Tripura High Court
Sri Laxminder Dhar vs The State Of Tripura on 30 June, 2021
Equivalent citations: AIRONLINE 2021 TRI 356
Author: S.G. Chattopadhyay
Bench: S.G. Chattopadhyay
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HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. No. 09 of 2019
Sri Laxminder Dhar,
Son of Late Bibhuti Dhar, resident of Tantipara, Purba Ganki, PO & PS.-Khowai,
Tripura, Pin-799202.
----- Petitioner(s)
Versus
1. The State of Tripura,
Notice to be served upon the Secretary, Department of Home, Government of
Tripura, Agartala, Pin-799001.
2. Smti Soma Paul (Dhar),
Wife of Sri Laxminder Dhar, Daughter of Late Sadhan Paul, resident of Paschim
Colony, PO & PS.-Khowai, Tripura, Pin-799202.
-----Respondent(s)
For Petitioner(s) : Mr. P.K. Ghosh, Advocate.
For Respondent(s) : Mr. R. Datta, Public Prosecutor.
Mr. K. Nath, Advocate.
Date of Hearing : 10th March, 2021.
Date of Pronouncement : 30th June, 2021.
Whether fit for reporting : Yes No
√
B_E_F_O_R_E_
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
By means of filing this criminal revision petition, the petitioner has challenged the impugned judgment dated 07.01.2019 delivered in Criminal Appeal Crl. Rev. P. No. 09 of 2019 Page - 2 of 16 No. 04 of 2018 by the Sessions Judge, Khowai Judicial District, Khowai affirming the judgment and order of conviction and sentence dated 13.04.2018 passed by the Judicial Magistrate First Class, Khowai in case No. PRC (WP) 58 of 2016 whereby the learned trial court convicted the petitioner for having committed offence punishable under section 498A IPC and sentenced him to SI for 3 (three) months.
[2] The factual background of the case is as under:
Smt. Soma Paul (Dhar), wife of Laxminder Dhar of East Ganki, Khowai lodged a written FIR with the officer in charge of Khowai police station on 13.11.2015 alleging, inter alia, that she was married to the accused about 8 years back and after their marriage, a daughter was born to them. Her accused husband and mother in law used to commit physical torture on her regularly in her matrimonial home. Despite their torture, she lived in her matrimonial home and maintained her daughter by doing the job of domestic helper. Her torturous husband contracted four more marriages since his marriage with her. According to her, she lodged the FIR against her husband because his torture crossed the limit of her tolerance.
[3] Based on the said FIR, Khowai P.S case No. 108 of 2015 under sections 498A & 494 IPC was registered and the case was endorsed to SI Binod Bihari Debbarma for investigation.
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Page - 3 of 16 [4] In the course of his investigation, the investigating officer visited the crime scene. He had drawn up hand sketch map with separate index. He also met the material witnesses of the case including the complainant and recorded their police statements under section 161 Cr.P.C. Sufficient materials supporting the charge of section 498A IPC having been collected, the investigating officer submitted Challan No. 16 of 2016 dated 29.02.2016 against the petitioner on the charges of sections 498A & 494 IPC.
[5] Sub Divisional Judicial Magistrate, Khowai received the charge sheet on 07.05.2016 and based on the police papers, the learned Sub Divisional Judicial Magistrate had taken cognizance of offence punishable under sections 498A & 494 IPC vide his order dated 07.05.2016 and summoned the accused husband and mother in law of the informant [PW-1] to appear and face the trial. After they appeared in court, the trial commenced with the framing of charges against them. Charges of offence punishable under section 498A & 494 IPC were framed against the accused husband of the informant and separate charge of offence punishable under section 498A was framed against her accused mother in law.
[6] The charge framed against the accused mother in law is as under:
"That you the above named accused person being the mother in law of Soma Paul, who is married for last 8 years to your son according to social rites and rituals subjected the said Soma Paul at Tanti Para, Purba Ganki P.S, Khowai by Crl. Rev. P. No. 09 of 2019 Page - 4 of 16 torturing her both physical and mental, on several occasions after her marriage to your son and that you thereby committed an offence punishable U/S. 498A of I.P.C, and within the cognizance of this court.
AND I do hereby direct that you be tried on the said charge."
[7] The charges framed against the accused husband is as under:
"Firstly, that you the above named accused person being the husband of Soma Paul, to whom you were married for last 8 years according to social rites and rituals subjected the said Soma Paul at Tanti Para, Purba Ganaki P.S, Khowai by having extra marital affairs, by bringing three other different women with whom you resided as husband and wife in last 8 years and torturing her physically on several occasions after marriage and that you thereby committed an offence punishable U/S. 498A of I.P.C, and within the cognizance of this court.
AND I do hereby direct that you be tried on the said charge.
