Sm. Sova Rani Misra vs The State Of West Bengal
2022 Latest Caselaw 2821 Cal

                   IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                             Appellate Side

Present :-
The Hon'ble Justice Moushumi Bhattacharya.


                            C.R.A. 275 of 1986
                             Sm. Sova Rani Misra

                                      Vs

                            The State of West Bengal


As Amicus Curiae        :             Ms. Puja Goswami


Last Heard on           :             27.04.2022.



Delivered on            :             13.05.2022.



Moushumi Bhattacharya, J.

1. The appeal arises out of a judgment passed by the Sub-Divisional

Judicial Magistrate, Suri, Birbhum under Sections 147/380/427 and 323 of

the Indian Penal Code (IPC), 1860 in C. Case No. 318 of 1980. By the said

judgment, the accused persons were acquitted under Section 248(1) of The

Code of Criminal Procedure, 1973, and discharged from their bail bonds.

2. The appellant before this Court was the de facto complainant and

deposed as the PW/1 before the learned Trial Court. The incident occurred

on 20th May, 1980 and the complaint was filed by the appellant under

Sections 147/379/323/504 of the IPC. The charges were framed under

Sections 147/380/427 of the IPC (punishment for rioting, theft in dwelling

house, mischief causing damage).

3. The case made out by the prosecution was that the grandfather of the

complainant/appellant had executed a deed of gift in favour of the appellant

before his death in respect of a tin-shed house together with some landed

property. On 20th May, 1980, the respondents, armed with deadly weapons

attacked the appellant, trespassed inside the tin shed house and tried to

steal articles. The appellant was assaulted when she raised an alarm after

which the respondents dislocated the tin-shed from the roof of the house.

The appellant suffered a consequential loss of Rs. 3000/-. C. Case No.

318/1980 on 24.05.1980 was registered against the respondents on the

basis of the complaint made by the appellant. Upon trial, the respondents

were acquitted of all the charges.

4. During the trial, the prosecution examined a total of 8 witnesses while

no witnesses were examined by the defence. The witnesses of the

prosecution were as follows.

      PW/1 Sova Rani Misra                 - Defacto complainant/appellant

      PW/2 Sukumar Mishra                  - Cousin brother of the appellant

      PW/3 Radhu Soren                     - Co-villager of the appellant

      PW/4 Gopinath Kaibarta               - Post occurrence witness, heard
                                              the incident from the appellant




      PW/5 Ananda Gopal Roy                - Co-villager of appellant, witness
                                              to the gift deed executed in
                                              favour of appellant

      PW/6 Ramgopal Ghosh                  - Co-villager of the appellant

      PW/7 Anil Kr. Mondal                 - In his presence the tin shed was
                                              recovered by police

      PW/8 Baidyanath Chattopadhyay         - One of the members of village
                                               salish that took place between
                                              the appellant and the respondents

5. After going through the materials on record including the depositions

of the witnesses, this Court is of the view that there are several reasons for

believing the case made out by the prosecution. First, the incident took

place on 20.05.1980 and the appellant lodged a General Diary on the very

next day in the local police station. The complaint case was filed before the

learned Chief Judicial Magistrate, Suri, Birbhum. Hence, there was no delay

in lodging of the complaint. Second, PW/2, Sukumar Mishra, who was

examined by the prosecution, corroborated the version of the complainant.

Sukumar Mishra was one of the eye-witnesses to the incident and a cousin

brother of the appellant. The deposition of Sukumar Mishra (PW/2) shows

that the PW/2 witnessed the part of the incident and also identified all the

accused persons. PW/3, Radhu Soren was also an eye-witness to the

incident and deposed that PW/3 was aware of the deed of the gift of the

house to the appellant by her grandfather. The deposition of PW/3 shows

that PW/3 came to the place of occurrence upon hearing the cry of the

complainant and witnessed the part of the incident. At the time of incident,

PW/3 did not protest out of fear but identified all the accused. Third, the

deposition of PW/5 Ananda Gopal Roy clearly states that there was a civil

dispute between the appellant and the respondents regarding the property

in question. PW/5 is a co-villager of the complainant and the accused

persons and deposed that PW/5 was a witness to the deed of gift of the tin

shed house to the appellant by the grandfather of the appellant. The

deposition of PW/8, Baidyanath Chattopadhyay, further corroborated the

account of PW/5 as it was deposed that PW/8 was invited for a settlement of

a dispute between the appellant and the accused persons over the removal

of tin sheds from the house of the appellant. PW/8 also deposed that a

salish was called in the village for settlement of the dispute and further that

the appellant showed a deed of gift from her grandfather to PW/8.

