Dipankar Ghosh vs State Of Tripura

Having charged, with the offence, under Section 498-A/304(B) of the IPC, the appellant herein, has been convicted under Section 498-A of the IPC and sentenced to suffer rigorous imprisonment for 6(six) months and to pay a fine of Rs. 5,000/- with default stipulation passed by the learned Sessions Judge, Dharmanagar, North Tripura vide judgment and order dated 20.03.2017 in case no. S.T. (T-2) 15 of 2015. However, the appellant has been acquitted from the charge framed against him under Section 304(B) of the IPC.

Heard Mr. Raju Datta, learned counsel appearing for the appellant as well as Mr. S. Ghosh, learned Additional PP appearing for the respondent.

Briefly stated, the prosecution case is that, the marriage of the appellant with the deceased was solemnized on 7th Falguna (a Bengali month), 1419 BE. Some materials and golden jewelleries were given as per ability of the complainant i.e. father of the deceased alongwith Rs. 1 lakh cash to the appellant at the time of marriage. After their marriage, her daughter, namely, Rita Ghosh went to the house of the appellant at Panchgram, Silchar, Assam. It is stated in the complaint that, after two months of peaceful marital life, the appellant had started to inflict mental and physical torture upon her deceased daughter at the instigation of other members of his family. His daughter used to tolerate all those things silently. The appellant, Dipankar Ghosh, had started to inflict severe physical torture upon his daughter with a demand to bring Rs. 5 lakh from her father in order to buy vehicle. It is further stated in the complaint that her deceased daughter used to inform all these things to the complainant-father over telephone. In that meanwhile, she became pregnant but, the appellant did not stop the physical aswell as mental torture upon his deceased daughter. At one time, the complainant-father had agreed to pay Rs. 5 lakh but, in installment. It is stated that on 23.04.2014 AD, the appellant along with his daughter came to his house when the appellant told him to give Rs. 5 lakh in cash to buy vehicle. At 12 o'clock of that night, he along with his family members suddenly heard sound of loud words from the room where the appellant and his wife had slept. After hearing the screaming of his daughter, Rita, the complainant became astonished and went towards that room. After reaching near the door, which was closed from inside, he asked his daughter what had happened and at that time, his daughter was crying loudly 'save me, save me'. It is further stated that hearing the sound of crying, the neighbouring people came to his house and at the pressure of the neighbouring people, the appellant had opened the door of the room when, according to the complainant, everybody noticed that his daughter was lying on the floor of the room. They brought out her daughter from the room. Thereafter, the appellant had closed the door of the room. On the next day i.e. on 24.04.2014 AD, in the morning, after opening the door, the appellant told the complainant-father that if his daughter wants to go with him then she should go with him immediately otherwise, he would abandon her. His daughter had accompanied her husband to his house at Panchgram but, at that time, the appellant had warned the father of the deceased that if he do not give Rs. 5 lakh within 25.04.2014 AD then he does not know what fate his daughter will meet. Thereafter, being scared, the complainant-father had tried to make contact with the appellant on 25.04.2014 AD over telephone repeatedly but, he was not responding. On 26.04.2014 AD at about 8 o'clock in the morning, his daughter Rita contacted with his younger daughter over telephone. At 10 o'clock, the appellant had informed the complainant-father over telephone that his daughter Rita was very ill and she was taken to Silchar Medical Hospital and at about 10.30 hours, the appellant had informed the complainant-father that Rita had died. The father-complainant alongwith others went to Silchar. It is further stated in the complaint that he suspected that the appellant had killed his daughter Rita. In the complaint, it is further revealed that on 23.04.2014 at night, the appellant had beaten his daughter severely on demand of Rs. 5 lakh in his house at Dharmanagar. To explain the delay, the complainant has stated in the FIR that he was bewildered due to the death of his daughter.

On receipt of the complaint, the Officer-in-Charge of Dharmanagar police station had registered the FIR No. Dharmanagar PS case No. 44 of 2014 under Sections 498-A/304(B) of the IPC dated 03.05.2014. Being endorsed, the investigating officer has started investigation and recorded the statement of the available witnesses under section 161 Cr.P.C., collected the post-mortem examination report (Exhibit-B) and seized some materials. Though the victim committed suicide at a place within the jurisdiction of High Court of Assam but, since the FIR was lodged in Tripura, the investigation was carried out in Tripura and the case was tried by the court within the jurisdiction of the High Court of Tripura.

