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2012 DIGILAW 676 (CAL)

Golam Nabi Biswas v. STATE OF WEST BENGAL

2012-07-24

DIPAK SAHA RAY, TAPEN SEN

body2012
Judgment TAPEN SEN, J. 1. THE Appellant, Golam Nabi Biswas, challenges the Judgment and Order dated 15.7.2008 and 16.7.2008 passed by the ld. Addl. Sessions Judge, Fast Track (IInd Court), Behrampur, Murshidabad in Sessions Trial no. 10 (6) of whereby and whereunder, he was sentenced to undergo rigorous imprisonment for three years with fine of Rs.20,000/- (Rupees Twenty Thousand) for the offence punishable under Section 498A of the Indian Penal Code and in case, of non-payment of fine, to undergo R.I. for a period of one more year. The Appellant was also sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.20,000/- (Rupees Twenty Thousand) for the offence punishable under Section 307 of the Indian Penal Code and in the event of non-payment of fine, to undergo further imprisonment for one year. 2. ON 3.10.2005, one Samima Shiropa made a written report before the Inspector in charge of the Domkal Police Station at Murshidabad against her husband, Golam Nabi Biswas (the Appellant herein) and against one Ekramul Mondal alleging therein, as follows:- "Golam Nabi Biswas is my husband. We were married together 11 years ago under the Muslim Shariat. Presently, I have a minor son named Wasim Rezza (Subho). However for the last 8 months, my husband has been having an illicit relationship with one Nasima Sarkar (25) daughter of Nasiruddin Sarkar. It is on account of such a fact that for the last 8 months, my husband had started to inflict physical and mental torture upon me and at times, he would attempt to strangulate me and would also, at times, attempt to induce me to commit suicide. As a result, I twice approached the Village Panchayat on 26.6.2005 and 17.8.2005. A settlement was arrived at, at the instance of one Rajkumar Kothari, owner of "Kothari Basanalaya" who assured me of my safety and security thereby compelling me to enter into such an amicable settlement. After 12 P.M. however, my husband expanded the level of his torture upon me and Ekramul Mondal became an adviser co-propagator in the crime. Yesterday i.e. 2.10.2005, at about 12 P.M. while I was asleep, my husband, for no reason at all, started beating me and also attempted to strangulate me with the intention of killing me. After 12 P.M. however, my husband expanded the level of his torture upon me and Ekramul Mondal became an adviser co-propagator in the crime. Yesterday i.e. 2.10.2005, at about 12 P.M. while I was asleep, my husband, for no reason at all, started beating me and also attempted to strangulate me with the intention of killing me. In the scuffle that followed while I attempted to save myself, I fell down from the bed and my husband doused my body with kerosene. His intention was to set me on fire but I started shrieking as a result of which my son woke up. He too started shouting. On hearing our shouts, the neighbours of the locality arrived and rescued me. They then confined my husband in a room and sent message to my father's house whereafter my father and brother came and informed the Police Station. I therefore request you to investigate and resolve the matter in our family". On the basis of the aforementioned written report, the Inspector in charge, Domkal Police Station drew up a formal F.I.R. which was registered as Domkal P.S. case no. 200/2005 dated 3.10.2005 under sections 498A/323/307 I.P.C. and initiated investigation. F.I.R. was registered at 7.45 A.M. After completion of the investigation, charge-sheet under section 498A and 307 of the I.P.C. was submitted vide charge-sheet no. 205/05 dated 27.10.2005 against the both the accused persons. Thereafter cognizance was taken by the Ld. Chief Judicial Magistrate. The case was then committed to the Court of the Ld. Sessions Judge whereafter it was transferred to the Ld. Addl. Sessions Judge, Fast Track (IInd Court) Behrampur, Murshidabad for disposal and after hearing the case and considering the facts and circumstances, and also taking into consideration the materials on record, the said Ld. Court passed the impugned Judgment and Order. 3. BEFORE proceeding to deal with the various aspects of the case, I would first like to deal with the submissions made on behalf of the State. The State has very vehemently contended that the evidence of the child witness being, Wasim Rezza should not be ignored because he was not only a child at the time of the incident but he was as much close to his father as was the informant by marriage being his wife. The State has very vehemently contended that the evidence of the child witness being, Wasim Rezza should not be ignored because he was not only a child at the time of the incident but he was as much close to his father as was the informant by marriage being his wife. Being so close to his father, he could not have been prompted to say anything against him and that too, in open Court when he described the incident in the same way as was narrated by his mother in the written report. According to the State, a child witness, under such circumstances, cannot be disbelieved. 