Dilip Narayan Deb And Ors vs State Of Tripura

[1] Heard Mr. S. Lodh, learned counsel and Mr. K. Saha, learned counsel appearing for the revision petitioners as well as Mr. S. Debnath, learned Spl. P.P. appearing for the state.

[2] This revision petition has emerged out of the judgment and order dated 16.04.2019 delivered in Criminal Appeal No.12 of 2018 by the Sessions Judge, Khowai Judicial District Khowai. By the said judgment, the judgment and order of conviction and sentence dated 07.07.2018 delivered in PRC (WP) 51 of 2016 by the Sub-Divisional Judicial Magistrate, Khowai was affirmed substantively, however, with modification in the nature of imprisonment. Whereas the Sub-Divisional Judicial Magistrate awarded rigorous imprisonment for a period of thirty days, the said imprisonment has been converted to the simple imprisonment for the said period. There was no change in respect of award of fine. The revision petitioners being the convicts have preferred this petition questioning the said judgment. It would be appropriate to lay down the relevant fact in a brief manner to outline the perspective of the challenge.

[3] The revision petitioners were accused of unlawful demand and for non-compliance thereof inflicting cruelty on the victim namely Sabita Dey (Deb), the wife of the revision petitioner No.1. In the complaint, it has been stated that on 10.10.2012, the marriage between the complainant and the revision petitioner No.1 had taken place and during the time of marriage gifts were given, even a cash of sum of Rs.20,000/- was realized from the father of the complainant. The complainant was happy in her marital life for initial three months. Thereafter unlawful demand to the extent of Rs.1,00,000/- was raised. As that money was not provided or paid, which according to the understanding of the complainant, was demanded for purchasing a vehicle inasmuch as her husband (the revision petitioner No.1) is by profession a driver. But since the father of the complainant did not provide the said sum in that financial situation the revision petitioner his parents and brother started torturing her for realizing the said demand. Failing to bear such torture, the complainant took shelter in her parental house. But, all on a sudden, the revision petitioner No.1 was found missing and thus a serious mental agony was brought on the complainant. They circulated a story that since the father of the complainant did not pay the said sum the revision petitioner No.1 left the earthly world. In that background, on 13.09.2015 at about 9 a.m., the complainant was closed inside a room and subjected to torture by the parents-in-law of the complainant. It has been also asserted in the complaint [Exbt.1] that the said serious dispute was taken to the local Panchayat for an amicable resolution. But for the adamant attitude shown by the accused-persons, no reconciliation could take place.

[4] Based on the said complaint dated 14.10.2015, Khowai P.S. Case No.2015 KHW 095 under Section 498A was registered and taken up for investigation. Having completed the investigation, the police filed the final report sending up the accused persons for facing the trial. The charge was framed under Section 498A/34 of the IPC against Dilip Narayan Deb, Digendra Narayan Deb, Smti. Dipti Deb and Dibakar Deb for treating the complainant with cruelty, particularly by placing the unlawful demand of various nature. All the accused persons denied the charge and claimed for trial. After a regular trial, all the accused persons namely, Dilip Narayan Deb, Digendra Narayan Deb, Smti. Dipti Deb and Dibakar Deb were convicted under Section 498A/34 of the IPC and they were sentenced to suffer rigorous imprisonment for thirty days and fine of Rs.2,000/- with default stipulation. As stated already, the judgment and order of conviction and sentence dated 07.07.2018 have been challenged in the appeal filed before the Sessions Judge, Khowai Tripura being Criminal Appeal No.12 of 2018. It appears from the records that the prosecution in order to substantiate the charge adduced as many as 10(ten) witnesses and introduced one documentary evidence [Exbt.1]. The Sub-Divisional Judicial Magistrate (the trial judge) having appreciated the evidence had occasion to observe as follows:

"All the above witnesses as discussed have consistently stated that the accused (husband) and other accused persons being the in laws of the complainant assaulted her and finally dragged her out of in laws house on 23.09.15. The defence had cross examined all these PWs but there is nothing on record to doubt or disbelieve the PWs. In fact the evidence of all these PWs is so much consistent with each other that there is no room to disbelieve them and the defence has miserably failed to rebut/discard the prosecution evidence."

