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2015 DIGILAW 73 (SC)

S. K. Badre Alam v. State of West Bengal

2015-01-14

MADAN B.LOKUR, PRAFULLA C.PANT

body2015
ORDER : The present appeal is directed against the judgment and order dated 29.04.2011 passed by the Division Bench of the Calcutta High Court in CRA No.282 of 2001. The case of the prosecution is that a young lady named Ajmira Khatun was married to the appellant-accused S.K. Badre Alam. She died an unnatural death on 16.05.1995. According to the prosecution, she had consumed poison due to constant torture, both physical and mental, arising out of non-payment and/or refusal to pay dowry. 2. On the basis of the material on record, the Trial Judge convicted the appellant and his parents for offences punishable under section 498A and 306 of the Indian Penal Code (for short the 'IPC') and sentenced them to pay a fine of Rs. 5,000/- each, in default to pay fine, to undergo simple imprisonment for two years each for offence under section 498A IPC and simple imprisonment for eight years each for offence under section 306 of the IPC. The sentences would run concurrently, if fine be not realised from the accused. Feeling aggrieved of the same, the accused preferred an appeal before the High Court of Calcutta. 3. It transpires that the appeal preferred by the mother of the appellant abated as she died during the pendency of the appeal in the High Court. As far as the father of the appellant is concerned, he was convicted by the High Court for the offence punishable under section 498A IPC and sentenced to imprisonment for the period already undergone, but acquitted for the offence punishable under section 306 IPC. The High Court convicted the appellant for offences punishable under section 498A and 306 IPC and sentenced him to undergo simple imprisonment for one year under section 498A IPC but reduced his sentence to six years' imprisonment for the offence punishable under section 306 IPC, with fine. 4. We have been taken through the record of the case as well as the evidence of the witnesses. The High Court proceeded on the basis that deceased Ajmira Khatun was being tortured constantly for demand of dowry and this led her to commit suicide. Two factors that the High Court took into consideration to uphold the conviction of the appellant are that he and the other accused persons did not take the deceased to the hospital nor did they attend her funeral ceremony. Two factors that the High Court took into consideration to uphold the conviction of the appellant are that he and the other accused persons did not take the deceased to the hospital nor did they attend her funeral ceremony. Significantly, the doctor who conducted the post mortem on the dead body of Ajmira Khatun was not examined at the trial. He seems to have passed away in the meanwhile. But even the doctors who had treated the victim Ajmira Khatun were not examined at the trial by the prosecution. 5. PW-1 Naba Kr. Singh Roy who is an independent witness and a co-villager stated that the accused had shifted and admitted the victim Ajmira Khatun at Arambagh S.D. Hospital. However, this witness was not present at the said hospital. 6. It is difficult to accept the evidence of PW-1 particularly in view of the statement of PW-5 SK Najrul Islam who is a neighbour of the appellant. In his statement, PW-5 states that he was not aware how the appellant and his parents behaved with deceased Ajmira Khatun. But PW-5 was of the opinion that deceased Ajmira Khatun died on taking poison. He stated that he had taken Ajmira Khatun first to Kamarpukur Primary Health Centre and then to S.D. Hospital, Arambagh and that none of the accused were present in the hospital. In his cross-examination, he stated that he made no enquiry as to who was present at the residence of the accused persons and he did not inform the accused about the death of the victim Ajmira Khatun. It is clear from this that the appellant and other accused were not present in the house when deceased Ajmira Khantun consumed poison and they were not aware of this or of her being taken to the hospital. Therefore, there is no question of their presence in the hospital. 7. As regards the absence of the appellant from the funeral of deceased Ajmira Khatun, PW-8 Tahera Khatun stated in her cross-examination that she attended the funeral ceremony of deceased Ajmira Khatun which was held just beside the graveyard of the parent of Lalbabu. She further stated that the funeral was completed at about 2/2.30 p.m, and that Lalbabu and his son did not give soil in the graveyard of Ajmira Khatun. It was brought to our notice that the appellant-accused is the only son to his parents. She further stated that the funeral was completed at about 2/2.30 p.m, and that Lalbabu and his son did not give soil in the graveyard of Ajmira Khatun. It was brought to our notice that the appellant-accused is the only son to his parents. PW-8 further stated that the appellant and his father were present at the funeral of deceased Ajmira Khatun. Therefore, it is not understood how the High Court came to the conclusion that the evidence on record indicated that the appellant did not attend the funeral of deceased Ajmira Khatun. 8. Learned counsel appearing for the respondent-State submits that PW-9 SK Alauddin stated that neither the appellant nor his parents were present at the funeral of deceased Ajmira Khatun. Be that as it may, in our opinion, the mere fact that the appellant was not present at the funeral of deceased Ajmira Khatun cannot lead to any conclusion that he had caused the death of deceased Ajmira Khatun or abetted her suicide. 9. Significantly, there is nothing on record to indicate the cause of death of deceased Ajmira Khatun. There is nothing to suggest (except the hypothesis of one of the witnesses) that deceased Ajmira Khatun had consumed some poison. There is no evidence on record in this regard. On the contrary, the report of the chemical examiner is that no poison was found in the viscera of the deceased. 10. In the absence of any categorical medical evidence to suggest that deceased Ajmira Khatun had consumed poison before her death, we cannot assume that she did so. Under these circumstances, we find no basis for convicting the appellant for abetting the suicide of Ajmira Khatun. Accordingly, we acquit the appellant of the offence punishable under section 306 IPC. So far as the offence punishable under section 498A IPC is concerned, the statement of the witnesses clearly suggests that demands for dowry were being made by the appellant and his parents soon after the marriage was solemnised. We see no reason to disturb this finding of the High Court as well as the Trial Court. Accordingly, we uphold the conviction of the appellant on this charge and affirm the sentence of the appellant for an offence punishable under section 498A IPC. 11. In the result, we partly allow this appeal and modify the impugned judgment and order of the High Court to the extent indicated above. Accordingly, we uphold the conviction of the appellant on this charge and affirm the sentence of the appellant for an offence punishable under section 498A IPC. 11. In the result, we partly allow this appeal and modify the impugned judgment and order of the High Court to the extent indicated above. Presently, the appellant is in jail and has served sentence for more than three years. He may be released from custody forthwith if he is not required in any other case.