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Jayanta Das-vs-State Of West Bengal on 7 May, 2007

Calcutta High Court Jayanta Das-vs-State Of West Bengal on 7 May, 2007
Equivalent citations:2007 (4) CHN 432, 2007 CriLJ 2841
Author: A K Basu
Bench: A K Basu, K Mukherjee

JUDGMENT

Alok Kumar Basu, J.

1. Appellant Jayanta Das preferred this appeal challenging the judgment and order of the learned Additional Sessions Judge, 5th Court in the erstwhile district of Midnapore passed in connection with Sessions Trial No. VIII/July/1995.

2. Jayanta Das being charged under Sections 498A, 302 and 201 of the Indian Penal Code was ultimately convicted by the learned trial Judge under Sections 498A and 306 of the Indian Penal Code and he was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for six months for the offence under Section 498A of the IPC and he was also sentenced to suffer rigorous imprisonment for eight years and to pay a fine of Rs. 10,000/- in default to suffer rigorous imprisonment for two years more for the offence under Section 306 of the IPC.

3. The learned Judge also directed to pay the entire fine amount, if realized, to Puti, the minor daughter of the deceased.

4. Jayanta Das by preferring this appeal challenged both his conviction and sentence as mentioned above.

5. The prosecution case in brief was that Jayanta Das married one Bijali, daughter of Ananta Bag of village Uttar-Kalinagar under P.S. Sutahati and out of the said wedlock, one daughter Puti was born. Jayanta Das subsequently deserted Bijali and started living with another lady Laxmi by name.

6. At the intervention of the relatives of Bijali and her neighbours, Jayanta was forced to give some money month by month for maintenance of Bijali and her daughter. Jayanta, however, did not keep his promise and often he came to Bijali and used to assault her.

7. It was the prosecution allegation that on 10th May, 1988 in the midnight Jayanta came to Bijali and killed her by strangulation and thereafter tying a rope around the neck of Bijali he hanged Bijali with a neem tree by the side of a pond near his house. It was disclosed in the FIR that Madan Das, younger brother of Jayanta found Jayanta to leave the place after committing murder of Bijali.

8. Bablu Bag, brother of Bijali on getting information about the murder of his sister Bijali lodged a FIR on 11th May, 1988 at Sutahata P.S. and on the basis of that FIR, Sutahata P.S. started a case against Jayanta under Sections 498-A 302 and 201 of the IPC.

9. After completion of investigation, charge-sheet was submitted against Jayanta for his trial in open Court. The learned Additional Sessions Judge, on the basis of police papers and after hearing both prosecution and accused person, framed charges against Jayanta under Sections 498A, 302 and 201 of the IPC and Jayanta pleaded not guilty to the charges explained to him.

10. Prosecution, during trial, examined in all 16 witnesses including the FIR maker, brothers of Jayanta, some neighbours of the locality, the doctor who conducted post mortem examination, learned Magistrate who recorded statements of some witnesses under Section 164 of the Cr.P.C. and the investigating officer. Prosecution also produced, during trial, the original FIR, inquest report, post mortem report, seizure list, injury report of the accused, statement of witnesses recorded under Section 164 of the Cr.P.C.

11. The learned Additional Sessions Judge after considering prosecution evidence both oral and documentary and after hearing submissions of both prosecution and defence was of the view that prosecution charge under Section 302/201 of the IPC framed against the accused person was not proved in view of the post-mortem report and other circumstantial evidence, but, the learned Judge on perusal of prosecution evidence, found sufficient materials to hold Jayanta Das guilty both under Section 498A as well as under Section 306 of the IPC and the learned Judge accordingly convicted Jayanta Das and sentenced him.

12. Jayanta Das being aggrieved by and dissatisfied with his conviction and sentence preferred this appeal. Mr. Mitra appearing for Jayanta Das submits that there was no evidence before the learned Judge to come to the conclusion that Jayanta was guilty of inflicting tortures on his wife Bijali and there was no evidence also to substantiate the charge of abatement of suicide against appellant Jayanta. Mr. Mitra contends that Bijali might have committed suicide by hanging, but, prosecution miserably failed to establish that Jayanta ever tortured Bijali and for such torture of Jayanta. Bijali committed suicide and that being the position of evidence on record, the learned Judge was not justified in convicting appellant Jayanta under Section 498-A and under Section 306 of the IPC.

