Calcutta High Court (Appellete Side)
Md. Jamal @ Jamaluddin & Ors vs The State Of West Bengal on 18 December, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
261
RP & PA
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 236 of 2014
MD. JAMAL @ JAMALUDDIN & ORS.
VS.
THE STATE OF WEST BENGAL
For the Appellant : Mr. Jayanta Narayan Chatterjee, Advocate
Mr. Apalak Basu, Advocate
Mr. Amit Biswas, Advocate
Mr. S. Naskar, Advocate
Mr. Nazir Ahmed, Advocate
Mr. Abhradeep Jha, Advocate
For the State : Mr. Ranadeb Sengupta, Advocate
Heard on : December 18, 2017
Judgement on : December 18, 2017
Joymalya Bagchi, J. :
The appeal is directed against judgement and order of conviction dated 21.02.2014 passed by learned Additional District & Sessions Judge, 2nd Fast Track Court, Islampur, Uttar Dinajpur in Sessions Trial No.70 of 2010 arising out of Sessions Case No. 85 of 2010 convicting the appellants for commission of offences punishable under Section 498A/304B of the Indian Penal Code and sentencing appellant no.1 to suffer simple imprisonment for ten years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for six months more for the offence punishable under Section 304B of I.P.C. and to suffer simple imprisonment for one year and to pay a fine of Rs.1000/-, in default to suffer further simple imprisonment for six months more for the offence punishable under Section 498A of I.P.C. and sentencing appellant nos.2 and 3 to suffer simple imprisonment for seven years and to pay a fine of Rs.1000/- in default to suffer simple imprisonment for six months more for the offence punishable under Section 304B of I.P.C. and to suffer simple imprisonment for one year and to pay a fine of Rs.1000/-, in default to suffer six month more for the offence punishable under Section 498A of the Indian Penal Code, all the sentences are to run concurrently.
The prosecution case, as alleged, against the appellants and other accused persons, is to the effect that the victim, Bibi Gulbanu was married to the appellant no.1 Md. Jamal @ Jamaluddin three years ago. At the time of marriage various gifts were given as per the capacity of the family of the victim. The accused persons were not satisfied with the gift and started physical torture upon the victim on demands of two bhoris of gold. She was driven out from her matrimonial house on several occasions and upon persuasion of her family members she was brought back to the matrimonial home. Sometimes prior to the incident the accused persons again drove her out from the matrimonial home. Over the issue, a salish was held on 13.07.2003 in the house of the ex-pradhan, Nasim (PW 9). In presence of witnesses, the appellants assured that they would not torture the victim and on such assurance victim was sent back to the matrimonial home. On 23.07.2003 her brother Md. Yusuf received intimation that his sister had died due to hanging. He went to the matrimonial house of his sister and found her hanging in the western side room. His sister had died on the previous day but the accused persons had not given any news to them earlier. Yusuf suspected that the accused persons had either killed his sister or she had committed suicide due to their torture. On the basis of the written complaint of Md. Yusuf (P.W.1), Islampur PS Case no.125/03 dated 23.07.2003 under Section 498A/304B/34 IPC was registered against the appellants and others. In the course of investigation, post-mortem report of the victim was collected which disclosed that the victim had suffered a homicidal death. Charge sheet was filed under Section 498A/304B of the Indian Penal Code against the appellants and other accused persons. The case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Fast Track Court-II, Islampur for disposal of the case. Charges were framed under Section 498A/304B of the Indian Penal Code against the appellants and other accused persons.
Prosecution examined 14 witnesses and exhibited a number of documents. The defence of the appellants and other accused persons was one of innocence and falsely implication. In conclusion of trial, the trial Court by the impugned judgment and order dated 21.2.2014 convicted and sentenced the appellants, as aforesaid. However, the other accused persons, namely, Perveen Khatun, Shirua Khawa and Hasabuddin @ Hisabuddin were acquitted of the charges levelled against them.
