Mustaque Ansari vs The State of West Bengal

Doubting the correctness of the judgment and order of conviction dated 30/1/2014 and 31/1/2014 passed by the learned Sessions Judge, 2nd Court, Purulia in S.T. no. 10 of 2013, the appellant preferred this appeal with a prayer to set aside the finding of the learned Court below mainly on the ground that the learned Court below failed to appreciate the evidence of the prosecution witnesses in its proper perspectives.

Learned counsel appearing on behalf of the State disputed the same and contended that the learned trial Court has taken care of all the material aspects and has come to a correct finding, which does not call for any interference.

In the interest of effective adjudication, factual scenario needs to be revisited.

The prosecution case, in a capsulated form, is such that the marriage of the victim was held with the accused/appellant nearly twenty-seven years back. After the said marriage, husband/appellant began to put torture upon her physically and mentally. In one occasion, the appellant had assaulted the victim in such a way for which her hand was broken. After giving consolation to the victim, the parents of the victim sent her back. On 07/4/2013 the accused assaulted the victim severely and thereafter set fire upon her. The victim was initially taken to Bansgarh Health Centre and thereafter she was removed to Purulia Sadar Hospital for medical treatment. Disclosing these facts the de facto complainant set the law into motion.

After registration of FIR the prosecution agency came into operation. In course of investigation the I.O. examined available witnesses under Section161 Cr. P.C., collected injury report and thereafter submitted charge sheet under Sections 498A / 307 IPC.

To come to a finding, we should have a look upon the evidence of the prosecution witnesses.

P.W. 1 is the father of the victim. He has corroborated the story of FIR almost in the same tone and tune.

In course of cross-examination, he admitted that the appellant is a day labourer by profession and could not earn more for which he could not afford proper fooding and lodging to the victim. He also contended that he did not see any incident of assault on victim.

From his evidence, we do not find any ingredient of Section 498A

IPC. There was no demand of dowry nor the victim was assaulted on the ground of dowry. The cruelty, which is most essential for constituting an offence under Section 498A IPC is lacking.

P.W. 2 is the nephew of de facto complainant. He did not tell anything regarding the alleged incident of assault by which the victim's hand was broken. Regarding the fateful incident he has stated that after getting an information about the victim, he along with others went to Balarampur Hospital. According to him, one Jamal and two others reported them that the victim was tied with rope in her hands and legs and thereafter the appellant set fire on her.

In course of cross-examination, initially he stated that he was interrogated by the I.O. It was suggested to him that he did not tell the police that he got information and went to Balarampur Hospital and therefrom he came to know about the incident from one Jamal and others.

P.W. 3 is also another nephew of the de facto complainant. He has stated that nearly four years back, the appellant assaulted the victim for which her hand was broken. He further stated that the appellant had given an undertaking in writing that he would not assault the victim further. Upon his such undertaking, they sent back the victim to her matrimonial home. On 07/4/2013 he learnt about the burn injury sustained by the victim and thereafter he went to Hospital.

P.W. 4 is the uncle of the victim. He has narrated the story of assault and burn injury sustained by the victim.

In course of cross-examination, he has stated that he did not tell the police that he got information that the victim was admitted in Balarampur Hospital.

Evidence of P.W. 5 is not relevant because he has been declared hostile.

P.W. 6 is the victim, who has corroborated the story of FIR and it was suggested to her that whether there is any lock system in her room and, in reply, she stated that there is no provision for bolting the house from inside.

P.W. 7 is not much relevant because he is a hearsay witness.

P.W. 8 is the scribe, who has proved the FIR.

P.W. 9 is the constable, who is witness to the seizure list including the wearing apparels of the victim.

P.W. 10 is the doctor, who has given medical treatment to the victim. He candidly stated that the victim was set fire by her husband. Injury report speaks so. The statement of the victim was recorded in that injury report. He opined that after examining the victim, he found 9 per cent burn injury at face and neck region, 18 per cent burn injury at chest and abdomen, 9 per cent burn injury at backside, 9 per cent burn injury at both arms, 9 per cent burn injury at both legs lower part.

Defence could not shake his evidence. Therefore, it stands for reason that the victim suffered burn injury and that the victim told about the incident of burn injury to him.

P.W. 11 is the I.O., who had conducted the investigation of the prosecution case. He has categorically stated the manner in which he conducted the investigation.

However, in course of cross-examination, he has stated that the victim did not tell him that on the relevant day, the appellant assaulted her at 4 p.m. and thereafter he put kerosene oil on her person at 7 p.m.

On perusal of the entire evidence, I find that the prosecution has been able to prove the case beyond all reasonable doubt and dispute.

Learned counsel appearing on behalf of the appellant contended that since 08/04/2013, the accused is in jail i.e. for nearly four years and six months. He prays for reduction of sentence.

It appears from the records as well as it is admitted that the marital tie is still there and the marital tie of victim and the appellant is about twenty-seven years.

It is also established that the appellant is a poor labourer and does not have enough financial capacity to look after his wife and children. On the other hand, the de facto complainant's financial status is much more than the accused. If there was persisting torture upon the victim, in that case, they could not have continued their marital life for about twenty-seven years.

Since the appellant is in custody for about four and half years, and there is no antecedent of his blemished character prior to such incident, I am of the view that the sentence can be reduced to some extent.

Therefore, instead of imprisonment for seven years, I am of the view that the rigorous imprisonment for five years and also to pay fine of Rs.1000/-, in default to suffer simple imprisonment for one month, shall meet the demand of justice. The period of detention already undergone shall be set off accordingly.

Therefore, the criminal appeal is allowed in part. Sentence awarded by the learned trial Court hereby reduced to the extent, as above.

The department is directed to send a copy of this judgment along with the lower Court records at once.

Urgent photostat certified copy of this order, if applied for, be given to the parties.