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2001 DIGILAW 768 (CAL)

Mira Roy v. State of West Bengal

2001-12-19

Amit Talukdar

body2001
JUDGMENT Amit Talukdar, J. An appellate order of acquittal passed by the learned Additional Sessions Judge, Arambagh in Criminal Appeal No. 3 of 2000 thereby reversing the conviction and sentence passed by the learned Assistant Sessions Judge, Arambagh in Sessions Trial Case No. 156 of 1996 and acquitting the Accused/Opposite Party No. 2 and thereby allowing the Appeal of the Accused/Opposite party No. 2 against his conviction under section 498A of the Indian Penal Code and sentence of Rigorous Imprisonment for 3 years and to pay a fine of Rs. 1,000/- in default to suffer Rigorous Imprisonment for six months more has been made the subject matter of this Revisional Application. 2. Pursuant to a charge-sheet submitted by P.W....... the accused/opposite party No. 2 was arrayed in Sessions Trial Case No. 156 of 1996 before the learned Assistant Sessions Judge, Arambagh to answer the following charges: Firstly - "That you, on or about the 14th day of November, 1994 at the house of the victim, being the husband of the victim Shyamali Roy (Bhattacharyya) subjected the said victim Shyamali to cruelty by doing the physical and mental torture and thereby committed an offence punishable under section 498A of the Indian Penal Code and within my cognizance." Secondly - "That you, on or about the 14th day of November, 1994 at the house of the victim one Shyamali Roy (Bhattacharyya) committed suicide and that you abetted its commission by torturing her both mentally and physically and thereby committed an offence punishable under section 306 of the Indian Penal Code and within my cognizance." 3. The accused having pleaded not guilty. He was put on trial and the prosecution in order to prove its case examined as many as 10 witnesses to prove its case. 4. Smt. A. Roy Saraswati, the learned Assistant Sessions Judge, Arambagh by her judgment and order dated 13.2.98 in Sessions Trial Case No. 156 of 1996 found the accused/opposite party No. 2 guilty and having committed the offence punishable under section 498A of the Indian Penal Code and sentenced him to suffer Rigorous Imprisonment for three years and also to pay a fine of Rs. 1,000/- in default, to suffer Rigorous Imprisonment for six months more. She, however, exonerated the opposite party No. 2 from the charge under section 306 of the Indian Penal Code. 5. 1,000/- in default, to suffer Rigorous Imprisonment for six months more. She, however, exonerated the opposite party No. 2 from the charge under section 306 of the Indian Penal Code. 5. An appeal was filed before the learned Court of Sessions on behalf of the accused/ opposite party No. 2 assailing his conviction recorded by the learned Trial Court for the offence under section 498A of the Indian Penal Code. The same was registered as Criminal Appeal No. 3 of 2000. 6. Shri S.N. Maity the learned Additional Sessions Judge, Arambagh by his judgment and order dated 20.9.2000 had allowed the appeal by reversing the conviction and sentence of the accused/opposite party No. 2 under section 498-A of the Indian Penal Code which recorded by the learned Trial Court. 7. This has made the petitioner (P.W.1) to move this court in revision. 8. Shri Abhra Mukherjee, learned Advocate appearing with Shri Pinaki Bhattacharya for the petitioner submitted before this court that the Appellate Order of Acquittal passed by the learned court below requires to be interfered with by this court as the materials and evidence on record was not properly appreciated by the Appellate Court and the order of conviction was interfered with. He submitted that the direct evidence of P.Ws. 8, 6 and 3 were given a goby by the learned Appellate Court and the factum of torture, assault and snatching away the salary and impugning the character of deceased Shyamali were all falling within the ambit of mental cruelty and torture and the learned Trial Court had rightly found the accused/opposite party No. 2 guilty for the offence under section 498A, I.P.C., but the Appellate Court reverse the said findings on the basis of surmises and conjectures in the absence of valid reason. 9. Shri Mukherjee for the petitioner also stressed that the learned Appellate Court should not have discarded the evidence of P.W.1 to P.W.6 and P.W.8 whose evidence were convincing and by disbelieving the evidence of the said witnesses including P.W.5, although they were trustworthy, the learned Judge by allowing the appeal has caused a failure of justice. 10. Lastly, Shri Mukherjee submitted that the approach of the learned appellate court that the witnesses were related to the victim could not be a valid ground for his impugned finding in the appeal. He prays for setting aside the order of the lower appellate court. 11. 10. Lastly, Shri Mukherjee submitted that the approach of the learned appellate court that the witnesses were related to the victim could not be a valid ground for his impugned finding in the appeal. He prays for setting aside the order of the lower appellate court. 