Calcutta High Court (Appellete Side)
Krishnapada Mahato & Ors vs State Of West Bengal on 13 December, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Rai Chattopadhyay
C.R.A No. 524 of 2012
Krishnapada Mahato & Ors.
Vs.
State of West Bengal
For the petitioner : Mr. Abhra Mukherjee.
For the State : Mr. P.K. Dutta,
: Mr. Santunu Deb Roy,
: Md. Kutubuddin.
Hearing concluded on: 01/05/2023
Judgment on: 13/12/2023
Rai Chattopadhyay, J.
1. This appeal involves determination of a very short question as to whether
the trial Court could have legally and rightly based on the evidence of the
hostile witnesses, which did not support the prosecution case and that of
the investigating officer which contradicts such unfavourable evidence of
the prime witnesses, to come to the finding of guilt of the accused
persons/appellants, or not.
2. The appeal arises from the judgment of conviction and sentence dated
18.07.2012 and 19.07.2012 respectively, passed by the Additional Dist.
& Sessions Judge, Fast track, 3 rd Court, Purulia, in Sessions Trial No.
03/12 under Sections 498A/306/34 IPC.
3. The proceedings started pursuant to the FIR dated 30.05.2010 being
Manbazar, P.S Case No. 21/2010 dated 30.05.2010 under Section
498A/306/34 IPC.
4. The FIR reads as follows:-
"My humble submission is that I am Shri Shraban Mahato of
village Karmatanr. My daughter Mamata's marriage was given with
Krishnapada Mahato, youngest son of Nagendranath Mahato, a
resident of village Sindurpur about five years ago from today. After
marriage, 1) Krishnapada Mahato, son of Nagendranath Mahato, 2)
Cheribala Mahato, wife of Nagendranath Mahato, 3) Adrista Mahato,
son of Nagendranath Mahato and 4) Ashalata Mahato, wife of Adrista
Mahato used to torture upon my daughter, assault her. In spite of
that, my daughter was living at her matrimonial home. One daughter
was also born to her, whose age is four months. On 30.5.10 at 12
noon, it was informed to me over phone that my daughter committed
suicide by taking poison.
Therefore, I request you to take appropriate steps so that the
guilty persons may be punished properly."
5. Thus accused persons Krishnapada Mahato, Cheribala Mahato, Adrista
Mahato and Ashalata Mahato faced trial, after the police investigated and
submitted charge sheet against them. Charge was framed by the trial
Court on 10.01.2012 to commence the trial.
6. A total of fifteen witnesses were examined by the prosecution including
the medical experts and police. The witnesses may be categorised as
follows:-
Witnesses P.W Nos.
Doctors P.W. 12, P.W. 13, P.W. 14.
Police P.W. 6, P.W. 15.
Relations of the victim and/or P.W. 2, P.W. 3, P.W. 5, P.W. 7, P.W. 8
the accused persons & P.W. 1, i.e, the complainant.
Neighbours from the village P.W. 4, P.W. 9, P.W. 10, P.W. 11.
7. The sui generis feature of the present trial is that, all the witnesses, who
are not either the doctors or the police, have been declared hostile by the
Court during the trial. Thus, so far as the substantive evidence is
concerned, in this trial, practically the trial Court have been left with no
material at all. On the backdrop of the outcome of trial as stated above,
the trial Court has, by dint of its judgment as mentioned above, come to
a finding of guilt of the accused persons/appellants, convicted and
sentenced them.
8. The trial Court directed the appellants to suffer rigorous imprisonment
for seven years and to pay a fine of Rs. 2,000/- to the de facto
complainant in default of which they were to suffer a further period of
rigorous imprisonment of nine months, for the offence committed under
Section 306 IPC. For the offence committed under Section 498A IPC the
appellants to directed to rigorous imprisonment for a term of one year
and pay a fine of Rs. 1,000/- to the de facto complainant or instead to
suffer rigorous imprisonment for a further period of two months. The
Court directed that both the sentence as above would run concurrently.
