JUDGMENT
A.P. Subba, J.
1. This revision petition filed under Sections 397/401 and 482 Cr.P.C. read with Article 227 of the Constitution is directed against the Judgment and Order dated 26.5.2003 passed by the learned Sessions Judge, Hailakandi, in Crl. Appeal No. 20/02 affirming the Judgment and Order dated 21.9.2002 passed by the learned Chief Judicial Magistrate, Hailakandi in GR Case No. 538/1995 convicting the petitioners under Sections 147/324 IPC and sentencing them to undergo simple imprisonment for one month and fine of Rs. 100/- under Section 147 IPC and simple imprisonment for 2 months Under Section 324 IPC.
2. The facts of the case giving rise to this revision may briefly be stated as follows:
3. On 15.6.1995 one Mainul Haque Laskar (P.W. 2) lodged an FIR with Hailakandi P.S. alleging that when his brother, Abdul Haque, was ploughing his own land the accused petitioners numbering 8 armed with weapons like lathi, dao, lenza etc. charged him of ploughing their land. When Abdul Haque asserted that the land he was ploughing was his own field the accused petitioners attacked him showing lathi blows over his head and other parts of the body. He shouted in pain and on hearing his cries many neigliboiirs gathered there who rescued and removed him to Hospital.
4. On the basis of the above FIR the police took up investigation and on completion of the same filed the charge sheet under Sections 147/325/506 IPC against the present revision petitioners and others in the case. On conclusion of the trial the learned Judicial Magistrate, Hailakandi convicted and sentenced the present petitioners under Sections 147/324 IPC vide Judgment and Order dated 21.9.2002 passed in GR Case No. 38/1995 as already noted above.
5. Being aggrieved by the order of conviction and sentence the petitioners filed Crl. Appeal being No. 20/2002 in the court of learned Sessions Judge, Hailakandi. The learned Sessions Judge after hearing the parties and after perusal of materials on record affirmed the order of conviction and sentence passed against the petitioners. Being aggrieved by the said order passed by the learned Sessions Judge the appellants have filed the present revision petition.
6. I have heard Mr. N. Dhar, learned Counsel for the petitioners and Mr. B.S. Sinha, learned PP Assam.
Mr. Dhar assailed the impugned order mainly on the following grounds:
(i) That a new story was developed during the trial which was at variance with the version given in the FIR and such inconsistency prejudiced the defence,
(ii) That the evidence adduced by the prosecution in support of its case were full of contradictions on material points. However, the learned court while passing the impugned order had over-looked all these contradictions and as such the impugned order was perverse, not legally sound and sustainable in law;
(iii) Keeping in view the doubtful nature of the prosecution case the petitioners were entitled to the benefit of doubt.
7. So far as the first point is concerned, the Id defence counsel referred to and relied on the decision of the Apex Court in Devilal and Anr. v. State of Rajasthan . As per the law laid down by the Apex Court in this case, if the pivot of the prosecution case is not accepted, a new prosecution case cannot be made to imperil defence. As already noted above the contention raised by the Id defence counsel in this regard is that a new case inconsistent with the version given in the FIR was made out during the trial due to which the defence was seriously prejudiced. To substantiate his contention Mr. Dhar referred to the first information report dated 15.6.1995 filed by one Mainul Haque Laskar P.W. 2, the brother of Abdul Haque P.W. 1 and the evidence of P.Ws. 1, 2 & 3. By reading out the FIR and the evidence of the witnesses the learned Counsel pointed out that as per the FIR it was Abdul Haque who was ploughing the disputed land when the unlawful assembly formed by the accused petitioners attacked him while as per the evidence brought on record during the trial it was Najimuddin Laskar who was ploughing the field at the relevant time.
8. In order to appreciate the above point raised by the learned Counsel a reference to the relevant portion of the FIR and the evidence recorded during the trial in the case would be essential. The FIR dated 15.6.1995 filed by one Mainul Haque Laskar PW2 very clearly states in the very first sentence that it was Abdul Haque PW1 his brother who was ploughing the land when the accused persons armed with lathi and dao attacked. The relevant extract of the FIR is as follows:
I have the honour to state that today in the morning when my brother Abdul Haque was ploughing our land the following accused persons by forming an unlawful assembly armed with weapons e.g. lathi, lenga dao etc. asked my brother as to why he was ploughing the land. My brother replied “what is there if we plough our own land” and as he told these, the accused Abdul Sashiban at first struck blow over the head and directed the other accused person to kill. The other accused persons immediately assaulted my brother over his head and body. On hearing his cries with the help of my brothers, neighbouring people and the President of the Gaon Panchayat helped to rescue him and sent him to hospital.
