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Gauhati High Court · body

2012 DIGILAW 264 (GAU)

Prahallad Biswas and Ors. v. State of Tripura

2012-02-24

S.R.SEN

body2012
1. The instant criminal appeal is directed against the impugned judgment and order dated 19.4.2010 passed by the learned Addl. Session Judge, Court No.3, Agartala, West Tripura in Session Trial No.05(WT/A) of 2006 convicting the appellants under sections 498A/306 read with 34, IPC. 2. Heard Mr. S. Kar Bhowmik, learned Counsel appeared for the appellants as well as the learned State Counsel, Mr. R.C. Debnath. P.P., appeared for and on behalf of the State. 3. Learned counsel/Mr. S. Kar Bhowmik, appearing for and on behalf of the appellants/accused submitted that in the instant case, the learned Court below had overlooked to the evidence recorded by the trial court. He also, further, submitted that the learned court below failed to appreciate the evidence in its proper context. The learned counsel, further, submitted that on perusal of the evidence in its totality, the ingredients of sections 306, 498A, 34, IPC do not come in operation. Learned court below very mechanically passed the conviction without considering the inconsistency of the prosecution evidence. Learned counsel also further submitted that the appellant No.1, Mr. Prahallad Biswas, is in jail for more than two years and he is still in jail; therefore, he prayed that the appeal may be allowed and the impugned judgment dated 19.4.2010 may be quashed and set aside. In support of his submission, Mr. S. Kar Bhowmik, the learned counsel for the appellants relied upon (1) the Dictionary meaning of the word "instigation" as explained in Oxford Advanced Learner's Dictionary, New, 7th edn.; (2) the judgments as reported in 1971 Crl. LJ 1484 (Delhi High Court) in the case of Madan M. Behl and Anr. v. National Small Scale Industries Corporation; (3) the judgment of Kerala High Court as 2005 Crl. LJ 4322 in the case of Cyriac v. Sub-Inspector of Police, Kaduthuruthy; (4) the decision as in State of Orissa v. Niranjan Mohapatra and Ors., AIR 2005 SCW 891 and the decision of this court Gautam Saha v. State of Assam, (2006) 1 GLR 727. 4. On the other hand, learned counsel for the State, Mr. R.C. Debnath, P.P. appearing for and on behalf of the State, in support of the impugned judgment dated 19.4.2010, submitted that in this instant case altogether 17 witnesses were examined along with two independent witnesses. 4. On the other hand, learned counsel for the State, Mr. R.C. Debnath, P.P. appearing for and on behalf of the State, in support of the impugned judgment dated 19.4.2010, submitted that in this instant case altogether 17 witnesses were examined along with two independent witnesses. He, further, submitted that from the evidence of PWs 1 to 5, 6, 7, 8, 9 and 11, it is amply cleared that the accused persons had Committed the crime and prosecution succeeded to establish the charges. He also further, submitted that section 113A of the Indian Evidence Act, 1872 makes the provisions for presumption and that also should be considered and, therefore, he pleaded that the instant appeal may be dismissed. 5. In counter reply, learned counsel for the appellants, Mr. S. Kar Bhowmik, further submitted that section 113A has been taken care when prosecution has reverted through cross-examination. 6. After hearing the submissions forwarded by the learned counsel of both sides, the crux issue remained before this court is: (i) as to whether the learned court below has correctly appreciated the evidence or not; and (ii) whether prosecution evidence has succeeded to establish the charges levelled against the accused persons. 7. The facts of the case in nut shell are that, on 19.8.2004 at about 1215 hours, an FIR was received from one Smt. Mira Karmakar by the Women Police Station, Agartala. The said FIR discloses that the victim, Smt. Swapna Karmakar, who is the sister-in-law of the informant, was married with Prahllad Biswas of South Chandrapur during the end of month of Shraban 1410 B.S, according to Hindi Rites and Customs. During the marriage, for the bridegroom party, cash, golden ornaments and other articles were given. However, due to financial constraints, TV and golden chain of the bridegroom could not be given. For this reason, few days after the marriage, Shri Prahllad Biswas along with his two sisters, namely Manashi Biswas and Saraswati Biswas (Sarkar), started torturing Smt. Swapna Karmakar physically and mentally. This compels Smt. Swapna Karmakar to go her parental house and stayed there. On 19.8.2004, in the early morning, they got the information that Swapna Karmakar was hospitalized at G.B.P. Hospital, Agartala being fallen ill. Reaching the Hospital they learnt that Smt. Swapna Karmakar had already expired. 