in the court of assistant sessions …jorhatjudiciary.gov.in/jmt/2017/march/cj/sessions case...
TRANSCRIPT
Page No.1. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
IN THE COURT OF ASSISTANT SESSIONS JUDGE, JORHAT.
PRESENT: Mr. J.M.Barman
Assistant Sessions Judge, Jorhat
SESSIONS CASE NO: 106 (JT)/ 2015
U/S.498-A/307 of I.P.C
State
-vs-
Md.Tabib Ali .
.........Accused.
Committed by Sri C.Barua, Learned J.M.F.C., Jorhat
A P P E A R N A C E:-
Advocate or the state : Mr. I. Ahmed, Learned
Addl.P.P.
Advocate for the accused:Mrs.B.L.Das, Learned Defence
counsel.
Date of framing Charge: 11.08.15.
Date of Evidence : 3.10.15; 28.10.15; 13.7.16;
13.12.16.
Date of argument : 27.2.17.
Date of Judgement : 15.03.17
JUDGEMENT
PROSECUTION CASE:
1. The prosecution story in brief, is that the first informant
Smti.IraAftara Begum lodged one ejahar before the officer-in-
charge of Titabor police station on 10.09.14stating ,inter alia, that
her husband used to torture her both mentally and physically.
The informant has further alleged that on the very day of lodging
Page No.2. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
the ejahar, i.e., on 10.09.14, her husband (accused) again
assaulted her physically and also attempted to set by ablaze by
pouring kerosene oil on her person. But, she along with her two
minor female child, somehow managed to escape from the clutch
of the accused. Hence this case.
INVESTIGATION:
2. After receiving the ejahar from the complainant, the officer
in charge of Titabor police station registered the ejahar as Titabor
PS case number 178/2014 under sections498-A/307 of IPC and
entrusted the investigation to Mr. Nakulch.Phukan. The
investigating officer after completion of his investigation filed
charge-sheet against the present accused person under section
498-A of IPC to stand.
TRIAL:
3. It is pertinent to mention herewith that in the instant case,
initially trial was commenced before the learned Judicial
Magistrate, Titabor. But during recording evidence of the victim
and other prosecution witnesses, learned court found prima facie
material against the accused person 307 of I.P.C, although the
investigating officer had not filed charge sheet against the
accused person under section 307 of I.P.C. Accordingly learned
Judicial Magistrate, Titabor committed the case record to Hon‘ble
Sessions Judge, Jorhat as offence 307 of I.P.C is exclusively
triable by Sessions Court. After receiving the case record from the
committal court, the case was registered as Sessions Case No:
106(JJ)/2015 and the Learned Sessions Judge pleased to transfer
the case record to this court for trial.
4. Upon receipt of the case record as well as after going
through the materials available in the case record and after
hearing the submission of the learned counsel for both sides, my
Page No.3. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
learned predecessor had framed formal charges against the
accused under sections 498-A &307 of IPC against the accused
and contents of the charges were read over and explained to the
accused to which he pleaded not guilty and claimed to be tried.
5. In order to establish the prosecution case, the prosecution
side has examined as many as seven witnesses including two
court witnesses to prove its case.
6. After closing the evidence of prosecution side, statement
of the accused person was recorded under section 313 of Cr.P.C.
Accused person denied the alleged evidence against him but
declined to adduce any evidence in his favour.
POINTS FOR DETERMINATION:
A] Whether the accused being the husband o the victim
subjected her to physical and mental torture in demand of dowry
as alleged?
B] Whether the accused on 10.09.14 at about 08 a.m
poured kerosene oil on the body of the victim with the intention to
cause her death as alleged?
DECISION & REASONS THEREOF :
7. I have heard the submission of Learned Counsel appearing
on behalf of accused person and Learned Addl.P.P for the State. I
have also gone through the evidence on record of the prosecution
side.
8. In the instant case prosecution side has examined Ajir Ali
as PW-1, Mehmood Ali as PW-2, Ainul Ali as P.W-3, Ira Aftara
Begum (victim) as PW-4 , Miss SamimaNasrin as CW-1, Miss
HusnaSabrin as CW-2, Nakulch.Phukan as P.W.5.
9. Now, let me appreciate the evidence of the victim first, to
see whether the ingredients mention above at present in her
evidence.
