- (1.) This appeal is against the judgment dated 18th September, 2008 and order of sentence dated 19th September, 2008 convicting the appellants to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 5000/- (Five Thousand) only in default, to undergo further rigorous imprisonment for 1 year for commission of offence punishable under Section 498A, Indian Penal Code and further convicting both the appellants to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000/- (Ten Thousand) only in default, to undergo further rigorous imprisonment for 3 years for the commission of offence punishable under Section 302, Indian Penal Code and further directing that both the sentences will run concurrently. Bhaktinagar P.S. Case No. 418/05 dated 15th October, 2005 (G.R. 1609/05) was registered on the basis of a complaint lodged by one Asma Khatoon, wife of Late Enamul Haque of Kawakhali Police Station, Matigara, District Jalpaiguri (hereinafter referred to as the complainant) alleging commission of offences under Section 498A/326/34 of the Indian Penal Code against the appellants and one Mohammad Hasibul alias Hasibul Islam, Mohammad Hasan alias Hassen Ali, Nuri Khatoon all being the children of one Late Sabjal alias Safjal Ali of Kalangini Police Station, Bhaktinagar, District Jalpaiguri. At a subsequent stage the Investigating Agency submitted charge-sheet against the appellants and the aforesaid 3 others under Section 498A/302 of the Indian Penal Code. The case of the appellants was committed before the learned Additional District and Sessions Judge, 2nd Fast Track Court, Jalpaiguri for trial of the charges under Section 498A/302 of the Indian Penal Code as was framed against both the appellants. It may be mentioned that the other three co-accused Hasibul, Md. Hassen and Nuri Khatoon who claimed they were juveniles was referred to the Juvenile Justice Board.
(2.) During trial the Prosecution relied upon as many as 23 witnesses in support of the complaint case. In short, the complaint case is that one Begum Khatun got married with Md. Hasibul and after marriage Begum Khatun was residing at her matrimonial home and she was subjected to torture during her stay at Kawakhali and later at Kalangini, by her husband, mother-in-law, namely, Hasina Bewa, brother-inlaw, namely, Md. Hassen, sister-in-law, namely, Nuri Khatoon and one Md. Jahirul Islam said to be paramour of Hasina Bewa the mother-in-law of the deceased Begum Khatun. It is the further case of the Prosecution that on 15th October, 2005 the de facto complainant, Asma Khatun came to know that her daughter Begum Khatun was lying admitted at North Bengal Medical College and Hospital (hereinafter to be called N.B.M.C. and Hospital) and after receiving the said information she had been there when Begum Khatun reported her mother that the above named accused persons poured kerosene oil on her body and set her on fire. Ultimately, Begum Khatun succumbed to her burn injuries and, accordingly, complaint was filed.
(3.) In support of their case the Prosecution has examined 23 witnesses but the Defence has not examined anyone. Of the said witnesses PW 1 the de facto complainant has stated that she was informed by the village people of Kalangini that her daughter was set on fire by the accused persons and on receiving the said information she rushed to N.B.M.C. and Hospital and found Begum, her daughter, in almost totally burnt condition and Begum told this witness that the accused persons poured kerosene oil on her body and set her on fire and thereafter, she lodged complaint in Bhaktinagar Police Station. The complaint was written by one Parimal Hawladar under her instruction and Parimal took her LTI. This witness identified the accused appellants in Court. PW 1, in her cross-examination, has admitted that the marriage between Begum and Hasibul was a love marriage and she did not give consent to the marriage and she did not have any relation with them. Both the parties to this case did not have visiting terms. PW 2, Md. Samisud, has been declared hostile by the Prosecution. PW 3, Gafaruddin Ahmed, has also been declared hostile by the Prosecution. PW 4, Samsul Haque, a resident of Kalangini, has stated that he knows Hasina Bewa and Jahirul and has stated that Begum Khatun died in 2005. As a neighbour he was aware of the fact that Hasibul and Begum used to pick up quarrel