Sk. Mustafa & Others vs The State Of West Bengal on 19 July, 2017

IN THE HIGH COURT AT CALCUTTA

Criminal Appellate Jurisdiction

BEFORE:

The Hon’ble Mr. Justice Joymalya Bagchi

C.R.A. 573 of 2015
With
C.R.A.N. 1045 of 2017

SK. MUSTAFA OTHERS
VS
THE STATE OF WEST BENGAL

For the Appellants : Mr. Ranjan Bachawat, Senior Advocate
Mr. Phiroz Edulji, Advocate

For the State : Mrs. Anasuya Sinha, Advocate

Heard on : July 13, 2017

Judgement on : July 18, 2017

Joymalya Bagchi, J. :

The Appeal is directed against judgement and order dated 29.06.2015 and

30.06.2015

passed by learned Additional Sessions Judge, Uluberia, Howrah in

Sessions Trial Case No. 254 of 2011 convicting the appellants for commission of

offence punishable under Sections 498A/306/34 of the Indian Penal Code and

sentencing the appellant nos. 1 to 4 to suffer rigorous imprisonment for six years

each and to pay a fine of Rs.2,000/-each, in default to suffer simple
imprisonment for two months more for the offence punishable under Sections

306/34 of the Indian Penal Code and also to suffer rigorous imprisonment for

two years each and to pay a fine of Rs.1,000/-each, in default to suffer simple

imprisonment for one month more for the offence punishable under Sections

498A/34 of the Indian Penal Code and sentencing the appellant nos. 5, 6 and 7

to suffer simple imprisonment for four years each and to pay a fine of Rs.2,000/-

each, in default to suffer simple imprisonment for two months more for the

offence punishable under Sections 306/34 of the Indian Penal Code and to suffer

simple imprisonment for two years each and to pay a fine of Rs.1,000/-each, in

default to suffer simple imprisonment for one month more for the offence

punishable under Sections 498A/34 of the Indian Penal Code, all the sentences

to run concurrently.

The prosecution case, as alleged against the appellants, is to the effect that

one Sabira Begum, sister of Sk. Abdul Ajim (P.W.1) was married to the appellant

no.1, Sk. Mustafa on 23.09.2001 by executing a Kabilnama. Six months after the

marriage, the appellants created pressure upon the victim to bring money from

her parental home. In order to ensure happy conjugal life for the victim, her

family members gave money on a few occasions as per their capacity. The

appellants, however, continued physical and mental torture upon the victim on

further demands of money.

It is further alleged that 5-6 months before the incident, the appellants

tried to kill the victim by pouring kerosene oil on her body for which she was

admitted to New Eden Nursing Home at Uluberia. Upon recovery the victim was
taken to her parental home. The appellants admitted that they would not torture

the victim in future and brought her back to the matrimonial home. Two months

ago they again demanded money and subjected her to torture when such

demand was not met. On the fateful day, that is on 10.12.2008 the defacto

complainant received a telephonic call when the appellant no.1 demanded Rs.1

Lac from him failing which the said appellant threatened to kill his sister.

Subsequently at about 4.45 PM he again received a phone call from appellant

no.1 informing that his sister was ill and had been taken to Uluberia S.D.

Hospital. When the defacto complainant went to Uluberia Hospital, he found

that his sister had died.

On the complaint of P.W.1, first information report in Uluberia P.S. Case

No. 640/2008 dated 10.12.2008 under Sections 498A/306/34 of the Indian

Penal Code and under Sections 3 /4 of the Dowry Prohibition Act was registered

for investigation.

In conclusion of investigation, charge sheet was filed against the appellants

under Sections 498A/306/34 read with Sections 3 /4 of the Dowry Prohibition

Act and the case was committed to the Court of Sessions and transferred to the

trial court for trial and disposal. Charges were framed under Sections

498A/306/34 of the Indian Penal Code. The appellants pleaded not guilty and

claimed to be tried.

In the course of trial, the prosecution examined as many as 12 witnesses

and exhibited a number of documents. The defence of the appellants was one of

innocence and false implication. In conclusion of trial, the Trial Court by the
impugned judgment and order convicted and sentenced the appellants, as

aforesaid.

During the pendency of this appeal, the appellant no.6, father-in-law of the

victim, expired in custody. Hence, the appeal has abated so far as appellant no.6

is concerned.

