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2022 DIGILAW 75 (TRI)

Samir Kar v. State of Tripura

2022-02-14

ARINDAM LODH

body2022
JUDGMENT Arindam Lodh, J. - This appeal is directed against the judgment and order of conviction and sentence dated 12.07.2019, passed by the learned Addl. Sessions Judge, Sepahijala District, Bishalgarh in case No. S.T.(T/II) 10 of 2015, whereby and whereunder 9(nine) accused-appellants, namely Sima Gegam, Maya Rani Begam, Firoj Miah, Kiran Miah, Rabiya Begam, Swapna Bibi, Samayan Kabir, Suman Miah and Arati Debnath have been convicted under Sections 143, 342, 352, 325, 354 & 354B read with Section 149 of IPC and other 4(four) accused-appellants, namely Samir Kar, Rinku Kar, Kajal Kar and Maya Rani Kar, have been convicted under Section 498-A of IPC and sentenced 9(nine) accused persons to suffer RI for 6(six) months and to pay fine of Rs. 1,000/- each, in default of payment of fine, they shall have to undergo imprisonment for a further period of 3(three) months under Section 143 of IPC, and further 9(nine) accused-persons to suffer RI for 1(one) year under Section 342 read with Section 149 of IPC and to pay fine of Rs. 1,000/- each, in default of payment of fine they shall have to undergo imprisonment for a further period of 3(three) months and the 9(nine) accused persons also to suffer RI for 3(three) months under Section 352 read with Section 149 of IPC and to pay fine of Rs. 500/- each, in default of payment of fine, they shall have to undergo imprisonment for a further period of 15(fifteen) days. The 9(nine) accused persons also to suffer RI for 1(one) year under Section 323 read with Section 149 of IPC and to pay fine of Rs. 1,000/- each, in default of payment of fine, they shall have to undergo imprisonment for a further period of 1(one) month and further 9(nine) accused persons also to suffer RI for 3(three) years under Section 354 read with Section 149 of IPC and to pay fine of Rs. 1,000/- each, in default of payment of fine, they shall have to undergo imprisonment for a further period of 1(one) month and, lastly, the 9(nine) accused persons to suffer RI for 3(three) years under Section 354B read with Section 149 of IPC and to pay fine of Rs. 1,000/- each, in default of payment of fine, they shall have to undergo imprisonment for a further period of 1(one) month and all the aforesaid sentences were directed to run concurrently. 1,000/- each, in default of payment of fine, they shall have to undergo imprisonment for a further period of 1(one) month and all the aforesaid sentences were directed to run concurrently. The other 4(four) accused persons, namely Samir Kar, Rinku Kar, Kajal Kar and Maya Rani Kar to suffer RI for 3(three) years and to pay fine of Rs. 1,000/- each under Section 498A of IPC and in default of payment of fine they shall have to undergo imprisonment for a further period of 15(fifteen) days, but considering the age of the convict, Maya Rani Kar was sentenced to suffer RI for 6(six) months and to pay fine of Rs. 1,000/- in default of payment of fine she shall have to undergo imprisonment for a further period of 15(fifteen) days. 2. The informant (PW8) had lodged a complaint on 19.12.2012 to the Officer In-charge of Bishalgarh Police Station stating inter alia that on 16th Agrahayan of 1409 B.S. her marriage was solemnized and after three years of her marriage, a girl child was born out of their wedlock. After some days of the birth of the child, her husband and her in-laws started pressure on her for obtaining cash from her father. Being helpless, she started staying separately with her husband, but, her in-laws instigated her husband to force her to leave the house and the husband of the informant on trifling issues continued to torture on her. On 16.12.2012 A.D. last, in the evening, while she was coming back from the ration shop, she was stopped on the way by two youths therein, adjacent to their house, in a pre-planned way and started using slang words toward her. When she raised objection, they fled away, but, on that late night, Sima Begam, Maya Begam, Rinku Kar and her husband Samir Kar assaulted her treating her as if she is a lady of bad character. They pulled and torn her clothes from her body and Sima Begam took away her mobile phone from her hand and gold chain from her neck and also bangles from her hands. The entire incident was abated by her husband and other in-laws. 3. On receipt of the said complaint, the Officer In-charge of Bishalgarh Police Station had registered the FIR and directed to investigate the case. Investigation was first carried out by PW13. The entire incident was abated by her husband and other in-laws. 3. On receipt of the said complaint, the Officer In-charge of Bishalgarh Police Station had registered the FIR and directed to investigate the case. Investigation was first carried out by PW13. She recorded the 161 statement of the available witnesses and being found prima facie case, she filed charge-sheet against the accused persons, the appellants herein. 4. Having committed to the Court of learned Sessions Judge, the case was transferred to the Court of learned Addl. Sessions Judge, Sepahijala District, Bishalgarh. 5. At the commencement of trial, charges were framed by the learned Addl. Sessions Judge under Sections 143/342/ 352/325/354/354B of IPC read with Section 149 of IPC against 14(fourteen) accused persons other than accused Maya Rani Kar. Again, charge was framed under Section 498A of IPC against accused Samir Kar, Maya Rani Kar, Rinku Kar and Kajal Kar. Learned Addl. Sessions Judge also framed charge under Section 376(1) read with Section 511 of IPC against the accused persons, namely Suman Miah, Samayan Kabir, Firoj Miah and Md. Kiran Mia. The accused persons pleaded not guilty and claimed to be tried. 