Calcutta High Court (Appellete Side)
Ferdose Alam @ Ferdosh @ Lion vs The State Of West Bengal on 19 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 633 of 2012
(CRAN 3147 of 2014)
Ferdose Alam @ Ferdosh @ Lion
-vs-
The State of West Bengal
For the appellant: Mr. Sabir Ahmed
For the State: Mr. Arun Kumar Maiti
Heard on: 19.01.2018
Judgement on: 19.01.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 01/8/2012 passed by the learned Sessions Judge, Malda in Sessions Trial No. 04 of 2011 arising out of Sessions Case no. 306 of 2011 convicting the appellant for commission of offences punishable under Sections 498A and 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for two months more for the offence punishable under Section 498A of the Indian Penal Code and to suffer rigorous imprisonment for the life and to pay a fine of Rs.5,000/- in default, simple imprisonment for six months more for the offence under Section 302 of the Indian Penal Code, both the sentences to run concurrently.
The prosecution case, as alleged against the appellant is to the effect that in 2008 the victim Saina was married to the appellant according to Muslim law. Soon after the marriage, she was subjected to mental and physical torture over demands of monies. She was physically assaulted and finally on 22/4/2011 the appellant divorced her by pronouncing Talak. As a result she took refuge in the residence of one Noor Mohammad as a salish was proposed to be held over the aforesaid issue on 22/4/2011. In the evening of 22/4/2011 the appellant suddenly came to the residence of Noor Mohammad and assaulted the victim mercilessly with a knife. As a result, she suffered injuries on her person and was shifted to Chanchal Hospital and thereafter to Malda Hospital where she died after four days. In the meantime, complaint was lodged at Chanchal Police Station being Chanchal Police Station case no. 124 of 2011 dated 24/4/2011 under Section 498A/326 of the Indian Penal Code. After the death of the victim, Section 302 of the Indian Penal Code was added. Charge sheet was filed under Section 498A/302 of the Indian Penal Code. Case was committed to the Court of Sessions, Malda. The said Court framed charges under Section 498A/302 of the Indian Penal Code against the appellant. The appellant pleaded not guilty and claimed to be tried.
In the course of trial, the prosecution examined 17 witnesses and exhibited a number of times. Defence of the appellant was one of innocence and false implication.
In conclusion of trial, the trial judge the convicted and sentenced the appellants as aforesaid.
Mr. Sabir Ahmed, learned counsel appearing on behalf of the appellant argued that the evidence of P.W. 4 and 6 are most improbable and ought to have been discarded by the trial court. The said witnesses reside in different villages and it was most unlikely that they were present at the place of occurrence at the time of the incident. There are various contradictions and/or embellishments in their versions. P.W. 6 claimed that they were outside the house of Noor Mohammad at the time of the incident. If that were so, it was not possible for them to have seen the incident which occurred on the varandah of his house. P. W. 4 claimed that she was examined by police at Chanchal Hospital after the incident, which however, is not supported by the Investigating Officer, P.W. 17. Place of occurrence has not also been fixed in the instant case. Noor Mohammad, owner of the house, has not been examined. Witnesses to the inquest have also not been examined and the doctor treating the victim at Chanchal Hospital also has not been examined. Failure to examine the aforesaid witnesses affected the credibility of the prosecution case and appellant is liable to be acquitted.
Mr. Maity, learned Additional Public Prosecutor argued that the evidence of prosecution witnesses proved beyond doubt that the victim was subjected to torture at her matrimonial home within three years of her marriage. Appellant pronounced Talak and on that day itself the victim took refuge in the house of Noor Mohammad. Hearing such unfortunate incident in the life of their sister, P.Ws. 4 and 6 rushed to the house of Noor Mohammad and saw the incident. Their presence at the place of occurrence cannot, therefore, be said to be unnatural. Evidence of the eye-witnesses, P.W. 4 and 6 are consistent to one another and is supported by medical evidence. Therefore, the appeal is liable to be dismissed.
