Calcutta High Court (Appellete Side)
Sandhya Rani Maity vs Unknown on 2 February, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
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21.01.2011
(6) mb C.R.R. 3600 of 2009
In re : An application under Section 401 of the Code of Criminal Procedure filed
on 16th September, 2009
And
In the matter of : Sandhya Rani Maity
Mr. Tapan Kumar Chakraborty.... for the petitioner
Mr. Swapan Kumar Mallick..........for the State
This revisional application is directed against the judgment dated
10.8.2009passed by the learned Additional Sessions Judge, Fast Track, 2nd Court, Contai, Purba Midnapur, in S. T. Case No.2/October, 1998, whereby and whereunder the learned Court acquitted the accused persons (O.P. nos. 2 to 20 herein).
Sandhya Rani Maity, the petitioner herein, has taken out this revisional application challenging the legality, validity and propriety of the order of acquittal passed by the learned Trial Court on the following grounds:
(a) that the learned Trial Court failed to appreciate the evidence on record on its proper perspective and true meaning;
(b) that the learned Court failed to appreciate the fact that Prafulla Maity, her husband, who was inflicted injuries by the O.P. nos. 2 to 20, was admitted in 2 hospital for a considerable period of time and the medical report of the hospital bed-head ticket were filed in support of the prosecution case;
(c) that the view of the learned Court in respect of seizure of certain articles from the house of O.P., Dilip Kumar Maity, is not in consonance with the evidence adduced by the prosecution. In fact, there was wrong appreciation of evidence on the part of the Court as far as seizure of articles, which are subject matters of dacoity, from the possession of O.P., Dilip Kumar Maity is concerned;
(d) that the learned Court failed to observe that the Investigating Officer did not conduct the investigation properly;
(e) that the learned Court put much stress on immaterial issue and jumped into a conclusion wrongly that the O.Ps. are entitled to benefit of doubt.
The learned advocate appearing on behalf of the petitioner strenuously submits that the learned Trial Court ought to have recorded conviction instead of acquittal on the evidence recorded in course of trial. He submits further that the defacto-complainant and her family members have practically been ousted from their rented house forcefully and are in a very precarious condition. Therefore, the Court should direct retrial.
Mr. Mallick, learned advocate appearing on behalf of the O.P. no.1/State of West Bengal, submits that the Court is to act on materials placed before it. A Trial Court cannot possibly make out a third case in order to record conviction of any accused person in a trial. The evidence adduced on behalf of the 3 prosecution, in fact, is not at all satisfactory and sufficient enough to record conviction against the O.P. Nos. 2 to 20. Therefore, there is no illegality and incorrectness in the order impugned necessitating interference of this Court in this revision.
The case was registered actually under Sections 149, 354, 307, 395, 120B of the Indian Penal against the O.P. nos. 2 to 21 for causing hurt to the petitioner, Sandhya Rani Maity and her husband, Prafulla Maity as well as two daughters, Madhabi and Kakali, for outraging modesty of the petitioner and her two daughters and committing dacoity by taking away valuables like gold ornaments, wooden furniture and utensils. The case was investigated into and ultimately charge was framed under Section395 of the Indian Penal Code against 20 persons and under Sections 352, 397 and 120B of the Indian Penal Code against 21 persons. They pleaded not guilty and, as a result, the trial commenced.
Upon consideration of the evidence, the learned Trial Court, found all the accused persons not guilty to the charge as the prosecution failed to bring home the charges levelled against them.
Being dissatisfied with that order of acquittal, this revisional application is taken out by the defacto-complainant, Sandhya Rani Maity, on the grounds stated earlier.
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I have carefully gone through the judgment under challenge. I have also carefully gone through the evidence adduced on behalf of the prosecution. As far as alleged evidence under Section 354 of the Indian Penal Code is concerned, I find no evidence has been adduced by the prosecution to inspire confidence in the mind of Court to record conviction against any of the O.Ps.
