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Sk. Aktar Ali & Anr vs The State Of West Bengal on 15 January, 2020

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Present:

The Hon’ble JUSTICE JOYMALYA BAGCHI
And
The Hon’ble JUSTICE SUVRA GHOSH

CRA 66 of 2011

SK. Aktar Ali Anr.

– VERSUS –

The State of West Bengal

For the Appellants: Ms. Chandreyi Alam, Adv.,
Ms. Runu Mukherjee, Adv.,
Mr. Subhajit Das, Adv.

For the State: Mr. Madhusudan Sur, APP
Mr. Manoranjan Mahata, Adv.

Heard on: January 07, 2020

Date: 15.01.2020

SUVRA GHOSH, J. :-

1.

The appeal is directed against judgment and order of conviction and

sentence passed by the Learned Additional District and Sessions

Judge, Fast Track Court – II, Uluberia, Howrah, in S.T. Case No.

289/07 whereby the learned trial Court convicted the appellants for

offence punishable under section 498A/302/34 of the Indian Penal

Code (in short I.P.C.) The learned trial Court sentenced the appellants
2

to suffer rigorous imprisonment for two years and pay fine of Rs.

500/-, in default to suffer simple imprisonment for two months for

offence punishable under Section 498A of the I.P.C. and to suffer

rigorous imprisonment for life and to pay fine of Rs. 2,000/-, in

default to suffer simple imprisonment for 10 months for offence

punishable under Section 302 of the I.P.C., both the sentences to run

concurrently.

2. The case of the prosecution, in a nutshell, is that the defacto

complainant Jamsed Mallick lodged complaint on 12-06-2001 before

Shyampur P.S. to the effect that his daughter Rausnara Biwi aged

about 19 years was married to Sk. Aktar Ali, son of late Sk. Mofi

before about three months from the date of complaint and after her

marriage her husband, husband’s sister and mother inflicted torture

upon her regularly. The complainant was informed on 12-06-2001

that his daughter had hanged herself to death. He alongwith his

family members immediately rushed to his daughter’s house and

found his daughter hanging by a knot tied with a cloth. Marks of

injury were found on her chin and the inmates of her matrimonial

home were absent. The complainant believed that the husband,

mother-in-law and sister-in-law of the victim jointly murdered her.

3. On receipt of the complaint, Shyampur P.S. Case No. 50 dated 12-06-

2001 was registered under section 498A/302/201/34 of the I.P.C.,

setting the criminal law in motion. Charge sheet was submitted

against the appellants and another under section 498A/302/201/34

of the I.P.C. after completion of investigation. The case was committed
3

to the Learned Sessions Judge, Howrah, and was subsequently

transferred to the Court of Learned Additional Sessions Judge, Fast

Track Court – II, Uluberia for trial/disposal.

4. No execution report with regard to warrant of arrest issued against

accused Arjina Begum was received and the case was filed for the

present in respect of the said accused. Upon consideration of the

material on record, charge was framed against the appellants under

section 498A/302/34 of the I.P.C. Substance of accusation was read

over and explained to the appellants to which they pleaded not guilty

and claimed to be tried. Accordingly, the prosecution, in order to

prove its case, examined 17 witnesses and documents were marked as

Exhibits 1 to 7. Wearing apparel of the victim was produced and

marked as Material Exhibit – I. The defence case, as it appears from

the trend of cross-examination as well as statement of the appellants

under section 313 of the Cr.P.C., is a denial of the prosecution case

and a plea of innocence. No witness was however examined by the

appellants. In conclusion of evidence, the learned trial Court, by the

judgment impugned, convicted the appellants for offence punishable

under section 498A/302/34 of the I.P.C. and sentenced them

accordingly. Being aggrieved by and dissatisfied with the said

judgment and order of conviction and sentence, the appellants have

come up in appeal before this Court, praying for acquittal.

5. In refuting the judgment impugned, learned advocate for the

appellants submitted that no case of demand of dowry was made out

in the First Information Report and alleged demand of bicycle has
4

cropped up for the first time in the evidence led by prosecution

witnesses. The alleged neck injury of the victim has also not found

place in the F.I.R. (First Information Report). The allegation of demand

of dowry was not disclosed before the Investigating Officer by the

witnesses and the neighbours of the victim were also not examined.

Mere absence of the appellants from the place of occurrence after the

death of the victim does not ipso facto suggest that the appellants

were guilty of the alleged offence. The medical report of the victim also

does not support the prosecution case. Apart from the close relatives

of the victim, the other witnesses deposed that the victim led a happy

conjugal life in her matrimonial home. PW-2 who is the victim’s

mother stated in her evidence that the victim was married to Aktar Ali

about 7 years and 2 months prior to her death and therefore alleged

demand of a bicycle by the appellants after so many years of marriage

is highly improbable. Drawing the attention of the Court to the

contradictions and discrepancies in the evidence of the witnesses,

learned advocate for the appellants has submitted that the evidence

on record is too scanty to bring home charge against the appellants

under section 498A/302/34 of the I.P.C. and as such, the appellants

deserve an order of acquittal.

