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2002 DIGILAW 67 (CAL)

Biswanath Jana v. State of West Bengal

2002-02-01

AMIT TALUKDAR

body2002
Judgment Amit Talukdar, J. This Revisional Application is directed against the judgment and order dated 18.8.99 passed by the learned Additional Sessions Judge, Alipore, 24-Parganas (South) in Case No. S.T. 1(2)99/ S.C. 10 (11)98 thereby recording an order of acquittal in respect of the accused/opposite party Nos. 2, 3, 4, 5, 6 and 7 from the charge framed against them under section 498A of the Indian Penal Code and under sections 302/34 of the Indian Penal Code, as also from the charge under sections 201/34 of the Indian Penal Code; whilst the other accused being accused/opposite party Nos. 8 to 21 were absolved of the charge framed against them under sections 201/34 of the Indian Penal Code. 2. The order of acquittal has been questioned in this application on behalf of the petitioner (P.W.3, the de facto complainant of the case) on several grounds. 3. The learned Advocate appearing for the petitioner submitted that the entire order of acquittal was a result of total non-appreciation of the evidence and other materials on record. He submitted that the question of cremation of deceased Shanti the victim lady was erroneously disbelieved by the learned Judge although there was evidence to this effect. He also submitted that there was no reason as to why the evidence of P.W. 5 should have been discarded by the learned Judge outright. He pointed out from the evidence on record that the inmates of the house (i.e. accused Nos. 2 to 7) did not discharge their obligation with regard to the explanation that has to be offered for disappearance of the victim Shanti, sister of P.Ws. 3 and 5. He submitted that it was within their special knowledge with regard to the whereabouts of the house-wife and their silence in this respect was a circumstance which the learned Judge did not consider. He submitted with great emphasis that the disposal of the corpse of Shantirani was not explained by the accused persons and a heavy onus lay on the accused persons to explain such disappearance of the corpus delicti. The learned advocate for the petitioner pointed out that the evidence of P.W.5 was corroborated in material particulars by the evidence of P.Ws. 3 and 1 with regard to the fact that Shantirani after her marriage resided in the household of the accused/opposite party Nos. The learned advocate for the petitioner pointed out that the evidence of P.W.5 was corroborated in material particulars by the evidence of P.Ws. 3 and 1 with regard to the fact that Shantirani after her marriage resided in the household of the accused/opposite party Nos. 2 to 7 until her death and that she has spoken about torture at the hands of her in-laws and she was found dead in a hanging position in the house of the accused and that the P.W.5 was forcibly confined in the house during which time the cremation took place. He referred to Ext. 2 the Seizure List and submitted that the same could not totally discredit the prosecution case. The order of acquittal recorded by the learned Trial Court was wrong and he has accordingly prayed for setting aside the same. 4. These submissions made on behalf of the petitioner were refuted on behalf of the accused/opposite party Nos. 2 to 7. Their learned Advocate submitted that once the order of acquittal was passed in favour of the accused the same should not be disturbed in the absence of any material discrepancy and/ or other illegality. According to him since the learned Trial Court after a proper appreciation of the evidence came to its finding, this court sitting in revision cannot re-assess the evidence once again. He greatly relied on the evidence of P.W. 5 who according to him was rightly disbelieved by the learned Trial Court as he was not a witness of truth in view of the narration of the incident to P.W.3 by way of coming to Calcutta instead of straightway approaching the police. He also harped on the fact of non-production of the seized Alamat during the Trial which according to him, has vitiated the prosecution case to a great extent and the order of acquittal passed on the basis of appreciation of the evidence and materials on record, should not be disturbed and he has prayed for dismissing the revisional application. 5. None appears on behalf of the State. 6. None also appears on behalf of the accused/opposite party Nos. 8 to 21 although notice was served by hanging on their doors which is treated as good service. 7. 5. None appears on behalf of the State. 6. None also appears on behalf of the accused/opposite party Nos. 8 to 21 although notice was served by hanging on their doors which is treated as good service. 7. Now let me consider the argument made on behalf of the petitioner so as to see whether any cause for interference can be made in the order of acquittal in the light of the evidence and other materials on record. I am conscious of the fact that as pointed out by the learned Advocate for the accused/opposite party Nos. 2 to 7 that unless there is any material illegality the Revisional Court cannot interfere with an order of acquittal as it will not be in the interest of justice and it is very sparing cases the exercise should be undertaken by a Revisional Court. However, I find that there are some aspects of the matter which have to be considered afresh; otherwise, there will be a palpable injustice perpetuated. It is with this view, I proceed to consider the entire matter in the light of the order of acquittal passed by the learned trial court. 8. The genesis of the prosecution case relates to one part about the story of torture on deceased Shantirani as spoken to P.W. 3; and on the other hand, the information given by one-Pulin Behari that Shantirani was no more and pursuant to which P.W.5 went to her in-law's house and found her in a hanging position and after he was confined in a room of their house, she was cremated. 