9. The appellants are aggrieved with the said judgment of conviction and
sentence. Hence this appeal.
10. The first and foremost ground for the appellants to challenge the said
impugned judgment, as mentioned above, is that in absence of any
substantive evidence and on the basis of the evidence of the hostile
witnesses and the controverting evidence of the investigating officer as to
the same, an order of conviction could not have been lawfully recorded
by the trial Court. Mr. Mukherjee, who is representing the appellants,
takes this Court in this connection, through the evidence of the
witnesses and submits that the evidence lacks elements of credibility and
reliability, so far as the aspect of the same leading to finding of guilt of
the accused persons, is concerned. It has been shown that the witnesses
by and large have denied any knowledge of them about the cause of
death of the victim. It has also been shown that sometime the witnesses
have stated to have deposed before the Court about the facts, for the first
time only, raising serious doubts regarding the truthfulness of their
deposition. It has also been pointed out that in spite of declaring them
as hostile, in their cross-examination the prosecution has not been able
to dislodge the truth they have deposed in their examination in chief.
According to Mr. Mukherjee, not even any part of the evidence of these
witnesses, are acceptable.
11. On this Mr. Mukherjee has relied on the following judgments:-
(i) 2008 (1) CalLJ 279 (Golam Hossain & Seven & Ors. vs. The State),
(ii) 2012 (1) CalCrLR 838 (Amir Sk. @ Kachai vs. The State of West Bengal) ,
(iii) (2002) 7 SCC 317 (Ashish Batham vs. State of M.P.) ,
(iv) AIR 1981 SC 1062 (3) (Mohamad Usman Mohammad Hussain Maniyar &
Anr. vs. The State of Maharashtra)
12. Further it has been argued on behalf of the appellants that in this case
neither the ingredients of offence under Section 498A and 306 of the IPC
are established against the appellants nor the legal presumption under
Section 113A of the Evidence Act, 1872 is attracted against them. It is
submitted that excepting lack of knowledge of the incident, the witnesses
have practically deposed nothing before the trial Court. Also, that there
is nothing to controvert such deposition of the witnesses. Under such
circumstances no offence is at all suggested to have been committed by
the accused persons, much less any grievous offence like that under
Section 498A or 306 of the IPC. Mr. Mukherjee has further pointed out to
the Court that the trial Court in its judgment, as mentioned above, has
erroneously made the presumption of law under Section 113A of the
Evidence Act, 1872, attracted to the instant case, merely on the basis of
the fact that the victim had died within seven years time from the date of
her marriage. It is argued that the law in this regard is now well settled
that excepting the prosecution having been able to bring on record and
prove the foundational facts through the evidence, in support of its case,
the presumption as above would not be attracted. He says that on this
score the finding of the trial Court regarding applicability of the said legal
presumption is only erroneous and the resultant decision of the Court is
faulty and illegal.
13. On this Mr. Mukherjee has relied on several judgments as mention
below:-
(i) 2013 (2) CalCrLR 882 (Narayan Chandra Nandi & Ors. vs. The State of West
Bengal),
(ii) 2013 (3) SCC (Cri) 801 (Pinakin Mahipatray Rawal vs. State of Gujarat),
(iii) 2017 (2) CalCrLR 467 (Sahid Hossain Biswas vs. State of West Bengal),
(iv) 2020 (1) SCC (Cri) 379 (State of Madhya Pradesh vs. Shriram & Anr.)
(v) 2010 (1) SCC (Cri) 955 (Bhairon Singh vs. State of M.P.)
