In cases of custodial torture, evidence should be considered with greater sensitivity and caution, but the primary facts must be believable and proven beyond a reasonable doubt.

1. This appeal against acquittal is directed against judgment and order dated 11.06.20134 passed by learned Judicial Magistrate First Class, Kamalpur in Case No. C.R.2761 of 2009.

2. Respondent No.1, Sri Paritosh Das, a Sub-Inspector of Police was charged for commission of offence punishable under Section 342/323 of IPC and by the impugned judgment and order he has been acquitted and hence, this appeal.

3. Heard learned counsel, Mr. P. Roy Barman for the appellant and learned senior counsel, Mr. S. Deb for the respondent No.1 and learned P.P., Mr. A. Ghosh for the State-respondent.

4. This is a case instituted on a complaint filed by the appellant directly before learned Sub-Divisional Judicial Magistrate, Kamalpur on 05.10.2009.

4.1. In a short compass the allegation made in the complaint is that on 31.08.2009 at about 02-30 pm, the complainant, Nishan Saha along with his two friends, namely, David Hrangkhal and Amit Nath riding a motorbike from Ambassa went to Dulubari and near Dulubari market in front of the Telephone Exchange they parked the motorbike by the roadside and were chatting sitting over it. At that time the accused Paritosh Das, a Sub-Inspector of Ambassa P.S. arrived there and asked them to accompany him to Ambassa P.S, to which they enquired about the reason, but the accused Paritosh Das did not give any answer and took them along with motorbike to Ambassa P.S. At P.S. after taking signatures in some papers, accused Paritosh Das let off David Hrangkhal and Amit Nath from P.S., but kept the complainant, Nishan Saha, detained at P.S. and put him in the lock-up. After a while accused Paritosh Das entered in the lock-up and mercilessly beaten the complainant, Nishan Saha, in the lock-up by fists, blows and kicks and as a result he sustained grievous injuries in his head, private part, chest, hands and legs.

4.2. Hearing about the incident, his father rushed to the police station and at about 05-00 pm the complainant was released from P.S. after obtaining his signatures in some blank papers. Immediately thereafter he was taken to Kulai Primary Health Centre, where doctor examined him and from Kulai PHC he was taken to G.B. hospital on the night of 31.08.2009 and he was admitted in G.B. Hospital as an indoor patient and underwent treatment till 04.09.2009. C.T. scan was done and necessary treatment was given. On 01.09.2009 his father, Nitai Saha, lodged an FIR to the O/C, Ambassa P.S. and copy of the same was forwarded to the Superior Officers of the Police, but no case was registered on the basis of that FIR. After release from hospital he was still undergoing treatment for bodily pain and on the date of filing the complaint also he was under treatment. He, therefore, prayed for taking cognizance for commission of offence punishable under Section 307/326/447 of IPC and for punishment of the accused.

5. After examination of the complainant and his witnesses under Section 200 of Cr.P.C, in due course, learned Judicial Magistrate First Class initiated process against the accused and in course of trial on 26.06.2010 examined the accused under Section 251 of Cr.P.C. for commission of offence punishable under Sections 342 and 323 of IPC, to which the accused Paritosh Das pleaded not guilty and claimed to be tried.

6. In course of trial, complainant, Nishan Saha, examined himself as P.W.1 and also examined five more witnesses, namely, PW2, Sri David Hrangkhal, a companion and friend of the complainant, PW3, Sri Mritunjoy Saha, maternal uncle of the complainant, PW4, Sri Amit Nath, a friend and companion of the complainant, PW5, Sri Nitai Saha, father of the complainant and PW6, a neighbour of the complainant. In course of his examination, the complainant proved the written complaint filed by him, which is marked as Exbt.-2, and also produced discharge certificate of G.B. hospital dated 04.09.2009, which is marked as Exbt.-1, subject to objection by defence since the Medical Officer has not been examined.

7. Compla