- (1.) Backdrop The prosecution story advanced before the learned Trial Judge reveals as under-- On April 10, 1990 at about 2 p.m. a mob of about 150 persons raided the house of Rohini Kanta Barman in village Madhupur under Police Station Dinhata in the district of Cooch Behar. The mob was armed with lathi, ballam, dagger and other weapons. They initially inquired about Atul Barman but not finding Atul in the house, they began to loot the house of the victim. They tied all the inmates of the family of Rohini Kanta Barman except the wife of Phanindra. They tied Rohini and his wife by the rope with the pole of the fencing of the wall of the house of Rohini. The accused, thereafter, set the house of Rohini on fire. Rohini died on the spot. They kept the body of Rohini on the heap of straw. Paddini also died on the spot, only surviving was the minor boy Santosh who anyhow managed to escape from the clutches of the accused. On the next day Santosh with the help of his brother-in-law lodged the FIR at Dinhata Police Station. The Police initiated a case being Dinhata Police Station Case No. 138 of 1990 dated on June 11, 1990. The Police arrested forty accused and charged them under section 147/148/149/448/342/380/436/ 302 of the Indian Penal Code. The Court below framed charge after nine years on May 17, 1999 when all the accused pleaded innocence and opted to be tried. The prosecution examined twelve witnesses. Evidence PW-1 (Santosh Barman) The witness was the surviving inmate of the house who could manage to escape from the clutches of the accused and lodged the FIR with the police on the next day. He was consistent while deposing before the learned Judge even after about thirteen years. According to him, his father Ramani Kanta Barman and Rohini Kanta Barman were two brothers. They used to stay in village Madhupur under the Dinhata Police Station. Padmini was the wife of Rohini. Ramani and Rohini used to reside separately though theirs house were side by side. At the time of the incident brother of Santosh, Phani and his wife Kanan, his mother Sudharani, his younger brother Sukumar and himself used to stay in his father's house along with their minor niece. In the other house, Rohini was staying with his wife Paddini and their two sons Atul and Protul who were not present at the time of incident. The mob initially inquired about Atul, however, not finding him, began to loot away household articles from both the houses. They tied Rohini and Paddini with a bamboo pole and set the house on fire. Rohini and Paddini were burnt alive. He mentioned the names of some of the accused and identified them on dock. According to him, Netai Sarkar asked the other assailants to set the house on fire and, accordingly, Hamal put on the fire. His sister-in-law Kanan could save the other inmates being the father of Santosh, his mother Sudharani and his brother by untying them. On the next day, he lodged the complaint being accompanied by Atul and Protul. On his instruction, Tapan wrote the complaint where he put his L.T.I. PW-2 (Tapan Kumar Sen) The witness was the scribe of the FIR. He did not state about his personal knowledge of the incident except that he wrote the written complaint as per instruction of Santosh. He read over the same to Santosh when he put his L.T.I. PW-3 (Md. Noor Hosan Mia) The witness corroborated the incident. He was the seizure witness. He, however, did not give any detail narration of the incident and it is not clear whether he was physically present at the time of the incident. PW-4(Chhafi Uddin Mia) The witness was also a villager. He was also not an ocular witness. He witnessed the seizure and put his L.T.I on the seizure list. PW-5 (Ramani Kanta Barman) The witness was also a victim. He corroborated the incident as stated by his son Santosh being PW 1. He also named some of the accused and gave detailed narration of the incident. According to him, when Rohini's wife Paddini was gasping due to burning the assailant brought her downand put her on a heap of straw and then put the said straw on fire. Before going, the mob threatened them with dire consequence in case they would report the incident to the police station. They were under trauma. The next day Santosh could manage to escape and somehow reached the police station with the help of his son-in-law Sunil Barman and lodged the FIR. He also stated that the victim family belonged to Congress whereas the accused belonged to C.P.M. PW-6 (Fanindra chandra Barman) He also corroborated his brother and father. PW-7 (Kanan Bala Sarkar) The witness was the sister-in-law of Santosh. She also narrated the incident in detail. PW-8 (Sudharani Barman) The witness was the mother of Santosh. She also gave her version in detail. PW-9 (Khuki Barman) The witness was the married sister of Ramini and Rohini. She heard about the incident while coming from her in-law's place. She came and saw that Rohini and Paddini were burnt alive. She also stated that the accused belonged to C.P.M whereas they belonged to Congress. PW-10 (Sudharsan Barman) The witness, the brother of Santosh, briefly narrated the incident. Pertinent to note, he was a boy of about 12 years when the incident occurred. PW-11(J. Barik) Dr. J. Barik was the autopsy surgeon. He confirmed that the death was due to shock and haemorrhage as a result of extensive burn and ante-mortem and homicidal in nature. PW-12 (Dipesh Goswami) The witness was the Investigating Officer. He gave details as to how the inquest was made. He also gave details of the seizure. He, however, made two statements that were contradicted by the respective witnesses. He deposed that Ramani Kanta had stated to him that Atul was a habitual thief as he had gathered and that Atul had been arrested in a dacoity case and was residing at Dinhata after being released on bail. He also deposed that Paddini stated to him that Atul Barman shot Dilip Sarkar, a C.P.M leader during a meeting of the managing committee of a local school. He was admitted to Dinhata Hospital in critical condition. Phanindra was confronted with his statement when he flatly denied having made such statement to the Investigating Officer.
