Mujibar Rahaman Vs. State of West Bengal and ors. - Court Judgment

Excerpt:
- partha sakha datta, j.1. this application under section 482 of the cr.p.c. is directed against the judgment and order dated 27th of april, 2007 passed in sessions case no. 84 of 2006 corresponding to sessions trial no. 53 of 2006 arising out of kaliagunj p.s. case no. 107 of 2002 dated 9th of september, 2002 by the learned sessions judge of uttar dinajpur at kaliagunj whereby the learned judge acquitted the five opposite parties of the charge under section 341/326/307/302/34 of the ipc.2. mujibar rahaman, the present petitioner lodged a written ejahar with the o.c., kaliagunj p.s. at 6-05 hrs. on 9th september, 2002 alleging that on the previous day , i.e. on 8th of september, 2002 at about 7-00 or 7-30 p.m. rafiuddin sarkar was returning home from hut when the accused persons attacked him and opened fire from his back. rafiuddin fell down. some persons came at the spot when the accused persons fled away. injured was removed to kaliagunj hospital via kaliagunj police station and then to raigunj hospital and then to calcutta medical college and hospital.3. kaliagunj p.s. recorded the p.s. case no. 107 of 2002 dated 9th of september, 2002 under section 341/326/307/34 ipc and took up investigation of the case. after registration of the case the victim died in calcutta medical college and hospital and then charge sheet was submitted under section 302 ipc along with the other aforesaid sections of the law. the learned judge framed charges under the aforesaid sections of the law, and upon completion of trial recorded an order of acquittal which is challenged here on the ground that the learned judge disbelieved without any justifiable reason the dying declaration of the victim made to p.w. 6 abdul rashid and p.w. 7 abdul samad and also the convincing evidence of p.w. 5, dr. nirmal chandra tripathi and if evidence of p.w. 5, p.w. 6 and p.w. 7 is believed which cannot be disbelieved by any reason whatsoever then the judgment and order of acquittal must not stand on the ground of perversity of approach of the learned judge.4. i have heard mr. sengupta, learned senior advocate appearing for the petitioner and mr. sudipta maitra, learned advocate appearing for the opposite party no. 1 to 5 and mr. barin roy, learned advocate appearing for the opposite party no. 6, namely the state of west bengal.5. the prosecution examined 14 witnesses, while the defence examined one witness. the fact of the matter is that there is no direct evidence, no circumstantial evidence. the only evidence on the basis of which the defacto complainant wants to have reversal of the order of acquittal is the alleged dying declaration of the victim made to p.w. 6, p.w. 7 and also to p.w. 5. it appears to me from the evidence of the witnesses that evidence of p.w. 5, jhantu saha, p.w. 2, gour das, p.w. 3, mujibar rahaman, the fir maker, p.w. 6, abdul rashid, p.w. 7, abdul samad, p.w. 8, jagannath roy, p.w. 9, asit das, p.w. 10, ram chandra thakur and p.w. 11, chaita roy require consideration only so as to find out whether the story of dying declaration allegedly made by the victim to p.w. 6 and p.w. 7 is believable. the further question would be whether the evidence of p.w. 5, dr. nirmal chandra tripathi who speaks of dying declaration of the victim to him can be acceptable. p.w. 1 claims that he along with p.w. 9 and p.w. 10 took the injured by taxi first to kaliagunj police station and then to kaliagunj hospital and then he was removed to raigunj hospital. p.w. 9 and p.w. 10 who according to p.w. 1 accompanied him to the police station and kaliagunj hospital were declared hostile by the prosecution only on the ground that these two witnesses declined to say before the court on oath that the injured disclosed to them the names of the assailants. it is on this count that they were declared hostile. but the point that went unnoticed is that if p.w. 1, p.w. 9 and p.w. 10 had gone together with injured to kaliagunj p.s. and then to the hospital, then definitely p.w. 1 also would be telling before the i.o. like p.w. 9 and p.w. 10 that injured disclosed to them the names of the assailants on the way to kaliagunj hospital. that is to say it could not be understood how such dying declaration could be made to p.w. 9 and p.w. 10 alone, when p.w. 1 also was accompanying the injured along with p.w. 9 and p.w. 10. the prosecution does not claim that the disclosure of the names of the assailants was made to p.w. 1 also by the injured when p.w. 9 and p.w. 10 were present. evidence of p.w. 2 is not worth considering but it is important in the sense that he came to the place of occurrence and found the injured in 'unconscious condition'. he mentions the names of p.w.1, p.w. 9 and p.w. 10 as the persons who immediately came to the place of occurrence and who removed the injured to police station and then to kaliagunj hospital by taxi. p.w. 3 is the defactocomplainant and his evidence is somewhat contradictory to the evidence of p.w.1, p.w. 2, p.w. 9 and p.w. 10 as he claims that he took the victim to kaliagunj police station and then to kaliagunj hospital. he does not mention the name of p.w. 1, p.w. 9 and p.w. 10 to be his companions in the matter of removal of the injured to the police station and then to the hospital. he further claims that he also took the injured to raigunj hospital from kaliagunj hospital. interestingly, this witness does not mention anything about dying declaration.6. he straight way gives the evidence that when he rushed to the place of occurrence he found that the victim was fired by gun; and abdul bakir, abdul kafi, rejual rahaman and amjad ali caused the mischief. this evidence cannot be accepted because it is not his