Pranay Sarkar And Ors vs State Of Tripura

[1] On questioning the legality and propriety of the judgment and order dated 27.05.2016 delivered Crl.Appeal No. 04 of 2016 by the Sessions Judge, North Tripura Dharmangar, this revisional petition under Section 397 read with section 401 of the CrPC has been filed by the convict, herein after referred to as the petitioner. Based on the complaint dated 03.04.2012 filed by the victim (Jhuma Rani Datta), wife of the petitioner No.1., Dharmanagar PS Case No.52/2012 under Section 498A/34 of the IPC was registered and taken up for investigation.

[2] On the basis of the final police report, the Sub Divisional Judicial Magistrate (SDJM) took cognizance and thereafter framed charge against the petitioners under Section 498A/34 of the IPC. The petitioners denied the charge on raising the plea of innocence.

[3] In order to substantiate the charge, as many as 9 witnesses including the victim were examined and 3 (three) documentary evidence including one injury report (Exbt-1) and the complaint (Exbt-3) were admitted in the evidence. It is required to be noted that the complaint was originally filed in the court of SDJM who had asked the police to investigate the allegations made therein. Accordingly the said police station case was registered. In the complaint, the victim (PW-3) had stated that after her marriage with the petitioner No. 1 on 22.03.2012, her husband, the petitioner No.1 at the instigation of other accused persons namely Smt. Tulsi sarkar, (the petitioner No.2), Sujit Sarkar (the petitioner No.3) and Suman Bhowmik (the petitioner No.4) started demanding as sum of Rs.50,000/- and a gold chain from the complainant. It has been asserted that at the time of marriage, valuable gifts were given to the petitioner No.1.

[4] It has been also alleged that the victim was threatened by saying that if she failed to fulfill that demand, she would be „killed‟ and her body would be thrown in the stream of Kakri river. On 22.03.2012 at about 6/6.30 pm, in the evening, the accused persons tortured the complainant (PW-3) and tried to kill her by pouring poisonous phenyl on her mouth. Somehow, the complainant passed that night and on the next day, in the evening, when she regained consciousness, she took shelter in the house of one Subhash Deb (PW-4) and the information was lodged to the police station. The complainant was treated in the Dharmanagar Hospital for two days.

[5] On 24.03.2012, the father of the complainant (PW-6), lodged the complaint. But the said complaint was not investigated by the police. PW-3 had thought that on the basis of the complaint filed by her father on 24.03.2012, the police would take action in accordance with law. But when that did not happen, she filed the complaint (Exbt-3). In the complaint, the foundational allegations, are in the words of the complainant, as follows:

"Lastly on 22.03.12 AD at about 6/6.30 pm in the evening, the accused persons unitedly had tortured the complainant physically and mentally and tried to kill her by pouring poisonous phenyl on her mouth forcibly and then they had thrown the complainant in the nearby Kakripar jungle. On that day the complainant had passed her night in an unconscious state in the jungle. But on the next day in the evening when she gained consciousness and wandered in a disheveled condition in the backyard of nearby house of witness no.2 i.e. Subhash Deb, S/o- Lt. Suresh Deb, the witness no.2 took the complainant to his own house and when he asked her she informed about the incident. When the witness no.2 informed (the incident) to her husband, (he) refused to take her back. Then the witnesses no.2 had informed (the news) to her father's house and the father of the complainant rescued her and informed (it) to the police station and later (he) admitted her to Dharmanagar Hospital."

[6] Mr. J. Bhattacharjee, learned counsel appearing for the petitioners has contended that appreciation of the evidence having been palpably wrong, led to the conviction of the petitioners and hence, the finding of conviction requires interference. Mr. Bhattacharjee, learned counsel has submitted that the narrative of PW-3 is so improbable that based on the same, the conviction cannot be returned. The allegation that has been made that by putting poisonous phenyl inside the mouth of the victim, the petitioners tried to kill her is absolutely fabricated. On the following day when she gained her consciousness she was found wandering in front of the house of one Subhas Deb (PW-4). Thereafter, she was taken to Dharmangar Hospital and on her release from the hospital, she filed the complaint on 24.03.2012 in the court of SDJM and the same was directed to be investigated by the police.

