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Purnendu Kumar Sengupta-vs-Sandip Bagchi Alias Bhola And Ors. on 13 January, 2006

Calcutta High Court Purnendu Kumar Sengupta-vs-Sandip Bagchi Alias Bhola And Ors. on 13 January, 2006
Equivalent citations:(2006) 2 CALLT 24 HC
Author: A K Bhattacharya
Bench: A K Bhattacharya

JUDGMENT

Arun Kumar Bhattacharya, J.

1. The hearing stems from an application under Section 401 read with Section 482 Cr PC filed by the petitioner praying for revision of the order of acquittal passed by the learned Assistant Sessions Judge, Jalpaiguri in Sessions Case No. 119/2000 (S.T. No. 30/2000) under Sections 498A/306 IPC on 30.04.2002.

2. The miniaturised version of the Prosecution is that the defacto complainant’s daughter Kakali Sengupta was married with the present petitioner No. 1 Sandip @ Bhola Bagchi on 20.06.97. After a few months altercation and scuffle took place regularly between Sandip and his mother – petitioner No. 2 Dolly Bagchi over the issue of monetary and family expenses. Dolly Bagchi refused to accept the food prepared by Kakali and separated her son and daughter-in-law in a separate mess in the same house which was intimated by Kakali to her mother (P.W.5) and aunt. Subsequently, on the request of Kakali’s mother and aunt not to separate her son and daughter-in-law, Dolly Bagchi agreed. But after sometime dispute cropped up again when on being asked by Dolly Bagchi to leave the house. Sandip and Kakali, with the help of one Hari Dutta (P.W. 12), started residing as tenant in the house of one Shasthi Bose (P.W.2) at New Town. On 24.01.98 on receipt of an information over phone from the said Shasthi Bose that fire broke out in the house of Kakali, the defacto complainant and others rushed there and found Kakali was being removed in burnt condition to hospital. Later she was admitted in Mitra Nursing Home at Siliguri where she expired on 20.02.98 at about 9.30 p.m. After 3/4 days during visit of the said Hari Dutta and Shasthi Bose with their wives, they reported to the petitioner that the death of Kakali was not an accidental one but due to inhuman behaviour of Dolly Bagchi and hot temper of Sandip. It is apprehended by the defacto complainant that her daughter was abetted to commence suicide. Hence, both the accused were charged under Section 498A/306 IPC.

3. The defence case is a plea of innocence and that the victim Kakali died accidentally by fire due to explosion of stove.

4. Twenty-two witnesses were examined on behalf of the Prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record the learned Court below found the accused persons not guilty and acquitted them of the charges by the impugned order.

5. Being aggrieved by and dissatisfied with the said order the defacto complainant has preferred the present revision.

6. All that now requires to be considered is whether the learned Court below was justified in passing the above order.

7. Mr. Mitra, learned Counsel for the petitioner, advanced argument contending that though there was enough evidence of torture, as adduced by P.Ws. 10. 13 & 21, the learned Court below failed to appreciate the same and convict O.P. Nos. 1 & 2 invoking the provision of Section 113A of the Evidence Act. Mr. Mitra further contended that had it really been a case of accidental death on account of explosion of stove, the stove and cooking utensils in that case would have been seized by the I.O. (P.W.22), and as such the learned Court below should not have placed much reliance upon the dying declaration (Ext. 7) of the victim. Mr. Mitra in his usual fairness further submitted that if the above evidence of torture is not considered to be sufficient and the Court believes the dying declaration of the victim, then his client has no case. Mrs. Goswami learned Counsel for the State, on the other hand, on referring the cases of Thulia Kali v. State of Tamil Nadu and Kishan Lal Sethi v. Jagan Nath submitted that FIR was lodged after about 66 days from the date of incident though the P.S. is at a walking distance of about 10/15 minutes and there is no explanation on behalf of the Prosecution for such abnormal delay and that apart from contradictory evidence of the Prosecution witnesses there is virtually no evidence disclosing the ingredients of the offences against the accused persons nor there is any reason to discard the dying declaration of the victim recorded by an Executive Magistrate and as such there is no material to interfere with the findings of acquittal arrived at by the learned Court below.

