Md Motaleb Ali Mullah vs State Of Assam And 12 Ors

Mir Alfaz Ali, J

This appeal is directed against the judgment and order dated 10.11.2016, passed by the learned Sessions Judge, Barpeta, in Sessions Case

No.61/2012, whereby, the learned Sessions Judge acquitted the respondents No. 2 to 13.

As per prosecution case, on 13.09.2007 at about 6 AM, in the morning, a quarrel ensued between Fakar Mollah and Abu Taher and his son Farid

Ali regarding parking of a vehicle at Kaljhar stand and during the quarrel, the accused Taher threatened Fakar Mollah with dire consequence. There

was a meeting on the same day at about 5.30 PM, in the house of Azizur Rahman to settle the said matter. In the said meeting, the accused persons

named in the FIR and their relatives attacked Fakar Mollah with various deadly weapons and killed him. An FIR was lodged by PW-1, Motaleb Ali

Mollah, on the basis of which, police registered Barpeta P.S. Case No. 650/2007 under Section 147/148/149/326/302 IPC and on completion of the

investigation submitted charge sheet against 18 accused persons and all of them stood trial.

In course of trial, learned Sessions Judge framed charges against all the 18 accused persons under Section 148/149/326/302 IPC, to whom all of

them pleaded not guilty. Accused Abdul Hussain died during pendency of the trial and Taizuddin, another accused was found to be juvenile and his

case was sent to Juvenile Justice Board and ultimately trial against 16 accused persons continued. In order to bring home the charges, prosecution

examined as many as 11 witnesses. Two witnesses were examined by court as court witnesses. After completion of the prosecution evidence, the

accused persons were examined under Section 313 CrPC, wherein they pleaded innocence and examined two witnesses in their defence. On

appreciation of the evidence, learned Sessions Judge, acquitted all the accused persons.

We have heard Mr. B.M. Choudhury, learned counsel for the appellants and learned Sr. Counsel, Mr. D. Das, learned counsels Mr. M.H.

Choudhury, Mr. U. Choudhury for the respondents as well as Ms. S. Jahan, learned Addl. P.P. Assam.

Learned counsel for the appellant submits that two vital witnesses, who sustained injury in the occurrence, were not examined by the prosecution,

which has caused serious miscarriage of justice and therefore urged for setting aside the judgment and for remanding the matter for fresh trial. In

order to buttress the submission, Mr. Choudhury placed reliance on the decision of the Apex Court in Zahira Habibulla H. Sheikh & Anr. Vs. State of

Gujarat & Ors. reported in (2004) 4 SCC 158. On the other hand, learned counsel for the respondents No. 2 to 13 submits that a case cannot be

remanded back for filling up the lacuna. It is also submitted that judgment of acquittal reinforces the presumption of innocence in favour of the

appellants and unless the finding of the court recording acquittal is found to be unreasonable and perverse, the appellate court should not interfere with

the order of acquittal. Learned defence counsel further submits that the impugned judgment is quite reasonable and call for no interference.

On our assessment of the evidence, we find that prosecution primarily relied on three witnesses being PW-1, PW-3 and PW-7, who projected

themselves to be eye witnesses besides the medical evidence. PW-1, in his deposition stated that there was a quarrel at the Chowk between his elder

brother and Farid, son of Abu Taher and a ‘bichar’ (village meeting) was held in the house of accused Azizur to settle the matter. During the

course of the said meeting, accused Kayemuddin instigated the other accused persons to attack Fakar Mollah and immediately, accused Iman Ali,

Kayumuddin, Azizur, Atowar, Yakub, Abu, Billal, Anowar, Babul Ali, Saiful Islam, Abu Taher, Farid Ali and Moynul Haque assaulted Fakar Mollah.

When his brother Mannan came to the place of occurrence, he was also assaulted by them. His nephew Abu Taleb Molla was also assaulted, who

sustained injury on his chest by sharp weapon. Immediately, someone informed police and the police arrived there. During cross examination, this

witness stated that the accused Billal, Hayat, Saiful and Babul were not involved in the occurrence and he had falsely implicated those four persons.

