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2009 DIGILAW 112 (GAU)

State of Tripura v. Pramil Datta

2009-02-13

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. This appeal with leave under Section 378(3) of the Criminal Procedure Code (for short, hereinafter referred to as Cr.P.C.), 1973 is directed against the judgment and order dated 12.2.2002 passed by the learned Sessions Judge, North Tripura, Kailashahar in Sessions Trial No. 24(NT/K) of 1999 acquitting the accused Sri Pramil Datta from the offences charged under Sections 498A and 306 of the Indian Penal Code (for short, hereinafter referred to as IPC). 2. I have heard Sri A. Ghosh, learned Addl. PP for the Appellant-State as well as Mr. P.R. Barman, learned Counsel for the Respondent-opposite party. 3. The prosecution case, in brief, may be stated as follows : Smt. Alo Rani Datta, daughter of the informant Smt. Ashalata Bhowmik was given in marriage to Sri Pramil Datta about 27 to 28 years ago. On 4.9.1998 at about 4.30 p.m. Alo Rani Datta took poison for which she was taken to the hospital wherein she breathed her last. Initially, on receipt of an information from the Medical Officer of the hospital Police registered a case under Section 174 Code of Criminal Procedure being an un-natural death (suicide). On 5.9.98 Smt. Ashalata Bhowmik mother of the deceased lodged an FIR with the Police alleging that the deceased's husband used to torture his wife demanding fortune and that on 4.9.98 at about 4.30 p.m. she took poison. Accordingly, Police registered a case under Sections 306/498A IPC and launched investigation into the case. During the course of investigation, Police examined as many as 17 witnesses, seized a Tulsimala' and an empty bottle of dettol and collected the post mortem report of the deceased. At the close of the investigation, Police submitted chargesheet against the accused for the offences under Sections 498Aand 306 IPC. 4. The case being exclusively triable by the Court of Session, the learned Sessions Judge framed charge against the accused Sri Pramil Datta to which he pleaded not guilty and claimed to be tried in accordance with law. The prosecution examined as many as 17 witnesses including the Medical Officer, and the Investigating Officer. The accused was examined under Section 313 of Code of Criminal Procedure. The prosecution examined as many as 17 witnesses including the Medical Officer, and the Investigating Officer. The accused was examined under Section 313 of Code of Criminal Procedure. In his statement under Section 313 Code of Criminal Procedure, the accused, while denying the allegations brought against him, stated that his wife was compelled to commit suicide because of wantonness of his elder daughter Smt. Archana Datta who used to beat her mother and that she had once fled away from their house at her own will. He declined to adduce any defence evidence. 5. Considering the materials available on record and having heard the learned Counsels for both the sides, the learned Sessions Judge, by the impugned judgment and order, acquitted the accused person holding that the prosecution could not prove the case against the accused beyond all reasonable doubt. The learned Public Prosecutor taking me through the evidence on record submitted that the learned Sessions Judge committed illegality and gross injustice by failing to properly appreciate the evidence on record and thus acquitting the accused-Appellant. His contention was that the accused used to torture the deceased demanding her to bring money from her brother and this compelled her to commit suicide. 6. Refuting the contention of the learned Public Prosecutor Mr. P.R. Barman, learned Counsel appearing for the accused-Appellant submitted that there was no sufficient, cogent and legal evidence to hold the accused guilty of the offence charged under Sections 498A and 306 IPC and as such the learned Sessions Judge committed no illegality by acquitting the accused. He has also submitted that the accused-Appellant purchased his homestead land in the name of his deceased wife and he used to bear the expenditure for the education of their children and this fact was sufficient to disbelieve the prosecution version that the accused had tortured his wife compelling her to bring money from her brother, who was a day-labourer. 7. The argument put forward by the learned Counsels have been duly considered. To appreciate the evidence on record it will be proper to have a brief resume of the evidence on record. 8. P.W.1 Smt. Ashalata Bhowmik, the mother of the deceased, who lodged the FIR stated that his daughter was tortured by the accused and as such she was compelled to consume poison. To appreciate the evidence on record it will be proper to have a brief resume of the evidence on record. 