Ramesh Das & Ors vs State Of West Bengal & Ars

Tirthankar Ghosh, J

The revisional application has been preferred against the judgment and order dated 26.06.2006 passed by the learned Additional Sessions Judge, 3rd

Court (Special), Jalpaiguri in Criminal Appeal No.10/2005, wherein the learned Appellate Court was pleased to dismiss the appeal and affirm the

judgement and order of conviction and sentence dated 22.09.2005 passed by the learned Judicial Magistrate, 1st Court, Jalpaiguri in connection with

G.R. Case No.126/2001 (TR No.1046/2001) arising out of P.S. Dhupguri Case No.10/2001. The learned Judicial Magistrate, 1st Court, Jalpaiguri by

his judgment and order dated 22.09.2005 was pleased to convict/impose sentence to all the four petitioners and sentenced them to suffer simple

imprisonment for 3 (three) months and pay a fine of Rs.100 (one hundred) each i.d. to suffer simple imprisonment for another 15 (fifteen) days for the

offence under Section 324 of the Indian Penal Code and also sentenced them to pay fine of Rs. 500 (five hundred) each i.d. to suffer simple

imprisonment for another 1 (one) month for the offence punishable under Section 323 and 341 of the Indian Penal Code.

The Prosecution case in brief is that on or about 28.01.2001 at about 09:45 hours the de-facto complainant Putul Roy lodged a written complaint with

Dhupguri Police Station to the effect that on 28.01.2001 at about 7:00 hours, the accused persons assaulted her and her husband (Biren Roy) in

furtherance of their common intention with axe, iron rod and other deadly weapon. As a result she sustained injury and her husband sustained grievous

injury and he was shifted to Sadar Hospital Jalpaiguri after being referred by Dhupguri hospital for better treatment.

On the basis of the aforesaid written complaint Dhupguri Police Station Case No.10/2001 dated 28.01.2001 was registered for investigation and on

completion of such investigation the charge-sheet was filed against the accused/ petitioners for offences punishable under Sections 341/323/324/34 of

the Indian Penal Code.

The learned Trial Court in course of the proceeding framed charges under Section 341/323/324/34 of the Indian Penal Code and the charges were

read over and explained to the accused persons who pleaded not guilty and claimed to be tried.

It is reflected from the records of the case that the prosecution in order to prove its case relied upon seven witnesses and also three documents in

support of its case while the defence examined none. The prosecution witnesses being PW-1 Kanon Roy wife of elder brother of Biren Roy (PW-6),

PW-2 Rekha Roy sister of PW-6, PW-3 Putul Roy de-facto complainant, PW-4 Susila Roy a villager, PW-5 Dr. Abhijit Dey associated with Dhupguri

Hospital, PW-6 Biren Roy victim, PW-7 Dr. T.K. Chowdhury who was associated with Jalpaiguri Sadar Hospital, were tendered in evidence in

support of the prosecution case.

I find from the records of the case that the evidence of Biren Roy PW-6 and Putul Roy regarding the origin of the case relating to assault are

different, as from the cross-examination of PW-6 it is seen that PW-6 for the first time in court stated that his elder brother and his wife were being

assaulted, such fact is missing in the complaint as also the deposition of PW-2, who happens to be the complainant. I have also perused Exhibit-2 and

Exhibit-3 which are the injury report of Dhupguri Hospital and Jalpaiguri Sadar Hospital respectively. I find that there is no name in respect of the

persons who inflicted the injuries in the column referred as “brief history as stated by the injured partyâ€. Another issue which is important in the

back ground of the aforesaid circumstances is the non-examination of the investigating officer which has seriously prejudiced the accused persons as

they were not able to cross-examine the investigating officer regarding the improvement made by the prosecution witnesses at the time of their

deposition in Court.

Another lacuna in the proceedings relate to examination of all the accused persons under Section 313 of the Code of Criminal Procedure, wherein the

learned Trial Court by a single question inserted the depositions of all the witnesses and asked for a clarification from the accused. The manner in

which this examination has been conducted is against the settled principle of law as decided by the Hon’ble Apex Court. The learned lawyer on

behalf of the petitioners have drawn my attention to the judgement of the Hon’ble Apex Court in Asraf Ali Vs. State of Assam, (2008) 16 SCC

328 where in paragraph 21 and 22 it has been observed:

“……….Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to

explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance

appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a

serious irregularity vitiating trial, if it is shown that the accused was prejudiced.â€​

“……..The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is

important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the

matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the

prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or

prejudice….â€​

It was incumbent upon the learned Appellate Court to take into account the cryptic manner in which the Trial Court has examined the accused

persons under Section 313 of the Code of Criminal Procedure, having ignored the same the learned Appellate Court in fact affirmed the error

committed by the Trial Court.

After taking into account the prosecution evidence as a whole, I find that non-mentioning of the name of the assailants in the injury report, improved

version of the prosecution witnesses, non-examination of the investigating officer of the case and the manner in which the examination under Section

313 of the Code of Criminal Procedure has been conducted by the Trial Court has prejudiced the accused/petitioners which has resulted in

miscarriage of justice. The order of conviction as such is bad in law.

Under the circumstances I set aside the judgment and order dated 26.06.2006 passed by the learned Additional Sessions Judge, 3rd Court (Special),

Jalpaiguri in Criminal Appeal No.10 of 2005 as also the judgement and order dated 22.09.2005 passed by the learned Judicial Magistrate, 1st Court,

Jalpaiguri in G.R. Case No.126 of 2001 thereby convicting the petitioners for commission of offences punishable under Section 324/323 and 341 of the

Indian Penal Code.

The petitioners are therefore acquitted of the charges levelled against them and they are discharged from their bail bonds.

As such the revisional application being CRR No.2072 of 2006 is allowed.

The lower Court records be sent down immediately to the Court below. The Department is directed to communicate the order to both the Courts

below.

Urgent certified photocopy of this Judgement, if applied for, be supplied to the parties upon compliance with all requisite formalities.