10. PW-1 (Ajir Ali) has deposed in his evidence that the
Page No.4. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
alleged occurrence had taken place about one year ago. The
victim is the wife of the accused. According to PW-1, sometimes,
quarrel had taken place between the victim and the accused. He
has however, stated that he has not seen the alleged occurrence.
11. In cross, PW-1 has stated that sometimes, quarrel took
place between the accused and the victim regarding their
daughter.
12. PW-2 (Mehmud Ali) has deposed in his evidence that he is
one of the neighbours of the accused/victim. According to this
witness, on the day of occurrence, a quarrel had taken place
between the accused and the victim regarding their daughter.
13. The defence has declined to cross-examine this witness.
14. PW-3 (Ainul Ali) has deposed in his evidence that he
resides nearby the house of the accused/victim. He has deposed
that he does not know about the alleged occurrence.
15. PW-4 (Ira Aftara Begum) is the victim. She has deposed
that after three months of her marriage, accused used to demand
landed property of her father as there is no any male member in
her family and for that purpose, the accused had put pressure on
her to bring landed properties from her parental house. According
to PW-4, as she did not fulfil the demand of the accused, he had
tortured her physically and mentally. She has further deposed in
her evidence that she often took money from her father and
handed over to the accused to meet his expenditure. Further, in
the year 2014, she had brought an amount of Rs.10,000/-(
Rupees ten thousand) from her father for construction of a
latrine. According to PW-4, on the day of occurrence, due to
illness of her elder sister, when she asked the accused to bring a
doctor for treatment, but he asked her to bring money from her
father. The victim has deposed in her evidence that as she
refused to fulfilthe said demand, the accused had physically
Page No.5. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
assaulted her and also ousted her from the house. Further,the
accused had physically assaulted her on the neck with a bamboo
stick for which she became senseless and while she regained her
sense, she herself found tied up her both hands with a rope in a
tree in front of the house.Thereafter, the accused had brought
kerosene oil in a bottle and poured kerosene oil on her body with
an intention to burn her alive. Further she deposed in her
evidence that apprehending her imminent danger to her life at the
hands of her accused-husband, she somehow opened the knot of
the rope and ran away from that place along with her children.
While she ran away from the house of the accused, neighbouring
people had seen her. Thereafter, the accused went to his parent‘s
house. As the accused went to his parent‘s house, she along with
the two minor daughters entered the house. Later on, she lodged
ejahar before police. Ext-1 is the ejahar, Ext-1(1) is her signature.
Police sent her for medical examination and thereafter, she came
to her parental house. Since then, she has been residing in her
parental house.
16. In cross, PW-4 has stated that she got married the
accused about 12 years ago. After the marriage, she used to stay
in her in-laws house. But, in the year 2008, she lodged a case
against the accused and her in-laws. In that case, the accused
and her in-laws were acquitted from the case and since then, she
along with the accused used to reside separately from her in-laws.
In her cross, she has further stated that she had lodged a case
against the accused under Sec.125 of Cr.P.C. She has denied the
suggestion put by the defence side.
17. CW-1 (Miss SamimaNasrin) is the daughter of the victim as
well as the accused who has deposed in her evidence that her
father (accused) often quarrelled with her mother relating to
demand of money made by her father. She has further deposed in
Page No.6. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
her evidence that the accused demanded money from her mother
(victim) and while her mother failed to bring money as demanded
by the accused, he hadphysically assaulted her mother. According
to CW-1, sometimes, her mother brought money from her grand-
father as demanded by the accused. CW-1 has further deposed in
her evidence that on 10.09.14, i.e., on the day of occurrence,the
accused demanded her mother to bring money and while her
mother refused to fulfil the demand made by the accused, he
physically assaulted her mother with a bamboo stick on the neck.
She has further deposed in her evidence that while she along with
her sister tried to resist the illegal act of her father (accused), he
physically assaulted both of them also. According to this witness,
thereafter, the accused pulled her mother and tied up her both
hands with a rope and tried to burn her alive by pouring kerosene
oil on her body. She has further deposed in her evidence that her
mother somehow managed to escape from the clutch of the
accused and ran away towards the road by raising hue and cry
taking her and her sister (CW-2).
18. In cross, CW-1 has stated that her mother does not want
her father to go to his parent‘s house. Prior to lodging the instant
case, her mother had lodged a case against her father. The said
case was disposed of on compromise as her father assured to
reside separately from his parent‘s house.
