Calcutta High Court (Appellete Side)
Hasina Begam vs The State Of West Bengal on 7 December, 2017
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
CRA 88 of 2015
Hasina Begam............Appellant
Vs.
The State of West Bengal......Respondent
For the Appellant : Mr. Tapas Kr. Ghosh
: Mr. Somsubhra Ganguly
For the State : Mr. Ayan Basu
Heard on : 26.10.2017, 30.11.2017
Judgment on : 07.12.2017
Debi Prosad Dey, J. :-
This appeal is directed against the judgement of conviction and sentence delivered by learned Additional District and Sessions Judge, 2nd Court, Arambagh, Hooghly in ST no. 21 of 2013 ( sessions case no. 14/13) corresponding to GR case no. 706 of 2010 whereby and whereunder learned trial Court acquitted the present appellant and one Abu Taher Hossain for the offence under Section 304 B of the Indian Penal Code but has simultaneously convicted the appellant for the offence under Section 498 A of the Indian Penal Code and sentenced the appellant to suffer simple imprisonment for 3 years and to pay a fine of Rs.1,000/- in default simple imprisonment for 3 months.
Being aggrieved by and dissatisfied with such order of conviction and sentence of learned trial Court this appeal has been preferred by the appellant Hasina Begam on the ground that learned trial Court has erroneously convicted the appellant without having any materials/ingredients of the offence under Section 498A of the Indian penal Code.
The factual matrix of the case under reference is that on 24th August, 2010 the defacto complainant Samim Ali Mallick lodged a written complaint before the officer in charge of Khanakul police station to the effect that on that day at about 3.30 p.m. in the afternoon he had received a phone call from the brother in law of his daughter Pervina Begam alias Jeshmina whereby he came to know that Pervina Begam alias Jeshmina had sustained burn injuries on her person and had been taken to Khanakul Rural Hospital. The defacto complainant rushed to the Khanakul Rural Hospital and found that Pervina Begam alias Jeshmina was lying there with severe burn injuries on her person. The in-laws of Pervina Begam alias Jeshmina were found absent there. After having preliminary examination the doctor referred Pervina Begam alias Jeshmina to Arambagh Sub-Divisional Hospital for treatment. Pervina Begam alias Jeshmina succumbed to her burn injuries on the way to Arambagh Sub-Divisional Hospital. Be it mentioned here, that Pervina Begam alias Jeshmina was married to Abu Taher alias Abu about 3 years ago and the said marriage was a result of love affairs between the parties but allegedly, the appellant being mother in law of Pervina Begam alias Jeshmina did not accept her as daughter in law. The further case of the prosecution is that Pervina Begam alias Jeshmina was subjected to physical and mental torture by her husband and the appellant. Ultimately on the fateful date the appellant poured kerosin oil on Pervina Begam alias Jeshmina and set her on fire. On the basis of that written complaint Khanakul police station case no. 207 of 2010 dated 24th August, 2010 under Section 498A/302/120B of the Indian Penal Code was started against the husband and mother in law and the investigation was culminated in filing of charge sheet against both the accused under Section 498A/304B of the Indian Penal Code. Charge under Section 304B and 498A of Indian Penal Code was framed against the appellant and her son. They pleaded not guilty. Learned trial Court after examination of as many as 18 witnesses acquitted both the accused from the charge under Section 304B of the Indian Penal Code but convicted the appellant under Section 498A of the Indian Penal Code.
