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2013 DIGILAW 124 (GAU)

Partha Dey v. State of Tripura

2013-02-22

SWAPAN CHANDRA DAS

body2013
JUDGMENT Swapan Chandra Das, J. 1. This criminal appeal is directed against the judgment and order of conviction and sentence, dated 21.11.2006, passed by learned Addl. Sessions Judge, Khowai, West Tripura, in Sessions Trial Case No. S.T. 39(WT/K) of 2005, whereby the learned Addl. Sessions Judge found the appellant guilty of committing offence punishable under Sections 448 and 354 of IPC and, accordingly sentenced him to suffer SI for six months and to pay a fine of rupees one thousand, in default of payment of fine to suffer further SI for one month for commission of offence, punishable under Section 448 of IPC and, for commission of offence punishable under Section 354 of IPC, he was sentenced to suffer SI for two years and to pay a fine of rupees five thousand, in default of payment of fine to suffer further SI for three months. Both the principal sentences were directed to run consecutively. Heard learned counsel, Mr. S. Sarkar for the appellant and learned Addl. P.P., Mr. A. Ghosh for the State respondent. 2. Brief Facts: 2.1 One Niranjan Debnath alias Kanu of Chakmaghat under Teliamura P.S. set the law in motion by filing an FIR in writing alleging, inter alia, that on 10.10.2004, a Sunday, at noon about 12 O'clock, his daughter Sabita Debnath alias Bulti, aged about fifteen years, was alone in the house and taking the scope of her loneliness, the accused Partha Dey of their village tried to outrage her modesty. She raised hue and cry, and hearing her alarm, Kutu Das, aged about ten years, son of late Binoy Das, rushed to the house and at that time Partha Dey fled away from the house. On receiving the information, the informant returned home and informed the matter to the father of Partha Dey. His daughter (Bulti) informed her mother and maternal grandmother about the incident. For the whole day she was weeping. Apprehending social disgrace, he did not inform the incident to anybody else. On the following day, his daughter committed suicide by hanging in the house. Police brought down the dead body and took the same to the hospital. He informed the police officer about the incident in details. Police officer also brought a letter from his house written by his daughter regarding the suicide. He, therefore, prayed for arrest of the accused and for taking appropriate action. 2.2. Police brought down the dead body and took the same to the hospital. He informed the police officer about the incident in details. Police officer also brought a letter from his house written by his daughter regarding the suicide. He, therefore, prayed for arrest of the accused and for taking appropriate action. 2.2. On the basis of that FIR, Teliamura PS Case No. 58 of 2004 under Sections 448 and 354 of IPC was registered and, an investigation was taken up. On completion of investigation, police submitted charge sheet against accused Partha Dey for commission of offence punishable under Sections 448, 354 and 306 of IPC. 2.3. Cognizance was taken on the basis of police report and, thereafter on commitment of the case to the Court of Addl. Sessions Judge, Khowai, charges were framed against the accused on 24.05.2006 for commission of offence punishable under Sections 448, 354 and 306 of IPC to which the accused pleaded not guilty and claimed to be tried. 2.4 In course of trial, prosecution examined eight witnesses, namely: PW1, Sri Niranjan Debnath, PW2, Smt. Suchitra Debnath, PW3, Sri Prasenjit Das, PW4, Smti. Kalpana Debnath, PW5, Dr. Dibyendu Bikash Das, PW6, Sri Babul Das, PW7, SI Samiran Chakraborty, PW8, ASI Sudhir Das. 2.5 Prosecution also proved the FIR lodged by PW1, marked as Exbt.1, a suicide note alleged to have written by the deceased, marked as Exbt.2, hand-sketch map with index, marked as Exbt.5, inquest report, marked as Exbt.6, reports submitted under Section 174 of Cr PC in U.D. Case No. 20 of 2004, marked as Exbt.7, seizure list of suicide note, marked as Exbt.8, another hand-sketch map with index, marked as Exbt.9, seizure list of wearing apparels of the deceased, marked as Exbt.10. 2.6 Out of the aforesaid witnesses, PW1 is the father of the deceased and is the informant of the case. 2.6 Out of the aforesaid witnesses, PW1 is the father of the deceased and is the informant of the case. PW2 is the maternal grandmother of the deceased Sabita alias Bulti, PW3 is the minor boy, who alleged to have seen the accused, going away from the house of the victim, PW4 is the maternal aunt of the deceased Sabita alias Bulti, PW5 is the medical officer, who conducted postmortem examination over the dead body of deceased Sabita, PW6 is the police officer, who on receipt of the FIR lodged by PW1, registered the case, PW7 is the I.O. of the case and PW8 is the IO of the U.D. case, who on receipt of an information from hospital registered the U.D. case. 2.7 Defence cross-examined the prosecution witnesses and after closure of the prosecution evidence, the accused was examined under Section 313 of Cr PC. In his turn, the accused declined to adduce any defence evidence. Defence case is nothing but denial of the prosecution case. 2.8 Learned Addl. Sessions Judge, at the conclusion of the trial, acquitted the accused from the charge under Section 306 of IPC and held him guilty of the charges under Sections 448 and 354 of IPC and sentenced him as stated hereinbefore. 