this Court such as;
(a) sub-stantial and compellina reasons';
(b) good and sufficiently cogent reasons';
(c) '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 the acquittal was not justified.
Similarly in the case of Ramabhupala Reddy v. State of Andhra Pradesh : 1971CriLJ422 it has been observed:
The Appellate Court should also bear in mind the fact that the trial Court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal. 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 trial Court.
17. Being informed of the legal position noticed above, we are of firm opinion that we do not find any sound and ralid reason to interfere with the Undings recorded by the learned trial Court and to set aside the order of acquittal.
18. In the result the appeal is without merit and the same is dismissed.
K.N. Saikia, J.
19. I agree.