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2020 DIGILAW 64 (CAL)

SK Aktar Ali And Anr v. State Of West Bengal

2020-01-15

JOYMALYA BAGCHI, SUVRA GHOSH

body2020
JUDGMENT Suvra Ghosh, J. - The appeal is directed against judgment and order of conviction and sentence passed by the Learned Additional District and Sessions Judge, Fast Track Court - II, Uluberia, Howrah, in S.T. Case No. 289/07 whereby the learned trial Court convicted the appellants for offence punishable under section 498A/302/34 of the Indian Penal Code (in short I.P.C.) The learned trial Court sentenced the appellants to suffer rigorous imprisonment for two years and pay fine of Rs. 500/-, in default to suffer simple imprisonment for two months for offence punishable under Section 498A of the I.P.C. and to suffer rigorous imprisonment for life and to pay fine of Rs. 2,000/-, in default to suffer simple imprisonment for 10 months for offence punishable under Section 302 of the I.P.C., both the sentences to run concurrently. 2. The case of the prosecution, in a nutshell, is that the defacto complainant Jamsed Mallick lodged complaint on 12-06-2001 before Shyampur P.S. to the effect that his daughter Rausnara Biwi aged about 19 years was married to Sk. Aktar Ali, son of late Sk. Mofi before about three months from the date of complaint and after her marriage her husband, husband's sister and mother inflicted torture upon her regularly. The complainant was informed on 12-06-2001 that his daughter had hanged herself to death. He alongwith his family members immediately rushed to his daughter's house and found his daughter hanging by a knot tied with a cloth. Marks of injury were found on her chin and the inmates of her matrimonial home were absent. The complainant believed that the husband, mother-in-law and sister-in-law of the victim jointly murdered her. 3. On receipt of the complaint, Shyampur P.S. Case No. 50 dated 12-06- 2001 was registered under section 498A/302/201/34 of the I.P.C., setting the criminal law in motion. Charge sheet was submitted against the appellants and another under section 498A/302/201/34 of the I.P.C. after completion of investigation. The case was committed to the Learned Sessions Judge, Howrah, and was subsequently transferred to the Court of Learned Additional Sessions Judge, Fast Track Court - II, Uluberia for trial/disposal. 4. No execution report with regard to warrant of arrest issued against accused Arjina Begum was received and the case was filed for the present in respect of the said accused. 4. No execution report with regard to warrant of arrest issued against accused Arjina Begum was received and the case was filed for the present in respect of the said accused. Upon consideration of the material on record, charge was framed against the appellants under section 498A/302/34 of the I.P.C. Substance of accusation was read over and explained to the appellants to which they pleaded not guilty and claimed to be tried. Accordingly, the prosecution, in order to prove its case, examined 17 witnesses and documents were marked as Exhibits 1 to 7. Wearing apparel of the victim was produced and marked as Material Exhibit - I. The defence case, as it appears from the trend of cross-examination as well as statement of the appellants under section 313 of the Cr.P.C., is a denial of the prosecution case and a plea of innocence. No witness was however examined by the appellants. In conclusion of evidence, the learned trial Court, by the judgment impugned, convicted the appellants for offence punishable under section 498A/302/34 of the I.P.C. and sentenced them accordingly. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the appellants have come up in appeal before this Court, praying for acquittal. 5. In refuting the judgment impugned, learned advocate for the appellants submitted that no case of demand of dowry was made out in the First Information Report and alleged demand of bicycle has cropped up for the first time in the evidence led by prosecution witnesses. The alleged neck injury of the victim has also not found place in the F.I.R. (First Information Report). The allegation of demand of dowry was not disclosed before the Investigating Officer by the witnesses and the neighbours of the victim were also not examined. Mere absence of the appellants from the place of occurrence after the death of the victim does not ipso facto suggest that the appellants were guilty of the alleged offence. The medical report of the victim also does not support the prosecution case. Apart from the close relatives of the victim, the other witnesses deposed that the victim led a happy conjugal life in her matrimonial home. The medical report of the victim also does not support the prosecution case. Apart from the close relatives of the victim, the other witnesses deposed that the victim led a happy conjugal life in her matrimonial home. PW-2 who is the victim's mother stated in her evidence that the victim was married to Aktar Ali about 7 years and 2 months prior to her death and therefore alleged demand of a bicycle by the appellants after so many years of marriage is highly improbable. Drawing the attention of the Court to the contradictions and discrepancies in the evidence of the witnesses, learned advocate for the appellants has submitted that the evidence on record is too scanty to bring home charge against the appellants under section 498A/302/34 of the I.P.C. and as such, the appellants deserve an order of acquittal. 6. The State supported the impugned judgment and stood by it. It was submitted on behalf of the State that the death of the victim was homicidal as appears from the post-mortem report. It was categorically stated by PW-3 and PW-4 that despite giving cash and gold ornaments to the appellants at the time of marriage as per their demand, the appellants continued to create pressure upon the victim on demand of a bicycle and inflicted torture upon her which was reported to them by the victim. The victim admittedly died in her matrimonial home. According to the prosecution, the allegations against the appellants have been proved to the hilt by sufficient and adequate evidence and therefore, the judgment and order impugned should be affirmed and the appeal dismissed. 