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2014 DIGILAW 23 (TRI)

Manik Kar and Smt. Manju Kar v. State of Tripura

2014-01-20

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- Heard Mr. D.C. Roy, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned Public Prosecutor appearing for the state. This is a petition filed under Section 397 read with Section 401 of the Cr.P.C. against the judgment and order dated 25.03.2008 passed by the Addl. Sessions Judge, West Tripura, Sonamura in Criminal Appeal No. 5(1) of 2008, partly affirming the judgment and order of conviction and sentence dated 05.02.2008, delivered in G.R. No. 76/2004 by the Sub-Divisional Judicial Magistrate, Sonamura, whereby the petitioners were convicted under Section 498A of the IPC and sentenced to suffer SI for one year and to pay fine of ` 5,000 each, in default thereof to suffer SI for two more months. The petitioner No. 2 was also convicted under Section 498A read with Section 109 of the IPC and sentenced thereof, but the said conviction was interfered with and set aside by the Addl. Sessions Judge, West Tripura, Sonamura. Being aggrieved by that judgment and order, the present petition has been filed. 2. On the complaint of Shilu Rani Saha (P.W. 3), Sonamura P.S. Case No. 21/2004 under Sections498A/494/109 of the IPC was registered and taken up of investigation. 3. The allegation that has surfaced from the written complaint is that the petitioner No. 1 was having a illicit relation with one lady. Apart that, both the petitioners were treating the complainant (P.W. 3), wife of the petitioner No. 1 with severe cruelty for realising unlawful demands and she was assaulted several times, and ultimately she was driven out of the matrimonial home when she was pregnant of eight months. The complainant when came back to the matrimonial home, was sternly refused and thereafter she filed the complaint (Exbt. 1). 4. After investigation, the charge-sheet was filed against the petitioners under Sections 498A/494/109 of the IPC and accordingly the charge was framed against the petitioners who denied the charge and claimed to face the trial. 5. In order to substantiate the charge, the prosecution examined as many as six witnesses including the complainant and the Investigating Officer, namely Sri Kapil Das (P.W. 6). The prosecution has also examined two independent witnesses who had participated in the social negotiation for amicable settlement of the matter. 6. 5. In order to substantiate the charge, the prosecution examined as many as six witnesses including the complainant and the Investigating Officer, namely Sri Kapil Das (P.W. 6). The prosecution has also examined two independent witnesses who had participated in the social negotiation for amicable settlement of the matter. 6. P.W. 1, Sri Subal Saha is the father of the complainant (P.W. 3), who has stated that the petitioners had demanded a sum of ` 10,000 from her daughter and since he could not pay the said amount, her daughter (P.W. 3) was brutally tortured by the petitioners. He has also stated that he had taken the matter for negotiation to the office of one political party, namely Communist Party of India (Marxist), but nothing could be achieved therefrom. When he was confronted during cross-examination, whether he has stated to the Investigating Officer that he heard from his daughter (P.W. 3) that she was tortured by the petitioners, no such statement was found available in his statement as recorded by the Investigating Officer under Section 161 of the Cr.P.C. 7. P.W. 2, Sri Ranjit Chakraborty is the priest, who carried out the rites to solemnise the marriage. However, the marriage in this case is not in dispute by the defence. 8. P.W. 3, the complainant has made some general allegations that, on demand of money she was tortured by the petitioners. Her husband (the petitioner No. 1) was having illicit relation with one lady (name concealed for purpose of protecting her identity), but she has admitted that there was three meetings in order to settle the dispute. She has candidly admitted in her cross-examination that she could not recollect the exact date, time when she was assaulted. 9. P.W. 4, Smt. Putul Debnath, who had participated in the meeting held in the office of the Communist Party of India (Marxist), has submitted that there was some disputes and they proposed that the petitioner No. 1 should pay a sum of ` 25,000 to the complainant, however, she has made a statement that the complainant (P.W. 3) had stated in the meeting that she had been tortured by the petitioner No. 1. 10. 10. P.W. 5, Sri Sankar Singha Roy, another independent witness, who had participated in the negotiations, has stated that there was a demand of money from the petitioner No. 1, but since the demand could not be fulfilled owing to their poverty the complainant was mercilessly beaten by the petitioners. In the shalish (the compromise meeting for scoring out the compromise) it was decided that the petitioner No. 1 shall pay a sum of ` 15,000 in cash and also give ` 10,000 towards the cost of presents and gifts and both the petitioner No. 1 and the complainant should file a petition for divorce on mutual consent. But, the petitioner No. 1 did not pay any amount and when the complainant had visited the petitioner No. 1, she and her relatives were manhandled. The petitioners refused her to take back in the matrimonial home. 11. P.W. 6 is the Investigating Officer. He has simply stated how he has carried out the investigation and thereafter filed the charge-sheet. 