Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1218 (GAU)

Samed Ali v. State of Assam

2015-09-21

RUMI KUMARI PHUKAN

body2015
ORDER : 1. Heard Mr. J. Ahmed, learned counsel for the appellant and Mr. K. Munir, learned Addl. P.P., Assam. 2. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973, preferred against the judgment & order dated 1.12.2006 passed by the learned District & Sessions Judge, Barpeta, in Sessions Case No. 35 of 2005, convicting the appellant under Section 306 IPC and sentenced him to undergo rigorous imprisonment for a period of 8 years with a fine of Rs. 10,000/- (Rupees ten thousand only), in default, to suffer rigorous imprisonment for another two years. 3. The prosecution case, in nut-shell, is that on 9.2.2003, one Abdul Kalam lodged an ejahar at Sarthebari Police Station stating inter alia that in the previous year he gave his first daughter Saniyara Khatun in marriage with Samed Ali by registering a Kabin Nama and at the time of marriage, some cash amount and some ornaments were delivered. After lapse of 6(six) months of their marriage, the appellant and his father and mother started demanding Rs. 25,000/- and otherwise threatened to leave the hope of his daughter. On the other hand, they started physical torture by confining his daughter. The informant was not permitted to bring his daughter back without payment of Rs. 25,000/-. On 8.2.2003, the informant was informed over telephone that his daughter has died. The informant, thereafter, immediately went to the house of the appellant and came to know that his daughter has died. The informant also noticed marks of physical assault on the body of the deceased which was very clearly discernible. The accused person also attempted to bury the dead body since the informant came to know that it was a homicide. The informant brought the dead body of her daughter to his house at about 9 P.M. and informed the police. On the basis of the ejahar, a case was registered as Sarthebari P.S. Case No. 14/03 under Section 304(B)/34 IPC and the police took up the investigation. On completion of the investigation, Sarthebari Police submitted charge sheet under Section 306 I.P.C. against the accused person. As the case is exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate (S), Barpeta committed the case to the Court of Sessions, Barpeta for trial. Accordingly, the case was registered as Sessions Case No. 35 of 2002. 4. On completion of the investigation, Sarthebari Police submitted charge sheet under Section 306 I.P.C. against the accused person. As the case is exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate (S), Barpeta committed the case to the Court of Sessions, Barpeta for trial. Accordingly, the case was registered as Sessions Case No. 35 of 2002. 4. On the charges being explained to the appellant, he pleaded not guilty and claimed to be tried. The prosecution side examined as many as 10(ten) witnesses whereas the defence examined none. The plea of the defence is of total denial. On the conclusion of the trial, the learned Sessions Judge find and hold the accused guilty under Section 306 IPC and convicted and sentenced him as aforesaid. 5. That being aggrieved with the judgment and order of conviction, the present appeal has been preferred on the ground that the learned Court below has committed serious errors of law in convicting the appellant under Section 306 IPC and the same is bad in law, perverse and is liable to be set aside and quashed. The learned court below did not consider the evidence on records and the factual aspects of the case in its proper perspective and thereby a wrong conclusion and decisions has been arrived at since the appellant failed to inform the police about the cause of death of his wife and as per Section 113(A) Evidence Act, presumption of abatement of suicide by married woman can be drawn against the accused. So, the conclusions and decision of the learned Court below is bad in law. The prosecution has failed to establish the prosecution case beyond all reasonable doubt and, as such, the conviction imposed upon the appellant is not sustainable in law. The evidence on record does not warrant conviction and sentence of the appellant under Section 306 IPC and the learned Sessions Judge has misread and misconstrued the evidence on record in convicting the appellant and, as such, the conviction and sentence awarded to the appellant is liable to be set aside and quashed. The evidence relied upon by the prosecution has not been conclusively proved that the appellant is the abettor to commit suicide of the victim. So, the presumption as to the abatement of suicide by married woman will not go against the appellant as has been decided by the trial Judge. The evidence relied upon by the prosecution has not been conclusively proved that the appellant is the abettor to commit suicide of the victim. So, the presumption as to the abatement of suicide by married woman will not go against the appellant as has been decided by the trial Judge. Moreover, the learned trial Judge also wrongly came to a conclusion that if the appellant maintained good relation with his newly married wife, under the circumstances, the occurrence would have not taken place and wrongly held that the presumption for causing death of the victim goes against the appellant, whereas the prosecution has failed to prove the act of causing death by administering poison to the victim. The PWs.2 to 8 have clearly deposed that they do not heard about the differences of mind/dispute etc. between the appellant and the victim/deceased wife. P.W. 8 testified that he came to know from one Sobed Ali that while accused appellant was working in the field, the victim went to deliver a piece of pignut to her husband and then the victim started vomiting in the field and then he carried the victim to home but she died. The learned Trial Judge did not consider this material aspect of version to be true and took a suspicious view. The learned Trial Judge took the circumstantial evidence in a wrong way just to book the appellant under Section 306 IPC without taking into account the evidence of P.W. 5, the informant also and has failed to appreciate the matters on record in proper perspective of law and has convicted the accused appellant inspite of having several infirmities in the prosecution case. It has been prayed to set aside the judgment. 