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2010 DIGILAW 937 (CAL)

State v. Amal Parui

2010-08-06

AMIT TALUKDAR, M.K.CHAUDHURI

body2010
JUDGMENT Chaudhuri, J. 1. THIS is a Government appeal filed by State of West Bengal under Section 378 sub-section 2 of the Code of Criminal Procedure against the judgment and order of acquittal passed by Sri B. K. Lala, Additional Sessions Judge, South 24-Parganas, Alipore in Sessions Trial No. 7(1) of 1978 whereby the learned Additional Sessions Judge acquitted the accused/respondents from the charge under Sections148/149/307 I.P.C. Since none appears on behalf of the State or on behalf of the appellant, we requested Mr. Subir Ganguly, learned State Panel Lawyer to appear on behalf of the State/appellant and sought the Assistance of Sri Jaydeep Biswas, learned Advocate as Amicus Curiae and with their assistance we have considered the materials-on- record and evidence and we proceeded to dispose of appeal accordingly. 2. THE case of the appellant prosecution in short, is that on 8.05.77 at about 1 p.m. the de facto complainant Asit Parui and his other brothers namely Pravash and Netai were sowing seeds on their land at Ramkrishnapur. There was a long standing dispute over the right and title of this land between the de facto complainant and his brothers on one side and the accused/respondents on the other. As a result, many a litigations were pending. On 18.05.77 the complainant and his brothers were sowing seeds, the accused/respondents being equipped with deadly weapons like lathi, iron rod, dagger, spear etc. entered into the disputed land and assaulted Asit and his brothers Pravash and Netai who sustained bleeding injury. THE petition of complaint was lodged. Thereafter, investigation was held and charge-sheet was submitted and after considering the materials-on-record of this case, the charge was framed under Sections 148/149 I.P.C. against the accused/respondents and the charge read over and explained to them to which they did not plead guilty and claimed to be tried. Prosecution examined 13 witnesses and the accused persons were examined under Section 313 of Cr.P.C. Two witnesses were adduced on behalf of the accused/respondent. After having heard and perused the materials-on-record the learned Trial Court passed judgment whereby learned Trial Court acquitted the accused persons from the charge framed under Sections 148/149 I.P.C. Aggrieved by and dissatisfied with the judgment and order of acquittal passed by learned Trial Court the State has preferred this appeal being the appellant. This appeal has been contested by the accused persons as respondents. 3. This appeal has been contested by the accused persons as respondents. 3. NOW, the points of consolidation before this Court are whether the judgment and order passed by the learned Trial Court suffers from illegality, perversity and misconception of facts and law. At the very outset it may be mentioned that this Court has power under Section 386 of the Cr.P.C. to reappreciate the evidences already recorded and to consider the points of facts and law. Mr. Subir Ganguly, learned Advocate for the State/appellant has submitted that the evidences of prosecution are sufficient to convict the respondent/accused. But trial Court failed to appreciate the evidence on merit. On the other hand, Mr. Jaydeep Biswas learned Amicus Curiae has submitted that evidences of prosecution are not sufficient and strong to convict the respondents. In view of the fact that there was enmity between both sides in the matter of landed property and the complainant and his brothers attacked the accused/respondents whereby latter made counter-attack in response to self-defence or private defence. Learned Amicus Curiae has further submitted that learned Trial Court was justified acquitting the accused/ respondents from the charge framed against them. 4. WE have carefully heard the submissions of both sides and perused the evidences on record and considered. It is thus wise to scrutinize the evidence of de facto complainant and his brothers and other witnesses. From the evidence of P.W.1 Asit Parui it appears that Bhupen Parui filed one partition suit in respect of the disputed land against the father of this P.W.1. This statement is forthcoming from the examination in chief of P.W.1. In his cross-examination he has clearly stated that he is an accused in the counter case where the accused/ respondent, Vivekananda Parui is the de facto complainant. He does not deny whether accused Vivekananda allegedly complained that he (Vivek) and