Setab Sk. and Others vs The State of West Bengal

Nadira Patherya, J.—This appeal arises out of the order of conviction and sentence dated 20th July, 2012 and 23rd July 2012 passed by the Additional Sessions Judge, Jangipur, Murshidabad in Sessions Trial No. 15 (03)/2003 arising out of Sessions Serial No. 77/03 whereby and whereunder the appellants who are four in number were convicted and sentenced for the offence under Sections 498A and 302 /34 I.P.C.

For the offence under Section 302 /34 I.P.C. the appellants were sentenced to imprisonment for life and fine of Rs. 5,000/-, in default rigorous imprisonment for six months and for the offence under Section 498A I.P.C. the appellants were sentenced to imprisonment for two years and fine of Rs. 1000/-, in default rigorous imprisonment for further two months. The said sentences were to run concurrently. The appellant no. 1 is the husband of the victim girl while the appellant no. 2 is her mother-in-law, appellant no. 3 is her brother-in-law and the appellant no. 4 is her sister-in-law (Nanad). Appellant nos.2, 3 and 4 have been released on bail.

The case of the prosecution is that the victim girl and the accused appellant were married for the last 8 years according to Muslim rites and customs. After marriage the victim girl resided in her matrimonial home. At the time of marriage the defacto complainant gifted articles and cash to the victim girl and her husband. Out of the wedlock three children were born. Inspite thereof, torture was inflicted on the victim girl the reason being demand for money. This was informed by the victim girl to the family members of her paternal house, and on 4-5 occasions the demand was satisfied by the defacto complainant by taking loans from different persons so that torture may be discontinued, but the degree of torture increased. Four days prior to the death of the victim girl the defacto complainant went to bring her to the paternal home but she was not allowed to accompany him until the demand of dowry was fulfilled. It was at about 12 noon of 5th March, 2002 when the defacto complainant was informed of his daughter being hospitalised. Immediately the defacto complainant left for the hospital and on reaching the hospital found the victim girl lying dead. A written complaint was filed with the Raghunathganj Police Station by the defacto complainant and Raghunathganj P.S Case no. 18/2002 dated 5th March, 2002 under Sections 498A /304 /34 I.P.C. was registered. Investigation was undertaken, inquest made so also postmortem conducted. Reports were filed and thereafter charge-sheet submitted under Sections 498A , 304 /34 I.P.C. against the appellants. Thereafter, the case was committed to the Court of Sessions where it was registered as Sessions Serial No. 77/2003. Thereafter, the case was transferred to the Court of the Additional Sessions Judge, Jangipur, Murshidabad and renumbered as Sessions Trial No. 15(03)/2003 when charges were framed against the appellants for the offence punishable under Sections 498A , 302 /34 of the I.P.C. On charges being read over and explained to the appellants, each pleaded not guilty and claimed to be tried.

At trial, prosecution examined 12 witnesses and adduced both oral and documentary evidence. The defence did not adduce any evidence either oral or documentary. The accused appellants were examined under Section 313 Cr.P.C. On consideration of the oral and documentary evidence the order of conviction and sentence was passed under Sections 498A and 302 /34 I.P.C. Being aggrieved by the said order of conviction and sentence this appeal has been filed.

Counsel for the accused appellants submitted that the incident occurred on 5th March, 2002 and the F.I.R. was filed by the father (P.W.1) of the victim girl on the same date at 15:15 hours.

P.W.2 is the scribe of the F.I.R. The victim girl and the accused appellant no. 1 were married for 8 years and had three children out of the wedlock. The inquest was made on 6th March, 2002 at 8:00 a.m., in U.D. Case No. 32/2002 dated 5th March, 2002 and P.S. Case No. 18/2002. P.W.8 prepared the inquest report and P.W.9 and P.W.10 are witnesses to such inquest. From the sketch map it will appear that the house of Abdul Hamid, Badrul Sk., Md. Zuraiuddin and Sohrab Sk. though close to the place of occurrence, none of the said persons were examined. The witnesses can be classified into two categories:- relatives and formal. P.W.1 (Father), P.W.3 (Kaka), P.W.4 (Kaka), P.W.5 (Brother of the victim girl), P.W.6 (Mother of the victim girl) are all relatives and, therefore, interested persons. P.W.2 (Scribe), P.W.8 (1st I.O.), P.W.9 (Signatory to inquest), P.W.10 (Signatory to inquest), P.W.11 (Seizure list witness) and P.W.12 (2nd I.O.) are formal witness. P.W.7 is the Postmortem Doctor.

