The State Of West Bengal vs Maheswar Jadav
2022 Latest Caselaw 6543 Cal

                   IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE



HON'BLE JUSTICE CHITTA RANJAN DASH
              AND
HON'BLE JUSTICE PARTHA SARATHI SEN


                            G.A No. 23 of 1988

                      THE STATE OF WEST BENGAL
                                 Vs.
                           MAHESWAR JADAV



For the Appellant/State              :   Mr. S.G. Mukherji, Ld. P.P.
                                         Ms. Z. N. Khan, Adv.
                                         Mr. A. Das, Adv.




For the Respondent                   :   Mr. Aloke Kr. Mitra, Adv.

Heard on                             :   29.07.2022 and 09.09.2022.



Judgment on                          :   14.09.2022.

PARTHA SARATHI SEN, J. : -

1. The present appeal at the instance of the State arises out of a

judgement and order of acquittal dated 18.06.1988 passed by Learned

Additional Sessions Judge, 3rd Court, Howrah, in S.T. case no. XXI

(July)1987 (arising out of Howrah GRPS Case No. 32 dated 27.02.1983).

2. By the impugned judgement the learned trial court found the

accused (respondent herein) not guilty under Section 307 IPC and thus

acquitted him under Section 235(1) of the Code of Criminal Procedure.

3. The State felt aggrieved with the impugned judgement dated

18.06.1988 and thus preferred the instant appeal.

4. It is pertinent to mention herein that in spite of several orders as

passed by this Court the whereabouts of the respondent could not be

ascertained by the appellant authority and accordingly the presence of the

respondent Maheswar Jadav could not be ensured in this appeal and

thus this appeal was heard in absence of the respondent.

5. In order to dispose of the instant appeal fairly and effectively the

facts leading to the initiation of ST Case No. XXI (July) 1987 against the

respondent is to be dealt with in a nut shell.

6. On 27.02.1983, one Bhagaban Pandey, son of Ramdeo Pandey of

13,S.D Mukherjee Lane, Rishra , P.S Serampore, Dist. Hooghly, lodged

an oral complaint with the Officer-in-Charge of Howrah GRPS Police

Station to the effect that on the said fateful day at about 2:00 p.m he

along with one Narad Pandey remained seated on a bench before the

sweetmeat shop of one Domen Saa. It was his further version that at that

time two persons arrived at that place and out of those two persons; one

Maheswar Jadav (the respondent herein) took out a Bhojali and assaulted

the said Narad Pandey on his neck by the said weapon. It is his further

version that he tried to resist the said assailant as a result whereof he

sustained injuries over the rings of his left and right hands. It has been

stated by the de facto complainant further that immediately thereafter the

assailant and his associate fled away from the P.O and at that time blood

was profusely oozing out from the neck of the victim. He further stated

that thereafter he took the victim to the P.S. In his statement he further

mentioned that though he knows the name of assailant Maheswar Jadav

and could recognize him later on but he cannot identify the associates of

the original assailant. It has been further stated by the de-facto

complainant that besides him two or three other persons witnessed the

incident.

7. The aforesaid oral version of the de-facto complainant was reduced

into writing and thereafter the aforesaid PS Case was started followed by

investigation. On completion of the investigation charge sheet was

submitted under Sections 326/307/34 IPC. Learned SDGM, Howrah,

found that the case is triable by the Court of Sessions and accordingly by

his order dated 03.08.1987 committed the case record to the learned

Sessions Judge, Howrah, from where the case record was transferred to

the learned Trial Court for trial and disposal.

8. Lower Court Record reveals that by an order dated 09.01.1988,

learned trial court framed charges against the accused under Section 307

IPC and since the accused pleaded his innocence, the trial as against the

present respondent before the Learned Trial Court proceeded. Lower

Court Record reveals further that in order to bring home the charges

against the accused the prosecution has examined seven witnesses in all

and some documents have been exhibited on behalf of the prosecution.

Lower Court Records reveals further learned trial court after scrutinizing

the evidence of the prosecution witnesses; both oral and documentary

and also after examining the accused under Section 313 of the Code of

Criminal Procedure found the present respondent not guilty and thus

acquitted him from the said case giving rise to the instant appeal at the

instance of the State.

9. In support of the instant appeal, learned advocate for the

appellant/State at the very outset draws attention of this Court to the

impugned judgment. Attention of this Court is also drawn to the evidence

of the PWS both oral and documentary as recorded by the learned trial

court. It is contended on behalf of the appellant/State that the impugned

judgement is absolutely faulty since the learned trial court has miserably

failed to appreciate the evidence of the prosecution witnesses in its proper

perspective. It is contended further that learned trial court while

appreciating the evidence of PW 1 being the ocular witness and PW 2

being the victim ought to have come to a finding that their evidence gets

due corroboration from the evidence of PW 5 and PW 6 as well as from

Exhibit 3 (bed ticket) and Exhibit 'A' (injury report of the victim). It has

been thus contended on behalf of the appellant/State that it is a fit case

for allowing the instant appeal by setting aside the judgement as passed

by the learned trial court and at the same time the present respondent be

held guilty for the offence committed by him under Section 307 of the

Indian Penal Code.

