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2014 DIGILAW 385 (TRI)

Mithan Misra v. State of Tripura

2014-11-17

U.B.SAHA

body2014
JUDGMENT Utpalendu Bikas Saha, J. 1. The instant revision petition is directed against the judgment dated 12.9.2008 passed by the learned Addl. Sessions Judge, Khowai, West Tripura in Criminal Appeal No. 7(3)/2008 whereby the petitioner was convicted under Section 498(A) of the IPC and sentenced him to suffer R.I. for one year modifying the impugned judgment dated 5.8.2008 passed by the learned Judicial Magistrate, 1st Class, Khowai, West Tripura in GR case No. 135 of 2007 convicting the petitioner under Section 498(A) of IPC and sentencing him to suffer R.I. for two years and a fine of Rs. 1000/- in default of payment of fine further to suffer R.I. for one month. 2. Heard Mr. R. Datta, learned counsel for the convict petitioner as well as Mr. R.C. Debnath, learned Addl. P.P. appearing for the respondent-State. 3. The prosecution story, in brief, is that on 27th Ashar, 1413 B.S., corresponding to 12th July, 2006, Smit Sima Chakraborty daughter of Sri Swapan Chakraborty (P.W. 3) was married with convict petitioner Mithan Mishra as per Hindu Rites and customs. After marriage, since three-four months, the accused along with his father Rabindra Mishra, mother Prativa @ Rekha Mishra and uncle Chandan Mishra started physical and mental torture on Sima to fulfill their unlawful demand of Rs. 50,000/- (fifty thousand), a motor bike and a gold chain. The physical and mental torture continued for many days and Sima informed her parents about the said incident. Finally, on 11.07.07 all the four accused committed severe physical torture on Sima and the accused Rabindra Mishra took her to her parental house and left her outside that house. Knowing the aforesaid facts from Sima, the P.W. 3 lodged a written complaint to the Teliamura P.S. informing the entire incident. 4. Upon receipt of the written complaint, a case being Teliamura P.S. case No. 49 of 2002 was registered under Section 498(A) of the IPC. 5. P.W. 7 Sri Kajal Deb, the I.O. of the case, after completion of investigation submitted the charge sheet under Section 498(A) of the IPC against the four accused persons, namely, Mithan Mishra, Rabindra Mishra, Chandra Mishra and Prativa @ Rekha Mishra. 6. The learned trial Court after taking cognizance proceeded for trial following the necessary procedure. Charge was framed against all the accused under Section 498(A) of the IPC to which they pleaded not guilty and claimed to be tried. 7. 6. The learned trial Court after taking cognizance proceeded for trial following the necessary procedure. Charge was framed against all the accused under Section 498(A) of the IPC to which they pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution examined as many as seven witnesses. After closing the prosecution evidence, all the four accused persons were examined individually under Section 313 Cr.P.C. wherein they declined to adduce any defence witness as their case was of total denial. 8. After hearing the parties, the learned trial court acquitted all the accused persons except the present petitioner convicting him guilty of committing offence under Section 498(A) of the IPC and accordingly sentenced him as stated supra 9. Being aggrieved by the judgment of the trial court, the present petitioner preferred an appeal being criminal appeal No. 7(3) of 2008 which was heard by the learned Addl. Sessions Judge, West Tripura, Khowai and finally, the learned Addl. Sessions Judge upheld the conviction passed by the learned trial court but the sentence of RI for 2 (two) years was reduced to R.I for one year maintaining the sentence to pay a fine of Rs. 1000/- (Rupees one thousand), in default of payment to suffer further R.I. for one month. 10. Being aggrieved by the judgment of the learned trial court as well as the appellate court, the convict petitioner preferred the instant revision petition. 11. Mr. R. Datta, learned counsel for the petitioner while urging for setting aside the order of conviction and sentence as impugned in the instant revision petition, would contend that the whole prosecution case is based on three witnesses, namely, P.W. 2, Smt. Sima Chakraborty, P.W. 3, Sri Swapan Chakraborty and P.W. 4, Smt. Sikha Chakraborty and all of them are interested witnesses being from the family of the alleged victim P.W. 2. He further submits that in the FIR, the informant the P.W. 3 did not disclose the facts regarding the demand of Rs. 50,000/-, a motor bike and a gold chain though he mentioned regarding the demand of Rs. 70,000/- for which P.W. 2 was allegedly tortured. According to him, non-mentioning of the alleged demand of Rs. 50,000/-, motor bike and gold chain is nothing but first time before a court as an improve version. 