J U D G M E N T - Barpeta District Judiciary

Sessions case No. 50 of 2016 of 21

IN THE COURT OF SESSIONS JUDGE AT BARPETA. Present :- Sri Vinod Kumar Chandak, M.A., M.Com., LL.B.,AJS, Sessions Judge, Barpeta.

JUDGMENT IN SSESSION CASE NO. 50 OF 2016 (G.R. Case 3405/2014)

Tarabari P.S. Case No 117/2014

Committing Magistrate :- Sri. M. Newpani The then Judicial Magistrate First Class, Barpeta.

State of Assam -versus- Md. Sorhab Ali, S/O late Abu Awal, Resident of Village Bandali Reserve, PS- Tarabari, Dist- Barpeta .…... Accused.

APPEARANCES : For the State : Mr. Lalit Ch. Nath, learned Public Prosecutor, Barpeta. For the Accused : Mr. David Ledger, learned Counsel Barpeta.

CHARGE FRAMED UNDER SECTION 306 OF THE INDIAN PENAL CODE

Date of Charge : 25.04.2015, Date of Prosecution evidence : 24.05.2016; 27.07.2016; 01.10.2016; 22.11.2016; 19.01.2017; 05.05.2018 & 16.09.2019, Date of Statement of accused : 03.10.2019, Date of Argument : 01.11.2019 & 21.11.2019 Date of Judgment : 22.11.2019

J U D G M E N T

1). The prosecution case, in brief, is that on 26.05.2014, informant

Md. Mainul Hoque Laskar, S/O Lt. Badaruddin Laskar of village Dekaruwa, P.S. &


Mouza-Jamunamukh, District- Nagaon, Assam lodged an ejahar before the O.C.

of Tarabari Police Station alleging, interalia, that his daughter Begum Tanuja

Khatun was given in marriage with accused Md. Sorhab Ali. Since after the

marriage, accused Md. Sorhab Ali alongwith others started torturing her

demanding dowry. It is alleged in the FIR that accused person along with others

killed his daughter on the previous night of filing this case.

On the day before filing of this case, victim informed to her father

through mobile phone that accused threatened her to kill by pouring kerosene oil

on her body. Informant also stated that he gave Rs.1,50,000/- to meet the

demand of dowry before one month to purchase a vehicle but the accused did

not satisfy with the above said amount and started torturing her. Then, victim

informed to her elder brother namely Md. Bahar Uddin about torture on

25.05.2014 at about 9:30 PM. On the next day, i.e. on 26.05.2014 at about 7:00

AM, informant heard from his elder son-in-law namely Nabirul Hussain that her

daughter has died.

In pursuance of the said FIR, the Officer-in-charge, Tarabari Police

Station, registered a case being Tarabari P.S. Case No 117/2014 under Section

304(B)/34 of the Indian Penal Code.

The Investigating Officer investigated the case and ultimately, on

completion of investigation, filed charge sheet, in the case, against the accused

Md. Sorhab Ali under Section 306 IPC vide charge sheet No.112/2014,

dated 30.08.2014.

2). On getting summons, the accused, named above, appeared before

the learned committal court corresponding to GR case No.3405/2014. The then

learned Judicial Magistrate First Class, Barpeta, Sri M. Newpani, after

furnishing the copy, committed the case to this court, the same being exclusively

triable by the court of Sessions on 08.03.2016.

3). Upon consideration of the record of the case and the documents

submitted therewith and after hearing the submissions of the learned counsel for

the accused and the prosecution in this behalf, charge was framed by my learned


predecessor-in-office against the accused under Section 306 IPC, which was

read over and explained to the accused, to which, the accused pleaded not guilty

and claimed for trial.

4). The prosecution side, in order to bring home the charges, against

the accused, examined as many as 13 (Thirteen) number of witnesses

including informant, Medical Officer and the Investigating Officer.

On closing of prosecution evidence, statement of the above named

accused was recorded under Section 313 of CrPC. The accused denied all the

alleged incriminating materials against him. He stated in his statement that he

did not commit any torture on her and he did not know why she died. He claimed

himself to be innocent. He denied to adduce evidence in his defence.

5). I have heard argument advanced by Sri Lalit Ch. Nath, learned

Public Prosecutor for the State as well as Mr. David Ledger, learned Defence

Counsel for the accused person, who is facing trial for commission of offence

under Section 306 IPC.

