Sri Sailendra Kumar Goswami vs The State Of Assam And Anr
2022 Latest Caselaw 2482 Gua

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GAHC010016842017




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

                                Case No. : Crl.A./85/2017

            SRI SAILENDRA KUMAR GOSWAMI
            S/O LATE TARUN CHANDRA GOSWAMI, WORKING AS MANAGER,
            MUTTUCK T.E. , P.O. and P.S.LAHOWAL, DIST. DIBRUGARH, ASSAM.



            VERSUS

            THE STATE OF ASSAM and ANR




Advocate for the Petitioner   : MR.N N UPADHAYA

Advocate for the Respondent : PP, ASSAM

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BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN

Date of Hearing : 24.05.2022

Date of Judgment : 26.07.2022

JUDGMENT & ORDER (CAV)

Heard Mr. N. N. Upadhaya, learned counsel for the appellant and also heard Mr. S. Khound, learned counsel for respondent No. 2, and Mr. P. Borthakur, learned Addl. PP for State respondent No. 1.

2. This appeal under Section 378 of the Code of Criminal Procedure, is directed against the judgment and order dated 04.04.2015, passed in Crl.App./11(2)/14, by the learned Addl. Sessions Judge, Dibrugarh. It is to be noted here that vide impugned judgment and order, the learned Court below has acquitted the respondent by setting aside the judgment and order of conviction, dated 07.05.2014, passed by the learned Judicial Magistrate, First Class, Dibrugarh, in C.R. Case No.34C/2009, convicting the respondent under Section 500 IPC and sentencing him to pay a fine of Rs. 2,000/- (Rupees Two Thousand), and on default, to undergo SI for three months.

3. The factual background leading to filing of this appeal is adumbrated herein below:-

"The appellant, Shri Sailendra Kumar Goswami, was serving as the

Manager, Muttuck Tea Estate, P.O. & P.S. Lahowal. The respondent was appointed as an Asstt. Factory Manager at Muttock T.E. Since Page No.# 3/10

the date of joining of respondent many untoward incidents had taken place in the company, for which the respondent was blamed by the staff and laborers. Thereafter, being dissatisfied with the performance of the respondent, the company has removed him from service. Thereafter, on 28.01.2009, the respondent sent one letter by e-mail, containing defamatory statement against the appellant to the President, M.K. Exports, Head Office at Mumbai, and also sent copies of the said letter to all concerned who are related with the Tea Management Group. Besides, the respondent has also been threatening the appellant with dire consequences by assuming and presuming him to be solely responsible for termination of his service.

Then the appellant filed a complaint before the Court of learned Judicial Magistrate First Class, Dibrugarh, and then the learned Judicial Magistrate, after examination of the appellant, took cognizance of the offence under Section 500 IPC and summoned the respondent, Shri Raju Hazarika to appear before it and to stand trial. After receiving summon, the respondent appeared before the learned Judicial Magistrate First Class, Dibrugarh, and stood trial. And he pleaded not guilty to the offence under Section 500 IPC, which was explained and read over to him. Thereafter, the appellant has examined as many as five witnesses including him, and after closing the evidence, the respondent was examined under section 313, Cr.P.C. on 23.02.2010. Thereafter, the respondent has examined himself as defense witness and after closing the evidence of both the parties and hearing the arguments of both sides, the learned Judicial Magistrate First Class, has convicted the respondent as Page No.# 4/10

aforesaid."

4. The respondent then filed an appeal before the Court of learned Additional Sessions Judge, Dibrugarh, and vide impugned judgment and order dated 04.04.2015, the learned Additional Sessions Judge, in Crl. App.11(2)/2014, has allowed the appeal, and set aside the judgment and order of conviction of the respondent so handed down by the learned Judicial Magistrate, First Class, Dibrugarh.

