ASSAM Present : Sri SK Poddar, AJS Sessions Judge ...

Sessions Case No. 77/2016 of 18

IN THE COURT OF THE SESSIONS JUDGE :: :: MORIGAON :: ASSAM

Present : Sri S. K. Poddar, AJS Sessions Judge Morigaon.

Sessions Case No. 77/2016

U/S 304-B/306/302 of IPC [G. R. Case No. 758/2016]

State of Assam -Vs-

Sri Surendra Deka

S/o Late Puhiram Deka

R/o Village- Damal Betani

P.S. – Dharamtul,

Dist. – Morigaon, Assam ……… Accused

APPEARANCE:

For the prosecution : Sri A. Kalam, P.P. For the accused : Sri P. R. Bora, Ld. Advocate. Case committed by : JMFC, Morigaon. Date of Commitment : 18.07.2016 Date of framing Charge : 16.09.2016, 24.03.2017 Dates of Evidence : 24.01.2018, 16.03.2018, 15.05.2018, 18.07.2018, 27.03.2019, 03.06.2019, 20.01.2020 Date of S/D : 05.03.2020 Date of Argument : 15.12.2020 Date of Judgment : 23.12.2020

J U D G M E N T

1. Prosecution case in brief is that on 06.04.2016, Sri Bipin Deka

lodged an FIR with the O/C, Dharamtul Police Station alleging inter-alia that

about 6/7 years back, his elder sister Jayanti Deka was married to Sri Surendra

Deka of the same village. It is alleged that, during her conjugal life with said

Surendra Deka, she was subjected to physical and mental torture by her


husband. On 05.04.2016, at about 9:30 PM, on being called he went to the

house of Surendra Deka and saw that his elder sister Jayanti Deka was hanging

by the window of the house of Surendra Deka. He suspects that Surendra Deka

had killed Jayanti Deka and tried to give shape of suicide. It is also alleged that

before the incident, accused Surendra Deka used to torture his elder sister on

demand of dowry.

2. On receipt of the FIR, Dharamtul P.S. Case No. 43/2016 u/s

304(B) IPC was registered and investigated into. During investigation, the

Investigating Officer visited the place of occurrence, drew a sketch map of the

place of occurrence and recorded statements of the witnesses found at the

place of occurrence. Inquest was conducted on the dead body by an Executive

Magistrate. The Investigating Officer had also made some seizure. Accused Sri

Surendra Deka was arrested and produced before the court for judicial custody.

Upon completion of investigation, the Investigating Officer has submitted

Charge-Sheet against the accused Sri Surendra Deka to face trial U/S 306 of

IPC.

3. Upon submission of Charge-Sheet, learned JMFC Morigaon, by

complying with the provision of Section 209 Cr.P.C. has committed the case for

trial before the Court of Sessions with the accused on bail.

4. On receipt of the case record on commitment, vide order dated

16.09.2016 the then presiding officer had initially framed charges U/S 304(B)/

302/306 IPC against the above named accused person. However, vide order

dated 24.03.2017, the then Presiding Officer has reframed the alternative

charges against the accused for offences u/s 304(B) IPC, 302 IPC and 306 IPC

to which he again pleaded not guilty. During trial, prosecution has examined 8

witnesses including Medical Officer and the Investigating Officer.

5. Upon completion of the prosecution evidence, accused was

examined U/S 313 Cr.P.C. Upon hearing both the side u/s 232 Cr.P.C, accused

was called upon to enter into defence to which he declined. Defence case is of

total denial and false implication.


6. I have heard argument of learned P.P. Mr. A. Kalam and learned

defence counsel Mr. P. R. Bora and gone through the case record. I have

considered the submission of both the sides.

7. POINT(S) FOR DETERMINATION :

(i) What was the nature of death of Jayanti Deka?

(ii) Whether Sri Surendra Deka committed murder of his wife Jayanti

Deka with his intention and knowledge?

(iii) Alternatively whether soon before her death Jayanti Deka was

subjected to cruelty in demand of dowry by her husband Sri

Surendra Deka and she died ‘dowry death’?

(iv) Alternatively whether Sri Surendra Deka has abated or instigated

in committing suicide by the deceased Jayanti Deka?

