Reajul Mia @ Riyajul Mia & Anr vs State Of West Bengal

Jay Sengupta, J

This appeal is directed against the judgment and order of conviction and sentence dated 08.10.2007 passed by the Learned Additional Sessions Judge, 1st Fast Track Court, Dinhata, Cooch Behar in Sessions Trial No. 2/April/2007:Sessions Case No. 84/2005, thereby convicting the appellant Riyajul Mia under Section 498A of the Penal Code and both the appellants Riyajul Mia and Sultan Mia under Section 302 read with Section 34 of the Penal Code and sentencing the convict Riyajul Mia to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1000/- for the offence under Section 498A of the Penal Code, in default to suffer rigorous imprisonment for three months and sentencing both the convicts Riyajul Mia and Sultan Mia to life imprisonment and to pay a fine of Rs. 10,000/-each, in default to suffer rigorous imprisonment for one year for the offence under Section 302 read with Section 34 of the Penal Code.

On 16.07.2003 at about 16.45 hours, PW 1, the maternal uncle of the victim/deceased Anowara Bibi lodged a First Information Report against the present appellants under Sections 498A and 302 read with Section 34 of the Penal Code. In the First Information Report, PW 1 alleged that about three years ago a marriage was registered between the victim and the appellant Riyajul Mia. After sometime, the said Riyajul Mia started torturing the victim both physically and mentally and demanded more dowry. Over this a village 'salishi' was held about a year ago. The victim came back to her parent's house. About ten days ago the said Riyajul Mia came to meet the victim and said that he would take her to his house. He also directed her to stay in the house of her maternal uncle PW 1 at Chhat Baromasia. Accordingly, the victim came to PW 1's house with her mother on 15.07.2003 at about 16.00 hours. At about 19.00 hours the appellants came to PW 1's house and had a meal. At about 19.30 hours the appellants went for their home with the victim. At about 20.00 hours, PW 1 went to the house of Riyajul Mia by another road to enquire whether the victim had arrived or not. After returning back from there, PW 1 found that his niece had fallen on a muddy road between Chhat Baromasia and Baromasia. She was groaning and a foam was coming out from her mouth. Her mouth was tied with her hair and there was a container of poison by her side. Seeing this, PW 1 started crying and people assembled. The victim's hands were found tied with her saree. Then the victim told that her husband fell her on the road and pressed her neck and the other appellant Sultan Mia poured poison into her mouth. The victim was taken to Sitalkuchi hospital and then to another hospital at Mathabhanga. But, she died on 16.07.2003 at the dawn.

The investigation commenced. PW 10, a Learned Executive Magistrate held an inquest over the deadbody on 16.07.2003 at about 11.00 hours in the presence of witnesses including PW 11. The deadbody was kept in a van rickshaw in front of the police station. Some foam came out of her mouth. There was a sign of injury of nail on her neck and blood stains on her forehead. PW 8, an autopsy surgeon, held post-mortem examination over the deadbody on 16.07.2003 at about 15.00 hours. According to him, it was probably a case of unknown poisoning. The final opinion was kept pending till obtaining a report from the analyst. After completion of investigation, a charge-sheet was submitted by the investigating agency. On 02.04.2007 charges were framed against the appellant Riyajul Mia under Section 498A of the Penal Code and against both the appellants under Section 302 read with Section 34 of the Penal Code.

During trial the prosecution examined as many as fifteen witnesses to establish its case. Besides denying the allegations the appellant Riyajul Mia, during his examination under Section 313 of the Code, tried to make out a case that the victim took poison at her maternal uncle's house. According to him, earlier he was forcibly married to the victim and the victim never stayed with him in the same mess. The appellant Sultan Mia denied that he even knew the victim Anowara Bibi.

