- (1.) This is a Government appeal filed by State of West Bengal under Section 378 sub-section 2 of the Code of Criminal Procedure against the judgment and order of acquittal passed by Sri B. K. Lala, Additional Sessions Judge, South 24-Parganas, Alipore in Sessions Trial No. 7(1) of 1978 whereby the learned Additional Sessions Judge acquitted the accused/respondents from the charge under Sections148/149/307 I.P.C. Since none appears on behalf of the State or on behalf of the appellant, we requested Mr. Subir Ganguly, learned State Panel Lawyer to appear on behalf of the State/appellant and sought the Assistance of Sri Jaydeep Biswas, learned Advocate as Amicus Curiae and with their assistance we have considered the materials-on- record and evidence and we proceeded to dispose of appeal accordingly.
(2.) The case of the appellant prosecution in short, is that on 8.05.77 at about 1 p.m. the de facto complainant Asit Parui and his other brothers namely Pravash and Netai were sowing seeds on their land at Ramkrishnapur. THEre was a long standing dispute over the right and title of this land between the de facto complainant and his brothers on one side and the accused/respondents on the other. As a result, many a litigations were pending. On 18.05.77 the complainant and his brothers were sowing seeds, the accused/respondents being equipped with deadly weapons like lathi, iron rod, dagger, spear etc. entered into the disputed land and assaulted Asit and his brothers Pravash and Netai who sustained bleeding injury. THE petition of complaint was lodged. THEreafter, investigation was held and charge-sheet was submitted and after considering the materials-on-record of this case, the charge was framed under Sections 148/149 I.P.C. against the accused/respondents and the charge read over and explained to them to which they did not plead guilty and claimed to be tried. Prosecution examined 13 witnesses and the accused persons were examined under Section 313 of Cr.P.C. Two witnesses were adduced on behalf of the accused/respondent. After having heard and perused the materials-on-record the learned Trial Court passed judgment whereby learned Trial Court acquitted the accused persons from the charge framed under Sections 148/149 I.P.C. Aggrieved by and dissatisfied with the judgment and order of acquittal passed by learned Trial Court the State has preferred this appeal being the appellant. This appeal has been contested by the accused persons as respondents. Now, the points of consolidation before this Court are whether the judgment and order passed by the learned Trial Court suffers from illegality, perversity and misconception of facts and law. At the very outset it may be mentioned that this Court has power under Section 386 of the Cr.P.C. to reappreciate the evidences already recorded and to consider the points of facts and law. Mr. Subir Ganguly, learned Advocate for the State/appellant has submitted that the evidences of prosecution are sufficient to convict the respondent/accused. But trial Court failed to appreciate the evidence on merit. On the other hand, Mr. Jaydeep Biswas learned Amicus Curiae has submitted that evidences of prosecution are not sufficient and strong to convict the respondents. In view of the fact that there was enmity between both sides in the matter of landed property and the complainant and his brothers attacked the accused/respondents whereby latter made counter-attack in response to self-defence or private defence. Learned Amicus Curiae has further submitted that learned Trial Court was justified acquitting the accused/ respondents from the charge framed against them.
(3.) We have carefully heard the submissions of both sides and perused the evidences on record and considered. It is thus wise to scrutinize the evidence of de facto complainant and his brothers and other witnesses. From the evidence of P.W.1 Asit Parui it appears that Bhupen Parui filed one partition suit in respect of the disputed land against the father of this P.W.1. This statement is forthcoming from the examination in chief of P.W.1. In his cross-examination he has clearly stated that he is an accused in the counter case where the accused/ respondent, Vivekananda Parui is the de facto complainant. He does not deny whether accused Vivekananda allegedly complained that he (Vivek) and other accused Amal Parui, Sanjib Parui and Ashim Mal were assaulted by the de facto complainant and his brothers. He has admitted in his cross-examination that his brother Provash and Netai have been made accused in that case. He has suppressed the fact that the present accused persons are the witnesses in that case. Similarly, this witness cannot remember the nature of paddy seeds. He denies the suggestion in the cross-examination that there was a mutual arrangement whereby the sons of Amulyababu possessed the disputed land and on the date of occurrence, Vivek or his brother-in-law Ashim Mal or Sanjib or Amal were uprooting grass from the disputed land. He has also denied that he and his brother assaulted the accused/respondent on the date of incident and thereby caused injury to them. Similarly, P.W.2 Netai has stated that the accused persons in order to grab the land, assaulted them in order to dispossess them from the disputed land. He did not tell the I.O. about the Khatian number and Plot number of the disputed land. From the evidence of P.W.1 and P.W.2 it is evident that the accused persons were uprooting grass from the disputed land and the de facto complainant and his brothers assaulted them first and thereafter counter-attack started by the accused/ respondent towards self-defence or private defence.;