Shri P. Saikia, Sessions Judge,...
Transcript of Shri P. Saikia, Sessions Judge,...
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IN THE COURT OF SESSIONS JUDGE::::::::::::::::::::::::::::::::BARPETA.
Present:- Shri P. Saikia, Sessions Judge,
Barpeta.
SESSIONS CASE NO. 177 OF 2007
Under Section 304(B) of I.P.C.
(P.R.C. No. 80 of 2007)
State of Assam
-versus-
Bhupen Talukdar. ...Accused.
For the Prosecution :Mr. A.Kayem, P.P.
For the accused :Mr. D. Das, Advocate.
Evidence recorded on :4/6/2008, 4/7/2008,27/4/2009,3/6/2009.
20/7/2009,16/8/2009,12/2/2012,15/2/2012,
9/8/2012.
Arguments heard on :12/6/2013.
Judgment delivered on :21/6/2013.
J U D G M E N T .
1. The run up of facts to the prosecution case,in conspectus is that on 12/4/2007
the informant Nila Kanta Barman lodged a written report with the In Charge,Pathsala
Out Post alleging amongst others that his daughter Barnali Barman was given in
marriage with the accused Bhupen Talukdar on 1/12/2006 as per the Hindu social rites
and ritual. Since after the marriage the accused began torturing her mentally on various
grounds. Barnali narrated before him and his family members as to harassing her
mentally by the accused in different matters. Inspite of that he could not take any
decision in this regard. It is a matter of sad that the accused compelled his daughter to
commit suicide on 12/4/2007 after constantly torturing her mentally and the commission
of suicide by his daughter was informed to him on the same day and on hearing this
information he came to the house of the accused and saw his daughter Barnali Barman
died by hanging.
2. On the strength of the written report and treating the same as an F.I.R. the In
Charge,Pathsala Out Post recorded Pathsala Out Post G.D.Entry No.282
contd.2.
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dated 7812/4/2007and sent the same for registering a case to the Officer in
Charge,Patacharkuchi Police Station and in the mean time, the In Charge,Pathsala
Police Out Post Arun Kumar Borah initiated the investigation of the case. On receipt of
the F.I.R. the Officer in Charge,Patacharkuchi Police Station registered Patacharkuchi
P.S. case No. 60/2007 under section 306 I.P.C. and entrusted investigation to S.I. Arun
Kumar Borah, In Charge,Pathsala Out Post who had already under taken up
investigation of the case by virtue of General Diary Entry No.282 dated 12/4/2007.
3. During the course of investigation the I/O visited the place of
occurrence,held inquest on the dead body of the deceased Barnali Barman(Talukdar) in
presence of Magistrate,recorded the statement of witnesses under section 161
Cr.P.C.,prepared a sketch map of the place of occurrence, seized some articles,
forwarded the dead body to Barpeta Civil Hospital for post mortem examination and
collected the post mortem report of the deceased. On conclusion of investigation, the
I/O laid the charge sheet against the accused Bhupen Talukdar under section 306 I.P.C.
to face trial in the court of law.
4. Accepting the charge sheet the learned S.D.J.M.(M),Bajali,Pathsala took
cognizance of the offence and ensured the attendance of the accused in compliance of
the process of the court. The offence under section 306 I.P.C. being exclusively triable
by the court of Sessions hence, the learned S.D.J.M.(M),Bajali,Pathsala on 19/9/2011
committed the case to this court of Sessions after complying with the provision under
section 207 Cr.P.C.
5. On receipt of the case on commitment with all relevant papers Sessions case
No.177/2007 was registered. Thereafter, on scrutiny of the copies of documents
furnished under section 173 Cr.P.C. and having heard learned counsel for both the sides
my learned predecessor in court found prima facie material and adequate grounds for
presuming that the accused Bhupen Talukdar committed the offence under section
304(B) I.P.C. Accordingly, formal charge under the said section of law was framed
against the accused and then the charge was read over and explained to the accused to
which he pleaded not guilty and claimed to be tried.
contd.3.
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6. In order to romp home the charge, the prosecution examined in all thirteen
witnesses and also relied on some documents on record marked as exhibits.
7. Defence of the accused is of total denial. His case as it would emerge from his
examination under section 313 Cr.P.C., trend of cross examination of the prosecution
witnesses and suggestions that he has been falsely implicated in the case on
concoction. However, no evidence was led in defence.
8. In the perspective of the factual background of the case, the point for
determination in the inst ant case is set up and framed as under:
Whether the accused on 12/4/2007 at Pathsala Char-Ali main chowk under
Patacharkuchi P.S. area- being husband of newly married couple life created both
physical and mental atrocity on the person of his newly married wife Bornali
Barman(Talukdar) which even insisted Barnali Barman(Talukdar) in committing
suicide ?
9. I have heard arguments canvassed by the learned counsel for both the sides
and also scrutinised the evidence on record in its entirety to arrive at a just finding in
the case.
