Tripura High Court
Sri Kartik Mandal vs The State Of Tripura on 13 May, 2019
              IN THE HIGH COURT OF TRIPURA
                      AGARTALA

                      CRL.A.(J) No.36 of 2017

Sri Kartik Mandal
Son of Sri Manoranjan Mandal,
South Taranagar, 30 Garh, P.S.
Sidhai, District- West Tripura
                                                     ......... Appellant

                            -Versus-

The State of Tripura
                                                    ......... Respondent
For the appellant            :   Mr. B. Deb, Adv.
For the respondent           :   Mr. A. Roy Barman, Addl. P.P.
Date of hearing              :   20.02.2019
Date of delivery of          :   13.05.2019
Judgment & Order
Whether fit for reporting    :   Yes No
                                 √


                       BEFORE
          THE HON'BLE MR. JUSTICE S. TALAPATRA

                       JUDGMENT & ORDER

This is an appeal by the convict, hereinafter referred to as the appellant, from the judgment dated 06.05.2017 delivered in ST(T-1) 187 of 2013 by the Addl. Sessions Judge, No.5, West Tripura, Agartala. By the said judgment, the appellant has been convicted under Sections 304B and 498-A of the IPC. Pursuant to the said conviction, the appellant has been sentenced to suffer rigorous imprisonment for 3[three] years and a fine of Rs.5,000/- with default stipulation, for commission of offence punishable under Section 498A of the IPC. Further, the appellant has been sentenced to suffer 8[eight] years rigorous imprisonment for commission of offence punishable under Section 304B of the IPC. [2] The prosecution against the appellant was initiated by the written ejahar, filed by one Jagati Sarkar [PW-3], whereby it was disclosed that her daughter, namely Babita Sarkar [Mandal] was married to the appellant. In the marriage, as per the demand of the appellant, cash of Rs.50,000/-, one motorbike of the specific brand, the furnitures and gold ornaments were given by PW-3. After 6[six] months from the marriage, the appellant asked her daughter to bring money from her parents’ house. Once Rs.5,000/- was given. Being annoyed, there were several meetings for conciliation. On 28.09.2012, her daughter returned to the matrimonial home and on 01.10.2012 the accused persons had allegedly killed her daughter by setting her body on fire at the matrimonial home. PW-3 went to the GBP hospital at Agartala and found the dead body of her daughter. It has been asserted that the appellant had an illicit relation with the wife of his elder brother.

[3] Based on the said written ejahar filed by PW-3, Sidhai P.S. case No.77/2012 was registered under Sections 498A/304B of the IPC and taken up for investigation. On completion of the investigation, the final police report and the police papers were committed to the court of Sessions Judge who transferred the case later on to the Addl. Sessions Judge, No.5, West Tripura, Agartala. As the cognizance was taken, the Addl. Sessions Judge framed the charge under Sections 498A/304B of the IPC against the appellant and 4 other accused persons. It is to be noted that the other accused persons have been acquitted from the charge on benefit of doubt. Therefore, no further reference would be made unless it is essentially required to the other accused persons. The appellant denied the charge by pleading not guilty and intended to face the trial.

[4] In order to substantiate the charge, the prosecution has adduced as many as 16 [sixteen] witnesses, whereas to rebut the evidence led by the prosecution, from the side of the defence 2[two] witnesses [DWs-1 & 2] were examined. That apart, the prosecution had introduced 8 [eight] documentary evidence [Exbts.1 to 8] including the postmortem report [Exbt.5]. From the side of the defence, excerpt of the statements of PW-3 as recorded under Section 161 of the Cr.P.C. and excerpt of the statement of PW-4 as recorded under Section 161 of the Cr.P.C. were brought on record respectively as Exbts. A,B & C. Even the resolution of the conciliation meeting has been introduced in the evidence as Exbt.D. After the prosecution evidence was recorded, the appellant was examined under Sections 281/313of the Cr.P.C. when he denied the incriminating evidence as false and repeated the plea of innocence. Thereafter, the trial court on appreciation of the evidence inclusive of the evidence led by the appellant returned the finding of conviction observing inter alia that the prosecution has successfully established the essential ingredients of the offences against the appellant and thereby presumption under Section 113B of Indian Evidence Act can be resorted to for coming to a finding that he had committed dowry death of his wife. In respect of the defence evidence, the trial court has stated that even though the defence witnesses are entitled to be equally treated but their evidence [the evidence of DWs-1 & 2] has indicated to the death of the wife of the appellant not under normal circumstances. Even DW-2 has identified his signature on the resolution [Exbt.D] but no step according to the trial court was taken in proof of the contents of the said document. Even DW-1, in his evidence has admitted that the victim was taken to her matrimonial house only on insistence of the local Panchayet. Thereafter, the trial court has observed as under:

“this part of evidence in my considered opinion will go against the defence as she was forced to come back her matrimonial house while she was not willing to come back on certain allegations including the demand of dowry as already proved from the prosecution evidence. It has already been proved that after the last meeting of Panchayet she went back to her matrimonial home and died by burns within 15/20 days as established from the evidence of prosecution as well as the defence witnesses. DW-1 in his evidence in clear voice stated that his wife was happy with him. If the deceased was happy with her husband then why she died by burns within one and half years of marriage is not satisfactorily explained by the defence during trial. On the other hand, from the evidence of prosecution witnesses it has been established that prior to her death she has been tortured on demand of money, valuable security and also for raising objection towards the illicit relationship of her husband with another woman. There is nothing in the evidence of defence witnesses to take adverse inference against the established presumption as taken against the accused husband, Kartik Mandal for commission of the dowry death.”

