Imarul Haque & Ors vs State Of West Bengal
2023 Latest Caselaw 1026 Cal

ML Sl. No. 91
as/akd/PA


                  IN THE HIGH COURT AT CALCUTTA
                      CRIMINAL APPELLATE JURISDICTION
                              APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Ajay Kumar Gupta


                                 CRA 897 of 2013

                               Imarul Haque & Ors
                                        -Vs-
                               State of West Bengal


For the Appellants         :     Mr. Amitabha Karmakar, Adv.
                                 Mr. Amit Ranjan Pati, Adv.

For the State              :     Mr. Madhusudan Sur, ld. A.P.P.,
                                 Mr. Manoranjan Mahata, Adv.

Heard on                   :     8th February, 2023.


Judgment on                :     8th February, 2023.


Joymalya Bagchi, J.:-

1.

At the outset report is filed on behalf of the State. From the report it

appears that third appellant Khorshed Sk. has expired. Photocopy of

the death certificate is placed on record.

2. Accordingly, appeal abates so far as third appellant viz., Khorshed

Sk. is concerned.

3. Appeal is directed against the judgment and order dated 13.09.2013

and 16.09.2013 passed by the learned Additional District and

Sessions Judge, Fast Track 1st Court, Berhampore, Murshidabad in

Sessions Trial No.05(05)2007 arising out of Sessions Case No.171 of

2006 convicting the appellants for commission of offence punishable

under Sections 498A/302/34 of the Indian Penal Code.

4. Prosecution case as alleged against the appellants is as follows:-

5. Five months prior to the incident, first appellant viz., Imarul Haque

married Rijia Bibi according to muslim rites and customs. Second

appellant viz., Nurjahan Bibi @ Noor Jahan Bibi is her mother-in-

law. They started torturing Rijia Bibi mentally and physically over

demands of dowry. Unable to bear torture, Rijia took refuge at her

parental home. Subsequently, she was again brought back to the

matrimonial home on 16.02.2005. Two days later i.e. on 18.02.2005

at 11.00 AM Saifulla Sk., father of Rijia received information that

she had died. He rushed to her matrimonial home at Mirzapur and

found her lying dead in the courtyard of the house. He lodged

written complaint against Imarul Haque (husband) and the parents-

in-law viz., Khorshed Sk. and Nurjahan bibi @ Noor Jahan Bibi

resulting in registration of Beldanga P.S. case no. 23/05 dated

18.02.2002 under sections 498A/304/34 IPC.

6. In conclusion of investigation, charge sheet was filed and charges

were framed under Sections 498A/302/34 of the Indian Penal Code

against the appellants. Defence of the appellants was one of

innocence and false implication. It was their specific defence that

Rijia had committed suicide by consuming poison. Prosecution

examined 18 witnesses and exhibited a number of documents.

7. In conclusion of trial, trial judge by judgment and order dated

13.09.2013 and 16.09.2013 convicted and sentenced the appellants

under Sections 302/34 of the Indian Penal Code. They were,

however, acquitted of the charge under Section 498A of the Indian

Penal Code.

8. Learned Advocates for the appellants submits there is no direct

evidence that they had murdered Rijia. Most of the prosecution

witnesses claimed she committed suicide by consuming poison.

Viscera report had not been placed on record to rule out the case of

poison. There is no evidence that the appellants were present at the

matrimonial home when the incident occurred. Opinion of post

mortem doctor is not conclusive. Hence, the appellants are entitled

to benefit of doubt.

9. Mr. Madhusudan Sur, learned Additional Public Prosecution with

Mr. Manoranjan Mahata for the State submits Rijia was murdered

at the matrimonial home. Post mortem doctor (PW17) stated she

died due to severe throttling i.e. special suffocation. Throttling is

ordinarily homicidal. Incident occurred at the matrimonial home.

First appellant admitted during his examination under section 313

Cr.P.C. they were present at the place of occurrence. Findings in the

inquest report, evidence of PWs 12 and 13 and the opinion of the

post mortem doctor rules out the defence of the appellants that

victim died by consuming poison. False explanation with regard to

cause of death is an additional circumstance pointing to the guilt of

the appellants. Hence, the appeal is liable to be dismissed.

10. The instant case portrays a glaring example of what the Hon'ble

Apex Court in Ramesh and Others vs State of Haryana1 described as

"culture of compromise". Rijia was married to Imarul Haque.

Evidence on record shows soon after the marriage she returned to

her paternal home. She was again brought back to the matrimonial

home on 16.02.2005 i.e. two days prior to the incident. On

18.02.2005, she died at the matrimonial home. Inspite of

unfortunate demise of the housewife within six months of marriage,

most of her relations including her parents and brother i.e. PWs. 2,

3 and 4 were declared hostile and did not support the prosecution

case. On the contrary, they supported the defence version of the

housewife committing suicide by consuming poison. Only PWs. 12

and 13 being the maternal aunt and uncle of Rijia supported the

prosecution case. They stated she was subjected to torture over

demands of dowry and landed property and had to take refuge at

her parental home. Thereafter, she was again brought back to her

parental home where she was found dead. They went to the place of

occurrence and found injuries on her neck. They suspected she had

been murdered by physical assault. Both these witnesses are

signatories to the inquest and the seizure list which was prepared at

(2017) 1 SCC 529 (para 48 to 50)

the place of occurrence. It is argued that PWs.12 and 13 had

inimical relations with the mother of the deceased i.e. PW4. For

such reason, they had not been won over and came out with the

truth. As the said witnesses did not ordinarily reside at the parental

home, trial court was unwilling to rely on their depositions with

regard to prior torture on Rijia. However, the Court relied on their

evidence with regard to their presence on the date of occurrence at

the matrimonial home of Rijia. They saw marks of injury on the

neck and suspected she had been assaulted to death. Their

presence at the place of occurrence is fortified by their signatures on

the inquest report as well as on the seizure list prepared during

investigation.