P.W. 1 is the father of the victim and de facto complainant in the instant case. He deposed that the victim was married to the appellant. She was subjected to torture on demands of money. Finally the appellant gave Talak to her daughter. He was informed over telephone by one Farid about the disturbance between the appellant and his daughter. When he reached the matrimonial home, he found Mama Sasur of his son-in-law and one Sultan and his wife were sitting there. They told a Salish has been fixed to resolve the problem and advised him to come day after tomorrow. It was decided that his daughter would stay in the house of Noor Mohammad till the date of Salish as per Mohammedan convention. He came back to his residence. Subsequently, he heard from villagers that the appellant entered the house of Noor Mohammad and struck his daughter with a knife indiscriminately on her belly and other parts of the body. The appellant also caused injury on himself which was trivial in nature. Thereafter he ran away from the house of Noor Mohammad. As he was fleeing away from the house of Noor Mohammad he was caught by the villagers. P.W. 4 and 6 were present at the time when the appellant stabbed his wife. Maternal aunt-in-law of the appellant Hanufa Bibi and another were also present at the place of occurrence. He did not come to the place of occurrence. On receiving information he went to Chanchal Hospital. By the time he reached there, his daughter had been referred to Malda Sadar Hospital. On the next day he came to Malda Sadar Hospital when his daughter was alive. His daughter could not speak, as her condition was precarious. After four days the victim was succumbed to her injuries. Autopsy was done. He lodged the written complainant. Complaint was written by a police officer as per his instructions. He was interrogated by the police. In cross-examination, he stated that the text of the complaint was true to the best of his knowledge. In the First Information Report he did not mention who were present at the time of the incident. Momin and Asraful had taken the victim from Panpara to Chanchal Hospital. He could not name the person who took the victim from Chanchal Hospital to Malda Sadar Hospital.
P.W.2, Nazrul Islam deposed that he resided at village Nisithpur. He heard that the victim was married to the appellant. She was murdered in the evening at 7 p.m. on the road beside the house of Noor Mohammad. After half an hour he arrived at the place of occurrence. He could not find the victim. People who had assembled there could not state the name of the assailant. The appellant was found in an injured condition. He was surrounded by the local people.
He went to the police station and was interrogated by the police. Although he admitted his signature on the seizure list relating to seizure of the knife, he has denied that the knife was seized as per the leading statement of the appellant.
P.W.3, Md. Mustaque is a co-villager of P.W.1. He has corroborated the evidence of P.W.1.
P.W.4, Rejiza Bibi is the sister of the victim. She deposed that the appellant was married to the victim. During her stay at the matrimonial home she was tortured by the appellant. The appellant stabbed her sister indiscriminately on the back resulting in he death. He had given talak to her sister on Friday and the appellant had inflicted injuries on Saturday. The date of salish had been fixed on Sunday. The incident happened in the house of a relative of the appellant. Her sister was kept there for the purpose of salish. At the time stabbing she was outside the veranda with her other sister. The victim was on the veranda and she was talking with the aunt of the appellant. At that time the appellant appeared on the veranda and stabbed her sister. On hearing groaning sound, she and her other sister rushed to the veranda and found that the appellant struck her sister with a knife on her back and then the appellant fled away from the veranda. She saw a knife in the hand of the appellant. Hanufa Bewa, the aunt of the appellant shouted "Mero na, Mero na" and then she fainted. When they were going to the veranda, the appellant struck two blows on the back of the victim with a knife. The victim was removed to Chanchal Hospital. She accompanied the victim to Chanchal Hospital. Therefrom the victim was referred to Malda Sadar Hospital. She did not accompany to the victim to Malda Sadar Hospital. Victim died after four days. She identified the knife (Mat- I) which he noticed in the hand of the appellant. She was interrogated by the police at Chanchal Hospital.
In cross-examination, she stated that her village is Jadupur. Her sister's house is at a distance of one mile. The house of the appellant is at a distance of 4/5 miles from her village. After arrival at the scene of crime, she found the aunt of the appellant was present. No outsider was present at the time of stabbing excepting themselves and the aunt of the appellant.
P.W.5, Honufa Bewa, the aunt of the appellant, did not support the prosecution case and she was declared hostile. She, however, admitted that the victim who is the wife of the appellant had died. She heard that the victim was stabbed by somebody else. When she reached the place of occurrence she saw that the victim was being removed to the hospital. She was cross- examined with regard to the contradictions with her previous statement of the police.
P.W.6, Rahena Bibi is the other sister of the victim and an eyewitness to the incident. She deposed that on 22.2.20111 appellant stabbed the victim with a dagger. She along with her sister Rejina Bibi were standing on the road adjacent to the house of Nur Mahammad. They heard a groaning voice of her sister. At once they rushed to the place of occurrence and found the appellant was piercing a knife into the body of her younger sister. At that time Hanufa Bewa was shouting to the appellant not to inflict injury on the victim. They raised hue and cry. The appellant inflicted injury on the back side of her sister. They did not notice wherefrom the appellant fled away because they were concentrating on their injured sister. The villagers assembled there and the victim was removed to Chanchal hospital in a taxi. They also accompanied to the victim to Chanchal hospital. Yasin Ali and other villagers also accompanied the victim to Chanchal hospital. The doctor refused to treat the injured and referred her to Malda Sadar Hospital. They did not accompany the victim to Malda Sadar hospital. After four days the victim died. She identified the wearing apparels of the victim. She identified the knife (Mat Ext. I) which was in the hand of the appellant. For one year the relationship between the couple was good but subsequently had deteriorated as the appellant demanded money. Her sister narrated her plight to her.
