Thursday, 4 May 2017

Whether accused can be acquitted on ground that prosecution witnesses gave contradictory evidence?

 A mere statement that the accused-appellant Jhuma was involved in illicit act of prostitution and that she insisted Ashalata to involve in the illicit activity and Ashalata denied to do so and therefore, she was tortured, in the particular facts and circumstances of this case where the other allegation of the prosecution is that the accused Sanjib used to suspect the character of his wife Ashalata and therefore, killed her in the night taking her out of the dwelling hut on some pretext are quite contradictory with each other and, therefore, I think the accused-appellant should get the benefit of doubt. 
IN THE HIGH COURT OF TRIPURA
Crl. Appeal No. 24 of 2013
Decided On: 08.12.2016
 Jhuma Das
Vs.
 State of Tripura

Coram:
S.C. Das, J.

Citation: 2017 CRLJ 1204

1. This criminal appeal under Section 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence dated 16.11.2013 passed by learned Addl. Sessions Judge (Court No. 5), West Tripura, Agartala in respect of the accused-convict-appellant Smt. Jhuma Das, in connection with Sessions Trial No. 02/2012 under Section 498A of IPC, sentencing her to suffer RI for two years and to pay a fine of Rs. 2,000, in default of payment to suffer further RI for one month. Heard learned Counsel, Mr. Somik Deb for the appellant and learned Addl. PP, Mr. R.C. Debnath for the State-respondent.
2. The prosecution case in short is that Ashalata Das (Dey) @ Soma, daughter of PW4, the informant Binod Dey and PW5, Smt. Tripti Paul (Dey) got married with accused Sanjib Das and after marriage they had been living in the matrimonial home along with other accused persons as named in the FIR, i.e. Premananda Das (father-in-law), Smt. Chanu Das (Mother-in-law) and the accused-appellant Smt. Jhuma Das. The deceased Ashalata @ Soma lived with accused Sanjib Das as husband and wife for about five years. On 17.10.2011 her dead body was found with bleeding head injuries in the nearby field of the house of accused persons and the matter was reported to P.S. After making GD Entry No. 785 at Amtali P.S., police officer went to the spot and conducted inquest over the dead body and, thereafter, forwarded the dead body to the hospital for post-mortem examination.
3. At about 12.05 hrs. PW4, Binod Dey, father of Ashalata, lodged a written FIR alleging murder of Ashalata by the accused persons named in the FIR and accordingly, Amtali PS Case No. 131/2011 under Section 302 read with Section 34 of the IPC was registered. It was also alleged in the FIR that the accused Jhuma Das was involved in illicit activities and the other accused persons were supporting her. That Jhuma Das tried to introduce/engage Ashalata also to such illicit activities of her to which Ashalata did not agree and therefore, she was tortured by the accused persons. After investigation police submitted charge-sheet against the accused Sanjib Das for commission of offence punishable under Sections 498A/302 and 201 of IPC and under Section 498A against the accused Smt. Chanu Das, Smt. Jhuma Das and Sri Premananda Das.
4. In course of trial, separate charges were framed against the accused persons. Against the accused Sanjib Das charges were framed under Sections 302 and 201 of IPC and against all the accused persons including the accused-appellant Jhuma Das charge was framed under Section 498A of IPC.
5. In course of trial, prosecution examined 24 witnesses and proved 22 documents and 5 material objects. After recording of evidence of prosecution was over, all the accused persons were examined under Section 313, Cr.P.C. and in their turn they did not adduce any defence evidence.
6. By the impugned judgment dated 16.11.2013 learned Addl. Sessions Judge found the accused Sanjib Das guilty of the charges under Sections 302 and 201, IPC and sentenced him accordingly.
7. The accused-appellant Jhuma Das was found guilty of offence punishable under Section 498A of IPC and sentenced her as stated hereinbefore. The two other accused persons namely, Premananda Das and Smt. Chanu Das were acquitted.
8. Felt aggrieved, the convict-appellant Jhuma Das preferred the present appeal.
