Calcutta High Court (Appellete Side)
Minurani Maity vs Nibedita Das & Ors on 30 August, 2024
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH
C.R.A. (SB) 134 of 2022
With
CRAN 1 of 2023
Minurani Maity.
versus
Nibedita Das & Ors.
For the Appellant : Mr. Sabir Ahmed,
Mr. Gorachand Samanta,
Ms. Tasnim Ahmed,
Mr. Dhiman Banerjee.
For the Respondent Nos. 1 to 3 : Mr. Sandipan Ganguly,
Mr. Karan Dhudhwewala.
For the Respondent No.4 : Mr. Uttam Kumar Bhattacharya,
Mr. Kaustuv Mishra,
Reserved On : 14.08.2024
Judgement On : 30.08.2024.
Tirthankar Ghosh, J. :
The present appeal has been preferred against the judgment and order of acquittal dated 19.05.2022 passed by the learned Judicial Magistrate, 2nd Court, Tamluk in C.R. Case No. 331 of 2006 corresponding to T.R. Case No. 573/2006 wherein the learned Trial Court was pleased to acquit the accused persons from the charges under Section 447/379/427/34 of the Indian Penal Code.
2
The genesis of the case relates to a complaint case being CR Case No. 331 of 2006 which was initiated at the instance of the appellant/complainant namely, Minurani Maity against Nibedita Das, Anupam Kumar Bose, Manas Paul, Pranab Kumar Paul and other unknown four/five masons and labourers and 10/12 localites. The allegations made in the petition of complaint were to the effect that the accused persons are neighbours who are mischievous and are engaged in hooliganism. The property of the complainant is situated within the jurisdiction of Tamluk Police Station at Daharpur Mouja and D.S. & R.S. Khatiyan No. 65, L.R. No. 245/5, Dag No. 397. It has been contended that she purchased 6 decimals of land out of the 14 decimals of land in the aforesaid Dag number and within the said land there was a single storied building, trees etc. barbed wire fence and boundary wall with concrete pillars since the time of her predecessor. The accused no.1 and his men created hindrance for establishing right in the said property as such the complainant was forced to initiate a Civil case against the accused before the Civil Judge's Court, Tamluk being case No. 59/2006 and by an order dated 29.04.2006 the Civil Court passed temporary injunction restraining the accused no.1 from changing the nature and character of the property and for maintaining status quo in respect of the aforestated land. Being apprehensive the accused persons might damage the house and the boundary wall along with the barbed wire fences the complainant submitted written diary on 27.04.2006 which was registered as G.D.E. No. 1218 with Tamluk Police Station. The accused no.1 with the aid and advice of accused no.4 on 28.04.2006 with the assistance of 20/25 3 persons gathered illegally, tried to break and destroy the boundary wall and fence of the land of the complainant forcefully and on being resisted by the complainant and her men, they scaled the wall and entered the land and illegally trespassed in the premises of the complainant. Between 29.04.2005 to 09.05.2006 the accused persons along with four to five masons and labourers along with assistance of some localites unearthed the barbed wire fence on the southern side and encroached about 8 to 9 feet inside the southern boundary on the northern side illegally and by digging the base, created a new pucca wall installing iron plats on it. In the temple which is under the possession of the complainant there were four betel nut trees and three mango bearing trees along with flower plants which was encircled by the newly constructed wall and the accused persons forcefully took away 500 old bricks of the complainant, used the same for destroying the flower plants. In the afternoon on 19.05.2006, 50 kg of mangoes were taken away and from the jack fruit tree two jack fruit had also been stolen away. All the four accused persons are associated with the B.L. & L.R.O. Office, as such when he was on leave the incident occurred at the spot on their directions. The accused persons refused to hear the complainant and rather threatened her. It is alleged that the value of the brick which was taken away was Rs.500/-, the fence which has been destroyed resulted in loss of the complainant to the tune of Rs.5,000/-, the temple being surrounded by new wall prevented the complainant from performing her regular worship. The incidents were informed at Tamluk Police Station, however, the accused persons influenced the police authorities who 4 did not take any steps. As the police did not properly respond the complainant was frustrated and mentally shattered and as such approached the Court for proper legal recourse. It was further contended that there were enough evidences in the custody of the complainant and in fact, the local commissioner appointed by the Civil Court has found the contention of the complainant to be correct.
