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2002 DIGILAW 562 (CAL)

Gita Chakraborty v. Satyajit Banerjee

2002-08-22

Amit Talukdar

body2002
JUDGMENT Amit Talukdar, J. A weeping mother who in her geriatric age under normal circumstances could have become a grandmother suffers the distraught pain of losing her only daughter and the consequent anguish of those booked for the cause of her death earning an order of acquittal compels her from her old-age home to approach the Majestic Portals of this Court to set aside the said order of acquittal. 2. She feels she has been wronged at the doors of justice where those responsible for the untimely departure of her daughter-Kana Chkraborty (Banerjee) from her matrimonial home which had suffered a roller-coaster fate in a jinxed matrimony constituted to by the accused. 3. As such, in the evening of her life she moves this revisional application with her tale of sorrow and the wounds of a mother who has to suffer the misfortune of losing a child on various grounds. 4. Her learned Counsel Shri Joymalya Bagchi duly assisted by Shri Atish Ghosh submitted that neither the best witness i.e., the husband of the petitioner(P.W.8) was examined nor any relatives of the victim Kana Banerjee, barring the petitioner herself were examined; although there were natural and vital witnesses to prove the case. Shri Bagchi submitted that the learned Trial Court ought to have taken some endeavour to have the witnesses examined who were probable and proximate to unfurl the actual truth but instead restricted itself to the one's offered by the prosecution only. He further submitted that the learned Judge did not resort to the provisions of section 311 of the Code of Criminal Procedure (here-in-after referred to as 'the said Code) for examining other relevant witnesses and his finding with regard to the victim having an illicit affair was not borne out by evidence. He further submitted that the said story was contrary to the Medical Opinion of Dr. Baidyanath Chakraborty who certified that the victim was unable to bear a child and it proved contradicted by the defence version that she committed suicide to cover the ignomiy of an illicial conception. The evidence of P.W.1 - the Autopsy Surgeon was not considered by the learned Trial Court, according to Shri Bagchi as it bore marks of torture on the body and the authenticity of the alleged suicide note which was seized by the Investigating Agency after 125 days was quite doubtful. The evidence of P.W.1 - the Autopsy Surgeon was not considered by the learned Trial Court, according to Shri Bagchi as it bore marks of torture on the body and the authenticity of the alleged suicide note which was seized by the Investigating Agency after 125 days was quite doubtful. Further, in the absence of the examination of the hand-writing expert, the suicide note was not admissible in evidence. Shri Bagchi further submitted that non-examination of the vital witnesses caused serious prejudice which was not taken into account by the learned Trial Court and the charge ought to have framed under section 304B of the Indian Penal Code since the death of victim - Kana Banerjee occurred within seven years from her marriage other than under normal circumstances which was unnatural and before her death she was subjected to torture on demand of dowry. The provisions of section 113B and also the provisions of section 113A of the Indian Evidence Act (for short, 'the said Act') was lost sight of by the learned Judge in connection with the evidence of P.W. 8. 5. Accordingly, Shri Bagchi prayed for setting aside the order of acquittal. 6. As a part of his submission Shri Bagchi referred to the decisions of Shailendra Kumar vs. State of Bihar & Ors., 2002 Crl. L. J. 568, with regard to the powers of the Court under section 311 of the said Code by stressing that it was incumbent upon the learned Trial Court to have examined the relevant witnesses as Court Witnesses and thereafter referred to State of Rajasthan vs. Ani alias Hanif & Ors., 1997 SCC(Cri) 851, on the scope of the learned Trial Court to put questions and elicit the truth during the course of the Trial and not simply resting on the materials supplied by the prosecution. He also referred to Ayodhya Dube & Ors. vs. Ram Sumer Singh, AIR 1981 SC 1414, to demonstrate his point that where an order of acquittal was based without considering the material evidence and the judgment contained inconsistencies it was apposite the same should be set aside in exercise of the power of revision. 7. Ms. Sarbani Ghosh appearing for the accused persons opposed the prayer of Shri Bagchi for setting aside the order of acquittal. She supported the same. 7. Ms. Sarbani Ghosh appearing for the accused persons opposed the prayer of Shri Bagchi for setting aside the order of acquittal. She supported the same. Firstly, she pointed out that the power of this Court in revision against an order of acquittal was extremely limited and as there was no serious defect in the same, this Court should not interfere. 