1. This is a Rule obtained by the two accused Pannalal Shaw and Chunilal Shaw who have been convicted of having caused hurt to the complainant Nani Gopal Biswas and sentenced to pay a fine of Bs. 30 in default to suffer rigorous imprisonment for 3 period of one month. The complainant's case briefly is as follows ; The complainant is a tenant of the two accused. His rent fell into arrears. On 6th September 1947 there was an alternation between the accused landlord and the complainant over the matter of rent and the accused Pannalal beat the complainant with his fists and shoes. The accused Chunilal beat the complainant; with a lathi. As a result; of the beating the complainant sustained injuries. Some persons came and prevented the complainant from being further beaten. Then the two accused persons got the complainant arrested on a false charge that he was drunk and disorderly and had him taken to the thana where a petty case of drunken and disorderly behaviour was started. This in short is the case for the prosecution. The defence taken is that the complainant was drunk and riotous on the street and at the instance of the accused party he was arrested by the police. The complainant was annoyed at the interference by the accused and started a false case of hurt against the accused.
2. Four witnesses were examined on behalf of the prosecution, and of these four witnesses, witnesses 9 and 3 have not been tendered for cross-examination and therefore their evidence mast go out. Witness 4 is the complainant himself and witness 1 for the prosecution is a took who has not much of a reputation. He was involved in a theft case but he says that he was acquitted in that case.
3. Now, the whole question depends upon whether the learned Magistrate acted properly in accepting the prosecution story regarding the alleged attack .on the complainant. It is true that on revision this Court will not usually interfere with the findings of fact, but there are circumstances when this Court will upset findings of fact if those findings are not based on evidence or if they are based on inadmissible evidence or if they are blatantly and obviously inaccurate findings which no Court should have arrived at. The complainant's case depends on his own evidence and that of his cook and also on the evidence of the court witness 1 who is a doctor. After the prosecution had closed their case the prosecution wanted to examine this doctor. An objection was takes by the defence that they were being taken by surprise. Thereupon the Court said that he would examine the doctor as, a court witness. Now, this doctor when he entered into the witness, has was given a slip of paper by his pleader. After looking at the slip of paper the doctor deposed that he examined the complainant on 6th of September 1947 and found four injuries on him namely (l) a swelling with ecchymosis on the left side of the nose and forehead about it inch in diameter, (2) three swellings with abrasions on the left side of the head above the temporal region, (3) one longitudinal strand of swelling with abrasions on the left arm, (4) a few abrasions in the back of the neck and on the left index finger. Now, it seems to me that the doctor should not have been allowed to refresh his memory from this Slip of paper which he says 'my pleader supplied me with.' Before a witness is allowed to refresh his memory from any writing made by him the requirements of Section 159, Evidence Act should be complied with. It must be shown that the -writing was made by the deponent at the time when he examined the complainant or so soon after that the Court considers it likely that the transaction was at that time fresh in his memory. There is nothing to show what the slip of paper was and when it was made. This is one of the defects in the procedure followed by the learned Magistrate. I may say here that the learned Magistrate relied almost entirely upon the evidence of this doctor and he has practically based his conviction upon it. The learned Magistrate says:
I have not got the least hesitation to believe the evidence o the doctor who deposed quite naturally from a slip or certificate given by the doctor to the party then and there after the examination of the complainant.
There is nothing to show that the slip of paper: or certificate was prepared then and there after the examination of the complainant. The learned Magistrate was drawing on his imagination. when he said this and therefore I think that his appraisement of the doctor's evidence is vitiated by this erroneous supposition that the paper was prepared contemporaneously with, the examination. There are certain other facts of which the learned Magistrate either takes no notice or which he explained away in an un. satisfactory manner. When the complainant was taken to the thana as being drunk and disorderly the facts were entered in the thana. register which is ex. A. If the complainant bad any injuries on his body of the nature described by the doctor, they would have been self evident and an entry would be made in the thana register in the appropriate column showing the marks of injury on the complainant. There is no mention at all in the thana register of any injury on the person of the complainant-. The learned Magistrate notices this and say a that he seed no reason to discredit the evidence of the doctor because of this omission. He adds that in petty police cases police never care to have medical certificates of these sort of petty injuries. Where the Magistrate gets this idea from I do not know; but if a person is taken to the thana with swellings and eccbymosis near has nose and abrasions in different parts of his head the thana officer would surely record that in the register. Then again when the opposite party Sled his complaint before the Court which was done four days after the occurrence he did not show the learned Magistrate any marks of injury. Now, if the injuries were such as are described by the doctor the marks could not have disappeared within four days. This fact is not even noticed by the learned Magistrate. It would be most unreasonable for any Court to come to a finding against the accused upon evidence of this description. In my opinion the findings of fact are flagrantly erroneous and I am of opinion that I should interfere in revision with respect to such findings. In my opinion the complainant has entirely failed to prove has case and therefore I set aside the order of conviction and sentence and acquit the accused. The rule 33 made absolute.