Sri Pakhindra Bezbaruah vs The State Of Assam And Anr
2022 Latest Caselaw 1158 Gua

                                                                          Page No.# 1/19

GAHC010032102016




                           THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : Crl.A./318/2016

           SRI PAKHINDRA BEZBARUAH
           S/O DHIRESWAR BEZBARUAH, RO VILL. DOKOHA, P.S.NALBARI,
           DIST.NALBARI, ASSAM.


           VERSUS

           THE STATE OF ASSAM and ANR

           2:PURNIMA BEZBARUAH
           W/O DULAL BEZBARUAH
            R/O TARAMAHA
            P.S.NALBARI
            DIST. NALBARI
           ASSAM
            PIN 78134

Advocate for the Petitioner : MR.P K DAS
Advocate for the Respondent :

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MRS. JUSTICE MALASRI NANDI

JUDGMENT & ORDER (CAV) Date : 01-04-2022

(Suman Shyam, J)

Heard Mr. N. Majahan, learned counsel for the appellant. We have also heard Ms. S.

Jahan, learned Addl. P.P. Assam appearing for the State.

Page No.# 2/19

2. By the impugned judgment dated 16-06-2016, passed by the learned Sessions

Judge, Nalbari in Sessions Case No. 13/2013, the sole appellant was convicted under

Section 302/304-B/498-A of the IPC and sentenced to undergo rigorous imprisonment for

life and also to pay fine of Rs. 5,000/- for committing offence punishable under Section

302 IPC. The accused was sentenced to undergo rigorous imprisonment for 07 years for

committing offence under Section 304-B of the IPC and to undergo simple imprisonment

for 02 years and to pay fine of Rs. 1,000/- for committing offence under Section 498-A

IPC. Aggrieved thereby, the present appeal has been filed.

3. The prosecution case, in a nutshell, is that the accused person had demanded

dowry and tortured the victim. Eventually, they had committed the murder of the victim

and thereafter hanged the dead body from a beam in the ceiling. On 31-08-2010, Smti.

Purnima Bezbaruah, i.e. the mother of the victim had lodged an ejahar with the Officer-

in-Charge, Nalbari Police Station informing him about the incident. In the said FIR five

persons including the present appellant and his close relatives had been shown as the

accused persons. On the basis of the ejahar dated 31-08-2010, Nalbari Police Station

Case No. 422/2010 was registered under Section 304-B of the IPC and the matter was

taken up for investigation. On completion of the investigation, the Investigating Officer

(I/O) had submitted charge-sheet under Section 498-A/ 306 IPC against all the five

accused persons. Since the charge brought against the accused persons was triable by

the court of Sessions Judge, hence, the case was committed to the court of learned

Sessions Judge, Nalbari. Upon going through the materials on record, charge under

Section 498-A/304-B/302/34 IPC was framed against all the five persons, viz. 1. Sri Page No.# 3/19

Pakhindra Bezbaruah (appellant), 2. Sri Dinesh Bezbaruah, 3. Sri Dhireswar Bezbaruah, 4.

Sri Mohan Das and 5. Smti. Khiroda Bezbaruah. The accused persons had pleaded not

guilty and claimed to be tried. As such, the matter went for trial.

4. There is no direct evidence in this case and the prosecution case is entirely based

on circumstantial evidence. In order to prove the charge brought against the accused

persons, the prosecution had examined as many as nine witnesses including the doctor

who had conducted the postmortem examination (PW-8) and the I/O who had conducted

the investigation (PW-9). After recording the evidence adduced by the prosecution side,

the statements of the accused persons were recorded under Section 313 Cr.P.C. The

defense case was one of total denial. However, the defense side did not adduce any

evidence. On conclusion of trial, the learned Session Judge had held that the appellant

Pakhindra Bezbaruah was guilty of the charges framed under Section 302/304-B/498-A of

the IPC and sentenced him as aforesaid. However, the remaining four accused persons,

viz. 1. Sri Dinesh Bezbaruah, 2. Sri Dhireswar Bezbaruah, 3. Sri Mohan Das and 4. Smti.

Khiroda Bezbaruah were acquitted due to want of evidence against them.

5. Mr. Mahajan, learned counsel for the appellant has argued that there is no

evidence in this case so as to prove the charge brought against the accused/ appellant

under Section 302 IPC or under Section 304-B of the IPC. By pointing out that the

postmortem report does not indicate the status of the hyoid bone, Mr. Mahajan has

argued that there is considerable doubt as to whether, it is a case of suicidal hanging or

death by strangulation, as opined by the doctor. According to Mr. Mahajan, in the absence

of corroborating evidence, it would be highly unsafe to convict the appellant on the basis Page No.# 4/19

of the medical evidence.

