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2009 DIGILAW 926 (CAL)

Namita Mukherjee v. STATE OF WEST BENGAL

2009-12-21

TAPAS KUMAR GIRI

body2009
Judgment :- (1.) This revision under Section 401 read with Section 482 of the Criminal Procedure Code is directed at the instance of the de facto complainant against the judgment and order of acquittal dated 12 March, 2008 passed by learned Additional Sessions Judge, Barrackpur, in Sessions Case No. SC 9(2) 2005 (Sessions Trial No. ST. 5(3) of 2005) arising out of Titagarh Police Station Case No. 198 dated 2.7.1996 under Section 498A/306 of the Indian Penal Code. (2.) The fact of the present application, in brief, is that the marriage in between Soma Paul, daughter of the de facto complainant and Koushik Paul was solemnized on 28.5.1995 according to Special Marriage Act. After marriage Soma Paul went to her matrimonial home at Natun Palli where she resided with her husband Koushik along with her elder brother-in-law and mother-in-law. On 31.5.1996 at about 9 a.m. Ms. Namita Mukherjee, the de facto complainant, got an information from one person that her daughter Soma had been shifted to B.N. Bose Hospital with burn injury. The complainant rushed to B.N. Bose Hospital and found her daughter sustaining burn injury and she was not in a position to talk. Subsequently, her daughter was shifted to R.G. Kar Medical College and Hospital and she was succumbed to injure on 3.6.1996. The complaint was lodged by the de facto complainant against the O.P. Nos. 2 to 4, with an allegation against the 4 accused persons for torture and cruelty. The Investigating Officer after receiving the complaint being Titagarh Police Stations Case No. 198 dated 2.7.1996 under Section 498A/ 306 of I.P.C. started investigation and after completion of investigation the I.O. filed the charge sheet against the aforesaid 4 accused persons. The accused persons were released on bail and stood for trial. (3.) Learned Additional Sessions Judge, Barrackpur, on perusal of necessary papers placed before him and after hearing both the prosecution and the accused framed the charge under Section 498A/306 of I.P.C. against the accused who pleaded innocent and claimed to be tried. (4.) During the trial the prosecution examined 9 witnesses i.e. Namita Mukherjee (P.W.1), Sikha Sarkar (P.W.2), Amalendu Hira (P.W.3), Juthika Hira (P.W.4), Sandhya Biswas (P.W.5), Tapesh Chakraborty (P.W.6), Samir Chakraborty- (P.W.7), Shyamal Dey (P.W.8) and Swapan Kumar Banerjee (P.W.9). (4.) During the trial the prosecution examined 9 witnesses i.e. Namita Mukherjee (P.W.1), Sikha Sarkar (P.W.2), Amalendu Hira (P.W.3), Juthika Hira (P.W.4), Sandhya Biswas (P.W.5), Tapesh Chakraborty (P.W.6), Samir Chakraborty- (P.W.7), Shyamal Dey (P.W.8) and Swapan Kumar Banerjee (P.W.9). Out of the above 9 witnesses, P.W. 1 was the de facto complainant, P.W.9 was the part I.O. of this case and others i.e. P.W.4 to P.W.8 were produced by the prosecution. (5.) At the very out set, it has to be mentioned that learned Additional Sessions Judge acquitted the accused persons as the prosecution failed to establish the allegation beyond reasonable doubt and suspicion. (6.) Some papers were marked as Exhibit at the time of trial. Learned Additional Sessions Judge, as it transpires from the judgment, placed his reliance on the evidence of P.Ws.2 to 8. (7.) After elaborate discussion of the oral evidence of the prosecution and after submission of both the prosecution and defence in detail, learned Additional Sessions Judge after accepting the prosecution evidence found the accused Nos.2 to 4 not guilty under Section 498A/306 of I.P.C. and acquitted them. (8.) Being aggrieved and dissatisfied against the said judgment and order of acquittal the de facto complainant has filed the rivisional application for relief. (9.) Appearing for the petitioner, in connection with this application, learned Advocate, Mr. Mitra, contended that in the charge sheet there were 15 witnesses but. the learned Additional Sessions Judge examined only 9 witnesses and in the present trial there was no judicial order from the learned Court below why the learned Additional Sessions Judge did not examine the rest witnesses as