19. CW-2 (Miss HusnaSabrin) is another daughter of the
victim/accused. She has deposed in her evidence that on the day
of occurrence, the accused had physically assaulted her mother
with a bamboo stick. According to CW-2, on the day of
occurrence, the accused tied up both the hands of her mother
with a rope and also tried to burn her alive by pouring kerosene
oil on her body. She has further deposed in her evidence that
thereafter her mother somehow managed to open the knot of the
Page No.7. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
rope and ran away towards the road. Further, the accused had
physically assaulted her mother as her mother failed to bring
money from her (mother) parent‘s house.
20. CW-2 has stated in her cross-examination that her mother
has no good relation with her grand-father/mother. Her mother
does not go to her in-laws house. She has denied the suggestion
put by the learned defence counsel.
21. PW-7 (Nakulch.Phukan) is the investigating Officer of the
instant case. In his evidence, he has deposed that on 11.09.2004
when he was on duty at Titabor P.S, Officer-in-charge after
receiving the ejahar registered a case under sec.498-A/307 of IPC
and entrusted him to investigate the case. The I/O has exhibited
the ejahar as Ext-1,Ext-1 (2) is the signature of the O/C, Titabor.
After taking over the charge of investigation, he visited the place
of occurrence and drew up a rough sketch map of the place of
occurrence. Ext-2 is the sketch map, Ext-2(1) is his signature. He
recorded the statement of the victim in the thana premises. The
victim went to the police station along with her two daughters.
The victim stated before him that the accused attempted to burn
her alive by pouring kerosene oil on her body and she along with
her two minor daughters could manage to escape from the hands
of the accused. In her ejahar also, the victim narrated the same
as stated before him. He further deposed that he had not
shownany cause in the case diary as to why he failed to record
the evidence of the two daughters of the victim under sec.161 of
Cr.P.C. The investigating officer has further stated that he sent
the victim for medical examination and after completion of
investigation, he filed the charge sheet against the accused under
sec.498-A of IPC. Ext.3 is the charge sheet and Ext-3(1) is his
signature.
22. In cross, PW-4 has stated that the alleged occurrence had
Page No.8. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
taken place on 10.9.14 and he was entrusted for the investigation
of the case on 11.09.14 and on that day itself, he visited the place
of occurrence. He has not seized any gallon of kerosene oil, rope
and the clothes of the victim. He has recorded the statement of
Md.Ajir Ali, Md.Ainu Ali.
23. Learned counsel for the state during his argument
submitted that accused person demanded dowry from the father
of the victim and while the victim failed to fulfilled the demand
made by the accused person, she was physically assaulted her
husband. On the date of occurrence a quarrel took place while she
asked her husband money for the treatment of her daughter,
accused person asked to bring the same from her father. Learned
counsel further pointed out accused person mercilessly assaulted
the victim on the date of occurrence, and her two minor
daughters had seen the whole incident and they were called as
court witnesses, as the investigating officer failed to examined
them, and both of the witnesses have supported the version of
their mother ( victim ). He further pointed out that the witnesses
also deposed that on the date of occurrence, a quarrel took place
between the accused person and the victim relating to daughter,
which itself prove that on the date of occurrence relating to the
treatment of the daughter of the victim, quarrel took place
between the accused person and the victim.
24. Per contra, the learned counsel for the defence side,
during his argument submitted that in the instant case, although
the victim deposed that she was assaulted by the accused person
with a bamboo lathi and tied her hand with rope and later tried to
set her on fire by pouringKerosene oil, but the investigating officer
failed to seized a single thing during his investigation. Moreover,
the other witnesses have not supported the version of the victim,
except her daughter. According to her the investigating officer
Page No.9. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
failed to examine the neighbouring people of the residence of the
victim and accused person.
Charge under section 498 of IPC
25. Let me first define section 498-A of I.P.C
26. ―498-A. Husband or relative of husband of a woman
subjecting her to cruelty–Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to
cruelty shall be punishable with imprisonment for a term which
may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, ―cruelty‖ means- (a)
any wilful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger
to life, limb or health (whether mental or physical) of woman;
or (b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet
such demand.‖
27. The basic essentials to attract this section are:
a) The woman must be married
b) She must be subjected to cruelty or harassment;
and
c) Such cruelty or harassment must have been shown
either by husband of the woman or by the relative of her
husband.
