Criminal Appeal No. 38 of 2004 · The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 1142 of 2019 Tanmoy Deb --------- Versus ..… Petitioner 1. The State of Jharkhand 2. Smt. Manshi Dev ….. Opp.Parties ---------- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD --------- For the Petitioner : Mr. K.S. Nanda, Advocate For the State For the O.P. No. 2 : Mr. Aashish Kumar, Advocate --------- J U D G M E N T : Mrs. Lily Sahay, A.P.P. 14/07.03.2024 This Criminal Revision Application has been filed on behalf of the petitioner challenging the judgment dated 27th May, 2019 passed by Shri Sanjay Kumar Singh No.1, learned Additional Sessions Judge-XII, Hazaribagh in Criminal Appeal No. 38 of 2004 by which appeal preferred on behalf of the petitioner has been dismissed, thereby affirming the judgment of conviction and order of sentence dated 16.02.2004, passed by Shri Krishna Kumar, learned S.D.J.M., Hazaribagh in connection with Sadar P.S. Case No. 55/1998, G.R. No. 260 of 1998, T.R. No. 104 of 2004, by which the learned Magistrate has convicted the petitioner for the offence under Section 498-A of the I.P.C. and sentenced him to undergo R.I. for two years although the learned S.D.J.M. has acquitted the other persons namely Tapomoy Deb, Bibhuti Bhushan Dev and Smt. Maya Deb for the charge under Section 498 A of the I.P.C. The learned S.D.J.M. has also acquitted the father-in-law, namely 2 Bibhuti Bhushan Dev, Mother-in-law, namely Smt. Maya Deb and Brother-in-law, namely Tapomoy Deb for the charges under Sections 323, 354, 420 and 120 B of the I.P.C and Section 3/4 of the Dowry Prohibition Act. The petitioner, has also been acquitted for the charge under Section 323, 354, 420 and 120 B of the I.P.C. and Section 3/ 4 of the Dowry Prohibition Act by the learned Court below. 2. The case of the complainant, as per complaint petition, in short is that complainant Manshi Deb was married to accused Tanmoy Deb on 09.08.1996 at Suresh Colony, Hazaribagh. Thereafter, she went to Chitranjan Park, New Delhi along with her husband. At Sasural, she was residing with her husband along with mother-in-law, father-in-law and one Devar. It is further alleged that after two months the behaviour of her husband and his family members changed towards her and they started demanding the price of Car which was purchased by them as well as Rs.50,000/- cash to purchase some more furniture and house hold articles and because these demands were not fulfilled, so she has been continuously subjected to cruelty by them. They used to assault her and her mother-in-law used to throw ice tray, bunch of keys and hot water upon her. They used to tease her by this way. She has been subjected to cruelty, mental and physical both. On some occasion they did not permit her to meet her brother and mother who had arrived at Delhi to meet her. It is also alleged that her mother-in-law demanded dowry from his brother. 3 It is also alleged that once husband and father-in-law of the complainant arrived at her brother’s house at Suresh Colony and there they started shouting by taking the name of her brother. It is also alleged that they were speaking abusive words to his brother. It is also alleged that the complainant requested them not to do so but later on, they returned back with giving threatening. 3. Heard Mr. K.S. Nanda, learned counsel for the petitioner, Mrs. Lily Sahay, learned A.P.P. for the State and Mr. Ashish Kumar, learned counsel for O.P.No.2. 4. Learned counsel for the petitioner has submitted that the impugned judgments of conviction and sentence passed by the learned Court below are illegal, arbitrary and not sustainable in the eye of law. It is submitted that the judgments passed by the learned Court below are merely based on conjecture and surmises. It is submitted that the learned Court below has failed to consider the contradictory evidence of the prosecution witnesses. It is submitted that the petitioner has never tortured his wife at her matrimonial home. It is submitted that the appellate court below ought to have also acquitted the petitioner, who is the husband of O.P. No. 2 as the
Legal Reasoning
learned Trial Court below has acquitted the father-in- law, Mother-in-law and the Dewar on the same set of evidence. It is further submitted that independent witnesses have not been examined by the petitioner. It is submitted that a false and concocted allegation have been levelled against the petitioner and his family 4 members. It is submitted that even the petitioner has offered Rs.10 (Ten) Lakh to O.P.No. 2 by way of one time settlement in First Appeal No. 130 of 2011 in the light of the order passed by the Division Bench of this Court. It is submitted that evidence of prosecution witnesses are not reliable. It is submitted that evidence of P.W.1, P.W. 2, P.W.3 and P.W.4 as well as P.W.6 and P.W.7, namely, Deobrat Mitra, Malti Mitra, Ashok Tiwari, Subhash Giri, Rajesh Ranjan and Tapti Mitra respectively are also not reliable. It is submitted that the evidence of P.W.5, i.e. the Informant Mansi Devi is also not reliable. It is submitted that the defence of the petitioner have not been considered by both the learned Courts below. It is submitted that the petitioner has remained in custody for more than 100 days after filing of this Criminal Revision Application and he was granted bail vide order dated 09.4.2020 passed by the Co-ordinate Bench of this Court and he has also remained in custody for certain period during trial. It is submitted that as the matter has been settled between the parties and the petitioner has made payment of Rs.10,00,000/-[Rupees Ten (10) lakh] to the O.P. No. 2 as payment of towards one time settlement and hence, the petitioner may be acquitted for the offence under Section 498-A of the I.P.C. 5. On the other hand, the learned A.P.P. submitted that the impugned judgments and sentence passed by the learned Court below are fit and proper and no interference is required from this Court. It is submitted that the Courts below have appreciated the evidence of all the witnesses and have committed no 5 illegality by convicting the petitioner for committing the offence punishable under Section 498-A of I.P.C. It is submitted that the informant merely lived in her matrimonial home for around two months. It is further submitted that the payment of Rs. Ten (10) lakh (Rupees 10,00,000/-) by the petitioner to the O.P. No. 2 has been subsequently made. It is submitted that the prosecution has successfully proved its case against the petitioner under Section 498-A of the I.P.C. and hence, this revision may be dismissed. 