Sk Momrej Vs State of West Bengal

The subject appeal is directed against judgment and order of conviction dated 30^th August, 2010 and 31^st August, 2010 passed by the learned Additional Sessions Judge, Fast Track, 1^st Court, Haldia, Purba Medinipur in Sessions Trial No. 33 of 2007. The appellant was convicted under Section 302 read with Section 34 of the IPC.

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THE PROSECUTION CASE:

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The victim Muktara Bibi was married to the appellant Sk. Momrej

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for some time prior to 21^st April, 2004. The victim and the appellant were issueless. They adopted a male child. The victim was often taunted and tortured by the family of the appellant and the appellant himself for

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being unable to bear a child. The family of the appellant proposed to a second marriage for him. This was objected too by the victim.

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On 21^st April, 2004, the brothers and parents of the victim were participating in a festival at an open ground in the village of their residence, namely, Suklachak. At that point of time, a rickshaw van puller called Sk. Moti, arrived at the festival ground and announced that the victim was burnt and was in a critical condition in her house at village- Bhangagara.

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Upon coming to know of the same, the brothers of the victim and their mother rushed to the marital house of the victim at villageBhangagara. They upon reaching the P.O. found the victim lying on a cot in a precariously burnt condition. The victim was writhing in pain. At that point of time, about 40 to 50 local residents had assembled at the P.O. The victim is stated to have informed her brothers, mother and sister that her husband poured kerosene on her and set her on fire. The husband and members of his family had run away from the P.O. after the incident.

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The victim was rushed with an ambulance to Geonkhali I/C Camp of the Mahisadal P.S. where a complaint was lodged and a G.D. Entry was made. The victim was later taken to Tamluk District Hospital, Purba Medinipur. She was examined by PW-7, PW-8 and DW-1, Medical Officers and Surgeons at such Hospital. The victim is stated to have informed her sister throughout the journey to the police outpost and

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hospital that her husband poured kerosene on her and set her on fire. The victim is also stated to have told PW-8 , the Medical Officer at the Tamluk General Hospital that she was burnt by her husband.

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Based on the above, Mahisadal PS registered formal FIR being No. 49/2004 dated 21^st April, 2004 under Sections 498A/326/307/34 of the IPC. The victim died on the same day late in the night and the early hours of 22^nd April, 2004. The appellant and other accused persons were apprehended after some time in course of investigation by the Mahisadal P.S. Investigation was conducted initially by S.I. Sadhan Charan Chatterjee , who died in course thereof. The investigation was completed by Dilip Kumar Ghosh (PW-9), the second Investigating Officer who apprehended two of the accused persons. After completion of investigation, charge sheet was submitted.

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THE TRIAL:

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The trial began against the appellant, one Sk. Mehebub, Sk. Momin, Sahina Bibi, Sk. Israil and Tofena Bibi , the family members of the appellant. Charges were framed under Sections 498A and Section 302 read with Section 34 of the IPC against the accused persons as named hereinabove, on 13.12.2007.

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PW-1 was Zulfikar Ali Khan, brother of the deceased, PW-2 was Habibul Rahaman, scribe who prepared another complaint after the victim died.

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PW-3 was Mafuja Bibi , the mother of the victim.

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PW-4 was Mujlafa Bibi , sister of the victim and PW-6 was Jiaur Rahaman Khan , the brother of the deceased. Each of the aforesaid PWs were the family members of the victim had deposed that the victim was tortured by her in-laws, namely, the accused persons primarily for being unable to bear a child.

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Thy further deposed that the family of the appellant proposed to get him married of for the second time. The family of the appellant often taunted the victim by stating that a girl who cannot bear a child ought not to live. The defence put forth a case to attribute such statement to the victim herself.

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PW-6 further deposed that the victim and the appellant visited his house on several occasions and were happy in the married life. He also deposed that he visited the marital home of the victim in the morning of the fateful day and did not find anything out of the usual.

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PW-5 was the SDO who conducted the inquest on the victim’s body. None of the family members of the victim had stated before the Inquest Officer the circumstances under which the victim sustained burn injuries.

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PW-7 was Doctor Tridibesh Banerjee , a surgeon at the Tamluk Hospital. He deposed that the victim was admitted into the hospital by DW-1, Dr. Nilanjan Chakraborty. He deposed that he did not examine the patient in the emergency and based on the opinion of the PW-8 had recorded that the patient was found in a moribund condition. The family

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members of the victim were informed. The patient died at 2.50 p.m. on 21^st April, 2004.

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PW-8 was Doctor Dipak Kumar Bhattacharyya , the Medical Officer at the Tamluk General Hospital, Purba Medinipur. He desposed that he had examined the victim. He deposed that the victim who was in a moribund condition had stated to him that she was set on fire by her husband, the appellant. He recorded such statement in the treatment sheet and referred her to the NRS Medical College and Hospital at Kolkata for better treatment. The referral card and treatment sheet were exhibited in the Trial Court. He explained in cross-examination that he did not formally record a dying declaration of the victim as her condition was rather serious and he was more concerned about the treatment of the victim. He confirmed that notwithstanding the moribund condition of the victim she was able to speak. He further deposed that he had informed the victim’s family in that regard.

