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2009 DIGILAW 868 (CAL)

Aparna Sinha v. Uttam Sinha

2009-12-01

Tapas Kumar Giri

body2009
JUDGMENT Tapas Kumar Giri 1. THIS application under section 401 read with section 482 of the Code of Criminal Procedure is filed challenging the impugned order and judgment dated 05.04.2008 passed by Id. Judicial Magistrate, 1st Court at Purulia for acquittal in connection with G.R. No, 555/2003 in respect of the opposite party Nos. 1 to 4 from the charge under section 498A/34 arising out of Puncha Police Station Case No. 31 of 2003. 2. THE fact of the present application in brief is that the petitioner lodged the complaint before Puncha Police Station on 29.09.2003 against her husband Uttam Sinha, Basudev Sinha, Smt. Ami Sinha, Tapan Sinha, Baby Sarkar and Kalyani Sarkar who were the relatives of her husband Uttam Sinha. It is the case of the petitioner that after her marriage on 20.06.2002 with Uttam Sinha she came to her matrimonial house on 21.06.2002. But she was taunted by her in-laws regarding her black complexion and for non-payment of sufficient money as dowry and all the above opposite parties began to misbehave with her. On the 3rd weeding night i.e. on 22.06.2002 her husband entered into her room and assaulted her in presence of her brother mercilessly. She along with her brother was confined in the room, and ultimately the complainant was driven out from matrimonial house on 24.06.2002 at 3 p.m. THE complainant informed the matter to the local Panchayat and Village Salishi was held to settle her matrimonial dispute but failed. On the basis of the complaint to the police station, the police officer after completion of investigation submitted the chargesheet against the opposite party Nos. 1 to 4 under section 498A/34 of the Indian Penal Code read with sections 3 and 4 of Dowry Prohibition Act. THE charge under section 498A of the IPC read with sections 3 and 4 of Dowry Prohibition Act was framed against the opposite party No. 1 to 4 and they pleaded not guilty. In course of trial the prosecution examined altogether six witnesses i.e. Basudev Mukherjee - P.W. 1, Sati Pada Pramanik - P.W. 2, Kartick Sardar - P.W. 3, Siddheswar Mitra - P.W. 4, Smt. Aparna Sinha (Mitra) -P. W. 5 and A.B. Bannerjee - P.W. 6. Out of above six witnesses P.Ws. In course of trial the prosecution examined altogether six witnesses i.e. Basudev Mukherjee - P.W. 1, Sati Pada Pramanik - P.W. 2, Kartick Sardar - P.W. 3, Siddheswar Mitra - P.W. 4, Smt. Aparna Sinha (Mitra) -P. W. 5 and A.B. Bannerjee - P.W. 6. Out of above six witnesses P.Ws. 1, 2 and 3 were the witnesses regarding the marriage of P.W. 5 and the accused Uttam Sinha, P.W. 4 was the father of P.W. 5, P.W. 5 was the de facto complainant i.e. the wife of the accused Uttam Sinha and P.W. 6 was the IO in connection with the case. At the very outset it is to be mentioned that Id. Judicial Magistrate, Purulia, after considering the evidence of all witnesses acquitted all the accused persons i.e. opposite parity Nos. 1 to 4. 3. SOME papers were marked as exhibit at the time of trial. After elaborate discussion of the oral evidence of the prosecution as well as after scrutinizing the relevant documents and after submission of learned Advocates of both sides in detail, the Id. Judicial Magistrate did not believe the evidence of P. Ws. 4 and 5 and as such the Id. Judicial Magistrate acquitted all the accused i.e. opposite party Nos. 1 to 4. 4. MR. Satpathi, Id. Advocate, appearing on behalf of the petitioner i.e. de facto complainant, pointed out that the Id. Judicial Magistrate acquitted all the accused persons without considering the materials evidence on record and the order of acquittal should be set aside as there was sufficient evidence against all the accused for the alleged offence under section 498A of the Indian Penal Code. Mr. Satpathi also pointed out that in the present revision under section 401(3) of the Criminal Procedure Code, this Court has the power to interfere with the matter of acquittal and the order of acquittal can be set aside and in the present case it is a fit case to remit the same for retrial where the material evidence is overlooked by the Trial Court. 5. MR. Satpathi also pointed out that the relevant evidences of witnesses, as produced on behalf of the de facto complainant, were sufficient to prove the torture/ill-treatment upon the de facto complainant and as such the rejection of the evidence of the prosecution should be set aside. 6. IN support of contention Mr. 5. MR. Satpathi also pointed out that the relevant evidences of witnesses, as produced on behalf of the de facto complainant, were sufficient to prove the torture/ill-treatment upon the de facto complainant and as such the rejection of the evidence of the prosecution should be set aside. 