Brindaban Sutradhar vs Prafulla Sutradhar and Others

J. Sangma, J.—The learned Sessions Judge (Shri P.K. Das) of Barpeta, by his judgment dated 30.1.88 in Sessions Case No. 59(B)of 1985 acquitted the 12 (accused)Respondents of the charge Under Sections 148/302/325/324/149 IPC. As the State did not prefer an appeal, the informant (PW 1) who gave the FIR, brought this revision from the said acquittal judgment but, without impleading the state as party.

The case for the prosecution was this. The informant Petitioner (Brindaban Sutradhar) lodged FIR stating that - at 6.30 A.M. of 27.12.79 while Sunil Sutradhar and Omar Ali, were ploughing land at village Pakabetbari which belonged to Sridam and Kashinath, Sridam went to protest. When Sridam''s party-Kamakhya, Paresh, Kashinath and Gopal also came, the accused-Prafulla, Dhirendra, Biren, Sushil, Siben, Akhil, Bhabendra, Sunil, Ghutu, Swapan, Dulal and Khagendra being armed with lathies, dagger and dao etc. came in a body and assaulted Sridam, Paresh, Kashinath and Gopal with lathi and dagger etc. and Dhirendra assaulted Sridam by a dagger and killed Kamakhya on the spot. On this FIR the Barpeta P.S. registered Case No. 57(12) 79 on 27.12.79 against the 12 accused Respondents. On the same day, but later, the Appellant''s party also ledger FIR against the informant and his party in the same P.S and it was also registered. The I/O, after investigating both the cases, submitted a final report in the case filed by Appellant''s pany. In the Case No. 57(12) 79 the I/O submitted a charge sheet against the 12 Respondents. The Chief Judicial Magistrate, Barpeta committed the case to Sessions Court for trial.

As the Respondents pleaded not guilty to the charge which the learned Sessions Judge framed on 24.9.85 Under Sections 148/302/324/325/149 IPC the prosecution examined 10 PWs who, besides giving oral evidence, exhibited seizure list and material objects which were used in committing the offence charged. Trial court then recorded Respondents'' statement of defence u/s 313 Code of Criminal Procedure. Defence examined 2 DWs.

In his judgment, the learned Sessions Judge discussed the evidence on record. He found that prosecution party and the party of the accused had contiguous land and boundary disputes and that in the occurrence both sides were involved in scuffle and fighting and, therefore, it became difficult to find out as to who is aggressive and who among the Respondents inflicted fatal blow to Karnakhya and injuries to others. So he acquitted all the Respondents of all the charges. Hence this revision by the informant.

In B.N. Banerjee''s "Criminal Pleadings", 2nd Edition (1978) it was noted at page-281 thus:

When the case is instituted on a police report, and not on a complaint the State becomes, to all intents and purposes, a prosecutor, although the police is set in motion by an informant who may be either an aggrieved person or a person not aggrieved at all. The person on whose information the police took cognizance may not be a ''party'' at the trial but as me prosecution was started at his instance he must certainly be interested in the case and is therefore a ''party interested'' in the trial.

In view of this legal position I am of the view that in a revision u/s 397 read with Section 401 Code of Criminal Procedure by a private party like the informant, against the judgment of acquittal passed in a case on police report, the Petitioner must implead also the State as party (Respondent). This is necessary because the State may either support the revision or explain as to why they have not preferred the appeal.

Mr. P. Kataki, learned Counsel for the Petitioner, has submitted that the findings of the trial Judge are perverse and the learned Sessions Judge committed illegality in thinking that the prosecution has not clearly and beyond doubt proved the charge merely because there was a fighting and scuffle between the party of the informant and that of the accused. In D. Stephens Vs. Nosibolla, it was held that the revisional jurisdiction conferred on the High Court u/s 439 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 Govt. has a right of appeal. In Kalandi Charan Pani v. Ganesh Dalal 1992 Cri, L.J. 281 (Orissa) it was held that revisional power of the High Court in dealing with an application by private party for reversal of the order of acquittal is conferred by Sub-section (3) of Section 401; and therefore a High Court in such a case can only direct further enquiry or retrial.

So in view of Section 401(3) Code of Criminal Procedure and the above decision of Orissa High Court, I also now hold that in a revision under Sections 397/401 Code of Criminal Procedure by a private party tike the informant against acquittal judgment, from which the State has die right of appeal, the High Court can not convert the acquittal into a conviction; it can, if satisfied, only remand me case back to the trial court for further enquiry or retrial or for fresh disposal after rehearing on the evidence on record.

In the instant case the learned Sessions Judge found from the evidence that the prosecution party and the accused party who had continuous land and boundary dispute engaged themselves in scuffle and fighting and therefore it became difficult to find out as to which party was aggressive and who amongst the Respondents inflicted fatal blow to Kamakhya and injury to others. The occurrence took place long back on 27.12.79. As the Petitioner did not implead the State as, party (Respondent) I have been deprived of hearing the P.P. I do not therefore think that it would be proper to send back the case to the trial Judge for rehearing of the case afresh on the evidence against the Respondents who had been acquitted long back on 30.1.88.

In the result the revision is dismissed.