Gauhati High Court
Crl.A./330/2023 on 30 September, 2024
GAHC010199162023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Principal Seat at Guwahati
Case No. Crl.A./330/2023
Suman Sharma @ Chuman Kr. Sharma,
S/o Sri Rajdeo Sharma,
Vill.- Nijarapar, Jagiroad, P.S.- Jagiroad,
Dist.- Morigaon, Assam,
PIN- 782410.
........Appellant
-Versus-
1. The State of Assam,
Represented by P.P. Assam.
2. Kamakhya Thakur,
S/o Gopal Thakur,
R/o Jail Road, Ward No. 8, North Lakhimpur,
P.S.- Sinatoll, Dist.- Lakhimpur, Assam,
PIN- 787001.
.......Respondents
-BEFORE-
HON’BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the appellant : Mr. S.R. Gogoi;
Advocate for the respondents : Mr. P.S. Lahkar, for respondent No. 1;
Page 1 of 50
Mr. N. Barman, for respondent No. 2.
Date of hearing : 13.08.2024
Date of judgment : 30.09.2024
JUDGMENT & ORDER (CAV)
Heard Mr. S.R. Gogoi, learned counsel for the
accused/appellant and Mr. P.S. Lahkar, learned Additional Public
Prosecutor for the State respondent No. 1. Also heard Mr. N.
Barman, learned counsel for the respondent No. 2.
2. Judgment, dated 07.08.2023, and order of sentence, dated
08.08.2023, passed by the learned Sessions Judge, Morigaon, in
Sessions Case No. 81/2017, is impugned in this appeal, under
Section 374(2) Cr.P.C.
3. It is to be noted here that vide impugned Judgment dated
07.08.2023 and the order of sentence dated 08.08.2023, the
learned Sessions Judge, Morigaon („trial Court‟, for short) has
convicted the accused/appellant Sri Suman Sharma @ Chuman Kr.
Sharma, under Section 304B IPC and sentenced him to undergo
rigorous imprisonment for 8 years.
4. The background facts, leading to filing of the present appeal,
are briefly stated as under:
“Sri Suman Sharma @ Chuman Kr. Sharma, accused/appellant
here in got married with one Nirmala Thakur (since deceased),
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daughter of Kamakhya Thakur, respondent No.2 here in, on
14.07.2010. After a few days of their happy conjugal life,
marital discord surfaced when the present accused/appellant
started demanding dowry and subjected Nirmala Thakur to
both physical and mental cruelty. She was taken to the native
place of the accused/appellant at Bihar, and there the
accused/appellant, along with his mother Smti Saradha Devi,
Smti. Sangita Sharma, wife of Sri Chutan Sharma (the brother
of the accused/appellant) subjected her to different kinds of
tortures. Thereafter, she was taken back to Jagiroad where
the accused/appellant has business and on 21.09.2015, the
accused/appellant and his brother Chutan Sharma committed
murder of Nirmala Thakur and thereafter, the father of the
appellant informed the respondent No. 2 at about 12:30 p.m.
that his daughter suffered demise on account of her illness.
On receipt of an FIR to this effect from the respondent
No. 2 Kamakhya Thakur, the Officer In-Charge, Jagiroad P.S.
registered a case, being Jagiroad P.S. Case No. 45/2015,
under Sections 304B/34 IPC and endorsed WSI Sonmoni
Begum to investigate the same. The I.O. then visited the place
of occurrence, examined the witnesses, arrested the
accused/appellant and his brother Chutan Sharma and
forwarded them to jail hazot and then she held inquest over
the dead body of the deceased and sent the same for autopsy
and thereafter, collected the report and on completion of
investigation, the I.O. laid charge-sheet against the present
appellant Suman Sharma to stand trial in the Court, under
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Section 304B IPC. The learned Sub-Divisional Judicial
Magistrate, Morigaon then secured the presence of the
appellant and complying with the provision of Section 207,
Cr.P.C., committed the case to the Court of learned Sessions
Judge, Morigaon, being the case exclusively triable by the
Court of Sessions.
On appearance of the accused/appellant and after
hearing the learned Advocates of both sides, the learned
Sessions Judge, Morigaon, vide order dated 18.01.2018, had
framed following charges against the accused/appellant under
Sections 302/304B, IPC :-
(i) That, you, on 21.09.2015, at about 11 am, at
village Nijarapar, under jagiroad Police
Station, committed dowry death by causing
the death of your wife, namely, Ms.
Nirmala Thakur and thereby committed an
offence punishable under section 304-B IPC
which is within the cognizance of this
court and I hereby direct that you be
tried by said court on the aforesaid
charge;
(ii) That you on 21.09.2015, at about 11 am, at
village Nijarapar, under jagiroad Police
Station, committed murder by intentionally
or knowingly causing death of your wife,
namely, Ms. Nirmala Thakur, and thereby
committed an offence punishable under
section 302 IPC, which is within the
cognizance of this court and I hereby
direct that you be tried by said court on
the aforesaid charge;
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The learned Sessions Judge, then read and explained
over the charges to the accused/appellant, to which he
pleaded not guilty and claimed to be tried.
Thereafter, the learned Sessions Judge had examined
the following witnesses:
(i) Sri Kamakhya Thakur as P.W.1.
(ii) Smti. Meena Devi Thakur as P.W.2.
(iii) Smti. Shanti Devi as P.W.3.
(iv) Dr. Sailendra Bardhan Borah as P.W.4.
(v) Sri Ranjan Thakur as P.W.5.
(vi) Sri Anjan Gohain Baruah as P.W.6.
(vii) The I.O. WSI Smti. Sunmoni Begum as P.W.7.
The prosecution side had also exhibited the following
documents:
(i) FIR as Ext.1.
(ii) Post-Mortem Examination Report as Ext.2.
(iii) Inquest Report as Ext.P-3.
(iv) Sketch Map as Ext.P-4.
(v) Seizure List as Ext.P-5.
(vi) FSL Report as Ext.P-6.
(vii) Charge-sheet as Ext.P-7.
After closing the prosecution evidence, the learned
Sessions Judge had examined the accused/appellant under
Section 313 Cr.P.C. Thereafter, hearing learned Advocates of
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both sides, the learned Sessions Judge had acquitted the
accused/appellant of the charge under Section 302 IPC, but
convicted him under Section 304-B IPC and sentenced him as
aforesaid.”
5. Being highly aggrieved, the accused/appellant has approached
this Court by filing the present appeal, to set aside and quash the
impugned judgment and order of conviction, dated 07/08/2023 and
order of conviction, dated 08.08.2023, on the following grounds:
I. That, the learned Sessions Judge, Morigaon had failed to
appreciate the evidence in its true perspective and came to
an erroneous finding of guilt of the accused/appellant;
II. That, the prosecution had failed to prove the guilt of the
accused/ appellant by adducing cogent evidence and having
ruled out every other possibility consistent with the
innocence of the accused/appellant;
III. That, serious infirmities have been found in the evidence on
record and on the basis of such evidence involvement of the
accused/appellant cannot be said to have been proved
beyond reasonable doubt, which is the cardinal principle of
criminal jurisprudence;
IV. That, the learned Sessions Judge, Morigaon had failed to
appreciate the fact that the prosecution witness No. 1, Sri
Kamakhya Thakur had deposed in his examination in chief
that his daughter Late Nirmala Sharma was frequently
tortured, both physically and mentally by her husband i.e.Page 6 of 50
the accused/appellant, however, he had not stated about any
specific date or time of any incident of torturing his daughter
Late Nirmala Sharma and payment of Rs.50,000/- to the
accused/appellant in his examination-in-chief;
V. That, the learned Sessions Judge, Morigaon had failed to
appreciate the fact that the prosecution witness No. 1, Sri.