The learned Public Prosecutor has submitted that the prosecution

side has proved beyond all reasonable doubt, by adducing all the material

witnesses, that the accused person, on the fateful day, abetted the informant's

daughter Begum Tanuja Khatun to commit suicide, by subjecting her to cruelty

by demanding dowry.

On the other hand, the learned defence counsel has contended

that prosecution side has failed to prove the case against the accused person

beyond reasonable doubt in as much as there is no eye witness to the alleged

offence and there are material contradictions in the evidence by Prosecution

Witnesses. Further, circumstances against accused are lacking to warrant his guilt

and conviction in the case.

6). Upon the rival submissions and on the facts and circumstances of

the case, following points have been sorted out for determination in this case ---


(1) Whether the accused on 25.05.2014 at night at village Bandali

Reserve, within the jurisdiction of the Tarabari Police Station, abetted

victim Mst. Begum Tanuja Khatun to commit suicide and that accused

abetted its commission by threatening on demand of dowry money and

thereby committed an offence punishable under Section 306 of the

Indian Penal Code ?

DISCUSSION, DECISIONS AND REASONS THEREOF

7). Now to arrive at judicious decision, let me scrutinize the evidence

of the prosecution witnesses.

Smt Champa Begum [P.W.1] has stated that victim Tanuja

Begum is her sister-in-law and Sorhab Ali is the husband of the victim. Accused

had married with the victim before 3 years of the alleged incident. P.W.1 stated

that Tanuja died by hanging but she did not know the reason why she had died.

She (P.W.1) further stated that victim's had lived happily in her

matrimonial house.

In cross examination, PW1 stated that she did not know how

Tanuja was died ?

8). Ikram Hussan (PW-2) deposed that he did not know the

informant Mainul Hoque but he knew the deceased Tanuja Khatun. Victim got

married with the accused person before 1-2 years of the alleged incident. The

villagers told him that Sorhab's wife committed suicide by hanging. He stated

that the dead body of the victim was taken by the Police before he reached the

place of occurrence but he saw many people. P.W.2 did not know why Tanuja

Begum had died ? He (P.W.2) exhibited the seizure list as Ext.1 and Ext.1(1) is

his signature.

Her cross-examination was declined by the defence side.

9). Kamal Hussain [PW3] has deposed that he knows the accused

as well as victim namely Tanuja of this case and he (P.W.3) is neighbourer of the


victim's. Incident took place more than one year ago. After coming from his

work, P.W.3 heard that accused wife died by hanging but he did not see the

alleged incident and also did not go there.

His cross-examination was declined by defence side.

10). Manik Ali (PW4) has deposed that he knows the accused as well

as victim namely Tanuja who had died after 1/1½ years of her marriage. P.W.4

stated that accused had married a girl who belongs from upper Assam. He stated

that victim committed suicide and died but he do not know the reason of death.


11). Moinul Haque Laskar (PW5) who is informant of this case

deposed that victim was her daughter who got married with accused Sorhab Ali

in the year 2012 and they spent happy conjugal life after marriage. After that,

deceased stated him that there was a conflict in her maternal house, therefore

she wanted a piece of land as they did not want to stay in their original house.

Accused also told that he (accused) did not want to stay alongwith his parent.

Then, P.W.2 purchased 2 bighas of land at Nagaon for them but they did not

come to that plot of land and continued to stay at their original house. After that,

he (P.W.5) purchased one vehicle for them at Rs.1,50,000/- as demanded by

both of them. Thereafter, victim told him to sale the land at Nagaon and asked

him to purchase a plot of land near her in-laws house. But P.W.5 refused to sell

the said land and suggested her to find out a land which was nearer to her

house. After 3-4 days, deceased informed him in weeping condition over

telephone that accused's brother namely Fariz wanted to set her on fire by

pouring kerosene on her person. On being asked about the whereabout of her

husband, victim stated that son-in-law (accused) has united with other family

members and will kill her in the night as such she asked him to save her.

Next day morning, his elder daughter informed him over telephone

that Tanuja died. On being asked about the reason of death, her elder daughter

stated that Tanuja reportedly suffered from illness. His elder son-in-law name is

Nabirul Hussain and his elder daughter name is Amina Khatun.