28. A bare glance of the section shows that the word ‗cruelty‘
covers any or all of the following elements:
(i) Any ‗wilful‘ conduct which is of such a nature
as is likely to drive the woman to commit
suicide; or
(ii) any ‗wilful‘ conduct which is likely to cause
Page No.10. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
grave injury to the woman; or
(iii) any ‗wilful‘ act which is likely to cause
danger to life, limb or health whether
physical or mental of the woman Also,
criminality attached to word ‗harassment‘ is
free of ‗cruelty‘ and punishable in the
following instances: (i) Where the
harassment of the woman is with a view to
coercing her or any person related to her to
meet any unlawful demand for any property
or valuable security or (ii) Where the
harassment is on account of failure by her or
any persons related to her to meet such
demand.
29. The said provision came up for consideration before the
Hon‘ble Apex Court inGiridhar Shankar Tawade vs. State of
Maharashtra (2002) 5 SCC 177 , where the Court dwelling
upon the scope and purport of Section 498-A IPC has held thus:-
―The basic purport of the statutory provision is to avoid 'cruelty'
which stands defined by attributing a specific statutory meaning
attached thereto as noticed herein before. Two specific instances
have been taken note of in order to ascribe a meaning to the
word 'cruelty' as is expressed by the legislatures : Whereas
explanation (a) involves three specific situations viz., (i) to drive
the woman to commit suicide or (ii) to cause grave injury or (iii)
danger to life, limb or health, both mental and physical, and thus
involving a physical torture or atrocity, in explanation (b) there is
absence of physical injury but the legislature thought it fit to
include only coercive harassment which obviously as the
legislative intent expressed is equally heinous to match the
physical injury. whereas one is patent, the other one is latent but
Page No.11. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
equally serious in terms of the provisions of the statute since the
same would also embrance the attributes of 'cruelty' in terms of
Section 498-A.‖
30. In Gurnaib Singh v. State of Punjab ,( 2013 ) 7 SCC
108Hon‘ble Apex Court while dealing upon the concept of
‗cruelty‘ enshrined under Section 498-A the Court has opined
thus:- ―Clause (a) of the Explanation to the aforesaid provision
defines ―cruelty‖ to mean ―any wilful conduct which is of such a
nature as is likely to drive the woman to commit suicide‖. Clause
(b) of the Explanation pertains to unlawful demand. Clause (a)
can take in its ambit mental cruelty.‖
31. On the basis of the aforesaid two judgement, and bearing
in mind the legal position, as stated above, let us consider
whether the evidence on record is sufficient to establish the
factum of cruelty as contemplated under Section 498-A r/w
Explanation (a) & (b) thereto of Indian Penal Code.The victim in
her evidence alleged that her husband persistently demanded
dowry from her father due to which on several occasion she had
she took money from her father and handed over it to her
husband. She further deposed during her evidence that in the last
year she had taken an amount of Rs.10,000/ ( Rupees Ten
thousand ) from her father as per demand of her husband for
construction of the toilet and accordingly she took that amount
from her father and handed over the same to her husband. The
minor daughters of the victim who is aged about 11 years during
her evidence deposed that sometime her mother brought money
from the paternal home of her mother as per demand made by
her father. So where the allegation of the victim that she had
taken money from her father as per demand of her husband and
handed over the same to her husband, the father of the victim is
the best person to corroborate the evidence of the victim as
Page No.12. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
because as per version of the victim her father made the payment
of Rs.10,000/ for construction of the latrine. But surprisingly the
father of the victim was not examined by the investigating officer
and the prosecution side also during trial had not called him as
material witness. Without the evidence of the father of the victim,
or her family members, the demand made by the accused person
can‘t be said to be corroborated as the family members of the
victim are the first person whom the victim narrate regarding the
alleged demand made by her husband.
