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Suradhani Darbar And Anr.-vs-The State Of West Bengal on 23 May, 2003

Calcutta High Court Suradhani Darbar And Anr.-vs-The State Of West Bengal on 23 May, 2003
Equivalent citations:(2003) 3 CALLT 357 HC
Author: N Sil
Bench: G De, N C Sil

JUDGMENT

N.C. Sil, J.

1. This appeal was directed against the judgment and order of conviction dated 18.12.1990 under Section 498A and 304B of the Indian Penal Code passed by Sri R.B, Roy, learned Additional Sessions Judge, First Court, Midnapore whereby he was pleased to sentence both the appellants to suffer rigorous imprisonment for a term of two years and to pay a fine of Rs. 2000/- each, in default, to suffer rigorous imprisonment for six months more for the offence under Section 498A and to suffer life imprisonment and also to pay a fine of Rs. 5000/- each, in default rigorous imprisonment for two years for the offence under Section 304B IPC.

2. The fact of the prosecution case in brief is that the victim Rinarani Darbar, daughter of Prafulla Kumar Jana, the informant was married with the appellant Gopal Darbar on 28th Falgoon, 1393 B.S. It was agreed upon at the time of marriage that Prafulla would pay a sum of Rs. 9,000/- to the appellant Gopal as dowry and out of the said amount a sum of Rs. 4,500/-was paid to Gopal. It was further agreed upon that the balance sum of Rs. 4,500/- would be paid within one year of the marriage. It was alleged that Gopal perpetrated torture upon Rinarani and also assaulted her being inebriated for non-payment of the balance amount of dowry. It was also alleged that other appellant Suradhani, the mother of Gopal also used to torture Rinarani for non-payment of the balance amount of dowry. Rina used to narrate such torture to her parents and the other members of her parents’ family. In the month of Bhadra 1394 B.S. Rina once came to her father’s house and narrated the incident of such torture for non-payment of the balance amount of dowry. Rina also told at that time that Suradhani instigated Gopal to kill her. However, Prafulla and his sister Kamala took Rina on that occasion to the house of Gopal and requested Gopal not to persist in such torture and assured him that the balance amount of dowry would be paid. However, on 3rd Aswin, 1394 B.S. Rina died and on the next day Prafulla got the information of such death and immediately he went to the house of Gopal when he found mark of blood on the mouth, nostril and eyes. He also noticed black mark of assault by rod on her right cheek. Thereafter Prafulla lodged written complaint with Daspur Police Station. The police took up the investigation and submitted chargesheet under Section 498A and 304B of the Indian Penal Code.

3. It appears from the record that the learned trial Judge framed the charge against both the appellants under Sections 498A and 304B/34 of the Indian Penal Code when the appellants as accused persons pleaded not guilty and claimed to be tried.

4. The record goes to show that as many as 13 witnesses were produced by the prosecution and out of those witnesses the PWs 1 to 6 were declared hostile by the prosecution. The record further goes to show that Dr. J.B. Mukherjee was examined by the Court as Court witness. After the evidence of the witnesses was over the accused persons were examined under Section 313 CrPC. The defence case, as it appears from the trend of cross-examination and that of their examination under Section 313 CrPC is of ignorance and false accusation and that Rinarani died a natural death.

5. It is thus incumbent upon us to determine as to whether the learned trial Judge was justified in finding the appellants guilty of the offences under Section 498A and 304B read with Section 34 of the Indian Penal Code.

6. Krishnadas Mondal, a neighbour of the appellants is the PW 1. He stated in his examination-in-chief that on getting an information he went to the house of Gopal and found Rina dead there. He, however, claimed that he did not see any peculiarity on the corpse of Rina at that time. He did not find any disturbance between Gopal and Rina. It is also stated by him that he lodged the information with the Police Station in writing. The statement of this witness made before the Investigating Officer was confronted in his cross-examination by the prosecution when he stated that he did not make any statement before the Investigating Officer to the effect that he found red coloured saliva coming out from the mouth and nostril of Rina or that sometimes Gopal used to rebuke Rina or that he found old black mark on the person of Rina. The prosecution appears to have taken confirmation of the statement of the PW 1 made before the Investigating Officer who is PW 13 in the present case. It appears from the evidence of the PW 13 that PW 1 made such statement before the Investigating Officer at the time of his examination under Section 161 CrPC.

