Sri Sujit Kanda vs The State Of Tripura
2021 Latest Caselaw 268 Tri

                          HIGH COURT OF TRIPURA
                                AGARTALA

                          Crl. Rev. P. No. 66 of 2019

Sri Sujit Kanda,
son of Subodh Kanda
Resident of Hospital Chowmuhani,
P.O & P.S.-Kamalpur,
District-Dhalai, Tripura
                                                          ----Petitioner(s)
                                    Versus

The State of Tripura

                                                        ---- Respondent(s)

For Appellant(s)                     :     Mr. S. Lodh, Adv.
                                           Mr. K Saha, Adv.

For Respondent(s)                    :     Mr. R. Datta, P.P.

Date of hearing
& delivery of
judgment and order                   :     03.03.2021

Whether fit for reporting            :     NO


             HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                          Judgment & Order (Oral)

[1]                This criminal revision petition has been filed challenging

the judgment dated 25.04.2019 delivered in Criminal Appeal No. 15 of

2018 by the Sessions Judge, Khowai, Tripura whereby the judgment

and order of conviction and sentence dated 25.07.2018 passed by the

learned Sub-Divisional Judicial Magistrate, Khowai, West Tripura in PRC

(WP) 148 of 2016 was upheld. By the said judgment, learned trial court

sentenced the petitioner to SI for 1 (one) month and fine of Rs.7,000/-

Crl. Rev. P. 66 of 2019

with default stipulation for having committed offence punishable under

section 498A of the Indian Penal Code (IPC in short).

[2] Brief facts of the case are as follows:

Sri Subal Ghasi, Son of Lt. Angad Ghasi of Khowai tea

estate, Khowai lodged a written ejahar with the officer in charge of

Khowai police station alleging, inter alia, that she got his daughter

married to accused Sujit Kanda of Kamalpur on 14.05.2015 in

accordance with the rites and customs of Hindu marriage and during

the marriage of his daughter he gave valuables including Color TV,

steel almirah, jewellery and cash of Rs.20,000/-. After marriage, his

daughter accompanied her husband to his place. Three months

thereafter his accused son in-law started subjecting his daughter to

cruel treatment for a sum of Rs.20,000/- in cash. During Durga Puja in

2015, her daughter was ousted from her matrimonial home since he

failed to fulfill the demand of dowry of his accused son in-law. After few

months he along with his neighbours went to the matrimonial home of

his daughter and left her there in presence of Smt. Rikta Paul who was

a member of Nagar Panchayat of that area. The in-laws of her daughter

assured that she would not be subjected to any kind of torture in her

matrimonial home. After seven days, said Smt. Rikta Paul called the

informant father of the victim and asked him to take his daughter back

otherwise she might be killed in her matrimonial home. He then visited

the matrimonial home of his daughter and persuaded her in-laws to

Crl. Rev. P. 66 of 2019

keep his daughter with them. After he left, his daughter was again

subjected to torture by her in-laws and she was ousted from her

matrimonial home on 25.05.2016. On 29.05.2016 his son in-law

appeared in his house and asked his daughter to agree for divorce on

mutual consent otherwise she would be killed. His daughter raised hue

and cry in fear because she was alone at home at that time. After the

incidence, he lodged ejahar at the police station and based on his

ejahar, Khowai PS case No. 2016/KHW/083 under section 498A, 325

read with section 34 IPC was registered against the accused husband,

his father, his mother, brother & sister.

[3] The whole investigation of the case was conducted by

Sri Ajit Debbarma [PW-12], Sub Inspector of Police and after

investigation he filed charge sheet against all the 5 (five) FIR named

accused under section 498A read with section 34 IPC.

[4] The learned Sub Divisional Judicial Magistrate took

cognizance of offence punishable under section 498A read with section

34 IPC. The trial commenced with the framing of charge of offence

punishable under section 498A read with section 34 IPC. The charge

framed by the learned trial court reads as follows:

"I, Shri R.S. Bhattacharya, Sub-Divisional Judicial Magistrate, Khowai, hereby charge namely, (1) Sujit Khanda, (2) Sri Subodh Khanda, (3) Shri Samir Khanda, (4) Smt. Mani Khanda and (5) Smt. Deba Khanda, as follows:-

Crl. Rev. P. 66 of 2019

Firstly, That, you Shri Sujit Khanda being the legally married husband of the victim Smt. Mamata Gachi along with your other accused persons namely Subodh Khanda, Smt. Deba Khanda, Sri Samir Khanda, Smt. Mani Khanda being the in-laws of the victim on various dates and times pressurized the victim Smt. Mamata Gachi on demand of `20,000/- to be brought from her parents house for purchase of motor bike, but as she failed to fulfill the demand all of you tortured the victim Smt. Mamata Gachi physically and mentally at your house situated at Kamalpur Hospital Chowmohni and lastly on 25.05.2016, at about 2300 hours all of you physically tortured the victim for which she was compelled to take shelter at her parents house.

