Tapan Bhowmik and Others vs State of Tripura

B.B. Deb, J.—This criminal appeal has been directed against the judgment of conviction dated 18.04.2002 and sentence dated 20.04.2002 passed by the learned Assistant Sessions Judge, South Tripura, Udaipur in Case No. S.T. 101 (ST/U) 2000. By the impugned judgment the learned trial court convicted all the three accused appellants u/s 304(B) and sentenced them to suffer R.I. for 8 years and also convicted all the accused appellants u/s 498(A) of the I.P.C. with a sentence of R.I. for 2 years each.

The prosecution case leading to the conviction of the appellanl could be summarised as below :

Smt. Sangita Bhowmik, the daughter of Sri Bhanu Lal Bhowmik (PW 3) was given marriage with the accused appellant No. 1 (hereinafter called the appellant) Tapan Bhowmik S/o Sri Judhisthir Bhowmik of village Kushamara, Sub Division Udaipur, District South Tripura on 27th Vaishak 1405 [correspondign to 11th May, (Monday) 1998] according to the Hindu Religion, rites and customs. She lived few months happily in her in-laws house. But, thereafter she was subjected to physical and mental torture by her husband appellant Tapan, Father-in-law appellant Judhisthir and sister-in-law appellant Jharna in order to compel her to fetch more money and /belongings from her parents'' house. Sometime the parent of Sangita fulfil the demands by paying some amount on different occasions. In the meantime, Sangita gave birth of a female child. She was badly beaten by her husband on 4.9.1999, as she made protest against the selling of her golden ornaments by her husband appellant Tapan. Proceeding to the fateful night the appellant came to his in-laws house and requested the father of Sangita to come to his house. The father of the deceased Sangita went to the house of Dijesh Sarkar, who is his sister''s son having his residence in the same village Kusharma on 6.9.1990. On reaching there Dijesh Sarkar informed him that Sangita was being tortured and assaulted by the inmates of her in-laws house. Being accompanied with Dijesh Sarkar the fatherm Bhanu Lal Sarkar went to the house of the accused person. searched for his daughter but the appellant Judhistir and Jaharna behaved him roughly, he became puzzled and a-bit latter he found his daughter bed ridden in the northern viti hut of that house. He met Sangita who narrated that her husband Tapan, Father-in-law and sister-in-law Jaharna assaulted her on the last Sunday and Monday. He found injuries through-out her body. He marked bleeding injury in her hand and face. His nephew Dijesh also noticed the same. He wanted to take.his daughter for treatment to a Doctor but the appellant Judhistir Bhowmik refused to allow Sangita to be examined by Doctor. Finding no alternative father Bhanu Lal Bhowmik returned to the house of Dijesh for the night. At the time of returning he assured Sangita of arranging for her treatment on the following morning. On the following morning Tuesday at about 7 a.m. this witness along with the father of Dijesh Sarkar proceeded to the house of her daughters-in-laws but found a big crowd infront of that house and also noticed that the appellant Tapan and Jarhna pouring water on the head of Sangita. A big crowd attempted to attack the appellant Tapan. Some of the crowd stated that due to torture Sangita hanged herself to commit suicide. Member of the crowd arranged Rikshaw and Sangita was brought to Kakraban Hospital where from she was referred to Udaipur hospital and then referred to G B Hospital. They reached G. B. Hospital at 4 p.m. At 5 p.m. his son Indrajit Bhowmik also happened to be there. At mid night of that day (7.9.1990) Sangita expired in G. B. Hospital. On the basis of F.I.R. lodged by the brother of Sangita, namely, Indrajit, the police registered R.K. Pur P.S. Case No. 175/99 u/s 498(A)/306 I.P.C. against the three (3) appellants and on completion of Investigation filed the chargesheet u/s 498(A)/306 l.P.C. Case being exclusively triable by the court of Session, the learned Magistrate committed the same and the learned Session Judge, having framed charge against the three appellants u/s 498A/304B of the l.P.C. transferred the case to the file of Assistant Session Judge who held the trial. Prosecution examined 5 P.W.s including the Radical Officer and Police personnel, while defence none. On conclusion, the learned trial court convicted the appellants with sentences already mentioned in the beginning of the judgment.