DISCUSSION, DECISION AND REASONS THEREOF:

8. PW-1, Sri Bipin Deka, the informant and brother of the accused in

his evidence deposed that about 6 (six) years back from the date of occurrence,

his elder sister Jayanti Deka got married with the accused. The accused initially

got married his younger sister Dineswari Deka. After 10 years of conjugal life

with Dineswari and having 3 (three) male child of that marriage; said Dineswari

Deka died of cancer. After death of Dineswari Deka, the accused got married to

his elder sister Jayanti Deka (since deceased) and lived the conjugal life for

about 6 (six) years. Since marriage of Jayanti Deka, she was subjected to

physical and mental torture by the accused for want of dowry. Accused used to

beat his wife Jayanti Deka for dowry. She usually tells them about the torture

inflicted upon her by the accused. Many times, she left her matrimonial house.

But they always tried to console her for her grievance. On 05.04.2016 at

around 9.30 p.m. on being called, he and his elder brother came to the house

of accused. After sometime, one Jonaram Deka arrived there and in the light of

torch, showed them the dead body of Jayanti Deka which was hung on the

window of the house. He saw the neck of the deceased was tied by a rope and

her hand was lying on the window. They informed their family members about

the incident. After sometimes their family members and many other people


gathered at the place of occurrence. The legs of the deceased were touching

the floor of the house. The village headman also arrived at the place of

occurrence. On that very night, they informed police about the incident. On the

next day morning, police and executive magistrate arrived there and brought

the dead body down. On the next day, he lodged the instant ejahar. Ext. 1 is

his ejahar. He strongly believes that the accused killed his elder sister (Jayanti

Deka) and thereafter, tried to make the case as suicidal case. Police seized one

pair of sleeper and a rope from the place of occurrence. Ext. 2 is the seizure

list, where he put his signature as Ext. 2(1). The Executive Magistrate prepared

the memo of inquest, where he put his signature. Ext. 3 is the inquest report

and Ext. 3(1) is his signature. In his cross-examination, he stated that the room

where the dead body was found was under construction. There was no family

dispute between the accused and his first wife Dineswari Deka. After death of

Dineswari Deka, the deceased eloped with the accused lived the conjugal life.

The accused and the deceased had no children. They live in a village. In village

an issueless women was called "Baji". He denied the defence suggestion that

on being hurt on being called her "Baji", she has committed suicide. He

admitted that the sleeper was found near the place where his elder sister was

hung and that sleeper belongs to the deceased. He denied the defence

suggestion that the accused did not kill the deceased and thereafter put the

dead body of the deceased in the window to show that she was hung by

herself.

9. PW-2, Sri Kamal Deka, the brother of deceased and PW 1, in his

evidence deposed in unison with PW 1 except the period of marriage of the

accused and deceased. PW 2 deposed that accused led conjugal life with

Jayanti Deka for 2 - 3 years. He also deposed that after marriage with Jayanti

Deka, the accused used to torture her physically and mentally for demand of

dowry. As she could not meet up the demand of accused, the accused used to

torture her. Sometimes his sister Jayanti Deka left her matrimonial house and

took shelter in his house. However, he consoled her and put her in her

matrimonial house. PW 2 further deposed that, he strongly believes that the


accused killed Jayanti Deka and thereafter, tried to make the case as suicidal

case committed by the deceased. In his cross-examination, PW 2 also admitted

that after death of first wife of accused, Jayanti Deka eloped with the accused

and started to lead conjugal life. He also denied the defence suggestion that,

he stated before police that tongue of the deceased was coming out after her

death. He denied the defence suggestion that his sister committed suicide when

she could not birth to any child after leading conjugal life with the accused for

about 6 (six) years. He also denied the defence suggestion that on being hurt

on being called her "Baji", she has committed suicide. He denied the defence

suggestion that the accused did not kill the deceased and thereafter put the

dead body of the deceased in the window to show that she was hung by

herself.

10. PW-3, Ms. Pakhila Deka, sister-in-law of the deceased, in her

evidence deposed that the deceased Jayanti Deka married to the accused after

death of his wife. After 4-5 months of marriage between Jayanti Deka

(deceased) and accused, she was subjected to cruelty for dowry. She was also

tortured mentally and physically by her husband. One day, out of frustration

she left her matrimonial house and stood up at their house. She explained them

about her torturing. However, they made every effort to reconcile their issue

and ultimately they put up her at the house of her husband. On the date of

incident, on being called by the son of the accused, Bipin Deka (PW 1) and

Kamal Deka (PW 2) went to the house of accused Surendra Deka. On arrival

they saw that Jayanti Deka was hanging by the iron rod of window of the

house. On seeing that they became shocked. Her sleepers were lying in a

scattered position. Thereafter, they came back from the house of accused and

on the next day, Bipin Deka lodged the case. In her cross-examination, she

stated that the life between accused and his first wife was peaceful. Accused

led conjugal life with the deceased wife for 6 - 7 years or more. The dispute

between accused and his second wife lasted initially for 5 - 6 months.

