w w w . L a w y e r S e r v i c e s . i n



Yogomaya Hazra v/s Syed Md. Jasin @ Azfor


Company & Directors' Information:- MD INDIA PRIVATE LIMITED [Active] CIN = U74999DL2016PTC306314

Company & Directors' Information:- MD R INDIA PRIVATE LIMITED [Strike Off] CIN = U72400DL1999PTC097812

    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 @ 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 enunci

Please Login To View The Full Judgment!

ated 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
O R







Judgements of Similar Parties

06-07-2020 M/s. Liberty General Insurance Limited (formerly known as M/s. Liberty Videocon General Insurance Co. Ltd. Versus Md. Haseena & Others High Court of for the State of Telangana
30-06-2020 M/s. United India Insurance Company Limited Versus Md. Khayyumkhan & Others High Court of for the State of Telangana
25-06-2020 M/s. Goodwill Leather Art Rep By its Prop Md Quddus ALi Alias Md Quddus Ali Molla Versus National Insurance Co. Ltd. & Others National Consumer Disputes Redressal Commission NCDRC
22-06-2020 Md. Ashraf Hussain Laskar Versus The Chief Engineer, P.W.D. Roads, Assam, Guwahati & Others High Court of Gauhati
12-06-2020 Md Kameual Islam & Others Versus The State, rep.by the Inspector of Police, Dindigul Town South Police Station, Dindigul & Others Before the Madurai Bench of Madras High Court
18-05-2020 Najir Miah & Others Versus Md. Habib Miah & Another High Court of Tripura
13-05-2020 Md. Jahidul Islam & Others Versus The State of West Bengal & Others High Court of Judicature at Calcutta
16-04-2020 In Re: Md. Samiul Islam Saon High Court of Judicature at Calcutta
13-03-2020 Md. Arif Versus The Union of India High Court of Judicature at Calcutta
06-03-2020 Sakuntala Devi Versus Dr. Md. Mumtaz Alam & Others National Consumer Disputes Redressal Commission NCDRC
03-03-2020 Md. Waheed V/S The Telangana State Public Service Commission In The High Court Of State Of Telangana
27-02-2020 Md. Salim & Others Versus Abdul Hafiz & Another High Court of Judicature at Calcutta
24-02-2020 Md. Safique Versus The State of West Bengal High Court of Judicature at Calcutta
24-02-2020 Md. Sarvar Versus State High Court of Delhi
20-02-2020 Md. Younus Ali Tarafdar Versus The State of West Bengal Supreme Court of India
19-02-2020 Kotak Mahindra Bank Ltd., Rep.by its Authorized Representative M.D. Maheshwaran Versus The Special Secretary, Department of Revenue & Disaster Management, Government of Puducherry, Puducherry & Others High Court of Judicature at Madras
19-02-2020 Md Akibul Ali Versus State of Assam High Court of Gauhati
14-02-2020 M.D. Joshi (deceased) & Others Versus M/s. Nahar Investments, rep. by its Director, Nahar Mansion High Court of Judicature at Madras
13-02-2020 Md Shafique Alam Versus State of Bihar High Court of Judicature at Patna
12-02-2020 M.D. Venkatesan Versus The District Collector, Krishnagiri & Others High Court of Judicature at Madras
06-02-2020 Md Mufty Ashadullah Versus Suresh Kr Dhanuka & Others High Court of Gauhati
05-02-2020 United India Insurance Company Ltd. Versus Md Nur Mohamed High Court of Gauhati
04-02-2020 Md. Mofazzular Rahman & Others Versus Md. Sarfaraz Alam & Others High Court of Judicature at Calcutta
04-02-2020 Md. Ali Imam & Others Versus State of Bihar Thr. Its Chief Secretary & Others Supreme Court of India
04-02-2020 Md. Irfan & Others Versus The State of West Bengal High Court of Judicature at Calcutta
27-01-2020 Md. Anjarul Haque & Others Versus The State of Jharkhand & Others High Court of Jharkhand
23-01-2020 Md. Sikander & Another Versus The State of Manipur, represented through its Chief Secretary (Home), Government of Manipur & Others High Court of Manipur
21-01-2020 Md. Aziz Ahmad Versus State of Bihar & Another High Court of Judicature at Patna
18-01-2020 Mokhtar Alam @ Md Mokhtar Alam Versus State of Bihar High Court of Judicature at Patna
16-01-2020 Prita Prasad & Another Versus Md. Khalil & Others High Court of Judicature at Patna
