Sri Maran Nama Vs. State of Tripura - Court Judgment

B.D. Agarwal, J.

1. The appellant herein has been convicted for attempted murder of his second wife and has been sentenced to undergo Rigorous Imprisonment for 4 years and also to pay a fine of Rs. 5,000/- in default, S.I. for 6 months.

2. Being aggrieved with the conviction and sentence recorded under judgment and order dated 17-3-2008 passed by the learned Additional Sessions Judge, Belonia, South Tripura in Sessions Trial No. 53 (ST/B)/2007, the sole convict has preferred this appeal.

3. I have heard Mr. R. Dutta, learned Counsel for the appellant and Mr. R. C. Debnath, learned Special Public Prosecutor for the State. Also gone through the impugned judgment and evidence on record.

4. The criminal law was set in motion by filing an F.I.R. on 11-10-2007 by Smt. Jharna Nama alleging that the accused subjected her to physical and mental torture for non-fulfillment of demand of dowry. In the F.I.R., it was specifically alleged that on the previous night, when her husband returned home, she served him dinner. But the accused kicked the dish plate and attempted to kill her by pouring kerosene oil (a kind of inflammable fuel) on her body with a view to set her afire. Somehow, the prosecutrix saved her life and ran away from the scene and took shelter in the house of witness Swapan Debnath, P.W. 3, who was a Panchayat Member. From there, she went to the house of her relative Syamal Nama (P.W. 7) and spent her night there.

5. The aforesaid F.I.R. was registered as Baikhora P. S. Case No. 99/07 under Section 498A/307 of the Indian Penal Code, 1908 (T. P. C in short). After investigation, charge -sheet was submitted and the appellant was tried for the aforesaid offences.

6. In order to establish the offences, the prosecution examined altogether 13 witnesses. Thereafter, the appellant also examined one of his daughters as D. W. 1 to prove that the victim had herself poured kerosene oil to teach a lesson to her father/husband. However, in view of overwhelming evidence of attempt to murder, the trial Court has convicted the appellant under Section 307, I.P.C. At the same time, due to insufficient evidence, the accused/appellant was acquitted from the offence under Section 498A, I.P.C.

7. Sri Datta, learned Counsel for the appellant argued that since the appellant was in the habit of taking alcohol, it was not liked by his wife and as such, she poured kerosene on her body to make out a case of attempt to end her life. The learned Counsel also submitted that the trial Court has not given due weightage to the testimony of the daughter of the accused, which belies the theory of attempt to murder. The learned Counsel also submitted that even if the conviction is upheld, the sentence should be reduced, keeping in mind that the appellant has three children and his children are suffering due to prolonged detention of the appellant.

8. Before embarking upon the sustainability of the conviction of the appellant, it would be just and proper to have a glimpse of the legal position for deciding an offence against a woman. Equality before law, as enshrined in the Article 14 of the Constitution of India, is the epitome of the fundamental rights guaranteed to the citizen. The Constitution also prohibits discrimination on grounds of religion, race, castes, sex or place of birth. Article 21 of the Constitution confers a fundamental light to all the citizens of the country to live with dignity, free from exploitation. In order to implement these commands of the Constitution, various legislations have been enacted. To uphold the rules of law and with an avowed intention to provide an atmosphere where the citizens can lead a dignified life and to protect them from any kind of discrimination, more particularly gender based discrimination, the Indian Penal Code is being amended time to time. Similarly, introduction of Section 498A in the Indian Penal Code vide Amendment Act No. 46 of 1983 can be said to be the beginning of a new era to protect weak and docile married women, who were subjected to cruelty and harassment by their husbands and relatives. It was followed by insertion of Section 304B in the Penal Code providing severe punishment for the murder of a women for non-fulfilling the demand of dowry. Parallelly, Sections 113A and 113B were also inserted in the Evidence Act, 1872 to draw presumptions in the matter of abatement to suicide by a married woman and dowry death. In my opinion, these provisions must have been introduced so that offenders of crime against women may not escape the rigour of law due to loose knots in the prosecution case. Latest in the series is the enactment of the Protection of Women from Domestic Violence Act, 2005 to protect and curb widely prevalent offences of domestic violence. Despite amendments to the existing laws and enactments of various statutes, the graph of crime against women is still rising, without any abatement. Statistics show that the women are still exploited, molested, raped and discriminated and acquittal rates are abysmally high for such offences. Hence, it can be said that women are still at the receiving end not because of inadequate laws but, prima facie, due to lack of its implementation in proper spirit.

