JUDGMENT
Pradip Kumar Biswas, J.
1. This is an application under section 397 of the Code of Criminal Procedure filed at the instance of Smt. Menoka Malik and three others as petitioners seeking for setting aside of the judgment and order dated 15lh December, 2001 passed by the ld. Sessions Judge, Burdwan in Sessions Case No. 91 of 1998 [Sessions Trial No. 10(7) of 2000] and for sending back the aforesaid case for rehearing.
2. The short facts leading to the filing of this revisional application are as under:
Petitioner No. 1 as de facto complainant made a statement before the police on 31.05.1993 which was reduced in writing and treated as the First Information Report and based on that the Memari P. S. Case No. 82/93 dated 31.05.1993 was registered under Sections 147/148/149/342/448/325/326/436/379/307/302 of the Indian Penal Code.
3. It was alleged in the First Information Report that in the Panchayat Election of the locality, the candidates of the political party (IPF) lost the election to the candidates of the political party [CPI(M)] and on the next day, that is on 31.05.1993, the day after the Panchayat Election at about 8.30 a.m., about 15/16 number of supporters of the political party (IPF) had come to take shelter in the house of their leader Badal Malik in the village Karnada as they had been chased by the supporters of the political party CPI(M) and as they were apprehending that the supporters of the CPI(M) would create further trouble, around 1.30 p.m. on that day one Bhanu Hati, Bhaluk Hati and Kachi Hati, all supporters of the CPI(M) started to insult the wife of one Sunil Pakrey, a supporter of IPF, when Sunil protested, the said Bhanu Hati cried out to gather the men of CPI(M) and after that about a mob of CPI(M) supporters consisting of about 250/300 persons in number, assembled there, they were armed with deadly weapons like lathi, ballam, tangi, bows and arrows; and they attacked the house of said Badal Malik and set fire to that house; they set fire also to the house of Mantu Mai, Dilu Pakrey and Ajit Pakrey; they assaulted and injured many people; one Dilu Pakrey and one Hiru Majhi died on the spot due to the assault; the culprits also ransacked many houses in the village and snatched Rs. 700/- from the house of Mihir Malik and earrings from Chandana Majhi.
4. In fact, the complainant in her First Information Report named 45 persons as the culprits and in course of investigation, police authorities seized many burned articles and blood-stained earth from the place of occurrence and police after completion of investigation submitted chargesheet against 98 persons.
5. The ld. Sessions Judge on 08.06.2001 framed the charge against 82 persons that is the respondent Nos. 2 to 83 herein, under Sections 148, 149/302, 149/ 307 and 436 of the Indian Penal Code. Accused Bhanu Hati, Kartik Khetrpal and several others died before the commencement of the trial. Accused Kartik Hati died after the judgment of the Trial Court.
6. After conclusion of the trial, the Id. Trial Court was pleased to acquit the accused persons of all the charges as it held that there was no materials to establish the charges levelled against the accused persons.
7. Now, since the prosecuting agency that is the State of West Bengal have failed and neglected to prefer any appeal against the said judgment and order of acquittal, the petitioners herein have come up with this application in revision as according to them the said judgment suffers from gross errors of law and vitiated by non-application of the mind to the relevant evidence on record, and is, therefore, perverse and improper and therefore inviting an interference by this Hon’ble Court, they have come up with this revisional application.
8. The 1d. Counsel appearing for the petitioners in addressing the Court in connection with the present matter, has submitted before me that in the instant case the complainant in the FIR has named only 45 persons and in course of evidence during trial, nothing has been alleged against 48 persons.
9. So, he was very candid in his submission that in this revisional application they are only concerned about 82-48= 34 persons.
