Calcutta High Court Joytilal Chakraborty-vs-Dipak Dutta And Ors. on 26 August, 1994
Equivalent citations:1995 CriLJ 930
Author: B Panigrahi
Bench: B Panigrahi
Basudeva Panigrahi, J.
1. This revision is directed against an order of acquittal passed by the Additional Sessions Judge 8th Court, Alipore, 24 Parganas S. T. 4(6) 87 by S.C. 22 (4/87) dt. 4-5-89 Under Section 306/489A I.P.C.
2. The prosecution case in brief is thus : Mamata Dutta the youngest daughter of the revision petitioner developed premarital relation with the respondent Khokan which culminated into a lawful marriage without the consent of the revision petitioner and his other family members. Out of the wedlock one female and one male child were born. On 24-5-86, unfortunately, Mamata met an unnatural death at her Matrimonial Home, 25 Casel East Road within Maniktala Police Station. Mamata, of and on, used to complain that her husband and in-laws asked her to get more dowry from her parents. The petitioner willy-nilly paid Rs. 1300/-to 1400/- to his daughter for giving the same to Khakon. On 25th May, ’86 between 10-30 and 11 A.M. Khakon’s mother Chaya Dutta went to the residence of the petitioner and informed him that his daughter Mamata committed suicide by hanging herself in the previousevening.
3. The revision petitioner went to Maniktala Police Station on 26-5-86 and submitted a written complaint at 18-05 hours, vide Ext. 2, which was treated as F.I.R., stating that these respondents had abetted Mamata for the commission of suicide as a result of which she put an end of her life, which was registered under Section 306 I.P.C. and investigation immediately followed. During Investigation, the respondents were arrested, the witnesses were examined and after conclusion of the investigation charge-sheets had been submitted against the respondents.
4. P.W. 22, Joydeb Ghosh, who first noticed that a dead body hanging in the house of Khakon, immediately informed the police at 19-50 hours in Maniktala Police Station vide G.D. entry No. 2125 marked Ext. 6/2.
5. P.W. 25, the investigating officer, informed Joydeb to make an enquiry relating to the death of Mamata. During enquiry, the hanging materials were seized and dead body of Mamata was sent to N.R.S. Morgue for obtaining post-mortem report. Before sending the dead body for necroscopic examination P.W. 25 held inquest over the dead body on 24-5-86.
6. The prosecution had examined 25 witnesses to bring home the charge to the accused persons who faced the trial under Section 306 and 498A I.P.C.
7. The learned trial Judge after brief resume of the evidence recorded an order of acquittal of the respondents. Although, the State did not challenge the order of acquittal recorded by the Trial Court, the revision petitioner being aggrieved by such order has preferred this revision.
8. The learned Counsel for the petitioner, Mr. Arun Prakesh Chatterjee, has advanced in course of hearing these following submissions :
(i) That the Trial Court has not properly appreciated the evidence of the prosecution witnesses who according to him unequivocally narrated the relentless torture and humiliation on deceased Mamata for obtaining further dowry.
(ii) He further stated that the learned Trial Court had significantly failed to examine the Doctor who conducted the post-mortem examination even though the prosecution omitted to examine him.
(iii) There are sufficient evidence to establish that it was a homicidal death and the respondent were responsible for the same, the Trial Court had however, avoided to consider the same and passed an order of acquittal.
He finally submitted that since there were glaring infirmaties in the Trial Court judgment relating to the improper appreciation of the evidence which resulted in miscarriage of justice. These above contentions, if accepted, are sufficient to set aside the order of acquittal and it would be justified to send the case back to the trial court for holding a fresh trial.
9. The learned Counsel for the respondents, Mr. Dilip Dutta, while supporting the judgment of the trial Court sent a sepcrate written submission narrating the grounds on which the trial court judgment can be justifiably upheld. While examining the rival contention of the parties, it is to be borne in mind regarding the revisional power of this Court. The court has to be wary and circumspect while making appraisal of the evidence of the witnesses. Unless glaringly inconsistent evidence is indicated by the revision petitioner which was unreasonably accepted by the Trial Court resulting in the miscarriage of justice, the revisional Court should be slow in disturbing the findings of the Court below.
10. Mr. Chatterjee, the learned Counsel appearing for the petitioners however, has admitted that the P.Ws. 3, 4, 6, 7. 8, 9 & 10 did not support the prosecution story and were declared hostile and allowed to be cross-examined. Be that as it may, the fact remains that the aforesaid witnesses did not support the prosecution and their testimony in effect does not help the prosecution in any manner. Therefore, even though lurid details were spoken before the I.O. by the witnesses, who subsequently resiled from their statement and presented a differcrent story. Their evidence in Court does not in any mannerestablish the case of the prosecution.
11. The learned Counsel for the petitioner made an unsuccessful attempt that these witnesses being hostile to the prosecution at the behest of the accused resiled from their previous statement and gave different version in Court, there is no material in support of the said submission. In the above premises, I must hold that the statement of P.Ws. 3, 4, 6, 7, 8, 9 & 10 has to be summarily rejected. Thus, we arc left with the evidence of rest of the witnesses.
12. The learned Trial Court had discussed the evidence of the revision petitioner on several grounds. The revision petitioner claimed that his daughter was put to torture and humiliation by Khakon, since the petitioner could not satisfy the demands of dowry of the accused Khakon. The marriage had taken place on 11 -1-78 without the consent of petitioner and his other family members. Two issues were born to them. Till Mamata’s death there was no complaint by P.W. 11 or any other family members complaning illtreatment against the victim.
