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2007 DIGILAW 822 (CAL)

Sayed Nasiruddin v. STATE OF WEST BENGAL

2007-10-16

PARTHA SAKHA DATTA

body2007
Judgment : PARTHA SAKHA DATTA, J (1) FEELING aggrieved, the appellant assails his conviction under Section 498a/304 (B) of the I. P. C. and sentence of two years rigorous imprisonment with fine of Rs. 2,000 with default stipulation under Section 498a, I. P. C. and of R. I. for 7 years on account of the charge under Section 304-B of the I. P. C. as was recorded by the learned Additional Sessions judge, Fast Track Court at Bolpur in the district of Birbhum on 18. 6. 2005 in Sessions case No. 173 of 2004 corresponding to T. R no. 2 (12) of 2004. (2) PW11 Smt. Golenur Bibi, the mother of the victim Mokramma Bibi lodged an f. I. R with the Ilam Bazar P. S. on 7. 6. 2000 alleging that her daughter who was given in marriage with the appellant sometime in the year of 1406 BS was subjected to assault and torture on demands of dowry. She had paid Rs. 2,000 in consideration of the happiness of the daughter but torture continued unabated. In Falgun 1406 BS her daughter filed a case for maintenance but subsequently at the intervention of Pradhan of Ilam Bazar an amicable settlement was reached as a result of which the appellant took his daughter to his home and it was agreed that the maintenance case would be withdrawn. But the degree of torture took a horrible turn with a demand of Rs. 20,000 for construction of a house by the appellant. The appellant was made to understand that some amount of money could be collected. On 6. 6. 2000 she got the information of death of her daughter and it was ascertained by her that she died an unnatural death. (3) THE Ilam Bazar Police Station recorded the P. S. Case No. 55 of 2000 dated 7. 6. 2000 under Section 304b of the I. P. C. and upon completion of investigation charge-sheet was submitted against the appellant under the said sections of the law. (4) ON the facts as aforesaid, the learned trial Court framed charges under Section 498a/304b of the I. P. C., examined in all 12 witnesses, examined the appellant under section 313, Cr. P. C. and then passed the judgment and order impugned. (5) OF the 12 witnesses, examined by the prosecution it is the evidence of PW1 Mohd. (4) ON the facts as aforesaid, the learned trial Court framed charges under Section 498a/304b of the I. P. C., examined in all 12 witnesses, examined the appellant under section 313, Cr. P. C. and then passed the judgment and order impugned. (5) OF the 12 witnesses, examined by the prosecution it is the evidence of PW1 Mohd. Ebrahim, PW2 Amar Kaviraj and PW11 gulenur Bibi that call for serious consideration in view of the fact that their oral testimonies go to the merit of the charges, while other witnesses are mostly formal ones and some of them do not have any direct knowledge as to the facts-in-issue. (6) WITHOUT analysis of evidence it is fairly established that the deceased had earlier married one Dr. Hasmat Mullah and lived with him for about 3 years and then the marriage was dissolved. Whereafter, the appellant married the deceased on 30. 7. 1999 corresponding to 23rd Shravan 1406 BS before the Muslim Marriage Registrar in observance of the Islamic rites and customs and she died on 6. 6. 2000. Thus, her married life with the appellant subsisted for a period of only 10 months and 6 days. (7) AS it appears from evidence of PW10 dr. A. Adhikary, who conducted the postmortem examination of the victims body the death of the victim was due to suicidal poisoning and the post-mortem report and the final report on the cause of death were marked Exts. 5 and 6 respectively. (8) PW1 Mohd. Ibrahim, who is the scribe of the F. I. R. says that the mother of the deceased used to tell him off and on that the appellant had been torturing her daughter on demands of money. On 6.6.2000 an information was received to the effect that the daughter of PW11 died an unnatural death at her in-laws house. Then he along with others came to the morgue of Bolpur Hospital at about 10. 00 p. m. but could not find the dead body and then proceeded to Ilam bazar Police Station with PW11 and lodged a complaint, being written by him and signed by PWll after it was read over to her. It has come out in cross-examination of PW1 that he never visited the house of the appellant and he did not see the appellant ill behaving with the victim or torturing her. It has come out in cross-examination of PW1 that he never visited the house of the appellant and he did not see the appellant ill behaving with the victim or torturing her. He fails to say the exact date or dates when he came to know from PWll about perpetuation of torture caused on the deceased by the appellant. Evidence of PW2, though he was declared hostile by the prosecution, is nonetheless relevant because of the fact that in cross-examination by the prosecution he admitted