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2009 DIGILAW 708 (CAL)

Manotosh Roy v. STATE OF WEST BENGAL

2009-09-04

TAPAS KUMAR GIRI

body2009
Judgment :- (1). Chandra Mondal alias Chandrasekhar Mondal being acquitted under Section 448/326/302, I.P.C by the learned Additional Sessions Judge, 2nd Court Barasat, 24 Parganas North in Sessions Case No. 10(7) of 1999 [Sessions Trial No. 1 (9) of 2000] preferred this revisional application by the de facto complainant/petitioner Monotosh Roy challenging the order of acquittal. (2). Background facts of the prosecution case may be briefly stated as follows: -On 14.01.1998 at 1 A.M. in the right Monotosh Roy and his wife Rekha Roy after taking meal were sleeping and at that time three persons of their locality namely Sri Chandra Mondal, Mrityunjoy Mondal and Kalipada Mondal entered into the house of the complainants uncle with deadly weapons for the purpose of committing murder. Chandra Mondal started to assault on different parts of Monotosh Roy for which he sustained bleeding injuries and when Monotosh Roy was groaning in pain at that time the wife of Monotosh Roy woke up from her sleep and she tried to save Monotosh Roy and at that time Chandra assaulted Rekha on her person and she sustained bleeding injury and she raised hue and cry. Hearing hue and cry Gopal Roy came to that place and he recognized those three miscreants with the help of a light of a torch when the miscreants left the place with deadly weapons and he tried to catch hold them but they fled away. The complainant entered into the room of his uncle and found both his uncle and aunt who were lying on the floor with bleeding injuries and the complainant came to learn the fact from his aunt. At that time some villagers assembled there and they took both the injured to the hospital at Bagdah. After examination the doctor advised Gopal Roy to shift the injured to Bangon Hospital due to their precarious condition. After treatment Monotosh Roy survived but Rekha Roy expired. A complaint was lodged and the P.S. Case was started. The I.O. after completion of investigation and after collecting the injury report and the post-mortem report submitted the charge sheet against the accused Chandra Mondal who was released on bail and stood for trial. (3). After treatment Monotosh Roy survived but Rekha Roy expired. A complaint was lodged and the P.S. Case was started. The I.O. after completion of investigation and after collecting the injury report and the post-mortem report submitted the charge sheet against the accused Chandra Mondal who was released on bail and stood for trial. (3). Learned Additional Sessions Judge, 2nd Court, Barasat on perusal of necessary papers placed before him and after hearing both the prosecution and the accused framed the charge under Section 448/326/302,I.P.C. against the accused who pleaded innocent and claimed to be tried. (4). During trial the prosecution cited 13 witnesses i.e., Gopal Roy (P.W. 1), Nepal Roy (P.W.2), Mantu Adhikary (P.W.3), Bablu Adhikary (P.W.4), Smt. Chandana Roy (P.W.5), Shyamsundar Roy (P.W.6), Sanatan Biswas (P.W.7), Manotosn Roy (P.W.8), Rabinara Nath Rudra (P.W.9), Dr. Kalipada Roy (P.W. 10), Dr. Manabendra Roy (P.W. 11), Narayan Chandra Adhimary (P.W. 12) and Dulal Kanti Mukherjee (P.W.13). (5). Out of 13 prosecution witnesses, P.W.1 was the de-facto complainant. P.W.6 who was the minor at the relevant time being the son of the deceased was the eye witness to the occurrence. P.W.3, P.W.4, P.W.5, P.W. 6 and P.W.7 were witness who came to the P.O. after the occurrence. P.W. 8 being the husband of the deceased was the witness to the occurrence. P.W. 9 being the police person started the case on the basis of the written complain. P.W.10 being the doctor held the post-mortem examination over the dead body of Rekha Roy. P.W. 11 being the medical officer of Bangon examined Rekha Roy and stated the condition of Rekha Roy after operation. P.W. 12 held the inquest report. P.W.13 was the I.O. of this case. (6). At the very outset it is to be mentioned that learned Additional Sessions Judge acquitted the accused Chandra Mondal after disbelieving the evidence of the prosecution witnesses. (7). Some papers were marked as exhibits at the time of trial. Learned Additional Sessions Judge as it transpires from the judgment placed his reliance on the postmortem report but disbelieved the evidence of the witnesses. (8). After elaborate discussion of the oral evidence of the prosecution and after submission of both the accused and defence in details learned Additional Sessions Judge after accepting the defence story, found the accused Chandra Mondal not guilty for the charge under Section 448/326/302,I.P.C. (9). (8). After elaborate discussion of the oral evidence of the prosecution and after submission of both the accused and defence in details learned Additional Sessions Judge after accepting the defence story, found the accused Chandra Mondal not guilty for the charge under Section 