From a careful perusal of the evidence on record, it appears that PW 1 was the de facto complainant of the case. He was the uncle of the victim/deceased. He was also a witness to the inquest. His statement was also recorded under Section 164 of the Code. He deposed about the torture inflicted upon the victim after marriage and the taking place of a 'salish' in this regard. The appellant no. 1 had asked to bring Rs. 50,000/- as dowry so that the victim could stay with him. The victim's father could not pay such sum. So she started staying at her parent's place. On the fateful day the victim came to PW 1's house at about 16.00 hours. Later on, the appellants left with the victim at about 19.30 hours. Then PW 1 and one Zakir (since deceased), who had also given a statement under Section 164 of the Code, proceeded to look out for the victim. While returning from the appellant's house they saw the victim lying in a seriously injured state. The victim gave a verbal dying declaration implicating the appellants. She passed away on the next morning at about 4.00 hours. The accused first threatened and thereafter offered money to PW 2 to settle the issue. In his cross-examination, PW 1 stated that he had to stay away from his place because of the intimidations given by the accused. Although he did not report it to the police, he informed the Panchayat of Baromasia about it through his brother-in-law. Due to absence of rain, the pathway was dry. He deposed that the victim was taken to a hospital that was about seven kilometres away because the same was otherwise more approachable. The medical unit at Sitai always used to refer such cases to Sitalkuchi. PW 2 was tendered in evidence. PW 3, a local witness, heard that the victim had consumed poison. But she was not declared hostile. PW 4, another local witness, also heard that the victim had consumed poison. She saw the deadbody being lifted on a van. In his cross-examination PW 4 admitted that he saw PW 1 and Zakir lifting the body of the victim on the road. He too was not declared hostile. He did not see the victim with tied hands or gagged mouth. The body was being lifted on a road outside the house. PWs 5 and 6 denied any knowledge about the incident. PW 7, a lady police constable, carried the deadbody to the morgue. PW 8 was the autopsy surgeon. He found multiple nail marks on the neck and multiple bruises on both the wrist joints. A dark coloured pungent smelling fluid was found in the stomach. He opined that the cause of death was probably unknown poisoning. The death took place about 12 hours before the post-mortem examination. It might be that there was a physical assault prior to the death of the victim. Such injuries could appear in case of an attempt to throttle. PW 9 was the Learned Judicial Magistrate who recorded the statement of PW 1 and the said Zakir Hossain under Section 164 of the Code. PW 10 was the Learned Executive Magistrate who held an inquest over the deadbody. PW 11 was the father of the victim. He was a seizure list witness for the seizure of the marriage certificate in question and was also a witness to the inquest. In his cross, he stated that the appellant had demanded Rs. 50,000/-. PW 12 was the scribe of the FIR. He deposed that he had acted under the advice of the Officer-in-Charge of the Police Station. He was declared hostile. PW 13 was the first Investigating Officer. He filled up the formal part of the First Information Report and seized the container of poison. He examined witnesses and sent for examination some witnesses under Section 164 of the Code. PW 14 was the second Investigating Officer. He seized some documents and sent the viscera to the FSL. PW 15 was the last Investigating Officer of the case. He perused the FSL report and submitted the charge-sheet. In his examination under Section 313 of the Code, the appellants denied the allegations. It was the case of the appellant Riyajul Mia that the victim had taken poison in her maternal uncle's house. Earlier, he was forcibly given in marriage with the victim and the victim never stayed in his mess.

Mr. Ajay Debnath, the Learned Advocate appearing on behalf of the appellants submitted as follows. There is no direct evidence to the crime. While PWs 2, 3 and 4 gave out hearsay accounts, PWs 5 and 6 deposed that they knew nothing about the incident. There is practically no proper corroboration of the evidence as adduced by PW 1, the victim's uncle. Even his version contained inherent contradictions. Unlike his evidence, the First Information Report lodged by PW 1 did not mention that he was accompanied by one Zakir Hossain as they went out to look for the victim. Although PW 1 stated in the First Information Report that the victim came to his house along with her mother, he did not depose about the mother's presence before the trial Court. In any event, the mother of the victim, who was thus a vital witness, was not examined. PW 12, the scribe of the First Information Report turned hostile. He even said that the de facto complainant was not present at the police station then. Although PW 1 said that the place of occurrence was between Chhat Baromasia and Baromasia, PW 11 stated that it was in Sukna Baromasia. The evidence adduced by PWs 4 and 5 about lifting of the deadbody in front of the victim's house is quite significant. Besides, the chemical analyst's report about the poison did not come. The allegations of threats as given by the appellants were not borne out by any cogent evidence.

Mr. Ranabir Ray Chowdhury, the Learned Counsel appearing on behalf of the State submitted as follows. The evidence of PW 1 and the statement of Zakir Hossain (since deceased) recorded under Section 164 of the Code are the mainstay of the prosecution case. The house of the appellant was 1 to 1 ½ kilometres from the house of PW 1. The body of the victim was found somewhere between these two places. As per PW 2, the deadbody was seen lying on the ground about half a kilometre away from the house. PW 4 saw the victim alive. Therefore, the victim could have very well given a dying declaration. The discrepancies in the statement of Zakir Hossain recorded under Section 164 of the Code are too minor. The medical evidence clearly supported the prosecution case. As regards the issue of torture for dowry demand, there was ample evidence in this regard as adduced by PWs 1 and 11. On the other hand, the accused even went to the extent of denying knowledge about the place where PW 1 was staying. Moreover, there were allegations of threats given by the accused although no complaint was exhibited in this regard. The prosecution was able to prove its case beyond all reasonable doubts.

