Saheb Peada - Appellant @HASH The State of West Bengal

Indira Banerjee, J. :- This appeal is against a judgment and order dated 19th July, 2006 passed by the Additional Sessions Judge, Fast Track Court, 1st Court, Baruipur in Sessions Trial No. 3(3)05 corresponding to Sessions Case No. 57(1)05, whereby the accused appellant, Saheb Peada has been held guilty and convicted of offence under Section 498A and 302 of the Indian Penal Code and an order of sentence passed on 20th July, 2006 whereby the accused appellant has been sentenced to rigorous imprisonment for three years for offence under Section 498A and to rigorous imprisonment for life and to pay a fine of Rs.5,000/- for offence under Section 302 of the Indian Penal Code. Both the sentences were directed to run concurrently.

It is the case of the prosecution that Amiran Bibi (the deceased), niece of the de facto complainant, Madar Dhali was married to the accused appellant, Saheb Peada in 2000 according to Islamic rights. At the time of Amiran''s marriage with the accused appellant, numerous articles were given to Amiran and the accused appellant.

Some time after Amiran''s marriage with the accused appellant, Amiran informed the de facto complainant that the accused appellant and the members of his family used to complain that the articles given by Amiran''s family at the time of marriage were not of good quality and unless more money was given by her family, she would not be allowed to live in her matrimonial home.

The de facto complainant and his relatives went to Amiran''s matrimonial home and spoke to the accused appellant and the members of her family, after which Amiran started living in her matrimonial home and she also gave birth to a son.

However, whenever Amiran used to come to the de facto complainant''s house, she would be reluctant to go back to her matrimonial home, as she apprehended that the accused appellant and the members of his family would kill her.

According to the de facto complainant, Amiran had told the de facto complainant, that the accused appellant had brought a lady to his house in order to marry her. When Amiran protested, the accused appellant and the members of his family threatened to throw Amiran out of their house.

The de facto complainant stated that, being poor persons, they could not keep Amiran and they sent her back to her matrimonial home. On 26th August, 2004 at about 5.30 p.m the de facto complainant was informed that Amiran was critically ill and that she should go to her matrimonial home at Dakshin Durgapur. The de facto complainant has not disclosed the source of his information.

The de facto complainant has stated that on reaching Amiran''s matrimonial home, he found that the accused appellant and other members of his family were not at home. He saw the dead body of Amiran lying on the verandah of the matrimonial home. He noticed that there was a deep wound on the throat of Amiran and blood oozing out from the wound.

The de facto complainant has, in his complaint, stated that he believed that the accused appellant and the members of his family had killed Amiran and thereafter left the house.

On the basis of the FIR lodged by the de facto complainant, Kultali P.S Case No. 74 dated 27th August, 2004 was started under Section 498A/302/34 of the Indian Penal Code against the accused appellant and three others. In course of investigation, the Investigating Officer arrested the accused appellant and one Hasem Peada and forwarded them to Court. After completion of investigation, charges were issued under Section 498A/302/34 of the Indian Penal Code against the accused appellant, Saheb Peada, his two brothers, Hasem Peada, Kasem Peada and his sister-in-law, Ambia Bibi. The accused appellant Saheb Peada and Hasem Peada were denied bail. The remaining two accused persons, Kasem Peada and Ambia Bibi were released on bail. The accused appellant and the other accused persons denied their guilt and claimed to be tried.

Eighteen witnesses were examined on behalf of the prosecution. The accused appellant did not adduce any oral evidence. He was however examined under Section 313 of the Indian Penal Code, and he denied his guilt.

The 1st Prosecution Witness, Madar Dhali, the de facto complainant, maternal uncle of Amiran deposed that at the time of Amiran''s marriage with the accused appellant, they had given Rs.5,000/- in cash, a gold ring weighing 6 annas and a bi-cycle to the accused appellant. They had also given a gold ear ring and other bridal articles to Amiran.

The 1st Prosecution Witness has stated that on receiving information that Amiran was ill, he went to Amiran''s matrimonial home, along with his sister and others. On going to her matrimonial home, he saw Amiran''s dead body on the verandah. This witness saw a deep bleeding wound on Amiran''s neck. According to him, blood was oozing out from the wound.

