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2007 DIGILAW 558 (CAL)

Debi Rit v. STATE OF WEST BENGAL

2007-07-25

PARTHA SAKHA DATTA

body2007
Judgment :- (1.) THE opposite party Nos. 2 and 3 who were served with notice a number of times last being on 4. 7. 07 did not appear. (2.) THIS revisional application was filed on 28.4.04 by the de facto complainant-wife being aggrieved with the judgment and order dated 19.11.03 passed by the learned S.D.J.M., serampore acquitting the two accused persons (O.P. Nos. 2 and 3) of the charges under Sections 498a/406 I.P.C. (3.) THE grounds of revision as averred in the revisional application are that the learned Magistrate has perfunctorily arrived at a finding which is not commensurate to the oral testimonies of the victim and other witnesses on record, that the learned Magistrate failed to appreciate that the victim-wife was subjected to ill treatment and torture and was driven out of the matrimonial home and on 15.8.99 the accused persons came to her uncles house and also further assaulted her and threatened with dire consequences, which facts went unnoticed by the learned Magistrate, that if the learned Magistrate was of the opinion that the victim/defacto complainant was unable to understand the questions put to her in her examination in chief and she had lost her all rational aptitude then it was unbecoming of the learned Magistrate to proceed with the appreciation of evidence in such circumstances and come to a finding of not guilty in favour of the opposite party Nos. 2 and 3 herein. (4.) I have heard Mr. Satpathi, learned Advocate appearing for the petitioner and Mrs. Pranati Goswami, learned Advocate for the State at great length. (5.) AN F.I.R was lodged on 19.8.99 by the defacto complainant with the officer in charge, Serampore P.S. alleging that she was given in marriage with the opposite party No. 2 on 22.11.87 and in the marriage apart from "ornaments, furniture etc. a cash of Rs. 30,000/- was given but three years after marriage her husband (O.P. No. 2) and sister in law (O.P. No. 3) started behaving with her in a rude manner and they were instigated her to commit suicide and used assault her and put pressure upon her to fetch money from her uncle but keeping in my mind of her future she tolerated all the assaults and ill treatment but the incidents of torture were again repeated a number of times and she was driven out of her matrimonial home. In her uncles house also the accused persons came on 15.8.99, abused and assaulted her and when complainant asked for return of her Stridhan articles she was subjected to abuse and all her Stridhan articles have been misappropriated. (6.) ON the aforesaid allegation of facts investigation was carried out and police submitted charge sheet against two accused persons under Sections 498a/406, I.P.C. and the learned magistrate framed charges under the said sections of law and proceeded with the trial by examining three witnesses and upon conclusion of trial found two accused persons not guilty of the offence and acquitted them of the charges. (7.) HAVING gone through the judgment impugned, it appears that the learned Magistrate recorded that P.W. I Smt. Devi Rit "was SUFFERING from SOME DISEASES FOR LAST several YEARS AND IT FURTHER appears SHE IS NOT COMPLETELY mentally FIT TO UNDERSTAND and REPLY THE QUESTIONS PUT TO her DURING HER EXAMINATION before THE COURT, A s REPLIES GIVEN BY HER TO THE QUESTIONS put TO HER PARTICULARLY during HER CROSSEXAMINATION clearly SUGGESTS THAT THE mental BALANCE OF THIS WITNESS is NOT IN ORDER AS SHE COULD not EVEN ANSWER AS TO WHETHER she WAS MARRIED IN THE year 1987 OR NOT OR HER SONs AGE was 13 YEARS OR NOT OR HER son IS READING IN WHICH CLASS now OR WHETHER SHE IS getting RS. 400/- PER MONTH AS maintenance". It is very startling and also alarming that in spite of such recording as to the mental state of P.W.1 who was a very vital witness before the learned Magistrate, the learned magistrate proceeded with the trial, closed the trial and upon examination of the accused persons passed a judgment with analysis of evidence of witnesses including that of P.W.1 and after having criticized the said oral testimony of the P.W.1 who according to the learned magistrate was not having proper mental balance acquitted the accused persons of the charges. I fail to reconcile myself with the contradictory stand taken by the learned Magistrate. This is one aspect of the situation. (8.) THE second aspect of the situation is that the learned Magistrate appreciated the evidence of the witnesses in such a fashion as if he was trying a case of theft or of a particular incident of assault the date and time of which is vital for success of a prosecution case. This is one aspect of the situation. (8.) THE second aspect of the situation is that the learned Magistrate appreciated the evidence of the witnesses in such a fashion as if he was trying a case of theft or of a particular incident of assault the date and time of which is vital for success of a prosecution case. I am quite conscious of the position that I am dealing with the revisional application against a judgment of acquittal. The law is well settled that merely because a view different from the view taken by the learned Court below is possible cannot be the ground of interfering with the judgment of acquittal. But if it appears that the judgment of the Court below is manifestly absurd and the analysis of evidence resulted in the miscarriage of justice, the Court has to rise to the occasion and to make an appropriate order so that the path of justice is not defeated. The learned magistrate was under the impression that since the accused persons came to her uncles house only once just to obtain signature in a divorce paper the very