NIHALUDDIN ALIAS MUNNA Vs. STATE OF C G

JUDGEMENT

(1.) Deceased- Tauhiduddin was younger brother of the applicant. The deceased was residing separately along with his wife, complainant- Shayra Begum. The deceased was a tempo-driver. He was missing since 9.10.2003. On 16.10.2003 he was found dead in Shivnath river. Merg intimation was recorded and the dead body was sent for post-mortem. On post-mortem examination, it revealed that the death was on account of asphyxia due to inhalation of water caused by drowning. During the course of investigation of missing report, statement of wife of deceased, namely Shayra Begum, was recorded on 14.10.2003. In the said statement, she simply mentioned that the deceased was missing since 11.00 p.m. of 9.10.2005. She also stated that a dispute had taken place between the deceased and his elder brother (applicant herein), but it was not very serious, such disputes relating to their property had taken place many times, but after the disputes both the brothers used to reside in usual manner. The dead body of the deceased was taken out from the river as an unidentified body. When it was identified to be that of the deceased, another statement of Shayra Begum was recorded on 20.10.2003. In this statement, she gave details about various instances of family quarrels between the applicant and the deceased and stated that the dispute was mainly on account of their ancestral property in their parental village and also on account of partition of father's estate. Third statement of Shayra Begum was also recorded on 25.10.2003. In this statement, she quoted that after the death of father of the deceased on 26.7.2002, the bank balance of his father was also retained by the applicant and the applicant had also not given the batai of land of village Mahouda (U.P.). She made allegations that the applicant was driver in BSP. He used to bring illegal diesel and he always used to pressurize the deceased for purchasing illegal diesel by paying the applicant 2 rupees lesser than the market rate. In last paragraph of this 3rd statement, she stated that 2 days prior to 9.10.2003, the deceased was looking disturbed. When she asked, he told her that the applicant had retained the amount of the land and when he was asking about the amount from the applicant, the applicant assaulted him and threatened him saying that he will keep the entire property of the village. On this when the deceased said that where he will live, the applicant added that "go and die, he will not give a single inch of land." It is on this evidence a charge-sheet was filed u/s 306 IPC against the applicant and the matter was committed to the Session's Court Durg and was registered as Session Trial No. 110/2004.

(2.) The learned Session Judge took up the matter for framing of charges. It was argued that in the above facts and circumstances of the case, an offence u/s 306 IPC would not be made out, therefore, the applicant should be discharged. The Session Judge did not accept the above arguments and framed charges against the applicant u/s 306 IPC vide order dated 10.9.2004, which has been impugned by the applicant in this criminal revision.

(3.) Mr. Rakesh Pandey, learned counsel appearing on behalf of the applicant, would submit that there is no evidence of instigation; there is no evidence to show that the applicant committed any such act which may amount to abetment of suicide; even if the entire evidence collected by the prosecution is accepted on its face value, an offence u/s 306 IPC would not be made out and the Session Judge erred in law in not discharging the applicant/accused at the stage of framing of charges.