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Unknown vs The State Of West Bengal on 25 January, 2018

Form no. J(1)

In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side

Present:
The Hon’ble Justice Asha Arora

C.R.A 631 of 2010

Krishna Singha
…….. Appellant

Versus

The State of West Bengal

…Respondent

For the appellant: Mrs. Anusuya Sinha,
Mr. Debapratim Guha,
Mr. Rajiv Lochan Chakraborty

For the State: Mr. Aniket Mitra

Heard on: 10/01/2018, 11/01/2018, 15/01/2018 and 17/01/2018.

Judgment on: 25th January, 2018
Asha Arora, J.:

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
304B 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 304B 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.

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 498A/306/304B 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.

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 304B 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.

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.

On conclusion of trial the learned Additional Sessions
Judge passed the impugned judgment and order of conviction
and sentence against the appellant.

The point for determination is whether the impugned
judgment and order of conviction and sentence is sustainable.

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 Supreme Court Cases (Cri) 1605 (State of
Rajasthan versus Rajendra Singh), (2000)9 Supreme Court
Cases 455 (Anil Kumar versus State of Punjab) and
(2003)3 Supreme Court Cases 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 Supreme Court Cases (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 Supreme Court
Cases (Cri) 1088 (Ramesh Kumar versus State of
Chhattisgarh) and (2010) 1 Supreme Court Cases (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 Supreme Court 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
Supreme Court Cases (Cri) 699.

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.

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.”

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.”

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
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.) “

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 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.”

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.

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.

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.

It is made clear that no opinion is expressed touching
the merits of the appeal.

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.

The appeal is thus disposed of.

A copy of judgment along with the lower court records
be sent down to the trial court forthwith for information and
necessary action.

Urgent photostat certified copy of this judgment, if
applied for, shall be given to the applicant upon compliance of
requisite formalities

(Asha Arora, J.)

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