Suresh Dhanuk VsThe State of Tripura

The instant revision petition is filed by the appellant petitioner Sri Suresh Dhanuk, challenging the judgment dated 21.05.2005 passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Appeal No. 10(1) of 2005 affirming the order of conviction passed under Section 323 IPC by the learned Additional Chief Judicial Magistrate, West Tripura, Agartala in GR 854 of 2003

Heard Mr. S. Sarkar, learned counsel appearing for the accused appellant petitioner as well as Mr. RC Debnath, learned Additional Public Prosecutor.

The prosecution story in short, is as follows:

That marriage of the informant Smt. Renu Dhanuk (PW-1) was solemnized with the appellant petitioner about 17/18 years back according to the social customs and after two years of their marriage the appellant petitioner started torture upon the informant (PW-1) both physically and mentally. It is also stated in the First Information Report that due to the wedlock, Renu Dhanuk gave birth to three daughters and one son and was compelled to leave the house of the appellant petitioner on 08.09.2003 to get rid of the torture. The aforesaid facts were reported to the Agartala Women PS on 10.09.2003 on the basis of which Agartala Women PS registered a specific police case being Agartala Women PS case No. 58 of 2003 under Section 498(A) of Indian Penal code. Upon investigation charge sheet was filed against the appellant petitioner under Section 498(A) IPC.

The learned trial Court after taking cognizance of the offence proceeded with the trial and framed the charge against the appellant petitioner under Section 498(A) IPC. In support of its case, the prosecution examined as many as 8 witnesses including the official witnesses. After recording the evidence, the appellant petitioner was examined under Section 313 Cr.P.C. and he did not adduce any evidence as his case was of total denial. The learned Additional Chief Judicial Magistrate, West Tripura, Agartala after hearing the parties and considering the evidences on record acquitted the appellant petitioner from the charge leveled against him under Section 498(A) IPC and convicted him under Section 323 IPC and sentenced him to suffer simple imprisonment for 3 months and to pay a fine of Rs. 1,000/-.

Being aggrieved by the judgment of the learned Additional Chief Judicial Magistrate, West Tripura, Agartala, the appellant petitioner preferred an appeal before the learned Sessions Judge, West Tripura, Agartala which was registered as Crl. A. 10(1) of 2005. The learned Sessions Judge after hearing the parties decided the appeal affirming the judgment of the learned trial Court. Hence, the revision petition.

Mr. Sarkar, learned counsel while urging for setting aside the judgment of the learned trial Court as well appellate Court would contend that both the Courts below have committed error while convicting the appellant petitioner under Section 323 IPC though acquitted him from the charge leveled against him under Section 498(A) IPC. According to him, the appellant petitioner cannot be convicted under Section 323 IPC as the said offence is not a cognate offence of Section 498(A) IPC in view of Section 222(2) of the Cr.P.C. More so, he has also taken us to the FIR lodged by the informant and her evidence on record to show that nowhere she made any allegation that she was at any point of time slapped by the accused appellant petitioner and committed an offence under Section 323 IPC. He also submits that both the Courts below have gone beyond the evidence on record while convicting the appellant petitioner under Section 323 IPC. In support of his contention he has placed reliance on the decision of the Apex Court in Shamnsaheb M. Multtani v. State of Karnataka reported in (2001) 2 SCC 577 to show when a person can be punished for committing a minor offence even though charge was not framed. In paragraph 16 of the said report, the Apex Court stated as follows,-

"16. What is meant by "a minor offence" for the purpose of Section 222 of the code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-�-vis the other offence".

Mr. Debnath, learned Additional Public Prosecutor in his usual fairness submits that there is no material against the appellant petitioner to convict him under Section 323 IPC while acquitted him from the charge under Section 498(A) IPC.

We have gone through both the judgment of the learned Courts below as well as the evidence on record. On perusal of the record, it appears that the informant (PW-1) neither in her FIR nor in the evidence on record before the Court stated anything regarding any specific torture which covered the provisions of Section 323 IPC. More so, when the appellant petitioner has already been acquitted from the charge under Section 498(A) IPC due to non-availability of evidence, we are of the further opinion that the learned trial Court has failed to consider the provisions of Section 222(2) Cr.P.C. while convicting the appellant petitioner.

As there is no evidence on record for convicting the appellant petitioner, we are of the opinion that this is a fit case where the appellant petitioner should be acquitted from the charge leveled against him. Accordingly, it is ordered. As the accused appellant petitioner is on bail, his bail bond is discharged.

With the above order, the instant criminal revision petition is disposed of. Send down the LCRs forthwith.