RAHIM BADSHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgment and order dated 25.02.2016 & 26.02.2016 passed by the learned Additional Sessions Judge, Fast Track Court, 2nd Court, Alipore in Sessions Trial No.6(2) of 2011 and Sessions Case No.27(12) of 2010 convicting the appellant for commission of offence punishable under Sections 498A/302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default of fine to suffer further simple imprisonment for five months for the offence under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years and to pay fine of Rs.5,000/- in default of fine to suffer simple imprisonment for five months more under Section 498A of the Indian Penal Code, both the sentences will run concurrently.

(2.) Prosecution case as levelled against the appellant is to the effect that the appellant was married to Aklima, daughter of Nayeb, P.W.5 on 18.03.2009. At the time of marriage, a motorcycle, gold ornaments and other articles were gifted to the appellant. The appellant was employed in the armed forces and was posted at Jammu and Kashmir. After marriage Aklima started residing at her matrimonial home at village Golapara, P.O. Golapara, P.S. Abhyapuri, Dist. Bongaigaon, Assam. Few months after the marriage appellant and other in-laws started mental and physical torture upon Aklima on demand of a sum of Rs.30,000/-. Due to such torture father of Aklima, P.W.5 went to her matrimonial home to negotiate and saw Aklima was tortured in his presence and as a result he brought back his daughter to his residence. Subsequently, upon negotiation an agreement was executed between the appellant on the one hand and P.W.5, father of Aklima on the other hand wherein the appellant admitted that Aklima would not be tortured and would stay with the appellant at his place of work. On such undertaking she returned to the matrimonial home. Thereafter Aklima started residing with the appellant at Command Hospital Complex, Alipore. Prior to the incident, P.W.5 received a phone call that the appellant was again tortured Aklima. He had even threatened to throw her from the 6th floor apartment where they were residing. Hearing this father of Aklima, P.W.5 and his brother-in-law P.W.6 came to Calcutta from Assam. On 18.08.2010 they went to the residence of the appellant and was informed by Aklima that she has been assaulted by the appellant. Subsequently, the appellant came with three military officers including one Hav- C. Angapan (P.W.12), Habilder S.N. Singh, Nayek U.S. Sahu and they informed P.W.5 that there was misunderstanding between the appellant and the victim and the incident will not be repeated. Thereafter, P.W.5 and 6 went to sleep in one room while the couple retired to bed in another room. All of them woke up at 3.45 A.M. as they were observing "Roja". There are two bedrooms in the flat of the apartment and a veranda which was visible from both the rooms. At 6 A.M. appellant left for his duty. Around 7.30 A.M. P.W.5 heard a scream of his daughter that "he is throwing me down". Peeping from the window of his room, P.W.5 saw the outstrached hands of the appellant at the side of the veranda. Thereafter, appellant withdrew his hands and fled away. Simultaneously, they heard a thud. P.W.5 & P.W.6 chased the appellant downstairs and when they reached the ground floor they found Aklima lying below the veranda in a bleeding condition. Appellant fled away to his office. P.W.5 & P.W.6 picked up Aklima. Jawans also came to the spot and the victim was taken to Command Hospital in a white sumo. Subsequently, Aklima was admitted at Command Hospital by P.W.10. P.W.5 made a statement to the police officer at the hospital which was registered as F.I.R. being Alipore P.S. Case No.184 dated 19.08.2010 under Section 498A/307 of the IPC. Subsequently Aklima expired on 28.08.2010 and Section 302 of the IPC was added. In the course of investigation P.W.18, I.O. made a requisition to the commanding officer for handing over custody of the appellant. He was medically examined in the course of investigation and injuries were found on his body. In the course of investigation TI parade was held and P.W 2, a labour working at the place of occurrence, identified the appellant as person who threw a lady from the sixth floor of the building and ran away. In conclusion of investigation, charge sheet was filed under sections 498A/302 IPC against the appellant. The case being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Fast Track Court II, Alipore, South 24 Pgs for trial and disposal. Charges were framed under the aforesaid sections. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 20 witnesses and exhibited a number of documents. It was the specific defence of the appellant that the relationship between the appellant and the victim was cordial and he was on duty at the time when the victim had suffered a fall from the veranda. He, however, did not examine any witness to probabilise such defence. In conclusion of trial, the trial Judge by the impugned judgement and order dated 25/26.2.2016 convicted and sentenced the appellant, as aforesaid.

(3.) Mr. Bhattacharya, learned Counsel appearing for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt. Circumstances relied on by the trial judge had neither been proved nor did they form a complete chain pointing to the guilt of the appellant. Although P.Ws 5 and 6 claimed to be eye-witnesses who had seen the appellant throw the victim from the veranda of his apartment, it was reported in the medical papers at the command hospital that the victim had suffered "accidental fall". It is pertinent to note that the aforesaid version of P.W 5 and 6 is in clear contradiction to the FIR as well as their earlier statement before the police. Recording of FIR is shrouded in mystery and it is unclear when P.W 5 the appellant was arrested from the custody of the commanding officer, the latter not being examined in this case. No investigation was done with regard to the place where the victim allegedly fall from the veranda of the six-storied apartment and no blood was collected from the place of occurrence. Medical papers relating to the treatment of the victim have also not been seized. He vehemently argued that no reliance ought to be placed on the evidence of P.W 2, a chance witness, as his presence at the place of occurrence is improbabilised by the version of his employer, P.W 4 who stated that the site of work was outside the compound of the command hospital and the same was separated by a boundary wall. T.I parade was held two months after the incident and suffers from various infirmities. On the other hand, P.W 18 in cross examination admitted that the documents show that the appellant was on duty on the fateful day between 6 am to 12.30 p.m. clearly improbabilises the prosecution case. Evidences of P.W 7 and 8 with regard to the drafting and execution of the agreement between the appellant and P.W 5 relating to the torture of the victim is highly improbable. Evidence of P.W 12 also does not inspire confidence. On the other hand, it establishes the fact that the appellant had informed about the accidental fall of his wife at the earliest opportunity which is also reflected in the medical papers contemporaneously prepared at the command hospital even prior to the lodging of FIR. Hence, the prosecution case is liable to be rejected and the appellant is entitled to an order of acquittal. He supplemented his oral argument with written statement.