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Md. Aftab Alam-vs-State Of West Bengal on 6 October, 2005

Calcutta High Court Md. Aftab Alam-vs-State Of West Bengal on 6 October, 2005
Equivalent citations:(2006) 1 CALLT 531 HC, 2005 (4) CHN 794, I (2006) DMC 870
Author: A K Bhattacharya
Bench: D Sengupta, A K Bhattacharya

JUDGMENT

Arun Kumar Bhattacharya, J.

1. The present appeal is directed against the judgment and order of conviction and sentence passed by the Id. Additional Sessions Judge, 13th Court, 24-Pgs (S), Alipore in Sessions Trial No. 1(2) 2000 on 20.12.2001.

2. A thumbnail sketch of the prosecution case is that after divorce by her first husband Md. Aslam, the de facto complainant’s daughter Sahera Khatoon was married to Md. Aftab Alam in 1991, and a son and a daughter were born to them. Over the issue of demand of money and other valuable articles she was subjected to torture, physically and mentally, by her husband which she used to report to the complainant. On 14.09.95 at about 09.30 hrs. on receipt of information from her son-in-law Md. Aftab Alam regarding serious illness of Sahera, she rushed to her in-law’s house and came to learn from her granddaughter Razia Khatoon (P.W. 2) that on the night of 13.09.95 over some dispute Aftab Alam assaulted Sahera, that Razia went to bed and at about 00.30 hrs. on hearing the cry of her mother she woke up and found her mother ablaze running hither and thither in the compound and crying for help saying “Banchao, Humko Mera Aadmi Mar Dalega” and her father was standing by a side. Some neighbourers rescued and extinguished the fire by putting a blanket on her person and removed her to hospital. The complainant went to S.S.K.M. Hospital and found her in critical condition and she was unable to speak, and on the following day she expired. Hence, the accused was charged under Section 498A/302 IPC.

3. The defence case, as suggested to P.Ws. and as contended by the accused during his examination under Section 313 Cr.PC, is denial of the prosecution story contending that while the victim was cooking, she was caught fire due to explosion of stove.

4. Thirteen witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the Id. Court below found the accused guilty under Section 498A/302 IPC, convicted him thereunder and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs. 1000/- i.d. to R. I. for three months and to suffer imprisonment for life and to pay fine of Rs- 10,000/- i.d. to R.I. for one year respectively.

5. Being aggrieved by, and dissatisfied with, the said order of conviction and sentence, the accused has preferred the present appeal.

6. All that now requires to be considered is whether the Id. Court below was justified in passing the above order of conviction and sentence.

7. The vital witnesses in this case are P.Ws. 1, 2, 6, 8, 9, 11 and 13, others being formal or post-occurrence witnesses.

