Tripura High Court
Sri Dipak Debnath vs The State Of Tripura on 19 April, 2018
Equivalent citations: AIRONLINE 2018 TRI 289
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.No.17 of 2015
Sri Dipak Debnath,
son of Sri Gouranga Debnath,
resident of Garjanmura,
P.O. Ganjanmura- 799 120,
P.S. Kakrabon, District: Gomati, Tripura
----Appellant(s)
Versus
The State of Tripura
----Respondent(s)
Connected with CRL.A.No.19 of 2015 Swapan Ch. Debnath, son of late Upendra Chandra Debnath, resident of East Bara Bhaiya (Biren Colony), P.S. R.K. Pur, District: Gomati Tripura
----Appellant(s) Versus
1. The State of Tripura and Ors.
2. Shri Dipak Debnath @ Sanu, son of Sri Gouranga Debnath, resident of Garjanmura, P.S. Kakraban, District: Gomati Tripura
3. Shri Gouranga Debnath, son of Unknown, resident of Garjanmura, P.S. Kakraban, District: Gomati Tripura
----Respondent(s) For Appellant(s) : Mr. H. Debnath, Adv.
Ms. U. Chanda, Adv.
Mr. A. Basak, Adv.
Page 2 of 12For Respondent(s) : Mr. B. Choudhury, P.P. HON'BLE MR. JUSTICE S. TALAPATRA Judgment & Order 19/04/2018 Heard Mr. H. Debnath, learned counsel appearing for the appellant in Criminal Appeal No.17 of 2015 and for the respondents in Criminal Appeal No.19 of 2015 as well as Mr. A. Basak, learned counsel appearing for the appellant in Criminal Appeal No.19 of 2015 and Mr. B. Choudhury, learned P.P. appearing for the state in both the appeals.
02. Criminal Appeal No.17 of 2015 [Dipak Debnath Vs. State of Tripura] and Criminal Appeal No.19 of 2015 [Swapan Chandra Debnath vs. State of Tripura and Ors] are taken up together for the compelling reason that these appeals have questioned the legality of the judgment dated 29.07.2015 as delivered in S.T.09(GT/U) of 2015 by the Sessions Judge, Gomati district, Udaipur seperately.
03. The appeal being Criminal Appeal No.17 of 2015 is directed against the judgment of conviction under Section 498A of the IPC whereas the Criminal Appeal No.19 of 2015 is directed against the same judgment as by the said judgment, the accused respondent has been acquitted from the charge under Section 304B of the IPC. There is no challenge against the acquittal under Section 4 of Dowry Page 3 of 12 Prohibition Act, 1961. As already stated, the appeal against conviction Mr. Debnath, learned counsel appearing for the appellant and in the appeal against order of acquittal Mr. A. Basak, learned counsel has appeared for the appellant. As these appeals have emerged from the same judgment. The reference relating to the fact or to the evidence would be made from Criminal Appeal No.17 of 2015.
04. The genesis of the prosecution is rooted in the written ejahar [Exbt.1] filed by Swapan Chandra Debnath, PW-2 revealing to the Officer-in-Charge, Kakraban police station that her daughter was being tortured for unlawful demand and on 12.11.2014 she was found hanging. When the informant was informed by the convict-appellant at about 8.30 p.m. of that day, he rushed with the Upa Pradhan of their village to the residence of the appellant where the occurrence took place. But it is on record that on that day, no written ejahar was filed to the police station.
05. On the basis of the written ejahar filed on 13.11.2014, the Kakraban P.S. Case No.175/2014 was registered was registered under Section 498A and 304A of the IPC and taken up for investigation. On completion of the investigation, the final police report was filed against the convict-appellant and his father namely Gouranga Debnath. Though his mother Sabita Debnath was alleged of participating in the same offence but the police did not submit any report against her and while taking the Page 4 of 12 cognizance the court accepted that report. Thus the trial was designed after the case was committed to the court of the Sessions Judge under Section 304B and 498A of the IPC and Section-4 of the Dowry Prohibition Act, 1961. Thus, the charge was framed but in response thereto, the appellant and co-accused denied the charge, pleaded innocence and claimed to be tried in accordance with law.