7. Tarapada Maity, another neighbour of the appellants is the PW 2. He was also declared hostile by the prosecution when he stated that he did not notice any peculiarity on the dead body of Rina. The statement of this witness was also confronted in his cross-examination by the prosecution and thereafter the confirmation of such statement was taken from the Investigating Officer (PW 13). Thus, it appears from the evidence of the PW 13 that the PW 2 stated before him that he saw red saliva coming out through the mouth and nostril of Rina and also that the father of Rina told about torture upon her by the accused persons over non-payment of dowry.

8. Gourhari Patra is the PW 3. He was also a neighbour of the appellants. He was also declared hostile by the prosecution when he stated that he did not know anything about the torture perpetrated upon Rina by the members of Gopal’s family. His statement before the Investigating Officer was confronted in his cross-examination by the prosecution when it was stated by the PW 3 that he did not make any statement to the Investigating Officer that in the evening of 20.9.1987 Gopal assaulted his wife Rina and Gopal’s mother abused her over a belt nor did he state that after marriage Gopal and his mother used to torture Rina. The statement of the PW 3 was confirmed by the Investigating Officer (PW 13) and it appears that the PW 3 stated that after marriage Gopal and his mother used to torture Rina.

9. Bibhuti Bhusan Bera, another neighbour of the appellants and a quack is the PW 4. He was also declared hostile when stated:

‘The younger sister of accused Gopal called me and I had been to the house of Gopal on that evening. I found Rina was lying on the ground in the verandah of the house of accused Gopal and Saliva had been coming out from her mouth and nostril and she was in a restless condition and immediately after that Rina expired.”

10. The statement of this witness was confronted in his cross-examination and thereafter taken confirmation from the Investigating Officer. Thus, it appears from the evidence of the Investigating Officer that the PW 4 stated before him that Kalpana Darbar called him and after he went to the house of Gopal he saw Rina In a restless condition and she could not say anything and died immediately thereafter and the inmates of the house told him that Rina had taken poison and they administered tamarind water. It also appears from the evidence of the Investigating Officer that the PW 4 stated to him that there was a sitting in the village over the death of Rina where Gopal admitted that he used to torture Rina and that on the date of occurrence Gopal slapped Rina over missing of a belt. In his cross-examination by the defence the PW 4 stated that in case of hysteria patient there may be oozing out of saliva from the mouth of the patient.

11. Bisnupada Mondal, another neighbour of the appellants is the PW 5. His statement was also confronted in his cross-examination and thereafter taken confirmation from the PW 13, the Investigating Officer of this case. It appears from the evidence of the PW 13 that the PW 5 stated before him that he saw saliva of red colour coming out of the nostril and mouth of Rina and it was surmised that she had taken demicron. The PW 13 further stated that the PW 5 stated to him that there was disturbance between Rina’s father on the one side and the accused Gopal and his mother on the other over dowry and that Gopal and his mother used to torture Rina.

12. Dhrwiti patra, wife of PW 3 is the PW 6. She was also declared hostile by the prosecution when she stated that although she had conversation at times with Rina on the road, how could she say about the relation between Rina and her husband and the members of her family. However, the evidence of this witness was also confronted in her cross-examination and thereafter taken confirmation from the PW 13. The PW 13 stated that the PW 6 stated to him that Suradhani and Gopal used to assault and torture Rina on different pretext. In her cross-examination by the defence she stated that except on the date of marriage and on the date of death of Rina she had never visited the house of Gopal on any other occasion.