other accused Amal Parui, Sanjib Parui and Ashim Mal were assaulted by the de facto complainant and his brothers. He has admitted in his cross-examination that his brother Provash and Netai have been made accused in that case. He has suppressed the fact that the present accused persons are the witnesses in that case. Similarly, this witness cannot remember the nature of paddy seeds. He has admitted in his cross-examination that his brother Provash and Netai have been made accused in that case. He has suppressed the fact that the present accused persons are the witnesses in that case. Similarly, this witness cannot remember the nature of paddy seeds. He denies the suggestion in the cross-examination that there was a mutual arrangement whereby the sons of Amulyababu possessed the disputed land and on the date of occurrence, Vivek or his brother-in-law Ashim Mal or Sanjib or Amal were uprooting grass from the disputed land. He has also denied that he and his brother assaulted the accused/respondent on the date of incident and thereby caused injury to them. Similarly, P.W.2 Netai has stated that the accused persons in order to grab the land, assaulted them in order to dispossess them from the disputed land. He did not tell the I.O. about the Khatian number and Plot number of the disputed land. From the evidence of P.W.1 and P.W.2 it is evident that the accused persons were uprooting grass from the disputed land and the de facto complainant and his brothers assaulted them first and thereafter counter-attack started by the accused/ respondent towards self-defence or private defence. 5. P.W.3 Pravash Parui another brother of the de facto complainant has also admitted that his uncle Bhupen filed one title suit against his father being T.S. No. 62 of 1960. After the death of his father, they were substituted. The preliminary decree was passed in that suit. Appeal preferred by them was dismissed and the second appeal was also preferred before the Hon'ble High Court. He has further admitted in his cross-examination that he could not show any document to the I.O. relating to the title of the disputed land. He could not give particulars relating to the disputed land to the I.O. If the disputed land actually belonged to them they could have filed title deed to that effect and stated particulars of the disputed land. Therefore, the evidences of P.Ws.1, 2 and 3 clearly indicate that the title of the disputed land does not belong to them, On the contrary, it belonged to the accused/respondent. 6. P.W.4 is one of the sisters of the complainant. She has stated in the cross-examination that she found the accused persons from the spot. She did not ask to anyone to apprehend the accused persons. 6. P.W.4 is one of the sisters of the complainant. She has stated in the cross-examination that she found the accused persons from the spot. She did not ask to anyone to apprehend the accused persons. She told I.O. that local people informed her at 1 p.m. that accused Vivek and others had gone with lathi and iron rod. However, she is not eye-witness of the occurrence. She only saw the injury of her brothers. P.W. 5 Batakrishna Dhali, P.W.6 Prabir Roy have been declared hostile by the prosecution. P.W.7 Bijoy Dhali has stated that he placed Provas Parui and Asit Parui in the rickshaw as they sustained injury. He cannot say who is the owner of any particular land of that village. So, this witness is of no help of the prosecution. P.W.8 Subal Chandra Mondal, P.W.9 Sushil Kumar Dalui and P.W. 10 Lakshan Chandra Khatado not help the prosecution in any way to establish its case. 7. P.W.11 Asoke Chandra Das is the General Duty Assistant attached to the office of the Vidyasagar Hospital. He brought police register and injury register. He identified the handwriting and signature of Dr. A. Bhattacharya since deceased. 8. P.W. 12 Dr. Krishna Dasgupta (Mrs. Malahan) examined the injury. Her evidence revealed that the complainant and his brother sustained lacerated injury. She has also given the measurement. In her cross-examination it appears that this M.O. examined accused Vivekananda Parui as Patient No.605 as shown in the injury register. She found lacerated injury about 1"x1 \ 2"x1 \ 2" over the left side of the parietal bone, tenderness present over the right wrist joint, abrasion about 6"x1"x1" over the right scapula. From her evidence it is crystal clear that the accused Vivekananda Parui was also assaulted and sustained injury. P.W.13 Birendra Nath Banerjee, S.I. of police who started Bishnupur P.S. Case No. 17 dated 18.05.77. He sent the injured to the Vidyasagar Hospital for treatment. The investigation was held by A. K. Dutta. However, the accused/respondent Amal Parui in his cross-examination under Section 313 of Cr.P.C. has stated that when they are cutting grass on the meadow on that day, suddenly Asit Parui along with others arrived with large stick and attacked him and his brothers and they sustained injury. Similar statement was made by Sanjib and Vivekananda Parui. 