After completion of investigation, the investigating officer (PW-15) submitted charge-sheet against the appellant for committing offence punishable under Section 498-A/304(B) of the IPC. Being committed, the learned Sessions Judge, North Tripura, Dharmanagar had framed charge against the appellant under Sections 498-A/304(B) of the IPC, to which the appellant had pleaded his innocence and claimed to be tried.

To substantiate the above charges, the prosecution had examined 15 witnesses. On the other hand, the appellant had also adduced evidences and, 3 (three) witnesses including the appellants were examined. The learned Sessions Judge, after conclusion of recording of evidence of the witnesses, had examined the appellant under Section 313 Cr.P.C. to which he denied all the incriminating circumstances and evidences, as adduced by the prosecution witnesses and submitted that to prove his innocence he would adduce evidence in his favour.

Having heard learned counsel, the learned Sessions Judge, North Tripura, Dharmanagar had held that the prosecution has failed to prove the charge levelled against the appellant under Section 304(B) of the IPC and acquitted him from the said charge. However, the learned Sessions Judge had convicted the appellant under Section 498-A of the IPC and sentenced him to suffer rigorous imprisonment for 6(six) months and to pay a fine of Rs. 5,000/- with default stipulation. Being aggrieved, the appellant has preferred the instant appeal before this court.

Mr. Raju Datta, learned counsel appearing for the appellant has submitted that when the learned trial Judge came to a finding that the prosecution has failed to prove the ingredients of Section 304(B) of the IPC against the appellant, then he should have acquitted the appellant from the charge levelled against him under Section 498-A of the IPC for the reason that the allegation of dowry has not been proved by the prosecution. Learned counsel for the appellant has submitted that the learned Sessions Judge has mainly relied upon two witnesses, PW-1 and PW-2, who are the complainant-father and mother of the deceased. According to learned counsel, the prosecution has miserably failed to produce any such evidence of physical and mental torture inflicted by the appellant at any point of time after their marriage upon the deceased daughter of the complainant. He has further contended that the allegation in regard to the incident of torture on 23.04.2014 is concocted and fabricated. Though it has been stated that upon hearing the cry of the deceased on that fateful night at about 12 o'clock, the adjacent neighbouring people came to the house of PW-4, but, none of the neighbouring witnesses like PW-7 and PW-9 have stated anything that they had witnessed the incident. Learned counsel for the appellant has led much emphasis on the fact that the FIR has been lodged after seven days of the date of occurrence and there is no reasonable explanation as to why the delay was caused. According to learned counsel, it is fatal for the prosecution and indicates that the very genus of the FIR was an afterthought.

On the other hand, Mr. S. Ghosh, learned Additional PP has defended the judgment of the learned Sessions Judge. According to him, the prosecution has been able to establish the charge levelled against the appellant under Section 498-A of the IPC. According to him, the evidence of PW-4 and PW-5 has not been demolished by the defence. His pointed argument is that PW-5, who is the mother of the victim in her cross-examination has confirmed that the appellant had demanded Rs. 5 lakh and she informed the appellant that she could not pay the same at a time but, will pay the same in installment. According to Mr. Ghosh, PW-7 has also supported the version of PW-4 and PW-5 that he had seen the deceased Rita Ghosh crying at 12 o'clock night on 23.04.2014. Mr. Ghosh, has further argued that it appears from the witnesses that the deceased was always found to be depressed and that gives an indication that the deceased was always subjected to physical and mental torture. The learned Additional PP has urged to maintain the conviction and sentence passed by the learned Sessions Judge, North Tripura, Dharmanagar against the appellant for committing offence punishable under Section 498-A of the IPC.

Keeping in mind, the aforesaid submission of learned counsel appearing for the parties, I have meticulously scanned the evidence of the prosecution and defence witnesses and have perused the materials brought on record.