(vi) 2012 (1) CalCrLR 838 (Amir Sk. @ Kachai vs. The State of West Bengal),
(vii) 2013 (2) CalCrLR 381 (Monotosh Mondal vs. The State of West Bengal & ors.),
14. In addition to all above, Mr. Mukherjee has also relied on the judgment
reported in AIR 1995 SC 1601 (Sukhwant Singh vs. State of Punjab) and 2013
(2) CalCrLR 395 (Uday Malik vs. State of West Bengal & Anr.), to submit as to
what would be the effect of the prosecution witness being not examined
and tendered for cross-examination.
15. For the reasons as above, according to Mr. Mukherjee, the impugned
judgment of conviction and sentence passed by the trial Court, as
mentioned above, would not sustain in the eye of law and would liable to
be set aside.
16. So far as the prosecution is concerned, which is being represented by Mr.
Dutta in this appeal, the legal propositions suggested by the appellants,
have not been controverted in any serious tone. Mr. Dutta has fully
relied on the available record and virtually accepts that there is no
evidence for the prosecution in this case. Mr. Dutta too has emphasised
that evidence of the investigating officer may not be the sole basis of
conviction and may be only an effective tool for support or contradiction
of the evidence of the vital witnesses. For the rest, he has left the matter
at the discretion of the Court.
17. The complainant and other witnesses who are the relatives of either the
victim or the appellants, appear to have deposed in Court in the manner
that the victim was married of to the appellant Krishnapada Mahato, five
years back (from the date of evidence) and that the family of Krishnapada
consisted of himself, his parents Nagendranath Mahato and Cheribala
Mahato and his brother Adrista Mahato, all of whom are the appellants
in the present appeal. Since after marriage the victim started her
conjugal life in her matrimonial home and that she was leading a
peaceful life there. A daughter was born to the said wedlock of the victim
and Krishnapada after three years of marriage on the Bengal date 16th
Joisto. The witnesses were informed about the death of the victim and
the witnesses were not aware as to how the victim died. Subsequent to
the death of the person, a written complaint was filed by P.W 1 in
Manbazar police station (as mentioned above), which was drafted by one
Chittaranjan Mahato. P.W 1 said that the contents of the written
complaint are true. They also said that prior to death of the victim no
incident of acrimony between the victim and her in-laws were ever known
by those witnesses. P.W.2, P.W.5 and P.W.8 say that they had never
been interrogated by the police earlier, before deposing for the first time
in the Court.
18. The village neighbours, i.e, P.W.2, P.W.9, P.W.10 and P.W.11 have
deposed regarding their possessing no knowledge about the cause of the
death of the victim, though all of them have asserted the fact of the
victim's marriage with the appellant Krishnapada Mahato and victim's
residing with other members at her matrimonial home, along with the
said husband, before her death. Amongst these witnesses, P.W.9 and
P.W.10 were tendered for cross-examination to the defence. P.W.11 in
his cross-examination has said that he saw the appellants to behave
properly with the victim before her death.
19. P.W.12, P.W.13 and P.W.14 are the doctors. P.W.12 has held inquest
over the dead body immediately after death of the victim, who has
indentified his inquest report dated 30.05.2010. Notably, appellants
Adrista Mahato and Krishnapada were the witnesses in the said inquest
report. P.W.13 attained the victim when she was brought to the hospital
and was still alive. He says that the victim was admitted in hospital at
9.30 a.m. in the morning. The condition of the patient has been
described with the following words:-
"Patient was unconscious & not responding to any stimuli. She
was gasping and was in a grave condition. On clinical examination
she was clinically diagnosed as a case of most probably organo
phosphorous poison. She was treated as early as possibly as
necessary. All the efforts were in vain and the patient succumbed
to death at 10.15 A.M."
P.W.13 in his cross-examination has asserted that the patient was
brought to the hospital by the appellant Krishnapada Mahato.
20. The autopsy surgeon, that is, P.W.14 has deposed regarding his findings
with the following words:-
"On examination (1) reddish froth from mouth & nostrials was
present (2) no external injury was seen (3) stomach multiple
ubcers(sic) were present. Offensive smell about 200 ml. vilet colour
flued was present. So viscera like stomach with contents part of
liver and right kidney were sent to F.S.L. Kolkata for
forensic/chemical examination. Findings suggestive of death due
to poison. Final opinion kept reserved, until forensic opinion
reports available."
