IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

APPELLATE SIDE

PRESENT:

THE HON’BLE JUSTICE UDAY KUMAR

CRR 3581 OF 2017

ANIL BARUI

-VS-

STATE OF WEST BENGAL AND ANR.

For the Petitioners : Mr. Soumik Ganguly

Ms. Rajnandini Das

For the State : Mr. Ramashis Mukherjee

Mr. Neel Chakraborty

Reserved on : 28.08.2026

Pronounced on : 18.09.2026

UDAY KUMAR, J.: –

1. The administration of criminal justice rests upon the immutable

bedrock that suspicion, howsoever grave, can never be permitted to

take the place of legal proof. When a criminal prosecution is initiated in

an atmosphere saturated with pre-existing animosity, marked by an

unexplained and inordinate delay in setting the investigative machinery

in motion, and riddled with structural defects that compromise the

integrity of qualitative evidence, the courts are duty-bound to pierce the

veil of concurrent findings.

2. The instant revisional application brings to the fore the delicate but

vital exercise of judicial review, demanding an analytical scrutiny of

2

CRR 3581 OF 2017

whether a conviction under Section 323 of the Indian Penal Code, 1860,

can survive when the foundational pillars of the prosecution case are

hollowed out by delay, alternative medical etiologies (referring to

plausible, non-criminal medical explanations for an injury rather than

the specific assault alleged), and perfunctory investigation.

3. The factual matrix unfurls from an incident alleged to have taken place

on May 9, 2008, at around 3:00 PM. According to the prosecution case,

the opposite party no. 2, Prasanta Barui (the injured-complainant / PW

1), was proceeding toward Beliatore riding his motorcycle, accompanied

by Dhiren Roy (PW 2). En-route near Markha village, the petitioner, Anil

Barui, allegedly intercepted the motorcycle, forced the victim to alight,

and assaulted him on the head, neck, and left hand with a lathi (stick),

causing severe trauma and unconsciousness. The injured was initially

shifted to Beliatore Primary Health Centre and subsequently referred in

a critical condition to Govindanagar Hospital, Bankura, where

treatment was rendered, X-rays were advised, and he was discharged

after a few days.

4. Despite the gravity of the alleged assault, the local police took no

immediate cognizance upon verbal reporting. Consequently, after an

unexplained lapse of weeks, a complaint was allegedly sent by

registered post to the Superintendent of Police, Bankura, on May 30,

2008, followed by a formal petition filed under Section 156(3) CrPC

before the learned Chief Judicial Magistrate, Bankura. This belated and

defective petition ultimately culminated in the registration of Beliatore

Police Station Case No. 22 of 2008 on August 15, 2008, under Sections

3

CRR 3581 OF 2017

323/324/326 of the Indian Penal Code, setting into motion a judicial

process that suffered from profound structural and procedural

infirmities.

5. Upon completion of the investigation, the Investigating Officer

submitted a chargesheet under Section 326 IPC. During the ensuing

trial in T.R. No. 469T of 2008 before the learned Judicial Magistrate,

6th Court, Bankura, the prosecution examined thirteen witnesses to

substantiate its case, while the defence examined none, relying instead

on effective cross-examination to impeach the prosecution's narrative.

The learned Judicial Magistrate, by judgment dated August 30, 2011,

acquitted the petitioner of the major charge under Section 326 IPC but

convicted him under Section 323 IPC, sentencing him to three months'

rigorous imprisonment with a set-off provision under Section 428 of the

Code of Criminal Procedure.

6. Feeling aggrieved by and dissatisfied with the judgment of the trial

court, the petitioner preferred an appeal before the Sessions Court,

Bankura, registered as Criminal Appeal No. 36 of 2011. The appeal was

heard by the learned Additional Sessions Judge, 2nd Court, Bankura,

who affirmed the conviction and sentence of the petitioner vide

judgment dated August 29, 2017, holding that the trial court rightly

exercised discretion to convict the petitioner under the lesser offence of

Section 323 of the Indian Penal Code.

7. Being anguished by the concurrent failure of both courts below to

appreciate the totality of the facts, the glaring statutory non-

compliances, the unexamined witness testimonies, and the alternative

4

CRR 3581 OF 2017

medical etiology, the petitioner has approached this Court under its

revisional jurisdiction invoking Section 401 read with Section 482 of the

Code of Criminal Procedure, 1973, seeking the setting aside of the

impugned appellate and trial court judgments.

8. Assailing these concurrent judgments of conviction and sentence, Mr.

Soumik Ganguly, learned counsel appearing on behalf of the petitioner,

launched a comprehensive, multifaceted attack, contending that the

entire criminal proceeding is inherently defective and tainted,

structurally defective, and legally non-est.

9. He commenced his submissions by focusing on the glaring, unexplained

inordinate delay that affected the very inception of the prosecution case

adversely inasmuch as the alleged incident though occurred on May 9,

2008, but the criminal machinery was set in motion through a Section

156(3) CrPC petition of complaint that culminated in an FIR registered

only on August 15, 2008, more than three months later, thus creating

an irresistible inference of afterthought and false implication arising

from a long-standing, bitter dispute over land between the families.