13. Prafulla Kumar Jana, the father of the victim girl is the PW 7. He stated in his evidence that there was a stipulation for payment of dowry of Rs. 9,000/- in the marriage of Rina with Gopal, out of which Rs. 4,500/-was paid to Gopal and it was agreed that the balance amount of Rs. 4,500/- would be paid within a period of one year. The PW 7 stated that Rina used to tell him about the tortures made on her by her husband and mother-in-law for non-payment of the balance of dowry amount when Rina used to come to his house. The PW 7 and others tried to appease her. Rina used to insist him on payment of the balance amount of dowry. It also appears from the evidence of the PW 7 that both he and his sister Kamala used to take Rina to her husband’s house when Rina used to come to his house being tortured by the appellants. It further appears from the evidence that Rina came for the last time in the month of Bhadra 1394 B.S. to his house and at that time also she told Gopal assaulted her under the influence of liquor and her mother-in-law instigated Gopal to kill her. However, on the following day Kamala and the PW 7 took her husband’s house and requested Gopal not to perpetrate any torture upon Rina and at the same time assured him that he would pay the balance amount of dowry. The PW 7 further stated that on 3rd Aswin, 1394 B.S. Rina expired but he got the information on the following day from Krishna Mondal and Netai Samanta both the neighbours of the appellants. Immediately, the PW 7 along with his nephew Ananta Jana and sister Kamala went to the house of Gopal and found Rina dead there. At that time he also found blood mark on the mouth, nostril and eye and black mark of assault by rod on the right cheek of Rina. The PW 7 thereafter lodged a written complaint to Daspur Police Station. He proved the written complaint (Ext. 1). In his cross-examination the PW 7 stated that he lodged the complaint with the Police Station after about 6/7 days of the occurrence. Then he stated that he lodged the complaint after 22 days of the occurrence. It appears from his cross-examination further that as if on the insistence of the police he lodged the complaint and accordingly his nephew wrote the complaint. He also stated in his cross-examination that after he had submitted the written complaint with the police he came to the Court of the learned Chief Judicial Magistrate, Midnapore and filed a written complaint against the accused persons over the occurrence wherein he mentioned the name of Gopal Darbar, Nemai Darbar, Suradhani Darbar, Birendranath Samanta, Sm. Aloke Lata Samanta and Malina Darbar as the accused persons responsible for the death of Rina. In the said written complaint lodged with the learned CJM, Midnapore the PW 7 stated that Rina was murdered by throttling and there was no symptom of death by poisoning, the PW 7 further stated. It further appears that the defence confronted the statement of the PW 7 in the written complaint lodged with the Police Station and treated as the FIR. The PW 7 further stated that he informed the members of Anantapur Anchal Panchayat and one Krishna Samanta as regards the torture on Rina by the accused persons. He further stated, “Rina was literate. She used to write out letters to me complaining the torture as aforesaid.” It further appears from his evidence that police had, in fact, arrived In the house of Gopal before the PW 7 and others went there and there PW 7 made complaint verbally to the police at the time of preparation of inquest report over the dead body of Rina.

14. Smt. Asima Jana, mother of the victim and wife of the PW 7 is the PW 8. She also stated in her evidence that when the victim Rina used to come to their house, she used to tell that the accused persons used to assault and torture her for non-payment of the balance of dowry amount. At that time she (Rina) further stated that unless the balance of dowry amount is paid, she would not get back to her husband’s place. At the time of her cross-examination her statement made before the Investigating Officer was confronted. The confirmation of such statement was also taken from the Investigating Officer by the defence. Thus, it appears from the evidence of the Investigating Officer (PW 13) that the PW 8 did not state that Rina came to their house 7 days before her death and at that time Rina told her that she was assaulted and tortured by her husband and mother-in-law.

15. Smt. Jyotsna Rani Jana is the PW 9. She is a relation of the victim Rina. She stated in her evidence that Rina told her about the torture of her husband and mother-in-law for which Rina refused to go back to her husband’s house. It appears further from her evidence that on other occasions also Rina made similar complaint to her against her husband and mother-in-law. The PW 9 stood the test of cross-examination without being shaken.

