Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 740 (GAU)

Sanjit Sarkar v. State of Tripura

2011-09-05

C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 03.04.2009, passed by the learned Addl. Sessions Judge, Khowai, West Tripura, in Case No. S.T.02(WT/K)2009. 2. By the impugned judgment and order, the learned trial Judge convicted the Appellant for the offence under Sections 498A and 306 of the Indian Penal Code (hereinafter called "Indian Penal Code, 1860") and sentenced him to suffer rigorous imprisonment for two years and pay fine of Rs. 1,000/-, in default suffer simple imprisonment for one month, for his conviction under Section498A Indian Penal Code, 1860 and suffer rigorous imprisonment for five years and pay fine of Rs. 3,000/-, in default suffer simple imprisonment for another period of three months for his conviction under Section 306 Indian Penal Code, 1860. It was directed that both the sentences shall run concurrently. Aggrieved by the said judgment and order of conviction and sentence, the convict, as Appellant, has come up with this appeal under Section 374 of the code of Criminal Procedure (hereinafter called "Code of Criminal Procedure"). 3. Heard Mr. R. Datta, learned Counsel, appearing for the Appellant and Mr. A. Ghosh, learned Addl. Public Prosecutor, appearing for the State Respondent. 4. The prosecution case, in brief, may be stated as follows: Smti Milan Sarkar (hereinafter called 'the deceased'), was the married wife of Sri Sanjit Sarkar (Appellant). The said couple spent six years of married life. On 11.09.2006, Sri Nirmal Sarkar, the father of the deceased lodged the FIR with the O/C, Teliamura Police Station, informing that the Appellant used to torture his daughter in connection with demand of dowry and that due to his failure to meet the said demand, the torture has aggravated. According to the informant, on 10.09.2006, at about 6 a.m., the Appellant severely assaulted the deceased and, thereafter, at about 8 a.m., the deceased committed suicide by consuming poison. 5. On receipt of the said FIR, police registered a case under Sections 498A/304-B Indian Penal Code, 1860 and launched investigation into the matter. During investigation, police visited the place of occurrence, prepared the inquest report, forwarded the dead body of the deceased for post mortem examination and the viscera for forensic examination. 6. 5. On receipt of the said FIR, police registered a case under Sections 498A/304-B Indian Penal Code, 1860 and launched investigation into the matter. During investigation, police visited the place of occurrence, prepared the inquest report, forwarded the dead body of the deceased for post mortem examination and the viscera for forensic examination. 6. At the close of investigation and after receipt of the post mortem report as well as the report from the Forensic Expert, police submitted charge sheet against the Appellant, under Sections498A and 306 Indian Penal Code, 1860. 7. The offence being exclusively triable by the Court of Sessions, the learned Addl. Sessions Judge, Khowai, West Tripura, framed charges against the Appellant, under Sections 498A and 306 Indian Penal Code, 1860. The charges were read over and explained to the Appellant, to which he pleaded not guilty and claimed to be tried. 8. In order to prove its case, the prosecution examined as many as sixteen witnesses, including the Investigating Police Officer. At the close of evidence for the prosecution, the accused-Appellant was examined under Section 313 Code of Criminal Procedure He denied the allegations, brought against him and declined to adduce any defence evidence. 9. The learned trial Judge, considering the evidence on record, found the Appellant guilty of the offences under Sections 498A and 306 Indian Penal Code, 1860 and accordingly, convicted and sentenced him, as indicated above. 10. Mr. Datta, learned Counsel, appearing for the Appellant, taking this Court through the evidence on record, has submitted that, except the uncorroborated evidence of the informant i.e. PW.2, there is nothing on record to find that the deceased was treated with cruelty in connection with demand of dowry and that the Appellant had abated her in committing suicide. The learned Counsel has further submitted that the learned trial Judge committed illegality and error in the eye of law by recording the conviction and sentence without sufficient evidence on record. 