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Muhib Ali Vs. Basan Ali and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMuhib Ali
RespondentBasan Ali and ors.
Excerpt:
.....learned magistrate also held that the complainant has failed to establish any case of assault on any of the injured persons. 6. it is well settled by the decisions of this court including mathai mathews v. in regard to the finding of the trial court that the prosecution has failed to establish their right over the pond and that the accused persons had a right to fish therein, we find, as already discussed, that reasons given by the trial court and findings based on such reasonings are well justified. the grievance is that the trial court did not elaborately discuss the evidence and came to an abrupt conclusion that the prosecution failed to bring home the charges of assault beyond reasonable doubt......the complainant examined himself and five witnesses including dr. p.k. paul and on behalf of the accused persons one defence witness was examined. apart from examining the witness the accused persons proved a document marked ext. 'ka.5. the defence case in short was that they took settlement of the tank for fishing from the cousin of the complainant, namely, abdul ali, who happened to be the matwali of a mosque. according to the accused the tank belonged to the mosque and after getting the said settlement they in exercise of their right went there; had exercised their right and while so doing they were attacked by the complainant party and there was a mutual assault. over the incident the accused also lodged an ejahar at the police station; which they have proved in the instant case as.....
Judgment:

K. Lahiri, J.

1. This is an appeal directed against an order of acquittal passed on 8-5-1972 by Magistrate First Class at Karimganj in C.R. Case No. 2047, The incident happened as far back as on 4-12-1967 ten long years have rolled since. Delay of the nature, it seems to us, has come to stay in the administrative and forensic processes of oat land. This is by the way.

2. The Appellants excepting Basan AH were put upon their trial to meet two charges, namely, (1) under Section 325 I.P.C. for causing simple hurt to P.W. 1 Muhib Ali, Sukkur and Siffat; and (2) under Section 379 I.P.C. for theft of fry from a tank belonging to the complainant. The Appellant Basan Ali was charged under Section 379 I.P.C. and also under Section 326 I.P.C. for causing grievous hurt to P.W. 4 Must. Martubi.

3. The prosecution story in short is that the complainant Muhib Ali (P.W. 1) was in possession of a tank and he exercised his right of possession over the tank; on the 4th day of December 1967, the appellant along with a number of persons came to poach in the tank and in fact caught fish worth about Rs. 800/-. On this, the complainant protested but was chased away. His sons and wife came to his rescue but they were beaten up by the Appellants. The injured persons were taken to the Doctor who treated them. Thereafter on the 6th of December, 1967 the complainant filed his complaint before the Criminal Court at Karimganj.

4. In support of the prosecution story the complainant examined himself and five witnesses including Dr. P.K. Paul and on behalf of the accused persons one defence witness was examined. Apart from examining the witness the accused persons proved a document marked Ext. 'Ka.

5. The defence case in short was that they took settlement of the tank for fishing from the cousin of the complainant, namely, Abdul Ali, who happened to be the Matwali of a mosque. According to the accused the Tank belonged to the mosque and After getting the said settlement they in exercise of their right went there; had exercised their right and while so doing they were attacked by the complainant party and there was a mutual assault. Over the incident the accused also lodged an Ejahar at the Police Station; which they have proved in the instant case as Ext. Ka. The said criminal case was registered as G.R. Case No. 1022 of 1967. In short the plea of the accused in that they had a right to fish in the tank and they exercised that right and in exercising that right they were obstructed and assaulted by the complainant party.

6. The learned Trial Court has very elaborately and labouriously considered the evidence of each individual witness. He considered that in the instant case three points were pertinent for the purpose of determination of the case. The points are:

1. Whether the incident happened in the land or in the tank belonging to the complainant

2. Whether the accused persons committed theft of fish.

3. Whether the accused persons committed assault on the complainant and his party.

7. The trial Court considered the evidence of each witness threadbare and determined each point in great details. While considering the question as to whether the tank in question in fact belonged to the complainant and as to whether the complainant exercised his right of possession or not, the learned Trial Court also considered the com-plainant's claim as to the ownership of the tank. The learned Trial Court found that there was no documentary evidence in support thereof. The Court also found that there was no other cogent, reliable and unimpeachable evidence to support the claim of the complainant that the tank was his paternal property. In fact from the evidence of P.W. 1 (Muhib Ali) we find that he has admitted that the tank in question belonged to the Mosque. Under these circumstances the conclusion arrived at by the Trial Court was that the complainant failed to prove, beyond reasonable doubt that the tank in question was his paternal property.