5. Being highly aggrieved by the impugned judgment and order dated 04.04.2015, passed by the learned Additional Sessions Judge in Crl. App./11(2)/2014, the appellant has preferred this appeal on the ground that:-

i) That, the learned Court below has misread the provision of law and the evidence on record and thereby committed irregularity and illegality.

ii) That, the prosecution side has succeeded in establishing the case beyond reasonable doubt and that the prosecution witnesses namely, PW1 (Shri Milan Saikia) and PW-2 (Shri Pranab Jyoti Dowerah) have clearly stated that the letter was sent by e-mail by the respondent, which was derogatory and damaging to the reputation of the appellant.

iii) That, the derogatory statement was made by the respondent not in good faith and as such, the conviction and sentence was passed by the learned Trial Court, ought not to have been interfered with, and the learned Court below has taken a pedantic approach in overlooking the overwhelming evidence against the respondent.

iv) That, the respondent, in his statement, under Section 313 Cr.P.C., has Page No.# 5/10

clearly stated that he was the author of the Exhibit-'1', and further admitted having sent the same to many persons, which aspect has been overlooked by the learned lower Appellate Court.

v) That, the learned Appellate Court took a hyper-technical approach, by resorting to Section 65B of the Indian Evidence Act, wherein the respondent has not disputed the contents of the letter- Exhibit-'1', which was sent by him, and as such, all the ingredients of the offence under Section 500 IPC was clearly established, and the learned lower Appellate Court has failed to appreciate the same.

vi) That, the respondent, having admitted that he has sent the letter by e-mail to various persons and also having admitted the contents of the Exhibit-'1', and this clear admission, as per Section 58 of the Indian Evidence Act- which provides that facts admitted need not be proved- clearly comes into play and thus, the provisions of Section 65B of the Indian Evidence Act becomes redundant.

vii) That, the statement and evidences of the prosecution witnesses, when taken together, goes to show that the evidence as provided under Section 3 and 8 of the Indian Evidence Act, and a presumption can be drawn concluding that the respondent is guilty of commission of offence under Section 500 IPC and the learned Judicial Magistrate, First Class, Dibrugarh, taking into account all these facts convicted the respondent and sentenced him, and therefore it is contended to allow this appeal by setting aside the impugned judgment and order passed by the lower Appellate Court, in Crl.App./11(2)/2014.

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6. Mr. N. N. Upadhaya, learned counsel for the appellant, submits that the appellant has succeeded in establishing the offence under Section 500 IPC against the respondent. Mr. Upadhaya further submits that the respondent has admitted sending the derogatory letter by e-mail, and the learned Judicial Magistrate First Class, Dibrugarh, has rightly arrived at the conclusion and convicted the respondent. Mr. Upadhaya also submits that it is a fact that Certificate under Section 65B of the Indian Evidence Act has not been furnished by the appellant, but as per Section 58, admitted facts need not be proved, and since the respondent has admitted sending the defamatory letter by e-mail, the requirement of certificate under Section 65B of the Indian Evidence Act becomes redundant. Mr. Upadhaya further submits that the learned lower Appellate Court has failed to appreciate the facts and the points of law in its proper perspective, and as such the impugned judgment and order passed by the learned lower Appellate Court is not sustainable in law and, therefore, it is to be set aside.

7. On the other hand, Mr. S. Khound, learned counsel for the respondent, defended the impugned judgment and order passed by the learned lower Appellate Court. Mr. Khound submits that the appellant has failed to produce the certificate under Section 65B of the Indian Evidence Act and the learned lower Appellate Court has rightly set aside the conviction of the respondent. Mr. Khound further submits that the best witnesses have not been produced before the Court below and the prosecution witnesses, who have been examined in this case as witnesses, have not received and seen the letter sent by e-mail. It is the further submission of Mr. Khound that there are several inconsistencies in the stand taken by the appellant, and therefore, it is contended to dismiss this appeal.

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8. On the other hand, Mr. P. Borthakur, learned Additional PP submits that the requirement of certificate under Section 65B of the Indian Evidence Act is not sine qua non as the respondent in his examination under Section 313 CrPC has clearly admitted having sent the derogatory letter by e-mail and as such, the learned Additional PP submits that the learned Judicial Magistrate First Class, has rightly arrived at the finding of guilt of the respondent and, therefore, it is contended to set aside the impugned judgment and order passed by the learned lower Appellate Court, and to uphold the judgment and order passed by the learned Judicial Magistrate First Class, Dibrugarh.

9. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record, and also carefully gone through the impugned judgment and order passed by the learned Judicial Magistrate First Class, Dibrugarh, in C.R. Case No. 34C/2009, dated 07.05.2014, and also the impugned judgment and order passed by the learned Additional Sessions Judge, Dibrugarh, in Crl. Appl. 11(2)/2014, dated 04.04.2015.