3. Learned counsel, Mr. Sarkar has submitted that the alleged victim Sabita Debnath alias Bulti committed suicide on 11.10.2004 at about 1300 hrs. and, according to the prosecution, the alleged incident of outrage of modesty or criminal house trespass was committed on 10.10.2004 at noon time, at about 1200 hrs. U.D. case No. 20 of 2004 under Section 174 of Cr PC was registered on 11.10.2004 at 1315 hrs., on the basis of an information received from Dr. Dibyendu Bikash Das of Teliamura hospital. The U.D. case was thoroughly investigated and inquest report as well as postmortem, etc., were done in connection with the U.D. case. After fourteen days the present FIR was lodged but no explanation was given in the FIR as to why it was lodged after such a delay. Learned counsel, Mr. Sarkar has further submitted that PW1 in his deposition stated that he informed the village Pradhan, Haridas Debnath, orally immediately after the incident, occurred on 10.10.2004 and, as demanded by Haridas Debnath, a written complaint was filed by him. Neither Haridas Debnath was examined by the prosecution nor any such fact stated in the FIR. Learned counsel, Mr. Sarkar has further submitted that PW1 in his deposition stated that he informed the village Pradhan, Haridas Debnath, orally immediately after the incident, occurred on 10.10.2004 and, as demanded by Haridas Debnath, a written complaint was filed by him. Neither Haridas Debnath was examined by the prosecution nor any such fact stated in the FIR. The prosecution case, therefore, should be treated as inherently doubtful because of delay in lodging the FIR. 3.1 Learned Addl. P.P., Mr. Ghosh, on the other hand, has submitted that immediately after the suicide of Sabita, U.D. Case No. 20 of 2004 under Section 174 of Cr PC was registered and PW8 started investigation of that U.D. case. He has, however, fairly admitted that the FIR filed by PW1 contains no explanation about the delay but some explanation has been given in the deposition of PW1, which may be accepted in the facts and circumstances of the case. 3.2 I have meticulously gone through the FIR and the records of U.D. case. Admittedly, the deceased (Sabita) committed suicide on 11.10.2004 at noontime about 1300 hrs. and the U.D. case was registered at 1315 hrs. (Exbt.7). When the U.D. case was registered no allegation was made by the informant or anybody else that the accused criminally trespassed in the house of the informant and committed the offence of outrage of modesty on his daughter, Sabita. The informant (PW1), in the FIR, stated that because of social disgrace he did not inform the incident to anybody else but in his deposition he made just contrary statement that immediately after the occurrence he reported the village Pradhan Haridas Debnath and also made a written complaint to the Pradhan. Such contradictory statement of the informant makes him totally unworthy of credit and the FIR suffers from embellishment and afterthought. The abnormal delay in lodging the FIR in the facts and circumstances of the case has raised a serious doubt about the authenticity of allegation made in the FIR. 4. The next argument advanced by learned counsel, Mr. Such contradictory statement of the informant makes him totally unworthy of credit and the FIR suffers from embellishment and afterthought. The abnormal delay in lodging the FIR in the facts and circumstances of the case has raised a serious doubt about the authenticity of allegation made in the FIR. 4. The next argument advanced by learned counsel, Mr. Sarkar is that PW1, father of Sabita, while lodging the FIR after fourteen days of the incident, simply made an allegation that the accused outraged the modesty of his daughter Sabita and the alleged suicide note (Exbt.2) was also handed over to the I.O. of U.D. case, whereas PWs 2 and 4, i.e., the grandmother and aunt of Sabita, made a different statement that the accused entered in the house of the victim and committed rape on her (Sabita). They have further stated that Sabita herself disclosed about rape to PWs 2 and 4 immediately after the occurrence. Had it been so, there was no reason for PWs 2 and 4, who were residing in the same family, in not disclosing the fact either to PW1 or to the police officer, who was investigating the U.D. case. This has belied the total prosecution case. 4.1 Learned Addl. P.P., Mr. Ghosh has frankly admitted that there is nothing in the FIR about the allegation of rape but PWs 2 and 4 made a statement about rape. May be to that extent they have exaggerated the fact but the rest of the fact, that the accused trespassed in the house of the victim while she was alone in the house, is established and, so, punishment under Sections 448 and 354 of IPC may be upheld. 4.2 In the FIR, there is not even a whisper that it was a case of rape. In his deposition, PW1 did not state anything about rape. Admittedly, Exbt.2, the suicide note, was handed over to the I.O. of the U.D. case on 14.10.2004, i.e. after four days of the occurrence. At that time also nothing was stated to PW8 that Sabita was raped by the accused or that the accused trespassed in the house of the victim and outraged her modesty. PWs 2 and 4 made a specific statement that Sabita reported them that she was raped by the accused. At that time also nothing was stated to PW8 that Sabita was raped by the accused or that the accused trespassed in the house of the victim and outraged her modesty. PWs 2 and 4 made a specific statement that Sabita reported them that she was raped by the accused. PWs 2 and 4 appears to have made a false statement and they cannot be relied at all in view of the observation of the medical officer in the postmortem report. PW5, Dr. Dibyendu Bikash Das, who conducted the postmortem examination, observed that the organs of external and' internal generation were healthy, hymen was intact and uterus was normal in size. Such observation of the medical officer in the postmortem report has completely outweighed the allegation made by PWs 2 and 4. It is clear that PWs 2 and 4 made a false statement altogether alleging that the deceased reported them that she was raped. 