Sl. N. 191
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Joymalya Bagchi
The Hon’ble Justice Manojit Mandal
C.R.A. 45 of 2013
Sukhchand Sk. @ Kamru Zaman Ors.
State of West Bengal
Amicus Curiae : Mr. Madhu Sudan Sur, Adv.
For the State : Mr. Arun Kumar Maiti, learned A.P.P.,
Ms. Trina Mitra, Adv.
Heard on : 19.02.2019
Judgment on : 19.02.2019
Joymalya Bagchi, J.:-
The appeal is directed against the judgment and order of conviction dated
and 21.12.2012 passed by the learned Additional Sessions Judge,
Fast Track Court, Rampurhat, Birbhum, in Sessions Trial No. II of May, 2011
arising out of Sessions Case No. 35 of 2011 convicting the appellants for
commission of offence punishable under Sections 302/34 of the Indian Penal Code
and sentencing them to suffer rigorous imprisonment for life each, and to pay fine
of Rs.5,000/- each, in default, to suffer rigorous imprisonment for 1½ years each.
The prosecution case as alleged against the appellants and one Lal Sk. is to
the effect that victim Najema Khatun was married to the appellant no. 1,
Sukhchand Sk. @ Kamruzamman as per muslim rites 12 years prior to the
incident. Najema resided with her husband at the matrimonial home along with
appellant no. 2, Fatik Sk. @ Sirajul and appellant no. 3, Moina Bibi, her parents-
in-law and one Lal Sk., her brother-in-law. She was subjected to mental and
physical torture as she was dark complexioned and insufficient monies had been
given to her husband and in-laws. Few days prior to the incident, Sukhchand Sk.
tried to kill her by setting her on fire. From wedlock three children viz. two
daughters and one son were born to the couple. On 22.06.2009 at 7P.M., P.W 7,
Motiur Rahaman, father of the victim, received information over telephone that
Sukhchand murdered his daughter by pressing her throat on the provocation of
his family members. Over this issue, P.W. 7 lodged written complaint at
Rampurhat P.S being Rampurhat Police Station Case No. 101 of 2009 dated
23.06.2009 under Sections 498(A)/302/34 of the Indian Penal Code. In conclusion
of investigation, charge-sheet was filed against the appellants and one Lal Sk. and
the case, being a sessions triable one, was committed to the Court of Sessions and
transferred to the Court of the Additional Sessions Judge, Fast Track Court,
Rampurhat, Birbhum, for trial and disposal.
Charges were framed under Sections 498(A)/302/34 of the Indian Penal
Code against the appellants and one Lal Sk. They pleaded not guilty and claimed
to be tried.
In course of trial, ten witnesses were examined by the prosecution. Defence
of the accused persons is one of innocence and claimed to be tried.
In conclusion of trial, learned Trial Judge by judgment and order dated
20.12.2012 and 21.12.2012 convicted and sentenced the appellants, as aforesaid.
By the self-same judgment and order co-accused Lal Sk., however, was acquitted
of the charges levelled against him.
Nobody appears for the appellants. Mr. Sur, learned Counsel is requested to
appear as amicus curiae to assist the Court. He argued that there is no direct
evidence that the appellants had committed the murder of the victim. Depositions
of witnesses with regard to torture over demands of dowry are vague and omnibus
in nature. There is nothing on record to show the appellants no. 2 and 3 provoked
the appellant no. 1 to murder his wife. Said appellants stand on the same footing
with co-accused Lal Sk. who has been acquitted by the trial court. Hence, the
appeal ought to be allowed.
On the other hand, Mr. Maiti, learned Additional Public Prosecutor along
with Ms. Mitra, learned Counsel appearing for the State argued that the victim
was subjected to continuous torture by the appellants as she was dark
complexioned and her family members failed to pay monies as demanded by the
appellants. On the fateful day there was a quarrel between appellant no.1 and the
victim and soon thereafter the victim was found dead with marks around her
throat. P.W. 2, post mortem doctor, deposed that the victim had died due to
manual strangulation. No explanation was offered by the appellants with regard
to the homicidal death of the victim at her matrimonial home. Hence, the appeal
is liable to be dismissed.