Kamakhya Thakur had deposed in his examination-in-chief
that on close scrutiny of the dead body of the deceased,
Nirmala Sharma, he had seen a round strangulation mark on
the neck of the deceased and had also noticed black spots on
the abdomen and on the backside of the deceased, but, he
made no such statement before police;
VI. That, the learned Sessions Judge, Morigaon had overlooked
the fact that the prosecution witness No. 1, Sri. Kamakhya
Thakur had deposed in his examination in chief that after his
daughter’s marriage, she was residing in her matrimonial
home at Bihar and that she was subjected to torture at her
matrimonial house at Bihar, but, he had specifically and
categorically stated in his cross-examination that he had not
lodged any case in Bihar with respect to the harassment and
torture of his daughter by the accused/appellant and his
family;
VII. That, the learned Sessions Judge, Morigaon had failed to
appreciate the fact that there is material contradiction in the
versions of P.W. 2, Smti Meena Devi Thakur, with her
previous statement in respect of subjecting her daughter to
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mental torture in respect of demanding dowry, and the same
has been proved by the I.O./P.W.7 and she had exaggerated
her statement during trial court and she is neither reliable
nor trustworthy and as such the same is liable to be rejected;
VIII. That, the Learned Sessions Judge, Morigaon had failed to
appreciate the fact that although the prosecution witness No.
3, Smti Shanti Devi had stated that sometimes after
marriage, deceased Nirmala Sharma had telephonically
informed her that the deceased Nirmala Sharma was
subjected to assault and torture over demand of money, and
on such occasions, Late Nirmala Sharma was beaten for
demand of money and the informant had paid a amount of
Rs.50,000/- to the accused/appellant, however, she had not
specified any specific date, time and place with respect to the
aforementioned incident. Moreover, she was not examined
by police and her evidence is neither clear nor consistent and
as such the same is liable to be rejected.
IΧ. That, it is very clearly stated in the post-mortem report of the
deceased that there is no external wounds present in the
dead body, thus, the allegation by the prosecution witness
with respect to the injury marks in the neck, abdomen or
back of the dead body of the deceased Nirmala Sharma is
not substantiated by the post-mortem report. Despite, the
learned trial court had clearly overlooked the fact that the
death of the deceased had occurred due to an internal
injury/bleeding which had occurred in the spleen of thePage 8 of 50
deceased due to splenic rupture as a result of an enlarged
spleen (Splenomegaly) which occurs when blood cells
accumulate in the spleen. The most common cause of
spontaneous rupture of an enlarged spleen is infectious
mononucleosis, a viral infection that is spread through saliva.
X. That, the learned trial court had failed to appreciate the fact
that there is material contradiction in the evidence of the
P.W.5, Sri. Ranjan Thakur, who is the brother of the
deceased and the same has been proved by the I.O./P.W.7.
Further P.W.5, Sri Ranjan Thakur had exaggerated his
statement in the trial court, and his testimony is neither
reliable nor trustworthy and the same is liable to be rejected.
XI. That, the learned trial court had failed to appreciate the fact
that the prosecution witness No. 6, Sri Anjan Gohain Baruah,
who is a neighbor of the accused/appellant, had deposed
that on the day of the incident i.e. 21/9/2015, he had seen
the deceased in her residence in good health and in the noon
while he returned home then the elder brother of the
accused/appellant had informed him that the deceased died
of her ailments, but, the learned trial court had assumed that
the death of the deceased is an unnatural death and
abdominal injuries might have caused her death;
XII. That, the prosecution side had failed to prove that the
injuries found inside the dead body of the deceased, were
caused by the accused/appellant. There is absolutely no
evidence appearing on record to establish that it was the
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accused/appellant who had inflicted the injuries to deceased,
which resulted in her death and in the absence of any
cogent, believable and satisfactory evidence the accused/
appellant could not be held guilty;
XIII. That, a conjoint reading of Section 113-B of the Evidence
Act and Section 304-B of the Indian Penal Code shows that
there must be material to show that soon before her death
the victim was subjected to cruelty or harassment. The
prosecution side has failed to show that soon before the
occurrence there was cruelty or harassment and only in that
case presumption operates and evidence in that regard has
to be led by prosecution. In the present case, there is no
evidence, whatsoever, to show that the deceased had made
any grievance of cruelty or harassment to any of her relatives
or neighbors prior to her untimely death.
XIV. That the learned trial court had failed to appreciate the fact
that although P.W. 1, 2, 3, 4, 5 had spoken about dowry
related harassment to the deceased, but they had not given
any specific evidence that the demand of dowry was
continuous and persistent and that such demand was made
soon before her death;
XV. That, the finding of guilt of the accused/appellant by the
learned trial court is based primarily on a presumption drawn
under Section 113-B of the Evidence Act, which is
impermissible in law in view of the failure of the prosecutionPage 10 of 50
to prove the basic facts which was a pre condition precedent
to the drawing of such a presumption.
XVI. That, the learned trial court had completely disregarded the
statement of the accused/appellant under section 313 Cr.P.C.
though he was duty bound to consider the same. And
complete non consideration thereof has clearly caused
prejudice to the accused/appellant.
XVII. That, to base a conviction on circumstantial evidence each
and every piece of incriminating circumstance must be clearly
established by reliable and cogent evidence and
circumstances so proved must form a chain of events as
would permit no conclusion other than that of the guilt of the
accused and the circumstance cannot be explained on any
hypothesis than that of the guilt of the accused. Further, the
chain of events is not complete.
XVIII. That, the I/O/P.W.7 had not collected finger print,
photograph of the dead body and had perfunctorily
conducted the investigation of the case.
6. Mr. S.R. Gogoi, learned counsel for the accused/appellant, has
submitted a synopsis of written argument and supplemented the
same by oral argument. Mr. Gogoi submits that the learned trial
court had ignored the case of the accused/appellant that the
deceased was suffering from ailment for a long time and she was
treated by her parents and by the accused/appellant and he had
medical documents in support of the same, and he had taken such
a plea in his statement under section 313 Cr.P.C., but the learned
Page 11 of 50
trial court had failed to consider the same and complete non-
consideration is fatal to the prosecution case. Mr. Gogoi had
referred two case laws in (i) Reena Hazarika vs. State of
Assam, reported in AIR 2018 SC 5361 and (ii) Parminder
Kaur alias P.P. Kaur alias Soni vs. State of Punjab,
reported in (2020) 8 SCC 811, in support of his submission.
6.1. Mr. Gogoi also submits that the learned trial court had failed
to consider the evidence of P.W.s 1, 2, 3, and 5, who could not
state about the specific date or time of the incident of torturing the
deceased by the accused/appellant and further, they had
exaggerated their statements before the learned trial Court and
improved their versions which they had made before I.O. during
investigation.
6.2. Mr. Gogoi further submits that the prosecution side has failed
to prove beyond reasonable doubt that soon before the death of the
wife of the accused/appellant, she was subjected to cruelty or
harassment by the accused/appellant in connection with demand of
dowry which is one of the ingredient of the charge and condition
precedent and unless such basic ingredient is established the
accused/appellant cannot be held guilty. In support of his
submission he has referred following decisions:- (i) Baljeet Singh
and Anr. vs. State of Haryana, reported in AIR 2004 SC
1714, (ii) Raman Kumar vs. State of Punjab, reported in
AIR 2009 SC (Supp) 1530,(iii) Dwijen Das vs. State of
Assam, reported in 2009 (3) GLT 546, (iv) Hira Lal and
Ors. vs. State (Govt. of NCT), Delhi, reported in AIR
2003 SC 2865; (v) Ashok Kumar vs. State of Haryana,
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reported in AIR 2010 SC 2839,(vi) Satyendra Kumar
Gupta vs. State of Bihar, reported in 2006 CRI. L.J.
4548.
6.3. It is the further submission of Mr. Gogoi that unless said
condition precedent is established by adducing cogent evidence the
presumption under section 113-B of the Evidence Act cannot be
pressed into service against the accused/appellant. In support of his
contention, Mr. Gogoi has referred following case laws:- (i)
Kailash vs. State of M.P., reported in AIR 2007 SC 107.
(ii) Thakkan Jha and Ors. vs. State of Bihar, reported
in 2004 (13) SCC 348; (iii) Keshab Chandra Panda vs.
State of Orissa, reported in 1994 CRI. L.J. 174; (iv)
Biswajit Halder alias Babu Halder and Ors. vs. State of
West Bengal, reported in 2007 CRI. L.J.2800. (v) Sanjiv
Kumar vs. State of Punjab, reported in AIRONLINE 2006
SC 26; (vi) Bhakhar Ram and Anr. vs. State of
Rajasthan, reported in 1995 CRI. L.J. 1345. Mr. Gogoi
also submits that though a duty is caste upon the accused/appellant
to rebut the presumption, he need not enter into witness box and
from the evidence of the prosecution witnesses he can discharge
the burden and in the instant case the accused/appellant had
discharged the burden by taking a plea that the deceased was
suffering from ailment of stomach and she died of the same and
that the standard of proof is not beyond all reasonable doubt, but
only preponderance of probability only.