with each other and both of them used to report it to him for Salish but he declined. He further stated that he heard crying and saw that Begum Khatun was burning when all the members of the matrimonial home of Begum fled away. He and some others took her to N.B.M.C. and Hospital and got there admitted. PW 5, Amina Khatoon, is the elder sister of Begum Khatun. She has stated that after marriage Begum used to reside in her matrimonial home at Kawakhali and thereafter, they stayed at Kalangini. Matrimonial home of Begum consisted of Begum herself, her husband, mother-in-law, brother-in-law, Hassen and sister-inlaw, Nuri. During Begum's stay at Kawakhali this witness along with others observed that Begum was subjected to torture and cruelty. Even she was not given adequate food for which Panchayat was informed and Salish was held but no fruitful result was brought forth. PW 5 further stated that even during stay of Begum at Kalangini she was subjected to torture and assault by the accused persons and that accused persons poured kerosene oil on her body and set her on fire. This witness stated that she and others were informed by the neighbours of Begum's in-laws' house and on receiving the said information they had been to N.B.M.C. and Hospital and on enquiry Begum informed her that Begum had not been given food for four days and the accused persons poured kerosene oil on her body and set her on fire. Begum died after 6 days and her mother lodged a written complaint. PW 6, Safizul Ansari, the husband of PW 5, stated that Begum was subjected to torture and assault by the accused persons and others. He has stated that he visited the in-laws' house of Begum thrice and he was informed by PW 1 that Begum was lying admitted at N.B.M.C. and Hospital and he had been there. He deposed that Begum told him that the accused persons poured kerosene oil on her body and set her on fire. PW 7, Faizul Rahaman, has stated that Begum Khatun is his niece and that she got married with Hasibul. After marriage Begum used to reside in her matrimonial home where she used to pick up quarrel with her in-laws and husband and after a lapse of 1 year they shifted their matrimonial home at Kalangini under Matigara Police Station. He, however, said that he cannot say how Begum spent her days there at Kalangini in her matrimonial home. He was informed by the residents of Kalangini that Begum was admitted in the hospital and there she was admitted for 3 days in burnt condition. He, however, stated that police recorded the statement of Begum in the form of a dying declaration when PW 7 was present and he signed over the dying declaration as a witness. He said that the dying declaration was recorded in the presence of Staff Nurse of the ward of the hospital where Begum was admitted. He further said that Executive Magistrate made inquest over the dead body of Begum in his presence and he stood as a witness. In cross-examination, however, this witness stated that he put his signature on a white blank paper being insisted by police on which dying declaration was recorded. He also said that he put his signature on the inquest report held by the police which was filled up and not blank paper. He further said that he was not aware of the contents of the dying declaration. PW 8, Ramjan Ali, stated that he put his signature after seizure of a photograph in his presence and the seizure list was prepared and that he was examined by police. PW 9, Neza Md. is a signatory on the seizure list of one 'Kupi' and one plastic bottle. This witness was declared hostile by the Prosecution. PW 10, Papia Chanda, a Staff Nurse at N.B.M.C. and Hospital, stated that on 15.10.2005 she was posted at the said hospital in the same capacity in female surgical ward and on that date she had night shift duty commencing from 8:00 p.m. of 15.10.2005 till 7:30 a.m. of 16.10.2005. She said on 16.10.2005 at about 00:13 to 15 hours a police officer came to her ward and met Begum Khatun after obtaining her permission and also requesting her to accompany him to the said patient. Said Police Officers were two in number and security guard of the hospital accompanied them in her ward. Police Officer recorded statement from the patient in her presence and patient stated to Police Officers that her husband, mother-in-law, brother-in-law and others used to assault and torture upon her and