8. This compels Smt. Swapna Karmakar to go her parental house and stayed there. On 19.8.2004, in the early morning, they got the information that Swapna Karmakar was hospitalized at G.B.P. Hospital, Agartala being fallen ill. Reaching the Hospital they learnt that Smt. Swapna Karmakar had already expired. 8. From the records, it appears that on the basis of the said FIR, a case was registered as P.S. Case No.45 of 2004 and after investigation, case was charge sheeted under sections 498A, 304B read with 34, IPC. From the records, it appears that, in the course of the trial, prosecution examined as many as 17 witnesses to establish the charges and also exhibited 8 number of documents and two material evidences. On conclusion prosecution evidence, two defence witnesses were also examined as DW1 and DW2. 9. From the deposition of the PW1, the informant/complainant in the instant case, it is understood and appears that Swapna Karmakar ('the victim') was her sister-in-law, who got married with the appellant No. 1, Shri Prahllad Biswas, on 2.8.2003. It appears that at the time of marriage, victim's family paid Rs.20,000 (Rupees twenty thousand) in cash, some golden ornaments and other household articles as demanded by the appellants' family members. It is also apparent that appellants demanded T.V. and golden chain, but due to financial constraint, family of the deceased/victim could not provide the same. 10. After a month of the marriage, appellants 1,2 and 3 started torture upon the victim for insufficient dowry and pressurized her for more cash and when the victim's family could not meet their demands, torture increased upon the victim mentally and physically. It is also apparent that the deceased, during her life time, had narrated the torture suffered by her in her in-laws' house. Said PW1 also proved the FIR as Exbt.P-1 as well as Inquest report, Exbt.P-2 and seizure list as Exbt.P-3, and further deposed that Swapna Karmakar, the victim, died due to unbearable torture caused to her. 11. On careful reading of the cross-examination, I could not find or satisfy myself that cross-examination has demolished the examination in chief. Otherwise, it will not be wrong to say that there is no rebuttal noticed in the cross-examination. 12. From the deposition of PW2, it appears that his deposition corroborates the deposition given by PW1 and his deposition is consistent. 13. Otherwise, it will not be wrong to say that there is no rebuttal noticed in the cross-examination. 12. From the deposition of PW2, it appears that his deposition corroborates the deposition given by PW1 and his deposition is consistent. 13. From the records, it appears that PW3 and PW4 have been tendered by the prosecution without examination. Hence, the scope of scrutiny of their evidence is not possible. From the evidence of PW5, it further appears that the victim's brother paid Rs.20,000 in cash, golden ornaments and other household articles at the time of marriage of the victim; however, they could not provide TV and golden chain as demanded by the appellant No.1. From her deposition, it appears that after one month of the marriage, appellants started torturing the victim and demanded TV and golden chain and PW5 advised the appellants on several occasions not to torture the victim. From his deposition also, it appears that a meeting was held on the issue of torture upon the victim in their neighbour house (Manindra Debnath's house) and in that meeting Litan Debnath, Pijush Roy, Arun Singh, PW5 himself, Malati Debnath and some other neighbours were present. In the said meeting, it appears that appellant No.1 assured the members of the assembly that he will not torture further upon the victim; but he continued the said torture as a result of which finally the victim died on 19.8.2004 at G.B. Hospital, Agartala due to suicide on 18.8.2004. When he went to the house of the victim after hearing hue and cry, he found the victim lying fallen on the ground and he has been informed by the appellant that she; the victim, consumed poison. On careful perusal of the cross-examination there is no rebuttal notice. Hence, I find the deposition of PW5 also consistent. 