21. According to the evidence of P.W.13 and P.W.14 the cause of death of the
victim was consumption of poison. It is also worth noting that no
external injury mark was detected on the corpus.
22. All the witnesses of the prosecution excepting the doctors and the police
have denied their knowledge about any astringency, animosity and
hostility in the relationship of the victim with the appellants and also all
of them have denied any knowledge regarding the cause of death of the
victim. The clinical reason could be found from the evidence of doctors,
i.e, consumption of poison by the victim. The case started with the
allegations in the FIR that the victim was forced to consume poison
resulting to her death, due to the torture of the appellants which
ultimately has turned out to be unbearable for her. However, the
witnesses including the complainant have not aided to the prosecution
case as above with any oral evidence, comprehendible as a basis of the
prosecution's case.
23. The investigating officer, i.e, P.W.15 is however standing on a different
footing, on the basis of the statement of the witnesses, recorded earlier
by him and available in the case diary. He has deposed that the
witnesses, who have been examined in this trial and were declared
hostile, had earlier made statements regarding involvement of all the four
appellants, in infliction of physical and mental torture upon the victim
lady. His version is that the said witnesses made statement before him
that the victim finding such immense torture as unbearable, committed
suicide by consumption of poison.
24. This being the sum and substance of the prosecution's evidence in this
case, the trial Court has dwelled upon the FIR and the presumption of
law of guilt of the accused persons, as the victim died within seven years
of her marriage, to come to the finding of guilt of the accused persons.
The trial Court has also exercised certain amount of guess work by
recording that the victim must not have been in a position to disclose her
agony before any other and for that reason the victim could not disclose
about the torture suffered by her to any other else. The trial Court has
guessed that the reason of the victim giving birth to a female child, must
have been the definite cause of her being tortured by her in-laws which ,
according of the Court, is a general and common practice in the villages
in West Bengal. The trial Court has also speculated on the fact that the
witnesses were restrained from deposing actual facts in Court in
consideration of the probable trouble trodden condition of the family for
all future days to come. It records that the child of the victim being an
infant and being in requirement of due care and protection for her proper
upbringing, the witnesses must have considered the welfare of the child,
in the hands of the appellants and restrained themselves to depose
actual facts before the Court.
25. On all these surmises and conjuncture, ultimately the Court came to the
finding that the appellants were guilty of the offence under Section 498A,
306 and 34 of the IPC, convicted and sentence them in the manner as
stated above.
26. It is well settled law that according to the Indian criminal jurisprudence,
every person accused of an offence is presumed to be innocent till he is
proved guilty beyond all reasonable doubt. The onus, therefore, is heavily
on the prosecution to prove and establish the offence against the person
beyond reasonable doubt and that the burden never shifts on to the
accused to disprove the charge framed against them, excepting the
foundational facts consisting the said charges being sufficiently on
record. In the event of a doubt, the benefit of the same should go to the
accused person. Competence, relevance, materiality are the tenets which
justifies the substantivity of a piece of evidence, in a trial. The
admissibility of the evidence is based on its relevance, authenticity and
value. Admissible evidence is factual, pertains to a specific case and
possesses a value that exceeds other considerations, such as bias or
hostility to the substantial case of the prosecution.
27. According to the stipulations in Chapter- IV of the Evidence Act, 1872, all
facts in a trial would be proved by oral evidence, excepting the contents
of documents or electronic records, which must only be direct oral
evidence. Consistent and coherent circumstances are also relevant which
provides background or context to a crime.
28. The relevancy of evidence would depend on as to how far the same
proves or disproves the points in issue, a fact or material. Reliability on
the anvil of its truthfulness would determine its competence. That the
evidence adds value or facilitates to establish a fact of the case, would
determine how far the same is material to be accepted in a trial.
