- (1.) The Appellant, Golam Nabi Biswas, challenges the Judgment and Order dated 15.7.2008 and 16.7.2008 passed by the ld. Addl. Sessions Judge, Fast Track (IInd Court), Behrampur, Murshidabad in Sessions Trial no. 10 (6) of whereby and whereunder, he was sentenced to undergo rigorous imprisonment for three years with fine of Rs. 20,000/- (Rupees Twenty Thousand) for the offence punishable under Section 498A of the Indian Penal Code and in case, of non-payment of fine, to undergo R.I. for a period of one more year. The Appellant was also sentenced to undergo rigorous imprisonment for ten years with a fine of Rs. 20,000/- (Rupees Twenty Thousand) for the offence punishable under Section 307 of the Indian Penal Code and in the event of non-payment of fine, to undergo further imprisonment for one year.
(2.) On 3.10.2005, one Samima Shiropa made a written report before the Inspector in charge of the Domkal Police Station at Murshidabad against her husband, Golam Nabi Biswas (the Appellant herein) and against one Ekramul Mondal alleging therein, as follows:- "Golam Nabi Biswas is my husband. We were married together 11 years ago under the Muslim Shariat. Presently, I have a minor son named Wasim Rezza (Subho). However for the last 8 months, my husband has been having an illicit relationship with one Nasima Sarkar (25) daughter of Nasiruddin Sarkar. It is on account of such a fact that for the last 8 months, my husband had started to inflict physical and mental torture upon me and at times, he would attempt to strangulate me and would also, at times, attempt to induce me to commit suicide. As a result, I twice approached the Village Panchayat on 26.6.2005 and 17.8.2005. A settlement was arrived at, at the instance of one Rajkumar Kothari, owner of "Kothari Basanalaya" who assured me of my safety and security thereby compelling me to enter into such an amicable settlement. After 12 P.M. however, my husband expanded the level of his torture upon me and Ekramul Mondal became an adviser co-propagator in the crime. Yesterday i.e. 2.10.2005, at about 12 P.M. while I was asleep, my husband, for no reason at all, started beating me and also attempted to strangulate me with the intention of killing me. In the scuffle that followed while I attempted to save myself, I fell down from the bed and my husband doused my body with kerosene. His intention was to set me on fire but I started shrieking as a result of which my son woke up. He too started shouting. On hearing our shouts, the neighbours of the locality arrived and rescued me. They then confined my husband in a room and sent message to my father's house whereafter my father and brother came and informed the Police Station. I therefore request you to investigate and resolve the matter in our family". On the basis of the aforementioned written report, the Inspector in charge, Domkal Police Station drew up a formal F.I.R. which was registered as Domkal P.S. case no. 200/2005 dated 3.10.2005 under sections 498A/323/307 I.P.C. and initiated investigation. F.I.R. was registered at 7.45 A.M. After completion of the investigation, charge-sheet under section 498A and 307 of the I.P.C. was submitted vide charge-sheet no. 205/05 dated 27.10.2005 against the both the accused persons. Thereafter cognizance was taken by the Ld. Chief Judicial Magistrate. The case was then committed to the Court of the Ld. Sessions Judge whereafter it was transferred to the Ld. Addl. Sessions Judge, Fast Track (IInd Court) Behrampur, Murshidabad for disposal and after hearing the case and considering the facts and circumstances, and also taking into consideration the materials on record, the said Ld. Court passed the impugned Judgment and Order.
(3.) Before proceeding to deal with the various aspects of the case, I would first like to deal with the submissions made on behalf of the State. The State has very vehemently contended that the evidence of the child witness being, Wasim Rezza should not be ignored because he was not only a child at the time of the incident but he was as much close to his father as was the informant by marriage being his wife. Being so close to his father, he could not have been prompted to say anything against him and that too, in open Court when he described the incident in the same way as was narrated by his mother in the written report. According to the State, a child witness, under such circumstances, cannot be disbelieved.;