Pursuant to the complaint being filed before the learned Chief Judicial Magistrate, Tamluk cognizance was taken of the offence and the case was transferred to the learned Judicial Magistrate, 2nd Court, Tamluk. Subsequently after initial examination of the available witnesses process was issued against the accused persons and after appearance of the accused persons date were fixed for evidence before charge.
The complainant namely, PW1, Minurani Maity in her deposition at the stage of evidence before charge narrated that the incident took place towards the north side of her premises in Dag no. 397 in Daharpur mouja where she owns 6 decimals out of 14 decimals of land and within the said area she is having her house, trees as well as temple. The southern side of the plot was demarcated from rest of the plot/land by way of wire/fencing with cement pillars. Rest of the part was demarcated by pucca boundary walls. She complained before the Court that the incidents took place on 28.04.2006 and 29.04.2006 at 7.00 am, on 09.05.2006 at 6.00 pm and on 19.05.2006 between 5.00 pm to 6.00 pm. On 28.04.2006 at 10.00 am the accused persons tried to 5 destroy the wire fencing and when objected they at about 4.00 pm toppled the eastern boundary wall and constructed cement pillars from south to north about 8-9 ft inside the wire fencing and threatened to build a boundary wall on the next date. On 29.04.2006 at 10.00 am the accused came with labourers and goons and broke the wire fencing and thereafter they started constructing boundary wall where pillars were installed by them. The accused persons uprooted pillars of the complainant and constructed boundary wall till 09.05.2006. The boundary wall had height of 4ft. and the accused persons took away 500 bricks of the complainant and constructed a concrete flooring, as a result of which her temple, mango trees, coconut tree, betel nut trees and flower plant all were encircled inside the newly constructed wall. Whole of the construction work was supervised by Pranab Kumar Paul. On 19.05.2006 by employing labourers the accused persons plucked 50 kg mango from the mango trees, two jackfruit and as such she sustained financial loss of about Rs.550/- for the same and also suffered financial loss towards the value of 500 bricks for Rs.1500/- and for uprooting the wire fencing for a sum of Rs.5,000/-. She informed Tamluk Police Station but no steps were taken, later on she informed the Superintendent of Police, Purba Medinipur, B.L. & L.R.O., Officer-in-charge Tamluk Police Station by post. The accused no.1 namely, Nibedita also filed a case against the complainant under Section 144 of Cr.P.C. and the B.L. & L.R.O. Pranab Pal submitted their reports in the case. The complainant/witness also filed a Civil Case being T.S. 59/06 against the accused Nibedita Das over the case plot and injunction order was passed by 6 the learned Civil Court. To that effect letters were also sent to the Superintendent of Police, Office of B.L. & L.R.O as also Officer-in-charge Tamluk Police Station. Learned advocates Soma Jana and one Sujan Manna were appointed as Advocate Commissioners in T.S. 59/06 who confirmed that the case land was purchased from Ashok Kr. Maity by her and she had certified copy of the deed of gift of 1977. She also filed the agreement for sale deed as well as the record of rights of case plot. She claimed that she was in possession of the land since 1980 as tenant and from 1990 she is in possession of the said land as owner. She filed the petition of complaint which was drafted as per her instruction and as such the said complaint along with her signature has been marked as Ext.1. The agreement for sale was drafted by Ashoke Kr. Maity who signed the said documents which was marked as Ext.2. The same was also executed in presence of Swapan Kr. Das, Rashid Maity and others. The order sheet dated 29.05.2006 and 14.11.2006 were marked as Ext.3 and Ext.4 respectively.
PW2, Sanjoy Kumar Maity, nephew of PW1 reiterated the facts in the same manner as advanced in examination-in-chief by the PW1.
PW3, Soma Jana, advocate commissioner was examined-in-chief but she was never cross-examined as such her evidence cannot be taken into consideration.
PW4 Arup Sarkar is the Inspector-in-charge of Tamluk Police Station who deposed that as per the order of the Court he produced the extract copy of 7 GD Entry no. 1248 dated 27.04.2006. Said extract copy of the GD Entry was marked as Ext.5.