6.4. Mr. Gogoi also submits that the sketch map shows that one
Smt. Sangita Kakati resided in the same house with the
Page 13 of 50
accused/appellant, and her residence is only separated by a wall
and P.W.6 Sri Anjan Gohain Baruah had resided in the same
campus and as such, there were other families residing with the
accused/appellant in the same house and in the same campus. But,
the prosecution side did not examine Smti. Sangita Kakati to prove
the charge under Section 304B IPC.
6.5. Further, Mr. Gogoi submits that there is no direct evidence
herein this case against the accused/appellant. The entire case rest
on circumstantial evidences only but the circumstances so relied
upon by the prosecution side had failed to establish the complete
chain of event and to establish that except the guilt of the
accused/appellant no other hypothesis is possible on the facts and
circumstances on the record. In support of his submission Mr. Gogoi
has relied upon following decision (i) Ramanand @ Nandlal
Bharati vs. State of Uttar Pradesh, reported in 2022 0
AIR (SC) 5273.
6.6. Lastly, Mr. Gogoi also submits that the wife of the
accused/appellant suffered demise due to haemorrhage inside the
abdomen cavity as a result of spleenic injury and the same
happened due to diseases and not an external wound was found on
her person and as such, the prosecution side had failed to establish
beyond reasonable doubt that the death of the wife was due to
unnatural circumstances caused by burn or bodily injury or
otherwise and as such, the explanation so forthcoming from the
accused/appellant is reasonable and therefore, Mr. Gogoi has
contended to allow this appeal.
Page 14 of 50
7. Per contra, Mr. P.S. Lahkar, learned Additional Public
Prosecutor for the State respondent No. 1 has supported the
impugned judgment dated 07.08.2023 and order of sentence dated
08.08.2023, passed by the learned Sessions Judge, Morigaon. Mr.
Lahkar, referring to the Post-Mortem Examination Report, submits
that the victim suffered death due to shock and haemorrhage inside
the abdominal cavity as a result of spleenic injury, and that the
spleen was found to be torn and lacerated and huge haematoma
(clotted blood) found present in spleenic area. Besides, a linear
mark was also found on the neck and the same are consistent with
the evidence of the Doctor (P.W.4), who had conducted the autopsy
on the dead body of the deceased. Drawing the attention of this
Court to the evidence of P.W.s 1, 2, 3 and 5, Mr. Lahkar submits
that on examination of the dead body of the deceased, they found
injury marks on abdomen, back and neck and the same stood
corroborated from the evidence of P.W.4, the Doctor, who had ruled
out spleenic injury by falling.
7.1. Mr. Lahkar referring to the evidence of P.W.s 1, 2, 3 and 5,
also submits that the accused/appellant had subjected the deceased
to both physical and mental torture demanding dowry and that the
death of the deceased took place within 7 years of their marriage in
a suspicious circumstance and this satisfied the requirement of
drawing a statutory presumption under section 113-B of the
Evidence Act. Therefore, Mr. Lahkar submits that the impugned
judgment and order of sentence suffers from no infirmity or
illegality requiring interference of this Court.
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7.2. It is the further submission of Mr. Lahkar that though the
accused/appellant had taken a plea under Section 313 Cr.P.C. that
the deceased was suffering from abdominal disease, yet the Post-
Mortem Examination Report is silent on that point and no question
was put to P.W.4, the Doctor who conducted autopsy and also he
had not adduced any defence evidence though he stated that he
had document of treatment of the deceased.
7.3. Mr. Lahkar has also referred two decisions of Hon‟ble Supreme
Court in (i) Trimukh Maroti Kirkan vs. State of
Maharashtra, reported in (2006) 10 SCC 681 and (ii)
Premchand vs. State of Maharashtra, reported in 2023
Live Law (SC) 168, to contend that the deceased and the
accused/appellant were residing in the same house. There is no
dispute about it. And P.W.6, who also resided in the same campus,
had seen the deceased in the morning in a normal condition, but
found her dead in the afternoon when he returned home from his
duties. Mr. Lahkar further submits that when the husband and wife
lived together in the same household and if the wife was found
dead, then the husband owes an explanation under Section 106 of
the Indian Evidence Act and failing to offer explanation to the
satisfaction of the Court, provides an additional link to the chain of
circumstances to make it complete. He has also referred to another
decision of Hon‟ble Supreme Court in the case of Balvir Singh
vs. State of Uttarakhand, reported in 2023 Live Law
(SC) 861, in support of said contention.
Page 16 of 50
7.4. Mr. Lahkar further submits that though the accused/appellant
had taken a plea that at the relevant time, he was not at home
where the incident took place, yet he had adduced no evidence to
that effect. Mr. Lahkar further submits that the contradictions, so
brought on record here, were not proved in accordance with law
and as such the same cannot used to discredit them and that in fact
P.W.3 was examined the I.O. and her statement was recorded
under section 161 Cr.P.C. is available on the record of the learned
trial court. Mr. Lahkar also submits that in this type of cases usually
the family members are the most natural and probable witness and
though P.W.1,2,3 and 5 are family members of the deceased, yet
on account being relatives their evidence cannot be discared and
they have fully corroborated the prosecution version. Under the
aforementioned fact and circumstances Mr. Lahkar has contended
to dismiss the appeal.
8. On the other hand, Mr. N. Barman, learned counsel for the
respondent No. 2 has subscribed the submissions, so advanced by
Mr. Lahkar, learned Additional Public Prosecutor for the State
respondent No. 1. Mr. Barman has referred two decisions of Hon‟ble
Supreme Court as well as one decision of Tripura High Court in (i)
State of Madhya Pradesh vs. Jogendra and Anr., reported
in (2022) 5 SCC 401; and (ii) Ram Badan Sharma vs.
State of Bihar, reported in (2006) 10 SCC 115 and (iii)
Subrata Majumder vs. State of Tripura, reported in 2019
(3) GLT (TR) 105, to contend that ingredients of the dowry death
is established herein this case and as such statutory presumption
under section 113-B is has to be drawn compulsorily and the
Page 17 of 50
learned trial court had rightly drawn the same. Mr. Barman further
submits that the accused/appellant had failed to rebut the same.
Therefore, Mr. Barman contended to dismiss the appeal.
9. Having heard the submissions of learned Advocates of both
the parties, I have carefully gone through the appeal and the
documents placed on record and also perused the impugned
judgment dated 07.08.2023 and order of sentence dated
08.08.2023.
10. The FIR (Ext.1) reveals that the occurrence took place on
21.09.2015, at about 11 a.m. in the morning in the house of the
accused/appellant, situated at Nijarapar under Jagiroad P.S. While
the occurrence took place on 21.09.2015, at about 11 a.m. in the
morning, the FIR was lodged on 22.09.2015, at about 11:15 a.m.
The distance between the place of occurrence and the police station
is about 1 kilometer. Thus, there appears to be delay in lodging the
FIR. This delay is not explained in express words.
10.1. But, it appears that the informant/respondent No. 2 resides
at North Lakhimpur and he was informed by the father of the
accused/appellant at about 12:30 p.m. that his daughter Nirmala
had passed away on account of illness. Then, the respondent No. 2,
along with his family members rushed to the place of occurrence
from North Lakhimpur and having arrived at the place of occurrence
i.e. the house of the accused/appellant, they checked the dead body
of the deceased and found mark of injuries over her neck and back
and also on her abdomen and the accused/appellant could not
provide any proper answer, and sometimes, he told that the
Page 18 of 50
deceased died of hanging by herself and sometimes, he told that he
was absent when the incident occurred and then suspicion crept in
his mind about the cause of death of his daughter and then he had
reported the matter to police on 22.09.2015, at about 11:15 a.m.
10.2. Thus, though no explanation was forthcoming for the delay
from the evidence of the respondent No. 2 (P.W.1), yet the same
stands impliedly explained from his evidence. The cause of delay,
thus, appears to be natural and reasonable explanation and as such,
to the considered opinion of this Court, the delay of some hours in
lodging the FIR has failed to spell inveracity into the prosecution
version.