[5] Mr. B. Deb, learned counsel appearing for the appellant has submitted that there is coherence or element of corroboration available from the evidence as regards the constituting factors of offences punishable under Sections 498A or 304B of the IPC. Mr. Deb, learned counsel appearing for the appellant has further contended that there is no proof that the deceased was subjected to cruelty or harassment by her husband, the appellant herein, in connection with any demand for dowry. Even the fundamental ingredient of Section 304Bof the IPC that the deceased was subjected to cruelty or harassment soon before her death is totally absent. The proof of subjecting the deceased to cruelty or harassment for dowry soon before her death can only fasten those persons [the appellant herein] with the liability of causing unnatural death of the wife drawing presumption under Section 113B of the Indian Evidence Act. Only on such foundational fact having been proved, the court shall presume that such person had caused the dowry death. ‘Shall presume’ can thus only be on the foundational fact. No presumption can be drawn by the court, if the foundational fact isdebased successfully from the evidence. That apart, Mr. Deb, learned counsel appearing for the appellant has submitted that the investigator has recorded the statement of the witnesses, such as PW-16 belatedly and as such, the truthfulness of their deposition is liable to be questioned and doubted. It would be apparent from the scrutiny of the evidence that the persecution’s case is based on inadmissible evidence and surmises as projected by the witnesses. Mr. Deb, learned counsel appearing for the appellant has quite categorically stated that the trial court has miserably failed to take into consideration of the fact why the Panchayet meeting was called and what complaint had been considered by them or what was the resolution after deliberation. But based on the fact of such meeting, the trial court had on fanciful flight to observe that from the evidence of prosecution witnesses it has been established that prior to her death she was being tortured on demand of money, valuable security and also for raising objection on the illicit relation of her husband with another woman. According to Mr. Deb, learned counsel, there is no evidence that soon before her death there was harassment for dowry nor there is any evidence of demand of dowry. Finally, Mr. Deb, learned counsel appearing for the appellant has submitted that all financial assistance or demands cannot be brought under the definition ‘dowry’ as provided under Section 2 of the Dowry Prohibition Act. Mr. Deb, learned counsel appearing for the appellant has referred to a decision of the apex court in Appa Saheb & Anr. vs. State of Maharashtra, reported in (2007) 3 SCC (Crl.) 468 to buttress his contention that a demand of money on account of financial stringency or for merely some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry. In the case in hand the allegation is that the appellant used to create pressure or torture on his wife [now deceased] for encashment of the fixed deposit kept in her name. But there is no evidence at all relating to those deposits in the evidence. Finally, Mr. Deb, learned counsel appearing for the appellant has submitted that there is no reliable evidence of cruelty or dowry death. That apart, the evidence produced by the defence was not considered at par with the evidence of the prosecution. At the time of appreciation, the evidence adduced by the defence was relegated and their probative value has not been juxtaposed coming to a logical inference. Mr. Deb, learned counsel has referred another decision of the apex court in State of Haryana vs. Ram Singh, reported in (2002) 2 SCC 426, where it has been held by the apex court that the defence evidence are to be equally treated and to be treated with equal respect with that of the evidence of prosecution. According to Mr. Deb, learned counsel appearing for the appellant, the inference as finally drawn by the trial court is grossly perverse and warrants interference from this court inasmuch as on appreciation of the similar set of evidence, the co-accused had been acquitted from the charge under Sections 498A/304B of the IPC.

[6] In response, Mr. A. Roy Barman, learned Addl. P.P. appearing for the state has stated that the submission made by Mr. Deb, learned counsel appearing for the appellant is based on gross misreading of the evidence. The prosecution has proved the charge to the hilt by adducing evidence. He has particularly stated that the court cannot take a lenient view of such heinous crime when a young woman died unnatural death within two years of her marriage in the matrimonial home on demand of dowry and in the face of cruelty. Mr. Roy Barman, learned Addl. P.P. has stated that if the evidence of PWs-3,5 & 6 are read, it would be apparent that the prosecution has adequately proved the charge beyond reasonable doubt. He has further stated that there was a clear demand for articles, such as sofa set and TV. That apart, Mr. Roy Barman, learned Addl. P.P. has fairly submitted that the appellant had illicit relation with the co- accused Sabita Mandal. The deceased was apprehending that she might be killed and for that reason, she had been staunchly refusing to go back to the matrimonial home. But for the intervention of the Panchayet members, namely Ramu Sarkar and others, the deceased [the daughter of PW-3] started living in the matrimonial home. Even she had left the matrimonial home with her small baby on such appreciation and took shelter in the house of one Aruna Sarkar [sister of PW-3]. There was a conspiracy of killing her and when that surfaced, the deceased left the matrimonial home. According to Mr. Roy Barman, learned Addl. PP that even after that incident, the deceased was sent back to the matrimonial home and finally, she died an unnatural death. According to Mr. Roy Barman, learned Addl. PP, the finding of the trial court that after the last meeting of Panchayet, she returned to the matrimonial home and died of burns within 15-20 days has been established by the evidence of prosecution as well as the defence evidence and hence, those cannot be questioned. Those primary facts are well grounded in the evidence. The finding of the trial court that prior to death, the deceased was being tortured on demand of money, valuable security and also for raising objection against the illicit relation of her husband with another woman, cannot be interfered with for the same reason. The presumption as drawn under Section 113B of the Indian Evidence Act has been drawn on those foundational facts and there is no rebuttal fact to debase the foundational fact. Mr. Roy Barman, learned Addl. P.P. has urged this court to sustain the judgment of conviction and the consequential sentence.