11. Nirode Baran Pal (PW.18) is the Investigating Officer. He prepared

the inquest report at the spot marked Ext.2/3. In the inquest report

he noted Rijia's face and throat were swollen and her tongue had

come out. Saliva had also come out from her mouth. There were

marks of semen and blood in front of her petty coat.

12. Dr. Samser Jaman Mir (PW17) noted bruise marks on the anterior

aspect of neck with fracture of hyoid bone and haematoma on the

anterior aspect of trachea. He did not find any ligature mark. He

found lungs were congested. He opined death was due to respiratory

trouble arising out of severe throttling i.e. special suffocation.

13. During cross-examination he stated hyoid bone must be fractured

during throttling. He also stated tongue may be swollen in case of

throttling. He opined there is no ligature mark on the anterior

aspect of neck but he admitted the report placed before the Court

was illegible. He also stated that viscera had not been placed before

him for opinion.

14. The trial judge had compared the findings of the post mortem doctor

and the notings in the inquest report by the Investigating Officer,

Ext.2/3 with medical treaties2 and concluded the findings of the

doctor as well as in the inquest report is indicative of homicidal

throttling.

15. I have examined the records including the post mortem report and

the inquest report. Post mortem doctor did not find any oblique

ligature mark around the neck. This rules out a case of hanging. On

the other hand, signs of throttling were evident from the findings of

the post mortem doctor and the inquest report. Post mortem doctor

found bruise marks on the anterior aspect of neck with fracture of

hyoid bone. Inquest report shows that the tongue of the victim had

come out. Her face and throat were swollen. PWs 12 and 13

(witnesses to the inquest) deposed they saw marks of injuries on the

neck. These circumstances leave no doubt that the victim had been

throttled to death at the matrimonial home. In this regard, I would

reiterate the observation quoted by the trial judge from the aforesaid

medical treaty3 that the throttling cannot be suicidal as follows:-

Modi's Medical Jurisprudence and Toxicology, 23rd Edition

Ibid. (page 581)

"It is not possible for anyone to continue a firm grasp of the throat after unconsciousness supervenes, hence throttling by the fingers cannot possibly be suicidal."

16. It may be relevant to note that it is not a defence case the victim

had suffered death by suicidal hanging. On the other hand, it is

their specific case supported by the obliging hostile witnesses that

Rijia had consumed poison. It is contended viscera report was not

placed on record. Absence of the viscera report does not cast doubt

with regard to the cause of death. Investigating Officer (PW 18) held

inquest over the dead body. He noted the face and the mouth of the

victim were swollen and her tongue had come out. He did not note

frothing from the mouth, a tell-tale sign of poison. PWs 12 and 13

noted mark of injury around her neck. Post mortem doctor (PW 17)

noted bruises mark on the anterior aspect of the neck along with

fracture of hyoid bone and haematoma over the anterior aspect of

trachea. He found lungs were congested. He opined death was due

to severe throttling. I have examined the post mortem report in the

column 'Abdomen'. The doctor noted nothing abnormal was

detected. No foul smelling liquid or otherwise was noted in the

stomach or intestine. The aforesaid evidence on record clearly

establishes the victim died due to throttling which is ordinarily

homicidal and exposes hollowness of the defence plea of death by

consuming poison. Hence, it can be safely concluded that the victim

had been throttled to death at the matrimonial home.

17. A faint plea was raised that there is no evidence that the appellants

were at home. Body of the victim was recovered from the courtyard

of the house of the appellants around 11.00 AM. During their

examination under Section 313 of the Code of Criminal Procedure

the appellants admitted they were at their residence. Hence,

presence of the appellants at the time when the incident occurred is

admitted.

18. From the evidence on record, I find the following circumstances

have been proved beyond doubt:-

i) Rijia was married to Imarul Haque five months prior to the incident. Soon after the marriage, she took refuge at her parental home;

ii) Two days prior to the incident, she was brought back to her matrimonial home;

iii) Around 11.00 AM her dead body was found lying in the courtyard. PW18 Investigating Officer held inquest over the body of Rijia. He found her face and neck swollen. Tongue was protruding from mouth and saliva had come out. PWs 12 and 13 (inquest witnesses) also noted injuries on her neck;

iv) Post mortem doctor (PW 17) found bruises on the anterior aspect of the neck and fracture of hyoid bone. He did not find mark of ligature around the neck resulting from hanging. He opined death was due to throttling i.e. special suffocation. Death by throttling is ordinarily homicidal;

v) Incident occurred in the morning of 18.02.2005 at the matrimonial home. Appellants were the only persons apart from the deceased in the house at the time of occurrence;

vi) Defence took a false plea with regard to death by poisoning which is ruled out by the notings in the inquest and post mortem report.

19. The chain of circumstances clearly establishes the prosecution case

of murder against the appellants.

20. Conviction and sentence of the appellants are upheld.

21. Accordingly, the appeal so far as appellant nos. 1 & 2 are concerned

is dismissed.

22. Bail bond of appellant No.2 is cancelled and she is directed to

surrender forthwith and serve out the remainder of sentence in

accordance with law.

23. Period of detention suffered by the appellants during investigation,

enquiry and trial shall be set off from the substantive sentence

imposed upon the appellants in terms of Section 428 of the Code of

Criminal Procedure.

24. Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

25. Photostat certified copy of this judgment, if applied for, shall be

made available to the appellant within a week from the date of

putting in the requisites.

I agree.

(Ajay Kumar Gupta, J.)                             (Joymalya Bagchi, J.)