having told the I. O. that after marriage the appellant used to create pressure upon the victim to fetch a cash of Rs. 20,000 as dowry from her fathers house and that torture was both physical and mental and further that concerning the unhappiness of the victim a village meeting was held in the presence of the Pradhan of the Gram Panchayat, where the appellant undertook not to cause further torture upon the victim but despite that he went on committing torture upon her on demands of money. Even if we leave aside the statement of PW2 as it transpires in cross-examination by the prosecution, some relevant facts, which could not be demolished by any amount of cross-examination are that at one time the Pradhan of the Panchayat and other persons namely Jagannath Bagdi, jadab Bagdi, Hemanto Ghosh and he himself tried to settle the dispute and there the mother of the victim alleged against the appellant saying that the appellant had concealed his first marriage and that he had not disclosed that he was a quack doctor. In his cross-examination by the defence it has come out that in the village meeting the mother of the victim lodged complaint with the allegation against the appellant that appellant had demanded Rs. 20,000 as dowry and she has paid Rs. 4,000 to the appellant. On 4.6.2000 or thereabout the victim, the appellant and the deceased came to his house after quarrel and he told them that he would look into the matter and asked them to return home. But on 6.6.2000 in the evening he received the news of death of the victim. PW11 says in her evidence that after marriage the appellant would assault her daughter asking her to fetch money from her and then she had been to the house of the appellant and gave Rs. But on 6.6.2000 in the evening he received the news of death of the victim. PW11 says in her evidence that after marriage the appellant would assault her daughter asking her to fetch money from her and then she had been to the house of the appellant and gave Rs. 2,000 with request not to cause assault on her further. But again the appellant started assaulting her daughter and he drove her out of home. Then she filed a case of maintenance and after that the appellant persuaded her daughter to accompany him to the matrimonial home assuring her of not causing any further assault on her. On 23rd of jaistha 1407 BS he heard that the appellant had killed his daughter. It has come out in cross-examination of this witness further that prior to marriage, the appellant had visited her house 2-4 times and after marriage he also came to her house with her daughter and she also visited the house of the appellant 1-2 times although she cannot say the exact specific date of her visit to the house of the appellant after marriage. In cross-examination she has said further that she saw the appellant assaulting her daughter when she went to the house of the appellant before the death of her daughter although she did not lodge any complaint with the PS but consoled her daughter. She reiterated in her cross-examination that the appellant asked her daughter to fetch Rs. 20,000 for construction of house but cannot say the date of such demand. PW3 Asit sengupta, the Pradhan of the Panchayat, who according to PW2 was present in the village meeting turned hostile and his evidence revealed no significant feature save the fact that he was a witness to the inquest on the body of the deceased. PW4 Jagannath bagdi also turned hostile denied having told the I. O. that the appellant would assault the victim on demands of money. In his examination-in-chief he said that the victim and the accused would quarrel with each other and subject matter of quarrel was not known to her. PW5 Hemanta Ghosh also turned hostile deriving having told the I. O. that on demand of Rs. 20,000 the appellant treated the victim cruelly both mentally and physically. PW6 Rabindra Nath Ghosh gives hearsay evidence and his evidence is quite irrelevant. PW5 Hemanta Ghosh also turned hostile deriving having told the I. O. that on demand of Rs. 20,000 the appellant treated the victim cruelly both mentally and physically. PW6 Rabindra Nath Ghosh gives hearsay evidence and his evidence is quite irrelevant. PW7 Nitai Das also turned hostile denying having said to the I. O. that the appellant would torture the victim physically and mentally on demands of dowry. PW8 Tapan Kumar Samanta is an Executive magistrate, who held Magisterial inquest vide Ext. 4. PW9 Uday Mukherjee, asi of police carried the dead body of victim to the hospital for post-mortem examination. PW12 is the I. O. of the case. (9) IT has been the submission of the learned defence counsel that the learned trial Court failed to appreciate the evidence of the prosecution witnesses in proper perspective and failed to notice that PW2 has said in his evidence that both the victim and the appellant used to quarrel with each ther and both came to him on 4. 