10. In this connection, it has also been submitted by him that the prosecution case before the 1d. Trial Court was in brief that the Panchayat Election of the locality was held on or about 30.5.1993 and there were two contesting political parties among others. The contestants from the party IPF had lost the election to those from the party CPI(M). Some of the supporters and leaders of CPl(M) had dissociated themselves from the said party and formed the party IPF and contested the election. Just after the declaration of the result of the election, the supporters of the CPI(M) had been threatening to take vengeance upon the supporters of IPF and on the next day following the election result, that is on 31.05.1993, the supporters of the said IPF apprehending trouble took shelter in the house of Sri Badal Malik, a leader of the said IPF in the village Karnada. After some time a mob of about 200/250 people armed with deadly weapons like ballam, tangi, kencha, lathi etc. assembled before the house of said Badal Malik and seeing them Badal Malik fled away from the house. Then certain members of the said unlawful assembly put fire to the house of Badal Malik and the persons inside the house tried to take shelter in the house of one Mantu Mai; the mob set fire to the house of Mantu Mai also and several houses in the said village were thus burnt down and properties were looted therefrom.
11. The mob also assaulted many people, who they thought to be the supporters of IPF and caused grievous hurt and injuries upon the victims; some of the victims, about 22 in number, were treated in the hospital. The mob in course of rioting with deadly weapons and in furtherance to the common object of the unlawful assembly committed the murder of five persons, namely Hiru Malik, Dilip Pakrey, Sadhan Nayek, Manik Hazra and Sona Kora and attempted to murder several others.
12. In support of the aforesaid allegation, the prosecution has examined as many as 49 witnesses. In this case according to the petitioners there are 36 eye-witnesses and out of them 24 are injured eye-witnesses.
13. Drawing my attention to the inner page of the judgment of the Trial Judge at page 55 it has been contended by the petitioners that the learned Court below has come to the finding that the incident of death has been caused by stampede but curiously enough, there is no such evidence on record and witnesses P. W. 8 (Sunil Santra), P.W. 17 (Fuleshari Kora) and P. W. 18 (Champa Hazra) have not also supported the story of the stampede in course of their evidence. The P.Ws. 36 (Dr. Rupak Dutta) and 37 (Dr. Laxmi Kanta Ghosh) also have not supported the story of the stampede in course of their evidence.
14. So, that being the position, the reasonings of the learned Court below for acquittal of the accused persons on the following reasons:-
Firstly “on perusal of the post-mortem reports it appears that the evidence of P.Ws. as regards the cause of death does not tally with the post-mortem reports. From the evidence of the post-mortem reports as well as the evidence of the P.W.37, it transpires that there is not a single injury which may be caused by sharp cutting weapons. If such types of weapons are being used, there must be incised injuries or punctured injuries as per medical report. The injuries appearing on the post-mortem reports do not support the evidence of the prosecution witnesses”.
Secondly, “on perusal of the inquest reports it appears that the said deceased persons sustained injuries like bruise, abrasion, laceration etc. The inquest reports also do not disclose such allegations as made by the P.Ws. and there is no clue of the miscreants who caused the death of the victims”.
Thirdly, “in the FIR, the complainant did not mention the names of the assailants”.
Fourthly, “so considering all those aspects of the matter and considering the facts and circumstances as well as materials on record, I am of the opinion that the alleged injuries on the persons of the victims as well as the injured persons may be caused due to the stampede as opined by the Doctors”.
Lastly, “In my considered view, on the basis of the analysis of the evidence on record, I am of the opinion that the case against the above accused persons has not been proved beyond reasonable doubt as there is no corroboration of the evidence of the P.Ws. with their statements recorded under section 161 of Cr. PC and the evidence of P.Ws. is contrary to the medical evidence as well as suppression of the actual FIR and non-production of alamats in Court, cannot at all said to be acceptable inasmuch as it was not backed by any cogent materials and evidence on record and as such according to them, the approach of the learned Trial Court to the materials and evidence on record is quite faulty one.”
15. Furthermore, the Court in the instant case did not address itself to the question whether or not there was any unlawful assembly. But, in the given situation and the given set of fact situation, as disclosed from the evidence and materials on record produced by the prosecution in the trial, prosecution was not obliged to prove the act/actions of the individual accused persons so as to bring within the purview “common object” in committing the offence complained of.
