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2019 DIGILAW 230 (CAL)

Gopal Santra v. State of West Bengal

2019-02-18

SHIVAKANT PRASAD

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JUDGMENT : SHIVAKANT PRASAD, J. 1. This revisional application has been preferred by the petitioner, Gopal Santra challenging the judgment and order dated 31.01.2001 passed by the learned Sessions Judge, Hooghly in Criminal Appeal No. 32/2000 affirming the order of conviction dated 15.11.2000 of the petitioner for the charge under Section 498A of the Indian Penal Code whereby the petitioner was sentenced by the Judicial Magistrate, 5th Court, Hooghly in G.R. Case No. 413 of 1993 (T.R.No.202/1994) to undergo one year simple imprisonment and fine of Rs. 500/- in default simple further imprisonment for 30 days for the said charge under Section 498A of the Indian Penal Code whereas other accused person viz. Kanak Ghose was found not guilty and was acquitted from the charge. 2. Prosecution case leading to this revisional application is that the informant, Mamata Santra was married with the accused Gopal Santra, the petitioner herein, on 25.11.1987 according to Hindu religion, ceremonies and rites and she started living with her husband in her matrimonial home. 3. The moot allegation is that the accused persons being the husband, the present petitioner and other in-laws started torturing her for bringing a sum of Rs. 10,000/- from her father and elder brother and on refusal to such demand the accused persons jointly tortured her by refusing to provide her food and compelled her to work day-night. A daughter was born out of their wedlock on 10.02.1989 and the accused persons tortured the baby by not giving milk and medical treatment. In December, 1990 accused persons abused her with filthy language and drove her away from her matrimonial home by assaulting her in order to give again marriage of Gopal. On 22.12.1991 by the intervention of local Gram Panchayet the matter was settled and she came back to her husband's house but again on 04.11.1992 the accused persons including the petitioner drove her out from the house by taking all the ornaments along with her daughter. Later on the brother-in-law of the informant approached her in laws house to adopt her sister-in-law but the accused persons refused to accept her and threatened to kill her if she would enter their house. Accordingly being compelled by such situation the defacto complainant filed a petition under Section 156(3) of the Code of Criminal Procedure. 4. Later on the brother-in-law of the informant approached her in laws house to adopt her sister-in-law but the accused persons refused to accept her and threatened to kill her if she would enter their house. Accordingly being compelled by such situation the defacto complainant filed a petition under Section 156(3) of the Code of Criminal Procedure. 4. Investigation was started in connection with Chinsurah Police Station Case No. 85 dated 1.04.1993 under Section 498A of the Indian Penal Code, against the accused persons. After investigation charge sheet was submitted and cognizance was taken by the Judicial Magistrate. Charge under Section 498A of the Indian Penal Code was framed and explained to the accused persons to which they abjured the guilty and claimed trial. Thereafter the prosecution in order the substantiate the charge examined as many as 7 witnesses including the petitioner. 5. After going to trial the learned Judicial Magistrate on giving opportunity of hearing to the prosecution and the defence found the petitioner guilty of the offence charged under Section 498A of the Indian Penal Code and accordingly sentenced him to suffer simple imprisonment for one year and to pay fine of Rs. 500/- in default to suffer further 30 days simple imprisonment. However, the accused, Kanak Ghose was found not guilty and she was acquitted of the charge. It is to be noted that the mother-in-law of the petitioner, Uma Santra had died during the pendency of the trial so her case was filed for ever. 6. Mr. Sudip Ghosh Chowdhury, learned advocate for the petitioner, submits that the prosecution has not examined the Investigating Officer and so also the Recording Officer of the case. So the defence had no opportunity to take vital contradiction appearing in the evidence adduced by the prosecution witness. It is also submitted that the offence as alleged and the evidence on record does not proof the cruelty within the meaning of Section 498A of the Indian Penal Code. So the defence must be given benefit of doubt and adverse inference should also be drawn for withholding the vital evidence under the provision of Section 114G of the Evidence Act. It is also submitted that the suggestion were given to the prosecution witness no. So the defence must be given benefit of doubt and adverse inference should also be drawn for withholding the vital evidence under the provision of Section 114G of the Evidence Act. It is also submitted that the suggestion were given to the prosecution witness no. 1 the de facto complainant to the effect that she was married to one Ganesh Santra so without the divorce between Ganesh Santra and the de facto complainant the petitioner cannot be held for charge under Section 498A of the Indian