Calcutta High Court Abdul Barek-vs-State Of West Bengal And Ors. on 3 October, 1994
Equivalent citations:1996 CriLJ 1837
Author: R Bhattacharyya
Bench: R Bhattacharyya, N A Chowdhury
R. Bhattacharyya, J.
1. This Criminal Appeal is directed against the order of conviction dated 17-12-1993, under Sections 498A and 302 of the IPC passed by the learned. Sessions Judge, Malda in Sessions Trial No. 10 of 1993, arising out of Sessions Case No. 3 of 1992, convicting the accused and sentenced him to suffer R.I. for three years sentencing him further to pay fine of Rs. 2,000/- in default, R.I. for six months and also convicted him for life imprisonment making him liable to pay fine of Rs. 4,000/-, in default to suffer R.I. for one year more. Both the sentences are to run concurrently.
2. To get a grip of the facts in order to decide the fate of this case, we advert to discuss the facts of this case in a nutshell.
3. The instant case was initiated against the accused under Sections 498 and 302 of the IPC for having committed an offence of torture inflicted upon the wife coupled with an allegation of having committed the murder of Renu Bibi, the wife of the accused. The victim was given in marriage with the accused two years before the date of occurrence dated 3-6- 1987 which was reported by Naimuddin, the brother of the deceased. The victim was removed to Chanchal Hospital for the assault inflicted on her by the accused when he rushed to the hospital and found his sister dead. Thereafter, a police case was started which ended in submission of the charge-sheet. On conclusion of investigation, the case was committed to the Court of Sessions along with the accused to stand the trial.
4. The ld. Court below framed charges under Sections 302 and 498A of the IPC which were read over and explained to the accused who pleaded not guilty to the charges and claimed to be tried.
5. The prosecution in this case has examined as many as 16 witnesses.
6. Though the accused was examined under Section 313 of the IPC, yet there was no adduction of oral testimony by the accused. The learned court below after making assessment of the evidence of the respective parties passed the order of conviction and sentence.
7. Mr. Ahmad has rigorously claimed in his submission that it is not a case of murder or homicide as found by the learned trial Court. According to him, the learned trial Court mis-appraised the evidence and arrived at a conclusion contrary to the fact and law. He is emphatic that fouler the crime-higher the proof.
8. The learned court below took an oblique view of the case about the homicide which is not protected by well founded reasoning.
9. Let us look the bull by the horn and see as to whether the offence of murder has been established beyond any shadow of doubt. It is an axiomatic truth that in case of death or homicide the opinion of the Doctor is the best evidence which will prove the truth or otherwise of the allegations of the murder.
10. The main stay of the evidence for the prosecution, according to us, is the opinion of P.W. 16, Dr. P. K. Sanyal, whose evidence may set the claim of the appellant at rest. He has read through the evidence of P.W. 16 to unfound the findings of the Id. court below that the death was a homicide.
11. P.W. 16 has deposed during the trial that he passed his final opinion that her death was due to the effect of endrin poisoning. He founded his opinion on the basis of Chemical Examiner’s report sent by Assistant Director, F.S.L. There is no evidence on record that the victim was forced to take endrin by the accused. Therefore, the case of murder or homicide, as agitated by the prosecution, collapses to the ground. The prosecution could not elicit any material from the evidence on record that it was a case of murder of which the accused appellant was the author. Thus, without dilating on the matter further, we cannot help holding that the allegation of murder has not been proved by the prosecution beyond any reasonable doubt. Accordingly, the findings of the learned trial Court that the accused appellant was guilty for murdering Renu Bibi is set aside.
12. Next, we turn to the evidence of different witnesses to gather assurance about the offence alleged to have been committed by the accused under Section 498A of the IPC.
13. To ward off the allegations, the learned counsel for the appellant has taken us through the canals of the evidence and contended to unfound the claim of the prosecution. As submitted the allegation of the prosecution about the infliction of assault and torture is a far cry in wilderness.
14. However, to see and adjudge the viability of the claim, the material witnesses about the infliction of assault and torture is the evidence of P.W. 1 S. K. Naimuddin, P.W. 2 – Fazzul Nossain, P.W. 3 – Rina Bibi, P.W. 5 – Mokbul Mossation, and P.W. 7 Abdul Narun.