After perusal of the judgment of the learned trial Court, I find that the learned Judge has mainly relied upon the evidence of PW-4 and PW-5 to convict the appellant under Section 498-A of the IPC. According to him, PW-6, PW-7 and PW-9 have supported the version of PW-4 and PW-5, who are the parents of the deceased. That leads me to first take into account and appreciate the evidence of PW-4 and PW-5.

PW-4, Sri Paresh Ghosh, is the father of the deceased who lodged the complaint against the appellant. Whatever he stated in his complaint was treated as FIR (Exhibit-1). The salient part of his deposition is that, his daughter Rita was given marriage with the appellant. At the time of marriage, he had given some articles and Rs. 1 lakh. Both the couples lived peacefully for two months. Thereafter, the appellant had started torture upon his deceased daughter demanding Rs. 5 lakh from the complainant. On 23.04.2014, both his daughter and the appellant had visited his house. After dinner, the couple entered into their specified room for sleeping. Suddenly at about 12 o'clock, he heard hot altercation following cries of his daughter. When he inquired about the matter, the appellant had abused him with filthy language saying that he will assault his daughter if he donot pay the money. At that time, his neighbouring people Rupankar and others came to their house but, he asked them to go. However, on the request of the neighbouring people, the appellant had opened the door. He found his daughter lying on the floor in a senseless condition. However, she regained her sense. On the following morning i.e. on 24.04.2014, the appellant had told him that he was leaving and if his daughter wants to go with him, then she might go otherwise he would go alone. His daughter, Rita went with the appellant. He has further stated that before leaving, the appellant had warned him to pay Rs. 5 lakh by 25.04.2014 otherwise he could not say what would happen to his daughter, Rita. On 25.04.2014, PW-1 rang up the appellant but, he did not respond. On 26.04.2014 i.e. on the next day his daughter had talked with his wife (PW-5) and her sister on mobile and it was a normal conversation and during that time, his daughter did not put any allegation against the appellant. After sometime, at about 9/9.30, the appellant had informed his wife (PW-5) over telephone that their daughter Rita was seriously ill. At about 10.30 am, the appellant had informed his wife (PW-5) through mobile that his daughter has already expired. By way of hiring a vehicle, they went to Silchar Medical College & Hospital. The body of his daughter was cremated at Silchar in their presence. After seven days, he lodged the complaint before the Officer-in-Charge of Dharmanagar PS. The complaint was scribed by one Subhrangshu Bhattacharjee (PW-1).

12.1. In his cross-examination, PW-4 denied the suggestion that on 23.04.2014 and 24.04.2014, the appellant had stayed in his house with his wife. This witness has further stated in cross-examination that he did not lodge any complaint in the jurisdictional police station where his daughter had committed suicide.

PW-5, Smt. Anita Ghosh, is the mother of deceased Rita. She has replicated the version what her husband i.e. PW-4 has stated in his deposition.

13.1. In her cross-examination, she has stated that the appellant had made a telephonic call to her and demanded Rs. 5 lakh, when she had informed the appellant that the said amount would be paid in installments. In her cross-examination, she has further stated that her brother, Satya Ghosh and his wife, Kalpana Ghosh had accompanied them to Silchar.

PW-6, Sri Jitesh Chanda, in his examination-in-chief has stated that he put his signature on the seizure list wherein some documents in regard to purchase of some golden ornaments, furnitures were seized (Exhibit-4). The said witness had identified his signature which was marked as Exhibit 4/1. He has stated that PW-4, the father of the deceased sometime used to lament before him that his daughter was subjected to torture by her husband on demand of cash of Rs. 5 lakh for purchasing a new vehicle. He has further stated that it was reported to him by PW-4 that oneday the appellant has tortured his daughter in his house for Rs. 5 lakh.

PW-7, Sri Sumanta Dhar, is a neighbor of PW-4. He has stated in his examination-in-chief that one day after hearing hue and cry in the house of PW-4, he went to his house at night. At that time, Rekha, the younger sister of the deceased had informed him that it was their family matter, so he should return back to his house.

15.1. PW-7 has deposed in his examination-in-chief that on 23.04.2014, the deceased along with the appellant had visited the house of PW-4, but, the said statement was not found in his statement recorded under Section 161 Cr.P.C. when the said witness was confronted with this statement during cross-examination. His further statement that Rekha had informed him that matrimonial relative of Dipankar did not allow them to see the dead body fully and informed that Rita had committed suicide by hanging, was also not found in the statement recorded under Section 161 Cr.P.C.

