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2019 Supreme(Gau) 593
IN THE HIGH COURT OF GAUHATI
RUMI KUMARI PHUKAN, J.
Joydev Barhoi - Appellant
Versus
Jiten Sarkar and Ors - Respondent
Crl. Rev. P. 367 of 2009
Decided On : 27-03-2019
For the Appellant :M.H. Rajborbhuiya, A. Mannaf and R. Dev, Advocates
For the Respondent:S.K. Talukdar, Advocate and B.J. Dutta, Addl. P.P.
Headnote:
Indian Penal Code –Sections 302, 34 –Criminal Procedure Code –Section 313 –Issue to acquit –The learned counsel for the appellant although has submitted that there is sufficient ground to interfere into the order of acquittal passed by the learned trial Court but he has not addressed his arguments in total although he was given the opportunity to argue the case – The matter being related to 2007 and pending before this Court since 2009, the same is taken up for disposal accordingly, representing the State respondent learned counsel for the respondent No. 1 –Held, In view of such confessional statement made by the accused which has been duly proved, it can be seen that accused himself admitted the guilt and accused was no way implicated in his statement –The accused in his confessional statement has stated all about the facts that has been stated by his wife and daughter in course of evidence that as the deceased entered into their house to commit rape upon his daughter, so hearing hue and cry he chased away the accused who ran away from his house and thereafter gave a blow to him – As has been discussed above, in the instant case, nothing is brought on record to show that there was wrong-appreciation of evidence which may result in miscarriage of justice so as to interfere into the findings of the learned trial Court –The High Court cannot substitute its own opinion even after re-appreciation of evidence under the revisional jurisdiction, which is mandated by law –Revision dismissed
JUDGMENT :
RUMI KUMARI PHUKAN, J.
1. This revision has been preferred against the judgment and order dated 29.06.2009, passed by the learned Sessions Judge, Morigaon in Sessions Case No. 106/2007, whereby the learned Court has convicted the accused No. 1 Rupchand Sarkar but has acquitted the accused No. 2 Jiten Sarkar.
2. The prosecution case may be briefly narrated as follows: an FIR was filed by one Joydev Baroi on 29.06.2007 alleging inter alia that on the previous night i.e. on 28.06.2007 his elder brother Arjun Baroi was sleeping along with his another brother Mahadev Baroi at the 'Pamghar' at Sutradol Village but at about 11:00 P.M., he was not found on bed. Said Mahadev hearing the cry at about 1:00 A.M. at night, searched for his brother Arjun Baroi and then he was found lying outside with a stab injury on his neck. Although some sort of nursing was provided to Arjun but he died. Said Mahadev while he went in search of Arjun, could notice three/four persons running away from the side of Arjun and two of them were Rupchand Sarkar and Jiten Sarkar.
3. On being informed about the incident by Mahadev, his brother Joydev filed the aforesaid FIR. On the basis of the FIR, the Jagiroad P.S. GDE No. 777, dated 29.06.2007 was registered u/s. 302/34 IPC. The investigation commenced forthwith, inquest on the dead body was done, post mortem examination was also conducted on the dead body. The accused persons were arrested and accused Rup Chand Sarkar made a confessional statement in the Court. The statement of the other witnesses were also recorded and after completion of the investigation, the charge sheet u/s. 302/34 of the IPC was filed against accused Rup Chand Sarkar and Jiten Sarkar.
4. The case being triable by the Court of Sessions, the case was committed to the Court of Sessions and accordingly the learned Sessions Court after hearing the learned counsel for both the parties, framed charges u/s. 302/34 of the IPC and both the accused persons pleaded not guilty to the charge.
5. During the course of hearing, the prosecution examined 15 witnesses and the defence examined none. The plea of the defence is of total denial.
6. The statement of the accused persons were recorded u/s. 313 of the CrPC.
7. The accused Rup Chand Sarkar made a confessional statement before the Court and he being a dumb person, the same was interpreted by an interpreter.
8. On the conclusion of the trial, the Court held accused Rup Chand Sarkar guilty u/s. 304 Part-II IPC, instead of Section 302 IPC and sentenced him to R.I. for eight years and a fine of Rs. 1000/-, in default of fine further R.I. for one month. But however acquitted the accused Jiten Sarkar due to dearth of evidence to prove the charge against him.
9. Now the present Revision Petition has been preferred challenging the acquittal of accused Jiten Sarkar on the ground that the learned trial Court has failed to appreciate the evidence in proper perspective of law and facts which has resulted in acquittal of the accused Jiten Sarkar. It has been challenged that the learned Sessions Judge ought to have accepted the evidence of PWs. 6, 8 and 9 who disclosed the involvement of the accused Jiten Sarkar along with the other accused. Thus it has been challenged that the learned Court below whimsically has passed the order without any lawful basis and there is nothing to show that accused Jiten Sarkar is innocent to get the verdict of acquittal on the benefit of doubt.
10. The learned counsel for the appellant Mr. A. Mannaf although has submitted that there is sufficient ground to interfere into the order of acquittal passed by the learned trial Court but he has not addressed his arguments in total although he was given the opportunity to argue the case. The matter being related to 2007 and pending before this Court since 2009, the same is taken up for disposal accordingly, in presence of Mr. B.J. Dutta, learned Addl. P.P., Assam representing the State respondent and Mr. S.K. Talukdar, learned counsel for t
