Judgment:
Partha Sakha Datta, J.
1. Learned Additional Sessions Judge, Purulia in Sessions Case No. 65 of 1997 (Trial No. 24 of 1997) acquitted ten accused persons upon trial of the charges under Section 148, 341/149, 304(Part-I)/149 of the IPC by his judgment and order dated 20-122001 and the present revisional application has been filed by the wife of the deceased Smt. Nanu Sabar of village Boro under P.S. Boro of the district of Purulia on the grounds that there was misappreciation of evidence of the witnesses and in spite of P.W. 1 being eye-witness to the incident her evidence was not believed without any reason and that observation of the learned Judge that as the incident took place amidst darkness the assailants could not be identified was unjustified because the point was not raised by either of the parties in cross-examination of any of the witnesses.
2. One Satyakinkar Mahato of village Boro lodged an FIR with the O.C. of Boro P.S. at 22.25 hours on 05-09-1993 alleging that a meeting in the village had taken place on 05-09-1993 concerning abduction of one Satish Mahato and the deceased Haripada Sabar was called to the meeting. In course of the meeting the deceased disclosed that his two sons-in-law and his wife's sister's husband Gura Sabar had taken Satish Mahato from his house and no sooner had this disclosure been made the people in the meeting became excited and the agitated members of the public assaulted Haripada Sabar. Jaladhar Tantubai and Santosh Mahato informed the incident to the police earlier lest agitation did not flare up further.
3. This has been the FIR which was received at 22.25 hours pursuant to which Boro P.S. Case No. 43 of 1993 dated 05-09-1993 was registered under Section 147/325 of the IPC.
4. The FIR reveals that there was a rumour that Satish Mahato had been abducted from the house of the deceased Haripada Sabar. On 02-09-1993 Haripada came to the house of Madhav and asked him why he was being blamed on account of Satish Mahato being not traced out. Madhav's mother informed the neighbours that it was Haripada who had abducted Satish Mahato and yet he was threatening them. Then it was decided by the village people on 02-09-1993 that the meeting should be called and meeting took place on 05-091993 wherein the incident in question took place.
5. It appears from evidence that the wife of the deceased Nanu Sabar (P.W. 1) lodged a written complaint to the Pradhan, Boro Jaragora Gram Panchayat on 06-09-1993 alleging that at about 06-30 p.m. on 05-09-1993 Bhandu Mahato of the village took her husband Hari Sabar from his house on the pretext of attending a meeting to Kumarpara and without any reason he was severely assaulted and he succumbed to the injuries. In the complaint the names of 11 assailants were mentioned and they are Bhandu Mahato, Chhutu Mahato, Mantu Mahato, Santosh Mahato, Sitaram Mahato, Sambhu Mahato, Nakul Mahato, Srishtidhar Mahato, Lutku Mahato, Rakhohari Mahato and Satyakinkar Marhato. The pradhan of the Gram Panchayat forwarded the complaint to the police station on 06-09-1993 and this was marked 'X' for identification. The pradhan of the Gram Panchayat made a forwarding letter to the O.C. of the police station with the complaint of Nanu Sabar, and that forwarding letter is Exhibit 9. It appears that the information of Satyakinkar Mahato was received on 05-09-1993 at 22.25 hours and on the basis of that complaint case was started. In the FIR of Satyakinkar Mahato there is no name of the assailants and as such the FIR was registered against unknown assailants.
6. Of the 11 persons whose names were mentioned in the complaint addressed to pradhan of the Gram Panchayat by P.W. 1 on 06-09-1993 charge sheet was submitted against ten of them to the exclusion of Bhandu Mahato who allegedly came to the house of the deceased to take him to the meeting in the evening of 05-09-1993. From the FIR it could not be revealed as to the exact hour of the incident of 05-09-1993. Nanu Sabar's complaint addressed to the pradhan speaks of the occurrence at 06.30 p.m.
