Calcutta High Court (Appellete Side)
Basar Sk. @ Basarul Sk. And Another vs The State Of West Bengal on 3 September, 2024
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
C.R.A. 2 of 2020
Basar Sk. @ Basarul Sk. and another
versus
The State of West Bengal
For the Appellants : Mr. Usof Ali Dewan,
Mr. Arup Sarkar,
Mr. Asif Dewan.
For the State : Mr. Ranabir Roy Chowdhury,
Mr. Mainak Gupta.
Heard On : 27.08.2024 & 03.09.2024.
Judgement On : 03.09.2024.
Tirthankar Ghosh, J. :
The present appeal has been preferred against the Judgment and Order
of conviction and sentence dated 27.11.2019 and 28.11.2019 passed by the
learned Additional Sessions Judge, 1st Fast Track Court, Jangipur,
Murshidabad in connection with Sessions Trial No. 07(01)/2013 arising out of
Sessions Case No. 391 of 2012, wherein the learned trial court was pleased to
convict the appellants under Sections 323/34 and 306 of the IPC and
sentenced them as follows:
i) For the offence under Section 306 of the IPC, the accused Basar
Sk. @ Basarul Sk. was sentenced to undergo R.I. for six years and fine
of Rs.1,000/- i.d., Rigorous Imprisonment for five months; and, accused
Renu Bibi was sentenced to undergo Rigorous Imprisonment for four
years and fine of Rs.500/- i.d., Rigorous Imprisonment for one month.
ii) For the offence under Section 323 of the IPC, accused Basar Sk. @
Basarul Sk. was sentenced to undergo Simple Imprisonment for six
months and fine of Rs.200/- i.d., Simple Imprisonment for one month
and accused Renu Bibi was sentenced to undergo simple imprisonment
for one month and fine of Rs.100/-, i.d., simple imprisonment for 20
days.
In course of hearing of the appeal, it was brought to the notice of this
Court that Basar Sk. @ Basarul Sk. expired at M.R. Bangur Hospital on
11.03.2020 and, as such, this Court by an order dated 27.08.2024 declared
that his appeal (the appellant no.1 in this case) is abated because of his death.
So, the present appeal is restricted to the appellant no.2 being Renu Bibi.
The genesis of the case relates to Sagardighi P.S. Case No.27 of 2007
dated 15.03.2007 which was registered for investigation under Sections
498A/302 of the Indian Penal Code against Basar Sk., Rehesan Sk. and Renu
Bibi. During the course of trial, Rehesan Sk., the father-in-law expired so the
trial court at the time of delivering of the judgment restricted its finding in
respect of Basar Sk., the husband of the deceased and Renu Bibu, the mother-
in-law of the deceased. As pointed out earlier that during the pendency of the
appeal, Basar Sk. also expired and, as such, this appeal is restricted to only
Renu Bibi.
The letter of complaint was addressed to the Officer-in-Charge,
Sagardighi P.S. by Ismail Sk., who complained that his daughter Saima Bibi
was married about 8/9 years ago and being unable to bear the torture inflicted
upon her by the accused persons, who are his son-in-law and his parents and
as a result of physical torture she died. His daughter had two children aged
about 4 years and 2 years and at one point of time she was enjoying her
married life. However, the same all of a sudden changed and he came to know
from reliable source that on 14.03.2007 in the morning when they had been to
the house of the accused persons they found his daughter Saima Bibi lying
dead with profuse bleeding through her ears and nose. The complainant
therefore requested the police authorities to take action against the accused
persons. Consequently, the present case was registered for investigation under
Sections 498A/302 of the Indian Penal Code on 15.03.2007 and the
Investigating Officer on being assigned with the investigation of the case visited
the place of occurrence, examined the dead body of Saima Bibi, prepared
surathal report in presence of the witnesses, sent the dead body for the post
mortem examination, prepared draft sketch map of the place of occurrence
with index, examined Hasina Khatun who was aged about seven years (the
daughter of the deceased), examined other witnesses, recorded their
statements under Section 161 of the Code of Criminal Procedure, seized the
wearing apparels of the deceased by way of preparing seizure list, sent the
child/daughter of the deceased to the learned Magistrate for her statement to
be recorded under Section 164 of the Code of Criminal Procedure and lastly
collected the said statement, the viscera report, the post mortem report and on
completion of investigation submitted charge-sheet against the FIR named
accused persons.
The learned Magistrate on receipt of the charge-sheet took cognizance of
the offence and was pleased to commit the case to the learned Additional
Sessions Judge, Jangipur, Murshidabad. The learned trial court on perusal of
the materials by an order dated 11th January, 2013 was pleased to frame
charges against the accused persons under Sections 498A/302 IPC. The
contents of the charges were read over to the accused persons to which they
pleaded not guilty and claimed to be tried.
