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Md. Afsar Ali Mallick-vs-Refique Mistri And Ors. on 3 December, 2002

Calcutta High Court Md. Afsar Ali Mallick-vs-Refique Mistri And Ors. on 3 December, 2002
Equivalent citations:2004 (1) CHN 437
Author: M K Basu
Bench: M K Basu

JUDGMENT

Malay Kumar Basu, J.

1. This revisional application has been directed against the judgment and order dt. 30th September, 1996 passed by the ld. Addl. Sessions Judge, 2nd Court, Nadia in S. T. No. 4(3) of 1995 whereunder the accused persons (the present O. P. s) were acquitted of all the charge framed against them. The relevant facts leading to this revision was be summarized as follows:

2. Mamtaz Khatoon, daughter of the elder brother of the revisional applicant Afsar Ali Mallick was given in marriage with Rafique Mistri, the O. P. No. 1 (one of the accused persons) on 15th Aswin, 1396 B. S. according to the Muslim rites. The father of Mamtaz had to pay money amounting to Rs. 8,000/- and also to give gold ornaments etc. to the said Rafique as dowry. A Kabilnama was executed wherein the payment of the said dowry money as well as Denmohar amounting to Rs. 4001/- was recorded. On 4th November, 1992 the petitioner Md. Afsar Ali Mallick lodged a complaint before the O. C. Kaliaganj Police Station alleging that since Mamtaz Khatoon could not give birth to any child after her marriage, her father-in-law Mazid Mistri, mother-in-law and elder brother-in-law Fashid Mistri used to torture her both physically and mentally and even they instigated her to put an end to her life. Subsequently her husband Rafique Mistri also joined those in-laws in perpetrating the torture on her. The informant further stated in the FIR that his niece, Mamtaz Khatoon having been unable to bear such torture on one occasion returned to her father’s house and there was a salish effected by the prominent members of the village between the parties when Rafique Mistri gave an undertaking before them that they would no longer torture Mamtaz Khatoon and after this Mamtaz Khatoon was sent back to her father-in-laws house. But on 4th November, 1992, that is, on the date on which this FIR was lodged at about 2-40 P.M. the informant received an information from one villager of Barachandghar village the Mamtaz had committed suicide at about 8-00 a. m. on that date by taking poison. Having received this news the informant along with his cousin-brother Hisar Mallick, the father of Mallick and another went to Barachandghar village and reaching there they found Mamtaz lying dead. Hence he filed the complaint before police stating the above facts so that the said in-laws as well as the husband of Mamtaz Khatoon could be proceeded against.

3. On the basis of this FIR the police started Kaliaganj P. S. Case No. 295 dt. 4.11.1992 and investigated into the same and after completion of the investigation submitted chargesheet against the abovementioned four accused under Sections 498A and 306/34 IPC. The case being sessions triable was committed to the Court of Sessions and the ld. Addl. Sessions Judge after considering the materials on record framed charge against all of them under the abovenoted sections, namely, 498A and 306/34 IPC and read over the same to the accused all of whom pleaded not guilty to the charge.

4. In order to prove its charges prosecution examined as many as 12 witnesses and also produced certain documents which were marked Exbts. 1 & 6. The ld. Trial Judge after considering the evidence on record and the points of law as argued by the ld. Advocates of both sides came to the finding that the prosecution had failed to prove the charges beyond all reasonable doubt and, particularly, the allegation that torture had been perpetrated on the deceased by the accused persons due to non-payment of dowries as demanded by the in-laws allegedly and accordingly he found them not guilty and passed the order of acquittal.

