In an appeal against an order of acquittal, the view favorable to the accused should be adopted if two views are possible on the evidence. The presumption of innocence of the accused is paramount.

JUDGMENT

Partha Sarathi Sen, J. - The present appeal at the instance of the State arises out of a judgement and order of acquittal dated 18.06.1988 passed by Learned Additional Sessions Judge, 3rd Court, Howrah, in S.T. case no. XXI (July)1987 (arising out of Howrah GRPS Case No. 32 dated 27.02.1983).

2. By the impugned judgement the learned trial court found the accused (respondent herein) not guilty under Section 307 IPC and thus acquitted him under Section 235(1) of the Code of Criminal Procedure.

3. The State felt aggrieved with the impugned judgement dated 18.06.1988 and thus preferred the instant appeal.

4. It is pertinent to mention herein that in spite of several orders as passed by this Court the whereabouts of the respondent could not be ascertained by the appellant authority and accordingly the presence of the respondent Maheswar Jadav could not be ensured in this appeal and thus this appeal was heard in absence of the respondent.

5. In order to dispose of the instant appeal fairly and effectively the facts leading to the initiation of ST Case No. XXI (July) 1987 against the respondent is to be dealt with in a nut shell.

6. On 27.02.1983, one Bhagaban Pandey, son of Ramdeo Pandey of 13,S.D Mukherjee Lane, Rishra , P.S Serampore, Dist. Hooghly, lodged an oral complaint with the Officer-in-Charge of Howrah GRPS Police Station to the effect that on the said fateful day at about 2:00 p.m he along with one Narad Pandey remained seated on a bench before the sweetmeat shop of one Domen Saa. It was his further version that at that time two persons arrived at that place and out of those two persons; one Maheswar Jadav (the respondent herein) took out a Bhojali and assaulted the said Narad Pandey on his neck by the said weapon. It is his further version that he tried to resist the said assailant as a result whereof he sustained injuries over the rings of his left and right hands. It has been stated by the de facto complainant further that immediately thereafter the assailant and his associate fled away from the P.O and at that time blood was profusely oozing out from the neck of the victim. He further stated that thereafter he took the victim to the P.S. In his statement he further mentioned that though he knows the name of assailant Maheswar Jadav and could recognize him later on but he cannot identify the associates of the original assailant. It has been further stated by the de-facto complainant that besides him two or three other persons witnessed the incident.

7. The aforesaid oral version of the de-facto complainant was reduced into writing and thereafter the aforesaid PS Case was started followed by investigation. On completion of the investigation charge sheet was submitted under Sections 326/307/34 IPC. Learned SDGM, Howrah, found that the case is triable by the Court of Sessions and accordingly by his order dated 03.08.1987 committed the case record to the learned Sessions Judge, Howrah, from where the case record was transferred to the learned Trial Court for trial and disposal.

8. Lower Court Record reveals that by an order dated 09.01.1988, learned trial court framed charges against the accused under Section 307 IPC and since the accused pleaded his innocence, the trial as against the present respondent before the Learned Trial Court proceeded. Lower Court Record reveals further that in order to bring home the charges against the accused the prosecution has examined seven witnesses in all and some documents have been exhibited on behalf of the prosecution. Lower Court Records reveals further learned trial court after scrutinizing the evidence of the prosecution witnesses; both oral and documentary and also after examining the accused under Section 313 of the Code of Criminal Procedure found the present respondent not guilty and thus acquitted him from the said case giving rise to the instant appeal at the instance of the State.

9. In support of the instant appeal, learned advocate for the appellant/State at the very outs