SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Mohidul Molla vs The State Of West Bengal on 5 June, 2018

IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction

BEFORE:

The Hon’ble Mr. Justice Joymalya Bagchi
And
The Hon’ble Mr. Justice Ravi Krishan Kapur

C.R.A. 509 of 2015

Mohidul Molla
vs.
The State of West Bengal

For the Appellant : Mr. Kaji Saffiulla, Adv.

For the State : Mr. N. P. Agarwalla, Adv.
Ms. S. Das, Adv.

Heard on : June 5, 2018

Judgement on : June 5, 2018

Joymalya Bagchi, J. :

The appeal is directed against the judgment and order dated 7.7.2015

and 8.7.2015 passed by the learned Additional Sessions Judge, 5th Court,

Barasat in Sessions Case no. 1012/14 (Sessions Trial No. 4(8)/14 convicting

the appellant for commission of offence punishable under Section 498A/302 of

the Indian Penal Code and sentencing him to suffer simple imprisonment for
two years and to pay a fine of Rs. 1,000/-, in default to suffer simple

imprisonment for another two months for the offence punishable under section

498A IPC and sentencing him to suffer rigorous imprisonment for life and to

pay fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for another

six months for the offence punishable under section 302 IPC, both the

sentences run concurrently.

Prosecution case against the appellant and other accused persons is to

the effect that the victim had married the appellant ten years ago according to

Muslim rites and custom. From their wedlock a female child was born who was

8 years of age at the time of the incident. Two years after the marriage she was

subjected to torture on further demands of dowry by the appellant and other

accused persons. She was not provided with food and clothing. On 6.3.2014 at

about 8 a.m, P.W. 1, Hasanur Mollah, brother of the victim received

information that his sister had died and after reaching her matrimonial home,

he found that her dead body bearing injuries on her nose and mouth was lying

in the veranda of the house. P.W 1 lodged complaint at Deganga P.S. resulting

in registration of Deganga P.S case no. 127/14 dated 6.3.2014 under section

498A/302/406/34 IPC and under section 3/4 of the D.P Act against the

appellant and one Mobarak Molla and Rubia Bibi, father in law and mother in

law respectively of the victim housewife.

In conclusion of investigation, charge sheet was filed against the

aforesaid persons. The case was committed to the court of sessions and

transferred to the court of Additional Sessions Judge, 5th Court, Barasat, North

24 Parganas for trial and disposal. Charges were framed under section
498A/
302/201/34 IPC against the accused persons. They pleaded not guilty

and claimed to be tried.

In the course of trial, prosecution examined 15 witnesses and exhibited a

number of documents. The defence of the accused persons was one of

innocence and false implication. It was their specific defence that the victim

had fallen at the kaltala and died.

In conclusion of trial, the trial judge by judgement and order dated

7/8.7.2015

convicted and sentenced the appellant, as aforesaid. However, the

other accused persons were acquitted of the charges levelled against them.

Hence, the present appeal.

Mr. Safiulla, learned Counsel appearing for the appellants argued that

the evidence with regard to the demand of dowry was highly improbable.

Although it is alleged that monies were paid to the appellant pursuant to

further demands of dowry in the FIR there is no whisper to that effect in the

deposition of the witnesses. Allegations of torture arising out of dowry are also

not supported by any independent witness.

Coming to the charge of murder he strenuously relied on the evidence of

P.Ws 6 to 11 and 13 and submitted that the victim had suffered a fall at kaltala

resulting in her death. He also criticized the evidence of P.W 12, post mortem

doctor and submitted that the same is inconclusive as to the cause of death.

Hence, he prayed for acquittal.

On the other hand, Mr. Agarwala appearing with Ms. Das for the State

submitted that it has consistently come from the mouths of the relations, P.W

1 to 5, that the victim was subjected to torture on further demands of dowry. It
is inescapable that the victim suffered homicidal death at her matrimonial

home. Explanation offered by the defence with regard to the accidental fall is

wholly ruled out by the medical evidence of P.W 12. He, accordingly, prayed for

dismissal of the appeal.