4.3 Further, as I find, according to PW1 he was reported by PW3, Prasenjit Das alias Kutu, a minor boy, aged about ten years, whereas PW3 in his deposition stated that on the date of incident, at about 10/11 am, he was returning to his house after playing games and when he reached on the bank of a pond, adjacent to the house of Bulti (Sabita) he noticed accused Partha Dey was going out from the house of Bulti and, thereafter, he left the place. There is nothing in his deposition that Sabita (Bulti) raised any cry or alarm and hearing the alarm the witness (Prasenjit) went to their house and, thereafter he went to PW1, the father of Bulti, and reported the incident, etc. Rather, in his cross-examination, he stated that he did not say to the father of Bulti that he had seen Partha Dey, going out from the house of Bulti from the bank of the pond. Under such circumstances, the evidence of PW3 also does not deserve any credibility for consideration. Simply because the accused was found going out from the house of the informant at noontime, it will be a travesty of justice, if the accused is held guilty of the offence punishable under Sections 448 and 354 of IPC in the absence of any cogent evidence. 5. Learned Addl. Simply because the accused was found going out from the house of the informant at noontime, it will be a travesty of justice, if the accused is held guilty of the offence punishable under Sections 448 and 354 of IPC in the absence of any cogent evidence. 5. Learned Addl. Sessions Judge acquitted the accused from the charge under Section 306 of IPC, since Exbt.2, the suicide note, has not been proved. Secondly, the story, that the allegation of rape, because of which it was alleged that Bulti committed suicide, has not been established. If the prosecution has failed to prove that fact, then, on the basis of the same fact, the accused cannot be held guilty of house trespass and outrage of modesty of the deceased. 6. It is an admitted fact that there is no eyewitness of the occurrence. PWs 1, 2 and 4 made incriminating statements. According to them, they learnt it from the deceased. Such statement is admissible in evidence in view of the provisions, as prescribed in Section 32 of the Evidence Act. While the accused had already been acquitted from the charge under Section 306 of IPC that part of the evidence cannot be applied against the accused for the charges under Sections 448 and 354 of IPC. 7. The Supreme Court in the case of Gananath Pattnaik Vs. State of Orissa reported in 2002 SCC (Cri) 461, in paragraph IO of the judgment has observed that the statement of the deceased's sister was taken on record with the aid of Section 32 of the Evidence Act at a time when the appellant was being tried for the offence under Section 304-B and such statement was admissible under Section 32(1) as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498-A IPC and has to be termed as only a hearsay evidence. Section 32 is an exception to the hearsay rule and deeds with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. Section 32 is an exception to the hearsay rule and deeds with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused. 8. In the case of Inderpal Vs. State of M.P. reported in 2002 CRI. L.J. 926, the Supreme Court, in paragraphs 7 and 8 held thus:- 7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P7 or Exhibit P8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498A, IPC disjuncted from the offence under 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned. 8. As there is no single piece of evidence which can be admitted in law to be used against the appellant we are left with the only alternative to set aside the conviction of the appellant. In this view of the matter it is not necessary for us to consider the second limb of the contention that the offence found against the appellant was not included in the charge framed against him. 9. In the case at hand, the trial Court disbelieved the story of abatement of suicide and, therefore, acquitted the accused from the charge framed under Section 306 of IPC. There is no appeal filed by the State against the order of acquittal from that charge. 9. In the case at hand, the trial Court disbelieved the story of abatement of suicide and, therefore, acquitted the accused from the charge framed under Section 306 of IPC. There is no appeal filed by the State against the order of acquittal from that charge. The evidence, whatever on record, is the basis of the statement of the deceased regarding her death, which may be admissible with the aid of Section 32 of the Evidence Act. If the charge under Section 306 of IPC goes the credibility of evidence of those witnesses also goes and based on the evidence of those witnesses the charge under Sections 448 and 354 of IPC cannot sustain. 10. In view of the discussions made above, the appeal is liable to succeed and, accordingly, it is allowed. 11. The judgment and order of conviction and sentence of the accused appellant under Sections 448 and 354 of IPC is set aside. The accused be set at liberty. Send back the LC records along with a copy of this judgment. Appeal allowed.