11. As a part of his submission Shri Mukherjee has relied on the decision of Bachan Singh and Ors. vs. State of Punjab, AIR 1980 SC 267 , with regard to the powers of this court sitting in revision entertaining an application against an order of acquittal. He also relied on decision of State of West Bengal vs. Orilal Jaiswal, AIR 1994 S.C. 1418 and submitted that in a case under sections 306 and 498A of the Indian Penal Code mal-treatment and physical torture and even abuses are hurled on the daughter-in-law not in public. As such, the non-examination of neighbours cannot give rise to any adverse inference against the prosecution, and he also showed with regard to the actual concept of cruelty as have been laid down by the Hon'ble Supreme Court in the said decision. Another decision of the Supreme Court in the case of State of U.P. vs. Ramesh Prasad Misra and Anr., AIR 1996 S.C. 2766 , was also referred to by Shri Mukherjee on the question of setting aside the order of acquittal in connection with an offence under section 498A, I.P.C. He lastly referred to the decisions of: Satpal vs. State of Haryana; 1998 S.C.C. (Cri) 1372. on the concept of cruelty and abetment. 12. None appears on behalf of the State of West Bengal. 13. Shri Sekhar Kumar Bose appearing with Shri Gautam Banerjee for the accused/ opposite party No. 2 submitted that the charge was for the period 14.11.94 onwards and that the marriage was on 1993. As such, the court could not have taken into account any incident prior to the said date and although the learned Trial Court has rightly absolved the accused/opposite party No. 2 from the charge under section 306 of the Indian Penal Code, the Appellate Court has also found the accused/opposite party No. 2 also to be not guilty and allowed the appeal against his conviction under section 498A of the Indian Penal Code. Shri Bose submitted that as there was neither any appeal nor any revision preferred by the State or the de facto complainant with regard to the order of acquittal passed by the learned Trial Court acquitting the accused/opposite party No. 2 from the charge under section 306, I.P.C., the same cannot be the subject matter in the present forum. The petitioner is estopped from any discussion thereof and he prayed before the court to confine its attention to ingredients of the offence of section 498A, I.P.C. and that too from 14.11.94 onwards. 14. Shri Bose submitted that the accused/opposite party No. 2 was an absentee accused as he left the home prior to two months before the date of occurrence. Legally there was no evidence, according to him, which would have justified upholding the conviction of the accused/opposite party No. 2 under section 498A, I.P.C. and the appeal was rightly allowed which should not to be interfered with. 15. He further submitted that although this is a criminal revision and should not normally reappraise the evidence yet in the event it chooses to do so the scanning of such evidence must be strictly confined to the charge framed and cannot travail the charge and should not consider anything apart from the ambit of the charge itself. 16. Shri Bose submitted that the scope for discussion in this application is confined to the offence under section 498A, I.P.C. and the reference made to the offence of section 306, I.P.C. by Shri Mukherjee was unwanted and this court should not attach any heed thereof. He submitted that there has to be ill-treatment which is likely to take effect on health limb of the victim and then only the offence of section 498A, I.P.C. can be applicable. He further submitted that the statements made by the victim cannot go down under section 32 of the Evidence Act as it has to be in connection with circumstances in the transaction which resulted in making the same but in the present case the said criteria cannot be applied. Shri Bose submitted that Ext. 2 and Ext. 2(1) was very minutely considered by the learned Appellate Court and such finding arrived at by the learned Appellate Court was the only reasonable view and warrants no interference by this court in revision. 17. Shri Bose submitted that Ext. 2 and Ext. 2(1) was very minutely considered by the learned Appellate Court and such finding arrived at by the learned Appellate Court was the only reasonable view and warrants no interference by this court in revision. 17. He submitted that the learned Sessions Judge was the last court of fact and in the absence of any perverse illegality or other patent infirmity this court should be sole in interfering with the same. He submitted that an improper judgment cannot be set aside and even if another view is possible this court at this stage cannot import the said view and interfere with the order of acquittal based on evidence. 