Mr. Bachawat, learned senior counsel appearing with Mr. Edulji on behalf

of the appellants submitted that the evidence of torture upon the housewife is

vague and ambiguous in nature. It was specifically argued that no

contemporaneous document was produced to prove that the victim was sought to

be set on fire on an earlier occasion and had been admitted to New Eden Nursing

Home at Uluberia and had subsequently been brought back to the matrimonial

home on the assurance of the appellants that she would not be subjected to

further cruelty. Plea that the appellant no.1 made a telephonic call demanding

Rs.1 Lac on the fateful day has not been proved beyond reasonable doubt. It is

argued that the evidence of the prosecution witnesses are inconsistent with one

another with regard to the aforesaid phone call and no call records were seized in

the course of investigation to prove such fact. It is also submitted that no

independent witness supporting the prosecution case of cruelty and torture on

the housewife has been examined. Death of the housewife had occurred after

seven years of marriage and, therefore, the prosecution could not take the

advantage of the statutory presumption under Section 113A of the Evidence Act

to bring home the guilt of the appellants. Hence, they are entitled to an order of

acquittal.

On the other hand, Mrs. Sinha, learned Advocate appearing for the State

submitted that the evidence on record shows continuous torture on the

housewife, which compelled her to commit suicide. There is ample evidence to

show that the victim was subjected to similar cruelty on earlier occasions and

had been admitted to hospital. Evidence of the witnesses unequivocally speak of

demand of Rs.1 Lac by appellant no.1 and the threat held out by the said

appellant that the victim would be killed if such payment is not made has been

proved beyond reasonable doubt. The appeal is, therefore, liable to be dismissed.

P.Ws.1, 3, 4 and 7 are the relations of the victim. P.W.1 (Abdul Ajim) is the

brother and the defacto complainant in the instant case. He deposed that the

victim was married to appellant no.1 on 23.09.2001 according to Muslim Shariat.

A cash of Rs.30,000/-, gold ornaments measuring three and half ‘vories’ and

furniture were given at the time of marriage. Six months after the marriage, the

appellants subjected her to cruelty on further demands of money. In response to

the said demand, he gave Rs.5,000/-, Rs.3,000/- and Rs.2,000/- to the

appellants. When the aforesaid money was utilized, the appellants again started

torturing his sister. As he failed to fulfil the demands of the appellants, they

tried to kill her by setting her on fire and his sister had to be admitted to New

Eden Nursing Home at Uluberia for treatment. Upon discharge, she was taken to

their house. After a few days all the accused persons confessed their guilt and

showed repentance for their misdeeds and consequentially they took his sister

back to her matrimonial house. Thereafter, the appellants again demanded Rs.1

Lac from his sister. They compelled his sister to inform him of such demand over
telephone. At that time, the appellant no.1 threatened him that if the amount

was not paid, he would murder his sister. On that day itself, appellant no.1

again telephoned him and told him to go to Uluberia Hospital where his sister

had been admitted due to illness. When he went to Uluberia S.D. Hospital, he

found his sister dead. He was accompanied by his brother, Sk. Subid (P.W.7)

and Nijamuddin (P.W.4) and other neighbours. He lodged written complaint with

the police station which was written by Golam Kibria Middey as per his dictation.

He proved his signature on such written complaint. The police held inquest over

the deadbody of the victim. His brothers, Subid and Nijamuddin were present at

the time of inquest and put their signatures thereon. He also put his signature

on the inquest report. Postmortem was held over the deadbody of his sister and

thereafter they received the deadbody of their sister.

In cross-examination, he admitted that during lifetime of his sister he did

not lodge any complaint before any forum ventilating torture inflicted upon her.

He did not supply the phone number of appellant no.1 wherefrom the call was

made demanding money from him.

P.W.3 (Sk. Anarul Islam) is a relation of the victim. He deposed that

appellant no.1 was married to the victim on 23.09.2001 according to Islamic

Shariat customs. Cash of Rs.30,000/-, gold ornaments and furniture were given.

