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Sajibar @ Mujibar Sk & Anr vs The State Of West Bengal on 10 January, 2019

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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction

PRESENT:

The Hon’ble Mr. Justice Rajarshi Bharadwaj

C.R.A. 95 of 2012

Sajibar @ Mujibar Sk Anr.

Versus
The State of West Bengal

For the Appellants : Mr. Kallol Mondal
Mr. Krishan Roy
Mr. Diptendu Narayan Banerjee

For the State : Ms. Faria Hossain
Ms. Baisali Basu

Heard on : 31st July, 2018, 7th August, 2018 and 3rd October, 2018.

Judgement on: 10th January, 2019

Rajarshi Bharadwaj, J.:

This appeal arose out of a judgement and order dated 15th
December, 2011 passed by the learned Additional Sessions Judge,
Fast Track, 1st Court, Berhampore, Murshidabad in Session Serial
Case no. 565 of 2004 (Session Trial no. 15(12)/2004) convicting the
appellants under Section 498A of the Indian Penal Code and
sentencing them to suffer rigorous imprisonment for two years and to
pay a fine of Rs. 5,000/- each; in default to suffer rigorous
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imprisonment for six months for the offence punishable under
Section 498A of the Indian Penal Code.

The prosecution case in brief is that on 1st September, 2003 at
18.05 hours one Tenu Sk., son of Sabdul Sk of village Shialmara, P.S.
Berhampore, Murshidabad lodged a complaint at Berhampore Police
Station alleging that the marriage of his daughter Jarina Bibi was
solemnized with the accused Sajibar @ Mujibar Sk of village
Udaychandpur as per Muslim rites and customs about four years
back. After marriage his daughter started residing at her in-law’s
house with the accused persons, where she was subjected to cruelty
by her husband and also father and brother of her husband both
physically and mentally without any reason. The accused persons
used to declare that they had no need of such housewife. While
Jarina Bibi used to come to her father’s house, she disclosed to her
parents about the fact of torture upon her by the accused persons.
On 31st August, 2003 at about 5.00 p.m. she was taken back to her
in-law’s house by her mother and kept her there. On the date of
incident the mother of Jarina bibi came back to their house in village
Shialmara at about 8.00 a.m. and got an information through the
people that their daughter died by consuming poison. On receipt of
the said information they reached to the in-law’s house of Jarina Bibi
in village Udaychandpur and found their daughter was lying dead.
Jarina Bibi was compelled to commit suicide by consuming poison,
as she could not bear the torture upon her by the accused persons.

On the basis of the written complaint, a criminal case, being
Berhampore P.S. Case no. 269/2003 dated 1st September, 2003 was
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initiated against the accused persons. Investigation was started and
after completion of investigation, charge sheet was submitted before
the learned Chief Judicial Magistrate, Murshidabad, Berhampore.
Thereafter, the case was committed to the Court of the learned
Sessions Judge, Murshidabad at Berhampore and during proceeding
charge was framed under Sections 498A/34 and 304B/34 of the
Indian Penal Code against the accused person, who pleaded not
guilty and claimed to be tried.

It appears from the order dated 5th May, 2016 that the appellant
no.2, Samad Sk. expired on 13th August, 2013 and as such the
instant appeal was abated against the appellant no.2, Samad Sk.

Mr. Kallol Mondal, learned advocate for the appellants
submitted that the First Information Report was not read over to the
complainant being P.W.1 by the scribe P.W.9. He further submitted
that the entire dispute arose, as the deceased did not like her
husband as his one eye was blind. There was contradiction between
the statement of the prosecution witnesses regarding the manner and
reason of torture. P.W.3 for the first time introduced the allegation of
demand of dowry before the Court and not during investigation.
P.W.4 stated in his deposition regarding assault upon the deceased
seven days prior to her death, which was not stated during
investigation and was not corroborated by other witnesses. He also
submitted that the prosecution failed to establish the case under
Section 498A of the Indian Penal Code either by oral evidence or
documentary evidence. He further submitted that from the
statements recorded by the Investigating Officer under Section 161 of
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the Code of Criminal Procedure it appears that the deceased did not
take her one-eyed husband happily and when she frequently visited
her parent’s house, she disclosed her dissatisfaction. P.W.2, mother
of the deceased admitted by her deposition that her daughter used to
consider herself as an unfortunate woman as being a wife of blind
person and by not tolerating such insult, her daughter committed
suicide by taking poison. He further submitted that the learned Trial
Judge ought to have considered that there was no ingredient of
commission of an offence under Section 498A of the Indian Penal
Code. He also pointed out that the learned Judge was pleased to
acquit the charge under Section 304B/34 of the Indian Penal Code
against the appellants. The learned Judge also acquitted the accused
Sajahan Sk under Section 498A/304B of the Indian Penal Code.
Lastly, he submitted that the appellant no.1 was arrested on 2nd
September, 2003 and was granted bail on 23rd October, 2003, but the
High Court cancelled the bail and the appellant no.1 was again
arrested on 25th November, 2017 and till date he is in custody. Thus,
he has prayed that the appellant no.1 may be released.