set her on fire pouring kerosene oil over her entire body. She said that after the Police Officer recorded the statement of the patient she put her signature. The security guard of the hospital also put his signature. She stated that one Faizul Rahaman of the village of the in-laws of the patient also put his signature as witness. In cross-examination she stated that she was not examined by the police after death of Begum Khatun. She said she did not bring the duty roster to show the period she was in female surgical ward on the duties mentioned in examination-in-chief nor did she hand over the said roster to the Investigating Officer. PW 11, Parimal Hawladar, the scribe, stated that the written complaint was reduced into writing by him as per instruction of Asma Khatun and after reducing it into writing he read over and explained the same to the maker and thereafter, she put her LTI in his presence. PW 12, Nazrul Islam, was declared hostile by the Prosecution. PW 13, Bulbul Munshi, stated that he worked as Munsi in the marriage of Hasibul and Begum Khatun. He could not say how Begum Khatun died. PW 14, Sayeda Khatoon, identified the accused persons on the doc. This witness who is a resident of Kawakhali has stated that during stay of Begum at Kawakhali she was subjected to torture and she was not given even adequate food and for that Salish took place which also failed. Subsequently, matrimonial home of Begum was shifted to Kalangini and this witness came to know from the mother of Begum that Begum was set on fire by her in-laws by pouring kerosene oil on her, in her matrimonial home and Begum died in N.B.M.C. and Hospital. PW 15, Tulsi Das, is the security guard of N.B.M.C. and Hospital. This witness stated that while on duty on 15.10.2005 at night one Police Officer told him to accompany him to female surgical ward and, accordingly, he accompanied him and the said Officer recorded the statement of one female patient, namely, Begum Khatun in his presence and at that time one sister of the said ward was also present while recording the statement. He said that the victim stated to Police Officer that her mother-in-law, nonod, deyor and her husband, on pouring kerosene oil, set her on fire. The said statement was recorded on 16.10.2005 at night about 1:30 hours. PW 16, Abdul Gaffar, is a resident of Kawakhali. He has stated that during Begum's stay in her matrimonial home at Kawakhali she was subjected to torture by her husband, mother-in-law, nonod, deyor and one Jahirul and that there was an attempt for settlement but without any result. Thereafter, matrimonial home of Begum Khatun was shifted to Kalangini wherein also she was subjected to torture. The accused persons assaulted her, poured kerosene on her body and set on fire. She was taken to N.B.M.C. and Hospital when this witness used to work as an employee in the said hospital. Begum succumbed to such injuries after 5-6 days. This witness further stated that during stay in hospital Begum stated to this witness personally what he has deposed in his affidavits in Court and identified the accused persons. This witness, however, stated that he did not witness the assault on Begum by the accused persons. He has no personal knowledge about the incident of assault at Kalangini. PW 17, Dipankar Ghosh, worked as Record Supplier of N.B.M.C. and Hospital and on 23.11.2005 he was posted therein in some post and on that date Police seized bed head ticket of Begum Khatun containing 14 sheets including dying declaration. He is a witness to the seizure list prepared by the Police. This witness, on cross-examination, has deposed that he was not examined by the Investigating Officer. PW 18, Jamil Akhtar,, a constable being No.1056 posted at Matigara Police Station. He carried the dead body from N.B.M.C. and Hospital to the morgue of the said hospital with the help of dead body challan prepared by Assistant Sub-Inspector, B.N. Roy Sarkar, vide Matigara P.S. U.D. Case No.579/05 dated 20.10.2005. This witness has deposed that he knows the signature and hand-writing of the said Assistant Sub-Inspector. PW 18 had further stated that said Assistant Sub-Inspector, B.N. Roy Sarkar, made inquest over the body of Begum Khatun in his presence and prepared inquest report. This witness put his signature on the report. PW 19, Dr. Amarendra Nath Sarkar, an Assistant Professor of