It is P.W.1, P.W.3, P.W.4, P.W.5 and P.W.6 who have sought to prove the case of torture under Section 498A I.P.C. by canvassing the case of demand for money. There is discrepancy in the amounts mentioned by each of the related witnesses. P.W.1 the defacto complainant has not mentioned the amount given by him as dowry. All that he has said is that there was physical torture for demand of further money. No amount has been specified by him.

P.W.3 has fixed the amount at Rs. 10,000/- and payment thereof to the accused appellant no. A-1. But this according to the I.O. was not stated by him in his 161 statement. Therefore, he ought not be believed. P.W.4 has spoken about not only the demand of Rs. 10,000/- but also demand for money and articles equivalent to that given in the marriage of the sister of the victim girl by the defacto complainant. P.W.5 has spoken of demand of money which was paid three years after the marriage. There is no mention of recent demand. P.W.6 (Mother) has spoken of torture being inflicted on the victim girl for non-fulfillment of demand for further money although a sum of Rs. 10,000/- was paid after three years of marriage. Further torture according to her was also inflicted on the victim girl for demand of further money and articles equivalent to that given in the marriage of the victim girl''s sister.

The relation between the victim''s mother and her in-laws was cordial. This will be evident from the fact that the victim''s in-laws were present in the wedding of her younger sister. The money spent at the time of the victim''s younger sister''s marriage was huge and this affected both her in-laws and the victim, which created an inferiority complex in the mind of the victim girl and this prompted her to commit suicide.

P.W.5 in his evidence has denied the case of suicide pursued by the defence and when matched with the evidence of the I.O. (P.W.8) it will appear that P.W.5 stated to the I.O. (P.W.8) that his sister had tried to kill herself by hanging. P.W.6 (Mother) has categorically stated that the accused appellant had killed the victim girl by assaulting her. This was also told by her to P.W.8 (I.O.) which has been denied by the I.O. in his cross-examination. The charge under Section 302 I.P.C. has not been substantiated by the Postmortem Doctor (P.W.7). The doctor is silent with regard to the cause of death and it is doubted whether the injury was sufficient to cause the death of the victim girl.

There were three houses nearby, but the inmates of none of the houses were examined. Although Md. Zurauddin was cited, but he was not examined. P.W.3 to P.W.6 are relatives of the victim girl, therefore, interested witnesses and there is every possibility of exaggeration being made. The I.O. has categorically stated that no case of dowry demand was made before him and it was for the first time in Court that the case of demand for Rs. 10,000/- has been canvassed. P.W.1 has also not mentioned the amount demanded in the F.I.R. P.W.7 does not support the case of the prosecution. The place of occurrence has not been ascertained as there was no statement with regard to the cause of death, when and where it was caused. Similarly, how the death was caused has also not been projected in the manner it should have been done. P.W.3 is the Kaka (uncle) who for the first time was examined in Court. Therefore, his evidence cannot be relied on. There is also no evidence forthcoming with regard to who took the victim to the hospital. Deviation from the original case sought to be proved by the prosecution is not permitted. P.W.4 is another Kaka (uncle) who was close to the victim girl and he does not know the name of the victim''s children. As the victim girl and the husband resided in a village area, with the help of neighbours and Salishi the marriage could have been restored, in case it was troubled. The time of death is not certain. No papers from the hospital were seized. Therefore, benefit of doubt be given to the accused appellants.

P.W.1 has also not stated the time when he reached the hospital. Therefore, presumption under Section 114(g) of the Evidence Act, must go in favour of the accused appellant. In the F.I.R. the defacto complainant has categorically stated that at the time of marriage he gave utensils, furniture and cash to the accused appellant no. 1. Further demand was made which was satisfied three years after marriage. The death took place after eight years of marriage. Therefore, the demand cannot be the reason for death of the victim girl. The quantum of Rs. 10,000/- finds no mention in the F.I.R. nor has it been stated by P.W.1 in his evidence. The story of demand of Rs. 10,000/- starts with the evidence of the P.W.3 (Kaka) whose statement was not recorded by the I.O. and who deposed for the first time in Court. The prosecution witnesses have led a case of suicide. Although P.W.1 was informed, but the source is not known. The inquest examination on the dead body of the victim was done in U.D. Case no. 32 of 2002 and Raghunathganj P.S. Case no. 18 of 2002 on 5th March, 2002 by P.W.8, S.I. Palan Chandra Mistry. The inquest was made on 6th March, 2002 at 8:00 a.m. while postmortem was conducted at 2:00 p.m. on the same date. At the time of inquest no marks of injury was found except the red mark of assault. The prosecution has not been able to prove its case under Section 498A I.P.C.

