Samir Kar vs The State Of Tripura
2022 Latest Caselaw 167 Tri

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                    HIGH COURT OF TRIPURA
                          AGARTALA

                      CRL. A. NO.27 OF 2019

1. Samir Kar, S/O Lt. Santosh Kar
2. Smt. Maya Rani Kar, W/O Lt. Santosh Kar
3. Smt. Rinku Kar, W/O Sri Kajal Kar
4. Sri Kajal Kar, S/O Lt. Santosh Kar
5. Sima Begam, W/O Md. Firoj Miah
6. Maya alias Monawara Begam, W/O Md. Jalal Miah
7. Swapna Bibi, W/O Lt. Nur Miah
8. Rabeya Begam, W/O Md. Kiran Miah
9. Smt. Arati Debnath, W/O Sri Haripada Debnath
10. Suman Miah alias Rasul, S/O Md. Mafij Miah
11. Samayan Kabir, S/O Hiran Miah
12. Firoj Miah, S/O Lt. Abdul Munaf
13. Md. Kiran Miah, S/O Lt. Abdul Mannan.
All are residents of Rangapania, P.S. Bishalgarh, District-
Sepahijala(Tripura).
                                                  ........... Appellant(s)
                                Versus
The State of Tripura
                                                ........... Respondent(s)

BEFORE HON'BLE MR. JUSTICE ARINDAM LODH

For appellant(s) : Mr. Rajib Saha, Advocate

For Respondent(s) : Mr. Samrat Ghosh, Addl. P.P.

Date of hearing and delivery
of judgment & order              :      14.02.2022
Whether fit for reporting        :      No





               JUDGMENT & ORDER(ORAL)

This appeal is directed against the judgment and

order of conviction and sentence dated 12.07.2019, passed by

the learned Addl. Sessions Judge, Sepahijala District, Bishalgarh

in case No.S.T.(T/II) 10 of 2015, whereby and whereunder

9(nine) accused-appellants, namely Sima Gegam, Maya Rani

Begam, Firoj Miah, Kiran Miah, Rabiya Begam, Swapna Bibi,

Samayan Kabir, Suman Miah and Arati Debnath have been

convicted under Sections 143, 342, 352, 325, 354 & 354B read

with Section 149 of IPC and other 4(four) accused-appellants,

namely Samir Kar, Rinku Kar, Kajal Kar and Maya Rani Kar,

have been convicted under Section 498-A of IPC and sentenced

9(nine) accused persons to suffer RI for 6(six) months and to

pay fine of Rs.1,000/- each, in default of payment of fine, they

shall have to undergo imprisonment for a further period of

3(three) months under Section 143 of IPC, and further 9(nine)

accused-persons to suffer RI for 1(one) year under Section 342

read with Section 149 of IPC and to pay fine of Rs.1,000/- each,

in default of payment of fine they shall have to undergo

imprisonment for a further period of 3(three) months and the

9(nine) accused persons also to suffer RI for 3(three) months

under Section 352 read with Section 149 of IPC and to pay fine

of Rs.500/- each, in default of payment of fine, they shall have

to undergo imprisonment for a further period of 15(fifteen) days.

The 9(nine) accused persons also to suffer RI for 1(one) year

under Section 323 read with Section 149 of IPC and to pay fine

of Rs.1,000/- each, in default of payment of fine, they shall have

to undergo imprisonment for a further period of 1(one) month

and further 9(nine) accused persons also to suffer RI for

3(three) years under Section 354 read with Section 149 of IPC

and to pay fine of Rs.1,000/- each, in default of payment of fine,

they shall have to undergo imprisonment for a further period of

1(one) month and, lastly, the 9(nine) accused persons to suffer

RI for 3(three) years under Section 354B read with Section 149

of IPC and to pay fine of Rs.1,000/- each, in default of payment

of fine, they shall have to undergo imprisonment for a further

period of 1(one) month and all the aforesaid sentences were

directed to run concurrently. The other 4(four) accused persons,

namely Samir Kar, Rinku Kar, Kajal Kar and Maya Rani Kar to

suffer RI for 3(three) years and to pay fine of Rs.1,000/- each

under Section 498A of IPC and in default of payment of fine they

shall have to undergo imprisonment for a further period of

15(fifteen) days, but considering the age of the convict, Maya

Rani Kar was sentenced to suffer RI for 6(six) months and to

pay fine of Rs.1,000/- in default of payment of fine she shall

have to undergo imprisonment for a further period of 15(fifteen)

days.

