Sk. Insanuddin @ Sk. Insan & Ors vs The State Of West Bengal
2023 Latest Caselaw 4927 Cal

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

Before: Hon'ble Justice Sugato Majumdar

CRA 431 of 2015 With IA NO: CRAN/2/2016(Old No: CRAN/512/2016)

Sk. Insanuddin @ Sk. Insan & Ors.

Vs.

                           The State of West Bengal


For the Appellants              :      Mr. Tapas Kumar Ghosh

                                       Mr. Tanmoy Chowdhury



For the State                   :      Mr. Binay Panda

                                       Ms. Subham Bhakat


Hearing concluded on            :      25.07.2023


Judgment on                     :      10.08.2023


Sugato Majumdar, J.:-

The instant criminal appeal is preferred against the impugned judgment of

conviction dated 29.06.2015 and the order of sentence dated 30/06/2015 passed by

the Learned Additional Sessions Judge, Uluberia, Howrah in Sessions Trial No.

299/2012 under Sections 498A/304B/34 of the Indian Penal Code whereby the

Appellant No. 1 & 2 were sentenced to suffer rigorous imprisonment for seven years

for commission of offence punishable under Section 304B/34 of the Indian Penal Page |2

Code, 1860 and the Appellant No. 3 & 4 were sentenced to simple imprisonment for

the same term under the same sections. The Appellant No. 1 & 2 were also

sentenced to suffer rigorous imprisonment for a term of two years and to pay fine of

Rs. 1000/- each in default to suffer rigorous imprisonment of one month more for

commission of offence under Section 498A/34 of the Indian Penal Code 1860. The

Appellant No. 3 & 4 were sentenced with simple imprisonment for a term of two

years each and to pay fine of Rs. 1000/- each, in default, a further imprisonment of

one month. All the sentences were to run concurrently.

Genesis of the prosecution is the written complaint dated 10/16/2012 written

by one Mirajul Ali Khan which was lodged in Shyampur Police Station. It was alleged

in the written complaint that sister of the de-facto complainant Fulsara Begum, the

deceased herein, was married to the Appellant No. 1 Sk. Insanuddin on 28/03/2012

according to Muslim customs. On demand of the Appellants, the father of the

deceased gave cash amount of Rs. 25,000/- and two bhories gold ornaments in

dowry. After marriage the deceased began to live in her matrimonial home with the

Appellants. Since after marriage the husband, the parents-in-laws and the brother of

the husband being the Appellants used to express their displeasure on quality of the

ornaments and used to subject the deceased to torture, both physical and mental.

The deceased endured all these tortures with a hope of future happiness. Whenever

the deceased visited her parental home she used to complain on the incidents of

tortures to the inmates to her parents. It is further alleged in the written complaint

that eight days prior to the date of lodging the written complaint, the Appellants

assaulted the deceased on demand of more money. The deceased came to her

parental home and narrated her plights to the de-facto complainant and the parents

of the victim.

Page |3

On the day of lodging the complaint, at 05:00 a.m. the Appellants informed

the complainant that the deceased became ill. On getting this information the de-

facto complainant, his two brothers and the sister went to the matrimonial home of

the deceased, to find that the deceased was lying dead with marks of injury on the

face, back and hand. It was assumed by the de-facto complainant that since dowry

demands were not fulfilled, the Appellants killed the deceased after assault on her

person.

The written complaint was duly received by Shyampur Police Station. A case

was registered as Shyampur Police Station Case No. 162/2012 dated 10/06/12 under

Sections 498A/302/304B/34 of the Indian Penal Code, 1860. Formal F.I.R. was

drawn up and Sub-Inspector Mrinal Kanti Adhikari was entrusted with investigation

of the case. On completion of the investigation Charge Sheet was submitted under

Section498A/302/304B/34 of the Indian Penal Code, 1860 as well as under Sections

3 & 4 of Dowry Prohibition Act, 1961.

Since the case is exclusively triable by a Court of Sessions, the Learned

Additional Chief Judicial Magistrate committed the case to the Court of the Sessions

Judge, Howrah. Cognizance was taken by the Learned Sessions Judge and then

transferred the case to the Court of the Additional Sessions Judge, Uluberia for trial.