This witness (PW1) stated that they did not see any of the family members of the accused appellant, when they went to Amiran''s matrimonial home. They stated that Amiran''s matrimonial family consisterd of her father-in-law, elder brother-in-law and sister-in-law. Mojahar Peada was Amiran''s father-in-law. Hasem Peada and Kasem Peada were Amiran''s brothers-in-law and Ajiman Bibi was her mother-in-law. This witness did not know the name of her sister-in-law.

The de facto complainant stated that he went to the Kultali Police Station where he told the Officer-in-Charge what had happened. This witness stated that he lodged a diary at the Police Station. He identified his signature on the FIR, which he stated, was written by Dudh Ali Mollah as per his instructions. In reply to a query from the Court, he stated that he did not know the cause of Amiran Bibi''s death.

This witness stated that a police constable, Jagadish Das of Kultali P.S took this witness to the place of occurrence. The dead body of Amiran was taken to a Magistrate at Baruipur and an inquest report was prepared. He identified his signature on the inquest report. He also stated that he had signed the seizure list and he identified his signature on the seizure list.

In cross-examination, this witness stated that his brother-in-law Alauddin used to reside in their village, Alauddin''s house was about three minutes'' walk from their house. Alauddin had married twice. His two wives are Fatema Bibi and Karima Bibi. Alauddin had divorced Fatema. This deponent stated that he had good relationship with Alauddin.

This deponent stated that he had given Amiran in marriage to the accused appellant. He further deposed that it took about an hour''s time to go to the accused appellant''s house from their house by cycle. This witness could not say the date on which Amiran had been married to the accused appellant.

This witness stated that Amiran had died on 26th August, 2004. This witness came to know of the death of Amiran from others. He could not say the name of the persons from whom he got the information of Amiran''s death of course those names are not relevant to the question of the guilt of the accused appellant. This witness stated that they reached Amiran''s matrimonial home at about 8 p.m and saw Amiran''s dead body lying on the verandah. The members of the family were not at home. In cross-examination, this witness reiterated that he saw a deep bleeding injury on the neck of Amiran. Amiran was in a petticoat. This witness stated that he made enquiries from neighbours and villagers as to where the accused appellant and the members of his family had gone, but they could not give any answer.

PW3 stated that he sent his sister and his brother back home. Thereafter, he along with others went to the Police Station. They reached the Police Station at around 12.30 and they orally narrated what had happened. The FIR was written by Dudh Ali Mollah as per his instruction. In cross-examination, it was suggested that Amiran used to suffer from diarrhoea off and on which this witness denied. However, it is not understood how that was relevant to the issue of whether Amiran had been tortured and killed by the accused appellant and the members of his family.

The 2nd Prosecution Witness, Md. Alauddin Sk., father of the deceased also stated that he had given a gold ring, a bi-cycle and Rs.5,000/- to the accused appellant at the time of his marriage to his daughter. He also stated that he had given a pair of gold ring and gold noes-stud to Amiran. PW2 deposed that the marital relationship between Amiran and the accused appellant was good but the accused appellant demanded money from Amiran. He used to tell her if she failed to bring money, he would marry again. He stated that he had heard this from his daughter Amiran. He also stated that the accused appellant had kept a lady in his house. The accused appellant had told Amiran that he would marry the lady as he would get more money from the lady.

This witness stated that he had given some money to the accused appellant but as he did not have the financial capacity, he could not give anything more.

This witness also stated that on getting news of the death of Amiran, he went to the matrimonial home of Amiran at about 8 p.m. His wife, Fatema and other persons also went to Amiran''s matrimonial home. This witness stated that 100/200 persons had assembled at Amiran''s matrimonial home.

The 3rd Prosecution Witness, Fatema Bibi deposed that her daughter, Amiran was married to the accused appellant about 4 years ago according to Islamic rites. She also corroborated what her brother had said and her husband had said with regard to bridal articles given at the time of marriage. This witness stated that after Amiran''s marriage, the accused appellant tortured her. He used to assault her. The mother and the elder sister-in-law of the accused appellant used to abuse Amiran in filthy language. She claimed that on one occasion when she had gone to Amiran''s matrimonial home, the accused appellant had assaulted Amiran in her presence. She said that she had pleaded with the accused appellant and the members of his family to behave well with Amiran. She also stated that when she went to Amiran''s matrimonial home, she saw Amiran''s dead body lying in the verandah. None of the family members were present. She stated that an old man was sitting by the side of Amiran''s dead body.