5. Being aggrieved by this judgment and order of the Addl. Sessions Judge, the de facto-complainant Afsar Ali Mallick @ Afsaruddin has preferred this present revisional application under Sections 397 and 401 read with Section 482 Cr. P. C. challenging the same as erroneous and unsustainable. It is stated in this revisional application that after the judgment of acquittal was delivered he was under the impression that the State would file appeal against that order of acquittal but he came to learn that the ld. Addl. Public Prosecutor who conducted that case ultimately did not send any proposal for preferring any such appeal and under such circumstances he filed an application before the Legal Remembrancer through the ld. Public Prosecutor of Calcutta High Court to prefer an appeal against the said judgment but that authority also kept it pending for a long period and ultimately they informed the petitioner that they were not inclined to prefer any appeal and in these circumstances this revision has been filed belatedly along with a petition under Section 5 of the Limitation Act for condoning the delay. It may be mentioned that this Court by its order dt. 3rd July, 1997 condoned the delay allowing the petition under Section 5 of the Limitation Act.

6. It has been urged by Mr. Kazi Safiuddin Ahmed, the ld. Advocate for the petitioner that the findings of the Court below are totally perverse, the ld. Judge having failed to properly appreciate the evidences of the P. Ws. and drawing conclusions which are unjustified. Secondly, his contention is that since in this case the deceased committed suicide within a period of seven years from the date of her marriage and since the charge is that the accused person being her husband and in-laws abetted such commission of suicide by her and since it is evident that those accused persons subjected her to cruelty under the provisions of Section 113A of the Indian Evidence Act, the Trial Court ought to have presumed that such suicide had been abetted by them. According to Mr. Ahmed, the ld. Trial Judge misdirected himself by not adopting this approach by placing the entire onus on the shoulder of the prosecution for proving the charge instead of holding that the defence had failed to rebut that presumption and thereby committing a gross error of law. The third contention of Mr. Ahmed is that there has been a serious lacuna in evidence indulged in by the Trial Court when the post-mortem report has not been exhibited, because such a report is an indispensable piece of evidence for the purpose of enabling the Court to decide whether the deceased’s death was suicidal or homicidal or otherwise, but although this post-mortem report had been received by the I. O. before the trial commenced it was not admitted into evidence for reasons best known to the prosecution and also to the Trial Court. Moreover, Mr. Ahmed contends, the visera with one kidney and a portion of the liver and stomach with its contents was preserved for Chemical Analysis by an expert as deposed by the P. M. Doctor (P. W.6), but that report of the Chemical Examiner on the viscera also has not been produced by the prosecution or admitted into evidence. Mr. Ahmed criticizes the observation of the Trial Court in its judgment at page 10, first paragraph, to the effect that the post-mortem report (the evidence of the P. W. 6) does not indicate any sign of torture as alleged by the prosecution. According to Mr. Ahmed if the post-mortem report is not admitted into evidence, and not in the records at all it is not understood how the ld. Trial Judge could cite its entries in this way.