8. While considering the question as to the possession of the tank the learned Trial Court considered the evidence on record and found on fact that the complainant could not prove his exclusive possession of the tank as claimed by him. After coming to the above conclusion the Trial Court came to the conclusion, on appreciation of evidence of the prosecution witnesses, that it was not in possession of the complainant. The learned Magistrate considered the defence plea and the evidence of defence to determine as to whether they had the right of fishing in the tank and found that there was enough material emanating from the evidence adduced by the defence witness, cross-examination of the witnesses for the prosecution and document Ext, Ka to substantiate their plea. The Trial Court found on fact that the accused had right of fishing in the tank. In that regard the trial Court considered that the accused did not rest content with the ejahar in support of their plea but adduced defence witness in support thereof These circumstances go to show that at the first possible opportunity the accused made out a clear defence that the tank was settled with them and that they had a right to fish. The complainant did not make any attempt or endeavour to disprove the plea taken up by the accused persons. There is no material to show that Abdul Ali (a cousin of the complainant) was not the Motwali of the Mosque or that he had no power or jurisdiction to settle the same or that he did not settle the tank with the accused persons. In fact no attempt was made by the complainant to examine Abdul Ali in the instant case and no reason was also ascribed by the complainant as to why his cousin was not so examined. In the instant case the complainant having had full knowledge or having notice of the defence did not in any way make any attempt to show that the defence plea was untrue.

9. Situated as he was, the learned Trial Court considering the evidence of both the parties came to the conclusion that the accused had the right and they were successful in establishing their plea.

10. While considering the crucial question of possession vis-a-vis the plea of the accused, the learned Magistrate found and that too very rightly that the complainant failed to describe the boundary of tank in question. On a bare perusal of the complaint petition we find that there is no proper description of tank therein. In fact, it appears that there are two tanks within the land described in the Schedule of the complaint. The prosecution was not sure as to the tank in respect of which the dispute cropped up, This is apparent from the evidence of P.Ws. 2, 3, 4 and 6. Under these circumstances the learned Magistrate came to the conclusion that the complainant failed to prove beyond reasonable doubt their case as to possession. The learned Magistrate also held that the complainant has failed to establish any case of assault on any of the injured persons.

11. Sri S.R. Bhattacharjee, the learned Counsel for the Appellant could not point out any infirmity in the Judgment of the trial Court in regard to the findings found in favour of the accused relating to possession of the tank and their right to fish in the tank. The learned Counsel could not point out any such finding to be unreasonable. The launching pad of attack of the learned Counsel is that the learned Court below ignored the fact that Respondent Basan caused injury on P.W. 4 and other Respondents caused injuries to P.W. 6 Faijur Rahman and two others, namely, Habib Ali and Abdul Sukur. According to the learned Counsel that the complainant brought home the charges of assault against the Respondents and the learned Trial Court has brushed aside that aspect of the case altogether.

12. Before dealing with the question raised by the learned Counsel it is worthwhile to state the extent of powers and Umitation of an Appellate Court to review evidence in appeals against acquittal. In a very recent decision the Supreme Court through Shinghal J. has laid down the principles in Bhagwati v. State of U.P. reported in : 1976CriLJ1171 as under:

6. It is well settled by the decisions of this Court including Mathai Mathews v. State of Maharashtra, (1970) 3 SCC 772 that the power of an appellate Court to review evidence in appeals against acquittals is as extensive as its power in appeals against convictions, and that before an appellate Court can set aside 'an order of acquittal it must carefully consider the reasons given by the Trial Court in support of its decision and give its own reasons for rejecting them. Thus if the finding reached by the Trial Judga cannot be said to be unreasonable, the appellate court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record. This has been held to be so because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate court therefore should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it. Mr. Anthony has made a reference in this connection to the decision in Labh Singh v. State of Punjab : 1976CriLJ21 also. The question therefore is whether it could be said that the finding reached by trial Judge was unreasonable, or whether the view taken by him was a reasonably possible view of this evidenoe on the record.' We have ourselves probed into the evidence re-read the Judgment and did not rest content with the concession made by the Counsel for the Appellant. In regard to the finding of the trial Court that the prosecution has failed to establish their right over the pond and that the accused persons had a right to fish therein, we find, as already discussed, that reasons given by the trial Court and findings based on such reasonings are well justified. They have the backing of evidence on record. Nothing could be pointed out to show that any of the reasoning of finding based thereupon was unreasonable nor to speak of arriving at any other possible conclusions on the basis of the material on the record.

