Tripura High Court
Smti. Uttara Saha vs Sri Babul Saha on 16 June, 2017
Bench: Chief Justice, S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
Criminal Appeal No. 11/2013
Smti. Uttara Saha,
Wife of Sri Babul Saha,
Resident of Basanta Nagar,
P.O. & P.S. Kakraban,
South Tripura.
Presently residing at ---
Jahar Road, Udaipur Town,
P.S. R.K. Pur, District-Gomati.
..... Informant-Appellant.
-: V E R S U S:-
1. Sri Babul Saha,
Son of Sri Anil Saha,
2. Sri Sridam Saha,
Son of Sri Anil Saha,
3. Sri Anil Saha,
Son of Late Kailash Saha,
4. Smti. Pinki Saha,
Wife of Sri Sridam Saha,
All of village-Kakraban,
P.O. & P.S.-Kakraban,
District-Gomati.
5. Sri Hiralal Saha,
Son of Late Nanda Kumar Saha,
of Indiranagar,
P.S.-Melaghar,
West Tripura.
..... Accused-Respondents.
6. The State of Tripura, Represented by the Secretary, Home, Govt. of Tripura, Agartala.
..... Proforma-Respondent.
BEFORE
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE S. TALAPATRA
Counsel for the appellant : Mr. P.K. Biswas, Sr. Advocate,
Mr. P. Majumder, Advocate.
Counsel for the respondents : Mr. R.C. Debnath, Addl. P.P., Mr. K.N. Bhattacharjee, Sr. Advocate, Ms. S. Chakraborty, Advocate.
Date of hearing : 17.05.2017.
Date of Judgment & Order : 16-06-2017
Criminal Appeal No.11/2013 Page 1 of 15
JUDGMENT & ORDER
[T. Vaiphei, CJ]
In this criminal appeal, the appellant-informant is aggrieved by the acquittal of the five accused, namely, Sri Babul Saha, Shri Sridam Saha, Sri Anil Chandra Saha, Smt. Pinki Saha and Sri Hiralal Saha by the learned Assistant Sessions Judge, South Tripura, Udaipur in his judgment dated 28-3-2013 of S.T. No. 15 (ST/U) of 2012.
2. The case of the prosecution, in brief, is that the victim/appellant, namely, Smt. X (name concealed) was married to Babul Saha (A- 1) as per Hindu rites and customs. Cash amounting to ₹1,50,000/-, one motorbike and other articles were given to accused as per their demands. After their marriage, the victim went to live with A-1 in his house, but on the day of Kalratri, all the accused-respondents started demanding ₹5,00,000/- from the appellant. When the parents of the appellant expressed their inability to fulfill their demands, they assaulted her physically and tortured her mentally. On the night of 27-9-2010 at about 12 midnight, the accused- respondents put kerosene oil on the body of the appellant, but before her husband, the respondent No.1, could set her on fire, the appellant managed to escape from the clutches of the accused persons and fled from the house. When her neighbours tried to help her, they could not do so as they were threatened by the accused persons with dire consequences. She informed her parents the next day at about 10 AM. Her parents tried to bring about amicable settlement of the case, but they failed to do so. They then took her to their house and got her treated at TSD Hospital, Udaipur. It was under the aforesaid circumstances that she filed the complaint. The police registered Kakraban Police Station Case No. 172 of 2010 U/s 498-A IPC and investigated the case. On completion of the investigation, the IO of the case charge-sheeted the five accused U/s 498-A/307/34 IPC to stand the trial.
Criminal Appeal No.11/2013 Page 2 of 15
3. The learned Assistant Sessions Judge, South Tripura having found a prima facie case framed the charge against the respondents U/s 498- A/307/34 IPC, to which they pleaded not guilty and claimed to be tried. As many as 10 witnesses were examined by the prosecution to substantiate the charge against the respondents. Documents viz. Exbts. 1-series, Exbt.1/1, Exbt.2, Exbt.3, Exbt.4 and Exbt.5 were also produced by the prosecution to prove their case. One witness was examined by the defence to disprove the case of the prosecution. After examination of the respondents U/s 313 CrPC and after hearing the arguments of the prosecution and the defence, the trial court acquitted the respondents and set them at liberty. Aggrieved by this, this appeal is now preferred by the victim under the proviso to Section 372 CrPC.