Thereafter, there was no quarrel. The accused had no issue with his second

wife. In their society the married woman who remained issueless is termed as


‘Bazi’. She denied defence suggestion that, the deceased committed suicide as

she was termed as ‘Bazi’. She denied defence suggestion that, the deceased

was not subjected to cruelty for dowry by her husband (accused).

11. PW - 4, Ms. Aditi Deka, cousin of the informant and deceased, in

her deposed evidence in similar lines with PW 3. She also deposed that after

marriage of Jayanti Deka, she was subjected to cruelty by her husband

(accused) for want of dowry. Out of torture Jayanti Deka left her matrimonial

house. Once she came to their house and told them about her physical and

mental tortures made by her husband. She stayed in their house for 3 - 4 days.

Thereafter, due to their conciliation, she again went to the house of her

husband. PW 4 further deposed that on the date of incident, on being called

her brothers Kamal Deka and Bipin Deka went to the house of accused. After

half an hour both of them came back from the house of accused and told them

that they saw Jayanti Deka hanging on a window of the house of accused.

Then, all of them went to the house of accused and after arrival, they saw

Jayanti Deka was hanging by a rope on a window. Their neighbors also arrived

at the place of occurrence. Someone informed police about the incident. When

they asked the accused about the cause of death of the deceased, the accused

remained silent. He did not give them any answer. After sometimes police

arrived at the place of occurrence. The accused did not have good relation with

the deceased. The accused used to torture the deceased physically and

mentally after their marriage. In her cross-examination, she stated that house

of accused is situated around 400 to 500 meters away from their house. She

did not see the accused in torturing his wife. She came to know about tortures

from the deceased. The accused led conjugal life with the deceased for about 8

years. She denied the defence suggestion that, she did not state before police

that when she asked the accused about the cause of death, the accused

remained silent. She denied the defence suggestion that, she did not state

before police that the accused used to torture the deceased physically and

mentally. She denied the defence suggestion that, she deposed falsely before

the Court.


12. PW-5, Sh. Bidyut Deka, son of the accused through his first wife,

in his evidence deposed that on the date of occurrence, at night, he was

sleeping after having dinner. Just after sometime, his brother informed him that

their mother was hanging on a rod of a window in a room. They rushed to that

room and saw her hanging. By that time she already died. Then they informed

their relatives and neighbors. Police was also informed. Police seized one slipper

and a rope from the place of occurrence. Ext. 2 is the said seizure list. Ext. 2(2)

is his signature. The informant lodged the case against his father on suspicion.

In his cross-examination, he has stated that he had not seen the accused

assaulting the deceased Jayanti Deka. He had not heard about his demanding

dowry from her. The relationship between both of them was good. She did not

have any biological children of hers. Some of the neighbouring people used to

tease her by the name “Baji”. Over this, she used to have quarrels with such

persons. Upset over such teasing, she used to say that she will go away

somewhere or will jump to death. As far as he knows, she committed suicide

being upset over this issue.

13. PW-6, Sh. Padma Konwar in his evidence deposed that on the

date of occurrence, on knowing that the wife of the accused has committed

suicide, he came to the place of occurrence and saw that wife of the accused

was hanging on a rod of a window in a newly constructed house. He informed

police. After seeing the deceased and the way, she was hanging, he thought

that it was not a suicidal case. The rope by which deceased was hanging was

loosely fitted on her neck. He told police that, he had suspicion with regard to

suicide of the deceased. Thereafter, police took the deceased for post-mortem

examination. At the place of occurrence, the neighbors of the deceased told

him that there was a quarrel between the accused and the deceased on the

very night of the occurrence of the incident. He also heard that the accused

beaten his wife (deceased) by a piece of wood. Police recovered one slipper

and a rope from the place of occurrence in his presence. Ext. 2 is the seizure

list. Ext. 2(3) is his signature. He knows this much only. In his cross-

examination, he denied the defence suggestion that he did not state before the


police that he thought that it was not a suicidal case; that the rope with which

the deceased was hanging was loosely tied around her neck; that he had

suspicion with regard to such suicide of the deceased; that there was a quarrel

between the accused and the deceased on the very night of the occurrence;

that the accused had beaten his wife with a piece of wood.

