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2008 DIGILAW 856 (CAL)

Sk. Mojammel v. STATE OF WEST BENGAL

2008-08-22

G.C.Gupta, Kishore Kumar Prasad

body2008
JUDGMENT: 1. THIS appeal is directed against a judgement dated 27th May, 1997 passed by the learned Additional Sessions Judge, 5th Court, Midnapore, in sessions Trial Case No. VIII/nov/95 convicting the appellants for offences punishable under Sections 498a/306/304b read with Section 34 of the Indian penal Code and Sections 3 and 4 of the Dowry Prohibition Act and an order dated 28th May, 1997 by which the appellant, Sk. Mozammel, husband of the deceased rupban was sentenced to suffer rigorous imprisonment for two years as also to pay fine of Rs. 2,000/- in default to suffer rigorous imprisonment for six months for the offence punishable under Section 498a of the Indian Penal Code. He was also sentenced to suffer rigorous imprisonment for ten years for the offence punishable under Section 304b of the Indian Penal Code. He was also sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 3,000/in default to suffer rigorous imprisonment for one year for the offence punishable under Section 306 of the Indian Penal Code. He was also sentenced to suffer rigorous imprisonment for a period of three months and to pay a fine of Rs. 2000/-, in default to suffer further rigorous imprisonment for one month for the offence punishable under Sections 3 and 4 of the Dowry Prohibition Act. All the substantive sentences were directed to run concurrently. 2. SK. Rousan, father-in-law of the deceased Rupban, was sentenced to suffer rigorous imprisonment for one year as also to pay a fine of Rs. 1000/-, in default to suffer rigorous imprisonment for three months for the offence punishable under Section 498a of the Indian Penal Code. He was also sentenced to suffer rigorous imprisonment for seven years for the offence punishable under section 304b of the Indian Penal Code. He was further sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for six months for the offence punishable under section 306 of the Indian Penal Code. He was also sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for one month for the offence punishable under Sections 3 and 4 of the Dowry Prohibition Act. All the substantive sentences were directed to run concurrently. The appellant no. He was also sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for one month for the offence punishable under Sections 3 and 4 of the Dowry Prohibition Act. All the substantive sentences were directed to run concurrently. The appellant no. 3 Fatema Bibi, mother in law of the deceased rupban, was sentenced to suffer rigorous imprisonment for one year and also to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for three months for the offence under Section 498a of the Indian Penal Code. She was also sentenced to suffer rigorous imprisonment for seven years for the offence punishable under Section 304b of the Indian Penal Code. She was further sentenced to suffer rigorous imprisonment for three years and to pay a fine of rs. 1,000/- in default to suffer rigorous imprisonment for six months for the offence punishable under Section 306 of the Indian Penal Code. Identical punishment for the offence punishable under Sections 3 and 4 of the Dowry prohibition Act was also inflicted upon her as was done in the case of her husband Sk. Rousan. All the substantive sentences were directed to run concurrently. 3. RASHIDA Khatoon and Atarjan Bibi, the sisters-in-law of the deceased rupban, were also similarly punished as was their mother Fatema Bibi. The accused, Hafizuddin, was acquitted from all the charges. 4. THE facts and circumstances of the case briefly stated are as follows:-The deceased, Rupban, was given in marriage to the appellant, Sk. Mojammel, according to the Islamic Rites. She committed suicide at her matrimonial house within three years from the date of her marriage. She was allegedly tortured both physically and mentally. A sum Rs. 2,500/- in cash and a by-cycle were allegedly demanded from the father of the deceased Rupban but he could not provide the same. Salish was held thrice in order to resolve the dispute. After the deceased consumed poison, she was taken to a hospital where she was declared brought dead. The deceased was then brought back to the matrimonial house and attempts were allegedly made to engrave the deadbody without informing the parents of the deceased. In the nick of time, the brother of the deceased reached the P. O. and foiled the attempt. The deceased was then brought back to the matrimonial house and attempts were allegedly made to engrave the deadbody without informing the parents of the deceased. In the nick of time, the brother of the deceased reached the P. O. and foiled the attempt. A written complaint was lodged within 16 hours from the time of occurrence alleging ill-treatment and torture against seven persons comprising husband, the parents-in-law, the sisters-in-law and the uncles-in-law. Ultimately six of them were charged namely the husband, the parents-in-law, the sisters-in-law and one of the uncles-in-law namely Hafizuddin. The uncle-in-law hafizuddin has been acquitted and the rest of the accused persons were convicted as more fully indicated hereinabove. 