Pranita Talukdar (Barman) v. Uddhab Barman

3. The accused pleaded not guilty to the charge framed against him under Se ction 498 A/ 406 IPC and claimed to be tried. The complainant examined herself a nd adduced evidence of her sister and mother in support of her case. The accused in his statement recorded under Section 313 Cr.P.C. denied the allegations leve lled against him. The learned trial court after consideration of the materials o n record acquitted the accused. Aggrieved by the judgment, the appellant has pre ferred this appeal.

4. presented the respondent. Heard Mrs. K. Deka, learned counsel appearing for the appellant. None re

5. Legal position with regard to interference in appeal against acquittal a nd power of appellate court to re-appreciate, review on reconsider evidence and has been laid down by the Apex Court in catena of cases. In Chandra PPa & others Vs. State of Karnataka (2007) 4 SCC 415 it was held as under: An appellate court has full power to review, re appreciate and reconside (cid:28)42 &. The following general principles regarding powers of the appellate court w hile dealing with an appeal against an order of acquitted emerge: (i) r the evidence upon which the order of acquittal is founded. (ii) The code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence befor e it may reach its own conclusion, both in question of fact and of law. (iii) Various expression S, Such as, (cid:28)substantial and compelling reasons (cid:29), (cid:28)go od and sufficient grounds (cid:29), (cid:28)glaring mistakes (cid:29), etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phr aseologies are more in nature of (cid:28)flourishes of language (cid:29) to emphasize reluctanc e of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its conclusion. (iv) An appellate court, however, must bear in mind that in case of acquittal , there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal ju risprudence that every person shall be presumed to be innocent unless he is prov ed guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed an d strengthened by the trial court. If two reasonable conclusions are possible on the basis of the evidence (v) of record, the appellate court should not disturb. The finding of acquittal reco rded by the trial court. (cid:29) In the case of Mrinal Das & Others Vs. State of Tripura 2012 (i) GLT (SC 6. ) 37 while considering the similar issue. Hon’ble Supreme Court, reiterated the principles and held- (cid:28)8 & It is clear that in an appeal against acquittal in absence of perversing in the judgment and order, interference by this court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, it is fully competent to re-appreciate, re consider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping i n mind that acquittal provides for presumption in favour of the accused. The pre sumption of innocence is available to the person and in criminal jurisprudence e very person is presumed be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of evidence on record, the appellate court should not disturb the findings of acquittal. There is no li mitation of the part of the appellate court to review the evidence upon which th e order of acquittal is founded and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferre d by the State, it is the duty of the appellate court to marshal the entire evid ence on record and only by giving cogent and adequate reasons set aside the judg ment of acquittal. An order of acquittal is to be interfered with only when ther e are (cid:28)compelling and substantial reasons (cid:29) for doing so. If the order is (cid:28)clearl y unreasonable (cid:29), it is a compelling reason for interference. When the trial cour t has ignored the evidence or misread the material evidence or has ignored mater ial documents like dying declaration/ report of ballistic experts etc, the appel late court is competent to reverse the decision of the trial court depending on the materials placed. (cid:29) In State of Goa Vs. Sanjay Thakrar & Another (2007) 3 SCC 755 it was held:- (cid:28).. While exercising the powers in appeal against the order of acquittal the cou rt of appeal would not ordinarily interfere with the order of acquittal unless t he approach of the lower court is vitiated by some manifest illegality and the c onclusion arrived at would not be arrived at by any unreasonable person and, the refore, the decision is to be characterized as perverse. Merely because two view s are possible the court of appeal would not take the view which would upset the judgment delivered by the court below. (cid:29)

7. In view of above, it is necessary to examine the evidence of prosecution witnesses to find out whether the trial court has committed manifest error in a rriving out decision and the need to interfere with the order of acquittal. PW 1, the complainant deposed that after lapse of two months of her marr 8. iage, the accused demanded two lacs and she was subjected to assault. Her father managed to give her Rs. 10,000/ which she gave to the accused. But the torture and harassment did not stop. Her twin baby died due to assault. Then she was bro ught to her parental house for rest. The torture accelerate when she came back t o matrimonial house. At the time of carrying pregnancy again she was taken to he r parental house where she gave birth to a male child. The accused was informed but he did not visit to see his child. On 27.11.07 she alongwith her mother and sister came to her husband’s house to find another woman in the house. The accus ed abused her and threatened her to kill. She, thereafter, left his house for go od and filed the complaint. On the basis of search warrant issued in the case, h er ’Stridhan’ properties were recovered and given in her zimma.

9. tion certificates, she could not lodge any F.I.R. In her cross- examination she stated that as she did not obtain any abor

10. PW 2 Gitika Talukdar is the younger sister of PW 1. She deposed that aft er marriage whenever complainant- victim came to her parental house, she used to complain that she was being harassed and beaten. Once, the complainant requeste d her father over phone to give her some money. She (victim) told her father tha t the accused has asked her to bring Rs. 2,00,000/. Next day her mother took Rs. 10,000/ for her. The complainant delivered twin baby after completion of only s even months of pregnancy. Both the babies died as the complainant was subjected to torture while she was carrying pregnancy. Thereafter, the victim was brought to her parental house where she stayed for a period of one month. Once again sh e conceived and was taken to her parent’s house where she delivered a male child on 27.12.03. The accused did not enquire about her. On 27.11.04 the complainant alongwith PW 2 and PW 3 ( i.e. sister and mother) went to her husband’s house. The accused in a fit of anger abused all of them and threatened the complainant that she would be cut in to pieces and will be gifted to her parents. PW 2 also stated that she saw an woman in the house of the accused and the woman was livin g there as if she was his wife. Complainant and her mother and PW 2 at the end o f the night left the house of the accused.

11. less in the same line. Evidence of Suruj Prova Talukdar, mother of the victim (PW3) is more or

12. As per allegations, death of twin babies of the victim occurred sometime in the year 2002. PW1, stated that her father arranged Rs. 10,000/ where she ga ve to accused. The father of the victim was not examined. The cause of death of the twin babies was not medically proved.

13. The learned trial court observed that the allegation of demand of Rs. 2, 00,000/ occurred prior to birth of twins on 09.06.2002. The complaint against th e accused was lodged after three years of said incident. Moreover even after the incident of death of the twins, the couple cohabitated and complainant gave bir th to the male child. The learned trial court found that in absence of evidence of father of the complainant and any independent witness the evidence of complai nant, her mother and sister cannot be relied upon.

14. In this case, serious allegations against the accused has been leveled f or the offence committed by him sometime in the year 2002. No F.I.R. was lodged. The victim/complainant did not adduce evidence of neighbourers. Although a pers on may be convicted on only the basis of evidence of partisan witness, if their evidence is reliable and if no other evidence is available.

15. Although the neighbourers might not have witnessed the cruelty meted out to the victim, they could have certainly corroborated the prosecution case that the accused was living with another woman in absence of his wife but no such wi tnesses were examined.

16. The wife’s are subjected to cruelty and harassment within the four corne rs of the wall of the house. There may not be any independent witnesses who witn essed the occurrence or to whom the incident were reported. But the father of th e victim was the person who arranged money to satisfy the demand raised by the a ccused. Non-examination of the father casts serious doubt against the prosecutio n version. In view of above it is risky in accepting the evidence without corrobora 17. tion of their evidence by material witnesses. In the light of the settled princi ples with regard to interference in an appeal against acquittal, as discussed ea rlier, this court finds that the ultimate arrived at by the trial court needs in interference.

18. f this judgment. In result, the appeal is dismissed. Send down the LCR alongwith a copy o