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2011 DIGILAW 300 (GAU)

State of Tripura v. Krishna Nag

2011-04-05

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. Heard Mr. R.C. Debnath, learned Special P.P. appearing for the State-Appellant. Also heard Mr. S. Datta Chowdhury, learned Court appearing for the Respondents. 2. By this appeal filed under Section 498(A)/109 of the Indian Penal Code (hereinafter called IPC), the State as Appellant has challenged the judgment and Order, dated 30.09.2002 passed by the learned Chief Judicial Magistrate, South Tripura, Udaipur in G.R. Case No. 84 of 2001 (R.K. Pur P.S. Case No. 81 of 2001) under Section 498(A)/109 IPC, thereby acquitting the Respondents from the liability of the charge framed under Section 498(A)/109 IPC. 3. The prosecution case, in brief, may be stated as follows:- Smt. Ratna Nag, Wife of Sri Krishna Nag (Respondent No. 1) on 02.06.2001 appeared in the R.K. Pur Police Station along with her brothers namely, Sri Babul Chandra Majumder and Sri Dilip Chandra Majumder and lodged an F.I.R informing the police that after her marriage with Sri Krishna Nag, her said husband and members of the family of her husband used to torture her demanding dowry and that being unable to bear the torture, inflicted upon her by her husband, parents-in-law and the brother-in-law, she was compelled to take shelter in her parents house. It is also alleged that the members of the family of her husband used to instigate her husband to torture her. On receipt of the said F.I.R., Police registered a case under Section 498(A)/109 IPC and launched investigation into the matter. After completing the investigation, police submitted the charge sheet against the Respondents and forwarded them to the Court to stand trial. The learned Chief Judicial Magistrate, South Tripura, Udaipur, framed charge against Sri Krishna Nag under Section 498(A) and against Sri Mukunda Nag and Smt. Basana Nag under Section 498(A) read with Section 109 IPC. The charges were read over and explained to the Respondents to which they pleaded not guilty. 4. In order to prove its case, the prosecution examined as many as fourteen witnesses, including the Investigating Police Officer. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 Code of Criminal Procedure and they denied the allegations, brought against them. The accused persons declined to adduce defence evidence. 4. In order to prove its case, the prosecution examined as many as fourteen witnesses, including the Investigating Police Officer. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 Code of Criminal Procedure and they denied the allegations, brought against them. The accused persons declined to adduce defence evidence. Considering the evidence on record, the learned Chief Judicial Magistrate came to the finding that the prosecution failed to establish a case under Section 498(A)/109 IPC against the Respondents accused persons. 5. Being aggrieved by the said acquittal, the State as Appellant has come up with this appeal. 6. Mr. R.C. Debnath, learned Special P.P. taking this Court through the evidence on record, as well as the impugned judgment and Order, has submitted that though there were sufficient evidences against the Respondents/accused persons, the learned Trial Judge committed error by acquitting the accused persons. The learned Special P.P. further submitted that the learned Trial Judge committed error by holding that the prosecution failed to establish the case under Section 498(A)/109 IPC and as such, the same is liable to be interfered. 7. Refuting the said argument, advanced by Mr. R.C. Debnath, learned Special P.P., Mr. S. Datta Chowdhury, learned Court appearing for the Respondents, referring to the provisions of Section 498(A) IPC and the evidence given by the prosecution witnesses has submitted that there is no specific, cogent and liable evidence to substantiate the allegations that the Respondents had demanded dowry and that the P.W. 1 was tortured compelling to her being dowry from her parents. The learned defence Court, supporting the impugned judgment and Order has submitted that the learned Trial Judge rightly acquitted the accused persons holding that the prosecution failed to establish its case any manner. 8. Before taking up the evidence on record, I feel it necessary to examine the provisions of Section 498(A), which reads as follows: 498A. Husband or relative of husband of a woman subjecting her to cruelty – 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 also be liable to fine. Husband or relative of husband of a woman subjecting her to cruelty – 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 also be liable to fine. Explanation – For the purpose of this Section, cruelty means- (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. (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. 