Calcutta High Court (Appellete Side)
Md. Sarfulla vs The State Of West Bengal on 3 September, 2018
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
With
The Hon'ble Mr. Justice Jay Sengupta.
CRA No. 110 of 2003
Md. Sarfulla
Vs.
The State of West Bengal.
For the appellant : Mr. Debabrata Acharya
Ms. Shreya Trivedi
For the State : Mr. Ranabir Roy Chowdhury
Mr. Narayan Prasad Agarwal
Heard on : 04.06.2018
Judgment on : 03.09.2018
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment and order of conviction and sentence dated March 24, 2003 passed by the Additional Sessions Judge, Additional Court, Hooghly in Session Trial No. 97 of 2000. By virtue of the impugned judgment, the appellant was convicted for commission of the offence punishable under section 498A/306 of the Indian Penal Code (hereinafter referred to as the IPC) and was sentenced to suffer rigorous imprisonment for 08 years and to pay fine of Rs. 5000/- in default to suffer 02 years simple imprisonment for committing the offence under Section 306 IPC and for 3 years and to pay fine of Rs. 2000/- in default simple imprisonment for two years for committing the offence under Section 498 A of the IPC while acquitting the remaining accused persons from the charges under section 498A/306 I.P.C. Accused Rajidan Khatoon died during trial.
The case of the prosecution, in brief, is as follows :
P.W.1's sister Nazibunnessa, since deceased, got married with the appellant about 19 years ago and she started living in the village at the appellant's house. Thereafter, appellant developed an illicit relation with a maid- servant named Rajidan Khatun. P.W.1, on coming to know about such illicit relation informed his sister. Nazibunnessa then came from the native village and started living with the appellant at Telenipara P.S. Bhadreswar, Hoogly. On witnessing the illicit relation between her husband (appellant) and Rajidan Khatun she raised objection for which she was severely assaulted by the appellant. The appellant even did not provide food properly to his wife Nazibunnessa and the children. Such conduct of the appellant was reported to the appellant's father, brother and others but to no any effect. Appellant's torture and assault upon the deceased wife continued.
On January 11, 1994 at about 8.30 p.m appellant severely assaulted deceased wife Nazibunnessa and left home for his duty. At around 12.30. in the night, P.W.1 heard heart rendering crying voice of his sister coming out from her room. He then woke up and found door of the room of his sister was closed from inside and smoke was coming out from there. He called local people and after pushing the door they found his sister in flame writhing in pain. They then poured water to put off the flame but she succumbed to the burn injuries.
On getting information P.W.7 arrived at the place of occurrence and recorded the statement of PW1 and forwarded the same through police driver Abdul Kuddus to the P.S. for starting a case.
On receipt of the same, the duty officer, ASI, Subrata Sengupta started Bhadreswar P.S. case No. 7/94 dated January 12,1994 under section 498A/306 IPC against the appellant,his father Dil Mohammad, Mohammad Islam, Hasmulla, Kasmuddin, Rojina Khatoon, Julekha Khatoon and Rojaddin.
P.W.7 himself took up investigation of the case. On the same day he made inquest over the dead body of the victim in presence of PW1, PW2, PW3, PW4 and PW5 and prepared inquest report (Ext.3/4), prepared rough sketch map with index of the P.O.(Ext.5), seized burnt articles by seizure list (Ext.2/4), sent the dead body of the victim for postmortem examination,collected P.M. report and thereafter on completion of investigation submitted charge-sheet against all the FIR named accused persons.
On February 15, 2000 charges under Sections 498A/306 IPC were framed against the appellant and seven other charge-sheeted accused persons namely Dil Mohammad, Md. Islam, Kashmuddin, Hasmullah, Rajidan Khatoon, Julekha and Rajadin and on their pleading not guilty trial commenced.
In order to prove it's case prosecution examined 7 witnesses and also produced and proved certain documents like FIR, rough sketch map with index, inquest report, seizure list etc. and thereafter on completion of trial and after examination of the appellant and other accused persons the learned trial judge passed the impugned judgment.