11. Mr. A. Ghosh, learned Addl. Public Prosecutor, appearing for the State-Respondent, supporting the impugned conviction and sentence, has submitted that there is sufficient materials on record against the Appellant and that the learned trial Judge committed No error by holding the accused Appellant guilty of the offence under Sections 498A/306 Indian Penal Code, 1860. 12. 11. Mr. A. Ghosh, learned Addl. Public Prosecutor, appearing for the State-Respondent, supporting the impugned conviction and sentence, has submitted that there is sufficient materials on record against the Appellant and that the learned trial Judge committed No error by holding the accused Appellant guilty of the offence under Sections 498A/306 Indian Penal Code, 1860. 12. In order to appreciate the counter arguments, advanced by the learned Counsel, appearing for the parties and to examine the correctness of the impugned judgment and order, I feel it appropriate to, briefly, scan the evidence on record. 13. PW.1 Sri Nepal Sarkar was a neighbour. He stated that, he heard that the deceased died by taking poison and that he did not know the reason for such action on the part of the deceased. Though this witness was declared hostile and cross-examined by the prosecution, No incriminating evidence could be elicited against the accused. 14. The father of the victim, who lodged the FIR, deposed as PW.2. In his evidence, PW.2 stated that the Appellant used to torture his daughter in connection with demand of dowry and that on the day of incident, in between 8-9 a.m., she was physically assaulted by her husband as a result of which she took poison. He further stated that, he saw the deceased being carried to the hospital by the Appellant. The father of the deceased i.e. PW.2 did not mention the nature of torture committed and the amount of dowry claimed by the Appellant. According to PW.2, on the date of incident, at about 8 a.m., the deceased was physically assaulted by her husband. But this witness was not present at the time of the alleged assault. He did not disclose the source from which he came to know about the said assault. Therefore, his evidence regarding assault lacks corroboration and force. 15. The mother of the deceased, who deposed as PW.3, was the best witness to say regarding assault, torture and demand of dowry, if any. Smti Anubala Sarkar, who deposed as PW.3, stated that, her son-in-law i.e. the accused did not work for earning and for this whenever he was asked by the deceased to work for earning, he picked up quarrel with his wife. She further stated that, on the date of the incident, the accused visited her and requested her to go with him. She further stated that, on the date of the incident, the accused visited her and requested her to go with him. According to this witness, after some time, while she was proceeding towards the house of the accused, she found the Appellant carrying the deceased towards the hospital. She also accompanied the deceased to the hospital. According to PW.3, the deceased expired on her way to the hospital. This witness, in her examination in-chief, did not make any allegation regarding torture and demand of dowry. of course, in her cross examination, she denied the suggestion that the accused did not assault her daughter. If the deceased was tortured, assaulted in connection with demand of dowry, compelling her to commit suicide, there was No reason for withholding such information by the PW.3. The silence of PW.3 regarding assault and demand of dowry negates the prosecution version regarding torture in connection with demand of dowry and abetment to commit suicide. As there is No corroboration in the evidence of PWs. 2 and 3, regarding torture in connection with demand of dowry, it is not safe to believe the evidence of PW.2 that the deceased was tortured in connection with demand of dowry by her husband. 16. Smti Khelan Sarkar, who deposed as PW.4, was the younger sister of the deceased. She also, in tune with the evidence of PW.3, stated that the accused did not earn anything and that, objection being raised by the deceased, the accused used to torture her. This witness also did not state anything regarding demand of dowry. What can be gathered from the evidence of PW.4 is that, as the accused did not work for earning, the deceased raised objection and on being so objected, he used to torture her. This witness did not mention the nature and gravity of torture so as to indicate if the said torture is sufficient to compel the deceased to commit suicide. Her statement that the deceased was tortured by the accused is nothing but a bald statement. Therefore, the evidence of PW.4 does not lead to conclude that the alleged torture was sufficient to compel the deceased to commit suicide. 