4. IN the background of the aforementioned facts and circumstances, this Court would now like to deal with the case in extenso. Firstly, this Court notices that in the written report, the informant has stated, while concluding the narration of the incident, that after her father and brother reached, they informed the police station. Even upon being questioned, the State was unable to produce any such report lodged by the father and the brother. This is the first discrepancy that I noticed in this case. 5. THE 2nd discrepancy that I have noticed is the fact that if one were to take stock of the prosecution witnesses, it would notice grave shortcomings in their statements. PW1 is the Informant herself. PW 2 is Wasim Rezza (the son of the Informant); PW 3 is the brother of the Informant who is said to have arrived on the scene along with his father. PW 4 is the father of the Informant. PW 5 is the Medical Officer who is said to have examined the Informant. PW 6 is the A.S.I. who received the written report of PW 1. PW 7 is the Investigating Officer of the case. As against the aforementioned 7(Seven) prosecution witnesses, the defence seems to have examined 4 (four) witnesses. They are DW1 (Sajibur Rahaman)- a neighbour ; DW2 (Najumuddin Biswas)- a resident of Etbarnagar ; DW3 (Radheshyam Das) ? B.D.O. Domkal and DW 4 (Afroz Hossain)- Amin in the BLLRO Office at Domkal. 6. PW 1, the informant herself has referred to one Nasima, daughter of Nasiruddin Seikh with whom her husband (the Appellant) was supposed to be having an illicit relationship. Strangely Nasima was never examined. B.D.O. Domkal and DW 4 (Afroz Hossain)- Amin in the BLLRO Office at Domkal. 6. PW 1, the informant herself has referred to one Nasima, daughter of Nasiruddin Seikh with whom her husband (the Appellant) was supposed to be having an illicit relationship. Strangely Nasima was never examined. Moreover, the I.O., in his cross examination, had clearly stated that he could not locate Nasima. Under such circumstances, this Court has no option but to hold that the story of Nasima cannot be believed. Moreover PW 2 who is the son never spoke of Nasima. Similarly PW 3 who is the brother also never spoke of Nasima. 7. THIS prosecution witness has also stated that she had drawn the attention of the Panchayat with regard to the alleged "unholy" acts of her husband in writing to them. However none of the members of the Panchayats were examined by the prosecution in this case. 8. THIS prosecution witness has further referred to the role played by one Rajkumar Kothari, at two places. She names him in the written complaint and then again, in her examination in chief. Her statements qua Rajkumar Kothari was that she had been compelled by him to settle her disputes with her husband at his intervention. Kothari therefore, was an important witness but strangely, he was also not examined by the prosecution. 9. ANOTHER very serious discrepancy is that the PW 1, had nowhere stated in her written report that she had narrated the incident to the Police officer in the night of the incident itself. Yet, and on the contrary, the written report was received in the police station on 3.10.2005 at 7.45 A.M. and in that report, she categorically stated that her father and brother had informed the police. Firstly, and at the risk of repetition, there is no such report of the father and the brother on the record and secondly, the statement of PW 1 in her examination in chief to the effect that "I narrated the entire incident to the Police Officer at the P.S. in that night" becomes doubtful because no such report of the lady which was recorded in the police station at that night itself was produced. Moreover the scribe of the written report is one Mia Asif Iqbal but this gentleman has also not been examined. 10. Moreover the scribe of the written report is one Mia Asif Iqbal but this gentleman has also not been examined. 10. THE cross examination of PW 1 mentions the name of Nilu Biswas, Obeidul Biswas, Mohidul, and one Asadul @ Muklesh Biswas. None of them have been examined. 11. THE statements of PW 1 further show that she referred to, in her cross examination, GD entries made at the Police Station in writing on 26.6.2005 and to the Panchayat on 17.8.2005. These two documents were never exhibited nor brought on record. 