14-01-2020 Md. Imran & Another Versus Snehasis Das & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
09-01-2020 Md Nurul Haque Laskar Versus State of Assam & Others High Court of Gauhati
09-01-2020 Md. Islam Ali Versus Dipu Sarma & Others High Court of Gauhati
08-01-2020 Parwez Alam @ Md Prawez Alam Versus State of Bihar High Court of Judicature at Patna
07-01-2020 Md. Akbar Khan Versus The State of Telangana & Others High Court of for the State of Telangana
06-01-2020 Md Ehsanul Haque @ Md M.E. Haque Versus State of Bihar High Court of Judicature at Patna
06-01-2020 S.K. Md. Rafique Versus Managing Committee, Contai Rahamania High Madrasah & Others Supreme Court of India
20-12-2019 Deepa Mathew Versus Corporate Manager Catholicate & M.D. Schools, Devalokam, Kottayam High Court of Kerala
19-12-2019 Anup Pramanick & Others Versus Md. Nur Islam Mondal & Others High Court of Judicature at Calcutta
03-12-2019 Chief Executive Officer, The Board of Auqaf Versus Md. Reazuddin & Others High Court of Judicature at Calcutta
22-11-2019 Md. Sawkat Ali Versus The State of West Bengal High Court of Judicature at Calcutta
15-11-2019 Shanu @ Sanu Begum Versus Md. Aslam Khan Lodhi & Others High Court of Judicature at Calcutta
30-10-2019 Md. Abdul Ghani Versus State of West Bengal & Others High Court of Judicature at Calcutta
24-10-2019 Md. Sanjor Hussain @ Md. Sanjar Versus State of Jharkhand & Another High Court of Jharkhand
23-10-2019 Md. Salman Haider Ansari @ Faheem Versus State of Jharkhand & Another High Court of Jharkhand
22-10-2019 Md. Safique (C.M.D.) Versus Biswajit Pal & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
18-10-2019 V. Venkata Sivakumar Versus Md. Sheriff Tariq & Another High Court of Judicature at Madras
26-09-2019 Md. Abrar Versus Meghalaya Board of Wakf & Another Supreme Court of India
03-09-2019 Md. Maherruddin & Others Versus The State of Manipur represented by the Secretary/ Commissioner/Principal Secretary /Additional Chief Secretary (MAHUD), Government of Manipur & Others High Court of Manipur
27-08-2019 Md. Sajid Khan & Others Versus M/s. Ashutosh Roy Prafulla Kumar Roy & Others High Court of Judicature at Calcutta
23-08-2019 Md. Sunny @ Mardin @ Sanny, Kishanganj Versus State of Bihar High Court of Judicature at Patna
19-08-2019 Md. Ejaz Anwar Versus State of Jharkhand High Court of Jharkhand
09-08-2019 Md. Sarfaraz @ Bonu & Others Versus The Union of India High Court of Judicature at Calcutta
05-08-2019 For the Petitioner: Amrendra Kumar, Md. Anisur Rahman, Md. Akram Naiyar, Advocates. For the Respondent: Anshuman, Kuber Pathak, Devesh Shankara, Advocates. High Court of Judicature at Patna
01-08-2019 Md. Afroj Alam @ Md. Afaroj Alam @ Afroj Alam & Another Versus State of Bihar High Court of Judicature at Patna
25-07-2019 Md. Imrul Islam Block Accounts Manager Versus State of Assam & Another High Court of Gauhati
25-07-2019 M/s. Aziz Export, represented by its Authorized person, M.D. Shamim Versus The Presiding Officer, I Additional Labour Court, Chennai & Another High Court of Judicature at Madras
24-07-2019 ICICI Lombard General Insurance Company, Kottayam, Now Represented by R. Jayachandran, Manager Legal Versus M.D. Davasia @ Jose & Another High Court of Kerala
11-07-2019 The Assistant Engineer, Electrical Section, Big Bazar, Kunnamkulam, Thrissur & Another Versus Century Offset Printers Kerala (P) Ltd, Rep.by M.D. Balan Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
05-07-2019 Md. Sarfaraz @ Md. Sarfaraz Alam & Another Versus The State of West Bengal High Court of Judicature at Calcutta
05-07-2019 Md. Rizwan @ Fakir Versus State of Bihar High Court of Gauhati
25-06-2019 Shri Rabindra Chandra Das Versus Md Saifuddin Ahmed & Others High Court of Gauhati
17-06-2019 Wasi Ansari @ Md Wasi Ansari Versus State of Jharkhand High Court of Jharkhand
11-06-2019 M.D. Dhanapal Versus State Rep. By The Inspector of Police Supreme Court of India
10-06-2019 Md. Imdad Ali Versus State of Manipur & Others High Court of Manipur
30-05-2019 Md. Abdul Manab Versus Sahida Bibi @ Seida Bibi High Court of Manipur