17. PW.5 Sri Haradhan Sarkar, PW.6 Sri Basanta Sarkar, PW.7 Sri Sujit Das, PW.8 Sri Biswajit Sarkar, PW.9 Sri Santosh Mallik, PW.10 Sri Rajib Mallik and PW.11 Sri Priyatosh Sarkar, did not state anything against the accused. 18. 17. PW.5 Sri Haradhan Sarkar, PW.6 Sri Basanta Sarkar, PW.7 Sri Sujit Das, PW.8 Sri Biswajit Sarkar, PW.9 Sri Santosh Mallik, PW.10 Sri Rajib Mallik and PW.11 Sri Priyatosh Sarkar, did not state anything against the accused. 18. PW.8 Sri Biswajit Sarkar, who is the cousin of the deceased, stated that, he used to visit the house of the accused during the life time of the deceased and that his relation with them was good. As the PW.8, who was a relative of the deceased, used to visit the house of the accused, during the life time of the deceased, if there was any torture, in connection with demand of dowry, the deceased would have certainly disclosed the same to PW.8. Silence of PW.8 in this regard raises doubt about the prosecution story itself. 19. Sri Ashim Kumar Das, who deposed as PW.12, stated that the deceased used to complain to him that her husband did not procure food articles and as such, on some occasions, she was compelled to stay in her parents' house. This witness did not state anything regarding torture in connection with demand of dowry. If the deceased was tortured by the accused, in connection with demand of dowry, she would have certainly informed the same to PW.12, whom she informed about her husband's failure to arrange food articles. 20. PWs. 3 and 4 i.e. the mother and sister of the deceased have stated that the husband of the deceased did not earn. Therefore, from the evidence of PW.12, it is found that the accused failed to meet the daily requirement for the livelihood of the said couple and for this reason quarrel took place between the couple. 21. PW.13, a Medical Officer, stated that, he performed the post mortem examination and after receipt of the Toxicological Analysis report, came to the conclusion that the cause of death of the deceased was 'chlorpyrifos'. From the evidence of PW.12, it is found that poison was found in the stomach of the deceased and as such it stands concluded that she died due to consumption of poison. 22. PW.14, a Police Officer, stated that, he prepared the inquest report of the deceased. PW.15 was one of the Investigating Officers. He stated that, he visited the place of occurrence, prepared the hand sketch map, examined the witnesses, seized the wearing apparels of the deceased. 22. PW.14, a Police Officer, stated that, he prepared the inquest report of the deceased. PW.15 was one of the Investigating Officers. He stated that, he visited the place of occurrence, prepared the hand sketch map, examined the witnesses, seized the wearing apparels of the deceased. PW.16, another Investigating Officer, stated that he submitted the charge sheet under Sections498A/306 Indian Penal Code, 1860. 23. In view of the above discussed evidence, it transpires that except the evidence of PW.2 i.e. the informant, there is No evidence regarding torture in connection with demand of dowry. It has already been noticed that there is No corroboration in respect of the evidence of PW.2. Admittedly, the PW.2 was not a witness to the alleged torture. He even failed to indicate the amount of dowry claimed by the accused. 24. Considering entire evidence on record, more particularly the evidence of PWs. 3 and 4 i.e. the mother and the sister of the deceased, I am inclined to hold that the prosecution failed to establish, beyond all reasonable doubt, that the deceased was tortured in connection with demand of dowry and that she was compelled to commit suicide. There is No material, on record, indicating that the deceased was abated or aided or instigated by the accused either by his conduct or in any manner to commit suicide. 25. In view of above, I don't find it safe to hold the accused guilty of the offences under Sections498A/306 Indian Penal Code, 1860. In my considered opinion, the prosecution failed to establish the charges, brought against the Appellant, beyond all reasonable doubt. Accordingly, I find sufficient merit in this appeal, requiring interference with the impugned conviction and sentence, recorded against the Appellant. 26. In the result, the impugned conviction and sentences, as indicated above, are set aside. The Appellant, who is undergoing imprisonment, be set at liberty forthwith, if he is not required in any other case. Return the Lower Court Records.