8. P.W.1 Smt. Ashalata Bhowmik, the mother of the deceased, who lodged the FIR stated that his daughter was tortured by the accused and as such she was compelled to consume poison. She stated that the couple enjoyed married life for 30 years and that the accused put his wife to death by poison. She further stated that someone took her L.T.I. on the FIR and she did not tell anything to the said person who wrote the FIR. Fact remains that the left thumb impression of the P.W.1 who was a lady was taken. From this evidence, it appears that she did not disclose anything to the writer of the FIR and as such the FIR was not written as per her dictation. This witness did not state the amount of dowry claimed by the accused or paid to him, if any. Her evidence does not inspire confidence to believe that the accused used to torture his wife demanding dowry and that he had instigated/compelled her to commit suicide by taking poison. P.W.2 Smt. Archana Datta, daughter of the deceased stated that she was informed that her mother had taken poison. She further stated that her father used to beat her mother on trifling matter as well as demanding her to bring money from her brother. The P.W.1 stated that she could not say whether her mother took the poison voluntarily or somebody had administered the same. P.W.3 Smt. Aparna Datta, another daughter of the deceased stated that quarrel used to take place between her parents and that her father used to beat her mother. Her evidence is also silent as to under what circumstances her mother consumed poison, she stated that when she met her mother on the date of occurrence her throat was found in swelling condition and that she (deceased) did not tell her anything. If the victim was compelled or forced to take poison by her husband or if she had taken the same on being tortured by her husband she would have, told her said daughter, who met her immediately after the occurrence. If the victim was compelled or forced to take poison by her husband or if she had taken the same on being tortured by her husband she would have, told her said daughter, who met her immediately after the occurrence. The another sister of P.W.3, namely Ajanta (since deceased) told her that her mother had told Ajanta that the poison was administered, but she (deceased) did not disclose as to who had administered poison. This was a major suppression of material fact, which raises doubt about the prosecution story. Therefore, from the evidence of P.W. 3 also it cannot be exclusively inferred that the accused had compelled/instigated the deceased to take poison. P.W.4 Sri Prasanta Datta, son of the deceased stated that on the date of occurrence he was away from home and coming to know about the incident he rushed to the hospital. His mother told him that she was made to take Eldrine, but she did not tell him as to who had made her to take eldrine. Therefore, there is no force in the evidence of this witness to believe that the accused had administered the poison. He further stated that his father used to torture his mother as she did not allow him to dispose of their property and that his father had weakness towards his aunt i.e. the sister of his mother. P.W.5 Sadhan Chandra Deb, P.W.6 Sri Bhutnath Kushari and P.W.7 Smt. Neoti Kushari were the neighbours of the deceased. They stated that quarrel used to take place between the husband and the wife and that the accused used to beat his wife. P.W.8 Smt. Kalpana Deb stated that the deceased during her life time used to visit her and sometimes she was informed by the deceased that she was beaten up by her husband demanding dowry from her father's house. P.W.9 Sri Bibhash Bhowmik, brother of the deceased, stated that the accused was interested to marry his sister-in-law and he tortured his wife. This witness, who was a day-labourer, further stated that the deceased was tortured by the accused demanding her to bring money from her parental house and that, sometimes, he (P.W. 9) paid money. This witness failed to state how much money was demanded or how much was paid. This statement regarding demand for money appears to be vague. This witness, who was a day-labourer, further stated that the deceased was tortured by the accused demanding her to bring money from her parental house and that, sometimes, he (P.W. 9) paid money. This witness failed to state how much money was demanded or how much was paid. This statement regarding demand for money appears to be vague. P.W.10 Smt. Arati Dey, the sister-in-law of the accused, stated that the accused wanted to many her and that the accused had tortured his wife demanding her to bring money and that, sometimes, her brother paid money to the accused. This witness also did not state as to what amount was paid by her brother. None of the said witnesses could specifically state about the amount of demand, and the amount paid. Hence their evidence lacks substance regarding demand for dowry. Simply saying that dowry was demanded is not sufficient to believe such allegation. Such allegation should be substantiated with cogent and reliable