8. It is only in glaring cases of injustice resulting from some violation of fund (sic)ental 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. The power should be exercised sparingly and with great care and caution. 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 the order of acquittal and directing retrial. The revisional power of the High Court is much restricted in its scope, as was held in the case of Bansi Lal v. Laxman Singh . It has been

reiterated in the case of Chinnaswamy v. Andhra Pradesh and in subsequent decisions that the power of the High Court to set aside an order of acquittal at the instance of a private party is to be exercised only in exceptional cases, of glaring defect of procedure or manifest error on a point of law resulting in flagrant miscarriage of justice. As Sub-section (3) of Section 401 forbids the conversion of a finding of acquittal into one of conviction it places a limitation on the power of the High Court to set aside an acquittal order which should be exercised only in exceptional cases. Such cases may be where (i) the Trial Court has no jurisdiction to try the case but has still acquitted the accused, or (ii) the Appellate Court has wrongly held the evidence admitted by the Trial Court to be inadmissible, or (iii) material evidence has been overlooked either by the Trial Court or Appellate Court or (iv) the acquittal is based on a compounding of the offences: invalid under the law etc. These categories are merely illustrative and there may be other cases of similar nature when retrial or rehearing of appeal may be ordered.

9. The facts undisputed in the present case, as are evinced from the materials on record, are as follows: The victim Kakali was the legally married wife of accused/petitioner No. 1 Sandip. their marriage having taken place on 26.02.97. Since December, 1997 they used to reside in the house of P.W.2 as tenant. The victim received burn injuries in the evening of 24.01.98. She was removed to hospital and therefrom to Mitra Nursing Home, Siliguri where she breathed her last on 20.02.98 at about 9.30 p.m.

10. So far as the offence under Section 498A IPC is concerned, it is not every kind of cruelty which constitutes an offence under the section. “Cruelty” within the explanation to Section 498A means any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide, or such wilful conduct which is likely to cause grave injury or danger to live, limb or health whether mental or physical of the women or harassment to the women where such harassment is with a view to coercing her for any property or valuable security. It is difficult to enumerate acts amounting to cruelty or to put cruel conduct into a straight jacket or to make cruel conduct considerable to any inflexible standard. The term cruelty has been designedly left to an elastic form to meet the necessities changing requirements and concepts society. Cruelty is not a fact isolated from the environment and background of the spouses, and therefore each case ought to be decided individually according to the peculiar set-up of the case. The conduct complained of must be decided to a certain degree by reference to the parties capacity or incapacity for endurance. Section 306 IPC provides for the penal provision for abetment to commit suicide. Presumption under Section 113A of the Evidence Act could be invoked only when the Prosecution has discharged the initial burden of proving that the appellant had subjected the wife to cruelty, and only after the Prosecution discharged this burden, the Court may presume that suicide had been abetted by the appellant having regard to the other circumstances.

11. P.W.1 Purnendu Kumar Sengupta, (defacto complainant). P.W.4 Sukla Sengupta (aunt of the victim), P.W. 10 Ardhendu Kumar Sengupta (uncle), P.W. 11 (eldest uncle), P.W. 13 Bijaya Bose, wife of Shasthi @ Nripendra Nath Bose (P.W.2) and P.W.21 Bibha Barman (maidservan are the witnesses relating to ill-treatment and torture upon, the victim.

