Mantu Manna vs F) Suppression Of Material Facts As Came ...
2024 Latest Caselaw 4719 Cal

Calcutta High Court (Appellete Side)

Mantu Manna vs F) Suppression Of Material Facts As Came ... on 13 September, 2024

13.09.2024
  SL. 47                                  C.R.R. 1334 of 2006
Court No. 551
  Sourav
                     In the matter of: Mantu Manna
                                                                           ... petitioner.

                     Ms. Jonaki Saha, amicus curiae
                                                                    ... for the petitioner.

                     Mr. Avishek Sinha
                                                                        ... for the State.

                     Mr. Kallol Kumar Basu
                     Mr. Raja Adhikary
                     Mr. Mrinal Das
                     Md. Jannat Ul Firdous
                     Ms. Ruksar Parveen
                                             ... for the opposite party nos. 2 to 5 & 7.


                1.

Though the opposite party nos. 2 to 5 and 7 and the State

are represented by their respective learned advocates but

none appears on behalf of the revisionist today.

2. It is placed on record that on the last occasion i.e. on

August 20, 2024, this Court has heard Mr. Bhattacharya,

learned advocate for the revisionist substantially though in-

part. For some reason or other, Mr. Bhattacharya is not

appearing today on behalf of the revisionist. In view of such,

Ms. Jonaki Saha, learned advocate is appointed by this

Court as an advocate for the revisionist.

3. The instant revisional application is now taken up for

hearing

4. This Court has heard Ms. Saha, learned advocate for the

revisionist (as appointed by this Court), Mr. Basu, learned

advocate for the opposite party nos. 2 to 5 and 7 and Mr.

Sinha, learned advocate for the State for and against the

instant criminal revisional application.

5. The instant revisional application is now taken up for

passing appropriate order.

6. The legality, propriety and correctness of the judgment and

order dated January 17, 2006 as passed by the learned

Additional Sessions Judge, 4th Fast Track Court, Alipore in

Sessions Trial No. 9(4) of 2005 [Sessions Case No. 12(9) of

2004] arising out of Nodakhali P.S. Case No. 68 dated

06.09.2003 under Section 304/34 IPC is the subject matter

of the instant revisional application.

7. By the impugned judgment, learned trial Court found the

the accused who are the opposite parties herein 'not guilty'

under Sections 304/34 IPC and thus acquitted them under

Section 235(1) Cr.P.C.

8. For effective adjudication of the instant revisional

application, the facts leading to initiation of the aforesaid

Sessions Trial is required to be dealt with in a nutshell.

9. One Mantu Manna submitted an ezahaar with the O.C. of

Nodakhali P.S. on 09.09.2003 at 20.05 hours stating, inter

alia, that on 06.09.2003 at about 8.00 p.m., one Laxman

Chandra Bag, one Bimal Das, one Keshab Mondal, one

Prosit Mondal, one Tapash Mondal and one Gadadhar Das

came to his house. The said accused persons thereafter

forcefully took out his son, Sandip Manna out of his house

and thereafter they murdered him by beating. On the basis

of such ezahaar, the aforesaid P.S. case was started.

Investigation was taken up and on completion of the same,

charge-sheet was submitted under Sections 304/34 IPC.

10. After commitment and transfer, the learned trial Court

considered the materials as available in the C.D as against

the accused persons and thus framed charges under

Sections 304/34 IPC against all the accused persons.

Before the learned trial Court 14 witnesses have been

examined on behalf of the prosecution and some documents

have been exhibited on their behalf. Before the learned trial

Court no evidence was adduced on behalf of the accused

persons, however, from the trend of cross-examination and

the answers as given by the accused persons under Section

313 Cr.P.C. It appears that the defence case is based on

clear denial and false implication.

11. On appreciation of the entire evidence both oral and

documentary, learned trial Court found that the charges

framed as against the accused persons have not been

proved and thus the learned trial Court acquitted the

accused persons under Section 235 (1) Cr.P.C.

12. The informant felt aggrieved and preferred the instant

revisional application.