14. PW6 is the mother of the victim. From her (deposition, it appears that the victim committed suicide by taking poison and she reiterated that an amount of Rs.20,000, some golden ornaments and other household articles were given at the time of marriage but could not give the golden chain and TV as demanded by the appellant No.1. From her deposition, it appears that whenever the victim is to come to her parental house, she has described the inhuman torture suffered by her for dowry. From her deposition, it appears that whenever the victim is to come to her parental house, she has described the inhuman torture suffered by her for dowry. From her deposition, it further clears about the meeting on the issue of torture upon the victim held in the house of Litan Debnath, who is the son of Manindra Debnath, a neighbour. She was also present in that meeting held on the issue of torture to her daughter, the victim, along with others, like Arun Singh, Pijush Roy, Sushil, Litan Debnath, Sudip, Dipankar, Mira, etc. and in the said meeting appellant No.1 assured the assembly that, he will not torture any further upon the victim and took her to his own house. On the faithful day in the morning, brother in-law of the appellant No.1 informed that the victim is sick and she has been taken to Hospital and requested them to go to the Hospital to see her and when the relatives of the victim reached the Hospital, they came to know that, the victim, Smt. Swapna Karmakar, committed suicide by consuming poison. On careful perusal of the deposition of PW6, no rebuttal is noticed and I find the evidence given by PW6 is consistent. 15. On careful perusal of the deposition of PW7,1 find that the evidence is consistent and corroborated the evidence given by other witnesses, which have already been discussed in my foregoing discussions. 16. PW8 has tendered by the prosecution, cross declined. Similarly, on careful reading of the deposition of PW9, I find the evidence witness consistent and corroborates the evidence given by other witnesses as already discussed above. 17. PW10 is a Police Officer, whose deposition pertains to escorting the death body to G.B. Morgue and after post mortem he handed over the dead body to her relatives and collected viscera from the Medical Officer, who conducted the post mortem examination and handed over to the Police Station, which was seized and he signed the seizure list as producer of the same. Cross declined. 18. PW11 is the Doctor, who conducted the post mortem. Cross declined. 18. PW11 is the Doctor, who conducted the post mortem. From his deposition, it appears that he conducted the post mortem in connection with Women P.S. Case No.44 of 2004 and on examination of her dead body, he found (1) multiple bruice in the front side of both lower limbs from knee to ankle joint: (2) multiple bruice on the middle and lower part of the back. Both the injuries were healed and caused on different times. He also preserved viscera for chemical analysis and prepared the post mortem report along with another Doctor, Dr. Jayanta Sankar Chakraborty and proved the post mortem report as Exbt.P.4 and his signature as Exbt.P.4/1. After perusal of the viscera report, he gave his final report for the cause of the death, which according to him is due to insecticide poisoning and proved the final report as Exbt.P-5 and his signature as Exbt.P.5/1 and further confirmed that all the injuries found are ante mortem in nature. In the cross-examination, no rebuttal is noticed. 19. PW12, the witness is tendered by prosecution and cross, declined. Similarly, PW13, the another doctor, simply proved his signature on the report as Exbt.P.4/2. Cross declined. 20. From the deposition of PW14, it appears that on 19.8.2004, he had sent the requisition to the O.C., G.B. Hospital for holding P.M. examination on the dead body of the victim, Swapna Biswas (Karmakar), who was admitted on 18.8.2004 and expired on 19.8.2004 and she was admitted to the Hospital with the history of ingestion of organo phosphorus poison and proved the articles as Exbt.P.6 and P.6/1 is his signature. No rebuttal seen in the cross-examination. 