16. Kamala Adak, the PW 10, is the sister of PW 7. She stated in her evidence that in one occasion while she had been in the house of the appellants after the marriage of Rina with Gopal she found Gopal making disturbance with Rina in his room and at that time she heard that Gopal slapped Rina. It is also in her evidence that on that occasion Rina’s mother-in-law Suradhani rebuked Rina. Her statement before Investigating Officer had been confronted in her cross-examination by the defence and it appears from the evidence of the PW 13 that she did not state to the Investigating Officer that Gopal assaulted Rina or that Suradhani rebuked Rina.

17. Dr. Tapan Kanti Hazra is the PW 11 who did post-mortem examination over the dead body of the victim Rinarani Darbar. He stated in his examination-in-chief as follows:

“On examination of the dead body, it was found that the dead body was swollen and partly decomposed. I found marks of veins in the hands and feet. I found one linear area of congestion ecchymosis over the right thigh measuring 7″ long and 1/4” breadth. I also found that the tongue and eyes were protruded and blood-mixed froth from the mouth and nose and black colour on the face and neck.

I found ecchymosis measuring 7″ x 1/4″ linear over the middle of right thigh and the skin over it was in tact.

Below the chest, I found that the subcutaneous fatted tissue was congested.

I found that the heart was empty. In the stomach, a brown colour fluid mixed with food materials was detected, which was sent to the F.S.L. for chemical examination.

I found that the liver and the kidney were congested. I also found that the lungs were congested and putrefaction was started.

From the symptom I suspected that it may be a case of poisoning and therefore, I sent the viscera of the deceased to the F.S.L. for chemical examination. I received my opinion as to existence of any poison in the viscera which was sent for chemical examination for my limited knowledge.

(To Court:– The ecchymosis found on the right thigh may be caused by any linear blunt weapon, or may be caused due to the fall on any hard substance. The congestions found in the lungs, liver, kidney, may be caused by asphyxia, or by poisoning or even in natural death when putrefaction already started over the dead body. Barring that, I had nothing to suspect that it was a case of unnatural death.)

In case of fall on any hard linear substance, the injury, as aforesaid on the right thigh of the deceased, may be caused and in such case, there may be injuries on other part of the body of the victim. The injury on the right as aforesaid was antemortem in nature.

The brown coloured fluid found in the stomach of the deceased may be unnatural or may be natural as putrefaction was already started.”

18. In his cross-examination the PW 11 stated that he could not give any opinion as to the nature of the death and so he stated:

‘This case may be a case of natural death if the chemical examiner on examination of the viscera found that there was no poison in the viscera. In case of epileptic patient at any time there may be convulsion and the patient may fall down when the patient becomes unconscious. In case of convulsion due to epilepsy, the patient may die.”

19. He further stated that blood-mixed froth was found on the mouth and pharynx, which may be found in case of poisoning. He also stated that in case of natural death froth may come out from the mouth of the patient.

20. J. Mallick, a S.I. of Police is the PW 12. He is a formal witness. And D. Roychowdhury, PW 13 is the Investigating Officer of this case.

21. Dr. J.B. Mukherjee is the Court witness. He was Professor of Forensic and State Medicine of a Government Medical College having immense experience of the forensic science. It appears from his evidence that he was called by the Court to give his opinion as to whether the death of Rinarani was a natural or unnatural one as the PW 11 could not give any positive opinion in this regard although PW 11 received the report of the chemical examiner that no poison could be detected in the viscera of the victim. The Court witness after having gone through the post-mortem report noticed that the Autopsy Surgeon detected approximately 120 ml brown colour fluid mixed with food materials in the stomach and some blood mixed with froth in the mouth and pharynx, Thereafter this Court witness deposed as below:

“Now, in presence of the browny coloured fluid in the stomach contents but without any smell is pathogromic diagonostic of insecticide poisoning which is so much so very commonly noticed in the village side. Now-a-days, in absence of detection of any poison thereto and so also in absence of any examination of blood of the viscera of deceased by the autopsy surgeon apart from any positive diagnostic features of poisoning in the organs, no definite conclusion can be drawn that the victim died from any effect poison.