7. The death of Mamtaz Khatoon is admitted. Almost all the witnesses have also testified to the same. The Doctor (P.W.6), Dr. Tarun Kanti Banerjee who hold the post-mortem on the dead body of this housewife has also opined that the death of the deceased was due to ingestion of poison which was anti-mortem and there has been absolutely no cross-examination of this statement of this doctor. So it is in evidence that the deceased committed suicide by taking poison. The question is whether the accused persons abetted the commission of suicide by the deceased. It is the prosecution allegation that the accused persons used to torture the deceased in various ways and she being unable to bear such tortures put an end to her own life. The P. W.1 Afsar Ali Mallick who is the informant has stated that the mother-in-law and elder brother-in-law of the deceased used to curse her to die and also she was hard pressed by the accused persons to fetch further dowry from her father and on account of such tortures she came back to her father’s house when there was a salish being effected by the villagers and her husband having promised before them that they would not press for further dowry. The deceased was sent back to her matrimonial home, but two months after her return there, the incident took place. But in the FIR lodged by him this story of pressing for dowry by the accused person has not been given. When he has been confronted with the question in his cross-examination he has given an explanation to the effect that at the time of lodging of the FIR he was totally perturbed and hence he omitted to mention this part of the allegations in the FIR. The P. W.3, Ismail Mallick who is the father of the deceased has also given an account of how the deceased used to be treated with cruelty by the accused persons. Thus he has stated that his daughter reported to him when she visited his place that his father-in-law used to call her ‘hijre’ and her mother-in-law used to abuse her in filthy languages and her brother-in-law used to say that they ought to have got more dowries in the marriage and on such ground he used to curse her to die. The P. W. 3 has also stated that the husband of his daughter was a passive onlooker and never gave any protection to her daughter against such tortures. The P. W. 3 has also deposed that his daughter was brought back to his house when such reports of tortures were received by him and she was not willing to go back to the matrimonial home but subsequently the father-in-law and the husband of his daughter came to his house to take her back when an amicable settlement by the villagers was effected and in their presence the accused undertook that there would be no further trouble or torture towards Mamtaz on any pretext and under such circumstances Mamtaz was allowed to be taken by them. The P. W. 7 Asrafun Bibi another eye-witness also appears to have given a description of how Mamtaz used to be abused and tortured by her in-laws. In her cross-examination also it has been taken from her mouth that she stated such facts to the Investigating Officer to the effect that Mamtaz was subjected to physical torture, humiliation and abusive languages. The I. O. (P. W.12) on being cross-examined on this point has stated that the P. W. 7 has not made any such statement before him. The ld. Trial Judge appears to have relied upon this evidence of the I. O. for the purpose of drawing the conclusion that the P. W. 7 having been contradicted by the I. O., her above statements cannot be relied upon. But according to the ld. Advocate for the petitioner here the ld. Trial Judge, appears to have failed to consider the legal principle that unless and until a suggestion to the contrary is put before the witness concerned, the oral evidence of the I. O. to the opposite effect will be without any significance. As regards the P. W. 3 it is found that his statements mentioned above have not been subjected to any confrontation by the I. O. That being so, Mr. Ahmed continues, it is not understood how the credibility of such statements of this P. W. 3 could not be taken into consideration by he ld. Trial Judge.

8. Mr. Ahmed’s further contention is as follows: The ld. Trial Judge appears to have laid stress excessively on the aspect that in the FIR there has been no allegation that the accused persons used to demand dowries from the deceased. According to him since such a story has not been given in the FIR its introduction in the evidence for the first time should be taken as a product of embellishment. But, this is far from correct. It is a settled position that FIR is not an encyclopaedia and it is not supposed, unlike a plaint in a civil suit, to contain all the particulars touching the prosecution case. The FIR is a simple information to set the police or the criminal law in motion and from the point of view of the investigating authorities it is an information about the alleged criminal activity to record the circumstances before there is time for them to be forgotton or embellished. That does not mean that in the FIR every aspect of the prosecution case should be incorporated. This is more so, when the informant is in haste and in mentally upset condition due to sudden loss of a near and dear relative. In such a circumstance the safeguard against embellishment is to be found in the statement recorded under Section 161 Cr. P. C. of other eye-witnesses to the occurrence within a reasonably short time of the occurrence. In the present case apart from such circumstances and safeguards there is an additional factor, namely, that an explanation has been taken from the informant (P.W.1) in his cross-examination as to under what circumstances he made an omission to narrate the allegation regarding demand of dowries etc. in the FIR and there has been no further cross-examination of such a statement of this P. W. 1 explaining away that omission. Moreover, it is not the defence case or suggestion anywhere that the P. W.3’s evidence on this aspect was brought anew or that he did not mention such facts before the I. O. in his statement under Section 161 Cr. P. C. Thus, according to Mr. Ahmed, the observation of the ld. Trial Judge does not appear to be free from infirmity that while in the FIR no such story of demand of dowry has been given as a form of torture, in the evidence for the first time the same has been introduced and therefore the prosecution coming with a new case during trial should not be relied upon and the charge should therefore be taken as unsubstantiated. In the charge there is no mention that the alleged cruelty to which the deceased was subjected to was related to any demand of dowry. But, on the other hand, it refers to plain, and simple cruelty as defined under Clause (a) of Section 498A IPC, namely, a wilful conduct which is of such a nature as is likely to drive a woman to commit suicide. Therefore it is not understood why the ld. Trial Judge laid unnecessary emphasis on this aspect and why he repeatedly came to his finding that since the story of demand of dowry is not given in the FIR the charge cannot be said to have been proved. The substantive evidence of the above mentioned witnesses remaining unshaken in their cross-examination should be taken into consideration by the Court while dwelling upon the question whether the prosecution charge has been established beyond doubt. The ld. Trial Judge also failed to take into consideration the evidence that while the deceased returned to her father’s house being unable to bear the various tortures, then a village salish was convened and there the husband of the deceased gave an undertaking that no further torture would be perpetrated upon her and on such undertaking being given by him the deceased was sent back to her matrimonial home. It is conspicuous to note that this part of the evidence of the P. W. 1 and P. W.3 remains unassailed. From the fact that the matter was referred to ‘salish’ it is implied that there was torture. It should not be forgotton that the word ‘torture’ does not necessarily refer to beating. Abuses or humiliations may very well amount to mental tortures and criminal force may amount to physical torture, although that may not amount to causing of hurt. The comment of the ld. Trial Judge that from the post-mortem there is no indication that the deceased had received any injury due to assault is of little significance, because it is not necessary that there should be some merciless beating causing grave injuries on the person of the victim in order to constitute ‘torture’.