6. IN support of contention Mr. Satpathi cited the case law reported in 2004 SCC (Cri) page 2009, Ram Brikash Singh and Ors. vs. Ambika Jadev and Anr.; 2005 SCC (Cri) page 1237, State of Kar vs. K. Gopala Krishna; 1998 Cal (Cri) Law Reporter (SC) 190, Pawan Kr. vs. State of Harn; 1994 Cal (Cri) Law Reporter page 10, State of W.B. vs. Arilal Jaiswal. Mr. Satpathi also pointed out that the wife was the psychiatrist patient and the Id. Judicial Magistrate did not consider her mental stability at the time of trial and as such it is a fit case to remand the same on that issue and Mr. Satpathi cited the relevant provision of section 118 of the Evidence Act. Mr. Satpathi cited a case law reported in 2008(1) C Cr. LR (Cal) 740, Debi Rit vs. State of W.B. and Ors. 7. MR. Mukherjee, appearing on behalf of the opposite party Nos. 1 to 4, pointed out that there was no illegality in the judgment of Id. Judicial Magistrate as no corroborative evidence had come before the Court to establish the allegation. 8. MR. Mukherjee also pointed out that the present revisional application was filed beyond the period of limitation. MR. Mukherjee also pointed out that this Court has the power, being an Appellate Court, to consider against the order of acquittal but it should be bore in mind that in case of acquittal there is double presumption in favour of the accused. MR. Mukherjee also pointed out that the evidences, as produced before the Id. Court below, were not the sufficient evidences to convict the accused as alleged. As such there is no scope to interfere with the said order of acquittal. MR. Mukherjee cited the case law reported in AIR 2009 3C 1066, State of Goa vs. Pandurang Mohiti and AIR 1975 SC 1960 , Duli Chand vs. Delhi Admn. Mr. Ghosal, learned Advocate, appearing on behalf of the State, pointed out that there was no illegality in the judgment of the learned Judicial Magistrate and as such the present revisional application is liable to be dismissed. Mr. Ghosal, learned Advocate, appearing on behalf of the State, pointed out that there was no illegality in the judgment of the learned Judicial Magistrate and as such the present revisional application is liable to be dismissed. 9. I have gone through the submission of both sides and order dated 05.04.2008 passed by the Id. Judicial Magistrate, Purulia, as well as the relevant documents as placed before the Id. Court below at the time of trial. 10. IT is true that in the case of acquittal the power of the High Court is not restricted but the High Court has only demonstrated as to how the material evidence has been overlooked leading to manifest illegality resulting in gross miscarriage of justice. It is needless to mention that the marriage in between Aparna Sinha and Uttam Sinha was solemnized and there was no denial from any of the party and as such the evidences of P.W. 1, P.W. 2 and P.W. 3 are not essential to discuss at length. Only the evidences of P.W.4, P.W. 5 and P.W. 6 are the essential evidences to consider the allegation as alleged. It is admitted from the evidence that the marriage was solemnized on 20.06.2002 and she went to the matrimonial house on 21.06.2002 and she left the matrimonial home in the morning of 24.06.2002 and as a result she stayed in her matrimonial house only three days. From the evidence of P.W. 5 it is seen that on the night of Tula sajya" her husband entered into the room with drunken condition and threatened to kill her and on 23.06.2002 the accused kept her and her brother in a room which was bolted from outside. The brother of P.W. 5 was not examined from the prosecution at the time of trial. There was no explanation from the part of the prosecution why the brother of P.W. 5 was not examined at the time of trial. There was no suggestion to P.W. 6 who was the IO of this case whether he examined the brother of P.W. 5 who was detained with her sister on 23.06.2002 in that house or not. In the evidence of P.W.4 who is the father of P.W.5 it is clearly indicated that his daughter never complained him that she was tortured by her in-laws including her husband. In the evidence of P.W.4 who is the father of P.W.5 it is clearly indicated that his daughter never complained him that she was tortured by her in-laws including her husband. The fact of torture as stated by P.W. 5 was not corroborated with the evidence of P.W. 4. The relevant findings of Id. Judicial Magistrate clearly observed in the judgment that the prosecution failed to establish the allegation of torture upon P.W. 5. 11. IT is the case of the petitioner that P.W.5 was the patient of psychiatrist and she was mentally treated by different doctors i.e. Dr. Ashis Kundu and Dr. A.B. Patra. But the IO i.e. P.W. 6 did not take any attempt to examine those doctors to establish the nature of mental stability of P.W.5. The Id. Judicial Magistrate did not testify P.W. 5 before examination of such type of psychiatrist patient, as P.W. 5 deposed before the learned Court in a normal way. The evidence of P.W.5 and P.W. 4 remained uncorroborated at the time of trial with reference to the allegation as reported in the FIR. 12. AS such there is no scope to interfere with the judgment passed by the Id. Judicial Magistrate, 1st Court, Purulia, either to alter or to modify the same by way of this revisional application. The present application fails and it is dismissed. Let the LCR along with the copy of the order be sent to the learned Court below. Urgent xerox certified copy be supplied to the party, if applied for.