11. It is also noted here that while the date, time and place of
occurrence had not been disputed by the accused/appellant. And
the death of the deceased Nirmala was not also disputed by him.
Now, let it be seen how the deceased suffered demise, whether it
was suicidal or accidental or homicidal in nature.
12. In this regard, the evidence of P.W.4, the Doctor who
conducted autopsy on the dead body of the deceased, is relevant.
His evidence reveals that on 22.09.2015, he was working as Sub-
Divisional Medical and Health Officer at Morigaon Civil Hospital and
on that day, at about 2:15 p.m., he conducted autopsy on the dead
body of the deceased Nirmala Thakur, aged 26 years, in connection
with Jagiroad P.S. G.D. Entry No. 690, dated 22.09.2015, on being
identified by UBC-241 Mukul Sharma and Kamakhya Thakur and
Suresh Roy and on examination, he found the following:
Page 19 of 50
A linear mark in front of the neck, not
completely surrounded, with clotted blood on
mouth and nostrils. He found huge haematoma
inside the abdominal cavity near the spleen.
The spleen was torn and lacerated.
External appearance-
A female dead body, rigormortis present,
mouth and eyes closed.
The Doctor had opined that cause of death is due to shock and
haemorrhage, as a result of haemorrhage inside the abdominal
cavity, caused due to spleenic injury, and for further evaluation, the
viscera of the deceased was sent to the FSL for examination. He
confirmed the Post-Mortem Examination Report (Ext.2). A perusal of
Ext.2, the Post-Mortem Examination Report, reveals that the same
is also consistent with his evidence.
13. It is to be noted here that the accused/appellant had stated in
his examination under section 313 Cr.P.C. that deceased was
suffering from stomach ailments. But he had not adduced any
evidence to support the same, though he had stated that he had
the medical documents. Moreover, he had not cross-examined the
P.W.4 in respect of his opinion that death of the deceased was due
to shock and haemorrhage as a result of haemorrhage inside the
abdominal cavity due to spleenic injury. Even not a single
suggestion was put to him to the effect that the deceased died of
stomach ailment.
Page 20 of 50
14. Now, it is to be seen who caused the speelnic injury to the
deceased. In this regard, the evidence of P.W.1, P.W.2, P.W.3,
P.W.5 and P.W.6 are relevant.
15. It is to be noted here that P.W.1, Sri Kamakhya Thakur is the
informant and respondent No. 2 herein this case. He is the father of
the deceased and he had lodged the FIR (Ext.1) with the police
station. His evidence reveals that his daughter Nirmala Thakur got
married with the accused/appellant in the year 2010 and thereafter,
she was living with the accused/appellant for five years and led
their conjugal life. His evidence also reveals that after one and half
years of their marriage, the accused/appellant started demanding
money from her daughter and also from them and he used to
torture the deceased for demand of money and on one occasion, he
had paid a sum of Rs. 50,000/- to the accused/appellant so that he
would not torture his daughter.
15.1. His evidence also reveals that after the marriage of his
daughter, she was taken to Bihar. There, she was subjected to
physical and mental torture. And a payment of Rs. 50,000/- was
made to the accused/appellant, and thereafter he brought the
deceased to Jagiroad, where he had a business of motor garage.
And there also, he started subjecting her to torture and his
daughter used to kept him informing about the cruelty meted out to
her by the appellant and in that way, his daughter led conjugal life
with the appellant for five years and they were blessed with one
male child also.
Page 21 of 50
15.2. His evidence also reveals that on one day, he received one
phone call from the father of the appellant, who told him that his
daughter died due to abdominal pain and they want to take the
dead body to Bihar. Then, P.W.1 told him that he would not allow
the dead body to be taken to Bihar without seeing her. Thereafter,
along with his family members, he came to Jagiroad and on arriving
Jagiroad, he found his daughter lying dead on a bed and found the
accused/appellant in his house. And on close scrutiny, they found a
round strangulation mark on the neck of the deceased and black
injury spots on the abdomen and backside of the deceased and
when asked, the accused/appellant could not properly give his
answer and sometimes he told that the deceased died by way of
hanging by herself and sometimes he told that he was absent when
the incident occurred. And then suspicion crept his mind about the
cause of death.
15.3. Thereafter, he had reported the matter to police by lodging
the FIR (Ext.1). His evidence also reveals that at the relevant time,
the son of the deceased was three years old and he found him
crying in the house and the neighboring people also told them that
the accused/appellant had subjected the deceased to torture on
various occasions and on the day of incident one lady, who had
seen the deceased working in the house of the accused/appellant,
but, suddenly she came to know about her death.
15.4. The accused/appellant had cross-examined this witness at
length and it is elicited that he reached Jagiroad at about 11 p.m. at
night on the date of the incident. It is also elicited that after the
Page 22 of 50
marriage, his daughter used to stay at Bihar in most of the time in
the first few years and the accused/appellant used to visit Bihar
from Jagiroad. He denied that his daughter was suffering from an
abnormality and that she was given treatment for the same. He also
denied that his daughter was worrying at the time of submitting
NRC details. It is also elicited that he had not lodged any case at
Bihar for the torture meted out to his daughter. He denied that he
had not given a sum of Rs. 40,000/- to the accused/appellant at the
time of marriage and Rs.50,000/- so that his daughter was not
subjected to any physical and mental torture for demand of dowry.
He also denied having not stated before police that he saw round
strangulation mark on the neck of the deceased and also noticed
black injury spots on the abdomen and backside of the deceased.
However, the accused/appellant had confirmed through the I.O.
that such statement was not made before him. But, at best, this can
be termed as omission which cannot be treated as contradiction
being not proved in accordance with law. And as such, it failed to
spell inveracity into the version of P.W.1 which remained un-
impeached in the cross-examination. His evidence that he found
injury mark over the neck is corroborated by the evidence of P.W.4,
the Doctor who had conducted autopsy and his report (Ext.2).
16. P.W.2 Smti. Meena Devi Thakur is the wife of P.W.1 and she
also corroborated the version of P.W.1 in respect of the torture
meted out to the deceased by the accused/appellant in demand of
dowry. She further corroborated the version of P.W.1 that he had
given a sum of Rs. 50,000/- out of Rs. 2,00,000/- demanded by the
accused/appellant. Her evidence also reveals that her daughter told
Page 23 of 50
her that the accused/appellant threatened to kill her and that if he
marries elsewhere, he would have received more money and
subsequently, he brought her daughter from Bihar to Jagiroad on
payment of Rs. 50,000/- by her husband.
16.1. Nothing tangible could be elicited in cross-examination of
this witness. She categorically denied that her daughter was
suffering from any abnormality. She denied having not stated
before the I.O. the statement given by her before the Court and the
accused/appellant side confirmed the same through the I.O. that
such statement was not made before him. But, this at best can be
termed as omission and also it cannot be treated as contradiction
being not proved in accordance with law. Thus, the
accused/appellant had failed to impeach the veracity of her version,
which, lent unstinting support to the version of P.W.1.
17. P.W.3 Smti. Shanti Devi is the sister-in-law of P.W.1. Her
evidence reveals that Nirmala Thakur got married with the
accused/appellant about five years back and after their marriage,
she was subjected to assault and torture on demand of money and
she used to tell the same to her over telephone. On one such
occasion, when she was beaten for demand of money, then her
brother-in-law/P.W.1 had given a sum of Rs. 50,000/- to him and
thereafter, the accused/appellant had brought the deceased to
Jagiroad from Bihar, and then on one day a phone call came that
Nirmala died due to some stomach problem. Accordingly, she, along
with Kamakhya Thakur (P.W.1) and his wife Meena Devi (P.W.2)
came to Jagiroad and found the dead body of the deceased in the
Page 24 of 50
house of the accused/appellant. Initially, the family members of the
accused/appellant did not tell anything, but later on, they said that
the deceased died by hanging herself. She had seen the dead body
of the deceased with injury marks over her neck, abdomen and
back and later on, police came and took away the dead body and
the accused/appellant with them.
17.1. However, it is elicited in her cross-examination that she was
examined by police. But, in fact she was examined by the I.O.
during investigation and it is the categorical submission of Mr.
