Calcutta High Court (Appellete Side)
Mekail Sk vs Unknown on 15 December, 2022
15.12.2022
BR
CRR 2245 of 2003
In the matter of : Mekail Sk
Mr. Abhijit Basu,
Mr. A.K.Das
.... For the Appellant
Mr. N.P.Agarwal,
Mr. Pratick Bose .... For the State
This criminal revision assails the judgment
passed by learned Additional Sessions Judge,
Berhampore on 22nd July, 2003 in Criminal Appeal no. 2
of 1999 affirming thereby the judgment passed by
learned Assistant Sessions Judge, Lalbagh,
Murshidabad in Sessions Case No. 30 of 1998
convicting the appellant for committing an offence
under Section 498A/306 of the Indian Penal Code
sentencing him to suffer rigorous imprisonment for 2
years for committing offence under Section 498A of
the IPC and to pay fine of Rs. 200/- , 7 years rigorous
imprisonment and to pay fine of Rs. 2,000/- for
committing offence under Section 306 of the IPC.
Briefly stated one Ershad Ali informed the
Officer-in-Charge of Lalbagh P.S. About the unnnatural
death of his daugther Niyara Bibi aged about 35 years
who was married to Mekail Sk. 12 years ago . Her
daughter gave birth to four children . She was often
subjected to torture by her husband both physically
and mentally. On 15th September, 1996 his son-in-law
inflicted torture, upon his daughter and again on 19 th
September, 1996 at about 9 a.m. Mekail assaultd his
wife and left the house. Consequent upon such physical
torture Niyara Bibi consumed poison and committed
suicide. The information since disclosed offence
cognizable in nature Lalgola P.S. case No. 109 of 1996
was registered under Sections 498A/306 of the Indian
Penal Code. Police after investigation submitted charge
sheet. The accused person stood trial pleading his
innocence. Learned trial Court after considering the
testimony of 11 prosecution witnessess was pleased to
record an order of conviction against the accused
person who made an unnsuccessful attempt to get the
order of conviction reversed by preferring the criminal
appeal No. 2 of 1999. Learned Appellate Court
expressed its agreement with the view of learned trial
Court. Challenging the legality of the judgment
impugned the petitioner has approached this Court.
Heard Mr. Abhijit Basu , learned counsel for the
petitioner and Mr. Narayan Prasad Agarwal , learned
counsel for the State. I have perused the evidence on
record. Here in this case it is alleged that that the
victim consumed poison and put an end to her life.
Prosecution did not examine the Autopsy Surgeon,
there is no medical evidence as such to substantiate
the fact that the lady committed suicide. No chemical
examination report was produced by the prosecution
to substantiate that the victim actually committed
suicide by consuming poison. The post mortem report
was admitted into evidence by learned trial Court as
learned defence counsel did not raise any objection in
admitting the same into evidence.
Learned trial Court perhaps relied upon the
provison of Section 294 of Cr P C . Be that as it may
from the post mortem report I find that the autopsy
surgeon found mucus membrance with foul smelling
content but this finding may give birth to the probability
that the lady might have consumed something
poisonous but a sessions case cannot be proved on
such probability, particularly when the Autopsy Surgeon
was not admit the report produced to face cross-
examination. Consent of advocate to the Autopsy
Surgeon cannot be said to be an act of estoppel as
against appellant. It is afterall a question of law that
prosecution is required to prove the charges beyond
reasonable doubt. The prosecution witnesses ,
particularly the parents and neighbouring people
stated that victim was subjected to torture , her
husband did not provide her food and she was
oppressed by her husband. In my considered opinion
this is a general omnibus statement based on which
charge under Section 498A of the IPC cannot be said
to have been established. After having a conjugal life
of twelve years the victim committed suicide and what
is transpiring from the evidence is that the man fell in
love with another lady but PW 4 Badenm Bibi stated
that after initial shock Niyara Bibi reconciled with the
situation; she had a quarrel with her husband when
she came to know that her husband wanted to marry
again but the issue was ultimately settled. This is an
exonerating statement. made by proseuction witness.
PW 9 is one of the sons of the victim who stated that
on the fateful day after the quarrel took place between
his parents, his father assaulted his mother for food in
his presence. During cross-examination the child
stated that he was living with his maternal grand
parents who wanted his father to get punished. Child
witness though denied to have been tutored by
maternal grand parents but his sole testimony will not
be enough particularly, when the testimony of the child
is not getting support from any other witnesses, to hold
that the victim was assaulted for food by her husband
on the fateful day. It cannot be said to be an element
to instigate the wife to commit suicide , particuarly
when it has transpired from the testimony of PW 3 that
the accused used to treat his wife well but occasionally
he used to quarrel with his wife. In my opinion, there
is no element to constitute offence within the meaning
of Section 107 of the Indian Penal Code . When it has
not been established beyond doubt that victim
consumed poision coupled with lack of evidence that
she was instigated to commit suicide by her husband ,
I am of the view that prosecution case cannot be said
to have been proved beyond reasonable doubt and the
impugned judgment passed by learned appellate Court
should not be allowed to remain in force. Consequently
the order of conviction is reversed and is converted into
order of acquittal.
The criminal revision, thus, disposed of
together with application , if any.
Let a copy of the order be sent to the learned
trial Court for information and necessary action.
Urgent photostat certified copy of this order,
if applied for, be given to the learned Advocates for the
parties on the usual undertakings.
( Siddhartha Roy Chowdhury, J. )