8. According to the evidence of P. W. 1 Sabera Khatoon (de facto complainant), her daughter Sahera Khatoon was married with Aslam, and out of that wedlock one son Asraf and one daughter Razia (P.W. 2) were born. Thereafter, Aftab Alam married Sahera and one son and one daughter were born. Sahera and Aftab along with four children used to live together. Sahera used to maintain the family by working as a maid-servant. The trouble started when Aftab refused to go for work and there was unhappiness in the family, as was reported to her by Razia (P.W. 2). About five years back one day there was a quarrel between Sahera and Aftab when Aftab poured kerosene oil on the person of Sahera and set fire. Sahera started shouting for help, Razia saw her father standing and mother ablaze. Neighbourers came and extinguished the fire. She was removed to P.G. Hospital where she expired. Before the said incident, Sahera reported to her about torture meted out to her by her husband who demanded Rs. 10,000/- and as she could not fulfill, she was subjected to torture by her husband. She was called to the house of Aftab through the son of his sister and while she arrived there, her daughter was already removed to P.G. Hospital. She narrated the incident to police who recorded the same (Ext. 6). It is the evidence of P.W.2 Razia Khatoon that on the date of incident at night when she was about to go to bed after drinking water, there was a “Marpit” (scuffle) between her mother and father. On hearing a cry of her mother who was shouting for help saying she was going to be killed by her husband, she saw her mother ablaze in front of her father who was watching it standing there. The neighbouring people came on hearing the noise and extinguished the fire and she was immediately taken to the hospital. She reported the incident to her maternal grandmother (P.W.I). P.W. 9 Abdul Hafiz Khan, brother of the victim, stated that initially the relation between Sahera and Aftab was good, but afterwards it became strained. Aftab used to demand money from her sister and ask her to bring out from her brother as he intended to start a business. They paid Rs. 1000/- to Aftab through his sister and thereafter they could not pay anything due to their financial stringency. As his sister could not give money she was subjected to torture by her husband which was informed by her to them on various occasions. Razia (P.W. 2) informed him about the death of his sister stating that her mother was burnt to death by Aftab. P.W. 11 Dr. Haran Chandra Poddar, Emergency Medical Duty Officer of S.S.K.M. Hospital, on examination of the patient Sahera Khatoon brought before him by Aftab Alam on 14.09.95 found serious burn injuries on her person and immediately admitted her in Burns Ward under Dr. P.K. Sinha (P.W. 6). In cross-examination he deposed that the patient stated to him that she sustained burn injuries from the flame of stove. P.W. 6 Dr. Prabir Kumar Sinha, Professor, Department of Plastic Surgery, S.S.K.M. Hospital treated Sahera who was admitted under him on 14.09.95 at 1.05 a.m. with 95% flame burn injury. The patient was conscious for sometime but her condition was very serious and she expired on 15.09.95 at 6.55 a.m. He attended the patient on the following day at 9.00 a.m. In the bed-head ticket (Ext. 1) it has been noted that the deceased sustained burn injuries due to bursting of stove in course of cooking and her husband and neighbourers came out and put off the fire, said he. P.W. 8 Dr. P.B. Das, the then A.C.M.O.H., Medico Legal, South 24-Pgs, on holding P.M. examination over the deadbody of the victim on 17.09.95 at about 3.00 p.m. found extensive first and second degree burn over scalp with singing of hairs, forehead, eye lashes, eye-brow, eye-lid with singing of hairs, nose, lips, chin, cheeks, both ears and all other parts of face, neck as a whole, chest wall with breast and nipples, abdominal wall as a whole including both flanks, growing with singing of pubic hairs, lower extremity as a whole, upper extremity as a whole, back from the nape of neck to down both buttocks, all the burn injuries having lining of redness, blister formation and black skin, all the injuries showing evidence of vital reaction and opined that the death was due to the effect of extensive burn injuries ante-mortem in nature. P.W. 7 Md. Illius who is a witness to the seizure of a stove, one bed-sheet and blanket (Mat Ext. I (coil.)] by police under a seizure list (Ext.2) heard that Sahera was burnt to death. P.W. 12 B.K. Kanjilal, the then Executive Magistrate, 24-Pgs(S) held inquest (Ext. 5) over the deadbody of the victim on 16.09,95 at the dead house of S.S.K.M. Hospital in presence of witnesses. P.W.10 Sachi Dulal Pahari, Assistant Director of F.S.L., on examination of three exhibits viz Ext. ‘A’ (blanket), ‘B’ [one big cloth piece) and ‘C (some burnt hair) submitted his report (Exts. 4 & 8). After chemical examination trace of mineral oil not sufficient for its characterization was detected from Ext. ‘B’. No trace of foreign chemical could be detected from the rest exhibits. Ext. ‘B’ bears fair burnt marks containing a burnt carbon particle. P.W. 13 S.I. Asif Zamal on receipt of information regarding admission of Sahera in S.S.K.M. Hospital with burn injuries from Sabera Khatoon (P.W. 1) who came to the P. S., recorded G.D.E. being No. 722 dated 14.09.95 (Ext. 12) and left for S.S.K.M. Hospital to verify the genuineness of the information and on coming to learn from the Ward Master about admission of Sahera in the Burn Ward, collected bed number and other information of Sahera, met the patient who was found to be in restless condition. Saline was going on and the patient did not respond when he asked her name. It was informed by a sister that as she was in sedation, she would not be in a position to speak, for which her statement could not be recorded. He went straight to the P.O., contacted the neighbouring people and interrogated them followed by his return to P.S. after placing two constables for keeping the P.O. under watch and recorded the statement (Ext.6) of Sabera Khatoon. On the basis of the said statement, he started Garden Reach P. S. Case No. 102 dated 14.09.95 against the accused under Section 498A/307 IPC. The case being endorsed to him for investigation, he had been to the P.O., examined available witnesses, prepared a plan of the P.O. through plan-maker, seized kerosene hand-pump stove, blanket, a white bed-sheet from the P.O. under a seizure list (Ext. 2) in presence of witnesses, also seized the bed-head ticket under another seizure list (Ext. 7), arrested the accused, collected death certificate of the victim on 15.09.95. He requisitioned the services of O.C., Bhowanipur P. S. for making arrangement for holding P.M. examination over the deadbody of Sahera. He also requisitioned the services of a Magistrate for holding inquest over the deadbody of the victim. He collected inquest report and P.M. report, sent the seized blanket, bed-sheet, blood, nails etc. to F.S.L. for chemical examination, collected F.S.L. reports and after completion of investigation submitted chargesheet against the accused under Section 498A/304B IPC.

