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Tripura High Court · body

2019 DIGILAW 39 (TRI)

Md. Rakesh Miah v. State of Tripura

2019-05-31

S.TALAPATRA

body2019
JUDGMENT : S. TALAPATRA, J. 1. The appellant was charged under Section 498A of the IPC for committing cruelty against the victim namely Monalisa Sarkar, his wife on 15.08.2009 on unlawful demand and after trial the appellant has been convicted under Section 498A of the IPC by the judgment dated 18.02.2011 delivered in Case No. GR 416/09 by the Chief Judicial Magistrate, South Tripura, Udaipur now Gomati Judicial District, Udaipur and the appellant was sentenced in terms thereof to suffer rigorous imprisonment for a period of 3 (three) years and to pay fine of Rs. 50000/- with default stipulation. 2. Being aggrieved, the appellant filed an appeal under Section 374(3) of the Cr.P.C. in the court of the Session Judge, Gomati Judicial District, Udaipur being Crl. App. No. 14(1) of 2011. By the judgment dated 17.12.2015, the appellate court determined the appeal upholding the conviction but reducing the sentence to 2 (two) years rigorous imprisonment with fine of Rs. 10,000/- with default stipulation. Now the appellant has challenged the said judgment dated 17.12.2015 in this purported 'appeal' as according to him, the appellate court has perversely appreciated the evidence and even though the prosecution has failed to establish the charge beyond reasonable doubt, the finding of conviction has been returned. 3. There is no submission or explanation how this appeal is maintainable. Section 374 of the code of criminal procedure, the Cr.P.C., in short, provides that any person convicted on a trial held by a High Court in its extra ordinary original criminal jurisdiction may appeal to the Supreme Court or any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or any trial held by any other court in which a sentence of imprisonment for more than 7(seven) years has been passed against him or against any other person convicted at the same trial may appeal to the High Court. 4. However, under Sub-section (3) of the Section 374 of the Cr.P.C. it is provided that save and otherwise provided in Sub-section (2) any person convicted on a trial held by a Metropolitan Magistrate or Assistant Session Judge or Magistrate of the 1st Class or of the 2nd Class or sentenced under Section 325 or in respect of whom the order has been made or a sentence has been passed under Section 360 by any Magistrate may appeal to the court of Sessions. It is distinctly clear that the judgment passed by the Sessions Judge has been so passed by invoking its appellate jurisdiction and hence it cannot be appealed against to the High Court. Clearly, this appeal is not maintainable. However, since the grounds of objection have been raised, this court would decide those grounds in exercise of its discretion as conferred by Section 401 of the Cr.P.C. on scrutiny of the records. It is needless to note that while exercising the power under Section 401 of the Cr.P.C., the court can exercise any powers given to the court of appeal by Sections 386, 389, 390 and 391 or on a court of session by Section 307 of the Cr.P.C. 5. The basic facts required to be noted for purpose of appreciation are that a complaint was filed by the victim namely, Monalisa Sarkar on 18.08.2009 (Exbt. 1) revealing that her mother-in-law demanded a sum of Rs. 1,00,000/- in cash, motor bike, 6 bhoris [more than 60 grams] of gold jewelries to be brought from her paternal home. To accelerate realization of those demands, the victim was physically tortured. In the year 2003, in the eve of Durga Puja festival and thereafter, in the year 2006 again the victim was subjected to physical and mental torture for realizing the said demand. At that time, she was threatened that she might be killed by her son. Failing to bear with such torture, she had informed her father. Her father had expressed his inability to fulfill such demand. As a result, the torture increased. There had been initiative to settle the matter by mediation in the locality but also steps failed to produce any positive result. Even attempts as taken by the Family Counseling Centre in 2007, did result in any positive yield. 