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2012 DIGILAW 1358 (GAU)

Mousami Das v. State of Tripura

2012-12-21

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. This is a petition filed under Section 482 of the Cr.P.C. for quashing the charge sheet No. 9 of 12 so far it relates to the petitioner namely, Smt. Mousami Das. The written ejahar was filed by one Subash Ch. Das alleging inter alia that his younger daughter Tithi Das was married to Rabindra Das per Hindu rites and customs. His son-in-law developed an illicit relation with the petitioner, who is the widow of his cousin brother residing adjacent to the house of his son-in-law. Since his daughter could not tolerate such relation she raised her voice and as consequence thereof she was subjected to physical torture by his son-in-law and his mother. Apart that the son-in-law demanded a hefty sum and a substantial part thereof was paid by the complainant. Since the amount so demanded was not fully satisfied/the son-in-law and his mother were relentless in torturing his daughter. Ultimately on 27.8.2011 she was informed that his daughter was ill but on arrival to the house of his son-in-law, he found his daughter Tithi killed and her body was kept inside the house. 2. Faced with the complaint, the officer-in-charge of Bodhjung Nagar Police Station registered the Bodhjung Nagar P.S. Case No. 38 of 2011 under Section 498A/302/304(B)/34 of IPC. On completion of the investigation, the Investigating Officer filed the charge sheet against the petitioner along with the said son-in-law namely, Rabindra Das and his mother namely, Gita Das under Section 498A/302/304(B)/34 of IPC. That charge sheet is under challenge in this petition. On 20.06.2012 this Court issued notice in this petition and had called for L.C. records. Along with the L.C. Records, the copy of the charge sheet as filed by the Investigating Officer is also found for examination. 3. Mr. A.K. Bhhowmik, learned senior counsel appearing for the petitioner contended that the petitioner has not committed any offence even if the entire allegation as made in the First Information Report or in the statements of the witnesses as recorded by the Investigating Officer are believed in their entirety. While referring to these statements, Mr. Bhowmik, learned senior counsel, further contended that the Investigating Officer on their basis stated that the petitioner had illicit relation with said Rabindra Das and on that issue the marital relation between Rabindra and the deceased got sour. While referring to these statements, Mr. Bhowmik, learned senior counsel, further contended that the Investigating Officer on their basis stated that the petitioner had illicit relation with said Rabindra Das and on that issue the marital relation between Rabindra and the deceased got sour. The complainant's wife namely, Dipti Das also made statement to the Investigating Officer in this regard. The statements are relevant for the allegation that the son-in-law of the informant had developed illicit relation with the petitioner and when her daughter tried to take him off from that relation, her son-in-law started torturing her daughter. 4. From the statement of one Sutapa Das, it appears that she heard from the deceased that Rabindra Das had developed an illicit relation with the petitioner. After marriage her deceased sister tried several times to rescue him from the said relation but Rabindra was adamant and for raising objection Rabindra also started torturing the deceased and was desperate in maintaining the relation. She alleged that on the ill-advice of the petitioner, Rabindra started torturing her sister and ultimately Rabindra and his mother had killed Tithi. 5. It has been also taken to the notice of this Court the statement made by one Subash Ch. Das (the complainant) that on the demand of money, the deceased was being tortured. Apart that when the deceased daughter raised objection as regards file illicit relation between her husband and the petitioner she was physically assaulted. The deceased informed about torture to that witness and his wife. He categorically stated that his son-in-law i.e. the husband of the deceased demanded a sum of Rs.1,00,000/- lakh, out of which they paid Rs.40,000/- for his business. He also stated to the Investigating Officer that even after the payment so made the torture on the deceased did not stop. His son-in-law continued the relation with the petitioner. One day when his son-in-law had returned at night from the house of the petitioner, the deceased could not register the ringtone, when his son-in-law rang as she was asleep. On that issue on the following day Rabindra Das and his mother tortured the deceased. The entire episode was reported by the deceased to her mother on 27.08.2011. On information that his daughter was ill they went to the residence of Rabindra and found their daughter dead. On that issue on the following day Rabindra Das and his mother tortured the deceased. The entire episode was reported by the deceased to her mother on 27.08.2011. On information that his daughter was ill they went to the residence of Rabindra and found their daughter dead. The other witness, one Shyamal Das, did not say much to the Investigating Officer except that Rabindra had illicit relation with the petitioner and he used to torture Tithi (the deceased) both physically and mentally. 