12. What appears from a close scrutiny of the evidence as led by the prosecution is that the dispute sprang up from the alleged illicit relation of the petitioner No. 1 with one lady and that ultimately culminated into fierce misunderstanding and collapse of the marital relationship. It further appears that P.W. 4 has stated that the complainant has alleged of having been assaulted by the petitioner No. 1 and P.W. 5 has even though echoed P.W. 4, but he has stated that the mother-in-law of the complainant had also participated in such assault as heard from P.W. 3. But, from the depositions of both it appears to this court that it is not for the assault that the meeting had taken place, but for an amicable settlement of the matrimonial dispute. For that reason a decision was taken that on condition of payment of ` 25,000 to the complainant both the petitioner No. 1 and the complainant would file a petition for divorce on mutual consent. The trial court, by the judgment and order dated 05.02.2008 had acquitted the petitioner No. 1 from the charge of Section 494 of the IPC, but returned the conviction and sentence under Section 498Aof the IPC against the petitioner No. 1 and Section 498A read with Section 109 of the IPC against the petitioner No. 2. The trial court, by the judgment and order dated 05.02.2008 had acquitted the petitioner No. 1 from the charge of Section 494 of the IPC, but returned the conviction and sentence under Section 498Aof the IPC against the petitioner No. 1 and Section 498A read with Section 109 of the IPC against the petitioner No. 2. By the impugned judgment, the conviction against the petitioner No. 2 under Section498A read with Section 109 of the IPC has been set aside. 13. Mr. D.C. Roy, learned counsel appearing for the petitioners has submitted that regarding unlawful demand there is no evidence at all. If the testimony of P.W. 3 is closely read into it will appear that even the amount that has been demanded has not been stated by her. However, P.W. 1 has stated the quantum of the amount that was demanded by the petitioners and P.W. 5 has only stated about the unlawful demand, but without specifying the amount. Apart that, P.W. 3 has admitted that she could not give any details when she was assaulted by the petitioners. Mr. Roy, learned counsel appearing for the petitioners, therefore, contends that there cannot be any earthly reason to believe P.W. 3 for purpose of returning the judgment of conviction. He has further submitted that the outcome of so called negotiation would show that the negotiation had entirely focused on how to sort out the matrimonial discord by way of mutual divorce on payment of some amount as the petitioner No. 1 and the complainant had failed to live together peacefully for serious allegation of having a illicit relation with a lady. 14. Mr. Ghosh, learned Public Prosecutor appearing for the state, however, has strenuously laboured to refute the submissions of Mr. Roy, learned counsel appearing for the petitioners and submitted that there is no infirmity in the impugned judgment and order. Therefore, no interference is called for. According to Mr. Ghosh, learned Public Prosecutor, the statement of P.W. 3 as regards the physical assault on unlawful demand has been fully corroborated by the P.W. 1, P.W. 4 and P.W. 5. 15. After appreciating the submissions of the learned counsel for the parties as well as on scrutinising the records available before this court, it has surfaced that P.W. 3 did not mention any amount of demand and she has made some unspecific allegations. 15. After appreciating the submissions of the learned counsel for the parties as well as on scrutinising the records available before this court, it has surfaced that P.W. 3 did not mention any amount of demand and she has made some unspecific allegations. When such unspecific allegations are made an important right of the accused is sacrificed as he cannot occupy a position to contradict such statement by providing the counter evidence. This is well settled in the criminal jurisprudence that the allegations are to be definite and related to specific details. Moreover, based on such allegations, when after investigation the charge-sheet is filed, the charge has to be framed on specific description so that proper defence can be projected by the accused person. There cannot be any disagreement with the submission of Mr. Roy, learned counsel appearing for the petitioners that in absence of any detail the petitioners could not substantially lead any evidence to show that there was no such assault on unlawful demands as alleged. Moreover, both P.Ws. 4 and 5 are hearsay. Whatever they have stated in the court, they have stated so as heard from P.W. 3. On the basis of such untidy and unconsolidated evidence it is very difficult to return a finding of conviction or to hold the accused persons guilty of the charge. 16. Accordingly, both the petitioners are acquitted on benefit of doubt. Their sureties are discharged from their liabilities. In the result, this revision petition stands allowed. Send down the LCRs forthwith.