30-05-2019 U.P. Cooperative Federation Lko Through Its M.D. & Others Versus U.P. Cooperative Tribunal Horugh Its Chairman & Others High Court Of Judicature At Allahabad Lucknow Bench
24-05-2019 Md. Karim Khan V/S The State of Assam High Court of Gauhati
23-05-2019 Md. Salim @ Shamim Versus State of West Bengal High Court of Judicature at Calcutta
22-05-2019 Dr. A. K. Sasmal, MD (Ortho) & Another Versus Dr. Navneet Kaur & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
16-05-2019 Oriental Insurance Company Ltd. Versus Md. Rupchan Ali & Another High Court of Gauhati
09-05-2019 Md. Nurul Ali Versus State of Assam & Another High Court of Gauhati
08-05-2019 M/s. Ipjacket Technology India Versus M.D. Uttar Pradesh Rajkiya Nirman High Court of Judicature at Allahabad
30-04-2019 Md. Gulzar Hussain, Assam Versus The State of Assam & Another High Court of Gauhati
26-04-2019 Md Noor Alam & Others Versus State of West Bengal & Others High Court of Judicature at Calcutta
24-04-2019 Pawan Kumar Verma @ Pawan & Another Versus Md. Quamruddin Ansari & Others High Court of Jharkhand
16-04-2019 Umar Javeed & Others Versus Google LLC Through its MD/Directors/CEO, United States of Americ & Others Competition Commission of India
15-04-2019 Md. Allauddin Khan Versus The State of Bihar & Others Supreme Court of India
12-04-2019 MD. Mister Versus State High Court of Delhi
12-04-2019 The Chairman & Managing Director, Indian Bank & Another Versus M.D. Chandrashekar High Court of Karnataka
12-04-2019 Md Asab Uddin Versus The State of Assam & Another High Court of Gauhati
11-04-2019 Md. Fakruddin Khan Versus State of Jharkhand & Another High Court of Jharkhand
08-04-2019 Md. Rehim Uddin Laskar @ Saddam Versus The State of Assam & Another High Court of Gauhati
08-04-2019 Md. Asif & Others Versus Syed Hassan & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
05-04-2019 Md. Salauddin Versus State of West Bengal & Another High Court of Judicature at Calcutta
05-04-2019 Md Ayub @ Md Ayab Versus State of West Bengal & Another High Court of Judicature at Calcutta
03-04-2019 Md Habibur Rahman Versus State of Assam High Court of Gauhati
28-03-2019 Momin @ Momimwar Hussain @ Md.Monwar Hossain Versus State rep. by the Principal Secretary to Government, Public (Foreigners-II) Department, Government of Tamilnadu, Secretariat, Chennai & Others High Court of Judicature at Madras
28-03-2019 Pramila Devi & Another Versus MD. Sahabuddin & Others High Court of Jharkhand
20-03-2019 Acyumen Complex Pvt. Ltd. & Others Versus Md. Safiar Rahaman & Others High Court of Judicature at Calcutta
19-03-2019 Md. Hakimuddin Parwana Versus Syndicate Bank & Another High Court of Judicature at Calcutta
19-03-2019 Regional Manager, Central Warehousing Corporation, Kolkata & Another Versus Md. Mozammel Haque & Others National Consumer Disputes Redressal Commission NCDRC
19-03-2019 Central Warehousing Corporation & Another Versus Md. Mozammel Haque & Others National Consumer Disputes Redressal Commission NCDRC
14-03-2019 Md. Masle @ Masleuddin Alias Haji Basiruddin Versus The State of Manipur High Court of Manipur
12-03-2019 National Insurance Co. Ltd. Versus Md. Shidul Islam @ Shahidul Islam & Another High Court of Gauhati
06-03-2019 Dr. Pramod K.P.R. MBBS., M.D., DNB, M.S.(USA) Specialist Palliative Medicine (Who) President, Bangalore Society of Neuro Oncology Versus The Union of India & Others High Court of Karnataka
01-03-2019 Md. Abdus Salam Versus State of West Bengal & Others High Court of Judicature at Calcutta
22-02-2019 Gerald Sam M.D. Versus The Secretary, The Tamil Nadu Public Service Commission, Chennai High Court of Judicature at Madras
19-02-2019 Md.Abdul Quadir Versus The State of Tamil Nadu, Rep.by its Principal Secretary to Government Higher Education Department, Chennai & Others High Court of Judicature at Madras
18-02-2019 Dr. K. Krishnasamy, M.D. Founder – President, Puthiya Tamilagam Party Versus The Principal Secretary to Government, School Education Department, Chennai & Others High Court of Judicature at Madras