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2018 DIGILAW 176 (CAL)

Krishna Singha v. State of West Bengal

2018-01-25

ASHA ARORA

body2018
JUDGMENT : Asha Arora, J. 1. This appeal is directed against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Howrah in Sessions Trial No. 560 of 2005 whereby the appellant has been convicted for the offences punishable under section 498A and 304-B of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.1000/- in default of which to suffer simple imprisonment for two months for the offence punishable under section 304-B of the I.P.C. and to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- in default of which to suffer simple imprisonment for one month for the offence punishable under section 498A of the I.P.C. 2. Prosecution case, bereft of unnecessary details is as follows : On 9th October, 1993 one Ram Narayan Singh lodged a written complaint at Liluah P.S. stating that his daughter Rupali was given in marriage to Krishna Singha on 1st July, 1993 and at the time of her marriage he gave Rs.15,000/- in cash, gold ornaments and other articles but within seven days of marriage the mother-in-law and husband of Rupali started torturing her for more cash. Some money was given to them but the torture upon the victim continued as their demand for Rs.20,000/- could not be satisfied. On 29th September, 1993 the victim came to her father’s house with her husband (appellant herein) who again demanded Rs.20,000/- which the defacto complainant refused to give whereupon the appellant threatened that his daughter will not be at peace unless his demand is fulfilled. On 8th October 1993, on being informed about Rupali’s illness, her mother, brother and maternal grandmother went to see her in her matrimonial home where they found her lying dead with marks on her neck. They were informed that Rupali had committed suicide. On the basis of the aforesaid written complaint, Liluah P.S. Case No.133 of 1993 dated 9th October 1993 was initiated against accused Krishna Singha and Kanak Prova Singha under section 498-A/306/304-B I.P.C. Investigation culminated in the submission of the charge-sheet under section 498A/304B/306 I.P.C. against the aforesaid two accused persons. 3. They were informed that Rupali had committed suicide. On the basis of the aforesaid written complaint, Liluah P.S. Case No.133 of 1993 dated 9th October 1993 was initiated against accused Krishna Singha and Kanak Prova Singha under section 498-A/306/304-B I.P.C. Investigation culminated in the submission of the charge-sheet under section 498A/304B/306 I.P.C. against the aforesaid two accused persons. 3. The case being a sessions triable one was committed to the court of the Sessions Judge Howrah wherefrom it was transferred for trial and disposal to the Additional Sessions Judge, 2nd Fast Track Court Howrah. Charge was framed under section 498A and 304-B read with section 34 I.P.C. against both the accused persons who pleaded not guilty to the indictment and claimed to be tried. During trial prosecution examined eleven witnesses and relied upon several documents which were exhibited. 4. Defence version in short is innocence and complete denial of the prosecution story. Four witnesses were examined by the accused in support of the defence case that all was well with the deceased victim in her matrimonial home. By way of suggestions in cross examination to some of the prosecution witnesses, accused sought to set up a futile and unsubstantiated defence that the deceased victim was unhappy since she could not marry a boy named Lali with whom she had love affair. 5. On conclusion of trial the learned Additional Sessions Judge passed the impugned judgment and order of conviction and sentence against the appellant. 6. The point for determination is whether the impugned judgment and order of conviction and sentence is sustainable. 7. Castigating the prosecution case on multifarious counts, learned counsel appearing for the appellant argued that the FIR lodged by the father of the deceased has not been proved and it is hit by section 162 of the Cr.P.C. as the information on the basis of which the U.D. case was initiated has been withheld. 7. Castigating the prosecution case on multifarious counts, learned counsel appearing for the appellant argued that the FIR lodged by the father of the deceased has not been proved and it is hit by section 162 of the Cr.P.C. as the information on the basis of which the U.D. case was initiated has been withheld. Placing reliance upon the decisions reported in 1998 SCC (Cri) 1605 (State of Rajasthan versus Rajendra Singh), (2000)9 SCC 455 (Anil Kumar versus State of Punjab) and (2003)3 SCC 175 (Vimal Suresh Kamble versus Chaluverapinakeapal S.P. and another), it has strenuously been argued by the learned counsel for the appellant that the evidence of P.W 1 and P.W 2, the mother and brother of deceased is far from trustworthy in view of material contradictions in their testimony in relation to their statement under section 161 Cr.P.C. Referring to the decision reported in 2005 SCC (Cri) 1037 (Mukhtar Ahmed Ansari Versus State (NCT of Delhi) it has been canvassed that the accused/appellant can rely on the evidence of P.W 8 who did not support the prosecution case but was not declared hostile. Learned counsel for the appellant sought to impress that there is no evidence of abetment to commit suicide and in the absence of a direct act on the part of the accused/appellant to instigate or aid in committing suicide, the offence under 306 I.P.C. cannot be made out. To buttress such submission reference has been made to the decisions reported in 2002 SCC (Cri) 1088 (Ramesh Kumar versus State of Chhattisgarh) and (2010) 1 SCC (Cri) 917 (Gangula Mohan Reddy versus State of Andhra Pradesh). Leading this Court through the examination of the accused/appellant under section 313 Cr.P.C learned counsel for the appellant pointed out that a material incriminating circumstance appearing in the evidence of P.W 1 and P.W 2 which was used by the trial court to convict the appellant was not put to him during his examination under section 313 Cr.P.C. It has been contended that such an omission to question the accused/appellant regarding a vital piece of evidence has caused prejudice to him. In the circumstances of the case the appellant should be acquitted. In support of such submission reliance has been placed on the decision reported in AIR 1955 SC 792 in the case of Machander versus The State of Hyderabad. In the circumstances of the case the appellant should be acquitted. In support of such submission reliance has been placed on the decision reported in AIR 1955 SC 792 in the case of Machander versus The State of Hyderabad. Reference has also been made to Nar Singh’s case reported in (2015) 1 SCC (Cri) 699. 