MANIK DATTA Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This is an appeal under S. 374 of the Cr. P.C. against the judgment dated 24-2-1998 of the learned Sessions Judge, West Tripura, Agartala in Session Trial No. (W.T./A) 38/97 convicting the appellant for the offence under S. 498A of the IPC and sentencing him to R. I. for 3 years and a fine of Rs. 2000/-, in default to R.I. for 15 days, and convicting him also for the offence under S. 304B, IPC and sentencing him to suffer R.I. for 7 years. The facts briefly are that on 11-10-1995 the appellant lodged an information with the Officer Incharge of Lembucheri Police Out Post, Airport, West Tripura that in the morning at 5-30 a.m. when he got up from sleep he found that his wife, Swapna was not present on the bed and was instead hanging on the ceiling fan with a sari. The police came and brought down the dead body of Swapna and she was cremated. Thereafter, FIR was lodged by Smt. Chayya Das, the mother of the deceased, on 20-10-1995 before the Officer Incharge of the Airport Police Out Post, West Tripura, Narsingar. In the said FIR, she alleged that the appellant and her daughter Swapna had a love affair and the appellant gave a proposal for marriage, but she did not initially agree because there was no money for the marriage. Thereafter on 10 Vadra, Sunday, the appellant along with 4 to 5 persons came to her house situated at Isanpur with a Commander Jeep and said that he would marry the same day at the Laxmi Narayan Bari and the marriage took place at the Laxmi Narayan Bari. She further stated in the said FIR that although the appellant did not demand any dowry at the time of marriage, soon after the marriage the appellant started demanding Rs. 15,000/- and some gold articles and also informed her that his father would allow Swapna in his house only if the said demand was fulfilled. Then she informed the appellant through her second son Sri Pradip Das on 10-10-1995 that he would give the appellant one finger ring and Rs. 2000/- but the appellant did not agree and instead started altercation with Pradip regarding the demand. The same night at 10 p.m. Pradip came out from the appellant's house and slept in the house of her elder daughter which was nearby. Early in the morning the following day on 11-10-95 the appellant came from his house and informed Pradip and her elder daughter that Swapna was seriously ill and that they should go and see her and then her elder sister and her husband Pradip went and saw that Swapna's body was hanging in one of the ceiling fans'. Pursuant to the aforesaid FIR, investigation was carried out by the police and a charge-sheet was filed and the learned Sessions Judge, West Tripura, Agartala, framed charges against the appellant under Ss. 498A, 304B and 306, IPC. The appellant did not plead guilty and the trial was conducted. In the trial, 19 witnesses were examined on behalf of the prosecution and by the impugned judgment the learned Sessions Judge held that the appellant is guilty of the offences under Ss. 498A and 304B, IPC and imposed the sentences.

(2.) At the hearing of this appeal, Mr. B. B. Deb, learned counsel for the appellant submitted that the appellant does not dispute the fact that the deceased was his wife. But the evidence on record would show that it was a simple case of suicide committed by the deceased on 11-10-95. He argued the prosecution case that the deceased committed suicide because of demand of dowry and torture by the appellant should be disbelieved because no such complaint was made by PW. 4, the brother of the deceased, who was present at the house of the appellant on 11-10-95 when the body of the deceased was brought down from the ceiling fan by the Police. Mr. Deb pointed out that PW-1, the mother of the deceased, lodged the FIR nine days thereafter on 20-10-1995 making allegations of demand of dowry and torture by the appellant and submitted that such delay in lodging the FIR shows that the allegations of dowry and torture are totally false. He further argued that PW. 1 has admitted in her cross examination that she has never visited the house of the deceased nor did the deceased come to her house before her death and therefore she had no direct knowledge of any cruelty committed by the appellant on deceased or on any demand of dowry by the appellant from the deceased. Similarly PW-2, the father of the deceased, had no direct knowledge of demand of dowry and torture by the appellant and his knowledge was derived from his two sons Keshab and Pradip, PW-3 and PW-4. Thus, the only evidence against the appellant are the evidence of PW-3 and PW. 4. Mr. Deb vehemently contended that PW. 3 Keshab Das has stated that after about 10/12 days of the marriage of the appellant with the deceased he had gone to the house of the appellant to see the deceased and the deceased told him that the appellant used to torture her for demanding money and gold ornaments, but no statement had been made by the PW-3 under S. 161 of the Cr. P.C. that he had gone to the house of the deceased after a few days after marriage. Mr. Deb contended that PW-3 Pradip Das has stated that after 15/20 days of marriage he went to the house of his