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2016 DIGILAW 370 (TRI)

Sanghamitra Dey v. Chaya Rani Dhar

2016-11-12

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. P.K. Biswas, learned senior counsel assisted by Mr. A. Sengupta, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned Public Prosecutor appearing for respondent No.4 and Mr. S.K. Deb, learned senior counsel appearing for respondent No. 1,2 & 3. 2. This is a petition under Section 397 read with Section 401 of the Cr.P.C from the judgment and order of acquittal dated 18.02.2014 delivered in Criminal Appeal No. 14(4) of 2013 affirming the judgment and order of acquittal delivered in case No. G.R. 55 of 2011 by the Judicial Magistrate, 1st class, Kailasahar, North Tripura, as it then was. 3. Mr. P.K. Biswas, learned senior counsel appearing for the petitioner has submitted that the petitioner filed the complaint alleging that when the complainant along with her sister Sukla Dey went to the house of Malay Dhar, husband of Sampa Dey and the sister of the complainant, Malay Dhar was not found in his home. At that time Chaya Rani Dhar, the respondent No. 1, mother of Malay Dhar scolded them and thereafter Chaya Rani Dhar along with another Manoj Dhar i.e. the respondent No. 2 and Spina Dhar, wife of Manoj Dhar, the respondent No. 3 had assaulted and threatened them with dire consequences. Consequently, the said complaint was filed in Manu Police Station and based thereon Manu PS case no. 06 of 2011 under Sections 323, 334, 34 of the IPC was registered. After reading out the statement of accusation and on the denial by the accused the trial commenced and was complete. The trial Court acquitted the accused by the said judgment and order. 4. Being aggrieved, the complainant filed an appeal to the court of the Sessions Judge, North Tripura, Kailasahar, as it then was, being Criminal Appeal No. 14(4) of 2013. After due scrutiny, the appellate Court affirmed the judgment of the trial Court by observing interalia that:- “PW-5 and PW-6 are two independent witnesses of the locality of the PO. PW-5 stated that she was all along present in her house on the relevant date but neither she saw anything nor she heard anything about the case. After due scrutiny, the appellate Court affirmed the judgment of the trial Court by observing interalia that:- “PW-5 and PW-6 are two independent witnesses of the locality of the PO. PW-5 stated that she was all along present in her house on the relevant date but neither she saw anything nor she heard anything about the case. PW-6, in fact, stated that PW-1 and PW-2 entered into the house of the accused persons in an angry mood and enquired about Malay, the husband of their elder sister, Sampa and at the time of their departure PW-1 and PW-2 both pushed accused Manoj Dhar. PW-5 and PW-6 have not been declared hostile by the prosecution. The prosecution also did not examine the IO of this case. Meaning thereby, a serious doubt is cast upon the prosecution case in view of the evidence of PW-5 and PW-6. Further, Malay Dhar, the husband of the elder sister of PW-1 and PW-2, could have been a very important witness in this case to prove the episode that PW-1 and PW-2 on his request came to his house at Manu and something happened in his house at Manu. But, he has not been examined as witness in this case at all. It is a fact that it is the prosecution to select the list of witnesses but that selection has to be a fair selection, otherwise presumption is available against the prosecution case under illustration (g) of section 114 of the Evidence Act”. 5. Mr. Biswas, learned senior counsel has fairly submitted that PW-5 and PW-6 are independent witnesses and after their deviation from the previous statement as recorded under Section 161 Cr.P.C, they were not declared hostile by the prosecution. As a result, there are two sets of version. One version has been believed by both the courts below. This Court under the revisional jurisdiction cannot believe another version to reverse the judgment of acquittal, as passed by the courts below. 6. Accordingly this petition stands dismissed. Send down the LCRs.