Let me examine the rival versions in the light of the evidence on record.

P.W. 1 to 5 are the relations of the victim.

P.W. 1, Hasanur Mollah is the brother of the victim and the de facto

complainant in the instant case. He deposed that the appellant was married to

the victim 10 years ago. A daughter was born to the said couple who was eight

years of age. Victim was subjected to torture over on demands of further dowry

which could not be met. On 6.3.2014 they received a telephone call that the

accused persons had killed his sister. He along with others went to her

maternal home and found her dead body lying on the veranda of the house.

Police came to the house and took the dead body to Deganga P.S. He lodged

complaint at Deganga P.S. He requested one Nemai Das to lodge complaint. He

proved his signature on the complaint (Ext 1). Police made inquest over the

dead body which was signed by him. He was interrogated by the police.

In cross-examination, he stated that he was in his house when his sister

died. 15 days prior to the incident, the victim had come to their house. He

denied that the victim had fallen down at the kaltala and sustained injury and

died.

P.W. 2, Akbar Ali Mollah is the father of the victim. He deposed that the

marriage took place between the victim and the appellant ten years ago. Two

years after the marriage the accused persons demanded further dowry. Victim
was subjected to torture as they could not meet the demands of dowry. On

6.3.2014 at about 8/9 a.m. they received information that the victim had died.

They went to the matrimonial home of the victim and found her dead body

lying in the veranda. Police seized articles from the house of the victim and

prepared seizure list. He signed on it (Ext. 3 and 4). He was interrogated by the

police.

In cross-examination he stated that some days prior to the death of the

victim she had come to his house. He had married for the second time after the

death of his wife. The daughter of the victim is living with the accused persons.

P.W. 3, Abdul Majid Mollah, and P.W 4 Jaber Ali Mollah and P.W 5,

Asmat Mollah are the uncles of the victim housewife. They have corroborated

the evidence of P.W.s 1 to 5.

P.W. 6, Ambat Molla is a resident of village of the accused person. He

stated that at about 9 p.m. on the fateful day he heard a sound of cry from the

house of Mohidul and when he reached there, he found that the victim died. He

deposed that there was good relation in between Mohidul and his wife and his

statement was recorded by the magistrate (Ext. 5).

In cross-examination, he stated that Mohidul resided in a separate mess

from his parents. He further deposed that the victim fell down in the kaltala,

suffered injuries and was taken to her bed where she dies.

P.W. 7, Sirajul Mondal is another neighbour of the accused persons, who

deposed that while returning home at 9 P.M. he found Beauty, wife of Mohidul

had fallen down in the kaltala and thereafter was taken to her bed where she

died.

In cross-examination, he stated that he heard Beauty had died due to

stroke.

P.W. 8, Mofijul Islam @ Alam deposed that Mobarak Molla, father of the

appellant was his relation. He was having dinner in the house of Mohidul when

he heard hue and cry of Beauty and some people took her to the verandah of

Mohidul where she died.

P.W. 9, Ayub Mondal deposed that Beauty had gone to fetch water from

the tube well near a masjid and fell down and subsequently died.

P.W. 11, Md. Jahiruddin Mondal deposed that he heard that Beauty had

fallen in the kaltala and had died about 9/9.30 P.M.

P.W. 13, Md. Giasuddin Mondal deposed that on the date of the incident

he was returning home from the market around 7-7.30 P.M. Suddenly he

found near masjid Beauty was lying in the kaltala. He applied water along with

other persons. He called Mohidul from the market. Thereafter Beauty was

taken to hospital where she died.

P.W.12, Dr. Avijit Ghosal is the Autopsy Surgeon, who performed post

mortem examination over the dead body of Beauty. On examination, he found

that the death was due to of smothering which is ante mortem and homicidal

in nature. He found the following injuries:-

1) A nail scratch abrasion ½” X ¼” on the left side of the face, 2½” to

the left of anterior mid line, 1″ below the left lower eyelid.

2) A nail scratch abrasion ½” X ½” on the nose.

3) A nail scratch abrasion ¼” X ½”, ½” below the injury no.2.