elder sister (PW. 6) and from there he along with the husband of his elder sister (PW-5) went to the house of the deceased in the afternoon and that the deceased told him that the appellant wanted Rs. 15,000/- and that he had assaulted her, but PW. 5 has denied that the deceased told any such thing to PW-4 and instead has stated that the relationship between the deceased and the appellant was quite good. Mr. Deb also pointed out that PW-6 has also deposed that the relationship between the deceased and the appellant was good and that she did not hear about any quarrel between them and further PW-4 after returning from the house of the deceased had not informed about any dispute between them. Mr. Deb argued that the PW. 5 and PW. 6 were not only the close relatives of the deceased but also her neighbours and their testimony to the effect that there was good relationship between the appellant and the deceased casts serious doubt on the prosecution case that the appellant made demands of dowry from the deceased and tortured her. Mr. Deb also relied on the evidence of the three other neighbours of the deceased examined at PW. 7, PW. 8 and PW. 12 to the effect that the relationship between the appellant and the deceased was good. He cited the judgment of the Supreme Court in the case of State of Maharashtra v. Ashok Chotelal Shukla (1997) 11 SCC 26 : (1997 Cri LJ 3761) for the proposition that where the prosecution fails to establish beyond reasonable doubt that the accused had committed the acts of harassment of cruelty as contemplated by S. 498A and S. 304B of the IPC, the accused was entitled to acquittal. Mr. Deb contended relying on the decision of the Kerala High Court in Sivamani alias Sivan v. State of Kerala, 1993 Cri LJ 23 and the decision of the Karnataka High Court in Kumar Naik v. State of Karnataka, 1976 Cri LJ 925 that where the Court finds that there is some evidence connecting the accused with the commission of offence and does not acquit the accused under S. 232, Cr. P.C. the court will have to pass an order under sub-sec. (1) of S. 233, Cr. P.C. calling upon the accused to enter on his defence and adduce any evidence he may have in support thereof, but no order was passed by the trial Court in terms of the sub-sec. (1) of S. 233, Cr. P.C. calling upon the accused to enter on his defence and adduce evidence in support of his defence. As a result, the appellant did not think it necessary to adduce any evidence. Mr. Deb submitted that in the event in this appeal it is held that the appellant was not entitled to acquittal, the case should be remanded back and the trial Court should pass an order calling upon the appellant to enter on his defence and adduce evidence in support of such defence.

(3.) In reply, Mr. A. Ghosh, learned Public Prosecutor, contended that the records of the trial Court would show whether any order was passed in terms of the sub-sec. (1) of S. 232, Cr. P.C. by the trial Court calling upon the appellant to enter on his defence and adduce evidence in support of such defence. Mr. Ghosh submitted that PW. 3 and PW. 4 had clearly stated in their evidence that the deceased had told them about the demand of dowry and the torture by the appellant and that the cross-examination of the aforesaid two witnesses has not shaken such evidence establishing the guilt of the appellant. He further pointed out that the said evidence of PW. 3 and PW-4 about the demand of dowry and torture by the appellant had been corroborated by the PW. 1. He referred to S. 113B of the Evidence Act, whereunder the Court has to draw a presumption that a person has caused dowry death once it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with any demand for dowry. He cited the decision of the Supreme Court in the case of State of West Bengal v. Orilal Jaiswal, AIR 1994 SC 1418 : (1994 Cri LJ 2104) for the proposition that the testimony of close relatives of the deceased relating to physical and mental torture inflicted by an accused under S. 498A should not be discarded simply on the score of absence of corroboration by independent witnesses such as tenants or neighbours living in adjoining portion of the house because ordinarily it is not expected that physical torture or the abuses on the wife would be made by the husband in such a way as to be noticed by such tenants or neighbours. Mr. Ghosh argued that the evidence of PW. 3 and PW. 4 as corroborated by PW. 1 was sufficient for conviction of the appellant under Ss. 498A and 304B, IPC. He relied on the decision of the Supreme Court in the case of Smt. Shanti v. State of Haryana, AIR 1991 SC 1226 : (1991 Cri LJ 1713), for his submission that once cruelty to the deceased by the accused is established, the question whether the death of the deceased was homicidal or suicidal was irrelevant and the accused was liable to be convicted under S. 304B, IPC. He also relied on the decisions of the Andhra Pradesh High Court in Vadde Rama Rao v. State of Andhra Pradesh, 1990 Cri LJ 1666 and of the Bombay High Court in Sarojakshan Shankaran Nayar v. State of Maharashtra, 1995 Cri LJ 340, in which the objects of S. 304B and S. 498A, IPC and S. 113B of the Evidence Act have been discussed.