Pradip Saha vs State Of Tripura

Heard Mr. R. Sinha, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent.

The relevant facts and background of the prosecution, case, as depicted by the learned Trial Court are as follows:-

"Sri Nityananda Deb (hereinafter called as informant) lodged a written ejahar on 13.08.2012 alleging interalia that his daughter Smt. Namita Saha got married with Pradip Saha on 08.12.2010 . At the time of marriage as per demand of groom cash Rs.40,000/- along with golden ornaments of 6.5 vori gold and furniture was given. But, since after one month of marriage all the accused persons namely Pradip Saha, Ramendra Narayan Saha, Smt. Sadhana Saha and Sri Partha Saha started physical torture upon the daughter of the informant demanding money. Accordingly, he was informed by his daughter about such torture. As a result, informant paid Rs.60,000/- in two instalments considering the happiness of his daughter. After few days, again they started physical torture upon the daughter of informant demanding Rs.1 lack but, the informant refused to fulfill their demand. Accused persons asked the informant to visit their house. When the informant visited in the matrimonial house of his daughter, accused persons demanded Rs.1 lakh to him and send back his daughter to his house asking her to go back with Rs.1 lakh otherwise the situation would be dangerous. At last, informant agreed to pay Rs.1 lakh considering the fact of happiness of his married daughter . On 12.08.2012 informant brought his daughter in her matrimonial home and promised to satisfy their demand of Rs.1 lakh within two months and came back in the house. But, on 13.08.2012 morning at 7 am accused Smt. Sadhana Saha informed the informant over telephone that his daughter is found missing. Immediate after , again he was informed that his daughter was taken at Jirania hospital. Consequently, informant along with others visited hospital and found his daughter as dead. As a result, informant lodged ejahar alleging that all the accused persons in a well planned manner killed the daughter of the informant as they did not get Rs. 1 lakh as per their demand . In the ejahar it was explained that as because the postmortem was done on 13.08.2011 thats why delay occurred to lodge the ejahar. On the basis of aforesaid ejahar Jirania PS FIR No.63/2012 dated 13.08.12 under sections 498A/304B IPC was registered against all the accused persons namely Pradip Saha( husband) Ramendra Narayan Saha( father in law) Smt. Sadhana Saha( Mother in law) and Partha Saha( brother in law) . During investigation it was revealed that on 08.12.10 marriage of Namita was solemnized with FIR named principal accused Sri Pradip Saha . At the time of marriage, informant gave cash money, gold ornaments and some articles as dowry. After few days of marriage victim was continuously subjected to mental / physical torture for escalating dowry. Accordingly, informant gave Rs.60,000/- to FIR named accused Sri Pradip Saha in two installments. Thereafter, in the Month of Durga Puja again he demanded Rs.20,000/-. Informant gave Rs.20,000/- also to her husband. Again all the FIR named accused persons started torturing upon the victim mentally and physically demanding Rs.1 lakh. Victim informed the fact to the complainant about their demand. On this information , complainant along with his wife visited the house of the accused persons and assured them that he would fulfill their demand very soon. On 13.08.12 at about 0700 hours informant received information over telephone that his daughter Namita was found missing from the house. After that he again received information that she was shifted to Jirania rural hospital. On receiving this information informant went to Jirania hospital and found his daughter dead. During investigation it was transpired that death of the victim occurred within 3 years of her marriage and soon before her death she was subject of torture by the FIR named accused persons for dowry. From the PM examination report of deceased it was revealed that cause of death is asphyxia as a result of drowning. Further it was revealed during investigation that due to mental and physical torture of the accused persons victim have fallen ill and father of the victim taken her in his own house for treatment. After treatment ,on 12.08.12 complainant along with his wife and victim went to the house of the FIR named accused persons and assured them to fulfill their demand within two months and requested them to stop torturing upon the victim . But the accused persons threatened the parents of the victim and also misbehaved with them for non payment of cash Rs.1 lakh as per their demand as dowry and in the next morning victim Namita Saha died. Accordingly, investigation concluded by presenting charge sheet vide Jirania PS CS No.60/2012 dated 27.12.12 under sections 498A/304B/302/34 IPC prosecuting the accused persons in the court of law.