6. Learned Counsel for the O.P. No. 2, after adopting the submission of the learned A.P.P., has submitted that this Criminal Revision Application is devoid of merit. It is submitted that the petitioner along with his family members had tortured and assaulted the informant-O.P. No. 2 and even she was subjected to sexual harassment at her matrimonial home. It is submitted that although the other persons, i.e.the father-in-law and mother-in-law and Devar have been acquitted by the learned Court below but the O.P. No. 2 has suffered a lot at the hands of the present petitioner and his family members. It is submitted that the O.P. No. 2 is not ready for compromise. It is submitted that the PW 1, PW 2, PW3 and PW 4 had fully supported the case of the O.P. No. 2 that the O.P. No. 2 has suffered physical and mental harassment at the hands of the petitioner and the other in-law members. It is submitted that PW 5 is the informant-O.P. No. 2 and she has fully supported her case. It is submitted that the husband-petitioner had compelled the O.P. No. 2 to transfer the vacant land, which is situated behind the 6 house of the father of the O.P. No. 2, in her name and hence, this Criminal Revision Petition may be dismissed. 7. Perused the Lower Court Records and considered the submission of both sides. 8. It transpires that the informant, namely Manshi Deb had filed Complaint Case No.472/97 before the learned C.J.M., Hazaribagh against the petitioner and her in-law members on 07.01.1998 and which was sent to the police for investigation under 156 (3) Cr.P.C. for investigation by the C.J.M. giving rise to Sadar P.S. Case No. 55 of 1998 dated 07.02.1998 against the petitioner Tanmoy Dev and
Legal Reasoning
three others namely, Bibhuti Bhushan Deb, Smt. Maya Deb and Tapomay Deb under Section 498-A, 420, 354, 326, 323 and 120 B of the I.P.C. 8. The police, after investigation, had submitted chargesheet against the petitioner and three others, namely Bibhuti Bhushan Deb, Smt. Maya Deb and Tapomay Deb under Section 498-A /420/354/120 B of the I.P.C. and Section 3/ 4 of the Dowry Prohibition Act on 08.10.1998 before the learned C.J.M., Hazaribagh and the learned C.J.M., Hazaribagh has taken cognizance under Section 498-A /420/354/323/120 B of the I.P.C. and Section 3/ 4 of the Dowry Prohibition Act on 08.10.1998. 9. After supplying the police papers to the accused persons, including the petitioner, charges were framed against the petitioner and three others under section 323, 498-A, 354, 120, 420 I.P.C. and Section 3/ 4 of Dowry Prohibition Act on 18.12.1999 7 and to which they pleaded not guilty and claimed to be tried. 10. During trial the prosecution has got examined seven (07) witnesses, who are as follows:- (i) P.W. 1 is Debabrata Mitra, (ii) P.W. 2 is Malti Mitra, (iii) P.W. 3 is Ashok Tiwari, (iv) P.W. 4 is Subhash Giri, (v) P.W. 5 is Manshi Deb, (vi) P.W. 6 is Rajesh Ranjan and (vii) P.W. 7 is Tapti Mitra 11. In support of her case, the complainant has got marked following documents as exhibits, which are as follows: (i) Ext. 1 is the Inland letter, dt. 17.10.1996 (ii) Ext. 2 is the letter dated 05.03.2007, (iii) Ext. 3 is the notice dated 20.11.1997, (iv) Ext. 4 is the reply to the notice, dated 03.12.1997 (v) Ext. 5 is the complaint petition, (vi) Ext. 6 is the endorsement on compliant petition and (vii) Ext. 7 is the formal F.I.R. 12. Although, no defence witness has been examined on behalf of the petitioner and others, however, the following documents were marked as Exhibits in support of their case, which are as follows: (i) Ext. A to A/1 is the Inland letters dated 31.01.1997 (ii) Ext. B is the Inland letter dated 12.03.1997, (iii) Ext. C is the letter written by Malti, (iv) Ext. D is the Post Card letter written by Manshi Deb (v) Ext. E is letter dated 30.05.1997, written by Manshi Deb. 13. So far as evidence of prosecution witnesses is concerned, P.W.1 is Debabrata Mitra, who is a 8 teacher and younger brother of the informant and has stated during his evidence that his sister was married with Tanmay Deb, i.e. the petitioner on 09.8.1996 at Hazaribagh at his residence and at that time the petitioner Tanmoy was working as an Assistant Manager in Central Company and at the time of marriage Rs.50,000/- cash, draft for Rs.16,000/- for furniture and ring, watch and silver chain was given by them and they had given jewellery of Rs. 2,00,000/- to his sister and she went to her matrimonial home where she lived for around Nine (09) months. In the meantime, two months after the marriage, they received an Inland letter of his sister and brother-in-law in the writing and signature of Tanmoy Deb, i.e. the letter marked Ext.1. Thereafter, both he and his mother went to Delhi to visit the matrimonial home of his sister in the house of the petitioner Tanmoy Deb and found her sister in proper health. Firstly, they were not allowed to meet her and on the second day when they were returning, then his sister met and informed them that she was being tortured by his mother-in-law and even the food was not provided to her and even hot water was sprinkled upon her and even her mother-in-law had assaulted by throwing a Tray of Ice. They wanted to take her back but she was not allowed to accompany them. Then, he returned to his home at Hazaribagh. In the month of December, 1996, he had gone to Delhi and in January, 1997 and he along with his two friends, namely Abhiraj Vikash and Indrajit Kumar had gone to the matrimonial home of his sister to give New Year 9 greetings and when he entered the house, then the mother-in-law taunted them that they used to keep relationship with the people belonging to the same social status and social upbringing of her sister was much below and they have sent sister to her matrimonial home without