LALIT MOHON GHOSH v. AJAMIL GHOSH AND OTHERS — 1986 DIGILAW 73 (CAL)

S. GANGULY, J. ( 1 ) THIS is an appeal from an order of acquittal dated 10. 10. 1977 passed by Shri S. M. Ghosh Hazra, Chief Judicial Magistrate, Hooghly in C. R. Case No. 132/72 T. R. 95/77. ( 2 ) THE prosecution case is that at about 8. 30/9. 00 a. m. Puma Chandra Ghosh the father of the complainant-appellant was going back to his home at village-Patna within Police Station-Polba district-Hooghly when the appellant Ajamil dragged him inside his house. Thereafter the said accused, his two sons, Dhananjoy and Ashit-both appellant in this case-assaulted him by fists and blows and they also took away Rs. 7,000/- from his pocket and smeared his face with ink and lime. ( 3 ) IT appears that the prosecution examined not less than 10 witnesses, yet the learned Magistrate acquitted all the accused persons from the charges under sections 353/355/323/325/379 of the Indian Penal Code. Hence this appeal. ( 4 ) I have been taken through the entire evidence in this case and the judgment of the learned Magistrate. From the judgment it appears that the learned Magistrate inspite of the evidences adduced could not simply convince himself about the truthfulness of the prosecution case. On a consideration of the material on record I am of the view that the learned Magistrate is not to be blamed for the view that he has taken in this case. ( 5 ) IT appears that on the very day of the incident the aforementioned Puma Chandra Ghosh was examined by the Dr. Krishna Dhan Ghosh P. W. 8 of Polba Charitable Dispensary. He found inflammation on his right knee joint without any breach of toe skin and he opined that this injury may have been caused by a blunt weapon like lathi. He also found the face of Shri Puma Chandra Ghosh covered with black colour on one side and white colour on the other. It appears further that subsequently the injury was x-rayed and some injury though not fracture was found on his right knee. From the medical evidence it appears that there may have been some incident. ( 6 ) BE that as it may, the evidence to establish that the accused appellants were responsible for this incident is not at all satisfactory. It appears further that subsequently the injury was x-rayed and some injury though not fracture was found on his right knee. From the medical evidence it appears that there may have been some incident. ( 6 ) BE that as it may, the evidence to establish that the accused appellants were responsible for this incident is not at all satisfactory. From the version of the prosecution it appears that the assault took place in an inhabited portion of the village. Yet it appears that nobody living nearby the house of the appellants was examined as a witness of the occurrence and further that none amongst them was reported about it. This is a very serious lacuna in this case. This lacuna is sought to be done away with, by examining witnesses who are not residents of the locality and the near relations of the injured himself. Thus Lalit the son of the injured and the informant in this case (P. W. 2. is not an eye-witness of this incident. Basanti, P. W. 3 the daughter of the injured claims seeing her father being dragged into the house of the appellants while she was going to her school. That means she was a chance witness. Besides she does not say that she raised a hue and cry. She reported the incident to Haradhan and Phani, P. Ws. 4 and 5 who not residents of the locality, were allegedly going to a shop by that way. They were also, therefore, chance witnesses. ( 7 ) THE witnesses say that the door of the house of the appellants was closed from inside but a lady of the house opened the door and came out and that made it possible for them to enter the house to see the injured lying phostrate in the inn yard with the appellants around him in a threatening mood. This is a story which the learned Magistrate found very hard to believe and I cannot blame him for that. It is really improbable that a lady of the house would open the door to make it possible for the daughter of the injured and other strangers to enter their house to witness the assault. The evidence of these witnesses has been rightly disbelieved by the learned Magistrate. It is really improbable that a lady of the house would open the door to make it possible for the daughter of the injured and other strangers to enter their house to witness the assault. The evidence of these witnesses has been rightly disbelieved by the learned Magistrate. ( 8 ) THE above also applies to the evidence of Nasirul Haque Mondal, P. W. 6 who heard from Basanti that her father had been assaulted. The witness says that he was returning from the house of the doctor at that time which means he was also a chance witness. ( 9 ) IT becomes a quite clear therefore that the prosecution case was being sought to be established in this case with the help of witnesses who were not men of the locality and who in the ordinary course of suit would not have any reason to be at the place of the occurrence at that particular time. This poverty of evidence makes the prosecution case against the appellant very much unlievable. ( 10 ) IT is also to be mentioned here that on the prosecution case that the appellants had taken away a sum of Rs. 7,000/- from the pocket of the injured, a specific charge was framed against the appellant. Yet it appears that this very vital point was not mentioned in the G. D. entry which was made shortly after the alleged incident on the statement of the injured himself. Rs. 7,000/- is a substantial amount of money and the fact that no mention whatsoever of it was made in the G. D. entry clearly shows that there was no truth in this part of the prosecution story. The evidence in this regard also does not breed any confidence in this story. The prosecution case is that a relation of the injured sent this big amount of money through him for paying a bus repairer at Pandush. There is no explanation why such a big amount of money was sent through an old man for payment to a third party. ( 11 ) CONSIDERING the entire evidence on record in agreement with the learned Magistrate I hold that the evidence on record does not satisfactorily and unmistakeably show that the injury to the aforementioned P. C. Ghosh was really caused by the present appellants. ( 11 ) CONSIDERING the entire evidence on record in agreement with the learned Magistrate I hold that the evidence on record does not satisfactorily and unmistakeably show that the injury to the aforementioned P. C. Ghosh was really caused by the present appellants. The accused were rightly acquitted by the learned Magistrate and the judgment and order passed by him do not require to be interfered with in any way. ( 12 ) THIS appeal must therefore fail and the appeal is hereby dismissed. Appeal dismissed.