Calcutta High Court (Appellete Side)
Mohidul Molla vs The State Of West Bengal on 5 June, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Ravi Krishan Kapur
C.R.A. 509 of 2015
Mohidul Molla
vs.
The State of West Bengal
For the Appellant : Mr. Kaji Saffiulla, Adv.
For the State : Mr. N. P. Agarwalla, Adv.
Ms. S. Das, Adv.
Heard on : June 5, 2018
Judgement on : June 5, 2018
Joymalya Bagchi, J. :
The appeal is directed against the judgment and order dated 7.7.2015 and 8.7.2015 passed by the learned Additional Sessions Judge, 5th Court, Barasat in Sessions Case no. 1012/14 (Sessions Trial No. 4(8)/14 convicting the appellant for commission of offence punishable under Section 498A/302 of the Indian Penal Code and sentencing him to suffer simple imprisonment for two years and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for another two months for the offence punishable under section 498A IPC and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for another six months for the offence punishable under section 302 IPC, both the sentences run concurrently.
Prosecution case against the appellant and other accused persons is to the effect that the victim had married the appellant ten years ago according to Muslim rites and custom. From their wedlock a female child was born who was 8 years of age at the time of the incident. Two years after the marriage she was subjected to torture on further demands of dowry by the appellant and other accused persons. She was not provided with food and clothing. On 6.3.2014 at about 8 a.m, P.W. 1, Hasanur Mollah, brother of the victim received information that his sister had died and after reaching her matrimonial home, he found that her dead body bearing injuries on her nose and mouth was lying in the veranda of the house. P.W 1 lodged complaint at Deganga P.S. resulting in registration of Deganga P.S case no. 127/14 dated 6.3.2014 under section 498A/302/406/34 IPC and under section 3/4 of the D.P Act against the appellant and one Mobarak Molla and Rubia Bibi, father in law and mother in law respectively of the victim housewife.
In conclusion of investigation, charge sheet was filed against the aforesaid persons. The case was committed to the court of sessions and transferred to the court of Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas for trial and disposal. Charges were framed under section 498A/302/201/34 IPC against the accused persons. They pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents. The defence of the accused persons was one of innocence and false implication. It was their specific defence that the victim had fallen at the kaltala and died.
In conclusion of trial, the trial judge by judgement and order dated 7/8.7.2015 convicted and sentenced the appellant, as aforesaid. However, the other accused persons were acquitted of the charges levelled against them.
Hence, the present appeal.
Mr. Safiulla, learned Counsel appearing for the appellants argued that the evidence with regard to the demand of dowry was highly improbable. Although it is alleged that monies were paid to the appellant pursuant to further demands of dowry in the FIR there is no whisper to that effect in the deposition of the witnesses. Allegations of torture arising out of dowry are also not supported by any independent witness.
Coming to the charge of murder he strenuously relied on the evidence of P.Ws 6 to 11 and 13 and submitted that the victim had suffered a fall at kaltala resulting in her death. He also criticized the evidence of P.W 12, post mortem doctor and submitted that the same is inconclusive as to the cause of death. Hence, he prayed for acquittal.
On the other hand, Mr. Agarwala appearing with Ms. Das for the State submitted that it has consistently come from the mouths of the relations, P.W 1 to 5, that the victim was subjected to torture on further demands of dowry. It is inescapable that the victim suffered homicidal death at her matrimonial home. Explanation offered by the defence with regard to the accidental fall is wholly ruled out by the medical evidence of P.W 12. He, accordingly, prayed for dismissal of the appeal.
Let me examine the rival versions in the light of the evidence on record. P.W. 1 to 5 are the relations of the victim.
P.W. 1, Hasanur Mollah is the brother of the victim and the de facto complainant in the instant case. He deposed that the appellant was married to the victim 10 years ago. A daughter was born to the said couple who was eight years of age. Victim was subjected to torture over on demands of further dowry which could not be met. On 6.3.2014 they received a telephone call that the accused persons had killed his sister. He along with others went to her maternal home and found her dead body lying on the veranda of the house. Police came to the house and took the dead body to Deganga P.S. He lodged complaint at Deganga P.S. He requested one Nemai Das to lodge complaint. He proved his signature on the complaint (Ext 1). Police made inquest over the dead body which was signed by him. He was interrogated by the police.
In cross-examination, he stated that he was in his house when his sister died. 15 days prior to the incident, the victim had come to their house. He denied that the victim had fallen down at the kaltala and sustained injury and died.
P.W. 2, Akbar Ali Mollah is the father of the victim. He deposed that the marriage took place between the victim and the appellant ten years ago. Two years after the marriage the accused persons demanded further dowry. Victim was subjected to torture as they could not meet the demands of dowry. On 6.3.2014 at about 8/9 a.m. they received information that the victim had died. They went to the matrimonial home of the victim and found her dead body lying in the veranda. Police seized articles from the house of the victim and prepared seizure list. He signed on it (Ext. 3 and 4). He was interrogated by the police.