7. Alleged demand of a bicycle led to deprivation of the precious life of a newly wed girl even before she could fulfill her cherished dreams of a happy married life. The post-mortem report confirms that her death was "due to asyphyxia following strangulation which is ante mortem and homicidal in nature". The moot question for consideration is whether the appellants or any of them are/is responsible for such homicidal death of the victim. In order to arrive at a decision regarding the guilt of the appellants or otherwise, it is necessary to scan and weigh the evidence led by the prosecution. 8. The moot question for consideration is whether the appellants or any of them are/is responsible for such homicidal death of the victim. In order to arrive at a decision regarding the guilt of the appellants or otherwise, it is necessary to scan and weigh the evidence led by the prosecution. 8. Pw-1 Jamsed Mallick who is the de facto complainant and the father of the deceased submitted that he gave cash and gold ornaments to his daughter at the time of her marriage with Sk. Aktar Ali as demanded by him but was unable to meet the demand of a bicycle as a result of which the appellants created pressure upon his daughter and inflicted torture upon her. The victim died within two months of her marriage by hanging in the western part of her matrimonial home. Mark of injury was detected on her chin and right side of her throat. When PW-1 reached her daughter's home after receipt of news of her death, the members of the matrimonial home were found absent. This witness could not recollect whether grant of Rs. 4,000/- and gold ornaments was stated in the written complaint but he was aware that the demand of cycle and torture upon his daughter on such demand were mentioned in the First Information Report (F.I.R.). 9. Pw-2 who is the mother of the victim reiterated the version of PW-1 and added that she found injury marks on the chin and right cheek of her deceased daughter. 10. Pw-3, PW-4 and PW-5 are related to the victim and have spoken in tune with the parents of the victim. PW-3 stated that the victim was not allowed to mix with co-villagers. The victim disclosed before her mother and aunt (kakima) 4-5 days prior to her death that the appellants might kill her if their demand for a bicycle was not met. 11. Pw-6 is a co-villager and had visiting terms with the appellants. PW7 is the brother-in-law of appellant no. 1. Both these witnesses turned hostile. PW-8 is also a co-villager who was declared hostile by the prosecution. 12. Pw-9 was a witness to the seizure of the wearing apparel of the deceased. 13. Pw-10 claimed to have no knowledge about the incident and was declared hostile. PW-11 is the scribe of the written complaint and drafted the same on instruction of the complainant. PW-8 is also a co-villager who was declared hostile by the prosecution. 12. Pw-9 was a witness to the seizure of the wearing apparel of the deceased. 13. Pw-10 claimed to have no knowledge about the incident and was declared hostile. PW-11 is the scribe of the written complaint and drafted the same on instruction of the complainant. PW-12 who was known to the appellants also turned hostile. 14. Pw-13 held inquest of the body of the deceased and sent the body for post-mortem examination. 15. Pw-14 is the autopsy surgeon who opined that death of the victim was "due to asyphyxia following strangulation which is ante mortem and homicidal in nature." 16. Pw-15 received the written complaint and registered the case. PW17 is the Investigating Officer who investigated the case and investigation was subsequently taken over by PW-16 who concluded the investigation and submitted charge sheet. 17. It is a fact that the F.I.R. is silent with regard to demand of any dowry, far less a bicycle. The F.I.R. speaks of assault upon the victim by the appellants followed by unnatural death of the victim. 18. The definition of "cruelty" as laid down in explanation (a) to section 498A of the Indian Penal Code is set out: "(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman;" 19. It is trite law that the F.I.R. need not be an encyclopaedia of facts and is only an instrument in writing which sets the criminal law into motion. Every minute detail of the alleged incident need not be incorporated in the F.I.R. and it is sufficient if an outline of such incident is reflected therein. Keeping in mind the mental state of the complainant at the time of lodging the complaint on the day when he lost his daughter, it is quite normal that he was unable to gather himself to give out a detailed and vivid picture of the torture meted out upon his daughter, resulting in her demise. Keeping in mind the mental state of the complainant at the time of lodging the complaint on the day when he lost his daughter, it is quite normal that he was unable to gather himself to give out a detailed and vivid picture of the torture meted out upon his daughter, resulting in her demise. Therefore, the entire allegation under section 498A of the I.P.C. cannot be discarded merely on the ground that the F.I.R. is bereft of any allegation with regard to demand of dowry by the appellants, more so, as such demand has been narrated by material witnesses examined by the prosecution. 