8. Mr. Mitra, learned advocate appearing for the State admitted that a vital piece of incriminating circumstance testified by P.W 1 and P.W 2 relating to 29th September 1993 was not put to the appellant during his examination under section 313 Cr.P.C. Referring to the judgment in Nar Singh’s case (Supra) learned advocate for the State pointed out that the courses available to the appellate court in such a case have been enumerated in paragraph 30 of the aforesaid judgment but the appellant is not entitled to acquittal on account of such omission. 9. The relevant piece of incriminating circumstance referred to in the evidence of P.W 1 which was not put to the accused during his examination under section 313 Cr.P.C. is reproduced as follows : “On the second occasion Rupali came to our house with her husband. At that time accused Krishna demanded Rs.20,000/- from us. We disclosed our inability to pay that amount. At that time Krishna threatened us that there would be no peace in the mind of my daughter Rupali.” 10. The evidence of P.W 2 in this regard is quoted as follows : “On 29/9/93 Rupali and Krishna came to our house. At that time Krishna demanded Rs.20,000/- from my father. My father disclosed his inability to pay that amount and an altercation took place at that time between my father and Krishna and at the time of departure Krishna threatened my father that in case of non payment of Rs.20,000/- Rupali would not be happy.” 11. It is clear from page 6 to 9 of the judgment of the trial court that the evidence of P.W. 1 and P.W 2 hereinabove referred has been relied upon and used against the accused/appellant without affording him the opportunity to explain the same in his examination under section 313 Cr.P.C. by putting specific questions regarding this material piece of incriminating circumstance. The object of section 313 (1)(b) Cr.P.C. is to enable the accused to explain each and every circumstance appearing in evidence against him. The object of section 313 (1)(b) Cr.P.C. is to enable the accused to explain each and every circumstance appearing in evidence against him. The provisions of this section are mandatory and it is the bounden duty of the court to afford to the accused the opportunity to explain each and every circumstance appearing in evidence against him. In Nar Singh’s case (Supra) the Supreme Court held that the real importance of section 313 Cr.P.C. lies in that, it imposes a duty on the court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point. In the context of the present case it is pertinent to refer to paragraph 12 of the judgment in Nar Singh’s case (Supra) which reads thus : “12. Elaborating upon the importance of a statement under Section 313 CrPC, in Paramjeet Singh v. State of Uttarakhand, this Court has held as under : (SCC p.449, para 22) “22. Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration. (Vide Sharad Birdhichand Sarda v. State of Maharashtra and State of Maharashtra v. Sukhdev Singh.)” 12. In paragraph 30 of the judgment in Nar Singh’s case the Supreme Court succinctly summarised the courses available to the appellate court in such cases which is as follows: “30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under : 30.1. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under : 30.1. Whenever a plea of non-compliance with Section 313 CrPC is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer. 30.2. In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits. 30.3. If the appellate court is of the opinion that non-compliance with the provisions of Section 313 CrPC has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 CrPC and the trial Judge may be directed to examine the accused afresh and defence witness, if any, and dispose of the matter afresh. 30.4. The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused.” 13. For the purpose of the present case I am of the view that the matter should be remitted to the trial court for proceeding afresh from the stage of Section 313 Cr.P.C. It is true that the accused has the right to speedy trial and the court must ensure that the accused is given fair and expeditious trial but when there is omission on the part of the court to put material evidence to the accused in the course of examination under section 313 Cr.P.C, the victim of the crime cannot be denied justice by acquitting the accused/appellant on account of such lapse or failure on the part of the trial court. 14. For the reasons aforestated, the impugned judgment and order of conviction and sentence passed against the appellant is set aside. The matter is remitted to the trial court for proceeding afresh from the stage of examination of the accused/appellant under section 313 Cr.P.C. The trial court shall examine the accused/appellant under section 313 Cr.P.C in accordance with law in the light of the observations made hereinabove. The trial court will put specific and separate questions to the accused/appellant with regard to the incriminating circumstances appearing in evidence against him and also afford to the accused an opportunity to examine defence witnesses, if any, and proceed with the matter. 15. The trial court is directed to expedite the matter and dispose of the same in accordance with law preferably within two months from this date without being influenced by any observation made by this Court. 16. It is made clear that no opinion is expressed touching the merits of the appeal. 17. The appellant who is on bail shall appear forthwith before the trial court to enable the trial court to proceed with the matter as stated hereinabove. 18. The appeal is thus disposed of. 19. A copy of judgment along with the lower court records be sent down to the trial court forthwith for information and necessary action. 20. Urgent photostat certified copy of this judgment, if applied for, shall be given to the applicant upon compliance of requisite formalities.