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2012 DIGILAW 842 (GAU)

Dulal Debnath v. State of Tripura

2012-07-19

SWAPAN CHANDRA DAS

body2012
JUDGMENT S.C. Das, J. 1. The appellant was found guilty of committing offence punishable under Sections 436 and 498-A of I.P.C., by learned Additional Sessions Judge, Belonia, South Tripura in Sessions trial No. S.T. 1(ST/B)2006 and he was sentenced to suffer RI for 6 (six) years and to pay a fine of Rs. 25,000/-(Rupees twenty five thousand) in default to suffer SI for 1 (one) year under Section 436 and again to suffer RI for 2(two) years for commission of offence punishable under Section 498-A of I.P.C. and directed that the sentences shall run concurrently. Fact of the case may be summarized thus: Marriage between Sabita Debnath PW. 1 and the accused appellant Dulal Debnath, was solemnized as per Hindu rites and thereafter, they lived and cohabited as husband and wife in the house of the accused at Satmura, under Police Station-Belonia and a male child was born out of their wedlock after 4 (four) years of marriage. The accused used to inflict torture, both physically and mentally on Sabita in the matrimonial home and to purchase peace her parents (PWs. 2 and 4) after selling their property at Manubazar gave Rs. 35,000/- (Rupees thirty five thousand) to the accused. Because of torture of the accused Sabita left her husband's house and took shelter in her parents' house in the year 2004 but after about 6/7 months she went back to her husband's house at the instance of her husband and husband's brother-in-law but soon thereafter, the accused again started torture on her and she therefore, left her husband's house and took shelter in her parents' house at Santirbazar. Her parents were living in the house of her maternal uncle Gopal Debnath at village Mahamuni under Santirbazar PS. Her father belonged to BPL class and had no house or other property and used to depend on the income on cultivating the land of her maternal-uncle, Gopal Debnath as an under rayati. In the month of October, 2005 Sabita took shelter in her parents' house at Mahamuni and on 1st of November at evening time, the accused arrived there in the house of her parents at Mahamuni and demanded Rs. 50,000/- (Rupees fifty thousand) to his wife, Sabita to which Sabita expressed inability and the accused being irritated threatened her in presence of her mother (PW. 50,000/- (Rupees fifty thousand) to his wife, Sabita to which Sabita expressed inability and the accused being irritated threatened her in presence of her mother (PW. 4) that unless the amount is paid he will burn them alive and will set fire to the house where she was residing with her parents. On the following day, in the evening, again the accused arrived in their house and demanded the amount of Rs. 50,000/- to which again Sabita and her mother expressed inability and the accused left their house with the threat that he would burn their house. At about 11.00 PM of the night Sabita woke up on seeing flames in their house and she raised cry, neighbourers came but could not put out the fire and the entire house with all house hold goods, articles and belongings were burnt to ashes. The accused was found by the neighbourers on the bank of pond after the house was set to fire and subsequently, a piece of 'napkin' (Gamcha) and bottle of Kerosene oil were found in bamboo clamps on the bank of pond of the house of the witnesses which were seized by Darogababu. PW. 2 Jagabandhu Debnath lodged the F.I.R., on 03.11.2005, on the basis of which Santirbazar PS case No. 46/2000, under Sections 498-A, 506 and 436 of I.P.C., was registered and on investigation, police submitted charge sheet against the accused Dulal Debnath for commission of offence punishable under Section 498-A, 506 and 436 of I.P.C. Cognizance was taken on the basis of the police report and after completion of the formalities, the case was committed to the Court of Sessions and learned Additional Sessions Judge, Belonia framed charges against the accused for commission of offence punishable under Sections 498-A, 506, 436 of I.P.C. to which the accused pleaded not guilty and claimed to be tried. 2. Prosecution examined 9(nine) witnesses. Out of them, PW. 1 is the wife of the accused and PWs. 2 and 4 are the parents of PW. 1 and out of them PW. 2 lodged the F.I.R. PW. 3 is the maternal-uncle of PW. 1, i.e. the brother of PW4 and brother-in-law of PW. 2, in whose house the parents of Sabita were living. PWs. 5 and 6 are the neighbourers of PWs. 2 and 4. PWs. 7, 8 and 9 are the Police personnel and out of them PW. 2 lodged the F.I.R. PW. 3 is the maternal-uncle of PW. 1, i.e. the brother of PW4 and brother-in-law of PW. 2, in whose house the parents of Sabita were living. PWs. 5 and 6 are the neighbourers of PWs. 2 and 4. PWs. 7, 8 and 9 are the Police personnel and out of them PW. 9 is the I.O. of the case. Accused was examined under Section 313 of Cr.P.C. He declined to adduce any defence evidence. Defence case is nothing but denial of the prosecution's case. At the conclusion of trial, learned Additional Sessions Judge, Belonia found the accused guilt of committing offence punishable under Sections 498-A & 436 of I.P.C. and sentenced him accordingly, as aforesaid. Being aggrieved the accused-appellant-petitioner preferred the present appeal. 