anything. Then, they had returned without meeting his sister and disclosed the fact to his mother and his mother wrote a letter that her daughter and son-in-law be allowed to come to Hazaribagh and which was replied by Tanmoy Deb, i.e. the petitioner that they will keep relationship with the people of similar social status and asked him to take back her sister from New Delhi and thereafter, he brought her sister back from Delhi to Hazaribagh in the month of May, 1997. Then his sister disclosed in Hazaribagh that her Devar had assaulted her and her mother-in-law, husband used to torture her and her father-in-law used to keep evil eye upon her. Thereupon, on 14.11.1997, the petitioner Tanmoy Deb and his father Bibhuti Bhushan Deb came to his house at around 8 a.m. in the morning and at that time he was not in his house and when he came back at 10 a.m. then he found huge crowd near his house and Ashok Kumar Tiwary and Subhash Giri and Ranjit Kumar informed him that his brother-in-law and his father came and abused and had demanded dowry and had left. Thereafter, he sent legal notice through a counsel by registered post, which they refused to receive. 14. During cross-examination he stated that he does not remember the date of marriage of son of Tulsi 10 Ranjan Sarkar. However, he along with his mother and younger sister Tapti Mitra and his friend Sharda Nath, Ranjit Kumar and Ashok Kumar were present at the time of settlement of marriage and at that time dowry was demanded and Rs.50,000/- was demanded for expenses for performing the marriage. He asserted to have stated before the police for demanding Rs.50,000/- for marriage expenses by the accused. He further handed over the Demand Draft of Rs. 16,000/- drawn on the State Bank of India for purchasing furniture on demand of ‘Fufa’ of the Groom, i.e. the petitioner. His sister remained in her matrimonial home for around nine months after the marriage and in the meantime he received five-six letters from his sister and letter of his brother-in-law was received. He has handed over the two letters written by his brother- in-law before the Court, which were marked as Ext. 1 and Ext. 2. He also read the letters of his Sister, which were written to her mother and him and younger sister. However, in one letter, they had demanded dowry indirectly and for torturing her sister but the said letter was not given to the police as it was not demanded by the police and he had not seen the occurrence of 14.11.1997. His sister and brother-in- law had written that she is suffering from T.B. and then he went to Delhi with his mother on 22.10.1997 although this date is not mentioned in the complaint but they have mentioned for going to Delhi. They had stayed at Delhi for one day and they had not talked with any person and there were no struggle for entering in the house. The condition of his sister was 11 proper and she had not suffered from T.B., however, there was no talk with his brother-in-law, his brother and father with him. He had also not contacted any authority at Delhi. 15. During further cross examination he has stated that two months after marriage, dispute arose and during the year 1997, there was full dispute and his mother had made correspondence. Although, he showed ignorance for writing letter to his sister but on being produced the letter marked as Ext. ‘A’ and ‘A’/1 he admits that one letter was written by him and one letter was written by his younger sister Tapti. He also admitted that there is nothing mentioned in this letter, i.e. Ext. A/1, which shows that his elder sister was tortured in her matrimonial home. On being shown the letter written by her mother, he identified the second letter marked by Ext. ‘B’ and admitted that some portion was written by her mother and some portion (middle) was written by his younger sister Tapti and lastly it bears his writing and signature also. He admitted that his sister was served with legal notice. He showed ignorance regarding institution of a case of restitution of conjugal rights against his sister and he learnt the same on receiving of summon. Tanmoy Deb, i.e. petitioner has not written any letter to him nor any letter in the name of St. Xavier School, ‘Deodatta’ Mitra. 16. Thus, from the evidence of P.W.1, it would appear that he had tried to support the case of dowry and mental and physical torture of his sister and for writing letter and he also stated that his sister 12 had written several letters to him and his mother. Evidence of P.W. 1 will be seen later on also. 17. P.W. 2 is Malti Mitra, who is the mother of the O.P. No. 2 and has stated during her evidence that she solemnised the marriage of her daughter Manshi with the petitioner-Tanmoy Dev on 09.08.1996 at Hazaribagh from her residence and at that time the petitioner Tanmoy Dev was working as an Assistant Manager in a Company and she had given Rs. 50,000/- for marriage expenses and a Bank Draft of Rs.16,000/- for furniture, gold chain to the Bride Groom, i.e. the petitioner and given jewellery of Rs.Two (2) lakh, however, some demand was also made from the side of the Bridegroom, i.e. the petitioner and after marriage her daughter went to her matrimonial home. Once her daughter had disclosed when she came to her house that her jewellery has been taken away by her mother-in-law and father-in- law and thereafter, both the petitioner and O.P. No. 2 went to Delhi after seven days after the marriage and her daughter lived in Delhi for around nine months but she lived properly for only one-two months. Thereafter she was being tortured by her father-in- law, mother-in-law, her husband, i.e. the petitioner and her Devar by demanding dowry. Even her daughter and son-in-law had written letter to her and her daughter was taunted in her matrimonial home for suffering from T.B. even by her son-in-law, i.e. the petitioner. On receiving letter, she sent her son Debaobrata Mitra, i.e. P.W.1 and when his son reached there the mother-in-law of Manshi became 13 angry for arriving at her place without any article, however, she went inside and saw that her daughter was healthy and she was not ill but she disclosed that her mother-in-law had threw boiled water upon her and