Secondly, that you the above named accused person being the husband of Soma Paul, to who you were married for last 8 years according to social rites and rituals brought three different women and resided with them as husband and wife and introduced those women as your wife and that you thereby committed and offence punishable U/S. 494 of I.P.C, and within the cognizance of this court.
AND I do hereby direct that you be tried on the said charge."
They pleaded not guilty to the charges and claimed a trial. [8] In the course of trial, prosecution examined 6 (six) witnesses in all. They are Smt. Soma Paul (Dhar) [PW-1] who is the informant and victim of the case, Sri Kanu Tanti [PW-2] who is a neighbour of the victim, Sri Dilip Tanti Crl. Rev. P. No. 09 of 2019 Page - 5 of 16 [PW-3], Smt. Rambha Tanti [PW-4], Smt. Chanchala Gope [PW-5] and Sri Sonai Ghosh [PW-6] who are all neighbours of the victim. Signature of the informant in her FIR was exhibited as Exbt.1/1 at the trial.
[9] After the recording of prosecution evidence was over, both the accused were examined under section 313 Cr.P.C. In his reply, the accused admitted his marriage with the informant. He, however, denied to have contracted any other marriage. It was also stated by him that he had dispute with his wife on several issues which were settled. He, however, stated that his informant wife was not living with him. In her examination under section 313 Cr.P.C, accused mother in law of the informant, stated that other than marrying the informant her accused son contracted no other marriage. Both the accused pleaded innocence and claimed that the charges were foisted on them.
[10] On appreciation of evidence, the trial court by a brief judgment acquitted Smt. Sandhya Dhar, accused mother in law of the informant. Laxminder Dhar, accused husband of the informant was held guilty of offence punishable under section 498A IPC and after conviction he was sentenced to SI for 3 (three) months without fine. Trial court recorded no finding on the charge of section 494 IPC.
[11] Aggrieved accused petitioner challenged the said judgment by filing an appeal in the court of the Sessions Judge, Khowai Judicial District, Khowai Crl. Rev. P. No. 09 of 2019 Page - 6 of 16 which was heard and disposed of by the learned Sessions Judge on 07.01.2019. By the said judgment, the learned Sessions Judge affirmed the conviction and sentence of the petitioner and directed him to surrender before the trial court to serve out the sentence observing as under:
"6. On the basis of the aforesaid sets of evidence Ld. Trial Court hold the appellant guilty for the commission of offence punishable under section 498A and sentenced him accordingly where as the Ld. Counsel Mr. Nani Gopal Debnath submits that the findings of the Ld. Court below suffers for non application of Judicial Mind and extramarital relationship would not attract the provision of Section 498A of IPC as such the conviction and sentenced imposed by the Ld. Trial Court is liable to be set aside and the appellant deserves acquittal.
It is not a simple case that the convict appellant has developed some intimacy with another woman during the subsistence of her marriage and failed to discharge his marital obligations but a case of little more and the complexion of the case is little bit ugly that the convict appellant developed relationship with different lady and lived with them as husband and wife and ultimately he is living now with a separate lady at Agartala. On many occasion the complainant was subjected to physical harassment and there is specific evidence that the complainant was subjected to physical harassment by the convict/appellant on many occasion in a drunken state. Though the Ld. Counsel for the appellant referred a Judgment passed by the Hon'ble Supreme Court and reported in AIR 2014 Supreme Court 331 and submits that mere developing relation with a separate lady do not comes within the purview of mental cruelty or cruelty to a married woman as such the order of conviction recorded by the Ld. Trial Court is liable to be set aside.
I have gone through the Judgment where in it is observed by the Hon'ble Apex Court that marital relationship means the legally protected the marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up- bringing services in the home, support, affection, love, liking Crl. Rev. P. No. 09 of 2019 Page - 7 of 16 and so on but in the instant case there is no evidence that the convict/appellant was a responsible husband and he was discharging his marital obligations as discussed above, rather the convict/appellant manhandled the complainant on many occasion in drunken state and he is living an indecent life and thus the Judgment referred by the Ld. Counsel for and on behalf of the appellant have no manner of application in the prevailing circumstances of the present case.
7. In the aforesaid premises, on scrutiny of the evidence of the witnesses and the Judgment passed by the Ld. Trial Court it could be find that the Ld. Trial Court rightly entered into a conclusion holding the appellant guilty for the commission of offence punishable under section 498A of IPC and this court finds there is no scope to interfere with the Judgment passed by the Ld. Trial Court. Ld. Trial Court rightly find the appellant guilty for the commission of offence under Section 498A of IPC and sentence him to undergo simple imprisonment for a period of 3 (three) months without fine. Accordingly, the Judgment passed by the Ld. Trial Court is hereby up-held and the appeal is dismissed."