PW-8, Sri Jayanta Das, the Sub-Inspector of police was the first investigating officer of the case. He has stated that after receipt of the FIR, he visited the place of occurrence to investigate the fact that was occurred on 23.04.2014 in the house of PW-4. He had examined and recorded the statement of the available witnesses under Section 161 Cr.P.C. but, he did not investigate the case in Silchar.

PW-9, Ramananda Ghosh, is the elected Member of Gram Panchayat. He has stated that PW-4 had informed him that the appellant had demanded Rs. 5 lakh for purchasing a vehicle. He also signed the seizure memo by which the documents of purchased articles were seized.

PW-10, Arjun Debnath, is a driver by profession. He had carried the body of the deceased to the hospital.

PW-11, Sri Debabrata Ghosh in his deposition has stated that he has no knowledge regarding the relationship between the appellant and his deceased wife. He has stated that his house is situated adjacent west to the house of the appellant.

19.1. In his cross-examination, this witness has stated that he never heard any quarrel between Dipankar Ghosh and his wife Rita.

PW-12, Sri Babul Ghosh, has stated that his house is situated at the backside of the house of the appellant and he knew both the appellant and his wife. He has further deposed that he did not see or hear anything that relation of Dipankar Ghosh with his wife was bad. He was declared hostile but, being confronted with his cross-examination, he has stated that "as neighbour I did never hear or notice any quarrel in between Dipankar Ghosh and his wife or in between his wife and his other matrimonial relatives. The parental relatives or Rita did never report any complaint to me that she was subjected to torture by Dipankar or by any other matrimonial relatives physically or mentally".

PW-13, Debanju Ghosh, has stated that the appellant is his full blooded. On the date of incident i.e. on 26.04.2014 in the morning at about 8.00 am he went to the room of Rita to obtain paste. The door was found to be closed and when he pushed the door, it was opened and he saw that Rita, to whom he used to address as 'kaki' was hanging and her body was trembling. Immediately, he cried out when other members also came. This witness has further stated that immediately the body was shifted to hospital by hiring a vehicle.

21.1. In cross-examination, this witness has stated that he used to address the deceased as 'Mimi' and immediately after her marriage, he found her depressed. He has further stated in his cross-examination that they all used to like her very much. He has further stated that the appellant, being a driver-cum-owner used to go out with his vehicle everyday in the morning and on that day also he went out as usual. He has further stated that after the news of death, the parents of the deceased also went to Silchar. This witness has further stated in cross-examination that before them took entry into their house with the dead body, they went to Panchgram police station and at that time, the parents of the deceased and their relatives were also present. He has further stated that the parents of the deceased and their parents had allowed them to arrange cremation and accordingly cremation was held.

PW-14, Sri Debdas Deb, was posed as ASI of police at Ghungur outpost under Silchar police station on 26.04.2014. He has stated that no other injury was detected on the body of the deceased except one ligature mark.

PW-15, Sri Rajdeep Deb, has stated that after taking over the charge of investigation of the case, he had examined Kalyani Ghosh, Babul Ghosh, Debabrata Ghosh, Kanai Lal Ghosh, Arjun Debnath, Debanju Ghosh, Debdas Deb, Dr. Shami Aktar, Subhrangshu Bhattacharjee, Sumanta Dhar, Sumitra Nath and Nandita Dhar. This witness had seized some photograph of the appellant and the deceased. He found prima facie case against the appellant and submitted charge-sheet under Section 498-A/304(B) of the IPC.

23.1. In cross-examination, this witness has stated that, while examining Kalyani Ghosh and recording her statement, she being the niece of deceased Rita has stated that-

"after marriage Rita visited her father's house 4/5 times. Since our house is situated besides her father's house, she also visited our house and I had discussions with her but Rita did not disclose torture on her person or demand of money for purchasing vehicle at any point of time to me".

