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)