06. In order to substantiate the charge prosecution examined as many as 10(ten) witnesses including the post- mortem Doctor [PW-10], the informant [PW-2], some related witnesses and other witnesses whereas for the accused, three witnesses were examined for purpose of showing certain elements in order to exculpate them. After the evidence of the prosecution was recorded, the accused persons were separately examined under Section 313 of the Cr.P.C. when the accused persons repeated their plea of innocence and stated categorically that the incriminating evidence are all false. Apart from the oral evidence, prosecution introduced some documentary evidence which included seizure list [Exbt.-P/2], the inquest report [Exbt.P/3], post-mortem examination report [Exbt.P/3], hand-sketch map etc.
07. Mr. Debnath, learned counsel appearing for the convict-appellant has submitted that there is no material even to convict the appellant under Section 498A of the IPC Page 5 of 12 for the reasons (a) that there is no unlawful demand and
(b) there is no evidence of the torture. The trial court for purpose of returning the finding of conviction under Section 498A of the IPC relied on the statement made to PW-1, PW- 2 and PW-3 by the deceased namely Sarmistha Debnath, daughter of the informant.
08. Mr. Debnath, learned counsel has succinctly submitted that those statements are hit by the provisions of Section 60 of Indian Evidence Act and they cannot be protected under Section 32(1) of the Indian Evidence Act. If this evidence is hit by the hearsay rule, the court by relying on them has committed serious illegality. In support of his statement, learned counsel for the appellant he has relied on a decision of the apex court in Inderpal vs. State of M.P. reported in 2002 CRI.L.J.926, where the apex court has observed as under:
"7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.
8. As there is no single piece of evidence which can be admitted in law to be used against the appellant we are left with the only alternative to set aside the conviction of the appellant. In this view of the matter it is not necessary for us to consider the second limb of the Page 6 of 12 contention that the offence found against the appellant was not included in the charge framed against him."
09. Mr. H. Debnath, learned counsel appearing for the convict-appellant has in his concluding remark categorically observed that those statements under any circumstances cannot be related to the cause of death or to the transaction relating to the death. That apart, Mr. Debnath, learned counsel has also stated that the trial court has rightly acquitted the convict-appellant from the charge under Section 304B of the IPC as the ingredients to establish the charge under Section 304B of the IPC is wholly absent in the evidence as led by the prosecution viz. (i) the demand of dowry and (ii) harassment for purpose of realizing dowry soon before the death of Sarmistha Debnath. Even presumption under Section 113B of Indian Evidence Act cannot be drawn unless those components are established in the evidence. So far the demand of dowry is concerned, Mr. Debnath, learned counsel has submitted that even PW-2, Swapan Chandra Debnath has stated that:
"I paid Rs.30,000/- once and then taken back it on my necessity."
He has also taken this court to the similar statement as appeared in the testimony of PW-3, Sova Rani Debnath, mother of the deceased that 'we paid Rs.30,000/- first and after some days it was refunded.'
10. PW-5 has confirmed the statement by stating that once PW-2 paid Rs.30,000/- to the husband of the Page 7 of 12 deceased. In the cross-examination, PW-5 has stated that 'I cannot say whether it was dowry demand or not.' He has further confirmed that PW-2 told him that his daughter was murdered and hanged. The other part of the statement he has denied to have made to the Investigating Officer that he had advised PW-2 not to pay any money to the convict- appellant.
11. Mr. Debnath, learned counsel has further contended that there is no proof of harassment soon before the death. Most of the statements are unspecified with no reference to the particular date and time and as such obviously their probative value is minimal or nil and on the basis of such evidence, the prosecution cannot expect to have the case proved beyond reasonable doubt. Since the two components as stated are not established by the prosecution, no presumption under Section 113 B of Indian Evidence Act can be drawn, inasmuch as these are essential requirements for laying the foundation to allow the court draw presumption under Section 113 B of Indian Evidence Act.
12. From the other side Mr. A. Basak, learned counsel has appeared and submitted that there is sufficient evidence of unlawful demand as led by the prosecution, inasmuch as it is the evidence that the deceased was being harassed for realizing the said amount. But Mr. Basak, learned counsel has in his fairness submitted that there is Page 8 of 12 no evidence to prove that at any point of time the convict- appellant has placed the demand to the parents of the deceased. It was always through the deceased those demands were placed. He has also not disputes the fact after the deceased received Rs.30,000/- from her parents, the said amount was refunded. But subsequent thereto, there was demand for payment of money. This shows the continuum of harassment to the deceased. Further, Mr. Basak, learned counsel has submitted that this can be treated as the harassment. It would further be evident that there is a reference to 'Bhai fota', a Hindu ritual followed just after the Durga Puja festival and as such if it is compared with the day of hanging that would show that soon before that fateful occurrence, the money was demanded last time. Mr. Basak, learned counsel has desperately tried to impress this court to show the nature of transaction that has taken place. According to the learned counsel, it is a form of dowry and as such the presumption under Section 113B of Indian Evidence Act ought to have been taken by the trial court and not doing so, by the impugned judgment, the trial court has embarked on illegality and as such the acquittal is unlawful.