10. This Court has meticulously gone through the entire materials as

available in the trial court record. This Court has perused the evidence of

the prosecution witnesses including the exhibited documents. This Court

has also minutely gone through the impugned judgment. This Court has

also given its anxious consideration over the submissions of the learned

advocate for the appellant/State.

11. On perusal of the impugned judgement it reveals to us that while

passing the impugned judgement the learned trial court expressed its

views that the evidence of PW1 is not at all trustworthy since the same is

full of contradiction. In the impugned judgment it has been stated that in

his Examination-in-Chief PW1 stated that just before the alleged incident

he and the victim (PW2) were sitting face to face in two separate benches

while in his FIR it has been stated that both of them were sitting in a

single bench.

12. It has further been noticed by the learned trial court that the

manner and nature of injuries as alleged to have been suffered by PW1

while rescuing PW2 on the fateful day and hour contradicts with each

other i.e as stated in the FIR and as stated in the Examination-in-Chief.

In the impugned judgement learned trial court also found that though in

his Examination-in-Chief PW1 categorically stated that he along with

some other police officials took the victim to hospital; even then before the

attending doctor (PW5) PW1 did not disclose the name of the assailant for

the reason best known to him though from the FIR it reveals that he was

well aware of the name of the assailant and thus mentioned his name in

the FIR itself. In view of the facts as discussed above, learned trial court

in its impugned judgement seriously doubted the credibility of PW 1 and

thus practically disbelieved the testimony. From the impugned judgement

it reveals further that learned trial court expressed the view that since

there exists a political rivalry between PW1 and PW2 and the present

respondent, the chance of false implication cannot be ruled out.

13. In order to come to a logical conclusion as to whether learned trial

court is at all justified in passing the impugned judgement or not, a duty

is cast upon us to look to the settled position of law with regard to the

duty of a superior court while dealing with an order of acquittal.

14. In this context we think it appropriate to have a look to a reported

decision in 'State of Rajasthan vs. Naresh' reported in (2010)1 C CrLR

(SC)8 wherein the Hon'ble Apex Court expressed the following view:-

"There is no embargo on the appellate court

reviewing the evidence upon which an order of

acquittal is based. Generally, the order of acquittal

shall not be interfered with because the presumption of

innocence of the accused is further strengthened by

acquittal. The golden thread which runs through the

web of administration of justice in criminal cases is

that if two views are possible on the evidence adduced

in the case, one pointing to the guilt of the accused

and the other to his innocence, the view which is

favourable to the accused should be adopted. The

paramount consideration of the Court is to ensure that

miscarriage of justice is prevented. A miscarriage of

justice which may arise from the acquittal of the guilty

is no less than from the conviction of innocence."

15. The same view is taken in the following reported decisions:

i. Anil Kumar Vs. State of U.P reported in (2004) 13 SCC 257;

ii. Chandrappa Vs. State of Karnataka reported in (2007) 4 SCC 415;

iii. State of U.P vs. Gambhir Singh reported in (2005) 11 SCC 271;

iv. State of Punjab vs. Soham Singh (2009)6 SCC 444. v.Babu Vs. State of Kerala (2010)3 C CrLR (5c) 657.

16. Keeping in mind the aforesaid proposition of law as enunciated by

the Hon'ble Apex Court of India, we once again propose to look to the trial

court's record. On further perusal of the entire material of the trial court's

record it reveals to us that admittedly the evidence of PW 1 and PW2 with

regard to the alleged incident of assault on the person of PW2 on the

relevant day and hour gets same corroboration from the evidence of PW 5

and PW 6 vis-a-vis Exhibit 3 and Exhibit A but the contradiction of

evidence as found by the learned trial court while passing the impugned

judgement and as discussed above by us are equally pertinent.

17. Since it is settled position of law that the view which is favourable

would get predominance over the view as against the accused in an

appeal against an order of acquittal, we are of the view that in the instant

appeal the present respondent must get the benefit of presumption of

innocence as per dictum of the Hon'ble Supreme Court of India in the

aforementioned reported decisions.

18. In view of such, the instant appeal fails. The impugned judgement

dated 18.06.1988 passed by learned trial court is hereby affirmed.

19. Let a copy of this judgement along with LCR be sent down at once.

20. Urgent Photostat certified copy of this judgement, if applied for, be

given to the parties on completion of usual formalities.

I agree.

(Chitta Ranjan Dash, J.)                       (Partha Sarathi Sen, J.)