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2012 DIGILAW 1198 (GAU)

Pranab Iirishi Das and Ors. v. State of Tripura

2012-10-10

S.C.DAS

body2012
1. By this criminal appeal, presented under section 374 of Code of Criminal Procedure, 1973 ('Cr.PC'), the appellants, named above, impugned the judgment and order of conviction and sentence dated 12.4.2006, passed by learned Sessions Judge, West Tripura, Agartala, in case No. ST/102 (WT/A) of 2003 whereby the learned Sessions Judge found the accused appellants guilty of committing offence punishable under section 498A of Indian Penal Code, 1860 ('IPC'), and also found the accused appellant Pranab Hrishi Das guilty of committing offence punishable under section 306 of IPC and sentenced them to suffer RI for 2 years and to pay a fine of Rs.500, in default of payment of fine to suffer further RI for 3 months under section 498A of IPC and sentenced the convict appellant Pranab Hrishi Das to suffer RI for 7(seven) years and to pay a fine of Rs.5,000 in default of payment to suffer further RI for one year under section 306 of IPC. Having aggrieved with the judgment and order of conviction and sentence, the appellants preferred the present appeal. 2. Heard learned counsel, Mr. H. Debnath for the appellants and learned Additional P.P., Mr. R.C. Debnath for the State respondent. 3. This is another case of shocking death of a young bride because of the alleged cruelty exercised on her by her husband, mother-in-law, brother-in-law and sister-in-law. 4. The fact of the case, in short, is that the houses of accused Pranab Hrishi Das and his deceased wife, Bichitra Hrishi Das situated side by side intervened by a village road, at village Bhati Abhoynagar Hrishi Colony. At a very young age, they fell in love. They eloped and subsequently parents of Bichitra arranged their marriage socially as per Hindu rites. After marriage, Bichitra shifted her to her husband's house just other side of her parents house and was living there with her husband, mother-in-law, Smt. Niyati Hrishi Das, brother-in-law, Sri Pradip Hrishi Das and sister-in-law, Smt. Soma Hrishi Das. It is the case of the prosecution that at the time of marriage, parents of Bichitra gifted ornaments and other articles to the best of their ability. It is alleged that soon after marriage, the accused persons started torture on Bichitra demanding money and other articles as dowry. She was subjected to physical and mental torture since the demand could not be fulfilled by her parents. It is alleged that soon after marriage, the accused persons started torture on Bichitra demanding money and other articles as dowry. She was subjected to physical and mental torture since the demand could not be fulfilled by her parents. It is alleged that parents of Bichitra often paid cash money and a bundle of galvanized sheets for constructing the husband's house of Bichitra. Thereafter also Bichitra was subjected to torture. On the day of Biswakarma Puja, Bichitra came to her parents' house and started living there. Bichitra reported her parents, sister-in-law and her brothers that she was subjected to torture in her husband's house. On 25.9.2002 husband of Bichitra also came to the parents' house of Bichitra, i.e., the house of PW3 an~ stayed there. He took his dinner and parents of Bichitra arranged their bed in a separate room. It is alleged that at night Bichitra and Pranab picked up quarrel to which father of Bichitra (PW3) pacified them and requested them not to quarrel at night. In the early morning on 27.9.2002 Bichitra was tortured by her husband as to why she was staying in her parents' house and why she was not able to take money from her father. In course of quarrel, the accused Pranab instigated Bichitra to commit suicide and thereafter Bichitra brought out kerosene can and poured kerosene on her body and asked her husband to give her match box to which Pranab handed over a match box and thereby Bichitra set herself to fire. While she was on flame, she came out of the room and raised cry. Her parents and others rushed there and took her to the hospital. When she was in flame accused Pranab fled away from the spot. Bichitra was taken to G.B. Hospital where she died on 9.10.2002 because of the burn injury. 4.1 Father of Bichitra (PW3) lodged an FIR on 27.9.2002 itself, alleging the torture on his daughter by the accused persons on demand of dowry etc. On receipt of that FIR, West Agartala PS. Case No. 198/2002 under sections 498A and 326 of IPC was registered and investigation was taken up. In course of investigation, police officer examined the material witnesses, recorded their statements under section 161, Cr.PC and seized the burnt wearing apparels of the deceased and container of the kerosene from which Bichitra poured kerosene on herself. Case No. 198/2002 under sections 498A and 326 of IPC was registered and investigation was taken up. In course of investigation, police officer examined the material witnesses, recorded their statements under section 161, Cr.PC and seized the burnt wearing