PW-15, in his cross-examination has further stated that he had examined Dr. Sami Akhter Barbhuiya of Kaligang PHC and he stated to him that when Rita was brought to the PHC, she was alive and immediately he pushed two injections, namely, Decadrawn and Ptophylling and considering the bad physical condition of the patient he referred the patient to Silchar Medical college and the patient party without delay by an ambulance shifted the patient to Silchar Medical College and as per PHC rule he entered the incident in the emergency register.

After conclusion of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. wherein he at the time of answering to a question has stated that-

"I alongwith my wife came to my father-in-law's house 8 months prior to her death. Thereafter, I never visited my father-in-law's house. My father-in-law went to my house on 10.03.2014 as new hut was scheduled to be opened. He stayed in our house till 11.03.2014 and left my house on 12.03.2014 along with my wife. He took back my wife on 27.03.2014.

Thereafter, my wife did never visit her father's house".

The appellant has adduced evidence along with two other witnesses. DW-1, the appellant herein, has stated that after his marriage till death of his wife, he visited only twice at his matrimonial house. One is during 'firajatra ritual' and then after four months of their marriage in the month of June, 2013. Thereafter, he did not go to his matrimonial house. On 12.03.2014, his wife Rita last visited her father's house. His father-in-law brought her by visiting his house on 11.03.2014. On 27.03.2014, his father-in-law again took her to their house. The appellant in his evidence, has further stated that, he used to carry articles of A.B. Datta, a contractor of Hindustan Paper Corporation through his auto and on 24.04.2014 he went out in the early morning to carry articles of A.B. Datta and he carried articles of A.B. Datta from lime gate to guest house and performed journey of 5 kilometer. In this manner, he carried his articles for two times. He has further stated that he went out with his auto van at about 6.30 to 7.00 am and when he used to go out in the morning, his wife used to remain in sleep. He has further stated that his wife always used to remain introvert and did not mix with others. Further, DW-1 has stated that their conjugal life was normal. DW-1 has stated that that date on which his wife expired, he was out of home at Baruni mela. At the time of leaving his house, he met with one Kanai Lal Kanu, a tenant of their house. He has further deposed that when he was at Kathighara, on information from his nephew, Debanju Ghosh, he went to Kalinagar hospital. Said Debanju Ghosh informed him that his wife was ill. At Kalinagar hospital he came to know that his wife was referred to Silchar Medical College at Ghungur. He has further deposed that in their marriage there was no demand.

25.1. In his cross-examination, DW-1 has stated that after 12/13 months of their marriage, his wife has expired by hanging at his house. Nothing material was elucidated from his cross-examination.

DW-2, Kanai Lal Kanu, is one of the tenants in the house of Dilip Ghosh, who is the father of the appellant. He has stated that the police had examined him and recorded his statement. He was staying in that house as tenant prior to 10/12 years of the marriage of the appellant. He has stated that he used to occupy a room in the first floor and the appellant used to stay in a room just opposite to his room at the first floor. This witness has further stated that he never noticed any quarrel between the appellant and his wife and he used to consider the wife of the appellant in a state of depression as she did not answer him anything when he used to inquire about her welfare. This witness has stated that the deceased had last visited her father's house on 12.03.2014 with her father from her matrimonial house and returned on 27.03.2014. Thereafter, she did not go to her father's house. Nothing material has been elucidated from his cross-examination rather, he has stated that the relation between the appellant and his wife was cordial.

DW-3, Ashit Bhusan Datta, is a Contractor who used to perform work in Hindustan paper Corporation at Panchgram, Assam. He has stated that on 23.04.2014, he was at Panchgram and on that date in the evening he made contact with the appellant (DW-1) for carrying his articles by his auto van on 24.04.2014 and, accordingly, the appellant reported and carried the articles at about 8.00 am.

27.1. In his cross-examination, this witness had volunteered that he met him on 23.04.2014 in the evening.

I have also perused the post-mortem report.

On the basis of aforesaid evidence and the evidence being screened meticulously, it is found that even for argument sake, if this court believes the statements of PW-4 and PW-5 that on 23.04.2014 there was a quarrel between the appellant and his wife in the house of the complainant (PW-4) but, in the context of the case, it can at best be said that it was an isolated incident. Furthermore, though it is the case of the prosecution that after hearing the cry, some of the adjacent neighbours came into the house of PW-4, but, none had seen the deceased crying. More importantly, none of the inmates of the house including PW-4 and PW-5 have stated that their daughter was subjected to torture by the appellant on demand of Rs. 5 lakh so that, it could be an evidence of Res gastae under Section 6 of the Evidence Act.