After getting information, he (P.W.5) alongwith 8 others persons

proceeded to the place of occurrence. After conducting post-morten examination,

deceased dead body was taken back by him.

P.W.5 exhibited FIR as Ext.2 and Ext.2(1) is his signature. He

deposed before the Police that on the day of alleged incident, no member of

accused person were present at home.

During his cross-examination, PW5 has stated that Police

recorded his statement after one week of filing the FIR (Ext.2).

He denied that he did not depose before Police that victim and his

son-in-law did not want to stay at their original house after one year of their

marriage for which they told him to purchase a piece of land for them; that then

he purchased 2 bighas land at Nagaon for them but they did not come; he

purchased vehicle for Rs. 1,50,000/-. Thereafter, they wanted a separate plot of

land near their matrimonial house by selling land at Nagaon. He promised them

to purchase the said land. After 3-4 days, victim girl informed him in weeping

condition over telephone that accused attempted to set her on fire by pouring

kerosene; then victim stated that accused and his family members have

conspired to kill her.

His elder son-in-law informed him over telephone that Tanuja had

died due to having pox. Except that, he do not know the alleged incident.

He denied that accused did not torture her daughter by

demanding money. He, however, could not say anything regarding the dispute

between them.

12). Baharul Islam Laskar (P.W.6) deposed in his evidence that

deceased Tanuja was his sister who got married with accused about 4 year ago.

They spent happy conjugal life after marriage. On the relevant day at about 8:00

PM, he telephoned her and found her weeping. On being asked for the reason of

her weeping, she disclosed that Farid, his wife and his family members will kill

her. Farid has brought kerosene oil to kill her. P.W.6 told her to handover

telephone to accused. Then, accused told him that some quarrel has taken place

and accused called him (P.W.6), accordingly. Then, P.W.6 replied that he could


not go there on the next day as he was busy and told him (accused) to handle

the matter as guardian. Then, accused replied that a mel (bichar) is being held in

his residence and assured to look the matter. On the same night, accused and his

family members killed the deceased. Next day morning, they heard about the

incident. P.W.6 further stated that only accused could say why Tanjua was killed.

They have got one more sister at Barahi.

During his cross-examination, PW6 denied that he did not

depose before Police that on the relevant day, at about 8:00 PM, when he

telephoned Tanuja, she stated that Farij and others family members will kill her;

that Fariz brought kerosene oil to kill her; then he told her to handover the

telephone to accused; that accused told that there were some quarrel and asked

him to come on next day; that P.W.6 replied that he had to reap paddy so he was

unable to come on the next day and told him (accused) to handle the matter;

that accused replied a bichar is taking place; that accused and his family

members killed the deceased at night; that accused only knew why he had killed

Tanuja.

13). Sultana Khatun (P.W.7) has deposed in her evidence that

deceased Tanuja Khatun was her daughter who was married with accused

before 4 years. Accused demanded a vehicle from them for doing business.

Then, they gave Rs.1,50,000/- for buying the said vehicle. On the relevant night

of incident at about 9:00 PM, her son telephoned deceased who told him on

weeping that she will be killed in the house of accused. On the next day morning,

her son-in-law informed over telephone that Tanuja had died due to Pox. Her son

called accused Sorhab but accused switched off his mobile phone. She did not go

to deceased house. Police recorded her statement but she did not remember

after how many days, Police had recorded her statement.

During her cross-examination, P.W.7 denied that she did not

state before Police that her son-in-law wanted a vehicle for doing business and

they had given Rs. 1,50,000/- for buying the said vehicle.

On the relevant night, deceased Tanuja informed through


telephone that accused would kill her. On the next day morning, her son-in-law

informed her that Tanjuja had died due to Pox.

She did not remember what she deposed before Police. Her elder

son-in-law informed her that deceased Tanuja had suffered from pox, so her

father should go to her house. But then told that she had died.

P.W.7 suspected accused that they had killed Tanjua by pressing

her neck. She denied that she did not depose this statement before Police; that

accused is not involved with the alleged incident.

