Subrata Chakraborty VsState of Tripura

S.C. Das, J.—By filing this criminal appeal, u/s 374 of Cr.P.C., the appellant, named above, challenged the judgment and order of conviction and sentence dated 10.06.2009, passed by learned Addl. Sessions Judge, Belonia, South Tripura District, in Sessions Trial No. ST 55(ST/B) of 2008 where-under learned Addl. Sessions Judge found the appellant guilty of committing offence punishable u/s 498(A) of IPC and sentenced him to suffer S.I. for 2(two) years and to pay a fine of Rs. 1000/- (one thousand) in default of payment to suffer further S.I. for 2(two) months. Heard learned senior counsel, Mr. A.C. Bhowmik assisted by learned counsel, Mr. P. Saha for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the State-respondent.

Prosecution case may be summarised thus:-

2.1 Marriage between the accused-appellant Subrata Chakraborty and the deceased Smt. Arpita Chakraborty, the unfortunate young woman was solemnized on a day in the month of April, 2000 A.D. and thereafter they lived and cohabited as husband and wife in the matrimonial home with other members of the family. It is the case of the prosecution that since after marriage Arpita was subjected to torture and tormentation in the matrimonial home on demand of money. For a few months after marriage she was well and thereafter torture and tormentation started by the accused-appellant and his mother, Minu Chakraborty, on demand of money and Arpita on different occasions had to claim money to her parents but on all occasions her parents because of their poverty, could not fulfill her claim to satisfy the demand of the accused persons and as a result, Arpita was always subjected to cruelty in the matrimonial home as a result of which she consumed poison on 17.03.2008 in the morning and she was thereafter shifted to Belonia Hospital where she died. Parents of the deceased was informed by the accused-appellant saying that Arpita was ill and the relatives from the paternal home of the deceased also came to hospital and found her dead.

2.2 A Unnatural Death (U.D.) case was registered after the incident vide U.D. Case No. 11 of 2008 of Belonia P.S. and it was investigated by woman A.S.I. Jharna Chetri Acharya of Belonia P.S.

2.3 On 20.03.2008, a written F.I.R. was lodged by Ranjit Chakraborty (P.W. 14), father of the deceased Arpita, alleging that since after a few months of marriage, Arpita was subjected to cruelty on demand of money on different occasions at different points of time on different pretext and since the demand could not be fulfilled, Arpita was badly treated and subjected to physical and mental torture and that she was killed by the accused persons on 17.03.2008.

2.4 O.C., Belonia P.S. on receipt of that F.I.R. from Ranjit Chakraborty, registered Belonia P.S. Case No. 32 of 2008 under Sections 498(A) & 302 of IPC and S.I. Nityananda Sarkar of Belonia P.S. was entrusted with the charge of investigation who after completion of investigation, submitted charge-sheet against accused-appellant Subrata Chakraborty and his mother, Smt. Minu Chakraborty for commission of offence punishable under Sections 498(A) and 306 of IPC.

2.5. Cognizance was taken on the basis of police report and on commitment of the case to the Court of Sessions, learned Addl. Sessions Judge framed charges against the accused-appellant Subrata Chakraborty and his mother Smt. Minu Chakraborty for commission of offence punishable under Sections 306 and 498(A) of IPC to which they pleaded not guilty and claimed to be tried.

2.6. To prove the charges, prosecution examined 16 witnesses namely:-

P.W. 1 Shri Badan Baidya;

P.W. 2 Smt. Putul Baidya;

P.W. 3 Smt. Jharna Chetri (Acharjee);

P.W. 4 Shri Nepal Sarkar;

P.W. 5 Dr. Sankar Chakraborty;

P.W. 6 Shri Matilal Datta;

P.W. 7 Shri Subhas Datta;

P.W. 8 Shri Krishnadhan Das;

P.W. 9 Smt. Paramita Datta;

P.W. 10 Smt. Chitra Datta;

P.W. 11 Smt. Bijali Chakraborty;

P.W. 12 Smt. Anima Chakraborty;

P.W. 13 Shri Sudip Chakraborty;

P.W. 14 Shri Ranjit Chakraborty;

P.W. 15 Shri Pranjit Chakraborty; &

P.W. 16 Shri Nityananda Sarkar.

Out of them P.Ws. 1, 2, 6, 7, 9 and 10 are all neighbourers of the accused persons. P.Ws. 11 and 14 are the mother and father of deceased Arpita. P.Ws. 12 and 13 are the relatives of the deceased. P.W. 15 is the paternal uncle of the deceased. P.W. 4 is the scribe of the F.I.R. P.W. 3 is the woman Asstt. Sub-Inspector of Police who prepared inquest report over the dead body and conducted investigation of the U.D. Case. P.W. 8 is the O.C. of the P.S. who formally registered the case. P.W. 5 is the medical officer who conducted postmortem examination over the dead body of the deceased. P.W. 16 is the I.O. of the case.

