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2010 DIGILAW 384 (GAU)

Md. Akbor Ali v. State of Assam

2010-06-01

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. U. Bhuyan, learned Counsel for the accused/appellants and also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam. 2. The appellants were convicted under Section 304, Part-II, IPC and sentenced each of them to suffer R.I. for 3 years and to pay a fine of Rs. 2,000 each in default to suffer R.I. for another 6 months vide judgment and order dated 7.3.2003 rendered by the learned Sessions Judge, Nagaon in Sessions Case No. 172(N)/2000. 3. Aggrieved by and dissatisfied with the same, they have preferred this appeal. The prosecution story runs like, thus: 4. The informant's daughter Safia Khatun was given in marriage to Akbar Ali, accused/appellant No. 1, son of Abdul Kadir, accused/appellant No. 2. The marital life was running smoothly, but after 5/6 months, she was found dead on 12.6.1998 in the house of her husband. Police, after investigation, submitted charge sheet under Section 302/36, IPC and the case was committed for trial to the Court of learned Sessions Judge, Nagaon. Charge was framed under Section 302/34, IPC against the accused/appellants, to which, they pleaded not guilty and demanded trial. The prosecution examined 6 witnesses. The defence examined none. The learned trial court on completion of the evidence and materials on record and after hearing the learned Counsel for the parties, recorded conviction and sentence as indicated above. 5. Mr. Bhuyan, learned Counsel for the accused/appellants submits that there is no evidence on record that the accused/appellants were involved in the death of the victim. The conviction and sentence was awarded only on presumption. The learned trial court has put emphasis on certain facts that immediately after the death of Safia, the accused persons, being the husband and father-in-law did not inform the parents of the deceased and they had fled away from their house. In other words, the trial court relied on the so-called post-crime conduct of the accused persons. According to Mr. Bhuyan, such alleged post crime conduct, even if it is taken as true, cannot be a ground for conviction of the accused persons. He also submits that the prosecution was unsuccessful in proving its case as per the standard set in the criminal trial, which must be beyond reasonable doubt. 6. I have gone through the records made available at the time of hearing. The investigating officer during investigation conducted inquest in presence of some witnesses. He also submits that the prosecution was unsuccessful in proving its case as per the standard set in the criminal trial, which must be beyond reasonable doubt. 6. I have gone through the records made available at the time of hearing. The investigating officer during investigation conducted inquest in presence of some witnesses. According to him, he found no external injury on the dead body. The dead body was sent for post mortem at Nagaon Civil Hospital. PW 6, Dr. Maheswar Talukdar, who conducted the post mortem examination also could not locate any injury on the dead body of the deceased. He found everything normal. He could not record any opinion on the cause of death of the deceased. The prosecution preserved the viscera and sent the same for FSL examination. The report was collected, but the prosecution did not examine any responsible official from the FSL to prove the same. The aforesaid FSL report reveals "negative tests for common poisons". 7. An attempt was made by the prosecution to prove by the evidence of PW 1 and 2 that Safia was killed by poisoning, but the aforesaid FSL examination is not supporting their case. 8. From the evidence of PW 6, it is made clear that he conducted the post mortem examination being the SDM & HO of the said Civil Hospital, but did not disclose whether he alone conducted the post mortem examination on the dead body or accompanied by some other doctors. In such cases where the Medical Officer could not give any opinion, it is necessary on the part of the prosecution to examine the other doctors, who were party to the post mortem examination to ascertain at least the tentative cause of death of the deceased. 9. Moreover, the prosecution did not make any attempt to prove FSL report, although, the same was collected. The veracity of the report should be tested by examining the officials who conducted the test and if necessary, it should be referred to other advanced institution to have the expert opinion. 10. 9. Moreover, the prosecution did not make any attempt to prove FSL report, although, the same was collected. The veracity of the report should be tested by examining the officials who conducted the test and if necessary, it should be referred to other advanced institution to have the expert opinion. 10. In my considered view, in the interest of justice, the matter should be remanded to learned trial court to examine the doctor/doctors of Nagaon Civil Hospital, if any, who accompanied PW 6 at the time of conducting the post mortem examination on the dead body of the deceased and have their statements recorded and also to examine the responsible officer from the Forensic Science Laboratory to prove FSL report. 11. In view of the above, the impugned judgment and order dated 7.3.2003 passed by the learned Sessions Judge in Sessions Case No. 172 (N)/2000 is set aside and quashed. The matter stands remanded to the aforesaid learned Sessions Judge, Nagaon for further evidence as indicated above and for fresh decision in accordance with law. Return the LCR forthwith. 12. The accused/appellants shall be allowed to remain on bail till disposal of the matter on remand.