13. Mr. Mitra finally submits that even if this Court of appeal upholds the order of conviction of Jayanta both under Sections 498-A and 306 of the IPC since Jayanta already suffered imprisonment for five years before being released on bail, his period of detention may be considered sufficient having regard to the fact and circumstances of the case and he should now be discharged from his bail bond.

14. The learned advocate appearing for the State submits before us that in this particular case the allegation against Jayanta as reflected in the first information report of Bablu Bag was that of commission of murder of Bijali and also for camouflaging the act of murder by showing that Bijali committed suicide and this prosecution allegation contained in the FIR was sufficiently substantiated by the evidence of the doctor who conducted post-mortem examination and also from other circumstantial evidence sufficiently proved through the testimony of different prosecution witnesses. The learned advocate for the State contends that on close examination of the judgment of the learned Trial Court it would appear that the learned trial Court in total misappreciation of evidence came to the conclusion that Bijali committed suicide when there was sufficient medical evidence duly corroborated by circumstantial evidence to show that Bijali was murdered by manual strangulation and attempt was made to show that Bijali committed suicide.

15. The learned advocate for the State submits that during trial no charge was framed under Section 306 of the IPC and charges were framed both under Sections 302 and 201 of the IPC along with 498A of the IPC and having regard to the evidence on record, the learned Judge was totally wrong in fact and law to record an order of acquittal in respect of charges framed under Section 302/201 of the IPC. The learned advocate for the State, therefore, contends that it is a fit case where the order of conviction under Section 498-A/306 of the IPC should be set aside and the entire matter should be remanded back to the trial Court for re-appreciation of evidence and for recording a fresh judgment in accordance with 4aw.

16. Mr. Mitra in reply to the above submissions of the learned advocate for the State contends before us that the submissions made on behalf of the State respondent cannot be considered in view of several decisions of the Hon’ble Apex Court as ,

, and .

17. Mr. Mitra contends that in the judgment delivered by the Hon’ble Supreme Court in the case of State of Andhra Pradesh v. Thadi Narayana the Hon’ble Court while considering the

scope of Section 423(b)(1) of old Cr.P.C. corresponding to Section 386(b)(i) of the Cr.P.C. of 1973 held without any ambiguity that provision of Section 386(b)(i) of the Cr.P.C. is clearly confined to case of appeals preferred against orders of conviction and sentence, the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved.

18. Mr. Mitra submits that the ratio of decision rendered in the case of State of Andhra Pradesh 1962 (1) Cri LJ 207 (supra) has been followed all along by the Apex Court of the land and even in a recent case of Appasaheb v. The State of Maharashtra . The Hon’ble Court reiterated the same view at para 10 of its judgment.

19. Mr. Mitra submits that although appellant was charged under Section 302/201/498A of the IPC, the learned Trial Court from the evidence on record did not find sufficient evidence to hold appellant guilty under Section 302/201 of the IPC mainly in view of the medical evidence corroborated by other circumstantial evidence and the learned Judge came to the conclusion that appellant was guilty of the offence under Section 498-A read with Section 306 of the IPC. Mr. Mitra contends that the learned Trial Court in its judgment with reference to a decision of the Hon’ble Supreme Court came to the conclusion that even in a case when charge has been framed under Section 302 of the IPC, the Trial Court may hold the accused guilty under Section 306 of the IPC in view of the materials on record.

20. Mr. Mitra submits that admittedly when the Trial Court recorded its order of acquittal as regards the charge framed under Section 302/201 of the IPC, the State did not prefer any appeal and only the appellant being convicted under Section 498A read with Section 306 of the IPC has preferred this appeal and when this Court of appeal is to decide the order of conviction and sentence recorded under Section 498A/306 of the IPC at the instance of the appellant, in view of the clear decision of the Hon’ble Court recorded in the case of State of Andhra Pradesh 1962 (1) Cri LJ 207 (supra) and followed subsequently in the case Appasaheb and Anr. (supra), there is no merit in the contention of the State respondent that the present case should be remanded back for retrial again for a decision under Section 302/201 of the IPC.