9. Having realized the gravity of the situation, the Hon'ble Supreme Court in catena of judgments has impressed upon trial of sexual assault and like offences against woman with extreme sensitivity. Without multiplying authorities in this regard. 1 would like to quote few trend setting observations of the Hon'ble Supreme Court given in the internationally celebrated case of State of Punjab v. Gurmit Singh and Ors. reported in : (1996) 2 SCC 384 : AIR 1996 SC 1393 : 1996 Cri LJ 1728, which are as below:

21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

10. In my considered opinion, the thought provocating observations made by the Apex Court in regard to an offence of sexual assault would be applicable with equal force for an offence of physical assault and domestic violence upon a woman. Hence, in the light of the aforesaid observations, ] now proceed to examine the prosecution and defence case on merit.

11. As gathered from the record, the victim is the second wife of the appellant. According to the learned Counsel, the prosecutrix was married about five years prior to the incident due to untimely death of his first wife. The record also reveals that the appellant is having three children, two through his first wife and one through the second wife.

12. Coming to the merit of the case, I find that the victim was examined as P.W. 8. She has given vivid description of the incident. According to P.W. 8, she was subjected to physical torture by her husband since after the marriage under the influence of liquor. P.W. 8 has further alleged that she was also emotionally abused by using filthy language and frequently asking her to leave the matrimonial home. On the particular night also the husband returned home in drunken condition and an attempt was made on her life by pouring kerosene oil and attempted to set her on fire. Thereafter, according to P.W. 8, she fled away from home and took shelter in the house of witness Swapan Debnath. In his house, she took bath and thereafter spent the night in the house of her relative Syamal Nama. In the cross-examination, the victim was given a suggestion that the petroleum product accidentally fell on her body in the midst of scuffle. In other words, the accused did not categorically deny the story narrated by the victim about pouring of kerosene oil.

13. The aforesaid story narrated by the prosecutrix has been thoroughly corroborated by a large number of independent witnesses from the locality. P.W. 1 is a lady witness. This witness has also deposed that the accused used to beat his wife under the influence of liquor, and despite their intervention, the accused did not pay any heed to their request. P.W. 1 was also reported by the victim about pouring of kerosene oil and attempt to kill her. It is true that in the cross-examination, P.W. 1 has admitted that she did not see beating of his wife by the accused personally. However, in my considered opinion, the testimony of P.W. 1 cannot be thrown overboard just because she did not see the physical assault on her own. Needless to say that ordinarily such physical tortures are committed inside the house and wives with docile nature silently bear such torture.

14. P.W. 3, Swapan Debnath is the witness in whose house the victim had first taken shelter. This witness is a leading person from the society being the member of Gram Panchayat. According to P.W. 3. the victim was subjected to continuous torture and several complaints were lodged in the Panchayat and several meetings were also held. P.W. 3 also deposed that on the particular night at about 10.00 p.m., the prosecutrix came running to his house and her clothes were found soaked with kerosene oil and on being inquired, the victim told him that her husband attempted to set her afire by pouring kerosene oil. Thereafter, P.W. 3 called her relative and after taking bath and changing clothes, she went to her relative's house. In addition to these statements, P.W. 3 has further added that about two and half years ago also the prosecutrix was badly beaten by her husband breaking her hands. Except giving a suggestion that the victim had herself poured kerosene oil on her body, no substantial admission was elicited from P.W. 3 to render her testimony unworthy of credence.

15. P.W. 4 is the mother of P.W. 3. She has also deposed that hearing outcry, she came outside in the courtyard. Thereafter, on being inquired, the prosecutrix told them that her husband tried to kill her. P.W. 4 then provided clothes to the victim and she changed her clothes after taking bath.

16. P.W. 5 Smt. Jyotsna Nama is another independent witness from the locality. This witness was called by P.W. 3 in his house-when the prosecutrix went there with soaked clothes and complaining about attempt to her life. P.W. 5 was also reported by the victim woman as to how her husband poured kerosene oil with an attempt to kill her. This witness has also corroborated P.W. 3 about previous physical assault, breaking her hands by the appellant.

17. P.W. 7 Shyamal Nama in somehow related to the appellant himself. He was also called by P.W. 3 when the victim went to his house complaining about attempted murder. This witness was also reported by the victim that her husband poured keroserie oil and attempted to set her afire. Thereafter, P.W. 7 took the victim to his house. In this way, a person, who is somehow related to the accused has also spoken in favour of the prosecution instead of defending his nephew.