8. She referred to the decisions of 1. Ramesh Babulal Doshi vs. State of Gujarat, AIR 1996 SG 2035, on the purport of the power of the Appeal Court while hearing an appeal against acquittal and 2. Bansi Lal & Ors. vs. Laxman Singh, AIR 1986 SC 1721 , with regard to the High Courts power of revision which should be exercised very sparingly while dealing with an order of acquittal. 9. Ms. Ghosh also relied on a written notes of argument. She laid serious emphasis on the fact that the non-examination of the husband ofP.W.8 did not matter much as he was not a relevant witness and under no circumstances the said fact would govern the order of acquittal as bad in law. She laid stress on the various findings of the learned Judge and argued that the hand-writing expert's opinion was there with regard to the suicide note and it was correctly believed by the learned Judge. Since the evidence was appreciated properly by the learned Judge and there was no patent illegality on the surface this Court in the absence of the same should not interfere with the order of acquittal recorded by the learned Trial Court. She has also submitted that rightly the learned Judge has not exercised his powers under section 311 of the said Code as it was within his discretion not to examine the witnesses he did not choose to and she prayed for dismissal of the revisional application. 10. I have with utmost circumspection heard the submissions of Shri Bagchi and Ms. Ghosh and perused the decisions cited by them at the Bar, considered the materials and evidence on record. 11. I find that it weighed heavily with the learned Trial Court with regard to the suicidal note (Ext. 8) and the belated F.I.R.(Ext. 6) which according to the learned Judge was on 'some wrong advice' and that P.W.8 had caused embellishment in a belated F.I.R. (Ext. 11. I find that it weighed heavily with the learned Trial Court with regard to the suicidal note (Ext. 8) and the belated F.I.R.(Ext. 6) which according to the learned Judge was on 'some wrong advice' and that P.W.8 had caused embellishment in a belated F.I.R. (Ext. 6) and as such, she (the petitioner) cannot be considered to be a faithful witness and furthermore her evidence could not be corroborated by a single prosecution witness and also the evidence of P.W.1 - the post-mortem doctor who in his report (Ext.1) indicated that it might be a case of hanging and also poisoning; and in the suicide note abetment was not suggested the order of acquittal was recorded. 12. Let me first take up Ext.8 - the purported suicide note. I must say at the very beginning that no reliance whatsoever can be placed on the same. A close look on the same rings a bell of suspicion in the mind of any prudent person. A vacant space in the purported note wherein the seal of the Forensic Science Laboratory and the signatures of P.W. 5 and P.W.6 leads to a great doubt as to why the said space was kept vacant during the process of a continuous span of writing. That apart, mystery also remains as to why the said piece of document (Ext. 8) could be seized by the Investigating Officer (P.W. 13) from the possession of the mother-in-law in the presence of P.Ws. 5 and 6 on 05.03.96 under a Seizure List (Ext.5) although from the evidence of P.W.13-the investigating Officer very much transpires that he was entrusted with the investigation way back on 22.12.95. These are totally mysterious circumstances which remain unexplained. The report of the hand writing expert (Ext. 10) sought to be proved by P.W. 13 in the absence of examination of the said expert itself which although admissible under section 294 of the said Code in the absence of formal objection but, however, in the present scenario the same could not quite fit in with other attending facts and circumstances and reliance by the learned Trial Court on the said piece of evidence, in my humble opinion, was not proper. 13. I fail to understand as to how the delay in the F.I.R. (Ext.6) could have caused any manner of ripple in the tenor of the prosecution case. In the FIR (Ext. 13. I fail to understand as to how the delay in the F.I.R. (Ext.6) could have caused any manner of ripple in the tenor of the prosecution case. In the FIR (Ext. 6) delay was sufficiently explained. This Court is astonished to find that the explanation offered by P.W. 8 that on the news of death of their daughter the petitioner (P.W. 8) and her husband were mentally shattered and both the couple on account of their advanced age and being afflicted with various diseases, having living alone could file the complaint after a delay. The authores of the FIR (Ext. 6) (P.W. 8 - the petitioner herself) in her cross-examination stood her ground in this regard. And the finding of the learned Trial Court that- "She has failed to explain by convincing reason about inordinate delay in lodging the F.LR." cannot be accepted. 