SK. MUSTAFA & OTHERS vs THE STATE OF WEST BENGAL

The Appeal is directed against judgement and order dated 29.06.2015 and 30.06.2015 passed by learned Additional Sessions Judge, Uluberia, Howrah in Sessions Trial Case No. 254 of 2011 convicting the appellants for commission of offence punishable under Sections 498A / 306 / 34 of the Indian Penal Code and sentencing the appellant nos. 1 to 4 to suffer rigorous imprisonment for six years each and to pay a fine of Rs.2,000/-each, in default to suffer simple imprisonment for two months more for the offence punishable under Sections 306 / 34 of the Indian Penal Code and also to suffer rigorous imprisonment for two years each and to pay a fine of Rs.1,000/-each, in default to suffer simple imprisonment for one month more for the offence punishable under Sections 498A / 34 of the Indian Penal Code and sentencing the appellant nos. 5, 6 and 7 to suffer simple imprisonment for four years each and to pay a fine of Rs.2,000/- each, in default to suffer simple imprisonment for two months more for the offence punishable under Sections 306 / 34 of the Indian Penal Code and to suffer simple imprisonment for two years each and to pay a fine of Rs.1,000/-each, in default to suffer simple imprisonment for one month more for the offence punishable under Sections 498A / 34 of the Indian Penal Code, all the sentences to run concurrently.

The prosecution case, as alleged against the appellants, is to the effect that one Sabira Begum, sister of Sk. Abdul Ajim (P.W.1) was married to the appellant no.1, Sk. Mustafa on 23.09.2001 by executing a Kabilnama. Six months after the marriage, the appellants created pressure upon the victim to bring money from her parental home. In order to ensure happy conjugal life for the victim, her family members gave money on a few occasions as per their capacity. The appellants, however, continued physical and mental torture upon the victim on further demands of money.

It is further alleged that 5-6 months before the incident, the appellants tried to kill the victim by pouring kerosene oil on her body for which she was admitted to New Eden Nursing Home at Uluberia. Upon recovery the victim was taken to her parental home. The appellants admitted that they would not torture the victim in future and brought her back to the matrimonial home. Two months ago they again demanded money and subjected her to torture when such demand was not met. On the fateful day, that is on 10.12.2008 the defacto complainant received a telephonic call when the appellant no.1 demanded Rs.1 Lac from him failing which the said appellant threatened to kill his sister.

Subsequently at about 4.45 PM he again received a phone call from appellant no.1 informing that his sister was ill and had been taken to Uluberia S.D.

Hospital. When the defacto complainant went to Uluberia Hospital, he found that his sister had died.

On the complaint of P.W.1, first information report in Uluberia P.S. Case

No. 640/2008 dated 10.12.2008 under Sections 498A / 306 / 34 of the Indian Penal Code and under Sections 3 / 4 of the Dowry Prohibition Act was registered for investigation.

In conclusion of investigation, charge sheet was filed against the appellants under Sections 498A / 306 / 34 read with Sections 3 / 4 of the Dowry Prohibition Act and the case was committed to the Court of Sessions and transferred to the trial court for trial and disposal. Charges were framed under Sections 498A / 306 / 34 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried.

In the course of trial, the prosecution examined as many as 12 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the Trial Court by the impugned judgment and order convicted and sentenced the appellants, as aforesaid.

During the pendency of this appeal, the appellant no.6, father-in-law of the victim, expired in custody. Hence, the appeal has abated so far as appellant no.6 is concerned.