[5] The said finding as stated already has been affirmed by the Sessions Judge in the appeal by observing as under:

"The evidence of PW-5 supplemented the evidence of the aforesaid witnesses and his evidence strengthened the prosecution case. On scrutiny of the evidence of PW 5 it reveals that since marriage PW 1 could led her conjugal life more or less peacefully for more or less half years but subsequently she filed a petition before "Panchayat" seeking redress for settlement of her matrimonial dispute and a „Salish‟ was held in "Panchayat" and the matrimonial dispute was addressed for the time being but again while the matrimonial dispute arose and aggravated PW 1 again reported the matter to "Panchayat" and their matrimonial disputes were again settled by "Panchayat" and in the meantime some time lapsed but again the witness received a call from PW 1 and she reported that she was unable to reside with her husband and with her other in-laws in her matrimonial home. It also reveals from the evidence of PW 5 while he went to the matrimonial home of PW 1 it was found that she was seating in the "Veranda" of her matrimonial home and it was reported to him that her husband was not present in the house and PW 5 while talked with her husband over telephone and came to learn that he was then at Dharmanagar and on that day he will not return home, as such, while PW 5 talked with other in-laws and came to learn that PW 1 remained unfed since morning and she was insisting to reside in her own room of the house of her in-law‟s whereas her husband was not present in the house. Subsequently, the witness came to learn that PW 1 is not willing to reside with her in-laws in her matrimonial home, she was kept in a neighbouring house and thereafter she was taken to her parents house by her brother."

It is apparent on the face of the judgment dated 16.04.2019 that the judgment of conviction is fundamentally based on the testimonies of PWs 1-5, 6 and 7. According to the appellate court which has affirmed the judgment of the trial court, the prosecution has successfully substantiated the charge and hence, no interference is called for.

[6] Mr. Saha, learned counsel appearing for the revision petitioners has submitted that both the courts below have failed to notice that the allegation made from the phase of the complaint to the phase of trial, is unspecified, sweeping and without any description of occurrence. This would itself show that these allegations are not only inflated, but also not trustworthy. That apart, Mr. Saha, learned counsel has submitted that if the evidence is appreciated in its entirety, it would surface that the witnesses have made the statements in the trial with conflicting voices. There had been lack of keen and proper appreciation of the evidence, both by the trial court and the first appellate court. The judgment of conviction has been returned on purpoted general appreciation by throwing the canons of appreciation to the word. According to Mr. Saha, learned counsel, even though the related witnesses are not to be discarded but in the marital discord they hardly give the unbiased version of the fact as eye and ear of the judge. They have an intense interest in the outcome of the proceeding and therefore they improve or edit their versions. Even in the initial versions, they invited certain facts which, in natural course of action, are not believable. True further it is that, the part of the statement which is not smeared by improvement can be used for purpose of returning the conviction but the amount of emphasis as laid by the sessions court while deciding the appeal would bring jeopardy to the prosecution case, inasmuch as PW-5 in the trial stated that there were some family disputes in the matrimonial home of the complainant and thus there was an initiative to settle the same. But, nowhere, the nature of the dispute has been described in the complaint. PW-5 has stated that after one year of the settlement of the dispute, PW-5 received a call and he went to the in-laws' house of the complainant. On his arrival there, he found the victim sitting in the verandah of the house. On his query, she had informed that her husband was not present in the house. When he checked the same with her husband by making a call, her husband informed him that he was at Dharmanagar and would not return on that day. She had also informed that she did not eat anything since morning. She was also insisting to reside in her own room, but the in-laws had refused to allow that as her husband was away from the house. Finding no other option, PW-5 made the victim agree to reside in the house of their relative, Smt. Gita Deb who used to reside in the neighbourhood. During the cross-examination, to a query to the court, PW-5 has stated that 'In the complaint filed in our Panchayat by the informant there was no allegation of any torture upon her by the accused persons.' Mr. Saha, learned counsel has submitted that PW-5 is the independent witness and a respectable person from the locality. He was also the Panchayat Pradhan at the relevant point of time.

[7] Per contra, PW-1, Sabita Rani Dey (Deb) [the victim] as pointed out by Mr. Saha, learned counsel has to some extent, stated that she filed the complaint [Exbt.1] only after she left the matrimonial home. According to her, on demand of Rs.1,00,000/-the accused persons, the petitioners herein, had physically assaulted her many times and did not provider her food. There was a settlement meeting on 24.08.2013 called by Dhalabil Panchayat attended by her family members as well as by the petitioners. The meeting was presided over by PW-5. In that meeting the revision petitioners gave assurance that they would not indulge in such torture in future. She has further stated that on many days and nights she had to live without food. The cross-examination could not dent her statement made during examination-in-chief.

[8] PW-2, Khokan Chandra Dey is the father of the victim [PW-1]. He has stated that demand of Rs.1,00,000/- could not be met. There was one settlement meeting, called by Dhalabil Panchayat where he had attended. He has stated that the revision petitioners gave assurance that they would not torture on the victim. But on 13.09.2015 the revision petitioners dragged PW-1 out of their house. One Raju Dey [not PW-7] informed them over telephone. Their daughter was brought home and later on, she filed the complaint. According to PW-2, the money was demanded for purchasing the vehicle for earning the livelihood.