16. So, it has been strenuously contended by them that the acquittal in so far as it relates to 34 persons shall have to be disturbed by this Court in entertaining this revisional application and the case should be remitted back to the Trial Judge for re-writing the judgment by addressing itself to the issue of “unlawful assembly” and the involvement of the rest of the accused persons.
17. In support of the aforesaid contention, my attention has been drawn to the pages 41 and 42 of the judgment of the Trial Court. Referring to the above, it has been contended on behalf of the petitioners that the scanning of the evidence, as it appears by the Trial Judge, is absolutely wrong and the basic approach to the evidence on record is also quite faulty inasmuch as the defence has taken contradictions from their statements recorded under section 161 of Cr. PC in respect of some of the witness specially P.Ws 3, 6, 9, 10, 15, 21, 29 and 34 and for such reasons, the entire evidence of those witnesses cannot at all be disbelieved and as such the approach of the Court to sift the evidence was absolutely mechanical and as such there has been total non-application of mind.
18. Referring to page 43 of the judgment of the Trial Court, it has been contended that the Id. Trial Judge ignoring the basic rule of scanning the evidence, he has picked up the evidence of some witnesses without looking into the other relevant portion of the evidence of such witnesses and as such the observation of the Court at page 44 has not also been based on sound reasoning as it violates the observation of the Masalti’s case and the general observation of the Court at that page is not backed by any evidence on record and in that the ld. Trial Judge has overlooked the material portion of the evidence on record and the same will be further confirmed from the injury No. 8 of the evidence of P.W. 37.
19. It has further been contended by them that from the Inquest Report, it will be clear that at least 4 deaths were caused due to assault in connection with political rivalry.
20. So, it has been contended on their behalf that from the evidence and materials, disclosed in the trial itself unlawful’ assembly by 100/150 persons carrying weapons like tangi, lathi etc. was formed and in fact evidence has been led that those weapons have been used by the members of the unlawful assembly and thereby cutting injuries were inflicted on the injured persons including one of the deceased, Manik Hazra and the bed head ticket collected in connection with this case also re-assured the aforesaid evidence.
21. So, with reference to the aforesaid evidence, it has been forcibly contended on behalf of the petitioners that in the instant case, the Court refused to consider the evidence of the some other witnesses at least on the ground that they disclosed those statements for the first time before the Court, but in fact that is not a fact because all those witnesses have been cross-examined only with reference to their earlier statements and in that there is utter failure on the part of the of the ld. Judge to exercise its jurisdiction in accordance with law.
22. Furthermore, the Trial Court has also overlooked the unimpeachable evidence on record leading to the formation of unlawful assembly and this being a gross non-application of mind by the Court, the entire judgment of the Trial Court had become perverse.
23. Again, it has contended that the finding of the Trial Judge regarding the stampede was without any basis whatsoever, and that too against the weight of the evidence and as such it is also a perverse finding.
24. Lastly, it has been contended that the Court in this case has disregarded the principles of law in assessing the evidence on record as in the instant case, there were injured eye-witnesses, whose presence, therefore, could not have been doubted at all, even, though they have made some exaggeration, yet, it was the duty of the Court to sift the grain from the chaff for finding out the truth.
25. So, it has been contended on their behalf that in the premises as above, the Court should interfere and pass curative orders for readdressing the grievance of the petitioners.
26. In opposing the aforesaid prayer on behalf of the private respondents, it has been contended on their behalf that the plain reading of the judgment itself does not at all disclose that this is a perverse judgment and until and unless it is prima facie established that this was a perverse judgment, the Court cannot go for such enquiry so as to go for re-appreciation of the evidence, recorded by the Trial Judge. Moreover, it has been contended that the reasons assigned by the Trial Judge in acquitting the accused persons cannot at all be said to be perverse at all inasmuch as the stampede theory accepted by the Trial Court cannot said to be baseless inasmuch as P.W. 1 (Menoka Malik) herself in her evidence at page 5 went on admitting a similar situation which, however, has been contradicted by her own witnesses, P.W. 33 (Sri Uday Hazra), but supported by P.W.8, Sunil Santra, P.W.39 (Narayan Hazra), P.W.40 (Smt. Padma Dhara) and P.W. 43 (Sri Madan Hazra). Furthermore, P. W. 1 although in the FIR has named as many as 46 persons, but in Court, she has named only 6 persons and the total analysis of the evidence adduced from the side of the prosecution itself, will make it clear that there was nothing against the 39 FIR named accused persons.
