Gauhati High Court
Syed Javed Akhtar vs The State Of Assam And Anr on 3 November, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010218912022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1101/2022
SYED JAVED AKHTAR
S/O ALIMATDDIN AHMED
R/O LUTHURIGAON
P.S. SIMALUGURI
DIST. SIVASAGAR, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE PP, ASSAM
2:HARMUJ ALI
S/O MAINUDDIN ALI
R/O DISOI NADIYAL GAON
P.S. SADIYA PIN- 786158.
DIST. TINSUKIA
ASSA
Advocate for the Petitioner : MR. P HAZARIKA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 03-11-2022 Heard Mr. P.K. Munir, learned counsel for the petitioner. Also heard Mr. Page No.# 2/11 Bhaskar Sarma, learned Addl. P.P. appearing for the State respondent no.1.
2. By filing this criminal petition under section 482 read with Section 401 Cr.P.C., the petitioner, namely, Syed Javed Akhtar, has prayed for setting aside and quashing of (i) the order dated 15.03.2022, passed by the learned Additional Sessions Judge, Sivasagar in Sessions Case No. 37(S- N)/2022, thereby taking cognizance of the offence under Sections 306 IPC; and
(ii) the proceedings of Sessions Case No. 37(S-N)/2022, which is pending for disposal before the Court of the learned Additional Sessions Judge, Sivasagar.
3. Bereft of unnecessary details, it would suffice to mention that on 18.11.2021, a FIR was filed by the respondent no.2, alleging that on 15.09.2019, his daughter Romija Khatun was married to Alimatddin Ahmed, who had a son, namely, Javed Akhtar out of his previous marriage. At the instigation of his real mother, Javed Akhtar mercilessly tortured his step-mother and on 13.11.2021, at about 12.15 pm, he had physically assaulted his step-mother and she ran to the first floor, but she was again assaulted, but her husband just watched and did nothing. Lastly, her husband and step-son had both poured kerosene over her and they burnt her. She was then admitted in Joysagar Civil Hospital, but she was referred to AMC&H, Dibrugarh, where she died on 15.11.2021 at about 6.00 am. It was mentioned that delay had occurred in lodging the FIR as the informant was busy with treatment of his daughter. Nujmina Ahmed, the divorced wife of Alimutddin was accused of conspiracy and Alimutddin and Javed Akhtar were accused of committing the murder. Accordingly, Simaluguri P.S. Case No. 169/2021 was registered.
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4. After completion of investigation, the I.O. had submitted charge-sheet bearing no. 89/21 under Section 302 IPC. The case was committed for trial and the learned Addl. Sessions Judge, Sivasagar had read over and explained the charge to the petitioner under Section 306 IPC and as the accused persons pleaded not guilty and claimed to be tried, the case was fixed on 29.03.2022 for production of witnesses.
5. The learned counsel for the petitioner has referred to the dying declaration made by the victim at 06.05. pm. before the doctor attending her in AMC&H, which was signed by the Doctor, Nurse and ASI of Police, wherein she had stated as follows:-
"My husband was previously married. The boy stayed with us, I loved the boy. The boy stayed with us. We are four member family, Mother- in-law has died, we are three, the boy used to assault physically and verbally. I am very ashamed of it. I am mentally depressed. I pour kerosene and burnt myself, to save me, his body also got burnt ."
6. It is further submitted that not only the deceased, in her dying statement, had exonerated the petitioner, but the father of the victim had also exonerated the petitioner of setting the deceased victim on fire. It was stated that in his examination-in-chief as PW-1 on 06.06.2022, he had stated that when he met his daughter in AMC&H on 14.11.2021, she was able to speak slowly and she had told him that the petitioner had assaulted her physically and due to said assault, she got mental shock and she set fire on her body. Moreover, in his cross examination, the informant, i.e. the father of the deceased (PW-1) had stated that by mistake he had written in the FIR that his son-in-law and the petitioner had put kerosene oil on his daughter and burnt Page No.# 4/11 her. He had stated that his daughter was taken to the hospital by his son-in-law and the petitioner, and that his son-in-law tried to rescue his daughter and he got burnt and he was in AMC&H for 15 days. He also denied that he had told the police that the petitioner had physically assaulted his daughter.
7. Thus, it was submitted that the essential ingredients of abetment for commission of suicide as prescribed under Section 107 IPC was not present in the case and therefore, the charge against the petitioner for committing offence under Section 306 IPC was totally absent.
