Sanjoy Nama vs The State of Tripura

S. Talapatra, J.—This is an appeal from the judgment dated 20.04.2011 delivered in ST. 22(WT/K) of 2010 by the Additional Sessions Judge, West Tripura, Khowai. The appellant has been convicted by the said judgment, hereinafter referred to as the impugned judgment, under Section 498-A/306/34 of IPC and as consequence thereof, he has been sentenced to suffer 3(three) years imprisonment and a fine of Rs. 5,000/- for committing offence punishable under Section 498-A of IPC and RI for 7(seven) years and a fine of Rs. 10,000/- for committing offence under Section 306 of the IPC with default imprisonment.

Heard Mr. S. Deb, learned senior counsel appearing for the appellant as well as Mr. R.C. Debnath, learned Addl. P.P. appearing for the respondent State.

The genesis of the prosecution case is rooted in the ejahar (Exbt-2) filed by Smti. Parul Namasudra, PW-5 disclosing that her daughter, namely, Laxmi Namasudra was given marriage with the appellant 6(six) years before the occurrence as disclosed in the said ejahar. The allegations as made out in the ejahar are that the deceased had to suffer torture as the un-lawful demand was not met with. According to the informant, there had been village meetings for conciliating the difference but that did not bring any peace in the life of the deceased.

On 08.08.2009, at about 12.40 noon, the appellant informed PW-5 that her daughter was ''attacked by stroke''. He also requested her to come to his place immediately. She rushed with her two brothers, namely, Dipak Namasudra, PW-2 and Shankar Namasudra, PW-3 and she found that her daughter committed suicide by way of hanging.

On the basis of the said ejahar dated 08.08.2009, Teliamura P.S. Case No. 55 of 2009, under Sections 498(A)/306/34 of IPC was registered. There were allegations made against the father-in-law, Amulya Nama, Mother-in-law, Smti Basana Nama, brother-in-law, Ajit Nama for treating the deceased with cruelty for realizing un-lawful demand.

On completion of the investigation, the final police report charge-sheeting the appellant and the other co-accused, namely, Amulya Nama, Smti Basana Nama, and Ajit Nama was filed. As the offence under Section 306 of the IPC is exclusively triable by the Sessions Judge, the case was committed to the court of the Addl. Sessions Judge, West Tripura, Khowai. That Court framed the charge, in the due course, against all the accused persons under Sections 498(A) read with Section 34 of the IPC and under Section 306 of the IPC against the appellant only. The charges were denied by the accused persons and they pleaded innocence claiming to face the trial.

The prosecution in order to substantiate the charge, adduced as many as 10 (ten) witnesses and introduced documentary evidence, Exbt. 1 to Exbt. 8. The documentary evidence included inquest report and the postmortem report. As the rebuttal evidence the defence adduced 2 witnesses. After the evidence as laid by the prosecution was recorded, the accused persons were examined separately under Section 313 of the Cr.P.C. for having their response against the incriminating materials those surfaced in the prosecution witnesses.

The appellant and the other accused persons denied those incriminating evidence as false, concocted and fabricated. It would be apparent from the statement of the appellant under Section 313 of the Cr.P.C. that the deceased was suffering from certain form of mental disorder and for that reason, she could not control her action and hanged herself.

On appreciating the evidence that was on record of evidence, the trial court acquitted the other accused persons and convicted the appellant by the impugned judgment.

This appeal challenges the legality and propriety of the said judgment.

Mr. S. Deb, learned senior counsel appearing for the appellant has advanced his submission on following aspects:

"(i) When the deceased committed suicide, at that point of time except one in-law, namely, Rekha Namasudra, none was at home and that has been clearly stated by one Sukriti Biswas, PW-1 who resided in the close vicinity of the house of the appellant.

(ii) There is no evidence at all in the entire records of evidence to show that there was abetment by the appellant to form the offence punishable under Section 306 of the IPC and finally

(iii) That the allegations of un-lawful demand has also not been proved to the hilt and beyond the standard of reasonable doubt."

In order to refute the submissions made by Mr. Deb, learned Senior counsel, Mr. Debnath, learned Addl. P.P. has submitted that PW-5 has categorically stated in her testimony that "before taking my daughter her husband in my presence threatened her and that after taking home he would teach a good lesson to my daughter in regular habit he used to threat her so I did not pay much hid to that threat. They left my house at about 7.30am in day time. At about 12 to 12.30 at noon I received information from her husband that Laxmi was affected by stroke. Then I along with my sister Kalpana, her husband Biplab Das, one Narayan Das whom I addressed as brother, came at Teliamura by a vehicle as per information via Teliamura P.S. When we reached the said P.S. I came to know that she committed suicide by hanging".

Mr. Debnath, learned Addl. P.P. has also for purpose of having corroboration of that statement, relied a part of that testimony of PW-4, Narayan Das who has stated that " Laxmi informed me that her husband even tortured her physically for such demand. I received the information from mother of Laxmi and accordingly, I came with mother of Laxmi at Mohorchare and thereafter I went to Teliamura P.S. and at the P.S. her mother lodged ejahar of this case".

Mr. Debnath, however, has not made any submission on the challenge as to the commission of offence punishable under Section 498-A of the IPC. For appreciating, the rival contentions as raised by the learned counsel appearing for the parties, the pertinent aspects which are to be addressed may be catalogued as under:

(I) Whether the prosecution has proved the offence of Section 306 of the IPC either by advancing presumption under Section 113-A of the Evidence Act or by evidence, independent of that section?

