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Yogomaya Hazra v/s Syed Md. Jasin @ Azfor

    CRA. No. 399 of 1991

    Decided On, 17 January 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBI PROSAD DEY

    For the Appellant: Ramadeb Sengupta, (Amicus Curiae), Advocate. For the Respondents: Tratik Bose, Advocate.



Judgment Text

1. This appeal is directed against the order of acquittal passed by the learned Additional Sessions Judge 1st Court Hooghly on 8th March 1990 in Criminal Appeal No. 62 of 1988, whereby and whereunder the learned Judge has set aside the order of conviction and sentence passed by the learned Judcial Magistrate Arambagh, Hooghly in Criminal Case No. 257 of 1981 under Section 323 of the Indian Penal Code.

2. The case of the prosecution in brief is that the complainant/petitioner filed a petition of complaint in the Court of the then Sub-Divisional Magistrate, Arambagh, Hooghly alleging inter alia that on 29th 1981 at about 4.00 p.m. the accused/opposite party Nos. 2 to 3 along with one Syed Md. Warish @ Babu trespassed into the house of the complainant abused her in filthy languages and Syed Md. Warish @

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Babu suddenly held the tuft of the complainant and thereafter all the accused persons assaulted her with fists and blow.

3. Prosecution witness No. 1 that is the complainant has specifically stated in her evidence that all the accused abused and assaulted her at the time of such occurrence.

4. Prosecution Witness No.2 Angali Mondal corroborated such statement of the complainant/prosecution witness NO. 1. P.W. 2, being daughter of the complainant has also corroborated the evidence of complainant.

5. Prosecution witness No. 3 Lilabati Karmakar is a co-villager and she is a post-occurrence witness. She went to the place of occurrence immediately after such occurrence and found that complainant was lying on the ground.

6. Learned Magistrate after considering the evidence and other material on record recorded an order of conviction for the offence under Section 323 of the Indian Penal Code and sentenced all the accused persons to suffer rigorous imprisonment for three months and to pay a fine of Rs. 200/- each, in default to suffer further rigorous imprisonment for one month. Being aggrieved by the aforesaid order of conviction and sentence the opposite parties/accused preferred an appeal in the Court of learned Sessions Judge Hooghly which was registered as Criminal Appeal NO. 62 of 1988 and the learned Additional Sessions Judge 1st Court, Hooghly after completion of the hearing of such appeal, however, found Syed Md. Warish @ Babu guilty of the offence under Section 323 of the Indian Penal Code but acquitted the remaining accused persons who have been arrayed as opposite parties in this appeal. This appeal has been preferred against the said judgment of learned Additional Sessions Judge 1st Court, Hooghly under Section 378 (4) of the Code of Criminal Procedure.

7. Learned Advocate for the appellant pointed out the evidence of prosecution witness NO. 1 Smt. Jogomaya Hazra wherein she has stated that all the accused persons kicked her. On the contrary on careful consideration of the entire evidence of prosecution witness NO. 1 I find that only Syed Md. Warish @ Babu caught hold of her hair and she fell down on the ground. It is also apparent from her evidence that Lilabati Karmakar, Dilip Mukherjee, Santosh Mukherjee and other had seen such occurrence.

8. On careful consideration of such evidence of prosecution witness No. 1 I find that the prosecution witness NO. 1 could justify in her cross examination about the participation of the present opposite parties in the alleged assault on the person of prosecution witness No. 1. However, it is evident from her evidence that Syed Md. Warish @ Babu caught hold of her hair and she fell down on the ground. The prosecution witness No. 4 being Doctor had tried to support the case of the complainant. In her cross examination prosecution witness No. 1 admitted that she had sustained only swelling injury on her head. Prosecution witness No. 2 has however, developed her statement by saying that her mother had sustained swelling injuries on her belly, Chest and head as well as on her back. Prosecution witness 2 is the married daughter of the complainant and she used to reside in her father-in-law's house. No explanation has been given as to how she remains present in the house of the complainant at the time of such occurrence. Moreover, she is highly interested in the prosecution of the opposite parties, being daughter of the complainant. On careful consideration of the entire evidence of prosecution witness No. 2 I do find any material to accept the entire evidence of prosecution witness No. 2.

9. Prosecution witness NO. 3 Lilabati Karmakar did see the occurrence but she came to the place of occurrence after completion of such incident and accordingly she did see as to who assaulted her. Prosecution witness No. 4 Dr. Kanai Lal Das examined the complainant on 29th July 1981 and found some injuries on her person. The injury report has been marked as exhibit. Curiously enough the complainant did disclose the names of the assailant at the time of her examination in the trial Court. The case of the complainant has been suffering from material irregularities as well as substantial defects as has been pointed out by the learned Advocate for the opposite party. Learned appellate Court duly considered such material irregularities and defects and thereafter affirmed the conviction of Syed Md. Warish @ Babu and acquitted the remaining accused persons. It has been rightly held by learned 1st Appellate Court that the matter was never reported to the police. Secondly, the neighbours did adduce any evidence with regard to the participation of the opposite parties in the case under reference. The prosecution witness No. 2 is a highly interested witness. Prosecution witness No. 3 is a post occurrence witness and did see the actual occurrence. However on the basis of the evidence of prosecution witness No. 1 it may safely be stated that Syed Md. Warish @ Babu caught hold of the hair of complainant and she fell down on the ground. The Doctor has corroborated that statement and thereby the complainant had sustained some injuries on her person. In that view of this case, the learned appellate Court has rightly upheld the conviction of Syed Md. Warish @ Babu and acquitted the present opposite parities.

10. The Apex Court has laid down following cardinal rules in respect of appeals against acquittal namely:

(i) the presumption of the innocence of the accused should be kept in mind.

(ii) if two views of the matter are possible, the view favourable to the accused should be taken.

(iii) the appellate Court should take into account the fact that trial Judge has the advantage of looking the demeanour of witness and

(iv) the accused is entitled to the benefit of doubt. (reference may be had of from Satyabir Singh v. State (2010) 3 SCC 174.)

11. It has been observed by the Hon'ble Apex Court that while dealing with an appeal against acquittal the High Court should address the question as to whether the reasons asked by the Court below were proper or not. The high Court should not make independent reappraisal of the nature of evidence to arrive at different conclusion. In the case under reference the learned 1st Appellate Court has properly evaluated the entire evidence on record and thereafter came to a definite conclusion that present opposite parties had had no role to play in the alleged assault of the complainant. In my view of the principles of law enunciated by the Apex Court, this Court is prevented from reappraisal of such evidence. On the contrary I find no reason to discard the reasons assigned by the 1st appellate Court in acquitting the present opposite parties. In that view of this case the appeal under reference being devoid of merit and is liable to be dismissed.

12. It may be mentioned here that as per the report obtained by the department, it is apparent that opposite party No. 2 has died in the mean time. Accordingly the appeal against opposite party No. 2 is abated. The appeal against opposite party Nos. 1 and 3 is accordingly dismissed. The appeal stands dismissed in respect of the opposite party no 1 and 3.

13. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible
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