Since after the time of marriage demand made was satisfied after three years of marriage. The death occurred five years thereafter. But the evidence of the related or interested witnesses is silent with regard to the dowry demand in between the marriage and that three years. It is only the interested and related witnesses who have supported the case of the prosecution. Therefore, exaggeration cannot be ruled out. No neighbours were examined as regards the demand of further dowry. The case of each related witnesses is nothing but an embellishment. It is not for the accused appellant to prove the case beyond reasonable doubt. The cause of death and time of death has not been proved by the prosecution beyond reasonable doubt. Discrepancies have crept into the evidence of the prosecution witnesses. P.W.5 in his evidence has stated that he told the I.O. that the accused appellants killed the victim girl by assaulting her, while the I.O. in his evidence has stated that P.W.5 told him that the victim girl tried to kill herself by hanging. The demand for dowry according to P.W.1 was in view of the grand wedding of his younger daughter, Rs. 10,000/- was the demand but his evidence is silent in respect thereof. There is also no mention of the said sum in the F.I.R. According to the I.O. eight witnesses were examined and their statements recorded at the place of occurrence, but all the eight witnesses were not examined. One of them being charge-sheeted witness no. 9 was not forwarded. The Postmortem doctor has not ascertained the cause of death. Vital witnesses like the children of the victim girl, neighbours and independent witnesses have not been examined. Time of death has not been fixed, place of occurrence has not been fixed and who brought the victim girl to the hospital is not known. Therefore presumption arises under Section 114(g) of the Evidence Act in favour of the accused appellant.

He further argued that it is a case of circumstantial evidence as there is no eyewitness, but the chain is not complete, the evidence of the witnesses suffers from embellishment, the quantum of demand after three years was satisfied and the death took place five years thereafter, therefore, demand cannot be a reason for the death of the victim girl, the time of demand has not been fixed, the time of marriage of the younger sister has also not been fixed according to P.W.1, the F.I.R. maker. It was further argued that the marriage of the younger daughter was opulent, but the relation between the in-laws and the F.I.R. maker was cordial as will appear from the evidence of P.W.1 and P.W.3.

It was further argued that on 6th March, 2002 at 17:55 hours from Jangipur S.D. Hospital the wearing apparels of the victim lady was seized but it will appear from the seizure list that the postmortem was done at 14:00 hours on the same date and, therefore, it is unbelievable that the seizure would have been made at 17:55 hours. It was also claimed that the U.D. case was started on 5th March, 2002 at 15:15 hours, inquest was done on 6th March, 2002 at 8:00 a.m. while the incident occurred on 5th March, 2002 at 12 noon. There is no reason for delay in making inquest especially in view of Section 174 Cr.P.C. The postmortem was conducted on 6th March, 2002 at 14:00 hours when semi-digested food was found in the stomach.

The F.I.R. was filed on 5th March, 2002 according to which the victim girl expired before 12 noon on the fated day. At the time of inquest the death of the victim girl has been fixed at 10:30 a.m. on 5th March, 2002. The F.I.R. was received and the U.D. case was started on 5th March, 2002 at 15:15 hours. The time of death recorded in the inquest report is incorrect so also the time recorded of receipt of the F.I.R. as the inquest was made at 8:00 a.m. on 6th March, 2002. In fact, the victim girl was alive at 15:15 hours on 5th March, 2002 as no rigor mortis was detected at the time of postmortem at 14:00 hours on 6th March, 2002. Delay in making inquest indicates that the victim girl was alive at 15:15 hours on 5th March, 2002.