10. Decision thereon with reasons for decision therefor:
P.W.1 Dr. Rejaul Hamid is the Medical Officer of the case who conducted post
mortem on the dead body of Barnali Talukdar on 12/4/2007 in connection with this case
at Barpeta Civil Hospital and found as follows:
11. The deceased a female, was found wearing pink coloured Suridar with black
dupatta internally wearing white bra and light coloured petty-coat. The body was of fair
complexion, average built woman of 25 years old.
Eyes found closed, show petechial haemorrhage in the conjunctiva with livid
brownish disclolouration, the facial chin also shows petechial haemorrhage. Salivery
stain found present on the angle of the mouth on right side. Tip of the tongue found
protruded out and biten by teeth. Colour of the tongue is blue. Nails found warm
internally. Rigor mortis not fully developed. The body found warm internally. In
dissection, post mortem hypostasis found on the back of the thorax and abdomen.
contd.4.
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Mark of ligature.
There was a non-continuous depressed ligature mark of width 2'5 x 3 cm. and
length 28 cm. present at the front and side of the neck in the upper part above the level
of the cricoid cartilage going obliquely upward and backwards up to the level of ear
lobule on left side and up to the behind mastoid on right side and absent at the back of
the neck. The floor of the mark shows pressure abrasion with perchmentised
appearance. On dessection, tissues inside the ligature mark found dried and hardened.
Rest of the neck tissues and cartilages including the injured bone found healthy.
OPINION:
The cause of death was asphyxia resulting from hanging, which was ante
mortem and suicidal in nature. Approximate time since death was 6-12 hours.
Ext. 1 is the post mortem report where upon Ext.1(1) is his signature.
12. In cross examination the M/O has stated that he did not find any violence mark
on the dead body. A person who is suffering from depression,
suicidal tendency may develop.
13. P.W.2 Nila Kanta Barman is the father of the deceased Barnali Talukdar as well
as the first informant of the case. It transpires from his evidence that on 1/12/2006 his
daughter Barnali was given in marriage with the accused in accordance with Hindu rites
and customs and started living together. Initially the married life was peaceful.
Thereafter, the trouble started. After one month of the marriage his daughter visited his
house. She reported to her mother that physical and mental torture was meted out to
her by the accused and she was not being properly treated by the accused. The
accused is a lecturer in Assamese Department in Bajali College. While the accused
attended duty he used to keep his daughter under lock and key. On 12/4/2007 his
brother in law Bipul Kakati reported him that over phone that Barnali @ Moyna was
serious, so he should go immediately. He went to the house of the accused and found a
large gathering. He went inside the room and found his daughter Barnali was hanging
against a ceiling fan. Accused Bhupen was found not present in the house at that time
as he was in the mean time put up in the lock-up by the
contd.5.
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police. He talked to him at the lock-up at Patacharkuchi Police Station and he replied
that Barnali not only died but she also killed him. Thereafter, he lodged an F.I.R. with
the police. He has proved and marked the F.I.R. as Ext.2 wherein Ext.2(1) is his
signature.
14. In the cross examination he has stated that accused was residing in a joint
family. The accused who is his son in law is an influential person in the locality. The
accused did his Doctorate Degree in Assamese. After marriage he visited 3/4 times in
the house of the accused. There was a tenant near the house of the accused. In the
ground floor of the house there was 10/12 shops. When he visited the house of the
accused's joint family the accused's mother treated him well. He used to visit the house
of the accused in the evening time when the accused was available in the house. The
accused used to talk less. He had to talk with his daughter. She complained that she
was not properly treated by the accused and even in menstruation course she was
allowed to sleep on the floor and she was subjected to mental torture. In their Assamese
community during menstruation period the wife is not allowed to sleep on the bed. He
had not seen that his daughter was allowed to sleep on the floor. He lodged the F.I.R. at
around 7.00 P.M. How the accused went to Patacharkuchi Police Station and who took
him there is not known to him. After post mortem examination the dead body of his
daughter was handed over to the accused and it was done in his consent. He does not
know whether any F.I.R. was lodged by Jiten Talukdar the brother of the accused. His
brother Gadadhar Barman brought back the 'Stridhan' from the house of the accused.
On the date of the occurrence the accused attended his college for duties. He has
denied that he did not state before the police that his daughter was not slept
on the floor and that he did not tell that his wife reported him about the torture meted out
to his daughter. He has denied the defence suggestion that his daughter did not commit
suicide and falsely he has implicated the accused.
15. P.W.3 Ambika Barman is the mother of the deceased Barnali. She has testified to
the effect that her daughter reported her that after marriage she was not properly treated
by the accused. Proper food was not supplied to her. The accused suspected her
daughter and she was criticised by the accused by
contd.6.
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mentioning that her daughter reported that she was not allowed to sleep with the
accused and she was not happy.
16. In the cross examination she has revealed that altogether two times she visited
the house of the accused. When she met her daughter she saw her mentally
perturbed. She did not tell her daughter to come back to her house and she was also
not willing to come back. They did not file any case against the accused for physical
and mental torture meted out to their daughter. When she visited her daughter's house
she met the accused also talked to him. She did not tell the accused that she wanted to
bring her daughter back for some days. She has denied that she did not tell before the
police that her daughter was not properly treated or proper food was not given to her
and that accused suspected her daughter.