apparels of the deceased and container of the kerosene from which Bichitra poured kerosene on herself. In course of investigation, PW11 on 8.10.2002 recorded the statement of deceased Bichitra under section 161, Cr.PC in presence of PW7 Dipti Rani Dey, a staff nurse of the hospital. Inquest was done over the dead body of the deceased and thereafter postmortem was also done on the dead body by PW8, Dr. Mridul Das. On completion of investigation, I.O. submitted charge sheet against the accused appellants for commission of offence punishable under section 498A and section 306 read with section 34 of IPC. 4.2 Cognizance was taken on the basis of police report and on commitment of the case to the Court of Sessions, Learned Sessions Judge on 17.11.2003 framed charges against the accused persons for commission of offence punishable under section 498A read with section 34 of IPC and again under section 306 read with section 34 of IPC to which the accused persons pleaded not guilty and claimed to be tried. 5. Prosecution examined 11 witnesses to prove the charges. Out of them, PWs 3 and 4 are the parents of the deceased Bichitra and PW3 lodged the FIR. PW6 is the brother of the deceased and P.W.5 is the brother's wife of the deceased. PWs 3, 4, 5 and 6 are the members of the parental family of the deceased. PW1 is a co-villager and PW2 is an aunt-in-law of the deceased and a co-villager. PW7 is the staff nurse of the hospital in whose presence the statement of the deceased (Ext.5) as alleged, was recorded by I.O. PWS is the Medical Officer who conducted post mortem examination over the dead body. PW9 is the Scribe of the FIR but he was declared hostile by the prosecution and was cross-examined by both side. PWs 10 and 11 are the respective I.O's. of the case. 6. Prosecution witnesses were cross-examined on behalf of the accused persons. After closure of the prosecution evidence, accused were examined under section 313, Cr.PC. Thereafter, in their turn, the accused persons declined to adduce any defence evidence. PWs 10 and 11 are the respective I.O's. of the case. 6. Prosecution witnesses were cross-examined on behalf of the accused persons. After closure of the prosecution evidence, accused were examined under section 313, Cr.PC. Thereafter, in their turn, the accused persons declined to adduce any defence evidence. Defence case is nothing but a bare denial of the prosecution case. 7. Learned Sessions Judge at tne conclusion of trial found all the accused persons guilty of committing offence punishable under section 498A of IPC and sentenced them as aforesaid. Learned Sessions Judge also found accused appellant Pranab Hrishi Das guilty of committing offence punishable under section 306 of IPC and sentenced him as aforesaid. 8. Learned counsel, Mr. Debnath appearing for the appellants emphatically submitted that the accused Pranab Hrishi Das and the deceased both were very young in age and their houses were situated close to each other within a close hearing distance. The members of both the families belonged to a lower community having little education. The young boy and girl fell in love and have eloped but subsequently their parents were agreed to their marriage and the marriage was solemnized in the month of Baishakha of the English calendar year 2002. With his usual fairness, learned counsel, Mr. Debnath further submitted that it was no doubt a shocking incident that a young girl soon after her marriage, within 6 months, committed suicide by setting herself to fire. He has fairly admitted that the accused Pranab in course of trial could not advance any convincing defence as to why his wife had chosen to end her life within 6 months of her marriage. He has further submitted that might be because of sudden quarrel between the young couple, the deceased chosen to commit suicide on a sudden excitement to which the accused could not prevent her. He has also submitted that the accused appellant Pranab was only aged 18 plus at the time of commission of offence. Learned counsel further drew my attention to the evidence on record and referring the evidence of PWs 3, 4, 5 and 6 submitted that regarding the allegation of exercise of cruelty by accused Pradip Hrishi Das, Soma Hrishi Das and Niyati Hrishi Das there is omnibus statement made by those witnesses about the torture on Bichitra on demand of dowry. Learned counsel further drew my attention to the evidence on record and referring the evidence of PWs 3, 4, 5 and 6 submitted that regarding the allegation of exercise of cruelty by accused Pradip Hrishi Das, Soma Hrishi Das and Niyati Hrishi Das there is omnibus statement made by those witnesses about the torture on Bichitra on demand of dowry. He has submitted that PW3 made a clear statement that he had gifted some ornaments and other articles at the time of marriage and there was no demand of any dowry. Therefore, while the houses of both the parties were close to each other, it was quite natural that the witnesses could hear the torture on Bichitra had actually there been any torture in the