per charge sheet. (10.) Mr. Mitra also contended that in the charge sheet the Doctor was the vital witness to establish the allegation of the charge but the said Doctor was not examined and there was no specific judicial order by the learned Trial Judge why the Doctor, as per charge-sheet was not examined. (11.) Mr. Mitra also contended that it was the duty of the learned trial Court to examine the rest witnesses as per charge sheet as per provision of Section 311 of the Code of Criminal Procedure only to find out the truth of the allegation as alleged, But in the present case learned Court below did not take any step in that respect. As a result, the order of acquittal must be set aside and necessary direction should be given to the learned trial Court to find out the truth by examining the rest witnesses as per charge sheet, (12.) In support of the contention, Mr. Mitra cited the decisions reported in (2006)2 C Cr LR (SC) 504 (U.T. of Dadra and Nagar Haveli v. Fatehsinh Mohansing Chauhan), 2007 (Vol.2) C Cr LR (Cal) 660, 2009 (Vol.2) C Cr LR (Cr) 161, 2009 Vol.2 C Cr LR (Cal) 479. (13.) Mr. Mallick, learned Advocate, appearing on behalf of the State, contended that in the lower Court record there was no judicial order why the rest witnesses, as per charge sheet, were not examined including the Doctor. There was no miscarriage of justice from the learned trial Court before pronouncing the judgment for acquittal and it is a fit case to remand this case for fresh decision after giving an opportunity to the prosecution to examine the rest witnesses as per charge sheet including Doctor. The present revisional application deserves the right for remand, after setting aside the judgment and order of acquittal passed by the leaned Court below. (14.) Ms. Goswami, learned Advocate, appearing on behalf of the O.P. Nos.2 to 4, contended that from the evidence of P.W.2 to P.W.8 no allegation was established against the O.Ps. for the offence under Section 498A/306 of the I.P.C. The occurrence cook place on 26-06-1996 and 13 years were passed but no fruitful result was served to remand the accused for fresh decision after examining the rest witnesses as per charge sheet. The learned trial Court rightly held that the prosecution failed to establish the charge against the O.Ps. beyond the reasonable doubt and suspicion. (15.) Ms. Goswami also pointed out that P.W.3 who was the landlord of the house including P.W.4 who was the wife of P.W.3 did not support the prosecutions allegation that there was any demand of dowry or torture during the stay of Soma Paul along with her husband in the rented house and as such the total allegation was false against the present O.PS. (16.) Ms. Goswami also pointed out that the order of acquittal should be reversed only when there is more substantial and compelling reasons. In support of the contention, Ms. (16.) Ms. Goswami also pointed out that the order of acquittal should be reversed only when there is more substantial and compelling reasons. In support of the contention, Ms. Goswami cited case law reported in (2008)2 Acquittal 355 (SC): (2009)1 C Cr LR (SC) 193 (Ghurey Lal v. State of U.P.). (17.) Ms. Goswami also pointed out that the evidence of P.Ws.2 to 8 did not disclose any ingredients of offence under Section 498A/306 of I.P.C. to the effect that the deceased must have been subjected to cruelty and harassment in connection with any demand of dowry and in the present case there was no such evidence, from the part of the prosecution and as a result there is no scope to interfere in the order of acquittal passed by the learned Additional Sessions Judge. In support of the contention Ms. Goswami cited decision reported in (2008)2 Acquittal 531 (State of Tripura v. Dulal Dey) and (2008)2 Acquittal 140 (SC) (State of Haryana v. Shibnarayan and Ors). (18.) Ms. Goswami also pointed out that it is not a fit case to remand the case for trial after taking the evidence of the rest witnesses to find out the truth. The present application is liable to be dismissed. (19.) Heard learned Advocates of both sides Mr. Mitra, Mr. Mallick and Ms. Goswami. have gone through the relevant judgment dated 12.3.2008 passed by learned Additional Sessions