The ecchymosis found on the middle of the right thigh is not sufficient to cause death in the ordinary course of nature.

I do not get positive findings in the post-mortem report as prepared by the Autopsy Surgeon to suggest that the case could have been a case of unnatural death. I cannot also rule out the possibility of natural death.”

22. In reply to another question to this witness made by the learned trial Judge it is stated by him that the inquest report gives an insight about the cause of death to the Autopsy Surgeon but no doubt there still remains some doubt about the cause of death in question and it will be the duty of the Autopsy Surgeon to exclude such doubts. Ultimately this Court witness stated as below:

“It is not possible for me to say the circumstances in which Rina Darbar expired in the absence of investigation undertaken by the Investigating Officer and results obtained thereto by the Investigating Officer by the investigation. It is also necessary to ascertain the sign and symptom observed by the doctor who attended Rina Darbar at the material time.”

23. Thereafter this witness on the question put by the learned Public Prosecutor replied that there are some points to suggest that some wrong had been committed because there was blackish colour over the mouth and hand. In the cross-examination made by the defence this witness stated as below:

“In case of an epileptic patient, in case of convulsion the patient may bite lip or tongue with teeth causing bleeding and blood can get mixed up with froth. The brownish fluid as seen in the stomach of the deceased may be due to tarmind or water in food stuff with browning colour being eaten by the deceased prior to his or her death, generally the brain becomes congested in case of poisoning.”

24. And ultimately he stated, “I cannot rule out the possibility of this case to be a natural death.”

25. Mr. Himangshu De, the learned advocate for the appellants argues before us that everybody speaks of natural death of Rina in the instant case and in this connection he has reminded us that Rina was epileptic patient. It is also pointed out by him that in the instant case the FIR was lodged after 23 days of the incident by the father of the victim and as such the same cannot be relied upon. It is also argued that PWs 8 and 9 were examined by the Investigating Officer on 8.11.1987 i.e. after 48 days while PW 10 was examined on 28.3.1988 i.e. after about six months of the incident and as such in view of such inordinate delay in examination of those witnesses reliance cannot be placed on the same. Mr. De has also argued before us that there is no evidence of demand of dowry or any torture perpetrated on Rina by the appellants.

26. After having considered the submissions of the learned advocate for the appellants and that of the learned advocate for the State and the materials on record it is clear that the specific case of the defence is of natural death of the victim Rinarani Darbar. In fact, there are three probabilities of the death of the victim and those are natural, suicidal or homicidal and as such it is to be explored whether the death of victim was natural, suicidal or homicidal. The learned trial Judge appears to have traversed the situation in this regard and came to the conclusion that the death of Rina was unnatural and the same took place within a period of 7 years from her marriage and so the learned trial Judge convicted the appellants for the offences under Sections 498A and 304B of the Indian Penal Code.

27. In the instant case the PW 4 was a quack. Though he was declared hostile by the prosecution it appears from his evidence that he found Rina in a restless condition when saliva was coming out from her mouth and nostrill. The statement of this witness was confronted and thereafter taken confirmation from the Investigating Officer and it appears therefrom that he stated before the Investigating Officer that the inmates of the house told him at that time that Rina had taken poison and the inmates of her-in-laws house administered tamarind water. The PW 5 was also declared hostile. He was a neighbour of the appellants and it appears from his statement before the Investigating Officer that he found saliva of red colour coming out from the nostril and mouth of Rina and it was surmised that Rina had taken demicron. PW 7, the father of the victim though stated that he found blood mark on the mouth, nostril and eye and black mark of assault by rod on the right cheek of Rina, the prosecution could not make out any case of murder.