5. MR. Roy, the learned Advocate, appearing in support of the appeal, advanced the following submissions:- (a) The allegations against the parents-in-law and the sisters-in-law are general in nature and no reliance can be placed thereupon. (b) There is no allegations as regards any claim of dowry in the written complaint which formed the basis of the case. (c) The evidence of the P. Ws. 3 and 4 is based on the information furnished by the P. W. 2 who turned hostile and therefore, the evidence of the P. Ws. 3 and 4 cannot be relied upon. (d) The cause of death was not indicated by the autopsy surgeon in the post mortem report. Viscera was preserved presumably for chemical examination which ultimately was not held. The autopsy surgeon nonetheless deposed that the casue of death was due to consumption of poison by the deceased which according to him is not reliable. (e) Lastly and in any event he submitted that the conviction of the parents-in-law and the sisters-in-law cannot be sustained. The conviction of the husband under section 304b IPC is also not sustainable according to him. Mr. Goswami, the learned Public Prosecutor, disputed the submissions made by Mr. Roy. We shall examine the submissions advanced by the appellants in some detail. 6. THE learned Trial Judge in convicting the appellants has advanced the following reasoning- "it reveals from the evidence on record that marriage of Rupban with sk. Mozammel took place on 15th Falgoon, 1391 B. S. Rupban committed suicide on the last day of Bhadra, 1394 B. S. within 2 and half years from the date of marriage in the house of the accused persons. The accused Sk. Mozammel, husband of Rupban,. Parentsin-law Sk. Mozammel took place on 15th Falgoon, 1391 B. S. Rupban committed suicide on the last day of Bhadra, 1394 B. S. within 2 and half years from the date of marriage in the house of the accused persons. The accused Sk. Mozammel, husband of Rupban,. Parentsin-law Sk. Rousan and Fatema Bibi and sisters-in-law Rashida khatoon and Atarjan Bibi demanded dowry from Sk. Jabbar, father of Rupban. Sk. Jabbar failed to meet up the demand of the accused persons and for that reason Rupban was tortured both physically and mentally by her husband, parents-in-law and sisters-in-law. Married sisters-in-law namely; Rashida Khatoon and Atarjan Bibi reside in the house of accused Sk. Mozammel. They instigated rupban for committing suicide by taking poison or by hanging. Rupban disclosed about her torture and sufferings in the matrimonial home not only to her relatives but also to the neighbours of her father. P. W. 3, Sk. Saidullah, P. W. 4, Ajijur rahaman, P. W. 7, Rafikul Hossain, P. W. 9 Momena Khatoon and p. W. 11, Ajaharuddin, all the disinterested witnesses have corroborated the prosecution case regarding torture on Rupban and her suffering in the matrimonial home. " In acquitting the accused Hafizuddin, the learned Trial Judge advanced the following reasoning :- "the prosecution implicated Sk. Hafizuddin for committing torture, instigation for committing suicide and demand of dowry but I do not find any specific allegation against accused Sk. Hafizuddin. On the other hand it reveals from the evidence on record that accused sk. Hafizuddin and Mukshed Mallick took initiative for settlement in the salish. Accused Sk. Hafizuddin is the uncle of accused Sk. Mozammel by distant relation. He has no close relation with the accused persons. He does not live with the accused persons under the same roof. He has or had no interest for getting more dowry from the father of Rupban. Accused Rashida Khatoon and Atarjan Bibi, married sisters of accused Sk. Mozammel, reside in the house of accused Sk. Rosan, father of Sk. Mozammel. P. W. 1 has disclosed in his examination in chief about living of Rashida Khatoon and Atarjan bibi in the house of Sk. Rousan and the same was not challenged by the defence. " 7. THE reasoning adopted by the learned Trial Judge in acquitting Sk. Mozammel, reside in the house of accused Sk. Rosan, father of Sk. Mozammel. P. W. 1 has disclosed in his examination in chief about living of Rashida Khatoon and Atarjan bibi in the house of Sk. Rousan and the same was not challenged by the defence. " 7. THE reasoning adopted by the learned Trial Judge in acquitting Sk. Hafizuddin, that there was no specific evidence against him, was not applied in assessing the evidence against the rest of the in-laws of the deceased. The de facto complainant, P. W. 1, in his evidence deposed that the husband, parents-in-law, sisters-in-law and the uncle-in-law, Hafizuddin, claimed a sum of Rs. 2,500/- and a by-cycle by way of dowry. He also claimed that his deceased sister told him that she had been denied food and clothing by the accused-persons. He personally witnessed the accused Mojammel assaulting his sister,rupban. He also deposed about salish organised by him. He deposed about the deceased being instigated to commit suicide by all the accused persons. 