Manik Chowdhury vs State Of West Bengal
2021 Latest Caselaw 5844 Cal

Form J(2)
                    In the High Court at Calcutta
                    Criminal Appellate Jurisdiction
                            Appellate Side

Present : The Hon'ble Mr. Justice Bibek Chaudhuri

       IA No.:CRAN/1/2018 (Old No.:CRAN/1536/2018)
                          in
                    CRA 274 of 2018

                       Manik Chowdhury
                              -Vs.-
                     State of West Bengal

For the appellant       :    Mr. Pawan Kumar Gupta, Adv.,
                             Mr. Sudip Guha, Adv.

For the respondent      :    Mr. Ranabir Ray Chowdhury, Adv.,

Ms. Sukanya Bhattacharyya, Adv., Md. Kutubuddin, Adv.

Heard on                :    25.11.2021, 26.11.2021.

Judgment On             :    26.11.2021.


       Bibek Chaudhuri, J.:

The instant appeal is directed against the judgment and order

of conviction passed by the learned Additional Sessions Judge, Mal,

Jalpaiguri in Sessions Trial No. 46(08)/2016 arising out of Sessions

Case No. 392 of 2015 (CIS SC 308/2015). One Nani Oraon had a

relationship with the accused/appellant. The accused used to visit the

house of Nani Oraon, a widow for medical treatment of her minor

daughter. During such visit, the accused got intimate with the said

Nani Oraon. He proposed her to marry. At the time of marriage, Nani

Oraon came to know that the accused was a Mohammedan by faith.

However, marriage between the two took place before the Kazi under

Mohammedan Personal Law and they started living together as

husband and wife. In the said wedlock, she gave birth to a female

child. After the birth of the said child, the accused started to treat the

Nani with cruelty, he assaulted her, throttled her even tried to kill her

by setting her in fire. Subsequently, he left the house with another

lady and married her. The accused started living with the said lady as

husband and wife renunciating his wife, Nani Oraon.

Failing to bear such act of deception and cruelty, Nani Oraon

lodged a written complaint before the Officer-in-Charge, Mal Police

Station on 7th September, 2014 on the basis of which Mal Police

Station Case No. 522 of 2014 under Sections 498A/323/417/307 of

the Indian Penal Code was registered. Police took up the case for

investigation and on completion of investigation submitted charge-

sheet against the accused.

The case was committed to the Court of Sessions for trial as

the offence under Section 307 of the Indian Penal Code was

exclusively triable by the Court of Sessions.

During trial, prosecution examined as many as eight

witnesses. Some documents were also marked exhibits which I

propose to refer subsequently.

The learned Trial Judge on due consideration of evidence on

record and the submission made by the learned counsels for the

parties convicted the accused for committing offence under Section

323 of the Indian Penal Code and sentenced him to suffer

imprisonment for three months and also to pay fine of Rs.1,000/-, in

default, to undergo simple imprisonment for a month.

The appellant has assailed the said judgment and order of

conviction and sentence in the instant appeal.

During trial, the de facto complainant, Nani Oraon deposed as

P.W. 1. It is found from her evidence that the accused used to come

to her house to treat her daughter medically and during such time he

expressed his weakness and love for the de facto complainant. With

the consent of the de facto complainant they also met physically

before the marriage once or twice. Subsequently, on 20 th November,

2011, the accused filled up a form for registration of marriage in the

Marriage Registrar office at Maynaguri. Subsequently, the de facto

complainant came to know that the accused was a Mohammedan by

faith. So, the accused married to the de facto complainant as per

Mohammedan rites and customs before the Kazi. After few days of

marriage, the accused started to torture her physically. It is deposed

by the de facto complainant that the accused assaulted her by 'lathi',

once he throttled her, he also tried to commit murder with the help of

knife. This led the de facto complainant to file complaint. It is

ascertained from the cross-examination of the de facto complainant

that she had been residing at No. 6, Oodlabari Hindi High School which

is the house of the accused person. The accused left the house on 18 th

September, 2014. That the accused used to assault her is known to

the local people and on many occasions local people saved the de

facto complainant from the hand of the accused.

