Back
2011 Supreme(Cal) 280
HIGH COURT OF CALCUTTA
KALIDAS MUKHERJEE AND MD. ABDUL GHANI, JJ.
Kalipada Biswas - Appellants
Vs
The State Of West Bengal - Respondents
C.R.A. No. 145 of 1999
Decided on: Feb 28, 2011
Y.Z. Dastur, Prabir Majumdar, Tapan Dutt Gupta
The court emphasized the importance of reliable evidence, proper examination of the accused under Section 313 of the Code of Criminal Procedure, and the significance of inconsistencies and improbabilities in assessing the credibility of the prosecution's case.
Headnote:
MURDER - [SECTION 302/34 IPC] - [SECTION 498A IPC] - The court analyzed the facts and circumstances of the case, including inconsistencies and improbabilities in the prosecution's version of events, to determine the reliability of the evidence presented.
Fact of the Case:
The prosecution alleged that the appellants murdered Rajeswari and her daughter Swapna due to a dowry dispute. The sole eyewitness, Ananda Sarkar, claimed to have witnessed the assault and testified that the appellants attacked the victims with a spade. The defense argued that Rajeswari was having an illicit relationship and that Abinash, her lover, killed her and her daughter.
Finding of the Court:
The court found that the prosecution's case lacked credibility due to several factors, including inconsistencies in the testimony of the eyewitness, the improbability of the events as described, and the failure to properly examine the accused under Section 313 of the Code of Criminal Procedure.
Issues: 1. Whether the prosecution proved the guilt of the accused beyond a reasonable doubt. 2. Whether the eyewitness testimony was reliable and trustworthy. 3. Whether the delay in sending the FIR to the magistrate affected the prosecution's case. 4. Whether the accused were properly examined under Section 313 of the Code of Criminal Procedure.
Ratio Decidendi: 1. The court held that the prosecution failed to establish the guilt of the accused beyond a reasonable doubt due to inherent improbabilities and inconsistencies in the prosecution's case. 2. The court found that the eyewitness testimony was unreliable and could not be relied upon to establish the guilt of the accused. 3. The court held that the delay in sending the FIR to the magistrate, coupled with the other infirmities in the prosecution's case, cast doubt on the veracity of the prosecution's version of events. 4. The court held that the accused were not properly examined under Section 313 of the Code of Criminal Procedure, which prejudiced their defense.
Final Decision: The court set aside the impugned judgment and acquitted the appellants of all charges.
Mukherjee, J.
1. THIS appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 2nd Court, Krishnanagar, Nadia sentencing each of the appellants to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for six months under Section 302/ 34 of the Indian Penal Code. The learned Trial Judge did not pass any separate sentence for the commission of the offence under Section 498A of the Indian Penal Code.
2. THE prosecution case, in short, is that one Ananda Sarkar lodged complaint with O.C. Haringhata P.S. alleging that his elder sister Rajeswari Sarkar (Biswas) was married with Bhola Nath Biswas on 5th Falgun, 1397 B.S. One year after marriage her husband and the inmates of his family started committing mental and physical torture upon her. On different occasions due to the intervention of the villagers his elder sister could manage to live in her matrimonial home for some length of time. But, for the last six months, his elder sister lived in his house. Being unable to meet the expenses of the elder sister and her daughter, the informant sought for the settlement through the intervention of the villagers and as per terms of settlement held on 09.11.1994 it was settled that Rajeswari would to go to her matrimonial home. But, in order to take the household articles she came to the house of the informant and thereafter on 21.11.1994 the informant with his elder sister took the articles and went to the matrimonial home of Rajeswari by a rickshaw. They reached the house of Bholanath, the husband of Rajeswari, between 2.30 P.M. and 3.00 P.M. THE accused persons told them not to enter their house. Rajeswari, the elder sister of the informant, sat on the varandah of her husband's house with her daughter Swapna Biswas in her lap. At that time all the accused persons came to assault Rajeswari. Accused Sambhu Biswas with the help of a spade assaulted Swapna Biswas on the head and thereafter assaulted Rajeswari on the head, neck and back. When the informant tried to resist them, he was intercepted by all the accused persons and accused Sambhu Biswas proceeded to assault the informant with the help of spade. Hearing the shouts, the neighbouring persons assembled there and rescued the informant. THE informant took the injured by the rickshaw of Kalipada Biswas to Kashtadanga Hospital. As the doctor was not present there, the injured were referred to Jagulia Hospital. But on way to Jagulia Hospital both the injured succumbed to the injuries. THE Informant came back and kept the dead bodies in the house of Kalipada, the father-in-law of the deceased. Accused Sambhu and Bhola fled away from the house.
After receipt of the complaint, Haringhata P.S. Case No. 151 dated 21.11.1994 was started under Sections 498A/302 of the Indian Penal Code. After completion of investigation the charge-sheet was submitted.
3. THE learned Trial Judge framed charges under Sections 498A and 302/34 of the Indian Penal Code. THE accused persons pleaded not guilty and claimed to be tried.
4. MR. Dastoor appearing for the appellants submits that the learned Trial Judge did not properly examine the accused persons under Section 313 Cr.P.C. It is contended that the learned Trial Judge put some questions to the accused persons in the manner which were not stated by the witnesses. MR. Dastoor submits that so far as the allegation under Section 498A is concerned, there is no allegation of dowry in the F.I.R. and no reason was given in the F.I.R. for the alleged torture. It is contended that accused Bhola and others lived separately.
Mr. Dastoor submits that the alleged occurrence took place on 21.11.1994 between 2.30 P.M. and 3.00 P.M. and the F.I.R. was lodged on the same day at 3.45 P.M. It is contended that the F.I.R. was sent to the learned Magistrate on 23.11.1994, although, the P.S. was about 10 K.M. away from the place of occurrence. Mr. Dastoor submits