6. Lastly, on 12.03.2018, the victim was assaulted by the accused persons namely Rakesh Miah, Rahul Miah and Sishu Miah. In the complaint it has been categorically stated as follows: "On 16/08/2009 AD at night around 8 o'clock, at the instigation of the other accused persons, my husband mercilessly assaulted me after bolting the door. The neighbouring people came hearing my outcry and compelled my husband to open the door. Under such circumstances, I fled through the back door and for the sake of my self-protection I took shelter under bush. The neighbouring people came hearing my outcry and compelled my husband to open the door. Under such circumstances, I fled through the back door and for the sake of my self-protection I took shelter under bush. By this time, getting call from the neighbouring people my father and uncle came running and informed the same in the police station. Thereafter, search operation started for me all around and hearing clamor of many people I came out. Within this time, O.C. came to the occurrence place and hearing the statement of mine and the neighbouring people rescued me and brought me in the Udaipur police station." 7. On the next day, the appellant returned her son to her custody after appearing in the house of her parents. Based on the said complaint dated 18.08.2009 R.K. Pur P.S. Case No. 288/09 dated 18.08.2009 was registered under Section 498A/109 of the IPC and taken up for investigation. On completion of investigation, the police report was filed and the Chief Judicial Magistrate took cognizance of the offence punishable under Section 498A of the IPC on the said police report. Thereafter, the charge was framed as stated under Section 498A of the IPC, to which appellant and the co-accused pleaded not guilty and pray for trial. Hence, the reference would be made only to the appellant. 8. In order to substantiate the charge, the prosecution adduced as many as 9(nine) witnesses including the victim and the persons who had the knowledge of cruelty as inflicted on the victim, as well as the police officer who carried out the investigation. Apart from adducing the oral evidence by PWs 1 to 9, the prosecution had introduced one documentary evidence namely, the complaint (Exbt.1). After the prosecution evidence was recorded, the appellant was examined under Section 313, read with Section 281 of the Cr.P.C. for having his response on the incriminating materials. The appellant reiterated his plea of innocence during the said examination. The trial court on appreciation of the evidence returned the finding of conviction which was upheld by the appellate court by the impugned judgment. 9. Mr. Somik Deb, learned counsel appearing for the petitioner has referred from the records that there is no evidence of continuous torture to form the offence punishable under Section 498A of the IPC. The trial court on appreciation of the evidence returned the finding of conviction which was upheld by the appellate court by the impugned judgment. 9. Mr. Somik Deb, learned counsel appearing for the petitioner has referred from the records that there is no evidence of continuous torture to form the offence punishable under Section 498A of the IPC. There are lot of improvements made by the witnesses from their previous statement as recorded by the investigating officer under Section 161 of the Cr.P.C., while they deposed in the trial. 10. That apart, it has been asserted that the information [the complaint] was lodged belatedly inasmuch as the occurrence took place on 16.08.2009 whereas the complaint has filed on 18.08.2009. On the same set of evidence, the co-accused are acquitted and for that no reason is assigned. 11. Mr. Deb, learned counsel has submitted that from reading of the evidence as adduced by the prosecution it would be apparent that the prosecutions failure is has surfaced on the phase to infer that the charge has not been proved to the hilt or beyond reasonable doubt. Mr. Deb, learned counsel has taken this court to the evidence to buttress his submission. 12. From the other side, Mr. A. Roy Barman, learned Addl. P.P. appearing for the State has categorically stated that all the ingredients of offence punishable under Section 498A of the IPC are established by the prosecution beyond reasonable doubt. It is apparent that the trial court's finding of conviction has been on appreciation, upheld by the appellate court, however, the sentence was reduced the some extent. 13. Mr. Roy Barman, learned Addl. P.P. has further submitted that there is a serious question of law involved in this appeal. This court does not have any appellate jurisdiction from the impugned judgment. He has therefore submitted that this action be shot down without any further consideration. This question has been attended by this court at the beginning. For purpose of appreciation of submissions made by the learned counsel for the parties it would be apposite to make a meaningful survey of the evidence as recorded by the trial court. It is true that the appellant has failed to invoke appropriate jurisdiction of this court but on exercising the discretion this court is inclined to exercise its powers conferred on it under Section 401 of the Cr.P.C. 14. It is true that the appellant has failed to invoke appropriate jurisdiction of this court but on exercising the discretion this