6. The State supported the impugned judgment and stood by it. It was

submitted on behalf of the State that the death of the victim was

homicidal as appears from the post-mortem report. It was

categorically stated by PW-3 and PW-4 that despite giving cash and

gold ornaments to the appellants at the time of marriage as per their
5

demand, the appellants continued to create pressure upon the victim

on demand of a bicycle and inflicted torture upon her which was

reported to them by the victim. The victim admittedly died in her

matrimonial home. According to the prosecution, the allegations

against the appellants have been proved to the hilt by sufficient and

adequate evidence and therefore, the judgment and order impugned

should be affirmed and the appeal dismissed.

7. Alleged demand of a bicycle led to deprivation of the precious life of a

newly wed girl even before she could fulfill her cherished dreams of a

happy married life. The post-mortem report confirms that her death

was “due to asyphyxia following strangulation which is ante mortem

and homicidal in nature”. The moot question for consideration is

whether the appellants or any of them are/is responsible for such

homicidal death of the victim. In order to arrive at a decision

regarding the guilt of the appellants or otherwise, it is necessary to

scan and weigh the evidence led by the prosecution.

8. PW-1 Jamsed Mallick who is the de facto complainant and the father

of the deceased submitted that he gave cash and gold ornaments to

his daughter at the time of her marriage with Sk. Aktar Ali as

demanded by him but was unable to meet the demand of a bicycle as

a result of which the appellants created pressure upon his daughter

and inflicted torture upon her. The victim died within two months of

her marriage by hanging in the western part of her matrimonial home.

Mark of injury was detected on her chin and right side of her throat.

When PW-1 reached her daughter’s home after receipt of news of her
6

death, the members of the matrimonial home were found absent. This

witness could not recollect whether grant of Rs. 4,000/- and gold

ornaments was stated in the written complaint but he was aware that

the demand of cycle and torture upon his daughter on such demand

were mentioned in the First Information Report (F.I.R.).

9. PW-2 who is the mother of the victim reiterated the version of PW-1

and added that she found injury marks on the chin and right cheek of

her deceased daughter.

10. PW-3, PW-4 and PW-5 are related to the victim and have spoken in

tune with the parents of the victim. PW-3 stated that the victim was

not allowed to mix with co-villagers. The victim disclosed before her

mother and aunt (kakima) 4-5 days prior to her death that the

appellants might kill her if their demand for a bicycle was not met.

11. PW-6 is a co-villager and had visiting terms with the appellants. PW-

7 is the brother-in-law of appellant no. 1. Both these witnesses

turned hostile. PW-8 is also a co-villager who was declared hostile by

the prosecution.

12. PW-9 was a witness to the seizure of the wearing apparel of the

deceased.

13. PW-10 claimed to have no knowledge about the incident and was

declared hostile. PW-11 is the scribe of the written complaint and

drafted the same on instruction of the complainant. PW-12 who was

known to the appellants also turned hostile.

7

14. PW-13 held inquest of the body of the deceased and sent the body for

post-mortem examination.

15. PW-14 is the autopsy surgeon who opined that death of the victim

was “due to asyphyxia following strangulation which is ante mortem

and homicidal in nature.”

16. PW-15 received the written complaint and registered the case. PW-

17 is the Investigating Officer who investigated the case and

investigation was subsequently taken over by PW-16 who concluded

the investigation and submitted charge sheet.

17. It is a fact that the F.I.R. is silent with regard to demand of any

dowry, far less a bicycle. The F.I.R. speaks of assault upon the victim

by the appellants followed by unnatural death of the victim.

18. The definition of “cruelty” as laid down in explanation (a) to section

498A of the Indian Penal Code is set out:

“(a) any wilful conduct which is of such a

nature as is likely to drive the woman to

commit suicide or to cause grave injury or

danger to life, limb, or health (whether

mental or physical) of the woman;”

19. It is trite law that the F.I.R. need not be an encyclopaedia of facts

and is only an instrument in writing which sets the criminal law into

motion. Every minute detail of the alleged incident need not be
8

incorporated in the F.I.R. and it is sufficient if an outline of such

incident is reflected therein. Keeping in mind the mental state of the

complainant at the time of lodging the complaint on the day when he

lost his daughter, it is quite normal that he was unable to gather

himself to give out a detailed and vivid picture of the torture meted out

upon his daughter, resulting in her demise. Therefore, the entire

allegation under section 498A of the I.P.C. cannot be discarded

merely on the ground that the F.I.R. is bereft of any allegation with

regard to demand of dowry by the appellants, more so, as such

demand has been narrated by material witnesses examined by the

prosecution.