10. Learned counsel pointed out that while the complainant vaguely asserts

that an approach was made to file a complaint at the local police station

and failing thus, a registered post enclosing the complaint was

dispatched to the Superintendent of Police on May 30, 2008, however

no such postal receipt or complaint copy was ever produced or

exhibited during trial. Crucially, the prior compliance of mandatory

statutory prerequisites under Section 154(1) and Section 154(3) CrPC

were entirely avoided here. When this monumental and unexplained

5

CRR 3581 OF 2017

delay is viewed against the backdrop of an admitted, long-standing, and

bitter land dispute between the two families, Mr. Ganguly forcefully

submitted that the prosecution story stands unmasked as a belated

afterthought, a fabricated concoction designed purely to settle civil

scores out of deep-seated malice.

11. Expanding his challenge to the core evidentiary fabric, Mr. Ganguly

turned upon the monumental procedural illegality surrounding the

examination of most important witnesses, notably PW 2, Dhiren Roy,

projected by the prosecution as an indispensable eyewitness and the

co-rider on the victim's motorcycle at the exact time of the alleged

interception.

12. PW 2 (projected as an eyewitness and co-rider) made a surprise

appearance directly in the witness box during trial, candidly admitting

under cross-examination that he was never interrogated, examined, or

questioned by the Investigating Officer during the statutory

investigation phase. Mr. Ganguly vehemently submitted that

introducing PW2 for the first time at trial without any prior police

statement under Section 161 CrPC strikes at the very heart of a fair

trial. It robs the defence of its invaluable statutory right under Section

162 CrPC to confront the witness with previous omissions and

contradictions, thereby rendering his deposition legally inadmissible

and entirely untrustworthy. In the same vein, he assailed the testimony

of PW 3, the complainant's wife (claimed to be an eyewitness), pointing

out that she was not a rider on the motorcycle and could only have

arrived at the spot post-occurrence upon hearing a hue and cry,

6

CRR 3581 OF 2017

making her claim of witnessing the actual assault inherently impossible

and self-contradictory. In respect of the other key witnesses, such as

PW 6 and PW 10, he submitted that they were either interrogated solely

prior to the formal registration of the FIR months later or were mere

hearsay arrivals, leaving the substantive ocular account of the incident

entirely unsupported by credible, tested testimony.

13. Proceeding to the medical and other material aspects of the case,

learned counsel for the petitioner underscores the fatal vacuum in the

prosecution's scientific and physical evidence. The primary injury

report, exhibited through the medical officer PW 8, is astonishingly

blank and devoid of any classification regarding the nature, gravity, or

depth of the hurt, failing completely to establish whether the alleged

injury was simple or grievous. Compounding this, the primary weapon

of offence, the lathi or stick allegedly used to inflict brutal fractures,

was never recovered, seized, or produced by the police throughout the

entire course of the investigation. Most decisively, Mr. Ganguly has

drawn our specific attention to the candid admission of the treating

doctor, PW 13, who explicitly conceded during cross-examination that

the injuries found on the victim's arms could equally and plausibly be

sustained by a person falling down from a running motorcycle onto a

hard road surface. This unrefuted medical alternative, coupled with the

objective physical evidence of the motorcycle lying right beside the

unconscious victim as deposed by PW 4, successfully establishes a

strong alternative medical etiology that the prosecution miserably failed

to exclude.

7

CRR 3581 OF 2017

14. To anchor these formidable propositions in binding legal authority, Mr.

Ganguly placed reliance upon authoritative pronouncements of the

Hon'ble Apex Court, including Darshan Singh v. State of Punjab [(2024)

3 SCC 164], K.A. Kotarappa Reddy & Anr. v. Rayara Manjunatha Reddy

alias N.R. Manjunatha & Ors. [(2016) 14 SCC 729], and Rajesh Patel v.

State of Jharkhand [(2013) 13 SCC 791]. He submitted that these

landmark rulings cement the principle that an unexplained delay in

lodging FIR coupled with previous land-related enmity, un-investigated

surprise witnesses introduced without Section 161 statements, blank

medical reports, and unrecovered weapons must deal a death blow to a

criminal prosecution.

15. He concluded his submissions by asserting that the courts below

committed grave perversity by attempting to bridge the chasms in the

prosecution's case and shifting the burden of proof onto the defence.

Suspicion, howsoever strong, can never be permitted to usurp the place

of legal proof, and because the foundational narrative of the prosecution

has completely collapsed under the weight of its own contradictions and

statutory violations, Mr. Ganguly prayed for the absolute setting aside

of the concurrent convictions and sentences and the honourable

acquittal of the petitioner.

16. Mr. Ramashis Mukherjee assisted by Neel Chakraborty, learned Public

Prosecutor-in-Charge appearing on behalf of the State, opened his

submissions by stoutly defending the concurrent findings of guilt

returned by both the trial court and the first appellate court,

maintaining that the conviction under Section 323 of the Indian Penal

8

CRR 3581 OF 2017

Code is firmly rooted in reliable ocular and medical evidence. He

contended at the very outset that the core testimony of the injured

complainant, Prasanta Barui (PW 1), remains steadfast, consistent, and

completely unshaken through a rigorous and extensive cross-

examination. PW 1 has categorically and graphically described how his

motorcycle was intercepted near Markha village by the petitioner Anil

Barui, who dragged him down and inflicted severe blows with a lathi on

his head, neck, and left hand, rendering him unconscious. Mr.

