Mustaque Ansari vs The State Of West Bengal on 8 September, 2017

ARDR

CRA No. 283 of 2014

Mustaque Ansari
Vs.

The State of West Bengal

Present:

The Hon’ble Justice Siddhartha Chattopadhyay

For the Appellant : Mr. Mritunjoy Chatterjee,

For the State : Mr. Saswata Gopal Mukherjee, Ld.
P.P.

Mr. Sourav Chatterjee

Heard on : 07/09/2017.
Judgment on : 08/09/2017.

Doubting the correctness of the judgment and order of

conviction dated 30/1/2014 and 31/1/2014 passed by the learned

Sessions Judge, 2nd Court, Purulia in S.T. no. 10 of 2013, the

appellant preferred this appeal with a prayer to set aside the finding

of the learned Court below mainly on the ground that the learned

Court below failed to appreciate the evidence of the prosecution

witnesses in its proper perspectives.

Learned counsel appearing on behalf of the State disputed the

same and contended that the learned trial Court has taken care of

all the material aspects and has come to a correct finding, which

does not call for any interference.

In the interest of effective adjudication, factual scenario needs

to be revisited.

The prosecution case, in a capsulated form, is such that the

marriage of the victim was held with the accused/appellant nearly

twenty-seven years back. After the said marriage,

husband/appellant began to put torture upon her physically and

mentally. In one occasion, the appellant had assaulted the victim in

such a way for which her hand was broken. After giving consolation

to the victim, the parents of the victim sent her back. On 07/4/2013

the accused assaulted the victim severely and thereafter set fire

upon her. The victim was initially taken to Bansgarh Health Centre

and thereafter she was removed to Purulia Sadar Hospital for

medical treatment. Disclosing these facts the de facto complainant

set the law into motion.

After registration of FIR the prosecution agency came into

operation. In course of investigation the I.O. examined available

witnesses under Section161 Cr. P.C., collected injury report and

thereafter submitted charge sheet under Sections 498A/307 IPC.

To come to a finding, we should have a look upon the evidence

of the prosecution witnesses.

P.W. 1 is the father of the victim. He has corroborated the

story of FIR almost in the same tone and tune.

In course of cross-examination, he admitted that the appellant

is a day labourer by profession and could not earn more for which he

could not afford proper fooding and lodging to the victim. He also

contended that he did not see any incident of assault on victim.

From his evidence, we do not find any ingredient of Section 498A

IPC. There was no demand of dowry nor the victim was assaulted on

the ground of dowry. The cruelty, which is most essential for

constituting an offence under Section 498A IPC is lacking.

P.W. 2 is the nephew of de facto complainant. He did not tell

anything regarding the alleged incident of assault by which the

victim’s hand was broken. Regarding the fateful incident he has

stated that after getting an information about the victim, he along

with others went to Balarampur Hospital. According to him, one

Jamal and two others reported them that the victim was tied with

rope in her hands and legs and thereafter the appellant set fire on

her.

In course of cross-examination, initially he stated that he was

interrogated by the I.O. It was suggested to him that he did not tell

the police that he got information and went to Balarampur Hospital

and therefrom he came to know about the incident from one Jamal

and others.

P.W. 3 is also another nephew of the de facto complainant. He

has stated that nearly four years back, the appellant assaulted the
victim for which her hand was broken. He further stated that the

appellant had given an undertaking in writing that he would not

assault the victim further. Upon his such undertaking, they sent

back the victim to her matrimonial home. On 07/4/2013 he learnt

about the burn injury sustained by the victim and thereafter he went

to Hospital.

P.W. 4 is the uncle of the victim. He has narrated the story of

assault and burn injury sustained by the victim.

In course of cross-examination, he has stated that he did not

tell the police that he got information that the victim was admitted in

Balarampur Hospital.

Evidence of P.W. 5 is not relevant because he has been

declared hostile.

P.W. 6 is the victim, who has corroborated the story of FIR

and it was suggested to her that whether there is any lock system in

her room and, in reply, she stated that there is no provision for

bolting the house from inside.

P.W. 7 is not much relevant because he is a hearsay witness.

P.W. 8 is the scribe, who has proved the FIR.

P.W. 9 is the constable, who is witness to the seizure list

including the wearing apparels of the victim.

P.W. 10 is the doctor, who has given medical treatment to the

victim. He candidly stated that the victim was set fire by her
husband. Injury report speaks so. The statement of the victim was

recorded in that injury report. He opined that after examining the

victim, he found 9 per cent burn injury at face and neck region, 18

per cent burn injury at chest and abdomen, 9 per cent burn injury

at backside, 9 per cent burn injury at both arms, 9 per cent burn

injury at both legs lower part.

Defence could not shake his evidence. Therefore, it stands for

reason that the victim suffered burn injury and that the victim told

about the incident of burn injury to him.

P.W. 11 is the I.O., who had conducted the investigation of the

prosecution case. He has categorically stated the manner in which

he conducted the investigation.

However, in course of cross-examination, he has stated that

the victim did not tell him that on the relevant day, the appellant

assaulted her at 4 p.m. and thereafter he put kerosene oil on her

person at 7 p.m.

On perusal of the entire evidence, I find that the prosecution

has been able to prove the case beyond all reasonable doubt and

dispute.

Learned counsel appearing on behalf of the appellant

contended that since 08/04/2013, the accused is in jail i.e. for

nearly four years and six months. He prays for reduction of

sentence.

It appears from the records as well as it is admitted that the

marital tie is still there and the marital tie of victim and the

appellant is about twenty-seven years.

It is also established that the appellant is a poor labourer and

does not have enough financial capacity to look after his wife and

children. On the other hand, the de facto complainant’s financial

status is much more than the accused. If there was persisting

torture upon the victim, in that case, they could not have continued

their marital life for about twenty-seven years.

Since the appellant is in custody for about four and half years,

and there is no antecedent of his blemished character prior to such

incident, I am of the view that the sentence can be reduced to some

extent.

Therefore, instead of imprisonment for seven years, I am of the

view that the rigorous imprisonment for five years and also to pay

fine of Rs.1000/-, in default to suffer simple imprisonment for one

month, shall meet the demand of justice. The period of detention

already undergone shall be set off accordingly.

Therefore, the criminal appeal is allowed in part. Sentence

awarded by the learned trial Court hereby reduced to the extent, as

above.

The department is directed to send a copy of this judgment

along with the lower Court records at once.

Urgent photostat certified copy of this order, if applied for, be

given to the parties.

(Siddhartha Chattopadhyay,J.)

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