[7] For appreciation of submissions made by the learned counsel appearing for the parties, it would be apposite for his court to take a short survey of the evidence on record. [8] PW-1, Sri Hiralal Sarkar has stated that 10-12 days before the death of Babita, the daughter of Jagati Sarkar [PW-3] he saw one boy came to the house of PW-3 when he was working in her house. On query, he came to know that he was a friend of the husband of Babita, since deceased. The boy asked PW-3 that he had been sent by the husband of Babita to take the ornaments of Babita. He had also asked for a sum of Rs.1,000/-. In his presence PW-3 gave that boy a sum of Rs.1,000/- and handed over the ornaments to him. Later on, he has stated that the boy was the nephew of one Sentu Sarkar who was his neighbour and he recognized the boy as Ramu.

In the cross-examination when he was confronted, PW-1 had stated that he made such statement to the investigating officer but no such statement, he could locate from the statement as recorded under Section 161 of the Cr.P.C. PW-1 has later on submitted that the investigating officer did not record the fact of handing over the ornaments to Ramu. He has denied the suggestion contrary to what he has stated in the examination-in-chief.

[9] PW-2, Sri Shyamal Debnath scribed the ejahar and he has stated that he put his signature at the bottom of the ejahar. He admitted the ejhar [Exbt.1] and his signature [Exbt.1/1]. He has also stated that PW-3 had put her thumb impression in his presence. But in the cross-examination, he has admitted that he did not record that incidence of putting thumb impression in the written ejahar. But he denied that the ejahar was not written as per the version of PW-3.

[10] PW-3, Smt. Jagati Sarkar is the informant who lodged the ejahar. She has stated that her daughter Babita Sarkar died 3[three] years ago and her marriage was solemnized about two years before her death with the appellant. After 3[three] months of her marriage, she told her that the appellant, his mother Sita Mandal, sister-in-law Sabita Mandal and two brother, namely Ganesh Mandal and Nimai Mandal used to torture her as they could not fulfill their demand requiring sofa set and TV at the time of her marriage. That apart, she had reported that her husband [the appellant] had illicit relation with his sister-in-law. She was apprehensive that she might be killed by the accused and hence, she did refuse to go to her matrimonial home. However, after staying at their residence for about 4[four] months, at the intervention of the local Panchayet, Babita went back to her matrimonial home. One of the Panchayet members, Ramu Sarkar along with others intervened in the matter. Her daughter started living in the matrimonial home but again the accused persons started torture on her. She stayed there for 4[four] months but being unable to bear the torture she returned to her parental house with her baby. She has also stated that initially she took shelter in the house of one Aruna Sutradhar who happened to be a sister of PW-3. PW-3 came to know from her sister that ‘the accused persons tried to kill’ Babita on the preceding night. Babita told her that when she heard the accused persons discussing of killing her at night then she came out from that house with her baby and took shelter in Aruna’s house. From there, PW-4 brought Babita to their house. Again the local Panchayet was informed. On intervention of the local Panchayet, again her daughter returned to her matrimonial house with her baby. After few days, the accused Kartik Mandal over telephone requested her son to take back their daughter to their house on the plea that he would go out of his house. Accordingly, on one Sunday, Pintu went to that house and brought their daughter to their house. Again she was sent back on the next Friday but she told that she would return again on Sunday as her husband would remain out of his house for some times as he would go to Kolkata but she did not came back. On Monday, they received information that her daughter died sustaining burn injury. Thereafter, PW-3 has stated as follows:

“The accused persons set fire on her body. All the accused persons are present today in the court. The witness identified all the accused persons in the dock. Before the death of my daughter her husband used to make torture upon her for encashment of fixed deposit money kept in her name. After the death of my daughter I lodged a written ejahar in the Sidhai P.S. which was written by one Bimal who is a resident of nearby Sidhai P.S. The incident was narrated to him by myself as well as other persons present there.”

In the cross-examination, PW-3 has stated that after 10[ten] months of marriage, Babita gave birth a baby who was at the time of her death 8[eight] months old. The baby was born in a hospital and the entire arrangement was made by the appellant. Even she could not state that for how many days Babita was in the hospital. She has admitted that all the religious ceremonies were followed by the appellant and his inmates. She has admitted that Babita used to come to their house once or twice in a month as ‘nayar’. She also visited the house of the appellant and stayed there for one night. She has also admitted that the Panchayet meeting used to be held at the initiative of the appellant. She has stated that she did know Umacharan Hrishi Das, the Panchayet Pradhan of the locality of the accused persons. Even she visited the house of Umacharan who requested her to send her daughter to her husband’s house. But her daughter refused to go back to her husband’s as she was apprehending that the accused persons might kill her. In the meeting Umacharan herself, her son, her daughter and the appellant were present. She denied the suggestion that she did not make any complaint against the appellant for torturing on her daughter demanding money or articles. But she has stated that there was no written resolution of that meeting. She has further admitted that the appellant used to go out from his house in the early morning for his work at Agartala and he used to stay at Agartala but sometimes he used to visit her house. She has in the cross-examination stated that few days before the death of her daughter, the appellant started living in a separate mess. However, she has admitted categorically as follows:

“I did not give any allegation in writing about the torture by the accused persons upon my daughter to the Panchayet or any other authority before the death of my daughter. I stated to the IO that accused Kartik Mandal had illicit relationship with his sister-in-law, Sabita Mandal.”

She has denied the suggestion that she did not inform the Panchayet member, Ramu Sarkar about her daughter’s taking shelter in the house of her sister, namely Aruna Sutradhar [PW-9]. She had reiterated that Aruna told her that the accused persons were trying to kill her. She has denied the suggestion made contrary to her statements in the examination-in-chief. She has admitted that the accused, namely Ganesh Mandal and one Bimal Debnath visited her house to ask why her daughter had left the matrimonial home. But she could not find out such statement in her previous statement. Even she has admitted that the appellant over telephone told her daughter to go back to their house. At that time, the appellant had stated to the deceased if she did not come back she would again take her through the local Panchayet but no such statement of PW-3 could be located from her statement recorded under Section 161 of the Cr.P.C. She has categorically stated that she cannot recall what she had stated to the investigating officer. She has denied the specific suggestion that her daughter was susceptible to losing control over her anger and she set fire on her person in the fit of anger and there was no such plot of killing her.

