Calcutta High Court (Appellete Side)
Saifuddin Mondal vs State Of West Bengal on 1 February, 2022
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:
The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Bivas Pattanayak C.R.A. 30 of 2012 Saifuddin Mondal
-Vs-
State of West Bengal
For the Appellant : Mr. Moinak Bakshi, Adv.
For the State : Mr. Partha Pratim Das, Adv.
Ms. Manasi Roy, Adv.
Heard on : 01.02.2022
Judgment on : 01.02.2022
Joymalya Bagchi, J. :-
Appeal is directed against judgment and order dated 21st December, 2011 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs. 20,000/-, in default to suffer rigorous imprisonment for two years more.
Prosecution case as alleged against the appellant is to the effect that the appellant was married to one Bilkis Begum on 24 Jaistha 1411 2 B.S. according to Muslim rites and customs. At the time of marriage, as per the demand of the appellant and his mother Sarifa Bibi (acquitted accused), the de facto complainant namely Samad Ali Mondal, father of Bilkis had paid a sum Rs. 20,000/-, two bharies of gold and a land measuring one bigha to the appellant and the deceased. After the marriage, the couple resided as husband and wife and two daughters were born. Two years after marriage, Bilkis was subjected to torture by the appellant and his mother. De-facto complainant requested them not to torture the daughter. On 13.06.2011 around 3.30 A.M. his daughter was physically assaulted by the appellant under instigation of his mother. He punched on her chest and strangulated her by pressing her neck. Upon receiving information, de facto complainant rushed to the residence of the appellant and found his daughter lying dead in the verandah. He lodged written complaint which was registered as Memari P.S. case No. 122/2011 dated 13.06.2011 under Sections 498A/302/34 of the Indian Penal Code against the appellant and his mother Sarifa Bibi. In conclusion of investigation, charge-sheet was filed and the case was committed to the Court of Sessions and thereafter transferred to the Court of the Additional Sessions Judge, 5th Court, Burdwan for trial and disposal. Charges were framed under Sections 498A/34 of the Indian Penal Code and under Section 302/34 of the Indian Penal Code. Appellant and co-accused Sarifa Bibi pleaded not guilty and claimed to be tried. In the course of examination under Section 313 Cr.P.C it was the specific defence of the appellant that on the fateful night Bilkis had gone out of the residence and 3 did not return. Appellant went out to search for his wife and found her lying in senseless condition in a field two or three plots away. He brought her to the verandah and called the doctor and local people. Thereafter, he was assaulted by villagers and falsely implicated in the instant case.
Prosecution examined 15 witnesses in support of its case. Defence, however, did not lead evidence to probabilise its defence. In conclusion of trial, the trial judge by judgment and order dated 21st December, 2011 convicted and sentenced the appellant, as aforesaid. However, by the self- same judgment and order the judge acquitted the co-accused Sarifa Bibi of the charges leveled against her.
Mr. Bakshi, learned advocate appearing for the appellant argues that the prosecution case with regard to torture has not been believed. He submits the purported extra judicial confession of the appellant was procured through physical violence and is inadmissible. P.W.6, daughter of the deceased is a tutored witness. She was in the custody of her maternal grandmother who had accompanied her to the Court to make statement before the Magistrate. She used to sleep with co-accused Sarifa Bibi in a separate room and had woken up only after the doctor had arrived. Hence it is improbable that she had witnessed the incident. Appellant had probabilised the cause of death which was ignored by the trial court. Hence, the appellant is entitled to an order of acquittal.
On the other hand, Mr. Das, learned advocate appearing for the State submits P.W.6 minor daughter is the most natural and truthful witness. She was present in the house at the time of occurrence and had 4 denied the suggestion that on the fateful day she had slept with her grandmother. Truthfulness of the witnesses is evident from the fact that she had admitted assault upon the appellant and her grandmother by local people. Had she been a tutored witness, she would not have admitted this aspect of the defence case. Her evidence is probabilised by the cause of death as found by the postmortem doctor (P.W.12) and other attending circumstances. In addition thereto, defence plea is patently false and such false plea fortifies the prosecution case. Hence, the appeal is liable to be dismissed.