4. Unfolding his submissions, Mr. PK Biswas, the learned senior counsel for the appellant, contends that the trial court has given undue importance to minor discrepancies or contradictions and arrived at the wrong conclusion though the prosecution witnesses have fully corroborated the statements of the appellant in the FIR to prove the guilt of the respondents beyond reasonable doubt. He argues that the demand of dowry and the assault made upon the appellant both physically and mentally by the respondents due to her non-fulfilment of the demand for dowry have been clinchingly proved and cross-examination of the prosecution witnesses by the defence did not elicit anything to falsify the core of the prosecution case; the trial court has misappreciated the solid evidence built up by the prosecution and has in the process committed grave miscarriage of justice. It is also the submission of the learned senior counsel that the finding of the trial court that there was delay in lodging the FIR is perverse. He, therefore, strenuously urges that the impugned judgment of acquittal is illegal and cannot be sustained in law and should be reversed for preventing gross miscarriage of justice.
Criminal Appeal No.11/2013 Page 3 of 15
5. Refuting the contentions of the learned senior counsel for the appellant, Mr. KN Bhattacharjee, the learned senior counsel for the accused-respondents, supports the impugned judgment of acquittal and submits that the law is now well-settled that when two views are possible on the evidence adduced by the prosecution witnesses, namely, one pointing to the guilt of the accused and the other to his innocence, the view, which is favourable to the accused should be adopted; this is a case in which two views are possible on the evidence adduced by the prosecution. The learned senior counsel relies on Anil Kumar v. State of UP, (2004) 13 SCC 257 and Harijan Megha Jesha v. State of Gujarat, (1979) 3 SCC 474 to buttress his contentions. Mr. R.C. Debnath, the learned Additional Public Prosecutor, endorses the contentions of the learned counsel for the accused-respondents. Contending that there is no merit in this appeal, he contends that the appeal is liable to be dismissed.
6. At the outset, it may be noted that there are two sets of charges against the accused-respondents ("the accused" for short), namely, demand of dowry by the accused from the appellant on different occasions from the time of the marriage between R-1 and the appellant till 27-9-2010 by subjecting her to cruelty by physical and mental torture with a view to extort ₹5,00,000/- from her and attempt to murder the appellant by the accused by pouring kerosene oil over her body.
7. To appreciate controversy, it may not be out of place to reproduce below the findings of the trial court in acquitting the accused-respondents:
"I have considered the evidence on record in the light of the arguments made by Learned Counsel of both the sides.
PW-1 is the complainant (victim) of this case whose evidence relating to the demand of ₹5,00,000/- by the accused persons, namely, Babul Saha, Sridam Saha, Smti. Pinki Saha and Shri Anil Chandra Saha is corroborated by Criminal Appeal No.11/2013 Page 4 of 15 the PW-4 who stated the same facts in his evidence. The PW-6, mother of the victim, also corroborated and supported the evidence of the PW-1 relating to demand of ₹5,00,000/- by the accused persons. However, PW-7, brother of the victim, only stated the name of the accused, Babul Saha, for demanding ₹5,00,000/- from the victim, Smt. Uttara Saha. The accused person's side could not bring anything in the cross-examination of PW-1 on this fact which can be said to have shaken her evidence. The accused person's side also could not bring anything in the cross-examination of PW-4 which can be said to have shaken his credit relating to the matter of demand of ₹5,00,000/- by the accused persons. However, on perusal of the evidence of PW-6 and PW-10, it is clear that the evidence given by the PW-6 relating to involvement of accused, Hiralal Saha, for demanding ₹5,00,000/- from Smti. Uttara Saha is not supported by her previous statement given to the police, hence, her evidence cannot be taken into consideration as this is an omission.