14. PW-7, Dr. Bubul Saikia, the Medical Officer deposed in his

evidence that on 06.04.2016, he conducted post-mortem examination on the

dead body of Jayanti Deka, in connection with Dharamtul PS Case No. 43/2016.

Upon examination, he found the ligature mark oblique in nature present around

the neck; the knot was found on the right side of the ear. In his opinion, the

cause of death was respiratory failure as a result of ante-mortem hanging. Ext.

4 is the post-mortem report and Ext. 4(1) is his signature thereon. Defence

declined to cross-examine him.

15. PW-8, Abdul Quddus, the Investigating Officer in his evidence

deposed that on 06.04.2016, at about 8:20 PM, the then Officer-in-Charge had

received one written FIR from Sri Bipin Deka and registered Dharamtul PS Case

No. 43/2016 u/s 304(B) IPC. During investigation, he went to the place of

occurrence at the residence of Suren Deka of Damal Betani Gaon and drawn a

sketch map of the place of occurrence. Ext. 5 is the sketch map where Ext. 5(1)

is his signatures. At the place of occurrence, he had found the dead body of

Jayanti Deka, wife of accused hanging with the window pan. Executive

Magistrate was called. In his presence, dead body was brought down. Inquest

was conducted on the dead body of Jayanti Deka. Ext. 3 is the Inquest Report.

During investigation, he had seized one pair of chappal, ten feet length plastic

rope. Ext. 2 is the seizure list. The seized rope was used in hanging by the

deceased. Accused Surendra Deka was apprehended. On completion of

investigation and finding sufficient material against the accused for abetting the

deceased for committing suicide, he submitted charge-sheet against the

accused Surendra Deka for trial u/s 306 IPC. Ext. 7 is the charge sheet and 7(i)

is his signature. In his cross-examination, PW 8 stated that he had not recorded

statement of Jonaram Deka, Robbya Kt. Deka, Nabin Deka, Rupeswar Deka and


Aniruddha Deka, the boundary persons of the place of occurrence as shown by

him in Ext. 6. Witness Aditi Deka in her statement before him did not state that

when she asked the accused about the cause of death, the accused remained

silent; that accused used to mentally and physically torture the deceased.

Witness Padma Konwar in his statement before him did not state that the rope

with which the deceased was hanging was loosely tied around her neck; that

there was a quarrel between the accused and the deceased on the very night of

the incident; that accused assaulted his wife with a piece of wood.

16. Basing on the above evidence, let me decide the points

formulated for decision of this case.

17. Point No. 1: So far, the nature of death is concerned, it is in the

evidence of PW-1 that on being called by the son of the accused he along with

his elder brother went to the house of the accused and on coming of Jonaram

Deka, a teacher of the locality, they were shown the dead body of their sister

Jayanti Deka in the light of torch which was hung on the window of the house.