even assaulted her by throwing Ice Tray and she was not giving proper meal but waste food was provided to her. Although, they wanted to take away Manshi, i.e. O.P. No. 2 with them but she was not allowed to accompany with them and hence, they returned to Hazaribagh. When his son went to Delhi in December and went to meet his sister, then mother- in-law of her daughter taunted for sending his sister naked and commented on their family standard that they are very low, whereas they, i.e. the in-laws are of high standard. In the meantime, she continued to receive letters and ultimately she wrote letter for sending Manshi in May, 1997 and the petitioner Tanmoy Deb had written letter to send her son, i.e. P.W.1. She has proved the letter written by Tanmoy Deb which was marked as Ext. (However, Number not given by the J.M., i.e. Presiding Officer). Thereafter, her son went to Delhi in the month of May, 1997 and brought back Manshi with him and where the Informant- Manshi disclosed that all the accused persons used to torture her and the intention of her father-in-law is not proper and some time he speaks of making her mad and she disclosed that she has been sent back to bring back Rs.50,000/- so that vehicle may be purchased and also for transferring the land behind the house in her name. Thereafter, on 14th November, Bibhuti Bhushan Deb and Tanmoy Deb, i.e. the petitioner came but she 14 and her son were not present at that time and they asked Manshi, i.e. informant to demand Rs.50,000/- cash and also to get registered the land in her name and they arrived without any information and left after creating nuisance and they further threatened to arrive in the month of December, but later on a legal notice was sent from their side which was replied by them by a registered letter. Then they sent another letter which was not received by them and the said letter returned undelivered and further stated that Manshi, i.e. the O.P. No. 2, is still living in their house. 18. During cross-examination, she admitted that at the time of negotiation of marriage of Manshi with Tanmoy, i.e. the petitioner, they learnt that Tanmoy, i.e. the petitioner had given divorce to his first wife, still, she performed the marriage of her daughter Manshi with the petitioner Tanmoy because he was good and was doing good job and his family status was proper. She had handed over Rs.50,000/- to one B.B. Deb, i.e. the father-in-law of Manshi by withdrawing money from the Bank, which was withdrawn by her son, but she cannot say the date and month of giving the amount. She had handed over Rs.16,000/- to Shri Tulsi Ranjan Sarkar, i.e. Fufa of the Bridegroom, i.e. the petitioner by Demand Draft and she is on visiting terms with the family of Tulsi Ranjan Sarkar for the last two years and there is no dispute with Tulsi Ranjan with her family members. Her son is doing job for last eight years. Even at the time of marriage of her daughter he was in job for around four –four and half years. Her son is living 15 with her and he is unmarried and they have got agricultural land in the village and have got three acre of land in Radha Nagar village and have also got house and agriculture from which they maintain the family and she also gets Rs.1,500/- as pension and she has got a bank account. She denied the suggestion that the petitioner had paid Rs.50,000/- to her daughter. However, she accepted that her son-in-law has deposited Rs. 50,000/- in the Court, which was withdrawn by her daughter from the Court, but she was not aware as to where the said amount was deposited by her daughter. She had gone to Delhi in the matrimonial home of her daughter after two months of her marriage and she along with her son Debabrata had stayed in their house for one day, however, they were not given proper respect, rather they were abused. After returning from Delhi, she wrote a letter to her Samdhi and Samdhan marked as Ext. C in which she admitted that she has not complained her Samdhi and Samdhan because her daughter was tortured in her matrimonial home. 19. She has further stated that her daughter has instituted this case without informing them, however, her daughter has not received any notice from the Court of Delhi before instituting the case but she received a legal notice from the counsel but she is not aware of the status of the said notice. She further stated that her son-in-law and his family did not socialise with the nearby people of the residence of her son-in-law and she has also not talked with them, 16 however, she had complained before Tulsi Ranjan, who were present at the time of marriage of her daughter. When her daughter returned from Delhi in the year 1997, then she has complained. However, she has no relation with the wife of Tulsi Ranjan. She further admitted that her son had gone to Delhi and met her daughter Manshi on 1st January at Delhi. Even on the occasion of Dashhara, her son-in-law had arrived at her residence in the evening, but she is not aware whether he was given food or not. She denied that her son-in-law came in June, 1997. However, her son-in-law met Manshi in the month of October and demanded money from her, but she had not talked with her son-in-law. However, he arrived in June, 1996 before solemnization of marriage and while her daughter was in Delhi, then her father-in-law asked her to get registered land in her name. 20. Thus, from scrutinizing the evidence of P.W. 2, i.e. the mother, it is evident that she supported the case of her daughter and has stated that her daughter has not been kept properly in her matrimonial home, however, there is no specific allegation against the petitioner and very vague allegation is levelled against him. Even it is evident from the letter marked as Ext. C that she had made no complaint before her Samdhi and Samadhan with regard to torture of her daughter. It appears to be a case of mis-matched marriage and the family standard of both the sides appears to be different. 