After six months of marriage, she was subjected to torture on further demands of

money. Upon such demand, cash of Rs.5,000/-, Rs.3,000/- and Rs.2,000/- were

given on different dates. Six months prior to the incident the appellants tried to

kill his sister by pouring kerosene oil on her and she was admitted at Eden
Nursing Home at Uluberia. On the day of the incident at about 3.30 P.M. the

victim telephoned them and asked them to bring Rs.1 lac, which the appellants

had demanded. In default they were informed that she would be killed. During

the conversation they heard the voice of the appellants pressurizing the victim to

tell her relations to bring the money. On that day at about 4.45 PM husband of

victim informed them that the victim was admitted at Uluberia S.D. Hospital.

They went to the said hospital and found that the victim had committed suicide

by hanging. He was interrogated by police.

P.W. 4 (Sk. Najimuddin) is a cousin of the victim. He also spoke of

marriage of his cousin with appellant no.1 and payment of Rs.30,000/-, gold

ornaments and furniture at the time of marriage. He deposed that six months

after the marriage, further demands of money were made and in response to

such demands, Rs.2,000/- and Rs.5,000/- were paid to the appellants. They

tried to reconcile the matter. The appellants assaulted his sister and tried to kill

her by setting her on fire by pouring kerosene oil. She had to be admitted to a

nursing home. After discharge she was taken to their house. The appellants

came to their house and apologized for their misdeeds and took her back to the

matrimonial home. On 10.12.2008 at 3.30 P.M. the victim made a call to the cell

phone of Subid (P.W.7) and told him that the appellants would kill her if the

demand for money was not met, during the conversation they requested the

appellant no.1 not to inflict torture upon the victim. Appellant no.1 had

disconnected the line and around 4.45 PM he informed that the victim had been

taken to Uluberia S.D. Hospital. When they rushed to the said hospital they
found that the victim was lying dead. Inquest was held in his presence and he

signed the inquest report (Ext. 2/2).

P.W.7 (Sk. Subid Ali) is another brother of the victim. He has corroborated

the evidence of earlier witnesses with regard to the marriage, cruelty upon the

victim upon demands of money on and from six months of the marriage and

payment of various sums of money in response to such demands. He also

deposed that the victim was sought to be killed earlier by setting her on fire and

had to be admitted at New Eden Nursing Home. The appellants confessed their

guilt and on their assurance the victim was taken to the matrimonial home. On

the date of incident the victim telephoned him and asked him to bring Rs.1 Lac

as demanded by the appellants and appellant no.1 over telephone demanded the

money and threatened if he failed to do so, their sister would be killed. At 4.45

PM the appellant had again telephoned and informed them that the victim had

been taken to Uluberia S.D. Hospital where she had been admitted. When they

rushed to the said hospital, they found the victim was dead. He was present at

the time of holding of inquest over the dead body of the victim and signed on the

inquest report (Ext. 2/4).

P.W.8 (Sk. Masud Hasan) is another cousin of the victim. He has

corroborated the evidence of P.W.7.

P.W.2, 6, 9, 10 and 12 are police witnesses. P.W.2 held inquest over the

deadbody of the victim. He proved the inquest report (Ext. 2).

P.W.6 carried the viscera of the victim to FSL Department, Calcutta and

received acknowledgement from the staff of the said department. He proved the

said acknowledgement (Ext.3).

P.W.9 carried the deadbody of the victim for postmortem examination. He

proved his signature on the challan of the deadbody (Ext.4).

P.W.10 and 12 are the Investigating Officers of the case.

P.W.10 received the written complaint from P.W.1. He visited the place of

occurrence, drew sketch map with index of the place of occurrence (Ext. 6). He

examined witnesses and recorded their statements under Section 161 Cr.P.C. He

collected postmortem report of the victim. He arrested two accused persons and

upon his transfer in 2009 he handed over charge of investigation to Inspector in

Charge, Uluberia Police Station.

P.W.12 is the second Investigating Officer who submitted charge sheet in

the instant case.

P.W.5 and 11 are the medical witnesses. P.W.5 was the Ward Master of

Uluberia S. D. Hospital. He was present at the time of inquest. He signed on the

inquest report (Ext. 2/3).

P.W.11 is the Medical Officer who held autopsy over the dead body of the

victim. He found the following injuries on the victim:

“1. Bruise 1 ¼” x ¾” over posterior medial aspect of right arm 5″ x ½”

above from right elbow joint.

2. Abrasion ½” x ½” over posterior medial aspect of right elbow joint.

3. Abrasion 1″ x .3″ over medial aspect of left forearm .3″ below from

elbow joint.