[11] PW-4, Pintu Sarkar is the brother of the deceased. He has replicated the same narrative of PW-3 but with certain additional facts which according to him was within his personal knowledge. He has stated in the trial as follows:

“After three months when she came back to her house she told that she would not like to go back to her husband’s house as her husband had illicit relationship with his sister-in-law (wife of elder brother of her husband). However, I insisted her to go back to her husband’s house, but she refused to go back as she was apprehending that she would be killed by her husband Kartik Mandal and other in-mates of her husband. Thereafter, a meeting was held in a house of a neighbour of accused Kartik Mandal. After discussion in the meeting we sent back my sister to her husband’s house. But scenario was continued as her husband and other inmates continued to make torture upon her with the issue of illicit relationship of her husband. They used to make physical torture upon my sister. After about one and half months my sister again came back and told that she was being physically tortured demanding money. My mother gave Rs.5,000/- to my sister. Then she went back to her husband’s house. But she again came back to our house due to the torture upon her by her husband and others. When she again went to her husband’s house on a night she heard that the accused persons would kill her. Then she fled away from her husband’s house and took shelter in the house of my aunt namely, Aruna Sutradhar. On receiving the said information we went to the house my aunt and took her back to our house. Thereafter, we informed the matter to Panchayet member namely, Ramu Sarkar. Thereafter, at the intervention of the Panchayet member she again went to her husband’s house and started living there. She lived happily for few days. Thereafter, one day her husband Kartik Mandal over telephone tell me that he would be out of his house and requested me to take back my sister to our house. Accordingly, I went to the accused persons, but I did not find accused Kartik Mandal in his house. There I talked with accused Kartik Mandal over phone who asked me to take my sister to our house and accordingly I took my sister to our house. After staying 2/3 days her husband told my sister over phone to go back to her husband’s house as he would go to Kolkata on next Monday. So, my sister went back to her husband’s house. After three days we got information that my sister sustained burn injuries. I talked with the accused Kartik Mandal over telephone who told me that my sister herself set on fire and she was taken to the hospital by her husband. Accordingly, I went to GB hospital where I found the dead body of my sister. But I did not see the accused in the hospital. During life time of my sister one day accused Kartik Mandal sent one Ramu Sarkar to our house demanding some money. My mother gave him Rs.1,000/- for giving the same to accused Kartik Mandal. My mother paid the money in front of one Hiralal Sakar who was working at our house.”

[Emphasis added] PW-4 was extensively cross-examined by the defence. In his cross-examination, PW-4 has stated that he cannot give the account of how many times her sister visited their house after her marriage. He has stated that even on the request of Kartik [the appellant] his sister refused to go back to her matrimonial home. Then her husband had stated that he would come with persons from the Panchayet and accordingly, he did it. His sister told him that she would not go. But such statement was not found in the statement as recorded under Section 161 of the Cr.P.C. The relevant part of the statement as recorded by the investigating officer has been admitted in the evidence as Exbt.B.

But he has admitted that he did not state to the investigating officer that at the initiative of the appellant, the Panchayet intervened in the matter. However, he denied the suggestion made to him contrary to what he has stated in the examination- in-chief. Even PW-4 could not find out from his previous statement that he had stated the investigating officer that his mother [PW-3] paid one Ramu Sarkar a sum of Rs.1,000/-. But he has admitted that after some time of the marriage, the brothers of the appellant started living in a separate mess. But he has denied the suggestions that his sister was unwilling to lead her matrimonial life with the appellant and as a result of that, she committed suicide.

[12] PW-5, Sri Ram Kumar Sarkar is from the same village of PW-3 and he has narrated the fact relating to the marriage and the death of Babita Sarkar. He has stated that after 3-4 months of her marriage she and her mother reported to him that her in- laws were torturing her on demanding money and that apart, ‘her husband had illicit relation with his sister-in-law’ [the wife of the elder brother].’ He has stated that there was a meeting, to mitigate that matrimonial discord, convened by the Panchayet and in presence of the family members of both sides the dispute was mitigated. Thereafter, she lived happily for few days. According to him, last Panchayet meeting was held on 09.09.2012 which was prior to 20-21 days before her death. He identified the appellant in the dock.

In the cross-examination, he has admitted as under:

“There was a resolution of meeting held on 09.09.2012 in which I put my signature. In the said resolution nothing has been mentioned that the torture was due to dowry or any illicit relationship of the accused Kartik Mandal.”

[13] PW-6, Prasanta Sutradhar had close bonding with the family of the deceased. What he has stated in the trial is that after 4[four] months of her marriage, Babita when came to her father’s house stated that her husband had illicit relationship and also stated that her husband, mother-in-law, brother-in-law and sister-in-law used to torture her for bringing money. She has also stated the same to his mother when she had visited their house. Thereafter, Babita was taken to the matrimonial home after persuasions as she had refused to go back to the matrimonial home. One day she found Babita coming to their house. From her, she could learn that Babita sensed a conspiracy as she heard the accused persons talking to each other that they would kill her. PW-6 gave that information to PW-3, they came to their house and took her along with them. Babita was there for 20-25 days in her parental house. He denied all the suggestions made to him.