13. In course of argument, learned advocate appearing on

behalf of the revisionist submits before this Court that the

learned trial Court ought not to have passed a judgment of

acquittal ignoring the clinching evidence as adduced by

P.W. 1 (the defacto complainant), P.W. 2 (the mother of the

deceased), P.W. 3 (the sister of the deceased), P.W. 4 (the

brother of the deceased), as well as P.W. 10 (a minor cousin

brother of the deceased). It is further submitted on behalf of

the revisionist that a serious miscarriage of justice has been

caused for not appreciating the corroborative evidence as

adduced by the aforementioned P.W.s for which this Court

should have exercised its jurisdiction under Section 401

Cr.P.C.

14. In course of his submission, Mr. Basu, leanred advocate for

the opposite party nos. 2 to 5 and 7 submits before this

Court that the learned trial Court is very much justified in

coming to a conclusion that charges under Section 304/34

IPC could not be proved in view of the fact that the P.W. 7

being the autopsy surgeon in its post mortem report

(Exhibit 4) had given no specific finding with regard cause

of death. Mr. Basu further submits that in the cross-

examination, the P.W. 7 (autopsy surgeon) categorically

answered that the cause of death of the patient may be on

account of 'heart failure'.

15. While refuting the contention of the learned advocate for the

revisionist as raised in course of his argument, Mr. Basu

took me to the evidence of P.W. 14 being the Investigating

Officer of the aforesaid case. He draws my attention to the

cross-examination of the said I.O. i.e., P.W. 14. It is

submitted by Mr. Basu that from the cross-examination of

P.W. 14, it would reveal that P.W.s. 2, 5 and 10 had never

stated about the factum, mode and manner of alleged

assault by the opposite parties herein on the fateful night

and hour to the I.O. as stated by them in their respective

examination in chief before the trial Court. It is thus

submitted by Mr. Basu that the omissions in the evidence of

P.Ws. 2, 5 and 10 are vital omissions which tantamount to

contradictions as per the proviso of Section 162 Cr.P.C.

read with Section 145 of the Evidence Act which the learned

trial Court has rightly noticed and, therefore, there is little

scope to interfere with the impugned judgment.

16. Per contra, Mr. Sinha, learned advocate for the State in

course of his submission, though admits that the learned

trial Court is rightly justified in not convicting the present

opposite parties under Sections 304/34 IPC, however, it has

been submitted by Mr. Sinha that from the evidence of the

prosecution witnesses, sufficient case has been made out

that on the fateful night and hour, the present opposite

parties assaulted the deceased by fist and blows and torch

and, therefore, they may be convicted under Section 324

IPC by altering the finding of the learned trial Court as

reflected in the impugned judgment.

17. This Court has meticulously gone through the entire

materials as placed before this Court including the evidence

as adduced by the P.W.s and the exhibited documents. This

Court has given its due consideration over the submissions

of the learned advocates for the contending parties.

18. It is trite law that a Court sitting in a criminal revision must

not act as a court of appeal and it is not expected that a

court while exercising its revisional jurisdiction shall

reappreciate the evidence as recorded by the trial Court all

over again unless some gross illegality and/or irregularity

has been noticed in appreciating the evidence by the trial

Court. The revisional jurisdiction, in considered view of this

Court can also be exercised when non-consideration of

material evidence vitiates the findings of the trial court.

19. The power of High Court in revision while exercising its

jurisdiction under Section 401 CrPC has been elaborately

discussed in the reported decision of K. Chinnaswamy

Reddy vs State of Andhra Pradesh and Another reported

in : AIR 1962 SC 1788 : (1963) 1 Cri LJ 8 wherein the

Hon'ble Apex Court expressed the following view:-

"7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate

some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be : where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4). We have therefore to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles."

20. Keeping in mind the aforementioned principles of law, this

court proposes to look to the judgment which is impugned

before this Court. It appears to this Court that in the

impugned judgment, learned trial Court has elaborately

discussed the pros and cons of the evidence of the

prosecution witnesses and while coming to his conclusion,

the learned trial Court based his judgment on the following

reasons namely;

a) Inquest has been done prior to lodging of the FIR;

b) In the inquest report, there is no whisper about the involvement of the accused persons in the alleged crime;

c) The defacto complainant had given two ezahaars with the police;

d) There is unexplained inordinate delay in lodging the FIR;

e) The motive in committing the crime is not proved;

and

f) Suppression of material facts as came out from the oral evidence of P.W.10.