court is inclined to exercise its powers conferred on it under Section 401 of the Cr.P.C. 14. PW-1, Smt. Monalisa Sarkar filed the complaint (Exbt. 1). She has stated that in December, 2002 she was married to the appellant. Immediately after their marriage, her husband (the appellant), her father-in-law namely, Sishu Miah, her mother in law namely, Javeda Khatun and brother-in-law Rahul Miah started torture on her on demand of Rs. 1,00,000/- in cash along with gold ornaments, furniture, motor bike etc. Her father managed to pay Rs. 50,000/- in cash, golden ornaments and one motor bike to her husband. For sometimes she lived happily but again the demand for Rs. 1,00,000/- was raised but due to poverty her father could not fulfill the demand. 15. The appellant along with the other accused started torture on her. Being unable to bear such torture, she took shelter in her father's house. She has given the details of torture and unlawful demand in the trial stating that she was subjected to such torture on various days including on 16.08.2009 when at 7:30/8:30 pm, her husband [the appellant] had mercilessly assaulted her. On hearing her cry, the neighbouring people came and compelled her husband to open the door. Out of fear, the concealed herself on the bank of the pond. The neighbouring people had informed the police, as well as the father and uncle of the victim. On the following day the police recovered her baby from the house of the accused and brought the baby to her father's house. In the cross-examination, she was confronted with those facts as laid bare in the trial when she denied every suggestion, contrary to what she had stated in the examination in chief. However, she has admitted that she did not mention in her complaint that the police recovered her son from the accused and handed over to her. 16. PW-2, Ratna Saha is acquainted to the appellant and the victim. She witnessed the occurrence on 16.08.2009. She has stated that the victim was bolted inside the hut. After sometime, they saw the father of the petitioner coming with the police. The victim in front of her stated that she was assaulted by the appellant on unlawful demand of one house at Dakbanglow Road. She witnessed the occurrence on 16.08.2009. She has stated that the victim was bolted inside the hut. After sometime, they saw the father of the petitioner coming with the police. The victim in front of her stated that she was assaulted by the appellant on unlawful demand of one house at Dakbanglow Road. In such circumstances, she left the matrimonial home and started staying in her parental home. In the cross-examination, she has admitted that she made the statement to the police officer that she was subjected to torture on several occasions during her stay with the appellant on a rented house. The appellant used to suspect her fidelity. She has also admitted that the appellant had a Vespa (motor cycle) but she denied that the accused did not assault her by shutting the door. 17. PW-3, Gopal Neogi is the land-lord of the rented house where the appellant and the victim used to stay. He has stated that on 16.08.2009 at about 9.00 pm he returned home and found a commotion in his house. On his asking his wife told that the appellant had assaulted his wife. His wife compelled the appellant to open the door of the room where he had assaulted his wife. As soon as he opened the door, the victim rushed out into shelter outside the house. PW3, informed her father. Her father came and in his presence, the police came to the place of occurrence. The appellant left the house in scooter with his son. On the following day, the minor son was returned to her paternal house. In the cross-examination, PW3 has admitted that he did not inform the father of Monalisa Sarkar over phone about the torture on her. 18. PW-4, Muzaffar Ahamed Khadim is the witness to the marriage of the victim and the appellant and he has stated that he had been aware of what she had stated in her examination-in-chief could be dented. 19. PW-5, Binod Karmakar, was the witness to the marriage ceremony and he had given a small description of the marriage ceremony. After 3 (three) months from the marriage, the appellant and the parents of the appellant started torturing the complainant [Monalisa] on demand of cash, gold ornaments and other articles including the motor bike. He has stated that there were 3 (three) counselings. After 3 (three) months from the marriage, the appellant and the parents of the appellant started torturing the complainant [Monalisa] on demand of cash, gold ornaments and other articles including the motor bike. He has stated that there were 3 (three) counselings. In one of the counseling, the appellant had confessed his guilt and assured that in future they would live happily. But