PW-7 also corroborated the evidence of the PW-1 relating to involvement of accused persons, Babul Saha, Sridam Saha, Parimal Saha, for torturing the victim, Smti. Uttara Saha, for non-fulfillment of ₹5,00,000/-. However, when the Investigating Officer of this case was cross- examined, the Investigating Officer stated that his witness did not state specifically that the accused persons, Babul Saha, Parimal Saha and Sridam Saha, assaulted his sister for non-fulfillment of demand of ₹5,00,000/-. Hence, the evidence of the PW-7 on this fact cannot be taken into consideration as this is an omission. What transpires from the evidence of the PW-1, PW-4 that Criminal Appeal No.11/2013 Page 5 of 15 among all the points of disputes between both the sides one of the most important point of dispute was the impotency of the accused, Babul Saha. It is also very strange in this case that the PW-2, namely, Shri Naresh Chandra Sarkar, and PW-8, Shri Samir Majumder, on whom the PW-1, PW-4 and PW-6 relied heavily relating to this case, did not utter anything incriminating the accused persons of this case. Both these persons as per evidence of the PW-1, PW-4 and PW-6 should have knowledge of torture committed by the accused persons on the complainant. But the PW-8 only stated that Smti. Uttara Saha told him that her husband is impotent. The PW-2 only stated that the victim told him that she is having some family dispute and he advised to take the help of Panchayat. But the complainant's side did not approach before the Panchayat for their dispute.
It is very strange in this case that though PW-2 and PW-8 were the two important independent witnesses in this case, but the prosecution did not declare them hostile though they were resiling from their earlier statement and could not bring anything which can be said to have shaken their evidence. If the evidence of the PW-2 and PW-8 are believed to be true, then the evidence of the PW-1, PW-4, PW-6 and PW-7 are believed to be false and vice-versa. The PW-9 who is the uncle of the complainant, Smti Uttara Saha, was declared hostile by the prosecution side and his evidence does not repose any confidence supporting the prosecution case. Though the PW-1, PW-4, PW-6 and PW-7 stated that total four/three meetings took place relating to the dispute between the accused person's side and the complainant's side, but the prosecution side Criminal Appeal No.11/2013 Page 6 of 15 failed to bring any witness of those meetings supporting the prosecution case. The prosecution side also could not examine other independent witnesses, namely, Dulal Das, Smti. Tanusree Debnath, Mission Debnath, Smt. Sapari Debnath and Kanu Saha for reasons best known to the prosecution side.
It is also very strange in this case that as per evidence of the PW-10, the parents of the complainant came to the Kakraban Police Station firstly when they were going to the in-laws house of the complainant. But they did not lodge ejahar in the police station.
However, as per evidence of the PW-1 when they were returning back taking the complainant with them, they again visited the Kakraban Police Station and talked with the police officials but they did not lodge the case at that time also. Also the complainant's side waited a long (time?) and filed case in the Court. As the complainant's side was having sufficient time to lodge the case, but they failed to submit the same. As the case was not lodged promptly, the chance of over thought (after-thought?) in lodging the case cannot be overruled in this case. It is also very strange in this case that though the complainant's side alleged serious allegations against the accused persons' side for offence U/s 498-A of IPC and U/s 307 of IPC, but they did not approach before the Panchayat for redressal of their dispute in spite of sufficient time available with them. The complainant in her evidence stated that when the accused persons tried to burn her by pouring kerosene over her body and she came out of the house for help and at that time locality Criminal Appeal No.11/2013 Page 7 of 15 people came but the accused persons threatened them not to help her. But the prosecution side failed to produce any single witness for supporting the evidence of the complainant of this case on this fact.