Charges were framed under Sections 498A/304B/34 of the Indian Penal Code

alternatively under Section 302/34 of the Indian Penal Code. Charges were read

over and explained to the Appellants to which they pleaded not guilty and claimed to

be tried. Hence the trial began.

Page |4

Prosecution produced 21 witnesses for examination. The Prosecution also

produced documentary evidences which were admitted in evidence and were

variously marked as Ext. 1 - 8. Material evidences were marked as Mat. Ext. I -III.

No evidence was adduced on behalf of the Appellants. The Appellants were

also examined under Section 313 of the Code of Criminal Procedure, 1973.

The defence of the Appellants, as appear from the trend of the cross-

examination and answer to examinations under Section 313 of the Code of Criminal

Procedure, 1973 was false implication and they pleaded to be innocent.

The Learned Trial Judge, after hearing both the prosecution and the defence

case, convicted and sentenced the Appellants, as aforesaid.

On being aggrieved and dissatisfied by the impugned Judgment and Order of

sentence, the instant appeal is preferred.

The first limb of argument of Mr. Ghosh, appearing for the Appellants is that

the prosecution failed to prove that death was an unnatural one. It is prosecution's

case that the deceased died in effect of poison. The written complaint is silent on

poison. The case made out in the written complaint is that the death of the deceased

was result of conjugate assault on her person. This additional factor of poisoning

surfaced later on. Post Mortem Examination Report (Ext. 6) contains opinion of

P.W. 18 that possible cause of death was poisoning but final opinion was reserved

pending receipt of chemical examination report of viscera. This opinion was

confirmed by the Medical Officer on dock (P.W. 18) who conducted the post mortem

examination. Chemical Examination Report (Ext. 11) negates presence of any poison

inside viscera. This shatters the hypothesis of death by poisoning, as set up by the Page |5

prosecution, according to Mr. Ghosh. On the other hand, Post Mortem Examination

Report (Ext.6) does not corroborate the allegation of death by physical assault, as

canvassed in the written complaint (Ext.1). Thus according to Mr. Ghosh, the

hypothesis of unnatural death is not proved by the prosecution. Unnatural death is

one of the most important ingredients of the offence under Section 304B of the

Indian Penal Code. Since that is not proved, Section 304B is not attracted. Mr.

Ghosh fortified his argument indicating the fact that no container of poison was

recovered. Absence of the container of poison further undermines the case of the

prosecution, according to him.

The second limb of argument of Mr. Ghosh is that in order to invoke the

provisions of Section 304B it is necessary to establish the fact of cruel treatment or

harassment in connection with any demand of dowry. Similarly, in order to invoke

the provisions of Section 498A it is also necessary to establish that the victim must be

subjected to the cruelty as defined in the section. The prosecution relies upon

testimonies of the relatives of the deceased. Testimonies of the relatives of the

deceased, as he argued, are rife with embellishments, contradictions and concoction.

There are serious contradictions also in the prosecution evidence the written

complaint discloses a case of death by assault which is not corroborated by Post

Mortem Report. On the other hand, the relatives of the deceased testified that death

took place by intake of poison which is not a case of the written complaint. It is also

statement of the some of the witnesses that victim/deceased was killed by the

Appellant and her body had thrown into the pond. Some prosecution witnesses even

stated that the body was floating in the pond and they recover the body therefrom to

place it on the baranda on the Appellant's home. This version has no corroboration

either in the Inquest Report (3 and 3A) or in the Post Mortem Report. It is only from Page |6

their statements that evidences of allege torture and demand of dowry surfaced. Mr.

Ghosh, continued to argue, that when the oral testimonies suffered from

contradictions, concoction and exaggerations, oral testimonies cannot be relied upon

unless some corroborations are there which is missing in the instant case. Mr. Ghosh

argued that oral testimonies of the relatives of the deceased are to be discarded

because their oral testimonies suffer from exaggerations, concoctions and

embellishments. No independent witness was examined. Therefore, nothing

remains to establish demand of dowry and consequent tortures and harassments as

alleged. In absence of proof the foundations of Section 304B and Section 498A

become demolished, according to Mr. Ghosh. In nutshell, Mr. Ghosh argued that the

impugned judgment of conviction and order of sentence should be set aside.