In cross-examination, she stated her in-laws' house was about two kilometers from the place of occurrence. Eight injures were caused on the victim. They were standing on the road at a distance of 8/10 cubits form the entrance gate of the house of Nur Mahammad.
P.W.7, Pabdi Bibi is the mother of the victim. She deposed about the torture on the victim on the demand of dowry. She stated that she got information in the evening that her daughter was stabbed and removed to hospital. She stated that her daughter had been kept in the house of Nur Mahammad for salish over the matrimonial dispute. She got information in the evening that her daughter was removed to Chanchal Hospital. She along with her husband went to Chanchal Hospital. Her daughter had been shifting to Malda Sadar Hospital in the meantime. Her daughter could not speak as she was unconscious. After four days she died.
P.W.9, Yeasin Ali deposed that he signed on the inquest report. P.W.10, Samir Ghosh was a police officer attached to English Bazar P.S. He signed on the magisterial inquest. The dead body was made over to him on 27.4.2011 for post mortem.
P.W.11 & P.W.12 were home guards, who were attached to English Bazar P.S. They had witnessed the seizure of wearing apparels of the victim and had signed on the seizure list.
P.W.13, Sankar Sarkar was a police officer attached to Chanchal P.S.. He stated that the appellant was arrested from the hospital.
P.W.14, Nirmal Chand Sarkar is the Autopsy Surgeon. He found the following injuries on the victim:
"1. I.V. needle mark at right elbow.
2. Bruises at the back of chest and abdomen scattered in few places.
3. Sharp cut stab injury ½" x ¼" x muscle deep at the back of left side of chest at the upper part, 11" down from the vault of scalp and 7" to the left of midline in the back of chest placed transversely. On tracing the track it is seen to have pierced, skin, fascia, muscle, vessels up to left scapula. One stitch was found to repair the wound.
4. Sharp cut stab injury ½" x ½" x muscle deep at the upper and left side of back of chest, placed obliquely and 13" down form the vault of scalp. 4" to the left of midline in the back of chest. Two stitches found on it. On tracing the track it is seen to have pierced skin, fascia, muscle, vessels up to ribs.
5. Sharp cut stab injury 2" x ½" x bone deep at the back of lower part of chest placed translucently about 18"
down from the vault of scalp on the midline and slightly to the right of midline in the back of chest.
On tracing the track it is seen to have pierced skin, fascia, muscle, vessels between 8 and 9 thoraxic vertebrae. Four stitches were found on it.
6. Sharp cut stab injury 1½" x ½" x abdominal cavity deep at the back of pelvis placed obliquely 26" down from the vault of scalp on the midline in the back of pelvis. Two stitches were found on it. On tracing the track it is seen to have pierced skin, fascia, muscle, vessels, scalp cut fracture on 5th vertebrae and then into abdominal cavity where sharp cut injuries on large intestine and small intestine found.
7. Sharp cut stab injury ¼" x ½" x abdominal cavity deep found at the back of pelvis at the midline placed obliquely above 26½" down from the vault of scalp.
Three stitches were found on it. On tracing the track it is seen to have pierced skin, fascia, muscle, vessels, scalp cut fracture on 5" No vertebra and then into abdominal cavity where sharp cut injuries on large intestine and small intestine found.
He stated that the cause of death was shock, hemorrhage and peritonitis due to the effect of ante mortem injuries as stated and homicidal in nature. The injury nos. 3 to 7 was caused by sharp object and injury no.2 by hard and blunt object. Injuries were sufficient to cause death.
P.W. 16, Dipak Kumar Sinha was a social worker and a resident of village Galimpur. His house is at a distance 200 meters from the house of P.W.1. He deposed that he wrote a written complaint as dictated by P.W.1. He proved the written complaint (Ext.8).
P.W.17, Dilip Kumar Sen is the investigating officer of the instant case. He received written complaint on 24.11.2011. He reached the place of occurrence at 6.55 A.M. The injured had been removed to hospital prior to his arrival at the place of occurrence. He prepared sketch map with index of the place of occurrence. He recorded the statement of witnesses. He did not seize anything on the date of occurrence. He went to Chanchal hospital, victim had been transferred to Malda Sadar Hospital in the meantime. He reached to Malda Sadar Hospital. As the victim was unconscious no statement could be recorded. He received message from English Bazar P.S. that the victim had died at Malda Sadar Hospital. He arrested the accused from Malda Sadar Hospital on 5.5.2011 as he was injured was undergoing treatment at the said hospital. The knife was recovered by him at the instance of the appellant. He prepared the seizure list. He identified the dagger which was recovered by him pursuant to the leading to the statement of the accused. He got the wearing apparels of the victim which had been seized by the police officer in connection with U.D. Case No.239/11 started at English Bazar P.S. He identified the wearing apparels.
