Daityaraj Dhara vs The State Of West Bengal
2021 Latest Caselaw 6303 Cal

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                    IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL APPELLATE JURISDICTION




                        C.R.R. No. 1795 of 1993

                             Daityaraj Dhara
                                    Vs.
                        The State of West Bengal

     Mr. Mainak Bakshi, Adv.              : ....for the Petitioner


     Mr.Prasun Dutta, Adv,
     Ms.Narayan Prasad Agarwal ,Adv,      : ....for the Respondents


     Heard on :10.12.2021
     Order on : 14.12.2021




PREFACE


     This revisional application u/sec. 401/482 of the Code of

Criminal Procedure is directed against the judgment and order

dated 31st July, 1993, passed by the Ld. Session Judge, Bankura,

in Criminal Appeal NO. 01/1993, dismissing thereby the appeal,

preferred   by   the   accused     petitioner    assailing    his   order   of

conviction, dtd.30.01.1993, passed by the Ld. Sub-divisional
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Judicial Magistrate in G.R.case no.391 of 1997, in connection with

Sonamukhi P.S. case no. 06, dtd. 25.12.1987 u/sec. 457/354 of

the Indian Penal Code and sentence of two years rigorous

imprisonment and fine of RS. 2000/- I/d to suffer further R.I. for 3

months, for the offence u/sec. 457 of the IPC and the sentence of

rigorous imprisonment for six months for offence u/sec 354 of the

Indian Penal Code and both the sentence were directed to run

concurrently.

FACTS

IN BRIEF

2. The law was put into motion by one Paresh Nath Khamrui,

who lodged a written complaint at Sonamukhi P.S., for the incident

happened on 15.12.1987 at about 0.2 hours. It is alleged that, the

accused into the dwelling house of Paresh Nath Khamrui in his

absence and outraged the modesty of her wife. Hearing hue and cry,

neighbours rushed to the spot and apprehended accused petitioner

in the room of the victim. The accused/petitioner was brought to

the local Kalitala but no action was taken due to absence of the

victim's husband. The accused was handed over to his brother

Nilkamal Dhara. On the next day, the de-facto complainant

returned home but in the mean time the victim consumed poison

and later she died in the hospital on the next day. Police took up

the investigation and submitted charge-sheet u/sec. 457/354 IPC.

Accordingly charge was framed and 15 witnesses were

examined.

According to the defence case, the victim was killed by her

husband and a criminal case alleging theft of a pump machine of

Ganesh Dhara, father of the accused/petitioner, was initiated

against the witnesses of this case.

APPRECIATION OF EVIDENCE BY THE LD. TRIAL COURT &

FIRST APPELLATE COURT

3. Evidence was discussed elaborately in terms of facts alleged in

this case by the Ld. Trial court. It has also been discussed

regarding P.W.2 to P.W.5 and P.W.8 TO P.W.10 , who were made

accused in a criminal case for lifting a pump machine of Ganesh

Dhara, the father of accused/petitioner alleging the non-payment of

fine of RS. 4000/- imposed by those witnesses upon the accused in

the night of the alleged occurrence, for which a separate case was

pending over that issue. Trial Court did not find any proximity

between the case in hand and that of the defence. Entire incident

alleged to have been committed by the accused petitioner was duly

corroborated by the witnesses, which remained unshaken during

their cross-examination.

DECISION WITH REASONS

4. Ld. Advocate appearing on behalf of the petitioner submitted

that, prosecution could not establish the reason of death of the

alleged victim and harped on the string of delay in lodging F.I.R. It

is further submitted that the witnesses were inimical and their

evidence cannot be relied upon in coming to any conclusion in

favour of the prosecution. That apart it is submitted that one ten

years old child was not examined in this case. Entire prosecution

case was focused on the statement of victim before her husband

before she died. Again it is argued that, prosecution failed to prove

any ingredient within the meaning of sec. 457 IPC.

Per contra, Ld. Advocate on behalf of the state fully relied on

the judgment of the Trial Court and that of the First Appellate

Court.

