ASHIMA DEY Vs. ABHIJIT DEY

JUDGEMENT

(1.) The Judgment of the Court was as follows : De facto complainant Smt. Ashima Dey has preferred the instant revisional application against an order of acquittal dated 10.1.2003 passed by the learned Sub-Divisional Judicial Magistrate (in short SDJM), Howrah in G.R. Case No. 867 of 1996 arising out of Shibpur Police Station Case No. 86 dated 16.5.96 under Section 325 of I.PC.

(2.) Mr. Utpal Kanti Mondal, learned Advocate for the petitioner contended that the de facto complainant lodged the FIR on the basis of which Shibpur P.S. Case No. 86 dated 16.5.1996 under Section 326/34 of Indian Penal Code (in short I.PC.) was started against the accused opposite parties 1 and 2 and after completing investigation charge-sheet under Section 325/34 of I.P.C. was submitted against the accused persons. In the trial that followed thereafter in the Court of learned SDJM, five witnesses were examined on behalf of prosecution including P.W.I Smt. Ashima Dey and P.W.5 her husband Animesh Dey. These two witnesses are the injured persons of the case and their ocular testimony was well corroborated by medical evidence of P.W. 2 Dr. Rabin Manna, a private practitioner and P.W.4 Dr. Harasit Kar, a Medical Officer of Howrah General Hospital. P.W. 3 Japan Kumar Dutta is the Sub-inspector of police and the investigating Officer (I.O.) of the case. Evidence of P.W.1 revealed that on 16.5.96 the accused persons were assaulting her husband with lathi' and iron rod and when she tried to save her husband she was also assaulted and she sustained injury on forehead and right wrist. There was fracture on her right writs. They came to the police station at about 7.30 A.M. to lodge the information but, were advised by the police officer to go to hospital for treatment. Accordingly after treatment at Howrah General Hospital by P.W.4, they again came back to P.S. and lodged the FIR. Evidence of P.W.4 establishes injuries caused by blunt weapon both on the person of P.W.I and on her husband. P.W.4 opined that there was fracture right forearm and colles' fracture to be confirmed by X-Ray and at that time there was no X-Ray plates at hospital. So she was examined by private doctor P.W.2 and X-Ray done by RW.2 revealed there was colles' fracture of the right radius. In spite of such convincing testimony of the injured persons which were corroborated by medical evidence and injury reports the learned Magistrate acquitted the accused persons which amounted to miscarriage of justice.

(3.) Referring the decisions namely Sansi Lal & Ors. v. Laxman Singh. reported in AIR 1986 SC 1721 : 1986 C Cr LR (SC) 132. Vilas Pandurang Patil v. State of Maharashtra, reported in (2004)6 SCC 158 and State of Rajasthan v. Laxman Singh & Ors., reported in (2002)10 SCC 65 Mr. Mondal contended that scope of this Court in a revisional application against order of acquittal is limited no doubt, still the failure of the learned Magistrate to consider the ocular evidence and evidence of medical exports and the medical reports resulted into miscarriage of justice and the judgment and order of the learned Magistrate is so illegal that it has become perverse. There was no ground of delay in FIR still the learned Magistrate held that there was no explanation for the delay in lodging the FIR. The learned Magistrate also acted illegally by placing reliance on some minor discrepancies as vital, though in fact, the said discrepancies ought to have been ignored. Accordingly, the order of acquittal should be set aside.