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2021 DIGILAW 46 (TRI)

Khurshed Alam v. State of Tripura

2021-04-09

ARINDAM LODH

body2021
JUDGMENT AND ORDER 1. Heard Mr. Raju Datta, learned counsel appearing for the appellant as well as Mr. Sumit Debnath, learned Additional Public Prosecutor appearing for the State-respondent. 2. This appeal has been preferred against the judgment and order of conviction and sentence dated 09.01.2020, passed in Case No. ST (Type-II) 07 of 2017 by the learned Sessions Judge, Sepahijala District, Sonamura whereby and where-under the appellant was convicted and sentenced to suffer R.I. for 2 (two) years along with a fine of ?5,000/- with default stipulation for the offence under Section 498A of the Indian Penal Code (for short, IPC) and further to suffer R.I. for 6(six) years along with a fine of ?10,000/- with default stipulation for the offence under Section 306 of IPC. Both the sentences were directed to run concurrently. 3. The facts of the prosecution case as projected by the learned trial Court may be reproduced here-in-below: "The gist of the prosecution in short is that on 17.02.2016 one Ali Akbar, S/O Late Abdul Rahim of Amtali Bazar, P.S- Kakraban laid an Ejahar against Khurshed Alam, Hamid Miah, mother of Khurshed Alam and 2 other persons to the O/C Melaghar P.S alleging inter alia that about 10 years back the marriage ceremony of the daughter of the informant namely Aklima Begam was held with accused Khurshed Alam as per Muslim rites and customs. At the time of marriage, they fulfilled all the demands of bride groom side. After about 2 years of their marriage on several occasions the daughter of the complainant was subjected to mental and physical torture by the FIR named accused Khurshed Alam. It is further stated that on 17.02.2016 the informant could learnt that his daughter received burn injury and admitted at AGMC & GBP Hospital, Agartala in serious condition. It is further stated that all the FIR named accused persons set fire over the body of his daughter with intent to kill her. Hence, the informant laid the Ejahar. " 4. The learned trial court on receipt of the charge sheet, framed charges against the accused-husband (appellant, herein) under Sections 498Aand306ofIPC. 5. In course of trial, as many as 18 witnesses were examined and cross-examined. The prosecution introduced 14 documents including the SFSL report. 6. Hence, the informant laid the Ejahar. " 4. The learned trial court on receipt of the charge sheet, framed charges against the accused-husband (appellant, herein) under Sections 498Aand306ofIPC. 5. In course of trial, as many as 18 witnesses were examined and cross-examined. The prosecution introduced 14 documents including the SFSL report. 6. At the closure of recording prosecution evidence, the learned Sessions Judge examined the accused under Section 313 of CrPC, when he was noticed about all the incriminating evidences as surfaced against him to which he denied all the allegations levelled against him by the prosecution witnesses and claimed that he has been falsely implicated in this case. 7. Learned Sessions Judge after hearing the arguments advanced by the learned counsels appearing for the parties recorded the findings of guilt against the accused-appellant and accordingly convicted and sentenced the accused-appellant as aforestated. 8. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the convict-appellant has preferred the instant appeal challenging his conviction and sentence as stated here-in-above. 9. Mr. Datta, learned counsel appearing for the appellant submits that the prosecution has miserably failed to substantiate the charges framed against the appellant. The dying declaration of the victim does not reveal any of the ingredients of Section 498A and Section 306 of IPC. The neighbouring witnesses who deposed before the court have categorically stated that there was good relation between the accused and his deceased wife, though the witnesses were subsequently declared hostile by the prosecution. 10. On the other hand, Mr. Debnath, learned Addl. Public Prosecutor submits that the depositions of PW-1 and PW-5 have proved the case of prosecution that the deceased was always subjected to torture and thus, learned Addl. P.P. finds the ingredients of Section 498A of IPC. Lastly, learned Addl. P.P. submits that such tortures had led the deceased to commit suicide. 11. Based on those aforesaid rival submissions, I have perused the evidence and materials on record. 12. PW-1, the informant of the case being the father of the deceased has just replicated the statements which he made in the FIR. He deposed that at the time of marriage he paid ?40,000/- in cash and with ornaments etc. to the accused. The relationship between his deceased daughter and the accused were good for a few months. Thereafter, the accused started torture upon her. He deposed that at the time of marriage he paid ?40,000/- in cash and with ornaments etc. to the accused. The relationship between his deceased daughter and the accused were good for a few months. Thereafter, the accused started torture upon her. He also provided one cow to the accused. He further deposed that on the day of incident, so far his knowledge, his daughter and the accused had gone to a Branch of Bandhan Bank in connection with some loan matter. At Bandhan Bank itself, the accused assaulted his daughter. The accused forced his daughter to return to house. After returning to her house his daughter expressed that she wanted to go to her parental house and for that reason she was tortured. Thereafter, he received an information that his daughter was admitted to hospital with burn injuries. PW-1 talked to his daughter and enquired the matter as to who had set her on fire. Then, she told that she herself has committed the same being unable to bear torture upon her by the accused. Thereafter, he lodged the FIR. Being confronted with cross-examination, the statement in respect of the fact that at Bandhan Bank his son-in-law i.e. accused had assaulted his daughter i.e. the deceased, was found absent in his previous statement recorded under Section 161 of CrPC. There are some improved versions also in his cross-examination. 