9. The acquittal recorded by the learned Trial Court was mainly based on the following facts:- (a) There was non-availability of the bones and the bangles in the Alamat prepared under the Seizure List (Ext. 9. The acquittal recorded by the learned Trial Court was mainly based on the following facts:- (a) There was non-availability of the bones and the bangles in the Alamat prepared under the Seizure List (Ext. 2) could not be seen by P.W.3; (b) the conduct of P.W.5 going straight to Calcutta to inform P.W.3 about the incident instead of going to the police; (c) the failure of P.W. 8 to send the seized Alamat for Chemical Examination; (d) departure of the version of P.Ws.3 and 5 mainly from their earlier statements and that it was not established Shantirani was subjected to torture by the family members of her husband during her stay at her matrimonial home; (e) P.W. 5 the only eye-witness was not reliable as other witnesses did not witness the incident of murder and cremation of the deadbody, and as the offence of murder could not be proved, necessarily the charge framed under sections 201/34 of the Indian Penal Code also failed and (f) the learned Trial Court could not "ignore the defence argument there is political enmity between the P.Ws. and the accused persons and out of enmity they have deposed against the accused persons in this case". 10. I find that the learned Trial Court took a very passive and reticent approach in dealing with the entire matter. Though there is some apparent mistakes in the Investigational Process instead of finding fault it was apposite on the part of the learned Trial. Court to endeavour to retrieve the prosecution case instead of stopping at that. The articles seized by P.W. 9 under the Seizure List (Ext. 2) were not sent for Forensic Examination as admitted by P.W.9. It is no doubt a reminiscence on the part of the Investigating Agency but for that can the prosecution suffer? 11. From the evidence of P.Ws.3 and 5 I find that one Pulin Babu gave the information about the death of Shanti to P.W.5; Pulin Babu was not examined by the Investigating Agency. Pulin Babu was a very important witness, no doubt; but the learned Judge could have examined him as a court witness under section 311 of the Code of Criminal Procedure. But that was not done. The learned Judge greatly harped on the evidence of P.W.3 who admitted in his cross-examination with regard to the absence of seized churi and bone from the Alamats (Mat Exts. But that was not done. The learned Judge greatly harped on the evidence of P.W.3 who admitted in his cross-examination with regard to the absence of seized churi and bone from the Alamats (Mat Exts. 1 and 1/1.). But, I find from a plain reading of the Seizure List (Ext. 2) that no churi was seized by P.W.9 in the Seizure List (Ext.2) but bone and ashes were seized by P.W.9 in presence of P.Ws.3 and 4 who were the signatories to the said Seizure List (Ext. 2). P.W.9 also admits that he did not seized any churi as Alamat. As such, the question about non-availability of churi was not a material factor but the non-availability of the burnt bone was the end product of a deviant investigation for which the prosecution cannot be made to suffer. 12. It was itself not a phenomenon that the non-availability of the bone and churi would take away the steam of the prosecution as there were other cogent circumstances which could not be overlooked. From the evidence on record I find that deceased Shanti was married with the accused/opposite party No.4 and she was staying in her matrimonial home, her where about are to be accounted for by her in-laws and they cannot escape from their responsibility in this regard. After all, the in-laws' family where the wife (deceased Shanti) resided are the only possible persons who will know about the housewife. 13. That apart, as transpiring from the evidence that the parties belong to two (2) different political groups that by itself cannot be any ground for enmity and question of false implication. That is not a very correct proposition and simply on this ground also, there cannot be any presupposition that on account of such enmity there has been question of false implication. 14. I also find that the learned Judge unnecessarily found fault with P.W. 5 for not informing the police immediately after he was released from the house of the accused person Nos. 2 to 7 and instead he was going to Calcutta and informing P.W. 3. If it is very closely observed then it would be found that the distance between the place of occurrence and the village home of the accused/opposite parties is 20 kilometers and the distance from the village home of P.W. 5 to the police station is three hours walking distance. If it is very closely observed then it would be found that the distance between the place of occurrence and the village home of the accused/opposite parties is 20 kilometers and the distance from the village home of P.W. 5 to the police station is three hours walking distance. It this piece of evidence is joined together, then the act of P.W.5 stands explained. 15. In view of the Seizure List (Ext. 2) indicating seizure of burnt charcoal, ash, burnt bones of cremation etc. the said circumstance coupled with the evidence of P.Ws.3 and 4, could not be altogether brushed aside and the learned Judge could have elicited the actual truth in these days of modern science by ascertaining the Alamats after proper scientific examination. 16. In view of the discussions held hereinabove, I am of the view that the order of acquittal recorded in favour of the accused/opposite parties particularly, Nos. 2 to 7 cannot be sustained; as part from any other factor deceased Shanti who was last seen in the accused person's house at Rakhalpur that having been established the onus of explaining the disposal of the corpus delicti lies heavily on the shoulder of her family members (accused/opposite party Nos. 2 to 7). Notwithstanding, such startling issue staring at the face, the order of acquittal was passed without much deep probe on the basis of a conventional approach. I am of the view that a second thought is required in the lines discussed hereinabove. 17. Accordingly, the order of acquittal passed by the learned Trial Court is set aside and the mutter is sent on remand for fresh consideration in the light of the discussion held hereinabove. However, it is absolutely made clear that the learned Judge would be free to arrive at its independent conclusion without being whatsoever guided by the disposal of this revisional application. 18. Revisional application allowed. 19. No order as to costs. 20. Let a copy this order be sent down along with the trial court's records immediately. Revisional application allowed.