He also stated during cross examination that the house of Azizur Rahman, where the occurrence took place was at a distance of half kilometer from

Kaljhar chowk. During cross examination of this witness and the evidence of the Investigating Officer, it was further elicited that this witness made

considerable improvement in his evidence before court and thereby stood contradicted with his previous statement recorded under Section 161 CrPC

on material facts. PW-3 and PW-7 also deposed in the same tune and stated, that there was a quarrel between Fakar Mollah as well as Taher and his

son and to settle the said issue, there was a meeting in the house of Azizur Rahman in the evening.

According to PW-3, when the meeting was going on, Fakar Mollah was asked to beg pardon from Kayum and while he was touching the feet of

Kayum, Kayum instigated his brothers to attack him and immediately all his brothers and nephews started beating Fakar Mollah with lathis. When

Abdul Mannan tried to resist them, they assaulted Mannan too and taking advantage of Mannan resisting the accused persons, Fakar Mollah ran away

from the place of occurrence and he was chased by Ismail Ali, Yakub Alim Billal Hussain, Moynal Hoque, Dulal, Abu Taher, Saiful, Babul,

Bahajuddin and others. Fakar Mollah entered into the shop of Jalaluddin (PW-4) at Kaljhar chowk followed by the accused persons, who assaulted

Fakar in the shop of Jalaluddin. This witness also during cross examination stated that though he mentioned the names of Saiful, Hayat Ali, Bellal and

Babul, they were not involved in the occurrence.

PW-7 stated that it was decided in the village meeting that Fakar Mollah should beg pardon from Kayum. When Fakar Mollah proceeded towards

Kayum seeking forgiveness, Kayum instigated his brothers to assault Fakar Mollah and immediately all of them started assaulting Fakar Mollah.

Seeing the occurrence, he ran away from the place of occurrence to save himself. He also stated that he could know later, that the accused persons

were armed with various weapons and sensing danger, he left the place and reached the shop of Jalaluddin, where the accused, Kayum Uddin, Abul

Hussain, Dulal Ali, Karim Ali, Moinul Hoque, Azizur Rahman, Abu Taher, Faridul Islam, Anowar Hussain, Sultan Ali and others attacked Fakar

Mollah and caused injury. They also inflicted injury to Abdul Mannan and police came to the place of occurrence after half an hour.

PW-2 stated in his evidence, that in the meeting, which was held in the house of Azizur Rahman, it was decided by both the parties, that Fakar

Mollah should beg pardon from Kayum and bury all the ill feelings. While Fakar Mollah was proceeding to beg pardon from Kayum, one person

kicked him from backside and Kayum resisted him from attacking Fakar Mollah and thereafter some of the people present in the meeting took away

Fakar Mollah from the meeting. He further stated that later on, he could know that Fakar Mollah was assaulted at Kaljhar chowk, but he had no

knowledge as to what had happened at Kaljhar chowk. He further stated during cross examination that no incident of fighting took place in the

residential compound of Azizur Rahman. He further stated that some occurrence took place at Kaljhar chowk, where around 400 to 500 people

assembled, however, pleaded ignorance, as to who inflicted injury to Fakar Mollah among the 400/500 people, assembled there.

PW-4 stated that he was performing namaj in the evening along with some other persons in his shop and after completion of namaj, he found

Fakar Uddin (deceased) lying on the door of his shop. He sprinkled water on the face of Fakar Uddin and immediately police arrived there and

thereafter Maharuddin, Mozammel, Kayum Uddin, Altaf Doctor, Hasmat Ali etc. shifted the deceased to Howly for treatment.