P.Ws. 5 and 7 are the parents of the victim housewife.
P.W. 5, Romela Bibi, is the mother of the victim. She deposed that the
victim was married to Sukchand. Initially she was living comfortably but
subsequently she was subjected to torture by the appellants as she was of dark
complexioned and they could not pay more dowry. At the time of marriage six
bhories of gold and cash of Rs.45,000/- were paid. Najema reported the incident
of torture on her. All the accused persons committed the murder of Najema on 5th
Ashar. Utpal Khan (P.W. 1) her younger son-in-law was constructing the house of
the accused persons at the time of the incident. He informed the incident to her
husband over telephone.
P.W. 7, Motiur Rahaman, is the father of the victim and de-facto
complainant in the instant case. He deposed that he gave money and gold
ornaments at the time of marriage. The accused persons misbehaved with her
daughter as she was not fair skinned. They demanded more dowry which he
could not pay. As a result, she was tortured and murdered on 20th June, 2009.
His younger son-in-law informed over telephone that Sukchand had killed his wife
by strangulation in collaboration with other accused persons. He informed the
incident to her daughter, Farida Begum (P.W.3), his wife (P.W.5) and his son,
Mustakim Sk. (P.W.8). On the next day, he went to Rampurhat S. D. Hospital and
identified the dead body of his daughter. Police conducted inquest over the body.
He signed on the inquest report. He filed complaint at the police station which was
scribed by P.W.4, Md. Enamul Haque. He proved his signature thereon.
P.W.3, Farida Begum, sister of the victim, P.W.8, Mustakim Sk., the brother
of the victim and P.W.4, Md. Enamul Haque, a neighbour and scribe of the First
Information Report have substantially corroborated the evidence of P.W.5 and
The most vital witness, however, is P.W.1, Utpal Khan, younger son-in-law
of P.W.5 and P.W.7. He deposed that he was on visiting terms with the accused
persons. He saw quarrels between Najema Khatun and her husband. Parents and
brother of Sukchand used to advise him to divorce his wife Najema due to her
dark compexion. Najema was murdered on 26.9.2009. He was working as mason
in the house of the accused persons since 11.6.2009 and was also staying in their
house. On 20.6.2009 at 4.00 P.M., Sukchand was present in the house and was
assisting in mixing building materials. He abused his wife in filthy language. His
parents provoked him to kill her. He restrained them from doing so. After finishing
work, he went out of the house. When he returned at 7.00 P.M., he found the dead
body of Najema was lying on the varandah. He noticed mark on the neck of
Najema. Sukchand and others failed to explain how she had died. The accused
persons took the dead body of the victim to hospital. They did not inform the
police and fled away. He informed P.W.7, Motiur Rahaman, father of the victim.
Police conducted inquest over the dead body of the victim. He signed on the
P.W.6, Subodh Mandal, an A.S.I. of Police, posted at Rampurhat Police
Station, conducted inquest over the dead body of the victim. He proved the inquest
report (Ext.1/1). He sent the dead body for post mortem examination.
P.W.2, Dr. Hiranmoy Ghosh, is the post mortem Doctor who held post
mortem over the body of the victim.
He opined that the cause of death was due to strangulation and ante-
mortem and homicidal in nature.
P.W.10, Atanu Mandal is the first investigating officer of the case. He went to
the place of occurrence. He drew rough sketch map, Ext.8. He recorded
statements of witnesses. He seized marriage certificate under a seizure list, Ext.2.
Upon transfer, investigation was handed over to P.W.9 arrested the accused
persons, collected post mortem and submitted charge sheet.
