Atanu Pandit vs Unknown on 10 April, 2017

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C.R.R. 1137 of 2017

255 10.04.2017

In the matter of : Atanu Pandit
SB Ct. No. 28

Dr. Jyotirmoy Adhikary
Mr. Tirthankar Dhali
….. For the Petitioner

Order dated 07.03.2017 passed by the Additional

Sessions Judge, 1st Court Contai, Purba Medinipur, in S.T. No.

5/March/2014 under sections 498A/306/34 refusing to amend

the charge and add Section 302 of Indian Penal Code to the

array of charges has been assailed by the petitioner de facto

complainant.

The prosecution case against the opposite party

nos. 2 to 5 is to the effect that sister of the petitioner namely,

Piyashi Das had been married to opposite party no. 2 for 17

years. From the said wedlock two children were born who are

presently 14 years and 8 years respectively. It has further been

alleged that the victim was ill-treated on demands of dowry and

on 13.06.2012 the petitioner was informed that she had

committed suicide by hanging. On the basis of such

information, a criminal case was registered against the opposite

party nos. 2 to 5 here under Sections 498A/306/34 of Indian

Penal Code. Charge-sheet was filed against the opposite party

nos. 2 to 5 herein and the case was committed to the Court of

Sessions Charges were framed under sections 498A/306/34 of

Indian Penal Code. After framing of charges, the petitioner

prayed for adding section 302 of the Indian Penal Code which

being turned down by the Trial Court vide order dated

14.01.2016. The petitioner approached this Court in C.R.R 457

of 2016 but this Court refused to interfere with the said order,

READ  Boothesha vs The State Of Karnataka on 26 March, 2014

however, giving liberty to the petitioner to agitate his grievance
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upon the examination of Autopsy Surgeon.

It appears that the Autopsy Surgeon was examined in the

instant case as P.W. 3 and thereafter the petitioner renewed his

prayer which again was turned down by the Trial Court vide

order dated 07.03.2017. Hence the petitioner is before this

Court.

Dr. Adhikari, learned counsel for the petitioner submits

that the opinion of the Autopsy Surgeon as to the cause of

death is confusing and, therefore, in the facts of the case, it

would be prudent that graver charge under section 302 of the

Indian Penal Code be added in the interest of justice.

I have perused the evidence of P.W. 3 who unequivocally

stated that cause of death is due to asphyxia and apoplexy

following hanging which is suicidal and antemortem in nature.

P.W. 3 further deposed that the ligature mark around neck is

evident at the front of both sides of neck and not evident in the

back. He also clarified if ligature mark is interrupted or non-

continuous then it pre-supposed that the death is due to

hanging.

However, in cross-examination he stated that non-

continuous ligature mark in all cases does not show that it is a

case of suicide.

Non-continuous ligature mark on the neck of the

victim ordinarily is indicative of suicidal hanging. There may be

theoretical exemptions as deposed by P.W. 3 in his cross-

examination, however, such academic hypothesis in the

absence of clear evidence on record probabilising a case of

murder would not justify a strong suspicion as to the murder of

READ  Vikas Verma vs State Of Punjab on 3 May, 2017

the victim require amending of charge by incorporation of

section 302 of Indian Penal Code to the array of charges.
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It was argued that body of the victim was found

under a tree which was not more than six feet in height which

improbabilises a case of suicidal hanging. Such circumstance

does not absolutely negate the possibility of suicidal hanging

nor was such circumstance put to the autopsy surgeon for his

opinion. There is nothing on record to show that this was a

case of homicidal death. Death of the victim occurred 17 years

after her marriage and framing of charge under 304 (B) of

Indian Penal Code or invocation of statutory presumption under

Sections 113(A) and 113(B) of the Evidence Act is also

impermissible under such facts and circumstances.

In the aforesaid factual matrix, I am of the opinion

that no case of amending the charges framed and incorporation

of Section 302 of Indian Penal Code has been made out and the

order passed by the Trial Court is upheld.

The petition is accordingly, dismissed.

(Joymalya Bagchi, J.)

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