Learned advocate for the State submitted that death of the
victim occurred within four years of her marriage as evident from the
First Information Report and as such the learned Judge ought to
have recorded the order of conviction under Section 304B of the
Indian Penal Code. Though the Investigating Officer initiated the
proceeding under Section 498A/304B read with Section 34 of the
Indian Penal Code and charge sheet was submitted under the
aforesaid sections, but subsequently charge was framed under
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Section 498A of the Indian Penal Code. She submitted that the
evidence as to the torture upon the victim by the appellant has been
proved by the prosecution witnesses. The specific evidence of P.W.1,
P.W.2, P.W.3 and P.W.4 is that the accused persons caused her death
after torturing and assaulting her. She also submitted that from the
evidence on record it is found that the prosecution has been able to
prove the fact that Jarina Bibi died in her in-law’s house within seven
years from her marriage by committing suicide by taking poison as
she could not bear the torture done upon her by her husband, father-
in-law and brother-in-law both mentally and physically, which drove
her to commit suicide and as such the torture upon the unfortunate
lady must come under the purview of Section 498A of the Indian
Penal Code. Thus, she prayed for dismissal of the appeal.

Heard learned advocates for the parties and perused the
impugned judgement.

In the instant case the prosecution examined as many as twelve
witnesses to substantiate the charge of cruelty.

P.W.1, Tenu Sk., father of the deceased as well as the
complainant deposed in his evidence in chief that after marriage of
her daughter Jarina Bibi, she was subjected to both mental and
physical torture by her husband and she was not allowed to take her
normal food by her husband and even she was not treated by any
Doctor when she used to become sick. Her husband also used to tell
her that she would collect the required money for her treatment from
her father and she was thus subjected to mental torture. He further
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deposed that 3/4 months before her death, Samad Sk, father-in-law
used to assault her and after the last day of assault on her by her
father-in-law she was not allowed to take her food on that date. She
came to the house of P.W.1 and narrated the said incident to them.
Thereafter, after lapse of three days her father-in-law came to her
father’s house and on being asked her father-in-law admitted that he
assaulted Jarina Bibi as she did not obey his instruction. Her father-
in-law also admitted before P.W.1 that by not providing food to Jarina
he committed wrong. Just before five days from the date of her
death, Jarina again came to the house of P.W.1 and thereafter, after
lapse of three days, her brother-in-law (bhasur) Sajahan Sk. came to
the house of P.W.1 for bringing back Jarina, but Jarina was not sent
back to her in-law’s house with accused Sajahan Sk. Thereafter,
after lapse of three days Jarina was sent back to her in-law’s house
accompanied by her mother and on the very next day morning after
returning back of her mother from her in-law’s house, she committed
suicide by taking poison at her in-law’s house. He further deposed
that soon after getting the death news of his daughter, he rushed to
the house of in-laws of his daughter and found his daughter lying
dead on a chouki. Thereafter, he along with his brother came to
Berhampore P.S. and lodged a written complaint before the I.C.,
Berhampore Sadar P.S. The complaint was written by one Sabjan Sk
as per his instruction. The contents of the complaint were not read
over to him by Sabjan Sk, but he put signature on the same.

P.W.2, Foizum Bibi, mother of the deceased, P.W.3, Rafikul Sk.,
paternal uncle of the deceased and P.W.4, Farid Sk., neighbour of the
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father of the deceased at the time of their examination corroborated
the statement of P.W.1.