bold claim that he found these persons to have caused fatal blow to the victim. it is also not the bold claim either in the fir. p.w. 6 says for the first time that on the way to raigunj hospital the injured disclosed the names of assailants who are the five opposite parties herein. names of p.w. 6 and p.w. 7 have been mentioned by p.w. 3. p.w. 6 claims that he also was member of party that took the victim to kaliagunj police station and then to kaliagunj hospital and then to raigunj hospital. but p.w. 1, p.w. 8, p.w. 9, p.w. 10 and p.w. 3 who claimed to have been the members of the party taking the victim to the hospital from the police station do not say anything about dying declaration of the victim. in the circumstance, the question may legitimately arise as to how far evidence of p.w. 6 that on the way to raigunj hospital the victim made dying declaration is believable. victim was taken to the raigunj hospital on 8th of october, 2002 which is the date of the incident. surprisingly, p.w. 7 who also speaks of dying declaration says that such dying declaration was made on 9th october, 2002 and interestingly, p.w. 7 also claims to be a person who accompanied p.w. 6, p.w. 3 and others first to the thana and then to the kaliagunj hospital and then to the raigunj hospital. p.w. 11 is a taxi driver and by his taxi the victim was taken to kaliagunj police station and then to kaliagunj hospital and then to raigunj hospital by the same taxi and this witness says that the victim was not in a position to speak on the way from the place of occurrence upto the raigunj hospital. in such circumstances, the claim of p.w. 6 and p.w. 7 that the victim made dying declaration cannot be accepted particularly when both p.w. 6 and p.w. 7 contradict each other as to the day on which such dying declaration was made.7. as to the dying declaration said to have been made before p.w. 5 by the victim we find from evidence of p.w. 5, dr. nirmal chandra tripathi who was attached to the calcutta medical college and hospital that on 9th of september, 2002 p.w. 6 brought the victim to the hospital and found that the patient was conscious and restless. one bullet injury was present on the back side of the chest and waist and his report which is exbt. 2 reveals that the patient stated to p.w. 5 when he was brought to the calcutta medical college and hospital at about 3-00 p.m. on 9th october, 2002 that he was fired by riajul with his associates. it is submitted by mr. sengupta, learned senior counsel appearing on behalf of the defacto-complainant that the learned trial court did not take into consideration this exbt. 2 containing the dying declaration of the victim before the doctor. true it is, evidence of p.w. 5 has not been considered separately by the learned judge but evidence of p.w. 5 has been recorded and there was general survey of all the relevant witnesses who spoke of dying declaration. the learned judge in the trial court observed that the prosecution failed to prove that the deceased was in a fit state of mind to make statement as to the persons who caused assault on him. in cross-examination p.w. 5 has stated that without perusing the papers concerning previous treatment it was not possible for him to say as to whether the patient was capable or not of making any dying declaration after receiving the injury. mr. maitra, learned advocate appearing for the opposite party has argued that when there is reasonable grounds to discard the evidence of p.w. 6 and p.w. 7 who claimed to have been told by the victim as to the identity of the assailants then it amounts to this that in the afternoon of 9th of september, 2002 the victim was stating for the first time before p.w. 5 the names of his assailants but p.w. 5 has not recorded that the patient was able to make any statement, and still then such a statement is so cryptic that it is difficult to conclude as to who amongst the five accused persons caused assault on the deceased. it is submitted that even if the so-called dying declaration made to p.w. 5 is accepted a grey area remains as to who fired from the gun ---- whether it was riajul himself or the other accused persons. the argument is not without substance. to p.w. 5 the injured did not mention the names of the assalants except riajul. it was abdul rasid (p.w. 6) whose name appears in the injury report to be the person who brought the victim to the calcutta medical college and hospital. p.w. 6's evidence is that on the way to raigung hospital from kaliagunj hospital the victim disclosed the names of all the assailants. his evidence, as we have seen earlier has been contradicted by p.w. 7 who says that such dying declaration was made on 09-09-2002. moreover, evidence of p.w. 6 and p.w. 7 do not find support from the evidence of the other witnesses which we have already discussed above. in his examination-in-chief p.w. 6 says that on the way to raigunj hospital the injured disclosed the names of ahed ali, abdul kafi, abdul baki, riajul rahaman and amjad ali but at the same breadth he also stated that at calcutta the injured disclosed the name of one riajul islam who first opened fire. but riajul islam who according to p.w. 6 opened fire for the first time was not the accused before the learned judge. it is not in his evidence before whom the victim disclosed such names in calcutta. the purported dying declaration is cryptic, apart from the fact that the doctor writes one sentence in his own english. what the injured said has not been reproduced in verbatium though the doctor claims that he recorded the verbatium statement of the patient. signature of p.w. 6 appears in the injury report. it is not known whether any other person was present when such declaration was made. given the nature of