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PW-9 was Dilip Kumar Ghosh , the second Investigating Officer

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who detailed some parts of his investigation. He apprehended two of the accused persons. He collected PM report from the hospital and submitted a charge sheet. He did not depose about the number of the persons whose statements were recorded by his predecessor under Section 161 of the Cr. P.C. Admittedly, no statements under Section 164 of the Cr. P.C. were recorded.

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All the accused persons were examined under Section 313 of the Cr. P.C. and circumstances in the offence against them were duly confronted. The appellant, however, deposed that he was not present in the P.O. at the time of occurrence and returned home 4 to 5 days thereafter. He vehemently denied his presence at the P.O. or the allegation of pouring kerosene on the victim and setting her on fire.

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On behalf of the defence, one Doctor Nilanjan Chakraborty was examined as a witness. DW-1 proved his treatment sheet that was marked as Exhibit. In the treatment sheet, he recorded the statement of the victim as having told that she was encouraged to kill herself by her husband.

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Based on the evidence as above, the Trial Judge acquitted all the family members of the appellant and convicted the latter alone under Sections 302 read with Section 34 of the IPC.

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ARGUMENTS OF THE COUNSEL FOR THE APPELLANT:

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Learned counsel for the appellant, Mr. Partha Sarathi

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Bhattacharyya would firstly argue that the investigation by the PW-9 is grossly inadequate and this was a case of no investigation at all. He further submits that the PW-7 and PW-8 did not record any dying declaration of the victim despite the fact that the victim was moribund condition and DW-1 had deposed that several staff of the hospital were present at the time when the victim made the statement as such. He,

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therefore, argues that there is no evidence of the appellant either being present at the P.O. or having committed the offence in question.

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It is next argued that as many as 40 to 50 local persons had assembled at the P.O., none of them were examined by the prosecution. The said local persons would have been independent witnesses who could have seen and confirmed the presence of the appellant at the P.O. In the absence of any independent witnesses, the family members, namely, PW-1 to PW-4 should not have been given any credence by the Trial Court. He next argued that the prosecution had failed to bring in the PM Doctor and DW-1 with a view to hide the true chain of events. The PM report as well as the DW-1 would have the effect of acquitting the appellant under Section 302 of the IPC. It is argued that the PM report indicates that the victim had died by suicide.

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It is further argued that DW 1 had clearly deposed that the victim had stated to him that she was encouraged to kill herself by her husband. The appellant would at best have been convicted under Section 306 of the IPC but not under Section 302.

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ANALYSIS OF THIS COURT:

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This Court has carefully heard the argument of Mr. Bhattacharya, learned counsel for the appellant and the learned counsel for the State. The evidence on record has been carefully considered. Given the evidence of DW1 that the victim had stated that she was encouraged by her husband to commit suicide and the PM report that the victim committed

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suicide indeed establishes an offence at best under Section 306 of the IPC but not under Section 302.

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The evidence of PW 6, the brother of the victim cannot equally be ignored. He deposed that the victim and the appellant visited his house on several occasions and were found to be happy. He also deposed that he went to the house of the victim in the morning of the day of occurrence and found nothing out of the ordinary. There are no other injury marks on the body of the victim found by the PM Doctor except burn injuries. This would indicate that there was no evidence of physical assault of the victim.

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The aforesaid evidence of PW 6 read with the evidence of DW 1 throws up serious questions and doubts as regards whether the appellant set the victim on fire by pouring kerosene. None of the medical personnel who deposed in the trial indicated any smell of kerosene on the body of the victim. The only person who deposed about this smell of kerosene was PW 4, sister of the victim who accompanied her to the Tamluk District Hospital.

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One cannot equally ignore the examination of the appellant under Section 313. Against three circumstances put in the evidence against him, he stated that he was not present at the time and place of occurrence and he was away from the house. He stated that he returned back four days later. The appellant, however, was not able to provide any firm evidence of his absence from the place of occurrence or with whom

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he was living, where he had gone to at the place and time of occurrence. This would therefore indicate that the defence version i.e. absence of the appellant at the place and time of occurrence is doubtful to an extent.

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CONCLUSION :

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Having regard to the discussions made herein above and considering the fact that the maximum punishment under Section 306 of the IPC up to 10 years and failure on the part of the appellant to produce any firm and clear evidence that he was not present at the place and time of occurrence, this Court is of the view that the prosecution has not able to bring home the charge under Section 302 against the appellant beyond shreds of reasonable doubt. The appellant has admittedly served incarceration about 15 years 9 months as on date as per the report of the Midnapore Central Correctional Home dated 15.02.2026. The appellant shall stand sentenced to the extent of incarceration he has already suffered.

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In the light of the above, the instant appeal being CRA 575 of 2010 is allowed-in-part. The appellant shall stand sentenced to the extent of about 15 years 9 months which he has already undergone. He shall be set at liberty forthwith from the custody, if not wanted in any other case, upon execution of a bond to the satisfaction of the Learned Trial Court, which shall remain in force for a period of six months under Section 437A of the Code of Criminal Procedure corresponding to Section 481 of the BNSS, 2023.

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