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2011 DIGILAW 874 (CAL)

Samiran Dey v. Swapan Dutta

2011-07-01

KANCHAN CHAKRABORTY

body2011
JUDGMENT Kanchan Chakraborty, J. 1. THE challenge in this revisional application is to the judgment and order dated 15th December, 2003 passed by the learned Additional District and Sessions Judge, Fast Track Court No. 1, Burdwan in Sessions Case No. 104 of 2002 (S.T. No. 32 of 2003) thereby acquitting the accused-opposite parties (hereinafter referred to as the opposite parties) from the charges under Sections 498A and 302/34 of the Indian Penal Code. 2. THE petitioner, being the defacto-complainant of the case, has come up with this application for revision challenging the legality, validity and propriety of the judgment impugned on the following grounds: 1. that the learned Trial Court failed to appreciate the evidence in its proper and true perspective; 2. that the learned Court failed to consider the settled principles of law in the matter of considering the statement made by the P.W. 1 vis-a-vis the First Information Report; 3. that the learned Trial Court failed to assign any reason as to why the oral testimonies of P.Ws. 12, 13, 17 21 and 25 were disbelieved; 4. that the learned Trial Court erred in accepting the evidence of P.W. 22 in part and disbelieving remaining part of his evidence; 5. that the learned Trial Court was entirely wrong in holding that the P.W. 6 was a tutored witness and that evidence of the witness nos. 11, 13, 18 and 20 altogether established the prosecution case; 6. that the learned Trial Court failed to consider the conduct of the opposite parties; 7. that the learned Trial Court overlooked material evidence and put much stress on irrelevant and immaterial evidence; and 8. that the judgment impugned, being otherwise bad in law, is liable to be set aside. In brief, the case of the prosecution in the learned Trial Court is that the marriage of Kalpana and Swapan Dutta took place in the year 1995 and in their wedlock, one son and one daughter were born. Kalpana was subjected to physical and mental torture in her matrimonial house by her in-laws including her husband Swapan. Despite the fact that all the demands were met by the defacto-complainant, the in-laws including the husband of Kalpana increased the decree of torture on her and created pressure to bring more money from her parents. She was not provided with adequate food and allowed to go to her parents house. Despite the fact that all the demands were met by the defacto-complainant, the in-laws including the husband of Kalpana increased the decree of torture on her and created pressure to bring more money from her parents. She was not provided with adequate food and allowed to go to her parents house. On 25.03.2002, in the morning, the defacto-complainant, Samiran received an information that Kalpana was set on fire by her in-laws. Receiving the information, Samiran rushed to the matrimonial house of Kalpana and found nobody there. He went to Burdwan Medical College and Hospital and found burnt dead-body of Kalpana. Apprehending strongly that Kalpana was burnt alive, Samiran lodged one First Information Report on 25.03.2002 in the Burdwan Police Station. On the basis of the said First Information Report, the case was investigated into and the investigation was ended in a charge sheet under Sections 498A and 302/34 of the Indian Penal Code against the opposite parties. The learned Trial Court, however, framed charges against them under Section 498A and Sections 302/34 of the Indian Penal Code. The opposite parties pleaded not guilty to the charges and, accordingly, the trial commenced. 3. IN course of trial, 25 witnesses were examined on behalf of the prosecution. The First Information Report, one letter of the P.W. 1, one mass petition, INquest Report, post-mortem Report, one statement under Section 164 of the Code of Criminal Procedure and one Sketch map of the place of occurrence were admitted into evidence and marked exhibits on behalf of the prosecution. One zarican of kerosene oil and brunt pieces of cloth of the victim were also admitted into evidence and marked material exhibits on behalf of the prosecution. No witness was examined from the defence side. The opposite parties pleaded their innocence and denied the prosecution case. The learned Trial Court, upon consideration of the evidence on record, oral and documentary, found that the prosecution failed to establish the charges beyond reasonable doubt. Accordingly, the learned Trial Court recorded acquittal of the opposite parties. 