We heard the submissions of the Learned Counsels appearing on behalf of the parties and perused the evidence and other materials on record as well as a copy of the impugned judgment and order.

The First Information Report vis-a-vis the evidence of the de facto complainant:

Unlike his evidence before the Learned Trial Court, the First Information Report lodged by PW 1 did not mention that he was accompanied by one Zakir Hossain as they went out to look for the victim. That apart, although PW 1 stated in the First Information Report that the victim came to his house along with her mother, he did not depose about the mother's presence there. Quite significantly, PW 12 the scribe of the First Information Report also turned hostile. He even said that the de facto complainant was not present at the police station at the relevant time. The contradiction between the evidence adduced by PW 1 and his statement before the police that was recorded as the First Information Report assumes some degree of importance as the prosecution case is based mainly on the evidence of PW 1. Place of occurrence:

Although PW 1 fixed the place of occurrence as between Chhat Baromasia and Baromasia, PW 11 stated that it was in Sukna Baromasia. This apparent incongruity adds to the confusion about the place since no blood-stained earth was seized from the alleged place of occurrence. In the particular facts and circumstances of the instant case the non-fixing of the place of occurrence makes the prosecution case suspect.

Lifting of the deadbody in front of the victim's house:

PW 4, an independent witness, saw the deadbody being lifted on a van in front of the victim's house. But PW 1 stated that after the victim was found in a frail condition, she was taken first to the hospital at Sitalkuchi and thereafter to the Mathabhanga hospital. Even if the deadbody had been brought first to the house of the victim, some evidence ought to have been there about who else saw the deadbody at the place of occurrence, how the deadbody was brought to the victim's house and if it were brought to the victim's house, why it would be taken down and then again lifted up for being sent to hospital. The absence of any evidence in this regard only bolsters the defence plea that the victim had taken poison at PW 1's house. If not explained, this would act as a breach in the chain of circumstances otherwise appearing against the appellants. On the other hand, PWs 2 and 3, two neighbours, deposed about hearing that the victim had consumed poison.

The purported verbal dying declaration of the victim/deceased:

It is PW 1 who deposed as the only witness to the verbal dying declaration purportedly made by the victim. Although several villagers had assembled at the place as per PW 1, no one came to depose about the verbal dying declaration. Zakir Hossain could not be examined. Although his statement recorded under Section 164 of the Code also spoke of a purported verbal dying declaration of the victim, but the version differed a little from that of PW 1 at least about who tied with the victim's hands. Both Zakir Hossain as well as PW 1 were close relatives of the victim. The narration about the alleged verbal dying declaration does not appear to be cogent and convincing enough to base a conviction on the same.

The cause of death:

PW 8, the autopsy surgeon, found multiple nail marks on the neck and multiple bruises in both the wrist joints of the victim. A dark coloured pungent smelling fluid was found in the stomach. He opined that the cause of death was probably unknown poisoning. The chemical analyst's report confirmed the presence of insecticide in the viscera.

Non-examination of vital witnesses:

The mother of the victim who purportedly accompanied her to the house of PW 1 would have been the best witness to corroborate PW 1 about the presence of the victim at PW 1's house and about the purpose of it. Non-examination of the mother is a vital flaw in the prosecution case.

The alternative presented by the defence vis-a-vis motive:

In his examination under Section 313 of the Code, the appellant Riyajul Mia categorically stated that he was forcibly given in marriage to the victim, that the couple did not stay in the same mess even for a single day and that the victim took poison in the house of PW 1. The co-accused Sultan Mia denied even knowing the victim. No evidence was forthcoming except from the relatives of the victim that the appellant Riyajul Mia and the deceased had ever stayed together as a couple. This not only renders the version presented by the appellants somewhat credible, but also denudes the prosecution case of the existence of any motive behind murder. Motive, which is of utmost importance in a case based purely on circumstantial evidence, is sadly lacking in this case.

Evidence regarding Section 498A of the Penal Code:

The evidence of the relatives of the victim regarding the cruelty and dowry demand are commonplace and bereft of necessary details. They do not appear to be very convincing either.

Considering the dilution of any motive behind the murder, the material contradictions between PW 1's First Information Report and his evidence, the unconvincing narration of a purported dying declaration by PW 1, the breach in the chain of circumstances appearing against the appellant, the evidence of two neighbours regarding lifting of the body in front of the victim's house, the non-examination of important witnesses and the reasonable explanation given by the appellants, we are of the view that the appellants are entitled to benefit of doubt and the prosecution has failed to prove its case beyond reasonable doubt.

In view of the above, we allow the appeal and set aside the conviction and sentence awarded against the appellant.

The appellant, if in custody, shall be released forthwith.

A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action.

Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.