On 27.01.2014 Ld. JMFC, West Tripura, Agartala took cognizance under sections 498A/304B/302/34 of IPC and the case committed to the sessions and in turn the same was transferred to this court for trial. Hence, this case.

Having gone through the materials surfaced in the charge-sheet as well as considering the submissions of the learned counsel for the parties to the lis, the learned Trial Court had framed the charges under Section 498A of IPC and under Section 304B, read with section 34 of the IPC against the four accused persons, namely:-

Sri Pradip Saha, husband-appellant;

Sri Ramendra Narayan Saha, father of the appellant;

Smt. Sadhana Saha, mother of the appellant;

Sri Partha Saha, brother of the appellant;

During trial, prosecution examined 17 witnesses to substantiate the charges and introduced some documents, like inquest report, sketch map of the scene of the crime as well as the post-mortem report. After completion of recording of evidences, all the accused-persons mentioned above were examined under Section 313 of Cr.P.C., where they were noticed about the incriminating materials as surfaced against them to which they denied all the allegations levelled against them and claimed to be innocent.

Having heard the arguments and considering the materials on record, the learned Trial Judge acquitted all the accused-persons from the charge under Section 304B read with Section 34 of IPC. However, the accused-husband, the appellant herein was convicted under Section 498A of IPC and sentenced to suffer three years of rigorous imprisonment along with fine of Rs. 5000/- with default stipulation. Being aggrieved, the appellant-husband has preferred the instant appeal before this Court.

Mr. R. Sinha, learned counsel for the appellant submits that the findings returned by the trial court was absolutely based on no evidence. Learned counsel submits that the judgment was based on some omnibus statements, where the trial court would not find any specific date, time and events of inflicting any kind of torture upon the deceased-wife of the appellant. Mr. Sinha, learned counsel particularly has drawn my attention to the evidence of the informant-P.W.-3, the father of the victim, P.W.-7, the mother of the deceased and P.W.-10, one of the neighbours who appeared as an independent witness in order to substantiate his submission that the evidences let in by the prosecution witnesses do not attract any of the ingredients of Section 498A of IPC. In support of his submission, learned counsel has relied upon the judgments of this Court passed in CRL.A.(J) No.35 of 2018 (Sri Biswajit Bhowmik Vs. State of Tripura); Cri. A. No.16 of 2009 reported in 2015 CRI.L.J. 4548 (State of Tripura Vs. Pradip Debnath); Crl. Rev. P No.60 of 2009 reported in (2014) 1 TLR 397 (Anup Kumar Guha Vs. State of Tripura & ors.).

On the other hand, Mr. S. Debnath, learned Addl. P.P. relying upon the findings returned by the learned Trial Judge has strenuously argued that it is a fit case to convict the accused-appellant under Section 498A of IPC. Learned Addl. P.P. submits that there are ample evidences to justify the conviction of the appellant. To substantiate his submission, Mr. Debnath, learned Addl. P.P. has heavily relied upon the post-mortem report and the deposition of P.W.-1, the doctor who conducted post mortem examination of the victim. He has tried to persuade this Court by drawing my attention to the injuries found upon the body of the victim after her recovery from the pond. Pointing out those injuries, Mr. Debnath, learned Addl. P.P. has tried to further justify that the injuries indicate that the victim was subjected to physical and mental torture by the husband-appellant and other in-laws in the matrimonial home. To a query made by this Court, Mr. Debnath, learned Addl. P.P. could not identify any clinching evidence to justify that she was physically or mentally tortured on any occasion prior to the death of the victim.

On the basis of the aforesaid submissions, I have perused the evidences of the prosecution witnesses as well as the material records of the case. Before I advent to the merits of the submissions and material aspects of the case, I would like to visit the principles as delineated by various Courts to convict an accused under Section 498A of the IPC.

In Arunava Bhowmik Vs. State of Assam reported in 2005(1)GLT 45, the Gauhati High Court while acquitting the accused-appellant from the charge of 498A IPC held as under:-

"The second submission of the learned counsel for the petitioner is that an offence under Section 498(A) IPC does not cover a single incident of altercation or assault between the husband and wife.

