Calcutta High Court (Appellete Side)
Shyama Charan Ghosh vs The State Of West Bengal & Ors on 21 January, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present :
The Hon'ble Justice Ashim Kumar Banerjee
C.R.R. 3325 of 2007
Shyama Charan Ghosh
-Versus-
The State of West Bengal & Ors.
For the Petitioner :- Mr. Pushpal Satpathi
For Respondent / :- Mr. Milan Mukherjee
Opposite Party Mr. R.S. Chatterjee
Mr. U.S. Chatterjee
Mr. S. Das Gupta
For the State :- Mr. Sanat Chowdhury
Heard On :- January 19 & 21, 2010
Judgment on :- January 21, 2010
The facts of this case, if the prosecution story is to be believed, would depict how unfortunate the ill-fated girl was. Basanti was married to Milan. They enjoyed married life happily for one year. Problem cropped up when Khuku Majhi joined as maid-servant after a year. Milan became involved in extra marital relationship with Khuku and started torturing Basanti, both physically and mentally. His mother, Raj Laxmi, supported him. Sometime Khuku also joined them. Being unable to bare such physical and mental torture, Basanti committed suicide by hanging. Milan, Raj Laxmi and Khuku were arrested and charged under Section 498A read with Section 306 of the Indian Penal Code. They all pleaded their innocence and opted to be tried. During trial PW-1, PW-6 and PW-7 supported the case of the prosecution, so also PW-10. The other villagers being PW-2 and PW-4 were declared hostile. The other villagers being PW-3, PW-5 and PW-8 did not say 2 much to support the case of the prosecution. Mr. Satpathi, appearing for the petitioner, banks upon the depositions of PW-1, PW-6 and PW-7.
The learned Judge disbelieved all the three witnesses for the reasons recorded in the judgment and acquitted the accused of the charges brought against them. Hence, this application for revision.
Mr. Pushpal Satpathi, learned Advocate appearing for the petitioner, contends that the learned Judge overlooked the totality of the evidence and mis- interpreted the same. The learned Judge disbelieved PW-1, PW-6 and PW-7 on the ground of non-disclosure of certain facts before the Investigating Officer under Section 161. The learned Judge, however, failed to appreciate that a consistent case of torture was successfully made by the prosecution and the prosecution witnesses were consistent on that score. According to him, even if the learned Judge was of the opinion that offence under Section 306 could not be proved, he ought to have signed the judgment of conviction on the offence committed by the accused under Section 498A.
Elaborating his submissions, Mr. Satpathi has taken me to the deposition of PW-1, PW-6 and PW-7. He has drawn my attention to the statement made under Section 161 by the said witnesses before the police contemporaneously. According to Mr. Satpathi, if those two statements are compared, it would appear that there was no inconsistency. He adds that the statement, recorded under Section 161, was inadmissible in evidence. Moreover, there was no hard and fast rule that the witnesses must disclose each and every minute incident in detail to the police while recording their statement under Section 161.
3He takes me to the relevant portions of the evidence of the said three witnesses to show that the contradictions, so highlighted by the learned Judge, were far from truth.
To support his contention Mr. Satpathi has relied on the following decisions:-
i) Amalendu Pal @ Jhantu Vs. State of West Bengal :
(2010) 1 C Cr LR (SC) 217
ii) Kishangiri Mangalgiri Goswami Vs. State of Gujarat :
(2009) 1 C Cr LR (SC) 853
iii) Ram Swaroop and Ors. Vs. State of Rajasthan :
AIR 2004 SC 2943
iv) Ganeshlal Vs. State of Maharashtra :
(1992) 3 SCC 106
v) Ram Briksh Singh and Ors. Vs. Ambika Yadav and Anr. :
2004 SCC (Cri) 2009
The decisions in the cases of Amalendu Pal (Supra) and Kishangiri Mangalgiri (Supra) have been relied on to support his contention that the learned Judge, even if not satisfied with the evidence in relation to the offence committed under Section 306, ought to have signed the judgment of conviction under Section 498A.