This witness was cross-examined in length. In cross-examination she stated that she had been married to Md. Alauddin 15 years ago and gave birth to Amiran. She stated that she had no relationship with Md. Alauddin. Md. Alauddin had divorced her. After the divorce she got married to a man from Bihar. She said that after her second marriage she gave birth to four children. She stated that she was living with her second husband. She also stated that after divorcing her, Md. Alauddin had married another lady. She stated that her elder-brother Madar Dhali, that is the de facto complainant, had given Amiran''s marriage to the accused appellant about five years ago. PW3 stated that she had gone to Amiran''s matrimonial home many times but she could not say how many times. She stated that Amiran had left a child who resides with the mother of the accused appellant.

In cross-examination, PW3 stated that at around 5 p.m. she got information that her daughter had been suffering from diarrhoea. After getting such information she rushed to Amiran''s matrimonial home, which was about one and half hour''s walk from their house. When she reached Amiran''s matrimonial home she found Amiran''s dead body. None of the family members were at home. She stated that she found a cut injury on her throat. She stated that an old man had lifted the dead body of Amiran. She could not say whether the dead body of Amiran was lying on any bedding. She stated that Amiran''s dead body was covered with a red cloth. She could not say who had covered Amiran''s dead body. She stated that she had not seen any other wound on the dead body. She could not say whether there was any ligature mark around the neck of Amiran. In cross-examination, she stated that she did not see any blood. After she saw Amiran''s dead body, someone took her out of the house. She was taken to the house of Jalil and Khalil. She could not remember if she had asked anybody about the cause of her daughter''s death. The next day at dawn she came back home. She stated that she had given her statement to the police.

The 4th Prosecution Witness, Moktar Ali Peada, deposed that he knew Amiran Bibi, who was daughter of her younger sister-in-law. Amiran was married to the accused appellant about four years back according to Islamic rites. He said that the accused appellant was his own nephew. At the time Amiran''s marriage with the accused appellant, Amiran''s father had given a gold ring, a bicycle and Rs.5,000/- in cash to the accused appellant. He stated that he had supervised the marriage. PW 4 deposed that initially the marital relationship between Amiran and the accused appellant was good. However, later the accused appellant started demanding money from Amiran. Amiran told PW 4 that the accused appellant had been demanding money from her. This witness stated that Amiran was a lady of a good nature. Her father could not meet the accused appellant''s demand for money. This deponent stated that the de facto complainant had lodged two diaries at the police station against the accused appellant and the members of his family, but the de facto complainant did not refer to any earlier complaint either in his complainant in writing or in his evidence in Court. Nothing much emerges with regard to the cause of Amiran''s death from the evidence of this witness.

The 5th Prosecution Witness, Md. Dudh Ali Mollah, was the scribe of the First Information Report. He had only seen the dead body of Amiran at her matrimonial home. He deposed that none of the family members of Amiran''s matrimonial home were found at her matrimonial home.

The 6th Prosecution Witness Mourjan Bibi, stated that she knew the accused appellant''s wife. She stated that the accused appellant''s wife died in the month of Bhadra, 1411 B.S. At the time of the incident she was in her house. Later she saw many villagers rushed to the house of the accused appellant. She too went to the house of the accused appellant. She stated that she saw Amiran''s dead body lying in front of the door of her room.

The 7th Prosecution Witness, Sri Dilip Mondal, stated that he did not know the accused appellant. He did not know the accused appellant''s wife and he did not know of any incident involving the accused appellant. This witness was declared hostile and cross-examined by the Prosecution. In cross-examination he denied having told the police that the accused appellant had told him that he had stabbed his wife all over the body. He stated that he only told the police after going to the accused appellant''s house that he had seen accused appellant''s wife lying dead with bleeding injuries on her body.

The 8th Prosecution Witness, Amir Ali Mollah, the owner of a shoe shop stated that he had heard that the accused appellant''s wife''s throat had been slit. That night he did not go to the accused appellant''s house. When he went there the body had been already removed. His evidence is based on hearsay.

The 9th Prosecution Witness, Sri Bidhan Haldar, stated that he came to know from the villagers that the accused appellant''s wife Amiran had died on cut injuries on her throat. His evidence is also based on hearsay.

The 10th Prosecution Witness, Sri Gopal Haldar, deposed that he ran a video hall. He knew the accused appellant. When he was screening a film in his video hall he had seen the accused appellant Saheb Peada, Hasem Peada and the wife of Kasem came to his hall to watch the film. After the screening of the film was over they left the hall to go home. Nothing emerges from the cross-examination of this witness.

