Md. Sultan vs State Of West Bengal
2021 Latest Caselaw 5843 Cal

Item No. 2



                          IN THE HIGH COURT AT CALCUTTA
                         CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Bivas Pattanayak


                                    C.R.A.63 of 2016
                                           with
                      CRAN 3 of 2020 (old No. CRAN 4728 of 2020)
                                           with
                      CRAN 4 of 2020 (old No. CRAN 4729 of 2020)

                                       Md. Sultan
                                          -Vs-
                                   State of West Bengal


For the Appellant         :     Mr. Arka Chakraborty, Adv.
                                Mr. Debasis Kar, Adv.


For the State             :     Mr. Saibal Bapuli, learned APP
                                Mr. Bibaswan Bhattacharya, Adv.

Heard on                  :     26th November, 2021


Judgment on               :     26th November, 2021


Joymalya Bagchi, J.:-

         We find that the paper books are ready and the appeal is ripe for hearing.

         As a consequence, learned counsel appearing for the appellant does not

want to press the application for suspension of sentence but prays for hearing of

the appeal.
                                         2




       Accordingly, application for suspension of sentence being CRAN 3 of

2020 (Old No. CRAN 4728/2020) is dismissed as not pressed.

       With the consent of the learned Counsels appearing for the parties, the

appeal is taken up for hearing.

       The appeal is directed against the judgment and order dated 07.12.2015

and 08.12.2015 passed by the learned Additional Sessions Judge, Fast Track

2nd Court, Barrackpore, North 24-Parganas in Sessions Trial Case No. 2(12) of

2012 arising out of Sessions Case No. 364 of 2011 convicting the appellant for

commission of offence punishable under Section 302 of the Indian Penal Code

and sentencing him to suffer imprisonment for life and to pay a fine of

Rs.5,000/-, in default to suffer further simple imprisonment for a period of six

months more.


       Prosecution case, as alleged, against the appellant is to the effect that

seventeen years ago the appellant was married to the deceased. The couple had

three daughters and a son. They were residing as tenants at 167, MNK Road

North in the house of one Md. Islam at the time of the incident. In the night of

05.05.2010

the appellant came to the house in a drunken condition and had

quarreled with his wife. In the course of the quarrel he hit his wife with a

'patharer shil' on the head. As a result, his wife died. First information report

was lodged by brother of the deceased (P.W. 1) being Baranagar Police Station

Case No. 178 dated 06.05.2010 under Sections 498A/302 of the Indian Penal

Code. In conclusion of investigation, charge sheet was filed and the case was

committed to the Court of learned Additional Sessions Judge, Barrackpore,

North 24-Parganas and transferred to the Court of the Additional Sessions

Judge, Fast Track 2nd Court, Barrackpore, North 24-Parganas for trial and

disposal. Charges were framed against the appellant under Sections 498A/302

of the Indian Penal Code. The appellant pleaded not guilty and claimed to be

tried. In the course of trial, prosecution examined seven witnesses including

one Sabnam Khatun @ Lalo (P.W. 5), daughter of the appellant/accused. Upon

analysis of the evidence on record, the trial court convicted and sentenced the

appellant, as aforesaid.

Learned Counsel appearing for the appellant argues that the appellant

did not have intention to murder his wife. Evidence has come on record that

the relationship between the couple was good. On the fateful night, appellant

was drunk and in the course of altercation, in a fit of rage, he had dealt a single

blow. As a result, his wife died. Hence, conviction under section 302 Indian

Penal Code to be altered to one under section 304 Indian Penal Code.

Learned Counsel appearing for the State submits that the evidence of the

eye-witness (P.W. 5) as well as the postmortem doctor (P.W. 6) unequivocally

establishes the prosecution case that the appellant had hit on the head of the

victim with a stone and, therefore, the conviction under Section 302 of the

Indian Penal Code ought to remain undisturbed.

I have considered the materials on record.

PW5, Sabnam Khatun @ Lalo is the star witness. She is the daughter of

the couple and was present in the room when the incident occurred. She

deposed on the night of 5th May, 2010, she had fallen asleep when his father

came home in a drunken condition and a quarrel ensued between the couple.

Her mother asked them to go to bed and they fell asleep. Again around 2:30 A.M.

she heard a hue and cry and found that her father had killed her mother by

hitting her on the head with the help of 'patherer sil' and had left the spot. On

hearing hue and cry the landlord and others came to the spot.

In cross-examination, she stated that her parents were quarrelling and her

father had stated that he would kill her mother. She did not remember what

reply her mother had given.

PW1, Md. Murad, brother of the deceased is a reported witness and had

lodged the FIR. He proved the FIR (Exhibit-1).