14). Partha Pratim Das (P.W.8) deposed in her evidence that on

26.05.2014, he was working as Demonstrator on the Department of Forensic

Medicine, Fakhruddin Ali Ahmed Medical College & Hospital, Barpeta. On that

day, in connection with Tarabari PS GD Entry No. 667 dated 26.05.2014. He

conducted the post mortem examination on the dead body of Begum Tanuja

Khatun 21 female Muslim, wife of Sorhab Ali of village Bandali Reserve, PS

Tarabari, District Barpeta on being identified by UBC/50 Atowar Rahim of Tarabari

PS and Nabirul Hussain and found as follows:

External Appearance :

Female dead body, average built wheatish complexion wearing

green and yellow printed nightie, green pyjama. Eyes and mouth partly open.

Natural orifices healthy. Rigor mortis present and fully developed. Body cold on

touch. Post mortem hypostaris present.

On examination of the neck an oblique noncontinuous ligature

mark of size 30 cm X 1 cm. Present high up around the neck above the level of

thyroid cartilage. Non-continuity being present below left ear. The ligature mark

is dry depressed and perchmentized. The colour is dark brown. On dissection the

ligature mark is pale and glistering. Hyoid bone and cartilages of neck are intact.

Thorax:

Walls, ribs and cartilages: Healthy.

Pleurae: Congested with Petechial hemorrhage present at present.

Larynx and trachea: Mucosa contested.


Right lung and left lung: Both lungs are congested with subdural echymosis. On

cut section the cut surface oozes out dark colour fluid blood.

Pericar (dium): Congested.

Heart: Healthy and contains dark red fluid blood. Coronaries healthy.

OPINION:

In his opinion death was due to asphyxia as a result of ante-mortem suicidal

hanging.

Approximate time since death – 12 to 24 hours.

He exhibited the Post mortem report as Ext.3 and Ext.3(1) is his

signature. Ext.3(2) is the signature of the Professor and Head Department of

Forensic Medicine, FAAMCH, Barpeta which is known to him.


15). Jahangir Ali (P.W.9) has deposed that he knows the accused

and deceased Tanuja. Incident occurred about 2 years ago. In the morning, he

came to know that accused wife had committed suicide and saw the dead body

of Tanuja lying on the ground into the house of accused. Accused was present

alongwith family members and others. After that, Police came and he did not

know what Police had seized. Police had given a blank paper which he had

signed. He exhibited seizure list as Ext.1 and Ext.1(2) is his signature.

During his cross-examination, P.W.9 deposed that he did know

what he has written in his signed blank paper. He could not know what was

seized ?

16). Nabarul Hoque (P.W.10) has deposed that he knows the

accused and deceased Tanuja. Incident occurred about 2 years ago. In the

morning, accused came to his house and called him saying that something

happened to Tanuja. Then, he went with accused and saw Tanuja was lying on

the corridor of the house of accused. Someone was giving water on her face.

They thought that victim was alive and took her to Chenga PHC. P.W.10 also

went to Chenga PHC. At that time, Dr. Balen Medhi declared her to be dead. On


being asked by Doctor, family members of accused told that victim had died due

to hanging. Then doctor told that it was not a suicide case. At that time, Police

arrived and sent the dead body of the deceased to Barpeta Medical College for

doing post mortem report. P.W.10 deposed the same before Police.

During his cross-examination, PW10 denied that he did not

state before Police that Dr. Balen Medhi told that it was not a case of suicide.

He did not know how she(victim) had died.

17). Dipak Kr. Talukdar (P.W.11) who is one of the IO of this case,

has stated that on 26.05.2014, he was working as ASI of Tarabari PS. On that

day, one woman of Bandali Reserve committed suicide and doctor told that the

cause of her death was suspicious. P.W.11 registered GD entry No.667 dated

26.05.2014 and sent the dead body for post-mortem. He accompanied by OC

Pradip Haloi. P.W.11 further stated that before sending the dead body for

postmortem, Circle Officer of Chenga prepared inquest report.


18). Sri Bimal Deka (P.W.12) deposed that on 26.05.2014, he was

working as In-charge of Circle Officer of Chenga Revenue Circle. On that day, as

per standing order of the District Magistrate, Barpeta and at the request of Sri

Pradip Haloi, O/C of Tarabari PS, he performed inquest over the dead body of

Tanuja Begum, aged 21 years, on being identified by Almus Ali, in presence of

witnesses and he submitted the report accordingly. P.W.12 exhibited the inquest

report and Ext.4(1) is his signature.

His cross-examination was declined by defence side. It may be

mentioned here that no injury was found on the person of deceased as per Ext.4.