21. P.W.3 is the Ashok Tiwari, who is the Territory Manager in the World Wide Immigration 17 Consultancy Services, Bokaro, has stated during his evidence that Manshi Deb, i.e. O.P. No. 2 is married to Tanmoy Deb, i.e. the petitioner in the year 1996. In the year 1997, while he was present in the S.T.D. Booth in the Suresh Colony, then he had seen a crowd near the house of P.W.1, i.e. Debabrata and on hearing noise, he went there and had seen that the husband and father-in-law of Manshi Devi, i.e. O.P. No.2 were quarrelling and they were speaking about money, however, he could not understand it properly as they were speaking in Bangla language, but he heard about money. During cross-examination, he stated that he had identified Tanmoy Deb, i.e. the husband of Manshi on the same day, but does not remember who had disclosed this fact to him. Even prior to his arrival certain talk was going on and people were speaking in Bangla language and hence, he could not understand. 22. Thus, from scrutinizing the evidence of P.W. 3, Ashok Tiwari, it is evident that he is a hear-say witness and he had not supported the prosecution case on the point of assault and demand of dowry and even he admitted that the conversation was in Bangla language, which he could not understand and hence, evidence of P.W. 3 is not reliable. 23. P.W. 4 is Subhash Giri, who is a friend of brother of the informant and has stated that one incident took place in the month of November, 1997 at around 7 a.m. and at that time he was in the S.T.D. Booth with his friend Ashok Tiwari and then he had seen certain movements in the house of his friend 18 Devbrat Mitra and he along with Ashok Tiwari went there and found that certain noise was taking place which was at a distance of 50 meters from the booth. He went to the P.O. and found that the husband and father-in-law of Manshi Deb, i.e. O.P. No.2 were creating nuisance and telling them not to take her to Delhi and they were talking in Bangla language. During cross-examination, he admitted that Debabrats Mitra was his friend, but does not know the name of husband and father-in-law of Manshi Devi but could identify them by face. They were present at the S.T.D. Booth of one Navin Singh. He further stated that the occurrence took place at 7/8 a.m. in the morning, but he does not remember the date, but at that time 25-30 persons were present at the place of occurrence, but he cannot say the name of any person. 24. Thus, from scrutinizing the evidence of P.W. 4, it is evident that he had not supported the prosecution case on the point of assault and demand of dowry, but he claimed to be the witness on the point of giving threatening to Manshi for not taking her to Delhi in the morning, at 7-8 a.m., but this incident appears to be absurd as it cannot be believed that the husband and father-in-law would go to the house of her wife/daughter-in-law for threatening her for not taking her to her matrimonial home. Even he failed to say the exact date of occurrence, though he had given the time. The absence of P.W.1 and P.W. 2 during the occurrence from their residence does not 19 support this fact and hence the evidence of P.W. 4 is not reliable. 25. P.W. 5 is Manshi Deb, i.e. the informant of this case. She has stated during her evidence that she was married to Tanmoy Deb, i.e. the petitioner on 9th August, 1996 as per Hindu rites and customs at the residence of her brother in Hazaribagh situated at Suresh Colony. Prior to marriage, the accused Tanmoy Deb and his father Bibhuti Bhushan Deb, uncle Ashish Ranjan Deb had arrived to see her and asked to pay Rs. 50,000/- for marriage expenses and further Rs.16,000/- for furniture, then her mother accepted the demand. Even on the date of her marriage, her mother had given jewellery of Rs. Two (2) lakh, clothes, utensils, Bedsheet etc. to her and after marriage, she went to meet Tulsi Ranjan Sarkar, who is ‘Fufa’. Thereafter, her husband took her to New Delhi to her matrimonial home and where they lived as a husband and wife for around one month properly and thereafter, the accused persons, i.e. her husband, father-in-law-Bibhuti Bhushan Dev, Mother-in-law- Maya Deb and her Devar-Tapomoy Deb started torturing her physically and mentally and they used to assault and abuse her also and they did not give her proper meal and they used to compel her to go to kitchen in the morning after taking bath and due to which she started suffering from cold and cough and then accused persons started taunting her for suffering from T.B. and she was compelled to sit outside Verandah of the house and they asked her to demand money for her treatment from her Maike. Her 20 mother-in-law used to throw hot water upon her and she even had thrown ice tray and bunch of keys for assaulting her and even intention of her father-in-law was bad and her Devar Tapomoy Deb used to blame her for committing theft and used to taunt her that phone of her lover had come whenever she got a call on the phone. They demanded money for repairing the house and due to which she suffered from excess mental and physical torture and thought of committing suicide. She is an educated lady and after marriage, she had carried her matriculation and graduation certificate, but her husband threatened to burn those certificates but she had not disclosed these facts to anyone as no person from the neighbourhood came to the residence of her father-in-law and mother- in-law and she was not allowed to meet any person. Once her brother came to meet her but she was not allowed to meet him, however, she was allowed to meet her brother and mother when they came. 26. On 1st January, 1997, when her brother came to meet her, then her mother-in-law charged him for marrying his sister without any dowry and for sending his sister naked without anything and she further taunted that social status of her Maika is very low and status of her matrimonial home is very high and she compelled her to demand Rs. 50,000/- from her Maike towards dowry. Thereafter, her mother sent a letter to the accused person. She further stated that her brother came and brought her back to Hazaribagh but her jewellery and other articles and certificates were kept by the accused persons. In October, 1997, 21 her husband came to her and demanded Rs.50,000/- but she informed him that her mother is not in a condition to pay Rs.50,000/- in cash. On 14th November, 1997, her husband and her