PW3, Hasna Banu is the wife of the landlord of the premises where the

couple resided. PW2, Samsuddin Mollah and PW4, Amina Bibi are the co-

tenants in the house. They are post-occurrence witnesses and deposed on

hearing hue and cry they came to the spot and found Jahida lying dead on the

floor and blood was coming out of her head. However, PW2 stated that there was

good relationship between the couple. PW3 corroborated her and stated that

there was no quarrel between Jahida and Sultan.

PW6, Dr. Parag Baran Paul is the post-mortem doctor. He proved the post-

mortem report (Exhibit-2). He opined that death was due to head injuries, ante

morten and homicidal in nature.

PW7, SI Joydeb Mondal is the Investigating Officer of the case.

Analysis of the evidence of PW5 would show in the night of 5 th May, 2010

her father had come home drunk and a quarrel ensued between the parents. Her

mother put her to bed and she slept. At about 2:30 A.M. she again heard a hue

and cry and found that her father had killed her mother with the help of one

'patherer sil' and left the spot. She also stated that her father had exhorted to kill

her mother in the course of quarrel.

Learned trial Judge on an examination her evidence had doubted whether

the said witness had seen the assault or not. However, in view of the prosecution

evidence, the court enumerated the following incriminating circumstances:-

"(i) the accused, deceased along with their three daughters were residing together in a rented house;

(ii) in the night of the incident accused was present in the house and he slept with the deceased in the verandah and the children were inside the room. Immediate before the incident, there was a quarrel between the accused and the deceased;

(iii) in the early morning of the next day the deceased was found dead lying in the verandah in the pool with head injury besides a nora.

(iv) in the next morning accused was found absent;

(v) the whereabouts of the accused were not known after the incident and he could be arrested from Bihar only on 30.09.2011 after a lapse of more than one year from the date of incident;

(vi) the accused has failed to give any explanation regarding his abscondment for about a year immediate after the incident in his examination under Section 313 CrPC."

Relying on these circumstances, the court recorded a finding of guilt

against the appellant.

From the aforesaid factual backdrop, I am of the opinion it is unclear

whether the minor had woken up prior to the assault made by her father on her

mother. It appears upon hearing the hue and cry, she had woken up

immediately after the incident. However, it is evident from her evidence that

there was a quarrel between the couple in the night immediately prior to the

incident. After the incident, the appellant went missing.

In view of the aforesaid facts which remain unrebutted, there is no escape

from the conclusion that the appellant was responsible for the death of his wife.

It has been argued before this court that the incident occurred in the

course of a quarrel and in a fit of passion. Hence, the conviction of the appellant

may be altered from Section 302 IPC to Section 304 IPC.

On the other hand, learned Additional Public Prosecutor submits that the

assault was on a vital part of the body and the appellant had exhorted to kill the

deceased.

I have given my anxious consideration to the rival submissions, PWs2 and

3 deposed that there was good relationship between the couple. In fact, charge

under Section 498A IPC had failed. Hence, I note that there is no intention or

motive on the part of the appellant to commit the murder.

On the other hand, evidence of PW5 show that there was a quarrel

between her parents on the fateful night and the incident occurred in the course

of a quarrel. No doubt, she also deposed her father had threatened to kill her

mother. However, I do not find corroboration of this circumstance from other

witnesses. It appears PW5 had come out with this version for the first time in

court and had not narrated such fact either to the post-occurrence witnesses

namely, PWs2 & 4 or PW1 who lodged the FIR soon after the incident. Hence,

the case of alleged exhortation appears to be an afterthought and I am not

inclined to rely on the same to come to a conclusion that the appellant had

intended to murder his wife.

On the other hand, it is more probable that the appellant had acted in a fit

of passion in the course of quarrel and dealt a single blow on his wife. Thereafter

being perplexed by his action, he ran away.

In this backdrop, I am of the opinion that it may be prudent to convert the

conviction of the appellant from one under Section 302 IPC to one under Section

304 Part I of the Indian Penal Code.

In view of the aforesaid alteration in conviction, sentence imposed on the

appellant is correspondingly modified.

Accordingly, appellant is directed to suffer rigorous imprisonment for ten

years and to pay a fine of Rs.5,000/- (Five thousand only), in default, to suffer

simple imprisonment for six months more.

The appeal is allowed to the aforesaid extent.

In view of disposal of the appeal, the connected applications, if any, also

stand disposed of.

Period of detention, if any, undergone by the appellant 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.

Lower court records along with a copy of this judgment be sent down at

once to the learned trial court for necessary action.

Photostat certified copy of this order, if applied for, be given to the parties

on priority basis on compliance of all formalities.

I agree.

(Bivas Pattanayak, J.)                                      (Joymalya Bagchi, J.)




sdas/akd/ PA