Research › Search › Judgment

Calcutta High Court · body

2022 DIGILAW 226 (CAL)

Sk. Saibul v. State Of West Bengal

2022-02-14

BIBEK CHAUDHURI

body2022
JUDGMENT Bibek Chaudhuri, J. - The judgment and order of conviction and sentence passed by the Learned additional Sessions Judge, Fast Track Court, Haldia in Sessions Trial No. 67/2014 arising out of Sessions Case No. 388/august/2014 convicting the appellants under Section 498a of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years each with fine and default clause is assailed in the instant appeal. One Syed Rashid ali lodged a written complaint before the Officer-in-Charge, Nandigram Police Station on 21st September, 2012 stating, inter alia, that marriage of his daughter, Samina Begum was held with one, Sk. Saibul according to Mohammedan rites and ceremonies. after marriage the husband of Samina and other matrimonial relations, viz., her mother-in-law, brothers-in-law and sister-in-law used to torture her very often both physically and mentally. In her wedlock, she gave birth to two daughters. During the month of September, 2012, she was pregnant and due to give birth to another issue. after the birth of their two children the husband and other matrimonial relations started to put pressure upon the de facto complainant to bring money from her father's house in order to keep those money in fixed deposit for the future of the daughters of Samina. as the father of Samina could not satisfy the demand of the accused persons, she was tortured both physically and mentally. It is alleged that on 20th September, 2012 the accused persons assaulted her severely and committed murder by strangulation. Then to conceal the evidence of murder they hanged her with a rope. The de facto complainant got information of the said incident at about 5.00 a.m. on 21st September, 2012 and rushed to the matrimonial home of is daughter. He found that the dead body of Samina was lying on the 'Varandah' of the house of the accused persons and there was a mark of ligature around her neck. On the basis of the said complaint, Police registered Nandigram Police Station Case No. 220/2012 dated 21st September, 2012 under Sections 498a/302/120B of the Indian Penal Code and Section 4 of the Dowry Prohibition act and took up the case for investigation. On completion of investigation, Police submitted charge-sheet against the above-named accused persons under Sections 498a/302/120B of the Indian Penal Code and Section 4 of the Dowry Prohibition act before the Learned additional Chief Judicial Magistrate, Haldia. On completion of investigation, Police submitted charge-sheet against the above-named accused persons under Sections 498a/302/120B of the Indian Penal Code and Section 4 of the Dowry Prohibition act before the Learned additional Chief Judicial Magistrate, Haldia. Since the offence under Section 302 of the Indian Penal Code is triable exclusively by the Court of Sessions, it was committed to the learned Sessions Judge, Purba Medinipore. Subsequently, the case was transferred to the Fast Track Court of the learned additional Sessions Judge at Haldia for trial and disposal. Charge was framed against the accused persons under Sections 498a/302 of the Indian Penal Code. as the accused persons pleaded not guilty the prosecution was called upon to produce evidence. In all prosecution examined nine witnesses. Defence case as disclosed from the cross-emanation of the witnesses on behalf of the prosecution was denial of the prosecution story. The Learned Trial Judge on due consideration of evidence on record held that the prosecution was able to bring home the charge against the accused persons under Section 498a of the Indian Penal Code. accordingly, they were convicted and sentenced. The order of conviction and sentence passed against the accused persons is under challenge in the instant appeal. It is already recorded that during trial prosecution examined nine witnesses. amongst them, P.W. 1 is the father of the deceased and the de facto complainant. P.W. 2 is the paternal aunt of the deceased. P.W.3 is the mother of the deceased and P.W. 4 is her younger brother. P.W. 5, Sakila Bibi is another sister of deceased Samina. P.W. 6 is the brother-in-law (Jamaibabu) of the deceased. P.W. 7, assistant Sub-Inspector, Jayanta Ghosal prepared inquest over the dead body of Samina. P.W. 8, Dr. P. K. Das is the autopsy Surgeon and P.W. 9, M. K. Sahu is the Investigating Officer of the case. as the Court of appeal, this Court has the bounden duty to scan and appreciate the evidence on record independently. It is ascertained from the evidence of P.W. 1, Syed Rashid ali that marriage of the deceased was solemnized about 10 years before the date of his deposition. He also staged that in her matrimonial home Samina was subjected