6. I have heard the learned counsel for both the parties and have also carefully considered the evidence so recorded by the Court below. The learned counsel for the appellant has vehemently argued that conviction and sentence of the accused appellant can in no way be sustained due to total lack of evidence. On the other hand, the learned Additional Public Prosecutor could not advance serious argument as against the submission of the learned counsel for the appellant. 7. The learned counsel for the appellant has vehemently argued that conviction and sentence of the accused appellant can in no way be sustained due to total lack of evidence. On the other hand, the learned Additional Public Prosecutor could not advance serious argument as against the submission of the learned counsel for the appellant. 7. At the outset, it may be mentioned here that the very basis of prosecution, i.e. the FIR has made a description of different allegation pertaining to the demand of dowry and also torture upon the victim girl on the part of the appellant. Curiously enough, the said informant had not uttered a single word in support of the contention so averred in the FIR. Rather, as PW.5 he has given evidence only to the extent that prior to the completion of one year of their marriage, he was informed by one Wahed Ali that his daughter Saniara died by consuming poison. Though the dead body of the deceased was brought to his house, later on the body was taken back for funeral and it was the accused who informed the police. Apparently, he has not make a whisper of any allegation as set forth in the FIR. He even stated that he had no knowledge as to how his daughter died. However, the learned Court below has made a wrong appreciation of evidence by taking into account the contents made in the FIR along with his evidence, while the allegation in FIR has not been proved by the informant himself. On the other hand, the informant has not disclosed anything as to how his daughter had died and he is still maintaining good relation with the accused till date. 8. Equally, all other witnesses, namely P.W. 2 (Sorhab Ali), P.W. 3 (Siddique Ali), P.W. 4 (Anowar Hussain), PW. 6 (Sahjahan Ali), P.W. 7 (Hanif Ali) and P.W. 8 (Jamal Uddin Ahmed), so examined by the prosecution has simply stated that they came to know about the death of Saniara i.e. wife of the accused appellant, but they have no idea as to how she died. They simply heard that Saniara died by taking poison, but they do not have any personal knowledge about the cause of death of Saniara. They simply heard that Saniara died by taking poison, but they do not have any personal knowledge about the cause of death of Saniara. P.W. 8 (Jamal Uddin Ahmed), further stated that Somed (appellant) was working in the cultivation field while Saniara went there to deliver pignut to the accused appellant, but at that time she started vomiting some white substance and then the accused appellant carried her to home and called neighbouring people and, thereafter, she died. So all the circumstances is not at all enough to hold that accused administered poison to his wife, nor there is anything to show that at the instigation of the accused appellant his wife Saniara was compelled to commit suicide. The evidence on record also is totally insufficient to hold it to be a case of suicide nor there is any material on record to hold that the accused person inflicted any sort of torture upon the victim/ deceased nor it is a case of demand of dowry. The Court cannot act upon the FIR in this case as the same has not been substantiated by the prosecution itself. 9. Another fatal aspect which is not supporting the prosecution case is that the cause of death of the deceased could not be ascertained in this case. The Medical Officer who conducted the post-mortem examination has given evidence as P.W.1 that cause of death could not be ascertained. The stomach and its contents and part of liver, right kidney are sent for chemical analysis, but no report was received that the same contains poisonous substance. Moreover, there was no external injury over the body of the deceased and all other organs are found to be healthy. Obviously, in the present case there is no any positive evidence to connect the accused within the purview of offence of abatement so as to held him guilty under Section 306 IPC. It is to be noted that the learned Trial Judge has swayed by emotion and presumption as to the reason of death of the deceased Saniara instead of legal evidence. It has also been observed by trial court that if the deceased was kept with due love and care by the accused, she might not have committed suicide in such sort span of married life. It has also been observed by trial court that if the deceased was kept with due love and care by the accused, she might not have committed suicide in such sort span of married life. Certain other presumption has been drawn against the accused that he took the dead body to the house of the informant, then why he came back along with the dead body. But it is settled principle of law that suspicion, however, may be a strong, but it cannot be the basis for conviction of a person and a Court of law has to form an opinion on the basis of legal evidence on record. The foundation of guilt of the accused must be made out from the materials on record, but not from the assumption and presumption of the Court concerned, which may always be subjective consideration. 10. In the given case, though it may depict a sad picture of a death of a bride at an early period of her marriage, but as a Court of law, we are unable to arrive at the guilt of a person unless and until the same is proved by cogent and convincing evidence on record. 11. In view of the discussion and findings above, the impugned judgment and order of conviction dated 1.12.2006 so passed by the learned Sessions Judge, Barpeta in Sessions Case No. 35 of 2015 under Section 306 IPC is hereby set aside. The bail bond stands discharged. Return the LCR with a copy of the judgment.