Director C.B.I vs Sh Bhagya Kalita And Anr
2021 Latest Caselaw 2133 Gua

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GAHC010117892018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Crl.L.P./61/2018

            DIRECTOR C.B.I.
            THROUGH THE D.I.G. AND HEAD OF BRANCH SPECIAL CRIME BRANCH
            ,HAVING OFFICE AT 2ND FLOOR, A WING, DF BLOCK ,SALT LAKE,
            KOLKTA 700064, WEST BENGAL.



            VERSUS

            SH BHAGYA KALITA AND ANR
            S/O SH BHARAT KALITA ,
            PIYALI PHUKAN ROAD ,REHABARI,
            PS, PALTAN BAZAR, GUWAHATI

            2:MD FATIUR ALI
             S/O SAYED SAHABUDDIN ALI

            VILL. GHILABARI
            P.S. BOKO
            DIST. KAMRUP
            ASSA

Advocate for the Petitioner   : MR. S C KEYAL

Advocate for the Respondent : MR D K MISHRA (R2)
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                                     BEFORE
                      HONOURABLE MR. JUSTICE SUMAN SHYAM
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                            ORDER

09.09.2021 (Sumam Shyam, J)

Heard Mr. R.K.D. Choudhury, learned Assistant Solicitor General of India appearing for the petitioner. We have also heard Mr. A.K. Bhattacharyya, learned senior counsel assisted by Mr. D.K. Bhattacharyya, Advocate appearing for the respondent no. 1 as well as Mr. D. K. Mishra, learned senior counsel assisted by Mr. A. Sandilya, Advocate representing the respondent no. 2.

This petition under Section 378(3) read with Section 482 of the CrPC has been filed by the Director, Central Bureau of Investigation (CBI) seeking leave of this Court to appeal against the judgment and order of acquittal dated 22.08.2017 passed by the learned Additional District and Sessions Judge No. 2, Kamrup (M),Guwahati in Sessions Case No. 9/1999 arising out of CBI Case No. RC-9/S/95-Kol whereby, the respondent nos. 1 and 2 i.e. the two accused persons had been acquitted of the charge(s) framed under Section 302 IPC against the respondent no. 1 and Sections 302/114 IPC against the respondent no. 2.

By referring to the impugned judgment as well as the materials available on-record, Mr. Dev Choudury, learned ASGI has argued that the impugned judgment and order is vitiated by perversity inasmuch as the learned trial Court had ignored relevant evidence available on- record while acquitting the two accused persons. Mr. Dev Choudhury submits that certain important circumstances such as the fact that the accused nos. 1 and 3 were absconding soon after the incident and later on, the accused no. 1/respondent no. 1 was arrested by the Police; the revelation in the 164 CrPC statement of the PW-2 and the similarity in the version of this witness with the deposition of the PW-35 have not been considered by the learned trial Court in Page No.# 3/4

the proper perspective.

Mr. Dev Choudhury further submits that the learned Court below has also failed to consider the evidence of PW-37, who is a seizure witness of the chappals belonging to the main accused. According to Mr. Dev Choudhury, due to the non-consideration of such important evidence available on record, the impugned judgment and order suffers from fatal error which requires to be corrected by this Court. Hence, the leave, as prayed for, be granted.

The prayer made in this petition has been vehemently opposed by the learned senior counsel appearing for both the respondents by submitting that there is no perversity in the impugned judgment and order passed by the learned trial Court, inasmuch as, the entire evidence brought on-record had been duly considered by the trial Court before acquitting the accused persons, by recording proper satisfaction that the prosecution had failed to prove the charges brought against the accused.

Mr. A.K. Bhattacharyya, learned senior counsel appearing for the respondent no. 1 and Mr. D.K. Mishra, learned senior counsel for the respondent no. 2 have argued in tandem that there is no evidence to prove the charges brought against the respondent nos. 1 and 2 in this case and, therefore, their acquittal by the learned trial court does not call for re-consideration by this Court.

After hearing the submissions of learned counsels for both the sides and on evaluation of the materials brought to our notice, we find that the learned trial Court has indeed ignored the testimony of PW-37 and has taken a view with regard to the evidence of PW-35 which, in the ultimate analysis, may or may not be correct in the eye of law. However, whether such omission/opinion of the trial Court would have material bearing in the outcome of the appeal calls for examination by this Court, which can be done only when the evidence adduced on- record is re-evaluated. Therefore, having regard to the submissions advanced by the learned ASGI, we are of the opinion that a prima facie case has been made out for giving a fresh look at the impugned judgment and order of acquittal passed by the learned trial Court.

As such, leave, as prayed for is granted.

The leave petition is hereby allowed.

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Office to register the connected appeal and list for admission.

Since the learned senior counsel for the respondents have submitted that their clients have already suffered due to the enormous delay in conclusion of the trial as well as the delay in disposal of the leave petition by this Court, on the request of the learned counsel for the parties, we direct the Registry to list the appeal for admission hearing, as a fixed item, on 15.09.2021 along with the LCR.

                         JUDGE                                 JUDGE



Comparing Assistant