2. The informant(PW8) had lodged a complaint on

19.12.2012 to the Officer In-charge of Bishalgarh Police Station

stating inter alia that on 16th Agrahayan of 1409 B.S. her

marriage was solemnized and after three years of her marriage,

a girl child was born out of their wedlock. After some days of the

birth of the child, her husband and her in-laws started pressure

on her for obtaining cash from her father. Being helpless, she

started staying separately with her husband, but, her in-laws

instigated her husband to force her to leave the house and the

husband of the informant on trifling issues continued to torture

on her. On 16.12.2012 A.D. last, in the evening, while she was

coming back from the ration shop, she was stopped on the way

by two youths therein, adjacent to their house, in a pre-planned

way and started using slang words toward her. When she raised

objection, they fled away, but, on that late night, Sima Begam,

Maya Begam, Rinku Kar and her husband Samir Kar assaulted

her treating her as if she is a lady of bad character. They pulled

and torn her clothes from her body and Sima Begam took away

her mobile phone from her hand and gold chain from her neck

and also bangles from her hands. The entire incident was abated

by her husband and other in-laws.

3. On receipt of the said complaint, the Officer In-

charge of Bishalgarh Police Station had registered the FIR and

directed to investigate the case. Investigation was first carried

out by PW13. She recorded the 161 statement of the available

witnesses and being found prima facie case, she filed charge-

sheet against the accused persons, the appellants herein.

4. Having committed to the Court of learned Sessions

Judge, the case was transferred to the Court of learned Addl.

Sessions Judge, Sepahijala District, Bishalagrh.

5. At the commencement of trial, charges were framed

by the learned Addl. Sessions Judge under Sections 143/342/

352/325/354/354B of IPC read with Section 149 of IPC against

14(fourteen) accused persons other than accused Maya Rani

Kar. Again, charge was framed under Section 498A of IPC

against accused Samir Kar, Maya Rani Kar, Rinku Kar and Kajal

Kar. Learned Addl. Sessions Judge also framed charge under

Section 376(1) read with Section 511 of IPC against the accused

persons, namely Suman Miah, Samayan Kabir, Firoj Miah and

Md. Kiran Mia.

The accused persons pleaded not guilty and claimed

to be tried.

6. To substantiate the charges, as stated above, the

prosecution had adduced 13(thirteen) witnesses altogether. The

accused persons had adduced one witness, namely Sachindra

Pal alias Shibu, who deposed as DW1.

7. After completion of recording evidence on behalf of

the prosecution, the accused persons were examined under

Section 313 of CrPC wherein they were noticed in regard to all

the incriminating evidences surfaced against them from the

prosecution witnesses to which they denied those statements as

false and concocted. Thereafter, the learned trial Court had

examined DW1.

8. Having heard the learned counsels appearing for the

parties, the learned trial Court had convicted and sentenced the

accused persons as afore-stated.

9. Being aggrieved, the convict-accused persons have

preferred the instant appeal before this Court.

10. Mr. Saha, learned counsel appearing for the

appellants has submitted that the prosecution has failed to

establish the charges levelled against the accused persons.

According to Mr. Saha, learned counsel, there are lots of

improvements and the victim herself being deposed as PW8 has

made many exaggerated statements. Mr. Saha, learned counsel

has further submitted that the FIR was lodged entirely on the

basis of an incident occurred on 16.12.2022 and though the

incident had occurred on 16.12.2012 the FIR was lodged on

19.12.2012. During investigation, the victim had brought new

story that occurred on 17.12.2012 morning, where it was

alleged that the victim was dragged by some of the accused

persons. She was tied with a tree by a piece of rope and the

accused persons, namely Sima Begam and Maya Begam

removed her wearing apparels and accused persons, namely

Firoj Miah and Kiran Miah put their hands on her chest. In this

situation, according to learned counsel appearing for the

appellants, the conviction and sentence imposed by learned

Addl. Sessions Judge are not sustainable.

11. On the other hand, Mr. Ghosh, learned Addl. P.P.

has tried to persuade this Court that though there were some

improvements and exaggerations in the statements of the

victim, but, some parts of her oral statements are not

confronted and those statements are found to be inconsistent

with the statements she made in her examination under Section

161 of CrPC.

12. Having considered the submissions of the learned

counsels appearing for the parties, I have proceeded to

appreciate the evidence as deposed by the prosecution

witnesses and DW1. None of the prosecution witnesses, except

PW13 has supported the oral testimony of the victim PW8. PW9

being the father of the victim lady also did not support the case

of PW8 in whole. I find there are some discrepancies.

13. I have carefully examined the evidence let in by the

victim PW8. It is found that she had given much importance to

the incident that occurred on 17.12.2012, which spoke little

about the incident that occurred on 16.12.2012 on the basis of

which she filed the complaint. PW8 has stated that on her way

from the ration shop, she was restrained by two accused

persons, namely Akash Miah and Dulal Miah. Thereafter, rest of

the accused persons had dragged her to a place where they tied

her with a tree by a rope. I find the defence had drawn her

attention to her statements she made under Section 161 of CrPC

where those statements are found to be absurd.

14. It is true that her statement in regard to the fact

that she was tied with a tree by a rope has not been

controverted, but, I find, though police had rushed to the spot

immediately and found her crying at the place of occurrence,

they failed to trace out the piece of rope and it was not seized.