evidence that apart the complainant who brings such allegation should be in a position to specifically indicate the nature and amount of demand P.W.11 Sri Tapan Banerjee was the Medical Officer who took steps for the post mortem examination. P.W.12 Sri Prafulla Deb was the seizure list witness. P.W.13 Sri Samir Roy was the Investigating Officer who seized the Tulsimala' and an empty bottle of dettol and submitted the chargesheet. P.W.14 Sri Gitesh Bhattacharjee was the Medical Officer, who referred the deceased for post mortem examination. P.W.15 Sri Hari Shankar Bhattacharjee was the Medical Officer who conducted the post mortem examination. He stated that the death was caused due to intake of poisonous substance. P.W.16 Sri Shiv Sankar Chakraborty was the Officer-in-Charge who received the FIR, P.W.17 Sri Satyendra Basu Roy Chowdhury was the I/C of Fatikroy Police Station who received the FIR. From the evidence of P.W. 10 to P.W. 17 nothing could be elicited regarding the torture and abatement of suicide. On the basis of the above evidence on record, the learned Sessions Judge concluded that the prosecution failed to prove that the accused committed the offence under Section 498 A or under Section 306 IPC and accordingly he acquitted the accused person. The learned Addl. Public Prosecutor relying on the decisions In Re v. Dr. On the basis of the above evidence on record, the learned Sessions Judge concluded that the prosecution failed to prove that the accused committed the offence under Section 498 A or under Section 306 IPC and accordingly he acquitted the accused person. The learned Addl. Public Prosecutor relying on the decisions In Re v. Dr. D.C. Saxena reported in AIR 1996 SC 2478 and State of UP v. Sri Krishan reported in (2005) 10 SCC 399 submitted that the evidence on record was sufficient to hold that the accused was guilty of the offence under Sections 498A/306 of IPC and that the learned Sessions Judge committed illegality in passing the order of acquittal. He further submitted that repeated torture with demand for dowry compelled the deceased to commit suicide. In reply to the said argument, relying on the decisions, in State of Haryana v. Surender and Ors. reported in AIR 2007 SC 2312 ; Chandrappa and Ors. v. State of Karnataka reported in AIR 2007 SCW 1850 and Kallu @ Masih and Ors. reported in AIR 2006 SC 831 the learned Counsel for the accused-Respondent submitted that though the appellate court has power to interfere with the acquittal no such interference is warranted if the judgment of the trial court is based on evidence and that in the light of the evidence on record the view taken by the trial court was found to be reasonable and as such no fault can be found in the impugned judgment. The law regarding power of the appellate court has been well settled by a catena of decisions. In the case of State of Haryana v. Surender (supra), the Hon'ble Apex Court was pleased to hold as follows : 7. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused would be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh and Ors. v. State of Madhya Pradesh ( 2002 (2) Supreme 567 ). The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra AIR 1973 SC 2622 , Ramesh Babaulal Doshi v. State of Gujarat 1996 (4) Supreme 167 , Jaswant Singh v. State of Haryana 2000 (3) Supreme 320 , Raj Kishore Jha v. State of Bihar and Ors. 2003 (7) Supreme 152 , State of Punjab v. Karnail Singh 2003 (5) Supreme 508 , State of Punjab v. Pohla Singh and Anr. 2003 (7) Supreme 17 and V.N. Ratheesh v. State of Kerala ( 2006 (10) SCC 617 ). 9. The cardinal principle to be followed by an appellate court is to prevent the miscarriage of justice. If in a given facts and circumstances of a case and on the basis of the evidence on record, it appears to the appellate Court that the acquittal of the accused amounted to miscarriage of justice due to failure on the part of the court to properly appreciate the reliable evidence on record the appellate court by exercising its appellate jurisdiction can reverse the order of acquittal and to do so there should be compelling and substantial reasons to hold that the impugned judgment is clearly unreasonable and that convincing materials were unjustifiably eliminated by the trial Court. Carefully scrutinizing the evidence on record in the present case in hand I find that the learned Sessions Judge meticulously examined the evidence of all the witnesses and failed to find cogent, reliable and legal evidence to believe that the accused had compelled the deceased to commit suicide by demanding dowry and causing torture. The fact remains that the accused and the deceased lived a long period of 30 years as husband and wife having four children. It is on record that the accused had purchased his homestead land in the name of the deceased and he maintained the expenditure of the family including the expenditure towards the education of their children. There is