Mr. Bachawat, learned senior counsel appearing with Mr. Edulji on behalf of the appellants submitted that the evidence of torture upon the housewife is vague and ambiguous in nature. It was specifically argued that no contemporaneous document was produced to prove that the victim was sought to be set on fire on an earlier occasion and had been admitted to New Eden Nursing Home at Uluberia and had subsequently been brought back to the matrimonial home on the assurance of the appellants that she would not be subjected to further cruelty. Plea that the appellant no.1 made a telephonic call demanding Rs.1 Lac on the fateful day has not been proved beyond reasonable doubt. It is argued that the evidence of the prosecution witnesses are inconsistent with one another with regard to the aforesaid phone call and no call records were seized in the course of investigation to prove such fact. It is also submitted that no independent witness supporting the prosecution case of cruelty and torture on the housewife has been examined. Death of the housewife had occurred after seven years of marriage and, therefore, the prosecution could not take the advantage of the statutory presumption under Section 113A of the Evidence Act to bring home the guilt of the appellants. Hence, they are entitled to an order of acquittal.

On the other hand, Mrs. Sinha, learned Advocate appearing for the State submitted that the evidence on record shows continuous torture on the housewife, which compelled her to commit suicide. There is ample evidence to show that the victim was subjected to similar cruelty on earlier occasions and had been admitted to hospital. Evidence of the witnesses unequivocally speak of demand of Rs.1 Lac by appellant no.1 and the threat held out by the said appellant that the victim would be killed if such payment is not made has been proved beyond reasonable doubt. The appeal is, therefore, liable to be dismissed.

P.Ws.1, 3, 4 and 7 are the relations of the victim. P.W.1 (Abdul Ajim) is the brother and the defacto complainant in the instant case. He deposed that the victim was married to appellant no.1 on 23.09.2001 according to Muslim Shariat.

A cash of Rs.30,000/-, gold ornaments measuring three and half ''vories'' and furniture were given at the time of marriage. Six months after the marriage, the appellants subjected her to cruelty on further demands of money. In response to the said demand, he gave Rs.5,000/-, Rs.3,000/- and Rs.2,000/- to the appellants. When the aforesaid money was utilized, the appellants again started torturing his sister. As he failed to fulfil the demands of the appellants, they tried to kill her by setting her on fire and his sister had to be admitted to New Eden Nursing Home at Uluberia for treatment. Upon discharge, she was taken to their house. After a few days all the accused persons confessed their guilt and showed repentance for their misdeeds and consequentially they took his sister back to her matrimonial house. Thereafter, the appellants again demanded Rs.1 Lac from his sister. They compelled his sister to inform him of such demand over telephone. At that time, the appellant no.1 threatened him that if the amount was not paid, he would murder his sister. On that day itself, appellant no.1 again telephoned him and told him to go to Uluberia Hospital where his sister had been admitted due to illness. When he went to Uluberia S.D. Hospital, he found his sister dead. He was accompanied by his brother, Sk. Subid (P.W.7) and Nijamuddin (P.W.4) and other neighbours. He lodged written complaint with the police station which was written by Golam Kibria Middey as per his dictation.

He proved his signature on such written complaint. The police held inquest over the deadbody of the victim. His brothers, Subid and Nijamuddin were present at the time of inquest and put their signatures thereon. He also put his signature on the inquest report. Postmortem was held over the deadbody of his sister and thereafter they received the deadbody of their sister.

In cross-examination, he admitted that during lifetime of his sister he did not lodge any complaint before any forum ventilating torture inflicted upon her.

He did not supply the phone number of appellant no.1 wherefrom the call was made demanding money from him.

P.W.3 (Sk. Anarul Islam) is a relation of the victim. He deposed that appellant no.1 was married to the victim on 23.09.2001 according to Islamic Shariat customs. Cash of Rs.30,000/-, gold ornaments and furniture were given.

After six months of marriage, she was subjected to torture on further demands of

money. Upon such demand, cash of Rs.5,000/-, Rs.3,000/- and Rs.2,000/- were given on different dates. Six months prior to the incident the appellants tried to kill his sister by pouring kerosene oil on her and she was admitted at Eden Nursing Home at Uluberia. On the day of the incident at about 3.30 P.M. the victim telephoned them and asked them to bring Rs.1 lac, which the appellants had demanded. In default they were informed that she would be killed. During the conversation they heard the voice of the appellants pressurizing the victim to tell her relations to bring the money. On that day at about 4.45 PM husband of victim informed them that the victim was admitted at Uluberia S.D. Hospital.