PW-1 also deposed that he had seen that the neck of the deceased tied by a

rope and her hand was lying on the window and legs were touching the floor of

the house. In his cross-examination, PW-1 denied that deceased had committed

suicide. PW-2 has repeated the evidence of PW-1 and deposed on similar lines

regarding seeing the legs of the deceased touching the floor of the house. In

his cross-examination, PW-2 denied the defence suggestion that deceased had

committed suicide. PW-3 in her evidence stated that she came to the house of

the deceased along with PW-1 and PW-2 and saw the dead body while hanging

by the iron rod of the window of the house. Sleepers of the deceased were

lying in scattered position. She is silent regarding touching of the legs in the

ground. PW-4, Smti. Aditi Deka in her evidence also deposed that she heard

about the fact of death of Jayanti Deka from PW-1 and PW-2. She further

deposed that she along with PW-1 and PW-2 went to the house of the accused

and saw the dead body of Jayanti Deka hanging by a rope on a window. She is

silent regarding touching of the legs of the deceased on the ground. PW-5, Sri

Bidyut Deka, son of the deceased in his evidence stated that on knowing about


hanging of his mother he went to the said room and saw her hanging and by

that time she had already died. PW-6 also deposed regarding coming to the

house of the accused and seeing the dead body while hanging on a rod of a

window of a newly constructed house. He further deposed that after seeing the

deceased and the way she was hanging, he thought that it was not a suicidal

case. He saw the rope by which deceased was hanging was loosely fitted on

her neck and before police he stated about assault by the accused on the

deceased. However, the I/O has confirmed, that in his statement, PW 6 has not

stated that rope was loosely tied around her neck and hence this part is an

exaggeration from his previous statement. PW-7, the Medical Officer who had

conducted autopsy in his evidence deposed that upon examination of the dead

body of Jayanti Deka he found an oblique ligature mark around the neck and

the knot was found on the right side of the ear. He stated that death was

caused due to respiratory failure as a result of ante-mortem hanging. PW-8, the

Investigating Officer stated that he visited the place of occurrence on the same

day and prepared the sketch map. He deposed that on visiting the place of

occurrence he found the dead body of Jayanti Deka hanging with the window

pan and in presence of Executive Magistrate the dead body was brought down

and inquest was conducted by the Executive Magistrate vide Ext. 3. He seized

the said rope and one pair of chappal vide Ext. 2, seizure list.

18. From the above materials on record so far finding the dead body

in hanging position with window pan is not in dispute. To create suspicion on

the hanging aspect, except PW-1 and PW-2, none of the witnesses have

deposed regarding touching of the legs of the deceased on the floor of the said

room. PW-3 to PW 6 and PW-8, the Investigating Officer who brought down the

dead body are totally silent regarding touching of the legs of the deceased on

the ground. Evidence of PW 6 the rope was loosely place on neck is found to be

exaggerated and hence not reliable. As such, evidence of PW-1 and PW-2, so

far touching of the legs on the ground is concerned cannot be relied upon.

Moreover, from the evidence of the Medical Officer (PW-7), it appears that he

had found one ligature mark placed obliquely around the neck. There is no


mention regarding breakage of cartilage etc. which normally happens in case of

forced strangulation. Thus, the opinion of the Medical Officer that it was a case

of ante-mortem hanging appears to be more acceptable than the suspicion of

PW-1, PW-2 and PW-6 that the deceased might be killed and then hanged her

body. Having found no materials towards symptoms of committing murder by

strangulation and then hanging, I am of the considered opinion that it is a case

of suicidal hanging.

19. Point No. II: In view of my above findings, without discussing

evidence in details, it can safely be said that no case of murder is made out

being punishable u/s 302 IPC, charges of which was alternatively framed.

20. Point No. III: Now, let me look at the evidence to see as to

whether the death of the deceased is within 7 years of marriage and same can

be termed as ‘dowry death’ or that the accused had instigated and abetted the

deceased in committing suicide.

21. During argument hearing, learned PP by referring to the

evidences of PW-1 to PW-4 has submitted that prosecution has been successful

in bringing sufficient materials against the accused Surendra Deka, the husband

of the deceased for committing cruelty on the deceased as defined u/s 498(A)

IPC, and as such able to make out a case punishable u/s 304(B) IPC. It is

alternatively argued that, in the event, Court finds evidence just before the

incident of death, then also the evidence is sufficient to show that due to the

demand of dowry during her conjugal life, the deceased was compelled to end

her life and the same may be treated as instigation/abetment towards

commission of suicide.

22. On the other hand, Mr. P. R. Bora, learned counsel appearing for

the accused person by referring to the various parts of evidence has stated that

the allegations of cruelty is of omnibus in nature without any specific time

period and there is virtually no evidence regarding any short of abetment or

instigation from the accused in committing suicide by the deceased. Learned

counsel for the accused has also submitted that PW-5, the 17 years old son of


the deceased born through first wife, (sister of the informant and other

witnesses) is totally silent regarding any short of demand of dowry or any short

of instigation or abetment by the accused in day to day conjugal life with the

deceased. Even his evidence was not declared as hostile and thus there are two

sets of evidence, one giving some evidence towards cruelty etc. and one set is

total negating in the same. Hence, the accused is entitled for benefit of doubt

and the case favouring the accused should be taken into consideration by the

Court. It is also submitted that, the defence has made out a probable case that

having no issue within 6 years of marriage with the accused, the village people

used to taunt the deceased as “Baji” (issueless woman) and for that she had

committed suicide. It is further submitted that the prosecution has failed to

bring home any materials against all the charges framed alternatively and

prayed for acquittal of the accused.