9. A careful scrutiny of the said provision indicates that in order to hold a person guilty of the offence under Section 498(A), prosecution is required to establish that the husband or the relative of the husband of a woman treated her in such a manner, which is likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health or that the harassment towards the woman was with a view to coercing her or any person related 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. In the light of the above provisions, prescribed by Section 498(A), we are required to examine if the Respondents treated the P.W. 1 with cruelty, as defined Section 498(A) IPC. 10. Smt. Ratna Nag i.e. the victim woman, deposing as P.W. 1, stated that at the time of her marriage, a cash amount of Rs. 22,000/- gold ornaments, wooden furnitures and other articles were given by her parents. She stated that after about two months of her marriage, her husband used to torture her demanding her to bring more money and gold ornaments from her parents. 22,000/- gold ornaments, wooden furnitures and other articles were given by her parents. She stated that after about two months of her marriage, her husband used to torture her demanding her to bring more money and gold ornaments from her parents. She also stated that her husband, her parents-in-law and her brother-in-laws used to assault her with a demand for more money from her parents and that, though meetings were held in the Panchayat, her husband and his family members refused to abide by the decision of the said meetings. Of course, she did not state as to what decisions were taken in the said meetings. The victim woman, neither in her evidence, given as P.W. 1, nor in the F.I.R. lodged by her, mentioned the amount of money or gold ornaments, claimed by her husband. She also did not state as to in what manner she was tortured. There is no medical evidence to substantiate her claim that she had suffered any injury due to the alleged torture. 11. Sri Haris Chandra Majumder, father of the P.W. 1 deposing as P.W. 2 stated that he gave an amount of Rs. 22,500/- in cash and gold ornaments to his daughter and the son-in-law at the time of their marriage and that after about two years of his daughter's marriage, her husband used to torture her demanding her to bring more money from her parents. This witness also did not state anything about the amount claimed by the husband of the victim woman. 12. P.W. 3, Sri Subhash Chandra Majumder i.e. the uncle of the victim woman, stated that P.W. 1 informed him that her husband tortured her demanding money. He also failed to state the amount claimed by the husband of P.W. 1 and the nature of torture. 13. In tune with the evidence of the P.W. 1, 2 and 3, P.W. 4, Sri Babul Chandra Majumder, who is the brother of the victim woman, stated that the victim woman was assaulted and tortured by her husband demanding money. 14. Sri Dilip Majumder, another brother of the victim woman, deposing as P.W. 5, stated that at the time of the marriage of his sister, Rs. 25,000/- was given along with gold ornaments and furnitures etc. He stated that after about two to three months from the marriage of his sister, her husband started to torture her demanding more money. 14. Sri Dilip Majumder, another brother of the victim woman, deposing as P.W. 5, stated that at the time of the marriage of his sister, Rs. 25,000/- was given along with gold ornaments and furnitures etc. He stated that after about two to three months from the marriage of his sister, her husband started to torture her demanding more money. This witness contradicted the statement given by the P.W. 1 i.e. the victim woman, P.W. 2 i.e. the father of the victim regarding the amount given at the time of marriage. P.W. 1 stated Rs. 22,000/- was given in cash, while according to P.W. 2, Rs. 22,500/- was given in cash. But, P.W. 5 stated that Rs. 25,000/- was given in cash. Admittedly, the P.W. 5, being one of the brothers of the victim woman and a family member, is supposed to know the correct amount, if any, paid to the husband of his sister. This contradiction in the evidence of P.W. 5 raises doubt about veracity of the prosecution version. 15. P.W. 6, Sri Maran Chakraborty was a priest, who performed the marriage of the victim woman. There is no dispute regarding the marriage. 