5. The object of revisional jurisdiction is to confer upon the

superior court a kind of paternal or supervisory jurisdiction. And

the idea is to correct the miscarriage of justice, which may arise

from various caused such as:-

1. misconception of law,

2. irregularity of procedure,

3. neglect of proper precautions,

4. apparent harsh treatment.

The revisional jurisdiction can be exercised only in exceptional

cases, where the interest of public justice, requires interference for

the correction of a manifest illegality or the prevention of gross

miscarriage of justice. The jurisdiction is not ordinarily invoked or

used merely because the lower Court has taken a wrong view of the

Law or mis appreciated the evidence on record. The High Court

would be justified in interfering :-

Where Trial Court has wrongly shut out evidence, or where material

evidence has been overlooked by the Trial Court or the Court of

Appeal or where the acquittal had been based on a compounding

offence not permitted by law, or where the Appellate Court has

wrongly held evidence admitted by the Trial Court to be admissible.

Here in our case, I have gone through the judgments of Trial

Court and that of the Appellate Court and I found all the defence

cases were elaborately discussed in terms of evidence on record.

6. Ld. Advocate on behalf of the accused/petitioner mainly

focused on the evidence of the inimical witnesses.

It is axiomatic that, credibility of the eye witness cannot be

rejected on account of merely on the ground that there was enmity

between the prosecution party and the accused. In this regard, I

would like to refer a case of Ramashish Rai vs. Jagdish Singh,

reported in (2005)10 SC 498, wherein the Hon'ble Court observed

as follows:

"The requirement of the Law is that, the testimony of inimical

witnesses has to be considered with caution. If otherwise the

witnesses are true and reliable, their testimony cannot be thrown

out on the threshold by branding them as inimical witnesses. A

duty is cast upon the Court to examine the testimony of inimical

witnesses with die caution and diligence."

7. After careful scrutiny of the judgment of the Ld, Trial Court

and that of the Ld. Appellate Court I find that, both the Ld. Court,

examined the testimony of those witnesses with extreme care and

diligence. Besides, all other defence cases were dealt with utmost

caution and diligence.

The cause of death o the victim was taken up by the Ld. Trial

Court and Appellate Court but it was decided that, factum of death

had no bearing with the case of prosecution. I find no reason to

differ with the said view in terms of evidence of record.

From the discussion of the evidence in the judgment passed

by the Ld. Trial Court & the Ld. First Appellate Court, I do not find

any irregularity or illegality far to speak of perverse.

8. Therefore, I find hardly any scope to interfere with the

judgment passed by the first Appellate Court, in exercising

jurisdiction under Section 401/482 of the Code of Criminal

Procedure.

9. Now, with regard to sentence Ld. Advocate on behalf

of the petitioner/accused submits that quantum of sentence

may be reduced to the period of sentence already undergone

by the accused /petitioner. This is the incident happened

more than 30 years back and it is not the prosecution case

that petitioner/accused is habitual offender. Therefore I am of

the considered view that the period already undergone by the

accused/ petitioner is sufficient when accused/ petitioner has

been suffering from mental agony because of sentence pending

for about 27 years.

10. In the aforesaid view of the matter, the period of

sentence is being reduced to the period already undergone by

the accused/petitioner but he will pay fine of Rs. 2000 in

default he would be directed to suffer rigorous imprisonment

of 3 months as directed by the Ld. Trial Court. Accordingly,

accused/ petitioner is directed to deposit fine amount by 31 st

January, 2022. Ld. Trial Court is requested to accept the fine,

if so tendered by the petitioner/accused.

11. With the aforesaid observation the instance revisional

application being no. 1795 of 1993 stands allowed in part

specially for the reasons of long pendency of the case and the

nature of offences.

12. Department is directed to communicate this order to

the concerned Ld. Trial Court. All parties to this revisional

application shall act on the server copy of this order

downloaded from the official website of this Court. Urgent

Photostat certified copy of this order, if applied for, be supplied

to the parties upon compliance with all requisite formalities.

[BIBHAS RANJAN DE, J.]