High Court · 2012

On 06-10-2003, Musstt. Mherun Nessa, maternal aunt of the deceased filed a complaint petition before the Chief Judicial Magistrate alleging that decease d Amina @ Maina was killed by the accused persons. She also alleged that the ac cused persons caused her death in order to grab the landed property and that the accused persons also concealed the dead body. The case was transferred to the C ourt of learned SDJM, who recorded the statement of complainant and called for a police report. On receipt of the police report, the statement remaining 8 witn esses were recorded and the prima facie case under Section 302/34 IPC being foun d, the accused were summoned. The case being exclusively triable by the court o f Sessions, it was committed for trial. 4]. Learned Sessions Judge framed charge under Section 302/34 IPC against t he accused appellants. The accused persons pleaded not guilty to the charge and claimed to be tried. 5]. During the trial, altogether 10 witnesses including the doctor who has performed the post-mortem on the dead body of the deceased and the police office r, who had held inquest on the dead body were examined. Learned trial Court on c onclusion of the trial, convicted both the accused under Section 306 IPC and sen tenced them rigorous imprisonment for 8 years and also to pay a fine of Rs.5000/ - each, in default, further rigorous imprisonment for one year each. I have heard Mr. B. Islam, learned counsel appearing for the app 6] ellants and Ms. B. Saikia, learned Addl. Public Prosecutor appearing on behalf o f the State of Assam. PW-1, Musstt. Meherun Nessa is the informant. She did not see the occu 7]. rrence but she alleged that the accused persons used to assault Samena. PW-2, M usstt. Sahida Begum stated that Samena was missing and at about 3.30 A.M. she he aring commotion went to the house of accused. She saw the accused Karim holding the Samena and Isamuddin interrogating her. But Samena replied nothing. PW-2 ca me back and after her Namaz, she again went to the house of accused and found th at Samena is dead. She also noticed that Samena’s first finger was parted with. 8]. PW-3, Asar Ali deposed that a day ahead of occurrence, victim Samena was assaulted by the accused persons and one Subur Ali restrained the accused perso ns. Next day, PW-3, heard that Samena is dead. PW-4, Amina Khatun stated that there was frequent quarrel in between the accused persons and the deceased. On previous day of occurrence, Samena remained untraced. Next day, she heard that Samena, has expired. After the arrival of police, she noticed blood stained clo thes, for which accused Hasnara explained that it was menstruation. She also not iced finger impression and black spots on the stomach of the dead body. She fur ther stated that right hand finger of the deceased was parted with. PW-5 is witness to the inquest on the dead body. PW-6, Isamuddin state 9]. d that in the night, he saw Samena in the courtyard of the accused. Accused Kar im was holding the hand of deceased and Hasnara was standing nearby. On his qua rry, Samena did not reply. PW-6 then touched the hand of Samena and found her b ody was cool. He noticed her dress was drenched below her waist. PW-6 then dir ected her to go and change dress. Samena went inside the house to change her dre ss. Meanwhile, he heard cry and when he went inside, he found her dead. PW-7, So bur Ali and PW-8, Firuja Khatun deposed in the same line. 10]. ead body of the deceased on 30-08-2003 and his findings are as follows: - (cid:28)A female dead body of average built with swollen body with foul smelling. Rigor PW-9 Dr. L. C. Nath performed post-mortem examination on the d mortis present. Injury: No any wound or bruise present on external surface of he body. The fing ers of the hands were flexed with presence of mud on the nail way. Thorax: Congested pleura. Larynx and trachea- Presence of reddish froth. Lungs: Right and left lungs congested. Pericardium: Congested. Heart: Full of dark clotted blood. Abdomen: Distended abdomen. Tongue is swollen with multiple injuries. Pharynx and Nasopharynx full of froth. Stomach: Mudy fluid with presence of debries. Small intestine collapsed, large intestine distended with gas and faecal matters . Genital: The uterus is small size, no any product found, stains of stools on anu s present. (cid:29) 11]. PW-10, S. I., Nabiruddin Khan investigated the U.D. Case and submitted the final report. Learned trial Court found that the evidence of doctor was not trustworthy. Learned trial Court also held that the witnesses Isamuddin and Sob ur Ali concealed the true story that the victim Samena was subjected to torture and ill treatment by the accused persons. Learned trial Court found the evidenc e of PW-6, PW-7 and PW-8 not reliable. However, the trial Court held that the e vidence shows that the accused persons tortured the victim to grab landed proper ty of her father and it was due to such atrocities Samena was compelled to commi t suicide. Accordingly, the accused were convicted under Section 306 IPC. 12]. In the present case, the charge under Section 302 read with Section 34 I PC was framed against the accused persons. Section 222 Cr.P.C. entitles a Court to convict a person of an offence which is minor in comparison to the one for w hich he/she is tried. But the offence under Section 302 IPC and the offence und er Section 306 IPC are distinct and different. The basic constituent of offence under Section 302 IPC is homicidal death and under Section 306 IPC is suicidal death and abetment thereof. 13]. In the reported case of Sangaraboina Sreenu Vs. State of Andhra Pradesh, AIR 1997 SC 3233, it was held as under: (cid:28) & & This appeal must succeed for the simple reason that having acquitted the app ellant of the charge under Section 302 IPC, which was the only charge framed aga inst him, the High Court could not have convicted him of the offence under Secti on 306 IPC. It is true that Section 222 Cr.P.C. entitles a Court to convict a p erson of an offence which is minor offence in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation t o an offence under Section 302 IPC within the meaning of Section 222 Cr.P.C for the two offences are of distinct and different categories. While the basic cons tituent of an offence under Section 302 IPC is homicidal death those of Section 306 IPC are suicidal death and abetment thereof. (cid:29) 14]. The complaint in the case was lodged after 2 months and after much delib eration. The medical evidence and ocular evidence were found contradictory. Th e independent witnesses were not found reliable and yet the accused person were held guilty. There was no charge that the victim committed suicide and the accu sed abetted the commission of suicide. There was no evidence that the victim co mmitted suicide. No question was put to the accused persons that the victim com mitted suicide and they abetted the commission of suicide. The accused persons were convicted under Section 306 IPC because the trial Court believed that the v ictim was compelled to commit suicide. 15]. In view of the above discussions, the conviction of appellants under Sec tion 306 IPC and the sentence passed against them are set aside. The appeal is allowed. The accused persons are acquitted and set at liberty forthwith. Their bail bonds stand discharged. 16]. urt below. Send down the LCR along with a copy of this judgment and order to the co