448/326/302,I.P.C. (9). Appearing for the petitioner/appellant in connection with this appeal learned Advocate Mr. Moitra canvassed the relevant points as follows : -(1) That in the present case P.W.8, one of the injured and P.W.6 the son of the deceased were the direct eye witness to the occurrence but the learned Additional Sessions Judge did not believe the evidence of both the above two witnesses. (2) That the injured victim was initially brought to the Bagdah P.H.C. for medical treatment and Dr. Uma Pada Das who was charge- sheet witness serial No.10 was not examined by the prosecution as well as by the learned Court below though on several dates i.e., on 24.3.2003, 28.01.2004 and 26.05.2004 the prosecution witness Dr. Uma Pada Das was present on those dates but the Court did not examine Dr. Das and no explanation was given by the learned Court below for non-examination of Dr. Das. (3) That the mark of injury as stated in the P.M. report would clearly indicate whether Dr. Uma Pada Das found such injury on the deceased Rekha Roy at the first instance and whether Rekha Roy stated the names of the assailants at the time of her examination by Dr. Das. (4) That in the present occurrence P.W.6 and P.W.8 the eye witness to the occurrence and P.W.6 being the minor son was witness to the occurrence when the accused assaulted his mother with the sharp cutting instrument but learned Additional Sessions Judge failed to appreciate the evidence of P.W.6. (10). Mr. Moitra learned Advocate pointed out that to find out the truth of the allegation learned Additional Sessions Judge took steps to bring Dr. Uma Pada Das as a Court witness under Section 311 of the Code of Criminal Procedure. As such it is a fit case to remand the present case to the learned Additional Sessions Judge for fresh findings by way of examination of Dr. Uma Pacla Das after setting aside the order of acquittal. (11). Mr. Uma Pada Das as a Court witness under Section 311 of the Code of Criminal Procedure. As such it is a fit case to remand the present case to the learned Additional Sessions Judge for fresh findings by way of examination of Dr. Uma Pacla Das after setting aside the order of acquittal. (11). Mr. Chakraborty learned Advocate appearing on behalf of the O.P. No. 2 i.e. accused argued that if there was any miscarriage of justice then this Court can interfere in the order of acquittal. Mr. Chakraborty also pointed out that learned Additional Sessions Judge was justified to disbelieve the evidence of P.W.6 with reference to the evidence of the other prosecution witnesses in respect of alleged occurrence for involvement of the accused. (12). Mr. Chakraborty also pointed out that there was no miscarriage of justice in the judgement passed by the learned Additional Sessions Judge either to interfere for setting aside the same or for remand for fresh trial. (13). Mr. Chakraborty cited the case laws reported in AIR 1976 SC 975 (Bhagirath v. State of Madhya Pradesh), 2002 Cr.LJ 3737 (Toran Singh v. State of Madhya Pradesh), 2002 Cr.LJ 4676:2003 C Cr LR (SC) 147 (Ashish Batham v. State of Madhya Pradesh), 2003 Cr.LJ. 2021 (Karamjit Singh v. State (Delhi Administration), AIR 1975 SC 580 (Satyendra Nath Dutta and Anr. v. Ram Narain), AIR 1973 SC 2145 (Akalu Ahir and Ors. v. Rarndeo Ram), AIR 1975 SC 1854 (Pakalapati Narayana Gajapathi Raju and Ors. v. Bonapalli Peda Appadu and Anr.), AIR 1986 SC 1721 :1986 C Cr LR (SC) 132 (Bansi Lal and Ors. v. Laxman Singh) and 2002 C Cr LR (SC) 643 (Jagannath Choudhary v. Ramayan Singh). (14). Mr. Chakraborty filed the written notes of argument in support of his contention. (15). Mr. Panchal learned Advocate appearing on behalf of the State pointed out if there is/was any miscarriage of justice, this Court can interfere in the said order, (16). I have considered the submission of learned Advocates Mr. Moitra, Mr. Chakraborty and Mr. Panchal and I have examined the prosecution evidence both oral and documentary and the L.C.R. specially the orders dated 24.03.2003,28.01.2004 and 26.05.2004. (17). In the present case 13 witnesses were examined on behalf of the prosecution. I have considered the submission of learned Advocates Mr. Moitra, Mr. Chakraborty and Mr. Panchal and I have examined the prosecution evidence both oral and documentary and the L.C.R. specially the orders dated 24.03.2003,28.01.2004 and 26.05.2004. (17). In the present case 13 witnesses were examined on behalf of the prosecution. Out of 13 witnesses except evidence of P.W.6 and P.W.8 the other private witnesses on behalf of the prosecution were not eye witness to the occurrence. P.W.6 was the only eye witness to the occurrence but P.W.8 being the husband of the deceased was not the eye witness to the occurrence but he was injured initially by the accused. (18). It is needless to mention that P.W.11 examined Rekha Roy and after operation he stated that the patient found drowsy and pupils were not reacting to light and she expired on the same day. P.W.13 who