19). Pradip Haloi (PW13) deposed that on 26-05-2014, he was

posted at Tarabari PS as officer In-Charge. On that day, one Mainul Haque Laskar

lodged an FIR before him. P.W.13 received and registered the same as Tarabari

PS case no. 117/2014 u/s 304(B)/34 IPC. He took over the charge of

investigation of this case.


P.W.13 exhibited the FIR as Ext. 2 and Ext. 2(2) is his signature

with endorsement.

P.W.13 disclosed that on the same day one Doctor Balen Medhi

from Chenga CHE informed him that one married women was brought dead to

the hospital.

Then, he rushed there after entering the said information into their

PS GDE No. 667 dated 26-05-2014.He exhibited the extract copy of the said GDE

vide Ext. 5 and Ext. 5(1) is his signature.

Circle officer of Chenga circle held inquest over the dead body.

After inquest, dead body was sent for post-mortem into hospital. The dead body

of the women was handed over to her father. After that, he received FIR and

examined informant of the case. He also examined relevant witnesses at the

place of occurrence. He also drew sketch map of the place of incident. P.W.13

exhibited sketch map vide Ext. 6 and Ext. 6(1) is his signature. He seized one

'gamusa' (Towel) from the place of incident vide seizure list vide Ext. 1 and Ext.

1(3) is his signature.

P.W.13 arrested accused person on 13-06-2014 and collected Post-

Mortem report of the deceased. He submitted charge-sheet against the accused

Sorhab Ali u/s 306 IPC.

P.W.13 exhibited charge-sheet vide Ext. 7 and Ext. 7(1) is his

signature.

During his cross-examination, PW13 deposed that he did not

examine Abu Azam as mentioned in the sketch map but he examined Kamal Hussain.

Witness Mainul Haque Laskar (PW-5) did not state before him that

after marriage the daughter and son-in-law demanded a piece of land as they did not

want to stay in their original house; that then he (P.W.5) purchased two bighas of

land at Nagaon for them; that they did not come to that plot of land but continue to

stay at their original house; that he purchased one vehicle for them at Rs. 1,50,000/-,

as demanded by them; that they told him to sale the land at Nagaon and asked him

to purchased a piece of land near their original house; that he told them that he

purchased the same but after 3-4 days of saying so the deceased came to her in

weeping condition and told that Farid tried to set her on fire after pouring kerosene


oil on her person; that his son-in-law and other family members are conspiring to

kill her.

Witness Baharul Islam Laskar (PW-6) did not state before him that

Tanuja was crying when he telephoned at 8.00PM on the date of incident; that on

being asked for the reason of her weeping she disclosed that Farid and his family

members will kill her; that Farid has brought kerosene oil to kill her; that then he

told her to give telephoned to the accused that accused told that little quarrel had

taken place accordingly; that he could not go there on the next day as he remained

busy in cutting paddy and told him to see the matter; that he informed that he was

in a meeting; that on the night accused himself and his family members killed her;

that only family members can say why Tanuja was killed.

Witness Musstt. Sultana Khatun (PW-7) did not state before him that

accused demanded a vehicle for doing business then they purchased one vehicle for

him; that Tanuja telephoned in the night that accused will kill her at their house;

that next day in the morning their elder son-in-law informed that Tanuja died due to

small pox (Basanta).

Witness Nabarul Haque (PW-10) did not state before him that doctor

Balen Medhi told him that the case is not of hanging.

20). From the above appraisal of the evidence adduced by the

Prosecution side it becomes evident that deceased died as a result of suicide.

The M.O. Dr. Partha Pratim Das (P.W.8), who performed autopsy over the dead

body of deceased clearly opined as follows in his report (Ext.3).

“OPINION: In my opinion death was due to asphyxia as a

result of ante-mortem suicidal hanging.”

21). Before deciding the question as to whether accused abated the

deceased to commit suicide on the relevant day, it may be noted that Section 306

IPC read as under:

“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;

Thirdly – Intentionally aids, by any act or illegal omission, the doing of that thing.

22). Broadly speaking, 'abetment' as contemplated in Section 107 IPC,

falls into three distinct categories, namely, (i) a person can be said to abet the

doing of a thing, when such a person instigates the other person to do that thing

or (ii) when a person engages with one or more other person(s) in any

conspiracy in the doing of that thing or (iii) when any person intentionally aids,

by any act or illegal omission, doing of a thing.