3. Heard learned counsel, Mr. S. Sarkar for the appellant and learned Additional Public Prosecutor, Mr. P. Bhattacharjee for the State-respdt. 4. It is submitted by learned counsel, Mr. Sarkar that the F.I.R. which is marked as Exbt. P/1 shows that it was received by the Officer-in-Charge of the PS., on 03.11.2005 at 16.30 hours whereas, the incident occurred at about 11.00 PM of the night in between 2.11.2005 and 03.11.2005. The delay in lodging the F.I.R. is not explained. Further, the F.I.R. was received by the Court of Sub Divisional Judicial Magistrate, Belonia only on 05.11.2005 and there is no explanation from the prosecution as to whether the F.I.R. was on 04.11.2005 or not. On this ground the prosecution case is liable to be disbelieved. Learned Addl. P.P., Mr. Bhattacharjee, has submitted that the fact of the case revealed that only PWs. 1 and 4 were present in the house when the incident occurred and PW. 2 was away at Udaipur. He returned only on 03.11.2005 and thereafter, he lodged the F.I.R. He further submitted that F.I.R. was dispatched from Santirbazar PS., on 03.11.2005 but it was received by the Court of S.D.J.M., on 04.11.2005. He frankly admitted that there is nothing in the record as to where the F.I.R. was on 04.11.2005. This non-explanation itself cannot be a ground to disbelieve the entire prosecution case, if it is found otherwise reliable on the evidence on record. 5. I have considered the submission of learned counsel of both side and gone through the F.I.R. which is marked as Exbt. P/1. This non-explanation itself cannot be a ground to disbelieve the entire prosecution case, if it is found otherwise reliable on the evidence on record. 5. I have considered the submission of learned counsel of both side and gone through the F.I.R. which is marked as Exbt. P/1. It was received by O/C Santirbazar P.S. on 03.11.2005 at 16.30 hours. Evidence on record shows that PW. 2 the informant, was at Udaipur on the night of occurrence and he returned home on the following day and thereafter, he lodged the F.I.R. So, the delay cannot be said to be fatal for the prosecution case. Defence also raised no point in cross-examination that because of this delay there was any embellishment or after-thought in the allegations made against the accused. The prescribed format of F.I.R. shows that it was dispatched from the PS., on 03.11.2005 but it was received by the Court on 05.112005. It was the duty of the prosecution to explain where the F.I.R. was left after it has dispatched on 04.11.2005 but nothing is elucidated on this point. There is also no challenge at the time of cross-examination of the material witnesses regarding the F.I.R. and under such circumstances, I find no reason to through the F.I.R. over board on this ground. 6. The next argument advanced by learned counsel, Mr. Sarkar, is that the charge framed against the accused under Section 498-A of I.P.C. is simply based on omnibus statements of the witnesses and there is nothing in the evidence on record to establish the charge. Learned Addl. P.P., Mr. Bhattacharjee has submitted that PWs. 1, 2 and 4 stated about the physical and mental torture, on demand of money and if they are believed, the judgment & order of conviction and sentence shall sustain. In the F.I.R., lodged by PW. 2, there is no scrap of allegation that Sabita Debnath (PW. 1) was subjected to physical or mental torture by the accused in the matrimonial home on demand of money. It is simply stated in the F.I.R. that after selling all his properties, the informant spent the amount for the marriage of his daughter Sabita (PW. 1) and thereafter also he paid Rs. 35,000/- (Rupees thirty five thousand). No other allegation made in the F.I.R. that PW. 1 was subjected to torture by the accused on demand of dowry or otherwise. 7. 1) and thereafter also he paid Rs. 35,000/- (Rupees thirty five thousand). No other allegation made in the F.I.R. that PW. 1 was subjected to torture by the accused on demand of dowry or otherwise. 