Admissibility of the evidence would also depend on the fact that the same
would not be outweighed by countervailing considerations. It needs no
special emphasis to say that each and every evidence tendered in the
Court may not be admissible, unless being tested and found satisfactory
on the anvil of the afore stated benchmarks of relevance and reliability. It
is the responsibility of the trial Court to assess the admissibility of the
evidence in line with the law, ensuring a just and equitable legal process.
29. In this trial the question before the Court is if the evidence of the hostile
witnesses would be relevant and admissible as substantive evidence to
bring home the charges alleged. Section 154 of the Evidence Act, talks
about the hostile witness. This section enables the Court to permit the
party to cross examine its own witness, who has become hostile. A
witness is declared hostile and permitted to be cross examined, when he
deposes contrary to his earlier statement and to the case of the
prosecution.
30. What would be the credibility and value of a hostile witness, has been
discussed and held by the Courts, in various judgments.
31. Before that, however, we may have a look to the necessary facts which
the prosecution was required in this case to prove beyond a reasonable
doubt, to actually bring home the charges against the accused person.
The Supreme Court in the case of Pranagouda vs. State of Karnataka
reported in 2023 SCC OnLine SC 1369, has held that "The basic ingredients
of an offence u/s 306 is suicidal death and its abetment thereof. To attract
the ingredients of abetment, the intention of the accused to aid or instigate
or abet the deceased to commit suicide would be necessary." Therefore to
prove an offence under Section 306 IPC the prosecution by way of
producing substantive evidence is required to bring on record, firstly, the
suicidal death of the victim and that the active and intentional
inducement and instigation by the accused persons has resulted into the
victim committing suicide.
So far as the offence under Section 498A IPC is concerned, it is
about cruelty by the husband or relatives of the husband. The law
provides that the term cruelty occurring in Section 498A would mean
willful conduct of the accused persons of such a nature in order to drive
the women either to commit suicide or to cause grave injury or danger to
her life. Cruelty would also mean under the law, harassment of a woman
with a view to meet any unlawful demand for property or valuables.
Therefore the prosecution would also be required to bring evidence
beyond any reasonable doubt that there has been the willful conduct or
harassment committed upon the victim by the present appellants which
has ultimately driven her to commit suicide.
32. Discussions have already been made in this judgment before, regarding
what the witnesses have deposed in Court, in this trial. None of the
witnesses have deposed about anything which may support the
prosecution's allegations against the accused persons under the afore
stated provisions of law. The Trial Court has heavily relied on the
disposition of the complainant that he said on oath, in his cross-
examination that, whatever was written there in the FIR, were true. The
FIR having been proved by the scribe thereof, seem to have strengthened
Court's hand, to take the same as sacrosanct, so far as the involvement
and culpability of the accused persons in this case, is concerned. This
approach and decision of the trial court is, unfortunately, not in
accordance with the settled law. The FIR is a corroborative piece of
evidence which would supply strength, credibility and support to the oral
evidence of the maker thereof and the other witnesses. In absence of any
oral evidence substantiating the case of the prosecution, the Court
cannot decide regarding the existence of culpability of the accused
persons only on the basis of the FIR. More so, the complainant merely
stating that whatever is written in the FIR, are true, would not suffice for
the purpose of establishing the facts through his deposition. It is
necessary that the complainant and the other witnesses narrate and
explain their knowledge about the facts relating and relevant to the
commission of the alleged crime.
It has been held by the Hon'ble Supreme Court in the case of Hasib
vs. State of Bihar reported in (1972) 4 SCC 773, "the principal object of FIR
from the point of view of informant is to set the criminal law in motion and
from the point of view of the investigation authorities is to obtain
information about the alleged criminal activity to take suitable steps for
tracing and bringing to the book the guilty party. FIR does not constitute
substantive evidence though its importance as conveying the earliest
information regarding the occurrence cannot be doubted. It can, however,
only be used as a previous statement for the purpose of either
corroborating its maker u/s 157 of the Indian Evidence Act, or for
contradicting him u/s 145 of that Act. It cannot be used for the purpose of
corroborating or contradicting other witnesses."
