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2014 DIGILAW 414 (TRI)

State of Tripura v. Alok Dey

2014-12-09

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This criminal appeal under Section 378 of CrPC is directed against the judgment and order of acquittal dated 31.03.2012 passed by learned Sessions Judge, West Tripura, Agartala in Criminal Appeal No. 34(3)/2011, whereunder the learned Sessions Judge set aside the judgment and order of conviction and sentence dated 05.08.2011 passed by learned Judicial Magistrate, First Class, Agartala, West Tripura in case No. GR. 880 of 2007. 2. Heard learned P.P. Mr. A. Ghosh for the State appellant and learned counsel, Ms. R. Guha for the accused-respondents. 3. Prosecution case was set in motion by Smt. Aparna Dey(PW1) by filing an FIR on 24.08.2007 against the accused-respondents, i.e. her husband, brother-in-law and sister-in-law alleging that her marriage was solemnized with accused-respondent, Alok Dey on 31.07.2002 and since after one year of marriage her husband Alok Dey, his sister Debi(Debika) Dey(Das) and sister's husband, Niranjan Das, started torture both physically and mentally on her. They pressurized her to bring money from her parent's house. She informed it to her parents and her brothers made payment of Rs.2,00,000/- (rupees two lakhs) step by step but even thereafter torture and tormentation continued and therefore she lodged the FIR before O/C Agartala Women P.S. and accordingly Agartala Women P.S. Case No. 82 of 2007 under Section 498A read with Section 34 of IPC was registered and after investigation police submitted charge sheet against the accused-respondents. Cognizance was taken on the basis of the police report and thereafter in course of trial learned Judicial Magistrate, First Class framed charge against the accused-respondents under Section 498 read with Section 34 of IPC to which they pleaded not guilty and claimed to be tried. 4. Prosecution examined 21(twenty one) witnesses to prove the charge and after closure of the prosecution evidence accused-respondents were examined under Section 313 of CrPC and in their turn they declined to adduce any defence evidence. Defence case is the denial of the prosecution case. At the conclusion of trial learned Judicial Magistrate, First Class found the accused persons guilty of the charge and sentenced accused Alok Dey to suffer RI for two years and to pay a fine of Rs.5,000/-, in default of payment of fine to suffer SI for two months. Defence case is the denial of the prosecution case. At the conclusion of trial learned Judicial Magistrate, First Class found the accused persons guilty of the charge and sentenced accused Alok Dey to suffer RI for two years and to pay a fine of Rs.5,000/-, in default of payment of fine to suffer SI for two months. Learned Judicial Magistrate also sentenced Devika Dey(Das) to suffer RI for one year and six months and to pay a fine of Rs.2,000/-, in default of payment of fine to suffer SI for one month. Accused-respondent Niranjan Dey was sentenced to suffer for RI for year and to pay a fine of Rs.2,000/-, in default of payment of fine to suffer SI for one month. 5. Aggrieved, the accused-respondents preferred Criminal Appeal No. 34(3) of 2011 and the learned Sessions Judge by impugned judgment dated 31.03.2002 set aside the judgment and order of conviction and sentence and acquitted the accused persons. 6. The present appeal is filed contending that the appellate Court failed to appreciate the evidence on record and arrived at a perverse finding. Learned P.P. has submitted that the informant-victim and her relatives and neighbourers, all gave positive evidence in support of the contention that the informant, i.e. PW1 was subjected to cruelty in the matrimonial home on demand of money and the evidence has been rightly scrutinized and appreciated by the trial Court whereas the appellate Court re-appreciated the evidence and arrived at a perverse finding. 7. Learned counsel, Ms. Guha has submitted that the informant and her brothers as well as the other witnesses, all made contradictory statements and they all exaggerated the facts. There is no specific allegation of exercise of cruelty. Omnibus statements made by the witnesses regarding exercise of cruelty and demand of money. The trial Court failed to properly appreciate the evidence on record and arrived at a wrong finding of guilt of the accused-respondents. The appellate Court made a proper appreciation and securitization of the evidence and arrived at a proper finding. She has also submitted that the witnesses who have been examined by the prosecution are almost all hearsay witnesses and their evidence cannot be considered for arriving at a finding of guilt of the accused persons. 8. The appellate Court made a proper appreciation and securitization of the evidence and arrived at a proper finding. She has also submitted that the witnesses who have been examined by the prosecution are almost all hearsay witnesses and their evidence cannot be considered for arriving at a finding of guilt of the accused persons. 8. To prove a charge under Section 498A of IPC, prosecution is to prove that the accused persons subjected the victim woman in such a nature that she was likely to commit suicide or to cause grave injury or danger to her life, limb or health and secondly that she was subjected to harassment with a view to coercing her or any person related to her to make any unlawful demand for any property or valuable security. In the present case, the allegation was that she was subjected to cruelty on demand of money and since the demand was not fulfilled she was tortured and tormented in the matrimonial home-mentally and physically. 