[12] Aggrieved by and dissatisfied with the judgment of the learned Sessions Judge, Laxminder Dhar, accused husband of the informant has challenged the judgment in this criminal revision petition mainly on the following grounds:
(i). The courts below did not appreciate the discrepancies appearing in the evidence of the prosecution witnesses and erroneously arrived at the conclusion of guilt of the petitioner relying on such evidence.
(ii). The courts below failed to appreciate that the evidence of the prosecution witnesses did not establish the charge of cruelty within the meaning of section 498A IPC against the petitioner.Crl. Rev. P. No. 09 of 2019
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(iii). No evidence except the oral statement of the informant was adduced in support of her allegation that she was tortured by her husband at her matrimonial home.
[13] While arguing on behalf of the petitioner, MR. P.K. Ghosh, learned counsel contended that to bring home the charge of section 498A IPC, essential ingredients of the offence have to be proved by adducing cogent and coherent evidence and it has to be established that conduct of the accused amounted to cruelty within the meaning of section 498A IPC. In support of his contention, Mr. Ghosh, learned counsel has relied on the decision of this High Court in Ramakanta Das Vs. State of Tripura reported in (2014) 1 TLR 334. It was further contended by Mr. Ghosh, learned counsel that the court has to take note of the intensity of the alleged conduct so as to decide whether such conduct of the accused amounted to cruelty in terms of section 498A IPC. According to Mr. Ghosh, learned counsel, mere omnibus statement of a witness stating that complainant was ill treated and subjected to torture would not constitute an offence under section 498A IPC unless the essential ingredients of the offence are established by the prosecution by trustworthy evidence. Counsel of the petitioner has relied on the decision of this Court in Subrata Chakraborty Vs. State of Tripura reported in (2014) 1 TLR 625 in support of his contention. Having relied on the decision of this court in Prwitish Dutta & Ors. Vs. State of Tripura reported in (2014) 1 TLR 848, counsel appearing for the accused contended that Crl. Rev. P. No. 09 of 2019 Page - 9 of 16 the harassment allegedly meted out to the complainant by her husband and relatives cannot be considered as cruelty unless the conduct of the husband and his relatives are wilful and are of such a nature which was likely to drive the woman to commit suicide or to cause grave injury to life, limb or heath whether mental or physical of the wife or the woman. Learned counsel also relied on the decision of this court in State of Tripura Vs. Pradip Debnath reported in (2015) 2 TLR 401 and contended that in absence of definite evidence as to the nature of cruelty, accused cannot be punished under section 498A IPC. It is contended by learned counsel that if the matter is adjusted in the ratio decided by this court in the said judgments, accused deserves acquittal in this case. [14] Mr. R. Datta, learned Public Prosecutor on the other hand vehemently argued that revisional jurisdiction of this court is very limited which restricts interference with the concurrent findings of the courts below unless their decision has resulted in gross miscarriage of justice. In support of his contention, Mr. Datta, learned Public Prosecutor has relied on the decision of Apex Court in State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri reported in (1999) 2 SCC 452 wherein the Apex Court has examined the revisional jurisdiction of the High Court and held as under:
"5.................In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the Crl. Rev. P. No. 09 of 2019 Page - 10 of 16 High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. ................."
It is also contended by learned Public Prosecutor that the courts below by 'elaborate and reasoned' judgments based on evidence have concurrently found the accused husband guilty of offence punishable under section 498A IPC which do not warrant any interference in this criminal revision petition. Learned Public Prosecutor, therefore, urges the court for dismissing the revision petition.
[15] While arguing for the parties, learned counsel had taken this court to the evidence on record.
[16] Smt. Soma Paul (Dhar) [PW-1] told the trial court in her examination in chief that a year after her marriage with the petitioner a daughter was born to them. Thereafter, her husband started having extra marital relationship. While pursuing such relationship he used to bring home those women. In the year 2015, her husband physically assaulted her on the day of Kali Puja when she raised her voice against his conduct. The neighbours saved her from the torture of her husband and pursuant to their assurance, she stayed back Crl. Rev. P. No. 09 of 2019 Page - 11 of 16 at her matrimonial home. Thereafter, her husband used to beat her almost on every alternative day. Six months thereafter, she left her matrimonial home as the torture of her husband crossed the limit of her tolerance. Then she filed a complaint against her husband. Her accused mother in law also joined her husband in committing torture on her.
In her cross examination, she stated that she did not maintain any medical record to prove that she was physically assaulted by her husband. She also stated that on the day of Kali Puja in 2015 she was assaulted by her husband. Several suggestions were put to her by counsel of the accused during cross examination. In reply, she denied the suggestion that she was not tortured by her husband and mother in law. She also denied that her husband did not associate with other women. She also denied the suggestion that her husband did not have any extra marital relationship.