The learned advocate for the petitioner submits that there is no evidence, whatsoever, in support of the prosecution case under Section 345 of the Indian Penal Code. The learned Court ought to have considered the injury report as well as the hospital bed-head ticket, i.e., Exbts. 3 and 4 and record conviction of the O.Ps. under Section 307 of the Indian Penal Code. The Exbt.-3 is the injury report while Exbt.-4 is the hospital bed-head ticket. The hospital bed-head ticket disclosed that the date and time of admission of Prafulla Kumar Maity, the husband of the petitioner, was 16.9. 1992. The time of admission was 11.15 hours. There is nothing in the bed-head ticket disclosing history of the injury. Injury report, exbt.-3, shows that the time of admission of Prafulla on 16.9.1992 at 11.15 hours. It is true that there is over-writing but that point was not raised at the time when Dr. T.K. Gayen, was examined and cross-examined. The P.W. 7, Medical Officer, who prepared Exbt. 3 after examination of Prafulla, stated that a lacerated injury ¼" X ¼" was detected coupled with complain of pain. The patient reported in that he was assaulted with brickbats and blows. 5
The nature of injury detected on medical examination of Prafulla and as disclosed by the witnesses including Prafulla, in fact, shows clearly that the persons attacked Prafulla had no intention to cause his death. According to the prosecution case, there was a mob of 27 persons, who being armed with deadly weapons attacked the house of Sandhya Rani and committed assault, dacoity and outraging of modesty. Had the accused persons deadly weapons in their hands and any intention to cause death of Prafulla, they could have done so very easily. In spite of that, Prafulla was only hit by brickbats and blows. This fact alone disproves the prosecution case under Section 307 of the Indian Penal Code.
The learned advocate for the petitioner submits that the learned Trial Court could record conviction under Section 325 and 324 of the Indian Penal Code at best because the fact that Prafulla received injury and was admitted in Hospital has been established. It is true that the Exbts. 3 and 4 together with the oral evidence indicate that Prafulla was assaulted and nature of injury he received was simple. But, it should be kept in mind that there were 27 persons who attacked Prafulla. It was not possible for Prafulla to say who actually assaulted him. There was chaos at that time and, naturally, neither of the witnesses of the prosecution could say who assaulted whom and in what manner. The witnesses failed to name any of the O.Ps. as an assailant. Beside that, it is not possible to accept that the petitioner and her husband and daughters received simple injuries only given by 23 persons. When 23 persons attack someone, the person attacked must receive severe injuries. It might be 6 that there was an incident, but the true picture has not been canvassed. Therefore, the learned Trial Court did not find that the prosecution case is proved beyond reasonable doubt.
As far as offence under Section 395 of the Indian Penal Code is concerned, I find that a long list of articles has been given by the petitioners with the First Information Report. None of that article could be seized by the Investigating Officer from any of the O.Ps. The seizure list, which has been marked Exbt. 5 by the learned Trial Court, relates to articles which have not been mentioned in the list of articles supplied by the petitioner with the First Information Report to the police. The articles seized under the seizure list (Exbt. 5) are available in everybody's house. Therefore, the learned Trial Court has come to a right conclusion in that case. There is, no doubt, laches on the part of the Investigating Officer, who conducted investigation and filed charge sheet. There was no prompt action on behalf of the local police station also. The learned Trial Court unnecessarily discussed on immaterial points like relation of landlord and tenant between the petitioner and Srihari Pradhan, O.P. no. 2. But on overall assessment of the evidence on record, it can well be said that the view taken ultimately by the learned Trial Court is not required to be interfered with. The order of acquittal appears to be justified on evidence. There is no scope of retrial in this case.
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Accordingly, the revisional application fails and is disposed of. Order of the learned Trial Court is affirmed.
The Department is directed to send the L.C.R., if any, along with a copy of this order to the Court concerned immediately.
Let Photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of all necessary formalities.
(Kanchan Chakraborty, J)