17. P.W.4 Debajani Barman. Accused is her son in law. After marriage she met
Barnali on two occasions and they saw her mentally perturbed. Barnali told them that
she was not properly treated by the accused nor proper food was provided to her and
she was not happy. Barnali committed suicide by hanging but it was a case of murder.
18. In the cross examination she has stated that she never talked to parents of
Barnali in her house after her marriage. How Barnali was living in her house she had
not personally seen. She denied that state before the police that Barnali reported her
about the torture meted out to her rather, she came to know from the parents of the
deceased.
19. P.W.5 Rukmini Talukdar is the sister of the accused and she has deposed in her
evidence that soon after the marriage both Barnali and the accused started living
together as married couple. Their married life was peaceful. So far she knows that
Barnali committed suicide in her bed room by hanging in a house where the accused
and Barnali lived together separately.
20. In the cross examination she has stated that there was adjacent house
belonging to one Nilakanta Ramchiary, an ex-Army man who was a bank
employee; her house is at a distance of one K.M. away from the place of occurrence.
Deceased Barnali and the accused used to visit her residence and also took meal.
Her mother is still alive. Mother was given due respect by
contd.7.
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them. Some times Barnali used to sleep with her own mother. and Barnali was never
allowed to sleep on the floor.
21. P.W.6 Upen Das. It is his evidence that he was the neighbour of the parents of
deceased Barnali who was given in marriage with the accused who is a lecturer. After
four months of marriage, one day he heard that Barnali committed suicide in the house
of the accused. Immediately he came to the spot and found Barnali hanging. He saw
some black spot on the face of Barnali. The occurrence took placed after four months of
marriage. After marriage P.W.3 Ambika Barman the mother of the deceased told him
that married life of Barnali was not cordial and it was also seen that she was not happy.
22. In the cross examination he has stated that he never visited the house of the
accused except on the day of the occurrence. So he does not know how the family
members of the accused was pulling on. He has denied that he did not state before the
police that he saw black spot over the face of the deceased and that mother of Barnali
reported him that her daughter Barnali was not happy with the marriage and that on
seeing her appearance Barnali was not found to be unhappy.
23. P.W.7 Sashi Prabha Kalita is the sister of Barnali. According to her evidence the
deceased spent three months with the accused as husband and wife after their
marriage. Barnali was found not happy with her marriage as she used to talk with her
over telephone and told her that she was not at all happy that her husband did not allow
her to talk with others and even in the event of going out of house her husband kept her
inside her room under lock and key. She was also not allowed to visit their house inspite
of her repeated invitation. On 8/4/2007 she visited the house of her sister while she
found her melancholy and suffering from fear psychosis. She also did not express
anything about her reaction. Thereafter she went to her mother's house and reported
her mother about the condition of Barnali; while her mother informed her that the
deceased reported her that the accused tortured her both mentally and physically on
the allegation that deceased had maintained relation with some other man prior to her
marriage. Her mother also told her that due to having black spot on the upper side of
abdomen of Barnali, the
contd.8.
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accused suspected her and criticised her off and on blaming her that said spot occurred
due to illicit relation with many other persons prior to her marriage. On her return to
her house on that day in the evening she contacted Barnali over phone while she
confirmed the statement made by her before her mother. On 9/4/2007 again she
contacted the deceased over phone while she told her that the accused had been
tortured her blaming her and causing her torture alleging that she had illicit relationship
with many other persons before her marriage for which she sustained the black spot on
her abdomen. Again on 10/4/2007 she contacted her over phone but the deceased did
not talk to her on the plea that she had been very busy on that moment. On 11/4/2007
she again rang the victim up. She told her that on 12/4/2007 she would visit her
mother's house and would discuss all the things in details. On 12/4/2007 her father
informed her over phone that her sister Barnali committed suicide.
24. In cross examination she has revealed that accused Bhupen Talukdar is a
lecturer of Pathsala College. The mother of the accused is alive and she is above 90
years old.She has denied that she did not state before the police that the accused put
and kept the deceased inside the room under lock and key when ever he went outside
and that the accused did not allow the victim to talk with others. She has further denied
that she did not state before the I/O that on 9th April,2007 she contacted the deceased
over phone while the deceased reported her that her husband suspected her seeing a
black mark on her abdomen and blamed her and causing torture on her on allegation
that she had been mixing with many other persons before her marriage. She has further
denied that she did not state before the I/O that on 8/4/2007 she found the deceased
suffering from depression and fear for which she could not talk her freely; and that on
her visit to her mother's house on the same day she reported the matter to her mother
who said that the deceased reported her that the accused had been causing both
mental and physical torture suspecting and alleging the victim to her chastity saying that
she had got illicit relationship with other persons before her marriage. She has not
witnessed any torture on the victim by the accused nor any altercation between them.
Her mother, brother and herself visited the matrimonial house
contd.9.
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of the deceased prior to her death. She has denied that she did not state before the
investigating officer that the accused put and kept the deceased inside the room under
lock and key whenever he was outside and that the accused did not allow her to talk
with others and she was not allowed to visit their house at Sorbhog inspite of repeated
invitation.