This law still holds the field and in a recent decision also the
Supreme Court has reflected, in the same tune. The Supreme Court in
the case of Amish Devgan vs. UoI reported in 2020 SCC OnLine SC 994, has
held that "the FIR is neither defined in the Criminal Procedure Code nor is
used therein, albeit it refers to the information relating to the commission of
a cognizable offence. This information, if given orally to an officer in charge
of the police station, is mandated to be reduced in writing. FIR is not meant
to be a detailed document containing chronicle of all intricate and minute
details. An FIR is not even considered to be a substantive piece of evidence
and can be only used to corroborate or contradict the informant's evidence
in the court."
33. The other aspect required to be discussed is regarding applicability of the
presumption of law, in this case. Undisputedly, the victim has died
within a period of seven years from the date of her marriage. Section
113A of the Evidence Act has provided that "when the question is
whether the commission of suicide by a woman had been abetted by her
husband or any relative of her husband and it is shown that she had
committed suicide within a period of seven years from the date of her
marriage and that her husband or such relative of her husband had
subjected her to cruelty, the Court may presume, having regard to all the
other circumstances of the case, that such suicide had been abetted by
her husband or by such relative of her husband".
In the case of Kashibai vs. State of Karnataka reported in 2023 SCC
OnLine SC 575, the Supreme Court has held as follows:-
"Mere fact of commission of suicide by itself would not be sufficient for the
court to raise the presumption under Section 113A of the Evidence Act, and to
hold the accused guilty of section 306 IPC."
Also noteworthy is the finding of the Supreme Court in the case of
Gunmansinh vs. State of Gujrat reported in 2021 SCC OnLine SC 660, that
"...to attract the applicability of Section 113-A of the Evidence Act, three
conditions are required to be fulfilled:--
i. The woman has committed suicide,
ii. Such suicide has been committed within a period of seven years
from the date of her marriage,
iii. The charged-accused had subjected her to cruelty."
Therefore merely the person committing suicide within a period of
seven years from the date of her marriage would not be sufficient to
attract the said presumption of law, unless it is seen prima facie through
materials that the charge sheeted accused had subjected her to cruelty.
Trial Court has erred in considering this factor and merely proceeded on
the presumption, on the ground and for the reason that the duration of
marriage between the appellant no. 1 and the victim did not exceed seven
years, which is a wrong proposition.
34. Having discussed all as above, let us now turn to the evidence of hostile
witnesses and applicability and admissibility thereof. As a matter of fact,
it is worth mentioning that in the judgment as impugned in this trial, the
Trial Court has however, not founded its reasons on the evidence of the
hostile witnesses but on certain other considerations, as discussed
above. However, in this appeal the principal ground of challenge of the
appellants is of inadmissibility of the evidence of the hostile witnesses. In
Satpal vs Delhi Administration reported in (1976) 1 SCC 727, the Supreme
Court has said that merely because the prosecution has chosen to treat
its witness as a hostile witness, it cannot make the evidence of such a
witness totally null. The Court said that if the witness is an unfavourable
witness who has failed in proving a fact, then the evidence of such a
witness can't be effaced. The Court can still rely on and appreciate the
statement made by the hostile witness. It can be accepted as evidence to
the extent that the statement is found to be credible or authentic and
inspires credit.
35. In Atmaram and Ors vs State of MP reported in (2012) 5 SCC 738, the
Supreme Court held that inconsistency in the statement of the
prosecution's witness cannot make the whole statement invalid. If the
judge feels that the character of the witness has not been completely
shaken or that his credit is still worthy of trust, then with due care and
caution, such statement or evidence may be accepted by the court.