12. ON the testimony given by the son in Court, as well as referring to the submissions of the State with regard to an acceptable approach to be extended since he is the son of the Appellant who is not expected to depose against his father, this Court however would not like to extend such support to this child. Firstly, on the date of the alleged incident (2.10.2005), he was 10 years old (as stated by PW 1). On the date he deposed in Court he must have been 12 years. He stated that he and his mother were living together in the house of his maternal grandfather. In other words, he was in the custody not only of his mother but also in the custody of his grandfather. The possibility therefore, of his being tutored, cannot be ruled out. Another very interesting feature of this case is that according to the written report, the son woke up after hearing the shouts of PW 1. In other words, the alleged act of the Appellant trying to strangulate his wife and pouring kerosene on her was not witnessed by her. Therefore the statement made by the child witness in his cross examination attempting to paint the same picture as his mother had painted in the written report amounts to an embellishment and this Court therefore is compelled to infer that such embellishment was resorted to on being tutored by his custodians. His statements therefore do not inspire any confidence in the Court. 13. ANOTHER very interesting feature is that in the written report, Ekramul Mondal is supposed to have been present. This was stated by the PW 1 in Court also. In fact PW 1 had also gone to the extent of stating that he was instigating her husband to pour kerosene oil on her. 13. ANOTHER very interesting feature is that in the written report, Ekramul Mondal is supposed to have been present. This was stated by the PW 1 in Court also. In fact PW 1 had also gone to the extent of stating that he was instigating her husband to pour kerosene oil on her. In other words, both Ekramul and the Appellant were equally responsible but the ld. Court below gave the benefit of doubt to him and passed an order acquitting Ekramul Mondal. 14. THE statements of the informant become even more doubtful because in the Court she narrates the incident in such a manner that it amounts to introducing a totally new story. She, in her examination, inter alia, states as follows:- "Then I divulged the entire incident to my brother by catching hold of him as I was frightened and trembling at that time. My paternal house is 5 minutes' walking distance from my in-laws' house. Members of my paternal house came to my in-laws' house. Then the incident was reported to the ps. and police came to my in-laws' house and I had been to the police stn. Along with police and the police had also taken my husband to the p.s. Then I narrated the entire incident to the police officer at the ps. In that night." [Quoted] 15. HOWEVER, if the aforementioned quoted portion is compared with what she had stated in the written report, it will appear that there are two different stories altogether. 16. CONSIDERING the aforementioned facts and circumstances, the version of the lady becomes very doubtful and under such circumstances, if her versions are doubtful, then in that event, the statements of her minor son who had been living with her and who had been in her protective custody as well as in the protective custody of his maternal grandparents, cannot also be believed as chances of his being tutored cannot be ruled out. In that context, his statements to the effect that he, along with his mother, were "now" living in the house of his maternal grandfather, attains significance. 17. PW 1 further states in her cross examination that her husband had not made any demands for dowry. Under the circumstances and in view of the findings given above, the question of attracting the provisions of Section 498A is not acceptable to this Court. 17. PW 1 further states in her cross examination that her husband had not made any demands for dowry. Under the circumstances and in view of the findings given above, the question of attracting the provisions of Section 498A is not acceptable to this Court. Similarly, no case can be said to have been established by the prosecution to hold that the Appellant should be held guilty under Section 307 I.P.C. 18. CONSIDERING the aforementioned facts and circumstances, this Court is unable to uphold the impugned judgment. It is accordingly set aside and the Appeal is allowed. The Appellant is acquitted from the charges for which he was held guilty. He be set at liberty and be released from the bail bonds at once. No order as to costs. 19. UPON appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.