Another striking feature in the instant case is that, PW-4 in his statement has categorically stated that on the date of incident, his daughter had conversed with his wife and her sister over mobile and it was a normal conversation and during that time, the deceased did not put any allegation against the appellant. On the basis of this evidence, this court can easily come to a finding that there was absence of any cruel behaivour towards the deceased immediately before the incident. A close reading of the entire evidence on record, this court does not find any of the instances where from it can be revealed that the appellant had inflicted torture upon the deceased at any point of time after their marriage. The deceased did not make any complaint of torture at any point of time by the appellant to any of her relatives or to any of the neighbours where she used to stay.

From the evidence of PW-15, Rajdeep Deb who filed the charge-sheet against the appellant, has stated in his evidence that he examined one Kalyani Ghosh, who is the niece of the deceased. She along with her husband also had accompanied the parents of the deceased at Silchar. Kalyani Ghosh has been withheld by the prosecution without any explanation. PW-15 has categorically stated that said Kalyani Ghosh has stated to him while recording her statement under Section 161 Cr.P.C. that, after marriage, the deceased had visited her father's house at Dharmanagar for 4/5 times and on every occasion, the deceased used to visit her house since it is situated just adjacent to her father's house but, the deceased had never disclosed to her about the alleged torture inflicted upon her by the appellant. The investigating officer had also examined the neighbours of the appellant. Some of them like PW-11 and PW-12 have appeared as prosecution witnesses. They all have stated that there was cordial relationship between the appellant and his wife. They never heard any quarrel between the appellant and his wife, Rita. Though PW-12 was declared hostile, but, in his cross-examination, he has confirmed that as neighbor he did never heard or noticed any quarrel between the appellant and his wife. Most interestingly, PW-11 was not declared hostile by the prosecution. On the other hand, the appellant has adduced his evidence and he has produced two witnesses. The statements, the appellant made in his examination under Section 313 Cr.P.C. that on that day he was not at his father-in-law's house at Dharmanagar rather he has stated that his wife never visited her father's house at Dharmanagar after 27.03.2014.

DW-3, A.B. Datta, has stated that he was a Contractor of Hindustan Paper Corporation at Panchgram, Assam. He made contact with the appellant on 23.04.2014 to carry his articles through the auto van of the appellant and, accordingly, on 24.04.2014, the appellant had carried his articles at about 8.00 am. In cross-examination, this witness has stated that he met with the appellant in the evening of 23.04.2014.

DW-2, Kanai Lal Kanu, has stated that he never noticed any quarrel between the appellant and his wife. It is evident that though the investigating officer (PW-15) had recorded his statement under Section 161 Cr.P.C. but, did not show him as prosecution witness.

It is settled proposition of law that to bring home the charge under Section 498-A of the IPC, cruelty is the necessary ingredient, which must be proved. 'Cruelty' is defined under Section 498-A of the IPC, which reads as under:

"498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation-For the purpose of this section, "cruelty" means-

(a) any wilful 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.]

From a bare reading of the definition of 'Cruelty', it reveals that it is an 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. Further, 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, would also attract 'cruelty' as used under Section 498-A of the IPC.

The Apex Court in Manju Ram Kalita vs. State of Assam, reported in (2009) 13 SCC 330, after referring the provision of Section 498-A IPC, had observed that [SCC p.335, para 14]:

"14. In the instant case, as the allegation of demand of dowry is not there, we are not concerned with clause (b) of the Explanation. The elements of cruelty so far as clause (a) is concerned, have been classified as follows :

(i) any `wilful' conduct which is of such a nature as is likely to drive the woman to commit suicide; or

(ii) any `wilful' conduct which is likely to cause grave injury to the woman; or

(iii) any `wilful' act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.

In S. Hanumantha Rao v. S. Ramani, AIR 1999 SC 1318, this Court considered the meaning of cruelty in the context of the provisions under Section 13 of the Hindu Marriage Act, 1955 and observed that [SCC p.624, para 8]:

"8. ..... Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party."

