Calcutta High Court (Appellete Side)
Md. Mahfuj Alam @ Md. Maifuz Alam vs The State Of West Bengal & Ors on 20 January, 2023
1
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present: - Hon'ble Mr. Justice Subhendu Samanta.
C.R.R. No. -3686 of 2018
IN THE MATTER OF
Md. Mahfuj Alam @ Md. Maifuz Alam
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Sabir Ahmed, Adv.,
Mr. Abfur Rakib, Adv.
For the State : Mr. Prasun Kumar Dutta, Adv.,
Md. Kutubuddin, Adv.,
Mr. Santanu Deb Roy, Adv.
Judgment on : 20.01.2023
Subhendu Samanta, J.
This is an application u/s 482 read with section 401 of the Code of
Criminal Procedure against a judgment and order dated November 22, 2018
passed by the learned Additional Sessions Judge, 1st court Sealdah, District
South 24 Parganas in connection with Criminal Appeal No. 33 of 2018
arising out of a Judgment and Order dated May 16th 2018 passed by
Learned Additional Chief Judicial Magistrate, Sealdah, South 24 Parganas
in connection with GR Case No. 71 of 2016 u/s 324/114 of the IPC.
The brief fact of the instant criminal revision is that the present
petitioner being the de facto complainant has lodged one written complaint
against the opposite party Nos. 2, 3 and 4 with the Officer in Charge Tangra,
Police station on March 03, 2016 thereby alleging the commission of ofence
punishable u/s 324/114 of IPC. On the basis of which Tangra Police Station
Case No. 63 of 2016 dated 3rd March, 2016 was started. The written
complaint (FIR) contended that on 03.03.2016 at about 10.30 a.m. the
tenant of petitioner namely Md. Islam (O.P. 2), Md. Ashiq (O.P. 3) and Md.
Sadeb Khan (O.P. 4) had been installing one door at the common passage
and on that issue a quarrel had taken place and suddenly O.P. has
assaulted petitioner with iron hammer and he sustained bodily injury on
various part of his body and thereafter he was taken to N.R.S Hospital for
treatment.
After completion of investigation the charge sheet has been submitted
against the opposite parties. The trial was conducted by the Learned ACJM,
Sealdah, wherein 08 witnesses were examined and several documents were
exhibited during trial. After completion of trial Learned ACJM, passed his
judgment on May 16, 2018 with a finding that the necessary ingredients of
offence u/s 324/114 of IPC are not proved and the accused persons (OPs)
were acquitted from their charges.
Being aggrieved by the said judgment the petitioner preferred an
appeal before the Learned Additional Sessions Judge, Sealdah, which was
registered as Criminal Appeal No. 33 of 2018. After hearing the parties the
Learned Additional Sessions Judge, Sealdah passed the impugned judgment
and thereby dismissed the appeal and affirmed the judgment and order
passed by the Learned ACJM, Sealdah.
Hence this revision.
Learned Advocate appearing for the petitioner submitted before this
court that Learned Judge has failed to appreciate the facts and
circumstances of this case and came to an erroneous finding. The statement
of PWs was not specifically scanned and considered by the Learned Judge,
for which the order of acquittal was passed. He further pointed out that the
fact of assault inflicted by the present OP 2 to 4 has been sufficiently proved
by the PWs. It has also been proved before the learned Magistrate that
petitioner sustained bodily injury. The fact of FIR has sufficiently
corroborated by the oral evidence of PWs there are no reason to disbelieve
the fact of the FIR case instead of which the impugned judgment passed by
both the Learned Courts are palpably erroneous. During the examination of
the accused persons (Ops) u/s 313 Cr.P.C before the Learned Magistrate,
they failed to show any satisfactory explanation regarding their involvement
in the alleged incident thus the fact of the FIR cannot be disbelieved. The
Learned Sessions Judge has failed to overview the evidences adduced before
the Learned ACJM, Sealdah and passed the impugned judgment in a
slipshod manner. He further argued that the order of acquittal passed by
Learned ACJM, Sealdah and order of appeal passed by the Learned
Additional Sessions Judge, affirming the order of acquittal is palpably illegal
and liable to be set aside.
Learned Advocate appearing on behalf of the State submits that the
impugned order passed by the Learned Sessions Judge suffers no illegality
or impropriety. He further argued that there is no scope by this revisional
court to hear the matters which can only heard at second appeal. He again
argued that the Learned ACJM, Sealdah, as well as the Learned Additional
Sessions Judge, Sealdah, has passed the impugned order with proper
perspective. So, there is no scope to interfere.
Heard, the learned Advocates perused the materials on record also
perused the evidences of PWs which was annexed along with petition.
During the course of argument, Learned Advocate appearing for the
petitioner cited some decision in support of his contention. They are 2007
SCC ONLINE CAL 478,(2008) 12 SCC 173 and (2021) 9 SCC 191.
Paragraph 14,21, 22 of the judgment of our Hon'ble Court reported in
2007 SCC ONLINE CAL 478, has formulated the scope of revisional court
regarding the interference of any judgment passed by the trial court. Para
14,21, 22 are set out as follows-
14.In the ruling reported in 2002 Calcutta Criminal
Law Reporter(SC) at page 643 it has been held that
the object of the revisional jurisdiction as envisaged
under Section 401 was to confer upon Superior
Criminal Courts a kind of paternal and supervisory
jurisdiction, in order to correct miscarriage of justice
arising from misconception of law, irregularity of
procedure neglect of proper precautions of apparent
harshness of treatment which has resulted on the
one hand in some injury the due maintenance of law
and order or on the other hand in some underserved
hardship to individuals. The main question which the
High Court has to consider in an application in
revision is whether substantial justice has been
done. If, however, the same has been an appeal, the
applicant would be entitled to demand an
adjudication upon all questions of fact or law which
he wishes to raise, but in revision the only question
is whether the court could interfere in the interests of
justice. Where the Court concerned does not appear
to have committed any illegality or material
irregularity or impropriety in passing the impugned
judgment and order, the revision cannot succeed. If
the impugned order apparently is presentable,
without any such infirmity which may render it
completely perverse or unacceptable and when there
is no failure of justice, interference cannot be had in
exercise of revisional jurisdiction. It was further held
that in the case that power under Section 401 Cr.P.C.