2.7. Prosecution also proved the F.I.R. lodged by P.W. 14, the inquest report prepared over the dead body of the deceased, postmortem report and the seizure list of wearing apparels of the deceased.

2.8. After closure of the prosecution evidence accused persons were examined u/s 313 , Cr.P.C. and in their turn the accused persons declined to adduce any defence evidence. Defence case so far ascertained from the trend of cross examination as well as from the statement made by the accused in course of his examination u/s 313 , Cr.P.C. is that there was no demand of dowry or money at any point of time and there was no question of any torture or tormentation of the deceased. The accused is the sole bread earning member of his family and they were very poor. Because of the poverty, Arpita might have committed suicide consuming poison.

2.9 Learned Addl. Sessions Judge considering the evidence on record acquitted the accused persons from the charge u/s 306 of IPC holding that there is no evidence of abetment to commit suicide. However, he has found the accused-appellant and his mother Minu Chakraborty guilty of committing offence punishable u/s 498(A) of IPC and sentenced them as stated hereinbefore. Hence this appeal.

Learned Sr. counsel, Mr. Bhowmik has argued that according to the prosecution, the deceased committed suicide by consuming poison. Prosecution led evidence that she was subjected to torture and tormentation in the matrimonial home on demand of money. She was conscious when she was taken to hospital. She did not make any statement to the neighbourers complaining torture or tormentation on her by the accused-appellant immediately before consuming poison. There is no evidence of abetment as defined in Section 107 of IPC. Admittedly, the deceased died after 8 years of her marriage, and submits learned Sr. counsel Mr. Bhowmik, there is no iota of legal evidence to prove the exercise of cruelty as defined in Section 498(A) of IPC. The parents of the deceased and some of the neighbourers who are inimical to the accused-appellant made some hearsay statements which do not prove the ingredients of offence punishable u/s 498(A) of IPC. The statements are vague and omnibus in respect of the demand of money and while the father of the deceased i.e. the informant was also a poor man as stated by himself, no prudent man can believe that the accused who was hand to mouth working in a electrician''s shop as an ordinary worker, had no reason to demand money to his poor father-in-law through his wife. The parents and relatives of the deceased, submits learned Sr. counsel Mr. Bhowmik, did not lodge the F.I.R. immediately after the occurrence and after 3 days, out of shock, for the death of their kin Arpita, initiated the criminal proceeding against the accused. Learned counsel, therefore, prayed for an order of acquittal.

Learned Addl. P.P., countering the submission of learned Sr. counsel, Mr. Bhowmik has submitted that the parents of the deceased and the close neighbourers of the accused persons made consistent statements that the deceased was subjected to physical and mental torture on demand of money time to time. Such fact of demand overwhelmingly brought on record in the evidence of the witnesses and the trial Court was, therefore, justified in holding that the charge u/s 498(A) of IPC has been proved against the appellant. Since there is clear and cogent evidence of demand of money at different point of time by the accused appellant, the ingredients of harassment as contemplated in Section 498(A) of IPC has been well established and so, the judgment and order of conviction and sentence shall sustain.

Admittedly, a written F.I.R. was lodged by P.W. 14, scribed by P.W. 4 which is proved as Exhibit-1. It was lodged on 20.03.2008 i.e. on the 4th day after the date of death of Arpita. Indisputably, the accused informed the informant over telephone when Arpita was taken to hospital. There is no evidence as to why the F.I.R. was lodged after such a delay. But in the F.I.R. it has been stated by the informant that since he was ill delay occurred in lodging the F.I.R. Let us first see what are the allegations made in the F.I.R. by the informant i.e. P.W. 14, the father of the deceased. The F.I.R. was in details narrating the fact from the time of solemnization of marriage till the death of Arpita The following are the allegations made in the FIR:-

(i) 4(four) months after the marriage when Arpita came to the paternal house, she told that her husband asked her to take Rs. 10,000/- or otherwise, her husband and mother-in-law will abuse and assault her and so, the informant gave her Rs. 5000/-.

(ii) After marriage Arpita came to her parental home 10/12 times and the informant also used to visit the matrimonial home of Arpita occasionally. Arpita always asked the informant to give money as otherwise her husband and mother-in-law will kill her if money is not given.

(iii) Whenever Arpita used to visit the matrimonial home informant gave her Rs. 2000/3000 on all occasions.