Penal Code. It is also submitted that a matrimonial suit has been filed by the petitioner in a civil court for divorce against the de facto complainant who deposed before the trial court as PW-1. There is no suggestion put to the PW-1 in her cross-examination on behalf of the petitioner denying the matrital status of the petitioner with the de facto complainant PW-1. That apart, if it is accepted that the petitioner has filed suit for divorce, then it signifies that the PW-1 is his wife. It is submitted by the learned advocate appearing for the State that the PW-1 has corroborated the complaint and proved the same as PW-1. This fact cannot be lost sight of that police case was registered on the basis of a petition under Section 156(3) of the Code of Criminal Procedure for investigation. 7. The whole of the prosecution case can be viewed through askance because the allegation as made in the petition under section 156(3) of the Cr.PC cannot be said to have been corroborated inasmuch as the de facto complainant (PW-1) was blessed with a daughter on 10.02.1989 out of the wedlock with her husband after their marriage on 25.11.1987. The alleged incident stated to have taken place in December, 1990 turning out the PW-1 from her matrimonial home and she returned to her matrimonial home on 22.10.1991 by intervention of local Gram Panchayet but there is no evidence laid to show as to who was the Pradhan and Members of Panchayet. There is no written salishi shown for such settlement and intervention by local Gram Panchayet but again on 04.11.1992 the accused petitioner drove her out from her matrimonial house by striping her from her ornaments. It would appear by sifting chaff from the grains that major chronological events described by the prosecution is in November and December. 8. There is no written salishi shown for such settlement and intervention by local Gram Panchayet but again on 04.11.1992 the accused petitioner drove her out from her matrimonial house by striping her from her ornaments. It would appear by sifting chaff from the grains that major chronological events described by the prosecution is in November and December. 8. The petition under Section 156(3) of the Code of Criminal Procedure on its plain reading would reveal that the learned advocate drafting the petition has set up the allegation against the accused petitioner which are general allegation. 9. On plain reading of the petition of complaint under Section 156(3) Cr.P.C. it would appear that the complaint is devoid of any averment regarding compliance of the provisions of Section 154(1) Cr.P.C. and so also Section 154(3) Cr.P.C. So, petition of complaint under Section 156(3) of Cr.P.C. was sent to the Police Station to treat the same as an FIR to start investigation without the compliance of requisite for investigation on treating the same as an FIR. Therefore, it was imperative for the prosecution to have examined the Recording Officer who registered the specific case treating the said petition of complaint under Section 156(3) of the Code for investigation so also the Investigating Officer who investigated the case. It was also expedient on the part of the learned Judicial Magistrate to exhaust all the process by summoning the prosecution witnesses. If any of such witnesses fails to appear in response to the summon of the Court, ld. Magistrate should have taken measure for compelling attendance of the witness but the Magistrate closed the evidence instead and held the accused guilty of charge under Section 498A of the Indian Penal Code based on the tutored witnesses simply on the basis of the petition of complaint Exhibit-1 which should not have been forwarded to the O/C concerned for investigation without compliance of Section 154(1) and Section 154(3) of the Code of Criminal Procedure and without holding preliminary inquiry into the petition of complaint 10. The learned trial Court as well as the appellate Court below appear to have relied on evidence of PW-1 by and large on the allegation made in the petition of complaint Exhibit-1 finding corroboration of the FIR by its maker deposed by prosecution witnesses were not controverted and also finding that the evidence by the defence I find that the evidence adduced by the prosecution is not convincing before the petition of complaint was not corroborated by its maker in the sense that allegation appears to be a concocted fact set up by the learned advocate drafting the petition under Section 156(3) of the Code and it would not be safe proposition to convict and sentence the petitioner/accused for charge under Section 498A of the Indian Penal Code. 11. Accordingly, I set aside the judgment dated November 15, 2000 in GR Case No. 413 of 1993(TR No. 202 of 1994) passed by the learned 5th Judicial Magistrate, Hooghly Sadar and the judgment dated January 31, 2001 in Criminal Appeal No. 32 of 2000 by the learned Sessions Judge, Hooghly. Consequently the petitioner/accused is set at liberty at once on being discharged from his bail bond. 12. Thus, CRR No. 693 of 2011 is allowed. 13. A copy of this judgment together with LCRs be sent down to the learned Courts below for necessary noting in the trial register and doing the needful. 14. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.