They went to the said hospital and found that the victim had committed suicide by hanging. He was interrogated by police.

P.W. 4 (Sk. Najimuddin) is a cousin of the victim. He also spoke of marriage of his cousin with appellant no.1 and payment of Rs.30,000/-, gold ornaments and furniture at the time of marriage. He deposed that six months after the marriage, further demands of money were made and in response to such demands, Rs.2,000/- and Rs.5,000/- were paid to the appellants. They tried to reconcile the matter. The appellants assaulted his sister and tried to kill her by setting her on fire by pouring kerosene oil. She had to be admitted to a nursing home. After discharge she was taken to their house. The appellants came to their house and apologized for their misdeeds and took her back to the matrimonial home. On 10.12.2008 at 3.30 P.M. the victim made a call to the cell phone of Subid (P.W.7) and told him that the appellants would kill her if the demand for money was not met, during the conversation they requested the appellant no.1 not to inflict torture upon the victim. Appellant no.1 had disconnected the line and around 4.45 PM he informed that the victim had been taken to Uluberia S.D. Hospital. When they rushed to the said hospital they found that the victim was lying dead. Inquest was held in his presence and he signed the inquest report (Ext. 2/2).

P.W.7 (Sk. Subid Ali) is another brother of the victim. He has corroborated the evidence of earlier witnesses with regard to the marriage, cruelty upon the victim upon demands of money on and from six months of the marriage and payment of various sums of money in response to such demands. He also deposed that the victim was sought to be killed earlier by setting her on fire and had to be admitted at New Eden Nursing Home. The appellants confessed their guilt and on their assurance the victim was taken to the matrimonial home. On the date of incident the victim telephoned him and asked him to bring Rs.1 Lac as demanded by the appellants and appellant no.1 over telephone demanded the money and threatened if he failed to do so, their sister would be killed. At 4.45 PM the appellant had again telephoned and informed them that the victim had been taken to Uluberia S.D. Hospital where she had been admitted. When they rushed to the said hospital, they found the victim was dead. He was present at the time of holding of inquest over the dead body of the victim and signed on the inquest report (Ext. 2/4).

P.W.8 (Sk. Masud Hasan) is another cousin of the victim. He has corroborated the evidence of P.W.7.

P.W.2, 6, 9, 10 and 12 are police witnesses. P.W.2 held inquest over the deadbody of the victim. He proved the inquest report (Ext. 2).

P.W.6 carried the viscera of the victim to FSL Department, Calcutta and received acknowledgement from the staff of the said department. He proved the said acknowledgement (Ext.3).

P.W.9 carried the deadbody of the victim for postmortem examination. He proved his signature on the challan of the deadbody (Ext.4).

P.W.10 and 12 are the Investigating Officers of the case.

P.W.10 received the written complaint from P.W.1. He visited the place of occurrence, drew sketch map with index of the place of occurrence (Ext. 6). He examined witnesses and recorded their statements under Section 161 Cr.P.C. He collected postmortem report of the victim. He arrested two accused persons and upon his transfer in 2009 he handed over charge of investigation to Inspector in Charge, Uluberia Police Station.

P.W.12 is the second Investigating Officer who submitted charge sheet in the instant case.

P.W.5 and 11 are the medical witnesses. P.W.5 was the Ward Master of Uluberia S. D. Hospital. He was present at the time of inquest. He signed on the inquest report (Ext. 2/3).

P.W.11 is the Medical Officer who held autopsy over the dead body of the victim. He found the following injuries on the victim:

"1. Bruise 1 1/4" x 3/4" over posterior medial aspect of right arm 5" x 1/2" above from right elbow joint.

Abrasion 1/2" x 1/2" over posterior medial aspect of right elbow joint.

Abrasion 1" x .3" over medial aspect of left forearm .3" below from elbow joint.

Bruise 1" x 1/2" over posterior medial aspect of left elbow joint.

