The importance of establishing the essential elements of the offenses beyond a reasonable doubt.

JUDGMENT :

Ananya Bandyopadhyay, J.

1. This appeal is preferred against the judgment and order of conviction passed by Learned Additional Sessions Judge, Birbhum at Rampurhat in Sessions Trial No. 2 of May, 1999 arising out of the Sessions Case No. 55 of 1993 convicting the appellant under Sections 498A/306 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and a fine of Rs. 1000/-, in default, to suffer simple imprisonment for six months for the offence under Section 498A IPC and further sentenced the appellant to suffer rigorous imprisonment for five years and a fine of Rs. 1000/-, in default, to suffer simple imprisonment for six months for the offence under Section 306 IPC and both the sentences directed to be run concurrently.

2. The prosecution case initiated on the basis of a complaint filed by the father of the victim precisely stating that the victim was third daughter who was married to the appellant and had given birth to a male child for about a year prior to the complaint. The appellant, the father-in-law, the maternal mother-in-law, brother of her husband severely tortured the victim who narrated such event of torture to the complainant stating her helplessness to continue her married life under such circumstances. On being consoled by the complainant with a hope for future improvement of the situation, the victim being persuaded, continued her matrimonial life. However, the situation did not improve and the victim was starved for food on several occasions and she finally consumed poison. The complainant requested the police to investigate.

3. Based on the aforesaid complaint, Nalhati P.S. Case No. 169 dated 11.10.89 under Section 498A/306 of Indian Penal Code was instituted. Pursuant to the completion of investigation, charge-sheet was submitted against four accused persons namely Lalit Mohan Biswas, Gouranga Biswas, Bamacharan Biswas and Koshalya Biswas. Charges were framed to which the aforesaid accused persons pleaded not guilty and claimed to be tried.

4. The prosecution in order to establish its case cited 16 witnesses and exhibited certain documents.

5. The Learned Trial Judge acquitted the other three accused persons and convicted accused Gouranga Biswas the present appellant under Sections 498A/306 of Indian Penal Code.

6. Learned Advocate for the appellant submitted that –

i. The impugned order of conviction and sentence dated 31.03.2001 is per se bad in law.

ii. Impugned Judgment bristles with illegalities and infirmities which go to the very root of the matter rendering the same unsustainable in law and as such liable to be set aside by this Hon’ble Court.

iii. Framing of charge is not an idle formality since the same puts at peril the liberty of a citizen being arraigned in criminal trial and even a cursory glance of the order dated 4th November, 1997 by Learned Additional Sessions Judge, Birbhum at Rampurhat framing charge against the accused/appellant and another under Sections 498A/306 of the Indian Penal Code, which is cryptic, vague and omnibus in nature, causing great prejudice to the accused/appellant in his defence and as such entire trial should be deemed to be void-ab-initio.

iv. It is a well settled principle of law that a statement recorded under Section 161 of the Code of Criminal Procedure of a witness, who is to be confronted at the trial vis-à-vis his evidence in court and whereas in the instant case and his statement not having been recorded under Section 161 of the Code of Criminal Procedure, his testimony is to be deemed to be non-est in the eye of law and the concerned Learned Judge having taken into consideration the evidence of PW-1 in arriving at the finding impugned herein, the same should be deemed to be nullity in the eye of law and as such liable to be quashed by this Hon’ble Court.

v. The embellished evidence of PW-1 vis-à-vis his First Information Report, makes him a witness being untrustworthy and reliance upon such embellished evidence had ren