Crl.A. 36/2002 BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) This appeal under Section 378 of the Code of Criminal Procedure, 1973, is prefer red by the State against the judgment and order dated 5.9.2001 passed by the lea rned Sessions Judge, Cachar, Silchar in Sessions Case No. 94/98 acquitting the a ccused-respondent of the charge under Section 304(B) of the IPC. 2. The facts as revealed in the First Information Report (’FIR’ for short) lodged by one Sri Karuna Chakraborty on 2.10.1996 with the Officer-in-Charge (’O /C’ for short), Katigorah Police Station are as follows: That on 1.10.1996 at about 10 AM the accused-respondent and his brother- in-law (husband of his sister) came and intimated the informant that informant’s elder daughter (Smti Mitra Bhattacharjee) was ill. Though the informant’s famil y was not informed anything in detail, on the way to the place of occurrence, t he accused-respondent and his brother-in-law told them that she had committed su icide by hanging herself. On reaching the place of occurrence, the informant fo und his daughter lying dead in a hanging position. The legs of the deceased were on the bed. The informant suspected that his daughter was killed with cool bra in and hanged subsequently. It has been alleged in the said FIR that a few days before, the deceased came to informant’s house and told her mother that her husb and (accused-respondent) had been maintaining illicit relationship with their ma idservant (Smti Mitan Das) and he used to sleep with her in their bed. Whenever the deceased protested, she was subjected to physical torture by the accused-res pondent. It has further been alleged in the FIR that the accused-respondent trie d to kill the deceased by strangulating once before when she threatened him that she would inform everybody about the said illicit relationship. The accused-res pondent, however, left the deceased on that day with a threatening that he would kill her if she says anything to anybody about the same. 3. On receipt of the said FIR, Police registered a case being Katigorah P.S . Case No.347/96 under Sections 498(A)/304(B) IPC, investigated into the matter and on completion of the investigation, submitted charge-sheet under Sections 304(B)/498(A) IPC against the accused-respondent. The case was registered as G. R. Case No. 2396/96 in the Court of the learned Chief Judicial Magistrate, Cacha r at Silchar. 4. Since the offence under Section 304(B) IPC is exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Cachar at Silc har by the learned Magistrate. On receipt of the case record and upon hearing the parties, the learned Sessions Judge, Cachar at Silchar framed charge under Section 304(B) of the IPC against the accused-respondent. The charge was read o ver and explained to the accused-respondent to which he pleaded not guilty and c laimed to be tried. 5. During trial prosecution examined as many as 14 witnesses and exhibited certain documents to prove its case while the defence examined none and took t he plea of total denial as it appears from the examination of the accused-resp ondent under Section 313 Cr.P.C. 6. The learned trial Court after considering the evidence adduced by the pr osecution and upon perusal of the materials on record did not find the accused/r espondent guilty and therefore, acquitted the accused from the charge framed aga inst him under Section 304 (B) IPC. Hence, this present appeal. 7. I have heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, As sam appearing for the appellant, State of Assam. Also heard Mr. N Choudhury, le arned counsel appearing for the accused-respondent. I have also examined the evi dence on record meticulously. 8. Mr. Gogoi, learned Additional Public Prosecutor appearing for the appell ant State submits that the prosecution has successfully proved its case beyond all reasonable doubt against the accused respondent by adducing oral and docume ntary evidence before the learned trial Court. However, the learned trial Court totally on a wrong approach and perverse decision passed the impugned judgment o f acquittal, which has resulted in miscarriage of justice. He further submits t hat it is apparent from the evidence on record that the deceased died unnatur al death almost within a year from the date of her marriage with the accused a nd prior to her death she was subjected to cruelty or harassment by the accus ed. As such it should be presumed to be a dowry death within the meaning of S ection 113(B) of the Indian Evidence Act, 1872. 9. While controverting the contentions made on behalf of the appellant, Mr . Choudhury, learned counsel for the accused-respondent submits that perusal of the evidence on record would reveal that there are material omissions and contr adictions among the versions of the prosecution witnesses. It is further submit ted by him that from the evidence of PW-14 it is crystal clear that the deposit ions of PW-1, PW-7, PW-11 and PW-12 are not at all reliable . Apart from that fr om the post-mortem report it appears that the deceased committed suicide. Mr. Ch oudhury thus submitted that the impugned judgment of acquittal by the learned tr ial Court has been passed after proper appreciation of evidence and applying its mind, which may not be interfered with in this appeal, considering the limited scope of the Court in an appeal against acquittal. 