In cross-examination he stated that some days prior to the death of the victim she had come to his house. He had married for the second time after the death of his wife. The daughter of the victim is living with the accused persons.
P.W. 3, Abdul Majid Mollah, and P.W 4 Jaber Ali Mollah and P.W 5, Asmat Mollah are the uncles of the victim housewife. They have corroborated the evidence of P.W.s 1 to 5.
P.W. 6, Ambat Molla is a resident of village of the accused person. He stated that at about 9 p.m. on the fateful day he heard a sound of cry from the house of Mohidul and when he reached there, he found that the victim died. He deposed that there was good relation in between Mohidul and his wife and his statement was recorded by the magistrate (Ext. 5).
In cross-examination, he stated that Mohidul resided in a separate mess from his parents. He further deposed that the victim fell down in the kaltala, suffered injuries and was taken to her bed where she dies.
P.W. 7, Sirajul Mondal is another neighbour of the accused persons, who deposed that while returning home at 9 P.M. he found Beauty, wife of Mohidul had fallen down in the kaltala and thereafter was taken to her bed where she died.
In cross-examination, he stated that he heard Beauty had died due to stroke.
P.W. 8, Mofijul Islam @ Alam deposed that Mobarak Molla, father of the appellant was his relation. He was having dinner in the house of Mohidul when he heard hue and cry of Beauty and some people took her to the verandah of Mohidul where she died.
P.W. 9, Ayub Mondal deposed that Beauty had gone to fetch water from the tube well near a masjid and fell down and subsequently died.
P.W. 11, Md. Jahiruddin Mondal deposed that he heard that Beauty had fallen in the kaltala and had died about 9/9.30 P.M. P.W. 13, Md. Giasuddin Mondal deposed that on the date of the incident he was returning home from the market around 7-7.30 P.M. Suddenly he found near masjid Beauty was lying in the kaltala. He applied water along with other persons. He called Mohidul from the market. Thereafter Beauty was taken to hospital where she died.
P.W.12, Dr. Avijit Ghosal is the Autopsy Surgeon, who performed post mortem examination over the dead body of Beauty. On examination, he found that the death was due to of smothering which is ante mortem and homicidal in nature. He found the following injuries:-
1) A nail scratch abrasion ½" X ¼" on the left side of the face, 2½" to the left of anterior mid line, 1" below the left lower eyelid.
2) A nail scratch abrasion ½" X ½" on the nose.
3) A nail scratch abrasion ¼" X ½", ½" below the injury no.2.
4) A nail scratch abrasion ¼" X ¼" on the left angle of the mouth.
5) A nail scratch abrasion ½" X ¼", ½" to the right of right angle of the mouth.
6) A nail scratch abrasion ½" X ½" on the right side of the face 1½" to the right of the anterior mid line.
7) Abrasion ½" X ½" on the left elbow over line sketch.
8) A bruise ½" X ½" over the skin over line the right knee.
9) A lacerated wound ¼" X ¼" on the inner surface of the upper lip.
He proved the post mortem report marked as (Ext.9).
In cross-examination, he stated that smothering is obstruction of the nostrils and mouth externally so as to obstruct the intake of oxygen in the respiratory tract. Death may be caused due to closing of mouth and nose. He denied that he prepared the post mortem report following the contents of inquest report.
P.W. 14, Sunil Kumar Biswas received the written complaint and drew up the first information report (Ext.10).
P.W. 15, Deben Mondal is the investigating officer, who investigated the crime. He held post mortem over the dead body of the victim. He recorded statements of witnesses. He took pictures of the place of occurrence. He seized a white shirt of which three buttons were missing under a seizure list. He also seized other articles in the presence of witnesses under a seizure list (Ext.12). He seized pluck of scalp hair in the presence of witnesses under a seizure list dated 11.4.2014 (Ext.14). He sent the pluck of scalp hair to the director of FSL, Kolkata through a challan (Ext. 15). He put his signature on the challan (Ext.16). He collected the post mortem report. He arrested the accused persons. He submitted charge-sheet.
From the evidence on record, it appears that the prosecution has sought to lead evidence that the victim was subjected to torture on further demands of dowry after two years of her marriage. In this regard, prosecution has relied on the evidence of relations of the victim namely P.W.1 to 5. I have examined their evidence in great detail. I find that the version of demand of further dowry by the appellant is bereft of materials particulars as to nature of such demands. There is also divergence in the prosecution version in this regard. As per the FIR a part of such dowry demand was met, while from the deposition of witnesses in Court it appears that none of the demands could be met due to poverty. Although the witnesses claimed that the victim had come to their residence 15 days prior to the incident, however, no one deposed that she complained of torture upon her over demands of dowry during such visit. Hence, I am unable to accept the prosecution version that the victim had been subjected to torture over further demands of dowry at the time when the incident occurred. Accordingly, I am of the opinion that prosecution has not been able to prove the charge under Section 498A of the IPC beyond reasonable doubt.