matrimonial home which was situated within audible distance. Learned counsel, Mr. Debnath therefore, submitted that the finding of learned Sessions Judge, that the accused appellants Pradip Hrishi Das, Soma Hrishi Das and Niyati Hrishi Das were guilty of committing offence punishable under section 498A of IPC is not tenable. Regarding Pranab Hrishi Das, learned counsel, Mr. Debnath with his all fairness submitted that there are some evidence on record which could not be totally discarded but the facts and circumstances suggest that might be there were some altercation between the young couple and because of excitement or anger, Bichitra might have committed suicide setting herself to fire. Under such circumstances, learned counsel prayed for taking a lenient view in respect of accused Pranab Hrishi Das who was also very young in age at the time of commission of offence. 9. Appearing on behalf of the State respondent, learned Additional P.P., Mr. R.C. Debnath with his all fairness has submitted that the allegation of exercise of cruelty by accused Pradip Hrishi Das, Soma Hrishi Das and Niyati Hrishi Das is based on omnibus statement of PWs 3, 4, 5 and 6. He has most fairly submitted that the finding of learned Sessions Judge about the guilt of those accused persons under section 498A of IPC, in the facts and circumstances of the case, and the material evidence on record may not sustain, but the facts and circumstances and the evidence on record clearly makes out a case punishable under both the sections, i.e., under section 498A IPC and section 306 of IPC against accused Pranab Hrishi Das. It is submitted by learned Addl. It is submitted by learned Addl. P.P. that the accused and the deceased fell in love which is an admitted fact and thereafter they eloped, but subsequently their parents arranged their marriage. He has drawn my attention to the evidence of PW3 and submitted that the witness is truthful, and what he stated is convincing and there is nothing exaggerated or added. Substantial allegation made by PW3 is against accused Pranab Hrishi Das. Other witnesses also corroborated it that accused Pranab inflicted torture on Bichitra and for the sake of welfare of Bichitra, PWS given away a bundle of galvanized sheets for making the house of the accused. PWs 3 and 4 also stated that sometimes money was also given to the accused Pranab to purchase peace and to protect their daughter from torture in the matrimonial home but the accused Pranab even thereafter, inflicted torture for which on the day of Biswakarma Puja the deceased Bichitra came to her parents' house and started living there. He has also submitted that Biswakarma Puja is performed on 17th September every year. After 5/6 days of her leaving the matrimonial home and taking shelter in the parental home, accused Pranab came to his in-laws house at night time and stayed there. It was 25.9.2002, he took his dinner and slept in the in-laws house with deceased Bichitra. At about 10.00 p.m. he picked up quarrel with the deceased but PWS pacified them. In the early morning there was quarrel between them arid PW5, the sister-in-law of Bichitra also woke up at that time and was washing the utensils of the house in the tube well wherefrom she heard the quarrel between Pranab and Bichitra. Thereafter, unfortunate incident occurred that Bichitra set herself to fire. It is submitted by learned Addl. P.P., Mr. Debnath regarding the allegation that accused Pranab instigated his wife to commit suicide by setting herself to fire, has been established with material evidence including that of Ext.5, statement recorded by I.O., on 8.10.2002, i.e., on the previous day of her (Bichitra) death. Learned counsel, therefore, prayed for maintaining the sentence on accused Pranab Hrishi Das as inflicted by learned Sessions Judge. 10.1 have meticulously gone through the evidence on record. FIR was lodged on 27.9.2002, i.e., on the following day of the alleged occurrence. Learned counsel, therefore, prayed for maintaining the sentence on accused Pranab Hrishi Das as inflicted by learned Sessions Judge. 10.1 have meticulously gone through the evidence on record. FIR was lodged on 27.9.2002, i.e., on the following day of the alleged occurrence. It was alleged by the informant in the FIR that after the marriage Bichitra was subjected to torture by her husband, brother-in-law, sister-in-law and mother-in-law in the matrimonial home to bring more money and more dowry. He gave one bundle of galvanized sheets and some money to purchase peace but thereafter also she was subjected to torture. On 17.9.2002 (day of Biswakarma Puja) Bichitra came to his house and stayed there. On 25.9.2002 at about 10.00 p.m. the accused-appellant Pranab Hrishi Das came to his house and stayed there and he inflicted torture on his daughter. On 26.9.2002 in the morning, at about 6.00 a.m. hearing the cries, he woke up and found his daughter was burning in the courtyard. The accused fled away. In their evidence PWs 3, 4, 5 and 6 categorically narrated the story about the torture inflicted on