The duty of the prosecution is to establish that there existed “proximate and live link” between the cruelty and consequential death of the victim: Calcutta High Court

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE THE HON’BLE JUSTICE TIRTHANKAR GHOSH CRR 17000 Insar Khan @ Ensat Khan vs. State of West Bengal. Mr. Satadru Lahiri Mr. Amit Banerjee Ms. Faria Hossain Ms. Sujata Das 10.06.2021 & 16.06.2021 17.08.2021 For the Petitioner For the State Heard on Judgment on Tirthankar Ghosh J: The present revisional application has been preferred against the judgment and order dated 16th May 2000 passed by the Learned Additional Sessions Judge Midnapore in Criminal Appeal No. 398 wherein the Learned Appellate Court affirmed the order of conviction and sentence dated 20.05.1998 passed by the Learned Assistant Sessions Judge 2nd Court Contai in S.T Case No. VIII January 1997. The Learned Trial Court convicted the present petitioner and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500 in default to suffer rigorous imprisonment for three months for commission of offence under Section 498A of the Indian Penal Code. The prosecution case in brief is that one Arjuman Bibi was married to Insar Khan alias Ensat Khan on or about 1396 B.S. according to Muslim Rites & Customs and after marriage the deceased went to her matrimonial home and during the subsistence of their wed lock a daughter was born. The present petitioner and his father was involved in the profession of fishing for which they required boat and net and the petitioner and his father demanded from the victim a sum of Rs. 10 000 to be paid by her father for installation of an engine at the boat. The deceased expressed her incapability of demanding such money from her father. As a result she was assaulted tortured and neglected. The petitioner expressed his intention to marry again however the father of the deceased went to her house to settle the dispute and requested the petitioner and his family members to live peacefully. On or about 28.03.1991 the petitioner and his family members attempted to kill the deceased by setting fire on her after pouring kerosene oil but the neighbours saved her however she was driven out of the matrimonial house on 29.03.1991. She was also treated at hospital and two criminal cases were filed at the instance of the deceased one for maintenance and the other for torturing her. However the said cases were compromised and the deceased returned to her matrimonial home. After two months of her return the petitioner and her family members again demanded a sum of Rs. 10 000 to which the deceased protested when she was abused and asked to commit suicide. The said dispute was settled at a salish on 12.04.1993 and on 10.05.1993 the deceased met with an unnatural death. Pursuant to an application under Section156(3) of the Code of Criminal Procedure filed at the instance of the father of the deceased namely Sk. Mainuddin Ramnagar Police Station Case No. 53 1993 was registered for investigation and on completion of investigation charge sheet was submitted under Section 498A 304B 306 34 of the Indian Penal Code and Section 3 4 of D.P. Act. On receipt of charge sheet the Learned S.D.J.M. Contai took cognizance of the offence and committed the case to the Learned Sessions Judge Midnapore and the Learned Sessions Judge by an order 30.01.1997 transferred the case to the Learned Assistant Sessions Judge 2nd Court Contai for trial and disposal. On perusal of the documents relied upon by the prosecution and after affording opportunity to the accused persons charge was framed under Section 498A 34 IPC Section 304B 34 IPC alternatively under Section 306 34 IPC. The prosecution in order to prove its case relied upon 16 witnesses and about 7 documents which included the written complaint as Ext.1 the Inquest Report as Ext. 2 signature of PW7 on the resolution dated 12.04.1993 marked as Ext. 3 1 post mortem report marked as Ext.4 formal FIR marked as Ext. 5 challan of the dead body of deceased Arjuman Bibi marked as Ext. 6 sketch map with index which was prepared by the Investigating Officer of the case marked as Ext. 7. Learned Trial Court on an assessment of the evidence adduced on behalf of the prosecution observed that PW2 to PW5 and PW8 turned hostile. According to the Learned Trial Court PW2 to PW4 are resident of village ShilampurPW5 was resident of village Sonamui and PW8 is a resident of village Kalindi. The learned Court held that all these witnesses were interested witnesses and as such they have deposed falsely. Learned Court thereafter proceeded to analyse the evidence and observed that these witnesses have purposely misrepresented before the Court and deviated from their earlier statements and as such are not at all believable. Although the Court was aware regarding the provisions of law that the evidence of hostile witnesses can also be taken into consideration while arriving at a conclusion. The Learned Trial Court relied upon the evidence of PW1 PW6 PW9 PW10 and PW11 and on an analysis of their evidence was of the opinion that so far as the issue of demand of Rs. 10 000 for purchasing of boat and net for