However, if the whole of the testimony of a hostile witness stands in
contradiction to every statement made earlier and is impugned, then
such a statement can't be treated as evidence in a court of law. The judge
may, in his opinion, discard the evidence in toto.
36. In Hemudan Nanbha Gadhvi vs State of Gujarat reported in (2019) 17 SCC 523,
the Supreme Court has gone to the extent to say that the Court's time is
very precious, and if, because of any witness, the judicial proceedings are
affected and subverted, then the court cannot remain silent on such
behaviour of the witness. The court must make efforts to bring
truthfulness to such a witness. It said that our justice system can't let
such witnesses divert the proceedings from reaching the truth. It said
that if the witness gives testimony under any kind of threat or undue
influence, the Court must scrutinize it. That, only credible and reliable
evidence is appreciated in the Court of law, not those that are tainted
and unworthy of credit.
37. Therefore, undeniably, a witness having been declared as hostile, is not
discarded outright and as a whole. Even part of his deposition is worth
credence, if fortifies substantive evidence of the other witnesses.
38. In this case it is required to be seen that if there has been any evidence
in this trial of sufficient value, on which prosecution's case could really
rest.
39. The evidence as produced before the trial Court may once again to be
looked into. None of the witnesses have ever asserted the fact regarding
his or her knowledge about cause of death of the victim. The autopsy
surgeon has opined in the post-mortem report that the immediate cause
of death is administering poison. Even the autopsy surgeon has failed to
come to any conclusion regarding the suicidal nature of death of the
victim, with the further finding that no external injury was there.
40. So far as the ingredients of offence either under Section 498A or 306 of
the IPC, as mentioned above, the same are not available from the
evidence on record. Therefore, in this case neither the suicidal death of
the victim nor any harassment or cruelty caused upon her by the
appellants or any abetment by the appellants resulting into the death of
the victim is at all suggested from the evidence on record.
41. No doubt the Investigating Officer in his deposition and by referring on
the statement available in the case diary has submitted that the other
witnesses of the case, while making statement to him, have stated about
the torture being inflicted by the appellants upon the victim and the
victim having committed suicide for the reason of such torture only. The
same is in contradiction to what the witnesses have stated in trial. Such
contradiction is fatal to the prosecution case. It is a trite that any
conviction cannot be based solely on the evidence on the Investigating
Officer, unless there are other substantive evidence of the witnesses
available, to bring on record the relevant facts, which are supported by
such evidence of the investigating officer. As a matter of fact, the
comparative weightage, restored upon the evidence of the vital witnesses,
is much more and the evidence of the Investigating Officer is to be taken
into consideration for the purpose of corroboration or contradiction of the
same only.
42. Thus it appears that the trial Judge has proceeded on absolutely
erroneous considerations, which are not abiding by the law as prevailing.
The evidence on record would not prompt the Court to find that the
prosecution has been able to prove the case, i.e, for offence under
Section 306 and 498A of the IPC, beyond scope of all reasonable doubt.
In fact there would not be any substantive evidence available against the
appellants. On the premises as above this appeal should succeed.
43. Criminal Appeal No. CRA 524 of 2021 is allowed.
44. The impugned judgment of conviction and sentence dated 18.07.2012
and 19.07.2012 respectively, passed by the Additional Dist. & Sessions
Judge, Fast track, 3rd Court, Purulia, in Sessions Trial No. 03/12 under
Sections 498A/306/34 IPC, is set aside. The appellants/accused
persons are found not guilty of the offence under Section 498A and 306
IPC and released immediately.
45. Urgent Photostat certified copy of this judgment, if applied for, be given
to the parties, upon compliance of requisite formalities.
RAI Digitally signed by
RAI
CHATTOP CHATTOPADHYAY
Date: 2023.12.13
ADHYAY 13:43:53 +05'30'
(Rai Chattopadhyay,J.)