8. THE de facto complainant, the P. W. 1, is an interested witness and his evidence has to be assessed with caution. P. W. 3, a neighbour of the P. W. 1, deposed as follows: - "i came to know from Rupban that the accused persons asked her to commit suicide stating that on her death Mojammel would get many thing more by marrying for the second time. Rupban also stated to me that the accused persons used to abuse her for nothing in filthy language-naming the name of her parents. Over torture on Rupban from the end of the accused persons there were three salish meeting in the house of Abdul Jabbar, father of Rupban, and in all the salish I attended. Accused persons rupban, parents and brother of Rupban and many others of my village attended those salish meetings. " P. W. 4, another neighbour of the de facto complainant, deposed as follows :- "on my enquiry as to how she was in her matrimonial home, rupban stated to me that she was not in peace in the house of her husband and that she was a subject of torture, ill-treatment and assault there for demand of dowry more being Rs2500/- in cash and a cycle. I also came to know from Rupban that the accused persons asked her to commit suicide, either by taking pison or by hanging, on her inability to bring dowry more, as demanded by them, from her father. There were three salish meetings over such ill-treatment and torture on Rupban by the accused persons and all those Salish took place in the house of father of Rupban. I attended all the three salish. " 9. P. W. 7, another neighbour of the de facto complainant, deposed as follows: - "rupban stated that she was not in peace in her matrimonial home. She stated that she was a subject of ill-treatment, torture and assault in the house of her husband from the accused persons over demand of dowry more, namely a cycle and Rs. 2,500/- in cash. Rupban stated to me that her mother-in-law asked her to commit suicide either by hanging or by taking poison stating that on her death her son Mojammel would get many things more by marrying for the second time. Rupban stated to me that other accused persons also asked her to commit suicide or to bring money and cycle from the house of her father. " 10. HE, however, in his cross-examination became somewhat hesitant and deposed as follows :- "i do not remember whether I stated to I. O. that I came to know from Rupban that her mother-in-law asked her to commit suicide either by hanging or by taking poison stating that she would get manythings more by marriage of her son Mojammel for the second time. " p. W. 8, the mother of the deceased Rupban, deposed as follows :-"rupban stated to me that accused persons asked her to commit suicide. She also stated to me that the accused persons stated that they would get manymore things by giving marriage of Mojammel with some other girl. " She, however, in her cross-examination admitted that the financial condition of the accused was better than the financial condition of the parents and brother of the deceased. P. W. 9, another neighbour of the complainant, deposed as follows :- "rupban on many occasions stated to me, while she came to the house of her father, that over demand of more dowry being rs. P. W. 9, another neighbour of the complainant, deposed as follows :- "rupban on many occasions stated to me, while she came to the house of her father, that over demand of more dowry being rs. 2,500/- and a cycle from her father she was a subject of constant torture, ill-treatment and assault in the hands of her husband as well as other inmates of the house of her husband. Rupban also stated to me that the accused persons denied food to her and asked her to commit suicide. " 11. P. W. 11, another neighbour of the de facto complainant, deposed as follows :- "when Rupban came to the house of her father, she also used to go to our house. Rupban stated to me, on my query as to how she was in her matrimonial home, that over demand of dowry more being a cycle and cash money of Rs. 2,500/- she was a subject of constant torture, ill-treatment and assault in the hands of the accused persons in her matrimonial home. Rupban also stated to me that the accused persons asked her either to commit suicide by taking poison or by hanging or to bring Rs. 2,500/- and a cycle as demanded by them from the house of her father. Rupban also stated to me that over demand of dowry more the accused persons assaulted her and used to abuse her in filthy languages naming the name of her parents. " Some of the witnesses were merely tendered and rest of the witnesses are all official witnesses. P. W. 2 turned hostile. 