23). In short, thus, the offence of 'abetment' is committed, when a

person instigates another to do a thing or when he enters into a conspiracy for

doing of a thing or when he intentionally aids, by illegal act or omission, the

doing of that thing.

24). The question, now, is as to whether 'intention' is an integral part

the offence of 'abetment'. In this regard, it is necessary to point out that when a

person enters into a conspiracy to do a thing, he not only knows, but also

intends the effect of doing that thing, which he has conspired with one or more

persons to do. Similarly, when such a person commits the offence of abetment by

aiding, such aiding, in the face of the provision of Section 107 IPC, has to be

intentional.

The limited question, therefore, which remains to be ascertained,

is this: whether 'abetment' by 'instigation' involves 'intention'?

According to Oxford Dictionary, 'instigation' means 'to goad or urge

forward to prove, incite, encourage to do act”. Stroud defines 'abet' thus:

“To constitute an aider or abettor, some active steps must be

taken, by word or action, with intent to instigate the principal or principals.

Encouragement does not, of necessity, amount to aiding and abetting. It may be

intentional or unintentional. A man may unwittingly encourage another in fact by

his presence, by misinterpreted gestures, or by his silence or no-interference-or


he may encourage the latter case, he aids and abets; in the former, he does not.

It is no criminal offence to stand by a mere passive spectator of a crime, even of

a murder. Non-interference to prevent a crime is not itself a crime. But the fact

that a person was voluntarily and purposely present witnessing the commission

of a crime and offered no opposition to it, though he might reasonably be

expected to prevent it, and it had the power so to do or at least to express his

dissent, might, under some circumstances, afford cogent evidence upon which a

jury would be justified in the finding that he willfully encouraged and so aided

and abetted. But it would be purely a question for the jury whether he did so or

not”.

25). Black's Dictionary defines 'abet' to assist or facilitate the

commission of a crime or to promote its accomplishment.

According to Wharton, 'to abet' means, literally, to bait or excite,

as in the case of an animal. In its legal sense, 'to abet' means to encourage,

advise or instigate the commission of a crime.

26). In the case of Ramesh Kumar – versus – State of

Chattisgarh, reported in (2001) 9 SCC 618, the Hon'ble Supreme Court while

interpreting the expression 'instigation' as an act of 'abetment', in Section 306

IPC, observed:

“20. Instigation is to goad, urge forward, provoke, incite

or encourage to do 'an act'. To satisfy the requirement of instigation

though it is not necessary that actual words must be used to that effect

or what constitutes instigation must necessarily and specifically be

suggestive of the consequence. Yet a reasonable certainty to incite the

consequence must be capable of being spelt out. The present one is not

a case where the accused had by his acts or omission or by a continued

course of conduct created such circumstances that the deceased was

left with no other option except to commit suicide in which case an

instigation may have been inferred. A word uttered in the fit of anger

or emotion without intending the consequences to actually follow


cannot be said to be instigation”. [emphasis added].

27). In the case of Randhir Singh – versus – State of Punjab,

reported in (2004) 13 SCC 129, too, the Hon'ble Supreme Court, explaining as

to what abetment, in the context of an offence under Section 306 IPC, conveys,

observed, in Para No – 12, thus:

“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 306 IPC”. [emphasis added]

28). In the light of the definition of the word 'abetment' or the meaning

of the words 'to abet' and, more particularly, taking into view how the Supreme

Court has described abetment, in Ramesh Kumar [supra] and Randhir Singh

[supra], what becomes clear is that 'abetment' involves a mental process of

entering into a 'conspiracy' for doing of a thing or a mental process of 'aiding' a

person in doing a thing or in the mental process of instigating, i.e., 'goading',

urging, forwarding, provoking, enticing or inscribing to do a thing'. Thus

abetment implies an intentional act or omission on the part of the person, who is

alleged to have abetted an act. There need not 'be direct evidence of such

intention and such intention may be inferred even from circumstantial evidence.

In the case of State of West Bengal – versus – Orilal

Jaiswal, reported in [1994] 1 SCC 73, the Hon'ble Apex Court has observed

that the Courts should be extremely careful in assessing the facts and

circumstances of each case and the evidence adduced, at the trial, for the

purpose of finding whether the cruelty meted out to a victim had, in fact,

induced her to end her 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 offences of committing suicide,

should be found guilty.