From the evidence on record it appears that the appellant no.1 was married
to the victim Najema Khatun. The couple resided with the appellant Nos.2 and 3
and one Lal Sk. at the matrimonial home. From the wedlock, three children were
born. On 20.6.2009, the victim suffered homicidal death at the matrimonial home
due to manual strangulation. P.W.1 was working as a mason in the matrimonial
home of the victim since 11.6.2009. He noticed a quarrel between appellant no.1
and the victim. Subsequently, after completion of work, he had gone out of the
house and upon return to the house at 7.00 P.M., he found that the victim was
lying dead. The appellants failed to give cogent explanation for the homicidal death
of the victim housewife. Relying on the evidence of P.W.1, it has been argued that
the appellant no.1 had killed the victim on the instigation of the appellant Nos.2
I have scrutinised the evidence on record in great details. It appears that
there was a quarrel between the appellant no.1 and the victim soon before the
incident. Thereafter, the victim was found dead with marks of injury around her
throat and it has been opined by the post mortem Doctor, P.W.2, Dr. Hiranmoy
Ghosh that she suffered manual strangulation. The appellant no.1, her husband
failed to give any explanation how the victim suffered homicidal death at the
matrimonial home. The evidence of P.W.1 in this regard is corroborated by the
evidence of other witnesses particularly P.W.7, the de-facto complainant in the
I am of the opinion that the aforesaid circumstances unerringly point to the
appellant no.1 as one who had killed his wife by manual strangulation on the
fateful day after having a quarrel with her. There is also evidence on record that
she had been tortured on earlier occasions due to her dark complexion and on
further demands of dowry.
Hence, I have no doubt in my mind that the conviction of the appellant
under Section 498A and under Section 302 of the Indian Penal Code ought to be
Coming to the roles of the appellant Nos.2 and 3 in the instant case, I find
that apart from vague and generic statements that they encouraged the appellant
no.1 to murder his wife, there is no specific evidence with regard to the nature of
extortion made by the said appellants. Nor any overt act has been attributed to
them to aid the appellant no.1 in committing the murder. It is also important to
note under similar circumstances, co-accused Lal Sk. had been acquitted by the
In the light of the aforesaid discussion casting doubt with regard to the roles
of appellant Nos.2 and 3 in the crime, I am hesitant to come to a definite
conclusion that they shared common intention with appellant no.1 to commit the
murder of the housewife.
The case is based on circumstantial evidence. There is evidence on record
that there was a quarrel between appellant no.1 and the victim immediately prior
to the incident. Thereafter the victim was found murdered at her matrimonial
home due to manual strangulation. The appellant no.1, husband failed to explain
how she suffered homicidal death. The evidence on record, however, does not
disclose any overt act played by appellant nos. 2 and 3 in the incident leading to
the homicidal death of the victim.
Under such circumstances, to implicate the appellant nos.2 and 3 in the
murder of the housewife would be wholly unjustified and contrary to law.
Accordingly, I am inclined to extend the benefit of doubt to the appellant
Nos.2 and 3.
In view of the fact that appellant no. 1 had throttled the victim as would
appear from the evidence on record, I am of the opinion that conviction of the said
appellant for the offence under section 302 IPC simpliciter (without reframing the
charge to that effect) would not cause prejudice to him nor would it occasion
failure of justice in this case.
In the light of the aforesaid discussion, I uphold the conviction and sentence
of the appellant no.1 for commission of offence punishable under Sections
498A/302 of the Indian Penal Code. Bail bond of the appellant no.1 is cancelled
and he is directed to surrender before the court below forthwith, failing which the
trial court shall take appropriate steps for execution of the sentence in accordance
Conviction and sentence of the appellant Nos.2 and 3 are set aside.
Period of detention suffered by the appellant no. 1 during investigation,
enquiry and trial shall be set off against the substantive sentence imposed upon
him in terms of Section 428 of the Code of Criminal Procedure.
The appellant nos.2 3 shall be discharged, if not wanted in any other case,
from their bail bonds after expiry of a period of six months in terms of Section
437A of the Code of Criminal Procedure.
The appeal is allowed in part.
Copy of the judgment along with the Lower Court Records be sent down to
the Trial Court at once for necessary compliance.
I record my appreciation for the able assistance rendered by Mr.
Madhusudan Sur, learned Advocate, as amicus curiae in disposing of the appeal.
Urgent photostat certified copy of the order, if applied for, be given to the
parties on priority basis.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)