13. Mr. B. Choudhury, learned P.P. appearing for the state has supported the analogy extended by Mr. A. Basak, learned counsel and contended that when such offence Page 9 of 12 takes place, there exists no probability of having direct evidence in all the cases, and as such the court has failed to persuade itself in accepting the evidence of PW-2 and PW-3 in particular, to convict the appellant in Criminal Appeal No.17 of 2015 under Section 304B of the IPC.
14. Having scrutinized the evidence, as well as appreciated the submission made by the learned counsel, this court finds that three pertinent questions that emerge to be determined in the appeals are as follows:
(i) Whether despite having evidence of 'unlawful demand or dowry', the trial court has failed to take notice?
(ii) Whether there was harassment for unlawful demand or harassment soon before the death of the deceased? and
(iii) Whether the trial court has committed any illegality by not drawing any presumption under Section 113B of Indian Evidence Act?
15. Mr. Basak, learned counsel has fairly submitted that there is no direct evidence of torture available in the record of evidence. But the deceased had reported to PW-1, PW-2 and PW-3 about the torture that she faced in the matrimonial confine and those may not strictly be held to be hit by the provision of Section 60 of Indian Evidence Act. But this court has clinically appreciated the statement that Page 10 of 12 the deceased made to those witnesses and found that those are not related to the cause of death or to the transaction of death and as such those statements cannot be protected under Section 32(1) of Indian Evidence Act and hence this evidence is hit by the hearsay rule, which cannot be relied by any court lawfully.
16. So far the nature of the transaction of money is concerned it appears to this court clearly that it cannot fall under the unlawful demand or dowry inasmuch as it was given as loan, even though, that amount was received through the deceased it came back to the PW-2 on his demand. It establishes a transaction of loan as when subsequently, the money was paid, there was assurance of paying it back. Thus this court is of the opinion that the said transaction cannot be held as an unlawful demand or dowry. If the elements of dowry and torture or harassment, soon before the death are not proved by the prosecution beyond reasonable doubt, no presumption can be drawn under Section 113B of the Indian Evidence Act.
17. In addition thereto, what this court is inclined to observe is of paramount importance that DW-1, Shri Harekrishna Ghosh has clearly stated that PW-2 was present when the body was brought down to the ground by the police and the police asked him whether he had any complaint against anyone. But PW-2 did not state anything Page 11 of 12 to the police at the relevant point of time and thereafter on the following day, PW-2 lodged the written complaint to the police station without explaining why he had taken almost a day for lodging the said written complaint to the police station even though had scope to lodge such complaint within a short-while. In the circumstances, said delay rises suspicion of parleying, inasmuch as PW-2 met the police in the early occasion when he had no complaint or grievance against the convict-appellant. In absence of any explanation, the benefit of doubt will go to the accused person. Moreover, the Investigating Officer did not examine any witness from the neighbourhood to get light whether the relation between the deceased and the convict-appellant had been normal or not. As such, there is no circumstantial evidence even before this court to hold that there was torture or harassment. The defence by producing DW-2 (Sajal Rani Baishnab) and DW-3 (Swapan Ghosh) has established that even they did not hear any quarrel between the convict-appellant and the deceased, the wife of the convict-appellant at any point of time.
18. It is quite natural that when a lady is tortured, in most of the cases, it does not remain confined within the domestic walls, it trickled out to the neighbourhood and the neighbours can indicate to some 'abnormal occasion'. The investigating Police Officer while giving the statement in the trial has admitted that he did not try to record such Page 12 of 12 evidence. As a result, from the discussions as placed, this court has to come to the final conclusion that the prosecution has utterly failed to prove the charge under Section 498A and 304B of the IPC, and the charge under Section 4 of the Dowry Prohibition Act.
19. In the result, the Criminal Appeal No.17 of 2015 is allowed and the convict-appellant is acquitted from the charge under Section 498 of the IPC on benefit of doubt. The sureties, as the appellant, is on bail, are discharged from their respective liabilities, if any. But the appeal, being Criminal Appeal No.19 of 2015 from the order of acquittal is dismissed having bereft of merit.
Send down the LCRs forthwith.
JUDGE Moumita