[7] According to Mr. Bhattacharjee, learned counsel, at the instance of defence, the investigating officer, PW-2 confirmed Exhibits-D1, D2 and D3. Exbts-D1 and D2 are the excerpts from the statement of PW-4 whereas Exbt-D3 is the excerpts from the statement of Dhirendra Deb, (PW5). Mr. Bhattacharjee, learned counsel has further submitted that except the said complaint (Exbt-3), PW-3 did not file any complaint in respect of the violence that she met. Mr. Bhattacharjee learned counsel has submitted that no allegation has at all been attributed by PW-5. It has been shown by the defence that PW-5 heard the allegations from the victim (PW-3) that her husband and other relatives administered poison in her mouth.

[8] In the cross-examination when the attention was drawn to the omission in respect of treatment of the victim, PW-5 has admitted that no such statement is available in the statement as recorded under Section 161 of the CrPC.

[9] Mr. Bhattacharjee, learned counsel has to buttress his submission referred to the decision of this court in Dulal Debnath vs. State of Tripura reported in (2013) 1 TLR 734 where this court had occasion to observe that the matrimonial offences are committed within the four walls of the home. Even, it is difficult to get witness from the neighborhood in respect of cruelty, suffered by the wife, but "definite evidence is required to hold one guilty of the offence under Section 498A of the IPC. The word, "cruelty" as defined in Section 498A of the IPC requires certain definite ingredients but those are absent in the present case. Addl. Sessions Judge, had no hesitation to observe that based on the omnibus statements of PWs-1, 2, 3 and 4 recorded the finding of conviction and consequently sentenced the appellant. Both as asserted are liable to be set aside. According to Mr. Bhattacharjee, learned counsel in the present case, the victim had in the trial, made certain sweeping and indefinite statements and as such, those cannot be relied on.

[10] Further reliance has been placed on Durjoy Debnath Alias Dulal and Anr. vs. State of Tripura reported in (2017) 1 TLR 208 where again this court had occasion to observe that ordinary wear and tear of family life does not meant cruelty. A mere allegation/statement that the victim was subjected to cruelty, mental or physical, is not sufficient to arrive at a conclusion that the ingredient of cruelty as required under Section 498A is proved. What is essentially required is to prove that a particular act or omission of the accused which is of such nature that, that will drive the women to commit suicide or to cause grave injury or danger to her life, limb and health, whether mental or physical, of the woman or that the harassment is of such nature which will amount to coercing woman or any person related to her to meet any unlawful demand of any property or valuable security. Such harassment when meted out for failure by her or any person related to her to meet such demand is relevant for inferring „creulty‟.

[11] In order to repel the submission of Mr. Bhattacharjee, learned counsel for the petitioner, Mr. S. Ghosh, learned Addl.PP has quite stoutly stated that the trial court has meticulously appreciated the evidence, particularly the testimonies of PW-3 and PW-4 and come to a definite inference that in the context of the case, the prosecution has been able to prove beyond reasonable doubt that the victim was subjected to harassment on unlawful demand she was subjected to physical assault and was not provided food and hence the finding of conviction cannot be faulted with. Mr. Ghosh, learned PP has further submitted that for proving the charge under Section 498A of the IPC, demand of dowry is not material. What is material is that harassment for realizing unlawful demand which according to Mr. Ghosh, learned Addl. PP has been proved to the hilt. That apart, Mr. Ghosh, learned Addl. PP has referred the decision of the apex court in Arjun and Ors. vs. State of Rajasthan reported in AIR 1994 SC 2507.

[12] The said report has also been relied by the trial judge. It has been held by the apex court in Arjun and Ors. vs. State of Rajasthan (supra) that a little bit of discrepencises or improvement do not necessarily demolish the entire testimony. Trivial discrepancies should be ignored. Similarly, innocuous omission is inconsequential.