Admittedly, the deceased Sangita was given marriage with the appellant Tapan according to the Hindu Religion, rites and customs on 27th Vaishak, 1405 B.S. (Corresponding to 11th May, 1998) and she died in the mid night intervening 7th/8th September, 1999 and the death was admittedly not a normal death but as a consequence of attempted suicide and as such, it could be safely held that Sangita met unnatural death within 7 years of her marriage. To bring the charge u/s 304B I.P.C. home to the appellants the following ingredients, in view of Penal provision of Section 304B I.P.C. are to be proved by the prosecution :

(i) That the death of Sangita was caused by any burns or bodily Injuries or caused otherwise under normal circumstances within 7 years of her marriage ;

(ii) That soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband ;

(iii) That such cruelty of harassment was done to her for, or in connection with any demand for dowry.

In the present case, the father of the deceased Bhanu Lal Bhowmik, and the cousin brother of him Dijesh Sarkar appears to be material witness who were examined during trial as PW 3 and PW 4 respectively. Regarding mark of injuries available in the corpus of Sangita, the medical evidence of Dr. Mridul Das, who was examined as PW 2 is also material. Informant, the brother of the deceased Sangita (PW 1) who hearing the mishap rushed to the G.B. Hospital, Agartala in the after-noon at 5.30 p.m. on 7.9.1999 and, as such, his testimony is of not much importance.

FW 3, the father of the deceased deposed that in the month of Vadra two days prior to the incident his son-in-law Tapan Bhowmik came to his house on Sunday, took meal there and insisted upon him to visit his house. Accordingly, the PW 3 went to the village Kusamara but instead of going to the house of the appellant Tapan Bhowmik he went to the house of Dijesh Sarkar, who is his nephew (sister''s son) in the said Village and being accompanied by Dijesh Sarkar, (PW 4) PW 3 went to the house of Tapan Sarkar, but initially he could not trace out his daughter. They were not also well received by the inmates, however, subsequently he found his daughter bed ridden in the northern viti hut. Both the PW 3 and PW 4 entered inside and the deceased divulged how she was tortured by her husband Tapan Bhowmik previous night also and she showed the mark of injuries on the different parts of her body. This witness decided to bring his daughter Sangita for medical treatment to a Doctor, but the inmates exposed reluctance telling him to come on the following morning. Finding no alternative both the PWs left the house and the father PW 3 has spent the night in the house of Dijesh Sarkar, PW 4. On the following morning while both the aforesaid PWs proceeded towards the house of Tapan Bhowmik, they found there was a crowd infront of their house and taking entry inside, they found the inmates of the house were pouring water on the head of his daughter. Some member of the crowd informed that due to unbearable physical torture Sangita committed suicide by hanging. The members of the crowd have arranged rickshaw and put Sangita in the rickshaw and brought her to Kakraban Hospital where from she was referred to Udaipur Hospital and then referred to G. B. Hospital, Agartala. His son, the informant PW 1 on getting information rushed to G.B. Hospital. At mid night (7th/8th September, 1999) Sangita breathed her last while she was under treatment being an indoor patient. PW 4 Dijesh Sarkar substantially corroborated the testimonies of PW 3 on all material facts.

Mr. D. Guha, learned counsel appearing for the appellants submits that the testimonies of PW 3 & PW 4 as have been narrated above, are not available in their 161 statements recorded during investigation, rather those two PWs during their cross-examination acknowledged that whatever they have deposed during Chief-examination are found missing in their 161 statements recorded by I.O. during investigation and therefore, according to Mr. Guha, the evidence of PWs 3 & 4 ought to have been totally discarded by the learned trial Court.

