Syamal Kanti Chakrabarti, J. - (1.) THE present revisional application under Section 401/482 Cr.P.C. is directed against the order of judgement and acquittal dated 25.11.2009 passed by Learned Metropolitan Magistrate, 6th Court, Calcutta in connection with the T.R. Case No. 716 of 2000 arising out of G.R. Case No. 896 of 1999 in connection with Burrabazar P.S. Case No. 418 of 1999 dated 24.11.1999 under Sections 323/504/506 of the Indian Penal Code.
(2.) THE petitioner/complainant contends that a complaint was lodged against accused/O.P. No. 2 before the Additional Chief Metropolitan Magistrate, Calcutta under Section 323/352/355/ 427/504/506(ii) IPC on the allegation that the accused intentionally put off the main switch of the electricity of the complainant/petitioner at his tenanted premises at 44, Battala Street on 10.07.1999. When he protested against such wrongful act, the accused without any provocation abused him in filthy languages and slapped him with the intention to cause willful dishonour to his life and reputation as an income tax practitioner. THE complaint was forwarded under Section 156(3) Cr.P.C. and after due investigation chargesheet was submitted and the case was ultimately transferred to the file of Learned Metropolitan Magistrate, 6th Court, Calcutta for trial. Learned Magistrate, however, acquitted the accused by order dated 25.11.2009 of the charges under Section 323/504/506 IPC. Being aggrieved by and dissatisfied with such findings the present revisional application has been filed containing inter alia that the Learned Court below has lost sight of medical documents produced by the complainant/petitioner to corroborate the allegation of causing voluntary heart by the accused petitioner. Moreover, the Learned Magistrate has also failed to consider the testimony of two independent witnesses namely P.W. 2 and P.W. 3 who have fully corroborated the prosecution story. Therefore, such order of acquittal is bad in law and liable to be set aside. Learned lawyer for accused O.P. No. 2 has, however, opposed the move and contended that there are sufficient contradictions in the testimony of the prosecution witnesses for which the Learned Court below has rightly bestowed the benefit of doubt upon the accused and there is no illegality or impropriety in the impugned findings which can be interfered with in this revisional application. Learned Lawyer for the petitioner on the contrary has further contended that the Learned Trial Court has omitted to consider the material evidence on record in its proper perspective and the discrepancy as regards time, place and action, if any, have been reconciled by the accused himself in answer to question No. 3 put to the accused in course of his examination under Section 313 Cr.P.C.. He has relied upon the principle laid down in 1998 SCC Criminal 1587 and 1982 Criminal 471 IPC in support of his contention. Learned Lawyer for the O.P. No. 2 on the contrary has further contended that there are several contradictions in the prosecution evidence, for example : - (a) In initial deposition of the witnesses there is no whisper regarding presence of the eye witnesses at the time of alleged assault. (b) It is alleged that the accused landlord himself disconnected the electricity and evidence on record will show that the height of the meter installed in the premises was 8 ft. above the ground level and as such it is impossible for a man to remove such meter without any ladder. (c) In the petition of complaint there is no whisper about presence of electric mistri or removal of the meter by such electric mistri which is an afterthought introduced in the oral testimony of PWs making the prosecution story untrustworthy. Learned Trial Court considered all those anomalies and contradictions and acquitted accused and rightly acquitted accused which should not be interfered with. He has relied upon the principles laid down in AIR 1979 SC 133, 2007(13) SCC 12 and 2007(13) SCC 180 in support of his contention.
(3.) FROM the impugned judgement under review it appears that the Learned Trial Court has disbelieved the testimony of the prosecution witnesses on the following grounds : - (a) That the complainant neither in the petition of complaint nor in his testimony has disclosed the time of occurrence or specific place where the alleged occurrence took place. (b) P.W. 2 is an employee and P.W. 3 is a client of complainant P.W. 1. Both P.W. 2 and P.W. 3 have claimed the time of occurrence at 04.15 P.M. over which P.W. 1 remained silent. (c) P.W. 2 denied presence of P.W. 3 at the alleged scene of occurrence while P.W. 3 denied presence of P.W. 2 at the scene of occurrence and thus contradicting each other. (d) The complainant P.W. 1 in his petition of complaint spoke of abuse and threat given by the accused but in course of his examination only complained of a slap. (e) The contending parties being landlord and tenant are on inimical terms and they have long pending civil suit against each other. From the LCR I find that four witnesses have been examined by the prosecution but the Learned Trial Court examined the accused under Section 313 Cr.P.C. by putting only seven questions of which relates to the testimony of P.Ws 1, 2 and 3 regarding the place of occurrence and nature of assault regarding the date and time of occurrence and the assault but no question was put to the accused regarding the documentary evidence adduced by the prosecution which are marked are exhibit 1, series 2 and exhibit 3. It appears that from exhibit 2 series that the complainant was treated at Marwari Relief Society Hospital on 10.07.1999 on grounds of blunt trauma to left eye. He has not put question only made against the accused appearing from the testimony by the 4 P.W.s. It is the duty of the Learned Trial Court to put question to the accused on each and every distinct allegation made by the prosecution witnesses against the accused and reasonable opportunities should be given to the accused to explain such specific allegation made against him by the prosecution witnesses. Failure to do so will lead to miscarriage and denial of complete justice and from this point of view I find that the impugned findings of the Learned Trial Court suffers from serious infirmity.;