The testimony of PW-5 was hearsay as he came to the place of occurrence lateron. PW-6, wife of Azizur Rahman stated that there was a

meeting in their house, where, it was decided that both the parties should bury their enmity and parties should forgive each other. After the matter was

settled, it was the time for namaj and about 25/30 persons offered namaj in their courtyard and rest of the persons, namely, Hazrat, Adil, Fakar Uddin

etc. left the place. After about half an hour, she could know that a quarrel took place at Kaljhar chowk, where Fakar Uddin sustained injury and died.

She also stated that Abu Taher, kayum and others also offered namaj with her husband in their house.

PW-8, Dr. Samsul Alom deposed that he examined Abdul Mannan and found simple injury on his forehead caused by blunt weapons. PW-10, Dr.

Babullal Pathak examined Abu Taleb and found tenderness and pain over his right wrist joint and according to doctor the injury was simple. PW-9, Dr.

Mantu Kumar Das, who conducted postmortem examination on the deceased and found one stab injury below the right 12th rib (2â€X1â€X3â€),

contusion right side of forehead, intra peritoneal haemorrhage on right side, stab injury over the right lobe liver (size 1â€​X1â€​X ½â€​).

In the opinion of the doctor, death was due to shock and hemorrhage following or as a result of injuries sustained in his person.

Court witnesses, CW-1 & CW-2, proved the birth certificate of accused Faridur Rahman.

DW-1, Billait Hussain stated that a meeting was held in the evening to settle the quarrel, which took place between Fakar and Farid regarding

parking of the vehicle and in the meeting, the matter was settled and both the parties forgave each other. After the meeting some of the person

including Kayum offered namaj in the house of Azizur Rahman and the rest left the place. He further stated that at about 7 O’clock, he noticed lot

of people at Kaljhar chowk and heard that a quarrel took place between Fakar Uddin and some other person, where Fakar Uddin sustained injury.

According to him, Kayum and others took the deceased Fakar Uddin to hospital for treatment. DW-2 also stated in the same tune, that the meeting

was concluded with the decision, that both the parties should forgive each other and thereafter the people gathered in the meeting dispersed and at

night he came to know that there was a quarrel between Fakar Uddin and some other person at Kaljhar.

From the dispassionate scrutiny of the oral testimony of the three prime witnesses, i.e. PW-1, PW-3 & PW-7 who projected themselves to be eye

witnesses, it appears, that though PW-1 (informant) mentioned 13 persons in the FIR, while deposing in court, he implicated 10 of the FIR named

persons along with 5 others, who were not named in the FIR. Again during cross examination, he has admitted that out of the 13 persons mentioned by

him, in his evidence-in-chief, four were not involved in the occurrence and they were falsely implicated. PW-3 implicated only four of the FIR named

accused persons along with four others, who were not mentioned in the FIR, whereas, during cross examination he also stated that out of the 9

accused implicated by him, in his the examination-in-chief, four were falsely implicated. PW-7 also implicated 6 of the FIR named persons along with

5 others. A combined reading of the oral testimony of PW-1, PW-3 & PW-7, it appears that all the three witnesses stood contradicted among

themselves with regard to the accused person involved in the occurrence. Their oral testimony before the court are also found to contradictory on

material facts with their previous statement before police recorded under Section 161 CrPC.

We also take note of, that according to PW-1, the occurrence took place in the house of accused Azizur Rahman, whereas, according to PW-3,

when Kayum instigated his brothers to attack Fakar Uddin, Fakar Uddin left the place followed by the accused persons and Fakar Uddin was

assaulted within a shop of one Jalal Uddin (PW-4) , which was at a distance of half kilometer from the house of Azizur Rahman, where the village

meeting was held. According to PW-7 also, the occurrence took place infront of the shop of Jalal Uddin at Kaljhar Chowk. PW-2 and PW-6 stated

categorically that no occurrence of assault took place in the house of Azizur Rahman, which was at a distance of half kilometer from Kaljhar chowk.