13. The incident had taken place on 25th May, ’86. The report was made on 26th May, ’86. There has been no explanation about the delay cither by the P.W. 11 or by any other witnesses. Had there been any torture either by Khakon or by other family members the victim should have either lodged protest or complaint before the police or before any other authority for vindicating her rights. Seemingly, there is no convincing evidence to establish that Mamata during her life time had ever complained regarding the alleged illlreatment by the respondents. So, the learned Trial Court appears to be justified in not relying on the evidence of P.W. 11.
14. It is to be further noticed that when by instalment P.W. 11 made such advances, like Rs. 50/-, Rs. 25/- and also paid Rs. 1300/-, 1400/- to Mamata. He never spoke before police to have paid such amount. Therefore, such version in Court appears to be only an after-thought. In a categorical statement P.W. 11 was constrained to make “I have no letter written by Mamata complaining about such torture perpetrated upon her by her husband and his relatives”.
15. P.W. 12 Surendra Nath Dutta, P.W. 14 Namita Marik, P. W. 15 Amita Das and P.W. 16 Lila Das have testified that Khakon, the husband of the victim, and her in-laws had subjected Mamata to cruelty. Some of witnesses have also testified that as a result of assault by the respondents she died. It is significant to note that such version was not presented during investigation. This is a subsequent improvement and also embroidered in course of trial. The learned Trial Court, therefore, felt unsafe to rely on the version of these witnesses.
16. The learned Counsel for the petitioner, Mr. Chatterjee, made an inexorable plea that at least in respect of torture on Mamata, the evidence of above witnesses should be believed. It is very difficult to seperate the evidence one part from the other. When the evidence is interminably interwined: where a part of statement cannot be seperated from the rest, the entire testimony has to be rejected. In this case ail through the prosecution witnesses at the investigation stage claimed that Mamata committed suicide being provoked/ abetted by these respondents. But all of a sudden they changed their version and claimed that she was killed by these respondents. Therefore, the trial Court felt unsafe to accept the testimony of the above witnesses. Smilarly the evidence of P.W. 22 was also discarded. When the prosecution intended to chagc the fabric and genesis of its story by introducing another plea during evidence, the trial court was seemingly not unjustified in rejecting the testimony of those witnesses.
17. The evidence of P.W. 23 was very much relied upon by the revision petitioner. She undoubtedly claimed in her evidence that she heard Mamata begging for mercy on 23-5-86 night and the latter was requesting her in-laws not to drive her out of the house and at about 5.45 P.M. on 24-5-86 he heard the cries of Mamata from the room of Khokan was abruptly stopped but such version appears to be subsequent development which she did not allegedly state during investigation. Assuming that she knew about the incident what prevented her from lodging a report on the following morning narrating the entire incident. A lame excuse is offered that although she made such complaint on 26-5-86 at Maniktala Police Station; but none paid any heed to such complaint. Such, plea can hardly inspire any belief. Since P.W. 23 being an activist of Mahila Samity, she could have very well brought to the notice about the police inaction before the higher authority. Added to this, there was no love lost between P. W. 23 and the respondents and therefore, in the absence of any corroboration by the other witnesses, the learned trial court was justified in not placing reliance on her testimony.
18. Mr. Chatterjee, the learned Counsel for the petitioner has urged with strong intensity to conviction that there was sufficient evidence Mamata being assaulted preceding her death. While examining such contention I carefully went through the inquest report. Had there been any such injury noticed, such fact should have been noted in the report. Therefore, it is hard to believe that she was subjected to torture prior to her death.
19. In this case evidently the post-mortem report has not been accepted nor the doctor who performed the post-mortem examination had come to depose about the same. The learned Counsel for the petitioner, Mr. Chatterjee, fervently argued that the prosecution has failed to produce the medical officer who conducted post-mortem examination as a result of which there was serious abuse of process of court. He further indicated that even when the prosecution had not examined such person as a witness it was open to the court below to invoke Section 311 of the Criminal P. C. and direct the Medical Officer to depose before it. It would be considered whether such submission would be apposite to the present case. It is true-that the court has untrammeled powers to examine any witness/witnesses to secure ends of justice. But at the same time it has to consider by exercise of such power if any other parties would be seriously prejudiced, or, in other words, by additional evidence, the lacuna of the prosecution story is likely to be filled up. Ordinarily an order of retrial seldom takes place. In only exceptional situation retrial is to be ordered. If a witness was withheld by the prosecution the petitioner as well could have brought to the notice of the court for summoning such witness. If retrial at this stage will be ordered, serious prejudice to the defence is likely to be caused. During the retrial the prosecution will get amble opportunity to fill up the lacuna. In such a situation I am not in a position to agree with the contention of the petitioner that the acquittal order is to be set aside and an order of retrial should be passed. Since, it being the revisional court whose limitation is circumscribed, I do not think it appropriate to make further reappraisal of the evidence.
20. It is undoubtedly true that non-examination of the witnesses should not be lightly brushed aside by the trial court. The impact of such non-examination has far reaching effect. Two courses arc open to the revisional court, either to remand the matter back to the trial court or maintain an order of acquittal depending on the circumstances of the cases. Since from the discussion made above, it clearly established that the charge could not be established against the respondents beyond reasonable doubt, therefore, no purpose will be served if there would be further direction for retrial.
21. From the above discussion, I do not find any merit in the revision application and is accordingly dismissed.