Judge, Barrackpur, and I have gone through the relevant lower Court record along with the relevant orders dated 31.3.2005 and the orders of other dates as in the record. In the lower Court: record as per order dated 31.3.2005 learned Additional Sessions Judge fixed the date for the trial of the case as per schedule i.e. witness Nos. 1 to 10. If we look into the charge sheet then it will be seen that there were 15 witnesses. Out of 15 witnesses serial Nos.1 to 10 were shown as charge witnesses as per schedule programme. After several dates the learned Trial Judge examined 9 witnesses. C Cr LR-75 (20.) In the order of the different dates there was no judicial order why serial No. 11 to 15 were not examined or cited on behalf of the prosecution including the Doctor i.e. serial No, 12. It appears from the lower Court record that P.W.9 was the part I.O. of this case. C Cr LR-75 (20.) In the order of the different dates there was no judicial order why serial No. 11 to 15 were not examined or cited on behalf of the prosecution including the Doctor i.e. serial No, 12. It appears from the lower Court record that P.W.9 was the part I.O. of this case. The doctor who initially examined the victim at B.N. Bose Hospital and afterwards when she was treated at R.G. Kar Medical College and Hospital was not examined by the prosecution at the time of trial. There was no explanation why the I.O. was not examined in connection with this case at the time of trial. The present allegation was for demand of dowry as well as for abatement of committing suicide by the victim. (21.) In the judgment learned Trial Judge did not assign any reason why the evidence of P.W. 1 was disbelieved and there was no appreciation of evidence at all. The evidence of the PW.2 to.P.W.8 were not only vital evidence but also to consider the respective evidence with reference to the evidences of the other witnesses who were not examined by the prosecution at the time of trial. Therefore, there is the miscarriage of justice for passing the order of acquittal in absence of the evidence of the rest witnesses who were brought in the charge sheet. It is well-settled that it is open to the High Court in revision to set aside an order of acquittal even at the instance of the private parties though the State may not have thought fit to appeal but this jurisdiction should be exercised by the High Court only in exceptional case when there is some glaring defect in the prosecution or there is a manifest error on a point of law and subsequently there has been a flagrant miscarriage of justice. (22.) In the present case, learned Trial Judge did not take any observation in the judgment why the prosecution did not examine the rest witnesses of the charge sheet including the Doctor who was the vital witness in this case. The de facto complainant i.e. the present petitioner has filed this application to find out the truth of the present allegation. The de facto complainant i.e. the present petitioner has filed this application to find out the truth of the present allegation. (23.) This Court is of the opinion that the evidence of the rest witnesses of the charge sheet who were not examined by the learned Court below are the essential witness to find out the truth with reference to the evidence of P.Ws.1 to 9 including the post mortem examination. As a result, the present revisional application succeeds and it is allowed. The judgment and order of acquittal passed by the learned Additional Session Judge, Barackpur, is set aside. Learned Additional Sessions Judge, Barackpur is directed to take evidence of the rest witnesses as in the charge sheet as a Court witnesses under Section 311 of the Cr.P.C. and to give afresh judgment with reference to the evidence of the prosecution witnesses i.e. P.W. 1 to P.W.9 accordingly. The revisional application is allowed and this revisional case is disposed of accordingly. (24.) Let the L.C.R. along with the copy of this judgment be sent to the learned Court below at once. Learned Registrar, Administration, is requested to send the L.C.R. along with the copy of the present order to the learned Additional Sessions Judge, Barackpur by a special messenger within 7 days from the date of this order.