P.W.1, 2 and 4 are the relations of the deceased. P.W.1 is her father and the informant in the instant case. He deposed that his daughter was married to the appellant according to Muslim rites and customs. At the time of marriage gold ornaments, cash and agricultural land was gifted to the appellant and from the wedlock two female children namely, Rinki and Koyel were born. Dispute occurred after the birth of the second child, who was also a daughter. Her daughter complained to him about the dispute and few days before her death she stated that she would not resume matrimonial life. On 13th June, 2011 before reading the first Namaz he was informed that his daughter was unwell. He rushed to the residence of the appellant and found the body of his daughter was lying under the verandah. A doctor came to the spot and declared that her death was unnatural. He lodged complaint which was scribed by Arshed Ali Mondal (P.W.8). Police came to the spot and held inquest over the body of the daughter. He signed on the inquest report. Executive Magistrate (P.W.13) 5 also conducted inquest over the body of his daughter. He signed on such report. He further deposed that the daughters of the appellant narrated the incident to him.
P.W.2 is the son of P.W.1. He has corroborated the evidence of his father (P.W.1). In addition, he stated that the appellant confessed his guilt before them. P.W.4 mother of the deceased has also deposed in similar lines and stated that the appellant had made an extra judicial confession before them.
P.Ws.3, 7, 5 and 10 are the local witnesses. P.W.3 is a neighbour and had deposed that on 13.06.2011 around 3.40 A.M. the mother of the appellant informed him that Bilkis was feeling uneasy. He along with his wife went to the house of the appellant. He found that Bilkis was lying on the verandah and froth coming out from the mouth and nose. He informed the father of the victim. Thereafter, when he returned to the spot he found a quack doctor examine the victim and opine that she had died due to throttling. Appellant made an extra judicial confession with regard to the death of the deceased. He signed on the inquest report which was held over the body. He made statement before the Magistrate under Section 164 Cr.P.C. He signed on the said statement. He deposed that the victim was tortured because she was of dark complexion. Such torture increased after the birth of his second daughter. P.W.7, wife of P.W.3 has corroborated her husband and also deposed with regard to the extra judicial confession made by the appellant. P.W.5 is a member of the local panchayat, while 6 P.W.10 is another local witness. Both these witnesses corroborated the deposition of P.Ws.3 and 7.
However, the most vital witness in the present case is P.W.6, Rinki, who is the elder daughter of the appellant. She was around 5 years when she was examined in Court. Being a child witness the presiding officer tested her competence to depose and upon satisfaction her deposition was recorded. She deposed that on the fateful night her father had assaulted with fists and blows and had throttled her mother. She further stated that she had made statement before Magistrate.
In cross-examination, she denied the suggestion that on the date of the incident she had slept with her grandmother. She woke up next morning when the doctor came. After departure of the doctor, people assaulted her father and grand mother. She was crying. She along with her sister went to the house of her maternal grand-father.
P.W.12, Dr. Debasis Sarkar is the Doctor who held post mortem over the body of the victim. He found the following injuries:
1) One cresentic abrasion 1.25 cm x 0.2 cm over the left side of chin, 2" lateral to the mid line.
2) Two cresentic abrasion each 1.25 cm x 0.2 cm over the left side of the chin placed 0.5"apart and 1" to right mid line.
3) 3" x 2" extra vasation of blood defused over anterior neck muscles.
4) Bruise over sub laxation of the greater crono of hyoid bone noticed. No other injury was detected. 7
He opined that death was due to throttling, ante mortem and homicidal in nature.
P.W.13, Kakali Mukherjee is the Magistrate who held inquest over the body of the deceased. She proved the inquest report, Exhibit 4/2.
P.W.14, Subhra Kanti Dhar is the Judicial Magistrate who recorded the statements of witnesses including Rinki Khatun (P.W.6) under Section 164 of the Code of Criminal Procedure.
P.W.15, Pranab Kumar Banerjee is the Investigating Officer of the case. He proved the formal first information report, Exhibit 14. He went to the place of occurrence. He held inquest over the dead body, Exhibit 2/3. He prepared sketch map with index, Exhibit 15 and 15/1 respectively. He recorded statements of witnesses. He arrested the accused persons. Dead body was sent to the Memari Rural Hospital where magisterial inquest was held. Thereafter, the body was sent to Burdwan Medical College and Hospital for post mortem examination through P.W.11. Since both the accused persons were assaulted by local people, he arranged for their medical treatment. He collected post mortem report and submitted charge sheet.