[14] PW-7, Nandu Bardhan has stated that there were matrimonial disputes between Babita and her husband over the issue of dowry and illicit relationship of her husband with her sister-in-law. There was a meeting about 20-22 days prior to her death for mitigation of the dispute. He has stated that before 3[three] days of her death she came to her father’s house and at that time she told her that she has apprehending that her husband would kill her. At that time, she had stated that the appellant would kill her on demand of money and also for raising objection regarding illicit relationship of her husband. Even though PW-3 did not state anything about payment of any money except a sum of Rs.1,000/-, this witness has introduced the story of demand as can be gathered from his following statement in the trial:

“The parents of Babita paid Rs.7000/- to accused Kartik Mandal in two installments.”

In the cross-examination, he has admitted that no written complaint was submitted on behalf of Babita at their Panchayet but he had projected his lack of knowledge about whether the appellant had made such complaint in the Panchayet or not. However, he has admitted as follows:

“It is fact that there was a written resolution of the last meeting held on 09.09.2012. In the said resolution nothing was recorded that there was torture upon the victim on demand of money. It was also stated in the resolution that the victim would respect her mother in law and father in law like her own parents. I did not state to the IO of the case that there was dispute in between accused Kartik Mandal and his wife on the issue of illicit relationship of her husband with his sister in law [wife of elder brother of accused Kartik]. Babita visited her parents house after marriage on many times. Whenever Babita visited her parents house she used to stay there for about 10/15 days. It is not a fact that I was not present in all the three meetings held with the issue of Babita and her husband. It is not a fact that before three days of her death when she came to her father’s house, she did not tell me that she was apprehending that her husband would kill her or that I did not tell her that we shall look after the matter and did not tell her to go back to her husband’s house. I cannot say the day and time when the parents of Babita gave Rs.7000/- to accused Kartik Mandal.”

[Emphasis added] [15] PW-8, Smt Rina Shil at the relevant time was Upa-

Pradhan of Satdubia Panchayet. She has stated that she visited the house of Kartik Mandal in connection with the meeting held in the house of Kartik Mandal in order to ‘mitigate the dispute of Babita with her husband’. She has categorically stated that there was complaint that her husband has an illicit relation with the wife of his elder brother. No doubt she is an independent witness and has participated in exploring a resolution of the matrimonial discourse. She has stated in the trial as under:

“There was also complain of demanding money by accused Kartik Mandal. I was present in two meeting held in his house. Last meeting was held on 09.09.2012. The meeting was held as approached by mother of Babita. In the meeting we mitigated the dispute. Thereafter Babita started living at her husband’s house. But after 20/22 days of the last meeting she died by sustaining burn injuries in the house of her husband.”

In the cross-examination, she has further stated that the resolution book in respect of meetings held in the Panchayet is maintained. The decision of the meeting had entered in the resolution book but no entry in respect of those meetings is available in the said resolution book as the meeting was held in the house of the appellant located at South Taranagar. When it was confronted that there was no demand of money from the appellant or his inmates, PW-8 has categorically denied that suggestion. The other suggestions were as well denied by PW-8. [16] PW-9, Smt. Pratima Sutradhar [she has stated that she is also known as Aruna] is closely associated to the informant by the religious bond. She has stated that the deceased was happy for 2 or 3 months and thereafter, her husband and his family members started to torture her on demand of money. Her husband used to torture her for liquidating the fixed deposit maintained in the name of Babita and also for giving sofa and TV. She has also stated that there were two meetings where she was present. She has introduced a completely different story that the accused persons had promised that they would not make torture. On assurance, Babita used to stay in the house of her husband. Thereafter, she has stated as under:

“About 20/25 days before her death one day in the early morning at about 5/5.15 am Babita came to my house with her baby. She told us that at night she heard to discuss her husband and other accused persons to kill her by setting fire on her. On hearing the same she came out from her in laws house. We informed the same to her parents. The mother of Babita and others came to my house. They took her to their house. Mother of Babita informed the matter to the Gaon-Pradhan of Taranagar Gram Panchayet. Thereafter, the matter was mitigated in a meeting and started living in her husband’s house. After 20 to 25 days she died at her husband’s house by sustaining burn injuries.”

[17] PW-10, Sri Sujit Hrisidas is a seizure witness of one paper as described in Exbt.3 [the seizure list]. From reading of Exbt.3 it appears that document is a two page resolution taken on 09.09.2012 in the conciliation meeting on the dispute between the appellant and the deceased, containing the signatures of the persons who were present in the meeting. The description of the said document is elaborately placed in the said seizure list [Exbt.3]. He had identified his signature on the seizure list appearing in the trial.

[18] PW-11, Mahananda Hrisidas also the seizure witness of the said resolution and he has identified his signature on the seizure list.

[19] PW-12, Smt. Emelia Reang, the Deputy Collector and Magistrate of the office of the Sub-Divisional Magistrate, Sadar had conducted the inquest over the dead body of Babita Mandal in the GBP hospital morgue having the deceased’s body identified by PW-4, the brother of the deceased in presence of other witnesses, namely Nandu Bardhan and Ram Kumar Sarkar. PW- 12 identified the said report [Exbt.4].

In the cross-examination, she has categorically stated that there were no injuries over the body except the burn injuries. Even she did not find any presence of chemical in the body of the deceased.

[20] PW-13, Sri Prajit Malakar, a Sub-Inspector of Police from East Agartala Police Station has also claimed to have conducted inquest over the dead body of deceased Babita Mandal [Sarkar] in connection with GB-TOP GD Entry No.15 dated 01.10.2012 in presence of witnesses. He had identified the said report as Exbt.2.

