Madan Paul vs State Of Tripura

Heard Mr. A Acharjee, learned counsel appearing for the appellant as well as Mr. S Ghosh, learned Addl. PP appearing for the State.

This is an appeal under Section 374 (2) of the Cr.P.C. from the judgment and order of conviction and sentence dated 02.02.2017 delivered in Crl. App. No.20(2)/2014 by the Addl. Sessions Judge, Gomati Judicial District, Udaipur. By the said judgment, the appellant has been convicted under Section 498(A) of the IPC for committing cruelty against his wife namely, Smt. Shuili Paul (Shil) (hereinafter, referred to as the victim).

Pursuant to the said conviction under Section 498 (A) of the IPC, the appellant has been sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs.1,000/- with default stipulation. By means of this appeal the said judgment and order has been challenged.

The genesis of prosecution is rooted in the complaint filed by the victim in the court of the Chief Judicial Magistrate, South Tripura, Udaipur, as it then was, revealing that the victim got married on 24th Magha, 1424 BS corresponding to 11.02.2008 with the appellant. After solemnization of the marriage, the victim had started to live with the appellant in a rented house. After 15-16 days of the marriage, the appellant started pressurizing the victim to bring a sum of Rs.50,000/-from her parental home. It has been also revealed by the victim that the appellant had illicit relation with the other accused who has been acquitted from the charge by the trial court and that acquittal has not been disturbed by the appellate court (Addl. Sessions Judge, Gomati Judicial District, Udaipur).

According to the complaint, the victim was subjected to serious physical torture both by the appellant and the other accused. On 13.11.2009 the appellant physically tortured the victim and drove her out from the matrimonial home. Finding no other alternative, she took shelter in her brother's house. His brother had informed the matter to Lawgang Panchayat at Satirbazar.

In the Panchayat, the appellant had committed that he will not repeat such torture and after assurance, the victim was taken back to matrimonial home. But within a few days the torture recurred on demand of a sum of Rs.50,000/-. On three to four occasions, the victim was driven out from the matrimonial home on demand of money. On 23.04.2010, the accused persons, whose names have appeared in the complaint (Exhibit-01), the accused No.2 & 3 had brutally tortured the victim. But this time no settlement could be brokered after that occurrence. It has also been alleged that the victim was denied food, clothing and shelter by the accused persons.

Based on the said complaint, which was sent by the Chief Judicial Magistrate, South Tripura, Udaipur to the concerned police station, a case being RK Pur PS, case No.457/2010 was registered under Section 498(A) and taken up for investigation. Having completed the investigation, the final report was submitted and the appellant and the other accused person was sent up for facing the trial.

On taking cognizance, the Chief Judicial Magistrate framed the charge under Section 498 (A) of the IPC. The appellant denied the charge and claimed to be tried. To substantiate the charge, as many as 12 witnesses including the victim (PW-01) were examined. That apart, the prosecution adduced four documentary evidence including the complaint (Exhibit-03). After the prosecution evidence was recorded, the appellant was examined under Section 313 of the Cr.P.C. when he reiterated his plea of innocence and contended that the evidence as led by the prosecution are all concocted and fabricated. He has categorically stated that the allegation made by the victim is without any basis.

Having appreciated the evidence, the trial court (Chief Judicial Magistrate, South Tripura, Udaipur) acquitted the appellant from the charge but the said judgment and order of acquittal was challenged by the State in the court of the Sessions Judge, South Tripura, Belonia being Crl. App. No.20(2)/2017. The said appeal was allowed by the impugned judgment by reversing the finding of acquittal.

Mr. A Acharjee, learned counsel appearing for the appellant has submitted that on the basis of appreciation of the evidence, the trial court had correctly observed that there is no dependable evidence to return the finding of conviction. To buttress his submission, Mr. Acharjee, learned counsel has relied on the following passage from the judgment of the trial court dated 03.01.2014:

"From the aforesaid discussion of the evidence of witnesses, I find that most of the witnesses are belong to same family and as such they are interested witnesses who usually deposed in favour of the complainant and the prosecution has failed to bring any independent witness to corroborate the allegation regarding the matrimonial dispute between the parties and even the complainant herself admitted that their marriage was held at Tripureswari Temple and in her cross examination she stated that she cannot say the exact date on which her husband assaulted her and on which date she was driven out from her matrimonial home. She stated that she cannot say what is „Saptapadi‟, which is a vital part of Hindu marriage.

In view of above, I think it is not necessary to go on further discussion to arrive at the decision and accordingly, the aforesaid point is decided in negative and in favour of the accused person.