[9] PW-3, Chandan Das settled the alliance for the marriage between the complainant and the revision petitioner No.1. PW-4 Pranab alias Dipu Chakraborty was the priest of the marriage. PW-5 Samiran Deb the person who presided over the settlement meeting has already been narrated. PW-6, Sandhya Rani Dey is the mother of the victim. She has stated that all the revision petitioners on demand of money tortured her daughter both physically and mentally. On various occasion her daughter compelled to stay without food. But she has not stated anything of the demand of Rs.1,00,000/-.

[10] Mr. Saha, learned counsel has further referred to the testimony of Raju Dey [PW-7], the younger brother of the victim who has stated that on demand of Rs.1,00,000/- her sister was mentally and physically tortured. There was an attempt to settle the dispute through a meeting. Accordingly the Dhalabil Panchayat took an initiative. But the lasting peace in the marital life of the victim could not be brought. Sometime in the month of September, 2015, she was dragged out of her matrimonial home. Finally, she had taken shelter in the house of Gita Rani Deb for that night. His statement could not be dented by the defence.

[11] PW-8, Nitai Kar has denied any knowledge of the dispute though he was the neighbor of the revision petitioners and the victim. PW-9, Gouri Bala Kar followed the same suit. PW-10, Pradip Deb has stated that the revision petitioners are all known to him and the complainant was married to Dilip Narayan Deb, the revision petitioner No.1. Dilip Narayan Deb, the revision petitioner No.1 was driver by profession. She had categorically stated that 'she had no grievance against the other family members of her husband including her father in law and mother in law and also stated that all her daily needs are fulfilled by her father in law Sri Digendra Narayan Deb'. That statement was not cross-examined by the defence for obvious reasons. Even PW-10 was not declared hostile by the prosecution.

[12] Mr. Saha, learned counsel therefore has submitted that it will be apparent that there was some dispute regarding the matters not relating to unlawful demand. Hence, the charge under Section 498A/34 of the IPC is not sustainable against the revision petitioners. However on culmination of the regular trial, the revision petitioners were convicted under Section 498A/34 of the IPC. Mr. Saha, learned counsel therefore in order to nourish his submission has relied on a few decision including some decisions of this court.

[13] In Girdhar Shankar Tawade vs. State of Maharashtra reported in AIR 2002 SC 2078 the apex court had occasion to observe that the charge under Section 498A can be apt only in terms of the explanation A or B thereto. Explanation B, in no uncertain terms records harassment of the woman on unlawful demand and the Statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of harassment with view to coerce her by any person related to her, to meet any unlawful demand or for, any property or valuable security or on account of failure by her or any person related to her to meet such demand, the charge can be brought. According to Mr. Saha, learned counsel there is total absence of any of those requirements as provided by the statute in Section 498A of the IPC.

[14] Reliance has been placed on a decision of this court in Gautam Nama vs. State of Tripura reported in (2013) 2 TLR 134. It has been observed in Gautam Nama (supra) that it is settled law that mere making of demand or the omnibus statements made for not satisfying the demand she [the victim] was subjected to physical and mental torture, do not fulfil the ingredients of the offence punishable under Section 498A of IPC, unless specific evidence is adduced regarding the manner and particulars of torture or cruelty exercised by the accused. The allegation that she was beaten up on 23.08.2004 at about 10.30 a.m. has been contradicted even by PWs 6, 7 and 8. They have stated that in their presence she fell ill and she was taken to hospital by them, while the story narrated in the FIR speaks a different story. In Gautam Nama (supra) the person who was convicted under Section 498A having attended the same circumstances was acquitted from the said charge.

[15] Mr. Saha, learned counsel in order to nourish his submission, has referred another decision of this court in Trithit Debbarma vs. State of Tripura reported in (2016) 2 TLR 347. In that report, it has been observed that even if the statement of the victim is accepted to be true and since it does not disclose the manner in which the victim is harassed by the accused person on demand of a sum and since it has surfaced that the amount appeared different from what has been stated in the FIR, the prosecution turned to be unreliable. The crux of the decision is that there must be evidence to show, that the accused person has committed certain acts or omissions to harass the petitioner for realizing the unlawful demand relating property or valuable security. Since there was no such statement of the victim herself, as to what was the nature of torture, the trial court as well as the appellate court had failed to appreciate the evidence, in accordance with law and arrived at a wrong finding.