20. It transpires from the evidence of PW-1, PW-2, PW-3, PW-4, and PW-

5 who are the relatives of the deceased that the deceased disclosed

before them that she was tortured and assaulted by the appellants on

demand of a bicycle. PW-5 stated that the victim stated that there

was every possibility of her being murdered by the appellants if their

demand was not satisfied. It is a fact that all these witnesses are

related to the victim. But law enjoins that evidence of such witnesses

cannot be discounted merely on the ground that they are related to

the victim and may blindly speak in favour of the prosecution case

irrespective it being devoid of truth. The evidence of these interested

witnesses should be tested on the touchstone of truth and credibility

and there is no bar in placing complete reliance upon the same if they

are found to be credible. In the present case, the victim died within

two months of her marriage and there can be no conceivable reason
9

which would prompt these witnesses to falsely implicate the

appellants with whom their cordial relation had just developed.

Marks of injury have also been detected in the person of the victim

which corroborates the unanimous statement of the witnesses which

in turn is in conformity with the version of the F.I.R.

21. True, no independent witness has supported the prosecution case. It

should be borne in mind that ordinarily members of the public

including neighbours refrain from intervening in the lives of others

unless requested or compelled. They prefer to remain out of the

rigours of investigation which is followed by the hazards of a criminal

trial.

22. It is a fact that no complaint with regard to such torture was

reported before any authority by the victim or her parental family

during her lifetime. But the Court should not lose sight of the reality

that a girl as ordinarily placed as the victim would choose to bear the

ill-treatment meted out to her in her matrimonial home silently and

not disclose the same before an outsider in the neighbourhood of her

matrimonial home where she had stepped in only a couple of months

ago or even rush to lodge a complaint for every incident of torture or

assault. She however disclosed her plight before her dear ones before

leaving the mortal world.

23. Therefore it can be concluded that both the appellants were guilty of

subjecting the victim to cruelty on demand of a bicycle and offence

under section 498A of the I.P.C. has been substantiated against them
10

beyond all reasonable doubt.

24. With regard to the offence under section 302 of the I.P.C. it is

revealed from the post-mortem report of the victim that death of the

victim was “due to asyphyxia following strangulation which is ante

mortem and homicidal in nature.” In other words, the victim was

strangulated to death and then hanged by a saree to the ceiling of a

room in her matrimonial home. Marks of strangulation were also

found on both sides of her neck. The rough sketch map of the place of

occurrence indicates that the house of the appellants comprises two

rooms and it can be ordinarily presumed that one of the rooms was

occupied by the victim and her husband appellant no. 1 and the other

room by appellant no. 2 and her daughter. The death of the victim

was reported to the de facto complainant at about 8:00 A.M. and it

can be safely inferred that the incident occurred on the previous

night. It is crystal clear from the evidence on record that both the

appellants and the daughter of appellant no. 2 used to reside with the

victim in the same house which suggests that appellant no. 1 was in

the same room with the victim at the time of the incident.

25. It is clearly envisaged in section 106 of the Evidence Act, 1872 that

“When any fact is especially within the knowledge of any person, the

burden of proving that fact is upon him.”

26. In the case in hand, such burden essentially lies upon appellant no.

1 who by virtue of sharing the same room with the victim is supposed

to explain the unnatural death of the victim. This appellant cannot
11

get away by simply keeping quiet and not furnishing the explanation

which would be believable and trustworthy. Despite having such

opportunity while being examined under section 313 of the Cr.P.C.,

appellant no. 1 offered no such explanation and only evasively denied

the allegations put forth against him. In the premise, it can be safely

presumed that appellant no. 1 and none else was responsible for the

unnatural death of the victim and is therefore the perpetrator of the

offence punishable under section 302 of the I.P.C. The material on

record, however, is far from sufficient to implicate appellant no. 2 in

the alleged crime as no direct nexus between this appellant and the

incident of murder of the victim has transpired from the evidence on

record.

27. In the light of the observations made herein above, I am of the view

that conviction and sentence of both the appellants with regard to

offence punishable under section 498A of the I.P.C. should be upheld.

28. The prosecution has failed to substantiate the offence under section

302 of the I.P.C. against appellant no. 2 and she deserves to be

acquitted from the said charge. As appellant no. 2 has already served

out the sentence imposed upon her for offence punishable under

section 498A of the I.P.C, she be set at liberty at once and be

discharged from her bail bond.

29. However, conviction and sentence imposed upon appellant no. 1 for

offence punishable under section 302 of the I.P.C. is affirmed. Both

the sentences awarded to appellant no. 1 shall run concurrently.
12

30. C.R.A. 66 of 2011 is disposed of accordingly.

31. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties expeditiously on compliance with the usual

formalities.

I agree.

(Joymalya Bagchi, J.) (Suvra Ghosh, J)

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