21. After considering submissions of both Mr. Mitra and the learned Advocate representing for the State respondent, we find that two basic questions require our consideration for disposal of the present appeal and those questions are, first whether there is any scope for sending back this case for retrial by the learned Trial Court even if we accept that the learned trial Court was not justified in recording an order of acquittal in respect of the charges framed under Section 302/201 of the IPC in view of the undisputed position that the State did not prefer any appeal against that order of acquittal and second, whether there is any merit in the present appeal challenging the order of conviction and the consequential order of sentence passed under Section 498-A/306 of the IPC.

22. We shall take up the first issue first. It is true that in the FIR there was clear allegation that Jayanta Das committed murder of Bijali and thereafter Jayanta Das tried to hoodwink the authority of law by showing that Bijali committed suicide and it is also true that during trial prosecution wanted to establish that Bijali was murdered and Jayanta Das tried to establish that Bijali committed suicide.

23. We find from the judgment impugned in this appeal that the learned Judge after considering the post-mortem report along with the statements of several witnesses including those of two brothers of Jayanta Das was of the view that Bijali, in fact, committed suicide and after scanning prosecution evidence, the learned Judge came to the finding that Jayanta Das was guilty under Section 498-A and also under Section 306 of the PC for the suicidal death of Bijali.

24. The learned advocate representing the State submits before us that the doctor who conducted post-mortem report during his substantive evidence opined that Bijali was actually murdered out of strangulation and the learned advocate for the State further contends that there was enough evidence on record to support the prosecution allegation that Bijali was actually murdered and there was attempt on the part of Jayanta Das to show that Bijali committed suicide.

25. It is very significant to note at this juncture that when the learned trial Court delivered the judgment recording his order of acquittal as regards Section 302/201 of the IPC. the State respondent did not prefer any appeal challenging that order of acquittal and now, when the appellant has come up before us through this appeal challenging his conviction under Section 498-A/306 of the IPC, the State respondent has taken up this point that since the learned Judge misdirected himself in the matter of proper appreciation of evidence and once he improperly recorded the order of acquittal as regards the charge framed against the appellant under Section 302/201 of the IPC, this case should be remanded back for retrial.

26. We have carefully examined the judgment of the Hon’ble Supreme Court rendered in the case of State of Andhra Pradesh 1962 (1) Cri LJ 207 (supra) and we find on careful examination of the said decision that the Apex Court after threadbare discussion on the issue regarding applicability of Section 423 of the old Cr.P.C. which corresponds to Section 386 of the new Cr.P.C. came to the unambiguous conclusion that Section 423 (old) Cr.P.C. is clearlv confined to cases of appeal preferred against the order of conviction and sentence, the power conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved,

27. From the reported case of State of Andhra Pradesh 1962 (1) Cri LJ 207 (supra) we find the accused faced charges under Section 302 and 392 of the IPC and the learned trial Judge after recording an order of acquittal as regards Sections 302 and 392 of the IPC, however, convicted the accused under Section 411 of the IPC.

28. The accused, thereafter, preferred an appeal challenging conviction under Section 411 of the IPC and while disposing of the said appeal, the learned single Judge passed an order directing retrial of the case by the learned Additional Sessions Judge. Before the learned Additional Sessions Judge, accused took up a preliminary point that once an order of acquittal was recorded, there was no scope for retrial. The learned Additional Sessions Judge, however, rejected the plea of the accused and against that order of rejection, accused preferred a revisional application which came up for consideration before a Full Bench considering the importance and implication of the issue. The Full Bench in its judgment upheld the contention of the accused and against that order of the Full Bench, State of Andhra Pradesh preferred an appeal which came up for consideration before the Hon’ble Supreme Court and on that issue, the Hon’ble Supreme Court had the occasion to deliver the judgment reported in AIR 1962 SC 240 : 1963 (1) Cri LJ 207 (supra).

29. The Hon’ble Supreme Court, as stated earlier, after discussing the scope of Section 423 of the Cr.P.C. (old) observed that there was no scope for retrial once an accused has preferred an appeal challenging the order of conviction regarding a charge framed and proved, when the State respondent did not prefer any appeal regarding the order of acquittal recorded against other charges framed against the same accused. We have already stated that the ratio of decision rendered in the case of State of Andhra Pradesh 1962 (1) Cri LJ 207 (supra) has been followed in a number of judgments of the Hon’ble Court subsequent thereafter and of late, in the case of Appasaheb reported in 2007 (1) Supreme Today page 21 : AIR 2007 SC 763 (supra) the same view was reiterated.