In view of the fact that the victim appeared to have suffered homicidal death, rule had been issued by this Court upon the appellant no.1 to show cause why the sentence imposed upon him by the trial Court be not enhanced to life imprisonment. Hence, the appeal along with the aforesaid rule for enhancement of sentence are heard together.
Mr. Chatterjee with Mr. Basu learned Advocates for the appellants submitted that the opinion of the Autopsy Surgeon (P.W.10) that the victim had died a homicidal death is not based on sound reasoning. From the inquest report it appears that it is a case of partial hanging and the injury on the ribs may have been caused due to mishandling of the body after death. He argued that evidence of the relations that the victim housewife was tortured over further demands of gold is not supported by independent witnesses and the allegations of torture are general and omnibus. There are discrepancies with regard to the issue of holding of salish, as alleged by the prosecution. It was also argued that the appellants no.2 and 3 have been falsely roped in although the evidence on record showed that the couple resided in a separate mess. It was, therefore, prayed that the appeal be allowed and rule be discharged.
Mr. Sengupta, learned Advocate for the State argued that there is ample evidence on record that the victim housewife was subjected to torture by the appellants on further demands of gold ornaments. She was driven out of her matrimonial home on a number of occasions and a salish was held in the house of ex-pradhan Nasim (P.W.9) ten days before the incident. On 22.07.2003 the victim was subjected to severe assault resulting in fracture of her ribs and thereafter strangulated. Hence, a case of homicidal death of the victim at her matrimonial home due to torture for non-fulfilment of demands was clearly made out. Hence, the appeal ought to be dismissed and the sentence of the appellant no.1 husband be enhanced to life imprisonment.
I have heard the rival submissions of the parties.
At the outset, I note with dismay although there was prima facie materials as evident from the post-mortem report that the victim housewife had suffered homicidal death, no alternative charge under Section 302 of the Indian Penal Code was framed in the light of the direction given by the Apex Court in the case of Rajbir @ Raju & Anr. Vs. State of Haryana, 2010 (15) SCC 116. I am not unmindful of the subsequent clarification given by the Apex Court in this regard in Jasvinder Saini & Ors. Vs. State (Government of NCT of Delhi), 2013 (7) SCC
256. In that case the Hon'ble Supreme Court had observed that the dictum in Rajbir (supra) ought not be mechanically followed when the evidence prima facie does not support a case of murder. However, the factual matrix of the instant case portrays a different picture. Not only the post-mortem report (Exbt.2) but the opinion of the Autopsy Surgeon (P.W.10) clearly discloses a case of homicidal death. Under such circumstances, I am of the opinion that trial Judge ought to have followed the mandate in Rajbir (supra) and framed alternative charge under Section 302 of the Indian Penal Code.
Now I come to the assessment of evidence as led by the prosecution in support of its case.
P.W.1, Md. Yusuf and P.W.6, Giasuddin are the brother and father respectively of the victim housewife.
Md. Yusuf (P.W.1) is also de facto complainant in the instant case. He deposed that the victim was married to the appellant no. 1, Md. Jamal. Various articles had been given at the time of marriage. Jamal and other in-laws used to torture the victim housewife over further demands of gold. His sister came to their house and after persuasion she went back to the matrimonial home. Again her in- laws members tortured her demanding gold ornaments weighing two bhories. A salish was held in the village in presence of Pradhan - Nasim, Hisabuddin and Kasimuddin from the village of Jamal. In that salish Jamal, his father and brother were present and undertook that they would not perpetuate torture upon the victim on further demands of dowry. Thereafter the victim went back to her matrimonial home and stayed there for fifteen days. The accused persons killed her and hanged her by rope. Some villagers of Jamal gave him news about the incident at 9/9.30a.m. that his sister had died by hanging. He reached there and saw Gulbanu, the victim, in hanging condition. He lodged F.I.R. at Islampur Police Station. And put his L.T.I. on it. In cross-examination, he denied the suggestion that Jamal and his sister purchased tickets to go to Panipath on the next date.
