DIPANKAR CHOWDHURY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) With the consent of the parties, this appeal is taken up for hearing. The lower Court records are received.

(2.) Judgment and order dated 11/10/2012 convicting the appellant for committing of offences punishable under Sections 323/307 Part II of the Indian Penal Code and the order dated 16/6/2016 sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs.10,000/- in default to suffer further rigorous imprisonment for six months has been assailed. Prosecution case, as alleged against the appellant, is to the effect that he was married to one Sarmistha Chowdhury on 7/12/1994. From the said marriage two daughters were born. Soon after the marriage the victim was subjected to torture and on 22/12/2011 she was physically assaulted by the appellant with belt and helmet. The appellant developed an illicit relation with one Soma Majumder, a receptionist of G.M. Modi Hospital, Delhi. He wanted to move to Delhi and live with the said Soma Chowdhury and consequentially wanted to kill the victim. On 17/3/2012 in the morning, the victim was again physically assaulted by her husband. She informed her elder brother to come with the father of the appellant and the appellant even assaulted his own father. Over such issue, Kotwali Police Station case no. 186 of 2012 under Sections 498A/307 of the Indian Penal Code was registered against the appellant. In conclusion of investigation, charge sheet was filed under Sections 323/307 of the Indian Penal Code. The case was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, 2nd Court, Nadia for trial and disposal. Charge was framed under Sections 323/307 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried.

(3.) In course of trial, prosecution examined the complainant as P.W. 1. In conclusion of trial, the learned trial Judge by judgment and order dated September 19, 2012 convicted the appellant for commission of offence punishable under Section 323/307 of the Indian Penal Code and released him on probation upon execution of bond for a period of three yeas with one surety who shall be his wife, Smt. Sarmistha Chowdhury. The appellant was directed to remain under the supervision of the District Probation Officer and abstain from taking any intoxicant or to disturb any of his family members particularly his wife. He was also directed to take care of his children including their education and well being. He was also directed to liquidate the loan taken by mortgaging the dwelling house and not to indulge any unlawful activity. He was also directed to remain available before the District Probation Officer once every fortnight. Subsequently, on an adverse report filed by the Probationer Officer, order of probation was suspended and the appellant was directed to suffer rigorous imprisonment for five years and to pay fine of Rs.10,000/- in default to suffer rigorous imprisonment for six months more. At this stage, the appellant preferred the instant appeal against the aforesaid judgement and order of conviction and sentence. Mr. Majumder, learned counsel for the petitioner submits that the evidence on record is furnished does not establish the ingredients of the allege offences. Apart from the defacto-complainant, no witness was examined and hence the conviction is liable to be set aside. He also submits that the report of the probation officer is incorrect and the order of probation ought not to have been suspended.