18. Combining all this points Shri Bose has submitted that the Revisional Application is required to be dismissed and as a part of his submission he has referred to the decision of Bansi Lal and Ors. vs. Laxman Singh, AIR 1986 S.C. 1721 , with regard to the power of revision of the High Court in connection with an order of acquittal. He also referred to the decision of Moti Singh vs. The State of Uttar Pradesh, AIR 1964 S.C. 900 . Shri Bose referred to the said 3-Judge Bench decision of the Supreme Court with regard to section 32(1) of the Evidence Act. 19. I have heard the submissions of the learned Counsels appearing for the parties and have considered the materials on record. I find that the order of the Appellate Court requires interference. The learned Appeal Court has set aside the conviction of the accused/opposite party No. 2 for the offence of section 498A, IPC as recorded by the learned Trial Court which, however, had earlier found that the charge under section 306, IPC against the accused/opposite party No. 2 could not be proved. In coming to its finding the learned Appellate Court, in my view, although took sufficient pain and in all fariness to the said court had after marshalling the evidence came to its finding, however, I am unable to persuade myself to its conclusion and feel that the matter should be sent on remand for the following reasons. 20. In coming to its finding the learned Appellate Court, in my view, although took sufficient pain and in all fariness to the said court had after marshalling the evidence came to its finding, however, I am unable to persuade myself to its conclusion and feel that the matter should be sent on remand for the following reasons. 20. I am conscious of the fact that in a revision against acquittal particularly, when the State has not preferred any appeal, the powers of this court is extremely restricted and the scope of interfering in such a matter is very narrow. I am also in agreement with Shri Bose the learned Senior Counsel for the accused/opposite party No. 2 that even when two views are possible the Revisional Court cannot interfere with an Order of Acquittal. However, I find that some basics have gone wrong which if not corrected would lead to a failure of justice. 21. It is with this missions in mind I proceed to appreciate the materials on record. The finding of the learned Appellate Court with regard to cruelty was not concomittal with the evidence on record. The finding of the learned Appellate Court : "In my considered opinion, the prosecution has failed to adduce evidence to substantiate that the appellant was guilty of such conduct which made the life of the wife unbearable and that it was harmful on her part to live with her husband. In this case the appellant himself left the house where his wife used to live with the members of her family. There is no evidence to suggest that the victim possessed such mental state that suggests that it was no more possible for her to live with her husband without apprehending danger to her life." is wholly untenable and is not in tune with the legislative intent of section 498A, IPC. For profitable discussion it is necessary to refer to the provisions of section 498A, IPC which reads as follows : "498A. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine. For profitable discussion it is necessary to refer to the provisions of section 498A, IPC which reads as follows : "498A. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine. Explanation.-For the purposes of this section, 'cruelty' means- a) any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mantal or physical) of the woman; or b) harassment of the woman whether such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 22. In other words, it has to be proved that a woman which subjected to cruelty by the husband or the relatives of her husband falls within the ambit of the said section. Definitional interpretation of cruelty incorporated in the explanation (a) and (b) speaks out clearly about wilful conduct which could drive the woman to commit suicide or to cause grave injury etc. and harassament of the said woman where the harassment is with a view to co-erce any unlawful demand for any property or valuable security. 23. The concept of cruelty has been given a new dimension in the explanation of the aforesaid section and cannot be equated with the conventional or the dictionary meaning of cruelty. I am afraid that the Appellate Court had viewed the entire scenario in respect of cruelty from an angle which is not commensurate with the legislative broad spectrum concept. 24. A plain reading of the evidence of P.Ws. 1, 2, 3, 4, 5, 6 and 8 clearly speaks about torture suffered by deceased Shyamali in the hands of her husband (the accused/opposite party No. 2). It was incumbent upon the Appellate court to appreciate that the offence of section 498A, IPC is continuing in nature. It pervades and haunts the spectra of a distressed woman in her jinxed matrimony. Neither any geographical boundary nor any time frame can scuttle the protracted agony of a wronged woman. 25. It was incumbent upon the Appellate court to appreciate that the offence of section 498A, IPC is continuing in nature. It pervades and haunts the spectra of a distressed woman in her jinxed matrimony. Neither any geographical boundary nor any time frame can scuttle the protracted agony of a wronged woman. 