6. Apart that the complainant's wife namely, Dipti Das stated about the demand as insisted by the complainant She stated to the Investigating Officer that her daughter Kinka (nick-name of the deceased) broke down when she visited the parental house and stated her husband whenever got time visited the house of the petitioner. She also stated that prior to her death, she reported the incident to Sailen Das, elder brother of her son-in-law for intervening in the matter and to advise her son-in-law to snap the relation off with the petitioner. But nothing as desired happened. She ultimately stated that on the ill-advice of the petitioner her daughter was killed by her son-in-law namely, Rabindra Das and her mother Gita Das. 7. One Mano Ranjan Das stated to the Investigating Officer that the petitioner had illicit relation with Rabindra Das. He also stated that the deceased was regularly being tortured by her husband and the mother-in-law. 8. Another witness namely, Sushen Das also stated to the Investigating Officer that the deceased stated him that her husband was having an illicit relation with the petitioner and also demanded a hefty amount for starting the business of ice-cream factory. She also stated that on ill-advise of the petitioner her husband and the mother-in-law had been regularly torturing her and after someday she was found dead. The witnesses namely, Shila Sutradhar stated that the deceased stated her that her husband was maintaining an illicit relation with the petitioner and whenever she tried to stop that relation she was tortured by her husband and the mother-in-law. The witnesses namely, Pankaj Pal stated in the same line that of the witness namely Shila Sutradhar. Witnesses namely, Nirmal Ghosh, Pradip Roy, Manish Das and Nandan Ch. Deb did not state anything against the petitioner. 9. Mr. The witnesses namely, Pankaj Pal stated in the same line that of the witness namely Shila Sutradhar. Witnesses namely, Nirmal Ghosh, Pradip Roy, Manish Das and Nandan Ch. Deb did not state anything against the petitioner. 9. Mr. Bhowmik, learned senior counsel categorically submitted that even though the charge sheet has been filed under Section 498A/304(B)/34 of IPC against the petitioner, whether there is any material against the petitioner to compel her for facing the trial. Mr. Bhowmik asked for a response from the materials with the charge-sheet as those will be considered while framing the charge. In the course of his submission, Mr. Bhowmik, learned senior counsel for the petitioner referred to the provision of Section 498A and 304(B) of the IPC and emphatically stated that Section 304B categorically provides that it has to be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for/or in connection with any demand for dowry. In no way the petitioner can be connected with the demand of dowry or cruelty or harassment in connection with the said demand of dowry. Neither the petitioner is a relative in the definite term of the word as the fact as divulged from the charge sheet that she was not part of the home or immediate relative of the husband of the deceased. For dilating of the provision of Section 498A, Mr. Bhowmik, learned senior counsel for the petitioner laid sufficient emphasis on the word for contending that neither the petitioner would come within the sweep of the meaning as provided in the explanation appended to the Section 498A for the reasons that no material what so ever has emerged to show how the conduct of the petitioner was instrumental to such cruelty. 10. To buttress his contention, Mr. Bhowmik, learned senior counsel for the petitioner has referred a decision of Patna High Court in Rajesh Kumar Singh & Ors. Vs. State of Bihar & Anr. (www.indiankanoon.org/doc/193873931). In Rajesh Kr. 10. To buttress his contention, Mr. Bhowmik, learned senior counsel for the petitioner has referred a decision of Patna High Court in Rajesh Kumar Singh & Ors. Vs. State of Bihar & Anr. (www.indiankanoon.org/doc/193873931). In Rajesh Kr. Singh (supra) the Patna High Court held that the relation, even if the illicit relation constitute cruelty within the meaning of 498A of the IPC but that can be used against the husband who indulged in the extra marital relation but the same cannot be used against the other person even on the allegation that the other person has cooperated or aided the said extra marital relation. Mr. Bhowmik, learned senior counsel has referred a decision of the Apex Court in Girdhar Shankar Tawade, as reported in 2002 (5) SCC 177 where the Apex Court held as under: 18. A feint attempt has been made during the course of submissions that Explanation(a) to the section stands attracted and as such, no fault can be attributed to the judgment. This, in our view, is a wholly fallacious approach to the matter by reason of the specific finding of the trial Court and the High Court concurred therewith that the death unfortunately was an accidental death and not suicide. If suicide is left out, then in that event question of applicability of Explanation (a) would not arise - neither the second limb to cause injury and danger to life or limb or health would be attracted. In any event the wilful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498-A and not dehors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under Section 498-A. The legislative intent is clear enough to indicate in particular reference to Explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of Explanation (b). The letters by themselves though may depict a reprehensible conduct, would not, however, bring home the charge of Section 498-A against the accused. The letters by themselves though may depict a reprehensible conduct, would not, however, bring home the charge of Section 498-A against the accused. Acquittal of a charge under Section 306, as noticed hereinbefore, though not by itself a ground for acquittal under Section 498-A, but some cogent evidence is required to bring home the charge of Section 498-A as well, without which the charge cannot be said to be maintained. Presently, we have no such evidence available on record. 