6. 2000 after having quarrel and this piece of evidence shows that the cause of death of the victim was not the alleged torture perpetrated upon her by the appellant. (10) IT is further submitted with reference to the evidence of PW11 that the alleged nondisclosure by the appellant of his first marriage and of him being a quack doctor fails to come within the ambit of Section 304b of the I. P. C. It is submitted by the learned Counsel for the appellant that the learned Trial Court overlooked the evidence of the hostile witnesses and simply because of the fact that they turned hostile it cannot be said that their evidence is untrustworthy. It is submitted that the impugned order of conviction and sentence is against the weight of evidence and is an outcome of total non-consideration of evidence and facts and circumstances of the case. Argument further goes that the evidence of the prosecution witnesses are mutually exclusive and the learned Trial Court ought to have come to a contrary findings and it wrongly applied the presumption under Section 113b of the Evidence Act. Argument further goes that the evidence of the prosecution witnesses are mutually exclusive and the learned Trial Court ought to have come to a contrary findings and it wrongly applied the presumption under Section 113b of the Evidence Act. (11) LEARNED Advocate for the State respondent argued with reference to the evidence of the witnesses that the learned Trial court upon appropriate analysis of evidence of witnesses has recorded the finding of guilt which can in no way be successfully assailed of and a few witnesses turning hostile is quite insignificant because evidence of PW2 and PWll are quite sufficient to view that appellant subjected the deceased to assault and torture on the demands of money and since the money could not be paid to him by the deceaseds toother torture found its culmination in the death of the deceased on 6. 6. 2000. Tt was argued that evidence of pw2 and PWll would show that even the village people had to intervene and even after settlement was reached and even after the victim was taken back to her matrimonial home by the appellant, the demand of money was renewed and money having not been paid, the victim died an unnatural death. It is argued that it is wrong to say that merely because of the quarrel between the victim and the appellant, the victim chose to end her life. (12) HAVING heard the learned Advocates for the parties and considered the totality of evidence of the witnesses, it has to be said that evidence of the witnesses particularly pw2 and PW11 with respect to the charges under Section 498a/304b of the I. P. C. has been the evidence of legal character and having considered their evidence, it cannot be said that the learned Trial Court misdirected itself to the appreciation of their evidence. Simply because of the fact that PW1 happens to be the mother of the victim, it cannot be said that her evidence has to be discarded and this is more so, because as mother of the victim it was quite possible on her part to say as to what had transpired between her daughter and the appellant and it is not that her evidence is a hearsay evidence. That the victim died an unnatural death within 10 months of her marriage is a matter of fact. That the victim died an unnatural death within 10 months of her marriage is a matter of fact. The span of the married life has been so short that it cannot be said that effect of cruelty based on alleged demand and the concerned death had no proximity to each other and it also cannot be said that the statement of the victim to PWll alleging that she was subjected to torture by her husband on demand of dowry had no proximity to her death. A careful reading of the evidence of the witnesses would reveal the following features: 1. The appellant subjected the victim to cruelty sometime after marriage on demands of dowry from PW11. 2. PWll had been to the house of the appellant and offered him Rs. 2,000. 3. The appellant yet caused assault on her and drove her out. 4. The victim filed a case of maintenance against the appellant after being driven out. 5. The appellant took her to her matrimonial home with the assurance of not causing assault on her. 6. In the presence of PW2, PW5, PW3 a meeting took place. In the said meeting the mother of the deceased complained that the appellant was demanding Rs. 20,000 from her. 7. PW11, as it appears from her cross-examination had been to the house of the appellant after marriage and found the appellant assault her daughter. 8. In her cross-examination PW11 had said that her daughter told her that the appellant had asked her to bring Rs. 20,000 to build his house. 