- (1.) This is a Government Appeal. It has been filed on behalf of the State of West Bengal and is directed against the Judgment and Order of Acquittal passed by Sri B.B. Chatterjee, the learned Additional Sessions Judge, Purulia in Sessions Trial No.5 of 1989. By the impugned Judgment and Order under appeal, the learned Additional Sessions Judge on 23.01.1989 in Sessions Trial No.5 of 1989 recorded an order of acquittal in favour of the Respondent No.1 in respect of the charge of Section 324 simpliciter. Whilst the other Respondents were absolved of the charge framed against them in respect of Sections 148/302/149 of the Indian Penal Code which also included the Respondent No.1.
(2.) A Division Bench of this Court on 2.8.1989 granted leave to the State of West Bengal to prefer an Appeal against such order of acquittal simply in respect of Respondent nos. 1, 2, 5 and 10. Consequently, when the Appeal was admitted by the same Division Bench on 8.8.1989 an order of rearrest and release on fresh Bail was directed in respect of the Respondent Nos. 1, 2, 5 and 10 and the leave in respect of the other Respondents was refused. Although either a conviction or an order of acquittal in an Appeal cannot be assailed in such a truncated fashion, as already the Division Bench had passed directions to that effect at the stage of hearing and that too after 20 years or more it would not be proper to go into the said issue. Since none appeared on behalf of either the State or the Respondents, although Office Report indicates that the concerned Respondent appeared, we requested Sri Mitra, the learned Panel Lawyer, to act as State Defence and sought the assistance of a young member of the Bar, Ms. Archita Sen, to assist us as amicus curiae. With their assistance we have considered the materials and evidence-on-record and proceeded to dispose of the Appeal accordingly. Sri Mitra, the learned State Defence, has taken us elaborately through the entire evidence-on-record. Sri Mitra has particularly pointed out from the evidence of P.Ws.1 and 2, who are the eye witnesses that the learned Trial Court erred in disbelieving their versions of the incident. Furthermore, Mr. Mitra was of the view that even though there was some discrepancy with regard to the earlier version of P.W.1 in his F.I.R, the evidence of P.W.2 who himself was an injured eye witness could not be disbelieved. According to Sri Mitra the evidence of P.Ws. 1, 2, 4 another brother of P.W.2 including the Investigating officerP.W.12 shows the presence of the present Respondents along with others at the place of occurrence. As such, the evidence with regard to the assault by the assembled group of persons on the deceased Katla Singh, which resulted in his death, should not have been by-passed by the learned Trial Court simply on the ground that there was a counter incident in which P.Ws.1, 2 and 4 were also accused. Sri Mitra further submitted that even though there may have been some discrepancies in the evidence, on the whole the prosecution was able to prove its case against all the Respondents and the order of acquittal was vulnerable and required interference. The learned amicus curiae, Ms. Archita Sen, assisted us in a very remarkable fashion and have read the entire evidence before us. She has supported the order of acquittal since she was of the view that the same could not be termed as neither perverse nor the result of any material contradiction which would render itself for being set aside in this Appeal. The learned amicus has also submitted that once the learned Trial Court has come to a particular finding and disbelieved the entire incident and has found that the death of Katla Singh could have been taken place in a manner other than the one which have been shown by the prosecution and as two views were possible on the basis of which the order of acquittal was recorded, it would not be proper to upset the same in Appeal particularly when the incident related to the year 1989. The learned amicus has also shown us the vital contradictions as in the evidence of the principal witnesses (P.Ws.1, 2 and P.W.4). She has pointed out therefrom that from the cross-examination of P.W.4, it can be clearly gathered that he was not present at the relevant time. As such his evidence was required to be quashed from the consideration entirely. She has further submitted since P.W.1 has departed from his earlier version in the F.I.R. where he had named all the accused persons but in Court he could not name them entirely and faultered which we have noticed from his evidence, his version was liable to be disbelieved which has rightly been done by the Trial Court.
(3.) She has referred to the evidence of P.W.2 in reply to the submission of Sri Mitra that as to why, even though he was an injured witness, his evidence should not be believed. Inviting our attention to the evidence of P.W.7, the Medical Officer of Purulia Sadar Hospital who stated that he could not give the exact decision with regard to the depth of the injury, learned amicus submitted that there was dispute with regard to the manner in which the Respondent No.1 had thrown the arrow causing injury on the person of P.W.2. Such being the position, she submitted that it would be unsafe to disturb the finding arrived at by the learned Trial Court in the absence of any patent illegality or any other such infirmity which would render the order of acquittal, as entirely bad in law.;