25. P.W.8 Nila Kanta Ramchiary. His testimony does not support the substratum of
the prosecution case. He has disclosed in his testimony that though he attended the
marriage ceremony between the accused and the deceased as being a neighbour but
he never visited the house of the accused for which he cannot say about any relation
between the accused and the deceased.
26. In cross examination he has rather divulged that he never noticed that the
accused Bhupen Talukdar used to keep the victim inside the room under lock and key
whenever he went out. On the date of the incident he met the accused and saw him
proceeding towards his college. The accused had been staying with the deceased in his
for about four months and during the said period of four months he never witnessed any
quarrel between them and they were rather living in peace. He also did not witness ill
treatment of the deceased by the family members of the accused rather he found that
they loved the deceased and the accused us a perfect gentle man.
27. P.W.9 Hareswar Kalita. According to his deposition accused married the
deceased don 1/12/2006 as per Hindu rites and rituals. The deceased thereafter stayed
with the accused in her matrimonial house for about four months. On 8/4/2007 he
alongwith his wife and children visited the residence of the accused and met the
deceased there. Deceased Barnali was his sister in law. One day when he visited the
house of the accused he asked the deceased about his welfare and health. Then she
replied that she was not running well and she told him that she would narrate later on as
to why her health was deteriorating. He also came to know from her mother in law that
deceased Barnali had not maintaining good relations with her husband. On 12/4/2007
they received the information about the death of the deceased and
contd.10.
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her body was taken for post mortem examination to civil hospital. Then they visited the
civil hospital and met his mother in law who stated that the accused would always
suspected the victim as to her chastity due to having a black mark on her abdomen and
the victim also reported her that the accused used to torture both mentally and
physically alleging that the black mark occurred due to caesarean operation as a result
of mixing up of the victim with some other men before her marriage.
28. In cross examination she has stated that the accused and the deceased never
visited his residence after their marriage. He never witnessed any quarrel between the
accused and the deceased He has denied that he did not state before the I/O that on
8/4/2007 while he visited the house of the accused, the victim, on enquiry about her
health and mind replied that she was neither in good health nor happy. He has denied
that he did not state before the I/O that the accused used to torture both mental and
physical on the victim.
29. P.W.10 Debendra Nath Sarma. It is his evidence that accused is one of the
Lecturers of Bajali College in which he is working as the Principal. In the year 2007 he
heard from some known persons of that locality that the wife of the accused had died.
At that time on enquiry he came to know that the accused had been entrusted to work in
his college regarding evaluation work of T.D.C. part II General Examination but he had
not seen the accused nor did he talk with him or visit his house.
30. In cross examination he has disclosed that after the incident accused was
placed under suspension and thereafter, he reinstated as per the approval of the
Governing Body. The accused is a Ph.D. Degree holder in Literature so far he heard. He
has no personal knowledge about the family of the accused person.
31. P.W.11 Binita Bora Dev Choudhury. She has testified that the accused is her
colleague working as Lecturer in Bajali College,Pathsala. She also knew his deceased
wife. On 12/4/2007 the wife of the accused died and so far she had heard from the local
people that it was an unnatural death caused due to hanging. On the date of the
occurrence the accused attended his duty and she
contd.11.
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met him in the college at round 11.30 A.M.. She does not know when the accused left
the college.
32. In cross examination she has stated that she never met the deceased
personally nor did she know anything about their internal family affairs.
33. P.W.12 Arun Kumar Borah is the investigating officer of the case. He has
deposed to the effect that on 12/4/2007 he was working as In Charge,Pathsala Police
Out Post under Patacharkuchi P.S. On that day at about 1.30 P.M. the informant Binod
Talukdar lodged an F.I.R. before him alleging that on that day his younger brother's wife
Barnali Talukdar committed suicide by hanging from ceiling fan in her room. On receipt
of the F.I.R. he recorded General Diary Entry being Pathsala Police Out Post General
Diary Entry No. 273 dated 12/4/2007 and forwarded the same to the Officer in
Charge,Patacharkuchi P.S. for registration of the case and the said case was recorded
as U.D. case No.6/2007 of Patacharkuchi Police Station. He was entrusted to
investigate into the case. During the course of investigation he visited the place of
occurrence, placed requisition with request for endorsement of an Executive Magistrate
for holding inquest on the dead body of the deceased Barnali Talukdar.
Accordingly,Dipankar Das,Executive Magistrate,Pathsala,Bajali performed inquest on
the dead body of the deceased in presence of witnesses, he prepared a sketch map of
the place of occurrence. He seized one Chador with red border from the place of
occurrence and with the help of the said Chador the deceased hanged from ceiling fan.
He recorded the statement of the witnesses at the place of occurrence. Thereafter, the
dead body was forwarded to Barpeta Civil Hospital for post mortem examination. At
that time some tension prevailed in the locality due to occurrence of suicide. For the
ends of law and order and for security of the accused Bhupen Talukdar the husband of
the deceased was taken by him to the police station where he recorded his statement.