12. IT would appear from the evidence of P. Ws. 3,4,7,8,9 and 11 that their evidence against the accused persons is general in nature besides being repetitive giving rise to doubt about its veracity. Except for P. W. 8 rest of the witnesses are the neighbours of the defacto complainant. Out of these witnesses the P. W. 7 implicated the mother-in-law of the deceased but in his cross-examination he became hesitant. P. W. 8, the mother of the deceased, referred to an alleged claim of dowry but also admitted in her cross-examination that the financial condition of the accused persons was better than that of the complainant-party. She did not name any specific person who made the alleged claim for dowry. P. W. 8, the mother of the deceased, referred to an alleged claim of dowry but also admitted in her cross-examination that the financial condition of the accused persons was better than that of the complainant-party. She did not name any specific person who made the alleged claim for dowry. When was the alleged demand made has also not been disclosed by any of these witnesses. The P. W. 1 in his evidence has implicated all the accused persons including Hafizuddin, acquitted by the learned Trial Judge, but even he did not disclose any date even by approximation when the alleged demand was made. The second submission of Mr. Roy that there is no allegation as regards any claim of dowry in the F. I. R. is factually true. 13. THE third submission of Mr. Roy is partly true but the P. Ws. 3 and 4 have also deposed that on enquiry from the deceased herself they had ascertained what they deposed in Court. 14. THE fourth submission of Mr. Roy is factually true but nothing really turns on that for the simple reason that the P. W. 1 was suggested during cross-examination on behalf of the defence as follows :-"not a fact that my sister Rupban committed suicide by taking poison for some unknown reason known to her. " Therefore, the fact that Rupban died an unnatural death is not in dispute. The fact that she had consumed poison is also not in dispute. In reply to our specific question as to the sustainability of the conviction of the in-laws of the deceased, Mr. Goswami, the learned Public prosecutor had no plausible answer to offer except that he left the matter to the court. 15. CONSIDERING the nature of evidence, and its generality, against the in-laws of the deceased Rupban, we are of the opinion that it may not be safe to convict the in-laws. Even the mother of the deceased could not in her evidence attribute any specific overt act against the in-laws of the deceased Rupban. 16. WE are for the reasons indicated above inclined to give benefit of doubt to the parents-in-law and the sisters-in-law. Even the mother of the deceased could not in her evidence attribute any specific overt act against the in-laws of the deceased Rupban. 16. WE are for the reasons indicated above inclined to give benefit of doubt to the parents-in-law and the sisters-in-law. Considering the fact that there is nothing to show that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry, the conviction under section 304b cannot also be sustained even against the husband. There is however adequate evidence as regards physical torture and cruelty by the husband. The appeal, in the circumstances, partly succeeds. The conviction of appellants, Sk. Rauson, Fatema Bibi, Rashida Khatoon and Atarjan Bibi is set aside altogether. 17. THE conviction of the appellant, Sk. Mozammel, for the offence punishable under section 304b and under sections 3 and 4 of the Dowry prohibition Act is set aside. Rest of the conviction and sentence operating against the appellant Sk. Mozammel is upheld. 18. ALL the appellants were enlarged on bail by an order dated 7th July 1997 passed by a Division Bench of this Court. The appellant, Sk. Mozammel, is directed to surrender to the bail and to serve out the rest of the sentence awarded by the learned Trial Judge except for the offences excluded hereinabove. The appellants, Sk. Rauson, Fatema Bibi, Rashida Khatoon and atarjan Bibi, are discharged of their obligations of the bail bonds. 19. THE learned Lower Court is directed to issue necessary revised jail warrant as required by the Rules in respect of the appellant Seikh Mozammel. 20. LET a copy of the judgement along with the lower court records be sent down to the concerned learned Trial Court forthwith for information and necessary action. Urgent xerox certified copy of this judgement, if applied for, be delivered to the parties upon compliance of all formalities.