I, therefore, pray that your honour would investigate into the case for trial of the accused persons. Fixing 15.6.95.
Name of the accused persons:
1) Abdus Subhan, 2) Abdul Kuddus, 3) Abdul Wahid, 4) Sahab Uddin, 5) Monia, 6) Muslim Uddin, 7) Fakar Uddin, 8) Kuti Monnai and others.
Yours faithfully
Sd/- Moinul Haque Laskar
Vill. and P.O.-Ratanpur Pt. II
Son of late Irman Ali
District- Hailakandi.
9. Abdul Haque Laskar who has been named in the FIR as the person who was ploughing the field and who was allegedly attacked by the mob was examined as PW 1. In his statement before the Court he stated that around four and half years back his younger brother Najim Uddin Laskar was ploughing their own land situated towards the western side of their house. While his brother was ploughing the field all the accused persons turned up there and picked up a quarrel with him. Having heard the quarrel he reached the place and tried to intervene. While doing so he was assaulted by Subhan with a stick, and by Abdul Kuddus with a dao. Abdul Wahid Laskar, the other accused tried to assault him with a lenga. In the meantime, all other accused joined in the assault and he lost his consciousness. Having sustained injuries over his head, back and abdomen in the attack his brother Najim Uddin and others removed him to Hailakandi Civil Hospital for treatment and from there to Silchar Medical College Hospital for further treatment where he had to remain for 15 days.
10. Mainul Haque Laskar PW 2, who is brother of Abdul Haque PW 1 and who had lodged the FIR was examined as PW 2. He stated that on the day of occurrence, i.e. on 15th June 1995, his brother Nazim Uddin was ploughing the land. Abdul Haque PW 1 another brother of his also arrived there in the field. At that time all the accused petitioners arrived with dao, lenja and lathi, chased Abdul Haque and assaulted him inflicting injuries on his leg and other parts of the body. Seeing this, he raised hue and cry, which attracted other people from the surrounding area and collected there. He then lodged the FIR (Exhibit-1).
11. Mrs. Minara Begum, PW 3 the mother of Mainul Haque Laskar and Abdul Haque Laskar stated that the occurrence took place in the month of June or July, 1995 at around 6.30 A.M. The hue and cry which was raised from the place of occurrence attracted her attention and when she came out from the house she saw accused person who were armed with various weapons were chasing Abdul Haque Laskar, PW 1 and assaulting him. As a result of the assault, Abdul Haque sustained injuries on the head and in his arms. PW 2 Mainul Haque Laskar then brought the injured PW 1 to their residence first and then removed him to Civil Hospital and from the said Hospital to Silchar Medical College Hospital for treatment.
12. The facts mentioned in the FIR as extracted above and the deposition of the witnesses as narrated above certainly go to show that there is some discrepancy between the FIR and the evidence inasmuch as the person named in the FIR as ploughing the field at the time of occurrence is Abdul Haque, PW 1, while Nazimuddin is the person named in the testimony before the court as ploughing the land. It is however to be noted that even though there is some discrepancy regarding the name of the person who was ploughing the field at the time of occurrence there is no such discrepancy with regard to assault of Abdul Haque PW 1 by the unlawful assembly formed by the accused persons. In other words, there is no discrepancy with regard to the name of the person who was allegedly assaulted by the unlawful assembly. Abdul Haque who was assaulted by the unlawful assembly has stated that he was attacked and injured by the accused persons when he went to the place of occurrence to intervene. Moinul Haque Laskar, PW 2 has stated that the unlawful assembly charged and injured PW 1 Abdul Haque when he went to the land which Nizam Uddin was ploughing. Mrs. Minara Begum PW 3 has also clearly stated that when she came out from her house after hearing the hue and cry she saw the accused person armed with various weapons and chasing Abdul Haque and causing injuries to him. The evidence thus clearly shows that Abdul Haque PW 1 was the person who was assaulted and injured and as noted above there is no discrepancy in this regard.
13. However, it must be conceded that the discrepancy with regard to the name and identity of the person who was ploughing the field in the early morning on the day of occurrence still remains. The question that arises is can it be said, as contended by the learned Counsel that the prosecution has made out two stories at variance with each other?
14. No doubt the case of the prosecution generally revolves round the story given in the FIR. The FIR being the first and foremost version of the alleged commission of crime the I.O. has to rely and follow the line set forth by the story given in the text of the FIR. However, it does not mean that the I.O. should follow the version given in the FIR blindly without being vigilant and respective to new and true story that unfolds itself during the investigation–the only condition being that any deviation from the ambit of the FIR must be backed by strong supportive material. In the present case such material in the shape of evidence collected during the investigation exists on the file which supports of the deviation already noted above.