[13] According to Mr. Ghosh, the episode that occurred on 22.03.2012 of the physical assault on the victim and driving her out from her matrimonial home for an unknown destination is to be taken serious note of. On the following day when she regained consciousness, she was traced out by PW-4. PW-4 has corroborated that when he went to take bath in Kakri river on the southern side of his house, he found the victim whose name he came to know as Jhuma Rani Datta was crying and struggling in the water of the said river. He called his wife to take care of her. His wife then took her to their house. Then he informed the parents of the victim PWs-6 and 7. The victim told PW-4 how she was administered some poisonous liquid into her mouth for failing to bring a sum of Rs.50,000/- and a gold chain. Mr. Ghosh, learned Addl. PP has contended that the appreciation of the trial judge has been affirmed by the appellate court by observing as follows:

"It is clear from the medical evidence that no injury was found on the body of the informant, but a history of ingestion of phenyl solution due to fight and quarrel of her husband and his relative was mentioned in the remark column and medical evidence shows that his is the history of the patient. The alleged incident took place on 22.02.2012 at about 6/6.30 pm and informant was detected almost its senseless condition on the following day after 22 hours. What type of liquid was actually administered to the victim could not be established. Whatever may be the case victim remained unconscious at least for a period of 24 hours. Victim did not claim that she was assaulted in a manner that some bruises would be possible on her body. Her marriage took place only one month earlier and within one month she was tortured by administering something on her mouth which made her unconscious at least for 24 hours. The recovery of the victim from the bank of the Kakri river by PW4 in such a condition shows that she was placed there by the appellants. Even subsequent conduct of the appellants as come out from the evidence of PW4 shows that after recovery of the victim none of the matrimonial relatives i.e. appellants went to a place or to the hospital to take care of the victim. So, definitely by conduct of the appellants have proved that they are guilty men. I find no ground to disbelieve the evidence of informant which were duly corroborated by the informant witness PW-4. In this case I did not find any discrepancy or inconsistencies in the evidence of PW-4 to disbelieve him when he has got no previous acquaintance with the appellants or with the informants. So, I find Ld. Trial court correctly found that prosecution was successful to prove the offence under section 498A of the Indian Penal Code against all the appellants beyond all shadow of doubt. Hence, I find no ground to interfere into the judgment and sentence passed by Ld. Trial court."

[14] The question that has been raised by the petitioners is that the finding of conviction has been drawn without appreciating the evidence in its entirety or in other words, the finding has been returned on the basis of impression. To examine the challenge as noted above, it would be appropriate to take a brief stock of the evidence.

[15] PW-1, Dr. Bireshwar Saha was the Medical Officer on duty on 23.03.2012 when the victim had been brought to the hospital with the history of ingestion of „phenyl solution‟. He has categorically stated that on examination, he did not find any injury or bruises. He has opined that "it is a case of ingestion of phenyl solution due to quarrel with husband and of his family members‟. He identified the medical report he forwarded to the investigating officer.

[16] PW-2, Partha Chakraborty, a Sub-Inspector of Police of Dharmanagar Police Station has investigated the case and in the trial he has narrated briefly how he conducted the investigation. At his instance, Exbts-D1, D2 and D3 were admitted. On 30.04.2012, he filed the chargesheet.

[17] PW-3. Jhuma Rani Datta, is the victim and she has stated that after her marriage, all her golden ornaments given to her in the marriage were taken by her husband (the petitioner No.1) and her mother-in-law (the petitioner No.2). After firajatra (the return journey), the petitioners demanded a sum of Rs.50,000/- in cash from her parental home. When she expressed inability, the petitioners started inflicting physical and mental torture on her. Her husband used to come intoxicated and tortured her physically. On 22.03.2012, her husband and her in-laws started scolding her badly on demand of money and golden ornaments. Her husband tortured her "very badly". At about 6/6.30pm, the petitioners administered some substance in her mouth forcibly. That substance smacked of phenyl. Thereafter, all the accused persons by the back door of the house took her to some unknown place. She lost her senses. On the following day, in the evening hours "she was traced by one Subhas Deb (PW-4). The said person took her to his house and informed her matrimonial family but none of them came. Her father came after some time and took her Dharmanagar hospital. Till then, she had been residing in her paternal house. Neither her husband nor her in-laws enquired her whereabouts. Only after that, she lodged the case on 02.04.2012. She has stated that she had approached to the police station, but no action was taken. She identified the complaint.