15. The aforenamed witnesses sang a song of melancholia about the assault perpetrated by the accused. They have given an account of the assault of which the accused was the author. The summum bonum of their evidence is that the accused inflicted assault on the victim with the aid of lathi apart from kicking her. The accused did not spare its hands even to assault his wife, the victim. There were minor wear and tear in their evidence here and there but they sang a chorus song about the deeds and acts perpetrated by the accused. All the witnesses, have withstood the ordeal of cross-examination about the assault and torture, in particular, on the date of occurrence i.e. on 3-6-1987, about which there is no dent. The minor discrepancies can never lean in favour of the accused when weighed with the evidence of a most disinterested witness P.W. 8 Dr. B. K. Talukdar who was the first amongst the Doctors and who treated her on being admitted to B.M.O.M., Chanchal Rural Hospital on 3-6-87. Dr. Talukdar has given an unblemished account about the State of affairs of the victim when she was admitted to hospital. The evidence extracted below will reveal the state of health of the victim when she was admitted to the aforementioned hospital. The evidence is:
“It seemed to me that an unknown poisoning case with multiple injuries. Multiple ecchymosis over both sides of the buttock and ecchymosis also below the knee joint right side and one swelling over right hand joint and another ecchymosis over right thigh. The age of the wounds was recent in origin. The injuries with diagnonosis were written by me in the treatment sheet”.
16. This evidence has not been controverted during the cross-examination of the Dr. B. K. Talukdar. Rather this evidence of Dr. B. K. Talukdar is an invaluable corroborative evidence expelling the argument of the learned counsel for the appellant devoid of any merit. At least the assault was inflicted on the victim on 3-6-1987 is not founded on slippery foundation for the invulnerable evidence of the above named witnesses. Though corroboration is not essential in the sphere of criminal jurisprudence yet as a matter of abundant caution corroboration is a rule of prudence.
17. The learned counsel for the appellant, tried to make a mountain out of a mole hill to off set the argument of the Id. Counsel for the prosecution without any success.
18. Mr. Ahmed is again very emphatic that the post-mortem report of the Doctor outweighs the credibility of the evidence of P.W. 8 Dr. B. K. Talukdar as the opinion of the autopsy surgeon, P.W. 16, Dr. B. K. Sanyal, maintains an unnatural silence about the injuries sustained by the victim. Had there been any injuries as submitted, by the ld. Counsel, they would certainly find their way in the post-mortem report. The post-mortem report, according to the evidence of P.W. 16, Dr. B. K. Sanyal, is bleak and the claim of the prosecution about the torture and assault is very much ricketty which exposes the infirmity of the case of the prosecution. Upon reading the evidence of Dr. B. K. Sanyal, we are of the view, that his evidence about assault does not falsify the assault. It has been established by a line of long decision that the medical evidence if becomes contradictory with the eye-witnesses, the case of the prosecution does not receive any jolt. The duty lies on the Court to appraise the evidence in the light of the evidence adduced in the case and scan the evidence in order to adjudge the reality or otherwise of the case of the prosecution. Here the evidence of Dr. B. K. Talukdar is not contradictory but corroborative. More so, it does not appear from the evidence of Dr. B. K. Sanyal that he has disputed the correctness of the evidence of Dr. B. K. Talukdar.
19. In the background of the above, we reject the testimony of P.W. 16 Dr. B. K. Sanyal regarding assault and we accept the testimony of P.W. 8, Dr. B. K. Talukdar as it is consistent with the testimonies of the public witnesses. Thus, without driving the matter further, we are satisfied from the evidence on record and the examination of the accused-person under Section 313 of the Cr. P.C. that he failed to explain the injuries occurred to his wife during her stay in the marital home. Even, the inquest report Ext. 2/1 is a stumbling block for the accused to wriggle out of the offence complained of as the evidence rendered by P.W. 9, P.T. Bhutia is admissible under Section 60 of the Evidence Act.
20. Thus, in consideration of materials on record, we cannot help holding that the order of conviction and sentence passed by the ld. Court below under Section 498A is affirmed. But, we do not agree with the order of conviction and sentence passed by the learned Court below under Section 302 of the IPC which we set aside.
21. In the result, the appeal succeeds in part.
Nure Alam Chowdhury, J.
22. I agree.