fishing and the infliction of torture neglect upon the deceased for inability of her father to meet such demand is concerned the same is consistent in the version of all these witnesses and as such the Court cannot throw away such evidence. Additionally the Learned Court observed that the two criminal cases which were filed at the instance of the deceased which were subsequently compromised would definitely support the factum of torture added with the fact of a salish being held on or about 12.04.1993 and the unnatural death of the victim deceased on 10.05.1993 is sufficient to arrive regarding the factum of cruelty being of continuous nature. So far as the delay in lodging FIR is concerned the Learned Trial Court was of the opinion that only there were 4 days delay in reporting the incident and as such the same is of no consequence. The Learned Trial Court by its judgment was pleased to exonerate all the inmates of the matrimonial home except the present petitioner from the charges under Section 498A 304B and or Section 306 of the Indian Penal Code. However the present petitioner was held guilty only for the offence under Section 498A of the Indian Penal Code but was acquitted under Section 304B and or Section 306 of the Indian Penal Code. The Appellate Court also dealt with the issue of delay wherein the Appellate Court after analyzing the evidence of PW1 categorically held that the circumstances under which delay has occurred in initiation of the case has been properly explained and as such the same is not fatal to the prosecution case. The Appellate Court also took into consideration the evidences of PW1 and PW6 and observed that in the inquest report it has been mentioned as U.D. Case No. 19 1993 dated 10.05.1993 so the recording of some of the dates by the Learned Trial Court are minor typographical errors which should be ignored. The Appellate Court was also pleased to take into account the close proximity of time of salish held on 12.04.1993 and the unnatural death of the victim on 10.05.1993 and came to a similar finding that there has been torture of continuous nature which points to the guilt of the present petitioner and as such was of the opinion that the finding arrived at by the Learned Trial Court cannot be interfered with thereby dismissing the appeal. Mr. Satadru Lahiri Learned Advocate appearing for the appellant submitted that there was manifest error gross illegality and total non appreciation of evidence by both the Courts below which calls for interference by this Court. Learned Advocate also submitted that the prosecution has withheld best evidence which disproves the allegation of torture due to dowry or subjecting the deceased to ‘Cruelty’ which is without any foundation. The birth of the daughter raises a presumption that there was no dispute so far as the conjugal relationship is concerned. Further he submitted that no document were there regarding the earlier two cases which were registered at the instance of the victim. The learned Trial Court emphasized that as there is no intention of any cruelty upon the deceased the conviction under Section 498A of the Indian Penal Code is unwarranted more so because of the fact that both the courts below could not find any material for convicting the petitioner either under Section 304B of the Indian Penal Code or Section 306 of the Indian Penal Code. The Learned Advocate relied upon the following judgments: Kantilal Martaji Pandor Vs. State of Gujarat & Anr. 8 SCC 781 Atmaram Vs. State of Maharashtra 12 SCC 286 Anil Kumar Choulia Vs. State of West Bengal 3 CHN 276 Bhaskar Ramappa Madar & Ors. Vs. State of Karnataka 11 SCC 690 Sakharam and Anr. Vs. State of Maharashtra 12 SCC 368 Jagdishraj Khatta Vs. State of Himachal Pradesh 9 SCC 248 Govindaraju alias Govinda Vs. State 4 SCC 722 Anil Phukan Vs. State of Assam 3 SCC 282 Govindaraju alias Govinda Vs. State 4 SCC 722 Mohd. Hoshan A.P. and Anr. Vs. State of A.P. 7 SCC 414 Gulmahmad Abdulla Dall Vs. State of Gujarat 15 SCC 506 and Tomaso Bruno Anr. Vs. State of Uttar Pradesh 7 SCC 178. Learned Advocate Ms. Faria Hossain appearing for the State supports the judgment delivered by the Trial Court being affirmed by the Appellate Court and submitted that the close proximity within which the salish had taken place and there was unnatural death of victim deceased unerringly points to the guilt of the present petitioner. She further submitted that the judgment delivered by the Learned Trial Court as also the Appellate Court are on foundation of factual appreciation and no manifest error from the evidence could be pointed out by the petitioner calling for interference of this Court calling in order to invoke revisional jurisdiction. The Learned Advocate relies upon the following judgments: Surinder Singh Vs. State of Haryana 4 SCC 129 and Harish Kumar Vs. State of Haryana 2 SCC 601. In the case of Kantilal Martaji Pandor Vs. State of Gujarat & Anr. reported in 8 SCC 781 relied upon by the Learned Advocate appearing for the petitioner the Hon’ble Apex Court was dealing with a case where no evidence surfaced regarding harassment being inflicted by the husband with a view to meet