9. These aspects ought to have been taken into account by the ld. Trial Judge. Moreover, as the contention of Mr. Ahmed goes on, the ld. Trial Judge failed to properly consider the provisions of Section 113A of the Indian Evidence Act. In the face of the evidence indicating that the accused persons being the husband and in-laws of the deceased had subjected her to cruelty, the Court should have resorted to the presumption that such suicide had been abetted by such accused persons. The Court ought to have adopted such an approach and to have seen whether the defence had been able to rebut such presumption.

10. While agreeing that there is some substance in the train of reasoning advanced by Mr. Ahmed, I am unable to accede to the contention that due to such shortcomings in the findings of the Trial Court they become liable to be reversed in this revisional application. As has been rightly argued by Mr. Roy, ld. Advocate, for the O. P., the scope of this Court to go into the appraisal of evidence is very limited and the exercise of its revisional power in the matter of such an application against the order of acquittal is in a narrow compass, namely to remand the case at the most for retrial and not to convert the order of acquittal into one of conviction. Mr. Roy further contends that the High Court in its revisional power will not be competent to interfere with such a finding of acquittal unless there is a manifest error of law or procedure or there has been miscarriage of justice or some violation of fundamental principles of law and unless such exceptional conditions are fulfilled, the revisional jurisdiction cannot be invoked. In support of his contention he has referred to the decision reported in 1999 C. Cr. L. R. corresponding to (Vimal Singh v. Khuman Singh and Anr.). In this

judgment Their Lordships have held that the High Court in exercise of its revisional power can set aside an order of acquittal, if it comes within the ambit of exceptional cases, namely, where there has been manifest error of law or procedure or there is glaring illegality or that the order under revision has caused miscarriage of justice or when it is found that the Trial Court has no jurisdiction to draw the case or where the Trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In our present case, what has happened, according to Mr. Ahmed, is that a very vital document has not been brought into evidence. This is the post-mortem report which the doctor (P. W.6) prepared after holding post-mortem examination on the dead body of the deceased. As has been argued by him, in the absence of this document, which is on a crucial question, namely whether the deceased used to be physically tortured has not been produced and as a result, the findings of the Court below on this aspect suffers from infirmity.