It is settled proposition of law that the testimony of a witness recorded in his examination-in-chief and cross examination together constitute the oral evidence. The testimony of the oral evidence of a witness recorded during trial in resilience of his earlier statement recorded under 161 Cr.P.C. and the testimony of a witness during trial contradicting his earlier statement recorded under 161 Cr.P.C. cannot be equated with the deposition of a witness recorded during trial which are not available rather missing in his 161 statement recorded during investigation. The former two circumstances should be termed to be a contradiction within the meaning of Section 145 of the Evidence Act while the third contingency simply renders the trustworthiness of such witness to be weaker but cannot altogether be discarded. Before putting reliance upon such statements some sort of acceptable corroboration must be there.

The medical evidence of P.W. 2 is now being taken for finding out the corroboration regarding the assault committed on the deceased soon before her death driving her to make an attempt for suicide. P.W. 2 deposed that he is an M.B.B.S. specially trained in Forensic Medicine and Toxicology and he conducted autopsy on the corpus of Sangita on 8.9.1999 at I.G.M. Hospital, Agartala and found the following injuries on the corpus :

"(1) 2"x2", (2) 1"x2" (3) 2"x2" there were multiple bruise in the fore aram of both side measuring 2"x3" each. There were also multiple bruise in both lower limbs as in the right side of thigh the size was of 2" x 3" at right knee joint 1"x1" at right leg 2" x 3" and in the left lower limb there were bruises in the thigh of size 2" x 1" and Anr. at leg of size 2" x 2".

On careful examination I also found one ligature mark found surrounding the necr, high up with line of demarcation, continuous which is suggestive of hanging and all the injuries found were antimortem in nature."

According to his opinion "death was due to cardio respetory failure due to post effect of hanging" and, thus, undoubtedly, it is a case of suicidal death. Regarding injuries excerpted above, this witness deposed that "at the time of carrying by rickshaw injuries may occur". Witness voluntiers "but in that case injuries will not be like those I have stated in my report." He denied suggestion of the defence starting that "it is not a fact that while carrying by rickshaw such injury, as I have stated in my report may occur". However, he admitted that "bruise may occur while pulling down from hanging and if the body comes in contact with blunt object."

Relying upon the afore quoted testimony, Mr. Guha, submits that the probability of sustaining such type of bruise injury by Sangita during the course of her pulling down from hanging position and In course of her transportation by rickshaw to Kakraban Primary Health Genre and thereafter by vehicle to Udaipur Hospital and lastly to G. B Hospital, Agartala could not be altogether ruled out. But from the testimonies of medical evidence (PW 2) I am of the considered opinion to hold that the bruise injuries of such larger measurement in fore arms of both sides and at the right knee joint cannot be sustained by the deceased as a result of transportation either by rickshaw or by vehicles. The nature of Injuries coupled with the testimony of PW 2. I am convinced to hold that the deceased was subjected to physical assault soon before her death and that happened within 7 years of her marriage. The deceased had been inside her inmates house and lastly she was found bed ridden in the northern viti of the house and in absence of any contrary evidence available with record a prudent man would in the aforesaid circumstances, undoubtedly believe that none but the husband assaulted the deceased.

In that view of the evidence available with the record. I am convinced to hold that the deceased Sangita was subjected to physical torture by her husband soon before her death and that happened within 7 years of her marriage.

Now, the question remains to be answered whether she was subjected to such physical harassment "for, or in connection with, any demand for dowry". From the deposition of father PW3, it reveals that there was demand from the side of the husband/in-laws of the deceased 4/5 months after her marriage (probably August-September, 1998). The prosecution has not produced any convincing evidence during trial suggesting to draw any inference that "soon before her death" whether she was subjected to physical assault, for any demand for dowry was made by either of the appellants.

PW 4 Dijesh Sarkar deposed that he visited alone the house of Tapan Bhowmik on 5.9.1999 also. He found mark of injury on her (Sangita) person, she also divulged to him that ''Tapan Bhowmik caused these injuries, while she protested the selling of her golden ornaments by Tapan".