13. Now let us take up the main argument advanced on behalf of that Appellant. The grievance is that the trial Court did not elaborately discuss the evidence and came to an abrupt conclusion that the prosecution failed to bring home the charges of assault beyond reasonable doubt. The learned Trial Court found that the accused persons had the right of fishing in the tank. He also found that the Complainant and his men went to obstruct them from exercising their lawful right. Under these circumstances it cannot be held that they acted beyond their right to thwart the onslaught and causing the injuries. We are of the opinion that no offence under Section 323 or 325 I.P.C. was committed by any of the accused on the facts and circumstances of the case

14. Apart from the above, we find that the accused Basan Ali has been charged for causing injury on P.W. 4 by a stone, We find from the evidence of the witness that she herself was not sure as to who had caused the injuiry in question by throwing the stone. She has admitted in her evidence as follows:

The person who pelted on my leg with a stone might be one amongst the crowd or an outsider.

15. On this evidence it is hardly possible to fasten the guilt of the said accused for hurling stone on P.W. 4 and causing the injury -sustained by her. Further, we find from records that the incident happened on 4-12-1967 and a complaint was filed in Court on 6-12-1967. The complainant was represented by a Lawyer but yet we do not find that this over-act of hurling stone on the leg of P.W. 4 Martubi was ascribed to the accused Basan.

16. Taking all these factors into consideration we are firmly convinced that the order of acquittal passed against Basan is wholly justified.

17. Amongst the rest of the injured persons the complainant chose not to examine Abdul Sukur and Habibulla, but has only produced P.W. 6 Faijur Rahman. There is no mention in the complaint Petition that P.W. 6 was injured. There is nothing in the Complaint to show as to who amongst the accused persons caused the injuries on these persons. This appears to be a very serious omission when the complaint was filed after due deliberation and consideration. No explanation was offered by the complainant as to why he did not mention the names of the assailants in the complaint petition. Apart from that we find that these persons went to obstruct the accused to exercise their lawful right and must have sustained the injuries in the melee and they were the aggressors. It is admitted by the prosecution witnesses that the accused filed a cross-case against them and the complainant and six witnesses were arrested by the police and that the case was still pending. Defence plea that the accused persons also sustained injuries is borne out in their statement under Section 342, Criminal P.C. Ext. Ka and the evidence of D.W. 1 Ahmed Ali.

18. Under the circumstances we hold that there is absolutely no ground to interfere with the order of acquittal. Accodingly we dismiss the appeal.

19. Before parting with the records we desire to point out that we have noted a tendency on the part of the Magistracy to try cross-cases separately by different Magistrates or by the same Court after a long interval. We are of the opinion that when there are cross-cases or wherever the parties are prosecuted for attack on each other arising out of the same incident and there are counter-cases with counter versions, trial should be held separately but, one after the other, by the same Magistrate who should not pronounce judgments till after both the cases are heard But it should be noted carefully that the evidence of one case should not be made use of in the oilier case. This practice will undoubtedly help the cause of justice and avoid conflicting decisions in two cases. This practice has been approved and emphasised by this Court and also Madras High Court in AIR 1930 Mad 190 : 31 Cri LJ 461 (Krishna Pannadi v. Emperor); : AIR1954Mad442 (T. Ramakrishnayya v. State); : AIR1959Mad521 . (In re Mahalinga Thevar); by Lahore High Court in AIR 1936 Lah 356 : 37 Cri LJ 510; (Ujagar Singh v. Emperor) and the Bombay High Court in AIR 1944 Bom 146 : 45 Cri LJ 701 (Banappa Kallappa Ajawan v. Emperor).


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