7. It is the case of the prosecution that the incident occurred after 11 years of marriage of PW. 1 Sabita with the accused. In her deposition, PW. 1 stated that after one year of marriage her husband and her father and mother-in-laws started physical and mental torture on her. They demanded money. After 4(four) years of the marriage she gave birth of a son. In the year 2004, her husband driven her out, as the demand of money was not fulfilled and then her father paid Rs. 35,000/- to the accused husband. Thereafter, she resided in her husband's house but after few days, her husband again demanded money and when it was not fulfilled she was tortured again. In the last part of 2004, her husband had taken her back to his house. Thereafter, she stayed for 6/7 months. On 28th October, 2005, she again left the house of the accused and took shelter in her parent's house since the torture become unbearable. PW. 2 stated that for 6(six) moths after marriage his daughter (Sabita) was well and good but thereafter, she was beaten up on demand of money by accused Dulal. Three/four years ago (from 15.03.2006) she was beaten up and driven out. She took shelter in his house and he paid Rs. 35,000/- to the accused Dulal in presence of his parents. His daughter was also present when the amount was paid. Thereafter, his daughter was taken back but after a few months, she was again tortured and driven out. She came to his house. Panchayat meeting was held but he did not agree to return his daughter as she was facing torture there. For about one year she stayed in his house. After that brother-in-law of accused Dulal somehow persuaded her and she went back to her husband's house. But after few months, she was again tortured by accused Dulal, on demand of Rs. 50,000/- and thereafter, she came back to his house and has been living there. PW. 4 stated that after marriage Sabita was continuously tortured, on demand of money and to save Sabita from torture they sold out their landed property at Manubazar and paid Rs. But after few months, she was again tortured by accused Dulal, on demand of Rs. 50,000/- and thereafter, she came back to his house and has been living there. PW. 4 stated that after marriage Sabita was continuously tortured, on demand of money and to save Sabita from torture they sold out their landed property at Manubazar and paid Rs. 35,000/- to the accused but thereafter also Sabita was tortured and she took shelter in their house. Village 'shalishi' was held. After about a year, she was taken back to the house of the accused after persuasion made by brother-in-law of the accused. Her husband demanded Rs. 50,000/- (Rupees fifty thousand) and also tortured her and therefore, she came to their house after 9(nine) months being driven out from her husband's house. PW. 3, the maternal-uncle of PW. 1, uttered not a single word about the alleged torture on demand of money made by the accused. PWs. 5 and 6 are the neighbourers of PWs. 2 and 4. They stated about the incident of arson but uttered not a single word about torture on Sabita by the accused-Dulal. 8. A bare reading of the allegations made in the F.I.R. and the depositions of PWs. 1, 2 and 4 makes it clear that some omnibus statements were made by PWs. 1, 2 and 4 alleging torture on PW. 1, by the accused and based on such evidence, the accused would not have been punished under Section 498-A of I.P.C. Matrimonial offences are committed normally within the four walls of the matrimonial home. Definitely there were matrimonial discord between the accused and his wife PW. 1, Sabita and, therefore, PW. 1 took shelter in her parents' house and they are not living together. If there was peace & harmony, love & affection between husband and wife, it was natural that they would be living together. Definitely there were some sorts of dispute and different and matrimonial discord between them for which the wife took shelter in her parents' house. Such living apart does not naturally tantamount to exercise of cruelty on the wife. Definite evidence is required to hold one guilty of the offence under Section 498-A of I.P.C. The ward 'cruelty', as defined in Section 498-A of I.P.C., requires certain definite ingredients but those are absent in the present case. Such living apart does not naturally tantamount to exercise of cruelty on the wife. Definite evidence is required to hold one guilty of the offence under Section 498-A of I.P.C. The ward 'cruelty', as defined in Section 498-A of I.P.C., requires certain definite ingredients but those are absent in the present case. Learned Additional Sessions Judge, I have no hesitation to observe that based on bare omnibus statements of PWs. 1, 2 and 4 recorded the finding of conviction and, consequently, sentenced the accused-appellant which is liable to be interfered and set aside. 9. Learned counsel, Mr. Sarkar, has submitted that the prosecution case, in respect of setting fire to the house of PWs. 2, 3 and 4 by the accused also cannot be believed based on the evidence on record. He further submitted that because of the strain relation between the husband and wife it might happen that hatred blossomed in the mind of wife and she with her parents falsely entangled the accused in the case. He has drawn my attention to several discrepancies, in the evidence on record and submitted that the cumulative effect of minor discrepancies has created a major den in the backbone of the prosecution case and as such, the accused is entitled to get the benefit of doubt. 