10. Before proceeding to consider the evidence and materials on record, we w ould like to recapitulate the scope and ambit of power of the High Court in an a ppeal against acquittal . In the case of Ramesh Babulal Doshi Vs.State of Gujara t reported in (1996)9 SCC 225 the Apex Court has held that, &.the mere fact th at a view other than the one taken by the trial Court can be legitimately arriv ed at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing w ith the evidence was patently illegal or the conclusions arrived at by it were w holly untenable. While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustaina ble. If the appellate Court answers the above question in the negative, the orde r of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustai ned in view of any of the above infirmities it can then and then only - reapprai se the evidence to arrive at its own conclusions... 11. Having regard to rival submissions epitomized above, let us proceed with the evidence on record with reference to the submission advanced by the learned counsel appearing for the parties and also in keeping with the above principles in Ramesh Babulal (supra), we have, therefore, to first ascertain whether the f indings of the trial Court are sustainable or not. 12. PW.1 Karunamoy Chakraborty, who lodged the FIR (Ext.1) is the father of the deceased Mitra Rani Chakraborty. He deposed that the marriage between the accused-appellant and his deceased daughter was solemnized on 13th October, 1995 . After three months of the marriage, when his daughter visited his house, in co nnection with Matriculation Examination, PW-1 noticed some painful signs in her face, but on being asked his daughter did not disclose anything and said that sh e was alright. However, during her second visit about two months thereafter, the deceased disclosed to her mother about the intimacy developed by her husband i. e. accused-appellant with the maidservant Mitan Das and that her husband used to sleep with that maidservant as husband and wife. When the deceased raised protest and threatened to divulge everything to her father-in-law, her husband i.e. the accused attempted to kill her by strangling, however, later left unh armed with a warning that she would not inform the matter to anyone including the neighbours. PW-1 further deposed that he was also reported by the son of h is brother-in-law about the ill-treatment towards the deceased by her husband fo r which his deceased daughter had to spend the days in anxiety. Therefore, PW-1 visited the house of deceased’s father-in-law and on being intimated he, i.e. t he father of the accused assured PW-1 that he would do the needful. The accused also demanded a scooter from PW-1 through the deceased and made a promise to change himself after receipt of the scooter. PW-1 further stated that he narrat ed the entire incident to the neighbours of the accused, namely, Dulu Chakrabor ty, Bappa Chakraborty and Samiran Das, who admitted about their knowledge in r espect of the affairs of the accused with the maidservant since long before. T he PW-1 decided to part with some money from his salary every month with a view to purchase scooter for his son-in-law, i.e. the accused. But, on 1.10.1996, Ard hendu Bhattacharjee, brother-in-law of the accused came to the house of PW-1 an d made a request to accompany him to the house of deceased as she was reported to be seriously ill. Accordingly, PW-1, his wife and unmarried daughter and Dip en Bhattacharjee proceeded to Digarkhal but on the way near Tarapur, the acc used (son-in law) boarded in the car. On being enquired they were told by the ac cused that the daughter of PW-1 committed suicide by hanging . On entering the room, PW-1 found his daughter (deceased) in standing position over her bed. He noticed one black spot in her neck. Her neck was tied with a piece of cloth agai nst a bar. PW-1 also found police at the place of occurrence who held inquest on the deadbody. On the following day PW-1 lodged the FIR (Ext.2). During cross -examination, PW-1 denied the suggestion, among others, that his da ughter became imbalanced after being expelled from matriculation examination due to adopting unfair means. 13. PW-2 Smti Mira Chakraborty is the mother of the deceased. While deposing almost in the tune of PW-1, the PW-2 stated that her deceased daughter expresse d unhappiness about her conjugal life. PW-2 also speaks about illicit relationsh ip of the accused with the maidservant as reported by her daughter. It is also s tated by PW-2 that when her daughter protested against the illicit relationshipt of the accused, she was subjected to assault etc. The PW-2 also speaks about t he earlier incident of attempt to throttle her daughter by the accused; however, her daughter consoled her by telling that matter should not be disclosed to PW- 1 because he was perturbed due to the death of their (PWs-1 & 2) eldest son. PW -2 stated that during these conversation with the deceased daughter, Smti Kalpan a Chakraborty i.e. her sister-in-law was also present. After 15 days stay at her parental house after marriage, her deceased daughter left for her husband’s house and 15 days thereafter one Ardhendu Bhattacharjee of Digharkhal reported the family of PW-2 about serious illness of her daughter (deceased). They boar ded the car in which the said Shri Ardhendu Bhattacharjee came. On boarding the car they found that the accused was sitting inside the car. After reaching the house of her daughter, PW-2 found her daughter in standing position over her bed , her neck was tied with a piece of cloth against a bar and her eyes and mouth were closed. Having seen this PW-2 became motionless and failed to remember anyt hing. She deposed that her daughter died after one year of her marriage and duri ng this period of matrimonial life, deceased came to her (PW-2) house thrice and during her stay, in addition to the story of illicit relation, the deceased als o told them that the accused demanded money for purchasing a scooter. PW-2 furth er stated that the accused also requested her daughter Mridula to procure mone y for the said purpose. During cross- examination, PW-2 stated that she visited the matrimonial house of her daughter only for one occasion after receiving the news of her daughter’s death. Her daughter last visited their house about 15 days before her death. Sh e also stated that on their arrival they found Police at the matrimonial house of her daughter. PW-2 denied other suggestions made to her by the defence. 