There is no explanation for non-production of BHT or admission documents of the hospital, therefore, the presumption under Section 114(g) is in favour of the accused appellant. Md. Zuraiuddin Sk. though cited as charge-sheeted witness no. 9, has not been examined. The prosecution witnesses are relatives and are, therefore, interested. All the witnesses came to the place of occurrence after the incident. The inquest and the postmortem was conducted in the hospital. There is no mention of the inquest in the written complaint. Both P.W.9 and P.W.10 found the body on the hospital bed which is not mentioned in the inquest which was conducted at the hospital morgue, on a stretcher. As the chain is not complete, therefore, Section 106 will not come into play. It is not opined by the postmortem doctor whether the death was homicidal or suicidal.

The postmortem doctor in his evidence so also in report has not mentioned the cause of death. If the report is not complete, therefore, the crime cannot be fixed to the accused. The prosecution failed to produce the medical documents which would have proved the cause of death and, therefore, the said case goes in favour of the accused and presumption under Section 114(g) of the Evidence Act is in favour of the defence. The charge was altered from 304 to 302 I.P.C. and there is no reason in the order sheet for such alteration.

Reliance is placed on Mamfru Chowdhury and Others Vs. Emperor, for the proposition that it is for the prosecution to prove the case as made out by it. In Sharad Birdhichand Sarda Vs. State of Maharashtra, the importance of the evidence of related witnesses has been discussed. 2004 (1) CHN 125 deals with effect of non-examination of children and Shambu Nath Mehra Vs. The State of Ajmer, deals with Section 106 which is an exception to Section 101 of the Evidence Act, and is applicable only in cases where prosecution has proved its case. Presumption is to be drawn from the facts and not on assumption as held in Suresh Budharmal Kalani @ Pappu Kalani Vs. State of Maharashtra, has specifically held that there it is always a tendency to falsely implicate the husband. Reliance is also placed in Sucha Singh Vs. State of Punjab, and Vikramjit Singh @ Vicky Vs. State of Punjab, for Section 106 of the Evidence Act. Therefore, in view of the aforesaid the order of conviction and sentence be set aside.

In opposing the said appeal, Counsel for the State submits that non-fulfillment of demand, resulted in torture and ultimately death of the victim girl. The factum of demand is present and supported by the evidence of P.W.1. Demand has also been corroborated by P.W.3, P.W.4 and P.W.5 and there is no reason to reject the evidence of related witnesses. It is to be seen whether such evidence is admissible or not.

P.W.1 in his cross-examination has stated that he tried to bring the children of the victim girl. That the victim girl died in her matrimonial home has been accepted by the defence. The sketch map has not been disputed. Therefore, Section 106 comes into play. The postmortem doctor found bleeding from the larynx and the glottis. Injury was found around the neck. No alibi was taken and there is no explanation forthcoming under Section 106 I.P.C. Therefore, the accused appellant cannot be acquitted.

(2013) 15 SCC 298 has dealt with the evidentiary value of related witnesses. In 2000 SCC (Cri) 222 it has been held that trivial discrepancy in the statement of witness ought to be ignored. It is true that Section 106 of the Evidence Act cannot be made the basis of the prosecution''s case as held in 2014 (12) SCC 211, but the accused must explain the circumstance. Therefore, Setab is answerable. There is however no evidence against the other accused.

In reply Counsel for the appellants submits that all the accused appellants have been tagged together. The case of each has not been considered in isolation which exercise was necessary for the Trial Judge to undertake.

Having considered the submission of the parties the accused appellant and the victim girl were married for eight years and had three children. P.W.1, P.W.2, P.W.3 and P.W.4 have each categorically deposed about further demand of money and for non-payment the victim girl was subjected to physical torture. P.W.5 has also corroborated such demands made. P.W.4 and P.W.5 have stated that such demands were made after three years of marriage of the victim girl and were satisfied. The demand was once again made after the marriage of the younger sister of the victim girl. According to the evidence of P.W.5 the said marriage of the younger sister of the victim girl was done in a grand manner and seeing the grandeur of the marriage the accused appellant again started making demand and inflicted torture. This has been corroborated by P.W.4 and P.W.6 (Mother). The corroboration by P.W.4 with regard to the demand being renewed looking at the grandeur of the marriage of the victim''s younger sister could not be shaken by the defence. The marriage of the victim girl''s sister was attended by the in-laws of the victim girl and it is only after seeing such grandeur the demand was made once again. This fact will only be known to the relatives of the victim girl and not to any third party as it is the relatives who were to satisfy the demand. Therefore, looking at the evidence of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 though related witnesses, their respective evidence cannot be brushed aside on the ground of them being interested alone if their credit worthiness cannot be dislodged independently. The evidence of none of the abovementioned witnesses could be shaken by the defence. Therefore, the prosecution was able to prove the case under Section 498A I.P.C.