50,000/-, a motor bike and a gold chain though he mentioned regarding the demand of Rs. 70,000/- for which P.W. 2 was allegedly tortured. According to him, non-mentioning of the alleged demand of Rs. 50,000/-, motor bike and gold chain is nothing but first time before a court as an improve version. He again submitted that P.W. 2 in her statement before the court did not say anything about the time and date of alleged torture, rather only used the word 'torture' and such statement cannot be the basis for conviction, what is the learned trial court did. He again submits that P.W. 3 and 4 are the hearsay witnesses as they heard about the alleged torture from their daughter P.W. 2, but they did not disclose those facts of torture either to any of their neighborhood or to the police before filing of the FIR. According to the human conduct, if a person hears about torture of his daughter in a matrimonial home, he will inform the said facts to his close relations or the people residing in the neighbouring area and if the same is not disclosed by the parents of the victim bride, then that has to be considered as an afterthought. 12. He further submits that the learned trial court while recording the statement of the accused under Section 313 of the Cr.P.C. did not put the statement of the witnesses on which he relied upon for convicting the petitioner and the same itself is a ground for acquitting the convict petitioner as he did not get any opportunity to reply on the statement of the acquisition. 13. Mr. R.C. Debnath, learned Addl. P.P. in his usual fairness submits that the prosecution did not examine any of the vital witnesses except the parents of the victim bride. Not only that, the evidence on which the prosecution relied upon, that was also not put to the accused person, when he was examined under Section 313 Cr.P.C. 14. Having heard the learned counsel of the parties and on going through the evidence on record, it would be proper to discuss the salient portion of the evidence of P.W. 2 and P.W. 3 and P.W. 4 which are as follows: 15. Having heard the learned counsel of the parties and on going through the evidence on record, it would be proper to discuss the salient portion of the evidence of P.W. 2 and P.W. 3 and P.W. 4 which are as follows: 15. P.W. 2, the victim, in her deposition has stated that after about four months of her marriage, her husband, the convict petitioner, started physical torture on her to fulfill his demand of Rs. 50,000/-, a motor bike and a gold chain. She has also deposed that her father-in-law and mother-in-law used to instigate their son to commit torture on her. She further deposed that on 11.7.07 all the 3 (three) accused persons along with uncle-in-law committed severe physical torture on her and her father-in-law took her to her parental house and left her outside her house. 16. In her cross, she deposed that she never disclosed about the incident of torture to any neighbouring people who visited her matrimonial home. But she disclosed the said facts to her parents regarding the demand of Rs. 50,000/-, a motor bike and a gold chain from her. 17. P.W. 3 Swapan Chakraborty, the father of the victim in his evidence stated that his daughter informed him about the incident of torture over phone and on 11.7.07 the convict petitioner again committed physical torture on his daughter and his parents instigated the petitioner to commit tortured upon his daughter. After that, the father of the petitioner brought her near her house and left her there. He came to know about the aforesaid incident from his daughter. In his cross, he stated that in the ejahar, he stated that the present petitioner committed physical torture on his daughter demanding Rs. 50,000/-, one motor bike and gold chain, but the learned trial Court found no such statement in the ejahar to which his attention was drawn. In his cross, he also stated that he did not state in the ejahar about that the victim petitioner demanded Rs. 70,000/- from his daughter and he never informed the people living adjacent to the matrimonial house of his daughter. 18. P.W. 4, Smt. Shikha Chakraborty also stated in the same way like P.W. 3. 18. In his cross, he also stated that he did not state in the ejahar about that the victim petitioner demanded Rs. 70,000/- from his daughter and he never informed the people living adjacent to the matrimonial house of his daughter. 18. P.W. 4, Smt. Shikha Chakraborty also stated in the same way like P.W. 3. 18. There is no doubt that in a case of physical torture to a bride, she would not normally like to disclose the facts of torture by her husband to any of the neighbouring people and also to the relation except the close relation. Mere a statement of assault and torture without indicating the nature and extent of injury, if any, would not constitute cruelty as defined under Section 498(A) of the IPC. If a bride is tortured by bride-groom for a long period demanding dowry, then she should have disclosed the nature of torture which is totally absent in the instant case. More so, P.W. 3 in his ejahar admittedly did not disclose the story of motor bike and gold chain. Not only that, he also did not disclose about the demand of Rs. 50,000/- and in his cross, he stated that he did not mention in the FIR regarding the demand of Rs. 70,000/-, rather he stated about Rs. 20,000/- which was not recorded by the scribe, P.W. 5, Sri Sekhar Chakraborty. P.W. 5 in his statement specifically stated that what P.W. 3 stated he had written only those facts and the same was also read over to P.W 3. 