30. Thus, in view of the clear pronouncement of the Hon’ble Supreme Court in the case of State of Andhra Pradesh 1962 (1) Cri LJ 207 (supra), we are of the considered view that when in the case before us, the appellant being charged under Section 302/201/498A of the IPC was ultimately convicted under Section 498A/306 of the IPC and when the State did not prefer any appeal challenging the order of acquittal recorded under Section 302/201 of the IPC, in an appeal preferred by the appellant challenging the order of conviction under Section 498A/306 of the IPC, virtually, there is no scope for this Court of appeal to pass any order directing the trial Court for retrial of the accused for the offence for which he has already been acquitted and the decision of the Trial Court being attained finality without being challenged by any appeal from the State.

31. Thus, after considering submissions of Mr. Mitra and the learned advocate for the State and after considering the legal position involved in the matter, we are inclined to hold that the first point raised by us should be answered in favour of the appellant Jayanta Das and we held that we cannot direct for remanding back the present case for retrial by the learned Additional Sessions Judge.

32. Now, we come to the next point as regards the merit of the present appeal. We have perused the entire evidence on record both oral and documentary and we have considered submissions of both Mr. Mitra and the learned advocate for the State respondent and in our considered view, the learned Judge after appreciation of evidence particularly, after appreciating the medical evidence along with other circumstantial evidence came to the conclusion that appellant Jayanta Das was guilty of both the offences under Sections 498A and 306 of the IPC and after considering the prosecution evidence by ourselves and after considering the points taken by Mr. Mitra, we do not find any cogent ground to interfere with the order of conviction recorded by the learned Trial Judge against the appellant.

33. We find from record that the judgment of the trial Court was pronounced on 30th July, 1996 and the present appellant was taken to custody from that date and the appellant was released on bail by this Court on 14th May, 2001 and thus, the appellant suffered imprisonment for about five years and he was sentenced to suffer rigorous imprisonment for three years for the offence under Section 498-A of the IPC and rigorous imprisonment for eight years for the offence under Section 306 of the IPC and, that apart, the appellant was also directed to pay Rs. 5,000/- and Rs. 10,000/- respectively under Sections 498-A and 306 of the IPC in default to suffer further rigorous imprisonment for six months and two years respectively.

34. Having regard to the fact that the occurrence took place in the year 1988 and having regard to the fact that the learned Judge convicted the appellant under Sections 498A and 306 of the IPC and the appellant has already suffered imprisonment for five years, we are of the considered view that the appellant need not suffer any further substantive sentence under Section 306 of the IPC, but, we hold that appellant should be sentenced to pay a fine of Rs. 10,000/- in default to suffer rigorous imprisonment for two years more under Section 306 of the IPC and in our view that will meet the ends of justice having regard to the fact and circumstances of the case.

35. In the light of our above discussion, we allow this appeal of Jayanta Das in part.

36. We confirm conviction of Jayanta Das both under Section 498A and 306 of the IPC and we direct that Jayanta Das need not suffer further imprisonment under Section 306 of the IPC and his substantiate sentence is reduced to the period already undergone, but, he shall pay Rs. 10,000/- in default to suffer rigorous imprisonment for two years under Section 306 of the IPC.

37. We find from record that Jayanta Das has been released on bail and we direct Jayanta Das to appear before the learned Trial Court and to deposit a fine amount of Rs. 10,000/- within a month from this order failing which the learned trial Court shall issue warrant of arrest against Jayanta Das and collect the fine amount from him in default Jayanta Das shall be sent to the correctional home to suffer imprisonment of two years more.

38. We also maintain the order of the learned Trial Court as regards payment of the fine amount to Puti, daughter of deceased Bijali who by this time has become major and the learned trial Court shall make the payment of fine amount to that daughter of deceased Bijali directly to her on her proper identification after issuing notice for her appearance before the learned Trial Court as soon as the fine amount is realised.

39. Send the LCR along with copy of this judgment and order forthwith to the learned trial Court for information and necessary action and also for sending a compliance report within one month from communication of this order.

40. Office is specifically directed to place the compliance report for our perusal and consideration.

41. Urgent xerox certified copy of this judgment and order, if applied for by the appellant, be made available at the earliest after complying with all legal formalities.

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