7. The place of occurrence is said to be Kumarpara at the junction of Kuli Road with Kumarpara which is one of the localities of a big village Boro wherein the police station is situated. The distance between the place of occurrence and the police station is only 2 kms. Now the prosecution examined only five witnesses and of them P.W. 1 Nanu Sabar, P.W. 2 Jhunpuky Sabar and P.W. 3 Mongal Sabar claimed to be the witnesses to the incident, while P.W. 4 Dr. Ajoy Kumar Pakrashi held post-mortem examination on the body of the deceased and P.W. 7 Anathi Nath Panda is the I.O. of the case.
8. Learned trial court did not believe the evidence of the alleged eye-witnesses i.e. P.W. 1, P.W. 2 and P.W. 3 and raised a doubt as to how it could be possible for P.W. 1 to identify the assailants since the incident took place in the darkness. It was argued that this ground is really not impressive because the question of identification was not at issue and when all the people are known to each other and they belonged to the same locality it could not be said that nobody could identify anybody as to who assaulted Haripada Sabar. The question is whether P.W. 1 Nanu Sabar could be believed or not.
9. Nanu Sabar's evidence is that Bhandu Mahato came to her house to call her husband to the meeting and she and her daughter P.W. 2 accompanied her husband to Kumarpara with Bhandu Mahato. In the meeting he found Nakul, Chhutu, Montu, Rakho and Satyakinkar assaulting her husband by means of lathi at random while Sitaram Mahato, Santosh Mahato, Sambhu Mahato, Lutku Mahato and Srishtidhar Mahato were instigating them to assault and kill her husband. Her husband was taken Akro Hospital by police and he succumbed to be injuries. P.W. 2 Jhunpuki Sabar corroborates the evidence of P.W. 1 in material particulars. P.W. 3 Mongal Sabar is the younger brother of the deceased. According to his evidence, Bhandu Mahato came to his house and took his elder brother to Kumarpara and P.W. 1 accompanied her husband. At about 7 p.m. when his elder brother and her wife did not return back he asked P.W. 2 about them. At about 07-30 p.m. he left his house with a torch in order to search out Haripada and his wife (P.W. 1) and when he reached Kumar Kuli at the junction of Kuli Road he found a hazak light burning there and further found Chhutu, Montu, Rakho, Nakul assaulting his elder brother while other accused persons encircling his elder brother. He intervened but he was chased and threatened with consequences. Now there is justifiable ground for discarding the evidence of P.W. 2 and P.W. 3 with respect to their claim of being eye-witnesses to the incident on account of evidence of I.O. (P.W. 5) to the effect that P.W. 3 did not state to the I.O. that Bhandu Mahato came to their house and called his elder brother Haripada Sabar, that he had been to Bariland and found Bhandu Mahato and others talking with his elder brother, that his elder brother's wife also followed Haripada, that as his elder brother and his wife did not return home by 7-00 p.m. he left his house in search of them and that he came to Kumar Kuli, that he found Phagu and Nakul assaulting his brother while other accused persons encircling him, that he requested the assailants not to assault Haripada Mahato further and that he was threatened with consequences. Therefore, since these important pieces of statements as have been made by P.W. 3 in his evidence in court were completely omitted to be mentioned before the I.O. it was truly unwise not to have reliance on the evidence of P.W.