Abrasion 1" x 3/4" over posterior medial aspect of left arm 4" above elbow joint.

Bruise 2" x 1" over posterior medial aspect of left arm 4" above elbow joint.

Ligature mark - evidence of dark brown colour braided ligature mark 15" x 1/2" with a gap 2" x 1/2" between left mastoid process and left angle of mandible, 2 and 1/2" below posterior occipital protuberance then on right side 2 and 1/2" below right angle of mandible then turned left side 2" below chin then turned backward 1" below left angle of mandible then posterior 2" below left mastoid process more prominent on right side of neck."

He opined that the death was due to effect of hanging, which is ante mortem in nature.

From the evidence on record it appears that the victim was married to appellant no.1 on 23.9.2001. At the time of marriage cash, gold ornaments and other valuable articles were gifted. Six months from the marriage demands of money were made and the victim was subjected to cruelty when such demands were not met. Witnesses have deposed that on various occasions, Rs.5,000/-, Rs.3,000/- and Rs.2,000/- were paid to the appellants. However, when further demands of money were not met, the victim was subjected to cruelty. Six months prior to the incident the appellants attempted to kill the victim by setting her on fire and that she had to be admitted at New Eden Nursing Home for treatment.

Upon discharge, she was taken to her parental home. The appellants confessed their guilt and promised that they would not subject the victim to torture in future. On such assurance, she was taken back to the matrimonial home. All the relation witnesses, namely, P.W.1, 3, 4, 7 and 8 have spoken in unison with regard to the aforesaid torture upon the victim housewife at her matrimonial

home. However, it is admitted by P.W.1 in cross-examination that they did not lodge any complaint to any authority during the lifetime of the victim. No medical documents have been placed on record with regard to the treatment of the victim at Eden Nursing Home at Uluberia where it is claimed that she was admitted when the appellants had tried to set her on fire six months prior to the incident.

It is true that cruelty on a housewife ordinarily occurs within four corners of her matrimonial home and it is difficult to find independent witnesses with regard to such torture. However, when the prosecution case is to the effect that the housewife was attempted to be set on fire and had been taken to hospital, it is difficult to accept the oral version of relation witnesses in the absence of production of any records of the medical institution or examination of the medial personnel who had treated the victim in the said institution.

Hence, I am constrained to hold that the allegation that the victim housewife was attempted to be set on fire six months prior to the incident and had been admitted to New Eden Nursing Home for treatment has not been proved beyond reasonable doubt. In the absence of proof, of the aforesaid incident, the issue of appellants undertaking that they would not subject the victim to similar torture in future also loses significance.

Nonetheless, there is evidence on record that the victim during her matrimonial life was subjected to cruelty by the appellants on demands of money and on various occasions monies were paid to the appellant to satisfy such demands and save the housewife from torture. It is trite law that "falsus in uno" is not ''falsus in omnibus'' and it is the duty of the court to separate the grain from the chaff while analyzing the evidence on record. Hence, though I discard the embellishment of hospitalization of the victim on an attempt to set her on fire, I choose not to ignore the convincing evidence of torture and cruelty upon her during her lifetime at the matrimonial home which compelled her family members to propitiate the greed of the appellants by making payments on various occasions to save her from further agony and ill treatment.

There is also consistent evidence on record that on the fateful day, the family members of the victim received a telephone call from her informing them that a sum of Rs.1 Lac was demanded and the appellant no.1 informed P.W.1 and 7 if the said amount was not paid, the victim would be killed. Learned senior counsel has criticized such evidence on the score that the prosecution witnesses are inconsistent as to who had made the phone call from the matrimonial home of the victim and to whom such call was made on the fateful day.

In the first information report while P.W.1 had stated that the appellant no.

1 had demanded money over telephone, however, in evidence he claimed that the victim had made the phone call and thereafter the appellant no.1 had made the demand. On the other hand, P.W.7 and 8 deposed that the phone call was made to P.W.7, Subid and not to P.W.1. It has also been argued that mobile number of appellant no.1 had not been given to the Investigating Agency and no call records had been seized during investigation.