11. I am unable to accept the above contentions of Mr. Kazi Safiuddin. The ruling which he has relied upon in order to propagate his theory that the postmortem report should be admitted into evidence and this revisional Court should give appropriate direction to the Trial Court to get the same admitted into evidence is the decision (Rajendra Prasad v. Narcotic Cell). In this judgment it has been held by Their Lordships that a lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial either in producing relevant material or in eliciting relevant answers from witnesses. Their Lordships have further observed that an oversight in the management of the prosecution cannot be treated as irreparable lacuna. But, I am afraid, this ruling will not be applicable to the present case, because the facts and circumstances under which this verdict was pronounced were totally different. In this case under reference the Public Prosecutor omitted to put certain questions to one of the prosecution-witnesses during trial of the case and after closure of evidence, when the case was fixed for hearing of argument, the said Public Prosecutor moved an application before the Trial Court seeking permission to further cross-examine that P. W. and two other persons afresh and the Trial Court after hearing both sides allowed that petition in exercise of its power under Section 311 of the Code. This order of the Trial Court granting an opportunity to the prosecution to re-examine a witness or to examine two new witnesses has passed on an application filed by the ld. Public Prosecutor for that purpose and not suo motu. In such a case the Hon’ble Supreme Court has made the above observation that there is a difference between lacuna in the prosecution and fall-out of an oversight committed by the Public Prosecutor during trial. The question whether any particular document should be brought into evidence is the headache of the Public Prosecutor who is the guardian of the prosecution or the prosecuting machinery. In the present case the omission of the prosecution to adduce the said post-mortem report into evidence is to be treated as a lacuna and in the absence of any prayer of the prosecuting agency for an order of the Court to allow it to produce the same, such omission cannot be taken as the product of oversight or inadvertence or cannot be ordered to be made good. Particularly, this revisional Court which has to work within a restricted framework has no business to suo motu direct the production of this document when the prosecution did not make any such prayer at any stage of the trial, nor even preferred any appeal against the order of acquittal in question. Therefore this ruling cited by Mr. Kazi Safiuddin is of no avail. In it has been more

emphatically enjoined that the High Court in a revision is expressly prohibited from converting an acquittal into a conviction and when approached by a private party for exercising its power of revision from an order of acquittal it should properly refrain from interfering except when there is a glaring legal defect of a serious nature which resulted in grave failure of justice, or glaring cases of injustice resulting from some violation of fundamental principles of law by the Trial Court that the High Court is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused and from the nature of this power it should be exercised sparingly and with great care and caution. It has been further observed by Their Lordships in this case that the mere circumstance that a finding of fact recorded by the Trial Court may in the opinion of the High Court be wrong will not justify setting aside of the order of acquittal and directing retrial of the accused. Simply because the High Court is not inclined to agree with the view taken by the Trial Court regarding the appreciation of evidence, it would not be justified for this Court in revision to interfere with the order of acquittal passed by that Court. Their Lordships further held that even in an appeal the appellate Court would not have been justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the Trial Court on the appreciation of evidence.

12. In another decision of the Apex Court

(Akali Ahir and Ors. v. Ramdeo Ram) it has been held that the appraisal of the evidence by the Trial Judge although not perfect or free from flaw and a Court of appeal may well have felt itself justified in its agreeing with its conclusion, yet it does not follow that on revision by a private complainant the High Court is entitled to reappraise the evidence for itself as if it is acting as a Court of appeal and then order a retrial. Their Lordships further hold that it may be unfortunate that some heinous offenders may go unpunished but that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court. According to Their Lordships the expression of opinion on the evidence with respect to the commission of the alleged offence would not be binding under the law and would therefore hardly be relevant. Their Lordships opined that the High Court had committed a serious error in directing retrial on the basis of its reassessment of oral evidence on the record while exercising its reassessment of oral evidence on the record while exercising its power of revision at the instance of a private complainant.

13. Still another decision has been referred to. This is . In this Three-Judge-Bench judgment it has been held that High Court’s interference with the order of acquittal passed by a Trial Court is not called for in the exercise of the revisional jurisdiction and the revisional jurisdiction cannot be invoked merely because the lower court has not appreciated the evidence properly.