After the evidence before charge was completed the learned Magistrate was pleased to frame charges against the four accused persons under Section 447/34, 427/34, 379/34 of Indian Penal Code. The contents of the charges were read over to the accused persons to which they pleaded not guilty and claimed to be tried.
Pursuant to the charges being framed cross-examination was conducted in respect of the same witnesses wherein in cross-examination PW1, Minurani Maity, the complainant admitted in her cross-examination that although she purchased 6 decimals out of 14 decimals but in the deed bearing no. 1098 of 2003 of ADSR Tamluk, there was no boundary relating to her purchase land. She had on her own purchased the plot of land which was extreme north of the land in the sketch map filed in the partition suit and also admitted that a narrow pathway existed at the eastern side of her portion where local people used the same. Further, in cross-examination she deposed that she could not remember whether Sandhya Rani Samanta filed a written statement in respect of the plaint of the partition suit. She also could not recollect which portion of the shares in the property were occupied by the other co-sharers. According to her although there were many persons who watched the incident but they remained as mere spectators. She denied of not having informed any of the administrative or police authorities.
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PW2 in his cross-examination after charge admitted that there was existing rivalry between the complainant Minurani Miaty and the accused persons and there was a Civil Suit pending between them relating to the landed property. He also deposed that no written complaint was lodged before any authority regarding the incident of 28.04.2006 and/or on 29.04.2006, 09.05.2006. He also admitted that in the judgment dated 30.01.2021 in T.S. No. 151 of 2013 by the Civil Judge (Senior Division), 2nd Court, Tamluk it has been declared that Minurani Maity is the owner having right, title and interest of 6 decimals of land in plot no. 397.
PW3 as stated earlier was never produced during cross-examination as such her evidence could not be taken into account.
PW4 in his cross-examination stated that at the relevant point of time on 27.04.2006 he was not posted at Tamluk Police Station and he has no personal knowledge regarding the case.
Mr. Ahmed learned advocate appearing for the appellant/complainant drew the attention of the Court to the evidence adduced by the prosecution and submitted that in spite of the overwhelming materials appearing in the prosecution evidence the learned trial Court acquitted the accused/respondent. It was emphasized on behalf of the appellant that the Civil Court in Title Suit No. 59/2006 was pleased to pass an order of status quo and also restrained the respondent no.1 not to change the nature and character of the said plot. In spite of such order remaining in force and the 9 complainant seeking help from the administration as well as the police authorities, they failed to protect her property and the respondent nos.1 to 3 with the aid and assistance of the local anti-socials and hooligans trespassed in the property of the appellant ransacked the barbed wire fence along with pillars and constructed there wall by encroaching upon the demarcated property of the appellant. Attention of the Court was drawn to the inspection reports which were marked as Ext.8 and Ext.9, both being prepared by an Advocate Commissioner appointed by the Court. The contents of the two inspection reports were placed before the Court and it was submitted that the description of the property as deposed by the appellant in Court in her evidence along with documentary evidence is corroborated by these two reports relied upon by the prosecution. Thus the offences complained and the charges which were framed relating to trespassing in the property of the appellant, mischief and theft is proved beyond all reasonable doubt and as such the respondent should have been convicted under Section 447/34, 427/34, and 379/34 of the Indian Penal Code. The learned trial Court according to the learned advocate having committed gross illegality in appreciating the evidence which calls for interference by this Court and the judgment and order of acquittal is required to be set aside.
Mr. Sandipan Ganguly, learned senior advocate appearing on behalf of the respondent nos. 1 to 3 after rebutting the factual contentions addressed on behalf of the appellant submitted that in an order of acquittal after a full- fledged trial the basic principles of criminal jurisprudence is to be followed. 10 According to him it is a settled proposition in criminal law that an accused is presumed to be innocent and such innocence is fortified by an order of acquittal being granted by the trial Court. To substantiate such contention respondent relied upon Chandrappa -Vs. - State of Karnataka, (2007) 4 SCC 415 and relied upon paragraphs 15 and 16 of the said judgment which held as follows:
"15. Bare reading of Section 378 of the present Code (appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.
16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court."