(2.) JUDGEMENT & MY COMMENT The learned Judge acquitted all the accused by his eight pages judgment dated September 29, 2004 by discussing the niceties of law without analyzing the evidence in detail, particularly when this offence was one of the rear cases amongst those which we are usually confronted. The offence was not only grievous but also gruesome. The assailants tied unarmed elderly people with bamboo and set them on fire. When they found that the lady was gasping they brought her down and made her laid on a heap of straw and then covered her with further straw and set the straw on fire. In a civilized society, such gruesome murder was committed in broad daylight and obviously in the presence of the entire village people including the minors who must be having such trauma during their life time. Such a gruesome incident, when comes to Court, should be carefully dealt with. The incident occurred in 1990. The charges were framed in 1999 i.e. after nine years and the witnesses were examined in 2003 i.e., after thirteen years of the incident. The Court should analyze each of the evidence dispassionately. One fundamental basic in criminal Law is to see that no one is convicted being not involved in the crime. At the same time the Court should be cautious enough to see that an accused is not scot-free because of the lackadaisical approach of the investigative agency or laxity of the Court in analyzing the evidence. Coming back to the present case I find that the learned Judge in a slipshod manner just referred to the evidence of some of the witnesses being PW-5 and PW-7. He also referred to PW-1. In my humble view, the learned Judge should have been little diligent in analyzing the entire evidence rather than discussing the niceties of law. It would not be proper for me to say that the learned Judge did not consider the evidence. What I intend to say, considering the gravity of the offence he should have analyzed the evidence in detail before coming to a final conclusion particularly when he was signing a judgement of acquittal in respect of all the accused.
(3.) CONTENTIONS BEFORE ME AND MY COMMENT In course of hearing I asked the learned advocate for the petitioner to prepare a chart with regard to imputation. Accordingly, Mr. Satyajit Mondal learned Counsel appearing for the petitioner prepared a chart and handed over the same to Court with copies to Mr. Jyotirmoy Adhikary learned Counsel for the respondent / accused except the respondent No. 41 for whom Mr. Chittaranjan Bag learned Counsel appeared. None of the learned counsel disputed the said chart which was kept on record for my consideration. I have analyzed the said chart and such analysis reveals as follows:- No Name of the accused Persons Witnesses Named of the accused persons 1 Solay (opposite party No. 2) PW-1,5,6,7,8,10 2 Hossain Ali Mia(opposite party No. 3) PW-1,6,7,8,10 3 Mujaffar Mia (opposite party No. 4) PW-1,5,6,10 4 Ismail Mia (opposite party No. 6) PW-1,6,7,8 5 Mobarak Mia (opposite party No. 7) PW-1,5,6 6 Mojammel Mia (opposite party No. 8) PW-1,5,6,7 7 Mojaffar Mia (opposite party No. 9) PW-5,6,7,8, 10 8 Mafijar Mia (opposite party No. 10) PW-1,7 9 MokbulMiah (opposite party No. 11) PW-1,5,6,7,8,10 10 MojammelMiah (opposite party No. 12) PW-1,5,6,7,10 11 Shera (opposite party No. 13) PW-1,5,7 12 Keta Mia (opposite party No. 14) PW-5,6 13 MojibarMiah (opposite party No. 16) PW-1,5,6,7,8,10 14 Jahir Mia (opposite party No. 19) PW-5,6,7 15 SukurMamd. Miah (opposite party No. 20) PW-5,6,8 16 BhajanMahanta (opposite party No. 21) PW-5,10 17 NetaiSarkar (opposite party No. 22) PW-1,5,6,7,8,10 18 Jagadish Barman (opposite party No. 29) PW-5, 6 19 HemalAdhikari (opposite party No. 31) PW-1,5,6,7,8,10 20 AmalAdhikari (opposite party No. 32) PW-5,6 21 Nitish