From the oral evidence of PW 3 & PW 4 it could only be inferred that for last 2/3 days preceding to her death the deceased was subjected to physical assault by her husband Tapan Bhowmik, arising out of the episode of selling her golden ornaments by her husband Tapan. She having find no alternative to get rid of physical assault might have decided to culminate her life by hanging. But, in any even it cannot be held that she was subjected to physical torture soon before her death for, or in connection with demand of dowry and thus, in my considered opinion, the last but vital ingredient requires to rope a person under the penal provision of Section 304B I.P.C. is lacking. This being the position, the conviction imposed upon the appellants u/s 304B cannot be sustained.

Mr. Guha, learned counsel appearing for the appellant referring a decision of this Court in Manik Dutta, v. State of Tripura, reported in (1999) 1 G.L.R. 171, submits that since there was no "element of dowry demand", the appellants could not be lawfully convicted even u/s 498A. The related finding recorded in Manik Dutta (supra) as has been relied upon by Mr. Guha, learned counsel for the appellant, is reproduced below :

"It is, therefore, difficult to hold that the prosecution has established beyond reasonable doubt that the appellant had committed any act of cruelty towards the deceased or subjected her to any harassment for or in connection with demand of dowry and was guilty of the offences under Sections 498A and 304B I.P.C."

According to the learned counsel Mr. Guha, unless the harassment or cruelty committed on the deceased proved to be for or in connection with demand dowry, the appellants or any of them could not be held guilty u/s 498A. For better appreciation, the statutory definition of Section 498A of the I.P.C. is reproduced below:

"498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation: For the purposes of this section "cruelty" means -

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

The statutory explanation appended to penal provision of Section 498A of the I.P.C. only clarified the term "cruelty" in two phases, so far the second phase of the explanation of "cruelty" is concerned, the cruelty must be preceded by "coercing her or any person related to her to meet any unlawful demand for a property and valuable security or is on account of failure by her or any person related to her to meet such demand. "But so far first phase of explanation is concerned any wilful conduct of the husband or relatives of the husband which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury etc. is enough for holding the husband or his relatives guilty for the offence u/s 498A. In the reported case in Manik Dutta (supra) this Court did not interpreted the first part of the statutory explanation appended to 498A, rather the Court in the afore cited case interpreted the combined requirements of penal provision of Sections 498A and 304B together and, as such, the judgment/citation (supra) is distinguishable. Having regard to the evidence on record, I am satisfied that requirement of the statutory Explanation (a) appended to Section 498A has been successfully fulfilled by the prosecution. Other citation relied upon by the Defence counsel in Nilakantha Pati Vs. State of Orissa, appears to be not applicable in the present case. The decision in Ravindra Pyarelal Bidlan and Ors., appellants v. Ravindra Pyarelal Bidlan and others Vs. State of Maharashtra, as has been relied upon by the defence counsel appears to be not helpful for the appellant. In the case of Ravindra Pyarelal (supra) the Hon''ble Bombay High Court held that reasonable nexus between cruelty and suicide must be established before holding one guilty u/s 498A. As has already been stated that having failed to bear untolerable physical assault Sangita decided to cut short her life by hanging. The mark of injuries on her corpus unambiguously has led any prudent man to believe the existence of reasonable nexus between the cruelty meted to her and the attempted suicide and, thus, this ruling helped the prosecution supporting the recorded conviction instead of defence plea.

Of Course, there is no evidence on record to draw any inference that other two appellants also subjected the deceased Sangita to cruelty or physical or mental harassment with any wilful conduct which was of such a nature as was likely to drive Sangita to commit suicide etc. within the meaning of Explanation (a) of Section 498A and, as such, the appellants other than Tapan Bhowmik are entitled to be acquitted.

In the result, all the appellants are acquitted of the charge u/s 304B of the I.P.C. The appellants, namely, Judhistir Bhowmik, Smt. Jharna Bhowmik are also acquitted of the charge of Section 498A of the I.P.C. but the conviction and sentence imposed upon the appellant Tapan Bhowmik stands. The appellants Judhistir Bhowmik and Smt. Jharna Bhowmik be released forthwith from jail custody. The appellant Tapan Bhowmik is to suffer imprisonment of two (2) years R.I. as has been imposed by the learned trial court u/s 498A.