It would not be out of place to mention in brief about the evidence adduced by the prosecution in the case under reference. Prosecution witness no.1 Samim Ali Mallick is the cousin brother of the victim Pervina Begam alias Jeshmina. According to prosecution witness no.1 Pervina Begam alias Jeshmina was married with Abu Taher about 3 years ago and she used to reside with her husband and mother in law at her matrimonial home. After the death of Pervina Begam alias Jeshmina he had been to Khanakul police station along with some villagers of his village and he lodged written complaint at the police station. The written complaint was scribed by one Tanzir Ali Mallick of his village. The signatures of prosecution witness no.1 on the written complaint as well as on the inquest report have been marked exhibit 1 and exhibit 2. The signature of prosecution witness no. 1 on another inquest report has also been marked as exhibit 3. In his cross examination this witness has categorically stated that he has had no idea about the contents of the written complaint that was filed by him before the police station. The evidence with regard to alleged torture of Pervina Begam alias Jeshmina being hearsay evidence cannot also be looked into. Curiously enough this witness has admitted in his cross examination that Pervina Begam alias Jeshmina was treated well during her stay in the house of appellant. On consideration of the totality of such evidence of prosecution witness no. 1, I do not find any evidence to hold that the victim was subjected to assault or any physical or mental torture by the appellant during her stay in the house of the appellant. On the contrary, the prosecution witness no.1 has got no idea about the contents of the first information report and the prosecution witness no.1 being a close relation of the victim has candidly admitted in his cross examination that Pervina Begam alias Jeshmina used to reside in the house of her matrimonial home without having any allegation of torture on her person by the appellant. Prosecution witness no.2 Dr. Swapan Kr. Sarkar conducted the Post Mortem Examination on the dead body of Pervina Begam alias Jeshmina being identified by constable no. 2622 Bidyut Nandi of Arambagh police station and such Post Mortem Report has been marked as exhibit 4. The doctor did not mention the date and time of such death of the deceased and also did not mention the degree and percentage of burn injuries sustained by the victim. The FSL examination report was never produced before the doctor and the doctor has specifically stated that "the death of the deceased may be accidental or homicidal or suicidal." The doctor has not ruled out any form of death by saying that such death of the deceased may be accidental or homicidal or suicidal. Doctor could not pin point the actual nature of death and therefore it would be next to impossible to hold that the injuries sustained by the victim were the result of pouring kerosin oil on her person by any other person. The post mortem report can safely be admitted for a limited purpose that the victim died of burn injuries. Prosecution witness 3 Shantanu Dalal was posted as medical officer at Khanakul Rural Hospital and on that date he examined the victim and prepared injury report vide exhibit 5. According to prosecution witness no. 3 the victim had sustained 90 percent burn injury right from her chest front and back abdomen, both hands, both legs and genitalia. The doctor further stated that staff nurse Sayad Saheena Begum and Mrs. Santana Biswas were also present at the rural Hospital on that date. This doctor has categorically stated that at the time of treatment the mother of Jasmina Begum told the doctor that Pervina Begam alias Jeshmina had sustained such burn injuries on her person as her mother in law poured kerosin oil over her body and thereafter set her on fire. The doctor also stated that Jasmin alias Pervina Begam alias Jeshmina was conscious and she had also stated to this doctor which was recorded by doctor on injury report. Accordingly, the doctor referred her to sub-divisional hospital. In his cross examination prosecution witness no. 3 has categorically stated that he did not mention the time of such treatment of the patient and that the patient was conscious at the time of such examination and he did not note in the injury report what actual was said by Pervina Begam alias Jeshmina. In his cross-examination doctor has further stated that he did not record any dying declaration of the patient and at the time of treatment of patient only her mother was present as per the injury report. It is therefore apparent from the evidence of prosecution witness no. 3 that the mother of the victim has stated before the doctor that mother in law of Pervina Begam alias Jeshmina poured kerosin oil on her person and thus Pervina Begam alias Jeshmina sustained such burn injuries on her person. The doctor has admitted in his cross examination that he did not record in the injury report what was stated to him by Pervina Begam alias Jeshmina and thereby he did not record any dying declaration of the victim. Secondly, only mother of Pervina Begam alias Jeshmina was present when the patient was being treated by the present doctor. Learned public prosecutor heavily relied on exhibit 4 the injury report wherein alleged dying declaration of the victim was recorded by prosecution witness no.3. Learned Public Prosecutor submitted that learned trial Court had also accepted such dying declaration but unfortunately learned trial Court has acquitted the appellant from the charge under Section 304B of the Indian Penal Code.
Mr. Basu appearing on behalf of the State contended that the occurrence took place inside the matrimonial home and learned trial Court ought to have altered the charge under Section 302 of the Indian Penal Code and ought to have convicted the appellant for the offence under Section 302 of the Indian Penal Code simply on the basis of such dying declaration of the victim.