4. THE defacto-complainant, Samiran, has come up with this application for revision of the judgment praying for setting aside of the same and for retrial/rehearing of the case on the grounds stated earlier. THE point to be considered is whether the judgment impugned is sustainable in law and is liable to be set aside by exercising revisional jurisdiction by this Court. Mr. THE point to be considered is whether the judgment impugned is sustainable in law and is liable to be set aside by exercising revisional jurisdiction by this Court. Mr. Adhikari, learned advocate appearing on behalf of the petitioner, contended that the witnesses examined on behalf of the prosecution have made consistent and corroborating evidence. There was no reason for the learned Trial Court to discard their evidence. Mr. Adhikari contended, the prosecution case has been established by the statements made by the defacto-complainant under Section 164 of the Code of Criminal Procedure (Exbt. 16), the Post-mortem Report (Exbt. 15), the Report of Hospital (Exbt. 13), the Inquest Report (Exbt. 9) and the letter written by Samiran and others to the Superintendent of Police, Burdwan (Exbt. 4). He contended further that there was no dispute as to the fact that Kalpana died due to severe burnt injuries in her matrimonial house. The letter written by Samiran and others (Exbt. 4) goes to indicate that the signatories therein, including the defacto-complainant, made it clear that the opposite parties caused death of Kalpana by setting her on fire and left the house soon thereafter. He also contended that the learned Trial Court ought to have given importance on the seizure list (Exbt. 7) wherefrom it appears that in course of investigation, the Investigating Officer of the case seized one small zarican of kerosene oil, some burnt pieces of cloths and match-stick from the house of the opposite parties. He contended that the learned Trial Court ought to have considered the post-occurrence conduct of the opposite parties because they were not found in the house immediately after the incident. This apart, Mr. Adhikari, contended that P.W. 11, a teacher attached to Mirzapur Dakshin Palli Mangal Vidyalaya and the resident of Mirzapur and being the Gram Panchayet Prodhan of Saraitikar Gram Panchayet stated that the defacto-complainant, Samiran, complained him regarding behaviour of the opposite parties towards Kalpana. He contended further that P.W. 11 stated that initiatives were taken from the side of Panchayet to resolve the family dispute. Therefore, the learned Trial Court ought to have accepted the fact that Kalpana was a victim of physical and mental torture in her matrimonial house. Mr. Adhikari contended that P.W. 21 stated in his examination-in-chief that he found the burnt body of Kalpana was being carried by a van and on enquiry, Goutam (O.P. no. Therefore, the learned Trial Court ought to have accepted the fact that Kalpana was a victim of physical and mental torture in her matrimonial house. Mr. Adhikari contended that P.W. 21 stated in his examination-in-chief that he found the burnt body of Kalpana was being carried by a van and on enquiry, Goutam (O.P. no. 4) told him that he would tell him in detail afterwards. He also stated that he found opposite party no. 2 and others in his village at 10 A.M. on that date, which was three kilometers away from the house of the opposite parties. The fact that the opposite parties left the house immediately after the incident was established by the evidence of P.W. 21. But, the learned Trial Court did not place any reliance on his statement. Mr. Adhikari contended further that the most important and vital witness of the case was P.W. 8, i.e., the minor son of the deceased and Swapan Dutta. Mr. Adhikari contended that his statement not only established the prosecution case but also had shown how Kalpana, the victim, was tortured first of all and, thereafter, set on fire. There was no reason, whatsoever, for the learned Trial Court to discard his evidence simply on the ground that he was a tutored witness. Besides that the evidence of the people of locality was not accepted by the learned Trial Court without assigning any reason, whatsoever. 