14. PW-3, Smti Dipali Devi, who is neighbour of PW-1 and PW-2, deposed that her house is situated behind the house of PW-1. She knew the deceased from long before and the deceased used to visit her house before and even after marriage. She deposed that about 1-1/2 month before her death, deceased Mitra came to her parents’ house on ’nayor’ and during their visit, the deceased also visit ed the house of PW-3. On being asked about the conjugal life, the deceased repor ted that her husband used to sleep in a separate bed with his maidservant in the same room and when the deceased protested, the accused pressed her neck w ith a view to killing her. PW-3 further deposed that she advised the deceased to report the matter to her parents. Subsequently she came to know about the deat h of the deceased. She made statement before Magistrate vide Ext.3. During cross-examination, nothing significant came out from the mouth of this witness; however, to a query made by the trial Court, she stated that though s he maintained friendly relationship with deceased, the difference of age betw een them was of about 14/15 years and the deceased used to address PW-3 as ’P ishi’. 15. PW-4 Smti Sankhu Rani Deb is also a neighbour of the deceased’s parents . While deposing in the same tune that of PW-3, she stated that about 1 ‰ months before her death the deceased came to her parents’ house and visited the hou se of PW-4 as before. PW-4 found her very gloomy and on being asked the decease d replied that she was not happy with her conjugal life and she had been passing her days with anxiety and agony as her husband had illicit relations with his m aidservant. It is also deposed by PW-4 that as reported by the deceased, the acc used was insisting on purchasing a scooter through her parents’ side. It is the version of the PW-4 that the deceased was subjected to torture when she raised protest against the illicit relationship of the accused. She denied various suggestions put to her by the defence during cross-examinatio n. 16. PW-5, Smti Khelarani Dutta is neighbour of the PW-1 and deposed in the tune of PW-4 while speaking about the illicit relationship of the accused with the maidservant as well as making demand of scooter from the father of the dec eased, i.e. PW-1. Suggestions put to her have been denied. 17. PW-6 Smti Dulu Chakraborty, who is a neighbour of the accused had mediat ed the marriage of the deceased and the accused. Being a neighbour of the accu sed, PW-6 was requested to look after the deceased by her parents after marriage . Accordingly she used to visit the house of the accused and on such visits, the deceased told PW-6 that she was not happy with her conjugal life as her hu sband regarded the maidservant as his wife and behaved with the deceased as a maidservant. PW-6 further deposed that on her such a routine visit she noticed b urn injury in deceased’s leg and on enquiry she was told by the deceased th at the injury was sustained by her due to falling of hot dal, but unfortunat ely her husband i.e. the accused never enquired about the same. When PW-6 narra ted the same to the parents of the accused, the accused cautioned her not to i nterfere in their family affairs. Prior to the date of occurrence on Viswakarm a Puja day PW-6 visited the house of the accused and she was told by the decea sed that the maidservant had left their house. A week thereafter she heard about the death of the deceased and having gone there PW-6 found the deceased in a ha nging position on a beam of the house. During cross-examination, this witness stated that she knew the accused from h is childhood i.e. for about 30 years and he is a good boy. The deceased is th e daughter of elder sister of PW-6 and it is on the basis of recommendation of PW-6, the parents of the deceased gave her on marriage. She further stated th at the deceased died on 1.10.1996 while the Biswakarma Puja was on 17.9.1996 on which date she visited the house of the accused and the deceased informed he r about leaving the house by the maidservant. PW-6 denied other suggestion put by the defence. She, however, further stated that Kamal Chakraborty, who was e lder brother of the deceased, failed to pass B.A. examination and subsequently his dead-body was found floating in the river Barak. However, she denied that h e committed suicide. 