20. It transpires from the evidence of PW-1, PW-2, PW-3, PW-4, and PW5 who are the relatives of the deceased that the deceased disclosed before them that she was tortured and assaulted by the appellants on demand of a bicycle. PW-5 stated that the victim stated that there was every possibility of her being murdered by the appellants if their demand was not satisfied. It is a fact that all these witnesses are related to the victim. But law enjoins that evidence of such witnesses cannot be discounted merely on the ground that they are related to the victim and may blindly speak in favour of the prosecution case irrespective it being devoid of truth. The evidence of these interested witnesses should be tested on the touchstone of truth and credibility and there is no bar in placing complete reliance upon the same if they are found to be credible. In the present case, the victim died within two months of her marriage and there can be no conceivable reason which would prompt these witnesses to falsely implicate the appellants with whom their cordial relation had just developed. Marks of injury have also been detected in the person of the victim which corroborates the unanimous statement of the witnesses which in turn is in conformity with the version of the F.I.R. 21. True, no independent witness has supported the prosecution case. It should be borne in mind that ordinarily members of the public including neighbours refrain from intervening in the lives of others unless requested or compelled. They prefer to remain out of the rigours of investigation which is followed by the hazards of a criminal trial. 22. True, no independent witness has supported the prosecution case. It should be borne in mind that ordinarily members of the public including neighbours refrain from intervening in the lives of others unless requested or compelled. They prefer to remain out of the rigours of investigation which is followed by the hazards of a criminal trial. 22. It is a fact that no complaint with regard to such torture was reported before any authority by the victim or her parental family during her lifetime. But the Court should not lose sight of the reality that a girl as ordinarily placed as the victim would choose to bear the ill-treatment meted out to her in her matrimonial home silently and not disclose the same before an outsider in the neighbourhood of her matrimonial home where she had stepped in only a couple of months ago or even rush to lodge a complaint for every incident of torture or assault. She however disclosed her plight before her dear ones before leaving the mortal world. 23. Therefore it can be concluded that both the appellants were guilty of subjecting the victim to cruelty on demand of a bicycle and offence under section 498A of the I.P.C. has been substantiated against them beyond all reasonable doubt. 24. With regard to the offence under section 302 of the I.P.C. it is revealed from the post-mortem report of the victim that death of the victim was "due to asyphyxia following strangulation which is ante mortem and homicidal in nature." In other words, the victim was strangulated to death and then hanged by a saree to the ceiling of a room in her matrimonial home. Marks of strangulation were also found on both sides of her neck. The rough sketch map of the place of occurrence indicates that the house of the appellants comprises two rooms and it can be ordinarily presumed that one of the rooms was occupied by the victim and her husband appellant no. 1 and the other room by appellant no. 2 and her daughter. The death of the victim was reported to the de facto complainant at about 8:00 A.M. and it can be safely inferred that the incident occurred on the previous night. It is crystal clear from the evidence on record that both the appellants and the daughter of appellant no. 2 and her daughter. The death of the victim was reported to the de facto complainant at about 8:00 A.M. and it can be safely inferred that the incident occurred on the previous night. It is crystal clear from the evidence on record that both the appellants and the daughter of appellant no. 2 used to reside with the victim in the same house which suggests that appellant no. 1 was in the same room with the victim at the time of the incident. 25. It is clearly envisaged in section 106 of the Evidence Act, 1872 that "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 26. In the case in hand, such burden essentially lies upon appellant no. 1 who by virtue of sharing the same room with the victim is supposed to explain the unnatural death of the victim. This appellant cannot get away by simply keeping quiet and not furnishing the explanation which would be believable and trustworthy. Despite having such opportunity while being examined under section 313 of the Cr.P.C., appellant no. 1 offered no such explanation and only evasively denied the allegations put forth against him. In the premise, it can be safely presumed that appellant no. 1 and none else was responsible for the unnatural death of the victim and is therefore the perpetrator of the offence punishable under section 302 of the I.P.C. The material on record, however, is far from sufficient to implicate appellant no. 2 in the alleged crime as no direct nexus between this appellant and the incident of murder of the victim has transpired from the evidence on record. 27. In the light of the observations made herein above, I am of the view that conviction and sentence of both the appellants with regard to offence punishable under section 498A of the I.P.C. should be upheld. 28. The prosecution has failed to substantiate the offence under section 302 of the I.P.C. against appellant no. 2 and she deserves to be acquitted from the said charge. As appellant no. 2 has already served out the sentence imposed upon her for offence punishable under section 498A of the I.P.C, she be set at liberty at once and be discharged from her bail bond. 29. However, conviction and sentence imposed upon appellant no. 2 and she deserves to be acquitted from the said charge. As appellant no. 2 has already served out the sentence imposed upon her for offence punishable under section 498A of the I.P.C, she be set at liberty at once and be discharged from her bail bond. 29. However, conviction and sentence imposed upon appellant no. 1 for offence punishable under section 302 of the I.P.C. is affirmed. Both the sentences awarded to appellant no. 1 shall run concurrently. 30. C.R.A. 66 of 2011 is disposed of accordingly. 31. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities. I agree.