(iv) When Arpita was pregnant, informant gave Rs. 10,000/- to his son-in-law i.e. accused-appellant.

(v) On 08.03.2008 was the last occasion when Arpita told the informant over telephone to give Rs. 10,000/- and the informant expressed his inability.

(vi) In the month of ''Paus'' in the 2nd week, Arpita last visited the house of her parents and stayed for 7 days and told that if Rs. 20,000/- is not paid, she would be killed.

Now let us first see what the informant i.e. P.W. 14 in his deposition stated.

The witness stated that in the month of April, 2000, Arpita was given in marriage with Subrata (accused) as per Hindu rites and customs. For about 5/6 months she led peaceful marital life with the accused. After that accused started physical and mental torture on his daughter. On one occasion accused demanded Rs. 5000/- for doing fruit business and accordingly he paid it. Thereafter again, the accused demanded Rs. 25,000/- to him to purchase a vehicle. But he could not pay the said money as per demand since he was a poor man and for that reason, the accused did not provide food to Arpita in time and also started mental torture on her by using filthy language. After 6(six) months of the marriage, Arpita became pregnant and he had spent Rs. 10,000/- for the delivery of the child. On 17.03.2008, Arpita expired. About one month before the date of her death, she came to his house and she stated to him that he should pay Rs. 10,000/- to her at any cost as otherwise she may be killed by Subrata. He could not pay the amount of Rs. 10,000/-.

A bare reading of the F.I.R. and the deposition of P.W. 14 makes it abundantly clear that there is no consistency of the allegation made in the F.I.R. and the allegation made by the witness in his deposition before Court. Except that he spent Rs. 10,000/- at the time of delivery of the child of Arpita, there is no corroboration of other allegations stated by P.W. 14 with that of the allegations made by himself in the F.I.R.

Let us now see what P.W. 11, the mother of the deceased has stated in her deposition. She stated that Arpita was given in marriage with Subrata in the month of April, 2000 as per Hindu rites and customs. In her matrimonial life Arpita was unhappy as her mother-in-law and husband used to torture on her both mentally and physically. Her (witness) daughter used to tell her about such incident during her daughter''s visit to their house. 2/3 years before death, on one occasion, Arpita came to her house and told them to pay Rs. 25,000/- as she was asked by her husband to take the money from them for purchasing vehicle but they could not pay the amount for their poverty. Again in another occasion about 2 months before her death, Arpita again came to their house and told them to pay Rs. 10,000/- as per demand of her (Arpita''s) husband for doing business. They could not pay the amount. On 17.03.2008 Arpita died. They were informed by the accused about hospitalization and then her brother-in-law and others went to hospital and found Arpita dead. She further stated that the money was demanded by the accused himself while his mother used to torture her mentally.

A bare reading of the item of allegations made in the F.I.R. and that of the allegations made in the deposition of P.W. 14 and of P.W. 11, it is evident that there is no consistency in the allegations made by the parents in respect of demand of money alleged to have made by the accused through Arpita to them (witnesses). It is very difficult to put reliance on such inconsistent statements of the witnesses. Learned Addl. Sessions Judge, as I find, failed to scrutinize the evidence carefully and to appreciate it in its proper perspective.

We must keep in mind that in such cases of death of a young woman in the matrimonial home, the parents and relatives of the deceased generally become revengeful and therefore, their evidence should be carefully examined by the Court. Normally, matrimonial offences are committed in the four walls of the matrimonial home and others have little scope to know as to what happened in the matrimonial home between the husband and wife unless it is disclosed by the members of the matrimonial home. While appreciating the evidence of the parents and relatives of the deceased, the Court must remain conscious that they are guided by a spirit of revenge or nemesis against the accused persons and even normal things occurred between the couple sometimes coloured in the form of allegation. We may gainfully refer here the observation of the Apex Court in the case of

Sharad Birdhichand Sarda Vs. State of Maharashtra reported in : AIR 1984 SC 1622

. The Apex Court in paragraph 48 of the judgment has observed thus:-

Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is one consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the composed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.

In view of the inconsistency in the evidence of P.Ws. 11 and 14 as well as in the allegation made in the F.I.R., I am of the considered opinion that the trial Court was wrong in appreciating the evidence of P.Ws. 11 and 14.

P.Ws. 1 and 2 (husband and wife) are the next door neighbours of the accused. They stated nothing incriminating. P.W. 2 was declined hostile by the prosecution but her previous statement was not referred to her in the form as prescribed by law. We have repeatedly laid down the procedure prescribed by law in respect of recording contradiction and it is expected that the trial Court should follow it in letter and spirit. P.Ws. 1 and 2 virtually stated nothing incriminating against the accused.