13. PW-2, Mst. Nurjahan Bibi, a neighbouring witness, was declared hostile. PW-3 and PW-4 were also neighbouring witnesses and they did not support the prosecution case as they were also declared hostile. 14. PW-5 Abdul Majid, one of the neighbours of PW-1 deposed that he heard the incident of assault upon the deceased from PW-1. So, this witness is a hearsay witness and his evidence is not admissible. 15. PW-6, Hazi Abdul Gaffur deposed that one day during 'namaz' he was told by PW-1 that his daughter was being tortured by the accused. 16. PW-7, Ramjan Ali is the brother of the victim. He supported the version of PW-1. His evidence is also found to be substantially improved when his attention was drawn to his examination-in-chief made before the court were found absent in his previous statement recorded under Section 161 of CrPC. 17. PW-8, Farid Miah is not a material witness. PW-9, Sri Pradip Bhowmik was the scribe of the ejahar [Exbt.1/1 as a whole]. His evidence is also found to be substantially improved when his attention was drawn to his examination-in-chief made before the court were found absent in his previous statement recorded under Section 161 of CrPC. 17. PW-8, Farid Miah is not a material witness. PW-9, Sri Pradip Bhowmik was the scribe of the ejahar [Exbt.1/1 as a whole]. PW-10 was declared hostile as he deposed that the relationship between the accused and his deceased wife was good. PW-11 was also declared hostile as he supported the version of PW-10 regarding good relationship of accused with his deceased wife. PW-12 was the driver of the vehicle [Maruti Van] who shifted the deceased to the hospital along with the accused and his father. 18. PW-13, Sri Debashis Das is the Deputy Collector and Magistrate who deposed that he obtained the LTI of the victim after recording her statement i.e. the dying declaration. He identified the dying declaration [Exbt.10] recorded by him in his own hand writing. His signature [Exbt.10/1] on the said dying declaration was also identified by him. 19. PW-14, Dr. Pradipta Narayan Chakraborty deposed that the deceased had sustained 92% burn injury and due to this she died. He did not locate any other injuries on the person of the deceased 20. PW-15, Dr. Sumen Debbarma deposed that at the time of admission the deceased was in sound state of mind to give dying declaration. PW-16 Smt. Hemlata Debbarma was posed as Woman Asistant Sub-inspector of police at GB Out Post. She was witness of the inquest report which was prepared by one constable, Mihirlal Das. PW-17, S.I. Pritam Chakma was the registering officer of the case who filled up the FIR form. 21. PW-18, S.I. Ajit Kanti Chakma was the investigating officer. He deposed that after receipt of the ejahar he was endorsed to investigate the case. During investigation, he visited the place of occurrence, seized the wearing apparels, examined and recorded the statements of the available witnesses, collected the dying declaration. On completion of investigation, being prima facie satisfied, he submitted charge-sheet against the accused-appellant. 22. He deposed that after receipt of the ejahar he was endorsed to investigate the case. During investigation, he visited the place of occurrence, seized the wearing apparels, examined and recorded the statements of the available witnesses, collected the dying declaration. On completion of investigation, being prima facie satisfied, he submitted charge-sheet against the accused-appellant. 22. On close scrutiny of the evidence as stated here-in-above, in my opinion, to decide the sustainability of the judgment and order of conviction and sentence, it is most relevant to have a look to the dying declaration [Exbt.10] which is reproduced here-in-below: "I am Smt. Aklima Begam, W/o Khurshed Alam of the resident of vill. Baniacherra, under the Police-station- Melaghar. My husband had inflicted torture physically on me by way of threatening me further stated that he would set ablaze the hut by fire. Being irritated and unable to bear tortures inflicted upon me fire was set by me upon my person after pouring kerosene on my own body. My husband always inflicts physical torture upon me." 23. From the aforesaid dying declaration, in my opinion, it does not attract the ingredients of Section 498A and Section 306 of IPC. Section 306 of IPC has to be read with Section 107 of IPC. Both Section 107 and Section 306 of IPC read as under:- "306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. " "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." 