Giasuddin (P.W.6) is the father of the victim. He deposed that his daughter was married to Jamal. She was subjected to torture over demands of valuable ornaments. The members of her in-laws family drove her out after torturing and assaulting her. Her daughter was pregnant when she was driven out of her matrimonial home. Thereafter a salish was held and they took her back. Nasim, Safir and others were present at the salish. After ten days of her returning to the matrimonial home, the accused persons killed her and hanged her by rope. In cross-examination, he stated that he did not see the accused to assault and kill his daughter and thereafter hang her by rope. His daughter had two issues. The first issue was born at her in laws house and the second issue was born at his house. He admitted that his son-in-law had separate mess from his family members and used to work at Panipath.
Nasim (P.W.9) is the former Panchayat pradhan of the parental village of the victim in whose house the salish was held. He deposed that he knew Jamal and his wife Gulbanu. There was trouble in their house relating to demand of valuable articles. There was a talk between the parties for giving gold weighing two bhories. Gulbanu's father could not give it. A salish was held in the court yard of Moulavi Nousad. He was present in the salish. Jamal undertook that he would not torture Gulbanu in future. After salish, Gulbanu was taken to her in-laws house. One week thereafter he heard that Gulbanu was killed and was hanged by rope. He went to the house of Jamal, police and B.D.O. came there. B.D.O. did surathal report in his presence and he put his signature on it. The signature is marked as exhibit 1/1.
Nousad Alam (P.W.8) was a Moulovi who had performed the marriage of the couple. He deposed that after marriage there was a trouble between husband and wife over demand of two bhories of gold. A salish was held in his courtyard over this issue. He deposed that he and his brother Nasim (P.W.9) lived in the same house. After salish, Gulbanu again went back to her in-laws house. After ten days he heard the news that Gulbanu had been killed.
Safiruddin (P.W.7) was another witness who was a local person and was present at the time of salish. He has corroborated the evidence of P.Ws. 8 and 9.
Md. Zahid (P.W.2) and Hisabuddin (P.W.3) are the co-villagers of the appellant Jamal. They deposed that the victim housewife suffered unnatural death due to hanging at her matrimonial home.
Md. Samsul Haque (P.W.4) and Sabir Alam (P.W.5) have been declared hostile.
Abdul Rashid Chowdhury (P.W.11) is another witness. He has corroborated the evidence of P.Ws. 1 and 6. He signed on the seizure list relating to the seizure of wearing apparels of the victim and identified them in Court. He has also spoken about the salish over the aforesaid dispute.
Dr. Santanu Dutta (P.W.10) is the medical officer who conducted post mortem on the body of the victim. He found the following injuries:-
He found three firm knotted ligature of nylon rope, well defined, firm and depressed. It was transverse encircling the neck completely. The knot mark was at the right side of the neck. There was laceration of the skin at the ligature mark. Few abrasions were noted around the ligature mark. There was fracture on right third rib at sternal end. Hemorrhage at the level of third lobe over the right lung. Few patches of hemorrhage at the back of lung. There was hemorrhage at the right lobe of liver (diffused). Hematoma below liver bed. Fracture hyoid cartilage and thyroid cartilage.
As per his opinion death was due to asphyxia, due to strangulation by ligature which is homicidal in nature.
In cross-examination, he stated that ligature mark may occur both in case of suicidal hanging and strangulation. Both fracture of both hyoid cartilage and thyroid cartilage may happen due to suicidal and homicidal hanging. In case of strangulation as per Modi's jurisprudence there may be ecchymosis around the ligature mark, scratches marks and abrasion on the face and other part of the body. In case of strangulation there may be bleeding from nose, mouth and ear. Due to flexibility of second and third ribs it cannot be easily broken but other ribs may be broken due to hit. He denied the suggestion that the victim committed suicide.