23. Now, coming to the marriage between the parties, from the

evidence of PWs it appeared that it is an admitted fact that the accused initially

married Dineswari Deka, the younger sister of the deceased and after having 10

years of peaceful conjugal life, said Dineswari Deka expired. Then, accused

married with the deceased Jayanti Deka and lived the conjugal life with the

accused for about six years. These facts are also admitted by the accused in his

examination u/s 313 Cr.P.C. Thus, the fact of marriage between the accused

and the deceased Jayanti Deka about 6 years back of the incident is proved.

24. So far, the allegation of cruelty is concerned, it is in the evidence

of PW-1 and PW-2 that their sister used to report them about tortures inflicted

upon her by the accused. Many times, the deceased left her matrimonial house

but they always tried to console her. However, they were totally silent

regarding the period of such cruelty, nature of tortures etc. etc. PW-3, the

sister-in-law of the deceased and wife of PW-2, in her evidence deposed that

after 4 - 5 months of marriage of the deceased with the accused, she was

subjected to cruelty for dowry and she was tortured mentally and physically by

her husband and out of frustration, the deceased, left the house of the accused

and they consoled the deceased and ultimately they sent her back to the


residence of the husband. In her cross-examination, PW-3 admitted that the

dispute between the accused and deceased Jayanti Deka lasted initially for 5-6

months. PW-4, cousin sister of the deceased though also stated about physical

and mental torture on the deceased by her husband and stay of the deceased

for 3 - 4 days in her residence and after conciliation return of the deceased to

the house of her husband but she is totally silent about the period of such

torture.

25. Thus, from the evidence of PW-3, it appears that the incident of

tortures started after 4-5 months of marriage of the deceased and such dispute

lasted for about 5-6 months. It shows that alleged incidents of cruelty ended

within first year of marriage. Except above evidence on record, there is no

other evidence of continued cruelty to the deceased till her death or just before

the death.

26. Amidst this much of evidence laid by the prosecution side through

PW 1 to PW 4, the step son of the deceased born through first wife and the

accused, who lived with the accused and the deceased however is totally silent

regarding any short of torture or cruelty by his father on his step-mother. In his

cross-examination, he has categorically admitted that he had never seen the

accused in torturing the deceased or even heard regarding demand of dowry

from her. He further stated that the relationship between the deceased and the

accused was good. Thus, this evidence laid by the prosecution totally

contradicts the evidence of PW-1 to PW-4 so far demand of dowry and tortures

are concerned. Apparently, prosecution has laid two sets of evidence

contradicting each other, one laid by PW-1 to PW-4 showing some stray

incident of cruelty at the beginning year of marriage, whereas, the other set PW

5 has totally negated the said allegations. Both the evidences are mutually

destructive and cannot be allowed to stand together.

27. Hon'ble Gauhati High Court in the case of Budhua Mura -Vs- State

of Assam [2002 (2) GLT 103], in such circumstance, has laid down the law as

follows:


(24) Coupled with the above, we have to also bear in mind that when

prosecution adduces two sets of witnesses, one contradicting the other,

and the Court is not a position to hold confidently as to which set of

witnesses has told the truth, then, both sets of witnesses have to be

discarded or, at least, the set of evidence, which goes in favour of the

accused shall be adopted by the Court. Reference may be made to

Harchand Sigh and another-Vs-State of Haryana (AIR 1974 SC 344 ).”

28. Considering the above materials on record, I am of the opinion

that prosecution has failed to bring home the charge of cruelty soon before the

death of the deceased within 7 years of her marriage, and as such, the

unnatural death within 7 years of marriage i.e. by committing suicide by the

deceased cannot be termed as dowry death as defined u/s 304(B) IPC. The

presumption as referred u/s 113(B) of the Indian Evidence Act also cannot be

applicable in this case due to lack of fundamental case regarding demand of

dowry on initial death of the deceased. My above findings are fortified by the

law laid down by Hon’ble Supreme Court of India in the case of Hira Lal v. State

(Govt. of NCT), Delhi, [(2003) 8 SCC 80].

29. In the case of Hira Lal (supra) while discussing the ingredients of

for offence u/s 304 B IPC and applicability of section 113B of Indian Evidence

Act has held as follows:

“9. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and


Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods “soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession”. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. 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.”