21. In order to arrive at a logical conclusion as to whether the

learned trial Court is at all justified in raising the points as

discussed supra in its proper perspective, this Court

considers that for effective adjudication of the instant

revisional application, some relevant parts of the evidence of

P.W. 7 (autopsy surgeon) are required to be looked into and

those are quoted hereinbelow in verbatim:

"After examination I found the following injuries on the deadbody of Sandip Manna:

1) 1" x 1.5" abbression over left temporal region of head

2) ½" x ½" abbression over medial aspect of right eyebrow.

This is the copy of Post Mortem Examination Report duly prepared by me and signed by me. This is the copy of the Post Mortem Examination Report. The said report is marked Exbt. 4.

***** ******* ********* ******* ******** ******** *** My opinion regarding death was kept reserved till receipt of F.S.L. report.

***** ******** ********* *********** ************ *** After examination of the viscera expert has opined that no poison could be detected in the viscera said to be Sandip Manna."

22. In his cross-examination the said P.W. 7 categorically stated

the following:

"Heart failure may be the cause of death of the patient".

23. In view of the evidence as adduced by P.W. 7 and as

discussed supra this Court finds that learned trial court is

very much justified in coming to a conclusion that before

him the prosecution has miserably failed to prove the actual

cause of death of the deceased.

24. Admittedly, P.W.s 1, 2, 3 and 4 being the family members of

the deceased in their respective evidence have testified the

alleged role of the present opposite parties in the alleged

crime.

25. However, as rightly pointed out by Mr. Basu it appears to

this Court from the evidence of P.W. 14 (I.O.) that out of the

said witnesses P.W.s 2, 5 and 10 in their respective

examinations under Section 161 Cr.P.C. did not narrate the

events as stated by them in their evidence.

26. This Court finds sufficient force in the submission of Mr.

Basu, learned advocate for the opposite parties that

admittedly the omissions as noticed from the evidence of

P.W. 14 (I.O.) are material omissions tantamounts to

material contradiction within the meaning of proviso of

Section 162 Cr.P.C. read with Section 145 Cr.P.C. which

the learned trial court rightly noticed and construed.

27. Though Mr. Sinha, learned advocate for the State contended

that the alleged physical assault by dangerous weapon by

the present opposite parties upon the person of the

deceased has been duly proved from the evidence of P.W.

10. This Court is of the considered view that the evidence

of P.W. 10 cannot be considered as sacrosanct in view of the

various lacunas as noticed by the learned trial court in his

judgment as has been discussed hereinabove point wise.

28. Admittedly, on the part of the prosecution there was no

explanation as to why the first ezahaar of P.W. 1 was not

considered as FIR. There was inordinate delay of three days

in lodging the FIR which remain absolutely unexplained. It

has also not been explained properly why at the time of

inquest none of the prosecution witnesses mentioned in the

name of the accused persons. This Court is well aware that

an inquest report is not a substantive piece of evidence but

the absence of the names of the accused persons in the

inquest report really raises a shadow of doubt with regard

to the actual involvement of the present opposite parties in

the alleged crime.

29. It appears to this Court that the present revisionist before

this Court has miserably failed to prove any miscarriage of

justice in course of Sessions Trial before the learned trial

court. This Court also noticed that learned trial court

assess the evidence of the prosecution evidence both oral

and documentary in its proper perspective and thus, this

Court holds that there is practically no scope to interfere

with the impugned judgment.

30. The instant revisional application being CRR 1334 of 2006

is devoid of any merit and is thus dismissed.

31. Department is directed to send down the TCR along with a

copy of this judgment to the learned trial court forthwith.

32. Department is further directed to forward a copy of this

judgment to the Secretary, Calcutta High Court Legal

Services Committee who on receipt of the same shall

disburse the admissible amount of honorarium to Ms.

Jonaki Saha, learned advocate who has been appointed by

this Court to argue on behalf of the revisionist.

33. The Secretary, Calcutta High Court Legal Services

Committee is further requested to pay the admissible

amount of honorarium to Ms. Jonaki Saha preferably before

the ensuing Puja Vacation of 2024.

34. Urgent photostat certified copies of this order, if applied for,

be supplied to the parties upon compliance with all the

necessary formalities.

(Partha Sarathi Sen, J.)