P.W. 7 is also a neighbourer of the accused. In his deposition he stated that hearing about the incident he went to the house of the accused and found wife of the accused was lying in the courtyard and he asked accused to shift her to hospital but the accused was found to be reluctant rather the accused told him that he (accused) was waiting for her death. The witness further stated that he and others put pressure on Subrata for shifting Arpita and accordingly Subrata was sent to bring a rickshaw but Subrata was not coming back with a rickshaw. Thereafter one Nitai Sarkar was asked to search Subrata and accordingly Nitai Sarkar went and brought Subrata after about 45 minutes. Subrata did not bring any rickshaw. Thereafter they (witness and others) requested Haradhan Debnath to shift Arpita to hospital and accordingly, she was shifted to hospital. Later on, he heard that Arpita died in the hospital. There was a whisper about the torture on the victim by the accused but Arpita did not complain to him about torture.

In cross examination he stated that the house of Subrata was situated at a distance of about 500 cubits from Belonia Hrishyamukh road. There was no rickshaw stand in front of Sarashima School or near the house of accused. But rickshaw was available in that area. Rickshaw pullers normally come from Belonia town on getting trip. Subrata was very poor and the witness voluntarily stated that he paid the rickshaw fair. He further stated that he knows Haradhan Debnath as a rickshaw puller and a operator of rice mill. Haradhan was called by somebody. Nitai Sarkar went away with his bike and he did not bring any rickshaw. Mother of Subrata was not present in the house. He further stated that he did not state to the I.O. that Subrata was also absent in his house. His contention was drawn to the statement recorded by the I.O. u/s 161 Cr.P.C. and that part of the statement that Subrata was absent in his house marked as Exbt. A which was subject to proof by I.O. But at the time of cross examination of I.O. defence did not refer that part of the statement to prove it. The witness further stated that when he went to the house of Subrata he found Manik Sarkar, Jayanta Datta and other neighbourers. The wife of Badan Biswas (P.W. 2) was also found present. He denied the suggestion that Subrata did not tell him that he was waiting for the death of his wife.

There is nothing in the statement of this witness to prove the ingredients of the offence punishable u/s 498(A) of IPC. The statement that Subrata was reluctant to shift his wife and that Subrata told that he was waiting for the death of his wife is not corroborated by any other witnesses. According to this witness Haradhan Debnath took Arpita to hospital but P.W. 6 stated that he arranged for shifting of Arpita to hospital by rickshaw. So, there is a clear contradiction between the statement of P.Ws. 6 and 7 and the prosecution did not clarify it While P.W. 7 went to the house of Subrata, according to the witness himself other witnesses were present but none of them stated that Subrata made any such statement that he was waiting for the death of his wife.

Nitai Sarkar has not been examined. Jayanta Datta or Manik Sarkar were not also examined. Under such circumstances, it is very difficult to stand on this one line statement of P.W. 7 that Subrata uttered him that he was waiting for the death of his wife. It is in the statement of this witness that Arpita never complained to him about any torture. So, under such circumstances the evidence of this witness also cannot be taken to the account for holding the charge u/s 498(A) of IPC.

P.Ws. 9 and 10 are also the neighbourers of the accused. They stated that Arpita on some occasions visited their house and stated that her husband and mother-in-law assaulted her mentally and physically for non payment of money by her parents. They also stated that on the previous night of the occurrence they heard some hue and cry in the house of the accused. In their cross examination they clearly admitted that there were enmity between their family and the family of the accused. P.W. 10 admitted that there was case also between two families. Under such circumstances, P.Ws. 9 and 10 also cannot be believed in respect of the alleged statement made by the deceased to them about torture on her on demand of money. Moreover, such statement is vague and omnibus. Unless specific statement which forms a legal evidence is stated by a witness, omnibus statement cannot be accepted as a legal evidence to arrive at a conclusion in respect of a fact. The other witnesses stated nothing incriminating.

Section 498(A) of IPC has been inserted in the Penal Code to contain the atrocities on married woman, to stop all sorts of cruelty towards the married woman which has been a burning problem in the country. The concept of cruelty and its effect varies from individual to individual, depending upon the social and economic status to which such person belongs. The basic facts from which cruelty is to be inferred are to be alleged and proved. It is not sufficient to say that the deceased was subjected to torture and cruelty on demand of money. For the purpose of an offence punishable u/s 498(A) of IPC, cruelty has been defined under Explanation to the section which reads:

(a) any 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; 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 account of failure by her or any person related to her to meet such demand.