16. P.W. 7, Sri Bajlur Rahaman, who was the Upa-pradhan of the Gaon Panchayat stated that Panchayat meetings were held for settling the dispute between the couple. He stated that during the discussion in the Panchayat, the victim woman stated that her husband Sri Krishna Nag used to torture her and that she was not given food and other required articles. This witness, who was the Upa-pradhan of the Gaon Panchayat did not state anything regarding demand of dowry and torture etc. If the husband and the parents-in-laws of the victim woman had tortured the P.W. 1 demanding her to bring money etc. from her parents, then the victim woman would have certainly informed the Panchayat about such torture and demand. Silence of the P.W. 7, regarding any demand of dowry and torture indicates that there was no disclosure and discussion, in the meeting of the Panchayat, regarding torture and demand of dowry. This indicates that neither the victim woman nor her father, P.W. 2 had informed the Panchayat about such demand and torture. Silence of the P.W. 7, regarding any demand of dowry and torture indicates that there was no disclosure and discussion, in the meeting of the Panchayat, regarding torture and demand of dowry. This indicates that neither the victim woman nor her father, P.W. 2 had informed the Panchayat about such demand and torture. The failure of the victim woman and her parents to inform the Panchayat or the P.W. 7 regarding torture and dowry demand raises doubt about the prosecution version with regard to demand of dowry and torture. 17. Sri Haradhan Bhowmik, who was a relative of the victim woman, deposed as P.W. 8. He also failed to state anything specific about the demand made by the husband of the victim woman. He stated that, on being demanded, after the marriage, some money was given to the husband of the P.W. 1. But neither the victim woman nor her father stated regarding payment of money after the marriage. There is no corroboration in the evidence of P.W. 8. His evidence appears to be exaggeration of the fact. Hence he is not reliable. 18. Smt. Alu Rani Shil, who was a neighbourer of the Respondent No. 1 i.e. the husband of the victim woman deposed as P.W. 9. She stated that the victim woman left her marital home after five years from her marriage due to certain quarrel between the couple. If there was any demand of dowry and torture to that effect, this witness, being one of the neighbourers, should have known about the fact. Her evidence does not infer anything regarding torture and dowry. 19. Smt. Anjali Shil, P.W. 10 and Smt. Kajal Rani Shil, P.W. 11, also stated that the victim woman used to live in her parents house because her husband had married for the second time. They did not state anything regarding dowry demand and torture. 20. Sri Laxman Chandra Dey, who deposed as P.W. 13 stated that due to certain dispute between the couple, a Panchayat level meeting was held. This witness did not state anything regarding torture and dowry demand. 21. P.W. 12, Sri Satya Ranjan Das, who was the Police Officer, received the F.I.R in the police station. 22. P.W. 14 was the O.C. of the concerned police station. He launched investigation into the matter and submitted the charge sheet. 23. This witness did not state anything regarding torture and dowry demand. 21. P.W. 12, Sri Satya Ranjan Das, who was the Police Officer, received the F.I.R in the police station. 22. P.W. 14 was the O.C. of the concerned police station. He launched investigation into the matter and submitted the charge sheet. 23. From the above discussion, it appears that the victim woman (P.W. 1) stated that she was tortured by her husband and other members of his family. But her father (P.W. 2), her uncle (P.W. 3) and her brothers (P.W. 4 and P.W. 5) stated that she has tortured by her husband demanding dowry. There is major contradiction in the evidence of P.W. 1 in one hand and P.W. 2, P.W. 3, P.W. 4 and P.W. 5 on the other hand, regarding involvement of the other member of the family of the P.W. 1's husband. The source of information for the P.W 2 to P.W. 5 was the P.W. 1. If the P.W. 1 was tortured by other members of in law's family, then she would have certainly informed the same to P.W. 2, P.W. 3, P.W. 4 and P.W. 5 prompting them to support her evidence on this point. The silence of the said witnesses, on this count, indicates that the P.W. 1 did not tell them about the involvement of other members. Hence I fine no corroboration in her evidence regarding involvement of other members. This discrepancy raises doubt about the veracity of the evidence of P.W. 1. They also stated that Panchayat level meeting was held, but, the Upa-pradhan of the Panchayat (P.W. 7) and Sri Laxman Chandra Dey (P.W. 13), who also attended the meeting, stated that the village meeting was held in connection with certain quarrel between the couple. If there was any allegation and discussion regarding torture and dowry demand, made by the Respondents, the same would have certainly been discussed in the said meeting and in that event the Upa-pradhan i.e. P.W. 7 and P.W. 13 would have disclosed the same. The evidence of P.W. 