From the evidence it appears that the unfortunate housewife suffered a homicidal death at her parental home within three years of her marriage. Her matrimonial life was not a happy one. She had been subjected to continuous torture over demands of two bhoris of gold and due to such torture she withdrew from her matrimonial home and gave birth to her second child at her parental home. Thereafter salish was held at the residence of P.W.8 (who conducted the marriage) and P.W.9 (the former Pradhan), wherein appellant no. 1 admitted that he would not subject his wife to torture and brought her back to the matrimonial home. Evidence has come on record that the appellant no. 1 and the victim resided in separate mess and though appellant no.1 used to work at Panipath on the fateful day he was present at his residence with his wife when she suffered homicidal death. Evidence of P.W. 10 not only speaks of a traverse continuous ligature mark encircling the neck which is indicative of strangulation but also shows that the third rib of the victim was fractured and there were extensive haemorrhages around her lungs and liver. In the light of such extensive external and internal injuries on the victim, P.W.10 opined that the victim died due to strangulation which was homicidal in nature. It has been strenuously argued that the injuries were not indicative of homicidal death and the injury in the rib may have been caused due to poor handling of the body of the victim after death. It is nobody's case that the internal injuries or the fracture of the rib of the victim were post mortem injuries. On the other hand, extensive internal haemorrhages in the lungs and liver of the victim and the fracture of her third rib with the transverse ligature mark encircling the neck with lacerations and abrasions are clearly indicative of as phyxial death due to strangulation which is homicidal in nature. The autopsy surgeon has stoutly defended his opinion and denied the suggestion of suicidal hanging during cross- examination. Hence, I have no reason to hold a contrary view in that regard.
It is, therefore, clear that the unfortunate housewife suffered a brutal homicidal death at her matrimonial home within ten days of being brought back on the assurance that the appellant no.1 would not subject her to further torture over demands of dowry. I, however, note that the evidence of torture against the other in-laws i.e. the appellants no.2 and 3 are general and omnibus in nature. Evidence has also come on record that the appellant no.1 and his wife resided in separate mess. Independent evidence of P.Ws.7 and 11 also deposed that it was the appellant no. 1 who assured during salish that he would not subject his wife for the torture over further demands. From the evidence on record it is clear that the appellant no.1 had subjected his wife to torture over demands of valuable articles and even ten days prior to her homicidal death had assured her relations that he would not subject her to further torture. Soon thereafter, the victim suffered homicidal death at her matrimonial home. Appellant no.1 was present with the victim at the time of occurrence and has failed to give any explanation as to the cause of her death. Hence, the ingredients of the offences punishable under sections 498A and 304B of the Indian Penal Code are established against the appellant no.1 beyond doubt. However, I find that the appellant nos.2 and 3, the parents-in-laws of the victim, resided in separate mess. Hence, I am inclined to extend the benefit of doubt to the said appellants. They are acquitted of the charges levelled against them while the conviction of the appellant no.1 for the offences punishable under sections 498A and 304B of the Indian Penal Code is upheld.