father-in-law came to Hazaribagh at 8 a.m in the morning and started shouting outside the gate by taking the name of her brother, then she asked him to come inside the house and they did not come and started demanding Rs.50,000/- and asked her to get the land transferred in her name and they further assaulted her and abused her. Due to such noise, the nearby people assembled and then they fled away. She has proved the letter marked as Ext. 3, which was sent by her husband and thereafter, she had sent reply to the said letter, but the said letter returned unserved and is marked as Ext.4. Thereafter, she had sent notice by registered post also. On returning of registered letter, then she has instituted the complaint case before the learned Court. She has proved her writing and signature and signature of her advocate on the complaint. She has stated surprisingly that if the accused persons are convicted, then she will not be happy. Her marriage was performed by her family members with consent of all and she had lived in her matrimonial home for nine months and during this period her brother arrived twice-thrice and at that time only her mother-in-law was present and she disclosed for the first time on 1st January, 1997, which has been mentioned in the complaint also, but she does not remember about giving her statement before 22 the police. However, she had not complained about the behaviour of the accused person for the first time in October, 1996 when her brother met her. She admitted that her brother Debabrata Mitra, younger sister Tapti Mitra and her mother are sitting in the Court. 27. She further stated that Bibhuti Bhushan Deb talked about the expenses of her marriage with her mother and cash amount was paid and the said amount can be told by her brother. She stated that handing over of Rs.50,000/- cash to Bibhuti Bhushan Dev was not mentioned in the complaint case but she disclosed this fact before the police. However, she has not disclosed everything in the complaint as it was not found necessary. She further stated that a draft of Rs. 16,000/- was given to Tulsi Ranjan in the year 1996. 28. It transpires that during the course of deposition the witness became unwell on 12.07.2001 and as such her evidence was adjourned to 21.07.2001. On 21.07.2001, 01.9.2001, though she was present and in the meantime the Presiding Officer was transferred and the further cross-examination of the witness was recorded by the new P.O. on 11.01.2002. She has further stated that on the first day of her cross examination she was not feeling well but she is not unwell. She stated that after one month of marriage, she was misbehaved by her in-law members, though she could not say the exact date of misbehaviour. She lived in her matrimonial home for 23 around nine months and during this nine months she was suffering from cold and cough in the month of September. She further stated that after the medicines were given to her by her in-law members, she developed wound and she was treated by a doctor and her X-Ray was done and she took medicine for around one week, but she was not aware of the name of the doctor, to whom her husband has taken her for treatment, however, she has not mentioned all these facts in her complaint. However, she has also not disclosed the fact in her complaint that one day while she was on the roof and Sari and petticoat got lifted a little above accidentally then her father-in-law came and asked her to set it properly and for making her a wife. Thus, she was disturbed by the conduct of her father-in-law as it was of substandard quality, but she has not disclosed this fact even to his lawyer, but had disclosed such fact to her mother and brother. Although there is bath tub in her matrimonial home but there is no Geyser. The accused persons further taunted her that she is suffering from T.B. and even she was kept in the Varandah of the house. Her mother-in-law used to throw hot water at her, which has not been disclosed in her complaint. Even her husband has sent legal notice upon her in November, 1997, thereafter, in December, 1997, she has instituted the present case. She admitted that her nick name is Munmun also. 29. She has identified the post card written by her, marked as Ext. D and its English translation is 24 marked as X for identification. She further identified her signature on the letter in her writing and signature marked as Ext. A and its English translation is marked as X/1 for identification. She further stated that after institution of her case, High Court has directed to pay Rs.50,000/- to her, but she refused to keep the said amount. She has also filed a case for her maintenance but she is not aware of the result of the said maintenance case and she is not getting any maintenance. She further stated that salary of her husband is not known to her as she had not seen, but her father-in-law and mother-in-law can say. She further stated that her sister, sitting in the Court, is unmarried and aged around 26 years but she is not ready to negotiate her relation with her Devar. She had denied the suggestion for implicating the accused persons as they failed to negotiate the marriage of her Devar with her sister. 30. Thus, from scrutinizing the evidence of P.W. 5, it would appear that she has supported the prosecution case with regard to mental agony suffered by her in her matrimonial home, although she has not expressed everything in the complaint petition and during her examination-in-chief, but on being compelled she stated that her father-in-law had used filthy language to her when he found her in an uncomfortable position. 31. The defence has proved Ext.D and Ext.B, which were letters written by her during her cross- examination, which were written in Bangla language 25 and its English translation were marked as X and X/1, which is the translated copy of Ext. E. 32. It is evident that the wife O.P. No. 2 has written letter dated 30.05.1997 to her sister stating therein to come to her and take her back. Although the translated copy of Ext. A, Ext. B and Ext. C were not on the record of the case as it was not done by the earlier P.O., as was done by his predecessor while marking Ext. D and Ext. E by taking translated copy, but still it is a fact that she has written letter to her parental home on 12.03.1997. The defence has proved Ext. A, Ext. B and Ext. C to show that there was cordial relationship between the parties and there were no complaint. Since the translated copy is not available in this record and hence, this Court is not putting much emphasis as it appears to be in favour of the accused petitioner and his family members. 