Barman (opposite party No. 33 PW-5,6,8 22 HarendraNath Barman (opposite party No. 34) PW-5,6,7,8 23 Hossain Ali Miah (opposite party No. 35 PW-5,7,10 24 PareshMahanta (opposite party No. 36) PW-5,6,8 25 Jharu (opposite party No. 37) PW-5,6,8 26 Sachin Barman (opposite party No. 39) PW-5,6,7,8 27 TaraniKanta (opposite party No. 41) PW-5,6,7 Above 27 accused were named by more than one witness. They were identified by those witnesses on dock. What overt act they played, in my view, should be separately dealt with and discussed. The learned Judge should have also considered whether such overt act as stated by one witness would find corroboration from the evidence of the other naming the same accused. If such process is complied the learned Judge would be free to pronounce his judgment giving his own view. Myself being the revisional Court is not competent to substitute my view. I am quite aware of the restriction imposed by the legislators while introducing Section 401 of the Criminal Procedure Code. Sub-Section 3 denotes that High Court power of revision must not be deemed to authorize conversion of a finding of acquittal into one of conviction. Rather the legislators thought it fit to restrict the High Court from converting the judgement of acquittal into a judgement of conviction. I have briefly discussed the evidence at the out set. My endeavor was to show from this judgment that the analysis, if any, made by the learned Judge was not sufficient enough to come to a final conclusion on the issue. Mr Adhikary drew my attention to the Apex Court decisions to remind me of my power under section 401. Mr Adhikary relied on the decision Logendranath Jha vs. Polai Lal Biswas, 1951 AIR(SC) 316where the Apex Court observed, "there can be little doubt that he loaded the dice against the appellants, and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general". Relying on this passage Mr. Adhikary contended that it could not be said a rarest of the rare cases where I should interfere under Section 401. Even if I remand the case to the Court below the Court would obviously be influenced by my observation. He also relied on the decision in the case D. Stephens vs. Nosibolla, 1951 AIR(SC) 196. Apex Court observed, "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". In my view this judgment would rather strengthen my view as I find the learned Judge committed manifest illegality by not analyzing the evidence in detail which would amount to gross miscarriage of justice. It is not my view that he misinterpreted the law or misconstrued the evidence on record. Such view I could subscribe sitting on appeal over the judgment if I was satisfied on that score. Sitting in revisional Court neither I am competent to do so nor I wish to venture. Mr Adhikary also relied upon the decision in the case of Bindeshwari Prasad Singh vs. State of Bihar (now Jharkhand), 2002 6 SCC 650. Paragraph 14 was relied upon wherein the Apex Court observed that under section 401 reappraisal of the evidence and then directing retrial, would amount to loading the dice heavily against the accused. Mr. Adhikary also cited the decision in the case of K. Chinnaswamy Reddy vs. State of Andhra Pradesh, 1962 AIR(SC) 1788. Citing the aforesaid decision Mr. Adhikary contended that I should think twice before I upset the judgement of acquittal as the retrial would be a mere formality in view of the fact that the conviction would be an obvious consequence in view of the order of remand. Adopting the submission of Mr. Adhikary, Mr. Bag contended that Opposite No. 41 was named by only three witnesses being Pw-5, 6 and 7 without giving any details of the overt act. In such event the judgment of acquittal in favour of accused/opposite party No. 41 should not be interfered with.;