That, on 25.05.2016, at about 1900 hours at night you Shri Sujit Khanda went to the house of the complainant Sri Subal Ghasi and there you scolded and assaulted your wife Smt. Mamata Gachi, being daughter of the complainant and for such kind of acts all of you thereby committed an offence punishable under section 498A, read with section 34, IPC and within the cognizance of this court.

AND, I hereby direct that all of you be tried on the said charge by this Court."

All the accused pleaded not guilty to the charge and

claimed a trial.

[5] During trial, prosecution examined as many as 12

(twelve) witnesses including the first informant father of the victim, her

Crl. Rev. P. 66 of 2019

mother and relatives and the IO. Apart from adducing the ocular

testimony of the witnesses, prosecution also relied on two documents

which are Exbt.1 to Exbt.2.

[6] After the recording of prosecution evidence was over,

the accused persons were examined under section 313 Cr.P.C. All of

them pleaded innocence and claimed that the charge was foisted on

them. They declined to adduce any evidence on their defence.

[7] Smt. Pramila Ghasi [PW-1] is the mother of the victim.

She simply stated at the trial that though valuables including jewellery,

TV, refrigerator and cash sum of Rs.20,000/- was given by them during

the marriage of her daughter, her accused son in-law demanded more

money after marriage. As they could not fulfill his demand his daughter

was tortured at her matrimonial home. They tried for reconciliation

several times which yielded no result at all.

[8] Sri Subal Ghasi [PW-2], victim's father, made almost

the same statement at the trial. He also stated that refrigerator,

furniture, Color TV, jewellery and cash of Rs.20,000/- were given

during the marriage of his daughter but her son in-law was not happy.

He demanded more money after marriage which he could not fulfill. As

a result of which he subjected his wife to torture and ultimately ousted

her from his home.

[9] Smt. Mamata Ghasi [PW-3], the victim herself stated at

the trial that after she accompanied her husband to his place after

Crl. Rev. P. 66 of 2019

marriage matrimonial discord developed between them. The matter

was reported to local Panchayat. In fear of torture she left her

matrimonial home.

[10] Sri Pradip Bhattacharjee [PW-4] is the priest who

conducted the marriage between the victim and the accused. Besides

saying that he was the priest in the marriage, the PW said nothing in

support of the prosecution case.

[11] Smt. Chanchala Ghasi [PW-5] is the sister in-law of the

victim. She simply stated that the victim was subjected to harassment

at her matrimonial home for dowry.

[12] Sri Arabinda Debnath [PW-6] wrote the ejahar following

the dictation of the informant father of the victim. He had no personal

knowledge about the occurrence and he gave no incriminating evidence

against any of the accused persons.

[13] Smt. Rikta Paul [PW-7] is the neighbour of the accused

as well as the victim. She only stated that a meeting was held in her

house in presence of the accused and his wife and other neighbours. In

the meeting the victim stated that she wanted to live away from her

matrimonial home which was also consented by her accused husband.

[14] The evidence of Sri Raja Majumdar [PW-8], a neighbour

of the victim as well as the accused is also very significant. He gave the

following statement:

"I know Sujit Khanda I saw Mamata Ghasi in the salishi meeting. Their having some family

Crl. Rev. P. 66 of 2019

problems between them. I was the Councilor of the Nagar Panchayat at the relevant time and I became aware of the incident from Rikta Paul. Mamata Ghasi was not willing to stay with her in- laws as the rooms were not spacious. Thereafter, it was decided that Mamata Ghasi would stay in the rented house with her husband and the decision was taken at the instance of her father in law. Sujhit Khanda is present today and identified in the dock."

[15] Smt. Mina Kumari Gope [PW-9], a neighbour, gave no

evidence in support of the prosecution case. She simply stated that she

heard about some matrimonial discord between the accused and his

wife and efforts were made for settlement of their dispute.

[16] Sri Sitesh Paul [PW-10] also said nothing in support of

the prosecution case. He only stated that the accused married the

victim according to Hindu rites and customs and after few months of

marriage the victim started living with her parents.

[17] Sri Ranjit Debbarma [PW-11] is the Sub Inspector of

police who received the FIR at the police station and registered the

case. He said nothing more about the prosecution case.

[18] Sri Ajit Debbarma [PW-12] is the investigating officer

who deposed at the trial that he carried out the whole investigation and

after investigation he submitted charge sheet against the accused

persons.