33. However, so far as document marked as Ext. 1 is concerned the same is the scanned copy of the letter dated 17.10.1996 written by the petitioner to his mother-in-law, i.e. mother of the informant by making comments upon her for marrying her daughter with the petitioner, who is suffering from T.B. and the petitioner has described his wife as a T.B. Patient having two wounds on both side of her back. He has further charged her for giving bribe to Mr. Roy Sarkar for getting her daughter married in the well to do family of the petitioner. He even taunted his mother- in-law for not buying a ceiling fan and tube light for her house and there is no equality between the two families on socio economic background. He was also 26 annoyed by the fact that in none of the letters his name was mentioned and no gift was given to him on the occasion of Durga Puja and even the mother is looking only for her daughter. Thus, Ext.1 clearly shows that this petitioner, who was charging his mother-in-law for getting the informant married to his family, which is different from the family of the informant and the Informant is a T.B. patient although there is no such T.B. report as there is no prescription or any other report that she was ever suffering from T.B. 34. Moreover, it has come in the evidence of P.W.5, i.e. the informant that she was compelled to do kitchen work in the morning and in the evening after taking bath and due to which she started suffering from cold and cough for sometimes and for which she was branded as a T.B. patient. This also shows taunting at the hand of her in-law members. 35. Ext. 2 is the another letter dated 05.03.1997 written by the petitioner Tanmoy to his mother-in-law stating therein that they do not have any custom of visiting the in-laws after marriage and he emphasised that all relationships are based upon equality and he advised her to send Bapi, i.e. her son to pick up Manshi, i.e. the informant in the month of May and drop her back. Thus, Ext.2 also reveals that the petitioner was aggrieved by the marriage and he was not satisfied with his in-law members and their background. 27 36. Ext. 3 is the legal notice dated 22.11.1997 sent by Shri B.H. Ansari, Advocate informing her to return to her matrimonial home as she had not returned to her matrimonial home after she was taken by her brother on 27.05.1997 from her matrimonial home. It is also stated that in the month of August, 1997 a letter was sent by the petitioner to the Informant-O.P. No.2 return to her matrimonial home as his mother was ailing and he could not do domestic work and there was none to look after her. 37. Ext. 4 is the reply dated 03.12.1997 to the legal notice dated 20.11.997 denying the allegations and pointed out though the petitioner was maintaining Car and was having washing machine and modern articles etc. but it was kept covered only to show themselves rich and even the Fridge was kept to preserve the prepared food for 10-15 days. Even on 27.05.1997, when the informant left for her Maike with her brother, then she was sent with an Attache with two sets of ordinary clothes. 38. It transpires that Ext. 5 is the F.I.R., which shows that the Informant was having strained relationship with the petitioner and her in-law members. 39. It further transpires that the I.O. of the case had not been examined and therefore, the cruelty taking place at her matrimonial home at Delhi is not proved from the evidence of the I.O. and it remained uncorroborated apart from the sole testimony of the informant, i.e. P.W.5. 28 40. It is further evident that apart from taking all incidents at Delhi in the matrimonial home of the informant, there is no specific overt act against the petitioner except for demanding and shouting at her residence on 14.11.1997 which also appears to be cryptic as the witnesses, i.e. P.W.3 and P.W.4 could not understood. 41. From the conjoint reading of the evidence of P.W. 3, namely Ashok Tiwari and P.W.4, namely Subhash Giri and legal notice dated 20.11.1997 marked as Ext. 3 by the Lawyer it would appear that petitioner along with his father had gone to the house of the informant for taking her back but the matter could not be settled. 42. This Court, at the first instant, was not believing the evidence of P.W.3 and P.W.4, but from perusal of legal notice, i.e. Ext.3, it would appear that the petitioner has himself admitted that he had gone to the house of his wife, where he was forced to write on certain papers at the instant of her brother. Therefore, it would appear that the petitioner had tried to bring back his wife to her matrimonial home, and whatever be the circumstances and thoughts in his mind and he had merely sent legal notice to the informant to return to her matrimonial home, but she had instituted a complaint case against him, which resulted into institution of Sadar P.S. Case No.55 of 1998. Therefore, this is a case where the life of both the sides were disturbed due to one small mistake made by both the sides. 29 43. No doubt, the petitioner wrote letters to his mother-in-law, namely Malti Devi vide Ext.1, Ext.2 and had shown his annoyance that his mother-in-law was seeking presence of her daughter only and not him and he had some complaints for not receiving good gifts and other articles from the family of the informant and he was aggrieved to some extent that the family of the informant was in the lower strata of the society, whereas his family was of a high society, but that was not the real intention. It can be a minor grievance over trivial issues, but it should not have led to institution of the case. 44. It further transpires that petitioner has filed I.A.