8. It was submitted that mere assaulting the deceased by the petitioner was not sufficient to constitute abetment of suicide because no situation was created by the petitioner that left the deceased no other way out or alternative, but to commit suicide. It was also submitted that ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous and that in all crimes, guilty mens rea has to be established.
9. In support of his contention, the learned counsel for the petitioner has placed reliance on the following case citations, viz., (i) Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, (ii) Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200 , (iii) M. Mohan v. State represented by the Deputy Superintendent of Police, (2011) 3 SCC 626 , and (iv) Vishal Agarwal v. State of Assam & Ors., (2012) 5 GLR 819: 2012 (2) GLT 701 .
10. The learned Addl. P.P. has opposed the prayer made in this criminal petition and it was submitted that the trial was at the nascent stage Page No.# 5/11 and that at this stage of trial, the trial ought not to be scuttled at this stage. In support of his submissions, the learned Addl. P.P. has placed reliance on the following cases, viz., (i) Saranya v. Bharathi, 2021 (3) Crimes SC 292: (2021) 8 SCC 583, (ii) State of Madhya Pradesh v. Deepak, (2019) 13 SCC 62.
11. At the outset, it may be stated that the Court is conscious of the definition of abetment as provided in Section 107 of the IPC.
12. In this case in hand, the learned counsel for the petitioner is heavily relying on (i) the alleged dying declaration of the victim, and (ii) the statement of the informant, made in course of his examination-in-chief and cross-examination to project that the petitioner has not committed the alleged offence of abetment to suicide.
13. It is noted that the alleged dying declaration has not been proved in evidence, without which it cannot be conclusively stated at this stage that the statement, which is being relied upon was admissible as a dying declaration. The person, who had recorded the dying declaration and the three witnesses who have signed the alleged dying declaration have not been examined and cross-examined yet. Therefore, it cannot be conclusively said that the alleged dying declaration had been made in accordance with law and can be relied upon as an admissible piece of evidence or whether the same is beyond or not beyond doubt. Moreover, except for the time, the dying declaration does not contain the date on which it was recorded. Thus, if at this stage, the Court relies on the alleged dying declaration, it would be on the basis of a presumption that the dying declaration was an admissible and reliable piece of Page No.# 6/11 evidence having an impeccable and sterling quality and that it fulfilled all other settled legal parameters for accepting the writing as a dying declaration.
14. It may be stated that there is no quarrel regarding the principles that have been laid down in the four cases cited by the learned counsel for the petitioner. However, the Court is required to examine whether at this stage of trial, it would be appropriate for the Court to examine the evidentiary value of the materials available on record and to arrive at a conclusion that there is no material at all to prosecute the petitioner, or in other words, when evidence is not concluded, whether it would be appropriate for the Court to invoke jurisdiction under Section 482 Cr.P.C. read with Section 401 Cr.P.C. to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence under Section 306 IPC.
15. In this regard, the Court is of the considered opinion that when it is not in dispute that the petitioner had habitually assaulted the deceased both physically and mentally, and moreover, it is not in dispute from the alleged dying declaration that immediately before the deceased committed suicide, she was physically assaulted by the petitioner, it would be the duty of the Court to give the prosecution a chance to examine all their witnesses and to exhibit their documentary evidence.
16. It is surprising to note that no FIR was lodged immediately after the deceased got burnt on 13.11.2021 and shifted to Joysagar Civil Hospital, and later on shifted to AMC&H, Dibrugarh. Nothing is known as to why the Page No.# 7/11 police did not get the dying declaration of the deceased recorded by the Magistrate. In the FIR, the informant has stated that he was busy in treating the deceased, but the dying declaration is not recorded in his presence. Nonetheless, in the FIR lodged on 18.11.2021, the informant alleges that the petitioner and his son-in-law had poured kerosene over the victim and burnt her.
17. It may also be stated that when appropriate witnesses are examined, the post mortem report procured by the I.O. can be proved, which may throw some light about the commission of alleged offence.
18. From the conjoint reading of the FIR and the alleged dying declaration, there is no escape from the fact that the petitioner, who is the step- son of the deceased had habitually assaulted the deceased both physically and mentally although she loved her. On 13.11.2021, the victim was assaulted and when she ran upstairs, she was followed by the petitioner who again physically assaulted her. Moreover, in the FIR, it was alleged that the husband of the deceased, who was present at the place of occurrence, merely watched the assault and did nothing. Thus, it cannot be ruled out that the petitioner kept on irritating or annoying the deceased by continuous physical and mental assault, coupled with willful silence of the husband of the deceased that the deceased was pushed towards suicide and moreover, this was not a case of solitary physical assault by the petitioner. Therefore, it cannot be ruled out that there was no presence of mens rea and/or that there was no such instigation to the deceased to commit suicide in as much as that. On facts, the Court is unable to agree that even if one lady is regularly assaulted by her step-son, and husband Page No.# 8/11 remains silent, no woman would be driven to commit suicide.