On that day at around 7.30 P.M. the father of the deceased lodged an F.I.R. alleging
against the accused. The F.I.R. was forwarded to the police station after making
General Diary Entry No.282/2007 dated 12/4/2007. Accordingly, Patacharkuchi P.S.
case No.68/2007 was registered under section 306 of I.P.C. and handed over the
charge of investigation to him. Thereafter he
contd.12.
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started investigation by amalgamating the record of U.D. case No.6/2007. He also
recorded the statement of the witnesses at the place of occurrence, collected the post
mortem report and on careful consideration of the Case Diary he submitted the charge
sheet against the accused under section 306 of I.P.C. He also prepared a sketch map of
the place of occurrence. He has proved and marked the sketch map as Ext.3 wherein
Ext.3(1)m is his signature. Ext.4 is the seizure list in respect of the Chador. Ext.4(1) is
his signature. Ext.2 is the F.I.R. submitted by Nila Kanta Barman whereupon Ext.2(2) is
his endorsement with signature. Ext.2(3) is the signature of Dipak Das the then. Officer
in Charge,Patacharkuchi P.S. which is known to him. Ext.5 is the charge sheet
whereupon Ext.5(1) is his signature. The U.D. case which was investigated by him
ended in Final Report and the same was submitted to the learned S.D.J.M.(M),Bajali.
34. In cross examination he has revealed that on 12/4/2007 one written information
was given regarding the death of Barnali Talukdar by Jiten Talukdar. On the basis of
that information he visited the place of occurrence. The inquest was prepared by the
Executive Magistrate,Bajali on 12/4/2007. On the same day at around 7.30 P.M. one
Nila Kanta Barman lodged one F.I.R. The inquest report was prepared at 1.45 P.M. One
Nila Kanta Braman lodged an F.I.R. after preparation of the inquest report. As per the
inquest report there are four doors in the room where suicide was committed by the
victim and by all the four doors one can ingress and egress in the room. On the date of
the incident accused went to attend his college. When he returned from college to his
house he was arrested. He has confirmed the contradiction that P.W.2 did not state
before him that his daughter was allowed to sleep on the floor and that his wife was
reported by his daughter about torture meted out to her. He has confirmed the
contradiction that P.W.3 did not state in her statement recorded under section 161
Cr.P.C. that her daughter was not properly treated nor proper food was given go her and
that the accused suspected her daughter. He has further confirmed the contradiction
that P.W.4 Debajani Barman did not state before him that Barnali reported d her about
the torture meted out to her. He has further confirmed the contradiction in the
testimony
contd.13.
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of P.W.6 Upen Das who did not state before him that he saw black spots over the face
of the deceased and that the mother of Barnali reported him that her daughter Barnali
was not happy with the marriage and that on seeing her appearance Barnali was found
to be unhappy. He has further confirmed the contradiction in the testimony of P.W.7
Sashi Prabha Kalita disclosing that she did not state before him that on 8/4/2007 due to
presence of her husband she could not talk with the deceased but she stated before him
that without mentioning the date she contacted the deceased over telephone who
reported her that her husband suspected her seeing a black mark on her abdomen and
blammed her. But she did not state as to causing torture on the deceased on the
allegation that she had been mixing with many other persons before her marriage. P.W.7
Sashi Prabha Kalita also did state before him without mentioning the date the date that
she found the deceased suffering from depression and fear for which she could not talk
to her freely and that on her visit to her mother's house she reported the matter to her
mother who said that deceased reported her that the accused had been causing her
mental torture without saying anything about physical torture suspecting and alleging
the victim as to her chastity saying that she had got illicit relationship with other persons
before her marriage. He has however confirmed that P.W.7 Sashi Prabha Kalita stated
before him that the accused put and kept the deceased into the room under lock and
key whenever he went outside and that the accused did not allow the victim to talk with
others. He has further confirmed that P.W.7 did not state before him that the deceased
was not allowed to visit her house at Sorbhog inspite of repeated invitation. He has
further confirmed the contradiction of P.W.9 Hareswar Kalita who did not state before
him that on 8/4/2007 when he visited the house of the deceased, the victim, on enquiry
about her health and mind, replied that she was not in good health and also not happy
and that the accused used to cause torture on her both mental and physical.
35. P.W.12 Investigating Officer was further reexamined and on his reexamination he
proved and marked the seizure list as Ext.4 whereupon Ext.4(1) is his signature. Ext.
6 is the F.I.R. of the U.D. case. Ext. 6(1) is the
contd.14.
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endorsement of the then Officer in Charge, Patacharkuchi P.S. Dipak Das which is
known to him. Ext.6(2) is his signature. Ext.7 is the Final Form of U.D. case No.6/2007.
Ext.7(1) is his signature. Ext.8 is the challan for sending the dead body for post mortem
examination wherein Ext.8(1) is his signature. In further cross examination he has
revealed that he does not know whether the final report has been accepted by the
concerned court.
36. P.W.13 Dipankar Das has deposed in his evidence that on 12/4/2007 he was
working as Circle Officer of Bajali. On that day on requisition by In Charge,Pathsala
Police Out Post, he conducted the inquest on the dead body of the deceased Barnali
Talukdar and found as follows:
"The deceased was wearing a pink colour Suridar and black colour Shunni, white
colour bra and light colour panty. The height of the deceased was 4.8 inches, fair
complexion.