5. ACCORDING to Mr. Adhikari, the judgment impugned is perverse one and being so, is liable to be set aside because it has resulted in gross miscarriage of justice. Mr. Sekhar Basu, learned counsel appearing on behalf of the opposite parties, contended that this Court should not and must not interfere into the order of acquittal in a revision when invoked by a private party by way of reappreciating the evidence on record which is the exclusive domain of an appellate Court. He contended that the learned Trial Court has taken all materials and relevant evidences into consideration. It is not true to state that the learned Trial Court overlooked material and relevant evidence, as claimed by Mr. Adhikari, and put much stress on irrelevant and immaterial issues/evidence at the time of recording acquittal of the opposite parties. He contended that the learned Trial Court has taken all materials and relevant evidences into consideration. It is not true to state that the learned Trial Court overlooked material and relevant evidence, as claimed by Mr. Adhikari, and put much stress on irrelevant and immaterial issues/evidence at the time of recording acquittal of the opposite parties. This apart, he contended further that the P.W. 8, the minor son of the deceased and Swapan Dutta, did not state the Investigating Officer the material facts immediately after the incident when he was examined by the Investigating Officer. But, he has stated something different in course of his examination as P.W. 8 in Court. He had drawn my attention to the evidence of the Investigating Officer, i.e., the P.W. 25 and stated that the Investigating Officer in his cross-examination denied categorically that the P.W. 8 made such a statement to him. The P.W. 25 also denied that the P.W. 1, i.e., the defacto-complainant, narrated the entire incident to him while his statement under Section 161 of the Code of Criminal Procedure was recorded. ACCORDING to Mr. Basu, the judgment impugned is based on sound principles of law and, this Court should not and must not upset the judgment by invoking its revisional jurisdiction. This apart, he contended that the criminal action against the opposite parties was set in motion long back in the year 2002, i.e., about nine years ago. If so, there will be no fruitful prosecution by way of rehearing/retrial of the acquitted accused after such a long period. 6. I have carefully gone through the judgment impugned, the evidence recorded by the learned Trial Court as well as the documentary evidence. No doubt, the cause of death of Kalpana was due to burn injuries sustained by her in her matrimonial house. It is also true that the minor son of the deceased (P.W. 8) has given a vivid description of the incident, which almost tallied with the prosecution version. No doubt, the cause of death of Kalpana was due to burn injuries sustained by her in her matrimonial house. It is also true that the minor son of the deceased (P.W. 8) has given a vivid description of the incident, which almost tallied with the prosecution version. But, at the same time, it appears from the evidence of P.W. 25, P.W. 1 and other witnesses and the First Information Report that material and important facts were not disclosed by the witnesses to the Investigating Officer immediately after the incident while they were examined by the Investigating Officer and that the materials and relevant facts were not stated in the First Information Report although there were reasons enough for the defacto-complainant to do so. On scrutiny of the evidence on record, I find that the witnesses failed to state the incident in true sense as to when and how Kalpana was tortured in her matrimonial house. It is true that the P.W. 21 has stated that there was a family dispute which he and others tried to resolve on behalf of the Panchayet. That fact alone does not necessarily indicate that Kalpana was subjected to physical and mental torture in her matrimonial house. There is nothing in the statement of the P.W. 1 that there was systematic torture on Kalpana by her in-laws for demand of dowry. The local witnesses, such as P.W. 2, P.W. 3, P.W. 4, P.W. 5, P.W. 6 and P.W. 7 have stated that they knew that Kalpana was tortured mentally and physically in her matrimonial house but their evidences were not found sufficient and satisfactory enough by the learned Trial Court to come to a conclusion that such torture, mental and physical, was amounting to the cruelty within the meaning of Section 498A of the Indian Penal Code. P.W. 24, a relation of the opposite parties, stated that Kalpana and her husband were keeping well. P.W. 22, a resident of Dewandighi, has also stated that Kalpana was leading a happy and peaceful life in her matrimonial house. P.W. 24 supported the statement of P.W. 21 that opposite Goutam accompanied Kalpana when she was removed to hospital. At that relevant time, opposite party Nabakumar and Swapan were in the shop. Naturally, they were not found in the house. The evidence of P.Ws. P.W. 24 supported the statement of P.W. 21 that opposite Goutam accompanied Kalpana when she was removed to hospital. At that relevant time, opposite party Nabakumar and Swapan were in the shop. Naturally, they were not found in the house. The evidence of P.Ws. 12, 13, 17 and 21 did not appear