Mukherjee submitted that the testimony of an injured witness carries a

special and premium weight in criminal jurisprudence, as their

presence at the scene of the crime is natural and stamped with inherent

truthfulness, since an injured person would rarely spare the actual

assailant and falsely implicate an innocent party.

17. Addressing the contention regarding the delay in lodging the formal

First Information Report, Mr. Mukherjee submitted that the delay

stands fully explained when viewed through the desperate

circumstances faced by the family. Immediately following the brutal

assault, the victim's wife and villagers rushed to the spot, and the

victim was promptly shifted to Beliatore Primary Health Centre and

subsequently referred in a critical, semi-conscious condition to

Govindanagar Hospital, Bankura. The primary concern of the family at

that critical juncture was naturally the preservation of human life and

emergency medical treatment of the victim/complainant rather than

rushing to a police station. Furthermore, when the local police at

Beliatore declined to take immediate action, a registered post enclosing

9

CRR 3581 OF 2017

the complaint was dispatched to the Superintendent of Police on May

30, 2008, followed ultimately by a statutory petition of complaint under

Section 156(3) of the Code of Criminal Procedure filed before the Chief

Judicial Magistrate, Bankura. Mr. Mukherjee argued that any laches or

omissions on the part of the investigating machinery, including the

failure of the Investigating Officer as PW 12 to formally verify the

veracity of the allegation as to whether prior to the registration of the

formal FIR, the complainant had dispatched a registered post enclosing

the complaint, or for his failure to enquire into the reason for delay in

lodging the FIR, cannot be permitted to invalidate a genuine

prosecution case or prejudice the suffering victim.

18. In response to the challenge of the petitioner concerning the medical

evidence, the learned Public Prosecutor urged that the testimonies of

the examining medical officers, Dr. Swapan Ghosh as PW 8 and Dr.

C.N. Banerjee as PW 13, corroborated by Exhibit 2(series) and Exhibit

5(series), conclusively establish that the victim sustained bodily injuries

and underwent prolonged medical treatment. He submitted that the

alternative theory of a motorcycle accident suggested by the defence

based on the position of the bike on the ground following the incident is

a mere afterthought conjured up during cross-examination, completely

devoid of any foundational support in the substantive defence evidence,

during the cross-examination of the victim, or in the statement of the

accused recorded under Section 313 of the Code of Criminal Procedure.

The concurrent factual finding by both trial and first appellate courts

that the injuries sustained by the complainant/victim were inflicted by

10

CRR 3581 OF 2017

manual assault rather than vehicular transit is based on a sound

appreciation of record and warrants no interference in revisional

jurisdiction.

19. Placing heavy reliance upon the recent pronouncement of the Apex

Court in Edakkandi Dineshan alias P. Dineshan & Ors. v. State of Kerala

[(2025) 3 SCC 273], the learned counsel for the State contended that

minor omissions, procedural lags, or defects in investigation do not

ensure to the benefit of the accused to secure an outright acquittal, and

that concurrent independent findings against the petitioner regarding

minor hurt under Section 323 of the Indian Penal Code warrant no

revisional interference. He submitted that these landmark authorities

reiterate the settled propositions that minor discrepancies or procedural

lapses by the investigating agency do not vitiate a trial where ocular

testimony is cogent, that the testimony of an injured witness stands on

a higher pedestal and requires formidable reasons to be discarded, and

that revisional courts under Section 401 ought not to interfere with

concurrent findings of fact unless there is a glaring perversity or gross

miscarriage of justice. Concluding his submissions, Mr. Mukherjee

asserted that no such perversity exists in the present case, and he

accordingly prays for the outright dismissal of the revisional application

and the affirmation of the conviction and sentence awarded to the

petitioner.

20. Having heard the learned counsel for the contesting parties and upon a

meticulous perusal of the trial court and the first appellate court

11

CRR 3581 OF 2017

records, the questions for determination that fall for consideration

before this Court are:

Firstly, Whether the unexplained inordinate delay of over three

months in registering the First Information Report, coupled with

an admitted, long-standing, and bitter land enmity between the

parties, renders the prosecution case a belated afterthought and

a product of false implication;

Secondly, Whether the substantive reliance placed upon the

testimony of PW 2 (Dhiren Roy), who admittedly was never

examined or interrogated by the Investigating Officer during the

statutory investigation, violates Section 162 of the Code of

Criminal Procedure and severely prejudices the defence by

depriving it of the right of contradiction;

Thirdly, Whether the prosecution successfully established the

essential ingredients of the offence and excluded the plausible

alternative medical etiology, conceded by the treating doctors,

that the injuries could have been sustained due to a fall from a

running motorcycle onto a hard surface, particularly when the

primary weapon of offence (lathi) was never recovered or seized;

and

Fourthly, Whether both the trial and appellate courts

committed a grave error in law by shifting the burden of proof

12

CRR 3581 OF 2017

onto the defence to cure the fundamental lacunae and

structural collapse of the prosecution case.