10. Further, even if evidence of P.W. 3 is accepted still then he cannot be expected of seeing the incident of assault because according to his own evidence he left his house for Kumarpara at about 07-30 p.m. while incident allegedly took place by convening the meeting at about 06-30 p.m. Therefore, there is nothing wrong in not believing the evidence of P.W. 3. So far as evidence of P.W. 2 is concerned, there is every risk of accepting her statement because though P.W. 2 says, while corroborating P.W. 1, that she accompanied her mother and father to Kumarpara when Bhandu Mahato came to call her father to the place in connection with the meeting, P.W. 3 says that when he found that even after 07-00 p.m. his elder brother and his wife (P.W. 1) were not returning home he asked their daughter as to the whereabouts of their parents. Therefore, the question would arise as to whether P.W. 2 could really be eye-witness to the incident or not. It is not the evidence of P.W. 3 that P.W. 2 accompanied P.W. 1 to the place of occurrence. Moreover, I.O. says that P.W. 2 did not state to him that she witnessed the incident of assault by accompanying her mother and father to Kumarpara. Therefore, evidence of P.W. 2 and P.W. 3 cannot be placed reliance upon. The question, therefore is now whether P.W. 1 who claims to have accompanied her husband with her daughter (P.W. 2) can be given credence with respect to her testimony that she had been an eyewitness to the incident. If evidence of P.W. 1 is accepted, then the fate of the trial would definitely hinge against the accused persons who are the O.P. No. 1 to 10 (accused persons). Occurrence took place on 05-09-1993 and on the following day P.W. 1, P.W. 2 and P.W. 3 were, as per evidence of P.W. 5, examined. P.W. 2 stated before the I.O. that her mother followed her father and Bhandu Mahato upto Kumarpara. The place of occurrence is said to be a junction of Kulipath. Exactly at the place of occurrence there is house of Kanai Pramanick. P.W. 1 says in her evidence that her husband was lying down in front of the door of Kanai Pramanick. There is no bar in law to record conviction of the assailants on the basis of the solitary statement on oath of an eye-witness. As wife of the deceased, she is definitely interested to see that the culprits are brought to look. Still an amount of corroboration was necessary for the reason i.e. (a) her statement that P.W. 2 accompanied her to Kumarpara so as to follow her husband has been negated by P.W. 3, (b) her particularization of the accused Nakul, Chhutu, Montu, Rakho and Satyakinkar as assailants and the other five as instigators is difficult to be reconciled with the evidence of P.W. 4 who held post-mortem examination because the deceased sustained a ecchymosis over left chest wall, blood in the left plural space and haematoma about 4' diameter in lower lobe left lung and it is difficult to ascertain as to by whose act of assault exactly the deceased succumbed to injuries and thirdly since it has not been brought into evidence that Satyakinkar Mahato, the FIR maker is in inimical terms to P.W. 1 it could not be said that Satyakinkar Mahato deliberately withheld the names of the assailants in the FIR wherein it has been alleged that Haripada was assaulted by the members of the public. It has been submitted by the learned advocate for the accused that evidence of P.W. 1 cannot safely be accepted to be the accurate identification of the assailants in view of assault having been committed in course of meeting attended by a large number of persons. In the complaint addressed to the Gram Panchayat by her she did not say that she and her daughter accompanied her husband to Kumarpara. The evidence of P.W. 1 that her husband was lying down at the doorstep of the house of Kanai Pramanick is interpreted by the defence that she did not witness the act of assault. Further, P.W. 1 has said in her cross- examination that she did not state to the I.O. that she and her daughter (P.W. 2) followed her husband upto Kumarpara. She further said that P.W. 2 did not follow her husband upto Kumarpara. The word 'upto' raises that question whether P.W. 1 could really reach the scene of assault.
11. Since this is a revisional application against the judgment of acquittal the court should exercise the power very sparingly and with great care and caution. It is difficult to hold that the judgment of the trial court suffers from manifest illegality. In this connection, I am prompted to refer to the decision in Akalu Ahir v. Ramdeo Ram : 1973CriLJ1404 , where their Lordships of the Supreme Court observed:
The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. It is further provided in Section 439(5), Cr.P.C. that where no appeal is brought in a case in which an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again on revision, the High Court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme, the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interferring except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. It is not expected to act under Sections 435/439, Cr.P.C. as if it is a hearing on appeal in spite of the wide language under Section 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding and also in spite of the fact that under Section 439 it can exercise inter alia the power conferred on a Court of appeal under Section 423, Cr.P.C. The power being discretionary, it has to be exercised judiciously, and not arbitrarily. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system. In Amar Chand Aggarwal v. Shanti Bose : 1973CriLJ577 , this Court said that normally the jurisdiction of the High Court under Section 439, Cr.P.C. is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on point of law and there has consequently been flagrant miscarriage of justice. In the background of the position just stated a private complainant can only claim a right, in common with all aggrieved parties in a criminal proceedings, to invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an erroneous order of acquittal.
12. Accordingly, the revisional application fails and is dismissed. The judgment and order of the learned trial court is confirmed.
13. Copy of the order shall be sent to the learned Additional Sessions Judge, Purulia for information and necessary action.
14. Urgent xerox certified copies, if applied for, be given to the parties as expeditiously as possible.