It was submitted by Mr. Debabrata Acharya, learned Advocate appearing for the appellant that the prosecution has failed to prove the charges against the appellant beyond all reasonable doubts. According to Mr. Acharya, the evidence of PW 1 is not believable as there was no evidence to prove the allegation of assault and deprivation of food to the victim and her children nor any external injury was found on the person of the deceased. Even no GDE or FIR was produced with regard to the allegation of cruelty as claimed by PW1. He also submitted that marriage between the victim and appellant took place 19 years ago and as such the learned trial judge was not justified in holding the appellant guilty of the offence under Section 306 of the IPC by invoking the provisions of Section 113 of the Indian Evidence Act .
Mr. Acharya relied upon the decisions of Amalendu Pal @ Jhantu v. State of West Bengal reported in (2010) 1 SCC Cri. 896 and Mahendra Singh & Anr. V. State of MP reported in (1995) SCC 1157 in support of his submissions.
Mr. Ranabir Roychowdhury, learned Advocate appearing for the State submitted that the evidence of PW 1 with regard to torture and assault upon the victim for opposing the illicit relation of the appellant went on unchallenged as no cross-examination was made by the defence on that score and there was also nothing on record to disbelieve the story of PW1 with regard to torture and assault and deprivation of food to the victim. According to Mr. Roy Chowdhury the prosecution was able to prove the charge against the appellant beyond doubt.
We have considered the submissions of the learned counsels appearing for the respective parties and gone through the evidence and materials on record to consider the propriety of the impugned judgment and order passed by the learned Court below.
Learned Court below after over all assessment of the evidence on record particularly that of PW1, the de-facto complainant, PW2, another brother of the victim and the Investigating Officer arrived at the conclusion that the prosecution was able to prove the charges under Sections 498A/306 IPC against the appellant but failed to prove the charges against the rest and accordingly passed the impugned judgment.
Section 498A IPC provides for punishment to the husband or the relative of the husband of a woman who subjects such woman to cruelty. The term "cruelty" has been defined as any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman.
It is evident from the evidence on record that sister of P.W.1 namely deceased Nazibunessa was married with the appellant about 19 years ago and of that wedlock one son and one daughter were born to them. It was also evident that after marriage deceased Nazibunessa lived initially in the village at the house of the appellant but subsequently she came to reside with the appellant at his house at Talenepara. It is also not in dispute that Nazibunessa died due to burn injuries at the house of the appellant at Talenepara.
With regard to the allegation of cruelty upon the victim it is a specific allegation of the prosecution that for raising objection towards the illicit relation of the appellant with a woman named Rajidan Khatun, who was staying and working in their house as maidservant she was tortured and assaulted and was not provided food properly.
PW 1 is the brother of the deceased and the complainant of this case. He has specifically stated on oath that his sister Najibunnessa (deceased) got married with the appellant about 19 years ago and was residing with him (appellant) in his house. Out of their wedlock one son aged about 12 years and one daughter aged about 10 years were born and initially his sister namely the victim stayed at the village with the children. He further deposed that one Rajidan Khatun used to prepare meal for the appellant and illicit relation grew between the appellant and Rajidan Khatun, he then asked the appellant to rectify but he did not hear him, thereafter when his sister raised objection then the appellant assaulted her and did not provide any food to her and to her children. Even para people tried to make him normal and asked him not to ill-treat his wife (victim) and to keep off from the illicit relation but he did not pay any heed and his illegal activities continued. The matter was then informed to the father and brother of the appellant but that too failed to yield any fruitful result and that on January 11, 1994 at about 08.30 p.m. also the appellant severely assaulted his sister (victim) and went away for duty. Thereafter at 12/12.30 in the night he heard crying sound "ah..ah..ah" from inside the room of his sister and after opening the door they found her burning inside the room. They also got smell of kerosene oil and ultimately his sister succumbed to the injuries. He was cross- examined by the defence but his evidence with regard to the cruelty upon the victim by the appellant went on unchallenged as no question over the torture and assault upon the victim by the appellant for opposing his illicit relation was put to him by the defence. Nothing was brought out during his cross-examination which could render his evidence disbelieveable in so far as cruelty is concerned.
