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Tripura High Court · body

2015 DIGILAW 28 (TRI)

Bishu Debnath v. State of Tripura

2015-01-19

S.C.DAS

body2015
JUDGMENT S.C. Das, J. 1. This criminal appeal under Section 374(2) of Cr.P.C. is directed against the judgment and order of conviction and sentence dated 16.03.2011 passed by the learned Additional Sessions Judge, South Tripura, Belonia in Sessions Trial Case No. S.T. 59(ST/B) of 2010, whereunder the learned Additional Sessions Judge found both the appellants guilty of committing offence punishable under Section 498A and 306 of IPC and sentenced both of them to suffer R.I. for three years and to pay a fine of Rs. 1,000/-, in default of payment to suffer R.I. for a further period of one month under Section 498A of IPC and further sentenced the accused-appellant, Bishu Debnath to suffer R.I. for seven years and to pay a fine of Rs. 2,000/-, in default of payment to suffer R.I. for another two months and Smt. Jashoda Debnath to suffer R.I. for three years and to pay a fine of Rs. 2,000/-, in default of payment to suffer R.I. for two months under Section 306 of IPC and directed that substantive sentences of imprisonment shall run concurrently. 2. Heard learned counsel, Mr. D.C. Roy, for the appellants and learned Additional Public Prosecutor, Mr. R.C. Debnath, for the State-respondent. 3. It is submitted by learned counsel Mr. Roy that accused-appellant, Bishu Debnath is in custody from the date of judgment, i.e. he has suffered about four years in the meantime including the period he was in custody during investigation and trial and accused-appellant Jashoda Debnath has been released on bail by the learned Addl. Sessions Judge. 4. Prosecution case is that marriage between Bishu Debnath and the deceased Gita Debnath was solemnized in the month of February, 2002 and thereafter they lived and cohabited in the matrimonial home at village Thakur Charra i.e. the house of accused Bishu Debnath along with mother of Bishu Debnath, namely, Jashoda Debnath. Since after marriage both the accused Bishu Debnath and Jashoda Debnath inflicted torture on Gita Debnath both physically and mentally and on that issue a Panchayat meeting was held at village Pachim Pillak including the members of both the Panchayat and the dispute was amicably settled and thereafter accused Bishu Debnath and the deceased Gita Debnath along with Jashoda Debnath lived together. But even thereafter torture started on Gita Debnath and on 16.02.2009 because of such torture Gita committed suicide by setting herself to fire after pouring Kerosene oil on her person. She died on that day. 5. On the basis of an FIR lodged by Sri Dilip Debnath, PW1, the elder brother of Gita Debnath, on 16.02.2009 itself, Baikhura P.S. Case No. 12/2009 under Section 498A and 306 read with Section 34 of IPC was registered and after investigation police submitted charge sheet against both the accused Bishu Debnath and Jashoda Debnath and accordingly, cognizance was taken on the basis of police report for commission of offence punishable under Section 498A and 306 of IPC. 6. In course of trial, learned Additional Sessions judge framed charges against both the accused for commission of offence punishable under Section 498A and 306 of IPC to which they pleaded not guilty and claimed to be tried. 7. Prosecution examined 13 witnesses, namely, PW1, Dilip Debnath, PW2, Mahim Lal Debnath, PW3, Narayan Chandra Roy, PW4, Smt. Mira Bhowmik, PW5, Smt. Purnima Nath, PW6, Smt. Niyati Nandi, PW7, Smt. Manju Dey, PW8, Samir Pal, PW9, Dipak Roy, PW10, Anil Chandra Datta, PW11, Keshab Ghosh, PW12, Badal Mallik and PW13, Mahadev Majumder. 8. Out of the witnesses, PW1 is the informant of the case and brother of deceased Gita Debnath. PW2 is a relative, i.e. uncle of Gita Debnath. PWs 3, 4, 5, 7, 8 and 9 are all neighbours of the accused persons and they are the important witnesses of the prosecution case. PW11 is the member of the Gaon Panchayat of the accused persons. PW6 is a resident of Pachim Pillak i.e. paternal village of deceased Gita Debnath. PW10 is the scribe of the FIR and PWs 12 and 13 are I/O of the case. Prosecution also proved the FIR, postmortem report, seizure list, hand sketch map of the P.O. etc. in course of trial. 9. After closure of the prosecution evidence the accused persons were examined under Section 313 of Cr.P.C. and in their turn they declined to adduce any defence evidence. Defence case is that of denial of the prosecution case. Prosecution also proved the FIR, postmortem report, seizure list, hand sketch map of the P.O. etc. in course of trial. 