Therefore, although, PW-1 stated in his evidence that the occurrence took place in the house of Azizur Rahman, where the village meeting was held,

such evidence of PW-1 was belied by PW-3 and PW-7, inasmuch as, according to PW-3 & PW-7 the occurrence took place at Kaljhar chowk, which

is also supported by PW-2 and PW-6 as well as DWs. PW-6 deposed that Kayum was also offering namaj in the house of Azizur after the meeting.

According to PW-4, after the occurrence the victim Fakar was shifted to hospital by accused Kayum along with 3 others. Therefore, the evidence of

PW-6 & PW-4 also belies the prosecution evidence as deposed by PW-1 involving accused Kayum & Azizur. It is also evident from the oral

testimony of PW-2 that around 400/500 people assembled at the time of occurrence.

Having assessed the above evidence, learned Sessions Judge came to the conclusion that the evidence of the PW-1, PW-3 & PW-7 were not

reliable and observed as follows- “PW-1, PW-3 and PW-7 have claimed themselves as eye witness of the occurrence, but their evidence cannot

be relied upon as they have contradicted each other and also trying to set up a new case by giving good-bye to their earlier statement recorded under

Section 161 CrPC.â€​

From the evidence led by the prosecution, it is apparent the prosecution witnesses not only stood contradicted among themselves by making

mutually destructive and inconsistence statement, they also stood contradicted with their previous statement on material particulars. We also notice in

the oral testimony of the prosecution witnesses, that they tried to project two different stories, or sought to suppress the real genesis of the

occurrence. Because, the PW-1 sought to project, that the occurrence took place in the house of Azizur Rahman. Whereas, according to PW-2, PW-

3, PW-6 & PW-7 occurrence took place at Kaljhar chowk, which is at a distance of half a kilometer4 from the house of Azizur Rahman. According

to PW-2, around 400/500 people assembled at Kaljhar chowk, at the time of occurrence. The PW-1, PWâ€"3 & PW-7 admitted in their evidence that

they implicated some of the accused persons falsely, which clearly indicated that they were not telling the truth and endeavored to implicate various

persons falsely out of personal grudge. Involvement of Azizur and Kayum was also belied by the prosecution witness themselves.

From the above evidence, it is apparent that though the unfortunate death of the deceased Fakar Uddin took place in the incident of assault,

prosecution has failed to adduce adequate evidence to prove beyond reasonable doubt, that the respondents No. 2 to 13 were involved in the

occurrence. In view of the above facts and circumstances, the conclusion drawn by the learned trial court, in our considered view, cannot be said to

be unreasonable, nor the finding of the learned Sessions Judge can be held to have suffered from perversity.

It was stated by PW-1, PW-3 & PW-7 that one Abu Taleb and Abdul Mannan sustained severe injury in the occurrence and they were also

treated by the doctors, but from the evidence of PW-8 & PW-10, the doctors, who attended said Abu Taleb and Mannan, both of them sustained

simple injury. According to the doctor, Abu Taleb had only tenderness over the right wrist joint and he was examined on the next day. The doctor

further deposed that Abu Taleb visited him out of his own and not on police requisition. Abdul Mannan also sustained simple injury. Having regard to

the nature of injury sustained by said Abdul Mannan and Abu Taleb and glaring inconsistency in the oral testimony of the prosecution witnesses,

learned Sessions Judge rightly held, that it cannot be construed with certainty that Mannan and Abu Taleb sustained injuries in course of the

occurrence. However, these two witnesses were not examined by prosecution and therefore, learned counsel for the appellant tried to impress upon

this court for retrial of the case. Though Clause (a) & (b) of Section 386 CrPC, empowers the appellate court to send back a case for fresh for

denovo trial, such a recourse is not intended to be taken in a routine manner. Law with regard to fresh trial is no longer res-integra.