21. Addressing the first and foremost question that strikes at the very root

of the prosecution's edifice, I must examine whether the unexplained,

inordinate delay of over three months in setting the criminal machinery

into motion, when viewed against the backdrop of an unverified

preliminary grievance and a complete absence of contemporaneous

postal proof, shatters the credibility of the prosecution's foundational

narrative.

22. Indubitably, the record reveals that though the alleged incident took

place on May 9, 2008, but the formal First Information Report giving

rise to Beliatore Police Station Case No. 22 of 2008 was registered only

on August 15, 2008, pursuant to a belated petition of complaint filed

under Section 156(3) of the Code of Criminal Procedure. To overcome

this glaring temporal chasm, the prosecution set up an explanatory

story asserting that the victim's wife initially approached the local police

station and that, upon their inaction, a registered post enclosing the

complaint was subsequently dispatched to the Superintendent of Police,

Bankura, on May 30, 2008, invoking the statutory mechanism under

Section 154(3) of the Code of Criminal Procedure, 1973 (corresponding

to Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023).

Under sub-section (1) of Section 154, every information relating to the

commission of a cognizable offence must be reduced to writing, and

sub-section (3) provides that if local police fail or refuse to register it,

the substance of such information may be sent in writing, by post, to

13

CRR 3581 OF 2017

the Superintendent of Police. However, a meticulous scanning of the

evidence discloses a total vacuum: neither the postal receipt, nor the

tracking report, nor a copy of the said dispatch of the said complaint

was ever produced, proved, or exhibited during the trial by the

prosecution to substantiate this statutory plea.

23. Turning to the evidentiary records of the trial, it is incumbent to revisit

the specific admissions made by the Investigating Officer, PW 12

(Prabodh Kr. Pal), during his cross-examination. PW 12 candidly

admitted that "he did not investigate on this score during investigation

to ascertain whether prior to filing of the complaint under Section

156(3) of the Cr.P.C., a complaint was lodged about the incident to

Beliatore PS or whether a copy of complaint was sent to the S.P.,

Bankura."

24. It is a well-settled principle of criminal jurisprudence, as authoritatively

enunciated by the Hon'ble Apex Court in Thulia Kali v. State of Tamil

Nadu, [(1972) 3 SCC 393], that a prompt and early lodging of a First

Information Report is an essential safeguard that provides an

assurance regarding the truth of the prosecution case and upon delay

being noticed, the court is duty-bound to cast a suspicious eye on the

entire prosecution case to see if such delay has been craftily used to

introduce false implication. The Hon’ble Supreme Court, in Paragraph

12 of the report has observed:

"12. … The object of insisting upon prompt lodging of the report to

the police in respect of commission of an offence is to obtain early

information regarding the circumstances in which the crime was

committed, the names of the actual culprits and the part played

14

CRR 3581 OF 2017

by them as well as the names of eyewitnesses present at the

scene of occurrence. Delay in lodging the first information report

quite often results in embellishment which is a creature of

afterthought. On account of delay, the report not only gets bereft

of the advantage of spontaneity, danger creeps in of the

introduction of coloured version, exaggerated account or concocted

story as a result of deliberation and consultation. It is, therefore,

essential that the delay in the lodging of the first information

report should be satisfactorily explained."

25. The same has been authoritatively reiterated by the Hon'ble Supreme

Court in Darshan Singh (supra) and K.A. Kotarappa Reddy (supra) that

prompt lodging of an FIR serves as an invaluable safeguard to ensure

the authenticity of the prosecution's initial version and shields it from

subsequent deliberations, embellishments, or malicious concoctions.

When an inordinate delay remains completely unexplained and is

compounded by admitted, long-standing land disputes revealing deep-

seated malice and enmity between the parties, the shadow of false

implication looms large. The Hon’ble Supreme Court, in K.A. Kotarappa

Reddy, has illuminatingly observed that an unexplained, inordinate

delay in setting the criminal machinery in motion, particularly when

viewed in the light of pre-existing civil and land disputes between the

parties, casts a grave shadow of doubt on the veracity of the

prosecution case, rendering it unsafe to base a conviction thereon.

26. In a criminal trial, an unexplained delay in lodging the FIR is not a

mere technicality; it strikes at the genesis of the prosecution story,

transforming a genuine grievance, if any, into a belated, fabricated

afterthought designed to settle civil scores. When there is an

15

CRR 3581 OF 2017

unconscionable and unexplained delay in setting the law in motion, the

report loses its vital stamp of spontaneity, opening the door wide for

embellishment, tutoring, and the fabrication of a coloured version

without requiring any immediate structural cross-reference to separate

disputes.

27. The learned trial court attempted to negotiate this hurdle by relying

upon general provisions of law, notably citing authorities to the effect

that delay in lodging an FIR is not fatal per se unless it is coupled with

demonstrable concoction, and that the court must scrutinize the

evidence with caution. The trial court observed that notwithstanding

the delay between the occurrence of the incident on May 9, 2008, and

the eventual registration of the said FIR on August 15, 2008, the ocular

testimony of the injured complainant could bridge the gap.