Thus, 'abatement', in the context of an offence under Section 306

IPC, would mean inciting, encouraging, provoking or urging forward to commit

suicide. Such an act of inciting, encouraging, provoking or urging would obviously

reflect an intentional act, on the part of the accused, to induce one or

intentionally drive one to commit suicide. Hence, to commit suicide merely

because of the fact that a husband subjects his wife to cruelty and the cruelty is

of the extent that it would, ordinarily, drive a woman to commit suicide, such an

act of subjecting the wife to cruelty by such a husband would not necessarily

amount to abetment unless the Court is satisfied that the wife was subjected to

cruelty, or the woman was subjected to cruelty, with 'intent' to drive her to

commit suicide.

[Relied on the judgment passed in the case of Bishal

Agarwal – versus – State of Assam & another, 2012 [4] GLJ 161 of the

Hon'ble Gauhati High Court]

29). In the present case there is no direct evidence showing the

intention of accused to drive the deceased to commit suicide but as has been

held by Hon'ble Supreme Court in the case of Ramesh Kumar-versus- State

of Chattisgarh, reported in (2001) 9 SCC 618 that there need not be direct

evidence of such intention and such intention may be inferred even from

circumstantial evidence.

30). To prove the above circumstances, it is necessary to examine and

evaluate the evidence of the witnesses carefully.

P.W.1, P.W.2, P.W.3 and P.W.4 did not depose anything against the

accused and defence side even cross examined P.W.2, P.W.3 and P.W.4. None of

these any witnesses deposed as to why deceased committed suicide. These


witnesses, who are from the same village, where, deceased died, deposed that

accused and deceased lived happily as husband and wife.

P.W.5, who is father of victim though deposed that he purchased 2

bighas of land at Nagaon for accused and deceased and even promised to

purchase land in the village of accused. P.W.6 also deposed that he purchased

one vehicle at Rs.1,50,000/- to the accused. He also deposed deceased informed

on previous day of the incident that accused and his family members will kill her

and requested him to save her.

Almost similar evidence was deposed by the brother (P.W.6) and

mother (P.W.7) of the deceased who asserted that victim told before the incident

that accused and his family members will kill her at their house.

However, I.O. of the case Sri Pradip Haloi (P.W.13) confirmed in his

cross-examination that P.W.5, P.W.6 and P.W.7 did not state anything as such.

He deposed that witness Mainul Haque Laskar (PW-5) did not state

before him that after marriage the daughter and son-in-law demanded a piece of

land as they did not want to stay in their original house; that then he (P.W.5)

purchased two bighas of land at Nagaon for them; that they did not come to that

plot of land but continue to stay at their original house; that he purchased one

vehicle for them at Rs. 1,50,000/-, as demanded by them; that they told him to sale

the land at Nagaon and asked him to purchased a piece of land near their original

house; that he told them that he purchased the same but after 3-4 days of saying so

the deceased came to her in weeping condition and told that Farid tried to set her on

fire after pouring kerosene oil on her person; that his son-in-law and other family

members are conspiring to kill her.

Witness Baharul Islam Laskar (PW-6) did not state before him that

Tanuja was crying when he telephoned at 8.00PM on the date of incident; that on

being asked for the reason of her weeping she disclosed that Farid and his family

members will kill her; that Farid has brought kerosene oil to kill her; that then he

told her to give telephoned to the accused that accused told that little quarrel had

taken place accordingly; that he could not go there on the next day as he remained

busy in cutting paddy and told him to see the matter; that he informed that he was

in a meeting; that on the night accused himself and his family members killed her;

that only family members can say why Tanuja was killed.


Witness Musstt. Sultana Khatun (PW-7) did not state

before him that accused demanded a vehicle for doing business then

they purchased one vehicle for him; that Tanuja telephoned in the

night that accused will kill her at their house; that next day in the

morning their elder son-in-law informed that Tanuja died due to small

pox (Basanta).

Moreover, elder son-in-law of P.W.6 (father of deceased) deposed

that one Dr. Balen Medhi told when deceased was taken to Chenga C.H.C that

the case is not of hanging. But, I.O. (P.W.13) confirmed that P.W.10 did not give

him such statement.