12. P.W.1 claims to have known from Bijaya Bose (P.W. 13) regarding using abusive language by Sandip to his daughter and that the victim did not take food for the last three days. As per evidence of P.W.4, the victim reported to her that Sandip did not behave with her properly. P.W. 10 came to learn from Sukla Sengupta (P.W.4) that Kakali was abused by her husband. P.W. 11 deposed that husband and mother-in-law of Kakali used to torture her mentally and physically. P.W. 13 noticed that no attempt was made to extinguish the fire from the person of Kakali. As per evidence of P.W.21 Sandip used to talk with Kakali loudly but she cannot say in which connection he used to talk in such a way.

13. None of the above allegations has been made out in the FIR. So far P.W.1 is concerned, there is no such evidence on the part of P.W. 13 that she reported as above to him. Had there been any misbehaviour on the part of accused Sandip to his wife, P.W.5 being the mother of the victim at least would have known it, but there is no such evidence on her part. Similar observation is applicable in respect of evidence of P.W.4. There is no evidence on the part of P.W.4 that Sandip abused his wife and she reported about it to P.W. 10 and accordingly the above evidence of P.W. 10 being hears cannot be taken into consideration. That apart, there being no earlier statement under Section 161 Cr. PC in this regard on behalf of P.W. 10. the said evidence may be excluded from consideration. The evidence of P.W. 11 is an uncorroborated testimony. The evidence of P.W. 13 is self-contradictory since if after her arrival at the P.O. she found the victim lying with burn injuries, the question of extinguishing fire did not arise. That apart, it is contradicted by P.W.6 Arun Kumar Chowdhury who stated that they extinguished the fire. As regards the evidence of P.W.13 that she often found Sandip rebuking Kakali in offensive language, it is absent in the evidence of any other witness.

14. P.W.7 Goutam Bagchi found the husband of the victim crying in the Courtyard. P.W. 12 Haridas Dutta who was declared hostile found the relationship between the couple normal. Similar is the evidence of P.W. 14 Smt. Gouri Chowdhury, another hostile witness, who found the relationship between Sandip and Kakali healthy and peaceful. None of the neighbourers viz. P.Ws. 2, 6 to 9 levelled any allegation against any of the two accused persons. P.W. 18 S.I. Shyamapada Masanta during inquest could ascertain that victim caught .fire while preparing tea.

15. Furthermore, delay in lodging the FIR after about 66 days of the incident, although the P.S. is at a walking distance of about 10/15 minutes, having not been satisfactorily explained, it is fatal to the prosecution and is unsafe to base conviction. In this connection, the case of Thulia Kali (supra) may be referred to.

16. A glance to the above would reveal that there is no evidence to substantiate the charges and as such the above contention of Mr. Mitra regarding existence of evidence of torture against the petitioners is not at all acceptable.

17. As regards dying declaration, it is well settled that if a dying declaration is found true, voluntary, conscious made with normal understanding and the maker was in fit physical condition and if it is free from any embellishment or distortion it can be acted upon. In the case on hand, the dying declaration of the victim (Ext. 7) recorded by P.W. 20 Dipak Kumar Gupta, Executive Magistrate, on 27.01.98 at about 11.30 a.m. at Mitra Nursing Home, Siliguri which was certified beforehand by Dr. T.K. Ghosh, attending doctor, that the patient was conscious and mentally fit to give dying declaration, is to the effect that at the time of preparation of tea her salwar-kameeze caught fire on account of leakage of gas from stove, for which she became a victim of accident. The P.O. as shown in the sketch map (Ext. 8) prepared by I.O. (P.W. 22) is kitchen. So, when the above dying declaration was made with conscious mind and the maker was in fit physical condition and the same is voluntary and there is nothing to suggest that she was tutored by any person, there is no reason to discard the same. In this connection, the case of Kishan Lal Sethi (supra) may be relied on. Therefore, this is another piece of evidence which strengthens the findings of the learned Court below.

18. In the premises, in the light of the above discussion, there being no material to interfere with the findings of the learned Court below and the present revisional application being devoid of any merit, be dismissed.

Let a copy of this order along with the L.C.R. be go down at once to the learned Court below.

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