4. Bruise 1″ x ½” over posterior medial aspect of left elbow joint.

5. Abrasion 1″ x ¾” over posterior medial aspect of left arm 4″ above

elbow joint.

6. Bruise 2″ x 1″ over posterior medial aspect of left arm 4″ above elbow

joint.

7. Ligature mark – evidence of dark brown colour braided ligature mark

15″ x ½” with a gap 2″ x ½” between left mastoid process and left

angle of mandible, 2 and ½” below posterior occipital protuberance

then on right side 2 and ½” below right angle of mandible then turned

left side 2″ below chin then turned backward 1″ below left angle of

mandible then posterior 2″ below left mastoid process more prominent

on right side of neck.”

He opined that the death was due to effect of hanging, which is ante

mortem in nature.

From the evidence on record it appears that the victim was married to

appellant no.1 on 23.9.2001. At the time of marriage cash, gold ornaments and

other valuable articles were gifted. Six months from the marriage demands of

money were made and the victim was subjected to cruelty when such demands

were not met. Witnesses have deposed that on various occasions, Rs.5,000/-,

Rs.3,000/- and Rs.2,000/- were paid to the appellants. However, when further

demands of money were not met, the victim was subjected to cruelty. Six months
prior to the incident the appellants attempted to kill the victim by setting her on

fire and that she had to be admitted at New Eden Nursing Home for treatment.

Upon discharge, she was taken to her parental home. The appellants confessed

their guilt and promised that they would not subject the victim to torture in

future. On such assurance, she was taken back to the matrimonial home. All

the relation witnesses, namely, P.W.1, 3, 4, 7 and 8 have spoken in unison with

regard to the aforesaid torture upon the victim housewife at her matrimonial

home. However, it is admitted by P.W.1 in cross-examination that they did not

lodge any complaint to any authority during the lifetime of the victim. No

medical documents have been placed on record with regard to the treatment of

the victim at Eden Nursing Home at Uluberia where it is claimed that she was

admitted when the appellants had tried to set her on fire six months prior to the

incident.

It is true that cruelty on a housewife ordinarily occurs within four corners

of her matrimonial home and it is difficult to find independent witnesses with

regard to such torture. However, when the prosecution case is to the effect that

the housewife was attempted to be set on fire and had been taken to hospital, it

is difficult to accept the oral version of relation witnesses in the absence of

production of any records of the medical institution or examination of the medial

personnel who had treated the victim in the said institution.

Hence, I am constrained to hold that the allegation that the victim

housewife was attempted to be set on fire six months prior to the incident and

had been admitted to New Eden Nursing Home for treatment has not been proved
beyond reasonable doubt. In the absence of proof, of the aforesaid incident, the

issue of appellants undertaking that they would not subject the victim to similar

torture in future also loses significance.

Nonetheless, there is evidence on record that the victim during her

matrimonial life was subjected to cruelty by the appellants on demands of money

and on various occasions monies were paid to the appellant to satisfy such

demands and save the housewife from torture. It is trite law that ‘falsus in uno’ is

not ‘falsus in omnibus’ and it is the duty of the court to separate the grain from

the chaff while analyzing the evidence on record. Hence, though I discard the

embellishment of hospitalization of the victim on an attempt to set her on fire, I

choose not to ignore the convincing evidence of torture and cruelty upon her

during her lifetime at the matrimonial home which compelled her family

members to propitiate the greed of the appellants by making payments on

various occasions to save her from further agony and ill treatment.

There is also consistent evidence on record that on the fateful day, the

family members of the victim received a telephone call from her informing them

that a sum of Rs.1 Lac was demanded and the appellant no.1 informed P.W.1

and 7 if the said amount was not paid, the victim would be killed. Learned senior

counsel has criticized such evidence on the score that the prosecution witnesses

are inconsistent as to who had made the phone call from the matrimonial home

of the victim and to whom such call was made on the fateful day.

In the first information report while P.W.1 had stated that the appellant no.

1 had demanded money over telephone, however, in evidence he claimed that the
victim had made the phone call and thereafter the appellant no.1 had made the

demand. On the other hand, P.W.7 and 8 deposed that the phone call was made

to P.W.7, Subid and not to P.W.1. It has also been argued that mobile number of

appellant no.1 had not been given to the Investigating Agency and no call records

had been seized during investigation.