14. With regard to the question that her evidence has not been corroborated 'by a single prosecution witness ......' I am rather sorry that I cannot subscribe to the said view. A solitary witness if found to be acceptable and is otherwise credit-worthy there is no harm in accepting the said evidence. The learned Trial Court definitely went wrong in this direction. It is by now a general Rule a Court can act on the testimony of the single witness even if it is uncorroborated, if the said evidence is found fully reliable and in such case there will be no legal impediment on basing a conviction on such evidence; but, if it is open to doubt or suspicion sufficient corroboration obviously is required. The Supreme Court in Jagdish Prasad & Ors. vs. State of M.P., AIR 1994 SC 1251 , expressed the said view. Even the other day in Jhapsa Kabari & Ors. vs. State of Bihar, 2002 SCC(Cri) 1071, Y.K. Sabharwal writing out the judgment for the Division Bench of Umesh C. Banerjee and Y.K. Sabharwal, JJ. held: "There is, however, no bar in basing conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy." Can it be said that the evidence of P.W. 8 is untrustworthy? Can she be dubbed as a fabricator? Can she be termed as an embroiderer? 15. held: "There is, however, no bar in basing conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy." Can it be said that the evidence of P.W. 8 is untrustworthy? Can she be dubbed as a fabricator? Can she be termed as an embroiderer? 15. Can she be termed as vengeant mother seeking for the blood of those responsible for the unceremonious departure of her only daughter Kana from the world of living? 16. If none of the above answers are in the affirmative then certainly it was duty-bound upon the learned Trial Court not to have uncharitably discarded such evidence of P.W.8 which was on the wholly acceptable and was in tune. There may be some pin-pricks but, however, the same is not as large as it would create a perforating hole to disown her entire version and if at all there are some inconsistencies those were not mutually exclusive of each other and could not cast a spell on the ultimate success of the prosecution. 17. Perhaps on account of her advanced age the petitioner (P.W.8) to husband out her life's taper, may be in want of a helping hand; but, certainly not her evidence as P.W.8 in requirement of a supporting version. 18. She stood as firm as a rock and as erect as a pole. 19. That apart, the evidence of P.W.1 - the Autopsy Surgeon was also not correctly construed by the learned Trial Court. The fact of injuries on the body was lost sight of by the learned Trial Court. The opinion in Ext. 1 ofP.W.1 with regard to poision and also hanging, in my modest view, does not have any charm on the spectre of the acquittal recorded by the learned Trial Court. 20. Here is a prosecution case which suffers from the vice of three hostile witnesses who happen to be respectively the local Councillor and neighbours of the accused who did not support the prosecution case. I am of the considered view that in the fact situation of the instant case the learned Trial Court ought to have endeavour to: firstly examine definitely the husband of P.W.8 and other attending witnesses by exercising his plenary power under section 311 of the said Code. I am of the considered view that in the fact situation of the instant case the learned Trial Court ought to have endeavour to: firstly examine definitely the husband of P.W.8 and other attending witnesses by exercising his plenary power under section 311 of the said Code. In this regard while I find much substance in the submission of Shri Bagchi, I am sorry, I am unable to accept that of Ms. Sarbani Ghosh and must say that the learned Trial Court took an extremely passive role and fails to exercise the discretion under the provisions on that score which has resulted in the patent miscarriage of justice. The learned Trial Court ought to have been more, without meaning any disrespect, dynamic and to have taken active 'participation in the trial by way of eliciting the actual truth instead of resigning to the fate as ordained by the prosecution. 21. Where there is a halting prosecution suffering an abortive venture resulting in a miscarriage of the truth, the actual role of the Trial Court begins. It is from that stage the learned Trial Court which is armed with the provisions of section 311 of the said Code, section 91 of the said Code and section 165 of the said Act to cull out the nuggets from the ring of truth and arrive at a clear picture. 22. Even if in our adversarial system of law, the carriage of justice is mainly on the prosecution which is the de jure entity in the Criminal Justice System, the de facto entity being the complainant who has to wait in the wings for being called upon to replenish the shortcomings of the prosecution, yet it is the cardinal duty of a court of law to rise above the narrow constraints of the evidence and procedural formalities to achieve the ultimate truth in the process of retrieving the Concept of Justice-which is the ultimate El Dorado in a criminal trial. 