9. P. W. 3 Hasina Khatoon, neighbourer, who was declared hostile by the prosecution, on hearing a cry that somebody caught fire, had been there and found Sahera ablaze and she was removed to hospital. P.W. 4 Sogra Khatoon, another neighbourer, merely deposed that she knew Sahera who expired. P.W. 5 Samid Khatoon, relation of the accused, who too was declared hostile, claimed in his cross-examination by defence that when he along with accused and one Kalloo were taking Sahera to hospital in a taxi, Sahera stated to Kalloo that she was caught fire at the time of lighting a match for boiling milk in the stove.

10. Mr. R. R. Biswas, Id. Counsel for the appellant, advanced argument contending that there is no evidence on the part of any witness as to how the victim caught fire, and as such on the face of the above statement of the victim as noted in the bed-head ticket (Ext.1) and deposed by P.W.11 which is also supported by P.W. 5, though the conviction under Section 498A IPC may not be interfered with, the conviction under Section 302 IPC should not be sustained. P.W.11 who is silent in his evidence-in-chief regarding the dying statement of the victim, deposed in cross-examination that the patient who was conscious stated to him that he sustained burn injuries from the flame of the stove. The matter as recorded in the bed-head ticket runs as follows:

“H/o flame burn at about 11.00 p.m. on 13.09.95 due to bursting of stove during cooking of food. Her husband and neighbourers came and put off the fire and brought the patient to S.S.K.M. Hospital”. P.W.11 deposed after a lapse of about 5 years 3 months from the time of incident. There is nothing to indicate in the above that it was stated by the victim. It is the specific evidence of P.W. 2 that her father was watching her mother ablaze standing there and the neighbourers came and extinguished the fire and removed her mother to hospital in a taxi which in part is buttressed by the testimony of P.W.I, and it remains uncontroverted in their cross-examination. She has categorically denied the suggestion that her father also accompanied her mother in the same taxi. That apart, the accused during his examination under Section 313 Cr.PC nowhere claimed that he along with neighbourers took the victim to hospital, and all that he contended, he got his wife admitted in the hospital and stayed there throughout the night. So, that her husband came and put off the fire and brought the patient to S.S.K.M. Hospital, as recorded in the bed-head ticket is negated by the above testimony of P.Ws. 1&2. Furthermore, it is the definite evidence of P.W.6 under whom the patient was admitted with 95% burn injuries at about 1.05 a.m. on 14.09.95 that the patient whose condition was very serious, may be conscious for sometime but the could not be in a position to make any statement. More or less similar is the evidence of P.W.8 who deposed that there is less possibility to make any statement by a person who sustained such burn injuries. All these lead to show that the said recording in the bed-head ticket was based upon the version of a person other than the victim. Accordingly, no reliance can be placed upon the aforesaid testimony of P.W.11.