What transpires from the above discussion is that the prosecution side has failed to prove beyond reasonable doubt that the accused persons were involved in the commission of offence U/s 498-A/307 IPC. In my considered opinion that the main matter-in-dispute between both the sides was the impotency of the accused, Babul Saha. This fact was clearly supported by the prosecution side's witnesses. The defence witness as DW-1 also deposed the same fact before the Court.
Hence, from the above discussion made, I am of the opinion that the prosecution side has failed to prove the charges U/s 498-A/307/34 of IPC against the accused persons, namely, Shri Babul Saha, Shri Sridam Saha, Shri Anil Chandra Saha, Smti Pinki Saha and Shri Hiralal Saha. Hence, they are entitled to be acquitted from the liability of this case."
8. The question which falls for consideration in this appeal is thus whether there are sufficient reasons to dispel the doubts raised by the trial court in the case of the prosecution that there was demand of dowry by the private respondents from the appellant. From her cross-examination, it is interesting to note that no written complaint was ever lodged by her even though she claimed that she or her parents kept on informing the police about the incident. The written complaint was lodged for the first time not with the police but with the Chief Judicial Magistrate, South Tripura only on 29-9-2010 though the subject of complaint had occurred on 27-9-2010 Criminal Appeal No.11/2013 Page 8 of 15 and they had earlier visited the police station. It is also interesting to know that it took her about a year after their marriage to find out that her husband was impotent. It is also revealed from the cross that she did not mention in her written ejahar that goods were given to the accused persons or of the incident which happened on the night of Bhow Bhat. Nor did she mention in the ejahar that in the morning of her Bhow Bhat, R-1, Kanan Bala, R-4, R-2 and R-1 demanded ₹5,00,000/- from her for business purpose. She also failed to mention in the ejahar that in the morning of Bhow Bhat, she informed her father about the demand of ₹5,00,000/- and her father then called her husband to tell him of his inability to do so or that accused-respondents kept her in the animal shed or that four meetings had taken place or that in the first meeting which took place after six months, she was assaulted by R-3 or that in her written complaint, R-2 offered her to give one child if she would cohabit with him. That apart, as rightly held by the trial court, no independent witness or witnesses could be produced by the prosecution to corroborate this version of the prosecution case. As a matter of fact, both PW-2, who was the Upa- Pradhan, and PW-8, to whom the appellant claimed to have narrated the cruel treatment meted out to her physically as well as mentally, in their respective evidence, did not make any whisper of statement corroborating her statement in this behalf. PW-2 merely deposed that the father of the appellant, who was examined as PW-4, told him that he was having some problems related to his family matter of his daughter to which he advised him to make a petition and took the help of the Panchayat; that the appellant also one day called him over telephone that she was having some family problem; that he then gave her the same advice, but none of them approached the Panchayat.
9. To the same effect is the statement of PW-8, who testified that one day, one Nitai Chakraborty took him to the house of R-1 and on reaching there, on inquiry from R-1 and the appellant, the appellant told him that her husband (R-1) was impotent whereupon he advised her to go and take Criminal Appeal No.11/2013 Page 9 of 15 the advice of a doctor. In his cross-examination, he revealed that the parents of the appellant were present in the house of R-1 when he reached there; that no one complained about the family matter of the appellant and that the said meeting took place about one/one and half years from the date of their marriage. No evidence of torture or attempt to murder or demand of dowry was adduced by both these witnesses. Though both these two prosecution witnesses did not support the prosecution, they were never declared hostile by the prosecution. Instead, they virtually supported the case of the defence. There is nothing in law that precludes the defence to rely on the evidence of PW-2 and PW-8. Therefore, there is no sufficient evidence to prove that a sum of ₹5,00,000/- was demanded by the accused- respondents from the appellant. The legal position in this behalf can be understood from the decision of the Apex Court in Javed Massod v. State of Rajasthan, (2010) 3 SCC 538, para 20 and 21 thereof, which read thus:
"20. In the present case the prosecution never declared PWs 6, 18, 29 and 30 "hostile". Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence.