On careful scrutiny of such evidence of the doctor I find that the doctor did not record any dying declaration of the injured and that only the mother of the injured was present at the time of such administering treatment to the injured by the doctor. In fact as per the evidence of prosecution witness no. 3 such statement was made by mother of the victim. Therefore, the evidence of mother of the victim assumes great importance. Mother of the victim Nargis Begum has been examined as prosecution witness no. 7. Prosecution witness no. 7 has categorically stated that after marriage Pervina Begam alias Jeshmina went to her matrimonial home and she used to live happily with her husband and in laws at her matrimonial home. She has also stated that Pervina Begam alias Jeshmina died of burn injuries but she could not say as to why and how she had sustained such burn injuries on her person. To my utter surprise I find that this witness has not been declared hostile by the prosecution. The evidence of prosecution witness no.3 has not been corroborated by the mother of victim. Prosecution witness no. 7 being mother of the victim did not whisper anything about the cause of sustaining such burn injury by her own daughter. Therefore, it is really difficult to accept that any such statement was ever made by prosecution witness no. 7 to prosecution witness no. 3 and in view of such specific admission of the doctor it may also be stated that the victim did not make any dying declaration in the presence of prosecution witness no. 3. There is no signature of the victim on the injury report. There is no signature of any other staff nurse on the injury report. The exact words said to have been stated by the victim have not been narrated/described in the alleged dying declaration and therefore it would be difficult to accept that any such statement was ever made by the victim. The most important witness in this respect is prosecution witness no. 7 but she being the mother of the victim also did not support the contentions of prosecution witness no. 3. On the other hand, as per prosecution witness no. 7 Pervina Begam alias Jeshmina was living peacefully and comfortably with the present appellant and her husband. Prosecution witness no. 4 Saidul Islam did not state anything as to how Pervina Begam alias Jeshmina died and he has simply exhibited his signature on the seizure list vide exhibit 6. This witness has also not been declared hostile by the prosecution. Sk. Atwal Haque prosecution witness no. 5 also did not state anything against the appellant or any other person and he has simply proved his signature in seizure list vide exhibit 4/1. Unfortunately, the prosecution also did not try to declare the witness hostile. Bidyut Nandi a constable of Arambagh police station took the dead body of Pervina Begam alias Jeshmina to the morgue and he has proved the chalan vide exhibit 7. Prosecution witness no. 8 Ekramul Ali Mallick heard about the death of Pervina Begam alias Jeshmina but he could not say as to how Pervina Begam alias Jeshmina had sustained such injuries on her person. This witness also has not been declared hostile by the prosecution. Prosecution witness no. 9 was posted with prosecution witness no. 8 and he has had no knowledge about such occurrence. Prosecution witness no. 10 Nader Sheikh is a hearsay witness and can safely be discarded. Prosecution witness no. 11 Sk. Gulzar Hossain specifically stated that Pervina Begam alias Jeshmina died in her matrimonial home by bolting the door from inside and pouring kerosin on her person and thereafter she had set herself on fire. The specific and substantial evidence of prosecution witness no. 11 is that Pervina Begam alias Jeshmina committed suicide by setting herself on fire. This fact has been elicited in the examination in chief. The prosecution did not challenge the statement by declaring the witness as hostile and therefore the substantial evidence of prosecution witness no. 11 as per prosecution is that Pervina Begam alias Jeshmina committed suicide in her matrimonial home by setting herself on fire. Sk. Manowar prosecution witness no. 12 also has not been declared hostile though he did not support the case of the prosecution. Smt. Santana Prosecution witness no. 3 was posted at Khanakul Rural Hospital on the date of such occurrence. This witness could not name and identify the victim however she has stated that the patient told the doctor that her mother in law poured kerosin oil on her body and set her on fire. This witness heard such statement of the patient when the doctor was administering medicine to the patient. She has admitted in her cross examination that no dying declaration of the patient was recorded by the doctor and in fact the conversation was held in between the doctor patient and the mother of the patient. This hearsay witness how far can be believed is a question of fact. Admittedly, the doctor did not record any dying declaration of the patient. Admittedly, the mother of the victim also did not state anything about any such conversation between the doctor patient and the mother of the victim. The mother of the victim prosecution witness no. 7 did not say anything about any such conversation between the parties. Then how this witness could hearsay about any such conversation between the doctor patient and the mother of the patient. That goes to show that this witness has been produced by the prosecution in order to lend credence to the evidence of the doctor that in fact the patient stated something to the doctor. In the same line another staff nurse prosecution witness no. 14 has tried to support the evidence of the doctor. In her examination in chief prosecution witness no. 14 has stated that the patient was speaking very slowly. Secondly, this witness has also admitted in cross examination that she was not present when such conversation was made in between the doctor, patient and the mother of the patient. As per prosecution witness no. 14, the thump impression of the patient was taken on the exhibit but I do not find any such thumb impression of the patient in the injury report. Curiously enough the Investigating Officer has examined both the staff nurse after one year from the date of occurrence and no explanation was given by the Investigating Officer as to why their statements were recorded after such a long time from the date of occurrence. On careful scrutiny of the evidence of prosecution