Pointing out the relevant portion of the cross-examination of

P.W. 1, it is submitted by the learned advocate for the appellant that

the de facto complainant herself admitted that on the date of her

deposition she had been residing in the house of the accused.

Therefore, she was not driven out from the house of the accused. The

accused married the de facto complainant and he gave due honour

and status of his wife to the de facto complainant. The allegation

made by the de facto complainant in his written complainant is false

and concocted. It is further submitted by the learned advocate for the

appellant that the charge under Section 417 of the Indian Penal Code

does not arise at all because the appellant never cheated the de facto

complainant. There was a relationship between him and the de facto

complainant which culminated to solemnization of marriage. The de

facto complainant at the time of marriage did not raise any objection

for the accused being a Mohammedan by faith.

It is further submitted by the learned advocate for the

appellant that P.W. 2, Md. Debaru, P.W. 3, Azida Begam, P.W. 4,

Jahira Khatun, P.W. 5, Anwara Begam, P.W. 6, Rajesh Munda and P.W.

7, Sahedul Ali are the neighbours of the de facto complainant. They

all stated that the de facto complainant was subjected to physical

cruelty by the accused on and from the date when he was involved

with the maternal aunt of the de facto complainant. Even the accused

started leaving the de facto complainant to reside with her maternal

aunt as husband and wife. This is the bone of contention between de

facto complainant and the accused. The learned advocate for the

appellant is very candid and fair in his submission when he urged that

P.W. 2 to 7 are independent witnesses having no relationship with the

de facto complainant. They in same tune deposed that the de facto

complainant was subjected to physical torture by the accused.

Therefore, relying on the evidence of the de facto complainant which

was corroborated by the above-named independent witnesses, the

accused was convicted and sentenced to imprisonment for three

months and to pay fine of Rs.1,000/- for committing offence under

Section 323 of the Indian Penal Code. In respect of other charges he

was acquitted.

It is submitted by him with reference to Clause (b) of Sub-

Clause (iii) of Section 386 that the Court of Appeal can modify the

sentence in appeal and he prays for imposition of fine amount at a

higher rate in lieu of substantive punishment of imprisonment.

Learned P.P.-in-Charge, on the other hand, submits that

the nature of the accused is not at all normal and satisfactory. From

the evidence it is found that he established relationship with the de

facto complainant who was a widow having two children. Then during

subsistence of his marriage the accused even did not leave her

maternal aunt and started living with the de facto complainant as

husband and wife. Thus, the accused is a man of immoral character

though immorality is not an issue to be adjudicated upon under the

touchstone of legal principles. Ethics and law are two different

subjects and operates differently. What is immoral, may not be illegal

and vice versa.

Be that as it may, it is established on careful perusal of

evidence that the victim was subjected to physical assault time and

again by the appellant. Even she was once throttled. She was

medically examined at the Sub-Divisional Hospital after being injured

due to throttling by the accused. The doctor found tenderness on her

thyroid cartilage. The throat was compressed and she was advised to

x-ray and medication.

Therefore, considering the nature of offence perpetrated

by the appellant upon the de facto complainant, this Court is of the

view that the learned trial Judge considering all aspects of the matter

rightly passed the order of sentence and there is no reason or ground

to alter the sentence by this Court.

The appeal is, therefore, dismissed on contest. The

judgment and order of conviction and sentence passed by the learned

trial Court in Sessions Case No.392 of 2015 and in Sessions Trial

No.46(08) of 2016 on 23rd February, 2018 is affirmed.

The accused is directed to surrender before the trial Court

within 15 days from the date of this judgment to serve out sentence.

A copy of this judgment be sent to the learned Court below

forthwith along with the lower Court record.

The parties are at liberty to act on the server copy of the

judgement.

Urgent photostat certified copy of this order, if applied for,

be given to the learned advocates for the parties on usual

undertakings.

(Bibek Chaudhuri, J.)

Srimanta/Suman A.Rs. (Court)