(Cr.) No. 3021 of 2020 on 19.03.2020, in which he has stated that he has paid Rs.10,00,000/- [Rupees Ten (10) Lakh] as one time settlement/permanent alimony to the Informant-O.P.No.2, in view of the order passed by the Division Bench of this Court in First Appeal No. 130 of 2011, which was dismissed, however the petitioner was directed to pay a sum of Rs.10,00,000/- [Rupees Ten (10) Lakh] as one time settlement, to his wife but his wife did not file compromise petition before the appellate court inspite of receipt of money of one time settlement. Apart from this the petitioner has paid a sum of Rs.50,000/- to the O.P. No. 2 at the time of grant of bail. 45. It has also been pointed out in the said I.A.(Cr.) No.3021 of 2020 that the petitioner has married with another lady and now he has a small child of two years from this marriage. 30 46. From perusal order dated 23.11.2016 passed in a F.A. No. 130 of 2011 by the Division Bench of this Court, it transpires that the informant- O.P. No. 2 has filed the said F.A. No. 130 of 2011 by challenging the judgment and decree dated 17.08.2011 passed by the learned Principal Judge, Family Court, Hazaribagh in M.T.S No. 115 of 2003, by which the marriage between the petitioner and the wife i.e. O.P. No. 2-informant has been dissolved by a decree of divorce and thereafter, a Division Bench of this Court has dismissed the said F.A. No. 130 of 2011 vide order dated 23.11.2016, by directing the respondent, i.e. this petitioner to the appellant, i.e. the informant-O.P. No.2 to pay Rs.10,00,000/- [Rupees Ten (10) Lakh] within a period of four months from today and Para 6 of the Order dated 23.11.2016 of First Appeal No. 130 of 2011 reads as follows:- “Para 6:- As we are not entering into the merits of case in which the divorce granted in favour of the respondent has been challenged by the appellant wife, but taking into account the irretrievable break down of marriage between the parties, in which the parties are living separately for about 20 years, we are of opinion that in the facts of this case one lump sum amount be paid by the respondent to the appellant for her maintenance, which we quantify to Rs.10,00,000/-, taking into consideration the standard of living of both the parties as also the price index in the present days. Accordingly, we, hereby, direct the respondent to make payment of 31 Rs.10,00,000/- (Rupees ten lakhs) as one time settlement, for the maintenance of the appellant wife, within the period of four months from today.” 47. Thereafter, one Contempt Case (Civil) No. 421 of 2017 was filed, which was disposed of on 19.7.2019 by a Division Bench of this Court, when it is admitted on behalf of the informant, i.e. O.P. No. 2 that order dated 23.11.2016, passed in F.A. No. 130 of 2011 has been fully complied with and payment has been made to the informant-O.P. No. 2. Photocopy of payment of R.T.G.S. in the account of the informant- Manshi Mitra of an amount of Rs. 3,00,000/-, Rs. 2,00,000/,Rs.1,00,000/-,Rs.1,00,000/-,Rs.1,00,000/- Rs.2,00,000/- (Total Rs. 10,00,000/-) on 27.03.2019 itself through United Bank of India have been shown as Annexure-A series. It further transpires that although the petitioner has been granted bail by a Co- ordinate Bench of this Court vide order dated 09.4.2020, but due to certain circumstances and also in view of the fact that he was living in Delhi and due to lockdown period, nobody was ready to stand bailors for him and he remained in custody for further two months and he had furnished his bail bond on and around 09.6.2020. 48. Thus, even due to subsequent event the marriage between the petitioner and O.P. No. 2 has been dissolved by way of one time settlement. 49. Although the informant has not come forward to file the joint compromise petition, but it is also evident that she has received Rs.10,00,000/- [Rupees Ten (10) Lakh] from the petitioner and she 32 has also received Rs.50,000/- from the petitioner at the time when the bail was granted to him by a Co- ordinate Bench of this Court. 50. Even after giving certain time, the joint compromise petition was not filed and hence order of this case was reserved for the first time on 04.10.2023, however, it was again heard on 22.01.2024 and has been fixed today for orders. 51. The petitioner was remanded in the case on 07.09.1998 although he was not granted bail by the learned Chief Metropolitan Magistrate, till 07.09.1998 to appear before the C.J.M., Hazaribagh, however, the C.J.M., Hazaribagh had allowed bail of father-in-law and mother-in-law of the informant under Section 437 Cr.P.C., but had rejected the bail petition of the petitioner on 07.9.1998. Thereafter, the petitioner was released on bail on 21.11.1998 in the light of order passed in B.A. 8738 of 1998 (R) by the Ranchi Bench of Patna High Court on payment of Rs. 50,000/- to the informant for her maintenance. Thereafter, the Criminal Appeal No. 38 of 2004 was dismissed. 52. It transpires that the allegations against the petitioner are vague and it is evident that during pendency of criminal appeal before the learned Court below, the High Court had already confirmed the judgment of grant of divorce passed by the learned Principal Judge and directed the petitioner to pay Rs.10,00,000/- (Rupees Ten lakh) to the O.P. No. 2 by way of one time settlement, which has not been considered by the learned Appellate Court below, while 33 passing the judgment dated 27th May, 2019 in Criminal Appeal No. 38 of 2004. 53.
Decision
In the result, the impugned judgment dated 27th May, 2019, passed by Shri Sanjay Kumar Singh No.1, District & Additional Sessions Judge-XII, Hazaribagh in Criminal Appeal No. 38 of 2004 and the judgment of conviction and sentence dated 16.02.2004, passed by Shri Krishna Kumar, learned S.D.J.M., Hazaribagh in connection with Sadar P.S. Case No. 55/1998, G.R. No. 260 of 1998, corresponding to T.R. No. 104 of 2004, are set aside and this Criminal Revision Application is allowed and the petitioner, namely Tanmoy Deb is acquitted for the charge under Section 498-A of the I.P.C. and the petitioner is discharged from the liability of his bail bonds 54. Thus, this Criminal Revision Application is allowed. Jharkhand High Court, Ranchi Judgment dated 7th March, 2024 A.F.R./s.m. (Sanjay Prasad, J.)