Analysis of the evidence with regard to the phone call on the fateful day would show that the witnesses consistently had deposed that the victim had made the phone call informing P.W.1 and 7 about the demand of Rs.1 Lac and thereafter appellant no.1 told them that the victim would be killed if such payment was not made. It is not unnatural that when such sinister demand was made over telephone, both P.W.1 and 7 had conversed with their sister and thereafter her husband i.e. appellant no.1 had made the demand and threatened them that their sister would be killed. Minor contradiction as to who received the call first would not affect the veracity of the witnesses as to the fact that phone call was, in fact, made and P.W.1 and P.W.7 were informed by their sister about the aforesaid demand of Rs.1 Lac and thereafter appellant no.1 reiterated the said demand and threatened them that their sister would be done away with if the money was not paid. Soon thereafter the victim committed suicide at her matrimonial home.

However, the evidence with regard to the involvement of the other appellants in the demand of Rs.1 lac and threat to kill the victim on the date of the incident is vague and non-specific in nature and does not inspire confidence.

In view of the aforesaid evidence on record, I am of the opinion that the victim had been subjected to cruelty on demands of money at her matrimonial home by the appellants and on various occasions monies were paid to them in response to such demands to save the victim from torture. Finally on the fateful day, the appellant no.1 had demanded Rs.1 lac and threatened her with death if the said demand was not met. Unable to bear such torture the victim committed suicide immediately thereafter. The Prosecution has been able to prove that the victim was subjected to cruelty and harassment during her lifetime by the appellants at her matrimonial home on demands of money. Hence, the ingredients of the offence punishable under Section 498A of the IPC has been proved against the appellants beyond doubt. Coming to the charge under section

306 IPC, it must be borne in mind that the prosecution does not have the advantage of the statutory presumption under section 113A of the Evidence Act to establish the ingredients of the said offence. While there is evidence on record that all the appellants subjected the victim to torture on earlier occasions, it appears that on the fateful day it was appellant no. 1 who had demanded Rs.1 lacs and threatened her with death if such demand was not fulfilled. He had also communicated such ominous threat to her brothers, that is, P.W.1 and P.W.7.

Soon thereafter, unable to bear such ill treatment, the victim committed suicide.

The evidence on record, therefore, unerringly points to the demand of Rs.1 lac and threat held out by the appellant no.1 on the date of incident as the reason for the victim to commit suicide. The role of the other appellants in that regard is vague and non-specific. I would be speculative to hold that their involvement in the ill treatment of the victim on earlier instances was the cause of her death when the evidence is not convincing as to their role on the date of incident. The live link between their acts and the ultimate death of the victim appears to have snapped and they are entitled to the benefit of doubt on the aforesaid charge.

Hence, I uphold the conviction and sentence of the appellants for the commission of offence under section 498A / 34 of the Indian Penal Code. With regard to the offence under section 306 / 34 of the Indian Penal Code, I hold appellant no.1 guilty of the said offence but I am inclined to extend the benefit of doubt to the other appellants, namely, appellant nos. 2, 3, 4, 5 and 7.

Accordingly, conviction and sentence imposed upon the appellant nos. 2, 3, 4, 5 and 7 for the offence punishable under sections 306 / 34 of the Indian Penal Code are set aside.

Coming to the issue of sentence to be imposed upon appellant no.1 for the offence punishable under section 306 of the Indian Penal Code, I am informed that the appellant no.1 has to take care of his minor daughter who is presently residing in his house. In view of the aforesaid fact, I reduce the sentence imposed upon the appellant no.1 for the aforesaid offence and direct that he shall suffer rigorous imprisonment for five years and pay a fine of Rs.2,000/-, in default, shall suffer simple imprisonment for two months more.

The period of detention suffered by appellants during investigation, enquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure.

The appeal stands partly allowed. The application for suspension of

sentence being CRAN 1045 of 2017 is accordingly disposed of.

Copy of the judgment along with LCR 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.