Lahkar, the learned Addl. P.P. that her statement under section 161
is very much available on the record of the learned trial court.
Moreover, her evidence in chief remained un-impeached in cross-
examination. It also appears that Thus, this witness also lent ample
corroboration to the versions of both P.W.1 and P.W.2 in respect of
injuries sustained by the deceased and also in respect of the torture
meted out to her by the accused/appellant in respect of demand of
dowry and also in respect of payment of Rs. 50,000/- by the
informant/P.W.1.
18. P.W.5, Sri Ranjan Thakur is the brother of the deceased. His
evident also lent ample corroboration to the versions of P.W.1,
P.W.2 and P.W.3. His evidence reveals that the deceased got
married with the accused/appellant on 14.07.2010 and initially, their
conjugal life was fine, but thereafter, the accused/appellant started
beating her demanding money and his mother used to console her
that things will become alright. Thereafter on 26.10.2012, her sister
gave birth to a son and thereafter also, the accused/appellant
Page 25 of 50
continued to assault the deceased. His evidence also reveals that till
April, 2015 after their marriage, his sister was residing in the
parental house of the accused/appellant at Bihar. But, the
accused/appellant had a business in Jagiroad and he used to spend
time in both in Bihar and Jagiroad and in the year 2015, his mother
went to Bihar and took her back to Lakhimpur and then the
accused/appellant was given a sum of Rs. 50,000/- and he assured
that he would not subject the deceased to any torture and then
took her to Jagiroad on 04.08.2015.
18.1. His evidence also reveals that on the occasion of
Rakshabandhan, he had visited the house of the deceased at
Jagiroad and he found that the accused/appellant came home in a
drunken condition and was speaking very rudely to his sister and he
reported the matter to his parents. Then on 21.09.2015, the father
of the accused/appellant informed his father that his sister suffered
demise due to stomach pain and that they want to take the dead
body to Bihar. Then, they rushed to Jagiroad and found the dead
body of his sister and on asking, the accused/appellant told that she
died by stomach pain. Then removing the saree, by which her dead
body was covered, he saw rope mark near her neck and also seen
injuries in the nature of black spots on her back, neck and stomach,
which indicated assault and when asked about these injuries, the
accused/appellant had stated that she had committed suicide by
hanging from the window, and when asked again, he stated that he
was not present at that time. Thereafter, his father lodged the FIR
with the police station.
Page 26 of 50
18.2. The accused/appellant had cross-examined this witness at
length, but nothing tangible could be elicited to discredit the same.
His evidence that the accused/appellant subjected his sister to
torture demanding dowry remained un-impeached in cross-
examination. He denied that he had not made any statement before
the police. But, the accused/appellant got the same confirmed
through the I.O. (P.W.7) that such statement was not made before
police. This, at best can be termed as omission, and also it cannot
be treated as contradiction being not proved in accordance with law
and the same, to considered opinion of this Court, could not spell
inveracity into his version.
19. P.W.6 Sri Anjan Gohain Baruah is the neighbour of the
accused/appellant. His evidence reveals that the accused/appellant
lived as his next door neighbour and on 21.09.2015, while he went
out of his home, he saw the deceased in her residence with good
health and in the afternoon hours when he returned home, he
found huge gathering in the house of the accused/appellant and
there he saw that Nirmala was lying dead on her bed and the elder
brother of the accused/appellant informed him that Nirmala died of
her ailments.
19.1. Notably, this witness/P.W.6 was not cross-examined by the
accused/appellant.
20. P.W.7, WSI Sunmoni Begum is the I.O. who had conducted
investigation and submitted Charge-sheet, Ext.P-7, against the
accused/appellant, to stand trial under Section 304B, IPC. Her
evidence reveals that during investigation she had visited the place
Page 27 of 50
of occurrence, examined the witnesses and drawn up a Sketch Map,
Ext.P-4 and she got the inquest done on the dead body of the
deceased by Executive Magistrate and Ext.P-3 is the said report.
She had also seized one saree from the house of the
accused/appellant, vides Seizure List (Ext.P-5). Thereafter, she had
collected the Post-Mortem Examination Report and also sent the
viscera of the deceased to FSL and collected the report, Ext.P-6.
21. Thus, from the evidence discussed above, no definite
conclusion could be arrived at as to who caused the spleenic injury
to the deceased. There is no eyewitness as to who caused the said
injury to the deceased.
21.1. But, it is evident from the evidence on the record that the
accused/appellant and the deceased Nirmala were residing in the
same household prior to her death as husband and wife. On the
fateful day, in the morning hours P.W.6, who was the neighbor of
the accused/appellant had seen Nirmala in good health. However,
while he returned home in the afternoon he found her dead. Thus,
as submitted by Mr. Lahkar, the learned Addl. P.P. the accused
appellant owes an explanation under section 106 of the Evidence
Act as to what had happened in view of ratio laid down by Hon‟ble
Supreme Court in the case of Trimukh Maruti Kirkan (supra).
In the said case it has been held as under:-
‚22. Where an accused is alleged to have committed
the murder of his wife and the prosecution
succeeds in leading evidence to show that shortly
before the commission of crime they were seen
together or the offence takes place in thePage 28 of 50
dwelling home where the husband also normally
resided, it has been consistently held that if the
accused does not offer any explanation how the
wife received injuries or offers an explanation
which is found to be false, it is a strong
circumstance which indicates that he is
responsible for commission of the crime.
In Nika Ram v. State of H.P. [(1972) 2 SCC
80, it was observed that the fact that the accused
alone was with his wife in the house when she was
murdered there with ‚khukhri‛ and the fact that
the relations of the accused with her were
strained would, in the absence of any cogent
explanation by him, point to his guilt.
In Ganeshlal v. State of Maharashtra [(1992)
3 SCC 106 the appellant was prosecuted for the
murder of his wife which took place inside his
house. It was observed that when the death had
occurred in his custody, the appellant is under an
obligation to give a plausible explanation for the
cause of her death in his statement under Section
313 CrPC. The mere denial of the prosecution case
coupled with absence of any explanation was held
to be inconsistent with the innocence of the
accused, but consistent with the hypothesis that
the appellant is a prime accused in the commission
of murder of his wife.
In State of U.P. v. Dr. Ravindra Prakash
Mittal [(1992) 3 SCC 300] the medical evidence
disclosed that the wife died of strangulation
during late night hours or early morning and her
body was set on fire after sprinkling kerosene.
The defence of the husband was that the wife had
committed suicide by burning herself and that he
was not at home at that time. The letters written
by the wife to her relatives showed that the
Page 29 of 50
husband ill-treated her and their relations were
strained and further the evidence showed that both
of them were in one room in the night. It was held
that the chain of circumstances was complete and
it was the husband who committed the murder of his
wife by strangulation and accordingly this Court
reversed the judgment of the High Court acquitting
the accused and convicted him under Section 302
IPC.
In State of T.N. v. Rajendran [(1999) 8 SCC
679 the wife was found dead in a hut which had
caught fire. The evidence showed that the accused
and his wife were seen together in the hut at
about 9.00 p.m. and the accused came out in the
morning through the roof when the hut had caught
fire. His explanation was that it was a case of
accidental fire which resulted in the death of his
wife and a daughter. The medical evidence showed
that the wife died due to asphyxia as a result of
strangulation and not on account of burn injuries.
It was held that there cannot be any hesitation to
come to the conclusion that it was the accused
(husband) who was the perpetrator of the crime.
21.2. Same proposition of law is laid down in the case of Wazir
Khan vs. State of Uttarakhand reported in (2023)8 SCC
597, wherein it has been held by Hon‟ble Supreme Court that –
‚24. Where an accused is alleged to have committed
the murder of his wife and the prosecution
succeeds in leading evidence to show, like in the
present case, that shortly before the commission
of the crime they were seen together or the
offence took place in the dwelling home where the
husband also normally resided, it has been
Page 30 of 50
consistently held that if the accused does not
dispute his presence at home at the relevant time
and does not offer any explanation how the wife
received injuries or offers an explanation which
is found to be false, it is a strong circumstance
which indicates that he is responsible for
commission of the crime.‛
22. Indisputably, the only explanation put forwarded by the
accused/appellant is that the deceased died of stomach ailment and
that he had documents of her treatments. But, admittedly, no
evidence was lead by him to establish such a plea and the
documents which were allegedly with him also not been produced
and exhibited before the court. Thus, the plea remained un-
substantiated. The consequence of such failure is that it has to be
held that he is responsible for the death of his wife in view of the
ratio laid down in the case of Trimukh Maruti Kirkan (supra)
and in Wazir Khan(supra).