(ii) If the presumption cannot be drawn, whether substantive evidence of abetment as defined under Section 107 of the IPC has been introduced by the prosecution or not?

(iii) Whether the offence under Section 498A of the IPC has been proved by the prosecution or not?"

Section 113-A of Evidence Act can only be applied if the element of commission of suicide is proved and it is shown that the victim had committed the suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, in that event only the Court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. It has been statutorily provided that the cruelty as grafted in Section 113-A of the Evidence Act shall have the similar meaning and impact as provided under Section 498A of the IPC.

The prosecution has utterly failed to prove when the marriage had exactly taken place between the appellant and the deceased. But by the defence, it has been proved following standard of preponderance of the probability that the marriage had taken place in the month of Baisakh, of the year 2002, meaning either in the month of April or May of 2002. The victim died on 08.08.2009.

It is well settled principle that the standard of proof differs. When it is the case of the prosecution, the standard must be beyond reasonable doubt and when question is of rebuttal by the defence, the standard would be preponderance of probability. The defence has successfully proved by Exbt. A, which has also been confirmed by the I.O, PW-10, that the marriage had in all probability taken place more than 7 years before the occurrence.

PW-3 is one of the maternal uncles of the deceased. He had stated to the investigating officer that "in the month of Baisakh of the year 2002 A.D. last, the aforesaid niece of mine named Laxmi got married with one named Sanjay Nama, the eldest son of Amulya Nama of the resident of village Moharchera sicially" (as translated by the Translation Department of the High Court). If one of the elements as required for taking the advantage under Section 113-A of the Evidence Act, falls apart, the prosecution cannot take any advantage of that Section. In this Case, the defence has successfully proved that the marriage had taken place more than 7 years, before from the date of occurrence.

Now this Court has to see whether there is any evidence which discharges the burden of proving the abetment in terms of Section 107 of the IPC. Section 107 of the IPC provides that the abetment is a thing which instigates a person to do that thing or engages with one or more other person or persons in conspiracy for doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing or intentionally aids or by an act of illegal omission doing of that thing.

What Mr. Deb, learned senior counsel has argued with much emphasis is that regarding the episode or any other element of abetment PW-5 did not at the first instance, disclose anything that there was such instigation to compel the deceased to commit suicide. What is found for the testimony of PW-7 as shown by Mr. Debnath, learned Addl. P.P. is that before leaving the house of PW-5, the appellant did threaten the deceased that he would teach a lesson. If that part of the testimony is read very carefully, it would be apparent that even according to PW-5, such threat was very usual in the character of the appellant and it was not all imposing which can be termed as the abetment in terms of Section 107 of the IPC.

What Mr. Debnath, learned Addl. P.P. has further stated is that the continuous harassment or the physical torture on the deceased also contributed as abetment for committing suicide. The law is well settled that all the acts cannot be the acts of abetment. The act must be of such nature that someone would be compelled to do that act which has been designed or intended to be done by way of that action. We are constrained to observe that the prosecution has miserably failed to prove that kind of action on evidence. As a result, the charge under Section 306 of the IPC falls through and the accused is entitled to get the benefit thereof.

On the charge of 498-A of the IPC, this Court has come across the statements of PWs namely, PW-2, Dipak Namasudra, PW-3, Shankar Namasudra, PW-4, Narayan Das and PW-5, Parul Namasudra. According to them, the deceased visited their house and met them and also stated that she was harassed by the in-laws and the appellant on demand of money for purchasing a vehicle. These evidence can be segmented in two parts as those are not related to the statement disclosing the cause of death or related to the transaction leading to death, and the other one is direct in nature. Such evidence is only available in the testimony of PW-5, Parul Namasudra. The law has been well curved out that where the statement relating to the torture on un-lawful demand is made in the past by the deceased and is to the cause of death or transaction thereof, that cannot be brought as exemption from the hearsay rule under Section 60 of the Evidence Act for purpose of applying Section 32(1) of the Evidence Act. Only in case of the statement by the deceased relating to the cause of death or transaction thereof can be exempted under Section 32(1) of the Evidence Act and hence the testimonies in this respect of PW-2, Dipak Namasudra, PW-3, Shankar Namasudra and PW-4 Narayan Das are hit by the provisions of Section 60 of the Evidence Act. So far as the statement of PW-5, Parul Namasudra is concerned, where she has stated that the demand was directly placed to her by the appellant for purchasing a vehicle or that of PW-4 in this regard is to be dealt by this Court with much caution and care. They require to be closely scrutinized. As in their mind, there would be intense anguish to see that the appellant/husband, who has failed to protect the life of their daughter/sister is adequately punished.

Thus, this Court has juxtaposed the statement of PW-1, Sukriti Biswas who has stated clearly that "I never looked any abnormal relationship in between Laxmi with her matrimonial relatives including her husband".

The prosecution did not re-examine or cross examine this witness and as such, her statement has to be accepted by the prosecution. In view of that, we are to deal with the charge under Section 498A of the IPC. On re-appreciation, it has to be held that commission of offence punishable under Section 489A has not been proved beyond reasonable doubt.

Having held so, the appellant is entitled to be acquitted from the charge under Sections 306 and 498A of the IPC on benefit of doubt and accordingly, he is acquitted. In the result, the impugned judgment of conviction and order of sentences are set aside.

The appeal stands allowed. As the petitioner is on bail, the surety is discharged from his obligation. Send down the LCRs.