9. I have meticulously gone through the evidence on record. Nothing specific stated about the nature of exercise of mental or physical cruelty. Mere statement that she was subjected to cruelty both mentally and physically is not sufficient to arrive at a conclusion of guilt under Section 498A of IPC. Something more specific overt act has to be alleged and proved to substantiate the charge of exercise of cruelty by the husband or inmates of the husband's house. There may be lot of wear and tear in the matrimonial home, which cannot be termed as matrimonial offence. Only those events which consists criminal instinct and mens-rea would amount to a criminal offence punishable under Section 498A of IPC. Here some statements have been made regarding demand of money to repay a loan. The appellate Court considered the evidence very meticulously and arrived at a reasoned finding. The finding of the appellate Court is reflected in para 14 and 15 of the judgment which reads as follows:-- "14. I have considered the submissions of both sides. I have gone through evidence of the prosecution witnesses. I have found that almost all the prosecution witnesses have improved and exaggerated their versions from their earlier statements made before the investigating officers while giving evidence before the trial court. This aspect creates doubt about the veracity of the evidence of the prosecution witnesses. I have gone through evidence of the prosecution witnesses. I have found that almost all the prosecution witnesses have improved and exaggerated their versions from their earlier statements made before the investigating officers while giving evidence before the trial court. This aspect creates doubt about the veracity of the evidence of the prosecution witnesses. It further appears from the prosecution witnesses including the victim herself that she was subjected to torture by the appellants in her in-laws house demanding money and that her brothers paid Rs. 1,10,000/- to her husband-appellant who ultimately utilised the amount for meeting the loan amount which he had taken from the bank for construction of his house. From the evidence of the prosecution witnesses, it further reveals that the concerned bank also arrange for issuing crock order against the property of the husband of the informant for realising the bank loan amount. But in order to substantiate this, the investigating officer did not seize any paper from the concerned bank. Even the witnesses in their cross examination have admitted that they did not state this fact before the I.O. in course of investigation of the case. It also reveals from the case record that the informant and other prosecution witnesses deposed about demanding of Rs. 2,00,000/- in cash by the husband of the informant having been instigated by the other two accused appellants and that the informant having had ill treated by her husband and other two accused persons on her failure to satisfy the demand of Rs. 2,00,000/-. But surprisingly most of the prosecution witnesses did not state this fact in their earlier statement made before the I.O. The witnesses also could not state specifically the date and time the informant was subjected to torture both mentally and physically at the hands of the appellants. The informant in her evidence has stated that after one year of her marriage she was maltreated by the appellants in her matrimonial home demanding money but she had filed the complaint with the police after 5 years. She did not explain the reasons for the delay in lodging the complaint with the police. This aspect creates doubt about the prosecution case. The informant cum victim did not produce any medical paper to show that she was treated by any doctor for the alleged physical torture she had in her matrimonial home. She did not explain the reasons for the delay in lodging the complaint with the police. This aspect creates doubt about the prosecution case. The informant cum victim did not produce any medical paper to show that she was treated by any doctor for the alleged physical torture she had in her matrimonial home. Besides, she also did not state that she lodged any complaint to the police about the incident of torture. On careful scrutiny of the evidence of the prosecution witnesses it does not prove beyond doubt that the informant was treated cruelly or harassed by the appellants so as to attract the offence under Section 498(A) IPC. The judgments referred to by the learned counsel appearing for the appellants appear to have governed the case of the appellants. 15. In view of the evidence available in case record and the decision referred to by the appellants' side, I am of the considered opinion that the prosecution has failed to establish that the victim Aparna Das(P.W.1) was harassed in her in laws house with a view to coercing her to meet the unlawful demand made by the accused appellants and as such the order of conviction and sentence recorded by the learned Judicial Magistrate 1st Class, Court No. 4, Agartala, West Tripura, in her judgment dated 05.08.2011 in case No. GR 880/2007 against the appellants namely Alok Dey, Smt. Devi Dey(Das) and Sri Niranjan Das is liable to be set aside." 10. I find total justification in the finding of the learned Sessions Judge in respect of the appreciation of evidence. The trial Court as it appears superficially examined the evidence on record and arrived at a finding of guilt of the accused persons which is not sustainable in law and fact. 11. In view of the discussions made above, the appeal against acquittal is found to be devoid of any merit and accordingly it stands dismissed. 12. Send back the L.C. records along with a copy of the judgment.