External injury:- No external injury mark marks in the deceased body noticed during
inquest. Only one rope mark seen on the neck of the deceased. This rope mark is to be
white and red colour gamusha. The inquest was done at the P.O. i.e. in the house of
Bhupen Talukdar. The dead body was hanging in the ceiling fan and it was presumed
that the deceased committed suicide. For ascertaining the actual cause of death, the
dead body was forwarded to the Civil Hospital, Barpeta."
36. He has proved and marked the inquest report as Ext.9 wherein Ext.9(1) is his
signature.
37. In cross examination he has revealed that he prepared the inquest report with
his own hand writing and he has not mentioned in his inquest report that he saw a black
spot on the abdomen of the deceased.
38. In the back drop of the above evidence coupled with the facts and circumstances
of the case what emerges at the out set is that the accused has been charged under
section 304(B) of I.P.C. In the present case as per the autopsy report of the P.W.1 Dr.
Rejaul Hamid the death of the deceased was due to asphyxia resulting from hanging
which was ante mortem and suicidal in nature. He has also divulged in cross
examination that at the time of the autopsy examination he did not find any
violence mark on the dead body.
contd.15.
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Thus, from the autopsy report of P.W.1 that death of the deceased Barnali was due to
hanging.
39. It is also manifest from the evidence on record as discussed above that there
was no eye witness to the alleged incident of commission of suicide by the deceased
Barnali though her death occurred during seven years of her marriage. In that view of
the context before proceeding further to evaluate the evidence in its proper perspective I
find it apposite to make a ready reference of the ingredients of the section 304(B) of the
Indian Penal Code are extracted hereunder:
The essential ingredients, of section 304(B) are as follows -
(a) The death of the woman was caused by burns or bodily injury or had
occurred otherwise than under normal circumstances;
(b) Such death should have occurred within seven years of her marriage;
(c) The deceased was subjected to cruelty or harassment by her husband or by
any relative of her husband;
(d) Such cruelty or harassment should be for or in connection with demand of
dowry;and
(e) The deceased should have been subjected to such cruelty or harassment
soon before her death.
40. The Explanation appended to Sub-section(1) of section 304(B) of the Indian
Penal Code says that 'dowry' shall have the same meaning as in section 2 of Dowry
Prohibition Act,1961.
Section 2. of Dowry Prohibition Act,1961, reads as under:-
Definition of dowry:-
Unless Act of 'dowry' means any property or valuable security given either
directly or indirectly.
(a) By one party to a marriage to the other party to the marriage.
(b) By the parent of either party to a marriage or by any other person to either
party to the marriage or to any other person at or before or any time after the
marriage of said parties, but does not include dower or 'Mahr' in the case to whom
the Muslim Personal Law (Sariat) applies.
contd.16.
16
42. In view of the aforesaid definition the word 'dowry' means any property or
valuable security which should be given or agreed to be given either directly or
indirectly at or before or any time after the marriage and in connection with marriage of
the parties. The giving or taking of property or valuable security must have some
connection with the marriage of the parties.
43. It is also not out of place to mention that in a case when the allegation is against
the committing of an offence coming under the purview of section 304(B) of the Indian
Penal Code the mischief of provision of section 113-B of Indian Evidence Act will come
in force. The said section of section 113-B of the Indian Evidence Act runs as under:
"Section 113-B presumption as to dowry and when the question is whether a
person has committed 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
has caused the dowry death."
44. If the prosecution evidence is considered in the back drop of the fact that the
death of the deceased Barnali Talukdar not a normal one being caused by hanging and
secondly, the question happened within a period of seven years of marriage and as
such, it is necessary to find out whether the evidence on record is sufficient to establish
the other ingredients viz. 3 and 4 under the provision of section 304(B) of the Indian
Penal Code.
45. Here in this case the evidence adduced by the prosecution does not show that
any demand for dowry as defined in section 2 of the Dowry Prohibition Act was made
by the accused. P.W.2 Nila Kanta Barman the father of the deceased, P.W.3 Ambika
Barman the mother of the deceased, P.W.4 Debajani Barman, who is another relative
of the deceased have not whispered in their evidence that the accused had ever
demanded dowry from the deceased Barnali Talukdar after her marriage or soon before
her death. Rather P.W.2 and P.W.3 the parents of the deceased have rather deposed
that their daughter reported them that after marriage she was nither properly treated by
the accused nor proper food was supplied to her. It is also their evidence that their
deceased daughter reported them that she was not allowed to sleep and
contd.17.