In the cross-examination, he has admitted that he has not recorded in the said report how the victim sustained burn injury, even though he had interaction with PW-4. [21] PW-14, Dr. Jyotika Debbarma conducted the postmortem examination on the body of the deceased, Babita Mandal [Sarkar] on 01.10.2012 and after examination she had reflected in the report in respect of the external ante mortem injuries which are as follows:

“Ante-mortem flame burns, superficial to deep in nature was present all over the body sparing soles of both sides. Blackening of skin was present due to deposition of soot particles. Burn blisters was present at places on both legs and thighs. Peeling of skin was present at places on the body and the underlying tissue was red and inflamed. Singeing of scalp and body hair was present. The burn surface area involved about 98% of total body surface are.

On internal examination black colour soot particles mixed with mucus was present sticking to the inner wall of esophagus, trachea and bronchi. In stomach amount 30 ml of brown colour fluid mixed with mucus and black colour soot particles was present.

Based on the observation, PW-14 did not indicate to nature of the death except saying the cause of death was from shock as result of ante-mortem flame burns involving about 98% of the total body surface. PW-14 identified the postmortem examination report [Exbt.5] in the trial.

[22] PW-15, Suman Ulla Kazi was posted as the Sub- Inspector of Police in Sidhai Police Station. On 02.10.2012, according to him, Sidhai P.S. case No.77/2012 was registered by Arun Kanti Sarkar, an Inspector of Police based on a written ejahar filed by one Jagati Sarkar [PW-3]. Arun Kanti Sarkar was not examined in the trial but he had entrusted the case for investigation to PW-15. PW-15 commenced the investigation and prepared the site map of crime and proceeded to record the statement of the witnesses. He has stated in the trial that he had seized one plastic jerrican having small quantity of kerosene and one partly burnt printed sari stated to belong to the deceased by preparing a seizure list [Exbt.8]. He has stated that he had examined two witnesses, namely Hardhan Sarkar [father of the deceased] and Pintu Sarkar [brother of the deceased]. Having been directed to handover the investigation to the SDPO, Mohanpur he did not proceed further.

In the cross-examination, he has stated that he had examined two other witnesses, namely Pradip Debnath and Keshab Sarkar who were the close-door neighbour of the appellant, meaning they were living nearby the place of occurrence. He has stated further in the cross-examination as follows:

“I did not enter in my CD whether witness Pradip Debnath and Keshab Sarkar stated to me that wife of accused Kartik Mandal on and often used to go to her parents house without giving any information to the family members of accused Kartik Mandal or that it was the issue of dispute.”

PW-15 has further stated as follows:

“PW-3 Smt. Jagati Sarkar did not state to me that she informed Panchayet member, Ramu Sarkar that her daughter took shelter in the house of her sister Aruna Sutradhar and also that her daughter told her that accused persons were trying to kill her. PW-3 also did not state to me that accused Kartik Mandal had illicit relationship with his sister in law Sabita Mandal. PW-3 did not state to me that her daughter told Ganesh Mandal and Bimal Debnath that she would not go back as accused persons would kill her.

PW-3 stated to me Exbt.A in the statement recorded by me under Section 161Cr.P.C. Witness proved Exbt.A. PW-4 Shri Pintu Sarkar stated to me Exbt.B and Exbt.C in his statement recorded by me U/s 161 Cr.P.C. witness proved Exbts.B and C. PW-4 did not state to me that after three months of marriage of the victim when she came back to their house she refused to go back to her husband’s house as her husband had illicit relationship with her sister in law. PW-4 also did not state to me that he asked his sister to go back to her husband’s house. PW-4 also did not state to me that after going back of his sister to her husband’s house her husband and other accused persons again started torture upon her on the issue of illicit relationship of accused Kartik Mandal. PW-4 also did not state to me that thereafter, again his sister came back to their house due to torture upon her by the accused persons. PW-4 also did not state to me that his mother paid Rs.1,000/- to Ramu Sarkar in presence of Hiralal Sarkar.”

[Emphasis added] PW-25 has also stated that he did not conduct any further investigation about the deceased’s journey to the house of Aruna Sutradhar from her husband’s house and as such, he cannot say what is the distance between the house of Aruna Sutradhar and the matrimonial house of the deceased.

[23] PW-16, Sri Amitabha Paul was the SDPO, Mohanpur at the relevant point of time who carried out the later part of the investigation. He collected the forensic report on examination of the seized articles and he had examined few other witnesses. He has categorically stated that he did not record the statement of Jagati Sarkar [PW-3] and Pintu Sarkar [PW-4] though he had examined them as they were repeating the same statement recorded by the previous investigating officer. In the same manner, even though he had examined Pradip Debnath and Keshab Sarkar but he did not record their statement as they had repeated the statement as recorded by the previous investigating officer. He has admitted that on 22.05.2013 he had seized two paged resolution of compromise between the parties [Exbt.3]. Even though he had examined some more persons but they did not reveal anything material for the investigation. Thereafter, he filed the chargesheet under Section 498A and 304B of the IPC.

In the cross-examination, he has admitted that in the inquest report there is no mention of marks of violence or struggle. Even the postmortem examination report does not state about whether the death was suicidal or homicidal. When he was confronted why such delay had occurred in examining the witnesses he had given the following answer in the trial:

“In the charge sheet I did not mention as to the reason of delay to examine witnesses Smt. Jagati Sarkar, Shri Pintu Sarkar, Shri Ram Kumar Sarkar, Smt. Rina Shil, Smt. Pratima Sutradhar, Shri Nandu Bardhan, Shri Prasanta Sutradhar and Shri Hiralal Sarkar.

W.V: However, I have mentioned in my case diary that I was engaged in election duty. I did not mention in my case diary the period of my engagement in connection with election duty.

It is not a fact that I was not engaged in election duty.”