18. As noted earlier, initially the defence case was that the victim had herself poured kerosene oil. However, the suggestion was changed during the cross-examination of the victim. I have already mentioned earlier that the victim was given a suggestion that kerosene oil fell on her body accidentally in the midst of scuffle. Strangely, while giving statement under Section 313, Cr. P. C, accused neither pleaded that the victim had herself poured kerosene oil to make out a false case or that the said petroleum product had accidentally fell on her body. Hence, I find that the defence story has no basis. .

19. Be that as it may a good number of independent witnesses from the locality have deposed in chorus that the victim came running to the house of P.W. 3 and was found terrified and reported that her husband had attempted to kill her by setting her afire. No prosecution witriess was given any suggestion that he or she was giving a tainted testimony due to any enmity or grudge against the accused. At any rate, the suggestion given to the victim that kerosene oil fell on her body in the midst of, scuffle is somewhat an admission of the accused and the same can be considered as corroborative evidence under Section 21 of the Evidence Act, 1872.

20. In the case of Central Bureau of Investigation v. V.C. Sukla and Ors. : AIR 1998 SC 1406 : 1998 Cri LJ 1905, the Hon'ble Supreme Court has held that admission of guilt by an accused person is admissible evidence within the purview of Section 21 of the Evidence Act and the said authority has been relied upon by this High Court in the case of State of Arunachal Pradesh v. T. Nogamdir reported in 2009 (4) GLT 939.

21. Now I shall take the evidence of D. W. i. She is the daughter of the appellant through his first wife. Except making casual statement that her step-mother poured kerosene oil on her body to teach a lesson to her father, the rest of the testimony of D. W. 1 appears to be supporting the prosecution. D. W. 1 has admitted about regular torture upon her mother. The witness has also deposed that on the relevant night also her father returned home in intoxicated condition and at that time her mother was sleeping. Having not responded to serve the meal, her father became annoyed and threatened to break her bones. This witness has further stated that with an intention to beat her mother, the accused went to collect a lathi (a blunt weapon) and then her mother poured kerosene oil. In the cross-examination, D. W. 1 has deposed that she herself was tortured by her step-mother and that she did not have good relation with her. In my considered opinion, this might be the reason for giving a twisted testimony to defend her father. I am also of the view that the defence story of pouring kerosene oil just to teach a lesson to the husband, who was already in an angry mood and physically powerful, is inconceivable. In ordinary course, in such a situation, a battered and mentally week woman would run for cover instead of challenging a physically sound and intoxicated person. Hence, I hold that the Trial Court has rightly rejected the testimony of D. W. 1.

22. Section 307, I.P.C. relates to the offence of attempted murder. Under this provision of law, if any act is done with such intention or knowledge that the act was likely to cause death, if not prevented or intercepted, it would constitute the offence of attempt to murder. In the case before me, large quantity of kerosene oil, was poured on the body of the victim woman. Had the appellant been successful to ignite the wearing apparels of the victim there would have been every possibility of her death. Hence, conviction of the appellant under Section 307, I. P. C, having based on evidence does not call for interference. I am not persuaded to interfere with the conviction.

23. Coming to the question of sentence, the only plea of the appellant is that due to incarceration of the appellant his children are under hardship since there is none in the family to look after them. However, since after the conviction of the appellant, the eldest daughter of the appellant, who was examined herself as D. W. 1, has not filed any application in this Court explaining their difficulties or hardship.

24. At times, the Hon'ble Supreme Court has also emphasized awarding of proportionate sentence commensurate to the offence. It has been held that sentence should be fair both to the convicts and also to the victim. In other words, if an inadequate sentence is awarded and if the same does not commensurate to the offence it looses its significance. Various surveys conducted in India and the other countries show that more than 2/3rd women are subjected to domestic violence. In the case in hand, the prosecutrix was subjected to extreme form of domestic violence. Even prior to the attempted murder her hands were broken and physical torture was a regular feature for the appellant. Besides this, the victim was also mentally abused, asking her to leave the matrimonial home. In my considered opinion, if an accused of this conduct is shown any mercy, it would be contrary to the theory of adequate punishment. In other words the plea for showing further leniency is misplaced. The trial Court itself has awarded 4 years substantive sentence against the maximum sentence of 10 years, that can be given under the law. Consequently, the prayer for reducing the sentence is rejected.

25. In the result, the appeal stands dismissed.