any unlawful demand of any property or valuable security or on account of failure to meet such demand. This is a distinguishable fact which is appearing in paragraph 13 of the said judgment and in paragraph 19 and 20 of the said judgment it has been categorically observed by the Hon’ble Apex Court that from the deposition of mother of the victim it has been found the deceased was neither subjected to any financial exploitation nor she was facing food problem or any mental cruelty have been inflicted upon her. In Atmaram Vs. State of Maharashtra reported in 12 SCC 286 the fact of the case is distinguishable as in paragraph 12 of the said judgment it has been categorically observed that there was no demand for any property or valuable security and for the said purpose the victim was subjected to harassment. Further a reference to paragraphs 16 17 and 18 of the said judgment reflects that there was a factual variation between the deposition of the father of the deceased and the documentary evidence relied by the prosecution as the allegation of starvation was contrary to the post mortem report which reflected that the deceased at the time of post mortem examination was found to be ‘well nourished’. In Anil Kumar Choulia Vs. State of West Bengal reported in3 CHN 276. The Court was of the view that the charge which was framed was defective and according to the opinion of the Court it was because of frail health the mental set up of the victim was disturbed and the prosecution could not properly explain the fact of suicide. In the present case demand for dowry has been well established and corroborated by different witnesses. In Bhaskar Ramappa Madar & Ors. Vs. State of Karnataka reported in 11 SCC 690 the Hon’ble Apex Court was dealing with a case where the Trial Court on materials acquitted the accused persons and the High Court in an appeal by the State reversed the order of acquittal. Paragraph 21 of the said judgment categorically states that there was no analysis of the conclusion arrived at by the Trial Court and as such the interference with an order of acquittal by the High Court was held to be bad in law. In Sakharam and Anr. Vs. State of Maharashtra reported in12 SCC 368 the Hon’ble Supreme Court in fact appreciated the evidence in the facts of the said case and was of the opinion that there was a tendency to rope in all relations of the in laws of the deceased wife in the maters of dowry death this feature is clearly distinguishable in the present case as in the instant case only the conviction and sentence of the husband is under In Jagdishraj Khatta Vs. State of Himachal Pradesh reported in 2019) 9 SCC 248 the Hon’ble Apex Court was dealing with a case wherein the appellant was acquitted by the Trial Court and the High Court on the re appreciation of the evidence was pleased to convict and sentence the appellant. The Hon’ble Supreme Court while coming to its own findings mainly made factual appreciation to the extent that the case rested on the version of the witnesses wherein the allegations were made before the Court and were never raised by the family of the deceased when they were present at the time of preparation of the inquest report or to the Investigating Officer. The other point in which the Hon’ble Apex Court refused to accept the view of the High Court is regarding the letter which was accepted by the High Court to be sacrosanct and which was never proved before the learned Trial Court. The aforesaid two issues are distinguishable from the facts of the present case and as such cannot be relied upon. In Govindaraju alias Govinda Vs. State reported in 4 SCC 722 and Anil Phukan Vs. State of Assam reported in 3 SCC 282 the Learned Advocate for the petitioner relied upon the same in order to emphasize regarding the conduct of the witnesses. The conduct of the witnesses so far as the present case is concerned has been dealt with by the Trial Court and this Court finds no anomaly to such finding. The learned Advocate has also tried to stress upon the issue of withholding of the best witness. However if the materials which have been placed before the Court are sufficient enough to come to a finding then in that case it was incumbent upon the accused at the trial to show that the non production of a particular witness has prejudiced the accused. In Tomaso Bruno & Anr. Vs. State of Uttar Pradesh reported in 2015) 7 SCC 178 relied upon by the learned Advocate for the petitioner the Hon’ble Apex Court was appreciating a case of circumstantial evidence but the question arose whether the assailant and the victim were staying at the hotel room under such circumstances the availability of CCTV footage was an issue and omission to produce the same was held to be vital to the prosecution case on the principle of withholding of the best evidence and the prosecution case was held to be un reliable. The factual circumstances in this case are completely different as there is no issue whether the husband and the deceased wife were staying at the matrimonial home and also whether the other evidences so available in the case are sufficient enough to arrive at a finding of guilt so far as the