In the cross-examination, he has further stated that:

“To seize the resolution of Panchayet I did not issue any written requisition to the Panchayet. I did not seize any register or resolution book from the Taranagar Panchayet or Satdubia Panchayet. In the said resolution no demand of dowry by the accused persons has been mentioned. During my investigation I could not ascertain the particular date and time when the victim was being tortured by the accused persons.

PW-1 Shri Hiralal Sarkar did not state to me that the friend of husband of Babita came to the house of Jagati Sarkar to receive the ornaments of Babita and that informant Jagati handed over the same to him. PW-1 also did not state to me that the ornaments were handed over to the friends of Babita’s husband in his presence.

PW-5, Sri Ram Kumar Sarkar did not state to me that he was a Panchayet member of Satdubia Gram Panchayet at the relevant time of occurrence.

PW-6 Shri Prasanta Sutradhar did not state to me that after four months of marriage of Babita when she came to her father’s house she stated that her husband had illicit relationship and also that her husband, mother-in-law, brother- in-law and sister-in-law used to torture her for giving money and also that she stated the same thing to her mother when she visited their house.”

[24] It is to be noted that in order to rebut some part of the prosecution evidence the appellant examined him as DW-1 and one Pradip Debnath who was admittedly examined by the investigating officer but was not produced as the prosecution witness in the trial was examined as DW-2 by him.

[25] Before this court records the substance of the testimonies of DWs-1 & 2 it would be appropriate to look at the substance of the resolution [Exbt.D, seized by means of Exbt.3]from the house of the Umacharan Hrishi Das, Pradhan of South Taranagar Gaon Panchayet. The entire text and the signatures to the resolution are reproduced in English as provided by the translation department of the High Court:

Exbt-D Resolution of conciliation in the meeting Today on 09.09.2012 A.D. Sunday at 11 A.M., an adjudication meeting is held at the residence of Sri Subal Debnath of Trishghar in respect of the settlement of the family dispute that took place among Smt. Babita Mandal [Sarkar], W/O- Sri Kartik Mandal, younger son of Sri Manoranjan Mandal [Pagla Mandal], resident of Trishghar and Sri Manoranjan Mandal and his wife. In the meeting, in presence of the Pradhan of South Taranagar Gram Panchayet, elected members of West Tripura District Council, Upa-Pradhan of Satdubiya Gram Panchayet and elected members of both the Panchayets along with eminent persons of the locality it was decided that the family dispute that was taking place in the said family, would not take place in the near future. Be it mentioned that wife of Kartik Mandal made a promise saying that if the family condition deteriorates, they would solve it among themselves and would give respect to father-in-law and mother-in-law as parents. In that order, parents of Kartik Mandal would also give respect to their daughter-in-law as daughter. Be it mentioned that in this meeting, Kartik Mandal, his wife, parents and mother-in-law along with both parties of the two families made a prmise that the family dispute would not deteriorate in further day and after saying this, put signature in front of the eminent persons present there. Gaon Pradhan of South Taranagar Panchayet, namely Umacharan Hrishi Das presided over the meeting.

            Signature of persons present:         Signature of both parties

            Sd/- Binode Chandra Sarkar            Sd/- Kartik Mandal

            Sd/- Dulal Das                        Sd/- Babita Mandal

            Sd/- Rina Shil                        Sd/- Jagati Sarkar

            Sd/- Pradip Debnath

            1. Sd/- Nani Mandal

            2. Sd/- Barun Deb                         Sd/- [Illegible]
                                                         09.09.2012
            3. Sd/- Bimal Debnath                  Signature of President
                                                   (Umacharan Hrishidas)
            4. Sd/-Asutosh Debnath                        Pradhan
                                                    South Taranagar G/P
            5. Sd/- Raj Kumar Sutrdhar              Mohanpur R.D. Block
                                                       Tripura (West)
            6. Sd/- Nandu Bardhan

            7. Sd/- Pradip Bhowmik





            8. Sd/- Pramode Das

            9. Sd/- Dilip Sarkar

            10.Sd/- Rabindra Debnath

            11. Sd/- Dubal Debnath

            12. Sd/-Malina Deb

            13. [illegible]




[26]     In the examination under Section 313 of the Cr.P.C.,

the appellant has made a reference to the said meeting and stated that after that meeting Babita returned to the matrimonial home. In the meeting, Babita promised that she would keep good relation with him and she would not leave the house without information or permission. The appellant has denied that Babita was set ablaze, but asserted that she had committed suicide by putting fire on her body and finally, she died in the hospital. He pleaded innocence and stated that why she had committed suicide is not known to him. While examining him as DW-1, the appellant has stated that most of times, he used to reside in the work site as he was working as the iron rod mechanic. Babita had habit to frequently go to the parental home and to stay there for long time. He has stated that the neighbouring people used to know every facts of their family. He has named Pradip Debnath, Keshab Sarkar, Harimohan Debnath, Suman Debnath and Amulya Sarkar and Nani Mandal as the close neighbours. When Babita set fire on her person, the appellant has asserted that he was in a deep shock. He has asserted that no allegation was ever made against him in any Panchayet or any of the body. He had denied in the cross-examination all the suggestions made contrary to his statement.

