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2012 DIGILAW 159 (GAU)

Paritosh Saha v. State of Tripura

2012-02-06

C.R.SARMA

body2012
JUDGMENT Hon'ble Mr. Justice C.R. Sarma 1. This appeal is directed against the Judgment & Order, dated 13.01.2005, passed by the learned Sessions Judge, West Tripura, Agartala in Sessions Case No. S.T. (WT/A) 61 of 2001. 2. By the impugned Judgment & Order, the learned Sessions Judge convicted the appellant under Section 498-A and 306 of the Indian Penal Code (herein after called the IPC) and sentenced him to suffer rigorous imprisonment for 10 years and pay a fine of Rs. 5,000/- in default suffer further period of rigorous imprisonment for 2 months for his conviction under Section 306 IPC. No sentence was awarded for the conviction under Section 498-A IPC. 3. Aggrieved by the said conviction and sentence, the appellant has come up with this appeal. 4. I have heard Mr. H. Debnath, learned counsel, appearing for the appellant and Mr. R.C. Debnath, learned Special P.P., appearing for the State respondent. 5. The prosecution case, in brief, may be stated as follows :- Smt. Rina Saha (herein after called the deceased), daughter of the informant was given in marriage with the appellant in 1995. After her marriage, the deceased used to stay in her marital home. During her stay in her marital home, her husband i.e. the appellant used to torture her demanding her to bring money from her parents for the purpose of construction of a house. Accordingly, the mother (P.W. 7) of the victim paid an amount of Rs. 41,000/- with further promise to pay another amount of Rs. 5,000/-, which amount she could not pay due to death of her son. About 4/5 days, prior to the date of incident, the deceased visited her mother (P.W. 7) and informed that the appellant tortured her demanding further amount. On the evening of the date of occurrence, the brother of the appellant had informed the P.W. 7 that the deceased was admitted in the hospital. Accordingly, she rushed to the hospital and came to know that her said daughter had hanged herself for committing suicide. The deceased, who was admitted in the hospital on 28.07.2000, breathed her last on 06.08.2000. On 12.08.2000, the informant i.e. the mother of the deceased (P.W. 7) lodged an F.I.R with the police alleging that her husband i.e. the appellant tortured the deceased in connection with the demand of dowry and, thus, she was compelled to commit suicide. 6. The deceased, who was admitted in the hospital on 28.07.2000, breathed her last on 06.08.2000. On 12.08.2000, the informant i.e. the mother of the deceased (P.W. 7) lodged an F.I.R with the police alleging that her husband i.e. the appellant tortured the deceased in connection with the demand of dowry and, thus, she was compelled to commit suicide. 6. On receipt of the said F.I.R, police registered a case under Section 498-A/306 IPC and launched investigation into the matter. 7. The case being committed to the Court of Sessions, the learned Sessions Judge framed charges under Section 498-A and 306 IPC. The charges was 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 10 witnesses including the Medical Officer (P.W. 6), who performed the autopsy and the Investigating Officer (P.W. 10). 9. At the close of the evidence for the prosecution, the accused person was examined under Section 313 Cr.P.C. He denied the allegations, brought against him and declined to adduce defence evidence. 10. Considering the evidence on record, learned Trial Judge convicted and sentenced the appellant as indicated above. 11. Mr. H. Debnath, learned counsel, appearing for the appellant, taking this Court through the evidence on record, has submitted that there is no substantive evidence regarding demand of dowry and the torture meted out to the deceased, in connection with the said demand. It is also submitted that there is material contradiction in the evidence of P.W. 7 and P.W. 9 i.e. the mother and the brother respectively of the deceased regarding the amount of dowry paid to the appellant and that this contradiction belies the prosecution version. The learned counsel has also contended that there is no substantive evidence to show that the appellant had either abated or instigated the deceased in any manner to commit suicide. In view of the above, it is submitted that the learned Trial Judge committed error by convicting and sentencing the appellant. The learned counsel has also submitted that this is a fit case requiring interference with the impugned conviction and the sentence. 12. Mr. In view of the above, it is submitted that the learned Trial Judge committed error by convicting and sentencing the appellant. The learned counsel has also submitted that this is a fit case requiring interference with the impugned conviction and the sentence. 