witness no. 13 and 14 it may safely be stated that their evidences are not sufficient to hold that any such dying declaration was made by the victim and was recorded by the doctor. Prosecution witness no. 15 Sk. Imran Ali did not support the case of the witnesses. Prosecution witness no. 16 also did not support the case of the prosecution. On the contrary, prosecution witness no. 16 has categorically stated that Pervina Begam alias Jeshmina was living comfortably and without any allegation against any of her in laws during her lifetime in her matrimonial home. Prosecution witness no. 17 being executive magistrate conducted inquest of the dead body of Pervina Begam alias Jeshmina and his report has been marked exhibit 3/1. This witness is a formal witness. Prosecution witness no. 18 investigated the case, prepared sketch map (exhibit 9), proved the formal FIR (exhibit 8) and also produced the FSL report (exhibit 10). There is absolutely nothing in the FSL report (exhibit 10) to show the cause of death of Pervina Begam alias Jeshmina. This witness also did not offer explanation as to why the staff nurses were examined after one year from the date of occurrence. On the contrary, this witness has admitted that till date the final opinion regarding the cause of death has not been obtained from competent authority and the cause of death is still obscured. In the context of the aforesaid given facts and circumstances learned Advocate for the appellant vehemently contended that the alleged dying declaration of the victim cannot be believed and there is absolutely no evidence to show any mental or physical torture on the person of the victim during her stay in her matrimonial home. Learned Advocate further contended that mother and near relatives of the victim did not support the case of the prosecution and in absence of any such evidence learned trial Court has erroneously convicted the appellant for the offence under Section 498A of the Indian Penal Code. Learned Advocate Mr. Basu appearing on behalf of the state submitted that such dying declaration of the victim ought to be believed on the ground that such dying declaration was believed by the trial Court and the appellant did not offer any explanation during her examination under Section 313 of the Code of Criminal Procedure as to how and in what manner the victim had sustained such burn injury on her person in her matrimonial home. Mr. Basu learned Advocate for the appellant contended that learned trial Court ought to have altered the charge under Section 302 of the Indian Penal Code and in absence of any such explanation from the appellant, learned trial Court ought to have convicted the appellant for the offence under Section 302 of the Indian Penal Code by invoking Section 106 of the Indian Evidence Act. In support of his contention Mr. Basu referred a decision reported in (2016) 2 SCC Cri 936 (Gajanan & Anr. Vs. State of Maharashtra). In the afore mentioned case the father and the son were in the house and the father was found dead due to some injuries on his person. There was absolutely no other person in that house except the father and son. The son could not offer any explanation as to homicidal death of his father and accordingly, the Apex Court considered such fact as a strong circumstance against the appellant and the appellant was found responsible for commission of such crime.
It is apparent from the aforesaid case that there was specific evidence that father died of some injuries and such death was homicidal in nature. In the context of the given facts and circumstances, the prosecution has failed to prove beyond all shadow doubt that in fact the death of the victim is homicidal in nature. On the contrary, it is apparent that the doctor could not opine about the exact cause of death. According to doctor the cause of death may be homicidal or accidental or suicidal. One of the witnesses has stated that Pervina Begam alias Jeshmina committed suicide by bolting the door from inside the room. This witness has neither been declared hostile nor has been discarded by the prosecution in order to do away with the impact of such evidence of prosecution. This witness has been produced by the prosecution and accordingly, the prosecution cannot ignore the impact of the evidence of such witness. Learned Advocate for the State prayed for remand of the case to the trial Court with a direction that charge should be framed under Section 302 of the Indian Penal Code and a fresh trial be conducted against the appellant.
I have already stated in the forgoing paragraphs that the prosecution has hopelessly failed to prove that the cause of death is homicidal in nature. No appeal has been preferred by the state to challenge the acquittal of the appellant for the offence under Section 304 B of the Indian Penal Code. The alleged dying declaration cannot be believed in any view of the case under reference and for the reasons stated herein above. There is absolutely no evidence even from the close relatives of the victim to the effect that the victim was subjected to any kind of mental or physical torture. In absence of any such evidence, I have no hesitation to say that learned trial Court has erroneously convicted and sentenced the appellant for the offence under Section 498A of the Indian Penal Code. The decision referred to hereinabove by learned Advocate for the State is also not applicable in the context of the given facts and circumstances of this case.
In the premises set forth above, it may safely be stated that the prosecution has hopelessly failed to bring home the charge under Section 498A of the Indian Penal Code against the appellant and she deserves an order of acquittal. The order of conviction and sentence passed by learned Additional Session Judge, 2nd Court, Arambagh, Hooghly in sessions trial no. 21 of 2013 arising out of sessions case no. 14 of 2013 for the offence under Section 498A of the Indian Penal Code against the appellant is thus set aside. The appellant Hasina Begam is found not guilty to the charge under Section 498A of the Indian Penal code and she be set at liberty forth, if not required to be detained in connection with any other cases.
Let a copy of this judgment along with the lower court record be sent down to the trial Court for information and necessary action.
The appeal is allowed in terms of the aforesaid order.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Debi Prosad Dey, J.)