TAMI ZUDDIN Vs. GANGATHAKUR

JUDGEMENT

(1.) THE respondents were prosecuted for offences punishable under Sections 147, 506, 504, 500 & 228. of the Indian Penal Code on accusation that on 21st August, 1985, while Sheikh Tami Zuddin (C.W. 6) was conducting judicial proceeding in Gram Kachahari case No. 28 of 1984, Fuchai Biswas came and informed that he was being intimidated by the respondents for being a witness in a case of rape, instituted on behest of Urmila Devi. It was alleged that since Sk. Tami Zuddin was in seisin of a judicial proceeding pending before Gram Kachahari he was asked to wait, and it is further alleged that shortly thereafter the respondents came there and hurling abuses, made accusations that Fuchai Biswas was instrumental for getting the rape case instituted by Urmila Devi against them. A petition of complaint with these accusations, was laid before Judicial Magistrate, Katihar, to set the judicial proceeding in motion and the trial eventually commenced against the respondents. In the eventual trial, the prosecution examined altogether six witnesses and defence too examined one witness. Those examined by the prosecution include Sk. Tami Zuddin (C.W. 6), Sk. Basir Uddin (C.W. 1), Jogendra Nath Singh (C.W. 2), Meghraj Yadav (C.W. 3), Fuchai Biswas (C.W. 4) and Neel Mohan Rai (C.W. 5). Sheikh Tami Zuddin happens to be the person who set the judicial proceeding in motion and he had reiterated his early version before the court which he rendered before police while setting the judicial process in motion, on filing a petition of complaint, with some improvements and embelishments which was sought to be introduced at the stage of trial. The witness would state that the case instituted by Urmila Devi for commission of sexual assault on her by some of the respondents was pending before his Bench and while he was in seisin proceeding of Gram Kachahari case No. 28 of 1984, Fuchai Biswas came to him and laid information, about being intimidated by the respondents for being a witness in rape case of Urmila Devi, pursuant to which, the respondents came and stalled the judicial proceeding, hurling abuses on him. More or less, similar narrations were made by other witness about Fuchai Biswas informing Tami Zuddin for being intimidated by respondents for being a witness in a rape case and the latter having stalled the proceeding on hurling abuses as he was instrumental for getting the rape case instituted. The trial court on appreciation of evidences placed on the record, while negativing contentions raised on behalf of the prosecution, noticed paucity of witnesses on whom implicit reliance can be placed by the court, as only interested witnesses were examined at trial entirely to the exclusion of independant witnesses. The trial court also took into consideration coherent statement of witnesses about proceeding, which was pending before the Bench, when Fuchai Biswas came to them and laid information about being intimidated by the respondents. It was noticed by the trial court that even though some witnesses were stating about arrival of some persons from the village, they were withheld by the State. Same accusation against Sk. Tami Zuddin, as transpiring in the statement of witnesses, about his involvement in some cases was also taken into consideration by the trial court. The evidence of Sk. Tami Zuddin itself suffers from some inconsistencies and was not free from blemishes, as he made divergent statement about the proceeding which was pending before him at the time when Fuchai Biswas informed him about the overt act committed by the respondents. Though record of proceeding of Gram Kachahari case no. 28 of 1984 was also placed on the record, the trial court took notice of the fact that, as in the said case, the brother of Sk. Tami Zuddin happened to be the complainant, the possibility of forging the document simply to create evidence could not be ruled out. It is not disputed that though an offence of cognizable nature was laid before the court, that was not taken notice of as no proceeding was drawn against those, who were alleged to have intimidated Fuchai Biswas, while Sk. Tami Zuddin was conducting the proceeding, and allegedly asked his Chief officer to apprehend the respondents. Such narrations about Sk. Tamizuddin asking Chief Officer for apprehending respondent were impliedly refuted by the latter in his evidence, and that apart, even those persons including Md. Sharif, Jogen Bind, Basudeo Biswas etc. and even Kamla Rai who were shown to have witnessed incident, were not examined at trial.

(2.) AFTER the appeal was admitted with leave of the court, respondents were called upon to answer the charges brought by the appellant. The contentions were raised at the bar on behalf of the appellant that the finding recorded by the trial court was not based on meticulous appreciation of evidences placed on the record, and as the matter relates about stalling the judicial proceeding, in case such offenders were not booked, that will send a wrong message in the society. The contentions raised at bar on behalf of the appellant was resisted by the learned counsel appearing for the respondents. There is cardinal principle of law, and the judicial precedents analysed in the catena of decisions cannot be lost sight of, that the finding of acquittal recorded by the trial court cannot be upset and the process be reversed, unless there are very strong and mitigating circumstances which make the finding perverse, not borne out by the record, and that apart the trial court has given the respondents the benefit of doubt and it is well -known that even if two views are possible, those favourable to the accused have to be adopted by the court and on these premises finding no merit the appeal is dismissed.