to be helpful for the prosecution according to the learned Trial Court. I also do not think that the evidence of P.Ws. 12, 13, 17 and 21 is to be discarded simply because they did not support the prosecution case. 7. NO doubt, the most important and vital witness in the trial was P.W. 8. The P.W. 8, Surajit Dutta, son of the deceased and opposite party Swapan Dutta, stated that his mother Kalpana was washing utensils at the relevant time when the opposite parties including his father Swapan caught hold her mother and manhandled her. She fell on the staircase and rolled down to the ground floor. She sustained injury on her head. Thereafter, all the opposite parties took her to the kitchen, poured kerosene oil on her body and burnt her. Thereafter all of them left house through the back door. P.W. 8 was taken by them to his aunts house at Bijoyram. Thereafter, they went to Durgapur and stayed there for 14/15 days and came back Bijoyram thereafter. P.W. 8 was taken back to the Dewandighi by one Hriday uncle by a motor cycle. Thereafter he was taken to the house of his maternal uncle. After that, P.W. 1 took the P.W. 8 to his house along with his sister (Bunu). The P.W. 8 stated that he was taken to Police Station and thereafter, to a doctor to whom he narrated the entire incident. I find that the learned Magistrate ignored the mistake made by the P.W. 8 in describing the Magistrate as Doctor. I also find that the learned Magistrate ignored the fact that the P.W. 1 and others failed to state to the officer who conducted the inquest as to the names of the persons responsible for causing death of Kalpana. I find that the learned Trial Court did not put any importance at all on irrelevant evidence or materials on record. 8. THE learned Trial Court, as it appears from the judgment impugned, put much stress on the statement of the Investigating Officer of the case. I find that the learned Trial Court did not put any importance at all on irrelevant evidence or materials on record. 8. THE learned Trial Court, as it appears from the judgment impugned, put much stress on the statement of the Investigating Officer of the case. No doubt, the statement of the Investigating Officer, in a case like this, is really vital and important because he is the man who investigated into the matter and filed charge sheet, obviously, after getting sufficient materials for prosecuting the accused persons. It is also very important to take note of the fact as to what he gathered from the witnesses at the time of investigation basing on which he filed the report under Section 173 of the Code of Criminal Procedure. THE P.W. 25, i.e., the Investigating Officer of the case, stated categorically in course of his examination that the P.W. 8 did not state anything to him what he stated in the Court in course of his examination as P.W. 8. Peculiarly enough, Surajit made statement under Section 164 of the Code of Criminal Procedure after his examination by the Investigating Officer. He did not state anything to the Investigating Officer but to the Magistrate. THE learned Trial Court found that the date of incident was 25.3.2002. THE P.W. 8 was taken by the opposite parties to Durgapur where he stayed for about 16/17 days. Thereafter he was handed over to the P.W. 1, his maternal uncle who took him to the Police Station and got the statement recorded under Section 164 of the Code of Criminal Procedure on 26.04.2002. Therefore, the learned Magistrate found that his statement was unsafe to rely on because he was in the custody of the defacto-complainant for about 14/15 days before making statement to the learned Magistrate, especially when he did not make any such statement giving description of the incident to the Investigating Officer before whom he was produced first of all by the P.W. 1. THE learned Court found that the witnesses who had supported the prosecution case, did not state the vital allegations against the opposite parties to the Investigating Officer when they were examined. THE marriage of Kalpana and Swapan had taken place long back in the year 1995. In their wedlock, one son and one daughter were born. THE learned Court found that the witnesses who had supported the prosecution case, did not state the vital allegations against the opposite parties to the Investigating Officer when they were examined. THE marriage of Kalpana and Swapan had taken place long back in the year 1995. In their wedlock, one son and one daughter were born. Before the death of Kalpana, no one came forward and lodged any complaint with the Police Station regarding mental and physical torture on Kalpana by her inmates. THE learned Trial Court also taken note of that fact in the