Coming to the charge of murder as noted above which is undeniable that the victim suffered an unnatural death at the matrimonial home in the night prior to 6.3.2014. While the prosecution claimed that the victim had suffered homicidal death due to smothering by the appellant, it is the defence version that she had fallen in the kaltala and suffered injuries and thereafter died. In this regard, defence has relied on the evidence of neighbours namely P.W.s 6 to 11 and 13 in support of its case.
Learned counsel submits that the said witnesses have not been declared hostile and in view of the fact that the prosecution has failed to explain their versions and appellant is entitled to benefit of the doubt. He has relied on Raja Ram -vs- State of Rajasthan in 2005 SCC (Cri) 1050.
It is true that the neighbours and/or relations of the accused persons, who were examined as P.W.s 6 to 11 and 13 have not supported the prosecution case. It is pertinent to note that before relying on their version it must be seen whether the defence theory as coming out from the mouths of the said witnesses is plausible or not. Benefit of doubt is definitely a golden thread which runs through the fabric of our criminal jurisprudence. However, every fanciful doubt created by the defence even if supported by some of the prosecution witness cannot be a ground to record an order of acquittal. Hence, I have taken pains to examine the credibility of the defence version coming out from the mouths of those witnesses, namely, P.W.s 6 to 11 and 13. P.W.s 6, 7 and 11 claimed that the incident occurred around 9 P.M. in the night whereas P.W.13 deposed that the victim had fallen at the kaltala near masjid around 7/7.30 P.M. P.W. 8, a relative of the appellant, who claimed to be present at his house at the time of incident, does not speak of the fall suffered by the victim at kaltala resulting in her death. P.W.7 claimed the victim died due to a stroke. Most importantly the evidence of P.W.12 the Autopsy Surgeon wholly rules out the possibility of the victim dying due to an accidental fall. P.W.12 found all the injuries on the victim in and around her mouth and nose and unequivocally opined that she had died due to suffocation. His evidence was criticized on the ground that he had conducted medico legal autopsy and no pathological autopsy was conducted. I have examined the evidence of P.W. 9 in the light of the post mortem report (Ext.9). There is nothing in the post mortem report which speaks of any external or internal injury apart from those noted by P.W.12. P.W.12 is an independent expert and not an interested witness. His version wholly improbabilises the defence plea of death of the victim by way of an accidental fall which, if true, would have undoubtedly resulted in external and/or internal injuries on other parts of her body apart from her mouth and nose.
In the light of the aforesaid facts, it is the inescapable conclusion that P.W.s 6 to 11 and P.W. 13 are unreliable and untruthful witnesses who due to their close association with the accused persons as neighbours or relations had sought to cover up the truth and shield the appellant from legal punishment. It is unfortunate that the Public Prosecutor conducting the trial ignored such ignominious effort of the said witnesses and failed to declare them hostile and cross-examined them vis-à-vis their previous statements to the police or Magistrate. Such failure, however, cannot compel the Court to accept their versions as gospel truth when such version is riddled with contradictions and inherent improbabilities when posted against medical evidence. It is the duty of every Judge to assess the evidence of every witness on the anvil of truthfulness and broad probabilities of the case. Merely because some of the witnesses do not support the prosecution case, but were not declared hostile, the Court is not bound to mechanically record an order of acquittal. More so, when their versions suffer from inherent falsehood and hollowness as in the present case. It is only when the doubt created by the defence is a reasonable one, the accused is entitled to the benefit of doubt. [See Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793]. In Ambika Prasad vs. State (Delhi Admin.), (2000) 2 SCC 646, it was held as follows:-
"10. ...a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform..."
The ratio in Raja Ram (supra) is clearly factually distinguishable in the facts of the present case. In the said report the dying declaration of the said victim was not accepted as the father of the victim P.W. 6 had admitted that the victim had been tutored at the time when she was hospitalized. In this backdrop, the Apex Court refused to rely on the dying declaration and acquitted the accused persons.
On the other hand, in the present case, versions of the prosecution witnesses, namely, P.Ws. 7 to 11 and P.W. 13 suffer from mutual contradictions and patent improbabilities when tested against medical evidence. Hence, it would be a clear travesty of justice to come to a conclusion that the appellant had discharged his onus to explain away the circumstances resulting in the homicidal death of the victim which occurred within the four corners of his home in the night preceding 06.03.2014.
In view of the aforesaid facts, I am of the opinion that the prosecution has been able to prove its case of murder beyond reasonable doubt.
In the light of the aforesaid discussion, conviction and sentence imposed upon the appellant under Section 302 of the Indian Penal Code is upheld but the conviction and sentence imposed upon the appellant in respect of offence under Section 498A of the Indian Penal Code is, set aside.
Period of detention suffered by the appellant 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.
The appeal is partly allowed to the aforesaid extent.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.) tkm/rkd /akb & PA