P.W.9 is a seizure witness, whose evidence is of no value to the

prosecution story as he is a hearsay evidence and even could not say as to what

was seized by Police and what does Seizure List (Ext.1) contained.

Sri Bimal Deka (P.W.12) simply held the inquest report of deceased

as per request of I.O. (P.W.13). His report (Ext-4) disclosed that no injury was

found on the person of deceased at the time of holding inquest.

31). Learned counsel for the defence Sri David Ledger argued that

there is no evidence on record to establish the nexus between the offence

alleged and the accused. It is submitted that evidence on record which was

brought by the prosecution does not point out to the guilt of the accused. It is

further submitted that from the evidence on record it is apparent that there is no

direct or circumstantial evidence against the accused to link him with the

commission of the alleged crime. It is also submitted that there is no motive

behind the crime and prosecution has miserably failed to prove the motive.

From the facts and circumstances of the case, as said above, I am

constrained to hold that the present case is not a case where the accused had by

his acts or omission or by a continued course of conduct created such

circumstances that the deceased was left with no other option except to commit

suicide in which case an instigation may have been inferred.


32). The Hon'ble Supreme Court in the case of Assistant Collector of

Central Excise, Calicut-versus- V.P. Sayed Mohammad, reported in AIR

1983 SC 163 held as follows:

“It is true that the onus of proving that facts essential to

the establishment of discharge against an accused lies upon the

prosecution and the evidence must be such as to exclude every

reasonable doubt about the guilt of the accused. An accused cannot be

convicted of an offence on the basis of conjectures or suspicions. If

reasonable doubt arises in the mind of the court after taking into

consideration the entire material before it regarding the complicity of

the accused the benefit of such doubt should be given to the accused

but the reasonable doubt should be a real and substantial one and a

well founded actual doubt arising out of the evidence existing after

consideration of all the evidence”.

33). Keeping in mind the above rationale as laid down by the Hon'ble

Apex Court I am constrained to hold that the evidence adduced by the

prosecution in support of its case is nothing shorter than mere conjectures and

suspicion. Consequently the charge under Section 306 IPC is held to be not

proved against the accused Md. Sorhab Ali beyond all reasonable doubt.

Accordingly, the accused is found entitled to get benefit of doubt, for which, the

accused Md. Sorhab Ali is acquitted on benefit of doubt.

34). In view of the above review of evidence on record, discussion held

based on established principles of law and also upon hearing the learned counsel

for the parties, I hold that the prosecution miserably failed to prove the charge

under Section 306 of IPC against the accused Md. Sorhab Ali beyond all

reasonable doubt and the accused is liable to be acquitted.

35). In the result, accused Md. Sorhab Ali is acquitted of the charge

under section 306 IPC, levelled against him, on benefit of doubt.

His bail bond stands discharged.


36). Given under my hand and seal of this Court on this 22nd day of

November, 2019.

Dictated & corrected by me.

Sd/-

Sessions Judge, Barpeta.


A P P E N D I X

(A) Prosecution witnesses:

P.W.1 = Smt Champa Begum,

P.W.2 = Ikram Hussain,

P.W.3 = Kamal Hussain,

P.W.4 = Manik Ali,

P.W.5 = Moinul Haque Laskar, the informant,

P.W.6 = Baharul Islam Laskar,

P.W.7 = Mst Sultana Khatun,

P.W.8 = Dr. Parthapratim Das, the M.O.,

P.W.9 = Jahangir Ali,

P.W.10 = Nabarul Haque,

P.W.11 = Dipak Kr. Taludkar, the I.O.,

P.W.12 = Bimal Deka,

P.W.13 = Pradip Haloi, the I.O.

(B) Prosecution Exhibits:

Ext.1 = Seizure list,

Ext.2 = FIR,

Ext.3 = Post mortem report,

Ext.4 = Inquest Report,

Ext.5 = Extract Copy of GDE No. Tarabari PS 117/14

Dated 26.05.2014,

Ext.6 = Sketch Map,

Ext.7 = Charge-sheet.

(C) Defence witnesses:Nil.

(D) Defence Exhibits: Nil.

(E) Court witnesses:Nil

(F) Court Exhibits: Nil.

Sd/-

Sessions Judge, Barpeta

J U D G M E N T - Barpeta District Judiciary

Documents

Transcript of J U D G M E N T - Barpeta District Judiciary