10. On careful perusal of the impugned judgment and order dated 04.04.2015, passed by the learned Additional Sessions Judge, Dibrugarh, in Crl.App.11(2)/2014, it appears that the learned Addl. Sessions Judge has set aside the judgment and order of the learned Judicial Magistrate First Class, on the ground that the appellant side has failed to produce Certificate under Section 65B of the Indian Evidence Act, which is required to prove the letter sent by the respondent by e-mail to various persons, including the appellant.

11. Thus, it appears that the case of the appellant lies in a very narrow compass. This Court is required to answer the short question as to whether Section 58 of the Evidence Act relieved the appellant from furnishing the Page No.# 8/10

Certificate as required by section 65B of the said Act, to prove the letter sent by the respondent by e-mail. It is an admitted fact that the appellant has not furnished any Certificate under Section 65B of the Indian Evidence Act, to prove the letter sent by the respondent by e-mail. But, the learned counsel for the appellant has contended that since the respondent has admitted sending of the letter by e-mail and also admitted the contents thereof, as per Section 58 of the Indian Evidence Act, he is relieved from the burden of proving the e-mail by adducing secondary evidence by enclosing a Certificate under Section 65B of the Indian Evidence Act. There appears to be some substance in the submissions advanced by Mr. Upadhaya, learned counsel for the appellant.

12. But, it is the principle of criminal jurisprudence that the burden lies upon the prosecution side to prove its case beyond all reasonable doubt. Admittedly, the appellant has not produced the primary evidence, i.e., the computer from where the letter was sent by e-mail, and printout of which was taken and as such, to prove the letter by adducing secondary evidence, the appellant is required to furnish a Certificate under Section 65B of the Indian Evidence Act. It is the mandate of section 65B of the Evidence Act. In the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal on 14 July, 2020, Civil Appeal Nos. 20825-20826 of 2017 with Civil Appeal No. 2407 of 2018, and Civil Appeal No.3696 of 2018, Hon'ble Supreme Court has held as under:-

"59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states Page No.# 9/10

that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose."

13. It is a fact that Section 58 of the Indian Evidence Act provides that- " no fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agrees to admit by any writing under their hands or which, by any rule or pleading, in force at the time they are deemed to have been admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise, than by such admissions."

14. Thus, it appears that according to Section 58, if the party to a proceeding or their agents agrees to admit, they are deemed to have been admitted:

i) At the hearing or by,

ii) Writing before the hearing, or

iii) Which by any rule or pleadings in force they are deemed to have admitted by the pleading but need not be proved by the opposite party.

15. Here, in this case, having gone through the record of the learned Trial Court, I find that the respondent has admitted having sent the letter by e-mail and also the contents thereof in his examination in his evidence as D.W.1 and also under Section 313 Cr.P.C, and also in his evidence. Now, there remains to be seen whether the fact admitted by the accused in his evidence and in his examination under Section 313 can be acted upon.

16. Though the respondent has admitted in his evidence having sent the Page No.# 10/10

letter by email, yet the prosecution cannot rely upon the defense evidence to prove its case. It has to establish its case by its own evidence. It is the cardinal principle of criminal jurisprudence, and the appellant had failed to do. Besides, the law in respect of admission made by the accused in his statement under section 313 Cr.P.C. is well-settled in catena of decision of Hon'ble Supreme Court that the statement of accused under Section 313 Cr.P.C., cannot be read as evidence. This being the factual as well legal position, it cannot be said that the learned lower Appellant Court had committed any illegality by not acting upon the statements of the accused under Section 313 Cr.P.C.

17. It also appears that though the respondent, in his evidence admitted having sent the letter by e mail, yet, he denied that the content of the letter is defamatory. The learned lower appellate court, by applying its discretion, held that the fact admitted required to be proved by otherwise than admission, in view of the proviso to the section 58 Evidence Act. This discretion cannot be overlooked by this court, while production of Certificate under section 65B is made mandatory, by the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar (supra). Thus, I find sufficient forced in the submission so advanced by Mr. S. Khound, learned counsel for the respondent.

18. In the result, I find this appeal devoid of merit and accordingly, the same stands dismissed. The impugned judgment and order passed by the learned lower Appellate Court stands affirmed.

19. In view of the above facts and circumstances, it is provided that the parties have to bear their own cost.

JUDGE

Comparing Assistant