17
she was not happy. However, P.W.2 and P.W.3 have more precisely disclosed that their
daughter complained that she was not properly treated by the accused and even in
menstruation course she was allowed to sleep on the floor and she was subjected to
mental torture. However, they have clarified in their cross examination that in their
Assamese community during menstruation period the wife is not allowed to sleep on the
bed with her husbnd and he had not seen that their daughter was allowed to sleep on
the floor. Though the parents of the deceased P.W.2 and P.W.3 have stated that their
daughter was subjected to mental torture but their evidence is not specific and precise
as to under what circumstances their daughter was subjected to mental torture. More
over, though these P.W.2 and P.W.3 have reveled that at the time of menstruation of
their daughter she was allowed to sleep on the floor but under no stress of imagination it
can be a ground of cruelty or physical torture for which the deceased committed suicide
inasmuch as P.W.2 and P.W.3 have disclosed in cross examination that this is a ritual in
the traditional bound Assamese community where the wife is normally not allowed to
share the bed with her husband till menstruation period is over. Therefore, it cannot be
held to be cruelty when the wife is not allowed to sleep on the bed during menstruation
period in the Assamese community alongwith the husband to which the deceased
belonged. Apart from such statements supposed to have been made by the deceased to
P.W.2 and P.W.3 before her death there is no other evidence that deceased was
subjected to cruelty or harassment by the accused or any other relative of the husband
in connection with demand for dowry.
46. Further more, though P.W.2 and P.W.3 have stated in their evidence that their
daughter was not properly treated or proper food was not given to their daughter but
they have admitted in their cross examination that they did not make such statement
before the police.
47. Now turning to the testimony of P.W.7 it appears that she has made a feeble
attempt to bring a semblance of the case under section 304(B) of I.P.C. unsuccessfully
though she has stated in her evidence that when she went to her mother's house and
reported her mother about the condition of her sister Barnali that she was kept by the
accused husband into her room under lock
contd.19.
18
and key then her mother never heard that the deceased reported to her that the
accused would torture Barnali mentally and physically on the allegation that deceased
had maintained relationship with some other men prior to her marriage and her mother
also told her that due to having a black spot on the upper side of abdomen the accused
would suspect her off and on and blamming her that the said spot occurred due to illicit
relation with many other persons prior to her marriage have not been spoken either by
her mother(P.W.3) or her father(P.W.2). That aside, this portion of the evidence of P.W.7
was brought as contradiction with her previous statement under section 161 Cr.P.C.
during her cross examination and the defence proved the contradiction through the
Investigating Officer(P.W.12) who in categorical terms has confirmed that P.W.7 did not
make such statement before him. Hence, the new case as to commission of torture by
the accused on the deceased on suspicion of having her illicit relation prior to the
marriage of the deceased on the basis of a black spot on her stomach sought to be
projected by P.W.7 for the first time in her evidence has been demolished in the cross
examination on proof by the defence as contradiction from the I/O(P.W.12). Hence, the
testimony of P.W.12 is not at all reliable to establish that the deceased was subjected to
cruelty or harassment by the accused even though the death of the deceased was
suicidal one.
48. On the other hand, the evidence of P.W.5,P.W.6, P.W.8, P.W.9, P.W10.and
P.W.11 does not disclose that the accused had strained relation with his wife after
marriage till her death of his wife Barnali at any point of time. Their evidence also
disclose no iota of evidence as to demand of dowry by the accused from the deceased
for which she was subjected to torture or harassment till her death.
49. It is also apparent from the evidence on record that when the deceased
committed suicide the accused who is a Professor in a college had already left to attend
his class and,therefore, it is evident that the accused was not present when the
deceased Barnali committed suicide in her room. Nor is there any suicidal note left by
the deceased as to her commission of suicide to draw presumption as to her death
due to demand of dowry soon before her death.
contd.19.
19
When there is no evidence adduced by the prosecution witnesses which reveals that
the deceased Barnali was subjected to cruelty or any demand of dowry was made
immediately before the death and therefore, in absence of nonfulfilment of all the
ingredients of section 304(B),the presumption oi section 113(B) will not be attracted in
this case.
50. In the reported case of State of Tripura -versus- Dulal Dey, Cri.L.J. 555, the
Hon'ble Gauhati High Court observed that-
"It would not be proper for the court to come to a suspicion against the accused-
respondent unless prosecution evidence connected with the accused with the alleged
offence. If married woman dies in an unnatural circumstance at her matrimonial home
within seven years from her marriage and there are allegation of cruelty and
harassment upon such married woman, for or/in connection with demand for dowry by
the husband or by the relatives of the husband then, obviously court can presume as
dowry death. But when such allegations of cruelty and/or demand for dowry is totally
absent in that case, it would not be proper for treating every death of every woman in
her matrimonial home within seven years, as a dowry death, as the same would be
injustice to the accused/husband and his inmates would send a wrong message to the
society, as the incident may happen at any moment to any person including married
woman in the matrimonial home and she may commit suicide for any other reason, like
a sudden quarrel on account of the fault of the spouse or both or for default of neither of
them, it may be of selfishness,boorishness,callousness and difference opinion on the
part of one of the parties except the reason for cruelty and demand for dowry from the
husband and his relatives."
51. In the case of Himachal Pradesh -versus- Asha Ram, reported in [(2005)13
S.C.C. 0766)], it was held that however, if there is a slightest doubt in the mind of the
court after going through the evidence regarding involvement of the accused for the
offence if he has been tried, then it should be the duty of the court to acquit the accused
of the charge levelled against him.
contd.20.