14. Thus from the catena of cases discussed above the well recognised and settled principle is that the High Court in its revisional jurisdiction is not competent to enter into a reappraisal or reappreciation of evidence in order to show that the findings of fact arrived at by the Trial Court from such evidence was wrong or unwarranted. On the other hand, it can interfere with an order of acquittal in certain exceptional exigencies, namely, when there is gross illegality leading to manifest injustice or some flagrant violation of the fundamental principles which are so glaring that interference with the order is indispensably called for. In the present case such conditions are not fulfilled and no such exceptional circumstance of gross illegality or perversity underlying the impugned findings of the Court below arises. What has been done here as alleged is misappreciation of facts or drawing of wrong conclusion at the most. There is no gross illegality or perversity in the reasoning process. Merely because the conclusion drawn by the Trial Court from the evidences on record appear to be erroneous and it seems that certain other findings might have been arrived at from such evidence I cannot direct retrial. In other words, I cannot regard it as an exceptional case where there has been violation of any fundamental principle of law or gross miscarriage of justice resulting from shutting of any evidence by the Trial Court or glaring defect in procedure or any manifest error on the point of law or the like. The mere circumstance that the finding of fact recorded by the Trial Court may be wrong or that the said Court may have taken a wrong view or have misappreciated the evidence cannot be enough to enable this revisional Court to set aside the order of acquittal and direct retrial.

15. The contention of Mr. Ahmed is not correct that by virtue of some important pieces of documents, namely, the post-mortem report and the Chemical Examiner’s report on Viscera having not been in evidence there Has been a glaring omission and it is the duty of the Court to admit them into evidence and hence this revisional Court should send the case back to the Trial Court for retrial of the accused after taking those documents into evidence. The matter of adducing any particular documentary evidence in support of its case is the responsibility or headache of the prosecution. If it does not adduce any such document into evidence, a Court cannot help it to make good such a lacuna. That will be its siding with a party and will be highly improper on its part.

16. The further contention of Mr. Safiuddin Ahmed also cannot be accepted that here the provisions of Section 113A of the Evidence Act will be attracted and the Trial Court by not drawing the presumption available under that Section and not placing the onus on the shoulder of the accused persons, ****** committed an act of gross illegality by violating such a fundamental principle of law and thereby his judgment is rendered revisable and reversible for retrial on that score for a fresh adjudication in the light of this changed approach towards the concept of burden of proof. This presumption as to abetment of suicide will be applicable only when the Court is satisfied that the prosecution has discharged its initial onus of proving cruelty [vide the decision reported in 1994 Cri. L. J. 1602 in Basappa Datta Hegde v. State of Karnataka]. In another decision of this Court in Samir Samanta v. State of West Bengal it has been held as follows: “The Court in having recourse to the presumption under Section 113A of the Evidence Act must be circumspect. The legislative mandate of that section is that where a woman commits suicide within seven years of marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as the term has been defined in Section 498A I. P. C. the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by such persons. It is evident that the legislature was extremely careful in drafting the provisions of Section 113A of the Evidence Act. Had it been the intention of the legislature that the Court should in all cases jump upon a conclusion as a rule that there has been abetment of suicide, simply because suicide has been committed by the woman within seven years of marriage and she was subjected to cruelty, the legislature would not have used such flexible expression as “the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted.”

17. In the present case, as I have discussed above, the Trial Court found on a scanning of the materials on record that the prosecution had not been successful in substantiating its allegation that the deceased used to be tortured by her husband or in-laws as alleged. This part of his findings is a finding of fact simplicitor and this Revisional Court has no competence to enter into a scrutiny thereof or to get it replaced by its own findings. So, if this part of the findings of the Court below persists, it cannot be said that all the important pre-conditions for applying the provisions of Section 113A of the Evidence Act have been fulfilled. The condition that it must be shown that the husband or the in-laws in question had subjected her to cruelty has not been satisfied and therefore the presumption that the suicide of the deceased had been abetted by the accused persons cannot be drawn.

18. In view of the entire foregoing reasons, this will not be a fit case where this Court can be in a position to exercise its revisional powers with a view to setting aside the order of acquittal passed by the Trial Court and remanding the case for retrial as prayed for and in the result, therefore, this Court’s interference with the impugned judgment under Section 401 Cr. P. C. will be unwarranted and hence the revisional application is dismissed and the impugned judgment and order of acquittal stands affirmed.

19. The L. C. R. be sent down to the Court below forthwith.

20. Xerox certified copies, if applied for by any party, may be supplied without delay.

21. Interim order, if any, be vacated.

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