Saifuddin Mondal vs State Of West Bengal
2022 Latest Caselaw 246 Cal

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

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

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

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)

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

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.

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,

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.

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.

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.

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.)