28. PW 11 did the post mortem examination and we have discussed his evidence in length in the foregoing pages. He found other things one linear area of congestion ecchymosis over the right thigh measuring 7″ long and 1/4th” breadth. He also found the tongue and eyes protruded and blood-mixed froth coming out of mouth and nose. He also found ecchymosis measuring 7″ x 1/4″ linear over the middle of right thigh. In his examination-in-chief he expressed his opinion that the death might have been caused by poisoning and so he sent the viscera of the deceased for chemical examination and accordingly he reserved his opinion as regards the existence of any poison in the viscera. To a Court’s question the PW 11 stated that the ecchymosis found on the thigh might have been caused by blunt weapon “or may be caused due to fall on any hard substance.” In the cross-examination of that witness he stated that Rina might have died a natural death if only no poison is found in the viscera after chemical examination. In fact none of the expert witnesses whose evidence we have already discussed in details could come to a definite finding as regards the cause of the death and this has made it expedient for us to depend on the surrounding circumstances prevailing at that moment.

29. The PW 4 was the first person who went to the place of occurrence. Though denied by the PW 4 it was stated by the Investigating Officer that the PW 4 told him that he found Rina in a restless condition and at that time the intimates of the house told him that Rina had taken poison for which they administered tamarind water. The PW 4 is a neighbour of the accused persons and he subsequently became hostile at the time of giving deposition before the Court. It is now the settled principle of law that the evidence of the hostile witness cannot be discarded altogether. The inquest report (Ext. 5) stands In support of the statements of PW 4 before the Investigating Officer that the deceased took poison. Krishnadas Mondal, the PW 1 was the first person to give a written intimation (Ext. 6) to the O.C. Daspur P.S. on the next day of the occurrence as regards the death of Rina and there it was specifically stated that In the last night at about 8 p.m. Rina herself took poison and committed suicide. But the F.S.L. report (Ext. 4) goes to say that no poison could be detected in the viscera of the deceased. And here the problem stands to come to a conclusion that the death was caused for taking poison. Now, the only thing left for consideration is to explore whether Rina died a natural death which is in fact the case of the defence.

30. It may be mentioned here that no witness has been examined on behalf of the defence and as such we are left with the surrounding circumstances revealed from the record and the evidence of the witnesses and particularly from the evidence of the PW 11 who held the post mortem examination of the corpse and the Court witness who was called by the Court as an expert. We have discussed the evidence of the PW 11 and the Court witness in all details and it is candid from their evidence that they could not also give any positive opinion as to whether the victim died a natural death but the Court witness stated, “I cannot rule out the possibilities of this case to be a natural death”. This is also not a positive opinion and if the story of the defence is to be believed then such natural death was because the victim was an epileptic patient. The PWs 1 to 6 were declared hostile by the prosecution and most of them are the neighbours of the appellants. The PW 1 in his cross-examination stated that prior to her death Rina had been suffering from hysteria but there is nothing that he made such statement to the Investigating Officer. Only a suggestion was put to the father of the victim, the PW 7 that Rina had been suffering from hysteria before her death which was of course denied by him. And this is about the evidence as regards the cause of death of Rina for her being suffered from epilepsy. To our mind the evidence is not at all convincing that Rina died a natural death out of epilepsy. Now, the sum total of our observation on the basis of the evidence and surrounding circumstances is absolutely obscure as to the cause of death of Rina. In order to bring home the charge under Section 304B IPC, it is incumbent upon the prosecution to establish that the victim died an unnatural death which has not been established in the instant case and as such the conviction of the appellants under Section 304B IPC and the punishment awarded therefor are not sustainable.