Per contra, Mr. Panda appearing for the State argued that prosecution

produced and adduced convincing and reliable evidences to establish the case.

According to him, Port Mortem Report and Inquest Report are evident enough to

establish death by poisoning as such an unnatural one which took place within few

months of marriage, attracting applications of Section 304B and Section 498A of the

Indian Penal Code.

A second leg of argument of Mr. Panda is that the death took place inside the

residence of the Appellants. It is within their special knowledge how death took

place. Prosecution's evidence very cogently and clearly established that it was an

unnatural death. Once the prosecution establish unnatural death, it is for the

Appellants to disclose how death took place. Referring to Section 106 of the Indian

Evidence Act, 1872 Mr. Panda argued that cause of death is within special knowledge

of the Appellants and their failure to disclose that should bring adverse inferences

against them.

Page |7

The third leg of argument of Mr. Panda is that contradictions are different

from discrepancy in the oral testimonies of witnesses. Minor embellishments or

exaggerations should not be taken seriously to reject otherwise cogent and reliable

testimonies of the witnesses.

The fourth leg of argument of Mr. Panda is that the written complaint or F.I.R.

is not an encyclopedia containing every particular of the offences meticulously. It

discloses a commission of cognizable offence initiating the trail of actions starting

from investigation of crime till the end of trial. Omission to mention that the

deceased died of poisoning is not fetal for the prosecution's case. According to him,

the impugned judgment of conviction and order of sentence should not be interfered

into.

I have heard rival submissions.

Section 304B was inserted in the Indian Penal Code by Act 43 of 1986 with

effect from 19/11/1986. Reason behind introduction of section was inadequacy of the

existing laws. The section aim at those offenders or perpetrators who indulged

themselves in dowry deaths. To give teeth to these provisions Act 46 of 1983 inserted

Section 113A in the Evidence Act permitting a Court to presume, in specific facts and

circumstances of the case that suicide was abated by the husband of the relatives of

the deceased woman. Similarly, Act 43 of 1986 introduced Section 113B in the

Evidence Act requiring some presumption to be thrown in case of dowry death.

Basically these provisions were introduced to carb demand of dowry, causing death,

causing cruel treatment or harassment with stringent hand.

Section 304B of the Indian Penal Code is as follows:-

Page |8

"(1) Where the death of a woman is caused by any burns or bodily

injury or occurs otherwise than under normal circumstances within

seven years of her marriage and it is shown that soon before her

death she was subjected to cruelty or harassment by her husband or

any relative of her husband for, or in connection with, any demand

for dowry, such death shall be called "dowry death", and such

husband or relative shall be deemed to have caused her death.

Explanation.--For the purpose of this sub-section, "dowry" shall

have the same meaning as in section 2 of the Dowry Prohibition

Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with

imprisonment for a term which shall not be less than seven years

but which may extend to imprisonment for life".

The essential ingredients of Section 304B are that,

a) Death of a woman should be caused by burn or bodily injury or otherwise

than other normal circumstances.

b) The said death took place within seven years of marriage.

c) Deceased lady must have been subjected to cruelty or harassment by her

husband or any relative or her husband.

d) Such cruelty or harassment should be foror in connection with demand of

dowry.

e) Such cruel treatment or harassment must have been meted out to the

deceased lady soon before her death.

Page |9

Section must be read conjointly with Section 113B of the Indian Evidence Act.

The Section 113B states when the question is whether a person has committed dowry

death of a woman and it is shown that soon before her death such woman had been

subjected by such person to cruelty or harassment for, or in connection with any

demand for dowry, the Court shall presume that such person had caused dowry

death. Explanation to the section clarifies that dowry death shall have the same

meaning as in Section 304B of the Indian Penal Code. Once the essential ingredients

of Section 304B are satisfied, the presumption under Section 113B of the Indian

Evidence Act would follow. Object behind introduction of this provision was to

obviate the difficulties of the prosecution to establish a case against the perpetrators.

However, this presumption is always rebuttable.

It is no longer res integra that a written complaint or F.I.R. is not an

encyclopedia; it is not required that the offence shall be narrated with scrupulous

particularities. Written complaint in this case was lodged on the same date. It was

disclosed in the written complaint that Rs.25,000/- and gold ornaments of two

bhories were given in marriage of deceased to the bride-groom namely, Appellant no.