27. Moreover, there is also contradiction with regard to the incident specially with regard to the P. O. in the evidence of P. W. 17 (Fulesharai Kora) and P. W. 18 (Champa Hazra). There is also absolute exaggeration in the evidence of P.W.I (Menoka Malik) and that has been reflected from the evidence of P.W. 37 (Dr. Laxmi Kanta Ghosh), who has conducted the post-mortem examination over the dead body of Manik Hazra.
28. Furthermore, the evidence of P.W. 37 shows that post-mortem examination was held by him in connection with Burdwan P. S. U. D. Case No. 346 of 1993 on 1.6.93 when specific case over this issue was already started.
29. It has further been contended on their behalf that in the Masalti’s case , a guideline has been given in the following manner:-
“While determining this question it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. In fact, section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.”
But, here in this case, each and every witness have, come out with a new story from the fact as told by them in their statements recorded under section 161 of Cr. PC and the said fact has also been confirmed by the evidence of P. W.49 (Sri S. K. Adhikary), the I.O. of this case.
30. So, in a situation like this, on a overall assessment of the evidence and taking into consideration of other aspect of the case, the judgment of the Trial Court in any event cannot be said to be a perverse one and the approach and the findings of the Trial Court cannot also said to be a faulty one.
31. It has also been contended on their behalf that although it is quite open to the High Court in revision to set aside the order of acquittal even at the instance of the private parties, but this jurisdiction should be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is manifest error on a point of law and consequently, there has been flagrant miscarriage of justice. According to them however, in the instant case, from the side of the petitioner, no such glaring defect in the proceeding or any manifest error on a point of law could be established in connection with this case and as such there is no reason whatsoever for exercising this sort of revisional power in passing any curative order, as suggested by the petitioners.
32. Furthermore, it has also been contended on their behalf that in the instant case it could not at all be established from the side of the petitioners that the judgment of the Trial Court should be regarded as perverse inasmuch as there was improper acceptance or rejection of the evidence, adduced from the side of the prosecution. Nor they could establish that there was defect in the procedure or illegality in the conduct of trial vitiating the trial itself and that being the position in the instant case as per settled position of law, no interference should be made in exercise of its revisional jurisdiction at the instance of the informant. Accordingly, it has been contended on their behalf that the revisional application had no merit whatsoever and as such it should be rejected and there is no reason whatsoever by this Court for re-appraisal of the evidence, recorded by the Trial Judge for coming to the decision in the connected matter.
33. In support of their contention, they have also placed their reliance on a number of decisions reported in 2002 Cr. LR (SC) 643 in the case of Jagannath Chowdhary and Ors., 1973 SCC (Cri) 903 in the case of Akalu Ahir and Ors. v. Ramdeo Ram, in the case of Thankappan Nadar and Ors. v. Gopala Krishnan and Anr., in the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr., in the case of Mahendra Pratap Singh v. Sarju Singh and Anr.,
34. Similarly, from the side of the petitioner reliance has been placed on a number of decisions in the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr., in the case of Ayodhya Dube and Ors. v. Ram Sumer Singh, in the case of State of U. P. v. Dan Singh and Anr., in the case of Masalti v. State of Uttar Pradesh and in the case of Appabhai and Anr. v. State of Gujrat.
35. I have given my anxious consideration with regard to the submissions made by the respective parties and I have also gone through the decisions cited at the bar with meticulous care.