11. As regards the above evidence of P.W. 5 who is the sister’s husband of the accused, and who was declared hostile, prima facie if a witness is found to have made different statements at different stages, he must be one having no regard for truth, as was observed in the case of K. Thevar v. State of Tamil Nadu, reported in AIR 1976 SC 980. However, the evidence of a hostile witness may be considered for what it is worth. The story that the accused accompanied the victim to the hospital in the same taxi has been belied, as discussed earliest. P.W.5 claims to have accompanied the victim to the hospital in his cross-examination which is an uncorroborated testimony. Kalloo to whom the declaration was made by the victim, as alleged, has not been examined. So, the above evidence of P.W.5 cannot at all be relied on.

12. The incident took place at the dead of night at about 00.30 hrs. on 14.09.95. It is the specific evidence of P.W. 2 that when there was a ‘Marpit’ between her mother and father on that night, she was about to go to bed after drinking water i.e. her dinner was over. The accused during his examination under Section 313 Cr.PC contended that at the time of catching fire on the person of the victim, he was sleeping. There is no evidence in this regard on his behalf nor it was suggested to any witness. Moreover, it is belied by P.W. 2 who found the accused standing while her mother was ablaze. So, the above contention of the accused does not stand. P.W. 3 who was declared hostile, deposed that when she was sleeping, she heard the cry of catching fire. So, there cannot be any doubt regarding taking place of the incident at the dead of night at about 00.30 hrs. There is nothing to indicate in the evidence of P.W. 2 or statement of the accused under Section 313 Cr.PC that any other member was awake at that time. Accordingly, when everybody was asleep, the question of cooking food or boiling milk by the victim as mentioned in the bed-head ticket and as deposed by P.W. 5 respectively at the dead of night does not stand. Besides, in the bed-head ticket it has been noted that due to explosion of stove she caught fire, but P.W. 11 is totally silent in regard to the alleged explosion of stove. There is no indication of bursting or explosion of stove in the evidence of any witness. If the victim would have caught fire by the flame of stove, only her front portion, was expected to have been affected and there was no scope for sustaining 95% burn injuries affecting the entire body including the back portion from the nape of neck to down both buttocks, as were found by P.W. 8. Considering all the above aspects, the said contention of the Id. Counsel for the appellant is not at all sustainable.

13. Mr. Biswas next argued that since P.W. 2 is/was a minor, the chance of her being tutored cannot be brushed aside, and as such no reliance should be placed upon her testimony. It is the evidence of P.W. 2 that on hearing a cry of her mother for help as she was going to be killed by her husband, she found her ablaze in front of her father who was watching it standing there, and the neighbouring people on hearing the noise extinguished the fire from the person of her mother and immediately took her to hospital in a taxi. P.W.2 is now aged about 14 years and so at the relevant time she was nine years old. Her competency to depose is established by her capability of understanding the questions and to answer them in rational manner. On being informed about serious illness of the victim by the accused through his nephew at about 9.30 a.m. P.W.I had been to the house of the victim and came to learn about the incident from P.W. 2. She reached hospital at about 10.30 a.m., saw the victim at about 12.30 p.m. when she lost her sense and was taken to her house by the accused. She went to the P.S. at about 18.20 hrs. and informed P.W. 13 about admission of her daughter Sahera in S.S.K.M. Hospital with burn injuries. P.W. 13 immediately rushed to S.S.K.M. Hospital, saw the victim in the bed, contacted neighbouring people and after placing two constables to keep watch on the P.O. returned to P.S. and recorded statement of P.W.I. it, is the evidence of P.W. 2 that she has been staying with her maternal grandmother (P.W. 1) since the time of incident which is supported by P.W.I. No suggestion was given to P.W. 2 of any animosity. Though the accused is the stepfather of P.W. 2, there is nothing to indicate about any ill-relation or ill-feeling between her and the accused and as such the question of her false implication of the accused is out of the way. P.W. 2 deposed in a straightforward manner and there was no possibility of her being tutored in the above circumstances, and so, the question of discarding her testimony does not arise at all.