23. It is only apposite like a Ulyssess, a Trial Court should follow quest for justice beyond the sinking stars. 24. I am fully conscious of the fact that while in exercise of my power vested under the law for setting aside an order of acquittal I am quite circumspect, if not circumvented by well-settled authorities of the Summit Court since long ago and various High Courts. 24. I am fully conscious of the fact that while in exercise of my power vested under the law for setting aside an order of acquittal I am quite circumspect, if not circumvented by well-settled authorities of the Summit Court since long ago and various High Courts. I am also not oblivious that only in exceptional cases an order of acquittal that too in revision can be interfered with. There is no dispute in that regard. However, I find that a fissure has occasioned in the judgment of the learned Trial Court which unless repaired would cost the Concept of Justice heavy damage. The decisions cited by Shri Bagchi in Shailendra Kumar vs. State of Bihar(supra) with regard to the powers of the Court under section 311 of the said Code in view of the discussion held hereinabove is quite apposite and is applicable in the fact situation of the instant case; so far as the decision in State of Rajasthan vs. Ani (supra) is also quite apposite in the given situation as the learned Trial Court ought to have spread itself beyond the narrow key-hole of the bridled path of the evidence presented by the prosecution. The decisions, on the contrary, cited by Ms. Ghosh, in my humble view are quite distinguishable and has no effect on the instant case. If, I am to fall in line with Ms. Ghosh and switch off the prayer of the petitioner by applying the traditional balm that the order of acquittal cannot be interfered with under conventional circumstances by applying a hackneyed label that unless there is some failure of justice the court more particularly, the rivisional court should always stay its hand off then I am afraid I shall be sacrificing justice at the Altar of dry reasoning and truncated theories. In the trial there has been serious failure of justice on account of the circumstances pointed out here-in-above and on account of some tradition bound and myopic views of the learned Trial Court which may have been in a trite position in the turn of the Century is, however, unfortunately a replica of the hoary past in the archives of the modern day Criminal Justice System. 25. In the light of the discussions held here-in-above now it is firmly felt that the order of acquittal cannot be sustained and matter has to be remanded. 25. In the light of the discussions held here-in-above now it is firmly felt that the order of acquittal cannot be sustained and matter has to be remanded. Now the learned Trial Court would exercise his power under section 311 of the said Code to examine the father of the victim Kana Banerjee and also all such further witnesses whom shall be deemed necessary by the learned Trial Court or prayed for by the prosecution or by the de facto complainant. The learned Trial Court would also keep in mind that the powers he enjoys under section 91 of the said Code and section 165 of the said Act to fathom the actual depth of the prosecution case. The learned Judge would also endeavour to salvage the ruins from the debri as pictured above and take a close-look - a second look and definitively a circumspective look into the whole hog of the matter as permitted under the law. 26. I am also conscious of the fact that apart from the fact that setting aside an order of acquittal is a rarity which has to be done unfortunately in view of the position unfurled in the foregoing paragraphs but also an order of remand which entails a grass-root journey downwards and hardship to both the prosecution and the defence but in the interest of justice the said exercise has to be undertaken by this Court in view of the decision of State of M.P. vs. Bhooraji, (2001)7 SCC 679 . Accordingly, I set aside the order of acquittal passed by the learned Trial Court and remand the matter for fresh decision from stage one. 27. Lest it may even unconsciously influence the mind of the learned Trial Court, while on remand it is made absolutely clear that by way of guiding formula the observations here-in-above have been made but it cannot be said to have a binding effect on the learned Trial Court which would be free to arrive at its independent conclusion in accordance with law and in the suggested formula shown here-in-above. 28. Rule is made absolute. 29. Let the Lower Court Record be sent down along with a copy of this order as early as possible.