7 and 13 aforesaid does not indicate that there was any discussion regarding torture and dowry. That apart, the evidence of the victim woman, her father and brothers aforesaid failed not indicate as to what amount was demanded by her husband and in what manner she was tortured. The evidence of P.W. 7 and 13 aforesaid does not indicate that there was any discussion regarding torture and dowry. That apart, the evidence of the victim woman, her father and brothers aforesaid failed not indicate as to what amount was demanded by her husband and in what manner she was tortured. There is material contradictions in the evidence of P.W. 1 and P.W. 2. According to P.W. 1, the demand of dowry was made two months after her marriage, but according to P.W. 2 i.e. her father, the demand was made two years from the marriage. This contradiction regarding period of demand and torture raises serious doubt about the prosecution version itself. 24. It is settled law that when there is reasonable doubt as to the guilt of the accused, no interference is called for in an appeal against acquittal. An appeal against acquittal can succeed only when it is found that the acquittal is based on wrong evidence resulting miscarriage of justice. In the case of Awadhesh and another Appellants vs. State of Madhya Pradesh Respondent, (1988) Cri LJ 1154: AIR 1988 SC 1158 the trial Court acquitted the Appellants, but the High Court, on appeal, reversed the order of acquittal by reappraising the evidence and convicted the Appellants under Section 302/34 IPC. In the case of Awadhesh and another Appellants vs. State of Madhya Pradesh Respondent, (1988) Cri LJ 1154: AIR 1988 SC 1158 the trial Court acquitted the Appellants, but the High Court, on appeal, reversed the order of acquittal by reappraising the evidence and convicted the Appellants under Section 302/34 IPC. An appeal being carried before the Supreme Court, the Supreme Court, while allowing the appeal set aside the order of the High Court and made the following observation: In G.B. Patel vs. State of Maharashtra (1979)2 SCR 94 : AIR 1979 SC 135 this Court quoted with approval the principles laid down by Privy Council in Sheo Swarup vs. King Emperor, AIR 1927 PC 227 (2), wherein it was held that although the power of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet, as a rule of prudence, the High Court should always give proper weight and consideration to matters e.g. (i) the views of the trial judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (iii) the right of the accused to the benefit of any doubt, and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. Sarkaria, J. Speaking for the Court observed "where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below based its order acquitting the accused are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal." While considering an appeal against acquittal the High Court must keep in mind these principles in appreciating the evidence of witnesses. In other words, if the main grounds on which the Court below based its order acquitting the accused are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal." While considering an appeal against acquittal the High Court must keep in mind these principles in appreciating the evidence of witnesses. If on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible, one as held by the trial Court for acquitting the accused, and the other for convicting the accused in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial Court. Unless the conclusions of the trial Court drawn on the evidence on record are found to be unreasonable, perverse or unsustainable, the High Court should not interfere with the order of acquittal. The High Court has in the instant case made an attempt to explain away the infirmities in the testimony of eye-witnesses in setting aside the order of acquittal. The High Court has in our opinion disregarded the rule of judicial prudence in converting the order of acquittal to conviction. In the case of Sambhaji Hindurao Deshmukh vs. State of Maharashtra (2008)11 SCC 186 , Hon'ble Supreme Court, while laying down the principles relating to the appeal against acquittal, observed as follows: While the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the acquittal by the trial Court unless there are strong reasons based on evidence which can dislodge the findings arrived at by the trial Court, which were the basis for the acquittal. The High Court has to give due importance to the conclusions of the trial Court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against acquittals, only where the trial Court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt In the case of Syed Peda Aowlia vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2008)11 SCC 394 , the Hon'ble Supreme Court observed as below: 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 should be adopted. 