judgment impugned. THE learned Trial Court also found that the mother of the deceased stated that the dispute between the deceased and her husband was normal in nature, which usually occur in every family. All these facts altogether indicates that the alleged torture upon Kalpana was not amounting to cruelty falling within the ambit of Section 498A of the Indian Penal Code. THE view of the learned Trial Court cannot be said to be perverse. I find that Hriday uncle, who, according to the evidence of the P.W. 8, had taken the P.W. 8 to the house of the P.W. 1 by a motor cycle, has not been examined. Withholding his examination as a prosecution witness obviously has gone against the prosecution case. The learned Trial Court considered the case from all the possible angles and also considered whether on the basis of sole testimony of P.W. 8 conviction of the opposite parties would be recorded or not. He found that it was not safe to rely on the sole testimony of the P.W. 8. 9. THE evidence of P.W. 1 was critically examined by the learned Trial Court. THE learned Trial Court found that the P.W. 1 failed to state the material facts in the First Information Report as well as to the Investigating Officer of the case and there was improvement, exaggeration and embellishment in the prosecution version. THE learned Trial Court found that although there is evidence in support of prosecution case to some extent, but there is evidence also against the prosecution case and that when two views are possible on evidence on record one points to the guilt of the accused and the other to his innocence, accused is entitled to benefit of the views pointing to his innocence. I find nothing wrong, illegality and impropriety of the judgment impugned in view of the decision of the Honble Apex Court in State of Uttar Pradesh v. Samman Dass, reported in 1972 SCC (Cri) 275. 10. IT is settled principle of law that only in glaring cases of injustice resulting in from some violations of fundamental principles of law by the Trial Court, the High Court is empowered to set aside the order of acquittal and direct retrial of the acquitted accused. IT has been consistently viewed by the Honble Apex Court that this power of revision should be exercised sparingly and with great care and caution. The mere circumstances that a finding of fact recorded by the Trial Court may, in the opinion of the High Court, be wrong, will not justify setting aside the order of acquittal and directing retrial. In this context the decision of the Honble Apex Court in Bansilal (1986) Cr. L.J. 1603 can well be referred to. The Honble Supreme Court in Sheetala Prasad vs. Srikant and Ors., reported in AIR 2010 SC 1140 , set out the following circumstances when High Court may set aside an order of acquittal for revision when invoked by a private party: (a) where the Trial Court has shut out evidence which the prosecution wished to produce; (b) where admissible evidence is wrongly brushed aside as inadmissible; (c) where the Trial Court has no jurisdiction to try the case and has still acquitted the accused; (d) where the material evidence has been over looked either by the Trial Court or the Appellate Court or the order is passed by considering irrelevant evidence; (e) where the acquittal is based on compounding of offence which is invalid under the law. 11. ON scrutiny of the evidence on record and the judgment impugned, I find that the learned Trial Court has neither overlooked material evidence nor considered irrelevant evidence while recording acquittal of the opposite parties. The judgment impugned cannot possibly be said to be invalid, illegal and perverse. That being so, this Court finds it inexpedient to upset the judgment by exercising its revisional jurisdiction when invoked by a private party. 12. THIS apart, I find that a criminal action was set in motion long back in the year 2002, i.e., nine years ago. The judgment impugned cannot possibly be said to be invalid, illegal and perverse. That being so, this Court finds it inexpedient to upset the judgment by exercising its revisional jurisdiction when invoked by a private party. 12. THIS apart, I find that a criminal action was set in motion long back in the year 2002, i.e., nine years ago. Directions of retrial of the acquitted accused persons after such a long period, will not be fruitful because prosecution would not be in a position to make a fruitful retrial. Taking everything into consideration, I dismiss this revisional application and uphold the judgment impugned. There will, however, be no order as to costs. Interim order, if there be any, stands vacated. Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of necessary formalities.