to physical and mental torture. Her mother in law, sister in law and husband used to inflict physical torture upon Samima. In spite of such physical torture, Samima stayed at her matrimonial home. He also staged that in her matrimonial home Samina was subjected to physical and mental torture. Her mother in law, sister in law and husband used to inflict physical torture upon Samima. In spite of such physical torture, Samima stayed at her matrimonial home. In the wedlock between the Samima and Sk. Saibal, two girl children were born. after the birth of the said two daughters, the husband of the de facto complainant used to pressurize upon his wife to bring money from her paternal home to keep the said money in fixed deposit in the name of his daughters. Samima could not bring such money due to poverty of her father. Therefore, she was tortured. On 20th September, 2012, the accused persons tortured her both physically and mentally and committed her murder by strangulation. He got such information in the early morning of 21st September, 2012 and rushed to the matrimonial home of his daughter. He saw the dead body of Samima lying on the 'Varandah' of her matrimonial home. It is also stated by him that when he reached the matrimonial home of his daughter, he found her husband alone present in the house. Other accused persons had fled away. Subsequently, the husband of Samima also fled away from the house. The written complaint submitted by P.W.1 was marked as Exhibit.1. He also identified the wearing apparels of the deceased. From his cross-examination it is ascertained that previously during the lifetime of his daughter, he informed the incidence of torture to the Police but he failed to produce any such document in support of his claim. In his cross-examination, he also admitted that he disclosed the fact for the first time before this Court. From her cross-examination, it is also learnt that the de facto complainant has a factory of tailoring at Garden Reach. The accused/appellant No.1 also used to work as a tailor at Garden Reach. Evidence of P.W.2, P.W.3, P.W.4 and P.W.5 are almost similar like that of P.W.1. The trend of cross-examination is also the same in respect of the above-named witnesses. The accused/appellant No.1 also used to work as a tailor at Garden Reach. Evidence of P.W.2, P.W.3, P.W.4 and P.W.5 are almost similar like that of P.W.1. The trend of cross-examination is also the same in respect of the above-named witnesses. The learned Trial Judge on due consideration of the evidence of autopsy Surgeon (P.W.8) and the post mortem examination report held that since the autopsy Surgeon opined that the cause of death of Samima was due to effects of hanging, ante mortem in nature, it is not possible for him to hold the accused persons guilty for committing offence under Section 302 of the Indian Penal Code. Learned advocate for the appellants, at the outset, submits that in the instant case, all the witnesses on behalf of the prosecution are near relatives of the deceased. Therefore, they are the interested witnesses and their evidence ought to be considered on careful and strict appreciation. With this introduction, it is pointed out by the learned advocate for the appellants that the witnesses unequivocally admitted that they are adducing their evidence for the first time in Court. Therefore, they were not examined by the Investigating Officer at the time of investigation and their statements were not recorded under Section 161 of the Code of Criminal Procedure. Since the witnesses were not examined under Section 161 of the Code of Criminal Procedure, it is not possible for the defence to take contradiction in the evidence of the witnesses on behalf of the prosecution. It is needless to say that a statement of witnesses recorded under Section 161 of the Code of Criminal Procedure can only be used for contradiction. It is not the rule that the evidence of a person whose statement was not recorded under Section 161 of the Code of Criminal Procedure, the same shall be discarded altogether. The witnesses were subjected to cross-examination. They were cross-examined by the defence. It is ascertained from the case diary that the statement of the witnesses made before the Investigating Officer under Section 161 of the Code of Criminal Procedure were part of the case diary and the copies of the same were supplied to the accused persons. The witnesses were subjected to cross-examination. They were cross-examined by the defence. It is ascertained from the case diary that the statement of the witnesses made before the Investigating Officer under Section 161 of the Code of Criminal Procedure were part of the case diary and the copies of the same were supplied to the accused persons. If there was any inherent contradiction in the