28. When the matter travelled in appeal, the first appellate court sought to

gloss over this fatal lacuna through a deeply flawed line of reasoning. In

its impugned judgment dated August 29, 2017, while dealing with this

precise issue, the first appellate court recorded the following finding:

"...from the complaint petition u/s 156(3) (Ext. 1) filed by the de

facto complainant, it is found that the de facto

complainant/injured (PW 1) categorically mentioned that his wife

filed complaint about the incident to Beliatore PS and he sent the

said complaint to the S.P., Bankura, by registered post on

30.05.2008, but here, it is surprising and painful to note that the

I.O./PW 12, Prabodh Kr. Pal did not hold inquiry over this aspect.

It was his fault, and due to his said fault, the prosecution case

cannot be washed out. In such circumstances, I am not inclined to

accept the argument of the ld. Advocate for appellant/convict that

16

CRR 3581 OF 2017

the prosecution has failed to explain the delay in lodging the

complaint, rather I am of considered view that the prosecution

has explained the delay in filing complaint properly."

29. Conceding that the Investigating Officer (PW 12) completely failed to

investigate whether any prior complaint via registered post was sent to

the Superintendent of Police, the appellate court labelled it as a "fault of

the I.O." but held in the same breath that "due to his said fault, the

prosecution case cannot be washed out," thereby concluding that the

prosecution had explained the delay without any positive/affirmative

finding in this regard. With utmost respect to the learned judge of the

first appellate court, such reasoning turns the foundational tenets of

criminal law completely on their head. Under Sections 101, 102, and

103 of the Indian Evidence Act, 1872, the burden to explain an

abnormal and suspicious delay in lodging an FIR, rests squarely on the

shoulders of the prosecution. It is never for the defence to

prove/disprove an unverified oral assertion, nor is it open to a court to

convert an investigating officer's absolute failure into a successful

explanation by the prosecution. By brushing aside an unverified three-

month delay and shifting the blame entirely onto a negligent

Investigating Officer, both trial and first appellate courts converted

suspicion into proof and bridged the prosecution's glaring lacunae by

judicial fiat.

30. When a three-month delay in lodging the FIR remains entirely

unexplained by objective proof, and when contemporaneous postal

trails to higher authorities are neither exhibited nor verified by the

17

CRR 3581 OF 2017

police, the entire substratum of the prosecution case becomes highly

untrustworthy. The first appellate court's attempt to salvage the

conviction by treating the I.O.'s failure as a mere irregularity that

cannot wash out the prosecution case amounts to perverse appreciation

of evidence. Consequently, I have no hesitation in holding that the

unexplained inordinate delay of over three months, operating in tandem

with an un-investigated and unproven preliminary grievance, renders

the prosecution case a belated afterthought. This first question is

accordingly answered in the affirmative in favour of the petitioner,

leading to the inescapable conclusion that the judgments of conviction

and sentence passed by the courts below cannot be sustained on this

ground.

31. Turning to the second point for determination, I must evaluate whether

the substantive reliance placed by the trial and appellate courts upon

the testimony of PW 2 (Dhiren Roy), who admittedly was never

examined, questioned, or interrogated by the Investigating Officer

during the statutory investigation, violates Section 162 of the Code of

Criminal Procedure, 1973 (corresponding to Section 181 of the

Bharatiya Nagarik Suraksha Sanhita, 2023) and severely prejudices the

defence by depriving it of the valuable right of contradiction.

32. Indubitably, a rigorous scrutiny of the deposition of Dhiren Roy (PW 2),

whom the prosecution projected as a star eyewitness and the co-rider

on the victim's motorcycle at the exact moment of the alleged

interception, reveals an astonishing admission during his cross-

examination. PW 2 candidly confessed that he was never interrogated,

18

CRR 3581 OF 2017

questioned, or examined by the Investigating Officer during the entire

course of the police investigation. His name and version of the alleged

incident were completely absent from the police case diary. Despite this

glaring omission, both the trial court and the first appellate court

utilized his unverified testimony as a primary pillar to corroborate the

ocular account of the assault.

33. Under the statutory framework of the Code of Criminal Procedure,

particularly Sections 161 and 162, the statement of a witness recorded

by a police officer during investigation serves a vital and indispensable

purpose. Sub-section (1) of Section 162 explicitly mandates that no

statement made by any person to a police officer in the course of an

investigation shall, if reduced to writing, be signed by the person

making it, nor shall any such statement or any record thereof be used

for any purpose at any inquiry or trial in respect of any offence under

investigation at the time when such statement was made, save and

except that when any witness is called for the prosecution in such

inquiry or trial, any part of his statement may be used by the accused,

and with the permission of the Court, by the prosecution, to contradict

such witness in the manner provided by Section 145 of the Indian

Evidence Act, 1872(corresponding to Section 148 of the Bhartiya

Sakshya Adhiniyam, 2023).

34. This statutory framework provides the defence with the absolute and

invaluable tool of contradiction, enabling accused persons to test the

veracity, consistency, and reliability of prosecution witnesses by

confronting them with previous omissions, improvements, or variances

19

CRR 3581 OF 2017

when they appear in the witness box. When a witness is introduced

directly at trial without having been examined by the investigating

agency during the statutory investigation period, it amounts to a

surprise production that strikes at the very root of a fair trial. The trial

court failed to undertake any legal analysis regarding the relevancy and

admissibility of such un-investigated evidence, merely brushing aside

the defect as a routine or common procedural lapse that loses

significance once the victim's injury is proved. When the matter reached

the first appellate court, this grave illegality was similarly glossed over,

treating the total absence of a pre-trial police statement as a minor

irregularity attributable entirely to the Investigating Officer's negligence,

reasoning that an omission or default by the police cannot wash out an

otherwise credible ocular narrative.