Crl. Rev. P. 66 of 2019

[19] On appreciation of evidence, the learned trial court held

the accused husband guilty of offence punishable under section 498A

IPC and after conviction sentenced him to SI for 1 (one) month and fine

of Rs.7,000/- with default stipulation. Other 4 (four) accused were

found not guilty and set at liberty. The accused petitioner challenged

the judgment and order of conviction and sentence in appeal before the

Sessions Judge, Khowai. The appellate court found no wrong in the said

judgment of the learned trial court and accordingly upheld the

conviction and sentence of the accused husband of the victim. Hence

this criminal revision petition.

[20] Appearing for the petitioner, Mr. K. Saha, learned

counsel submits that except the omnibus statement of the witnesses

there is no incriminating materials against the accused husband with

regard to cruelty within the meaning of section 498A IPC. It is

submitted by Mr. Saha, learned counsel that in absence of evidence of

cruelty, conviction under section 498A is not sustainable. In support of

his contention he has referred to a decision of this High Court in Trithit

Debbarma Vs. State of Tripura reported in (2016) 2 TLR 347 wherein

this High Court has held that only omnibus statement of the witnesses

without the evidence of cruelty is not enough for conviction of an

accused under section 498A IPC. Mr. Saha, learned counsel, therefore,

urges the court for setting aside the judgment and order of conviction

and sentence.

Crl. Rev. P. 66 of 2019

[21] Mr. R. Datta, learned P.P submits that the concurrent

findings of the courts below are based on proper appreciation of

evidence and there is no reason to interfere with those findings. It is

further submitted by Mr. Datta, learned P.P that charge against the

accused is matrimonial cruelty and all the witnesses in their cogent and

coherent statement have supported the fact that the wife of the

accused was treated with cruelty at her matrimonial home by her

husband after marriage. Mr. Datta, learned P.P, therefore, submits

that all the ingredients of section 498A IPC are fulfilled in the case and

the impugned judgment does not call for any interference in revision.

[22] Section 498A IPC prescribes punishment for cruelty on a

married woman by her husband and in-laws. Explanation to Section

498A defines the meaning of "cruelty" which is as under:

"Explanation.--For the purpose of this section, "cruelty" means--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

Crl. Rev. P. 66 of 2019

[23] Therefore, to prove cruelty against the husband or his

relatives in terms of Section 498A, the prosecution has to prove that

the alleged conduct of the husband or his relatives was willful and it

was of such nature that such conduct was likely to drive the woman to

commit suicide or to cause grave injury or danger to her life, limb or

health which would be either physical or mental or both and under

clause (b) when such conduct is related to dowry, the harassment of

the wife or any person related to her to meet unlawful demand of

dowry, the conduct would be treated as cruelty. The Apex Court

examined the issue in Girdhar Shankar Tawade Vs. State of

Maharashtra reported in (2002) 5 SCC 177 and held as under:

"3. The basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislatures : whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or

(ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in

Crl. Rev. P. 66 of 2019

terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498-A."

[24] In the given case except the mere stray

statements of the relatives of the victim that she was subjected to

torture and tormentation in her matrimonial home, there is no evidence

with regard to commission of cruelty on her by her husband. The

prosecution has not referred to a single incidence of cruelty meted out

to the victim by her husband. Evidence on record demonstrates that

wife of the accused did not agree to share the same residence with the

relatives of her husband which resulted in their matrimonial discord.

Apparently, there is no evidence of cruelty of any kind except the

omnibus statement of the victim and her relatives.

[25] As discussed, this Court in the case of Trithit Debbarma

(Supra) held that omnibus statement of the witnesses without evidence

of cruelty is not enough for conviction under section 498A IPC. Though

this court is not oblivious of the fact that matrimonial cruelty is a

serious offence and it is quite difficult for the victim to come out with

robust evidence in a case of such nature which takes place within the

four walls of her matrimonial home, the requirement of proof beyond

reasonable doubt does not stand altered even in the case of 498A IPC.

In this regard the Apex Court in State of West Bengal Vs. Orilal Jaiswal

& Anr. reported in (1994) 1 SCC 73 has observed as under:

Crl. Rev. P. 66 of 2019

"15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in the civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A I.P.C. and Section 113-A of Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater (1950) 2 All ER 458, 459 has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject- matter."

[26] In view of what is discussed above, the charge under

section 498A IPC does not survive against the petitioner. Therefore, his

Crl. Rev. P. 66 of 2019

conviction and sentence for the said offence is interfered with.

Resultantly, the impugned judgment is set aside and the revision

petition stands allowed.

[27] The accused be set at liberty. His bail bond stands

discharged and the case is disposed of.

Send back the LC record.

JUDGE

Rudradeep

Crl. Rev. P. 66 of 2019