Kolkata High Court (Appellete Side) Cra 326 Of 2012 Sujauddin Molla – vs The State Of West Bengal Coram on 25 July, 2014Author: Tapen Sen
HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
CRA 326 of 2012
The State of West Bengal
CORAM: HON’BLE MR. JUSTICE TAPEN SEN
HON’BLE MR. JUSTICE ASIM KUMAR MONDAL
For the Appellant : Mrs. Nilima Das
For the State : Mr. Pawan Kr. Gupta
C.A.V on : 16/7/14
Judgment Delivered on : 25/7/14
Tapen Sen, J. :
This appeal is directed against the judgment dated 19/9/2003 and sentence dated 20/9/2003 whereby and whereunder the learned Additional Sessions Judge, Fast Track Court No. 2, Barasat, North 24 Pgs. convicted the appellant under Section 498A and 304B of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and also imposed a fine of Rs. 5,000/-. In default, to suffer simple imprisonment for six months for the offence under Section 304B. He was further sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- and in default, to suffer simple imprisonment for two months for the offence under Section 498A of the Indian Penal Code.
2. The short facts which gave rise to the instant case is that on 23/12/1995 at about 10:20 hours, one Mohd. Ohid Mirda made a written report before the Officer-in-Charge, Rajarhat Police Station stating inter-alia therein that in the morning of the same day i.e. at about 8 AM he had come to learn from villagers of Panapukur that his sister had died. He went to the place and found scars on many places on the body and saw her nose bleeding. There were no male members of the family but he found his nephew, a child of two years, sitting and weeping beside his deceased mother.
The informant had further stated that four years ago, his sister Mosammat Firdousi had been married to the appellant. Since after the marriage, she was however tortured for dowry although bangles, chain, tikli, bed, almirah, dressing table, sofa-cum-bed and a sum of Rs. 15,000/- in cash had been given as dowry. Subsequently a claim for an additional sum of Rs. 10,000/- was made and that was also fulfilled but inspite thereof, his sister was beaten up and tortured. She had informed them but thinking that such quarrels often take place in a household, they thought that the matter will soon come to an end. The informant further stated that his sister’s father-in-law, mother-in-law, brother-in-law and maternal uncle-in-law named Ghuta @ Khuda used to torture his sister in various ways claiming money frequently and they also used to beat her. Husband Sujjauddin Molla (Appellant) used to threaten her that if she could not bring money for them, then they would set her on fire.
3. An Inquest was held over the dead-body and a report prepared. Inquest Report points out that the dead-body was lying on the verandah in the house of the in-laws. Some blood was oozing out of her mouth. A black deep spot on the throat and neck was found suggesting throttling by a cloth or ‘gamchha’. Some oozing was also found from the private parts but no external injuries could be found over the body except the neck and the throat. Upon enquiry, the officer holding the Inquest came to learn that the deceased had been married to the appellant four years ago and as per custom, gold ornament, furniture, cash etc was given as dowry but even then, the husband and her in-laws continued to demand more and inflicted physical and mental torture upon her. In the night of 22/12/1995, the accused persons (in-laws) physically tortured and killed her by throttling her in her bedroom and then fled away from their residence after placing the body in the verandah.
4. A post-mortem examination was held and the Autopsy Surgeon found multiple semi circular nail scratches on the right side and back of the neck and also found a continuous ligature mark on the upper part of the neck in the region of the thyroid cartilage with marks of irregular abrasion.
5. During the course of investigations, the Investigating Officer examined various witnesses and finally submitted a charge-sheet under Sections 498A, 304B and 34 of the Indian Penal Code. Thereafter, trial was held and finally, the impugned judgment delivered. Learned Counsel for the appellant has submitted that the evidence of the prosecution witnesses are very sketchy and that they do not establish that the deceased was killed by the appellant. P.W 1 is Ohid Mirda himself being the informant of this case. He has stated that on the 23rd of December, 1995, local people of Panapukur village informed them about the death of his sister. He has repeated what he had stated in the written report. He also stated that an iron rod and a ‘gamchha’ was found tied to the throat of his sister. She had blood oozing out from her mouth and that it was not a natural death since demands of dowry had been continuously made by the appellant and his family even after the marriage. He stated that a letter had also been sent by the accused persons to his uncle demanding some valuables. He stated that when his sister had come to her parental house, she had disclosed her agonies. The accused persons had demanded money for installation of a shutter in a shop room. He stated that after his sister had given birth to a male child, the informant and his family had arranged a feast in their house on the fortieth day and nearly thirty five persons, being the relatives of the accused persons, had come to their house and had joined in the feast. However, on the next day, the appellant had gone to their house complaining that the invitees should have been given wearing apparels as gifts.
