Joshu Khan Vs. State of Assam - Court Judgment |
| Criminal |
| Supreme Court of India |
| Mar-07-1979 |
| Criminal Appeal No. 178 of 1973 |
| A.D. Koshal and; S. Murtaza Fazal Ali, JJ. |
| AIR1979SC1549; 1979CriLJ1216; (1979)3SCC424; 1980(Supp)SCC719; 1979(11)LC527(SC) |
| Evidence Act - Sections 145 |
| Joshu Khan |
| State of Assam |
.....32 of the constitution the three petitioners who were detained under section 3 of the conservation of foreign exchange and prevention of smuggling activities act, 1974, contended that in the matter of discharge of executive functions conferred upon him, the administrator of the union territory of goa, daman and diu who passed the impugned orders, is in the same position as a governor of a state or the president who must act on the aid and advice of the council of ministers and that in the instant case the orders of detention having been passed by the administrator himself instead of by the chief minister in the name of the administrator, were invalid. dismissing the petitions, held :1. (a) although section 46(2) of the union territories act, 1963 provides that all executive action of the administrator, whether taken on the advice of his ministers or otherwise shall be expressed to be taken in the name of the administrator, the administrator is not purely a constitutional functionary who is bound to act on the advice of the council of ministers and could not act on his own. the language of arts. 74 and 163 on the one hand and the language of section 44 of the union territories..........were not properly put to the witnesses. we find that attention of witnesses had been drawn to their previous statements and the provisions of section 145 of the evidence act had been substantially complied with. it appears from the evidence of p.w. 12 that p.w. martuz and p w. 1 lebu mian had stated before the police that one chandu mian had exhorted the accused and they did not mention the name of the appellant. on the basis of these material omissions, the sessions judge and could have entertained a doubt regarding the participation of the appellant in the occurrence and it could not therefore be said that the view taken by the judge was legally erroneous or not reasonably possible. thus, even if the high court did not agree with the view taken by the judge, that was no ground to reverse the order of acquittal. the sessions judge had also relied on the improbabilities of the case against the appellant. having regard to the old age of the appellant who was about 80 years of age at the time of occurrence and it is now about 90 years of age, it was most unlikely that he must would participated in the occurrence when he had/his young sons reaping the paddy. for these.....
S. Murtaza Fazal Ali, J.
1. This appeal by special leave is directed against a judgment of the Assam High Court by which the acquittal of the appellant by the Sessions Judge was set aside and he has been convicted under Section 304(1) read with Section 149 and sentenced to R.I. for five years. There were other accused also, but this Court refused leave to them. The short point on which the Sessions Judge acquitted the appellant was that there was no reliable evidence to show that the appellant was present at the place of occurrence. The appellant is alleged to have exhorted the other accused to assault the deceased. The learned Sessions Judge refuced to accept the case against the appellant because some of the eye-witnesses had not stated in their statements before the police that it was the appellant who exhorted the accused to assault the deceased. The High Court found with this line of reasoning on the ground that the statements of witnesses were not properly put to the witnesses. We find that attention of witnesses had been drawn to their previous statements and the provisions of Section 145 of the Evidence Act had been substantially complied with. It appears from the evidence of P.W. 12 that P.W. Martuz and P W. 1 Lebu Mian had stated before the Police that one Chandu Mian had exhorted the accused and they did not mention the name of the appellant. On the basis of these material omissions, the Sessions Judge and could have entertained a doubt regarding the participation of the appellant in the occurrence and it could not therefore be said that the view taken by the Judge was legally erroneous or not reasonably possible. Thus, even if the High Court did not agree with the view taken by the judge, that was no ground to reverse the order of acquittal. The Sessions Judge had also relied on the improbabilities of the case against the appellant. Having regard to the old age of the appellant who was about 80 years of age at the time of occurrence and it is now about 90 years of age, it was most unlikely that he must would participated in the occurrence when he had/his young sons reaping the paddy. For these reasons, therefore, we are not in a position to support the judgment of the High Court. The appeal is allowed and the judgment of the High Court is set aside and the appellant is acquitted of the charges framed against him.