Girish Bayan vs State Of Assam

Heard learned Senior Counsel Mr. S. Dutta for the appellant and Learned Addl. Public Prosecutor Ms. S. Jahan for the State.

This revision petition is directed against the judgment and order dated 25.02.2010 passed by learned Sessions Judge, Dibrugarh, in Criminal Appeal

No. 33(4)/09. By the said judgment learned Sessions Judge, dismissing the appeal, upheld the judgment and order dated 05.10.2009 passed by the

learned Addl. Chief Judicial Magistrate, in G.R. Case No. 268/08, whereby, the petitioner was convicted U/s 323 IPC and sentenced to simple

imprisonment for 1 (one) month.

As per prosecution case on 07.02.2008 at about 6’ clock in the evening, the petitioner Girish Bayan assaulted PW-1 Rupen Bayan in the

campus of his house, upon instigation of Jadu Bora. An FIR was lodged by PW-2, Mamoni Bayan, on the basis of which, police registered a case and

after usual investigation submitted charge sheet against the accused U/s 341/323 IPC. Eventually the petitioner stood trial.

In course of trial, the prosecution examined 5 (five) witnesses and on appreciation of evidence, learned Addl. Chief Judicial Magistrate convicted

the petitioner U/s 323 IPC and awarded sentence as indicated above. On appeal, learned Sessions Judge, Dibrugarh upheld the conviction and

sentence and dismissed the appeal.

Aggrieved, the petitioner filed this revision petition.

I have considered the submissions made by learned Senior Counsel Mr. S. Dutta and learned Addl. Public Prosecutor Ms. S. Jahan and also the

evidence and materials brought on record.

The contention of learned Senior Counsel Mr. S. Dutta is that the prosecution case basically hinges on the oral testimony of the PW-1, PW-2 and

PW-3, who were not all worthy of trust and as such no conviction of could be recorded on the basis of the evidence of these prosecution witnesses.

Supporting the impugned judgment, learned Addl. Public Prosecutor submits, that there was no reason to disbelieve the injured, and as such the

impugned judgment cannot be interfered in exercise of revisional jurisdiction by reappreciating the evidence.

Though, it is the settled position of law that revisional Court is empowered to exercise all powers conferred on the Appellate Court, by virtue of

Section 401 Cr.P.C, the revisional Court has got its own limitation, and as such, the revisional power cannot be equated with that of an appeal. It has

been observed by the Apex Court time and again, that unless, the finding of the court, whose decision is sought to be revised is shown to be totally

unreasonable or grossly erroneous or perverse for being based on no material or wholly ignoring the materials on record, the revisional Court should

refrain from interfering with the judgment or order, even if a different view is possible. At the same time revisional Court also cannot simply washed

off its hands from looking into the facts of the case, if the situation necessitates the analysis of the facts or evidence for purpose of satisfying itself as

to the correctness, legality or propriety of any findings sought to be revised. Keeping in view the above principles and object in view, let me so through

the evidence brought on record.

PW-1, the injured, deposed that while he was away from the house, beyond the embankment at a distance of 150 meters from his house, the

accused suddenly came from back side and hit him with sharp weapon. He raised alarm, hearing which, his daughter came from the house and he

was shifted to hospital. During cross-examination, he admitted that the campus of Jadu Bora is contiguous to his campus. It is pertinent to mention that

as per allegation made in the FIR, accused petitioner assaulted PW-1 upon direction of Jadu Bora, who was ofcourse, not charge sheeted.

PW-2, the daughter of the injured stated, that hearing screame of her father, she came out of the house and saw that Girish Bayan was assaulting

her father. She also raised alarm, hearing which neighboring people came and dispersed them. Accordingly to PW-2, she and PW-3 together came to

the place of occurrence. Accordingly to PW-3 having noticed from the varanda, that accused petitioner was assaulting PW-1, she went to the place of

occurrence, following the PW-2. However, the previous statement of these PW-2 and PW-3 recorded U/s 161 Cr.P.C would show, that none of them

witnessed the petitioner assaulting the PW-1. Therefore PW-2 and PW-3 though deposed projecting themselves as eye witnesses, in fact, none of the

PW-2 or PW-3 was eye witness of the occurrence as revealed from the materials on record. Therefore PW-2 and PW-3 hardly deserve any

credibility.

In the FIR, it was stated that the occurrence took place within the campus of PW-1, whereas, during evidence, all the witnesses including the

injured himself stated that the occurrence took place 150 meters away from his house beyond the embankments.

What therefore, appears to be most important is that both the courts below, ignored the evidence of PW-4, who was the only independent witness

of the case. Testimony of the PW-4 indicated a different story. According to the PW-4, PW-1 entered into the campus of Jadu Bora for collecting

firewood. On being equired by said Jadu Bora, as to why he entered his campus, when PW-1 was hurriedly leaving the campus of Jadu Bora by

crossing the fencing, he fell down by hitting the fencing Wire. The story as revealed from the testimony of the PW-4 and the allegations made in the

FIR, that petitioner assaulted PW-1 upon direction of Jadu Bora as well as the admission of the PW-1, that campus of Jadu Bora is contiguous to his

campus, coupled with material contradiction between the FIR and the evidence of PW-1 as regards place of occurrence would speak loud and clear

that the story sought to be projected by the prosecution through PW-1 PW-2 and PW-3 was handly worthy of inspiring confidence for the simple

reason that prosecution came out with two different story, one through the PW-1, PW-2 and PW-3 and the other by the PW-4. This glaring

inconsistency going to the root of the prosecution case, and having the potential to demolish the entire prosecution case, escaped the notice of both the

courts below. What the prosecution evidence as deposed by PW-1, PW-2 and PW-3 crystallizes is that either all of them had lied before the Court or

put-forward a concocted story by suppressing the real facts and as such no credibilties could be attached to these three witnesses. After discarding

the testimony of these three vital witnesses, the prosecution will be left with no evidence at all, to substantiate the charge against the petitioner.

Thus, totality of the evidence adduced by the prosecution as pointed out above clearly demonstrated, that the prosecution case as deposed by the

PW-1, the injured or for that matter by PW-2 & PW-3 is hardly of any credence. In a criminal case no one can be convicted unless his guilt is proved

beyond all reasonable doubt. The prosecution having failed to adduce any credible evidence to establish the charge against the petitioner, beyond

reasonable doubt, conviction sentenced of the petitioner cannot be sustained.

Accordingly, the appeal is allowed and the conviction and sentenced of the petitioner is set aside.

Send back the LCR.