21. This Court in Mukhtiar Ahmed Ansari v. State (NCT of Delhi)1 observed:
"30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan2. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared 'hostile'. The High Court, however, convicted the accused. This 1 (2005) 5 SCC 258 2 (2005) 5 SCC 272 Criminal Appeal No.11/2013 Page 10 of 15 Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution.
31. In the present case, evidence of PW 1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police in which the police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, the accused can rely on that evidence."
The proposition of law stated in the said judgment is equally applicable to the facts in hand."
10. The next point for consideration is whether the prosecution could substantiate their case that on 27-9-2010, the private respondents with common intention poured kerosene oil over the appellant to murder her. PW-1 testified that after about three years of her marriage with R-1, when she was at her in-laws house at about 12/1 midnight, all the accused- respondents came to her room and R-3, R-5 and R-4 poured kerosene over her body and at the same time, R-1 caught hold of her, pressed her mouth, which prompted her to kick the accused-respondents in order to save herself whereafter she opened the door and rushed out of the house. She further testified that all in the neighborhood arrived at the spot, but when the accused-respondents urged them not to enter their house and threatened them with dire consequences if they did so, they retreated. She was then dragged to the house and was assaulted by their fist blows and kicks. According to PW-1, R-1 gave a tooth bite on her breast portion. On the next day of the last incident, she informed her uncle (PW-9) as to what had happened to her over a phone, who, in turn, informed her parents whereafter her father called her over telephone upon which she informed the whole incident to him. Her father then informed the police about the incident whereupon her father, Panchayat Pradhan and her other relatives Criminal Appeal No.11/2013 Page 11 of 15 came to her in-laws' house. Another meeting took place where she was once again physically assaulted by R-4 and others. She was admitted to Udaipur TSD Hospital the next day and was treated there. She identified the written complaint lodged by her and her signature thereon marked Exbt. 1-series.
11. It is worthy of notice that though PW-1 deposed that several persons from the neighbourhood had come to the spot when she rushed out of her matrimonial house, not even a single witness came forward to corroborate her statement to this effect. As already noted, PW-2 and PW-8 are supposed to be independent witnesses, no whisper of statement was made by them to substantiate her case that the private respondents ever attempted to murder by pouring kerosene oil to her body. Both of them were completely unaware of such incident. The trial court has rightly noted that the prosecution side also could not examine other independent witnesses, namely, Dulal Das, Smti. Tanusree Debnath, Mission Debnath, Smt. Sapari Debnath and Kanu Saha for reasons best known to the prosecution side. That apart, the clothes worn by the victim smelling kerosene, if her version were true, ought to have been seized by the police, but that was not done. The trial court is also correct in holding that as per evidence of PW-1 when her parents returned taking her with them, they again visited Kakraban Police Station and talked with the police officials but they did not lodge the case at that time also and that they waited too long to file the case, that too, in the Court. No explanation was given by the victim as to why no written FIR was ever lodged by them with the police. As the written complaint was not lodged with the police promptly, there is every possibility that the complaint was an after-thought and based on false and fabricated story.
