Calcutta High Court (Appellete Side)
Goutam Ghosh & Anr vs The State Of West Bengal on 28 March, 2022
28.03. 2022
item No.5
n.b.
ct. no. 34
CRR 2597 of 2019
Goutam Ghosh & Anr.
Vs.
The State of West Bengal
Mr. Sandip Kumar Bhattacharyya,
Mr. Apalak Basu,
Mr. Dipta Dipak Banerjee,
.....for the Petitioners
Mr. Arijit Ganguly,
Ms. Debjani Sahu
.....for the State
The petitioners before this Court are the husband of the
sister in law and the sister in law herself who have been implicated
in connection with the Sessions Trial No.27 of 2018 arising out of
Shibpur Police Station case no.1283 of 2013.
Mr. Bhattacharjee, learned advocate appearing for the
petitioners draws the attention of this Court to the difference of
statement which have been relied upon by the prosecution under
Section 207 of the Code of Criminal Procedure as also the dying
declaration and the injury report as also post mortem report.
Learned advocate submits that a thorough assessment of the
materials available in the Case Diary prima facie do not make out
any case under Section 302 of Indian Penal Code so far as the
present petitioners are concerned.
Ms. Sahu, learned advocate appearing for the State
produces the Case Diary and draws the attention of this Court to
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the statement of three neighbors as also the statement recorded by
the Investigating Officer at the Hospital on December 20, 2013 and
the Injury Report which incorporates the statements of the
deceased before the Doctor on December 21, 2013 at 10.40 P.M.
Mr. Bhattacharjee, learned advocate has relied upon a
decision of Jasvinder Saini & Ors. Vs. State (Govt. of NCT of Delhi)
reported in (2013) 3 SCC (Cri) 295 drawing the attention to
paragraph 15 of the said judgment which is set out as follows:
"15. It is common ground that a charge under Section 304-B
IPC is not a substitute for a charge of murder punishable under
Section 302. As in the case of murder in every case under Section
304-B also there is a death involved. The question whether it is
murder punishable under Section 302 IPC or a dowry death
punishable under Section 304-B IPC depends upon the fact situation
and the evidence in the case. If there is evidence whether direct or
circumstantial to prima facie support a charge under Section 302 IPC
the trial court can and indeed ought to frame a charge of murder
punishable under Section 302 IPC, which would then be the main
charge and not an alternative charge as is erroneously assumed in
some quarters. If the main charge of murder is not proved against
the accused at the trial, the court can look into the evidence to
determine whether the alternative charge of dowry death punishable
under Section 304-B is established. The ingredients constituting the
two offences are different, thereby demanding appreciation of
evidence from the perspective relevant to such ingredients. The trial
court in that view of the matter acted mechanically for it framed an
additional charge under Section 302 IPC without adverting to the
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evidence adduced in the case and simply on the basis of the
direction issued in Rajbir case. The High Court no doubt made a
half-hearted attempt to justify the framing of the charge independent
of the directions in Rajbir case, but it would have been more
appropriate to remit the matter back to the trial court for fresh orders
rather than lending support to it in the manner done by the High
Court."
Learned advocate submits that the caution spelt out by
the Hon'ble Supreme Court must be considered in the instant case.
Each case has to be considered in respect of the materials
collected by the Investigating Agency and the probable charges,
which can be framed on the materials so collected. In the present
case, there is allegations against the present petitioners so far as
the neighbours are concerned at least it spelt out that when the
present petitioners came down to the matrimonial home of the
deceased, there was an aggravated scenario, therefore, the
involvement of the petitioners at this stage cannot be ruled out.
The second issue is regarding the observation of the
learned Trial Court in respect of the concluding paragraph in the
order dated 17.8.2019 where in the learned Trial Court was pleased
to observe "there is sufficient prima facie evidence and in the Case
Diary to frame charges under Section 498A/304B /34 of the Indian
Penal Code and alternate charge under Section 302 of the Indian
Penal Code against the accused persons".
In view of the materials appearing in the Case Diary and
considering the overall factual matrix and keeping in mind the
principles and purpose for which charges were framed where the
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materials appearing or relied upon by the prosecution are accepted
to be true, the charges are tentative in nature. In this case the
statement of the victim assumes immense importance as such, at
the inception abundant caution has been exercised by the learned
Trial Court, however, unnecessarily addition of higher charges until
and unless the materials surface out may have an impact on the
petitioners. Regard being had to the materials available in the Case
Diary, I am of the opinion, that so far as the accused, Surojit
Ghosh and Anita Ghosh are concerned an alternate charge under
Sections 302/34 of Indian Penal Code is maintainable alongwith
Section 498A/304B/34 of the IPC. In respect of the petitioners
charge should be framed under Sections 498A/304B/34 of the
Indian Penal Code. The learned Trial Court would be at liberty to
frame charges under Sections 302/34 of the Indian Penal Code
against the petitioners only, if some materials surface out in course
of evidence.
With the aforesaid observations, the part of the order
which related to the observation of the learned Trial Court dated
17.8.2019
regarding charges to be framed under Sections
498A/304B/34 of the Indian Penal Code and alternate charge
under Section 302 of the Indian Penal Code is hereby set aside.
The learned Trial Court would frame charges so far as the
present petitioners are concerned under Section 498A/304B/34 of
the Indian Penal Code.
Accordingly, CRR 2597 of 2019 is partly allowed.
All pending connected applications, if any, are
consequently disposed of.
Interim order, if any, is hereby vacated.
The learned Trial Court is directed to progress with the
trial as the case was registered in the year 2013.
In case prosecution intends to rely upon documents which
was not supplied to the accused persons under Section 207 of the
Code of Criminal Procedure learned Trial Court would ensure that
the same is supplied to the accused prior to cross-examination in
this case.
All parties shall act on the server copy of this order duly
downloaded from the official website of this Court.
( Tirthankar Ghosh, J.)