In Zahira Habibulla (supra), the Apex Court, while directing fresh trial of the case observed as under:

“61. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active

and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead

of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so

would tantamount to playing into the hands of the investigating officer if the investigation is designedly defectiveâ€​

“64. It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the

acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of

threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called

findings. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decisions of Courts - coram non judis and

non est. There is, therefore, every justification to call for interference in these appeals.â€​

“73. ………………………………… The case on hand is without parallel and comparison to any of the cases where even such

grievances were sought to be made. It stands on its own as an exemplary one, special of its kind, necessary to prevent its recurrence. It is

normally for the Appellate Court to decide whether the adjudication itself by taking into account the additional evidence would be proper

or it would be appropriate to direct a fresh trial, though, on the facts of this case, the direction for re-trial becomes inevitable.â€​

In Issac Alias Kishore Vs. Ronald Cheriyan & Ors. reported in (2018) 2 SCC 278, the Apex Court observed as under:

“Normally, retrial should not be ordered when there is some infirmity rendering the trial defective. A retrial may be ordered when the

original trial has not been satisfactory for particular reasons like..., appropriate charge not framed, evidence wrongly rejected which could

have been admitted or evidence admitted which could have been rejected etc. Retrial cannot be ordered when there is a mere irregularity or

where it does not cause any prejudice, the Appellate Court may not direct retrial. The power to order retrial should be exercised only in

exceptional cases.â€​

In Mohd. Hussain Alias Julfikar Ali Vs. State (Government of NCT of Delhi) reported in (2012) 9 SCC 408, the Apex Court held as follows:

“The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under

Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a

routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only

when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used

to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial, it is continuation of the same trial

and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under

Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straightjacket formula can be formulated

but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who

seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked.â€​

Thus, it is abundantly clear from the above authorities, that the power of sending back a case for retrial or denovo trial, provided in Clause (a) or

(b) of Section 386 CrPC, cannot be exercised in a routine manner. Even some infirmity or defect in the trial, per-se, is not sufficient to exercise the

power of retrial unless, such defect or infirmity goes to the root of the mater, and the trial is vitiated by tainted evidences, tailored investigation,

unprincipled prosecution and perfunctory trial. Therefore, having regard to the entirety of the evidence and material as discussed hereinbefore, we find

no reason to concede to the submission of the learned counsel of the appellant for a retrial or denovo trial of the present case, only for withholding the

two witnesses, who according to the appellant had witnessed the occurrence, for the simple reason, that the additional evidence of those two

witnesses, in the facts and circumstances of the case, in our considered view, cannot bring in any significant changes in the prosecution case. This

apart, there is no material on record to show that there was intentional lapse or bias on the part of the Investigating Agency or the prosecutor to give

undue benefit to the respondents nor there is any materials on record to suggest, that the investigation was motivated and tailored.

The scope of interference with the judgment of acquittal is also by now well settled. Dealing with the scope of appellate court to interfere with the

order of acquittal, the Apex Court in Ashok Rai -Vs.- State of U.P. and Ors. 2014 5 SSC 71 3observed that unless the appellate court finds the order

of acquittal to be clearly unreasonable and is convinced that there are substantial and compelling reason to interfere with it, it should not interfere with

such judgment.

In Shyam Babu-VS- State of U.P. reported in (2012) 8 SCC 65,1 the Apex Court observed that interference in appeal against acquittal is

permissible only if the decision of the trial Court is perverse. It was held that if two views are possible on same set of evidence, then the appellate

Court need not substitute its own view in preference to the view of the trial Court.

Thus the consistent view of the Apex Court is that unless the appellate judgment is demonstratingly unreasonable and unless there is compelling

reasons, the appellate Court should be slow to interfere with the judgment of acquittal, even an alternative view is possible. Having marshalled the

evidence in detail as above, we do not find any compelling reason to interfere with the impugned judgment, inasmuch as, the views taken by and the

findings arrived at by the learned trial Court in our considered view appears to be quite reasonable and does not call for a reversal. Therefore, we do

not find any merit in this appeal and accordingly, the appeal is dismissed.

Send down the LCR along with a copy of this judgment.