9. However, the accused/respondent Amal Parui in his cross-examination under Section 313 of Cr.P.C. has stated that when they are cutting grass on the meadow on that day, suddenly Asit Parui along with others arrived with large stick and attacked him and his brothers and they sustained injury. Similar statement was made by Sanjib and Vivekananda Parui. 9. SO, from the evidence of prosecution witnesses as well as examination of the accused persons under Section 313 of Cr.P.C. it appears that the accused/respondents were attacked first by the complainant party and thereafter the accused/respondents attacked them in exercise of their private defence. Moreover, a partition suit was pending between the parties. There is no sufficient evidence on record to hold that the disputed land belonged to the complainant and his brothers. Learned Trial Court was justified in holding that the accused/ respondents have right to resist the P.W.1 and his brothers in exercise of their right of self-defence. That the complainant and his brothers attacked the accused persons who sustained injury is totally suppressed by the P.W.1 and P.W.2. They only pleaded ignorance. The injuries sustained by accused Vivekananda has not at all explained by the prosecution/appellant in any way. The witnesses Anwar AN Mallick, Syed Ali Mallick and Manoranjan Khata have not been examined on the ground that they were gained over by the defence. But it is the duty of the prosecution to tender them so as to give the defence an opportunity for cross-examination. Withholding of the witnesses by the prosecution is also a glaring defect. From the evidence of the prosecution witnesses it also appears that disputed land was enjoyed by the accused persons and the de facto complainant has no right over the same. Therefore, de facto complainant have no right to take possession of the property. They cannot tell the plot number, khatian number and the area of the land. Moreover, the prosecution case that P.W.1 and his brothers were sowing paddy on the disputed land can hardly to be believed. 10. CONSIDERING all facts and circumstances we hold that the prosecution/appellant failed to prove this case against the accused persons under Sections 148/149 I.P.C. beyond all reasonable doubts. In a decision reported in 2008 (10) SCC 450 (GHUREY LAV v. STATE OF UTTAR PRADESH) Hon'ble Apex Court elucidated the principle of Sections 378 and 388 of the Code of Criminal Procedure. CONSIDERING all facts and circumstances we hold that the prosecution/appellant failed to prove this case against the accused persons under Sections 148/149 I.P.C. beyond all reasonable doubts. In a decision reported in 2008 (10) SCC 450 (GHUREY LAV v. STATE OF UTTAR PRADESH) Hon'ble Apex Court elucidated the principle of Sections 378 and 388 of the Code of Criminal Procedure. According to the said observation the Appellate Court may review the appeal against the acquittal under Sections 378 and 386 of the Cr. P.C. The power of review of the evidence of the Appellate Court is wide and the Appellate Court is empowered to reappreciate the entire evidence of record. It is observed further that the Appellate Court must always give proper weight to the finding of the trial Court. Relying upon the observation of the Apex Court and having regard to the appreciation of the learned Trial Court we are of the considered view that the prosecution witnesses have not been able to prove its case against the accused/respondents. The observation of the learned Trial Court has sufficient merit. Therefore, we are of the view that the judgment and order of acquittal passed by the learned Trial Court does not suffer from any illegality or any perversity and misconception of the facts and law. We are unable to interfere with the finding of learned trial Court. Therefore, the judgment and order of acquittal passed by the learned Trial Court call for no interference and are to be affirmed. 11. THIS appeal, therefore, dismissed. Bail bond stands discharged. Department is directed to send down the Lower Court Records along with the copy of judgment to the learned Court below forthwith.