6. In his cross-examination, P.W 1 stated that after the marriage he and his family had visited the accused person’s house on a number of occasions. That he had told the local villagers that the accused persons used to demand dowry but had not spoken about this to any competent authority. He, further, stated that he wrote out the F.I.R sitting beside the dead-body of his sister when the Police was not present. He did not consult anyone and also did not inform the local Panchayat that the accused persons had demanded dowry from them. He also stated in his cross-examination that he did not know how his sister had died. He also stated that he had not mentioned in the F.I.R that thirty two to thirty five persons had been invited and that he had not given them any wearing apparels as gifts.
7. P.W 2 is a known person of the same locality. He stated that he did not know how Firdousi had died. He also stated that Firdousi had very good relations with the accused persons but he could not say whether her death was natural or not. This witness was not declared hostile. In his cross-examination also, he had stated that the deceased had good relations with all the accused persons and that he never heard anything to the effect that the appellant’s father had demanded money from Firdousi.
8. P.W 3 is also a local resident who was declared hostile when he said that Firdousi was happy with her matrimonial relatives and that he did not find any injury on her person and also, that he did not know whether Firdousi had died a natural death or an unnatural death.
9. P.W 4 is one Julfikar Ali Mirda who is also a known person of the locality. He is also another brother of the deceased. After the death he had gone to see the dead-body and had found her lying on the bed with her son weeping beside her. He had stated that soon after the marriage, Firdousi had been tortured by the accused persons and they used to demand dowry repeatedly. On the fateful day he came to learn that she had died and on going there he found that she had been brutally assaulted and killed. He also found an iron rod on the cot and a ‘gamchha’ tied to her throat. She was found bleeding from her nose and mouth. The accused persons were not present in the house as they had fled away before their arrival. He has stated the same thing in his cross-examination.
10. P.W 5 is one Sahanara Bibi. A neighbourer living adjacent to the house of the appellant. She had heard a child crying and had gone to the house and had found Firdousi dead. She stated that she knew nothing with regard to the incident of death; that there was no family dispute in the house relating to Firdousi as she was living happily in her matrimonial home. This witness was not declared hostile. Similarly P.W 6 is one Nuhuruddin Gazi who is an acquaintance of the accused persons. He was not declared hostile even though he said he knew nothing more than the fact that Firdousi had died in 1995.
11. The Autopsy Surgeon is P.W 7. He found multiple semi circular nail scratches on the right anterior triangle of neck and back of neck and a continuous circular ligature mark on the upper part of the neck in the region of the thyroid cartilage. Death, according to him, was due to shock and asphyxiya due to the effect of strangulation which was ante mortem and homicidal in nature.
12. P.W 8 is one Mrinmoy Prodhan who took the dead-body to the Barasat Hospital for post mortem.
13. P.W 9 is one Manojit Samaddar who was the Investigating Officer and who also held the Inquest. He had stated that when he arrived at the place of occurrence the accused persons were not present as they had left leaving the dead-body at the place of occurrence.
14. Upon a perusal of the different evidences we thus find that the evidences of P.W 1, the informant, P.W 4 (another brother of the deceased) are the only two witnesses that have spoken against the accused persons. However, we have not found anything which goes to show the direct involvement of the appellant either in the written report or in the evidences of these two witnesses save and except general allegations to the effect that Firdousi had been subjected to torture and that after the marriage the accused persons had demanded money / dowry. The accused persons in this case are Mohd. Sujauddin (Appellant), the father-in-law, the mother-in-law, the brother-in-law and one matrimonial uncle-in-law. However, the evidences do not show clearly as to how and under what circumstances each one of them committed the offences under the different provisions under which they were tried. The learned Trial Judge, on the basis of the aforementioned factors, could not find anything to establish the case as against the others but under the same facts and circumstances, found this appellant guilty under Section 498A / 304B of the Indian Penal Code. Let it be recorded that there are no eye witnesses in this case and the relevant witnesses such as the ones mentioned by the officer who held the Inquest, were not even examined.
15. Having considered the aforementioned facts and circumstances we are of the view that the impugned judgment of the Trial Judge cannot be sustained because a different yardstick has been applied to the appellant while holding him guilty and for the same set of events and under the same set of offences, he has proceeded to find the other accused persons not guilty.
16. Having considered these facts and circumstances we set aside the impugned judgment and we allow this appeal. Let the Lower Court Records be sent down forthwith. Let the appellant be released if not wanted in any other case.
17. There shall be no Order as to Costs.
(Tapen Sen, J.)
(Asim Kumar Mondal, J.)
A.F.R / N.A.F.R