9. After closure of the prosecution evidence the accused persons were examined under Section 313 of Cr.P.C. and in their turn they declined to adduce any defence evidence. Defence case is that of denial of the prosecution case. At the time of cross-examination of the prosecution witnesses, it was suggested that the deceased Gita Debnath was suffering from various ailments for which Bishu being a poor man rendered possible treatment and that she committed suicide might be due to frustration of her ailments and both the accused pleaded their innocence. 10. The trial Court found both the accused guilty of the charges and sentenced them as aforesaid. 11. It is submitted by learned counsel, Mr. D.C. Roy that PWs 3, 4, 5, 7, 8 and 9 are all neighbours of the accused persons and they made omnibus statement of torture, but the material part of their statement was contradicted with their earlier statements and so based on their evidence it was not proper for the trial Court to record a conviction of the accused persons and the accused persons were entitled to get the benefit of doubt. There was no evidence at all of abatement of committing suicide and that the Panchayat meeting was held in the year 2002 as stated by PW11, the member of the Panchayat and the deceased committed suicide on 16.02.2009, i.e. after about 7 years of the occurrence. He has also submitted that the prosecution could not prove the date of marriage. PW1, the brother of the deceased Gita stated that the marriage was solemnized in the month of February, 2002 and the deceased committed suicide on 16.02.2009 and since exact date of solemnization of marriage has not been brought on record, the presumption of Section 113A of the Evidence Act may not be available. Since the evidence of PWs 3, 4, 5, 7, 8 and 9 are mechanical and the allegation made is omnibus in nature and contradicted with their earlier versions, the accused persons, who are husband and mother-in-law of the deceased, should not be held guilty of the alleged offences. Learned counsel, Mr. Roy, therefore, prayed for an order of acquittal. 12. Since the evidence of PWs 3, 4, 5, 7, 8 and 9 are mechanical and the allegation made is omnibus in nature and contradicted with their earlier versions, the accused persons, who are husband and mother-in-law of the deceased, should not be held guilty of the alleged offences. Learned counsel, Mr. Roy, therefore, prayed for an order of acquittal. 12. Learned Additional P.P., on the other hand, has submitted that PWs 3, 4, 5, 7, 8 and 9 are all neighbours of the accused persons and though it is suggested but nothing is proved that they had any animosity with the accused persons. While they made a consistent statement that the accused persons subjected the deceased Gita Debnath to cruelty and Gita Debnath told them about such torture, the evidence cannot be brushed aside on the ground that the witnesses did not tell the I/O at the time of their examination under Section 161 of Cr.P.C. that Gita Debnath told them about the occurrence. A careful scrutiny of the evidence of those neighbourers proves the charges and the trial Court rightly convicted them. 13. FIR lodged by PW1 has been proved by PW10, the scribe of the FIR, which is marked as Exbt.-1/1 and signature of the informant, i.e. PW1, has been proved and marked as Exbt.-1. On perusal of the FIR, we find that it was lodged just immediately after the death of Gita Debnath. So, Dilip Debnath being the elder brother of Gita Debnath was supposed to know as to what happened to Gita Debnath in her matrimonial home what he learnt from Gita Debnath. In the FIR PW1, the informant, stated that since after marriage, husband and mother-in-law of Gita Debnath started inflicting torture upon her both physically and mentally. What was the nature of torture and what was the reason for the torture has not been stated in the FIR. He has also stated that a Panchayat meeting was held at Pachim Pillak consisting of the members of both the family and the Panchayat members of both the Panchayat. He further alleged in the FIR that on 16.02.2009 the mother-in-law of Gita inflicted torture on Gita mentally and as a result she committed suicide setting herself to fire after pouring kerosene oil at about 10-30 am. 14. He further alleged in the FIR that on 16.02.2009 the mother-in-law of Gita inflicted torture on Gita mentally and as a result she committed suicide setting herself to fire after pouring kerosene oil at about 10-30 am. 14. In his evidence before the Court, PW1 stated that after six months of marriage Gita during her visit to his house informed them that her husband started torture upon her relating to day to day works of the family and also demanded money. After about two years of marriage she came to their house due to torture and