24. Before I go into the merits of the case, let me go through some of the authorities relating to the offence under Section 306 of IPC. In Randhir Singh Vrs. Before I go into the merits of the case, let me go through some of the authorities relating to the offence under Section 306 of IPC. In Randhir Singh Vrs. State of Punjab (2004) 13 SCC 129 , the apex Court held that at para 12 which reads as follows:- "12.Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306IPC." 25. In State of West Bengal Vrs. Orilal Jaiswal (1994) 1 SCC 73 , the apex court had observed that- "the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. " 26. In Mangat Ram Vrs. State of Haryana, (2014) 12 SCC 295, the apex court at para 28 had observed thus- "28. We have already indicated that the trial court has found that no offence under Section 304B IPC has been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been framed on that section against the accused. The scope and ambit of Section 306 IPC has not been properly appreciated by the courts below..... Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. The scope and ambit of Section 306 IPC has not been properly appreciated by the courts below..... Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide. " 27. Keeping in view of the aforesaid principles as enunciated by the apex court and in various decisions of this court, I may unhesitantly come to the conclusion on careful reading of the dying declaration that the prosecution has failed to make out a case in respect of the facts and circumstances that the accused-appellant at any point of time instigated or just before the death of the deceased had aided or intentionally inflicted torture upon her which drove her to commit suicide. In the dying declaration the deceased had only said that on that date she was physically tortured and also threatened to set ablaze the hut. Further, she stated that being irritated and unable to bear physical tortures inflicted upon her by her husband she committed suicide by pouring kerosene on her own body. From the statements of the deceased in the form of dying declaration and on meticulous assessment of the evidence as adduced by the prosecution witnesses, there is no element that the accused used to torture his wife only with the intention to drive her to commit suicide. PW-1 being the father of the deceased stated that on the date of incident, his daughter was tortured at Bandhan Bank. The prosecution has failed to bring any witnesses who were present in Bandhan Bank at that point of time. PW-1 being the father of the deceased stated that on the date of incident, his daughter was tortured at Bandhan Bank. The prosecution has failed to bring any witnesses who were present in Bandhan Bank at that point of time. More so, this statement in his examination-in-chief is found to be a improved version as the same has not been found in his previous statement recorded under Section 161, CrPC. There were independent witnesses being the neighbouring people, but, none of the independent witnesses has supported the version of the prosecution that the accused used to torture the deceased, rather, they have said that there was good relation between the husband and wife i.e. the accused and the deceased. Further, the torture for demand of money has not been proved beyond reasonable doubt. From the dying declaration, it appears to this court that the deceased was hypersensitive in nature and in that case it would not be appropriate for the court to punish or convict the accused-appellant for doing offence under Section 306 of IPC. 28. I have already held that the prosecution has miserably failed to establish the charge under section 498A of IPC levelled against the accused for the reasons that the prosecution witnesses have failed to place on record any reliable and cogent evidence to establish the ingredients of 'cruelty' and 'abetment'. Least to say, its extent and gravity of the nature of torture inflicted upon the deceased by the appellant at any point of time during marriage life. Added to it, the prosecution has also failed to project a case that the deceased was subjected to such a degree of torture which compelled her to commit suicide. 28.1 There is clear finding of the Doctor who conducted the postmortem examination that there is no sign of injury on any parts on the person of the deceased which aptly proves that even before committing suicide the extent of torture was not to that kind of degree which forced her to commit suicide. 29. In my opinion, the proof of willful acts and conduct driving the woman to commit suicide is a sine qua non for entering into a finding of "cruelty" against a person charged. 30. For the reasons discussed and stated here-in-above, I find enough substance in this appeal to set aside the judgment and order of conviction and sentence recorded by the learned trial Judge. 30. For the reasons discussed and stated here-in-above, I find enough substance in this appeal to set aside the judgment and order of conviction and sentence recorded by the learned trial Judge. 31. Accordingly, the appeal is allowed. The judgment and order of conviction and sentence dated 09.01.2020, passed by learned Sessions Judge, Sepahijala District, Sonamura in case No. ST(Type-II) 07 of 2017 stands set aside and quashed. The accused-appellant Khurshed Alam is set at liberty. 32. It is submitted that the accused-appellant, namely, Khurshed Alam is on bail. As such, he is discharged from his bail bond. Surety of the bail bond is also discharged. Send back the LCRs.