evidence of the witnesses on behalf of the prosecution, attention of the witnesses with the statement recorded under Section 161 of the Code of Criminal Procedure could have been drawn by the learned defence Counsel to take contradiction. Only because a witness stated that he was not examined by the Investigating Officer during investigation and he disclosed the fact for the first time in Court is not enough to discard the entire evidence of the witnesses on behalf of the prosecution. In order to substantiate his contention, the learned advocate for the appellant relies on a decision of the Hon'ble Supreme Court in the case of Tarun @ Gautam Mukherjee vs. State of W.B. reported in (2001) 10 SCC 754 . In Paragraph 3 of the said judgment, the Hon'ble Supreme Court observed as hereunder:- '3.To appreciate this contention, we have ourselves scrutinized the evidence of P.Ws. 2, 4 and 5. The maid servant (P.W.-4), who deposed in her evidence-in-chief about the fact that the accused used to assault the deceased almost daily on the instigation of his sister, but in the cross-examination, it has been elicited that she has not stated so in her statement to the police recorded under Section 161 Cr.P.C. Such material omission would discredit her version in Court. If her evidence is taken out from the purview of consideration, then the evidence of P.Ws. 2 and 5 cannot be held to be of such nature which would establish the cruelty on the part of the husband to bring home the offence under Section 498a I.P.C. In our view, therefore, the High Court was in error in upholding the conviction under Section 498a I.P.C.' The facts of the above-mentioned reported decision is different from the facts of the instant case. In the said report, P.W.4 indeed made a statement before the Investigating Officer under Section 161 of the Code of Criminal Procedure. In the said report, P.W.4 indeed made a statement before the Investigating Officer under Section 161 of the Code of Criminal Procedure. But she did not state that the accused used to assault the deceased almost daily on the instigation of his sister. This omission is considered to be fatal for the prosecution. In the instant case, it is pleaded on behalf of the defence that the witnesses were never examined by the Investigating Officer as admitted by P.W.1 and other witnesses. It is pertinent to mention that the said allegation was never put to the witnesses as to whether they were examined by the Investigating Officer or not. On being asked as to whether they are deposing for the first time in Court or not, the witnesses answered in the affirmative. Of Course, the witnesses were deposing during trial for the first time in Court that does not mean that they were not examined by the Investigating Officer. I have carefully considered the evidence on record. In cross-examination, P.W.4 stated, ' I disclosed the fact to Police on the death of my sister. I did not disclose to police that on 20.09.2012 the accused beat my sister as she did not bring money.' 'Not a fact that I did not disclose to police that my sister was subjected to torture and they committed murder of my sister by strangulation with rope made of ganji (vest).' 'Not a fact that I did not disclose the police that I found injury on head and back of my sister.' The cross-examination of P.W.1 also suggests that he made statement before the Investigating Officer. From the cross-examination of P.w.2 dated 27th January, 2015, it is ascertained that the police asked her about her identity and she replied that she was the aunt of the deceased. She, however, could not recollect whether she stated to police the accused caused death of Samima by strangulation. So far as cruelty is concerned, the evidence of P.W.2 was not contradicted. She, however, could not recollect whether she stated to police the accused caused death of Samima by strangulation. So far as cruelty is concerned, the evidence of P.W.2 was not contradicted. at the time of dictation in open Court, it is pointed out by the learned advocate for the appellants that by relying on the specific portion of the cross-examination of P.W.1, where he stated that he for the first time disclosed the fact before this Court, he wanted to mean that he was examined by the Investigating Officer but he did not state the facts and circumstances of the torture inflicted upon her by the accused persons. Had there been any such omission, it was the duty of the learned defence Counsel to contradict the said fact by showing the statement to the witness recorded under Section 161 of the Cr.P.C. The learned defence Counsel in the Trial Court did not take any such attempt. Learned advocate for the accused also submits that the prosecution must come up with specific case of torture. Omnibus and general allegation made by de facto complainant in his written complaint and the witnesses during examination is not sufficient to hold the accused persons guilty for committing offence under Section 498a of the Indian Penal code. In support of his contention, learned advocate for the appellants relies on Paragraphs 35 to 37 of the decision of the Hon'ble Supreme Court in the case of Preeti Gupta & anr. Vs. State of Jharkhand & anr. reported in (2010) 7 Supreme Court Cases 667. 