nothing on record to find that during her 30 years of married life the deceased ever complained to the appropriate authority about the torture and demand for dowry. This implies that either there was no such torture for dowry or the deceased had tolerated the same for the reason best known to her. It was stated by the witnesses that the accused demanded the deceased to bring money from her brother who was a day-labourer. The accused is a homeopathic doctor and he could maintain his family including the education of his children. Hence I find force in the contention of the learned Counsel appearing for the accused that it is hard to believe that the accused would have asked the deceased to bring money from her brother, who was a day-labourer. From the evidence of P.W. 4 it appears that the accused was interested to marry one of the sisters of the deceased and the accused expressed his desire to sell the homestead land to which the deceased had objected and for this the accused had tortured the deceased. The evidence that the deceased had tortured his wife for her objection to his proposal for sale of homestead land belies the prosecution story regarding the torture for dowry. Non-availability of evidence regarding the amount demanded as dowry and the fact that the deceased continued to live with the accused for about 30 years in spite of such tortures (as alleged) raises doubt about the veracity of the prosecution story that she committed suicide due to torture of dowry demand. Non-availability of evidence regarding the amount demanded as dowry and the fact that the deceased continued to live with the accused for about 30 years in spite of such tortures (as alleged) raises doubt about the veracity of the prosecution story that she committed suicide due to torture of dowry demand. Section 498 A IPC has defined the cruelty as follows: Section 498A - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine. Explanation - For the purpose of this section, "cruelty" means - (a) any wilful conduct which is of such a nature as is likely to driver the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 10. Admittedly, the deceased committed suicide by consuming poison. As discussed above, there is no sufficient and cogent evidence on record to believe that the deceased committed the suicide following any unlawful demand made by the accused. Also there is no substantive evidence to suggest that the deceased sustained any grave injury at the hands of the accused during the married life. To constitute an offence under Section 306 IPC there must be (a) instigation to commit the offence, (b) engaging in conspiracy to commit the offence and (c) aiding the commission of an offence. The evidence on record does not reveal that the accused had instigated the deceased to commit suicide or that he got engaged in conspiracy to commit the offence and that he extended any aid in committing suicide. The evidence on record, of course, reveals that quarrel used to take place between the couple and the children of the accused stated that their father used to torture her mother. Even if the accused had tortured/assaulted his wife, the wife i.e. the deceased never made any complaint to initiate action against her husband. The evidence on record, of course, reveals that quarrel used to take place between the couple and the children of the accused stated that their father used to torture her mother. Even if the accused had tortured/assaulted his wife, the wife i.e. the deceased never made any complaint to initiate action against her husband. Hence, it cannot be conclusively held that the accused had committed the suicide due to the torture or alleged dowry demand. Having regard to all the circumstances of the case it cannot be safely presumed that the suicide was abetted by the accused. Simply because the deceased committed suicide and that she was assaulted by her husband during their 30 (thirty) years of married life cannot lead to conclusively hold that the suicide was committed due to the alleged torture. Therefore, presumption of suicide due to torture is rebuttable and such presumption does not stand the test. In the case of Chandrappa v. State of Karnataka (supra) the Hon'ble Apex Court, while laying down the principle of power of the appellate court dealing with an appeal against an order of acquittal, was pleased to hold that if two reasonable conclusions are possible on the basis of evidence on record the appellate court should not disturb the finding of acquittal recorded by the trial court. 11. In the light of the above having considered all aspect of the matter, I do not find that the order of acquittal was made in spite of cogent, reliable and sufficient legal evidence. The reasons given by the learned trial Judge for acquitting the Respondent-accused appear to be reasonable and are based on evidence. 12. Therefore, this Court finds no merit in the appeal and accordingly, the same is dismissed.