The 11th Prosecution Witness, Imam Bari Mollah, who had only heard about the incident, said that he had gone to Amiran''s matrimonial home and seen Amiran''s dead body lying on the verandah. This witness stated that he heard that some neighbours of the accused appellant had brought down body of Amiran. He stated that he did not know who was responsible for Amiran''s death. In cross-examination he stated that neighbours had told him that Amiran had committed suicide by hanging from a rope.

The 12th Prosecution Witness, Sundari Bibi, stated that she did not know how Amiran had died. She stated that she had gone to Amiran''s matrimonial home to see her dead body. She saw the dead body of Amiran lying on the verandah. She also saw cut injury on the throat. She could not say what was the cause of Amiran''s dead.

The 13th Prosecution Witness, Moslem Mollah, stated that on 26th August, 2004 at about 2:30 p.m. she got information that Amiran had been murdered. She along with many other villagers went to Amiran''s matrimonial home. He did not see any of the accused appellants there, but he saw that many villagers had gathered. She saw the dead body with a cut on the throat.

The 14th Prosecution Witness, Shri Dipankar Sinha, was the magistrate who had held inquest over Amiran''s body. He identified the inquest report. He said that he did not see any ligature mark around the neck of the deceased. He also stated that he did not see any injury mark on the body of the deceased. He stated that he had no personal knowledge of the incident.

The 15th Prosecution Witness, Sri Dipak Kumar Biswas, a Senior Fingerprint Expert of the State of West Bengal, deposed that he had gone to Kultali Police Station in connection with Kultali Police Station Case No.74/04 dated 27.08.2004 under Section 498A/302/34 of the Indian Penal Code. He had examined a ''hansua'' which had been shown to him. He identified his report. He stated that he did not find any fingerprint in the ''hansua''. He was not in position to distinguish between ''hansua'' and ''bil hook''. He stated that hansua was given to him by the Investigating Officer. Nothing turns around his evidence.

The 16th Prosecution Witness, Dr. T.K. Ray, was the doctor who had held the post mortem report over the dead body of Amiran. The dead body had been identified by a constable Ramesh Dhali. The dead body was decomposed. He stated that he had found an incised wound at the neck. He also found a ligature mark around the neck. He also deposed that he had found fracture of the bone at the neck. The doctor opined that death was due to strangulation by ligature and homicidal in nature.

The 17th Prosecution Witness, Mangal Chandra Das, ASI, had only filled up the formal FIR on the basis of the accused appellant. The 18th Prosecution Witness, Sub-Inspector Jagadish Das, deposed that he had taken up the investigation, held inquest over the dead body and also prepared sketch map of the place of occurrence. He stated that the sketch map of the place of occurrence was not found in the case diary. He stated that an Executive Magistrate held inquest over the dead body. This witness deposed that Dilip Mondal had told him that he had ascertained Saheb Peada had stabbed his wife. However, the post mortem report reveals that the death was due to strangulation and not stabbing.

It is true that 18 witnesses have been examined on behalf of the prosecution. However, there is no evidence at all on the basis of which it may conclusively be held that the accused appellant murdered his wife Amiran.

From the evidence of de facto complainant being the maternal uncle of Amiran and the de facto complainant and the evidence of PW 3 being the mother of Amiran, it appears that they received information that Amiran had fallen ill and they went to Amiran''s matrimonial home. The 2nd Prosecution Witness being Amiran''s father however deposed that he went there after hearing of Amiran''s death. There is inconsistency in the evidence of the main prosecution witnesses as to whether they were informed that Amiran was ill or whether she was dead.

Neither of the Prosecution Witness Nos.1 and 3 could say who informed them of Amiran''s illness. The Prosecution Witness No.2 being Amiran''s father who stated that he had gone to his daughter''s matrimonial home after hearing about his daughter''s death, also did not disclose the name of the person from whom he heard of his daughter''s death.

All the witnesses who were examined apparently said that the body of Amiran was on the verandah. There is some hearsay evidence that she had been hanging. Some people had taken her down and laid her on the verandah. There is no eyewitness who saw Amiran hanging. There is no eyewitness who saw Amiran being taken down.

There is some weak evidence of the prosecution witness related to Amiran, which suggests that there had been demand for money and some dissatisfaction over the quality of the gifts given by Amiran''s family at the time of her marriage.

