- (1.) This is an appeal against acquittal as preferred by the complainant of C.R. Case No. 318 of 1996 as against the judgment of acquittal passed by the learned Additional Sessions Judge, Jalpaiguri wherein the said court was pleased to reverse the order of conviction dated 29-06-2001 as passed by the Chief Judicial Magistrate, Jalpaiguri in that C.R. Case. The judgement of acquittal passed by the learned Additional Sessions Judge, 1st Court is dated 2nd February, 2006.
(2.) The fact relevant for the purpose of decision of this appeal can be stated in brief thus :- That the United Bank of India, Dam dim Branch directed the complainant and the witness No.1 to appear in the bank in order to receive the loan amount and accordingly the complainant and witness No.1 Subhash Pal appeared in the said branch on 05.08.1996, the bank directly made payment of Rs.6,000/- only to the witness No.1 and deposited Rs.2,000/- only as fixed deposit in the name of the complainant and handed over its paper to him and cash of Rs.500 was also disbursed to the complainant by the said bank. It was further case of the complainant that the accused demanded gratification of Rs.220 from the complainant again and again but the complainant refused and a quarrel started and all on a sudden the accused snatched away Rs.6000/- from the witness No.1 and also papers relating to the loan account and the said accused also snatched away Rs.500/- from the complainant and thereafter the accused left the place.
(3.) The complainant/appellant took up the matter with the Mal Police Station but no action was taken against the accused and as such, the complaint was filed. Before the learned trial court, the complainant in order to establish the guilt of the accused examined six witnesses besides documentary evidence. The witnesses were complainant himself as P.W.1, Subhash Pal as P.W.2, Bikash Roy as P.W.3, Haradhan Barua as P.W.4, Parbati Bhushan Bose as P.W.5 and Suren Bhagat as P.W.6. The documentary evidence relied upon by the complainant before the trial court was marked as Exts. 1 to 7. All were regarding that loan matter. The defence did not adduce any oral or documentary evidence but denied the entire incident. I have already stated that the then Chief Judicial Magistrate convicted the accused in respect of the charge punishable under Section 379 of the Indian Penal Code but the said was reversed by the learned Sessions Judge, Jalpaiguri on the grounds :- 1) that evidence of P.W.6 did not support the prosecution case, 2) that as P.W.5 was not produced before the learned trial court for crossexamination after charge, the learned trial court erred in relying on the evidence of that witness, 3) that there was delay in filing of the FIR and lastly 4) that the examination of the accused under Section 313 Cr.P.C. was not proper. Ms. Mitra, learned Advocate, appeared for the complainant. Mr. Chattopadhyay, learned Advocate, appeared for the respondent no. 2 but none appeared for the State. Ms. Mitra, learned Advocate, appearing on behalf of the complainant took me to the evidence on record. She mainly banked upon the evidence of P.W.1 and P.W.2, i.e. the complainant and the co-victim respectively. She submitted that practically there was no delay in lodging of the FIR even though the incident took place on 05-08-1996 and the complaint was filed on 18-10-1996. She attributed this delay on the police agency and the dilatory tactics played by P.W.6 who was a member of the said Panchayet Samity and admittedly this accused was not Upa-Pradhan of the said Gram Panchayet concerned. She further submitted that by taking me to 313 examination of the accused to show that the accused was not at all prejudiced by this. It was submitted by Mr. Chattopadhyay, learned Advocate, appearing on behalf of the respondent no. 2 that P.W.3 and P.W.5 were not produced for cross-examination after charge and he also took me to the examination sheet recorded by the Magistrate under Section 313 Cr.P.C. to show that so many vital questions were not put to the accused and it was not the question of prejudice but it is a case of defective examination under Section 313 Cr.P.C. He further submitted by taking me to the evidence of P.W.4 that the evidence of this man is hearsay in nature as admitted by him in crossexamination where he deposed "I did not see the money snatched away from Subhash Pal and Naren Sarkar. I learnt it from them". As regards the delay, Mr. Chattopadhyay submitted that the delay was not at all explained in the complaint and each day's delay in lodging the complaint ought to have been explained by the complainant in the complaint. He further agitated that in the complaint there is no reference on which date the complainant approached the police station or when he was refused by the Officer-in-charge of that police station, why the matter was not taken up to the other high-up as prescribed under Section 156 Cr.P.C. He further submitted that the evidence of P.W.1 and P.W.2 cannot secure conviction in favour of the accused persons, particularly when both of them are alleged victims of this case and naturally they are interested witnesses. I have gone through the evidence on record. Admittedly, P.W.1 and P.W.2 are interested witnesses and their evidence can only be relied upon if some other persons come to corroborate him. I am not of the view that any interested witness must be disbelieved and the court should not remain with a preconceived notion that every interested witness is to be disbelieved. My finding is that the interested witnesses may be relied upon but their evidence is to be taken with a grain of salt and must be assessed with due caution.;