30. Point No. IV: Now coming on the aspects of abetment and

instigation by accused in committing suicide by the deceased, as alternatively

argued by learned PP, from the evidences as mentioned herein before and as

discussed, except the allegations of demand of dowry and cruelty within first

year of marriage, there is no iota of evidence regarding any short of instigation

or abetment on the part of the accused in committing suicide by the deceased

either on the day of the incident of suicide or within near proximity. Even there

is no allegation that accused used to instigate or abate the deceased to end her

life or that he was not happy with the deceased. It is in the evidence of PW 1

and PW 2 that the accused lived a peaceful conjugal life with his first wife, their

younger sister for about 10 years till her death for ailments.

31. Hon’ble Supreme Court of India in the case of Wasim v. State

(NCT of Delhi), (2019) 7 SCC 435 on the ingredient of offence u/s 306 IPC

vis-a vis offence u/s 498A IPC has observed as follows:

“13. Section 306 IPC provides for punishment with imprisonment that may extend to ten years. There should be clear mens rea to commit the offence for conviction under Section 306 IPC. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide—SeeM. Mohan v. State [M. Mohan v. State, (2011) 3 SCC 626] . To attract the


ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary—SeePallem Deniel Victor v. State of A.P. (1997) 1 Crimes 499 (AP)] Whereas, any wilful conduct which is likely to drive the woman to commit suicide is sufficient for conviction under Section 498-A IPC. In this case, the High Court recorded a categorical finding that neither mental nor physical cruelty on the part of the appellant was proved. Therefore, the conviction under Section 498-A IPC is not for willful conduct that drove the deceased to commit suicide. The High Court held that though there was no demand of dowry soon before the death, the prosecution proved dowry demand by the appellant immediately after the marriage.”

32. Now, I have also considered the applicability of Section 498(A)

IPC in this case. This fact remains unchallenged regarding suicidal death by

deceased Jayanti Deka at her matrimonial home within 6 years of her marriage.

As stated earlier though PW-1, PW-2 and PW-4 deposed regarding demand of

dowry and regarding physical and mental torture by the accused on his wife but

PW-3 has categorically stated that such demand was within 4-5 months of her

marriage and the dispute lasted for about 5-6 months only. Thus there is no

evidence of cruelty within last 5 years of marriage. Moreover I have held that

the evidence of PW 1 to PW 4 is found not reliable and trustworthy in view of

evidence of PW 5 on cruelty aspect. As such, no case is even made out u/s

498(A) IPC.

33. It is in the evidence that deceased was issueless inspite of

marriage with the accused for 6 years. It is the defence case that having no

issue, the local villagers taunt her as “Baji” and for which she had ended her

life. From the materials on record, this probability cannot be ruled out as a

cause of committing suicide.

34. To sum up the discussions, I hold that the prosecution has failed

to bring home any of the alternative charges u/s 304(B), 306 or 302 of IPC

against the accused namely Sri Surendra Deka beyond reasonable doubt.

35. Consequently, accused Sri Surendra Deka is acquitted from the

alternative charges U/S 304(B), 306 and 302 IPC on benefit of doubt and set at

liberty forthwith.


36. Seized articles be destroyed in due course of time.

37. In view of the suicidal hanging by the deceased, I am of the

opinion that it is not a fit case for referring the case to DLSA, Morigaon for

granting compensation U/S 357 A Cr.P.C.

38. Send a copy of the judgment to learned District Magistrate,

Morigaon U/S 365 Cr.P.C.

39. Judgment is pronounced in open court. The case is disposed of on

contest.

Given under my hand & Seal of this Court on this the 23rd day of

December, 2020 at Morigaon.

Sessions Judge Morigaon


A P P E N D I X 1. Prosecution witnesses :

P.W.1 - Sri Bipin Deka (Informant)

P.W.2 - Sri Kamal Deka.

P.W.3 - Smt. Pakhila Deka.

P.W.4 - Smt. Aditi Deka.

P.W.5 - Sri Bidyut Deka.

P.W.6 - Sri Padma Konwar.

P.W.7 - Dr. Bubul Saikia (MO).

P.W.8 - Abdul Quddus (I/O)

2. Defence witnesses - Nil. 3. Court witnesses - Nil. 4. Exhibits by prosecution : Exbt. 1 - Ejahar.

Exbt. 2 - Seizure List.

Exbt. 3 - Inquest Report.

Exbt. 4 - Post-mortem Report.

Exbt. 5 - Sketch Map.

Exbt. 7 - Charge Sheet.

Sessions Judge Morigaon

ASSAM Present : Sri SK Poddar, AJS Sessions Judge ...

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