NASSIR ALI Vs. MOHAMMED ALI KHAN

JUDGEMENT

(1.) THE O.P. No.1 accused Md. Alikhan, was convicted by the Judicial Magistrate, Ghatal, under section 406 of the I.P.C. and sentenced to pay a fine of Rs. 1000/- and in default to suffer S.I. for 4 months. THE learned Magistrate further directed for return of the seized alamat to P.W. 1 and to pay Rs. 52 1/- to P.W. 3 by way of compensation out of the fine money if realised.

(2.) AN appeal was preferred against that order of conviction and sentence of the learned Magistrate, to the learned Sessions Judge. The learned Additional Sessions Judge, 6th Court, Midnapore, heard the appeal. On a consideration of the evidence on record, the learned Additional Sessions Judge concluded that the accused was entitled to the benefit of doubt. So holding, the learned Additional Sessions Judge acquitted the accused of the charge under section 406 of the I.P.C. Against that order of the learned Additional Sessions Judge this revisional application has been filed. Mr. Tapandeb Nandi, the learned advocate appearing for the petitioner has taken me through the various parts in evidence to demonstrate that the conclusion of the learned Additional Sessions Judge was wrong. He has not referred to any specific breach or any law. In short, Mr. Nandi wanted this court to reappraise evidence. Mr. Samir Chatterjee, the learned advocate appearing for the State has contended that this Court cannot interfere with this matter as the finding of fact recorded by the learned Additional Sessions Judge cannot be disturbed. At the very outset it may be pointed out that this revisional application suffers from some intrinsic infirmity. It has already been observed that the learned Additional Sessions Judge has recorded a finding of acquittal against the accused C.P. No.1. Now under subsection (3) of Section 401 of the Cr. P.C., nothing in that section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. Thus, it is plain that an this revisional application, I cannot record finding of conviction, reversing the finding of the learned Additional Sessions Judge of acquittal. Mr. Nandi appearing for the petitioner has contended that in any case this court's power to send back the case on remand for retrial is not fettered. Thus stated, the proposition is correct. If it is found that there is any flagrant breach of any provision of law the case can be sent back to the court below for rectifying that legal error and for proceeding according to law. But this case concerns findings of fact merely. It has already been observed that no breach of any specific law has been referred to by the learned advocate for the petitioner. If the case be sent back to the lower Court it must be for some purpose and for a certain direction. This court, disturbing the finding of the court below cannot merely send back the case for duplicating another judgment; or it cannot send back the case for recording a finding of conviction; for that would involve a finding of conviction by this Court. Therefore, considering the nature of this case I think there is no scope for sending back the case. Although this court would not go to reappraise evidence, some parts in the evidence may be referred to for ascertaining whether the judgment of the court below is founded on no evidence, whether there was omission on the part of the court below to consider material pieces of evidence, which caused miscarriage of justice. Of the witnesses examined for the prosecution, P.W. 1 it is complainant himself. It is expected he should support his version in the F.I.R. Still, it is noticeable that the version of P.W. 1 in court is not corresponding to the version in the F.I.R. P.W. 1 has referred to a negotiation for the sale of the bullock to the accused. The F.I.R. makes out a clear case of entrustment simplicits the F.I.R. can undoubtedly be used against the maker of the same. Then the learned Additional Sessions Judge has taken note of long delay in lodging the F.I.R. This is also a factor for considering whether the witnesses examined are to be believed or not. In course of evidence no explanation has been offered as to the delay, although in the F.I.R. there is reference to some settlement by village negotiation. Therefore P.W. 1 in court has not supported the version in the F.I.R. and the delay is not explained by substantive evidence. P.W. 2 merely corroborates P.W. 1. P.W. 3 is the man to whom the bullock is said to have been sold subsequently. Apart from that there is not much significance in the evidence of P.W. 3. P.W. 4 speaks, of an effort for amicable settlement of the dispute. It is a true that the learned Additional Sessions Judge has overlooked that. But the main feature of the evidence has been considered and on that basis the learned Additional Sessions Judge came to a finding that a accused was not guilty. It is a matter of belief or disbelief. That being the sole question of fact, this court by reappraising evidence cannot interfere. I find that there is no ground for interference. The Revisional application fails and it is dismissed. The rule is discharged.