9. The demand of dowry and torture as consequence of failing to meet up the demand is there in the F. I. R. and it cannot be said that the demand of dowry is a new development foreign to the prosecution case in the F. I. R. (13) THE above evidence and circumstances have unassailably come out in evidence and taken them together in their totality it cannot be said that the victim did not die a dowry death. It is well settled that demand of money after solemnization of marriage also comes within the purview of definition of dowry as provided in Section 2 of the Dowry Prohibition Act, 1961. It is fairly established that soon before her death the victim was subjected to cruelty or harassment and that too in connection with the demand of dowry. It is well settled that demand of money after solemnization of marriage also comes within the purview of definition of dowry as provided in Section 2 of the Dowry Prohibition Act, 1961. It is fairly established that soon before her death the victim was subjected to cruelty or harassment and that too in connection with the demand of dowry. The victim reported the demand of dowry to her mother when she came to her mothers house. The mother went to her matrimonial home and paid some money. Still then torture continued unabated. The victim was driven out of matrimonial home after causing assault on her whereafter, she filed a maintenance case. She was taken back to the matrimonial home with the pretext that no torture would be further caused upon her. But the assurance was broken. A village meeting was convened where in the presence of the appellant PWll reported to the members of the meeting that on demands of dowry of Rs. 20,000 her daughter was subjected to be beaten by her husband. It was her daughter who told her that she was subjected to ill-treatment on demands of money. The factum of the village meeting on the allegation of torture over demands of dowry comes to be corroborated by PW2 and witnesses turning hostile fails to impeach the veracity of the evidence of the two witnesses. (14) AS has been laid down in kalyyaperumal v. State of Tamil Nadu, and also Yashoda v. State of Madhya Pradesh, there must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequences. It has been the law settled therefore that the determination of the period which can come within the term soon before is left to be decided by the Courts depending upon facts and circumstances of each case and the expression soon before would normally imply that the interval should not be much between cruelty or harassment and death in question. (15) THERE is in the instant case proximity between cruelty and death. There is again a proximity between death and report of the victim to PW11. (15) THERE is in the instant case proximity between cruelty and death. There is again a proximity between death and report of the victim to PW11. The village meeting and the death of the victim has no long distance to be travelled. In the circumstance, presumption arising out of Section 113b of the Evidence Act fully operates and the defence could not rebut the statutory presumption. In the decision in Harjit Singh v. State of Punjab it has been held that from a conjoint reading of Section 304b of the I. P. C. and Section 113b of the Evidence Act, it will be apparent that a presumption arising thereon will operate if the prosecution is able to establish the circumstances as set out in Section 304b of the I. P. C. In the instant case, the circumstances set out in Section 304b of the I. P. C. are distinct and manifest. On the evidence as is found it has been established that the victim has been subjected to cruelty within the meaning of Section 498a of I. P. C. Situated thus, I find that the prosecution case was well built. The victim died in her matrimonial home. Death was unnatural. In Ganesh Lall v. State of maharashtra, it has been observed that it is settled law that conduct of the accused in an offence previous and subsequent to the incident are relevant facts. In the reported case the Honble Supreme Court held that when death occurs in the custody of the accused the accused was under obligation in section 313, Cr. P. C. statement at least to give a plausible explanation for the cause of her death. In the instant case no explanation has been given. (16) IN the circumstances, I find the appeal to be devoid of merit. As to sentence i cannot say that the same is disproportionate to the gravity of the offence. The appeal fails and is dismissed. The judgment and order of the learned trial Court is affirmed. The appellant is directed to surrender to the learned Trial Court within two months from the date of this order failing which the learned Trial Court will take appropriate step for apprehension of the appellant so as to have the sentence executed according to law. (17) A copy of this judgment shall be sent to the learned Trial Court for information and necessary action. (17) A copy of this judgment shall be sent to the learned Trial Court for information and necessary action. Xerox certified copy may be provided to the parties, if applied for. Appeal dismissed.