19. The relevant para of the case of Saranya (supra) is quoted below:-
7. We have heard the learned counsel for the respective parties at length.
Before considering the rival submissions of the parties, few decisions of this Court on the principles which the High Court must keep in mind while exercising the jurisdiction under Section 482 Cr.P.C. at the stage of framing of the charge while considering the discharge application are required to be referred to and considered.
7.1 In the case of Deepak (supra), to which one of us (Dr. Justice D.Y. Chandrachud) is the author, after considering the other binding decisions of this Court on the point, namely, Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460; State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198; and Chitresh Kumar Chopra v. State (Government of NCT of Delhi), (2009) 16 SCC 605, it is observed and held that at the stage of framing of charges, the Court has to consider the material only with a view to find out if there is a ground for "presuming" that the accused had committed the offence. It is observed and held that at that stage, the High Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, take at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. It is further observed and held that at this stage the High Court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence recorded the accused charge- sheeted or against whom the charge is framed is likely to be convicted or not .
20. The observations of the Supreme Court of India in the case of Deepak (supra) are reproduced below:-
11. The Court also enunciated a set of principles which the High Courts must keep in mind while exercising their jurisdiction under the provision:
"27. .. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code Page No.# 9/11 or together, as the case may be:
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."
21. Thus, while examining whether the charges framed against the petitioner was justified, as per the ratio of the two cases cited by the learned Addl. P.P., the Court ought not to marshal the record with a view to decide admissibility and reliability of the records. However, on examining the materials available on record, the Court is unable to hold that the prosecution materials available on record is so absurd that no person trained in law would accept that Page No.# 10/11 the ingredients of abetment to suicide was totally absent. On facts, it cannot be said that if trial in this case is allowed to proceed, it would be a total or patent miscarriage of justice.
22. It is seen that in the case of Gurcharan Singh (supra), cited by the learned counsel for the petitioner, the Supreme Court of India was deciding an appeal against conviction, which was upheld by the High Court, which means that the evidence was available on the record. In the case of Vishal Agarwal (supra), it was a case of solitary physical assault by the petitioner on the deceased and lodging of a false complaint against the deceased, who had committed suicide. In the case of Arnab Manoranjan Goswami (supra), in the FIR, the wife of the deceased had stated to the effect that the deceased had a Company carrying on the business of architecture, interior design and engineering consultancy and according to the informant, her husband was over the previous two years "having pressure as he did not receive the money of work carried out by him". The FIR recites that the deceased had called at the office of the appellant and spoken to his accountant for the payment of money. Apart from the above statements, it has been stated that the deceased left behind a suicide note stating that his "money is stuck and following owners of respective companies are not paying our legitimate dues". Under such factual matrix, the Supreme Court of India had observed that it cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section 306 of the IPC. But as indicated herein before, on facts the present case is distinguishable because the materials available so far prima facie discloses that the petitioner, who was a member of the same family and household was physically assaulting the deceased regularly. Therefore, in the opinion of this Page No.# 11/11 Court, on facts of this case, the cases cited by the learned counsel for the petitioner would have no applicability in the present stage of the case.
23. Therefore, the Court is of the considered opinion that the petitioner has not been able to make out any case for setting aside and for quashing of (i) the order dated 15.03.2022, passed by the learned Additional Sessions Judge, Sivasagar in Sessions Case No. 37(S-N)/2022, thereby taking cognizance of the offence under Sections 306 IPC; and (ii) the proceedings of Sessions Case No. 37(S-N)/2022, which is pending for disposal before the Court of the learned Additional Sessions Judge, Sivasagar. Thus, this petition fails and the same is dismissed at the 'motion' stage without issuance of notice on the respondents.
24. The Registry shall send a copy of this order to the Court of the learned Additional Sessions Judge, Sivasagar to make it a part of the record of Sessions Case No. 37(S-N)/2022.
25. Before parting with the records, it is clarified that the observations made herein is not intended to prejudice the petitioner in course of the trial and therefore, the learned trial Court shall proceed uninfluenced with the observations made herein.
JUDGE Comparing Assistant