12. Mr. R.C. Debnath, learned Special P.P. supporting the conviction and sentence has submitted that, in a case involving torture in connection with dowry, it is hardly possible to find independent evidence and in such a case, the close relatives, including the parents, brothers and sisters are the most reliable and natural witnesses. The learned counsel has also submitted that the minor discrepancy regarding the amount of dowry, already paid to the petitioner, as found in the evidence of P.W. Nos. 7 and 9, cannot be fatal for the prosecution. The learned counsel has also submitted that the mother and the brother aforesaid of the deceased, who were the most natural witnesses clearly stated that the deceased had disclosed to them that she was treated with cruelty in connection with demand of dowry and that her inability to meet further demand of dowry coupled with the continued torture left the deceased with no other option accept to leave this World by committing suicide. It is also contended by the learned Special P.P. that as the deceased committed suicide within 7 years of her marriage, the presumption under Section 113A of the Indian Evidence Act, 1872 would be attracted. 13. In view of the above, the learned Special P.P. has submitted that the prosecution could establish, beyond all reasonable doubt, that the deceased was treated with cruelty in connection with demand of dowry soon before her unnatural death and that she was abated to commit suicide. The learned Special P.P. has also submitted that considering entire facts and circumstances of the case, no interference, with the impugned conviction and sentence is required. 14. Having heard the learned counsel, appearing for both the parties and considering the evidence on record, it is found that the deceased was married by the appellant in 1995 and she used to live in her marital home till her death. She, during the period of seven years of her marriage hanging herself and she died, on 06.08.2000. 15. Dr. Having heard the learned counsel, appearing for both the parties and considering the evidence on record, it is found that the deceased was married by the appellant in 1995 and she used to live in her marital home till her death. She, during the period of seven years of her marriage hanging herself and she died, on 06.08.2000. 15. Dr. Ranjit Kumar Das, who conducted post mortem examination, in respect of the dead body of the deceased, stated that the death of the deceased was caused due to cerebral anoxia consequent upon hanging. He has exhibited the post mortem report as Exhibit 3 and his signature thereon as Exhibit 3(1). In his cross-examination, he stated that the deceased was admitted in the hospital 6 to 8 days prior to her death. Though the defence cross-examined the said Medical Officer, no contradiction or discrepancy could be elicited to render his evidence dis-believable. 16. From the above evidence, it has been clearly established that the deceased died due to hanging. Therefore, there is no dispute that the deceased met with unnatural death within the period of 7 (seven) years from the date of her marriage. 17. The learned counsel, appearing for the appellant submitted that there is inordinate and unexplained delay in lodging the F.I.R and that this delay is fatal for the prosecution story. 18. The appellant hanged herself on 28.07.2000 in the afternoon at her residence and she was shifted to the hospital. She died on 06.08.2000 i.e. after about 6 days from the date of her death and 11 days after the hanging. Law is well settled that first information, regarding commission of an offence, is required to be lodged, immediately after the occurrence, without undue delay. However, if the delay is properly explained, the same cannot be ground to throw the prosecution case. In the FIR itself, the informant stated that the delay was caused due to her illness. In her cross-examination, the informant, deposing as P.W. 7, stated that she could lodge the FIR, 6 days after the death of her daughter because, she had fallen sick during the said period and that her son and daughter died. There is no dispute that the informant lost her one son, namely, Ranjit Saha also. In her cross-examination, the informant, deposing as P.W. 7, stated that she could lodge the FIR, 6 days after the death of her daughter because, she had fallen sick during the said period and that her son and daughter died. There is no dispute that the informant lost her one son, namely, Ranjit Saha also. She in her evidence clearly stated that she could not pay the amount of Rs.5,000/-, as assured, to the appellant due to death of her son. Therefore, the mental condition of the appellant, who lost her son as well as daughter, in the said circumstances, cannot be ignored. P.W. 7 further stated that, during her lifetime, the deceased was undergoing treatment in the hospital and as such, she did not lodge any complaint against the appellant with the hope that her daughter would survive. It was quite natural, on part of the mother of the deceased to expect and hope that her daughter, after her recovery, would be able to again lead family life with her husband. Had her daughter survived, lodging of the F.I.R, would have negated the prospect of reunion of the said couple. Therefore, considering entire facts and circumstances of this case, I find the explanation, given by the informant, regarding the delay in lodging the FIR, quite reasonable and acceptable. In my considered opinion, the said delay, in the attending facts and circumstances of this case, is not fatal for the prosecution. 