32. On the other hand, the prosecution side failed to prove the
―cruelty‖ committed by the accused person was the victim as
envisage in the explanation part (a) of section 498-A. The
prosecution side is to prove that the wilful conduct of the accused
person be such a nature that it is likely to drive the woman to
commit suicide or to cause grave injury or danger to her life. The
victim in her evidence alleged that her husband physically tortured
as she failed to fulfil the demand made by her husband relating to
transferring of landed property of her farther in the name of her
husband. As I discuss about surprisingly none of the family
member of the victim was examined by the prosecution side to
prove the allegation of the victim. The neighbouringresidents who
were examined by the prosecution side has not supported the
allegation of demand made by the accused person, and only
deposed in their evidence that sometimes quarrel took place
between the victim and her husband relating to the minor
daughter. In has been held by our High Court and even by the
Hon‘bleApex Court in catena of decisions that such an affair of
quarrel and also harassment that ensues there from, was of usual
nature of wear and tear of marital life and, therefore, it cannot be
termed as subjecting a married woman to cruelty, much less of a
grave nature so as to drive the woman to commit suicide, or to
Page No.13. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
cause grievous injury to her person. In that context, it is
pertinent to mention here in that the victim herself admitted that
after the marriage along with the accused person she has been
living in her matrimonial home along with her in-laws for five
years and thereafter she has been living separately along with her
husband in another house from the year of 2000 till arising of the
present case. It also reveals from the statement of the accused
person made under section 313 of CR.P.C that the victim/ his wife
want to reside in her parental home along with him, which was
refused by the accused person. It also reveals from the evidence
of the victim that since 2000 she has been living along the
accused person in another residence separately from her in-laws.
It also reveals from the evidence of CW-1,ie the eldest daughter
of the victim that her mother does not want her father to meet his
parents in their residence, and in spite of that her father often go
to his parental home to meet his parents. So definitely there may
have some quarrel between the victim and the accused person for
visiting his parental home, but from the evidence on record of the
prosecution side it cannot be said that the said quarrel may lead
that victim to commit suicide or same is endangered to her life. In
my opinion basing upon the evidence of the prosecution side the
accused person cannot be held guilty to the charges levelled
against him under section 498-A of IPC as the prosecution side
failed to prove the cruelty as envisage in the explanation part of
section 498-A of IPC.
Determination of point number B:
33. The other charge levelled against the accused person by
the prosecution side is under section 307 of IPC.
34. Let me first define section 307 of IPC.
35. Attempt to murder.—Whoever does any act with such
intention or knowledge, and under such circumstances that, if he
Page No.14. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
by that act caused death, he would be guilty of murder, shall be
punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine; and if
hurt is caused to any person by such act, the offender shall be
liable either to imprisonment for life, or to such punishment as is
hereinbefore mentioned. Attempts by life convicts.—When any
person offending under this section is under sentence of
imprisonment for life he may, if hurt is caused, be punished with
death.
36. so to convict a person under section 307 of IPC, the
prosecution side has to prove the following fact-
a. the accused did an act
b. the said act was done—
i. with the intention of causing death, or
ii. with the intention of-
1. causing such bodily injury as the accused
knew to be likely to cause the death of the
person of the person to whom the harm
was attempted to be cause.
2. Causing bodily injury to a person and the
bodily injury intended to be cause would
have been sufficient in the ordinary course
of nature to cause death , or
3. the act, he committed would have
been so imminently dangerous that it would
have been in all probability cause death and
the act was attempted without any
justification for the incurring the risks as
such injury as aforesaid.
37. The most important ingredient to constitute the offence of
an attempt to commit murder punishable under section 307 of
Page No.15. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
Indian penal code is the intention and the knowledge of the
accused person to commit the crime. To attract the provision of
the section, it is necessary for the prosecution to establish that
the intention of the accused was one of the three kinds mentioned
in section 300 of IPC. A person commits an offence under section
307 of IPC, when he has the intention to commit murder, and in
pursuance of that intention the accused done an act towards its
commission irrespective of the fact whether that act is the
penultimate act or not. Accused must have done act with such
intention or knowledge or in such circumstances that if death is
cause by that act, the offence of murder will emerge.
38. Basing upon the above discussion, let me see whether
prosecution side able to prove the charges against the accused
person under section 307 of IPC.
39. From the evidence of the victim on the date of occurrence,
accused person with a Bembolathi gave blow on her neck due to
which she felled unconscious, but while she regain her sense, she
found herself that both her hands were tied with a rope on a tree,
in front of her residence and both of her minor daughters were
weeping nearbyher side. According to the evidence of the victim,
at that moment her husband poured kerosene oil on her body
from a bottle and tried to set her by fire, but she somehow
managed to escape from the place by a opening the knock of the
rope from her hand.