In the result, I am constrained to hold opinion that the accused person namely, Sri Madan Paul, S/O late Jogesh Chandra Paul of Lawgang under Satirbazar P.S., South Tripura District, is not found guilty for the commission of the offences punishable under Section 498(A) IPC and he is hereby acquitted of the said offence and set at liberty. The surety of the accused person stands discharged from the liability of the bail bond.

Thus, the case is disposed of on contest with an order of acquittal." [Emphasis added]

The said finding, according to Mr. Acharjee, learned counsel has been reversed solely on the basis of surmise, and such surmise is evident in para 12 of the impugned judgment dated 02.02.2017.

It has been observed by the Addl. Sessions Judge that the women seldom come out with complaints against their husbands or in-laws on the occurrence of the very first act of the cruelty. It is only after suffering for long time and after prolonged acts of cruelty, the women or their family come forward with complaint.

Mr. Acharjee, learned counsel has quite emphatically contended that this kind of finding defies the very principle of drawing up presumption. There cannot be any general presumption in respect of violence against women. To buttress his contention, Mr. Acharjee, learned counsel has placed his reliance on a decision of the apex court in Girdhar Shankar Tawade Vs. State of Maharashtra reported in (2002) 5 SCC 177 where it has been observed inter alia that the basic purpose of the statutory provision is to avoid cruelty which stands defined by attributing a specific statutory meaning. Two specific instances have been taken note of, in order to prescribe a meaning of the word 'cruelty' by the legislature, in the form of explanations involving three specific situations viz., (i) to drive the women to commit suicide; or (ii) to cause grave injury; or (iii) danger to life, limb and health, both mental and physical, and thus involving physical torture or atrocity. In explanation (b) there is absence of physical injury but the legislature thought it fit to include harassment, which is as reflected in the legislative intent, equally heinous to match the physical injury: whereas one is patent and the other one is latent but equally serious in terms of the provisions of the statute as the same would also embrace the attributes of 'cruelty' in terms of Section 498 (A) of the IPC.

It has been further observed in Girdhar Shankar Tawade (supra) that if suicide is ruled out then in that event, applicability of Section 498(A) of the IPC can be had only in terms of explanation (b) which in no uncertain terms records harassment of the woman and the statute itself thereafter provides that it is not every such harassment but only the event of such harassment being which is perpetrated a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is not on account of failure by her or any person related to her to meet such demand.

Mr. Acharjee, learned counsel has robustly projected another point that by differently appreciating the evidence, the appellate court reached to the finding that the appellant is liable to be convicted. But no ground of perversity has been accepted by the first appellate court. According to Mr. Acharjee, learned counsel this is a clear case where two possible views have surfaced and one view has been accepted by the appellate court, whereby it has been observed that there are reasons to believe that the victim was tortured for unlawful demand.

Mr. Acharjee, learned counsel has submitted that such general presumption is prohibited by a law. Whenever the court is supposed to draw presumption, is required to be drawn, there should be solid foundation of fact, based on which, from the experience of the human life or the context in which human life exists, presumption can be drawn. Unless this foundation is laid, such presumption is bound to be surmise in the eye of law.

Mr. Acharjee, learned counsel appearing for the appellant, has thereafter, contended that there are two sets of evidence indicating to two possible views and as such, the appellant shall get benefit out of it and he shall be acquitted from the charges framed against him for committing cruelty against PW-01.

Mr. Ghosh, learned Addl. PP has quite fairly submitted that PWs 01, 08 and 12 if read together, it would surface that the victim was subject to cruelty within the illustrations of Section 498A (a) and (b) of the IPC. But to focus on the nature of the offence committed by the appellant, it would be appropriate to state that the cruelty has allegedly come within the illustration/explanation as provided by Section 498A (b).

Mr. Ghosh, learned Addl. PP has submitted that a bare reading of the testimony of PW-01, Shiuli Paul (the victim) it would be graphically evident that the victim had suffered torture as she had failed to bring a sum of Rs.50,000/- from her parents. Mr. Ghosh has further stated, having referred to the testimony of PW-08, that the appellant had assaulted his wife over the demand of money and she was also unhappy in her matrimonial home from the very beginning. On his query, the victim had stated that the appellant used to pressurize her to bring money but she had failed to fulfill the demand. PW-12, the Investigating Officer has supported the statement of PW-01 and PW-08. Thus, Mr. Ghosh, learned Addl. PP has submitted that the finding of conviction, as returned by the appellate court shall not be interfered with.