22.1. But, unfortunately, the learned trial court had failed to go
through much insight into this aspect. In paragraph No. 20 of the
impugned judgment and order the learned trial court had clearly
recorded a finding that the prosecution evidence does not establish
a case of murder against the accused and as such it is a fit case
where the accused should be acquitted of the charge of murder
under section 302 IPC.
23. This finding, to the considered opinion of this court is not
based upon proper appreciation of the evidence so tendered by the
learned trial court as well as the proposition of law laid down by the
Page 31 of 50
Hon‟ble Supreme Court in the case of Trimukh maruti Kirkan
(supra) and in Wazir Khan (supra). Be that as it may, since
the state has not preferred an appeal against such acquittal, this
court is not inclined to delve a discussion into the same.
24. But, inspite of the acquittal of the accused of the charge under
section 302 IPC, the fact remains that the death of the deceased
Nirmala was not suicidal or accidental but homicidal in nature. And
it was a death not under normal circumstances, but under unnatural
circumstances. She met unnatural and untimely death.
25. Now, endeavor will be made to find out whether the
prosecution side has been able to establish the charge under
Section 304-B IPC against the accused/appellant.
26. It is to be noted here that Section 304-B is a special provision
which was inserted by an amendment of 1986 to deal with a large
number of dowry deaths taking place in the country. The section
read as under:-
‚304-B. Dowry death.–
(1) Where the death of a woman is caused by
any burns or bodily injury or occurs
otherwise than under normal circumstances
within seven years of her marriage and it is
shown that soon before her death she was
subjected to cruelty or harassment by her
husband or any relative of her husband for,
or in connection with, any demand for dowry,
such death shall be called ‘dowry death’, and
such husband or relative shall be deemed to
have caused her death.
Page 32 of 50
Explanation.– For the purposes of this
sub-section, ‘dowry’ shall have the same
meaning as in Section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which
may extend to imprisonment for life.‛ (This
section was inserted in the Penal Code by Act
43 of 1986 on 19-11-1986)
27. In this context, it is pertinent to discuss the provision of
Section 113-B of the Evidence Act also, that has been inserted with
regard to presumption of dowry death. The section reads as under:
‚113-B. Presumption as to dowry death.–When
the question is whether a person has
committed the dowry death of a woman and it
is shown that soon before her death such
woman had been subjected by such person to
cruelty or harassment for, or in connection
with, any demand for dowry, the Court shall
presume that such person had caused the dowry
death.
Explanation.–For the purpose of this
section, ‘dowry death’ shall have the same
meaning as in Section 304-B of the Penal
Code, 1860.‛
28. While dealing with the offence under Section 304-B IPC, in the
case of Ram Badan Sharma v. State of Bihar, reported in
(2006) 10 SCC 115, Hon‟ble Supreme Court has held as under:-
Page 33 of 50
‚35. There are three main ingredients of this
offence:
(a) that, there is a demand of dowry and
harassment by the accused on that
count;
(b) that, the deceased died; and
(c) that, the death is under unnatural
circumstances within seven years of
the marriage.
When these factors were proved by
reliable and cogent evidence, then the
presumption of dowry death under Section 113-
B of the Evidence Act clearly arose. The
aforementioned ingredients necessarily
attract Section 304-B IPC. ………………..‛
29. Again in the case of Mustafa Shahadal Shaikh v. State of
Maharashtra reported in (2012) 11 SCC 397, Hon‟ble
Supreme Court has dealt with the ingredients of the section as
under:
‚9. In order to convict an accused for the
offence punishable under Section 304-B IPC, the
following essentials must be satisfied:
(i) the death of a woman must have been caused
by burns or bodily injury or otherwise than
under normal circumstances;
(ii) such death must have occurred within seven
years of her marriage;
(iii) soon before her death, the woman must have
been subjected to cruelty or harassment by
her husband or any relatives of her husband;
Page 34 of 50
(iv) such cruelty or harassment must be for, or
in connection with, demand for dowry.
When the above ingredients are established by
reliable and acceptable evidence, such death
shall be called dowry death and such husband or
his relatives shall be deemed to have caused her
death. If the abovementioned ingredients are
attracted in view of the special provision, the
court shall presume and it shall record such fact
as proved unless and until it is disproved by the
accused. However, it is open to the accused to
adduce such evidence for disproving such
compulsory presumption as the burden is
unmistakably on him to do so and he can discharge
such burden by getting an answer through cross-
examination of the prosecution witnesses or by
adducing evidence on the defence side.
30. In the case of in Major Singh v. State of Punjab,
(2015) 5 SCC 201, a three Judge Bench of Hon‟ble Supreme
Court held as follows:
‚10. To sustain the conviction under Section 304-
B IPC, the following essential ingredients are to
be established:
(i) the death of a woman should be caused by
burns or bodily injury or otherwise than
under a ‘normal circumstance’;
(ii) such a death should have occurred within
seven years of her marriage;
Page 35 of 50
(iii) she must have been subjected to cruelty or
harassment by her husband or any relative of
her husband;
(iv) such cruelty or harassment should be for or
in connection with demand of dowry; and
(v) such cruelty or harassment is shown to have
been meted out to the woman soon before her
death.‛
31. Now, adverting to the case in hand, I find that there is no
dispute that the deceased Nirmala Thakur got married with the
accused/appellant on 14.07.2010 and thereafter, she was living
with the accused/appellant for five years, till her death on 21st
September 2015, in Jagiroad. Notably, her death is also not
disputed by the accused/appellant. It is also not in dispute that
Nirmala Thakur died within seven years of her marriage with the
accused/appellant. As discussed and held in the forgoing paragraph
deceased Nirmala Thakur suffered an unnatural death. She had not
died out of any disease as contended by the accused/appellant. The
evidence of the Doctor/P.W.4 and the report submitted by him i.e.
Ext. 2, clearly shows that the cause of death is due to shock and
haemorrhage, as a result of haemorrhage inside the abdominal
cavity caused due to spleenic injury. P.W.4 also found a linear
mark in front of the neck, not completely surrounded,
with clotted blood on mouth and nostrils. He found huge
haematoma inside the abdominal cavity near the spleen.
The spleen was torn and lacerated.
31.1. As already discussed in para No. 12 of this judgment, the
accused/appellant has taken the plea that the deceased was
Page 36 of 50
suffering from stomach ailments. But, he had not adduced any
evidence to support the same, though it appears from his
statement, recorded under Section 313 Cr.P.C. that she died of
disease and that he had relevant documents with him, yet he made
no effort to produce and prove the same in the court by appearing
in witness box. Besides, he had not cross-examined P.W.4 in
respect of his opinion that death of the deceased was due to shock
and haemorrhage as a result of haemorrhage inside the abdominal
cavity due to spleenic injury. Not a single suggestion even put to
P.W.4 that the spleenic injury was on account of disease not of
homicidal in nature.
31.2. Though it was fiercely argued that she suffered demise on
account of disease of her spleen, which ruptured due to infection,
yet the same is not supported by any tangible evidence. Over and
above, the accused/appellant had given different account of the
incident. From the evidence of P.W.1, 2, 3 and 5 it appears that
sometimes he stated that he was not present in the house at the
time of death of deceased and some time he stated that the
deceased committed suicide by hanging from window. On the other
hand, the father of the accused/appellant had reported P.W.1 that
Nirmala died of abdominal pain. Further, P.W.1, 2, 3 and 5 had
found round strangulation mark over the neck of the deceased and
also found black injury spot over her abdomen and on her backside.
Of these three injuries, injury No.1 is corroborated by medical
evidence as discussed above. The factum of unnatural death is
further fortified by the evidence of P.W.6, who is next door
neighbour of the accused/appellant. His evidence that in the
Page 37 of 50
morning, while he went out, he had seen the deceased in her
residence in good health and on returning home at noon he found
her lying dead on a bed and the brother of the accused/appellant
told him that she died of her ailment. So, it can be logically
concluded that the prosecution side has successfully established two
of the ingredients of Section 304-B IPC.
