Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 1211 (GAU)

Jeleka Khatun v. State of Assam

2012-10-15

P.K.MUSAHARY

body2012
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A.R. Bhuiyan, learned counsel for the revision petitioner and also Mr. K. Munir, learned Addl. Public Prosecutor, Assam. By a judgment and order dated 15.3.2010 passed by the learned Assistant Sessions Judge, Barpeta in Sessions Case No. 48/2009, corresponding to G.R. Case No. 205/2007, the petitioner was convicted under Section 326/307 IPC and sentenced to undergo Rigorous Imprisonment for 5 years and to pay fine of Rs. 3,000/-, in default, to undergo further Simple Imprisonment for 2 months. Against the said order of conviction and sentence, the petitioner filed an appeal, being Criminal Appeal Case No. 10/2010 before the learned Sessions Judge, Barpeta, which was made over to the Addl. Sessions Judge for disposal. By a judgment and order dated 12.7.2011 passed in the said appeal, set aside the aforesaid judgment and order of the learned Asstt. Sessions Judge, Barpeta and convicted the petitioner under Section 324 IPC and sentenced to undergo R.I. for 3 years and pay fine of Rs. 1,000/-, in default, S.I. for another 1 (one) month. In other words, the learned appellate Court converted the conviction under Section 326 and 307 IPC to one under Section 324 IPC and reduced the sentence from 5 years R.I. and fine of Rs. 3,000/- to 3 years R.I. and fine of Rs. 1,000/- only. 2. The present petition is directed against the impugned judgment and order dated 12.7.2011 rendered by the learned appellate Court below. 3. Briefly narrated, the prosecution story is that the petitioner allegedly set fire on the person of Nilima Khatun causing 30% burn injury to her. Both Nilima and the petitioner were living in a same house as wives of one Muslem Uddin. The alleged incident took place on 2.2.2007 at about 6.00 P.M. when their husband was not at home. On hearing hue and cry, the neighbours came to the place of occurrence and doused the fire. Victim's father Md. Azgar Ali Talukdar lodged an F.I.R., on the basis of which the Barpeta P.S. Case No. 95/2007 was registered under Section 307 IPC, giving rise to G.R. Case No. 205/2007. 4. On completion of the investigation, the charge sheet was submitted under Section 307/326 IPC and the charge was framed against the petitioner under Sections 307/326 IPC. Victim's father Md. Azgar Ali Talukdar lodged an F.I.R., on the basis of which the Barpeta P.S. Case No. 95/2007 was registered under Section 307 IPC, giving rise to G.R. Case No. 205/2007. 4. On completion of the investigation, the charge sheet was submitted under Section 307/326 IPC and the charge was framed against the petitioner under Sections 307/326 IPC. The said charge was read over and explained to the petitioner who pleaded not guilty and claimed to stand the trial and accordingly she stood the trial. 5. The prosecution examined 7 witnesses including the victim woman, the Investigating Officer and the Medical Officer. The accused petitioner was examined under Section 313 CrPC, but she did not examine any witness in her defence. On consideration of the relevant record and upon hearing the learned counsel for the parties, the learned trial Court convicted and sentenced the accused petitioner as indicated above, which on appeal, was modified to the extent indicated above. 6. It is to be noted that there is no eye-witness to the incident inasmuch as the incident took place when the husband of the accused was not present at home. The unofficial witnesses examined by the prosecution are all neighbours and they have not witnessed the incident. As per their evidence, except the petitioner, no body was present at home at the time of occurrence and the petitioner did nothing to douse the fire and save the victim. In such circumstances, the learned trial Court drew an inference of guilt against the petitioner. 7. It is further to be noted that the victim was shifted to Barpeta Civil Hospital for treatment, where she had to remain as indoor patient for 14 days with 30% burn injury. From the record, it does not appear that the victim was produced before the Magistrate for recording her statement under Section 164 CrPC. 8. The inference of guilt is not supported by any cogent evidence or materials on record. As no statement was recorded under Section 164 CrPC, it has not been brought to light that there was any motive disclosed by the victim in allegedly setting fire on her. In a case of conviction based on circumstantial evidence, the motive is to be established by the prosecution. As no statement was recorded under Section 164 CrPC, it has not been brought to light that there was any motive disclosed by the victim in allegedly setting fire on her. In a case of conviction based on circumstantial evidence, the motive is to be established by the prosecution. Going through the evidence of unofficial witnesses, it is found that none of them deposed before the Court that there was any quarrel or fight between the accused the victim immediately before the alleged occurrence or they had been engaging themselves in constant quarrel on earlier occasions over some matters. No enmity or animosity between the two has been established from the evidence of the witnesses. In absence of such evidence and materials on record, it is not justified to draw any inference of guilt against the accused petitioner simply because she alone was present at the time of occurrence, when the fire was engulfing the victim. 9. There is no doubt that the victim suffered 30% burn injury as per the evidence of the doctor. Even from the evidence of P.W. 1, the informant's father and the victim girl does not reveal anything about the enmity between the accused petitioner and the victim. He has not mentioned about any motive behind the alleged setting of fire on the person of the victim. In my considered view, the learned Courts below failed to appreciate the evidence on record and also the basis on which an inference of guilt could legally be drawn against an accused. What is apparent is that the learned Courts below held the accused petitioner guilty without any cogent and firm materials/evidence on record. In other words, it can be said that the charge against the accused petitioner was not proved by the prosecution beyond reasonable doubt. In absence of such standard of proof, I am not inclined to uphold the conviction and sentence recorded by the learned trial Court against the accused petitioner and also the modification in the conviction and sentence, as passed by the learned appellate Court below. The convict petitioner is entitled to benefit of doubt and acquittal on the said ground. Accordingly, the impugned judgment and order passed by the learned trial Court as well as appellate Court below are set aside and quashed. The convict petitioner is acquitted on benefit of doubt. 10. The convict petitioner is entitled to benefit of doubt and acquittal on the said ground. Accordingly, the impugned judgment and order passed by the learned trial Court as well as appellate Court below are set aside and quashed. The convict petitioner is acquitted on benefit of doubt. 10. It is stated at the Bar that the petitioner is on bail. It is, therefore, ordered that the bail bond shall stand discharged. Petition stands allowed. Return the L.C.R. Petition allowed.