RAGHUNATH BHATTACHARYA,J. - (1.) THIS appeal is directed against the judgement and order of conviction passed by Additional District and Sessions Judge, 3rd Fast Track Court, Berhampore, Murshidbad in Sessions Trial No. 416 of 2006 convicting the accused Masud Ali for commission of offence under Section 498A/306 I.P.C. and sentence to suffer R.I. for three years and to pay fine of Rs. 500/- I.D. to S.I. to S.I. for three months for commission of offence under Section 498 I.P.C. and also R.I. for seven years and to pay a fine of Rs. 1,000/- I.D. to S.I. for three months for commission of offence under Section 306 I.P.C. Being aggrieved by and dissatisfied with the said order of conviction the accused Masud Ali preferred the instant appeal.
(2.) SHORTLY put that one Ilias Mia, father of the victim Firdousi Khatun lodged a written complaint to the Nowda P.S. alleging inter alia that at the time of her marriage with Masud Ali, he gave gold ornaments of 6 Bharis and after marriage his son-in-law started to demand for a motor cycle and failure to meet up such demand, Masud Ali started torture upon her wife as a result Firdousi Khatun, the victim girl committed suicide. It is alleged in the written complaint that Masud Ali, his father Ahammad Ali, brother-in-law Rasid Khan used to torture Firdousi Khatun. Hence the prosecution case. The defence case as it appears from the trend of the cross-examination of the prosecution witnesses that of the Court witness and the answer given by the accused person to their respective examination under Section 313 Cr.P.C. is that of absolute innocence. On the basis of the available documents and the paper and after hearing both sides a charge under Section 498A/306 I.P.C. was framed against the accused person to which each of them pleads not guilty and claims to be tried. From the side of the prosecution as many as 14 witnesses were examined. One Md. Fajle Mabud, Anawar Kader, Nazrul Islam, Abdur Rakib, Golam Mostafa, Lal Chand Malitha, Abdul Sk.,Biswanath Kundu, Mojammel Haque, Kazem Ali, Mihir Kumar Kundu were examined as P.W. 1 to P.W. 11. Rakia Khatun was examined as P.W. 12 and she was examined as a Court witness after Court issue summons upon her under Section 311 Cr.P.C., S.I. Kanti Chatterjee is I.O. of this case and P.W. 14 is J.N. Pal who perform the P.M. examination on the dead body of Firdousi Khatun. Out of those fourteen witnesses P.W. 1 contended that Firdousi Khatun expired about 13 years ago. She was deposing in the Court below in the year 2007. According to her she had been to the place of occurrence along with Ilias Mia and witness the dead body of the Firdousi Begam, the police prepared the inquest report in presence of her and he has a signatory of the inquest report. So, P.W. 1 has proved his signature on the inquest report but she had not been stated anything about the alleged torture inflicted upon Firdousi by the member of her in-laws house. P.W. 2 has not stated anything he only signed the seizure list. Before discussing the ocular version of P.W. 3 I like to mention that P.W. 4 is also a seizure witness. P.W. 5 who has signed on the inquest report marked exhibit 1/1. P.W. 6, 7 and 8 have been declared hostile by the prosecution and they remain unshaken during the course of their respective cross-examination and their ocular version did not at all help the prosecution story in any way. P.W. 9 only prove his signature on the inquest report. P.W. 10 has also prove his signature on the inquest report. P.W. 11 prove his signature on the seizure witness. So except P.W. 3 rest 10 witnesses i.e. P.W. 1 to P.W. 11 have not at all stated anything against the accused person. Admittedly I.O. i.e. P.W. 13 has no knowledge about the alleged incident. After the alleged incident the same was endorsed to him. P.W. 14, the doctor who perform the inquest report on the dead body of Firdousi Begam has contended that death was due to extensive burn involving whole of the body and according to the opinion of the doctor death due to the shock as a result of burn which is ante-mortem in nature. So, the entire prosecution case depends upon the ocular version of P.W. 3 and P.W. 12. Now let us turn our attention to P.W. 3. According to P.W. 3 he was a school teacher. He also private tutor of Firdousi Begam. He contended that he had been to be Police Station and police seizes the same letters and he signed the seizure list. He claimed that he knew the handwriting of Firdousi Begam and letters which were seized by the police were produced before him. Witnesses admitted that those letters were written by Firdouosi Begam. In the Course of the cross examination P.W. 3 admitted that during his service tenure he used to teach more than 3,000 students and it was not possible for him to recognize the signature or handwriting of all the students. The Court witness who claimed herself as aunt and she contended that Firdousi used to write the letter to her father stating about the torture inflicted upon her and she also admitted that the letter was written by Firdousi to her father. From the perusal of the evidence and the judgement it appears to me that learned Trial Court convicted the accused Masud Ali on the basis of the ocular version of P.W. 3 and P.W. 12 and the two letters alleged to be written by the victim girl to her father. It is argued by the learned Lawyer for the prosecution that father of the victim girl died but the mother was alive but the mother was not cited in the witness of this case. Moreover, he produced the same decision of the Apex Court. I am going through the decision and on perusal of the decision reported in 2002 SCC (CRI) 1088 and 2002 SCC (CRI) 1141. It appears to me that there is not a single scrap of evidence to show that the accused person compelled Firdousi, the victim girl to commit suicide. Moreover, not a single witnesses except her father stated that the accused demanded a motorcycle. Inspite of those evidences there is nothing on record to come to a conclusion that the accused person has committed an offence. Admittedly the word 'go and die' and the victim found died after couple of days is in my opinion not a case of suicide. Mere a word uttered does not indicate that accused committed an offence punishable under Section 498A/306 I.P.C.
(3.) IN view of the aforesaid discussion I think that there is nothing on record to uphold the judgement passed by the learned Court below. Though learned Counsel for the State tried his level best to uphold the sentence inflicted upon the accused person. Yet I am of the opinion that the forceful submission made by the learned Counsel for the State rings rather hollow. Learned Lawyer for the State placed much reliance upon the two letters alleged to be written by victim Firdousi to her father and ocular version of the Court witness i.e. the aunt of the victim P.W. 12. Admittedly Firdousi's father died prior to the commencing of evidence but her mother was alive. There is no cogent explanation for non-production of the mother of the victim as a witness. Learned Lawyer for the State though tried desperately yet he has failed to impress that Firdousi's aunt was produced as a Court witness not a prosecution witness. P.W. 12 contended in her cross-examination that Firdousi was in a habit writing letter to her father and she handed over those letters to the police but it is curious enough to note that none of those letters was produced. No attempt was made on behalf of the I.O to verify the handwriting. I am not inclined to place much reliance upon the ocular version of the private tutor of the victim girl because during her service life he has taught more than 3000 students and it is quite obvious that it is impossible for any human being to remember the hand writing of all the 3000 students. In view of the aforesaid backdrop and considering the lack of evidence on the point of the torture I think that this is one of the fit case where there was no scope to pass any order of conviction. I view of the aforesaid discussion the appeal stands allowed. The judgement passed by the learned Court below is hereby set aside and the accused be released from his respective bail bond at once. ;