Analysis of the evidence with regard to the phone call on the fateful day

would show that the witnesses consistently had deposed that the victim had

made the phone call informing P.W.1 and 7 about the demand of Rs.1 Lac and

thereafter appellant no.1 told them that the victim would be killed if such

payment was not made. It is not unnatural that when such sinister demand was

made over telephone, both P.W.1 and 7 had conversed with their sister and

thereafter her husband i.e. appellant no.1 had made the demand and threatened

them that their sister would be killed. Minor contradiction as to who received the

call first would not affect the veracity of the witnesses as to the fact that phone

call was, in fact, made and P.W.1 and P.W.7 were informed by their sister about

the aforesaid demand of Rs.1 Lac and thereafter appellant no.1 reiterated the

said demand and threatened them that their sister would be done away with if

the money was not paid. Soon thereafter the victim committed suicide at her

matrimonial home.

However, the evidence with regard to the involvement of the other

appellants in the demand of Rs.1 lac and threat to kill the victim on the date of

the incident is vague and non-specific in nature and does not inspire confidence.

In view of the aforesaid evidence on record, I am of the opinion that the

victim had been subjected to cruelty on demands of money at her matrimonial

home by the appellants and on various occasions monies were paid to them in

response to such demands to save the victim from torture. Finally on the fateful

day, the appellant no.1 had demanded Rs.1 lac and threatened her with death if

the said demand was not met. Unable to bear such torture the victim committed

suicide immediately thereafter. The Prosecution has been able to prove that the

victim was subjected to cruelty and harassment during her lifetime by the

appellants at her matrimonial home on demands of money. Hence, the

ingredients of the offence punishable under Section 498A of the IPC has been

proved against the appellants beyond doubt. Coming to the charge under section

306 IPC, it must be borne in mind that the prosecution does not have the

advantage of the statutory presumption under section 113A of the Evidence Act

to establish the ingredients of the said offence. While there is evidence on record

that all the appellants subjected the victim to torture on earlier occasions, it

appears that on the fateful day it was appellant no. 1 who had demanded Rs.1

lacs and threatened her with death if such demand was not fulfilled. He had also

communicated such ominous threat to her brothers, that is, P.W.1 and P.W.7.

Soon thereafter, unable to bear such ill treatment, the victim committed suicide.

The evidence on record, therefore, unerringly points to the demand of Rs.1 lac

and threat held out by the appellant no.1 on the date of incident as the reason

for the victim to commit suicide. The role of the other appellants in that regard is

vague and non-specific. I would be speculative to hold that their involvement in
the ill treatment of the victim on earlier instances was the cause of her death

when the evidence is not convincing as to their role on the date of incident. The

live link between their acts and the ultimate death of the victim appears to have

snapped and they are entitled to the benefit of doubt on the aforesaid charge.

Hence, I uphold the conviction and sentence of the appellants for the

commission of offence under section 498A/34 of the Indian Penal Code. With

regard to the offence under section 306/34 of the Indian Penal Code, I hold

appellant no.1 guilty of the said offence but I am inclined to extend the benefit of

doubt to the other appellants, namely, appellant nos. 2, 3, 4, 5 and 7.

Accordingly, conviction and sentence imposed upon the appellant nos. 2, 3, 4, 5

and 7 for the offence punishable under sections 306/34 of the Indian Penal Code

are set aside.

Coming to the issue of sentence to be imposed upon appellant no.1 for the

offence punishable under section 306 of the Indian Penal Code, I am informed

that the appellant no.1 has to take care of his minor daughter who is presently

residing in his house. In view of the aforesaid fact, I reduce the sentence

imposed upon the appellant no.1 for the aforesaid offence and direct that he shall

suffer rigorous imprisonment for five years and pay a fine of Rs.2,000/-, in

default, shall suffer simple imprisonment for two months more.

The period of detention suffered by appellants during investigation, enquiry

or trial shall be set off under Section 428 of the Code of Criminal Procedure.

The appeal stands partly allowed. The application for suspension of

sentence being CRAN 1045 of 2017 is accordingly disposed of.

Copy of the judgment along with LCR be sent down to the trial court at

once for necessary compliance.

Urgent Photostat Certified copy of this order, if applied for, be supplied

expeditiously after complying with all necessary legal formalities.

(Joymalya Bagchi, J.)

AB PA to J. Bagchi, J.

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