RAKESH RANJAN PRASAD,CJ. -
(1.) Aggrieved by the order dated 7.9.2012 of the learned Sub-Divisional Judicial Magistrate, Belonia, South Tripura in C.R. No. 38 of 2011 discharging the respondent No. 2 and 3 of the offences punishable U/s 498-A/354/377 IPC, the petitioner is filing this revision petition.
(2.) The case of the petitioner, in brief, is that the petitioner is the wife of the respondent No. 1, the respondent No. 2 and 3 are the younger brother and father of the respondent No. 1 respectively and that the father of the petitioner gifted many articles as per the demands of the respondents. The respondent No. 1 is serving as Field Assistant in the Office of the Deputy Director, Economics and Statistics, Karbi Anglong district and occasionally returned home by staying 10/12 days. A male child was born to them on 5.1.2006. A few days after the birth of their child, the respondent No. 1 demanded a motor cycle and started to put pressure on her in the former form of physical and mental torture, which was increasing day by day by demanding additionally a plot of land. When her father refused to do so, all the respondents insisted donation of the land to the respondent No. 1 as she had no brother. According to the petitioner, the respondent No. 1 also indulged in sexually inappropriate activity by forcibly putting his male organ into her mouth and discharged his semen and forced her to swallow it. At the instigation of the respondent No. 1, the respondent No. 2 assaulted her and also tried to commit rape on her on several occasions. According to the petitioner, the respondent No. 2 on 28.6.2011 entered into her room to fulfill his lustful desire, jumped upon her and attempted to fulfill his lust, but she managed to save herself after she informed him that she would disclose his lustful attempt to other persons whereupon he left her. On 7.7.2011, when the respondent no. 1 returned home, she apprised him of the incident, but he told her that unless his demands were met, she would continue to be tortured; on that night itself, he beat her severely. She then and there informed her father through mobile as to how she was beaten up by her husband, but her ordeals continued as the respondents kept on giving her mental and physical torture. She was, therefore, constrained to file the complaint petition before the Sub-Divisional Judicial Magistrate, Belonia, who, after taking the statement of the petitioner U/s 200, CrPC, took cognizance of the offences punishable U/s 498-A/377 IPC and issued process against the three respondents. The petitioner examined herself as PW-1 and examined two other witnesses, but no cross-examination was done by the respondents, who had already appeared before the trial court in response to the summons. Ultimately, the learned SDJM passed the impugned order.
(3.) Both Mr. AC Bhowmik, the learned senior counsel and Mr. S. Chakraborty, the learned counsel for the respondents 1, 2 and 3 have been extensively heard. I have also gone through the materials on record, particularly, the statements of PW-1, 2 and 3. The respondent No. 2 and 3, apart from the respondent No. 1, are charged with the offences punishable U/s 498-A/377 IPC. The learned SDJM appears to have been swayed by the submission of the learned counsel for the accused that when the sexual act had taken place in between man and man and woman and woman, such unnatural acts came within the purview of homosexuality thereby making out a prima facie case of Section 377 IPC. In so far as the framing of the charge against the respondent No. 1, as already noticed, the parties are not in issue. In Grace Jayaani Vs. EP Peter, AIR 1982 Kant 46, the Special Bench of the Karnataka High Court, after quoting from the Halsbury's Laws of England, American Jurisprudence and Taylor's Principles and Practice of Medical Jurisprudence, held that the term 'Sodomy' is non coital, carnal copulation with a member of the same or opposite sex, e.g., per anus or per os and a man may thus indulge in sodomy with his own wife. However, in the case of the respondent No. 2 and 3, there is no prima facie case against the respondent No. 2 and 3. The case of the petitioner is that they instigated the respondent No. 1 to demand dowry and ill-treat her. In my opinion, such allegations, in my opinion, cannot be brushed aside at this stage in the teeth of the evidence adduced by the petitioner and her two witnesses examined by her to corroborate her evidence. Interestingly, the respondents did not cross-examine these witnesses.;