stayed for about six months. Relating to dispute there was a meeting at West Pillak Panchayat involving representative of Thakurcharra and Paschim Pilak Panchayats and the meeting was attended by the accused and after the meeting Gita Debnath went to her husband's house. Thereafter things were normal and after about two months again torture was started on Gita Debnath. On 16.02.2009 at about 10-00 am she committed suicide. In cross-examination his attention was drawn to the FIR as well as his previous statement recorded by I/O to which the witness admitted that there was nothing that accused Bishu Debnath demanded money from his wife, i.e. the sister of the witness. His attention was also drawn to his previous statement to which he admitted that he stated nothing that Gita while visiting their house told her about the torture. A careful perusal of the evidence of this witness shows that he did not make any allegation against Jashoda Debnath, i.e., mother-in-law of Gita Debnath. He only made allegation against accused husband Bishu Debnath. He stated that Gita informed him about the torture but in cross-examination it transpires that he did not state to I/O in his previous statement that Gita told him so. Though in the FIR he made no statement about the demand of money, but in his evidence he stated about demand of money, but nothing specified as to what was the demand and when the demand was made and that statement also contradicted with his earlier statement. 15. PW2 is the uncle of the deceased and he stated that he was informed by Gita that her mother-in-law was not treating her well in the matrimonial home. 15. PW2 is the uncle of the deceased and he stated that he was informed by Gita that her mother-in-law was not treating her well in the matrimonial home. In his cross-examination his attention was drawn to his earlier statement wherein it was found that he did not make any such statement before I/O that Gita informed him about the torture upon her. 16. PW3 in his deposition stated that Gita was abused by her husband and mother-in-law regarding trifling family matters. At times she was also assaulted by them. They also demanded money from Gita and Gita used to inform them all the facts. After about a month of the torture she left for her father's house and stayed in the father's house for about a year. Thereafter a Panchayat meeting was held and Gita returned to her husband's house. After about a month of return, she was again tortured by her husband and mother-in-law. They used to assault her and even did not provide her proper food and treatment. In cross-examination his attention was drawn to his previous statement to which he admitted that the statement that Gita told him about the torture was not there. 17. The entire statement of this witness seems to be hearsay in nature. Nowhere he stated that being a neighbor he has seen anything or any torture by the accused persons on Gita. PW1, the elder brother of the deceased, neither in the FIR nor in his deposition stated anything that Gita was physically assaulted. This witness stated that Gita was physically assaulted but when and how nothing specified and nothing stated that he has seen at any point of time being a neighbour that Gita was assaulted by the accused persons. He has also stated that there was demand of money, but what was the amount and when the demand was made, nothing specified. So, it is very difficult to rely on such statement of the witnesses to record a conviction. The defence suggested that there was land dispute between the father of the accused and the witness and that dispute continued and, therefore, he made false statement about torture of Gita. 18. PW4 also made similar statement like that of PW3 that Gita told her about the torture, but in her previous statement there was no such statement made before I/O that Gita told her about torture. 18. PW4 also made similar statement like that of PW3 that Gita told her about the torture, but in her previous statement there was no such statement made before I/O that Gita told her about torture. The evidence of this witness also seems to be omnibus in nature since there is nothing specific. She has admitted that she is a member of Nari-Samiti and denied the suggestion that she approached Jashoda Debnath to be a member of her group, but since that was refused, she made false statement against the accused persons. 