19. Referring to the evidence of P.W. 1 and P.W. 2, who were independent witnesses, being neighbours, the learned counsel, appearing for the appellant stated that both the said witnesses stated that the relation between the said couple was cordial and as such, there was no question of torture in connection with dowry. The learned counsel has also referred to the evidence of P.W. 5, who was the former landlord of the appellant. The said landlord also stated that, during their stay in his house, he never noticed anything, abnormal, between the said couple. The failure of the P.W. 1, 2 and 5 to notice anything abnormal in the relationship of the said couple cannot be sufficient ground to negate the forceful evidence by her mother (P.W. 7) and the brother (P.W. 9). In normal course, such type of torture, incident etc. take place within the four walls of the house of the couple. The failure of the P.W. 1, 2 and 5 to notice anything abnormal in the relationship of the said couple cannot be sufficient ground to negate the forceful evidence by her mother (P.W. 7) and the brother (P.W. 9). In normal course, such type of torture, incident etc. take place within the four walls of the house of the couple. Therefore, failure of the said neighbours to notice anything relating to torture etc. does not negate the prosecution version. P.W. 3 and P.W. 4 are the formal official witnesses. The investigating officer has been examined as P.W. 10. From the cross-examination of the Investigating Officer, no material contradiction or discrepancy could be elicited in respect of the evidence of the prosecution witnesses. 20. Smt. Aruna Bala Saha, mother of the deceased, deposing as P.W. 7 stated that after the marriage of her deceased daughter, the appellant started torturing her in connection with demand of dowry. She clearly stated that her daughter was assaulted compelling her to bring money from her mother. According to P.W. 7, she paid Rs. 41,000/- in three instalments and promised to pay another amount of Rs. 5,000/-, but, she could not pay the last amount due to death of her son. This witness stated that, her daughter, during her visit, reported that she was tortured by the appellant in connection with demand of dowry. She clearly stated that, 4 to 5 days prior to the incident i.e. the hanging by the deceased, she came to her and told that she would be assaulted, if the demand for dowry was not fulfilled. P.W. 7 also stated that, in the evening of the incident, she came to know that her daughter had hanged herself. As the deceased was taken to the hospital, she (P.W. 7) also rushed to the hospital. This witness was duly cross-examined on behalf of the defence. She denied the suggestion that no dowry was paid to the appellant. From the cross-examination of this witness, no contradiction or discrepancy could be elicited to demolish her evidence regarding torture and demand of dowry. From her evidence, it is found that 4 to 5 days prior to the occurrence also, the deceased had informed her regarding the torture in connection with demand of dowry. From the cross-examination of this witness, no contradiction or discrepancy could be elicited to demolish her evidence regarding torture and demand of dowry. From her evidence, it is found that 4 to 5 days prior to the occurrence also, the deceased had informed her regarding the torture in connection with demand of dowry. Therefore, from the evidence of P.W. 7, it transpires that the deceased was tortured by her husband soon before committing suicide and that the torture, meted out to her, made her life unbearable, compelling her to leave this World by committing suicide. 21. P.W. 9 is the brother of the deceased. Supporting the evidence of his mother (P.W. 7), this witness also stated that the appellant used to torture the deceased demanding dowry and that the P.W. 7 had paid an amount of Rs.46,000/- as dowry. He further stated that two days prior to her committing suicide, the deceased had approached her mother in connection with money but their mother failed to pay money, as demanded. He stated that, as the deceased failed to take money from her mother, the appellant had tortured her, consequent upon which, she had committed suicide. This witness was also cross-examined on behalf of the appellant. He denied the suggestion that the deceased was not tortured by the appellant and that she did not commit suicide to get rid of the torture at the hands of the appellant. From the cross-examination of this witness, no major contradiction could be elicited to render his evidence dis-believable. 