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2016 DIGILAW 106 (TRI)

Nandalal Roy v. State of Tripura

2016-04-18

S.C.DAS

body2016
JUDGMENT : This revisional application, under Section 397 read with Section 401 of Cr.P.C. is directed against the judgment and order dated 21.09.2012, passed by learned Addl. Sessions Judge, Dharmanagar, North Tripura, in Criminal Appeal No.34/2012 where under the judgment and order of conviction and sentence, dated 26.07.2012, passed by learned Sub Divisional Judicial Magistrate, Kanchanpur, North Tripura in Case No.GR 21/2011 was upheld. 2. Heard learned counsel, Mr. S. Kar Bhowmik for the accused-petitioner and learned Addl. P.P., Mr. R.C.Debnath for the State-respondent. 3. Prosecution case is that Smt. Namita Roy (P.W.2) filed a written complaint before the S.D.J.M., Kanchanpur on 10.11.2010 alleging inter alia that her marriage was solemnized with the accused-petitioner Nandalal Roy in the month of March, 2001 and thereafter they lived and cohabited as husband and wife and two child were born out of their cohabitation. Her husband Nandalal Roy at the instigation of his father Manmohan Roy, used to inflict torture upon her on demand of Rs.20,000/- as dowry. When she expressed her inability to bring the amount from her parental house, the torture was increased. On 06.05.2010, both the accused persons physically tortured her on demand of Rs.20,000/- and thereafter her husband left her after conspiracy with her father-in- law. No maintenance was given to her. Thereafter being compelled she took shelter in her parental home on 04.10.2010. 3.1 The complaint filed by Namita Roy was sent to the O.C., Pecharthal P.S. to register it as an FIR and accordingly, Pecharthal P.S. Case No.06/11 under Section 498(A)/34 of IPC was registered against Nandalal Roy alias Nanda Roy and his father, Manmohan Roy. 3.2 After investigation, Police submitted charge-sheet against Nandalal Roy and in course of trial, learned SDJM framed charge against accused Nandalal Roy for commission of offence punishable under Section 498(A) of IPC to which he pleaded not guilty and claimed to be tried. 4. Prosecution examined 8(eight) witnesses altogether and out of them P.W.1 is the minor son of Nandalal Roy; P.W.2 is the victim woman herself; P.Ws 3 and 4 are the parents of Namita; P.Ws. 5, 6 and 7 are the independent witnesses of the locality and P.W.8 is the I.O. of the case. 5. After closure of the prosecution evidence, accused was examined under Section 313, Cr.P.C. and in his turn accused did not adduce any defence evidence. Defence case is that of denial of the prosecution case. 5, 6 and 7 are the independent witnesses of the locality and P.W.8 is the I.O. of the case. 5. After closure of the prosecution evidence, accused was examined under Section 313, Cr.P.C. and in his turn accused did not adduce any defence evidence. Defence case is that of denial of the prosecution case. 6. At the conclusion of trial, learned S.D.J.M. found the accused-petitioner guilty of committing offence punishable under Section 498(A) of IPC and sentenced him to suffer R.I. for one year and to pay a fine of Rs.10,000/- in default to suffer S.I. for two months. 7. Aggrieved the accused-petitioner preferred Criminal Appeal No. 34 of 2012 in the Court of learned Addl. Sessions Judge, Dharmanagar and the appeal was dismissed by impugned judgment and order dated 21-09-2012 and hence this re-visional application. 8. Learned counsel, Mr. Kar Bhowmik has submitted that the trial Court as well as the appellate Court arrived at a perverse finding. There is no cogent evidence of exercise of cruelty. The victim Namita alleged that she was tortured on 06.05.2010. The complaint was filed on 10.11.2010 but in her deposition and in the deposition of her parents they made a clear statement that for last 7 years, the alleged victim Namita was residing at her parental home with her children. Therefore, it is apparent that a false allegation was made since there were matrimonial discord between the husband and wife. All the independent witnesses i.e. P.Ws 5, 6 and 7 did not support the prosecution case at all. In such circumstances, since it was a perverse finding, the judgment and order of conviction of sentence is liable to be set aside. 9. Learned Addl. P.P., Mr. Debnath fairly submitted that the victim has stated about her tales of torture. But it is true that she made a clear statement that for last 7 (seven) years she has been residing in her parental home whereas in the FIR she stated that she was physically tortured on 06.05.2010. If that contradiction is ignored, the prosecution case can be accepted and proved. 10. While exercising re-visional power, this Court is not ordinarily required to re-appreciate the evidence on record which has already been appreciated by the trial Court as well as the appellate Court. But if there is an allegation of perversity, the re-visional Court is required to look into the evidence. 11. 10. While exercising re-visional power, this Court is not ordinarily required to re-appreciate the evidence on record which has already been appreciated by the trial Court as well as the appellate Court. But if there is an allegation of perversity, the re-visional Court is required to look into the evidence. 