is not to be lightly exercised but only in
21. When the best available evidence is withheld,
there is legal duty of the presiding Officer of the
Court of his own, independent of the parties, to take
an active role in the proceeding to find out the truth
and administer justice. In a situation like this it is the
duty of the Court to discharge its statutory functions
whether discretionary or obligatory according to law
in dispersing justice. It must be borne in mind that in
order to enable the Court to find out the truth and
arrive at a just decision the salutary provisions of
Section 311 of the Code are enacted and if the
judgment is rendered on incomplete and inconclusive
presentation of facts, the ends of justice would be
defeated.
22. The Court has to take a participatory role in a
trial and Section 311 of the Code and Section 165 of
the Indian Evidence Act confer vast and wide powers
on Presiding Officers of Court to elicit all necessary
materials to playing an active role in the evidence
collecting process. The purpose of the trial is to find
out the truth and prevent miscarriage of justice. The
court cannot show indifference or adopt an attitude
of total aloofness where there is serious dereliction of
duty on the part of the prosecution agency to prevent
miscarriage of justice and find out the truth fair trial
is essentially needed and for that the power
conferred by Section 311 of the Code is to be
exercised by the Court when the situation so
demands.
The Hon'ble Supreme Court in (2008) 12 SCC 1730 has pointed out
that the non-examination of Public Witnesses by the differences given rise to
an adverse interference against the prosecution and there is no rule to
disbelieve the testimony of relative of the victims if it is found they are
otherwise trustworthy. Para 7 of the judgment of Hon'ble Apex Court [(2008)
12 SCC 173] is set out herein-
7. We are not impressed with the argument. Though
it is true that the incident having taken place near
the market around 6 p.m. on 17-7-1988, the
prosecution should have attempted to secure public
witnesses who had witnessed the incident, but at
the same time one cannot lose sight of the ground
realities that the members of the public are generally
insensitive and reluctant to come forward to report
and depose about the crime even though it is
committed in their presence. In our opinion, even
otherwise it will be erroneous to lay down as a rule
of universal application that non-examination of a
public witness by itself gives rise to an adverse
inference against the prosecution or that the
testimony of a relative of the victim, which is
otherwise creditworthy, cannot be relied upon unless
corroborated by public witnesses.
The judgment of Hon'ble Supreme Court reported in (2021) 9 SCC
191 has formulated that the weight of evidence of injured witnesses cannot
be discarded. The deposition of injured witness should be relied upon unless
there are strong rounds for rejection of his evidence on basis of major
contradictions and discrepancies.
I have considered the judgments of Hon'ble Apex court as well as the
scope of this revisional court in considering the final judgment of trial court
and 1st Appellate Court to ascertain their views whether they are illegal or
improper in the eye of law.
In passing the impugned judgment, Learned ACJM, Sealdah, has
scanned evidences of PWs including the evidence of the petitioner (PW1,
injured).
In scanning the evidence of PW 1 he is a view that the evidence of
petitioner is not at all reliable which suffer material contradictions. He is
also a view with the written complaint does not reflect to any particular
person to be assailant and the evidence of petitioner is not trustworthy.
Perused the PWs also perused the FIR.
The petitioner in his deposition stated the name of Md. Islam to be the
sole assailant. The other eye witnesses i.e. PW 2 and PW 5 including the
witnesses who reached soon after the incident, that is PW 3, PW 4 stated the
name of Md. Ashiq to be the assailant.
The Dr. who examined as PW 7 deposed that one blunt injury on the
back side of the head of victim is found thus it is crystal clear that the single
blow has been inflicted upon the victim (petitioner). The evidence of
petitioner regarding his injury, is weighty and trustworthy but his evidence
is not corroborated by the evidences of other PWs. It is very unsafe in this
case to hold that who is the actual assailant. In that score benefit of doubt
is always with the accused persons thus I find, the findings of Learned
ACJM Sealdah regarding the fact that the evidence of PW 1 is not
trustworthy, is justifiable.
Learned Sessions Judge in passing his impugned judgment is of view
that the petitioner (injured) himself destroyed his case. In the facts and
circumstances of this case if any one goes to believe the evidence of PW 1
the other evidences of PW 2 to PW 6 hold to be disbelievable, on the other
hand if the evidences of PW 2 to PW 6 is taken to be correct; then the
statement of the petitioner before the Court during his deposition appears to
be faulty.
Considering the entire circumstances I find the charge of offence
punishable u/s 324/114 against the present opposite party can only be
proved if there is any trustworthy evidence before the Court of law. The
petitioner may have suffered bodily pain due to the incident but it is very
much uncertain who is the actual assailant of this case. This is the cardinal
principle of law that if there are two views are possible then the view
supporting the defence would always be acceptable.
Considering the entire circumstances and considering the materials
on record I find no infirmity in the impugned order passed by the Learned
Court below. There is no scope to interfere with the impugned order hence,
the criminal revision is liable to be dismissed.
CRR is dismissed.
Pending connected CRAN applications if any, is also disposed.
Any order of stay passed by this Court during the continuation of the
CRR is also vacated.
Parties to act upon the server copy and urgent certified copy of the
judgment be received from the concerned Dept. on usual terms and
conditions.
(Subhendu Samanta, J.)