15. Further the change sheet submitted by the I.O. at the conclusion of the investigation on being satisfied that a prima facie case had been made out against the accused is to the following effect:
The prosecution story of the case in brief is that on 15.06.1995 at 9 A.M. the complainant noted at Column No. 1 lodged an FIR to the effect that on the same day at about 6.30 A.M. the accused noted in Column Nos. 3 and 4 by forming an unlawful assembly armed with dangerous weapons assaulted one Abdul Haque Laskar as a result of which he sustained injury over his head. Hence this case.
16. A reading of the charge sheet as extracted above goes to show that the person assaulted by the unlawful assembly formed by the accused persons was one Abdul Haque Laskar and as such the story as made out in the charge sheet cannot be said to be different from the one made out in the trial. Hence, for the reasons stated above the contention of the Id defence counsel that the prosecution had developed two stories not consistent with each other cannot be accepted.
17. Coming to the next point relating to perversity it may be observed that the contradictions relied on by the Id defence counsel have already been highlighted above. The question is whether it is enough to throw doubt on the prosecution case as a whole. In this regard, it is hardly necessary to say that, it is always open for the defence to use such discrepancy for the purpose of impeaching the veracity of the concerned witness, by following the procedure prescribed under the law. It hardly needs to be mentioned that Section 145 of the evidence Act provides for a simple procedure to be followed in this regard. As per this procedure if it is intended to contradict the witness with his previous statement his attention must be called to those parts of the statement, which are to be used for the purpose of contradicting him. A witness must be asked as to whether he made the previous contradictory statement. If the witness in reply to such question gives answer in the affirmative, saying ‘yes’ he has made such statement, the previous statement in writing need not be proved. If on the other hand, the witness denies to have made the previous statement attributed to him the cross-examiner must read out to the witness the relevant portion or portions of the records which are contradictory to his statement in the court and give him an opportunity to reconcile the same if he can. It is only when this formality is complied with that the previous statement can be used to impeach the credit of the witness. It is well settled that the FIR is a previous statement which can only be used to corroborate or contradict the maker of it. The observation made by the Apex Court in Syed Ibrahim v. State of Andhra Pradesh , a case relied on by the defence itself makes it clear that though the FIR is not a substantive evidence yet, the same can be used to test the veracity of the witness. The statement alleged to be contradictory in the present case is the statement occurring in the FIR that Abdul Haque (PW 1) was ploughing the field when the occurrence took place. The cross portion of the statement of PW 2 who had lodged the FIR shows that a suggestion was made to him that he had stated in the FIR that Abdul Haque was ploughing the land and not Nazim Uddin as deposed to by him before the Court but the witness denied the suggestion. Now the plain duty of the cross-examiner i.e. the defence was to draw the attention of the witness to the relevant portion of the statement in the FIR so as to confront him with it. However, the record of the examination of the concerned PW does not show that this was done. Mr. Dhar very fairly conceded that no such procedure was followed.
18. No doubt, if there are large number of contradictions in the evidence given before the Court and the previous statement on vital points it will be unsafe to rely on such evidence. It has been held in Namdeo Daulata Dhayagude and Anr. v. State of Maharashtra which is also a decision relied on by the Id defence counsel, that where the story narrated by a witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in the evidence not only in matters of detail but also on vital points, it would not be safe to rely on such evidence. A Id. Single Bench of this Court in Habib Mia and Ors. v. State of Tripura (1996) 3 GLR 352 1997 (1) GLT 98 relying on the decision of the Apex Court in Radhey Shyam Narendra v. State of Orissa and Sarenjit Singh v. State of Punjab , has held that so long as the errors in FIR do not entirely destroy the prosecution case, the same cannot render the evidence of eye witness unreliable.
19. A perusal of the Judgment of both the courts below will go to show that the learned courts were not unware of the above discrepancies. While dealing with the above discrepancies the learned Chief Judicial Magistrate in Paragraph 9 of the Judgment has observed as follows:
One more argument raised by Mr. Barbhuiya that there is huge contradictions in the evidence of PWs that those recorded by the Inquiry Officer Under Section 161 Cr.P.C. during cross-examination of the PW 5, the Inquiry Officer the defence proved the contradictions that the PWs 1 and 2 did not state before the Inquiry Officer that the occurrence took place while Nazim Uddin was ploughing the disputed land; and the PW 1 also did not state before the Inquiry Officer that the accused Sahab Uddin assaulted him by stick, Abdul Kuddus by dao and Abdul Wahid by lenja. The minor contradictions proved by the defence is found too negligence as by not mentioning before the Inquiry Officer that Nazim Uddin was ploughing over the disputed land has not caused any material damage in order to reply upon the testimony of PWs 1 and 2. Further, the omission of PW 1 in making statement before the Inquiry Officer that the accused Abdul Chupan, Abdul Kuddus and Abdul Wahid assaulted him by means of stick, dao and lenga respectively has not caused any material lapse, considering the facts and circumstances of the case minor omission is found ignorable, hence, I discard the argument of defence.