Having appreciated the submission made by the learned counsel for the parties and scrutinized the records of evidence it is felt apposite that a brief survey of evidence be made, even though virtually there is no difference in the submission made by the learned counsel for the parties.

PW-01 (Shiuli Paul) has narrated how she was tortured and she had virtually replicated her statement made in the complaint.

PW-02 (Smt. Gita Shil) is the elder sister of the victim and has stated that the marriage of the appellant and PW-01 was solemnized at Matabari, Udaipur as per Hindu custom and rites. She has also stated that the appellant used to pressurize to bring a sum of Rs.50,000/- and the victim was cautioned that if the money was not brought then serious consequence would follow. But nowhere had she stated that she has witnessed such action of torture or heard of the demand. But in the cross-examination, she had flatly rejected the suggestion that the appellant did never assault his wife or ever had there been any demand for money.

PW-03 (Laxmi Shil) is one of the witnesses who saw the marriage to be solemnized. According to her, the marriage was solemnized in her presence on 27th of Magha corresponding to the English year 2008. She has not stated anything more of relevance but in the suggestion she had denied that there was no marriage between the appellant and the victim.

PW-04 (Sujit Shil) has denied to state anything in favour of the prosecution and accordingly, he was declared hostile and no material could be brought out by way of the cross-examination.

PW-05 (Smt. Babli Shil) has stated that when they were staying in the rented house of the sister-in-law of the appellant, everyday they used to break in quarrel. On one occasion, Shiuli Paul was driven out from the matrimonial home by the appellant. The relation was so bitter that the appellant once refused to accept the victim. PW-05 has denied the knowledge of marriage. She denied the suggestion which were proposed to contradict her statements in the examination-in-chief.

PW-06 (Raju Debnath) did not state any material fact in respect of torture and unlawful demand.

PW-07 (Smt. Purabi Saha) was tendered by the prosecution and even was not examined by the defence.

PW-08 (Dhirendra Chandra Paul) has been referred while recording the submission of Mr. Ghosh, learned All. PP. So no further reference is being made to avoid repetition.

PW-09 (Manik Lal Saha) was tendered by the prosecution and no cross-examination was carried out by the defence.

PW-10 (Radheshyam Hrishidas) scribed the ejahar for PW-01. He has clearly stated that whatever the victim has stated to him he had recorded those allegations. Beyond that he had denied to have any further knowledge in respect of the dispute between the appellant and his wife.

PW-11 (Tarun Kanti Majumder) is one of the witnesses who was relied by the courts below in reaching the truth. PW-11 has stated that when he was the Pradhan of their village called Lawgang, against the appellant there was some allegation and in the meeting held in the Panchayat they found that the nature of the dispute was as such that could not be resolved in the Panchayat meeting. It is apparent thus that PW-11 did not support the testimony of PW-01 in respect of commitment not to repeat such conduct by the appellant.

PW-12 (M. Mog Choudhury) carried out the investigation has stated that no inquiry was carried out to ascertain whether Shiuli Paul (the victim) is the married wife of the appellant or not. But he has categorically stated that he had conducted the investigation sincerely and strictly observing the legal protocol.

The statement of Sujit Shil recorded under Section 161 of the Cr.P.C (Exhibit-02) was admitted in the evidence with serious objection from the defence. It appears from the Exhibit-2 that at the time of investigation Sujit Shil had stated that he saw that the victim was being tortured by her husband. Hence, no evidentiary value can be attached.

Having appreciated the evidence when this court has revisited the judgment it appears that the trial court was not satisfied by the evidence that the prosecution had succeeded in proving the case and the trial judge has observed that there is no substantive material to convict the appellant and as such, the appellant was acquitted from the charge.

Mr. Acharjee, learned counsel has correctly submitted that even if the evidence of PW-01 with PW-08 and PW-11 are juxtaposed, it cannot be held beyond reasonable doubt that cruelty within the meaning of Section 498(A)(b) of the IPC has been proved, inasmuch as, there is no reference to the date and time when such cruelty had occurred. Moreover, 'torture' perpetratedly may appear probable but the evidence in this regard is quite inadequate to meet the standard of proof. Therefore, having referred the principle of two sets of views to favour the accused, the benefit be provided to the appellant.

This Court finds no cogent evidence to convict the appellant and accordingly, the finding of conviction as returned by the appellate court by the impugned judgment stands interfered with and set aside. In the result, the appellant is acquitted from the charge framed under Section 498(A) of the IPC on benefit of doubt. As it has been stated by Mr. Acharjee, learned counsel that the appellant is on bail, his sureties are discharged from their liability.

For the above reasons, the appeal stands allowed and disposed of.

Send down the LCRs.