[27] Pradip Debnath [DW-2] is a vital witness inasmuch as he was examined by the investigating officer but not produced in the trial by the prosecution. He has stated that his house is nearby the house of the appellant. He has stated that the appellant used to stay outside his house, most of the time in connection with his work. Never any complaint was made by Babita or her relation against the appellant or inmates. He did not notice any problem in the family of the appellant but Babita used to make frequent visits to her parents’ house and did not like to come back to the matrimonial home of her own and on all occasions, the appellant used to go to his in-laws house to take her back. That created a grievance and for resolving that a Panchayet meeting was held 15-20 days before death of the wife of the appellant. He has asserted that he was present in that meeting. When Babita set her ablaze, the appellant was in a shop. Having received the information, the appellant and DW-2 rushed to the house of the appellant and they shifted Babita to hospital. He identified the resolution of the Panchayet meeting as Exbt.D in the trial. He has denied the suggestions contrary to what he has stated in the examination-in-chief and thus, it is apparent that his statement [the testimony] is left not dented. [28] Having perused the evidence, this court finds that there is no reliable evidence that the soon before the unnatural death the victim was harassed. That apart, it is apparent that there is no evidence of demand of dowry inasmuch as from the records of the conciliation as well as from the analysis of the evidence it transpires to this court, the demand whether dowry or not has been highlighted or weaved after the unfortunate death of a young bride. The defence has successfully made out a probable story that the victim did not like to stay in the matrimonial home for whatever reason which according to the appellant was unknown to him. But it has surfaced that the parents and the related witnesses of the victim introduced a story of ‘illicit relation’ but prosecution did not lead any evidence on that aspect. Merely because the victim had reportedly stated that there was such illicit relation, the court cannot on the basis of an individual perception draw any adverse inference against the appellant. In absence of all the foundational facts of (i) an unnatural death (ii) the harassment on demand of dowry and (iii) such harassment occurred soon before the death, the presumption under Section 113B of the Indian Evidence Act cannot be drawn. Even there is no reliable evidence of cruelty. If the perception of design of killing the victim was believable, even to the parents, expectedly they would not have sent her to the matrimonial home again. That apart, the victim’s going to the house PW-9 is cast with shadow of doubt as PW-9 has stated that in the early morning, the victim came to her house sensing a design of killing her by setting fire whereas PW-4 has stated that when the victim went to her husband’s house, on a night she heard that the accused persons would kill her then she fled from her husband’s house and took shelter in the house of her aunt[PW-9] where she passed the night is clearly absent in the evidence. On receiving that information they went to the house of her aunt. From this statement, it appears to this court that the victim did not flee away at night from the house of the appellant. [29] Having perused the records, this court finds that statements of some important witnesses were recorded too belatedly. For example, the statement of PW-9 was recorded on 05.05.2013 and statement of PW-7 was recorded on 15.05.2013 etc. It is well established principles of law that unless the delay is explained for recording statements under Section 161 of the Cr.P.C. belatedly, the court may not place the full reliance on such testimony. In this case, on 01.01.2012 the occurrence took place but the investigating officers PWs-15 & 16 did not explain such delay of recording the statement of important witnesses asstated. The statements of those witnesses as it appears are not cogent and credible. Thus, the principle as laid down in Ganeshlal vs. State of Mahrashtra : (1992) 3 SCC 106; Mohd. Khalid vs. State of W.B. : (2002) 7 SCC 334; Prithvi (Minor) vs. Mam Raj & Ors. : (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi) : (2010) 6 SCC 1 cannot be applied in this case.

The principle as laid down in the above cited cases that the court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the court.

[30] One of the important facets is that DW-2, Pradip Debnath was the cited witness of the prosecution. His statement was recorded by the investigating officer [PW-15] on 02.10.2012, meaning without delay but this witness was not produced or withheld in the trial by the prosecution. As DW-2, what he has stated gets support from independent prosecution witnesses and from the content of Exbt.D in respect of the core issue of matrimonial discord. No doubt, the prosecution had the burden of proving the charge, but that was not discharged. The fair trial deserves the dispassionate role of the prosecution in producing the evidence which has been collected in the course of the investigation. The resolution as seized in presence of PWs-10 & 11 clearly shed light that there was no allegation either of demand of dowry, unlawful demand, harassment for realization of such demand or of having an illicit relation by the appellant. Even PW-16 has categorically stated that he had re-examined DW-2 and one Keshab Sarkar but since they had reiterated their earlier statement, he did not record their statements. All the elders of the village had, in unison, advised the victim to respect the parents-in-law. The demand and payment of Rs.1,000/- cannot be linked with the appellant and as such, the reference to Appa Saheb (supra) is of no relevance. Mr. Deb, learned counsel has correctly contended by expositing the position of law that both the prosecution and the defence evidence are to be measured by the same scale. Those evidence cannot be treated differently.

[31] So far the element of cruelty vis-à-vis Section 498A of the IPC is concerned, this court would observe that there is no cogent evidence in this regard. The allegations are not only sporadic and fragment but also unspecified being sweeping in nature without reference to any time or date. Even the prosecution did not explain if the dispute was rooted on such demand or harassment for realization thereof, when the witnesses from the conciliation meeting clearly stated that no such issue was ever raised in such meeting. Thus, the advantage is bound to tilt in favour of the accused. The apex court almost on a similar situation in Sow Chaya VS. the State of Maharashtra [see the judgment dated 03.08.2018 delivered in Criminal Appeal No.963/2018] has observed as follows:

“8. A perusal of the oral evidence of the parents of the deceased would indicate that only minor allegations are made against the appellant. Vague and cryptic allegations are found against her with no specific allegation in respect of demand for dowry or harassment in any manner. In the absence of definite evidence against the appellant, the Sessions Court and the High Court are not justified in convicting her even for the offence punishable under Section 498A of the IPC.”

Hence, the finding of the trial court that the prosecution has successfully established the charges under Sections 498A/304B of the IPC against the appellant is unsustainable. [32] Having observed thus, as corollary, the impugned judgment and order dated 06.05.2017 are set aside and the appellant is acquitted from the charge both under Sections 498A/304B of the IPC on benefit of doubt. The appellant shall be released forthwith, if not wanted in any other case.

In the result, the appeal stands allowed.

Send down the LCRs forthwith.

JUDGE Sujay

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