From an analysis of the evidence, it appears that the victim had suffered homicidal death due to throttling. Her dead body was recovered from the verandah of the matrimonial home. While the appellant raised a defence that on the fateful night the victim housewife had left the house to answer nature's call and was found senseless in a field 2/3 plots away, 8 prosecution case is to the effect that the appellant had assaulted and throttled his wife to death at his residence.
In support of its case, prosecution has strongly relied on the deposition of the minor daughter of the couple viz., Rinki Khatun (P.W.6). Rinki was present in the house on the fateful night. She deposed that she had seen her father assaulting her mother with fists and blows and thereafter he throttled her. Her deposition finds corroboration from the evidence of post mortem Doctor (P.W.12) who stated that the victim died due to throttling.
Mr. Bakshi argued that P.W.6 is a tutored witness. She was staying with her maternal grandfather and her maternal grandmother had accompanied her when she made statement before Magistrate under Section 164 of the Code of Criminal Procedure. In cross-examination, she admitted that she used to sleep in a separate room with the mother of the appellant and had woken up after the Doctor had arrived.
Evidence of a child witness is to be examined with great care and circumspection as a child may be susceptible to pressure and tutoring by the persons who have her care and custody.
Hence, I have taken pains to weigh the evidence of the child witness with utmost caution in order to assess its intrinsic value. It is an admitted situation that the child was present in the house on the night when her mother suffered homicidal death. Although she claimed she ordinarily slept in the room of her grandmother, she denied the suggestion of the defence that on the fateful night she was sleeping with her grandmother. 9 Hence, the possibility of the child witnessing the assault by the appellant upon her mother is unimpeachable and does not suffer from any improbability.
Taking a stray sentence from her cross-examination, it has been strenuously argued that the child was sleeping at the time of the incident and had woken up only after the Doctor had arrived. I am unable to accept such interpretation of the evidence of P.W.6. When the evidence of the child witness is read as a whole, it becomes amply clear that she was fully awake and had witnessed the assault upon her mother in the night. Thereafter, the child may have fallen asleep and had woken up when the Doctor had been called in the morning.
Mr. Bakshi suggested that such conduct of the child is most unnatural. I am unable to accept such submission. It is not expected that the child will react in the same manner as an adult after having witnessed a traumatic experience as the present one. On the other hand it is most probable that the child having witnessed the brutal assault on her mother by her own father may out of fear withdrawn into a denial mode and tried to escape from harsh reality by drifting into sleep. Various individuals react to trauma in different manners more so when one is a child. Plea of tutoring of the minor appears to be wholly unfounded. In the course of her deposition, the minor gave a vivid and truthful disclosure of all incidents which occurred on the fateful night. Not only did she narrate the assault by the appellant on her mother but candidly admitted the assault upon the appellant and the co-accused by the local villagers in the next morning. 10 Had she been tutored she would certainly have denied such allegation which runs against the interest of the prosecution case.
Reading the evidence of the minor witness in the backdrop of other aforesaid circumstances, I am convinced that the said witness is a most natural and truthful one and the conviction may be wholly founded on her deposition. I am further inclined to come to such conclusion as the medical evidence on record shows that the victim died due to throttling and corroborates her version. Defence took the plea that the deceased had left the house to answer nature's call and the appellant had recovered the deceased from a place which was 2/3 plots away. No independent evidence in support of such plea was, however, offered by the defence.
In the event, appellant had found his wife lying senseless in a field, it is most likely that he would have called for assistance of the local villagers to the spot itself and not after he had carried her body to the house. More so, none of the local villagers who came to the spot stated that the appellant had taken such plea before them when they arrived at the spot. No suggestion was also given to them to that effect during cross- examination.
Hence, I am of the opinion that the defence of the appellant in the present case runs hollow and such false and desperate plea in order to escape legal punishment fortifies the prosecution case.
In the light of the aforesaid discussion, I am of the opinion that the prosecution case has been proved beyond reasonable doubt.
Accordingly, the appeal fails and is liable to be dismissed. 11 In view of the dismissal of the appeal, connected application being CRAN 2 of 2021 is also disposed of.
I am informed that the appellant is on parole. His parole is forthwith cancelled and he is directed to surrender forthwith and serve out the remaining part of the sentence.
Period of detention, if any, undergone by the appellants during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.
Copy of the judgment along with LCR be sent down to the trial court at once.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties, as expeditiously as possible on compliance of all necessary formalities.
I agree.
(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)