the assurance did create no impact on his conduct. On 16.08.2008 at night, the petitioner left the matrimonial home being tortured as stated. In a longish cross-examination several attempts were made by the appellant, but no contrary statements could be brought out from her. In the cross-examination, PW-5 has stated to the investigating officer that the police was informed by them. 20. PW-6, Sarkar Naushad Ahamed is the father of the victim. In the trial he has stated that on 17.12.2002, marriage of his daughter with the appellant was solemnized as per Muslim Shariat law in the house of Rakesh Mia, the appellant. After marriage her daughter lived peacefully in the matrimonial home for 2/3 months. But thereafter, the appellant and his father including the other relatives started treating the victim with cruelty on demand of cash amounting to Rs. 1,00,000/-, golden ornaments and other articles. Somehow, he managed a sum of Rs. 50,000/- and gave the same to the appellant. Even some gold ornaments, other furnitures and motor bike were given to the appellant. He has advised him to bury the dispute. There were three counseling in the Family Counseling Centre. According to him, during counseling the appellant confessed the guilt. The appellant had also assured that he would not indulge in torture of his daughter. Failing to bear such torture, his daughter [the victim] came to take shelter in his house. During her stay in his house, the appellant filed one suit for restitution of conjugal rights in the court of the Family Judge, Udaipur, Gomati Tripura. For sometime, the appellant and the victim resided in a rented house at Rajnagar. But the victim could stay with the appellant there, hardly for three months. During her stay with the appellant, particularly on 16.08.2009, the owner of the said house informed PW-6 over phone that the appellant was torturing her daughter. Thereafter, he reached to the matrimonial home of the victim with one Partha Karmakar. The allegation of beating her got confirmed. But the victim could stay with the appellant there, hardly for three months. During her stay with the appellant, particularly on 16.08.2009, the owner of the said house informed PW-6 over phone that the appellant was torturing her daughter. Thereafter, he reached to the matrimonial home of the victim with one Partha Karmakar. The allegation of beating her got confirmed. In the cross-examination, he stood by his statement made in the examination-in-chief. When he was confronted in respect of the family counseling, he has stated that he revealed every details of things to the investigating officer. He has confirmed that he paid the appellant a sum of Rs. 50,000/- being pressurized by him. He has admitted that the investigating officer had interrogated him and during such interrogation he had stated that there was counseling. On 16.08.2009, the appellant left his rented house with his child and started residing in his ancestral house at Khilpara. The suggestions as projected to him, were all squarely denied except those parts which he had admitted in his examination-in-chief. 21. PW-7, Jahanara Begam is the wife of the younger brother of PW-6. She has corroborated the fact that under compulsion, PW-6 gave Rs. 50,000/-, one motor bike and golden ornaments to the appellant. Even thereafter, the torture on the victim did not stop. The matter was taken to the Family Counseling Centre. After counseling in the Family Counseling Centre, the appellant and the victim started living together in a rented house. On 16.08.2009 at about 8 p.m. they got a phone apprising that the appellant assaulted the victim and she was missing. Subsequently she was recovered by the police. She had also heard from different people that she was being tortured by the appellant. But her statement that PW-6 gave Rs. 50,000/-, motor bike and golden ornaments was not found in her previous statement recorded under Section 161 of the Cr.P.C. She denied the statement made in suggestion, that the family of the victim wanted him to stay as the resident husband. 22. PW-8, Smt. Kanoj Datta stated that she had queried the appellant about what had happened in their relation. During counseling, the appellant admitted his guilt and promised not to repeat such cruelty again. In the cross-examination, she has admitted that she did not see any incident and she did not have any knowledge of the incident. 22. PW-8, Smt. Kanoj Datta stated that she had queried the appellant about what had happened in their relation. During counseling, the appellant admitted his guilt and promised not to repeat such cruelty again. In the cross-examination, she has admitted that she did not see any incident and she did not have any knowledge of the incident. The suggestions that were put to her were all denied. 