[17] Sri Kanu Tanti [PW-2], a neighbour of the informant stated in his examination in chief that the accused was an alcoholic who used to quarrel with his wife and beat her up at his home. As a neighbour, the PW tried to restore their relationship by persuasion. The PW stated that he was not aware of the reason of their matrimonial dispute.
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Page - 12 of 16 In his cross examination, the PW denied the suggestion of the counsel of the accused that there is no matrimonial dispute between the informant and her accused husband.
[18] Sri Dilip Tanti [PW-3], a neighbour of the informant stated that the accused had developed discord with his informant wife but the PW was not aware as to why such discord cropped up.
[19] Smt. Rambha Tanti [PW-4] categorically stated that the accused used to associate with other women and bring them home even after his marriage with the informant.
[20] Smt. Chanchala Gope [PW-5] is a neighbour of the informant who stated that accused married twice after marrying the informant. According to the PW, he brought his second wife to his house and lived together with her. The PW also stated that there was matrimonial dispute between the informant and her husband.
[21] Sri Sonai Ghosh [PW-6] also supported the fact that accused husband of the informant married several times after marrying the informant and he used to commit torture on his informant wife along with his mother.
In his cross examination, the PW stated that she did not solemnization of any marriage ceremony in the house of the accused after he Crl. Rev. P. No. 09 of 2019 Page - 13 of 16 married the informant. He also stated that he did not witness any incident of assault on the victim by her husband. He, however, denied the suggestion of the accused that there was no quarrel between the petitioner and her accused husband.
[22] As noted above, even though a charge was framed under section 494 IPC against the husband of the petitioner, neither the trial court nor the appellate court recorded any finding on the said charge. Section 494 IPC provides punishment for bigamous marriage. It provides that whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. One of the essential ingredients of section 494 IPC is that marriage in relation to section 494 must be a marriage valid in form though not in law to substantiate an allegation of contracting a second marriage. In the present context, no evidence was led in this regard to prove bigamous marriages allegedly contracted by the accused. Since, prosecution has not challenged the findings of the courts below on this issue, it does not call for any more discussion. [23] With regard to the charge of cruelty under section 498A IPC for which the accused husband of the informant has been convicted and punished, none of the witnesses has referred to any particular instance of cruelty or harassment meted out to the informant wife of the accused except making Crl. Rev. P. No. 09 of 2019 Page - 14 of 16 omnibus statement that her husband used to torture her at her matrimonial home. PW-6 has categorically stated in his cross examination that as a neighbour he never witnessed any incident of torture on the informant. It would emerge from the evidence of the prosecution witnesses that there was matrimonial discord between the informant and her husband on the issue of his having association with several woman. Such conduct of the husband of the petitioner developed resentment in the mind of his informant wife. As a result of which relationship between the couple deteriorated. Evidence of the neighbours and that of the informant does not refer to any instance of coercive torture on the informant wife as contemplated under Clause (b) of section 498A IPC. Also there is no evidence with regard to grave injury or danger to life, limb or health of the informant wife as contemplated under Clause (a) of the explanation to section 498A IPC. [24] In Girdhar Shankar Tawade Vs. State of Maharastra reported in (2002) 5 SCC 177, the Apex Court discussed the basic purport of section 498A IPC and held that in absence of evidence regarding grave injury, danger to life, limb or health as contemplated in Clause (a) to the explanation or coercive harassment by the husband or his relatives to meet their unlawful demand of dowry as contemplated under Clause (b) of the said explanation, the offence under section 498A IPC cannot be attracted. Similar view was reiterated by the Apex Court in a later decision in Sakharam & Anr. Vs. State of Maharastra reported in (2003) 12 SCC 368 wherein the Apex Court succinctly held that Crl. Rev. P. No. 09 of 2019 Page - 15 of 16 omnibus statement regarding demand of money would not ipso facto make out a case under section 498A IPC.
[25] In the present context, there is no allegation of demand of dowry. But the wife of the accused alleged that her husband contracted several marriage and he used to beat her when she raised her voice against his conduct. All other witnesses whose evidence has been recorded are the neighbours of the informant. They supported the case of the informant and stated her husband associated with several women beyond his marital relationship and brought them to his house for which the accused was also charged under section 494 IPC. But the said charge was not proved against him. They have given omnibus statements at the trial court stating that there were disputes between the husband and wife and the accused used to assault his wife following such quarrels between them. In absence of any particular instance of torture or harassment, it is difficult to ascertain the intensity of such harassment.
[26] In view of what is discussed above, it is held that the essential ingredients of section 498A IPC have not been proved against the accused in this case. The accused, therefore, deserves an order of acquittal. [27] Resultantly, the impugned judgment stands set aside and the criminal revision petition is allowed.
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Page - 16 of 16 [28] The case is, thus, disposed of. Send down the LC record forthwith. Pending application(s), if any, also stands disposed of.
JUDGE Rudradeep Crl. Rev. P. No. 09 of 2019