31. The other charge against the appellants was under Section 498A. It may be reiterated here that PWs 1 to 6 were declared hostile by the prosecution and thus we are left only with the witnesses of the PWs 7, 8, 9 and 10 who are again the close relations of the victim in order to determine how far the said charge under Section 498A IPC has been substantiated. We have already discussed the evidence of those witnesses in length. The PW 7 made the specific allegation as regards the torture of the appellants on his daughter for non-payment of the balance of dowry amount worth Rs. 4,500/- out of, 9000/- which was supported by the PW 8, the mother of the victim. Both the witnesses stood the test of cross-examination without being shaken particularly on the point of torture upon the victim by the appellants though the Investigating Officer evidence in otherwise. The PW 9 also stated about the torture on Rina by the appellants. And the PW 10 is the aunt of the victim. There is not much in her evidence as regards the torture on Rina perpetrated by the appellants.

32. It is not uncommon at all that the neighbours remain indifferent as to what happens around them unless they are personally involved. It is also very usual that the victim girl discloses her mind to her parents and very close ones in case of any torture on her from her matrimonial house and this is what happened in the instant case. It is also the established principle of law that the Court is not concerned with the quantity of evidence but with its quality. In fact, we do not find any reason as to why the evidence of the parents and the PW 9 should not be relied upon.

33. Much has been argued on behalf of the appellants by their learned advocate as regards the delay in examination of the witnesses and recording their statements under Section 161 Cr.PC by the Investigating Officer. This matter has been dealt with by the learned trial Judge in length as the same thing was agitated at that stage by the defence. The learned trial Judge found the Investigating Officer very casual in his approach to proceed with the investigation of this case and in this connection he had pointed out the observation of the learned SDJM, Ghatal which in our opinion is noteworthy and the same reads as under:

“However, there is no denying of the fact that the Investigating Officer made delay in recording the statement of the witnesses, and also some others. But it appears from Ext. 7, the lower Court record that the defacto complainant through his lawyer moved before the learned Sub-Divisional Judicial Magistrate, Ghatal on 29.10.87 that the Investigating Officer is not taking any interest in recording the statements of the witnesses and accordingly, the learned SDJM, Ghatal observed that there was a very serious allegation and observed that the investigation was not progressing satisfactorily on perusal of the case diary. But this stricture of the learned SDJM, Ghatal failed to motivate the Investigating Officer to record the statements of the witnesses. It appears, therefore, that the defacto complainant was not only eager, but even approached the learned SDJM, Ghatal to have the statements of the witnesses recorded earlier and the learned SDJM, Ghatal accordingly observed the same and that was definitely communicated to the Investigating Officer by sending the order-sheet in question, but the Investigating Officer did not record the statements of the witnesses earlier. Therefore, where the defacto complainant has no lapse on his part and was ready to have the statements of his witnesses being recorded by the Investigating Officer and where the functionary of the de jure complainant, i.e. the Investigating Officer fails to do it in spite of Court’s order, I hold that there is gross-negligence on the part of the Investigating Officer, but for that reason alone the statements of the witnesses, as recorded by this Court should not be construed as unreliable, when there is no fault of the defacto complainant. In this connection a Ruling of the Hon’ble Supreme Court, is relied upon, wherein

it was observed by the Hon’ble Supreme Court that the delay in examination of the witnesses by the Police does not render the evidence untrustworthy.”

34. Thus, we have also nothing to differ with the above view of the learned trial Judge and from all this the delay in recording the statement of the witnesses by the Investigating Officer under Section 161 of CrPC has been abundantly explained. Thus, the charge framed against the appellants under Section 498A IPC has been squarely substantiated and we have nothing to interfere with the conviction and sentence passed by the learned trial Judge on this count against the appellants.

35. Thus, in view of what has been stated in the foregoing lines the appeal is allowed in part. The judgment of conviction and sentence passed against the appellants for committing offence under Section 304B IPC is hereby set aside and they are acquitted from that charge. But the judgment of conviction and sentence passed against the appellants for the offence under Section 498A IPC is hereby affirmed. The learned trial Judge is directed to take measures against the appellants to serve out the sentence if they are on bail and if they have not already served out the term of the sentence.

A copy of this judgment along with the LCR be sent down to the learned lower Court forthwith.

G.C. De, J.

36. I agree.

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