was the I.O. of this case stated in his evidence that the accused Chandra inflicted three hit with Dao on Rekhas right thigh, left ear and neck. It appears from the postmortem examination report it is found the mark of injury on the body of Rekha Roy over the left fore arm, right ear and at the lower jaw and it was caused by sharp cutting instrument. The evidence of P.W.6 clearly indicated that when he was sleeping with his parents, suddenly his mother cried out and he noticed accused Chandra was cutting her with a sharp cutting weapon in his hand and woke up at that moment for the sudden cry of his mother. P.W.I stated that he arranged immediate hospitalization of his injured uncle and aunt at Bagdah and they disclosed the name of the assailant Chandra Mondal and the doctor of Bagdah hospital referred the patients to Bangaon hospital where they were admitted. In the charge-sheet Dr. Uma Pada Das of Bagdah rural hospital P.H.C. district 24 Parganas North was cited as witness in serial No. 10. At the time of trial Dr. Uma Pada Das was not examined by the prosecution. It appears from the lower Court record that Dr. Uma Padu Das was present on several dates i.e., 24.3.2003,28.01.2004 and 26.05.2004 but Dr. Das was not examined before the learned Court below. There was no specific finding from the learned Trial Court during trial why Dr. Uma Pada Das was not examined by the prosecution. It appears from the lower Court record that Dr. Uma Padu Das was present on several dates i.e., 24.3.2003,28.01.2004 and 26.05.2004 but Dr. Das was not examined before the learned Court below. There was no specific finding from the learned Trial Court during trial why Dr. Das was not examined before learned Court below at the time of trial though he was present on three dates. In the judgment of the learned Court below, learned Additional sessions Judge did not comment any observation for non-examination of Dr. Uma Pada Das. It is needless to mention that deceased Rekha Roy was initially brought to Bagdah P.B.C. and Dr. Uma Pada Das examined her. In such a case to find out the truth of the present fact regarding the involvement of the accused Chandra Mondal whether the mark of injuries of Rekha Roy were detected by Dr. Uma Pada Roy at the first instance with reference to the mark of injury as per post-mortem report. In the reported decision Bansi Lal and Ors. (supra) it was observed by the Apex Court that "the revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial Court is more narrow in its scope it is only in glaring case of injustice resulting from some violation of fundamental principles of law by the Trial Court that the High Court is empowered to set aside the order of the acquittal and direct retrial of the accused" (19). In the reported decision Johar and Ors. (supra) the Apex Court observed that "it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties though the State may not have thought fit to appeal but this jurisdiction should in our opinion be exercised by the High Court only in exceptional case when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequentially there has been a flagrant miscarriage of justice." (20). In the present case learned Trial Judge did not take any observation in the judgment why the prosecution did not examine Dr. Uma Pada Das as a vital witness in this case though he was present on several dates before the learned Court below at the time of trial. In the present case learned Trial Judge did not take any observation in the judgment why the prosecution did not examine Dr. Uma Pada Das as a vital witness in this case though he was present on several dates before the learned Court below at the time of trial. It is admitted that the present revisional application is filed by the de-facto complainant to find out the truth of the present allegation. (21). This Court is of the opinion that the evidence of Dr. Uma Pada Das serial No.10 of the charge-sheet witness is essential to find out the truth with reference to the evidence of P.W.6 as well as the report of the post-mortem examination. As a result, the present revisional application is allowed. The judgment and order of acquittal passed by the learned Additional Sessions Judge, 2nd Court Barasat is set aside. (22). Learned Additional Sessions Judge, 2nd Court, Barasat is directed to take the evidence of Dr. Uma Pada Das serial No.10 of the charge-sheet as a Court witness under Section 311, Cr. P.C. and to give a fresh judgment with reference to the evidence of the prosecution witness P.W.1 to P.W. 13 according to law. (23). The present revisional application is allowed. The revisional case is disposed of accordingly. (24). Let L.C.R. along with the copy of this judgment be sent to the learned Court below at once. (25). Learned Registrar (Administration) is requested to send the L.C.R. along with copy of the present order to the learned Additional Sessions Judge, 2nd Court, Barasat by a special messenger within seven days from the date of this order.