In V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710, this court, while dealing with the issue of cruelty in the context of Section 13 of the Hindu Marriage Act, observed as under [ SCC pp 347 & 349, paras 16-17] :

"16. .......It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

17......18..... The context and the set up in which the word `cruelty' has been used in the section seems to us, that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty....."

In Mohd. Hoshan v. State of A.P., (2002) 7 SCC 414, this Court while dealing with the similar issue held that mental or physical torture should be continuously practiced by the accused on the wife. The Court further observed as under [SCC p.418,para 6]:

"Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not."

In Smt. Raj Rani v. State (Delhi Administration), AIR 2000 SC 3559, this Court held that while considering the case of cruelty in the context to the provisions of Section 498A I.P.C., the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.

In Sushil Kumar Sharma vs. Union of India, AIR 2005 SC 3100, this Court explained the distinction of cruelty as provided under Section 306 and 498A IPC observing that under Section 498A cruelty committed by the husband or his relation drive woman to commit suicide etc. while under Section 306 IPC, suicide is abated (sic abetted) and intended. Therefore, there is a basic difference of the intention in application of the said provisions.

In Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078, this Court held that "cruelty" has to be understood having a specific statutory meaning provided in Section 498A I.P.C. and there should be a case of continuous state of affairs of torture by one to another.

"Cruelty" for the purpose of Section 498-A I.P.C. is to be established in the context of Section 498-A IPC as it may be a different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as `cruelty' to attract the provisions of Section 498-A IPC.

Causing mental torture to the extent that it becomes unbearable may be termed as cruelty".

Here, I may profitably refer to a decision of the Apex Court in Rajbabu and another vs. State of Madhya Pradesh, reported in (2008) 17 SCC 526, wherein the Apex Court has observed as under:

"20. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh reported in (2001) 9 SCC 618 wherein this Court observed [SCC pp 626-27, para 12]:

"12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression `may presume' suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to `all the other circumstances of the case'. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression -- `the other circumstances of the case' used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase `may presume' used in Section 113-A is defined in Section 4 of the Evidence Act, which says -- `Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.' (emphasis in original)

In State of W.B. v. Orilal Jaiswas, (1950)2 ALL ER 458 (CA), this Court observed [SCC pp 89-90, para 15]

"15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of the Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater (1950) 2 All ER 458 (All ER at p. 459) has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter."

In Girdhar Shankar Tawade vs. State of Maharashtra, reported in (2002) 5 SCC 177, the Apex Court has observed thus:

"3. The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures : whereas Explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrance the attributes of 'cruelty' in terms of Section 498-A".

Thereafter, in para 18, it has been observed that:

"18. A faint attempt has been made during the course of submissions that explanation (a) to the Section stands attracted and as such no fault can be attributed to the judgment. This, in our view, is a wholly fallacious approach to the matter by reason of the specific finding of the trial Court and the High Court concurred therewith that the death unfortunately was an accidental death and not suicide. If suicide is left out, then in that event question of applicability of explanation (a) would not arise - neither the second limb to cause injury and danger to life or limb or health would be attracted. In any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498- A and not de-hors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under Section 498-A. The legislative intent is clear enough to indicate in particular reference to explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of explanation (b). The letters by itself though may depict a reprehensible conduct, would not, however, bring home the charge of Section 498-A against the accused. Acquittal of a charge under Section 306, as noticed hereinbefore, though not by itself a ground for acquittal under Section 498-A, but some cogent evidence is required to bring home the charge of Section 498-A as well, without which the charge cannot be said to be maintained".

In the instant case, what we find, is that, the learned trial Judge has acquitted the appellant from the charge levelled against him under Section 304(B) of the IPC. Resultantly, this court could easily brush aside the fact of demand of dowry by the appellant from his parents-in-law. Now, the question falls for consideration, whether the prosecution has been able to adduce any cogent evidence to substantiate the charge under Section 498-A of the IPC.