4) A nail scratch abrasion ¼” X ¼” on the left angle of the mouth.
5) A nail scratch abrasion ½” X ¼”, ½” to the right of right angle of

the mouth.

6) A nail scratch abrasion ½” X ½” on the right side of the face 1½” to

the right of the anterior mid line.

7) Abrasion ½” X ½” on the left elbow over line sketch.

8) A bruise ½” X ½” over the skin over line the right knee.

9) A lacerated wound ¼” X ¼” on the inner surface of the upper lip.

He proved the post mortem report marked as (Ext.9).

In cross-examination, he stated that smothering is obstruction of the

nostrils and mouth externally so as to obstruct the intake of oxygen in the

respiratory tract. Death may be caused due to closing of mouth and nose. He

denied that he prepared the post mortem report following the contents of

inquest report.

P.W. 14, Sunil Kumar Biswas received the written complaint and drew

up the first information report (Ext.10).

P.W. 15, Deben Mondal is the investigating officer, who investigated the

crime. He held post mortem over the dead body of the victim. He recorded

statements of witnesses. He took pictures of the place of occurrence. He seized

a white shirt of which three buttons were missing under a seizure list. He also

seized other articles in the presence of witnesses under a seizure list (Ext.12).

He seized pluck of scalp hair in the presence of witnesses under a seizure list

dated 11.4.2014 (Ext.14). He sent the pluck of scalp hair to the director of FSL,

Kolkata through a challan (Ext. 15). He put his signature on the challan
(Ext.16). He collected the post mortem report. He arrested the accused persons.

He submitted charge-sheet.

From the evidence on record, it appears that the prosecution has sought to

lead evidence that the victim was subjected to torture on further demands of

dowry after two years of her marriage. In this regard, prosecution has relied on

the evidence of relations of the victim namely P.W.1 to 5. I have examined their

evidence in great detail. I find that the version of demand of further dowry by

the appellant is bereft of materials particulars as to nature of such demands.

There is also divergence in the prosecution version in this regard. As per the

FIR a part of such dowry demand was met, while from the deposition of

witnesses in Court it appears that none of the demands could be met due to

poverty. Although the witnesses claimed that the victim had come to their

residence 15 days prior to the incident, however, no one deposed that she

complained of torture upon her over demands of dowry during such visit.

Hence, I am unable to accept the prosecution version that the victim had been

subjected to torture over further demands of dowry at the time when the

incident occurred. Accordingly, I am of the opinion that prosecution has not

been able to prove the charge under Section 498A of the IPC beyond reasonable

doubt.

Coming to the charge of murder as noted above which is undeniable that

the victim suffered an unnatural death at the matrimonial home in the night

prior to 6.3.2014. While the prosecution claimed that the victim had suffered

homicidal death due to smothering by the appellant, it is the defence version

that she had fallen in the kaltala and suffered injuries and thereafter died. In
this regard, defence has relied on the evidence of neighbours namely P.W.s 6 to

11 and 13 in support of its case.

Learned counsel submits that the said witnesses have not been declared

hostile and in view of the fact that the prosecution has failed to explain their

versions and appellant is entitled to benefit of the doubt. He has relied on Raja

Ram -vs- State of Rajasthan in 2005 SCC (Cri) 1050.

It is true that the neighbours and/or relations of the accused persons,

who were examined as P.W.s 6 to 11 and 13 have not supported the

prosecution case. It is pertinent to note that before relying on their version it

must be seen whether the defence theory as coming out from the mouths of the

said witnesses is plausible or not. Benefit of doubt is definitely a golden thread

which runs through the fabric of our criminal jurisprudence. However, every

fanciful doubt created by the defence even if supported by some of the

prosecution witness cannot be a ground to record an order of acquittal. Hence,

I have taken pains to examine the credibility of the defence version coming out

from the mouths of those witnesses, namely, P.W.s 6 to 11 and 13. P.W.s 6, 7

and 11 claimed that the incident occurred around 9 P.M. in the night whereas

P.W.13 deposed that the victim had fallen at the kaltala near masjid around

7/7.30 P.M. P.W. 8, a relative of the appellant, who claimed to be present at

his house at the time of incident, does not speak of the fall suffered by the

victim at kaltala resulting in her death. P.W.7 claimed the victim died due to a

stroke. Most importantly the evidence of P.W.12 the Autopsy Surgeon wholly

rules out the possibility of the victim dying due to an accidental fall. P.W.12

found all the injuries on the victim in and around her mouth and nose and
unequivocally opined that she had died due to suffocation. His evidence was

