Allowed

Monoj Ghosh v. the State of Tripura

Tripura HC12 Sept 2017Crl.A(J)/15/2015

Case brief

AI extract

What is this about?

This appeal challenged a conviction for abetment to suicide under Section 306 IPC following the death of the appellant's wife. The High Court set aside the conviction, holding that the prosecution failed to prove its case as the only eye-witness, a child, admitted her statement was coached by her grandmother.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellant set at liberty.

Monoj Ghosh Vs the State of Tripura — Murder and Culpable Homicide | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA A G A R T A L A

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Crl. App.(J) No.15/2015

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Sri Monoj Ghosh, S/o Late Milan Ghosh, resident of Surjyamani Nagar, P.O. Surjyamani Nagar, P.S. Amtali, District – West Tripura.

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….. Appellant.

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-: Versus :-

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The State of Tripura.

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….. Respondent.

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B E_F_O_R_E_

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HON’BLE THE CHIEF JUSTICE MR. T VAIPHEI HON’BLE JUSTICE MR. S. TALAPATRA

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Counsel for the appellant : Mr. P K Biswas, Sr. Advocate, Ms. P Majumder, Advocate.

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Counsel for the respondent : Mr. S Sarkar, P. P.

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Date of hearing & Judgment : 12-9-2017 .

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JUDGMENT & ORDER(ORAL)

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[T. Vaiphei, C.J.]

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This criminal appeal is directed against the judgment dated 8-4-2015 passed by the learned Additional Sessions Judge, West Tripura, Agartala in Sessions Trial No.86 of 2010 convicting the appellant U/s 306 IPC and sentencing him to undergo rigorous imprisonment for ten years with fine.

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The facts giving rise to this appeal are that on 15-12-2008 at about 17.30 hours, one Smt. Arati Ghosh (PW-7) had lodged an FIR to the effect that her daughter (Apu Ghosh), aged about 20/25 years was married to the appellant eight years before the date of the incident according to Hindu rites and customs. After the marriage, the appellant, his brother and mother started to torture her on several occasions. On 14-12-2008, a quarrel took place between the spouses over the issue of joint photographs of the appellant and one Misthu Choudhury(Roy) whereafter the former assaulted her which resulted

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Crl. A(J) No.15/2015 Page 1 of 4

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in uprooting six of her teeth and causing several other injuries on her body. The appellant subsequently killed his deceased wife by throttling her and then took her to GBP Hospital, Agartala. The police, on the basis of the complaint, registered Amtali PS Case No.104/08 U/s 498-A/302 IPC against the appellant. After completing the investigation, the police charge-sheeted the appellant and the said Misthu Choudhury U/s 302/498-A IPC. On commitment, the learned Sessions Judge, West Tripura framed the charge against the appellant U/s 498A/306 IPC and against the said Misthu Choudhury (Roy) U/s 109/306 IPC, to which both of them pleaded not guilty and claimed to be tried. In the course of trial, sixteen witnesses were examined on behalf of the prosecution to prove the charge against the appellant and co-accused. At the conclusion of the trial, the trial Court passed the impugned judgment of conviction and sentence, while the co-accused (Misthu Choudhury) was acquitted and set at liberty. The appeal is preferred by the appellant.

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We have heard Mr. P.K. Biswas, the learned senior counsel for the appellant and Mr. S. Sarkar, the learned Public Prosecutor appearing for the State.

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The prosecution examined the minor daughter of the deceased as PW-6, who is claimed to be the only eye witness to the incident. The incident took place on 15-12-2008. PW-6 was examined as a witness on 14-5-2012. She was stated to be 9 years old at the time of the incident. PW-6 deposed that about three and half years ago, one day in the afternoon, she saw her father assaulting her mother (Apu Ghosh) with a lathi on her hand and that her father also gave a blow on her face and as a result, six of her teeth got uprooted and blood oozed out of her mouth. She further deposed that her father thereafter gagged the throat of her mother and asked her to die by taking poison and such incident took place at the back side of their hut and that thereafter her father dragged her mother inside the hut. According to her, seeing her condition, she did not cry out due to fear. She went on to testify that her barda Utpal Ghosh and her father lifted her mother to the hospital where she expired. She further

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Crl. A(J) No.15/2015 Page 2 of 4

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testified that on the following day of expiry of her mother, there was interview between herself and her grandmother (Arati Ghosh) at Ambedkar Hospital, Agartala and that she narrated the incident to the police, her grandmother as well as before the Court, which recorded her statement. In our opinion, this child witness, upon which the entire prosecution case hinges, has turned out to be a tutored witness as evident from her cross-examination:

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“…. On the following day of the incident, my grandmother took at noon myself and my younger sister to their house from the Ambedkar Hospital. On that day, I straight proceeded to the house of my grandmother at Kariyamura, Bagma, without visiting anybody. Before entry in the home during my stay period within the house of my grandmother, Kariyamura, Bagma I never visited anywhere. When I made a statement first time before the court at that time I was staying at home. I was in the house of my grandmother when police asked me about this case. Just after the death of my mother during my stay period at my grandmother I went to the police station accompanied by my grandmother. My grandmother taught me about the statement which I had given to the police officer.”

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Now, when the star witness of the prosecution has admitted that she was tutored by her grandmother about the statement given by her, can we seriously believe the case of the prosecution? In our opinion, serious doubts have been created in the case of the prosecution. The law is very clear. If there is any doubt in the case of the prosecution, the benefit of doubt must be given to the accused. In the absence of any unimpeachable evidence produced by the prosecution, it is difficult to sustain the conviction of the appellant. The approach of the trial court in this aspect of the matter is casual. It merely tried to explain away this major flaw in the case of the prosecution by attempting to explain away that this admission did not create any suspicion “regarding her veracity of witness before the court during trial” (whatever that could mean). No other evidence of substantial nature could be shown by the prosecution to bring

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Crl. A(J) No.15/2015 Page 3 of 4

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home the charges against the appellant. We, therefore, have no hesitation in holding that the prosecution has failed to prove its case against the appellant beyond reasonable doubt.

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For the reasons stated in the foregoing, this appeal is allowed. The impugned judgment of conviction and sentence is, accordingly, set aside. The appellant is set at liberty forthwith unless he is required in connection with any other case. Transmit the L.C. record.

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JUDGE CHIEF JUSTICE

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Sukhendu

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Crl. A(J) No.15/2015 Page 4 of 4

Monoj Ghosh v. the State of Tripura

Case brief

What is this about?

What did the court decide?

Monoj Ghosh v. the State of Tripura

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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