21. From the deposition of PW15, a Police Officer, it appears that she had conducted the Inquest and prepared the report and sent the dead body for post mortem to Dr. BEAM Hospital. From the deposition of PW16, who is also a Police Officer, it appears that she had simply registered the case on the basis of the FIR as Women P.S. Case No.45 of 2004 under section 498(A)/304(B)/34, IPC. Thereafter, Deputy S.P. N. Debnath took up the case for investigation. Cross declined. From the deposition of the I.O. PW17, after completion of the investigation, he submitted the charge sheet under section 498(A)/304(B)/34, IPC against the appellants. 22. Thereafter, Deputy S.P. N. Debnath took up the case for investigation. Cross declined. From the deposition of the I.O. PW17, after completion of the investigation, he submitted the charge sheet under section 498(A)/304(B)/34, IPC against the appellants. 22. Now, on careful reading and on scrutiny of the prosecution evidence, as discussed above in my foregoing discussions, I find that prosecution evidence is consistent and cross-examination failed to demolish the prosecution evidence in examination in chief. Therefore, I do not find any reason to disbelieve or discard the prosecution evidence on record. 23. Now, before further proceeding, let me examine the evidence adduced by the defence witnesses. After careful reading of the deposition of DW1 and DW2, I do not find any satisfactory reason to note that defence witnesses have succeeded to demolish the prosecution evidences. Therefore, after analysis of the evidence and scanning both the prosecution and defence evidences, as discussed above, I do not find any reason to record that the learned Addl. Sessions Judge has failed to appreciate the evidence in its proper context. Rather, it will not be wrong on my part to say that the learned Addl. Sessions Judge has rightly appreciated the evidence and came to the conclusion. "Abetment" has been defined in section 107, IPC as reproduced hereunder : "107. Abetment of a thing - A person abets the doing of a thing, who -First - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. - Aperson who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act." 24. Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act." 24. After scanning the depositions as discussed above, I am of the further considered view that the acts and deeds of the appellants have (prompted or instigated the victim, Smt. Swapna Biswas (Karmakar), to commit suicide as prosecution evidence has established the demand of dowry and torture by the appellants, which subsequently forced Smt. Swapna Biswas (Karmakar), the victim, to commit suicide. As because presumption is available under section 113(A) of the Indian Evidence Act, 1872, the same is reproduced below : "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. Explanation - For the purposes of this section, "cruelty" shall have the same meaning ns in section 498A of the Indian Penal Code." 25. In this instant case, it is cleared from the evidence that there was a demand of 'dowry' and subsequent torture, which resulted to commit suicide by the victim, Smt. Swapna Biswas (Karmakar). It is also evident that the victim committed suicide within one year 17 days of her marriage. Therefore, I do not find any reason that the learned Court below has sentenced the appellants under section 498A, 306 read with section 34, IPC without any cause. Therefore, I do not find any reason to interfere with the impugned judgment dated 19.4.2010 passed by the learned Addl. Sessions Judge, Court; No.3, West Tripura, Agartala. Hence, the said judgment is upheld and the instant appeal stands dismissed. 26. Before parting with the case record, I have also note that, the documents/judgments relied upon by the appellants' counsel are not applicable in the facts and circumstances of this case. 27. Sessions Judge, Court; No.3, West Tripura, Agartala. Hence, the said judgment is upheld and the instant appeal stands dismissed. 26. Before parting with the case record, I have also note that, the documents/judgments relied upon by the appellants' counsel are not applicable in the facts and circumstances of this case. 27. Accordingly, accused, who are on bail, have to surrender before the concerned Court and they have to serve the remaining sentence as decided by the learned Addl. Sessions Judge in the judgment dated 19.4.2010 passed in Sessions Trial Case No.05(WT/A) of 2006. With this finding, the instant appeal stands disposed of. 28. Registry is directed to return the lower court records immediately along with the copy of this judgment and order. _____________