23. PW-9, Tapan Bhowmik has stated in the trial that on 18.08.2009 he received the written complaint from one Monalisa Sarkar. On the basis of the allegation, he recorded the case in the form of FIR. He identified his signature [Exbt. 2]. Thereafter he himself took up the investigation and filed the police report. In the cross-examination, he did not show any fragility. He filed the police report after completion of the investigation. Before that, he recorded the statements of the witnesses and prepared the hand sketch map with index [Exbt. 3]. He denied all the suggestions as projected by the defence. 24. It appears to this court that the victim was subjected to cruelty continuously for few years after her marriage on unlawful demand. Even though Mr. Deb, learned counsel has pointed out that there is no proof that the victim was subjected to cruelty within the meaning of Section 498A of the IPC. He has also asserted that the testimonies of the witnesses are visited by improvement and as such conviction warrants interference. Moreover, the first information was lodged belatedly on 16.08.2009 and the complaint (ejahar) was lodged on 18.08.2009. There is no explanation. Further, Mr. Deb, learned counsel has submitted that on the same set of evidence, the other accused person namely Sishu Mia has been acquitted from the charge. There cannot be two different scales for conviction or acquittal by the trial court. The trial judge had convicted both the accused persons under Section 498A of the IPC. On appeal, by the judgment dated 18.02.2011 delivered in GR 416/2009 the accused person's conviction was upheld under Section 498A of the IPC. 25. By the impugned judgment dated 17.12.2015, the conviction was only confirmed in respect of the present appellant. However the sentence was modified by way of reduction to two years with fine of Rs. 10,000/- with default stipulation as stated. From reading of the evidence it has surfaced that the appellant used to torture the victim. 25. By the impugned judgment dated 17.12.2015, the conviction was only confirmed in respect of the present appellant. However the sentence was modified by way of reduction to two years with fine of Rs. 10,000/- with default stipulation as stated. From reading of the evidence it has surfaced that the appellant used to torture the victim. Even both of them attended the Family Counseling Centre at Udaipur. But what has been stated to the effect that, in the course of counseling the appellant admitted his guilt and assured that he would not indulge in the cruelty cannot be appreciated unless the bar of Section 60 of the Evidence Act is not removed following the due process. Lastly, on 16.08.2009 the victim was severely beaten and being unable to live in the matrimonial home she took shelter in her parent's house and from there she lodged the complaint to the police station on 18.08.2008. The delay is not inordinate and comprehensible in the circumstances. The important witnesses turned hostile. But the witnesses supported the prosecution case as they placed the truthful account of the incident particularly PW-1 has stated that the appellant realized 50,000/- from her father. PW-6 [the father of the victim] has stated that he paid that sum of Rs. 50,000/- to save her daughter from the outrage of the appellant. This court has failed to find any material which could be based for interference in the finding of conviction, returned by the appellate court. Accordingly, this appeal which is not maintainable, ex facie, is dismissed on due consideration was made in terms of Section 401 of the Cr.P.C. There are evidence of recurrence of cruelty. Thus, the theory of one act cannot be applied in the instant case. 26. Be that as it may, this court is of the view that, the sentence may further be reduced. Accordingly, it is directed that the appellant shall suffer rigorous imprisonment for one year with fine of Rs. 5,000/- and in default of payment of fine, the appellant shall suffer simple imprisonment for one month. The appellant, as he is on the bail, shall surrender in the court of the Chief Judicial Magistrate, Gomati Judicial District, Udaipur within a period of 15(fifteen) days from today to serve out the sentence. 5,000/- and in default of payment of fine, the appellant shall suffer simple imprisonment for one month. The appellant, as he is on the bail, shall surrender in the court of the Chief Judicial Magistrate, Gomati Judicial District, Udaipur within a period of 15(fifteen) days from today to serve out the sentence. It is needless to say that the detention, if any, as suffered by the appellant will be set off from the substantive imprisonment in terms of Section 328 of the Cr.P.C. Thus, this appeal stands partly allowed. Send down the LCRs forthwith.