In order to constitute cruelty it is not enough that the conduct of accused is willful and is offensively unjust to the woman, but it is rather necessary that the degree of intensity of such conduct on the part of the accused is such as is likely to drive the woman to commit suicide or such conduct is likely to cause grave injury or danger to her life or limb or to her mental or physical health.

In the case at hand, the Court below disbelieved the fact of abetment on suicide on the ground of exercise of cruelty. Whereas on the same bundle of facts, the Court arrived at a conclusion of guilt of the accused u/s 498(A) of IPC, there is absolutely no basis for the Court below to arrive at such a conclusion based on the same bundle of facts alleged by the prosecution witnesses.

There is no allegation either in the F.I.R. or in the statement of the parents of the victim that there was any demand of dowry at the time of marriage or after the marriage. What is stated in the F.I.R. and in the statement of P.Ws. 11 and 14 are that the accused asked his wife to bring money from her parents time to time, different amounts for different purpose. I have already observed that there is no consistency in the statement of the parents in respect of alleged demand of money. Even if it is accepted that there was demand of money, that cannot be treated as a demand in the form of dowry.

The next question which conies for consideration is whether such statement of the deceased to her parents or other witnesses amounts to a statement to be considered as evidence for constituting an offence punishable u/s 498(A) of IPC. None of the witnesses stated that in their presence there was demand made by the accused at any point of time or that the victim was subjected to torture for such demand. While P.Ws. 11 and 14 themselves stated that they are very poor, it is really difficult to accept that the accused demanded money time to time even knowing fully well that her parents-in-law were poor.

Further the most interesting point to be considered is whether any such statement, if at all, made by the deceased to her parents or other witnesses is admissible as evidence since such statement cannot be recorded as a statement u/s 32 of the Evidence Act. The trial Court discarded the charge u/s 306 of IPC. No appeal preferred by the prosecution. Under such circumstances any statement, if at all, made by the deceased to P.Ws. 11 and 14 and other witnesses is not acceptable as evidence for the purpose of establishing a charge u/s 498(A) of IPC. In my considered opinion while the maker of the statement is not before us, any such statement made by the deceased cannot be accepted as statement u/s 32 of the Evidence Act and therefore, deposition of the witnesses that they were told by the deceased about such fact is nothing but a hearsay statement, and not admissible in evidence. The Supreme Court in the case of

Gananath Pattnaik Vs. State of Orissa reported in (2002) 2 SCC 619

, in a case u/s 498(A) and 304(B) of IPC, where the accused was acquitted from the charge u/s 304(B) whereas was found guilty of committing offence punishable u/s 498(A) of IPC, the Apex Court held that the allegations made by the witnesses based on the statement of the deceased cannot be accepted as evidence with the aid of Section 32 of the Evidence Act for the purpose of an offence punishable u/s 498(A) of IPC. We may gainfully refer here paragraph 10 of the judgment which reads thus:-

Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of P.W. 5, who is the sister of the deceased. In her deposition recorded in the court on 4.5.1990 P.W. 5 had stated:

"Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfillment of balance dowry amount of scooter and twin one." and added:

On 3.6.1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Shigdha, Sima apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from her, and that her mother-in-law has come and some conspiracy is going against her (the deceased). She farther told that "mate au banchei debenahin".

Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence act at a time when the appellant was being tried for the offence u/s 304-B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable u/s 498(A) of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the Hearsay Rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the Hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused.

In the present case there is absolutely no legal evidence of the exercise of cruelty. It is on record that the family of the accused was depending on the sole meager income of the accused and the family is very poor and almost hand to mouth. The accused in his examination u/s 313 , Cr.P.C. stated that his wife committed suicide because of the financial unsoundness of the family. The statement of the accused cannot be totally brushed aside. While there is no specific item of evidence of exercise of cruelty by the accused on the deceased, it was totally unjust for the Court below to record conviction and award punishment on the accused. There might be some ordinary wear and tear in the family for which the deceased might have committed suicide and ordinary wear and tear in the family life cannot be treated as cruelty. If it is so, the purpose of Section 498(A) will frustrate.

In view of the discussions made above, I am of the opinion that prosecution has foiled to prove the charge framed u/s 498(A) of IPC. The finding of conviction and sentence recorded by the learned trial Judge, in my considered opinion is not based on legal evidence and hence, liable to be interfered and set aside.

Accordingly, the judgment and order of conviction and sentence, dated 10.6.2009, passed by learned Addl. Sessions Judge, Belonia, South Tripura, in case No. ST 55(ST/B) of 2008, is set aside.

The Appeal accordingly stands disposed of. Send back the L.C. records along with the copy of this judgment.