40. In the instant case although the minor daughter was of the
victim were present along with her at the time of the alleged
occurrence, the investigating officer, reason best known to him,
had not examined of them. But during trial both the minor
daughters of the victim were examined by the court by complying
the provision of section 311 of Cr.PC. CW-1 who is aged about 11
years and CW-2 who is aged about 8 years in their evidence
Page No.16. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
deposed as like as her mother before the court. But surprisingly
the investigating officer who went to the place of occurrence after
getting the charge of investigation of the instant case has not
seized any gallon supposed to keep kerosene oil by the accused
person as alleged by the victim and the rope by which the victim
was tied. No doubts, for the failure of the investigating officer to
seize any articles used in the alleged offence, the prosecution case
can‘t be thrown straight away, but being the investigating officer
of the case, thereshould have some explanation in his case diary
as to why he failed those articles which were alleged to be used
by the accused person at the time of alleged occurrence.
41. It is well settled that to convict a person under section 307
of I.P.C, the prosecution side has to prove the fact that accused
person has the intention or knowledge to cause murder of the
victim. The burden is upon the prosecution side to prove the fact
that accused person with intention to cause death, had committed
the alleged offence upon the victim. From the evidence of the
victim it reveals that accused person had given one blow by the
bamboo stick upon the victim. Had the accused person has the
intention to caused death of the victim, definitely he would not
have stopped by giving one blow, rather he would have been
repeatedly assault her till she succumbed to the injury. Although
the victim deposed that due to blow given by the accused by
bamboo lathi on her neck, she had not deposed what type of
injury she had sustained on her neck. The prosecution side also
has not examined the medical officer to prove the injury sustained
by the victim. On bare perusal of the medical report, it reveals
that she has not sustained any external injury. No any X ray
report is produced to show that the victim received any gravious
injury due to blow given by the bamboo stick.
42. Further thevictim alleged that her husband poured
Page No.17. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
kerosene in her body and tried to set her on fire, but she
somehow managed to escape from the clutch of the accused
person. If the accused person has the intention to commit murder
the victim he will definitely not await to set fire upon the victim
after pouring kerosene to her, while her hands were tied with
rope. After pouring kerosene by the accused person on the person
of the victim, the evidence of the victim is that she is able to open
the knot of the rope from her hand and manage to escape from
that place. But it is quite impossible for a person to open the knot
of rope of both hands by herself immediately without the help of
the other person.
43. Hence, from the appreciation of evidence of the
prosecution side and the circumstances it cannot be said the
prosecution side able to show existence of the ingredient of
section 307 of IPC, although there is sufficient evidence against
the accused person under section 323 of IPC. It is well prove that
due to physical assault of the accused person, he caused bodily
pain to the victim.
44. In the instate case, although earlier,charge were framed
against the accused person under section 307 of I.P.C, along with
other offence, but I have not found sufficient material against the
accused person under section 307 of I.P.C although there is
material under section 323 of I.P.C, whereby it proved that by
the act of the accused person, he had caused bodily pain to the
victim on the date of occurrence without any provocation from her
part.
45. Now while finding ingredient of offence under section 323
of I.P.C, whether the accused person can be convicted under
section 323 of I.P.C, although there is no any charge under
section 323 of I.P.C?
46. Under the provision section 222 of Cr.P.C , where the
Page No.18. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
accused person is charged with a major offence and said charge is
not proved , the accused could be convicted of a minor offence if
such a case is made out through he was not charge with the
minor offence.
47. Hon’bleAppex Court inTarkeswarSahu –vs- State of
Bihar (2006) 8 SCC 560 , it was held that if offence committed
by the accused is clearly covered and have ingredients of a minor
offence , in that event , the court empowered to convict the
person under minor offence by invoking the provision of section
222 of the code.
48. In the case of Lakhjit Singh v. State of Punjab : 1994
Supplementary (1) SCC 173 the Apex Court examined the
scope of Section 222 of the Cr.P.C. In that case the accused was
charged end tried for the offence under Section 302 of the I.P.C.
but the ingredients of the section were absent. However, the
ingredients of Section 306 of the I.P.C. were present. In that
situation the Apex Court converted the conviction from Section
302 to Section 306 of the I.P.C. In that case it was argued that
the accused cannot be tried under Section 306 of the I.P.C.
because he did not have the opportunity to meet the charge
under Section 306 of the I.P.C. However, the argument was not
found correct and the accused was convicted under Section 306 of
the I.P.C.