Reference were also made to Chikkarangaiah & Ors. -Vs. - State of Karnataka, (2009) 17 SCC 497 for suppressing upon the issue that there must 11 be very substantial and compelling reasons for discarding an order of acquittal. Attention was drawn to paragraphs 21 and 23 which read as follows:
"21. In State of U.P. v. Nahar Singh [(1998) 3 SCC 561 : 1998 SCC (Cri) 850] this Court observed as follows: (SCC pp. 568-70, paras 21-23) "21. The principle with regard to interference in the appeal against acquittal under Section 378CrPC are well established. While dealing with the power of the High Court to reverse an order of acquittal on a matter of fact, Lord Russell of Killowen, speaking for the Privy Council, in Sheo Swarup v. King Emperor [(1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] observed thus: (IA p. 404) 'There is, in their opinion, no foundation for the view, apparently supported by the judgments of some courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has "obstinately blundered", or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice", or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.
Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the 12 witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.' These principles have been approved and followed in numerous decisions of the Supreme Court. To mention a few, see Prandas v. State [1950 SCC 62 : AIR 1954 SC 36] , Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715] .
22. In State of U.P. v. Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928] M.N. Venkatachaliah, J. (as he then was) summarised the principle as follows: (SCC p. 302) 'The plenitude of the power of the appellate court to review and reappreciate the evidence cannot be limited under the supposed rule that unless there are "substantial" or "compelling" reasons or "very substantial reasons" or "strong reasons", the findings in a judgment of acquittal should not be interfered with. There is thus no immunity to an erroneous order from a strict appellate scrutiny. But the appellate court wherever it finds justification to reverse an acquittal must record reasons why it finds the lower court wrong.' In Ajit Savant Majagvai v. State of Karnataka [(1997) 7 SCC 110 :
1997 SCC (Cri) 992] the abovenoted principles have been approved and restated.
23. If on reassessment of the evidence, the appellate court comes to the conclusion that the guilt of the accused is established, the fact 13 that the appeal is against the acquittal will be immaterial. However, if two views are possible, the court, having regard to the basic principle that presumption of innocence of the accused gets strengthened by the fact of his acquittal by court, should take the view that supports the acquittal of the accused."
23. One of us (Dalveer Bhandari, J.) in Ghurey Lal v. State of U.P. [(2008) 10 SCC 450 : (2009) 1 SCC (Cri) 60] at SCC p. 477 has after an elaborate discussion of the case law on the subject succinctly observed as follows: (SCC paras 69-70) "69. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
14
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has 'very substantial and compelling reasons' for doing so.
A number of instances arise in which the appellate court would have 'very substantial and compelling reasons' to discard the trial court's decision. 'Very substantial and compelling reasons' exist when:
(i) the trial court's conclusion with regard to the facts is palpably wrong;
(ii) the trial court's decision was based on an erroneous view of law;
(iii) the trial court's judgment is likely to result in 'grave miscarriage of justice';
(iv) the entire approach of the trial court in dealing with the evidence was patently illegal;
(v) the trial court's judgment was manifestly unjust and unreasonable;
(vi) the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii) this list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused.""
The respondents on this issue also referred to C.K. Dasegowda & Ors. -
Vs. - State of Karnataka, (2014) 13 SCC 119 and emphasized that if reasonable conclusions are arrived at, on the basis of available evidence, under 15 such circumstances an appellate Court should not disturb the acquittal awarded by the trial Court. Learned senior advocate relied upon paragraph 14, which is quoted below:
"14. In Chandrappa v. State of Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , it has been held by this Court as under: (SCC pp. 431-32, paras 39-42) "39. In Harijana Thirupala v. Public Prosecutor [(2002) 6 SCC 470 : 2002 SCC (Cri) 1370] this Court said: (SCC p. 476, para 12) '12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.'
40. In Ramanand Yadav v. Prabhu Nath Jha [(2003) 12 SCC 606 : 2004 SCC (Cri) Supp 526] this Court observed: (SCC pp. 614-15, para 21) '21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by 16 acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.'
41. Recently, in Kallu v. State of M.P. [(2006) 10 SCC 313 : (2006) 3 SCC (Cri) 546] this Court stated: (SCC pp. 317-18, para 8) '8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court.'