18. PW-7 Smti Mridula Chakraborty is the sister of the deceased. She depose d that the marriage between the accused and deceased was solemnized on 13.10.19 95 and her deceased sister was killed on 1.10.1996. After marriage her deceased sister came to their house on ’nayor’ thrice; however, the accused never accom panied her on any of these visits. Prior to the death and before Viswakarma Puj a, the deceased again visited her parents’ house. She heard the deceased telling her mother about the illicit relationship of the accused with the maidservant M itan Das. PW-7 further stated that the accused used to make humor with the maid servant by touching hand and body. Just before the Viswakarma Puja the accused came to their house to take back her sister (deceased ) but due to the ill health of her sister she could not go with him and told the accused that she wou ld go on the next day. The accused then left their house telling that they shou ld take his wife to his house as the maidservant has already left his house. A ccordingly, on the following day PW-7 being accompanied by her sister Mitali an d maternal uncle Dipen Bhattacharjee took the deceased to her husband’s hous e. On arrival, PW-7 saw the accused gossiping with the maidservant on a camp-c ot at about dusk. They all spent the night at the house of the accused. In the night her deceased sister told her that the accused used to sleep with the maid servant in the same bed and avoided to sleep with the deceased. Next morning he r maternal uncle and sister came back to their home; however, PW-7 stayed in t he house of the accused for about a week and noticed the cordial relationship between the accused and the maidservant including the accused having embraced th e maidservant one day. PW-7 further deposed that during her this short stay at the house of the accused, one day the accused told her to tell her father t o part with Rs.10,000/- or in the alternative to purchase an old scooter for his use . In reply PW-7 told the accused about her father’s inability to fulf ill the demand. According to PW-7, her deceased sister also told her that the accused wanted to purchase an old scooter from the fund of her father. After t hat short stay at the house of the accused, PW-7 came back home. Thereafter on e day morning Ardhendu Bhattacharjee, i.e. brother-in-law of the accused came t o their house and reported to them that her deceased sister fell ill and they should accompany him. In the evening she came to know from her parents that he r deceased sister was caused to be killed by hanging . During cross examination, PW-7 stated that her younger brother Keshab is abnormal. She stated that she appeared in the HSSLC examination twice, but was unsuccessful. Her deceased sister also appeared in the HSLC Examination 3/4 time s. She was also unsuccessful in the year 1996. PW-7 further stated that the dece ased was expelled in her HSLC Examination in 1996. However, she was not aware wh ether the fact was kept secret. She was also not aware as to the concealment of the fact of expulsion and being not eligible to appear in the examination in the year 1997, her deceased sister was mentally disturbed. She did not remember as to whether she stated before the I.O. that prior to her sister’s death and bef ore Biswakarma Puja , the deceased came to their house on Naiyor again and she was found weeping . PW-7 further stated that as she was not asked by the I.O ., she did not state him that on arrival at the house of the deceased, they saw the accused gossiping with the maidservant as well as the accused being habit uated to sleep with the maidservant in the same bed. PW-7 also admitted that she did not state before the I.O. that during her one week’s stay at the house of the accused, she one day noticed he accused embracing the maidservant. PW -7 denied other suggestion put by the defence during her cross-examination. 19. PW-8 Bappi Chakraborty and PW-9 Sri Samir Ch.Dhar have been declared h ostile by the prosecution. As such they are cross-examined by the prosecution. During such cross-examination, both the witnesses have denied the suggestion p ut by the prosecution to them. 20. PW-10 Dr.Homeswar Sarmah performed post-mortem examination on the dead body of the deceased Mitra Bhattacharjee. After holding the post mortem examina tion, PW-10 recorded his opinion as follows: In my opinion, the death was due to ante mortem hanging which was suicidal in n ature. Time passed since death was approximately 20 to 40 hours. Ext.4 is the post-mortem report . During cross examination, PW-10 stated that from the nature of the ligature mark he opined that it was a self inflict ed legature application on the neck. 21. PW-11, Smti Alpana Chakraborty is the aunt of the deceased, i.e. husband of PW-11 and father of the deceased are own brothers and her house is contiguou s to the house of PW-1. In her deposition she rendered similar version like th at of PW-3,PW-4,PW-5,PW-6 and PW-7 in respect of the illicit relation of the a ccused with the maidservant Mitan Das as well as demand of scooter from the father of the deceased . During cross-examination by defence, PW-11 stated that the deceased left the hou se of her father for the last time two days before Viswakarma Puja. The decease d came on ’Naiyor’ several times to the house of her father before her death. On her earlier visits she never stated anything against the accused to her (PW- 11). PW-11, however, denied other suggestions put to her by the defence. 22. PW-12 Smti Mira Deb was a tenant of PW-1 i.e. the father of the deceased . She also deposed that after marriage the deceased used to visit her parents ’ house and on enquiry about her conjugal life, the deceased told her that sh e (deceased) was not happy with her conjugal life as her husband used to live with a maidservant and on her protest the accused used to pick up quarrel wit h her. PW-12 stated that she was reported that the deceased committed suicide. In cross-examination, PW-12 stated that her husband is a driver of a night Sup er Bus and they were tenant under PW-1 for about 4 years and they left that ho use after about one year of the death of