foundation of the prosecution case is shattered. The very approach of the learned Magistrate is contrary to the position of the record because it has been the evidence of the petitioner before the learned Magistrate that she was subjected to ill treatment and torture continuously in her husbands house on different pretext including on the demand of fetching more money and some times she would lose consciousness and in such circumstances when she narrated the incident of torture to her uncle she came down to her uncles house with her uncle and there also they came and assaulted her. It cannot be said that the basic fabric of the prosecution case was not laid foundation of by P.W.1 in her evidence. The learned Magistrate observed that though P.W.1 stated in cross examination that she filed the case because of being driven out from her matrimonial home she could not say whether the complaint lodged before the police was written according to her dictation or not. Her inability to say whether the complaint was written according to her dictation or not cannot be the ground of rejection of the prosecution case more particularly when the learned Magistrate himself recorded that P.W.1 was suffering from mental disorderness. Her inability to say whether the complaint was written according to her dictation or not cannot be the ground of rejection of the prosecution case more particularly when the learned Magistrate himself recorded that P.W.1 was suffering from mental disorderness. The learned Magistrate insisted on presence of an eye witness to speak of the alleged incident of 15.8.99 which took place in her uncles house where she was residing after being driven out of the matrimonial home. The learned Magistrate was labouring under wrong impression that the whole prosecution case rests on the alleged incident of 15.8.99 and if the incident of 15.8.99 was not proved the whole prosecution case would stand disproved. The F.I.R, and the evidence of the witnesses including the evidence of P.W.1 are consistent on the point that the petitioner some time after her marriage with the opposite party No. 2 came to be subjected to ill treatment and torture and in course of continuance of torture she was driven out of her matrimonial home and after came down to her uncles house she was also beaten by the accused persons who came there. The learned Magistrate did not at all traverse the evidence of P.W.I and all other witnesses who extensively dwelt with the incident of torture and ill treatment perpetrated upon P.W.1 while she had been residing in her matrimonial house and this aspect of the matter was completely lost sight of by the learned Magistrate who took it to be a solitary incident of 15.8.99 and because of the fact that there was no witness of 15.8.99 incident, he came to the opinion that the charges failed. (9.) THE third aspect of the matter is that the charge under section 406, I.P.C. was not at all dealt with in respect of the fact that evidence was laid by the witnesses. (10.) BEFORE the learned Magistrate P.W.1 gave evidence along with P.W.2 Smt. Rakhi Bhattacharjee, a close acquaintance of P.W.1., P.W.3 Sankar Dutta the aunt of P.W.1 who brought up the girl because of the death of the father of the girl and her evidence is quite lengthy wherein she has alleged that P.W.1 was subjected to ill treatment and torture because of demand of money. The learned Magistrate did not at all consider or examine the veracity of evidence of P.W.3. The learned Magistrate did not at all consider or examine the veracity of evidence of P.W.3. The last witness was P.W.4 who was the investigating officer of the case. (11.) HAVING thus read the evidence of the witnesses it appears to me that the judgment and order of the learned magistrate suffers from following legal infirmities: (a) the learned Magistrate observed in the judgment that the P.W.1 was not in sound mental state of health. If this was the observation of the learned Magistrate, he ought not to have proceeded with the trial of the case. (b) In the deposition sheet no inkling has been given by the learned magistrate depicting the loss of mental state of affairs of P.W.1. (c) There has not been any critical appreciation of evidence of P.W.1, P.W.2 and P.W.3 at all in their proper perspective. (d) The learned Magistrate did not deal with the charge under section 406, I.P.C. (12.) FOR these reasons I am constrained to hold that the judgment and order of the learned S.D.J.M., Serampore has to be interfered with. Accordingly, I allow the revisional application and set aside the judgment and order dated 19.11.03 passed by the learned S.D.J.M., Serampore in G.R. case No. 696 of 1999. (13.) THE case is remanded back to the learned trial Court with a direction that he will proceed with retrial of the case which may necessitate examination of P.W.1 afresh and examination of the accused persons under Section 313, cr. P.C. The learned Magistrate, therefore, will be at liberty to examine P.W.1 afresh because of the observation of the learned Magistrate in the impugned judgment that P.W.1 at the time of holding trial was not in a position to understand and reply the questions put to her and that he was not having a balance of mind. P.W.2 and P.W.3 may be re-examined if considered necessary because their evidences are all in the record and if needed, the learned Magistrate may further examine the investigating officer in the context of further examination of P.W.1 and upon recording of such evidence of the witnesses the learned Magistrate will examine the accused persons under section 313, Cr.P.C. and pass a judgment with appreciation of evidence before him. The learned Magistrate shall in view of this judgment, direct the opposite party Nos. 2 and 3 to appear before him to take the retrial.