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:17
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(emphasis in original)"
Learned senior advocate then drew the attention of the Court to the Inspection Report being Ext.8 and Ext.9 and the manner in which the same 18 was admitted in evidence. It was argued that the contents of the said report cannot be relied upon by this Court as they were admitted by the trial Court because the same were certified copies. To that effect respondents relied upon paragraphs 40 to 44 of the Alamelu & Anr. -Vs. - State represented by Inspector of Police, (2011) 2 SCC 385, which are quoted below:
"40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl's date of birth was 15-6-1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident i.e. 31-7-1993. The transfer certificate has been issued by a government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.
41. We may notice here that PW 1 was examined in the court on 9-8- 1999. In his evidence, he made no reference to the transfer certificate (Ext. P-16). He did not mention the girl's age or date of birth. PW 2 was also examined on 9-8-1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 CrPC seeking permission to produce the transfer certificate and to recall PW 2. This petition was allowed. She was actually recalled and her examination was continued on 26-4-2000. The transfer certificate was marked as Ext. P-16 at that stage i.e. 26-4-2000. The judgment was delivered on 19 28-4-2000. In her cross-examination, she had merely stated that she had signed on the transfer certificate, Ext. P-16 issued by the school and accordingly her date of birth was noticed as 15-6-1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate.
42. Considering the manner in which the facts recorded in a document may be proved, this Court in Birad Mal Singhvi v. Anand Purohit [1988 Supp SCC 604] observed as follows: (SCC pp. 618-19, para 14) "14. ... The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. ... Merely because the documents Exts. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted."20
(emphasis supplied)"
On the same issue reliance was placed upon U. Sree -Vs. - U. Srinivas, (2013) 2 SCC 114 and attention was drawn to paragraph 17 and 18 which held as follows:
"17. Recently, in H. Siddiqui v. A. Ramalingam [(2011) 4 SCC 240 : (2011) 2 SCC (Civ) 209] , while dealing with Section 65 of the Evidence Act, this Court opined that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations.
"12. ... In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non- production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original." (H. Siddiqui case [(2011) 4 SCC 240 : (2011) 2 SCC (Civ) 209] , SCC pp. 244-45, para 12) It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
18. In the case at hand, the learned Family Judge has really not discussed anything relating to foundational evidence. The High Court has only mentioned that when the letter was summoned and there was a denial, the secondary evidence is admissible. In our considered 21 opinion, such a view is neither legally sound nor in consonance with the pronouncements of this Court and, accordingly, we have no hesitation in dislodging the finding on that score."
It was contended lastly on behalf of the respondent nos. 1 to 3 that even if whole of the evidence both oral and documentary are assessed the same fails to make out any offence under Sections 447/427/379 of IPC and as such the judgment and order of acquittal passed by the learned trial Court should be affirmed.
Mr. Uttam Kumar Bhattacharya, learned advocate appearing for the respondent no.4 submitted that the respondent no.4 was the B.L. & L.R.O. and he has been unnecessarily dragged in a private dispute without any iota of material appearing against him in respect of the charges framed. Further according to the respondent no.4 there is no contention far less any allegation that while purporting to act in discharge of official duty or in dereliction of such duty the respondent no.4 was called upon to face trial. Learned advocate submitted that there is no scope for interference by this Court, so far as respondent no.4 is concerned and the finding in favour of him should not be interfered.
I have considered the evidence brought on record by the appellant as also the reasons so assigned by the learned trial Court while acquitting the accused/respondent. In respect of respondent no.4 who was the Block Land & Land Reforms Officer i.e. a public servant it was held that not only the 22 cognizance of the offence was wrong but also the framing of the charges were equally incorrect as such he was acquitted from the case by the learned trial Court. The same being a settled proposition of law and there being no material against him which would attract the offences for which charge has been framed, I am of the view such finding in respect of respondent no.4 do not call for any interference.
So far as the respondent nos. 1 to 3 are concerned learned trial Court observed the following:
"FF. Admittedly, the entire land in plot no. 397 was jointly owned by several co-sharers including the complainant and the accused no. 1 Nibedita Das. The Judgement and Decree in Title Suit No. 151 of 2013 by the Civil Judge (Senior Division), 2nd Court, Tamluk, Purba Medinipur dated 30.01.2021 (Exhibit-6 and Exhibit-8 respectively) reveal that there was no partition and demarcation of individual shares of the said co-sharers till the date of judgement in the said suit i.e. till 30.01.2021 and the period of the alleged incident of this case was from 28.04.2006 to 09.05.2006. Obviously, the claim of exclusive possession of the plaintiff over any part and parcel of the suit land/case land is grossly absurd and unknown to law. Although the Commission report by Ld. Advocate Commissioner Soma Jana (Exhibit
8) shows the existence of one barbed wire fencing running from east to west adjacent to the Hari temple but in which capacity the said barbed wire fencing was fixed has not been clarified by the complainant throughout the entire litigation. The complainant equally failed to show that she had purchased the property along with the said barbed wire fencing.
