Calcutta High Court (Appellete Side)
1563/2009 on 14 September, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
21. 14.9.2011. C.R.R.1563 of 2009.
as
In Re: An application under Section 401 read with Section 482 of the Code of Criminal Procedure.
Re : Gunadhar Gayen. .......Petitioner.
Mr. Rajarshi Basu.
....For the Petitioner.
Mr. Binoy Kr. Panda.
....For the State.
The challenge in this revisional application is to the legality, validity and propriety of the judgment and order dated 22.12.2008 passed by the learned Additional District & Sessions Judge, Fast Track, 2nd Court at Diamond Harbour acquitting thereby the opposite party, Uttam Kayel of the charges under Section 498/302/201 of the I.P.C. in Sessions Case No.13 (5) 06 corresponding to Sessions Trial No.1 (7) 07 arising out of Raidighi P.S. Case No.26 dated 28.3.2006.
The petitioner herein is the defacto complainant of the case. He challenged the legality, validity and propriety of the order on the following grounds;
i) that the learned Trial Court failed to appreciate the evidence of witnesses who are mere relations of the opposite party/accused in their true and proper perspective;
ii) that the learned Trial Court failed to appreciate the statement made by some of the witnesses under Section 164 of the Cr. P. C.;
iii) that the learned Trial Court failed to take note of the fact that the post mortem report unequivocally established that the death was ante mortem and homicidal in nature and the dead body was recovered with a 'Gamcha' tied around her neck;
iv) that the learned Trial Court failed to appreciate the chain of circumstances altogether led to only conclusion that none but the opposite party had committed the offence;
v) that the learned Trial Court overlooked material and relevant evidence and put much importance on irrelevant and immaterial evidence in order to justify the order of acquittal;
vi) that the learned Trial Court did not at all discuss regarding the charge under Section 201 I.P.C. and evidence in connection with that offence and thereby the judgment impugned is contrary to the provisions of Section 354 of the Cr. P. C.
vii) that the judgment being otherwise bad in law, is liable to be set aside.
The factual background of the revisional application in short is that the marriage of Karuna, the daughter of defacto complainant with the opposite party, Uttam had taken place 17 years ago before her death and in their wedlock, three children were born. She was subjected to physical and mental torture in her matrimonial home over demand of dowry. Sometimes, she could not bear torture and had to take shelter in her paternal house. However, 15 days before her death, she was mercilessly beaten up by her husband, opposite party no.2 and she was brought by her parents in their house. On 1.3.2006, the opposite party no.2, Uttam came to the paternal house of the victim and without their consent took Karuna away therefrom. 7 days thereafter, her dead body was found with a 'Gamcha' tied up around her neck in the pond of Moyera. On the basis of above information given by Gunadhar Gayen, the father of the victim Karuna, Raidighi Police Station Case No.26 dated 28.3.2006 was registered and investigated into. The investigation ended in a charge sheet against the opposite party no.2, Uttam under Section 498A/302 as well as 201 of the I. P. C. The learned Trial Court, upon consideration of the evidence found that the prosecution failed to bring home the charges under Section 498A/302/201 of the I.P.C. against the opposite party, Uttam and recorded his acquittal.
The defacto complainant, i.e., the father of the victim has come up with this application praying for retrial/re-hearing of the case after setting aside the judgment on the grounds already stated.
Mr. Basu, learned Counsel appearing on behalf of the petitioner submitted that the judgment impugned is liable to be set aside mainly on the ground that the learned Trial Court did not write the judgment in accordance with the provisions laid down in Section 354 of the Cr. P. C. He takes me to the Section 354 of the Cr. P. C. and submits that in view of Clause (b) of Sub Section (1) of Section 354 of the Cr. P. C., a judgment should contain the point or points for determination, decision thereon and reasons for decision. He submits further that the charge was framed under Section 498A/302 as well as 201 of the I.P.C. Charge under Section 201 I.P.C. was framed because of causing disappearance of the dead body of victim Karuna. He takes me to the judgment impugned and submits that nowhere within the four corners of the judgment, a single word has been ascribed by the learned Trial Court regarding the charge under Section 201 of the I.P.C. and evidence recorded thereto and decision thereon as if there was no charge under Section 201 I.P.C. so framed against the accused/opposite party.
It is true that the judgment impugned does not say anything about the charge so framed under Section 201 of the I.P.C. No discussion whatsoever regarding that charge and the evidence in favour of or against that charge was discussed by the learned Trial Court. The offence under Sections 302, 498A, 201 I.P.C. are separate and distinct. Although offences of Section 302 I.P.C. having some connection with the offences under Section 201 I.P.C., nature of offences and ingredients of the offences under those sections are quite different in nature. The clause (b) of Sub Section (1) of Section 354 of the Cr. P. C. is not formal but obligatory on the part of the Court. In view of Section 354, a judgment shall contain a) the points for determination; b) the decision thereon (finding should be recorded on all the charges); and c) reasons for decision. It should also clearly indicate that the evidence has been considered and also the points urged have been properly discussed.
I must say that although the learned Trial Court in his ordering portion recorded acquittal of the opposite party, Uttam from all the charges under Section 498A/302/201 of the I.P.C., nowhere within the body of the judgment it has discussed anything about the charge under Section 201 I.P.C.
Mr. Panda, learned Counsel appearing on behalf of the opposite party/State fairly conceded to the submission of Mr. Basu, learned Counsel appearing for the petitioner. The judgment impugned is liable to be set aside on that score only.
On careful appraisal of the judgment as well as the evidence recorded by the learned Trial Court, it appears that the learned Trial Court failed to take into consideration the post mortem report in his proper and correct perspective. There was a mark of strangulation by ligature and according to the post mortem report as well as the Doctors evidence the death of Karuna was ante mortem and homicidal in nature. There is evidence in abundance as to the fact that the dead body was recovered with a 'Gamcha' tied up around the neck of the deceased. This goes to suggest unerringly that it was a case of murder.
There is evidence in abundance regarding physical and mental torture on the deceased by her husband, the opposite party. There appears to be a strong case in favour of the prosecution that the victim was taken by the opposite party prior to recovery of her dead body and in between taking the deceased out of her paternal house and the death of recovery of her dead body, her whereabouts were not disclosed with any satisfactory explanation by the opposite party who happens to be the husband of the deceased. The learned Trial Court did not consider all these points.
I think that besides the non-compliance with Clause (b) of Sub Section (1) of Section 354 of the Cr. P. C. mentioned above, the judgment is also to be set aside on the ground that the learned Trial Court overlooked some relevant and material evidence on record and probability factors.
This Court in exercise its revisional jurisdiction cannot probe deep into evidence and re-appreciate the same since it is the domain of Appellate Court. It is trite law that the High Court can exercise its revisional jurisdiction when invoked by a private party in case the Trial Court overlooked relevant and material evidence on record and recorded acquittal basing on irrelevant and immaterial factors and evidence and thereby resulting in gross injustice.
Considering the seriousness of the case, the way the judgment is written and overlooking important and relevant issues and evidence on record, I think that this is a fit case where this Court should exercise its revisional jurisdiction and interfere into the judgment under challenge. There is patent illegality in the judgment calls for interference. Accordingly, this Court set aside the judgment.
This case should revisit the learned Trial Court for re- hearing of the entire matter on the evidence on record, decision of each charge so framed against the opposite party, Uttam and a fresh judgment without being swayed or influenced by any observations made by this Court.
The revisional application is allowed and disposed of.
( Kanchan Chakraborty, J. )