In this case, there is no allegation against the petitioner that he had demanded a colour T.V. or harassed the informant for that purpose. There is absolutely no evidence that beating or the alleged act in question was with the view to compel the informant to commit suicide. As a matter of fact, there is no evidence of PW 1 that the husband had assaulted her on any previous occasion. The witness has deposed about the single incident of assault by the husband and even if we accept the above evidence of PW 1, which is not supported by other witnesses, it does not amount to cruelty as defined under Section 489A IPC. We find that the trial court as well as the appellate court has failed to appreciate the evidence in its proper perspective. Both the Courts below also erred in holding that the single incident of alleged assault on 04-09-92 amounts to an offence under Section 498A IPC. Accordingly, we allow this revision and set aside the order of conviction and sentence entered against the accused petitioner. The accused is acquitted and set at liberty forthwith. He needs to surrender to the bail bonds."

In Manju Ram Kalita v. State of Assam, reported in 2010(2) GLT (SC) 27, the Apex Court particularly in paragraphs 21 and 22 had discussed about the meaning of "cruelty‟. It is observed that petty quarrels cannot be termed as "cruelty‟ to attract the provisions of section 498A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as "cruelty‟, and having found absence of such materials, ultimately, set aside the conviction of the appellant therein under section 498A of the IPC. The relevant paragraphs of Manju Ram Kalita (supra) is reproduced here-in-below:-

"In Girdhar Shankar Tawade vs. State of Maharashtra, AIR2002 SC2078, this Court held that "cruelty‟ has to be understood having a specific statutory meaning provided in Section 498A, IPC and there should be a case of continuous state of affairs of torture by one to another.

"Cruelty" for the purpose of Section 498A, IPC is to be established in the context of Section 498A, 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 women to commit suicide etc. It is to be established that the women 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 498A, IPC.

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

Further, a Division Bench of this Court in State of Tripura Vs. Pradip Debnath reported in 2015 CRI.L.J.4548, after going through the evidence on record of the case did not find any materials that the witnesses have stated anything about any overt act or omissions and/or acts or deeds by which the deceased was subjected to torture. The Bench further held that mere omnibus statement by her father would not form the basis for conviction of the accused under Section 498A of the IPC.

A coordinate Bench of this Court in Anup Kumar Guha Vs. State of Tripura and ors., reported in (2014) 1 TLR 397, while acquitting the appellant had observed that the prosecution could not bring in any evidence that the accused had made any unlawful demand. The Court on perusal of the evidence had noticed in the case of Anup Kumar Guha(supra) that there was nothing on record as to when, how and in what manner physical and mental cruelty was exercised by the accused.

Coming back to the facts of the present case, it is revealed that P.W.-3, the father of the deceased in his cross examination being confronted with a question had stated that:-

"After preparation of inquest report the police brought the husband of my daughter, her father in law, along with dead body of my daughter in a police vehicle to Jirania PS. In the police station we met with the police officer and asked me if I wanted to lodge any compliant. At that time we did not file any complaint. "

In my considered view, this very statement of the father turns the genesis of the prosecution story that her deceased daughter had been subjected to cruel treatment and harassment of such magnitude which drove her to commit suicide. Further, it is noticed that the informant, P.W.-3 ought to say, the prosecution could not bring in any witness who has stated that they had seen or heard at any point of time that the parents of the deceased paid Rs.1,00,000/- or Rs.60,000/- on demand of the accused-appellant and other accused-persons. P.W.-3, the father of the deceased only has made some omnibus statement without any proof or scrap of paper that he paid substantial amount to the appellant on his demand or against dowry.

P.W.-7, the mother of the deceased has also stated in her examination-in-chief that on various occasions they paid substantial amount to the appellant on his demand as dowry, but, there is no proof that the appellant at any point of time had demanded money from them as dowry.

Having gone through the entire evidence of the parents of the deceased (P.W.3 and P.W.-7) it has come to light that even not for a single occasion they lodged any complaint to any lawful authority or authorities or to any person/s raising their grievance against the appellant or lodged any complaint regarding the demand of money from them.

In furtherance thereof, this Court has noticed from the cross-examination of P.W-7 that on 20.06.2012, the appellant had suffered motor accident and was admitted to G.B Hospital therefrom he was referred to a hospital outside the state on 22.06.2012. On such reference, the appellant was shifted to Kolkata from G.B. Hospital on 23.06.2012. P.W.-7 has specifically stated that on 22.06.2012 itself, her deceased-daughter along with her baby went to their house and stayed there. She further stated in her cross-examination that the deceased returned back to her matrimonial home on 12.08.2012 to attend the marriage ceremony of the cousin sister of the accused-appellant. Thereafter, P.W.-7 stated that on the following day in the morning i.e. on 13.08.2012 she came to know about the missing of her victim-daughter from her matrimonial home. They went to the house of the appellant when they heard that the body of their daughter was recovered from nearby pond.