36. The main attack against the judgment of the Trial Judge in the instant case was done from the side of the petitioners mainly on the proposition laid down by the Supreme Court in Masalti’s case, (supra). In this connection, it has been contended by them that the members of the unlawful assembly may carry different sorts of weapons. But that does not mean that each of these weapons have been used upon each of the victims and the witnesses could not be excepted to describe accurately the part played by each of the accused persons and in this connection, it has further been contended by them when a large number of persons are accused of any of the charge under section 149 of Cr. PC, the foremost duty of the Court is to :- firstly, to] determine whether there was unlawful assembly, secondly to determine what was the common object of the assembly and thirdly, to determine who were the members of that unlawful assembly and it has also been contended by them that it is also clear that though the overt acts of the accused persons need not be proved by the prosecution in a case under section 149, but the same may be necessary not for proving the main substratum of the prosecution case but for showing that the particular accused person was actually a member of the unlawful assembly at the time of occurrence so that the innocent by-standers are not involved and according to the petitioners the Trial Court in the instant case has failed to address the issue itself and has also failed to apply ‘Two Witness Rule’ in assessing the evidence and thus neglected to determine who were the members of the unlawful assembly.
37. But, looking into the findings of the Trial Judge itself, I find that although the Id. Trial Judge in dealing with the issue has not addressed the issue of “common object” for unlawful assembly in the light, as suggested by the petitioners but went on scanning the evidence with meticulous care and thereafter taking into consideration the probative value of the evidence with reference to the set cannons of law has come to the finding of acquittal against the opposite parties. Nothing specific however could have been brought before me in this regard by the petitioners to show or suggest the infirmities in the aforesaid findings or with regard to the material irregularities in conducting the aforesaid trial by the ld. Trial Judge. In such a situation, I am unable to agree with the submissions of the petitioners that if the Court comes to a finding that the lower Court has not addressed itself to the issue of unlawful assembly then the Court will set aside the judgment and direct the Trial Judge to reassess the judgment with a view to ascertaining the fact and that who were the members of the unlawful assembly and what was their involvement, keeping in mind of the fact that in a case of unlawful assembly the prosecution is not obliged to prove the individual overt act of the accused persons.
38. Above argument of the petitioners, at the first instance appears to be quite sound but in the given situation, when large number of persons were allegedly involved in the incident and against most of them, no evidence has been adduced by the witnesses, in a situation like this, the order for reassessing the evidence once again by the Trial Judge would, in my humble opinion, would complicate the issue itself inasmuch as it might lead to a confusion in the mind of the Trial Judge with regard to the actual direction issued by this Court in reassessing the evidence and it will leave an unconscious impression in the mind of the Court in reassessing the evidence with regard to the real purport of the direction, issued by the High Court in reassessing the evidence further.
39. Now, therefore, acting upon the broad principles enunciated by the Apex Court to the effect that this revisional jurisdiction of the High Court, while dealing with the order of acquittal, passed by the High Court is more narrow in its scope and it is only in glaring cases of injustice resulting from some violation of fundamental principles of law and manifest legal infirmity, either in the procedure or in the conduct of trial, the High Court is empowered to set aside the order of acquittal and direct a retrial of the accused persons and great caution have been given by the Apex Court that from the very nature of this power it should be exercised sparingly with great care and caution I propose to decide the matter in hand.
40. Accordingly, applying the aforesaid test in the present case and having due regard to the rival contentions raised by the parties and examining the facts and circumstances and materials available on record in the light of the broad settled principles enunciated by the Apex Court, I am of the clear view that the petitioners in the instant case have not been able to make out a clear case for interference by this Court in exercising revisional jurisdiction against the judgment passed by the Trial Judge regarding an order of acquittal, passed in favour of the O. P. inasmuch as in the instant case the petitioners have failed to establish that there was perversity in the judgment itself. Nor they could establish that there was any illegality of the procedure or miscarriage of justice arising from misconception of law and/or improper appreciation of the evidence and materials on record thereby causing serious prejudice to the persons aggrieved.
41. That being the position, I find no merit in this revisional application and as such the same is rejected on due consideration.
42. Consequently, the revisional application fails.
43. Urgent xerox copies, if applied for, be made available to the parties with utmost expedition.