Md. Nurul Haque vs State Of Assam

This appeal, under Section 374(2) of the Cr.P.C., is preferred against the judgment and order, dated 10.11.2009, passed by learned Sessions Judge,

Morigaon, in Sessions Case No. 61/2006, convicting and sentencing the accused-appellant to rigorous imprisonment for 3 years and to pay a fine of

Rs. 500/- IPC, and further convicting and sentencing the accused-appellant to rigorous imprisonment for 1 year and to pay a fine of Rs. 250/- with a

default clause for the commission of offence under Section 498(A) of the IPC. The sentences are ordered to be run concurrently.

The fact leading to the prosecution case is that, the deceased, Alia Begum, was married to the accused-appellant, Nurul Haque, in the year 2005,

and thereafter, they lived together as husband and wife for several years. They also parented a female child. The deceased was assaulted by the

accused-appellant about a year prior to the date of the occurrence and he continued atrocities on the person of the victim. She was lastly assaulted on

17.12.2005, at about 1:30 pm and she was set on fire after pouring kerosene oil on her body by the accused-appellant. She sustained severe burn

injuries following which, she was admitted in the hospital but, ultimately she died.

On such facts, the brother of the victim/PW1, lodged the FIR with the Mikirbheta Police Station, which registered a case, being Mikirbheta PS

Case No. 138/2005, under Sections 326/307 of the IPC, and subsequently, on the death of the victim, Section 302 of the IPC was added.

The police investigated into the case, collected evidence, and finally, on completion of the investigation, submitted charge-sheet against the accused-

appellant, under Sections 498(A)/304 of the IPC.

After exhausting all the required legal formalities, the learned trial court, framed a formal charge against the accused-appellant under Section 302 of

the IPC. The accused-appellant pleaded innocence to the charge, and therefore, the trial commenced.

To bring home the guilt of the accused-appellant, prosecution examined as many as 14 witnesses who were subjected to cross-examination by the

defence.

After closure of the prosecution evidence, the statement of the accused-appellant was recorded under Section 313 Cr.PC, and in his such

statement, he is heard denying the accusations made against him. Defence examined one witness.

After conclusion of the trial, the learned Sessions Judge, Morigaon, convicted and sentenced the accused-appellant, as indicated above.

I have heard learned counsel for the accused-appellant, Mr. D.C. Bora as well as the learned Additional Public Prosecutor for the state respondent,

Mr. B.J. Dutta.

I have also meticulously examined the record of the learned trial court including the evidence of the witnesses.

The learned trial court, although framed a charge against the accused-appellant under Section 302 of the IPC, but, convicted him under Sections

306/498(A) IPC. This court proposes to evaluate the evidence on record, in respect of the offences under the said two provisions of law.

Section 306 of the IPC is in respect of abetment to commit suicide. To bring home the charge for an offence under Section 306 of the IPC, the

prosecution has to satisfy the requirements of Section 107 of the IPC. Section 107 of the IPC reads as follows.

Abetment of a thing.â€"A person abets the doing of a thing, whoâ€" (First) â€" Instigates any person to do that thing; or

(Secondly) â€"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) â€" Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. â€"A person who, by wilful misrepresentation, or

by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be

done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B,

knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by

instigation the apprehension of C. Explanation 2.â€"Whoever, either prior to or at the time of the commission of an act, does anything in order to

facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act

So, in the instant case, even without discussing the whole evidence on record, it can safely be said that the dying declaration, vide Ext.1, made

before the doctor, by the victim, who was in a fit condition to make the dying declaration, has not implicated the accused-appellant rather her such

dying declaration appears to be absolving the accused-appellant. The dying declaration makes it appear that there had been a quarrel between the

victim and her husband/accused-appellant for long and on the date of occurrence she came out of her matrimonial home for going to the house of her

brother. Her husband/accused-appellant, after assaulting her, dragged her from the road to his home back. At that point of time, she attempted to pour

kerosene oil on herself from a drum, which was nearby. At that time, there was a tussle between her husband and herself, and during the said tussle,

some kerosene oil came in contact with her wearing clothes. After assaulting her, the accused-appellant list up a match stick to light a ‘bidi’,

and the fire from the source spread to her body. At that time, there were only 3 women in the house. So, such statement in her dying declaration, as

has been indicated above, appears to be absolving in nature for the reasons that the dying declaration itself is suggestive of the fact that the accused-

appellant did not want the deceased to leave his home and wanted to bring her back by dragging, and the kerosene oil were not poured on her body by

the accused-appellant. But, she herself attempted to pour kerosene oil and then a tussle took place between herself and her husband/accused-

appellant which is indicative of the fact that her husband did not want her to pour kerosene on her body. So, there is no such omission or commission,

on the part of the accused-appellant, coming out from the dying declaration, that the accused-appellant had abated her to commit suicide rather the

dying declaration makes it appear that it is an accidental fire in which she sustained burn injuries. The law in regard to dying declaration is not

necessary to be discussed here for the reasons that the dying declaration is not implicating and rather absolving in nature.

The other witnesses, examined by the prosecution, have all stated that they heard about the occurrence and some of the witnesses are found to

have stated that it was the deceased herself who said that the accused-appellant had poured kerosene on her person and burnt her. But, such

evidence of the remaining witnesses is belied by the victim herself in her dying declaration, marked Ext.1. In the instant case, there is absence of

essential ingredients of Section 107 of the IPC, indicated above, to show that there was any instigation or abatement of conspiracy on the part of the

accused-appellant by the deceased to commit suicide.

That being so, in the considered view of this court, the learned trial court, did not appreciate the dying declaration in its proper perspective resulting

in erroneous finding of guilt of the accused-appellant for an offence under Section 306 of the IPC.

So far the offence under Section 498(A) of the IPC is concerned, there was no charge framed against the accused-appellant during the trial. The

charge against the accused-appellant was framed under Section 302 of the IPC and he was convicted and sentenced under Section 306 of the IPC

being a lesser offence, as prescribed by the provisions of Section 222(2) of the Cr.PC.

So far the conviction of the accused-appellant and sentencing him under Section 498(A) of the IPC is concerned, there was no charge framed

against the accused-appellant, and therefore, he could not have been convicted and sentenced without an opportunity to rebut the alleged offence

under Section 498(A) of the IPC, if any.

That apart, the offence under Section 498(A) of the IPC being a distinct offence, there ought to have been a distinct charge for the said offence.

That being so, conviction and sentence of the accused-appellant under Section 498(A) of the IPC is illegal.

In view of the discussions, on the materials available on record, in the considered view of this court, the judgment of the learned trial court was not

based on proper appreciation of evidence on record, and therefore, needs to be interfered with by this court in exercise of its appellate jurisdiction, and

accordingly, the judgment aforesaid, is set aside.

The appeal is allowed.

Send down the LCR along with a copy of this judgment.