After meticulous scrutiny of the evidences, it has become apparent that the appellant-husband had suffered accident on 22.06.2012 and was shifted to Kolkata on 23.06.2012. On 22.06.2012 itself, the deceased went to her paternal house along with her baby and she came back to her maternal home on 12.08.2012. The appellant returned back from treatment on 7th August 2012 which fact, the appellant had revealed in his examination under Section 313 of Cr.P.C., in reply to question No.30 which is reproduced hereunder:-

"Question No.30. PW-4 further stated that his sister was brought back to their house on 25.07.12 and again after 10/12 days on request of your aunt his sister went back on 12.08.2012 to attend the marriage ceremony of cousin of you.

What do you have to say in this regard?

Answer: - I myself, my mother and brother-in-law (wife's elder brother) namely Suman Saha were in Kolkata since 23rd June, 2012 to 7th August 2012."

There is no evidence contrary to the fact that the appellant returned back after completing his treatment before 7th August, 2012.

Therefore, it is crystal clear that the statement of the father, P.W.-3 and the mother, P.W.-7 of the deceased that the appellant demanded money about "20/22 days" (P.W-3) or "15/20 days"(P.W.-7) prior to the death of their daughter are out-and-out false. More so, these statements are found to be improved versions of the witnesses for the reason that when their attentions were drawn to such statements, those were found absent.

The statement of P.W.-7 that "on the following day in the morning" she received information of her daughter's missing from the house, aptly proves that the victim returned back to matrimonial home on 12.08.2012 i.e. the date of marriage ceremony of the cousin sister of the appellant.

I find no evidence that during the period from 12.08.2012 till morning of 13.08.2012 the deceased was ever tortured either by the appellant or any of his near relatives at his house.

I have given my anxious thought to the submissions of the learned Addl. P.P. that several injury marks were detected during postmortem examination upon the body of the deceased. There is no evidence as to how the victim had suffered those injury marks. More so, he could not show any cogent evidence, even if, for argument sake, it is assumed that she was subjected to torture on that day, but, it did not come to fore by whom she was subjected to torture. Doctor (P.W.-1) in his cross examination had categorically stated that:-

"It is true that the injuries mentioned in the report would be caused during lifting the body of deceased from water from the nail of the lifters or any other substance of the water."

In my opinion, there is total absence of evidence in regard to continuous/persistent torture or harassment inflicted upon the deceased at least in close proximity of time of her death by the husband-appellant so as to drive her to commit suicide, which is the essential ingredient to bring home the charge under Section 498A of IPC. The instant case is a case based on no evidence, and according to me, the findings returned by the learned Trial Judge is based on some omnibus statements made by the parents of the deceased.

I have taken note of the evidence of P.W.-10, a neighbour of the appellant. P.W.10, Sri Uttam Saha in his cross-examination has specifically stated that at the time of negotiation of marriage there was no demand on behalf of the accused-persons. He has further stated that:-

"We did not see any dispute in between Namita and the members of the accused family. I had occasion to meet with the parents of Namita when they visited the house of the accused persons. They did not make any complaint to me against the accused person. The relationship in between the family members of accused Pradip Saha and his wife was very much natural and cordial"

The above categorical statements of this prosecution witness whose evidence remained unshaken as an independent witness appears to be very significant and carries much credence compared to some omnibus and unproven statements made by the parents of the deceased (P.W.-3 and P.W.-7).

On overall assessment of the evidence, I am of the considered opinion that the judgment and order of conviction and sentence passed by the learned Trial Judge convicting the accused-appellant under Section 498A of IPC should not sustain. Accordingly, the instant appeal stands allowed and the judgment and order of conviction and sentence dated 13.12.2018 is set aside and quashed.

It is informed by the learned counsel that the appellant is on bail. In view of this judgment, the accused-appellant is discharged from the bail bond. Consequently, his surety is also discharged from liability.