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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.