19. In the instant case, the prosecution also did not examine any independent witness in support of its case except P.W. 1, Sri Khokan Rudrapaul, who also did not support the case of the prosecution. P.W. 3 and 4 being close relation would naturally have a tendency to exaggerate or add facts which might not have been stated to them at all. 20. This is court has gone through the statement recorded under Section 313 Cr.P.C. from which it appears that the statement is so cryptic and the trial Court did not put the accusation to the convict petitioner on which he relied upon and as a result, the petitioner did not get opportunity to answer to those accusations. The examination of an accused under Section 313 Cr.P.C. is not mere a formality, the question put and answers given have great use. The examination of an accused under Section 313 Cr.P.C. is not mere a formality, the question put and answers given have great use. The purpose of examination is to bring the substance of accusation to the notice of the accused. In the case of Bakhshish Singh Dhaliwal v. The State of Punjab, : AIR 1967 Sc 752 , the Apex Court considering the scope of section 342, Cr. PC, 1898 (corresponding to section 313 of the Code) held in para 33 of that judgment as follows:- "33. ..............Under that provision, questions are put to an accused to enable him to explain any circumstances appearing in the evidence against him, and for that purpose, the accused is also to be questioned general on the case, after the witnesses for the prosecution have been examined and before he is called on for his defence ......" 21. In Basavaraj R. Patil and others v. State of Karnataka and others (2008) 8 SCC 740, the Apex Court discussed about the aim and object of section 313 Cr.P.C. and observed as follows:- "Section 313, Cr.P.C. is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. The provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maximum audi alteram partem. The word 'may' in clause (a) of sub-section (1) in section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance of it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him." 22. As Mr. Debnath in his usual fairness submits that the convict petitioner did not get opportunity to answer to the questions made against him by the prosecution witnesses, this court is of the considered opinion that it would not be proper to maintain the order of conviction and sentence passed by the learned trial court and modified by the learned appellate court on mere allegation of torture by the convict petitioner. In absence of any cogent evidence regarding the demand of Rs. In absence of any cogent evidence regarding the demand of Rs. 50,000/-, a motor bike and a gold chain. In fact, the story of demand of motor bike and gold chain is nothing but an afterthought. More so, P.W. 3 did not state in the ejahar regarding the source of his information. He has also given different statement inn different places regarding the quantity of money demanded. There is no doubt that non-examination of the witness from the neighbouring people of the bride groom is not fatal, but non-disclosure of the facts by the parents either to their relation or to the neighbourhood is improbable. But facts remain, except the parents of the bride, no individual witness was examined in support of the prosecution case. According to this court, in a criminal case, strict proof is necessary. Only on mere suspicion, a person cannot be convicted. 23. In the instant case, P.W. 2 in her chief even did not state that she disclosed the story of torture to her parents. Even if we believe the story of torture on 11.7.2007, then also it can be said that the single torture itself would not constitute the offence of cruelty. 24. In view of the above discussion, it is found that the prosecution failed to substantiate by adducing cogent and reliable evidence that the petitioner had treated the victim P.W. 2 with such cruelty as defined by Section 498(A) IPC beyond reasonable doubt. Therefore, the conviction and sentence passed by the trial court and modified by the learned appellate court cannot be sustained. 25. The revision petition is, therefore, allowed and the judgment and order dated 5.8.2008 passed by the learned trial court and modified by the appellate court is set aside and quashed. The petitioner is acquitted of the charge leveled against him under Section 498(A) IPC. He is on bail. His bail bond stands discharged. Send down the L.C. records.