- (1.) SPECIAL leave granted in SLP (Crl.) No. 1803 of 1987.
(2.) THIS order will dispose of Criminal Appeal No. 35 of 1988 and the appeal arising out of SLP(Crl.) No. 1803 of 1987. Criminal Appeal NO. 35 of 1988 has been filed by the State of Assam against the acquittal of the respondents while the appeal arising out of SLP (Crl.) No. 1803 of 1987 has been filed by the complainant- first informant against the acquittal of the respondents. Both the appeals question the correctness of the judgment of the High Court of Gauhati dated 10th April, 1987. " The respondents were tried by the learned Assistant Sessions Judge, Tezpur for offences under Sections 307/149 and 326/149 IPC for causing injuries to PW. 2, Bapdhan Koch on 10th September, 1977 at about 9.30 a.m. On conviction they were sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000.00 and in default to undergo rigorous imprisonment for one month each for the offence under Sections 307/149. They were also sentenced to suffer rigorous imprisonment of three years and to pay a fine of Rs. 1,000.00 and in default to undergo further rigorous imprisonment for one month for the offence under Sections 326/149. Their appeal against conviction and sentence was heard by the learned Sessions Judge, Kamrup to whom it was transferred by an order of the High Court. The appeal was dismissed on 4th February, 1985. The respondents then filed Criminal Revision No. 89 of 1985 in the High Court against their conviction and sentence. The High Court on 10th April, 1987 accepted the revision and set aside the conviction and sentence of the respondents and acquitted them of the charges under Sections 307/326/149 IPC and directed them to be set at liberty. We have examined the record and also perused the evidence of the three eye witnesses produced by the prosecution, namely -PW.2, PW.6 and PW.8. We entirely agree with the High Court in so far as the non reliability of PW.6 and PW.8 is concerned. It deserves a notice that though the occurrence took place on 10th September, 1977, PW.6 was examined for the first time on 29th June, 1978 i.e. after about 9-1/2 months of the occurrence by the investigating officer. On her own admission PW.6 did not disclose about the occurrence during this entire period to anyone. The prosecution failed to assign any reason for the delay in examining her after such a long period. So far as PW.8 is concerned, his statement was recorded more than five months after the occurrence by the investigating officer on 3rd April, 1978. Like PW.6 he also admitted that he did not disclose to anybody during those five months about the fact of his witnessing the occurrence and had remained silent with regard to the occurrence during that period. The prosecution has failed to explain the cause of delay in examining PW.8. These circumstances create a doubt about the trustworthiness of PW.6 and PW.8 and when considered alongwith the other infirmities in their statements, it cannot be said that the High Court fell in any error in finding these two witnesses as unreliable witnesses.
(3.) SO far as PW.2 is concerned he is an injured witness. The High Court found his statement at the trial to be discrepant when compared with his statement recorded by the Magistrate, PW.3 under Section 164 Cr.P.C. we find that in the statement recorded under Section 164 Cr.P.C., PW.2 had not assigned any specific role to either of the respondents. An improvement was, however, made only at the trial when he tried to assign specific injuries to each of the accused. The High Court found the evidence of PW.2 to be discrepant on vital and material facts. Our appraisals of his testimony shows that there are some infirmities and discrepancies in his statement. He has tried to improve the case at the trial on points which he considered to be material. His credibility stands shaken. Even if it may be possible to say that the High Court need not have in exercise of its revisional jurisdiction, reappreiated the evidence on the record which had been appreciated by the two Courts but in doing so the High Court cannot be said to have committed any jurisdictional error. The appreciation of evidence by the High Court does not suffer from any defect. On re-appreciation of the evidence by the High Court, it was found that the prosecution evidence was not trustworthy and reliable. In so far as the reliability of PW.2, the injured witness is concerned, the view which has been taken by the High Court is a possible view and cannot be said to be either perverse or unreasonable. Under these circumstances we are not inclined to interfere with the order of acquittal recorded about 10 years ago for an occurrence which took place about two decades ago. The appeals are accordingly dismissed. Bail bonds of the respondents are discharged.;