9. It is argued by learned Counsel, Mr. Deb that only allegation made against accused Jhuma Das is that she was engaged in prostitution and that she also tried to engage Ashalata in such illicit activities and Ashalata since did not agree, as alleged, she was subjected to cruelty by the accused persons. Mr. Deb, learned Counsel submitted that there is nothing in the evidence as to how the alleged cruelty was exercised. He has raised a point of law that even if it is accepted that Jhuma Das asked Ashalata to involve in the illicit act of prostitution whether such act amounts to mental or physical cruelty as defined in the Explanation (a) to Section 498A of IPC. He has argued that the evidence of prosecution witnesses, i.e. PWs 2, 3, 4, 5 and 6 who narrated about the fact of alleged cruelty were first time statement before the Court and, therefore, the Trial Court should not have put any reliance on the evidence of those witnesses. Referring to para 12 of the judgment, it is argued by Mr. Deb that the Trial Court only considered the evidence of PWs 3, 4 and 17 and arrived at a conclusion that the accused-appellant Jhuma Das was guilty of the charge under Section 498A. According to Mr. Deb, PW17 said nothing incriminating and what PWs 3 and 4 stated in respect of alleged insistence by the accused Jhuma to involve Ashalata in prostitution and exercise of cruelty on her were first time statements before the Court and the material part of the statement contradicted with their earlier statements. PW2 was declared hostile by the prosecution and PWs 5 and 6 also made similar first time statement and the Trial Court utterly failed to consider that aspect and mechanically arrived at a conclusion of guilt of the accused.
10. Learned Addl. PP, Mr. R.C. Debnath conceded the submission of learned Counsel, Mr. Deb. According to Mr. Debnath, the allegation of the alleged cruelty exercised by Jhuma Das as were stated by the prosecution witnesses who were related to the deceased were first time statements before the Court and were not made at the time when the IO examined them under Section 161, Cr.P.C. Mr. Debnath, therefore, submitted that the evidence in respect of exercise of cruelty are fractured evidence and therefore, he has nothing to submit to sustain the conviction and sentence.
11. Explanation (a) to Section 498A of IPC reads as follows:
"498A.
................................................
Explanation--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such 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;
................................................."
12. Admittedly, there is no allegation of harassment of Ashalata on demand of dowry. Only allegation what is made is that the accused-appellant Jhuma Das, a widowed woman with her daughter, used to reside in a separate hut near the premises of the other accused persons. Jhuma is the daughter of Premananda and Tripti and the elder sister of Sanjib. It is the case of the prosecution that Jhuma was working as a maid servant in the house of ONGC officers at ONGC premises and she was involved in illicit activity of prostitution. She tried to involve Ashalata also in the illicit activity of prostitution which Ashalata refused and therefore, Jhuma subjected Ashalata to mental and physical cruelty.
13. At the very outset, Mr. Deb, learned Counsel for the appellant, contended that even if it is accepted that the accused Jhuma Das insisted Ashalata to involve in the illicit activity of prostitution that itself cannot be termed as cruelty in terms of the Explanation (a) to Section 498A of IPC.
14. In common parlance and in ordinary meaning cruelty means a state of conduct which is painful or distressing to another. It is clear from the language used by the legislature that any conduct by the husband or relative of the husband which can be attributed to be painful or distressing will mean as cruelty. It has to be decided on case to case basis, on fact to fact basis.
15. In the case of Giridhar Shankar Tawade v. State of Maharashtra, MANU/SC/0361/2002 : III (2002) SLT 447 : II (2002) CCR 177 (SC) : AIR 2002 SC 2078, the Apex Court observed:
(b) "Cruelty" for the purpose of Section 498A, I.P.C. is to be established in the context of Section 498A, IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of Section 498A, IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty."
16. There cannot be a straight-jacket formula as to what act shall constitute cruelty. Any act or omission which causes harm or injury to the mind or health of the woman shall be termed as cruelty. If the allegation that Jhuma Das, the accused appellant, insisted the deceased Ashalata to involve in illicit act of prostitution and if Ashalata was not inclined to involve herself in such activity, and any act or omission on the part of Jhuma while Ashalata did not agree to the proposal, will definitely cause grave injury to the mental health of the deceased and in my considered opinion any such injury to the mental health of the deceased will definitely come within the purview of cruelty as defined in Explanation (a) to Section 498A of IPC. This argument advanced by learned Counsel, Mr. Deb, therefore, in my considered opinion is not acceptable that the allegation, even if proved, cannot be accepted as exercise of cruelty.
