Trilochan Pandey vs The State Of West Bengal & Ors
2022 Latest Caselaw 837 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Civil Appellate Jurisdiction
                               Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                         CRA 408 of 2014

                      Trilochan Pandey
                             -Vs.-
               The State of West Bengal & Ors.

Amicus Curiae                  :   Mr. Archan Dutta.

For the respondents            :   Mr. Prasun Dutta,

Md. Kutubuddin.

Heard & Judgment on : 25.02.2022.

This is an application under Section 372 of the Code of Criminal

Procedure challenging the judgment and order of acquittal passed in

connection with Sessions Case No.209 of 2013 corresponding to

Sessions Trial No.3 of 2014.

The learned Assistant Sessions Judge, Additional Court at Purulia

disposed of the said case by recording an order of acquittal under

Section 235(1) of the Cr.P.C. The de facto complainant being an injured

person and victim of the case has filed the instant application under

Section 372 of the Code of Criminal Procedure.

The application under the Proviso of Section 372 of the Code was

filed in the year 2014. Subsequently, the learned Advocate for the

appellant never appeared before the Court. Therefore, Mr. Archan Dutta

is requested to assist the Court on behalf of the appellant as Amicus

Curiae. Mr. Prasun Dutta, learned Senior Additional Public Prosecutor

with Md. Kutubuddin are requested to appear on behalf of the State

respondent.

I have heard the learned Counsel for the State as well as the

learned Amicus Curiae.

It is found from the impugned judgment that charge against the

private opposite parties was framed under Sections 341/308/34 of the

Indian Penal Code.

The prosecution case in brief is that the de facto

complainant/appellant lodged an FIR on 27 th October, 2012, stating,

inter alia, that an altercation between him and the accused persons

cropped up over cutting earth near the temple of Lord Shiba at Chirka in

the District of Purulia. During such altercation Mahadeb Pandey

assaulted one Sunil Chandra Pandey with a crowbar over his shoulder

and he was admitted to hospital. Accused Mahadeb Pandey and others

also wrongly confined the de facto complainant and the witnesses in a

room and closed the door of the said room till 9 p.m. and abused them

with filthy languages.

It appears from the application under Section 372 of the Code of

Criminal Procedure that the de facto Trilochon Pandey is the appellant

but he did not sustain any injury. Therefore, he is not victim of the

incident. The application for appeal under the proviso to Section 372 of

the Code was not filed by Sunil Chandra Pandey.

It is also found from the judgment passed by the learned Assistant

Sessions Judge, Additional Court at Purulia that during trial 10 witnesses

were examined. Injured Sunil Chandra Pandey @ Sushil Chandra

Pandey was examined as P.W.10. The learned Trial Judge carefully

considered the entire evidence on record. She took into consideration

the inherent contradiction appearing in the evidence of P.W.10.

According to P.W.5 on being injured, he became unconscious. He did

not state the fact to the police in his statement recorded under Section

161 of the Code of Criminal Procedure. The injury report does not

disclose the nature of injury, the time when injury was received or the

name of the assailant. When a person is charged under Section 308 of

the Indian Penal Code, prosecution is under obligation to prove that the

accused persons attempted to commit culpable homicide not amounting

to murder. In order to prove such fact the nature of injury is required to

be assessed by the Court on the basis of the injury report prepared by

the Medical Officer and the statement of the injured person on oath. The

evidence on record as disclosed by the learned Trial Judge does not

disclose any such offence under Section 308 of the Indian Penal Code.

Therefore, I do not find any ground to allow the instant

application.

The application under Section 372 of the Code of Criminal

Procedure is, therefore, dismissed on contest however, without costs.

This Court records appreciation of Mr. Archan Dutta, learned

Amicus Curiae.

The appointment of Mr. Prasun Dutta with Md. Kutubuddin for the

State be regularized by the learned Legal Remembrancer.

CRA 408 of 2014 is accordingly dismissed on contest.

[Bibek Chaudhuri, J.]

Mithun A. R. (Court)