6. To substantiate the charges, as stated above, the prosecution had adduced 13(thirteen) witnesses altogether. The accused persons had adduced one witness, namely Sachindra Pal alias Shibu, who deposed as DW1. 7. After completion of recording evidence on behalf of the prosecution, the accused persons were examined under Section 313 of Cr.P.C. wherein they were noticed in regard to all the incriminating evidences surfaced against them from the prosecution witnesses to which they denied those statements as false and concocted. Thereafter, the learned trial Court had examined DW1. 8. Having heard the learned counsels appearing for the parties, the learned trial Court had convicted and sentenced the accused persons as afore-stated. 9. Being aggrieved, the convict-accused persons have preferred the instant appeal before this Court. 10. Mr. Saha, learned counsel appearing for the appellants has submitted that the prosecution has failed to establish the charges levelled against the accused persons. According to Mr. Saha, learned counsel, there are lots of improvements and the victim herself being deposed as PW8 has made many exaggerated statements. Mr. 10. Mr. Saha, learned counsel appearing for the appellants has submitted that the prosecution has failed to establish the charges levelled against the accused persons. According to Mr. Saha, learned counsel, there are lots of improvements and the victim herself being deposed as PW8 has made many exaggerated statements. Mr. Saha, learned counsel has further submitted that the FIR was lodged entirely on the basis of an incident occurred on 16.12.2012 and though the incident had occurred on 16.12.2012 the FIR was lodged on 19.12.2012. During investigation, the victim had brought new story that occurred on 17.12.2012 morning, where it was alleged that the victim was dragged by some of the accused persons. She was tied with a tree by a piece of rope and the accused persons, namely Sima Begam and Maya Begam removed her wearing apparels and accused persons, namely Firoj Miah and Kiran Miah put their hands on her chest. In this situation, according to learned counsel appearing for the appellants, the conviction and sentence imposed by learned Addl. Sessions Judge are not sustainable. 11. On the other hand, Mr. Ghosh, learned Addl. P.P. has tried to persuade this Court that though there were some improvements and exaggerations in the statements of the victim, but, some parts of her oral statements are not confronted and those statements are found to be inconsistent with the statements she made in her examination under Section 161 of Cr.P.C.. 12. Having considered the submissions of the learned counsels appearing for the parties, I have proceeded to appreciate the evidence as deposed by the prosecution witnesses and DW1. None of the prosecution witnesses, except PW13 has supported the oral testimony of the victim PW8. PW9 being the father of the victim lady also did not support the case of PW8 in whole. I find there are some discrepancies. 13. I have carefully examined the evidence let in by the victim PW8. It is found that she had given much importance to the incident that occurred on 17.12.2012, which spoke little about the incident that occurred on 16.12.2012 on the basis of which she filed the complaint. PW8 has stated that on her way from the ration shop, she was restrained by two accused persons, namely Akash Miah and Dulal Miah. Thereafter, rest of the accused persons had dragged her to a place where they tied her with a tree by a rope. PW8 has stated that on her way from the ration shop, she was restrained by two accused persons, namely Akash Miah and Dulal Miah. Thereafter, rest of the accused persons had dragged her to a place where they tied her with a tree by a rope. I find the defence had drawn her attention to her statements she made under Section 161 of Cr.P.C. where those statements are found to be absurd. 14. It is true that her statement in regard to the fact that she was tied with a tree by a rope has not been controverted, but, I find, though police had rushed to the spot immediately and found her crying at the place of occurrence, they failed to trace out the piece of rope and it was not seized. It casts a serious doubt in the mind of this Court whether she was really tied up with a tree by a rope. 15. She has stated in her chief examination that she was severely beaten, but, PW13, the investigating officer stated that she did not see any sign of injury even superficially on any part of her body and so there was no medical examination. 16. Another striking feature is that though the entire cognizable offence was committed on 17.12.2012, then, why the victim being the informant was silent about any such incident in her FIR which she lodged after two days, i.e. on 19.12.2012. I find there is explanation that since she was in trauma she could not disclose the entire facts and circumstances which had happened with her. But still, principal offences were committed on 17.12.2012. 17. However, a victim of such a serious assault would forget the incident that occurred on 17.12.2012 and only mention about the incident which was mainly based on dispute with the in-laws and her husband which she referred in her complaint, it raises some serious suspicious circumstances in the mind of the Court. Two days' time, according to me, is enough to concoct the story and to implicate some persons who might not be involved in the incident. 