10. The charge under Section 436 of I.P.C. is based on circumstantial evidence. I have meticulously gone through the LC records. The residential house, belonged to PW. 3, in which PWs. 1, 2 and 4 were residing, was burnt to ashes at about 11.00 PM on the intervening night of 2.11.2005 and 3.11.2005. PWs. 1 and 4 are the star witnesses about the allegation. They stated that on 1.11.2005, in the evening, the accused came to their house and demanded Rs. 50,000/- and threatened that if the money not paid to him, he will set fire to the house and burn them to death. On 02.11.2005, the accused again came to their house in the evening and severely threatened them in the same manner and thereafter left. Admittedly, PW. 2, the informant, was not present in the house at the time of threats given by the accused, on 01.11.2005 and 02.11.2005. PW. On 02.11.2005, the accused again came to their house in the evening and severely threatened them in the same manner and thereafter left. Admittedly, PW. 2, the informant, was not present in the house at the time of threats given by the accused, on 01.11.2005 and 02.11.2005. PW. 1 stated that at about 11.00 P.M. while they were sleeping suddenly she woke up on seeing flame in their house and she cried out and her mother woke up and neighbourers came but the house was completely gutted with all articles, belongings etc. PW. 4 stated that when the house was in flame she found the accused on the bank of pond by the light of the flame. PWs. 5 and 6, upon hearing the alarm came out and found the flame in the house of the informant and they rushed to collect water with bucket and found the accused near the bank of the pond and on seeing them the accused went away. They knew the accused well since they found him in many times visiting the house of the informant. Evidence of PWs. 5 and 6 has not been shaken in any manners who are the independent witnesses of the locality. On the following morning, PW. 1 found a piece of napkin and a bottle of Kerosene/petrol in the bamboo clamps on the bank of pond and she could identify the napkin as of her father-in-law which the accused was found using and on the evening of 02.11.2005, the accused was having with that napkin in his hand. They suspected that with a part or piece of the napkin the accused might have set fire to their house. PWs. 2 and 3 also stated about it and those were seized by PW. 8 in course of investigation and proved before the trial court. The oral evidence of the witnesses is found cogent and consistence. The backbone of the evidence not destroyed during cross-examination. It was rightly relied by the trial Court. Admittedly, there is no eye-witness of the occurrence but circumstances clearly established that the accused and none else set the house of the witnesses to fire. In the cross-examination of PW. 4, defence suggested that accused went to the house of the witnesses to see well-being of his wife on 01.11.2005. It is, therefore, admitted by the accused that he visited the house of the witnesses on 01.11.2005. In the cross-examination of PW. 4, defence suggested that accused went to the house of the witnesses to see well-being of his wife on 01.11.2005. It is, therefore, admitted by the accused that he visited the house of the witnesses on 01.11.2005. Circumstances that: (i) The accused visited the house of the information 01.11.2005 and 02.11.2005 at evening time and threatened PWs. 1 and 4 that he will set fire to the house and burnt them alive. (ii) After the fire broke out, PWs. 5 and 6 found the accused on the bank of the pond and on seeing them the accused went away. (iii) PW. 2 also found the accused on the bank of the pond. (iv) Piece of napkin belonged to the accused was found on the bank of the pond in the bamboo clamps which was seized by police and proved in trial. (v) The accused since threatened PWs. 1 and 4 to set their house to fire, in all probability, might have committed the offence. The accused could not destroy the above attending circumstances which are inconsistent with his plea of innocence. Under such circumstances, the finding of guilt of the accused under Section 436 of I.P.C., as arrived at by the learned Additional Sessions Judge, is found to have based on sound evidence and therefore, is not required to be disturbed in the appeal. However, considering the submissions of learned counsel of both side and considering the evidence and materials on record, I think, sentences of R.I. for 5(five) years and payment of a fine of Rs. 10,000/- (Rupees ten thousand) in default of payment to suffer SI for 6(six) months shall meet the ends of justice. 11. Accordingly, the appeal is partly allowed. 12. The judgment & order, of conviction and sentence under Section 498-A of I.P.C. is set aside. The judgment of conviction under Section 436 of I.P.C. is upheld but the sentence is modified and the accused is directed to suffer RI for 5 (five) years and to pay a fine of Rs. 10,000/- (Rupees ten thousand) in default to suffer SI for 6(six) months. Send back the LC record along with a copy of this judgment.