20
52. Here in this case, what emerges from the above discussion in the light of the
aforesaid citation that the evidence on record is incoherent,inconsistent and
irreconcilable to prove that the deceased Barnali committed suicide by hanging on
account of cruelty and harassment to which she was subjected just prior to her death,
which, in fact are the ingredients of the offence to be led in respect of section 113(B) of
Indian Evidence Act,1972 in order to bring home the guilt against the accused under
section 304(B) of I.P.C.
53. In the case of Durga Prasad and another -versus- State of M.P. [2010
(Cri.L.J.) 3419)] the Hon'ble Apex Court has held citing its own decision in
Biswajit Halder @ Babu Halder reported in 2007 [(A.I.R. S.C.W. 2189)] that in order
to bring a conviction under section 304(B) I.P.C., it will not be sufficient to only,lead
evidence saying that cruelty or harassment has been meted out to the victim, but such
treatment was in connection with the demand for dowry. In our view, the prosecution in
this case has failed, to fully satisfy the requirements of both sections under section
113(B) of the Indian Evidence Act,1872 and section 304(B) of the Indian Penal Code.
54. On summing up the above discussion in the back drop of the cumulative
consideration of the evidence on record, it is patent in the instant case that death of the
deceased Barnali was an unnatural one and her death had taken place within seven
years of her marriage, but the third ingredient that a demand for dowry had been made
soon before her death has not been proved beyond reasonable doubt under section
304(B) of the Indian Penal Code. Hence, the accused is entitled to get the benefit of
doubt.
55. In the result, I am constrained to hold that the accused Bhupen Talukdar is not
guilty under section 304(B) of I.P.C. Accordingly, he is acquitted and set at liberty
forthwith. Bail bond executed by the accused Bhupen Talukdar and the surety shall
remain in force for another six months in pursuance of the provision under section 437-A
Cr.P.C.
56. Let one copy of each of the judgment be sent to the Hon'ble Gauhati High Court
and the learned District Magistrate,Barpeta in the light of the provision under section
365 Cr.P.C.
contd.21.
21
57. Judgment dated,signed and pronounced in the open court on this 21st day of
June,2013.
Dictated and corrected.
Sd/- Sd/-
(P. SAIKIA) (P. SAIKIA)
SESSIONS JUDGE,BARPETA SESSIONS JUDGE,BARPETA.
Typed by:K. Nath,Steno.
contd.22.
22
IN THE COURT OF SESSIONS JUDGE ::::::::::::::::::::::::::::::::::::::BARPETA.
SESSIONS CASE NO. 177 OF 2007.
APPENDIX.
(A)Prosecution Exhibits:`
Ext.1 :Post mortem report.
Ext.1(1) :Sig. of P.W.1 Dr. R.Hamid.
Ext.2 :Ejahar.
Ext.2(1) :Sig. of P.W.2.
Ext.2(1) :Sig. of P.W.1.
Ext.2(2) :Sig. of P.W.12.
Ext. 2(3) :Sig. of Dipak Das.
Ext.3 :Sketch map.
Ext.3(1) :Sg. of P.W.12.
Exty.4 :Seizure list.
Ext.4(1) :Sig. of P.W.12.
Ext.4 :charge sheet.
Ext.5(1) :Sig of P.W.12ketch Map.
Ext.6 :F.I.R.
Ext.6(1) :Endorsement of the then O/C,Dipak Kumar Das.
Ext.7 :Final form of U.D. case No.6/2007.
Ext.7(1) :Sig. of P.W.12.
Ext.8 :Challan of sending dead body for post mortem
Ext.8(1) :Signature of P.W.
Ext.9 :Inquest report.
Ext.9(1) :Sig. of P.W.13.
(B)Defence Exhibits: ...Nil
(C)Exhibits produced by witnesses: ...Nil.
(D)Court Exhibits: ...Nil.
contd.23.
23
(E)Prosecution witnesses:
P.W.1 :Dr. Rejaul Hamid, Medical & Health Officer-I, Barpeta Civil
Hospital.
P.W.2 :Nila Kanta Barman.
P.W.3 :Smt. Ambika Barman.
P.W.4 :Smti. Debajani Barman.
P.W.5 :Smti. Rukmini Talukdar.
P.W.6 :Upen Das.
P.W.7 :Smti. Sashi Prabha Kalita.
P.W.8 :Nila Kanta Ramchiary.
P.W.9 :Hareswar Kalita.
P.W.10 :Debendra Nath Sarma, Principal, Bajali College,Pathsala.
P.W.11 :Binita Bora Dev Choudhury.
P.W.12 :Arun Kumar Borah, S.I. of police, 2nd Officer in Dhubri P.S.
P.W.13 :Sri Dipankar Das,Circle Officer at Bokakhat.
(F)Defence witnesses: ...Nil.
(G)Court witnesses:
C.W.1 :Dr. R. Chaliha, Professor and Head, Forensic
Medicine,G.M.C.H.,Guwahati.
Sd/-
P. SAIKIA) SESIONS JUDGE,BARPETA.