The above statement of PW1 also found corroboration from PW2, another brother of the victim. He too has deposed that after marriage his sister lived with the appellant. Thereafter, appellant developed illicit relation with a maidservant named Rajidan and when his sister objected she was tortured and assaulted by the appellant and her such ill-treatment continued. He was also cross-examined by the defence but failed to impeach his credibility.
PW3, PW4 and PW5 though admitted the death of the victim but did not say anything with regard to the cruelty made out to the victim at the hand of her husband. PW5 and PW6 are the official witnesses.
Admittedly the victim died due to burning at her matrimonial home. It is true that PW1 and PW 2 are the brothers of the victim but their specific allegation against the appellant subjecting their sister to cruelty for opposing his illicit relation with the maidservant went on unchallenged. So only because they are the brothers of the victim and no GDE or FIR was lodged to this effect their specific avernment on oath cannot be brushed aside and disbelieved.
The evidence on record unerringly point towards the guilt of the appellant in subjecting his wife to cruelty for opposing his illicit relation with the maidservant. Learned Court below taking into account the entire circumstances and the evidence on record arrived at the conclusion that the evidence on record clearly point towards the guilt of the appellant in the commission of the offence under Section 498A IPC. We do not find any irregularity and/or illegality with regard to the above finding of the learned Court below and as such, our interference with the impugned judgment is not required on that score.
Now with regard to the question of abetment of suicide, we find from the evidence on record that victim died due to burn injuries and at that point of time the appellant was not present and she was alone in the house. Admittedly, marriage between the appellant and the victim took place 19 years ago and of their wedlock two children were born to them. According to PW 1, on the relevant night at about 8.30 p.m. his sister was severely assaulted by the appellant and thereafter went away for duty and at about 12/12.30 p.m. on hearing crying sound of his sister when he along with others went to her room they found her burning inside the room and accordingly they poured water on her person to put out the flame and gradually all her sound and movements stopped. They also got smell of kerosene oil. But PW2 has deposed that on relevant date sister had altercation with her husband and at around 12/12.30 in the night she died. There is no whisper how they came to learn that on the relevant night there was a quarrel between the victim and the appellant and/or that the victim was severely assaulted by the appellant.
Section 306 IPC provides punishment to the person who abets the commission of suicide. Abetment has been defined in Section 107 of the IPC which is as follows:
"107. Abetment of a thing.- A person abets the doing of a thing, who-
First.- instigates any person to do that thing ; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. A person who,by wilful misrepresentation, or by any wilful concealment of any material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure,a thing to be done, is said to instigate the doing of that thing.
Explanation 2. Whoever,either prior to or at the time of commission of an act,does anything in order to facilitate the commission of that act,thereby facilitate the commission thereof, is said to aid the doing of that act."
There is no direct evidence to show that the appellant had by his act instigated or provoked the deceased to commit suicide. The only allegation is that on the relevant night at about 8.30 P.M. there was quarrel between the appellant and the victim and thereafter appellant went out for his work and at about 12.30 in the night victim was found in flames. There was no evidence on record about what was the issue of quarrel between the husband and wife on the relevant night and how victim got burnt. True that victim did not like her husband having extramarital affair with the maid servant and as such when she raised objection she was subjected to cruelty. But the evidence on record shows that the maidservant was staying in their house for about 2 years and the reported illicit relation with maidservant grew long before date of death of the victim. So from the above it can be inferred that it was not the immoral act of the appellant which instigated or provoked the deceased to commit suicide. After carefully assessing the evidence on record, we do not find any direct evidence to show that the appellant had instigated or provoked the victim to commit suicide. Accordingly, the commission of the offence under Section 306 IPC merely on the allegation of assault of the victim is not sustainable. The appellant deserves to be acquitted of the said charge. The learned court below did not take into consideration the above fact of this case to apply the settled principle of law.
Accordingly, the present appeal is partly allowed. We hereby set aside the conviction of the appellant under Section 306 IPC but uphold the conviction of the appellant under Section 498A IPC. The appellant is in jail. He be released forthwith unless his detention is required in any other case.
Copy of this judgement along with the lower court records be sent down to the trial court immediately by special messenger for information and taking necessary action.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties expeditiously upon compliance with the necessary formalities in this regard.
(Md. Mumtaz Khan, J.) I agree (Jay Sengupta, J.)