In the cross-examination, she has stated that when Subhash Deb took her to his house, she was almost senseless. At that time, Subash Deb held her and took her to his house. In the house of Subhash Deb, she regained her sense. According to her, in the evening of the following day at about 4-5pm, she was traced out by Subhash Deb. She stayed in her matrimonial home for 29 days after her marriage.

[18] In the cross-examination, she has stated that when the substance was forcibly administered in her mouth she screamed but at the time of taking her out from the matrimonial home she did not scream as she was tightly held by the inmates of the matrimonial home. She has also admitted in the cross examination that she cannot say how she was traced out by Subhash Deb. She has categorically stated that delay in lodging the case by 10 days occurred as she was expecting any body from matrimonial family would come to take her back. Her husband met her in Dharmanagar hospital, but the reason for delay has not been mentioned by her anywhere. All the suggestions in respect of unlawful demand or taking away the victim to the river bank or that since her in-laws scolded her, she lodged the false case against them were all denied.

[19] PW-4, Subhash Deb has stated that on a day at about 4/4.30pm, when he went to take bath in Kakri river, he saw the victim (Jhuma Rani Datta) crying and struggling in the water. He took her to the river bank and called his wife to take care of her. His wife made her to bathe. His wife contacted with the parental home of the victim and the local people got assembled there. Her father came to their house. During her short stay in the house of PW-4, she had stated that her husband and his family members demanded a sum of Rs.50,000/- and a gold chain weighing about two and half bari as dowry. They had administered some poisonous substance into her mouth and left her in the bank of a river. PW-4 has stated that he was not examined by the investigating officer and what he has stated in the trial was not stated to the investigating officer.

[20] He was categorically asked whether he had stated that on 23.03.2012 in the morning a lady came to his house having wearing apparel wet and she had no capacity to walk. He had admitted that such statement was there in the statement (Exbt-D1) recorded by the investigating officer. Even he has admitted the statement (Exbt-D2) that his wife took the victim to their house and gave her sari for wearing and then he asked the lady and came to know that she was the newly wedded wife of Pranay Sarkar and her parental house was at Churaibari. Her father‟s name is Nirmal Datta. He has also stated that he could not say whether the victim lied to him or not. He has stated that at the relevant point of time, as many as 40-50 people gathered at his house but he did not confirm whether the in-laws of the victim were present in the crowd.

[21] PW-5, Dhirendra Dey has stated that he was present in the hospital when the victim was brought there. He came to know from the victim that she got married to one Pranay Sarkar (the petitioner No.1). After marriage, Pranay Sarkar had started demanding Rs.50,000/- and a gold chain. Pranay Sarkar and his family members had tortured her both physically and mentally. He had also come to know that some poison was administered into her mouth.

In the cross examination, she has denied to have stated to the IO that on getting the information from Nirmal Datta (father of the victim), he came to Dharmanagar Hospital. Such statement (Exbt-D3) was available in the previous statement recorded by the investigating officer.

[22] PW-6, Nirmal Datta (the father of the victim) has stated that the victim was married to Pranay Sarkar. On demand of Rs.50,000/- and a gold chain weighing 2 bharis, Pranay Sarkar, Tulsi Sarkar, Sujit Sarkar and Suman Bhowmik used to assault his daughter physically, even she was being denied food. On 23.03.2012, the petitioners severely assaulted her and administered poisonous substance into her mouth. Thereafter, they took her away and left her on the bank of Kakri river. From a stranger, he got a telephone call informing that his daughter was missing. He and his family members had started to search for her, but could not find. On the following day, they were informed by PW-4, that she had been found, "somehow senseless and somehow she was able to speak". The victim had stated him that she was severely tortured by the accused persons and she was administered poisonous substance into her mouth. From the hospital, she was taken to his house. When she had informed the police, the police did not register the case.

