in the court of assistant sessions …jorhatjudiciary.gov.in/jmt/2017/march/cj/sessions case...

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



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



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



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



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



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



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



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



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



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



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

https://indiankanoon.org/doc/538436/




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



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



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



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



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



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



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















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



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.



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....



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.

in the court of assistant sessions …jorhatjudiciary.gov.in/jmt/2017/march/cj/sessions case...

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