Calcutta High Court (Appellete Side)
Bappa Ghosh @ Sujan Ghosh Dastidar vs State Of West Bengal & Anr on 17 January, 2025
17.01.2025
Sl. No.: 8 & 9
Court No.30
BM
CRR 26 of 2023
+
IA No.: CRAN 5 of 2024
Bappa Ghosh @ Sujan Ghosh Dastidar
Vs.
State of West Bengal & Anr.
With
CRR 24 of 2023
+
IA No.: CRAN 2 of 2024
+
IA No.: CRAN 5 of 2024
Joy Ghosh @ Sagnik Ghosh Dastidar
Vs.
State of West Bengal & Anr.
Mr. Naba Kumar Das
Mr. Arindam Banerjee
... for the petitioner(in CRR 26 of 2023)
Mr. Naba Kumar Das
Mr. Debayan Roy Chowdhury
... for the petitioner(in CRR 24 of 2023)
Mr. Suman De
Ms. Sonali Das
... for the State(in CRR 26 of 2023)
Mr. Rudradipta Nandy
Ms. Sonali Das
... for the State(in CRR 24 of 2023)
1.
The present revisional application has been preferred praying
for quashing of the proceedings being GR 2343 of 2019 arising out
of Manicktala Police Station case No.280 of 2019 dated September
04, 2019 under Sections 448/506/34 of the Indian Penal Code,
1860 pending before the learned 2nd Judicial Magistrate, Sealdah,
24 Parganas (South).
2. It appears from the written complaint that the parties are
adjacent neighbours and had certain dispute on the date of
incident that is 2.9.2019 at about 1 PM. It is alleged that the
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petitioners herein abused the complainant in filthy language being
in a drunken condition and also attempted to hit the complainant
with iron rod.
3. The case diary has been produced by the State, which
contains no medical papers.
4. The petitioner in CRR 24 of 2023 being Joy Ghosh @ Sagnik
Ghosh Dastidar has relied upon the attendance sheet of the School
being St. James School where he is engaged as a regular Teacher.
5. The daily attendance report of the school dated 2nd
September, 2019 shows that the petitioner Sagnik Ghosh Dastidar
attended School at 7:32 A.M. and left the School at 14:19
hours. The document has also been annexed at page 20 of the case
diary.
6. Learned counsel for the State submits that there are
statements in the case diary which support the allegation of the
petitioner herein.
7. The other petitioner namely Bappa Ghosh @ Sujan Ghosh
Dastidar is the brother of Sagnik Ghosh Dastidar and has a
business at Posta.
8. The present case has been registered two days after the
incident in this case and has been initiated for offence punishable
under Section 448/506/34 of the Indian Penal Code.
9. According to Section 11 of the Indian Evidence Act,
1872, facts that are not otherwise relevant become relevant,
when they:-
i) Are incompatible with any fact in issue or any relevant
fact.
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ii) Independently or together with other facts make the
existence or lack of any fact in issue or relevant fact
highly probable or improbable.
iii) As per Section 103 of the Evidence Act, 1872, the burden
of proof as to any particular fact will be upon the party
desiring the Court to believe in its existence except as
otherwise provided by any law that the proof thereof shall
lie upon a particular person.
iv) To prove an ‘Alibi’, it requires presenting evidence to
demonstrate that the accused was elsewhere during the
commission of the offence, thereby creating reasonable
doubt challenging the prosecution’s case.
10. The Supreme Court in Kamal Prasad & Ors. vs The
State of Madhya Pradesh (Now State of Chhattisgarh), in
Criminal Appeal No. 1578 of 2012, on 10th October, 2023,
held:-
“18. Another defence taken by the convict-appellants is
that of the plea of alibi. This Court in Binay Kumar
Singh v. State of Bihar, (1997) 1 SCC 283, has noted
the principle as:
“23. The Latin word alibi means “elsewhere” and that
word is used for convenience when an accused takes
recourse to a defence line that when the occurrence took
place he was so far away from the place of occurrence
that it is extremely improbable that he would have
participated in the crime.”
19. The principles regarding the plea of alibi, as
can be appreciated from the various decisions7 of
this Court, are:-
19.1 It is not part of the General Exceptions under the
IPC and is instead a rule of evidence under Section 11 of
the Indian Evidence Act, 1872.
19.2 This plea being taken does not lessen the burden of
the prosecution to prove that the accused was present at
the scene of the crime and had participated therein.
419.3 Such plea is only to be considered subsequent to
the prosecution having discharged, satisfactorily, its
burden.
19.4 The burden to establish the plea is on the person
taking such a plea. The same must be achieved by
leading cogent and satisfactory evidence.19.5 It is required to be proved with certainty so as to
completely exclude the possibility of the presence of the
accused at the spot of the crime. In other words, a
standard of „strict scrutiny‟ is required when such a plea
is taken.
21. In our considered view, both these defence
witnesses do not conclusively establish the plea of alibi,
based on the principle of preponderance of probability as
their statements stand unsupported by any other
corroborative evidence.
22. We find that for the plea of alibi to be
established, something other than a mere ocular
statement ought to have been present.”
11. The Latin word ‘alibi’ means elsewhere. When a
defendant claims a plea of alibi, they are essentially stating that
they were elsewhere at the time of the crime.
i) Plea of alibi can be raised only if the person proves that
he was present at a place, far and distant and beyond any
accessibility to the place of offence.
ii) The burden is on the accused and strict proof is required
for establishing the plea of alibi.
iii) An alibi defence contains three key components:-
At the time or place of the crime, the defendant was
absent.
No opportunity that was reasonable for the
defendant to commit the crime had presented itself;
and
5 By other means, the crime could not have been
committed by the defendant.
iv) Thus, for a successful alibi, the defendant’s lawyer must
show evidence that the client was not present at the specific
place of crime, at the time when the offence occurred.
12. In the present case, the petitioner Joy Ghosh @
Sagnik Ghosh Dastidar has produced convincing and
sufficient proof that he was not present at the place of
crime as alleged. School attendance sheet shows he was
present in school at the date and time of incident.
13. Thus the petitioner Joy Ghosh @ Sagnik Ghosh
Dastidar has been successful in prima facie proving his Alibi
and also by way of evidence beyond all reasonable doubt.
14. The allegations against the petitioners herein has not
been even prima facie present in the materials on record
including the case diary and as such the implication of the
petitioners in the present case is clearly an abuse of the process
of law and is thus liable to be quashed in the interest of Justice.
15. CRR 26 of 2023 with CRR 24 of 2023 are allowed.
16. The proceedings being GR 2343 of 2019 arising out of
Manicktala Police Station case No.280 of 2019 dated September
04, 2019 under Sections 448/506/34 of the Indian Penal Code,
1860 pending before the learned 2nd Judicial Magistrate,
Sealdah, 24 Parganas (South), is hereby quashed in respect of
the petitioners namely Bappa Ghosh @ Sujan Ghosh
Dastidar and Joy Ghosh @ Sagnik Ghosh Dastidar.
17. All connected applications, if any, stand disposed of.
18. Interim order, if any, stands vacated.
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19. Copy of this Order be sent to the learned Trial Court for
necessary compliance.
20. Urgent certified website copy of this Order, if applied for,
be supplied expeditiously after complying with all, necessary
legal formalities.
( Shampa Dutt (Paul), J. )
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