14. Mr. Samir Chatterjee, Id. Counsel for the respondent, on referring the case of Suresh v. State of U.P.,

contended that Section 32 IPC makes punishable omission which have caused or which have been intended to cause or which have been known to likely to cause, a certain evil effect in the same manner as it punishes acts provided they are illegal, and when the law imposes on a person a duty to act, his illegal omission to act renders him liable to punishment, Mr. Chatterjee went on arguing that the act could not necessarily be overt and even if it is only a covert act it is enough and since in the present case when the wife was ablaze and asking for help, standing of the accused by the side as a mere spectator without any attempt for extinguishing the fire which was done by neighbourers, has an active effect conducing to the result, as a link, in the chain of facts from which an intention to bring about the result may be inferred, and there appears to be enough force in the above contention. That apart, the very evidence of P.W. 2 that her mother was shouting for help “Save me, save me, as she was going to be killed by her husband” and she found her mother burning in front of her father who was watching by standing there is very much significant, since it contains the oral dying statement of the victim which appears to be consistent with the evidence of P.W. 1 that the accused poured kerosene oil on the person of Sahera and set fire. As P.W.I is not an eye-witness to the incident and there is no evidence in this regard on behalf of P.W.2, this part of the evidence of P.W. 1 is based on inference. As regards contention of Mr. Biswas that trace of mineral oil not sufficient for its characterization was detected in ‘B'(cloth) and no trace of any foreign inflammable chemical could be detected in the Exts. ‘A’ (blanket) and ‘F’ (hair), it may be observed that the blanket and bed-sheet which were used to extinguish the fire were seized on 14.09,95, the same were sent to F.S.L. on 26.08.96 and the chemical examination was done on 04.04.97 i.e. after more than 1 1/2 years and so detection of inflammable chemical may not be possible after such a long period, but the words ” mineral oil not sufficient for its proper characterization was detected” denote that mineral oil was detected but it was not sufficient for proper characterization. Nevertheless, oral dying statement free from any embellishment or distortion and consistent with the medical evidence and found to be reliable can form the basis of conviction. Greater solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. Here, the very conduct of accused who was standing as a spectator while his wife was ablaze and asking for help coupled with the said dying statement that he was being killed by her husband unerringly point to the guilt of the accused.

15. Mr. Biswas next contended that there is no specific opinion of the autopsy surgeon (P.W.8) whether it is a case of suicidal, homicidal or accidental. On the face of the above evidence of P.W. 2 that her mother was crying for help saying “Save me, save me, as she was going to be killed by her husband”, the question of suicidal or accidental death is redundant.

16. As regards the offence under Section 498A IPC, the expression “cruelty” postulates such a treatment as to cause reasonable apprehension in the mind of the wife that her living with the husband will be harmful and injurious to her life. Ordinarily, offence against a married woman is committed within the four corners of a house and normally direct evidence regarding cruelty or harassment on the woman by her husband or relatives of the husband is not available, and so while deciding as to whether the woman was harassed or ill-treated by her husband, or his relatives, various factors and some circumstances can be considered by the Court, e.g. dying declaration of the woman, if any, extra-judicial confession by the accused, motive, place, time, demand, if any, physical and mental cruelty shown towards wife, conduct of the husband as also of relatives of the husband etc. Here, it is the specific evidence of P.W. 1 that the trouble started when Aftab refused to go for work, and Sahera used to maintain the family by working as a maid-servant. Razia (P..W.2) reported to her about the unhappiness in the family and the matrimonial dispute between the victim and accused, and in course of narrating the sufferings of her mother, she used to outburst into tears for her mother. Accused demanded Rs. 10,000/- and as her daughter could not fulfil the said demand, she was subjected to torture, physically and mentally, by the accused which the victim reported to her. The above evidence is supported by P.W. 9. Considering the facts and circumstances, there is hardly any reason to disbelieve their testimony.

17. Before we part with the record, it is necessary to mention that there is a discrepancy in the evidence of P.W.I insofar as she stated that the police came to the spot when she narrated the incident to police who reduced the same into writing. She is deposing after a lapse of about five years from the time of incident, and so some discrepancy relating to collateral or subsidiary fact may occur which being minor may be ignored.

18. Accordingly, there being no material to interfere with the findings of the Id. Court below, the present appeal be dismissed. The order of conviction and sentence passed by the Id. Court below is hereby confirmed.

19. Alamats, if any, be destroyed after the period of appeal is over.

20. Let a copy of the judgment along with the L.C.R. be sent down at once to the Id. Court below.

Debiprasad Sengupta, J.

21. I agree.

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