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 offences or not. (See Bhagwan Singh vs. State of Madhya Pradesh). The principle to be followed by the 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 a compelling reason for interference. The principle to be followed by the 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 a compelling reason for interference. In the case of Mahesh vs. State of Maharashtra (2008)13 SCC 271 , the Hon'ble Apex Court held that in an appeal against the order of acquittal, it is for the appellate Court to keep in view the relevant principles of law to re-appreciate and reweith the evidence as a whole and to come to its own conclusion on such evidence in consonance with the principles of criminal jurisprudence. While deciding the case of Sonmoni alias Prasanta alias Santanu Bordoloi vs. State of Assam 2002(3) GLT 266, a Division Bench of this Court, referring to the observations of the Apex Court made in the case of Kaliram vs. State of Himachal Pradesh AIR 1973 SC 2773 , held that the Court has to hold the balance of justice evenly and ensure that a fair opportunity is afforded to the accused to have his say in the matter and the Court has also to make a close and dispassionate scrutiny of the evidence on record before holding that the evidence given by prosecution is sufficiently trustworthy and reliable to hold that the case of the prosecution stands proved pointing to the guilt of the acquitted accused. The observations made by the Hon'ble Apex Court, in the above referred case run as follows: It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system; much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocence, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not rule out altogether. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocence, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not rule out altogether. In the case of State of Goa vs. Sanjay Thakran (2007)3 SCC 755 , the Hon'ble Supreme Court observed as follows:- A duty is cast upon the appellate Court in such circumstances to re-appreciate the evidence to arrive at a just decision on the basis of material placed on record to find out if any of the accused is connected with the commission of the crime he is charged with. 25. In view of above discussed evidence and keeping in mind the principles laid down by the Supreme Court, I have no hesitation in holding that the learned Trial Judge rightly concluded that the prosecution failed to establish that the victim woman was treated with cruelty by her husband and other members of his family. There is no perversity and wrong appreciation of the evidence on record. There is nothing on record to find that the conduct of the husband of the victim woman and the members of his family was such that the victim woman i.e. the P.W. 1 was likely to commit suicide or cause grave injury or danger to life, limb or health. When an allegation regarding torture in connection with dowry demand is made, it is the burden on the person, who brings such allegation to specifically state the amount of money and, or property claimed, the nature and gravity of torture, meted out to such woman. In the absence of any specific averment, bald statement, that demand for money and ornaments were made, are not sufficient to conclude that there was demand of any property or valuable security. Similarly, in the absence of anything in details, regarding nature and gravity of the alleged torture, it is hardly possible to determine if the offence alleged to be committed falls under Section 498(A) IPC. In the present case, the victim woman, except making bald statement that she was tortured by her husband and other members of his family demanding money and gold ornaments, failed to state as to what was the amount claimed and in what manner she was tortured. In the present case, the victim woman, except making bald statement that she was tortured by her husband and other members of his family demanding money and gold ornaments, failed to state as to what was the amount claimed and in what manner she was tortured. Therefore, in my considered opinion, the prosecution failed to establish that the woman i.e. P.W. 1 was harassed with a view to coercing her or any person related to her to meet any unlawful demand. 26. In the light of the above discussion, I am of the considered opinion that the prosecution failed to establish the case under Section 498(A)/109 IPC against the Respondents. Therefore, I find no merit in this appeal, requiring interference with the impugned judgment and Order of acquittal. 27. In the result, the appeal stands dismissed. 28. Return the L.C.R. Appeal dismissed.