19. PW5, Smt. Purnima Nath, stated that after about 6/7 months of marriage Bishu Debnath started torture on Gita. He even used to assault her demanding money. His mother Jashoda Debnath used to demand money and assault her. As the adjacent neighbour she saw the incident and also used to hear what they said. They also used to torture her on the pretext that whatever household works she used to do was not properly done. She(Gita) was not even taken to the Doctor for her treatment. Even proper food was not given to her. For the assault and torture Gita went to her father's house after about a year and half of the marriage. She returned to her husband's house after about five months following a Panchayat meeting. Sometime after her return, Bishu and his mother started assault and torture on Gita. In cross-examination she admitted that the statement that Bishu and his mother Jashoda Debnath used to assault Gita on demand of money was not there. This witness being the neighbour stated that she saw the incident of torture on Gita, but when she saw such incident has not been clearly stated. It is already discussed above that PW1, the elder brother of the deceased Gita, being the best witness to know about the physical assault on Gita, if any, stated nothing that Gita was physically assaulted by the accused persons. Whereas this witness(PW5) stated that Gita was physically assaulted, but when and how she saw it has not been elaborated in her deposition. Defence has suggested that there is boundary dispute between the witness and the accused persons and, therefore, the witness made false statement about torture. Whereas this witness(PW5) stated that Gita was physically assaulted, but when and how she saw it has not been elaborated in her deposition. Defence has suggested that there is boundary dispute between the witness and the accused persons and, therefore, the witness made false statement about torture. So, isolatedly the evidence of this witness also cannot be relied to arrive at a conclusion that Gita was subjected to torture or tormentation in the house on demand of money or otherwise. 20. There is nothing material in the evidence of PW6. 21. PW7 stated that the relation between Gita and Bishu Debnath and his mother, Jashoda Debnath, were normal for about six months after marriage and thereafter Bishu and his mother Jashoda started torture on Gita and also assaulted her on the ground of household works. It was alleged that she did not do the household works properly. They also used to demand money and did not provide her food properly. Gita used to tell those facts to her when she met her. In cross-examination she admitted that in her previous statement recorded by I/O there was no such statement that Gita used to tell her about the torture upon her or about the demand of money and that Gita used to tell her that she was not being provided with food by her husband and mother-in-law. So, the material part of the statement of this witness is found to be statement first in point of time before the Court and it was not stated to the I/O when she was first examined by I/O. 22. PW8 stated that after six months of marriage Bishu and his mother started torture on Gita on the pretext that household works were not properly done. Gita used to complain about torture to Satyanarayan Banik, Pradhan of the village. There was a Panchayat meeting on the issue and thereafter again they lived together, but Gita was again subjected to torture. In cross-examination the witness admitted that Satyanarayan Banik, the village Pradhan is alive. He stated to I/O that he learnt about the torture when Gita used to narrate about it to satyanarayan banik. His attention was drawn to his previous statement recorded by I/O to which he admitted that the statement is not there. This witness also as it appears made an omnibus statement about the torture and there is nothing specific. 23. He stated to I/O that he learnt about the torture when Gita used to narrate about it to satyanarayan banik. His attention was drawn to his previous statement recorded by I/O to which he admitted that the statement is not there. This witness also as it appears made an omnibus statement about the torture and there is nothing specific. 23. PW11 is a member of the Panchayat of the accused and he stated that in the year 2002 there was a joint meeting of Thakurchara Panchayat and West Pillak Panchayat and the meeting was held in the month of December, 2002. Bishu Debnath and his mother were present in the meeting and Gita Debnath and her father were also present. The Pradhan of the West Pillak Panchayat was present in the meeting. The witness and another Dwijendra Nath from Thakurchara Panchayat were present in the meeting. In the meeting Bishu Debnath admitted his fault and promised that he will not torture Gita further. Gita Debnath intended to return to her husband's house and since she agreed to return to her husband's house, she was taken back to her husband's house. The evidence of this witness has not been shaken in cross-examination. We find in the evidence of this witness that in the year 2002, i.e. the year of marriage of accused Bishu and Gita, the Panchayat meeting was held. The incident occurred in the year 2009 i.e., after about 7 years of the Panchayat meeting. So, this Panchayat meeting on the issue cannot be taken as of any consequence to arrive at a conclusion that Gita was subjected to cruelty by the accused persons. 