1; the Appellants blamed the deceased on quality of articles given during marriage

and resorted to physical and mental tortures; she informed these incidents to her

parents when she used to visit her parental home; eight days before her death she

visited to her parental home and stated to the family members including her parents

and the de-facto complainant that her husband and in laws demanded money from

the deceased; the parents sent back to her to her matrimonial home advising to

maintain peace. The de-facto complainant deposed in this case as P.W. 1 and

restated all these facts before the Court. These incidents also recurred in the

testimony of P.W. 12, the father of the deceased corroborated by P.W. 14 Soleman Ali P a g e | 10

Khan, P.W. 15 Hafijul Ali Khan, P.W. 16 Sultan Khan, and P.W. 17 Ajibar Ali all of

whom stated in evidence that they learnt all these things from the deceased. All

these witnesses testified that the deceased came to her parental home eight days

prior to her death and intimated all of them about demand of dowry and torture. In

view of such corroborations it is absolutely baseless to say that the version of the

written complaint and oral testimony of witnesses are different.

It is not in the written complaint that death was due to poisoning. A

subsequent statement of witnesses that death was poisoning does not undermine the

veracity of that written complaint. According to the written complaint, cause of

death was assault which does not find any corroboration from the Inquest Reports or

Post Mortem Reports or from statements of the witnesses. But such discrepancy

does not change the unnatural character of death. It remained same that death was

unnatural.

As discussed above, the written complaint is silent about poisoning. Ext. 2,

the Inquest Report indicates that the cause of death was consumption of poison. The

next Inquest Report (Ext. 3A) prepared by P.W. 11 indicates that the cause of death

may be consumption of poison. This is further corroborated by the Post Mortem

Report where cause of death was mentioned as poison. It is mentioned in the Post

Mortem Report that stomach contained smell of poison. P.W. 2 is an inmate of the

matrimonial home of the deceased and relative of the Appellants. She stated in her

examination-in-chief that poison was oozing from the mouth of the deceased. She

was declared hostile but this statement was not contradicted. This was corroborated

by P.W. 4 Samina Khatun, sister of Appellant no. 1. She stated in examination-in-

chief that she found poison from the mouth of the deceased. Although she was also

declared hostile by the prosecution this evidence was also not contradicted. These P a g e | 11

two witnesses are close relatives of the Appellants. Mr. Ghosh vehemently argued

that in view of negative finding in the forensic report presumption of death by

poisoning cannot be said to have been established the prosecution's case. It is to be

remembered that the viscera report was prepared on 04/04/2013 whereas the post

mortem was held on 10/06/2012. There was a gap of ten months between the two

examinations. The Learned Trial Court noted these. It is not unlikely that long gap

of ten months erased traced of poison in viscera. In Sandeep Kumar and Ors.

Vs. The State of Uttarakhand and Anr. reported in 2020 SCC OnLine SC

980 three Judges Bench of Supreme Court of India considered the question whether

absence of poison in viscera report is or is not decisive. The Court opined that

absence of poison in the Viscera report may not be decisive.

In Sandeep Kumar's case the Supreme Court of India relies upon opinions of

Modi's Medical Jurisprudence and Toxicology which is stated as follows:-

"It is possible that a person may die from the effects of a poison and

yet, none may be found in the body after death if the whole of the

poison has disappeared from the lungs by evaporation, or has been

removed from the stomach and intestines by vomiting and purging,

and after absorption has been detoxified, conjugated and eliminated

from the system by the kidneys and other channels. Certain

vegetable poisons may be not be detected in the viscera, as they have

no reliable tests, while some organic poisons, especially the alkaloids

and glucosides, may be oxidation during life or by putrefaction after

death, be split up into other substances which have no characteristic

reactions sufficient for their identification."

P a g e | 12

Therefore, absence of poison in viscera as noted in the forensic report is not a

decisive factor and cannot be taken as gospel truth ignoring other evidences in

coming to hasty conclusion in this regard. I cannot agree with argument of Mr.

Ghosh on this issue.

It is not mentioned in the written complaint that victim consumed poison.