The prosecution in order to prove its case relied upon 14 witnesses
which included PW-1, complainant; PW-2, Hasina Khatun, daughter of the
deceased; PW-3, Ohab Sk., co-villager; PW-4, Sk. Sadir Rahaman @
Rahamatulla, signatory to the inquest report; PW-5, Abdul Rakib, signatory to
the inquest report; PW-6, Farida Bibi @ Faridan Bibi, a co-villager; PW-7, Firoz
Sk., signatory to the inquest report; PW-8, Mahammad Nabiul Islam, the
Investigating Officer of the case; PW-9, Faimuddin Sk., Homeguard of
Sagardighi Police Station who was seizure list witness at the time of seizure of
the wearing apparels of the deceased; PW-10, Tusar Kanti Hazra, Constable of
Sagardighi Police Station who signed on dead body challan when it was taken
to Jangipur Hospital Morgue; PW-11, Bimal Biswas, SI of Police of Sagardighi
Police Station who received the complaint and filled the formal FIR and on
directions of the Officer-in-Charge, registered Sagardighi Police Station case No.
27/2007 dated 15.03.2007 under Sections 498A/302 of the Indian Penal Code;
PW-12, Ranajit Bhattacharya, post mortem doctor; PW-13, Dr. Sobhandev
Banerjee, Scientific Officer of State Forensic Science Laboratory; PW-14,
Ananda Sk., scribe of the FIR.
The prosecution's case was mainly based on the evidence of few
witnesses which included amongst others, the deposition of Hasina Khatun,
who, at the relevant point of time was aged about seven years and the daughter
of the deceased, who in her statement under Section 164 of the Code of
Criminal Procedure referred to an incident of goat being fed by the deceased
consequent to which the said goat died for which three FIR named accused
persons throttled the deceased/victim which resulted in her death. In the same
breath, the child stated before the Magistrate that her father threatened her
not to disclose such incident to anybody or in the alternative, she will meet
with the same fate as her mother.
In her deposition before the Court, the witness being PW2 stated that her
father, grandfather and grandmother murdered her mother by throttling. The
aforesaid evidence of Hasina Khatun, PW2 (the daughter of the deceased), is
contrary to the medical records.
According to the doctor-P.W.12, there were certain external injuries on
the body of the deceased which are as follows :
"1. Sign of bleeding from nose and forth from angle of mouth,
2. Swelling over right eye brow (Haematoma)'
3. Bruise over right ear,
4. Bruise over anterior aspect of neck and
5. Bruise over left side of chest."
Further PW 13 the Scientific Officer of the State Forensic Science
Laboratory in his deposition before the court relating to his report opined that
in the viscera of the deceased endosulfan (an insecticide which is poisonous in
nature) was detected. Thus, from the medical examination of the two doctors it
is seen that the victim was assaulted and poison was detected by the FSL. So it
is the poison which is the cause of death and the injuries which were found on
her body are the reasons which could have compelled the victim to consume
poison. This fact is corroborated from the inquest report wherein it was
recorded in the report of the investigation of the unnatural death that "her
husband assaulted her last night, on having some drinks, as it is seen at late
night at about 2 p.m. that Sayema Bibi is lying dead." The cause of death in
this case is thus attributed to the husband.
At the present stage we are concerned with the appeal of Renu Bibi.
Although there are general and omnibus allegations against all the
members of the matrimonial home but the version of the child witness in this
case cannot be relied upon in view of the inconsistency of her version and the
same being contrary to the medical evidence.
On an assessment of the evidence the fact of involvement of the
husband after consuming liquor and assaulting the victim is corroborated by
the injuries in the post mortem report and the consumption of insecticide i.e.,
endosulfan, a kind of insecticide in the FSL report which do probabilise a case
of committing suicide.
Thus, the abetment in this case, if any, can only be attributed to the
husband in view of the assault being inflicted within a close proximity of time of
the death of the victim. There are no materials available against the present
appellant, Renu Bibi which can be of any assistance to hold that she was at all
responsible for aiding and/or abetting in the cause of death of or for that
purpose commission of suicide of Saima Bibi.
Consequently, I am of the opinion that the only eye witness being PW-
2 cannot be relied upon. As such I am of the view that it would be unsafe to
rely upon such evidence to hold the appellant guilty of abetment to commit
suicide.
Accordingly, the judgement and order of conviction and sentence dated
27-11-2019 and 28-11-2019 passed by the learned Sessions Judge, 1st Fast
Track Court, Jangipur, Murshidabad in connection with Sessions Trial No.
07(01) of 2013 arising out of Sagardighi P. S. Case No. 27 of 2007 dated 15-03-
2007 calls for interference and is set aside.
The appellant Renu Bibi is acquitted of the charges. The appellant,
Renu Bibi is on bail and as such, she is discharged from the bail bonds.
Accordingly CRA 2 of 2020 is allowed.
Pending connected application, if any, is consequently disposed of.
Department is directed to send back the lower court records along with a
copy of this judgment immediately to the learned trial court.
All concerned parties shall act on the server copy of this judgement duly
downloaded from the official website of this Court.
Urgent photostat certified copy of this judgement, if applied for, be given
to the parties upon compliance with all requisite formalities.
(Tirthankar Ghosh, J.)