35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. at times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The Courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinized with great care and circumspection. 36. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinized with great care and circumspection. 36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful. 37. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the Courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. He also refers to Paragraph 21 of the decision of the Hon'ble Supreme Court in Bijender & Ors. Vs. State of Haryana reported in 2015(2) aICLR 124 which runs thus:- '21. Statement of Ram. Phal (P.W.8), Guddi (P.W.4) and Dhup Singh (PW6) does not inspire confidence and cannot be relied upon to come to a definite conclusion, that all the four accused used to harass the deceased and her sister for having not taken adequate dowry. P.W.-4, Guddi in her statement has stated that her mother-in-law and sister-in-law used to taunt and harass them. all the four accused used to cause beat them. P.W.-4, Guddi in her statement has stated that her mother-in-law and sister-in-law used to taunt and harass them. all the four accused used to cause beat them. P.W.-6, Dhup Singh deposed that the accused ajit and Bijender assured that they shall not harass Bimala in future. P.W.-8, Ram Phal stated that ajit and Bijender came to his house and demanded Rs.50,000/- to purchase a tempo two years before the occurrence of the event. There is no specific allegation made by any of the aforesaid witnesses about harassment of Bimala with a view to coerce her on any person related to her to meet any unlawful demand. If two brothers asked for Rs.50,000/- for purchase of tempo, in absence of corroborating evidence, it cannot be concluded that such demand was unlawful. In normal course, many times one relation may ask for some loan from the other relation for purchase of vehicle or property. In the present case there is no allegation that due to non-payment of the amount two years back the deceased was harassed by the accused. In absence of any specific evidence to prosecute under Section 498a IPC, we are of the view that the accused appellants are entitled for benefit of doubt as prosecution failed to prove the charge beyond all reasonable doubt.' Learned Public Prosecutor-in-Charge, on the other hand, submits that all the witnesses on behalf of the prosecution states that the deceased was subjected to cruelty at the hands of her husband and her matrimonial relations and the evidence of the prosecution witnesses and the circumstantial evidence makes it amply clear that she was harassed beyond limits by her in-laws at her matrimonial home, which had caused her death. The same had made her run away from her matrimonial home on several times and had ultimately resulted in death. In the instant case also it is stated in the FIR that on being pressurized by her husband and other matrimonial relations, she came to her paternal home to bring money for making fixed deposits in the name of her daughters but she returned with empty hand from her paternal home. according to the learned advocate for the State, the ingredients to constitute the offence under the provision of Section 498a IPC, have been fully satisfied and the order of conviction and sentence ought to be upheld. according to the learned advocate for the State, the ingredients to constitute the offence under the provision of Section 498a IPC, have been fully satisfied and the order of conviction and sentence ought to be upheld. In support of his contention, he refers to a decision of the Hon'ble Supreme Court in the case of Bhanuben Vs. State of Gujarat reported in 2015 (4) Crimes 39 (SC). Ms. Faria Hossain, Learned advocate for the State further submits that marriage of Samina with Sk. Saibul is not disputed. all the witnesses stated on oath before the Trial Court that Samina was subjected to torture by her husband and other matrimonial relations. It is also noticed from the evidence that the wife of Sk. Saibul died after eight years of marriage. The father of the deceased as well as other witnesses stated on oath that the victim was subjected to cruelty on demand of money from her paternal home for making fixed deposits for their minor daughters. as the father of the deceased