18. The complaint was scribed by an Advocate Clerk and it was read over to her. Two days' time, according to me, is enough to concoct the story and to implicate some persons who might not be involved in the incident. 18. The complaint was scribed by an Advocate Clerk and it was read over to her. But, there are so many doubtful circumstances and I reiterate that it is hard to digest as to why the victim of such a serious torture remained silent from mentioning the offences as alleged by her that occurred on 17.12.2012. 19. I have noticed that from the very beginning the victim had a tendency to improve and exaggerate the story. Substantial part of her statements she made in her chief examination is found to be the first time statement made before the trial Court. 20. The learned trial Judge has heavily relied upon the statements she made in her chief examination without appreciating the improvements and exaggerations she made in her chief examination. 20.1. In this regard, Mr. Saha, learned counsel has placed reliance upon a decision rendered in Lallu Manjhi v. State of Jharkhand reported in (2003) 2 SCC 401 [SCC pp. 405, 406, para 10], where the Hon'ble Supreme court had observed thus: '10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (See: Vadivelu Thevar v. State of Madras [ AIR 1957 SC 614 : 1957 Cri.L.J. 1000].)' 20.2. Bearing in mind the aforesaid principles, if I consider the present case, then, in my opinion, the present case does not fall within the first two categories. Now, the question is to what extent the case falls under the third category. Here, I am to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. Now, the question is to what extent the case falls under the third category. Here, I am to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. Here, none of the prosecution witnesses has supported or corroborated the versions of the victim PW8. She deposed that after the incident she narrated the story to one Smt. Shanti Sinha who deposed as PW6. But, PW6 has stated in her chief examination that she had no knowledge about any such incident. In this situation, it becomes very difficult to rely upon the sole testimony of the victim PW8. 21. Another interesting feature, which according to me, appears to be very unnatural. If the victim was so severely beaten as alleged by her, then, why she was not brought to the hospital for her medical examination; even the victim did not go to the hospital or any medical practitioner to treat her. Least to say, PW13 has categorically stated that she did not trace out any injury mark, even superficially upon the body of the victim. 22. I have gone through the evidence let in by PW10 who had rushed to the place of occurrence on receipt of the telephonic information in the police station. He has stated in his chief examination that after reaching to the spot he found the victim crying therein and also he found her father in that place. On being asked the victim told him that the neighbouring people had beaten up her. Then, she was taken to police station. The police personnel requested her to lodge a case, but, she told them that she was not in such a mental condition to lodge the case and she would file it later on. 22.1. During her cross-examination, her attention was drawn to his previous statement recorded by I.O. whereby the statement he made that the victim was crying, is not found therein. 23. Having regard to the aforesaid facts and circumstances, in my opinion, the statement of the victim cannot be relied upon. The accused persons, i.e. the appellants herein should not be convicted on the basis of the sole oral testimony of the victim and in absence of any corroboration from other witnesses. 23. Having regard to the aforesaid facts and circumstances, in my opinion, the statement of the victim cannot be relied upon. The accused persons, i.e. the appellants herein should not be convicted on the basis of the sole oral testimony of the victim and in absence of any corroboration from other witnesses. The prosecution has been able to create some suspicious circumstances about the incident, but, question naturally arises, why the victim did not disclose the names of the offenders at the first instance when she was in the safe custody of the police. For a minute I may believe that at the scene of occurrence she was not in a position to narrate the incident that occurred with her, but, what resisted her to narrate the incident and to disclose the names of the offenders in the police station. Even she denied to lodge the case involving anyone and she lodged the case on 19.12.2012 when she did not even refer to the incident that occurred with her on 17.12.2012. At best, this Court can say, there was something occurred on 17.12.2012, but, complicity of the accused persons to the offence, in the context of the case, appears to be doubtful. It is settled proposition of law that suspicion however grave should not take the place of proof. 24. Having viewed so and observed here-in-above, I find no material to support the conviction and sentence as declared and imposed by learned Addl. Sessions Judge. Accordingly, the said conviction and sentence are interfered with. The accused persons, the appellants herein are acquitted from the charges levelled against them. It is informed that the appellants are on bail. Accordingly, the appellants are discharged from the liability of bail bonds and the sureties also shall stand discharged. 25. Consequently, the appeal stands allowed. Send down the LCRs.