Surgeon, then posted at N.B.M.C. and Hospital on 16.10.2005. he was posted in the said hospital in his said capacity. On the said date at night at about 1:30 hours he received a call book from Superintendent of the said hospital and, thereafter, rushed to the hospital, recorded dying declaration of Begum Khatun who was lying admitted in the female surgical ward under Registration No.05023010 in presence of ward sister S. Bhattacharjee (Staff Nurse). This witness stated that the dying declaration of Begum Khatun was written by him in his own handwriting and under his signature. He took the left thumb impression of Begum Khatun in presence of the said Staff Nurse. This witness deposed that Begum Khatun stated that she had quarrel with her family members and her husband, mother-in-law, sister-in-law and brother-in-law, all four of them tortured her and poured kerosene oil on her body and set her on fire. Begum also stated to him that Jahirul, who had illegal relationship with her mother-in-law, engineered the entire event from behind. This witness stated that after his signature the date was put by him as 16.10.2005 but afterwards it was made 15.10.2005 after his signature and there is no initial there by him. He, however, stated that he cannot explain how did it take place. In his cross-examination, this witness has deposed that there is no endorsement to the effect that after the dying declaration was reduced into writing in English the same was read over and explained to the maker, that is, Begum Khatun in Bengali. He said, after LTI of Begum Khatun there is no mention as to who took it, nor was it attested. He said that the writing "LTI of the patient Begum Khatun" is not in his own handwriting on Exhibit 9. PW 20, Sumanta Sarkar, is a Group-D staff at N.B.M.C. and Hospital. He has stated that on 23.11.2005 he was posted at Record Section of the said hospital and Police seized certain documents such as, bed head ticket, dying declaration of Begum Khatun. Police also prepared seizure list in his presence and he admitted his signature which he put on seizure list earlier. PW 21, Dr. Saibal Gupta, is a Professor and Head of the Department, Forensic and State medicine at N.B.M.C. and Hospital. He deposed that on 21.10.2005 he was in the same Institution and in the same capacity and on that date one Dr. Prabir Deb held post mortem over the body of Begum Khatun in connection with Matigara P.S. U.D. Case No.579/05 dated 20.10.2005. body of the deceased was identified by Constable No.1056, Jamil Akhtar of the said Police Station. He proved the post mortem report prepared and signed by Dr. Deb. This witness stated that he knows the signature and handwriting of Dr. Deb. PW 22, Sri S.T. Bhutia, the learned Executive Magistrate, who held inquest over the body of Begum Khatun on 21.10.2005 vide Matigara P.S. U.D. Case No.579/05 dated 20.10.2005 and the body was identified by one Faizul Rahaman and it was done in presence of witnesses and at the morgue of N.B.M.C. and Hospital. PW 23, Sankar Sarkar, is the Investigating Officer in the case and he was posted on 15.10.2005 at N.J.P. outpost under P.S. Bhaktinagar, District Jalpaiguri as Sub-Inspector and he was endorsed by the then Officer-in-charge to investigate Bhaktinagar P.S. Case No.418/05 dated 15.10.2005 and thereafter, he had been to the place of occurrence and drew rough sketch map with index and examined some witnesses under Section 161, Cr.P.C. and made prayer to the on-duty Doctor for recording dying declaration of Begum Khatun of the said hospital as the learned Executive Magistrate was not available. Hasibul Islam, Hasina Bewa, Md. Hassen Ali and rest of the accused persons surrendered before the learned Court. He made prayer before the learned Court for adding Section 302, IPC which was allowed by the learned Court. He seized one water bottle having smell of kerosene oil from the place of occurrence and one well used old 'Kupi' containing a bit of kerosene oil from place of occurrence and prepared seizure list in presence of witnesses. This witness has also stated that he seized a colour photograph of Begum Khatun and her husband Hasibul Islam. He examined the victim girl Begum Khatun under Section 161, Cr.P.C. in presence of witness and Staff Nurse on duty and seized bed head ticket of Begum Khatun (since deceased) from the hospital authority on 23.11.2005.;