[16] In Kans Raj vs. State of Punjab and Others reported in (2000) 5 SCC 207 the apex court had made an exercise to define the offence under Section 498A of the IPC. It has been held there must be continuous harassment connected with the unlawful demand. Further in Sakharam and Another vs. State of Maharashtra reported in (2003) 12 SCC 368 the apex court had occasion to refer Kans Raj (supra) to observe that a tendency has, however, developed for roping in all relations of the in-laws in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. Mr. Saha, learned counsel has submitted that on the face of the statement made by PW-10 at the stage of investigation itself except the revision petitioner No.2, all other accused persons, ought to have discharged without pushing them to face the trial. But that was not so done. As Mr. Saha, learned counsel has submitted that if the pieces of evidence are brought together to get a larger picture of the situation and the allegations, it would appear that PW-5 who is definitely an independent witness had categorically stated in his cross-examination that at no point of time the victim has stated that there was torture upon her for unlawful demand. But both the trial court and the appellate court have failed to notice that piece of evidence to come to a just inference.

[17] In order to repel those submissions, Mr. Debnath, learned special P.P. has submitted that the victim has narrated the cruelty quite categorically from the complaint [Exbt.1] to her deposition in the trial. Mr. Debnath, learned special P.P. having regard to the statements of PWs 1, 2, 3, 6 and 7 in particular has submitted that the victim was tortured for realizing unlawful demand of 1,00,000/- and there is no incongruity in the statements of those witnesses in this regard. Moreover, the victim herself has stated categorically that she was tortured both mentally and physically. Even she was denied the food for her survival. She has categorically stated the amount of cash and jewelleries which were received by the revision petitioners. Thereafter, within few months of marriage, an unlawful demand of Rs.1,00,000/- was raised. As PW-2 could not meet that demand, the revision petitioners physically assaulted her many times and even sometime they did not provide food to the victim. On 24.08.2013, one settlement meeting was called at Dhalabil Panchayat having attended by the parties and the said meeting was presided by PW-5 and one Krishna Sarkar. In that meeting the revision petitioners assured that they would not indulge in any torture but they had resiled from their assurance and recommenced torturing the victim. On 13.09.2015 when her husband was not at home, she was dragged out of that home and finally she had to take shelter in the house of one Gita Rani Deb. PW-2 has corroborated that narrative of PW-1. PW-3 also corroborated that there were some disputes in the family of the revision petitioners involving the victim. PW-6 has further corroborated the narrative of PW-1, but she did not make any statement in respect of the last occurrence which has been stated to have occurred on 13.09.2015. PW-7 has stated in the same line but he did not omit to mention that the incident occurred in the month of September, 2015.

[18] Mr. Debnath, learned special P.P. appearing for the state has quite emphatically stated that even though PWs 1, 2, 6 and 7 are closely related, there cannot be any hurdle to rely those statements. Mr. Debnath, learned special P.P. has therefore submitted that no ground has been made out by the revision petitioners to interfere with the judgment passed by the appellate court. Mr. Debnath, learned special P.P. has urged this court not to interfere with the judgment as there is no reason to disbelieve the narrative of PW-1.

[19] Having appreciated the evidence and the submission, advanced by the learned counsel for the parties, this court is of the view that the prosecution has failed to prove the charge beyond reasonable doubt, particularly, for the reason that PW-5 in the cross-examination has categorically stated that the complainant did not make any allegation of torture upon her by the revision petitioners in the meeting of Panchayat. Further, PW-10 whose statement was even not challenged by the defence has stated that there was a settlement meeting at Dhalabil Panchayat. In that meeting Dilip Narayan Deb, the revision petitioner No.1 stated that being a driver by profession he had to reside outside home. He had however assured in the meeting that he would try to improve his working time and reside with his wife. On asking, the complainant in the said meeting had stated that 'she had no grievance against the other family members of her husband including her father in law and mother in law and also stated that all her daily needs are fulfilled by her father in law, Sri Digendra Narayan Deb.' Accordingly, the Panchayat had settled the matter. After that the informant started residing with her husband. However, again after six months of the said meeting the complainant again approached them on the same issue when they apprised her to approach the court of laws seeking redress. However, he had requested to make arrangement for sending her to her parents home and to make an arrangement for giving her one time maintenance allowance by her husband. But neither of the witnesses PWs 5 and 10 have stated of any torture for unlawful demand of money. Even if, that demand is treated as real but the incidence of the torture has been decimated by the statement made by PWs 5 and 10 both of whom claimed to have been present in the settlement meeting convened by the Panchayat. As stated, those witnesses were not declared hostile by the prosecution and as such their statement can be utilized by the prosecution.

[20] Having observed thus, this court finds that the revision petitioners have made out a case for interference and accordingly the judgment and order of conviction and sentence are interfered with and set aside. The revision petitioners are acquitted from the charge under Section 498A/34 of the IPC on benefit of doubt.

[21] In the result, this revision petition stands allowed. As the revision petitioners are on bail, their sureties stand discharged from the liability.

Send down the LCRs forthwith.