P.W.5, Mukti Singha, Home Guard of Berhampore P.S. deposed
that he brought one dead body of Jarina Bibi from Udaychandpur to
the police morgue for post mortem and after examination by the
concerned Medical Officer, he took the dead body through challan.

P.W.6, P. Bhattacharya, Sub-Inspector of Police deposed that on
the date of incident he received a written complaint from one Tenu Sk
and on the basis of which he registered Berhampore P.S. Case no.269
of 2003 dated 1st September, 2003 under Section 498A/306 of the
Indian Penal Code.

P.W.7, Dr. Somnath Bhattacharya, deposed that he was
attached to Berhampore Mental Hospital and conducted post mortem
examination over the dead body of Jarina Bibi, wife of Sajibur Sk @
Mujibar Sk, aged about 25 years and on examination he found that
one ecchymosis over the left mantible about 2″x 1″ and one
ecchymosis over the right neck about 1″x ½”, which showed that the
death was unnatural.

P.W.8, Abu Ahammed, Investigating Officer of this case deposed
that after taking the charge of investigation he arranged for
conducting inquest report on the dead body of Jarina Bibi by the
Executive Magistrate. He recorded the statement of the available
witnesses under Section 161 of the Code of Criminal Procedure and
arrested the accused persons. After investigation he submitted charge
sheet against three accused persons for commission of offence under
Section 498A/306 of the Indian Penal Code.

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P.W.9, Sabjan Sk., Advocate’s clerk, who had written the
complaint as per instruction of P.W.1, corroborated the said fact.

P.W.10, Sairekha Bibi, P.W.11, Jabed Sk and P.W.12, Alamgir
Sk, who were the residents of village Udaychandpur, were not
examined by the prosecution but tendered them for cross-
examination and declined.

On perusal of the evidence on record it appears that it was the
specific case of the prosecution that cruelty and torture was made by
the accused persons/appellants upon the victim Jarina Bibi, for
which Jarina committed suicide on 1st September, 2003 in her in-
law’s house within four years from the date of her marriage. It is
found that Jarina Bibi committed suicide by taking poison as she
could not bear the torture done upon her by her husband, father-in-
law, brother-in-law (bhasur) both mentally and physically, which
drove her to commit suicide. As discussed above, P.W.1, P.W.2,
P.W.3 and P.W.4, who were the father, mother, paternal uncle and
neighbour of the father of the deceased, stated that the victim
complained of torture by the appellants whenever she visited her
house. The evidence made by P.W.1 to P.W.4 was admitted by the
appellants. Moreover, from their evidence it is found that they got
news through a minor boy that Jarina Bibi consumed poison and
died and on receipt of the said news they rushed to the in-law’s house
of Jarina and found she was lying dead at the house of the accused
persons. In the instant case, the statement made by P.W.1 to P.W.4
goes to show that soon before her death the deceased was subjected
to cruelty or torture by the appellants.

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It is a fact that the victim committed suicide within seven years
of her marriage. Section 113A of the Indian Evidence Act, 1872 reads
as follows:

“113A. Presumption as to abetment of suicide by a married
woman- When the question is whether the commission of suicide by a
woman had been abetted by her husband or any relative of her
husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to cruelty,
the Court may presume, having regard to all the other circumstances of
the case, that such suicide had been abetted by her husband or by
such relative of her husband.

Explanation – For the purposes of this section, “cruelty” shall
have the same meaning as in Section 498A of the Indian Penal Code.”

The said provision provides that Court may draw in the light of
attending circumstances a statutory presumption of abetment of
suicide in the event a housewife commits suicide within seven years
of marriage provided she was subjected to cruelty by her husband
and other in-laws. In the instant case, cruelty and torture upon the
victim in her in-law’s house have been well proved by the prosecution
and accordingly, the accused persons were convicted for the offence
punishable under Sections 498A of the Indian Penal Code. Hence, I
uphold the order of conviction passed by the learned Judge under
Section 498A of the Indian Penal Code.

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I find that the appellant no.2 expired and the appellant no.1 is
in jail almost 1 ½ years. In my view, since the appellant no.1 is
one-eyed man and he is serving his sentence almost 1 ½ years, his
sentence should be reduced by six months. Therefore, the appellant
no.1 is released, if he is not required in connection with any other
case.

Accordingly, the appeal is disposed of.

Copy of the judgement along with Lower Court Records 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.

(Rajarshi Bharadwaj, J.)

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