It casts a serious doubt in the mind of this Court whether she

was really tied up with a tree by a rope.

15. She has stated in her chief examination that she was

severely beaten, but, PW13, the investigating officer stated that

she did not see any sign of injury even superficially on any part

of her body and so there was no medical examination.

16. Another striking feature is that though the entire

cognizable offence was committed on 17.12.2012, then, why the

victim being the informant was silent about any such incident in

her FIR which she lodged after two days, i.e. on 19.12.2012. I

find there is explanation that since she was in trauma she could

not disclose the entire facts and circumstances which had

happened with her. But still, principal offences were committed

on 17.12.2012.

17. However, a victim of such a serious assault would

forget the incident that occurred on 17.12.2012 and only

mention about the incident which was mainly based on dispute

with the in-laws and her husband which she referred in her

complaint, it raises some serious suspicious circumstances in the

mind of the Court. Two days' time, according to me, is enough

to concoct the story and to implicate some persons who might

not be involved in the incident.

18. The complaint was scribed by an Advocate Clerk and

it was read over to her. But, there are so many doubtful

circumstances and I reiterate that it is hard to digest as to why

the victim of such a serious torture remained silent from

mentioning the offences as alleged by her that occurred on

17.12.2012.

19. I have noticed that from the very beginning the

victim had a tendency to improve and exaggerate the story.

Substantial part of her statements she made in her chief

examination is found to be the first time statement made before

the trial Court.

20. The learned trial Judge has heavily relied upon the

statements she made in her chief examination without

appreciating the improvements and exaggerations she made in

her chief examination.

20.1. In this regard, Mr. Saha, learned counsel has placed

reliance upon a decision rendered in Lallu Manjhi vs. State of

Jharkhand reported in (2003) 2 SCC 401[SCC pp.405, 406,

para 10], where the Hon'ble Supreme court had observed thus:

"10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (See: Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000] .)"

20.2. Bearing in mind the aforesaid principles, if I consider

the present case, then, in my opinion, the present case does not

fall within the first two categories. Now, the question is to what

extent the case falls under the third category. Here, I am to look

for corroboration in material particulars by reliable testimony,

direct or circumstantial, before acting upon the testimony of a

single witness. Here, none of the prosecution witnesses has

supported or corroborated the versions of the victim PW8. She

deposed that after the incident she narrated the story to one

Smt. Shanti Sinha who deposed as PW6. But, PW6 has stated in

her chief examination that she had no knowledge about any

such incident. In this situation, it becomes very difficult to rely

upon the sole testimony of the victim PW8.

21. Another interesting feature, which according to me,

appears to be very unnatural. If the victim was so severely

beaten as alleged by her, then, why she was not brought to the

hospital for her medical examination; even the victim did not go

to the hospital or any medical practitioner to treat her. Least to

say, PW13 has categorically stated that she did not trace out

any injury mark, even superficially upon the body of the victim.

22. I have gone through the evidence let in by PW10

who had rushed to the place of occurrence on receipt of the

telephonic information in the police station. He has stated in his

chief examination that after reaching to the spot he found the

victim crying therein and also he found her father in that place.

On being asked the victim told him that the neighbouring people

had beaten up her. Then, she was taken to police station. The

police personnel requested her to lodge a case, but, she told

them that she was not in such a mental condition to lodge the

case and she would file it later on.

22.1. During her cross-examination, her attention was

drawn to his previous statement recorded by I.O. whereby the

statement he made that the victim was crying, is not found

therein.

23. Having regard to the aforesaid facts and

circumstances, in my opinion, the statement of the victim cannot

be relied upon. The accused persons, i.e. the appellants herein

should not be convicted on the basis of the sole oral testimony

of the victim and in absence of any corroboration from other

witnesses. The prosecution has been able to create some

suspicious circumstances about the incident, but, question

naturally arises, why the victim did not disclose the names of

the offenders at the first instance when she was in the safe

custody of the police. For a minute I may believe that at the

scene of occurrence she was not in a position to narrate the

incident that occurred with her, but, what resisted her to narrate

the incident and to disclose the names of the offenders in the

police station. Even she denied to lodge the case involving

anyone and she lodged the case on 19.12.2012 when she did

not even refer to the incident that occurred with her on

17.12.2012. At best, this Court can say, there was something

occurred on 17.12.2012, but, complicity of the accused persons

to the offence, in the context of the case, appears to be

doubtful. It is settled proposition of law that suspicion however

grave should not take the place of proof.

24. Having viewed so and observed here-in-above, I find

no material to support the conviction and sentence as declared

and imposed by learned Addl. Sessions Judge. Accordingly, the

said conviction and sentence are interfered with. The accused

persons, the appellants herein are acquitted from the charges

levelled against them. It is informed that the appellants are on

bail. Accordingly, the appellants are discharged from the liability

of bail bonds and the sureties also shall stand discharged.

25. Consequently, the appeal stands allowed.

Send down the LCRs.

JUDGE