injury it is very doubtful whether the patient was in a position to speak particularly when p.w. 11 said in his evidence that on the way from kaliagunj hospital to raigunj hospital the patient was not in a position to speak. it is also in evidence of p.w. 2 that at kaliagunj police station where the injured was brought he was lying unconscious. from raigunj hospital the patient was brought by ambulance to calcutta medical college and hospital. from raigunj to calcutta is a long distance and evidence has it that the patient did not make any statement before the attending physician at kaliagunj or the attending physician at raigunj hospital. as per evidence of p.w. 2 and p.w. 11 he was unconscious. the question would be whether on the way from raigunj to calcutta medical college and hospital by an ambulance which is a long distance the patient regained consciousness. what sort of treatment was given to the injured at kaliagunj and raigunj is not known. whether it was possible for the injured to regain consciousness at calcutta medical college and hospital is definitely a question that cannot be lost sight of. in the circumstance, it is risky to record conviction of the opposite parties on the solitary evidence of p.w. 5. no amount of credence can be attached to the evidence of p.w. 6 and p.w. 7. the claim of dying declaration is also doubted as in the fir it has been alleged that the victim was shot from his behind. in such circumstances, it would not be prudent for this court to interfere with the finding of the learned trial court when the scope of the court of the revisional jurisdiction is really not as wide as in appeal. the legal position in this respect has been made clear by the supreme court in good number of decisions and ready reference can be made to the decisions, in k. chinnaswamy reddy v. state of a.p. : [1963]3scr412 ; mahendra pratap singh v. sarju singh : 1968crilj665 ; khetra basi samal v. state of orissa : [1970]1scr880 ; pakalapati narayana gajapathi raju v. bonapalli peda appadu : air1975sc1854 ; ayodhya dube v. ram sumer singh : 1981crilj1016 ; vijender v. state of delhi : (1997)6scc171 . right in the year of 1951 the supreme court observed in d. stephens v. nosibolla (1951) 1 scr 284 as follows:the revisional jurisdiction conferred on the high court under section 439 of the code of criminal procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the government has a right of appeal under section 417. it could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. this jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record.8. and the same principle has been reiterated in johar and ors. v. mangal prasad and anr. : 2008crilj1627 where their lordships of the supreme court observed as follows:revisional jurisdiction of the high court in terms of section 397 read with section 401 of the code of criminal procedure is limited. the high court did not point out any error of law on the part of the learned trial judge. it was not opined that any relevant evidence has been left out of its consideration by the court below or irrelevant material has been taken into consideration. the high court entered into the merit of the matter. if commented upon the credentiality of the autopsy surgeon. it sought to re-appreciate the whole evidence. one possible view was sought to be substituted by another possible view. 10. sub-section (3) of section 401 reads as under: 401 (3). nothing in this section shall be deemed to authorize a high court to convert a finding of acquittal into one of conviction. 9. technically, although ms. makhija may be correct that the high court has not converted the judgment of acquittal passed by the learned trial court to a judgment of conviction, but for arriving at a finding as to whether the high court has exceeded its jurisdiction or not, the approach of the high court must be borne in mind. for the said purpose, we may notice a few precedents.' in the written note of arguments it has been submitted by the petitioner's counsel that the learned sessions judge relied upon the defence alibi spoken through d.w. 1 that two accused persons, namely amjad ali and aahed ali came to calcutta on the day of the incident to meet their advocate in high court. it does not appear that the learned judge recorded acquittal on the strength of the defence evidence. learned judge recorded acquittal as he was not inclined to accept the story of dying declaration. learned counsel for the petitioner referred to the decision in popular muthiah v. state represented by inspector of police (2007) 1 c.cr.lr (sc) 25. this decision has no manner of application in the instant case. mr. maitra had raised a very pertinent point which is that if the victim was first taken to the police station then it is not understandable why fir was not lodged then and there. occurrence took place at 7-30 p.m. on 8-9-2002 and even though the victim was immediately taken to kaliagunj hospital on that day fir was lodged at 6-05 hrs. in the evening on 9th september, 2002. if according to p.w. 6 and p.w. 7 the victim was able to make any statement and made any really dying declaration it ought to have been found berth in the fir which was lodged in the evening of the next day of occurrence. further, the fir was lodged even after the victim allegedly made dying declaration before p.w. 5.10. in these circumstances, i do not find the learned judge committed any gross illegality in recording an order of acquittal.11. application is dismissed.12. a copy of this judgment shall be sent to the learned sessions judge, uttar dinajpur at kaliagunj for information and necessary action.13. urgent xerox certified copies of this judgment, if applied for, be supplied to the parties as early as possible.