Bichitra by accused Pranab and that of the commission of suicide by Bichitra, setting herself to fire in her parental house at dawn, on 27.9.2002. In Ext. 5 Bichitra also made a statement about the torture on her. 11. What I could gather from the evidence on record and from the submission of learned counsel of both sides that an omnibus statement has been made by all the witnesses stating that all the accused persons inflicted torture on Bichitra. There is no specific statement as to the date, time and nature of such torture by the accused Pradip Hrishi Das, Soma Hrishi Das and Niyati Hrishi Das. The Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 has observed a caution for the courts while appreciating the evidence of the members of parental family of the deceased in like cases. The Apex Court in para 48 of the judgment has held, thus : "Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. The Apex Court in para 48 of the judgment has held, thus : "Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Bccd for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer, and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it." 12. PWs 1 and 2 as I find have stated about the statement made by the deceased which they have heard from her parents, brother-in-law and sister-in-law. PW2 stated that the deceased while on way to hospital told her about the torture. But the deceased in her statement in exhibit 5 stated that after she set herself to fire she lost her sense and she regained sense in the hospital. Therefore, the statement of PW2, that on way to hospital the deceased told her about the torture, become suspicious and cannot be relied on. 13. On careful perusal of the evidence of PWs 3, 4, 5 and 6, I find that the accused appellant Pranab Hrishi Das inflicted torture on the deceased Bichitra, his wife and subjected her to cruelty which is evident from the evidence on record and thereby he instigated her to commit suicide. 13. On careful perusal of the evidence of PWs 3, 4, 5 and 6, I find that the accused appellant Pranab Hrishi Das inflicted torture on the deceased Bichitra, his wife and subjected her to cruelty which is evident from the evidence on record and thereby he instigated her to commit suicide. Since there is allegation of torture on the married wife within 7 years of marriage, the provisions of section 113B of Evidence Act shall come into operation and a presumption is to be drawn that the accused appellant Pranab Hrishi Das has abetted the commission of suicide of his wife. 14. It is not in dispute that Bichitra committed suicide by putting herself to fire. PWS, Dr. Mridul Das conducted the post mortem examination over the dead body of the deceased and has observed, thus : "Injuries — infected 3rd degree burn injury present all over the body below neck total covering an area of 90 per cent of total body surface. Age of burn injury 10-15 days back from time of death. Opinion - the death was due to the effect of Toxemia due to massive infected burn injuries as stated earlier, ante-mortem in nature." This observation has not been disputed by the defence. 15. In view of the discussions made above, I am of the opinion that the conviction of accused Pradip Hrishi Das, Soma Hrishi Das and Niyati Hrishi Das under section 498A of IPC cannot sustain and is liable to be interfered and they are entitled to get benefit of doubt. The judgment and order of conviction and sentence as against accused Pranab Hrishi Das under section 498A of IPC is upheld. Regarding sentence, I find no mitigating circumstances in favour of the said accused appellant. The accused appellant fell in love with the deceased. They were closed door neighbours. They eloped before marriage. After marriage they lived and cohabited for about 6 months before death of Bichitra. What was the reason for her commission of suicide, while both of them shared the bed on the previous night, has not been explored before the trial court to have any scope to draw a lenient view in respect of punishment of accused appellant Pranab Hrishi Das. I, therefore, find no scope to reduce the sentences of accused appellant, Pranab Hrishi Das, in any manner. I, therefore, find no scope to reduce the sentences of accused appellant, Pranab Hrishi Das, in any manner. The sentences of accused appellant Pranab Hrishi Das under sections 498A and 306 of IPC as inflicted by learned Sessions Judge, is maintained. 16. The appeal accordingly partly allowed. 17. The judgment and conviction and sentence of accused appellant Sri Pradip Hrishi Das, Smt. Soma Hrishi Das and Smt. Niyati Hrishi Das under section 498A of IPC is set aside. The judgment and order of conviction and sentence of accused appellant Sri Pranab Hrishi Das under sections 498A and 306 of IPC is upheld. He should serve out the sentences. Substantive sentences shall run concurrently. However, period of detention during investigation and trial shall be set off. 18. The appeal accordingly stands disposed of. 19. Send back the LC record along with a copy of this judgment. _____________