The oral evidence regarding demand for money is devoid of particulars. It is not in dispute that Amiran died a few years after her marriage after giving birth to a child. Amiran''s father deposed that Amiran''s relationship with the accused appellant was good at the beginning, but deteriorated later. Dissatisfaction over money and quality of gifts given at the time of marriage is not likely to have been reason for murder considering the lapse of time between her marriage and her death.

There was no charge against the accused appellant or any member of his family under Section 304-B of the Indian Penal Code which might have been attracted, if her death was a consequence of cruelty and torture in connection with demand for dowry. The Investigating Officer obviously did not find any cogent evidence of cruelty to coerce the accused appellant or members of his family to concede to monetary demands.

From the evidence it is patently clear that Amiran''s family was financially weak. Amiran''s matrimonial uncle (PW1), the de facto complainant, stated that they could not even allow Amiran to stay with them when she complained against her in-laws, and they tried to persuade her to go back to her matrimonial home because of their poverty.

It seems rather strange that the accused appellant would misbehave with Amiran and torture Amiran in order to coerce her to bring in money, when he obviously knew that Amiran''s family did not have the means to give money. Moreover, Amiran was given in marriage by her uncle. Her father had divorced her mother, remarried and had a large family. Her mother had also remarried, had four children through her second husband, and was living with her second husband. Amiran is more likely to have been tortured for some other reason.

The Prosecution Witnesses have in their evidence stated that the accused appellant had brought in another lady whom he had intended to marry. It is possible that this prompted Amiran, who had no support from her family, may be because of their poverty, to put an end to her own life. The possibility of a suicide cannot be ruled out. The evidence of some of the prosecution witnesses reveals that Amiran told them that she was subjected to torture when she objected to the other woman.

The accused appellant has in his examination under Section 313 of the Criminal Procedure Code stated that he was not there at home when the incident took place. The evidence of PW 10, the owner of the video hall, indicates that he was watching a film in his video hall. It is true that in his examination under Section 313, he denied that he went to the video hall to watch a film. This does not mean he was at home. There is no evidence that the accused appellant was at home when the incident took place.

This is a case of conviction based on circumstantial evidence. When a case rests upon circumstantial evidence, the circumstances must be cogently and firmly established and should definitely and unerringly point towards the guilt of the accused. The circumstances should form a chain so complete that it could be concluded that the crime had been committed by the accused and none else. The circumstances should be incapable of explanation and incapable of any other hypothesis other than guilt of the accused. This proposition finds support from the judgment of the Supreme Court in Shantabai and Ors. v. State of Maharashtra reported in (2008) 3 JT 130.

In the instant case, there are discrepancies in the evidence adduced by different prosecution witnesses. There is evidence that the accused appellant had brought in another lady. There is evidence that he married again. Amiran had no one to fall back upon. Her parents were divorced. Both her parents had remarried and moved on in life. Amiran''s father was living with his second wife and children through his second wife. Amiran''s mother was living with her husband and her children through her second husband. She was brought up by her maternal uncle who was too poor to take her responsibility. The possibility of a suicide by hanging cannot altogether be ruled out. The post mortem report read with the evidence of the post mortem doctor does not rule out the possibility of suicide.

Mr. Gupta appearing for the prosecution emphatically argued that the prosecution witnesses had seen cut mark on the neck which supports the contention of the de facto complainant and members of his family that Amiran was first killed and then hanged. However the post mortem report does not support this contention. There were no eye witnesses.

In fact, the post mortem Dr. T.K. Roy opined that the death was due to the effect of strangulation by ligature homicidal in nature. In cross-examination he deposed that he did not notice any tear or cut mark on the wearing apparel of the deceased. There was no blood stain noticed on the wearing apparel of the deceased. The Magistrate who held inquest also did not notice any injury as per his evidence. The answers in cross-examination suggest that the death could have been suicidal.

In our criminal jurisprudence, an accused is presumed innocent, unless proved guilty beyond all reasonable doubt. The evidence on record does not prove the guilt of the accused appellant of the offence of murder beyond reasonable doubt. It is well settled that suspicion, however strong, cannot substitute proof.

The conviction and sentence of the accused appellant under Section 302 of the Indian Penal Code cannot be sustained. The conviction and sentence of the accused appellant under Section 302 of the Indian Penal Code is set aside, along with the sentence for the said offence. The conviction under Section 498A of the Indian Penal Code is not interfered with.

The appeal is allowed to the extent indicated above.

The accused appellant may be set free.

Urgent photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.