22. Though there is discrepancy in the evidence of P.W. 7 and P.W. 9 regarding the amount paid to the appellant, P.W. 7 stated that she paid an amount of Rs. 41,000/- to the appellant as dowry. The P.W. 9 stated that Rs. 46,000/- was paid. Of course, P.W. 7 stated that Rs. 41,000/- was already paid and that she promised to pay another amount of Rs. 5,000/-. The paid amount and the promised amount comes to Rs. 46,000/-. In view of the above, in my considered opinion, the said discrepancy being a minor one is not fatal for the prosecution. 23. 46,000/- was paid. Of course, P.W. 7 stated that Rs. 41,000/- was already paid and that she promised to pay another amount of Rs. 5,000/-. The paid amount and the promised amount comes to Rs. 46,000/-. In view of the above, in my considered opinion, the said discrepancy being a minor one is not fatal for the prosecution. 23. A careful reading of the evidence of the P.W. 7 and P.W. 9, who being the mother and the brother of the deceased, were the most natural witnesses, it is found that the appellant used to torture and harass the deceased in connection with demand of dowry. There is nothing, on record, to show that there was any other circumstance or reason, except the torture and demand of dowry, which led the deceased to commit suicide. As the deceased had hanged herself following torture in connection with demand of dowry, made by her husband, there is no difficulty in understanding that she was subjected to cruelty driving her to commit suicide. Therefore, it is found that the appellant, who was her husband, committed the offence under Section 498A. 24. Admittedly, the deceased hanged herself within a period of 7 years from the date of her marriage with the appellant and she died of unnatural death within the said statutory period. Section 113A provides the provision regarding presumption as to abatement of suicide by a married woman. The said provision reads as follows :- 113A. Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. 25. Considering the evidence on record, more particularly, evidence of P.W. 7 and P.W. 9 and the circumstances leading to the death of the deceased, it is found to be established that the deceased was subjected to cruelty in connection with demand of dowry. 25. Considering the evidence on record, more particularly, evidence of P.W. 7 and P.W. 9 and the circumstances leading to the death of the deceased, it is found to be established that the deceased was subjected to cruelty in connection with demand of dowry. It has also been established that the deceased, who was subjected to torture, in connection with demand of dowry, hanged herself, as a result of which, she died. Therefore, under the provision of Section 113A, it can be safely presumed that the appellant, who was her husband abated her to commit suicide, by torturing her in connection with the demand of dowry. 26. In the light of the above discussion, I am inclined to hold that the learned Trial Judge committed no error by recording the conviction under Section 498A and 306 IPC and thereby sentencing the appellant for his conviction under Section 306 IPC. 27. The maximum punishment for an offence under Section 306 IPC is 10 years and fine. The learned Sessions Judge has sentenced the appellant with the said maximum punishment, prescribed by the statute. There is nothing, on record, to show that the deceased was either physically tortured or directly instigated to commit suicide. Appellant's greed for money was the reason which caused the death of the deceased. From the record, it is found that whenever money was demanded, the deceased approached her mother and her mother had paid her in total Rs. 41,000/- in three different instalments. From the evidence of P.W. 7, it is found that she could not pay the last instalment i.e. Rs. 5,000/- as promised by her. This has been corroborated by P.W. 9, who stated that his mother failed to give money to the deceased during her last visit. Probably, failing to take money from her mother, she lost all her hope for survival and took the path of committing suicide. The age of the appellant, as stated in his statement, made under Section 313 Cr.P.C., was 37 years in 2004. Therefore, considering entire aspect of the matter and the facts and circumstances of this case, I am of the opinion that a lenient view regarding sentence should be taken. 28. In my considered opinion, sentence of 3 (three) years will meet the ends of justice. 29. Accordingly, I modify the sentence requiring the appellant to suffer rigorous imprisonment for 3 years instead of 10 years. 28. In my considered opinion, sentence of 3 (three) years will meet the ends of justice. 29. Accordingly, I modify the sentence requiring the appellant to suffer rigorous imprisonment for 3 years instead of 10 years. No interference is made in respect of the sentence with regard to fine amount. 30. With the above modification with regard to the sentence, this appeal is partly, allowed. 31. Return the L.C.R.