As, I have discussed here-in-above, that except PW-4 and PW-5, the parents of the deceased, none of the prosecution witness has come forward to adduce that they had seen the deceased to be subjected to torture by the appellant. Even PW-4 and PW-5, being the parents of the deceased have not stated in their evidence that there was continuous demand of money from the side of the appellant and that they had disclosed the matter of torture upon their daughter by the appellant to any of their near relative. Kalyani Ghosh, the niece of the deceased whose statement is found in the cross-examination of PW-15, the investigating officer, has specifically stated while her statement was recorded that whenever the deceased used to visit her father's house at Dharmanagar, she also used to visit her house as her house was situated just adjacent to her father's house. Kalyani Ghosh, has specifically stated that during such visit the deceased did never disclose of any incident of torture inflicted upon her by the appellant. As I have said earlier, this witness has been withheld by the prosecution without any explanation.

Another important feature is that, the FIR was lodged after seven days of the date of occurrence. At the time of lodging of FIR, it was only stated that by the complainant that since he was in bewildered condition, he could not make the complaint to the police station. In this regard, it would apposite to refer the case of Dilawar Singh vs. State of Delhi, reported in (2007) 12 SCC 641, where the Apex Court has held that:

"9. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case".

In para 10 and 11 of the said decision, the Apex Court has observed thus:

"10. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.

In Ram Jag and others v. The State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution".

In the case in hand, we find from the evidence that just after the occurrence, the appellant had informed his mother-in-law that the health condition of her daughter was not well. After a few while, he informed his mother-in-law that her daughter had died. Immediately after that, the parents of the deceased accompanied by other relatives had rushed to Silchar Medical College & Hospital. It is evinced from the evidence of PW-13 that before the appellant and other relatives had entered into their house with the dead body, they went to Panchgram police station and at that time, the parents and other relatives of the deceased had also accompanied the appellant and his relatives. At that time, none of the parents or relatives of the deceased made any sort of complaint to anyone including the police personnel. Rather, it has been revealed that the parents and other relatives had allowed them to arrange cremation and, accordingly cremation has been held.

Be that as it may, had there been any doubt or suspicion about the role of the appellant behind the death of their daughter, at that instance, the parents of the deceased and their relatives would have lodged a complaint before the Panchgram police station but, they did not do so, rather after completion of cremation, they returned back to their house. Even after their return to house at Dharmanagar, they did not lodge any complaint. After seven days of the incident, the father of the deceased (PW-4) had lodged the instant complaint on the basis of which the present prosecution case, was set on motion. In my opinion, the circumstances under which PW-4 had lodged the complaint is not beyond suspicion.

From the evidence as emanated in the preceding paragraph, it is revealed that there are lots of improvement, exaggeration in the deposition of the prosecution witnesses and, it creates a cloud of suspicion on the seed of the prosecution case. I do not find any cogent reasonable explanation as to why PW-4 had lodged the complaint after seven days if any incident had at all was occurred on 23.04.2014 in his house. On the other hand, I find that on 23.04.2014, the appellant was at his house at Panchgram, Silchar, Assam and from the evidence of DW-3, it is revealed that he had carried the articles of DW-3 on 24.04.2014, which was settled on 23.04.2014.

The above circumstances has prompted this court to suspect the genuineness of the complaint lodged by PW-4, father of the deceased. Besides, as I have discussed here-in-above, I do not find any material so that it can be said that there was series of incidents that had driven the deceased to commit suicide or there was any continuous harassment which are so grave forcing the deceased to commit suicide. There is no iota of evidence that the deceased or the complainant or any of their relatives at any point of time had lodged any complain to any of the neighbours either of the house of the PW-4 or the neighbours of the appellant. The elements of torture as adduced by the prosecution witnesses are also found to be shaky to meet the ingredients/ requirements of cruelty as defined under Section 498-A of the IPC as engrafted in the preceding paragraphs.

In the backdrop of the above analysis, both on legal and factual aspects, the judgment and order of conviction and sentence dated 20.03.2017 passed by the learned Sessions Judge, North Tripura, Dharmanagar in case No. S.T. (T-2) 15 of 2015 under Section 498-A of the IPC cannot sustain and, therefore, the same is set-aside and quashed.

Consequently, the instant appeal filed by the appellant is allowed. Since the appellant is on bail, he is discharged from his bail bond. The sureties are also discharged from their liability of the bail bond. Send down the LCRs forthwith.