The decision in the case of Ganeshlal (Supra) has been cited to support his contention that the unfortunate death having occurred at the victim's marital home and she, having died an unnatural death in the custody of her in-laws, the accused were bound to explain as to how the death occurred.
4The decision in the case of Ram Swaroop (Supra) has been cited to enlighten this Court as to the utility of Section 161 so discussed by the Apex Court in Paragraph 23 and 24 of the said decision.
The last decision in the case of Ram Briksh (Supra) has been cited to support his contention that the learned Judge should not have overlooked the material evidence and thereby caused manifest illegality resulting in gross miscarriage of justice and this would deserve interference by this Court in its revisional jurisdiction.
Mr. Sanat Chowdhury, learned Counsel appearing for the State while opposing this application contends that the scope of the revisional application is very much limited. This Court cannot be turned to a Court of Appeal.
Mr. Milan Mukherjee, learned Counsel appearing for the accused, has also opposed the application.
Section 161 of the Code of Criminal Procedure empowers police officer to record statements of the relevant witnesses contemporaneously. Such statement would, however, be admissible in evidence only to the extent of recovery of any material exhibit. The defence, to contradict a prosecution witness, also uses such statements, if required. The learned Judge, while disposing of the sessions case, must not overlook any material evidence and if he does, it would cause grave injustice warranting interference by the Superior Court.
Law permits Court to convict an accused to the extent of his involvement in the crime irrespective of the charges being brought against him. If necessary, the 5 Trial Court can modify the charge by giving opportunity to the accused to defend the same.
The above well-settled principles have been reiterated by the Apex Court in the decisions, cited at the bar, referred to above.
Coming back to the present case, we find that the brother of the deceased victim, in his deposition, stated that when he had visited the house of the accused after hearing the death-news of his sister, he had found neither any one nor their belongings. If we believe him, the accused absconded soon after the incident along with their belonging. However, there was no corroboration on that score from any other witness.
PW-1 also stated that her sister was happy with her marital life for about a year but things started changing when Khuku joined as maid-servant in their house and Milan developed an illicit relationship with her. He also stated that Basanti was subjected to mental and physical torture by the accused. On November 1, 2005 when Suman went to the house of the accused to bring her to her parental home on the occasion of Bhaiphota, he was refused.
In cross-examination, he stated that he did narrate all the above facts to the investigating officer. I have examined the Section 161 statement where I found that he had stated that he had already made written complaint to the police that his sister had been married seven years before. Apart from the said statement, he did not state anything to the police. PW-6 and PW7 are two villagers who supported the prosecution story. According to PW-6, Basanti was not given food and she used to 6 beg food from others. PW-7 also stated so. They also stated that the problem had cropped up in view of refusal of Raj Laxmi to send Basanti on account Bhaiphota.
I have carefully examined the depositions and compared the same with their statements made before the police under Section 161. I am constrained to say that there were material contradictions and it was not safe to rely upon. The incident of Bhaiphota, although stated by all the three said witnesses were not stated before the police, as I find from their respective statements. There are other material contradictions too. I also find that PW-6 denied a suggestion from the defence that she had a dispute with Milan's family on the issue of supply of milk.
The learned Judge after perusal of the evidence ultimately disbelieved those three witnesses.
The power of this Court is limited. I am not sitting in the Court of Appeal hence; I am not competent to re-aprise evidence. On re-aprisal of evidence I might have come to a different conclusion if I was sitting on appeal over the said decision. Sitting in revisional jurisdiction, I am not competent to do so. On perusal of the judgment impugned herein, I do not find any illegality which could be termed as miscarriage of justice. To be precise, there is no inherent lacuna in the judgment warranting interference of this revisional jurisdiction.
The death of the victim was certainly unfortunate, I fully appreciate the sorrow of PW-1 who lost her beloved sister at the prime age. I am, however, constrained to observe that I am not competent to write the judgment of conviction by apprising evidence sitting in this jurisdiction.
7The appeal fails and is hereby dismissed.
Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.
( Banerjee, J.) akb.