present petitioner is concerned. The applicability of the aforesaid case as such did not appear to be relevant so far as the present case is concerned. The learned Advocate for the petitioner thereafter referred to Mohd. Hoshan A.P. and Anr. Vs. State of A.P. reported in7 SCC 414 and Gulmahmad Abdulla Dall Vs. State of Gujarat reported in15 SCC 506 for relying upon the issue of sentencing. This would be considered later on once this Court arrives at a finding whether the courts below were correct while arriving at their conclusion and whether the sentence was excessive. In Surinder Singh Vs. State of Haryana reported in4 SCC 129 the facts of the case reflect that the wife died within a period of 94 days of marriage. The Hon’ble Apex Court was pleased to affirm the order of conviction under Section 498A of the IPC as well as under Section 304B of the Indian Penal Code and the same was based on the evidence of the brother of the deceased which were found to be reliable and which corroborated the factum of dowry demand. Although this case was initiated Under Section 498A and 304B of the Indian Penal code but the learned Courts below have been pleased to convict the present petitioner only under Section 498A of the Indian Penal Code and the State has not approached this Court in appeal against the order of acquittal so far as the offence under Section 304B of the Indian Penal Code is concerned or the alternative charge which was framed under Section 306 of IPC as such the manner in 12 which the Hon’ble Apex Court arrived at its finding on the factual matrix of the said case is difficult to be applied in the present case. In Harish Kumar Vs. State of Haryana reported in2 SCC 601 the Hon’ble Apex Court by relying upon the dying declaration of the deceased was pleased to acquit the accused persons from the charges under Section 304B of the Indian Penal Code. In this case the Court after acquitting the accused under Section 304B of the Indian Penal Code opined that the offence under Section 498A of IPC has been proved and as such convicted the accused appellant therein for the said offence. As such the applicability of the said case is also not relevant so far as the present case is concerned. In course of argument the learned Advocate for the petitioner tried to emphasize on the issue that as the petitioner was acquitted from the charges under Section 304B of the Indian Penal Codethe allegation of ‘cruelty’ no longer existed and as such the conviction under Section 498A of the Indian Penal Code is not maintainable. Such proposition is countered by the learned Advocate appearing for the State. Here it would be pertinent to refer to the decision of the Hon’ble Supreme Court in Gurmeet Singh Vs. State of Punjab reported in 2021 SCC OnLine SC 403 wherein reference has been made to the earlier judgment of the Hon’ble Supreme Court in Kamesh Panjiyar V. State of Bihar 2 SCC 388 for the purpose of the present case the relevant part which has been relied upon is set out as follows: “…..It is to be noted that Sections 304 B and 498 A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved.” Thus it was held that although cruelty is a common thread existing in both the offences however the ingredients of each offence are distinct and must be proved separately by the prosecution. The argument so advanced by the petitioner to this effect as such is not acceptable to this On an overall appreciation of the judgments so delivered by the learned Trial Court as also that of the Appellate Court in my considered view so far as the appreciation of facts of the case is concerned the learned courts below did not commit any illegality and has scrupulously adhered to the basic principles of evidence while arriving at their conclusion. In this case there has been consistent and corroborating evidence regarding the demand of Rs. 10 000 for the purchase of materials relating to purchase of fishing boat net engine and such demand was made from the father of the deceased through the deceased and which on appreciation of evidence reflects the infliction of torture

Summary: “Although cruelty is a common thread existing in both the offences; however, the ingredients of each offence are distinct and must be proved separately by the prosecution”, held the Hon’ble High Court at Calcutta before the Learned Hon’ble Justice Tirthankar Ghosh in the matter of Insar Khan @ Ensat Khan vs. State of West Bengal [CRR 1704 of 2000]. The facts of the case come through a revisional application which had been preferred against the judgment and order dated 16th May 2000, that was passed by the Assistant Sessions Judge, 2nd Court, Contai. The Learned Trial Court convicted the petitioner and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for three months for the commission of an offense under Section 498A of the Indian Penal Code. The case relates to the incident wherein Insar Khan (petitioner) was married to Arjuman Bibi and had a daughter during their wedlock. The petitioner and his father were involved in the profession of fishing, in which they required a boat and net and thus, the petitioner and his father demanded a sum of Rs.10,000/- from