failed to pay any money to Samina she was tortured with cruelty. Thus, it is submitted by the Learned Public Prosecutor-in-Charge that the prosecution has been able to prove that Samina was subjected to cruelty within the meaning of explanation - (b) of Section 498a of the Indian Penal Code. In the instant appeal it is ascertained from the evidence of the autopsy Surgeon, P.W. 8 that during post-mortem examination he found non continuous high up in the neck involving right anterior aspect of neck as well as left side wall and left posterior 2/3 or neck brownish purchmentized ligature mark. according to him, Samina Begum died as a result of hanging - ante-mortem in nature. Therefore, death of Samina Begum was a case of suicide and the allegation against the appellants that they committed murder of Samina is proved to have been false. Tough the principle of Falsus in uno, Falsus in omnibus is not applicable in criminal case, when a part of the FIR or deposition of the witnesses is found to be the false, it is the duty of the Court to consider the entire case and the evidence adduced by the witnesses on behalf of the cross-examination with great care and caution. From the evidence of P.W. 1, it is ascertained that the appellants did not demand any dowry at the time of the marriage of Sk. Saibul with Samina. It was specifically stated by P.W. 1 that at the time of the marriage of Samina, he gave 'Jautuk' (bridal presents) to Samina. It is needless to say that bridal presents do not form part of dowry. P.W. 1 further stated that Samina was subjected to cruelty by her husband and other matrimonial relations and over the said dispute, village salish was held. The Investigating Officer did not try to examine any independent witness in support of the prosecution case about holding village salish to solve matrimonial dispute between Samina and her husband. P.W. 1 could not produce any document to show that he lodged any complaint or general diary against the accused persons during the lifetime of his daughter. Except P.W. 1 all other witnesses are in the nature of hearsay. Nobody saw the incident dated 20th September, 2012. If the mother of two children was mercilessly beaten by the father and other matrimonial relations in their presence, they would be the best witnesses to state the said fact. Prosecution, however, did not take any attempt to produce the said two children to give evidence before the Learned Trial Court. It is needless to say that domestic violence and matrimonial torture are perpetrated inside the four corners of the house. Except the matrimonial relations of the married woman, no other person has any scope to see such torture. Even if such torture is witnessed by any of the members of the matrimonial home of the victim, he/she would not adduce any evidence against his relatives. The neighbours generally remain aloof in respect of the incident of cruel treatment of a married woman in her matrimonial home. Therefore, the father and other relatives of paternal side are the natural witnesses to prove a case under Section 498a of the Indian Penal Code. But their evidences must be liable, cogent and free from major contradictions. In the instant case, however, the father of the deceased and other witnesses who are relatives of the deceased failed to produce any document to prove the chain of events that Samina was subjected to physical and mental torture since after her marriage. But their evidences must be liable, cogent and free from major contradictions. In the instant case, however, the father of the deceased and other witnesses who are relatives of the deceased failed to produce any document to prove the chain of events that Samina was subjected to physical and mental torture since after her marriage. I have already recorded that P.W. 1 could not produce any witness or any document to prove that village salish was held to solve the dispute between Samina and her matrimonial relations. He claimed that he narrated the incident to Police even during the lifetime of his daughter but no such document was produced during trial. Surprisingly enough, when a married woman was subjected to torture for about 7/8 years constantly by her matrimonial relations, she or her paternal relations did not file any written complaint in the local Police Station during her lifetime. For the reasons recorded above, the appellants are entitled to get benefit of doubt. The instant appeal is, therefore, allowed and the judgment and order of conviction and sentence passed by the Learned additional Sessions Judge, Fast Track Court, Haldia in Sessions Trial No. 67/2014 arising out of Sessions Case No. 388(august)/2014 is set aside. The appellants are discharged from their respective bail bonds. all parties are to act on the server copy of this order.