12. PW-3 is the Medical Officer, who examined the appellant on 29-9-10, and deposed that the appellant was brought to him in the Emergency Block with a history of alleged physical assault, pain and injury over her breast part and that after the examination, he found multiple abrasion over both Criminal Appeal No.11/2013 Page 12 of 15 the breast, which were simple, fresh and caused by blunt object. He further testified that the appellant was admitted on 29-9-10 and was discharged on 1-10-2010. In cross, he admitted that the injuries sustained by the appellant might be self-inflicted injuries. It is worthy of notice that though the appellant had deposed that her breast was bitten by her husband, what PW-3 said is otherwise; he testified to the effect that he found multiple abrasions in both her breasts. In our opinion, tooth bites could not have caused abrasions, after all, abrasion is usually caused rubbing against hard and rough substance. Moreover, PW-3 opined that the abrasions could have been self-inflicted. PW-4 is the father of the appellant, who was not an eye-witness to the incident and deposed that on 28-9-2010, he got a news from his brother Nepal that his daughter was no more and on getting this news, he along with his relatives rushed to the house of the respondents and on reaching there, he saw the door of the house in a closed condition and when they opened it, they found the appellant lying on the ground having a smell of kerosene oil, who, on enquiry, stated that on the previous night at 12/1 midnight, all the accused-respondents, namely, R-4, R-2, R-5, R-3 and R-1 assaulted her and poured kerosene oil over the body of the appellant. He further deposed that his daughter told him that one of the accused tried to burn her by lighting fire, but she managed to rush out of the room and came to the courtyard and started making hue and cry and on hearing this, the local people assembled, but could not help her as they were threatened by the accused-respondents. In our opinion, such statements are merely hearsay evidence and are not admissible in evidence. He further deposed that the incident was brought to the notice of the local Pradhan and the Upa Pradhan, namely, Naresh Sarkar (PW-2) and other local people, who advised him to take back his daughter to his house and take recourse to law. However, PW-2, as already noticed, did not corroborate him at all. After returning from the Police Station, they stated to have visited one private doctor, Dilip Choudhury (not examined) who advised them to go to a Hospital, but this doctor was never examined. On Criminal Appeal No.11/2013 Page 13 of 15 the next morning, he lodged the complaint with Court and thereafter got her daughter treated at TSD Hospital, Udaipur. The trial court correctly observed that the main dispute between both the sides arose out of the impotency of the accused, Babul Saha, which caused frictions in the family and resulted in the lodging of the false case.
13. The factors to be borne in mind while dealing with an appeal against acquittal are reiterated by the Apex Court in Pulicherla v. State of AP, (2006) 11 SCC 444 in the following terms:
"It is now well settled that the power of the High Court in an appeal from acquittal is no different from its power in an appeal from conviction. It can review and consider the entire evidence and come to its own conclusions by either accepting the evidence rejected by the trial court or rejecting the evidence accepted by the trial court. However, if the High Court decided to depart from the conclusions reached by the trial court, it should pay due attention to the grounds on which acquittal was based and state the reasons as to why it finds the conclusions leading to the acquittal, unacceptable. It should also bear in mind that (i) the presumption of innocence in favour of the accused is fortified by the findings of the trial court; (ii) the accused is entitled to benefit of any doubt; and
(iii) the trial court had the advantage of examining the demeanour of the witnesses. The crux of the matter, however, is whether the High Court is able to give clear reasons to dispel the doubt raised, and reject the reasons given by the trial court. (See Sher Singh v. State of U.P.1, Dargahi v.
State of U.P.2, Ravinder Singh v. State of Haryana3 and Labh Singh v. State of Punjab4.)"
1 (1967) 2 SCR 727 2 (1974) 3 SCC 302 3 (1975) 3 SCC 742 4 (1976) 1 SCC 181 Criminal Appeal No.11/2013 Page 14 of 15
14. In the light of the evidence brought on record by the prosecution, the question is whether the evaluation of the evidence by the trial court suffers from any illegality, manifest error or perversity and if the main grounds on which it has based its order are reasonable and plausible, the High Court should not disturb the order of acquittal even if another view is possible. In other words, if on the same evidence, two views are reasonably possible, as is the case here, the one in favor of the private respondents must be preferred. Therefore, merely because other view is also possible, this court would not set aside the judgment of acquittal. As observed by the Apex Court in Narendra Singh v. State of MP, (2004) 10 SCC 699, benefit of doubt belonged to the accused. Suspicion, howsoever grave may be, cannot take the place of proof. There is a long distance between "may be" and "must". In the view that we have taken, we have no alternative but to hold that the prosecution has not proved the guilt of the private respondents beyond reasonable doubt.
15. For what has been stated in the foregoing, there is no merit in this appeal, which is hereby dismissed. The private respondents are set at liberty and need not surrender to their bail-bonds. Transmit the LC record.
JUDGE CHIEF JUSTICE
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