31.3. It also appears that from the evidence of P.W.1, 2, 3 and 5
that one and half years after the marriage, the accused/appellant
started demanding money from the deceased and also from them
and subjected her to torture for the same and on one occasion, a
sum of Rs. 50,000/- was paid to him so that he would not torture to
the deceased. It also appears from their evidence that after the
marriage, the deceased was taken to Bihar, where she was
subjected to physical and mental torture and on payment of Rs.
50,000/- to the accused/appellant, he brought the deceased to
Jagiroad, where he had a business of motor garage and there also,
he started subjecting her to torture and the evidence of P.W.1
reveals that the deceased used to keep him informing about the
cruelty meted out to her by the accused/appellant. It also appears
that after one and half months of taking the deceased to Jagiroad
from Bihar, the incident took place. The factum of torture at
Jagiroad is not disputed by the accused/appellant which becomes
faith accompli from the evidence of P.W.1 and 5. While P.W.1
was informed by the deceased, P.W.5 himself witnessed the same
while he had visited the house of the accused/appellant on the
occasion of Rakshyabandhan and he had reported the same to his
Page 38 of 50
parents. He found the accused/appellant came home in a drunken
condition and he was speaking to his sister very rudely.
31.4. It is however a fact that no case was lodged at Bihar for
demand of dowry and subjecting the deceased to torture. But, the
factum of demand and subjecting her to torture both physical and
mental and also payment of a sum of Rs. 50,000/ to him remained
un-impeached in cross-examination of the prosecution witnesses.
The evidence of P.W.2 also indicates that payment of Rs.50,000/ is
part of the demand of Rs.2,00,000/ by the accused/appellant.
31.5. There is another requirement of the section that it has to be
shown that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband for, or in
connection with, any demand for dowry so as to bring it within the
purview of Section 304-B IPC. From the evidence on the record it
appears that on payment of a sum of Rs.50,000/, to the
accused/appellant, the deceased was brought back and at first
taken to the house of the informant at Lakhimpur from Bihar and
that the accused/appellant had taken her to Jagiroad on
04.08.2015, where also the accused/appellant has subjected her to
torture and the same was reported to P.W.1, the informant, by the
deceased. Notably, she died on 21.09.2015. Now, what left to be
seen is that can it be said that the demand and torture was made
soon before death.
31.6. Hon‟ble Supreme Court in the case of Satvir
Singh v. State of Punjab [(2001) 8 SCC 633] had examined
Page 39 of 50
the meaning of the words “soon before her death” and observed as
under:-
‚22. It is not enough that harassment or
cruelty was caused to the woman with a demand
for dowry at some time, if Section 304-B is to
be invoked. But it should have happened ‚soon
before her death‛. The said phrase, no doubt,
is an elastic expression and can refer to a
period either immediately before her death or
within a few days or even a few weeks before
it. But the proximity to her death is the pivot
indicated by that expression. The legislative
object in providing such a radius of time by
employing the words ‚soon before her death‛ is
to emphasise the idea that her death should, in
all probabilities, have been the aftermath of
such cruelty or harassment. In other words,
there should be a perceptible nexus between her
death and the dowry-related harassment or
cruelty inflicted on her. If the interval
elapsed between the infliction of such
harassment or cruelty and her death is wide the
court would be in a position to gauge that in
all probabilities the harassment or cruelty
would not have been the immediate cause of her
death. It is hence for the court to decide, on
the facts and circumstances of each case,
whether the said interval in that particular
case was sufficient to snuff its cord from the
concept ‚soon before her death‛.
31.7. In the case of Maya Devi v. State of Haryana,
reported in (2015) 17 SCC 405, while dealing with the phrase
“soon before death” Hon‟ble Supreme Court has held as under:-
23. To attract the provisions of Section 304-B,
one of the main ingredients of the offence which
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is required to be established is that ‚soon before
her death‛ she was subjected to cruelty or
harassment ‚for, or in connection with the demand
for dowry‛. The expression ‚soon before her death‛
used in Section 304-B IPC and Section 113-B of the
Evidence Act is present with the idea of proximity
test. In fact, the learned Senior Counsel
appearing for the appellants submitted that there
is no proximity for the alleged demand of dowry
and harassment. With regard to the said claim, we
shall advert to while considering the evidence led
in by the prosecution. Though the language used is
‚soon before her death‛, no definite period has
been enacted and the expression ‚soon before her
death‛ has not been defined in both the
enactments. Accordingly, the determination of the
period which can come within the term ‚soon before
her death‛ is to be determined by the courts,
depending upon the facts and circumstances of each
case. However, the said expression would normally
imply that the interval should not be much between
the cruelty or harassment concerned and the death
in question. In other words, there must be
existence of a proximate and live link between the
effect of cruelty based on dowry demand and the
death concerned. If the alleged incident of
cruelty is remote in time and has become stale
enough not to disturb the mental equilibrium of
the woman concerned, it would be of no
consequence.
31.8. In the case of Bansi Lal v. State of Haryana,
reported in (2011) 11 SCC 359, Hon‟ble Supreme Court has
held as under:-
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‚17. While considering the case under Section 304-
B, cruelty has to be proved during the close
proximity of the time of death and it should be
continuous and such continuous harassment,
physical or mental, by the accused should make
life of the deceased miserable which may force her
to commit suicide.‛31.9. In paras 19 and 20 of the said judgment, Hon‟ble Supreme
Court has further held as follows: –
‚19. It may be mentioned herein that the legislature
in its wisdom has used the word ‘shall’ thus, making
a mandatory application on the part of the court to
presume that death had been committed by the person
who had subjected her to cruelty or harassment in
connection with any demand of dowry. It is unlike
the provisions of Section 113-A of the Evidence Act
where a discretion has been conferred upon the court
wherein it had been provided that court may presume
abetment of suicide by a married woman. Therefore,
in view of the above, onus lies on the accused to
rebut the presumption and in case of Section 113-B
relatable to Section 304-B IPC, the onus to prove
shifts exclusively and heavily on the accused. The
only requirements are that death of a woman has been
caused by means other than any natural
circumstances; that death has been caused or
occurred within 7 years of her marriage; and such
woman had been subjected to cruelty or harassment by
her husband or any relative of her husband in
connection with any demand of dowry.
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20. Therefore, in case the essential ingredients of
such death have been established by the prosecution,
it is the duty of the court to raise a presumption
that the accused has caused the dowry death. It may
also be pertinent to mention herein that the
expression ‘soon before her death’ has not been
defined in either of the statutes. Therefore, in
each case, the court has to analyse the facts and
circumstances leading to the death of the victim and
decide if there is any proximate connection between
the demand of dowry and act of cruelty or harassment
and the death.‛31.10. Thereafter, in the case of Mustafa Shahadal
Shaikh (supra) Hon‟ble Supreme Court has held as under:-
‚11. To attract the provisions of Section 304-B, one
of the main ingredients of the offence which is
required to be established is that ‘soon before her
death’ she was subjected to cruelty or harassment
‘for, or in connection with the demand for dowry’.
The expression ‘soon before her death’ used in
Section 304-B IPC and Section 113-B of the Evidence
Act is present with the idea of proximity test. In
fact, the learned counsel appearing for the
appellant submitted that there is no proximity for
the alleged demand of dowry and harassment. With
regard to the said claim, we shall advert to the
same while considering the evidence led in by the
prosecution. Though the language used is ‘soon
before her death’, no definite period has been
enacted and the expression ‘soon before her death’
has not been defined in both the enactments.
Accordingly, the determination of the period which
can come within the term ‘soon before her death’ is
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to be determined by the courts, depending upon the
facts and circumstances of each case. However, the
said expression would normally imply that the
interval should not be much between the cruelty or
harassment concerned and the death in question. In
other words, there must be existence of a proximate
and live link between the effect of cruelty based on
dowry demand and the death concerned. If the alleged
incident of cruelty is remote in time and has become
stale enough not to disturb the mental equilibrium
of the woman concerned, it would be of no
consequence. These principles have been reiterated
in Kaliyaperumal v. State of T.N., reported in
(2004) 9 SCC 157 and in Yashoda v. State of M.P.,
(2004) 3 SCC 98.‛31.11. In the case of Satbir Singh vs. The State Of Haryana
reported in 2021 AIR 2021 SUPREME COURT 2627, a three
Judge Bench of Hon‟ble Supreme Court, discussing the legislative
history, has held as under:-
14. Considering the significance of such a
legislation, a strict interpretation would
defeat the very object for which it was
enacted. Therefore, it is safe to deduce that
when the legislature used the words, ‚soon
before‛ they did not mean ‚immediately before‛.