11. Finally, Mr. Bhowmik, learned senior counsel has referred a decision in U. Swetha Vs. State By Inspector of Police & Anr. as reported in 2009 (6) SCC 757. The Apex Court held therein in categorical terms as under: 9. The word "cruelty" having been defined in terms of the aforesaid Explanation, no other meaning can be attributed thereto. Living with another woman may be an act of cruelty on the part of the husband for the purpose of judicial separation or dissolution of marriage but the same, in our opinion, would not attract the wrath of Section 498-A of the Penal Code". An offence in terms of the said provision is committed by the persons specified therein. They have to be the "husband" or his "relative". Either the husband of the woman or his relative must have subjected her to cruelty within the aforementioned provision. If the appellant had not (sic) been instigating the husband of the first informant to torture her, as has been noticed by the High Court, the husband would be committing some offence punishable under the other provisions of the Penal Code and the appellant may be held guilty for abetment of commission of such an offence but not an offence under Section 498-A of the Penal Code. 12. From the other side, Mr. P. Bhattacharjee, learned Addl. Public Prosecutor appearing for the State submitted that there is material to show that the petitioner had been instigating to torture the deceased and as such it can be stated since the petitioner is related to the husband of the deceased she can be brought within the sweep of Section 498-A or Section 304B, IPC. No doubt a little difference in fact has been pointed out by Mr. Bhattacharjee, learned Addl. P.P appearing for the State. No doubt a little difference in fact has been pointed out by Mr. Bhattacharjee, learned Addl. P.P appearing for the State. But the question which has occupied the paramountcy in this case is that whether there is any evidence even if the materials as regards "instigation" are believed by the Court. A close scrutiny of the statements made by a set of witnesses that the deceased stated them that the petitioner used to instigate her husband to torture her, but from the close scrutiny of the materials those are made part of the charge sheet, it would reveal that nowhere it has been disclosed that how the deceased came to know of such instigation. Not a single instance has been provided by any of the witnesses who made statement to the Investigating Officer. It appears to this Court that either this part of the statement was the assumption of the deceased which was related or that was a creation after deliberation amongst the witnesses as in the complaint there is no allegation against the petitioner. This Court does not find any material even a whisper against the petitioner for commission of the offence as alleged. It is not an exercise to appreciate evidence but to scrutinize the materials to find out whether the petitioner should be compelled for substantial ends of justice to face the trial or not or whether a prima facie case has really been made out by the materials available in the charge sheet. 13. In view of decision as rendered by the Supreme Court in U. Savetha(supra) this Court has no hesitation to hold that the petitioner, neither can prima facie be held to have committed an offence under Section 498-A or under Section 304(B) of the IPC nor there are materials revealing any premeditated action where the petitioner had a role. Justice is not only for the complainant or the person affected by the offence, justice shall also ensure that a person is not unnecessarily compelled to undergo the trial. It is well settled by the Apex Court in Shakson Belthissor Vs. State of Kerala & Anr., as reported in (2010) 1 SCC (Cri.) 1412, where it is held that: It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. It is well settled by the Apex Court in Shakson Belthissor Vs. State of Kerala & Anr., as reported in (2010) 1 SCC (Cri.) 1412, where it is held that: It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint. It is crystal clear that neither in the complaint nor in the charge sheet there is any ingredient of the projected offences against the petitioner under Section 498A/304B of the IPC. Thus the charge sheet against the petitioner is wholly untenable. As such the charge sheet so far and to the extent it relates the petitioner, is liable to be quashed in exercise of the powers under Section 482 of the Cr.P.C. However, it is made clear that the observations made herein shall have no relevance in the trial nor will the observations have anything to do with any decision expected to be taken by the trial Court. 14. For the reasons as discussed, this petition stands allowed. Interim order, if any, passed earlier shall stand vacated. Send down the LCRs forthwith. Petition allowed.