From the aforesaid evidence it appears that the victim was married to the appellant in 2008. One year after marriage, disturbances cropped up in the matrimonial life of the couple. P.W.1 & P.W.7 being the parents of the victim deposed that the appellant demanded money and as such demand was not met, the victim was subjected to physical torture. On the date of incident i.e. 22.4.2011 the appellant had given talak to the victim. This fact was informed to P.W.1, her father and the latter rushed to her matrimonial home. Arrangements were made to keep the victim in the house of a relation of the appellant, Nur Mahammad till the salish was held on 24.1.2011. Unfortunately in the evening of 22.04.2011 appellant came to the residence of Nur Mahammad and struck the victim repeatedly with a knife resulting in fatal injuries. It has also come on record that the appellant inflicted injuries on himself and was apprehended from the spot by the villagers. Victim was admitted to Chanchol hospital and thereafter shifted to Malda Sadar Hospital where she breathed her last four days after the incident. In the meantime P.W.1 lodged first information report against the appellant. It has been strenuously argued that the manner and course of the alleged incident had not been proved beyond doubt. P.W.5, Hanufa Bewa, a hostile witness, admitted that the victim had been inflicted injuries by someone. She stated that she came to the place of occurrence when the victim was being shifted to hospital. The most vital witnesses for the prosecution are P.W.4 & 6 who are the sisters of the victim and had come to meet their sister after hearing that the appellant had pronounced talak. When they were standing in front of the house of Nur Mahhammad, they heard a groaning sound and rushing inside the house, they found the appellant striking their sister mercilessly with a knife on the back.
Mr. Ahmed has argued that it is unlikely that the witnesses were present at the place of occurrence. They differ with one after another with regard to the narrate of the incident. P.W.6 deposed that at the time of incident she along with her sister were standing on the road adjacent of the house of Nur Mahammad while P.W.4 claimed that they were outside the veranda of the house of Nur Mahammad. It has also been argued that the place of occurrence was not visible from the road where P.W. 6 claimed they were standing at the time of the incident.
I have given anxious consideration to the issues raised on behalf of the appellant. It is true that the P.W.4 & 6 reside in different villages than that of the couple. However, the unfortunate incident of talak being pronounced on that date gives logical sustenance to their conduct of jointly coming to the village of their sister in order to meet her at the time of marital crises in her life.
I also note that the evidence of P.W.4 & 6 are substantially consistent to one after another. Both P.W.4 & 6 claimed that they were standing in front of the house. They heard a groaning sound from the veranda and on hearing the sound they rushed to the spot. They saw the appellant assaulting the victim with a knife from the back. It is apposite to note that the appellant had struck multiple blows upon the victim. Hence, it is most likely that upon hearing the groaning sound of the victim, the witnesses had rushed to the spot and saw the appellant assaulting the victim with a knife. The occular evidence of the witnesses are corroborated by the autopsy surgeon who noted several grievous injuries caused by a knife on the back of the victim which were sufficient in the ordinary course of nature to case.
In view of the aforesaid discussion, I have no doubt in my mind that P.W. 4 & 6 had witnessed the assault on their sister by the appellant. My conclusion is fortified by the fact that the appellant was apprehended at the spot by the villagers inflicted injuries after he had on himself and was arrested from the hospital by the police. This circumstance probabilises the presence of the appellant at the place of occurrence and supports the version of the aforesaid eyewitnesses that on the fateful day the appellant had gone the house of Nur Mahamad and had mercilessly assaulted the victim with a knife resulting in her death. Thereafter, in a fit of rage the appellant inflicted injuries on himself and was apprehended at the spot by the villagers. No evidence has come on record that the appellant had caused such brutal injuries on the victim due to any sudden or grave provocation or in the course of a free fight or sudden quarrel so as to bring his act within the exception of Section 300 of the Indian Penal Code.
In the face of the cogent and consistent evidence of the eyewitnesses which is corroborated by the medical evidence, I am of the opinion that the failure of the investigating agency to examine the other witnesses at the place of occurrence does not create a lacuna in the prosecution case. It has also come on record that when the victim was brought to Chanchol Hospital the medical officer seeing her grave condition had refused to treat the victim and referred her to Malda Sadar Hospital. Hence, non-examination of the said medical officer, in my considered view, does not affect the unfolding of the prosecution case.
In the light of the aforesaid discussion, I uphold the conviction and sentence imposed on the appellant.
Period of detention suffered by the appellants during investigation, enquiry and/or trial shall be set off against substantive sentence under Section 428 of the Code of Criminal Procedure.
The appeal along with CRAN No.3147 of 2014 are, accordingly, dismissed.
Copy of this judgment along with the lower court records be sent down to the trial court at once.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties expeditiously.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) ardr/rkd