24. As already stated earlier, in the FIR there was no allegation of demand of money. The material witnesses in their deposition before the Court stated that there was demand of money, but what was the amount demanded and when the demand was made, there is nothing in the evidence. All the witnesses made omnibus statement of torture that Gita was not doing the household works properly and, therefore, she was subjected to torture. How the torture was inflicted has not been stated by the witnesses. The evidence recorded during trial seems to be very cripple and is not exhaustive in nature. 25. To establish cruelty the prosecution has to establish firstly the willful conduct of the offender. How the torture was inflicted has not been stated by the witnesses. The evidence recorded during trial seems to be very cripple and is not exhaustive in nature. 25. To establish cruelty the prosecution has to establish firstly the willful conduct of the offender. Secondly that the nature of such conduct was likely to drive the woman to commit suicide or to cause grave injury or danger to her life or limb. The cruelty may be mental or physical. Secondly the prosecution has to prove that the woman was subjected harassment with a view to coercing her or any person related to her to fulfill any unlawful demand. The second ground of cruelty, i.e., harassment for non-fulfillment of any unlawful demand has not been proved at all. Regarding the willful conduct which might drag a woman to commit suicide, prosecution has led evidence of witnesses which are omnibus in nature and there is nothing specific as to what was the torture inflicted, how and when. 26. On an apparent reading of the deposition of PWs 3, 4, 5, 7, 8 and 9 it may transpire that the deceased Gita Debnath was subjected to torture by the accused persons. The allegation that Gita was subjected to torture since she could not do the household works properly, as desired by the accused persons, is an allegation omnibus in nature. Admittedly, Gita and accused persons lived together for about 7 years. Marriage was solemnized in the month of February, 2002 and on 16.02.2009 she committed suicide. Since the exact date of marriage could not be said by the prosecution it cannot be held that within 7 years of marriage she committed suicide and, therefore, the presumption of Section 113A may not be drawn. 27. There is no evidence of abatement. Abatement is defined in Section 107 of IPC. A careful perusal of the evidence on record, I find no positive evidence of abatement. Had the prosecution could prove that Gita was subjected to cruelty, either on demand of money or otherwise because of any willful act or neglect, it would be presumed that the suicide was abated because of exercise of cruelty. Since there is no positive and acceptable evidence of exercise of cruelty, it is very difficult to arrive at a conclusion that Gita was abated to commit suicide by the accused persons. 28. Since there is no positive and acceptable evidence of exercise of cruelty, it is very difficult to arrive at a conclusion that Gita was abated to commit suicide by the accused persons. 28. In my considered opinion, prosecution evidence so far on record, is not sufficient enough to hold that the accused persons exercised cruelty on Gita and that they thereby abated commission of suicide of Gita in the matrimonial home. It is most unfortunate that a young woman committed suicide by setting herself to fire pouring kerosene oil on her person. There might be any reason behind it, but unless it is proved with positive and definite evidence, it will not be proper to hold the accused appellants guilty of the offence. The accused-appellant Bishu Debnath is in custody for about 4 years and the other accused Jashoda Debnath is on bail. 29. In my considered opinion, after proper appreciation of the evidence on record I am of considered view that the accused persons are entitled to get the benefit of doubt. 30. Accordingly, the appeal is allowed. The accused persons are given the benefit of doubt and acquitted from the charges. Both the accused persons are set at liberty. The accused-appellant Bishu Debnath be released from custody forthwith. 31. Send back the lower court record along with a copy of this judgment.