In the cross examination, he has stated that he had lodged a missing diary on 23.03.2012. He has denied the suggestions contrary to what he had stated in the examination-in-chief.

[23] PW-7, Shika Rani Datta (mother of the victim) had narrated the same story as stated by PW-6. She stood by her statement made in the examination-in-chief during the cross-examination.

[24] PW-8, Mithu Ranjan Datta (brother of the victim) has exactly stated what PWs-6 and 7 have stated in the trial.

One of the interesting features that emerges from scrutiny of PWs 6, 7 and 8 is that none of them has stated that at any point of time the victim informed them of any demand raised by the petitioners.

[25] PW-9, Nanak Datta another brother of the victim has stated that after 6-7 days of firajatra ceremony when he had visited the matrimonial home of the victim, she had stated to him that the petitioners had demanded Rs.50,000/- and a golden chain weighing 2 (two) bharis. The victim had requested him not to relay the demand to her parents. Then, he had narrated the episode that occurred on 22.03.2012. They had initially searched for her on setting the missing information but they could not find her out.

In the cross examination however he stood by his statement in the examination-in-chief.

[26] Before we proceed further, the opinion of the doctor in the medical report (Exbt-1) may be extracted which is as under:

"Ingestion of phenyl solution H/ of family fight and quarrel with depression."

[27] In the complaint, the victim stated that she was administered poisonous phenyl into her mouth forcibly and thereafter the petitioners had thrown her in the nearby Kakrirpar jungle and when she gained consciousness she wandered in disheveled condition in the back yard of a nearby house of Subhas Deb, PW-4. Then, PW-4 took her to his house and she informed the incident. According to her (as stated in the complaint), PW4 has informed her husband but he refused to take her back. This categorical statement in the compliant (Exbt-3) has been seriously dented by the versions of PWs-3 and 4 in the trial. Even, the statement of PW-9 that the victim had informed of the demand to him, but he was requested not to communicate to their parents is hardly believable in the natural course of action.

[28] As this court has witnessed that the story of pouring phenyl into mouth has not been medically proved as there was no injury in the mouth and PW-1, the Medical Officer, has categorical excluded the presence of injury on the person of victim even there was no bruise. The doctor has made a significant statement that the same may be the „case of ingestion‟ out of anger from quarrel with the family members of the petitioner No.1. "Ingestion" ordinarily means taking a substance by swallowing it. This clearly indicates that while reporting the history, the victim did not tell the doctor that she was administered the phenyl solution into her mouth forcefully and thereafter she was thrown out of home, else the doctor was expected to inform the occurrence to the police station.

[29] One significant statement of the victim needs to be taken care of to unravel the real episode. She has categorically stated that she was waiting in the parental house for her husband to take her back, but since that did not happen, she had lodged the complaint against the husband and the other petitioners. But at the same time, in her cross examination, she has stated that her husband came to Dharmangar Hospital to visit her. If the evidence of PW3, as disclosed in the complaint, is believed, the substratum of the evidence of PW-3 and PW-4 would become unreliable. That apart, the story of the demand, as it appears, improved after the said incident, which according to this court is an incidence of "ingestion" of phenyl solution and it was a case of missing from the matrimonial home.

Thus, this court finds that the charge could not be proved beyond the reasonable doubt. More so, there is no evidence of worth from where the involvement of the petitioners except the petitioner No.1 can be gathered.

In the result, the finding of conviction cannot be sustained and hence the impugned judgment and order are set aside and quashed. The petitioners are acquitted from the charge on benefit of doubt.

The petition stands allowed.

Send down the LCRs forthwith.