Consumption of poison came to light from the Inquest Report marked as Ext. 2A

which was done without any delay. Mere failure to mention poisoning in the written

complaint is not fatal because what is complained is unnatural death. Even if it is not

mentioned in the written complaint that death was by poisoning, evidences

overwhelmingly establish so. Consumption of poison by the deceased was confirmed

by P.W. 2 and P.W. 4, inmates of the matrimonial home of the deceased. They are

rather related to the Appellants. As stated above, although they were declared

hostile, evidences are not shaken or contradicted to the extent that the victim died

poisoning. Post Mortem Examination Report and Inquest Report, evidence of P.W. 2

& 4 establish that death was caused by poisoning. Even if the argument of Mr. Ghosh

is accepted that it is embellishment and concoction in the evidence of the relatives of

the deceased that she consumed poison, the statements of P.W. 2 & 4 being relatives

of the Appellants corroborated by Inquest Report and Post Mortem Examination

Report stands in the way of such arguments. It is, therefore, very clear that death

was an unnatural one caused by poisoning. There are some embellishments in the

statements of some prosecution witnesses that body was thrown into pond which is

not corroborated by Post Mortem Report or Inquest Report. But for that only their

entire evidence should not be discarded. These improvements or embellishments do

not set up a fundamentally different case. Grains can be separated from the chaffs.

The whole testimony need not be discarded for this reason only.

P a g e | 13

It is well-established that the death of the deceased there an unnatural one, as

discussed. There is no dichotomy in the statement starting from the written

complaint that there was demand of dowry; the deceased used to come to her

parental home and complained about demand of dowry as well as low quality of the

articles; assault and torture on her person. The written complaint as well as

testimony P.W. 1, P.W. 12, P.W. 13, P.W. 14 and P.W. 15 discloses that the deceased

informed them about dowry demand torture and assault inflicted on her on account

of dowry demand; she last he came to her parental home, eight days prior to her

death and disclosed all these things to the inmates of her parental home. All of them

were cross-examined which neither undermined the examination-in-chief nor

contradictory statements.

Mr. Ghosh disputed that the prosecution failed to establish that death was by

poison as discussed above. Death took place in matrimonial home. It is within the

special knowledge of Appellants about the nature and cause of death since that took

place inside their house. Other inmates of the house, namely, P.W. 2 & 4 testified

that death was by poisoning as smell of poison was came out from the mouth of the

deceased. Strenuous argument of Mr. Ghosh that death was not unnatural has its

own fallacies. Prosecution evidences establish that death was caused by poisoning.

Burden of proof their shift on the Appellants to rebut that. Death took place inside

their house. It is within their special knowledge how death took place. The

Appellants remained silent all throughout causing failure to rebut prosecution

evidence as well as rebut presumption under Section 106 of the Indian Evidence Act.

Evidences adduced on behalf of the prosecution establish beyond reasonable doubt

that death of the deceased took place within 7 years of marriage; death was by

poisoning which is an unnatural death; the victim was subjected to torture and P a g e | 14

harassment on demand of dowry; at least eight days prior to death victim was so

subjected. No one argued that the words "soon before her death" is not attracted. In

fact, eight days prior to death cannot be regarded as a longer period making soon

before her death of "the deceased is in applicable". The Learned Trial Court came to

the conclusion on proper appreciation of evidence. I, therefore, concur with the

finding of the Learned Trial Court and upheld the same so far as conviction of

sentences under Section 304 is concerned.

So far as applicability of Section 498A of the Indian Penal Code is concerned,

from the evidence so discussed, it is established that the Appellants being the

husbands and the relatives subjected her to torture on demand of dowry. Therefore,

the applicability of Section 498A is correctly decided. I concur with the judgment of

conviction under Section 498A of the Indian Penal Code. However, considering the

long pendency of appeal and ages of 3 and 4 sentences under Section 498A is

reduced to six months only.

In nutshell, the instant appeal is partly allowed the order of sentences under

Section 498A is reduced to six months from two years as passed by the Learned Trial

Court. This will be applicable in respect of all the Appellants except this the

judgment of conviction is upheld and to the extent as aforesaid the order of sentences

modified.

The instant appeal is accordingly disposed of, along with the pending

application.

(Sugato Majumdar, J.)