17. Let us now see the evidence on record in respect of the allegation of alleged cruelty. The incident of murder was committed on the intervening night of 16.10.2011 and 17.10.2011 and the dead body was found lying in the field on 17.10.2011 near the house of the accused persons with head injury. It is proved with overwhelming evidence that Ashalata died a homicidal death because of the head injury. The Trial Court held the accused Sanjib Das guilty of murder as well as guilty of disappearance of evidence. The FIR was lodged by the father of the deceased Ashalata, namely, PW4, Binod Dey. In the FIR the informant alleged that Jhuma Das also used to reside in the same house of the other accused persons and she was involved in illicit activities and in spite of knowing the fact, her father and mother used to encourage Jhuma Das. Sometimes, said Jhuma Das tried to introduce Ashalata also in such illicit act of Jhuma. Ashalata did not agree to involve herself in such activity and therefore, they used to torture Ashalata. What was the act or omission of torture that has not been stated in the FIR. In their evidence also those witnesses did not disclose any particular act or omission by which Ashalata was tortured.
18. The ordinary dictionary meaning of "torture" is action or practice of inflicting pain or punishment or a forcible means of persuasion. The witnesses did not utter a single word as to what act or omission was committed by the accused persons to prove the allegation of torture. If any proposal was made to involve in prostitution, in my considered opinion by itself shall amount to cruelty but that has to be proved by positive evidence that such proposal or consistent pressure/persuasion was made by the accused.
19. PW4, the informant and father of the victim Ashalata, stated that when Ashalata used to visit his house, she told him that she was tortured in the matrimonial home and the allegation was mainly against mother-in-law and sister-in-law regarding petty domestic matters. Jhuma Das used to work as a maid servant in the ONGC complex and was engaged in anti-social activities. Jhuma used to ask his daughter (Ashalata) to join with her in this regard but when his daughter refused, Jhuma started torturing her. Though in the FIR such a statement was made, he did not make such statement before the IO when IO examined him. This witness did not narrate as to when Ashalata told this fact to him and what was the manner of torture.
PW5, i.e. the mother of Ashalata, in her statement stated that Jhuma used to work as maid servant and was involved in prostitution. Her daughter (Ashalata) told her that all the accused persons asked Ashalata also to involve in prostitution and since Ashalata denied she was subjected to torture. The cross-examination of this witness shows that this particular statement was not made before the IO.
PW6, the brother of the deceased stated that he heard from his sister Ashalata that Jhuma was involved in illegal works and Jhuma used to dictate his sister Ashalata to join with her. That statement was also first time statement and was not stated before the IO.
20. Except the father, mother and brother, i.e. PWs 4, 5 and 6 prosecution also relied on PW3, the maternal aunt of the deceased and she also stated the same fact that Ashalata told her about her unhappiness and the conduct of Jhuma, that statement was also first time statement before the Court.
PW2, is a hostile witness. She did not say anything incriminating in her examination-in-chief but in her cross-examination by the P.P. she stated that she made statement to the IO that Ashalata was also attempted to be brought in the illicit parties arranged in the house of Jhuma.
PW17 did not utter anything incriminating.
21. The prosecution case in respect of accused Sanjib was that he used to suspect the character of Ashalata and on the night of occurrence the accused Sanjib took away Ashalata on some pretext and killed her in the field by striking blow on her head with an iron rod. While the prosecution relied on that fact that the accused Sanjib used to suspect his wife's character and therefore killed her, the allegation that Jhuma insisted Ashalata to involve in prostitution is found to be quite contradictory to place implicit reliance. The particular charge of cruelty against Jhuma has to be proved with independent and cogent evidence.
22. A mere statement that the accused-appellant Jhuma was involved in illicit act of prostitution and that she insisted Ashalata to involve in the illicit activity and Ashalata denied to do so and therefore, she was tortured, in the particular facts and circumstances of this case where the other allegation of the prosecution is that the accused Sanjib used to suspect the character of his wife Ashalata and therefore, killed her in the night taking her out of the dwelling hut on some pretext are quite contradictory with each other and, therefore, I think the accused-appellant should get the benefit of doubt. Accordingly, the appeal is allowed. The judgment and order of conviction dated 16.11.2013 in respect of accused-appellant Jhuma Das under Section 498A of IPC in Sessions Trial No. 02/2012, passed by learned Addl. Sessions Judge, Agartala, (Court No. 5) is set aside.
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