6. The impugned judgment reflects that the learned Trial Judge

disbelieved the account of PW/2 being an eye-witness to the incident. The

reason of disbelieving the account of PW/2 is that PW/2 is the cousin

brother of the appellant and is vitally interested in the case of the

appellant/complainant. The learned Judge also disbelieved the account of

PW/3, the other eye-witness of the incident, on the ground that PW/3 is the

bargadar of the complainant for a long time and was also vitally interested

in the cause of the complainant.

7. The reasons given by the learned Judge make the impugned judgment

vulnerable to challenge. The learned Judge had raised a question as to what

prevented the appellant/complainant to examine independent witnesses,

being the other villagers who saw the incident. The learned Judge comes to

a conclusion that there was an enmity between the parties of the case for a

long time and hence it was incumbent on the complainant to produce

independent witnesses. The learned Court also comes to a finding that the

police did not start any case over the complaint and finds it unbelievable

that the police could remain idle after receiving a complaint of this nature.

This finding is factually incorrect since the materials on record do not

disclose any delay on the part of the police to take prompt action on the

complaint. Further, the conclusion that there is room for doubt with regard

to the genuineness of the case made out by the complainant based on the

above reasons is not substantiated from the records or the reasons given in

the impugned judgment. This particularly shows from the deposition taken

after occurrence of the incident corroborated one and another. The version

of the eye-witnesses also corroborates the versions of the

complainant/appellant. In Union of India vs Dafadar Kartar Singh; (2020) 2

SCC 437, the Supreme Court was of the view that judgments of acquittal

may be reversed or otherwise interfered with when the court has substantial

and compelling reasons like when the trial court has ignored the evidence or

material documents or misread the material evidence. The absence of

reasons for disbelieving the case made out by the prosecution in the

impugned judgment and the lack of credible grounds for accepting the case

of the defence amounts to an instance where the judgment in Dafadar

Kartar Singh would apply in full force.

8. This Court is hence of the view that the appeal should be allowed for

the above reasons and the impugned judgment dated 19th March, 1986

passed by the Sub-divisional Judicial Magistrate, Suri, Birbhum, should be

set aside.

9. Since the incident occurred and the Case was registered against the

accused persons in May, 1980 and the impugned judgment is of 19th March,

1986, this Court is of the view that convicting the accused persons under

the charges framed against them after a gap of 36 years would disturb the

balance of convenience and result in more injustice being caused in the

matter. It is not even clear whether the accused persons are still alive or

available after 36 years. This information can only be provided by the local

police station. The records also show that the accused persons were never

represented in the present appeal. None of the parties were represented

before this Court during the hearing of the matter by reason of which the

Court had to appoint an Amicus Curiae. It would hence be inequitable to

convict the accused persons and sentence them after 36 years particularly

when the accused persons were not heard or represented in the appeal.

10. CRA 275 of 1986 is accordingly disposed of by directing the Sub-

Divisional Judicial Magistrate, Suri, Birbhum to reconsider and decide the

case in terms of the observations made by this Court and after obtaining the

report from the local police station as to the availability and whereabouts of

the accused persons. The learned Court is requested to dispose of the

matter as expeditiously as is possible and subject to the convenience of the

Court.

11. This Court records its appreciation to the learned Amicus for the

assistance given to the Court.

Urgent Photostat certified copies of this judgment, if applied for, be

supplied to the respective parties upon fulfilment of requisite formalities.

(Moushumi Bhattacharya, J.)