49. So from the provision of the code and decision of Hon‘ble
Apex Court, it is crystal clear that when an accused is charged
with a major offence and the major offence is not proved, the
accused can be convicted for the minor offence if the ingredients
of the minor offence are available. Although expression "minor
offence" is not defined in the Code, it can be discerned from the
context that the test of a minor offence is no merely that the
prescribed punishment is less than the major offence. Only if the
Page No.19. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
two offences are cognate offence wherein the main ingredients
are common, the one punishable amongst them with a lesser
sentence can be regarded as a minor offence vis-a-vis the other
offence.
50. In the instant case also, the victim was physically tortured
in front of her two daughters and both the daughters of the victim
well supported the version of the victim. No doubt, the
prosecution side failed to prove the ingredient of section 307 of
I.P.C against the accused person, but there is sufficient evidence
against the accused person that due to the assault caused by the
accused person to the victim, he had caused bodily pain to the
victim. No doubt the prosecution side had not examined the
medical officer in connection with the instant case, and for
conviction in a offence punishable under section 323 of I.P.C, the
examination of the medical officer is not mandatory.
51. Considering all this aspect, I have not found sufficient
material upon the evidence adduced by prosecution side to
convict the accused person u/s 498-A / 307 of I.P.C But
prosecution side is able to prove the charge against the accused
person under section 323 of IPC beyond all reasonable doubts. As
I discuss earlier and in the light of the judgement of the
Honourable Apex Court, there is no any bar to convict an accused
person under minor offence of IPC ieunder section 323 of I.P.C,
although initially charge is framed against the accused person
under section 307 of IPCalong with 498-A of I.P.C. Considering
all this aspect, I therefore convict the accused person namely
Tabib Ali under section 323 of IPC, as the prosecution side able to
prove the offence against the accused person beyond all
reasonable doubts.
52. I have heard the convict on the point of sentence. The
convict pleads for taking a lenient view in imposing the sentence
Page No.20. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
against him as he has to look after his parent who aged person.
Moreover his two other brothers have been living at Nagaon due
their service and he along with one of his youngest brother lives
atJorhat and he has to look after his parent.
53. I have also heard the submission of learned Additional P.P
namely Mr. I Ahmed and learned defence counsel on the point of
sentence. The accused person being father of two daughters
mercilessly assaulted the victim on the date of occurrence. He
even has not care for the welfare of his two daughters who are
still along with their mother in the residence of their grandfather.
The conduct of the accused person as appeared from the
evidence of the prosecution side does not allow my conscience to
deal the matter of the convict in imposing the sentence leniently.
In my opinion, if the offence against the accused person is well
prove he should be punished such a way that it should be an
example to those for the law breaker in future. Accordingly convict
TabibAli sentenced to undergo R.I for 4months and fine of
Rs.1000/ (Rupees one thousand) in default 1 month of S.I under
section 323 of I.P.C. Set off the period of detention already under
gone by the accused person. The fine amount if realised, then
same may be given to the victim. Bial bond stand cancelled.
54. Furnish a free copy of the Judgement to the convict
immediately.
55. Furnish a copy of the Judgement to the District Magistrate,
Jorhat as per provision of section 365 of Cr.P.C.
56. Judgement is delivered in the open court.
57. Given under my hand and seal of this court on this 28th
day of February, at Jorhat.
Page No.21. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
58. Furnish a copy of the Judgement to the learned
District Magistrate, Jorhat for his necessary information.
59. Judgement is delivered in the Open Court under my hand
and seal on this 31st day of May, 2016.
ASSTT.SESSIONS JUDGE:: JORHAT.
APPENDIX contd....
Page No.22. SESSIONS CASE NO: 106 (JT)/ 2015
State –vs- Md. Tabib Ali
A P P E N D I X 1. WITNESSES FOR THE PROSECUTION: PW1 :Ajir Ali.
PW2 :Mehmud Ali.
PW3 :Ainul Ali.
PW-4: Must.IraAftara Begum.
PW-5: Nakulch.Phukan (I/O).
CW -1:SamimaNasrin.
CW-2 :HusnaSabrin.
2. EXHIBITED DOCUMENT FOR THE PROSECUTION:
Ext.1-Ejahar.
Ext.2- Sketch map.
Ext.3- Charge sheet.
3. WITNESSES FOR THE DEFENCE: Nil
4. EXHIBITED DOCUMENT FOR THE DEFENCE: Nil
Dictated & corrected by me :-
(Mr. J.M.Barman) Assistant Sessions Judge
Jorhat
Transcribed & typed by-
Nirju R. Gogoi, Stenographer.