11. I have meticulously gone through the evidence and materials on record. The complaint was filed on 10.11.2010 by the victim woman i.e. Namita Roy. She alleged that her marriage was solemnized in the month of March in the year 2001 and since after marriage, the accused-petitioner and his father inflicting torture on her on demand of Rs.20,000/-. She made clear statement that on 06.05.2010 she was assaulted by both the accused persons on demand of Rs.20,000/- and thereafter accused-petitioner left the house for an unknown place at the instigation of his father and thereafter she took shelter in her parental home on 04.10.2010. 12. P.W.1 is the minor son of the informant Namita Roy. He stated nothing incriminating against the accused. P.W.2 the complainant Namita Roy made a clear statement that for last 7(seven) years she has been residing in her parental home and having a miserable life. Her husband is not interested to maintain her and her children. She also stated that she was beaten up mercilessly on demand of Rs.20,000/- but obviously it was 7 years before the date of her deposition. She was examined as a witness before the Court on 21.03.2012. In her deposition she did not state any date and time on which she was beaten up on demand of Rs.20,000/-. If we count 7 years from the date of her recording deposition it comes to show that she last resided in her husband’s house in the year 2005 and thereafter continuously residing in her parental home. P.Ws 3 and 4 i.e. her parents made similar statements. 13. P.Ws 5, 6 and 7 are the independent witnesses. There is nothing incriminating in the statements of P.Ws 5, 6 and 7. 14. Section 498(A) of IPC prescribes punishment for exercise of cruelty. The provision was inserted to curve the vices of cruelty on the married woman by her husband and other members of the in-laws house. The prosecution has to prove that the woman was subjected to cruelty in the matrimonial home. 14. Section 498(A) of IPC prescribes punishment for exercise of cruelty. The provision was inserted to curve the vices of cruelty on the married woman by her husband and other members of the in-laws house. The prosecution has to prove that the woman was subjected to cruelty in the matrimonial home. The word “cruelty” has been explained in explanation to Section 498(A) which reads as follows:- “(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 15. The prosecution has to prove that the accused willfully conducted in such a manner towards his wife which is likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health. In the present case there is no such allegation either in the complaint petition or in the evidence. Explanation (b) prescribes that the prosecution is required to prove that the victim woman was harassed with a view to coercing her to meet unlawful demand. 16. Here in this case, the victim stated that she was subjected to torture on demand of Rs.20,000/-. Matrimonial offences are committed within the four walls of matrimonial home and so neighbors cannot be readily available to know the nature of cruelty exercised on the woman. But the allegation has to be proved with material particulars. Omnibus statement of exercise of cruelty cannot prove the case. Here Namita (P.W.2) made allegation that since after marriage she was subjected to torture on demand of Rs.20,000/-. Though in the FIR she stated that on 06.05.2010 both the accused persons inflicted physical torture upon her but in her deposition she stated nothing of the sort rather she made a statement that she was subjected to torture/assault on demand of Rs.20.000/- and thereafter she took shelter in her parental home and for last 7 years she is residing in her parental home. If that statement is true, this allegation made in the FIR was false. If that statement is true, this allegation made in the FIR was false. There is nothing in the deposition of P.W.2 on which date, time and in what manner she was subjected to cruelty. P.Ws 3 and 4 the parents of Namita are not eye witnesses of the alleged cruelty and what they stated are simply hearing from Namita. So while statement of Namita cannot be accepted as a true statement, the statement of P.Ws 3 and 4 does not require to be discussed further. 17. The trial Court as well as the appellate Court abruptly arrived at a finding of guilt of the accused without weighing the evidence on record. Simply because an allegation of torture made, the Court should not jump to a conclusion of guilt of the accused. The evidence must prove the ingredients of the offence. An omnibus statement about physical torture on demand of money is not sufficient to prove a charge under Section 498(A) of IPC. 18. In view of the discussions made above, I am of considered opinion that the charge framed against the accused has not been proved. 19. The re-visional application is accordingly allowed. The judgment and order of conviction and sentence dated 26.07.2012, passed by learned SDJM, Kanchanpur in GR Case No. 21 of 2011 and affirmed by learned Addl. Sessions Judge, Dharmanagar, North Tripura by judgment and order dated 21.09.2012 in Criminal Appeal No.34 of 2012 are set aside. 20. Send back the L.C. records along with a copy of this judgment.