35. This approach represents a fundamental inversion of criminal

jurisprudence. In classic pronouncements such as Ram Lakhan Singh

& Ors. v. State of Uttar Pradesh [(1977) 3 SCC 268], the Hon’ble

Supreme Court specifically scrutinized the practice of bringing forward

witnesses at trial who had never been questioned or examined by the

police during the investigation, observing how such a practice deeply

compromises the safety of a conviction:

"4. …. Only three inmates, PWs 1 to 3, an inimical neighbour (PW

4) and a witness (PW 5), out of the hundred who gathered and

who had not even been examined by the police during the

investigation, are before us to testify to the guilt of the four

assailants….

20

CRR 3581 OF 2017

5. A perusal of the High Court judgment shows that it was more

confined to the proof of the crime than to a close scrutiny about

the complicity of the accused……

26. …. we find that the appreciation of the evidence against the

accused is replete with infirmities pointed out above affecting the

very quality of appreciation….. This Court will not deny protection

under Article 136 of the Constitution when there is a pervading

sense of judicial unsafety in relying upon the evidence for the

purpose of conviction.

38. … we are unable to affirm the conviction …..and to hold that

the prosecution has established the charges against the accused

beyond reasonable doubt….."

36. Similarly, the Hon'ble Supreme Court in Ram Bali v. State of Uttar

Pradesh, [(2004) 10 SCC 598] underscored that the foundational

objective of recording police statements under the statutory provisions

is to ensure that the accused is made fully aware of the case and the

material witnesses against him, avoiding any element of surprise or

concoction at the trial stage. The observation of the Apex Court, in

Paragraph 5 of the report, is thus:

"5. … As there is perversity in appreciation and want of care and

caution required for examining truthfulness of related witnesses'

version, both the trial court's and the High Court's judgment

become vulnerable. Though the presence of several others has

been accepted, no reason has been given for their non-

examination."

37. From a legal and logical standpoint, examining a co-rider witness in

court without his earlier statement recorded by the police under Section

161 CrPC is severely detrimental to the fairness of a criminal trial.

Under Section 162 of the Code of Criminal Procedure, 1973, the

21

CRR 3581 OF 2017

previous statement of a witness recorded by the police is a valuable

statutory tool in the hands of the defence to elicit contradictions,

omissions, and improvements, thereby testing the veracity of the

witness. The legal principle governing this aspect is firmly rooted in the

pronouncement of the Supreme Court in Rajesh Patel v. State of

Jharkhand [(2013) 3 SCC 791], wherein it was held that material

witnesses introduced without prior police interrogation render their trial

depositions legally fragile and unsafe for reliance.

38. On this specific question, this Court finds that the evidence of PW 2 is

legally impermissible to the extent that it seeks to introduce unverified,

surprise ocular assertions that bypass statutory scrutiny, and the

resulting omission or variance is exceptionally material. When a

material witness, especially one claimed to be an immediate co-rider

present at the exact spot of occurrence is introduced for the first time

directly during trial without any prior police interrogation or recorded

statement, the accused/defence is completely deprived of this statutory

right of contradiction. Such a defect is material and fatal in nature, as it

converts trial testimony into an unverified, untestable assertion.

Furthermore, the testimony of PW 3 (the wife) is equally unbelievable;

she was not a rider on the motorcycle and could not possibly have

witnessed the occurrence from the spot as she arrived post-occurrence

after hearing a hue and cry, rendering her claim of witnessing the

assault legally worthless.

39. The first appellate court committed a patent illegality by sweeping this

fundamental statutory violation under the rug, treating the total

22

CRR 3581 OF 2017

absence of police examination of the PW 2 as a minor irregularity rather

than a fatal structural flaw. A conviction cannot be lawfully anchored

on the un-investigated testimony of a surprise witness whose version

was never subjected to the rigors of pre-trial police scrutiny.

Accordingly, the second point for determination is answered in the

affirmative in favour of the petitioner: the substantive reliance on the

un-investigated testimony of PW 2 violates Section 162 CrPC and

vitiates the foundational integrity of the prosecution case, entitling the

petitioner to succeed on this count as well.

40. Now, I proceed to examine the third question, as to whether the

prosecution successfully established the essential ingredients of the

offence and excluded the plausible alternative medical etiology

conceded by the treating doctors, namely, that the injuries could have

been sustained due to a fall from a running motorcycle onto a hard

surface, particularly when the primary weapon of offence, the lathi, was

never recovered or seized.

41. The petitioner, Anil Barui, stands convicted under Section 323 of the

Indian Penal Code, 1860. The essential ingredients of this offence

require the prosecution to prove that the accused voluntarily caused

‘hurt’, which is legally defined under Section 319 IPC as causing bodily

pain, disease, or infirmity to any person through a conscious, unlawful

act, coupled with the requisite criminal intent or knowledge.

