Sri Laxminder Dhar vs The State Of Tripura
2021 Latest Caselaw 645 Tri

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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

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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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[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

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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

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[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

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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

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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.

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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

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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

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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

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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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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

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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

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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

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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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[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