Arjuman Bibi (victim) for the installation of an engine at the boat. On refusing to pay such an amount, the victim was assaulted, tortured, and neglected. On 28.03.1991, the petitioner and his family members attempted to kill the victim by setting fire on her upon pouring kerosene but the neighbors saved her, and hence, she was driven out of the matrimonial house on 29.03.1991. She was also treated at the hospital and two criminal cases were filed at her instance, one for maintenance and the other for torturing her. After two months of her return, they again demanded a sum of Rs.10,000/- to which the victim protested, and hence, she was abused and was asked to commit suicide. Such dispute was settled at a salish on 12.04.1993 and on 10.05.1993, the victim met with an unnatural death and died. An application under Section 156(3) of the Code of Criminal Procedure was filed by the father of the deceased at Ramnagar Police Station, who registered the matter for investigation and produced an investigation charge-sheet under Section 498A, 304B, 306, 34 of the Indian Penal Code and Section 3, 4 of the Dowry Prohibition Act. Finally, as per the order dated 30.01.1997, the Learned Assistant Sessions Judge Midnapore charged the accused persons under Section 498A/34 IPC, Section 304A/34 IPC alternatively under Section 306/34 IPC. The prosecution tried to prove its case relying on 16 witnesses and 7 documents, including the written complaint, Inquest Report, signatures on the resolution dated 12.04.1993, post-mortem report, formal FIR, challan of the dead body of the deceased, sketch map with an index which was prepared by the Investigating Officer of the case. Among these witnesses, five had already turned hostile and deposed falsely. Hence, the Learned Court proceeded to analyze the evidence and observed that these witnesses had purposely misrepresented before and deviated from their earlier statements and they weren’t believable. There was also an instance of delay in lodging the FIR, which was cleared by the Hon’ble Court. The Learned Trial Court was pleased to release the inmates of the matrimonial home except for the petitioner from the charges under Section 498A/304B and/or Section 306 IPC. However, he was held guilty only for the offense under Section 498A of the IPC but was acquitted under Section 304B and/or Section 306 of the IPC. Learned Advocate, appearing for the appellant, submitted that there was a manifest error, gross illegality, and total non-appreciation of evidence by both the Courts below which led to the interference of the Hon’ble Court. He also submitted that the prosecution had withheld best evidence that disproved the allegation of torture due to dowry or subjecting the deceased to ‘Cruelty’ which was without any foundation. Furthermore, it had been claimed that there was no document regarding the earlier two cases which were registered at the instance of the victim. On the other hand, the Learned Advocate appearing for the State supported the judgment and submitted proximity within which the salish had taken place and there was unnatural death of the victim/deceased which unerringly pointed out to the guilt of the present petitioner. She further submitted that the judgment delivered by the Learned Trial Court and that of the Appellate Court were both on the foundation of factual appreciation and no manifest error from the evidence could be pointed out by the petitioner calling for the interference of the Hon’ble Court concerning to invoke the revisional jurisdiction. The Learned Advocate for the petitioner tried to emphasize the issue that since the petitioner was acquitted from the charges under Section 304B IPC, the allegation of ‘Cruelty’ no longer existed and as such, the conviction under Section 498A of the IPC was not maintainable. Such a proposition was challenged by the Learned Advocate for the State. Thus, the Hon’ble Court held that, “…although cruelty is a common thread existing in both the offences; however the ingredients of each offence are distinct and must be proved separately by the prosecution.” Adding to that, it was stated that the argument put forth by the petitioner was not acceptable to the Court. The Hon’ble Court expressed its appreciation towards the judgments delivered by the Learned Trial Court and the Appellate Court, implying that they did not commit any illegality and had scrupulously adhered to the basic principles of evidence while delivering such judgments. The Hon’ble Justice Tirthankar Ghosh clearly stated that there had been consistent and corroborating evidence regarding the demand of Rs.10,000/- for the purchase of materials relating to the purchase of fishing/boat/net/engine and such demand was made from the father of the deceased and which on appreciation of evidence reflected the infliction of torture. Concerning the existence of demand for dowry, the Hon’ble Court was convinced that the term “soon before her death” could not be interpreted as “immediately before”. The Hon’ble Court opined that no interference was called for regarding the finding of guilt and such factors were established by evidence in the leaned courts.