42. A meticulous examination of the evidentiary record reveals a total

vacuum in the scientific and physical proofs adduced by the

prosecution. The primary injury report, exhibited through Dr. Swapan

23

CRR 3581 OF 2017

Ghosh (PW 8), is astonishingly blank and devoid of any medical

classification regarding the nature, gravity, or depth of the alleged hurt,

failing completely to establish the fundamental ingredients of simple

hurt under Section 319 of the IPC to attract the offence under Section

323 of the Indian Penal Code. Compounding this foundational lacuna,

the primary weapon of offence, the lathi or stick allegedly wielded by the

petitioner to inflict injuries on the complainant/victim, was never

recovered, seized, or produced by the police throughout the entire

course of the investigation, leaving a gaping hole in the physical chain

of evidence.

43. Faced with this total absence of physical and weapon proof, the learned

trial court adopted a shortcut by observing that in cases of simple

injury, the exact role of the injury report and the evidence of the doctor

are not essentially material since simple hurt does not require severe

physical trauma, thereby convicting the petitioner under Section 323

instead of Section 326 IPC. When the matter travelled in appeal, the

first appellate court attempted to bridge the chasm by recording a

definitive finding:

“I have already held in my foregoing observation that Prasanta

Barui did not sustain injury due to fall down from his

motorcycle... In evidence Prasanta Barui, PW 1 has categorically

stated that when he was going from his house on a motorcycle

through road and reached at Marka village, accused detained him

and suddenly assaulted him on his head, neck and left hand

with lathi, as a result, he sustained injury and became

unconscious. The evidence of PW 2 Dhiren Roy, PW 3 Sudha rani

Barui, PW 4 Dhananjoy Barui, PW 6 Sushil De and PW 7 Gopal

24

CRR 3581 OF 2017

Koley reflects that they had been at the spot just after the

incident and found Prasanta lying on the ground in senseless

condition having injury... Evidence of PW 8 Dr.Swapan Ghosh

and PW 13 Dr. C.N. Banerjee coupled with Ext 2 (Injury report)

and Ext 5 clearly supported the prosecution case... Thus, I am

inclined to hold that the evidence of PW 1 is true, consistent and

trustworthy being supported by the other witnesses as to his

sustaining injury due to assault inflicted by the accused and

accordingly, his evidence is accepted.”

44. Upon a careful appraisal of the matter, I am unable to subscribe to this

conclusion of the appellate court, as it completely disregards the

unrefuted medical testimony on record. Most decisively, the medical

testimony itself introduces an alternative hypothesis that cuts right

through the prosecution's narrative. Dr. C.N. Banerjee (PW 13), the

treating doctor who examined the victim, candidly conceded during

cross-examination that the injuries found on the victim's arms could

equally and plausibly be sustained by a person falling down from a

running motorcycle onto a hard road surface. This medical concession

finds direct corroboration in the objective physical testimony of

Dhananjoy Barui (PW 4), who deposed that upon arriving at the spot,

he found the injured Prasanta lying on the ground in a senseless

condition with his motorcycle lying right beside him.

45. It is a cardinal principle of criminal jurisprudence, as repeatedly

affirmed by the Hon'ble Supreme Court in landmark authorities such as

Mahabir Singh v. State of Haryana, [(2001) 7 SCC 148] and State of

Punjab v. Bhajan Singh & Ors., [(1975) 4 SCC 472], that where the

direct ocular testimony is rendered highly vulnerable and improbable by

25

CRR 3581 OF 2017

the medical evidence, which points patently to an accidental origin of

injuries rather than an assault by heavy weapons, and where the

primary weapon of assault has neither been recovered nor linked to the

crime, it is unsafe to rest a conviction on such shaky foundations.

Where the failure of the prosecution to eliminate a plausible alternative

accidental cause leaves an unbridgeable chasm in the chain of

circumstances, the benefit of the doubt must unhesitatingly go to the

accused.

46. Thus, I conclude that both the trial and first appellate courts committed

grave perversity by brushing aside this vital medical alternative and

attempting to cure the missing weapon seizure and blank injury reports

by shifting the burden of proof onto the defence, while accepting ocular

testimony that ignored the physical reality of the motorcycle accident.

Suspicion can never take the place of legal proof, and because the

prosecution miserably failed to establish the foundational medical and

physical ingredients of the assault while leaving a plausible accidental

etiology wide open, this question is also answered in the negative in

favour of the petitioner, demonstrating that the conviction cannot stand

on this score either.

47. Addressing the final question for determination, this Court must

consider whether both the trial court and the appellate court committed

a grave error in law by improperly shifting the burden of proof onto the

defence in an unconstitutional attempt to cure the fundamental

lacunae and structural collapse of the prosecution case.

26

CRR 3581 OF 2017

48. A holistic review of the judgments rendered by both trial and first

appellate courts reveals a recurring, fatal methodological flaw: whenever

confronted with gaping holes in the prosecution's case, such as the

unverified three-month delay in lodging the First Information Report,

the total absence of seizure of the weapon of offence (lathi), the blank

medical injury reports, and the un-investigated status of pivotal

witnesses, both of the courts turned their analytical lens not toward the

absolute strength of the prosecution's evidence, but toward what the

defence failed to disprove. Specifically, both the trial court and the

appellate court faulted the petitioner for not affirmatively establishing

the alternative motorcycle accident theory during his examination

under Section 313 of the Code of Criminal Procedure, 1973, and for

failing to disprove the unproven oral assertions regarding the postal

dispatch of a preliminary complaint to the Superintendent of Police.