criticized on the ground that he had conducted medico legal autopsy and no

pathological autopsy was conducted. I have examined the evidence of P.W. 9 in

the light of the post mortem report (Ext.9). There is nothing in the post mortem

report which speaks of any external or internal injury apart from those noted

by P.W.12. P.W.12 is an independent expert and not an interested witness. His

version wholly improbabilises the defence plea of death of the victim by way of

an accidental fall which, if true, would have undoubtedly resulted in external

and/or internal injuries on other parts of her body apart from her mouth and

nose.

In the light of the aforesaid facts, it is the inescapable conclusion that

P.W.s 6 to 11 and P.W. 13 are unreliable and untruthful witnesses who due to

their close association with the accused persons as neighbours or relations had

sought to cover up the truth and shield the appellant from legal punishment. It

is unfortunate that the Public Prosecutor conducting the trial ignored such

ignominious effort of the said witnesses and failed to declare them hostile and

cross-examined them vis-à-vis their previous statements to the police or

Magistrate. Such failure, however, cannot compel the Court to accept their

versions as gospel truth when such version is riddled with contradictions and

inherent improbabilities when posted against medical evidence. It is the duty of

every Judge to assess the evidence of every witness on the anvil of truthfulness

and broad probabilities of the case. Merely because some of the witnesses do

not support the prosecution case, but were not declared hostile, the Court is

not bound to mechanically record an order of acquittal. More so, when their
versions suffer from inherent falsehood and hollowness as in the present case.

It is only when the doubt created by the defence is a reasonable one, the

accused is entitled to the benefit of doubt. [See Shivaji Sahabrao Bobade vs.

State of Maharashtra, (1973) 2 SCC 793]. In Ambika Prasad vs. State

(Delhi Admin.), (2000) 2 SCC 646, it was held as follows:-

“10. …a Judge does not preside over a criminal trial
merely to see that no innocent man is punished. A
Judge also presides to see that a guilty man does not
escape. One is as important as the other. Both are
public duties which the Judge has to perform…”

The ratio in Raja Ram (supra) is clearly factually distinguishable in the

facts of the present case. In the said report the dying declaration of the said

victim was not accepted as the father of the victim P.W. 6 had admitted that

the victim had been tutored at the time when she was hospitalized. In this

backdrop, the Apex Court refused to rely on the dying declaration and

acquitted the accused persons.

On the other hand, in the present case, versions of the prosecution

witnesses, namely, P.Ws. 7 to 11 and P.W. 13 suffer from mutual

contradictions and patent improbabilities when tested against medical

evidence. Hence, it would be a clear travesty of justice to come to a conclusion

that the appellant had discharged his onus to explain away the circumstances

resulting in the homicidal death of the victim which occurred within the four

corners of his home in the night preceding 06.03.2014.

In view of the aforesaid facts, I am of the opinion that the prosecution

has been able to prove its case of murder beyond reasonable doubt.

In the light of the aforesaid discussion, conviction and sentence imposed

upon the appellant under Section 302 of the Indian Penal Code is upheld but

the conviction and sentence imposed upon the appellant in respect of offence

under Section 498A of the Indian Penal Code is, set aside.

Period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off from the substantive sentence imposed upon

him in terms of 428 of the Code of Criminal Procedure.

The appeal is partly allowed to the aforesaid extent.

Copy of the judgment along with L.C.R. be sent down to the trial court at

once.

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

expeditiously after complying with all necessary legal formalities.

(Joymalya Bagchi, J.)

I agree.

(Ravi Krishan Kapur, J.)

tkm/rkd /akb PA

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh