Jogomaya Basak & Ors vs State Of West Bengal
2022 Latest Caselaw 4967 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL REVISIONAL JURISDICTION
                             APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                               CRR 662 of 2004
                          Jogomaya Basak & Ors.
                                      -Vs-
                              State of West Bengal

      For the Petitioners :       Mr. Prabir Majumder, Adv.,
                                  Mr. Snehansu Majumder, Adv.

      For the State :             None appears



Heard on: 7th June, 2022.
Judgment on: 2nd August, 2022.

BIBEK CHAUDHURI, J. : -


1.

The instant revision is directed against the judgment and order

dated 11th February, 2004 passed by the learned Additional Sessions

Judge, 2nd Fast Track Court, Krishnagar, Nadia in Criminal Appeal No.17

of 2003 affirming the order of conviction and sentence passed by the

learned Assistant Sessions Judge, Ranaghat, Nadia in Sessions Trial No.1

(11) of 2002 arising out of Sessions Case No.13(8) of 2000 thereby

convicting the petitioners/accused persons for committing offence

punishable under Section 498A of the IPC and sentencing them to suffer

simple imprisonment for three years each with fine and default clause.

2. At the outset it is recorded that petitioner No.1 died during

pendency of the instant criminal revision and therefore, the case against

the petitioner No.1 abets finally.

3. The following issues have been raised challenging the legality and

propriety of the order passed by the learned Additional Sessions Judge

Fast Track Court II at Krishnagar in Criminal Appeal No.17 of 2003

affirming the order of conviction and sentence passed by the learned

Assistant Sessions Judge, Ranaghat in Sessions Trial No.1 (11) of 2002:-

i) Prosecution case is vitiated by delay in lodging

complaint in the jurisdictional police station.

ii) Prosecution failed to examine any independent witness

in support of the charge under Section 498A of the IPC.

iii) All the material witnesses are close relatives of the

deceased and they are interested witnesses.

            iv)    When the learned Assistant Sessions Judge recorded

                   an    order       of   acquittal   against   the   accused

persons/petitioners from the charge under Section 306

of the IPC, on the basis of same evidence, the accused

persons cannot be held guilty for committing offence

under Section 498A of the IPC.

4. I have considered the submissions in the light of the materials on

record. I find from the impugned judgment that deceased Aduri Basak

was the legally married wife of the petitioner No.3 Ganesh Basak. Her

marriage was solemnized on 20th Agrayan, 1401 B.S. according to Hindu

Rites and Customs. She was allegedly tortured by her husband and other

accused persons on illegal demand of dowry at her matrimonial home. On

18th November, 1995 Aduri consumed poison. The defacto complainant,

father of the deceased got such information from a neighbour of her

matrimonial home. He immediately rushed to the matrimonial home of his

daughter and admitted her to Ranaghat Sub-Divisional Hospital.

Subsequently, she was referred to Kalyani Jawaharlal Nehru Hospital.

She died at Kalyani Hospital on 21st November, 1995.

5. The defacto complainant lodged complaint against the accused

persons before the Officer-in-Charge Shantipur Police Station on 22nd

November, 1995. On the basis of the said complaint police registered a

case and finally filed charge-sheet under Section 498A/306 of the IPC

against them. The petitioners faced trial. During trial prosecution

examined as many as 12 witnesses. All the witnesses except one are close

relatives of the deceased. One witness who happens to be the neighbour

of the accused persons failed to throw any light with regard to the

relationship between the accused persons and the deceased in her

matrimonial home.

6. It is pointed out by Mr. Prabir Majumder, learned Advocate for the

petitioners that both the learned trial court as well as the first court of

appeal held the accused persons guilty for committing offence under

Section 498A of the IPC on the ground that none of the family members of

the matrimonial home of the deceased were found in their house at the

time of death of the daughter of the defacto complainant. Their

disappearance was due to the reason that they were involved in treating

the daughter of the defacto complainant with cruelty. They also abated

commission of suicide of the deceased by consuming poison. The accused

persons also did not inform the defacto complainant that her daughter

consumed poison. Thus the specific conduct of the accused persons

pointed out that they were involved in committing the offence.

7. It is also submitted by Mr. Majumder that both the trial court as

well as first court of appeal refused to disbelieve the evidence of the

relatives of the defacto complainant. But, both the courts below failed to

consider that the deceased was allegedly subjected to physical and mental

torture for a long time on illegal demand of dowry. Both the courts below

failed to consider that during the life time of the deceased neither she nor

her father ever tried to settle the dispute between her and her

matrimonial relations. Even they did not make any complaint before the

local panchayat or any other respectable person of the locality. It is

further submitted by the learned Advocate for the petitioners that both

the courts below failed to appreciate the evidence of PW4 who is an

independent and disinterested witness. On 18th November, 1995 PW4

went to the matrimonial home of deceased Aduri Basak with her father

and asked her about the condition of her health. The deceased did not

make any complaint of consuming poison to him. She only complained of

having stomach pain. Moreover, the evidence of PW1 and PW2 (father and

mother of the victim) suffers from material infirmity and inconsistency

regarding the persons who accompanied the victim to the hospital. The

court of appeal failed to consider that the accused persons were not

examined properly under Section 313 of the Code of Criminal Procedure.

8. Before I deal with the submission made by the learned Advocate for

the petitioners, I like to dwell upon the scope of the revisional jurisdiction.

It is needless to say that there is a distinction between a revision and an

appeal. In appeal, the appellant enjoys a statutory right to demand an

adjudication from the court either on a question of fact or on a question of

law or both. When a matter comes up in revisional jurisdiction, the

applicant has no right whatsoever beyond the right of bringing the case to

the notice of the court. It is for the court to interfere in exceptional cases

where it seems that some real and substantial injustice has been done.

Thus, a revision is a procedural facility afforded to a party, but it is not a

continuation of the original case, appeal or trial, while an appeal is a

statutory right conferred on a party. In Amit Kapoor vs Ramesh

Chander & Anr reported in (2012) 9 SCC 460, the Hon'ble Supreme

Court held as hereunder:-

"8.. Before examining the merits of the present case, we must advert to the discussion as to the ambit and scope of the power which the courts including the High Court can exercise under Section 397 and Section 482 of the Code. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial

discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

9. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Code of Criminal Procedure."

9. It is significant to note that the court in revision cannot examine the

facts, evidence and materials on record to determine whether there is

sufficient material on the basis of which the case would end in a

conviction. The Court is concerned primarily with the allegations taken as

a whole whether they will constitute an offence and, if so, is the decision

of the inferior court if allowed to be retained would be an abuse of the

process of the court leading to injustice. In revision the court cannot

appreciate evidence adduced by the witnesses to come to a finding as to

whether the order of acquittal or conviction passed by the trial court and

affirmed by the lower appellate court is liable to be altered and set aside

or not.

10. Bearing the above principle in my mind let me now consider the

submission made by the learned Advocate for the petitioners. It is true

that the witnesses who supported the prosecution case are close relatives

of the deceased. The father of the deceased is the defacto complainant. He

stated on oath that after the marriage of his daughter, she was subjected

to cruelty by her husband and other matrimonial relations. The husband

of the deceased demanded money from his father-in-law, i.e., the defacto

complainant. The defacto complainant heard the said incident of torture

from her daughter in order to restore peace in the family life of her

daughter he paid Rs.15000/- in all three installments. In spite of such

payment the husband of the daughter of the defacto complainant went on

torturing her physically and mentally on demand of dowry. The said fact

was corroborated by other related witnesses.

11. It should be borne in mind that matrimonial torture and cruelty

happen within the four corners of the matrimonial house of the victim. In

most of the cases a married woman is tortured inside the four corners of

the matrimonial home without the knowledge of outsiders. It is obvious

that a married woman would state her grievance to her parents and other

relatives of her paternal home. It often happens that independent

witnesses do not want to depose against an accused even if he is aware of

the fact and circumstances of the case. They do not want to state

anything against their neighbours. Under such circumstances, in a case

relating to matrimonial dispute, the close relatives of the paternal home of

the married woman are the most natural and reliable witnesses and their

evidence cannot be discarded on the ground of interestedness.

12. Coming to the instant case this Court records that the court has

perused the judgment and order of conviction passed by the learned trial

court as well as the learned court of appeal. Both the courts below

discussed the evidence on record dispassionately in objective manner. On

careful scrutiny of evidence on record both the courts below found that

the victim committed suicide failing to bear torture inflicted upon her by

her husband and other matrimonial relations. Therefore, the learned trial

judge came to the finding that the accused persons committed offence

punishable under Section 498A of the IPC. In arriving at such decision

both the courts below considered the evidence on record compared oral

evidence with the postmortem examination report and other documents

and held that the accused persons/petitioners treated the victim in such

a manner which compelled her to commit suicide.

13. In view of the above discussion, I do not find any merit in the

instant criminal revision and therefore, the instant revision is dismissed.

14. The judgment passed by the lower appellate court is affirmed. The

order of conviction and sentence passed by the trial court is affirmed.

15. The petitioners are directed to surrender before the trial court to

suffer sentence.

(Bibek Chaudhuri, J.)