20. The above reasons given by the learned trial court has been duly concurred by the learned Appellate Court. As already noted above, the contradictions pointed out are not in relation to any vital points and accordingly I see no reason to differ from the conclusions arrived at by the learned Courts below.
21. Thus the conclusion is irresistible that the discrepancy pointed out above having not been proved as per procedure laid down under Section 145 of the Evidence Act and the same having not been used to confront the witness it cannot be taken to have discredited the witness. Therefore, the contentions of the Id defence counsel that the prosecution case becomes doubtful on account of the above discrepancies cannot be accepted.
22. Even though the above is sufficient to dispose of die matter it will not be out of place to deal with some of the additional points urged by the defence. It was contended that all the witnesses being close family relations were not independent and trustworthy. To add to this Mr. Dhar also pointed out that Nazim Uddin who was a material witness who was said to be ploughing the field on the date of occurrence has been withheld by the prosecution for reasons best known to it. Lastly, it was contended that none of the neighbours who had gathered in the place of occurrence after hearing the hue and cry were examined. This according to Mr. Dhar, gave rise to a strong suspicion on the prosecution story.
23. It is a well-established principle of law that close relations are not disqualified from becoming witness, if they are found to be speaking the truth. The only precaution to be taken in such matter is that the evidence of such witness must be scrutinized with greater care and caution. In the present case PWs 1, 2 & 3 are the close relations. The statements made by them in the examination-in-chief have already been narrated above. We may now refer to their cross examination. Abdul Haque Laskar, PW 1 in his cross examination denied the suggestions that he had stated before the police that he was ploughing the land when the occurrence took place. Similarly, Mainul Haque Laskar, PW 2 in his cross-examination denied the suggestion that in his statement before the Police he did not state that on the day of occurrence Nazim Uddin Laskar was ploughing the land. Mrs. Minara Begum, PW 3 in her cross-examination denied the suggestion that she stated before the police that Abdul Haque, PW 1 was ploughing the land on the day of occurrence.
24. The above goes to show that nothing has been elicited in the cross-examination which discredits the witnesses so far as the material points are concerned. The evidence is quite consistent with each other. Therefore the evidence of the witnesses who are said to be close relations stand the test of close scrutiny. In view of such clear and consistent evidence that has come on record, it cannot be argued that the non-examination of Nazim Uddin or other people from the neighbourhood throw such doubt, as many be sufficient to make the prosecution case untrustworthy.
25. Besides, the medical evidence which has come on record is also corroborative of the prosecution story in nature. PW 4 who is the Medical Officer attached to the Civil Hospital and who had examined Abdul Haque Laskar, found the following injuries:
(1) One sharp injury of size 12 cm x 3 cm x 2 cm on the left partial region of the scalp.
(2) Sharp injury of size 10 cm x 3 cm and 2 cm on the occipital region of the scalp.
26. It is the contention of the Id Defence counsel that this medical evidence can be of no avail as because the victim who was examined by the Medical Officer PW 4 was not properly identified. The Id PP conceded that there was no proper identification of the victim before he was examined by the Doctor. However, such omission does not seem to be of much consequences in so far as Sri Ashok Kr. Saikia, S.I. PW 5 who is the Investigating Officer has clearly stated that during investigation he forwarded the injured to Hailakandi Civil Hospital and from there to SMCH for medical care and attention of the injured. However, even if this evidence was to be excluded for any reason whatsoever, the remaining evidence on record would be sufficient to prove the present case.
27. It thus follows that the discrepancies and contradictions pointed out by the Id Defence counsel are not such as to cast a cloud of suspicion on the credibility of the prosecution story. Hence the contention that the accused petitioners are entitled to benefit of doubt cannot be accepted.
28. Hence, for the foregoing reasons, observations and the conclusions, I find no grounds to interfere with the impugned judgment and order. Accordingly, the impugned judgment and order is hereby affirmed.
29. In the result this criminal revision stands dismissed.
The appellants are directed to surrender before the trial court to serve out the sentence and deposit the fine amount within four weeks from today.
The Lower Court records be returned forthwith.