25. The force of Shri Bose's argument that two months before the incident occurred, the accused/opposite party No. 2 had left his in-laws house which also finds support from the cross-examination of P.W.1, cannot point out to the fact that although the accused/ opposite party No. 2 was an absentee accused, he could not be attributed with the penal liability of section 498A, IPC. This is not a correct position as has been canvassed by Shri Bose. On the other hand, the readings in the pages of the deposition shows that the learned Trial Court was absolutely justified in convicting the accused/opposite party No. 2 for the offence under section 498A, IPC. I am of the view that the gamut of the evidence from P.Ws. 1, 2, 3, 4, 5, 6 and 8 sufficiently reveals the ingredients of the offence complained of and the learned Appellate Court, in my view, did not adopt a correct method of deducting the said evidence. 26. With regard to the other part of the argument that the acts alleged against the accused/ opposite party No. 2 did not have immediate nexus with the commission of suicide and the offence under section 306, IPC was not proved, the learned Appeal Court had rightly absolved the accused/opposite party No. 2 from the charge under section 498A, IPC setting aside the conviction and sentence; I am equally afraid that I cannot adopt the same view and did not with to analyse the said point in detail as the matter is being sent on remand. 27. Apart from the said fact the imputation of her character by the accused/opposite party No. 2 definitely had a deleterious effect on the mind of deceased Shyamali. The approach of the learned Appellate Court was not happy in this regard. 28. I also find that while entertaining the appeal of the accused/opposite party No. 2 under section 374(3)(a), Cr. P.C. directed against his conviction and sentence recorded by the learned Assistant Sessions Judge the learned Appellate Court should not have lost sight of its powers vested under section 386(b)(i), Cr. 28. I also find that while entertaining the appeal of the accused/opposite party No. 2 under section 374(3)(a), Cr. P.C. directed against his conviction and sentence recorded by the learned Assistant Sessions Judge the learned Appellate Court should not have lost sight of its powers vested under section 386(b)(i), Cr. P.C. and focussed its attention only on one side of the prosecution case. Shri Bose's emphasis about the charge being framed for the time span on and from 14.11.1994 and this court while assessing the materials should restrict itself to the materials for the said period, does not impress me at all in any manner. As indicated here-in-above the offence of section 498A, IPC is continuing in nature and a defect in the charge cannot affect the credibility of the prosecution case. But since the matter-is being sent on remand this position can be taken care of at that stage. I hasten to add that it was open for the learned Trial Court even to send the matter on remand to solve the grey areas in the prosecution case which had surfaced before it. 29. I find that the decision of Bansi Lal vs. Laxman Singh (supra) although is a trite proposition so far as the question of acquittal is concerned but in view of the fact situation of the instant case it is the duty of this court to interfere otherwise some illegality would remain surfaced. So far as the other decision of Moti Singh vs. The State of Uttar Pradesh (supra) is concerned, as the point involved in the said decision does not touch the order of remand, discussion therefore, in my humble view, is not required. 30. On the other hand, I find the decision of Sat pal vs. State of Haryana (supra) and Pawan Kr. and Ors. vs. State of Haryana (supra) and the decision of State of West Bengal vs. Orilal Jaiswal (supra) on the concept of cruelty under section 498A, IPC are quite apposite and are factually applicable in the present case and broadly supports the submissions of Shri Mukherjee that the accused/opposite party No. 2 was guilty of an act of cruelty. 31. vs. State of Haryana (supra) and the decision of State of West Bengal vs. Orilal Jaiswal (supra) on the concept of cruelty under section 498A, IPC are quite apposite and are factually applicable in the present case and broadly supports the submissions of Shri Mukherjee that the accused/opposite party No. 2 was guilty of an act of cruelty. 31. Considering the entire circumstances in the backdrop of the decisions and arguments advanced by the learned Counsels this court sets aside the order passed by the learned Appellate Court and sends the matter back on remand before it for a fresh consideration in accordance with the provisions of section 386(b)(i), Cr. P.C. of the entire appeal in the light of the guidelines laid here-in-above and to arrive at finding in accordance with law after hearing the parties including the petitioner herein. 32. Revisional Application is accordingly allowed. 33. Let a copy of this order be sent down along with the Lower Court Records immediately. Later : Let urgent xerox certified copy of this order be given to both parties, if applied for. Appeal allowed.