Rather, they left its determination in the
hands of the courts. The factum of cruelty or
harassment differs from case to case. Even the
spectrum of cruelty is quite varied, as it can
range from physical, verbal or even emotional.
This list is certainly not exhaustive. No
straitjacket formulae can therefore be laid
down by this Court to define what exacts the
phrase ‚soon before‛ entails. The aforesaid
position was emphasized by this Court, in the
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case of Kans Raj v. State of Punjab, (2000) 5
SCC 207, wherein the three Judge Bench held
that:
‚15. … ‚Soon before‛ is a relative term which
is required to be considered under
specific circumstances of each case and no
straitjacket formula can be laid down
by fixing any time limit. … In relation to
dowry deaths, the circumstances showing
the existence of cruelty or harassment to
the deceased are not restricted to a
particular instance but normally refer to
a course of conduct. Such conduct may be
spread over a period of time. …. Proximate
and live link between the effect of
cruelty based on dowry demand and the
consequential death is required to be
proved by the prosecution. The demand of
dowry, cruelty or harassment based upon
such demand and the date of death should
not be too remote in time which, under the
circumstances, be treated as having become
stale enough.‛ (emphasis supplied) A
similar view was taken by this Court in
Rajinder Singh v.State of Punjab,
(2015) 6 SCC 477.
15. Therefore, Courts should use their
discretion to determine if the period between
the cruelty or harassment and the death of the
victim would come within the term ‚soon
before‛. What is pivotal to the above
determination, is the establishment of a
‚proximate and live link‛ between the cruelty
and the consequential death of the victim.
31.12. In the case of Devender Singh vs. The State Of
Uttarakhand, decided on 21 April, 2022, Criminal Appeal No.
383 of 2018, another three Judge Bench of Hon‟ble Supreme
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Court has held that ‚As to the phrase ‘soon before her
death’, it is well-settled that the same ought to be
interpreted to mean proximate and to be linked with but
not to be understood to mean immediately prior to the
death.‛
31.13. The proposition of law, that can be crystalised from the
aforesaid decision in respect of soon before death is that the
expression „soon before her death‟ has not been defined in both the
enactments. Therefore, the term „soon before her death‟ is to be
determined by the courts, on the basis of the facts and
circumstances of the case. Normally, the expression implies that the
interval should not be much between the cruelty or harassment
concerned and the death in question. It should not however be
understood to mean immediately prior to the death. There must be
existence of a proximate and live link between the effect of cruelty
based on dowry demand and the death concerned. If the alleged
incident of cruelty is remote in time and has become stale enough
not to disturb the mental equilibrium of the woman concerned, it
would be of no consequence.
31.14. In the case in hand, on consideration of the law, as
crystallized herein above, and from the evidence on record, this
court is of the considered opinion that the prosecution has
successfully established all the ingredients of Section 304 -B IPC,
that :-
(i) the death of deceased Nirmala took place on
21.09.2015 was caused by bodily injury andPage 46 of 50
also it was otherwise than under a ‘normal
circumstance’;
(ii) her death took place within seven years of
her marriage;(Marriage took place on
14.07.2010 and she died on 21.09.2015);
(iii) she was subjected to cruelty by her husband
and his relative;
(iv) such cruelty was in connection with demand of
dowry;
(v) such cruelty was meted to her soon before her
death.
31.15. Since all the ingredients of the charge under section 304-B
IPC stands established herein this case, the statutory presumption,
under Section 113-B of the Evidence Act, has to be pressed into
service. And it appears that the learned trial court had rightly
pressed the same into service here in this case.
32. Once the presumption under Section 113-B of the Evidence
Act is pressed into service, now responsibility to rebut the same is
shifted to the accused. But, it appears from the record that the
accused/appellant had failed to rebut the same. I find the evidence
of P.W.1, 2, 3 and 5 and also P.W.6 are worth believing and their
evidence goes a long way to establish the charge beyond doubt. It
is a fact that P.W.1, 2, 3 and 5 are relatives of the deceased. But on
this court alone their evidence could not be brushed aside. Usually
in this kind of cases the relatives and family members are the most
probable and natural witness and this has rightly be highlighted by
Lahkar, the learned Addl. P.P. at the time of hearing.
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33. Though it is contended by the learned counsel for the
accused/appellant that that whatever statement made by the
accused under section 313 Cr.P.C. has not been taken into
consideration by the learned trial court and that being so in view of
the decision of Hon‟ble Supreme Court in Reena Hazarika
(supra), the conviction and sentence is vitiated, yet, the said
submission left this court unimpressed.
33.1. As already discussed and held the accused in his statement
under Section 313 Cr.P.C. has taken a stand that his wife was ailing
for abdominal pain and she was also treated by her parents and
that he has medical documents with him. But, as discussed earlier
he had not produced and exhibited said documents before the court
even though the burden to establish the same lies upon him. As he
had failed to adduce evidence and prove such plea before the court
he cannot take a plea that non consideration of the plea causes
prejudice to him. It is a fact that such plea has to be established not
by the standard of proof beyond all reasonable doubt, but by
preponderance of probability. As no evidence was lead by him to
establish the said plea, this court is of the view that the ratio laid
down in the case of Reena Hazarika (supra) would not advance
his case anymore. There is vast difference between mere taking a
plea and establishing the same before the court even by
preponderance of probability. Therefore, this court is inclined to
record concurrence with the finding so recorded by the learned trial
court.
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34. Though the learned counsel for the accused/appellant,
referring to the evidence on the record and also some decisions of
Hon‟ble Supreme Court in Kailash (supra) and in Hiralal and
Ors.(supra), submits that in the case in hand no demand was
made „soon before death‟ of the deceased and as such the basic
requirement of Section 304-B IPC stands established, yet, in view of
the given facts and circumstances on the record and also in view of
the decisions discussed herein above, this court is of the view that
the submission of learned counsel for the accused/appellant is
devoid of substance, and accordingly, the same stands overruled. I
have considered the submission of Mr. Gogoi, learned counsel for
the accused/appellant in respect of circumstantial evidence and
defects in investigation. But, the same seems to have no bearing
upon the veracity of the prosecution case.
35. On the other hand, I find the submission of learned Addl. P.P.
as well as the learned counsel for the respondent No.2 well merited.
The decision, so referred by Mr. Barman in Ram Badan Sharma
(supra) also strengthened his submission and therefore, the same is
accepted.
36. Thus, form the aforementioned discussion it can be logically
concluded that the prosecution side has succeeded in bringing home
the charge under section 304-B IPC against the accused/appellant
beyond all reasonable doubt.
37. That being so, I find no just and acceptable reason to interfere
with the impugned judgment and order of conviction.
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38. It appears that while convicting the accused/appellant under
section 304-B IPC the learned trial court had sentenced him to
suffer rigorous imprisonment for a period of 8 years. Drawing a
balance sheet of aggravating as well as mitigating factors this court
is of the considered view that the sentence so handed down is
commensurate with the nature and gravity of the charge. And as
such the same warrants no interference of this court.
39. The learned trial court had not passed any order in respect of
payment of compensation to the victim on the ground that
circumstances of rehabilitation are found lacking in the case. But it
appears from the evidence on the record that the deceased left
behind one minor child who was three years old at the relevant
point of time. The accused is his father and he has been serving out
the sentence in jail. That being so, this court is unable to agree with
the learned trial court that there is no requirement of payment of
compensation. Accordingly, it is provided that the concerned District
Legal Services Authority shall examine the issue and take decision in
this regard within one month of receipt of a copy of this judgment.
Registry shall forward a copy of this judgment to the Secretary,
District Legal Services Authority, Morigaon.
40. In the result, the appeal stands dismissed. The parties have to
bear their own cost. Send down the record of the learned trial court
with a copy of this judgment and order.
JUDGE
Comparing Assistant
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