Coming to the sentence imposed on appellant no.1, I find that the victim housewife suffered homicidal death within three years of her marriage. She had been subjected to brutal assault as would be evident from the internal haemorrhages around various vital organs of her body e.g. lungs and liver including fracture of the third rib. In Rajesh Bhatnagar Vs. State of Uttarakhand, 2012(7) SCC 91, the Hon'ble Apex Court held that torture of the housewife over demands of material goods like television, cooler etc. resulting in her homicidal death justifies the maxim sentence of life imprisonment. On the other hand, in Sunil Dutt Sharma Vs. State (Government of NCT of Delhi), (2014) 4 SCC 375, the Hon'ble Apex Court laid down the parameters of proportionate sentencing in dowry deaths and held as follows:-
"...The search for principles to satisfy the crime test in an offence under Section 304-B of the Penal Code must, therefore, lie elsewhere. Perhaps, the time spent between marriage and the death of the woman; the attitude and conduct of the accused towards the victim before her death; the extent to which the demand for dowry was persisted with and the manner and circumstances of commission of the cruelty would be a surer basis for determination of the crime test. Coupled with the above, the fact whether the accused was also charged with the offence under Section 302 of the Penal Code and the basis of his acquittal of the said charge would be another very relevant circumstance. As against this the extenuating/mitigating circumstances which would determine the "criminal test" must be allowed to have a full play. The aforesaid two sets of circumstances being mutually irreconcilable cannot be arranged in the form of a balance sheet as observed in Sangeet (supra) but it is the cumulative effect of the two sets of different circumstances that has to be kept in mind while rendering the sentencing decision. This, according to us, would be the correct approach while dealing with the question of sentence so far as the offence under Section 304-B of the Penal Code is concerned."
In the said report, the Court sentenced the convict husband to 10 years of rigorous imprisonment on the ground that charge under section 302 of I.P.C. had failed as there was no evidence that he had strangulated his wife.
The aggravating circumstances relating to the crime in the instant case show that the victim was subjected to persistent torture over demands of gold ornaments and had been driven out of her matrimonial home over such demands while she was pregnant. Ten days prior to the incident, the appellant no.1 assured in the salish that he would not torture his wife over demands of dowry and on such assurance she was sent back to the matrimonial home. On the fateful night the victim suffered homicidal death while she was residing with the appellant no.1 in separate mess. Extensive internal haemorrhaging wounds including fracture of rib were found on the victim in addition to the traverse ligature mark encircling the neck indicating homicidal strangulation. These circumstances have clearly established that the appellant no.1 had subjected her to brutal assault and thereafter strangulated her to death. No extenuating circumstance has been probabilised by the appellant no.1 to justify his conduct. False plea of suicide has been disproved by the autopsy surgeon. The appellant no.1 has also singularly failed to give any explanation for the injuries suffered by his wife. Hence, unlike Sunil Dutt (supra) where the husband was acquitted of the charge of murder as there was no evidence that he had strangulated his wife, I have no doubt in my mind that it was none but the appellant no.1 who had strangulated his wife to death. The 'crime test' is, therefore, decided against the appellant and points towards escalation of sentence to the maximum limit. However, on requires to balance the 'crime test' with the 'criminal test' for arriving at a just sentence. 'Criminal test' relates to the special circumstances of the convict which may have an ameliorative impact on the sentence. In this regard, I note that the appellant has strong roots in society and is the father of two children. Balancing the aforesaid aggravating and mitigating factors, I am of the opinion that interest of justice would be served if the sentence of the appellant for the offence under section 304B of I.P.C. is enhanced to 14 years of rigorous imprisonment from the sentence of 10 years rigorous imprisonment as imposed by the trial Court.
Under such circumstances, I enhance the sentence imposed on the appellant no. 1 and direct that he shall suffer rigorous imprisonment for 14 years and to pay a fine of Rs.1,000/- in default to suffer six months more for the offence punishable under section 304B of I.P.C. Sentence imposed upon him for the offence punishable under section 498A of I.P.C. shall remain unchanged and both the sentences shall run concurrently.
The conviction and sentence of the appellant nos. 2 and 3 are set aside and they are acquitted of the charges levelled against them.
The appeal is accordingly disposed of. Rule of enhancement of sentence is allowed to the aforesaid extent. Appellant nos. 2 and 3 be forthwith released from custody upon executing bail bond to the satisfaction of the trial Court which shall continue for six months in terms of Section 437A Cr.P.C., if they are not wanted or detained in any other case.
Period of detention suffered by the appellant no.1 during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
Let a copy of this judgment along with the lower court records be sent down to the trial court at once for necessary compliance.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)