49. This venture goes diametrically opposite to the cardinal and

unshakeable tenets of criminal jurisprudence. Under Sections 101, 102,

and 103 of the Indian Evidence Act, 1872, the bedrock principle of

criminal law enshrined in the presumption of innocence dictates that

the burden of proving every single ingredient of the charge beyond a

reasonable doubt rests squarely and exclusively on the prosecution

from the first mile to the last. The prosecution must stand on its own

legs and can never derive any strength from the perceived weaknesses,

omissions, or explanations or lack thereof of the defence.

50. As the Hon'ble Supreme Court has repeatedly affirmed in landmark

pronouncements such as Rang Bahadur Singh & Ors. v. State of Uttar

27

CRR 3581 OF 2017

Pradesh, [(2000) 3 SCC 454] and Sujit Biswas v. State of West Bengal,

[(2013) 12 SCC 406], suspicion, no matter how grave, and conjecture,

no matter how appealing, can never take the place of legal proof. When

the foundational pillars of a prosecution viz. prompt reporting, reliable

ocular testimony, corroborative medical science, and physical recovery

of weapon scrumble under judicial scrutiny, the courts cannot invent

rationalizations to rescue a failing case or demand that the accused

establish his innocence. By improperly shifting the burden of proof onto

the defence to bridge the chasms left by a perfunctory investigation and

a deeply flawed prosecution, both trial and first appellate courts

committed patent perversity and a gross miscarriage of justice.

51. In resisting the revisional application, the State placed heavy reliance

upon the recent judgment of the Supreme Court in Edakkandi

Dineshan (supra), contending that minor contradictions do not destroy a

prosecution case, that the maxim falsus in uno, falsus in omnibus does

not apply in India, and that defects in investigation should not enure to

the benefit of the accused. However, a careful analysis reveals that the

ratio in Edakkandi Dineshan is clearly distinguishable and has no

application to the facts of the present case. In Dineshan, the Supreme

Court upheld convictions because the prosecution case was otherwise

supported by clinching, unimpeachable, and sterling eyewitness

testimony, corroborated by positive medical evidence and the recovery

of weapons. By contrast, in the instant case before this Court, there is a

total absence of clinching evidence: the weapon (lathi) is missing, the

medical report is blank regarding the nature of injuries sustained by

28

CRR 3581 OF 2017

the complainant/victim, the core eyewitness (PW 2) was never examined

by the police during investigation, the other eyewitness (PW 3) was

physically absent from the spot at the time of occurrence rendering her

eyewitness testimony legally worthless, and the delay of over three

months remains entirely unexplained amidst deep-seated land enmity

between the parties. When the foundational pillars of a prosecution

case are completely hollowed out, the exposition of law laid down in

Edakkandi Dineshan (supra) cannot come to the rescue of the

prosecution to salvage a perfunctory and speculative conviction.

52. In criminal jurisprudence, where doubts are substantial and

foundational pillars of the prosecution are broken, the benefit must

unequivocally be extended to the petitioner.

53. Accordingly, this fourth question is also answered in the affirmative in

favour of the petitioner. Both the trial and the first appellate courts

committed a grave error in law by improperly shifting the burden of

proof onto the defence to establish his innocence.

54. The cumulative weight of these structural failures demonstrates that

the judgments rendered by the Trial and First Appellate Courts are

suffering from patent perversity, misreading of evidence, and flagrant

disregard of binding statutory provisions and judicial precedents. The

conviction of the petitioner, in view of the aforesaid grounds, is legally

unsustainable.

55. The concurrent findings of guilt against the petitioner under Section

323 of the Indian Penal Code are patently perverse, and cannot be

permitted to stand.

29

CRR 3581 OF 2017

56. In view of my findings answering all the points for determination in

favour of the petitioner, the criminal revisional application succeeds.

C.R.R. 3581 of 2017 is allowed.

57. The impugned judgments and orders of conviction and sentence dated

August 29, 2017, passed against the petitioner by the learned

Additional Sessions Judge, 2nd Court, Bankura, in Criminal Appeal No.

36 of 2011, affirming the judgment dated August 30, 2011, passed by

the learned Judicial Magistrate, 6th Court, Bankura, in T.R. No. 469T

of 2008 (G.R. Case No. 534 of 2008), are hereby set aside.

58. The petitioner, Anil Barui, is acquitted of the charge under Section 323

of the Indian Penal Code, 1860, extending the benefit of doubt.

59. The petitioner is discharged from his bail bonds accordingly.

60. Interim order, if any, stands vacated.

61. There shall be no order as to costs.

62. Let a copy of this judgment along with the Trial Court and First

Appellate Court Records be transmitted down immediately to the Trial

and First Appellate Courts respectively for information and necessary

compliance.

63. Case diary, be returned to the Learned Counsel for the State.

64. Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(Uday Kumar, J.)