The next issue to be considered is whether the victim girl was strangulated to death for not meeting such demand made by the accused appellants. There is no eye witness to the incident and the instant case is based on circumstantial evidence. That the victim girl and the accused appellant were married for eight years is not disputed. Initially after the marriage there was a demand for money, which demand was satisfied three years after the marriage. For the next few years things were peaceful till the marriage of the victim girl''s younger sister. Seeing the grandeur of the younger sister''s marriage the demand for money and articles was once again made which on not being satisfied, resulted in the death of the victim girl.

This chain of events has been linked without being de-linked. That the victim girl met her death at her matrimonial home will be evident from the sketch map wherein the place of occurrence has been identified and accepted by the defence. All that the postmortem doctor has opined is that the death was due to asphyxia being ante mortem in nature. The final opinion was to be given after the viscera report was received but the viscera though sent, no report was collected by the I.O. as will appear from the evidence of P.W.12. Mere non-mention of the cause of death by the postmortem doctor will not warrant setting aside of the order of conviction, more so, when the postmortem doctor has mentioned the internal appearance of the body which he found on dissection. The postmortem doctor found the following:-

"(i) Right and left lungs were congested.

(ii) The larynx and trachea were congested and bleeding from glottis.

(iii) The brain was also congested.

(iv) The left cornual of hyoid bone was found fractured.

(v) A ligature mark was also found around the neck above the thyroid cartilage."

These according to the 24th edition of Modi on Medical Jurisprudence and Toxicology will be found in a case of strangulation. According to him in a case of hanging sought to be pursued by the defence, the ligature mark will be found high up in the neck between the chin and the larynx. This is not so in the instant case. In cases of hanging, according to Modi the neck will be stretched and elongated but not so in a case of strangulation. The internal appearance and fracture of the hyoid bone suggests that death was caused by strangulation. Therefore, the prosecution was able to prove its case and having proved its case Section 106 of the Evidence Act comes into play. It is nobody''s case that the victim girl met her death outside the matrimonial home. Therefore, having met her death in her matrimonial home the burden shifted to the accused appellant to explain how the death occurred. No explanation has been forthcoming. No alibi has also been taken by the accused appellant. This is another incriminating factor against the accused appellant. The case initiated initially was under Sections 498A /304 /34 I.P.C. which at the time of framing of charge was converted to Sections 498A /302 /34 I.P.C. According to Counsel for the accused appellant there was no reason ascribed in the order sheet for such alteration.

Initially the case was initiated under Sections 498A /304 /34 I.P.C. on the basis of the inquest report wherein it was stated that the victim girl was compelled to kill herself by hanging on account of demand of money. It is during investigation that it was found to be a case under Section 302 and charge was framed under Section 498A coupled with Sections 302 /34 I.P.C. Therefore, there has been no infraction in converting the sections as mentioned above and the argument sought to be pursued by defence Counsel cannot be accepted.

For all the reasons aforesaid, this appeal merits no order and is accordingly dismissed. There is no dispute with the proposition laid down in Mamfru Chowdhury and Others Vs. Emperor, , Shambu Nath Mehra Vs. The State of Ajmer, , Suresh Budharmal Kalani @ Pappu Kalani Vs. State of Maharashtra, . Related witness will not always mean interested witness and only for this reason the evidence of related witness cannot be rejected. It has been accepted by the Counsel for the prosecution that the appellant no. 1 alone is answerable and none else. In fact, there is no evidence also against the other appellants. Accordingly, on the basis of the submissions made by Counsel for the prosecution, the appeal as against the appellant nos. 2, 3 and 4 stands dismissed.

Let a copy of the judgment passed this day along with the L.C.R. be sent to the Court below for taking necessary steps.

The appellant nos. 2, 3 and 4 pursuant to orders passed were released on bail. Let the bail bonds be affirmed.

The seized articles kept as alamat be destroyed after the period of limitation.

Let a photostat copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.

Indrajit Chatterjee, J.

I agree.