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2015 DIGILAW 301 (GAU)

Manjil Bora v. State of Assam

2015-03-12

B.K.SHARMA

body2015
JUDGEMENT AND ORDER (ORAL) 1. By means of this appeal, the accused appellant has assailed the judgment of conviction dated 23/11/2005 of the learned Additional Sessions Judge (Adhoc), Hojai at Sankardev Nagar, passed in Sessions Case No. 106(N)05. By the said judgment, the accused appellant has been convicted under Section 306/34 IPC with the sentence to undergo R.I. for 3 (three) years and also to pay a fine of Rs. 5000/- and in default to undergo S.I. for another 60 (sixty) days. 2. At the very outset, the learned counsel for the parties submits that in view of acquittal of the co-accused persons, namely, Kankan Bora and Smt. Bina Bora, the learned trial Court could not have convicted the accused appellant under Section 306 IPC in reference to Section 34 IPC. 3. The prosecution story in brief is that on 11/11/2003 at night, the victim i.e. the deceased committed suicide in the house of the husband i.e. the accused appellant in suspicious circumstances. As per the FIR, the family member of her husband did not like her and deprived her what she deserved as daughter-in-law. As per the FIR, accused appellant used to assault her taking wine. It was alleged that as a result of unbearable physical and mental torture, she committed suicide. 4. On receipt of the FIR, Jamunamukh P.S. Case No. 30/03 was registered and in due course on completion of investigation, the I.O. submitted charge sheet against the accused appellant, Shri Kankan Bora and Smt. Bina Bora under Section 306/34 IPC. The learned trial Court formally charged the accused persons under Section 306/34 IPC on being read over and explained the charge to the accused persons, they pleaded not guilty and claimed to be tried. 5. In support of the prosecution case, altogether 9 (nine) PWs were examined the accused persons were also examined under Section 313 Cr.P.C. Raising the following points for determination, the learned trial Court having answered the same in the form of the impugned judgment of conviction and sentence, this appeal has been preferred :- “1. Whether the accused persons in furtherance of their common intention abetted the commission of suicide by Moromi Bora by physically and mentally torturing her during her stay in their house as the wife of Manjil Bora on the relevant day, time and place or not ?. 6. Whether the accused persons in furtherance of their common intention abetted the commission of suicide by Moromi Bora by physically and mentally torturing her during her stay in their house as the wife of Manjil Bora on the relevant day, time and place or not ?. 6. On perusal of the impugned judgment of conviction, it is found that upon discussion of the evidence on record, the learned Trial Court has held that there was no physical torture on the deceased by the accused persons. However, the accused appellant has been convicted on the ground that there was enough mental torture. Such a finding has been recorded on the basis of the evidence of PW-1, PW-2 and PW-3, who in their deposition stated that the deceased was not allowed to visit her paternal house. PW-2 and PW-3 in their deposition also supported the version of PW-1. 7. PW-4 did not state anything as to how the wife of the accused appellant died. According to PW-5 and PW-6, the wife of the accused appellant committed suicide. Neither the accused appellant nor any member of his family tortured her during her stay in their house. PW-8 stated in her deposition that she was not aware as to how the deceased died. She only heard that she had committed suicide. 8. It is on the basis of the aforesaid evidence, the learned trial Court was of the opinion that although there was no physical torture on the deceased but there was mental torture on her which forced her to commit suicide. 9. As noted above, PW-1, PW-2 and PW-3 in their deposition stated that the deceased was not allowed to visit her mother or any other relatives nor to their houses. On the other hand, PW-5 and PW-6 stated that the deceased at times used to visit their houses and talked with them. As stated by them, the deceased had informed their wives about her suspicion on the role of her husband. The learned trial Court basing on the said evidence of alleged mental torture by not allowing her to visit her mother’s house and other relatives, has convicted the accused appellant under Section 306 IPC. 10. Even assuming that the deceased was not allowed to visit her mother and other relatives, same by itself cannot constitute an offence punishable under Section 306 IPC. 10. Even assuming that the deceased was not allowed to visit her mother and other relatives, same by itself cannot constitute an offence punishable under Section 306 IPC. Section 306 IPC provides that if any person commits suicide, who ever abets the commission of such suicide, shall be punished with the imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Section 107 IPC defines abetment of a thing as follows :- “107. Abetment of a thing.—A person abets the doing of a thing, who— First — Instigates any person to do that thing; or Secondly —Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly — Intentionally aids, by any act or illegal omission, the doing of that thing.” 11. From the above, what is seen is that to constitute an offence punishable under Section 306 IPC, ingredients of instigation, aid and abet, intentional aids and abetment of a thing are required to be established. In the instant case, the learned trial Court itself has recorded the categorical finding that there was no physical torture on the deceased by the accused appellant. As regard the purported mental torture, the learned trial Court has placed heavy reliance on the evidence of the aforesaid witnesses who simply deposed that the deceased was not allowed to visit her mother’s house and other relatives. 12. As the prosecution evidence has disclosed there was also suspicion in the mind of the deceased against her husband since he used to act in village dramas. It is in the evidence of PW-5 and PW-6 that she did not like her husband acting as King which made him to associate with another lady who acted as queen. In this connection, the statement of the accused appellant under Section 313 Cr. P. C. may be referred to, in which he stated that he used to love the deceased. He also denied that the deceased was not allowed to go out of his home and categorically stated that she used to go here and there. Answering the particular question, he stated that his wife committed suicide and that the deceased did not like him acting in dramas. He also denied that the deceased was not allowed to go out of his home and categorically stated that she used to go here and there. Answering the particular question, he stated that his wife committed suicide and that the deceased did not like him acting in dramas. According to him, she wanted him to come back home early as she was suspicious. 13. The learned trial Court while acquitting the other accused persons has convicted the accused appellant on the basis of above discussed evidence. In absence of the required ingredients to establish the offence punishable under Section 306 IPC, I am of the considered opinion that the impugned judgment of conviction is not sustainable and the same stands set aside. 14. Appeal is allowed, by setting aside the impugned judgment of conviction. The appellant is already on bail pursuant to the order passed on 23/12/2005 in MC 4265/2005. Bail bond shall stand discharged. 15. Registry shall send down the case records to the learned Court below along with the copy of this judgment.