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23HH. Hence, this Court is inclined to hold that the aforesaid barbed wire fencing was subsequently set up by the complainant without the concurrence of the other co-sharers of the case land although the property was not partitioned by metes and bounds and for the aforesaid reasons the complainant is debarred from claiming exclusive possession of the land in question where the alleged offence of criminal trespass claimed to have taken place.
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OO. In the present case the complainant grossly failed to establish that she had any exclusive possession over the property and that the value or utility of her exclusive property was diminished by any act of the accused persons.
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UU. For the aforesaid reasons, this Court finds that the complainant hopelessly failed to substantiate the allegation of theft of either bricks or the fruits as against the accused persons no. 1 to 3, who are the co- sharers of the land in question. The complainant never alleged theft of the aforesaid articles against the accused no. 4 who was the then Block Land and Land reforms Officer.""
After detailed scrutiny of the evidence the learned trial court thereafter proceeded to acquit the respondent nos. 1 to 3 and in the appeal before this Court also the appellant failed to substantiate any manifest error appearing on the face of the records or any perversity in the reasoning of the learned trial Court thereby warranting interference by this Court. Emphasis was made on the two reports being Ext.8 and Ext.9 (Reports of the Advocate Commissioner) and the order dated 07.04.2022 reflect the mode and manner by which the 24 said reports were admitted in evidence as exhibits. Relevant part of the trial Court's order is quoted as follows:
"..................It transpires from the Order Sheets that the same issue was raised by the complainant earlier and the said applications were disposed of by this Court vide Order dated 29.10.2008, 28.03.2012 and 28.03.2013 and till 28.03.2013 the Commission Reports in the said cases were not marked exhibit for which they could not be admitted as evidence in this case.
Ld. Advocate for the accused persons fairly submitted that the Title Suit between the parties had already been disposed of and the Commission Reports were marked as exhibits in the said cases. Considering everything this Court finds that the Commission Reports and the Judgement in Title Suit No. 59 of 2006 and in J. Misc. Case No. 56 of 2006 may be exhibited in this case by producing certified copies thereof if they are already marked exhibits in the said cases. This Court also finds that the present dispute under consideration is not a civil dispute and examination of the Ld. Advocate Commissioners are not at all necessary for effective adjudication of this case. Hence, it is ORDERED that the application filed by the complainant dated 17.04.2021 is hereby allowed on part, on contest but without any order as to cost. The complainant is at liberty to produce the certified copies of the Judgement/Decree and Commission Reports in connection with Title Suit No. 59 of 2006 and J. Misc. Case No. 56 of 2006 before the Ld. Civil Judge (Senior Division), Tamluk in this Court by 13.04.2022 positively and the accused persons shall be examined under Section 313 Cr.PC positively on 20.04.2022........"25
Taking into account the manner in which Ext.8 and Ext.9 i.e., two Inspection Reports were marked as exhibits by admitting in evidence, I am of the opinion that the contents of the same cannot be used to the disadvantage of the respondents as the author of the said document/report was not called in Court for cross-examination and the admissibility was limited to the extent that since the documents were certified copies they can be marked as exhibits. The probative value of such document or report cannot be read in evidence as the same was prepared on inspection (as claimed) and the person who inspected the place/property was not tendered in evidence.
Having so observed, this Court both on question of facts as also on law do not find any reasons to interfere with the order of acquittal passed by the learned Judicial Magistrate, 2nd Court, Tamluk in C.R. case no. 331 of 2006.
As such CRA (SB) 134 of 2022 is dismissed.
Pending connected applications, if any, are also disposed of. Department is directed to send back the Lower Court Records immediately. A copy of the judgment be forwarded to the learned Trial court immediately for compliance regarding the directions given above.
All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court.
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Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.
(Tirthankar Ghosh, J.)