6. By referring to a decision of the Supreme Court rendered in the case of Surinder

Pal Jain Vs. Delhi Administration, reported in 1993 Supp (3) SCC 681 as well as a

subsequent decision of the Apex Court rendered in the case of State of Rajasthan Vs.

Ramanand, reported in (2017) 5 SCC 695, Mr. Mahajan has argued that the

prosecution has failed to establish the motive behind the crime. Since motive is an

important factor for presuming culpability of an accused in a case based on circumstantial

evidence, failure to establish the motive, according to the learned counsel, would have

fatal consequences on the prosecution case. Mr. Mahajan has further argued that failure

on the part of the accused to explain the circumstances leading to the death of the

deceased cannot alone be held to be conclusive so as to convict him. In support of his

above argument, Mr. Mahajan has relied upon a decision of the Supreme Court in the

case of Subramaniam Vs. State of T.N. & Anr. reported in (2009) 14 SCC 415. By

relying upon Durga Prasad & Anr. Vs. State of M.P. reported in (2010) 9 SCC 73 as

well as Baijnath & Ors. Vs. State of M.P. reported in (2017) 1 SCC 101 the counsel

for the appellant has argued that the prosecution has failed to establish the ingredients of

section 304-B of the IPC so as to prove the charge of dowry death against the appellant.

7. Responding to the above, Ms. S. Jahan, learned Addl. P.P. Assam has argued that

there is evidence to show that there were dowry demands by the accused through his

deceased wife soon after the marriage and the same continued until a day prior to the

incident. The victim was found hanging inside the bedroom of the deceased under

mysterious circumstances and there was no proper explanation from the accused as to Page No.# 5/19

the circumstances under which the deceased had died. It is also the submission of the

learned Addl. P.P. that homicidal death of the deceased is well established from the

medical evidence. Since the incident happened in the confines of the house of the

appellant but the accused has failed to offer plausible explanation as to the circumstances

under which the deceased had died, hence, the learned court below has rightly held that

all the links in the chain of circumstances has been established so as to prove the charge

brought against the accused under Section 302 IPC.

8. By referring to the evidence available on record, Ms. Jahan has further argued that

even the charge brought under Section 304-B of the IPC stood fully established against

the accused. Therefore, viewed from any angle, the impugned judgment does not call any

interference by this Court.

9. Contending that it would be permissible for the court to frame charge against an

accused under Section 302/ 304-B of the IPC and convict the accused under anyone of

the said provisions if the evidence is available on record, Ms. Jahan has argued that in the

instant case, since the charge under Section 302 IPC has been properly established, the

conviction of the appellant under Section 304-B of the IPC can be ignored. Alternately,

this Court can examine as to whether the charge brought under Section 304-B of the IPC

has been proved and accordingly, uphold the conviction of the appellant in respect of the

said charge alone. In support of her above arguments Ms. Jahan has relied upon a

decision of the Hydrabad High Court rendered in the case of Shaikh Jani Pasha & Ors.

Vs. State of Andhra Pradesh reported in 2017 (2) ALD (Crl.) 1034 (AP).

10. We have considered the submissions made by the learned counsel for the parties Page No.# 6/19

and have also gone through the materials available on record. At the outset we deem it

appropriate to point out herein that charges were framed against the appellant under

Sections 302 and 304-B read with 498(A) of the IPC and the learned Sessions Judge has

convicted the appellant in respect of all the charges.

11. The complaint dated 31-08-2010 filed by the mother of the victim mentions that

her daughter Pompi Bezbaruah got married to the accused No. 1 Pakhindra Bezbaruah as

per hindu rites about five years back. A few days after the marriage the members of the

family of the accused No. 1 (appellant herein) started torturing her daughter in various

ways demanding dowry. On 24-08-2010, Pompi Bezbaruah was sent to her parental home

so as to bring Rs. 10,000/- as dowry. Being helpless Pompi Bezbaruah went to her

parental home and told the members of the family about the demand. After hearing the

same, they gave her Rs. 500/- and sent Pompi back to her matrimonial home on 25-08-

2010. At around 09:00 pm in the evening of 25-08-2010, the accused persons got drunk

in the house of Dhireswar Bezbaruah and when Pompi went there to call the accused No.

1 Pakhindra Bezbaruah, the accused persons, in a body, assaulted her to death.

Thereafter, they took her dead body to Pakhindra Bezbaruah's house and kept it hanging

from a beam of the house with a 'chadar' (bed sheet).

12. The first witness examined by the prosecution side is Sri Dulal Bezbaruah (PW-1)

who is the father of the deceased. PW-1 has deposed that the deceased was his daughter

and she got married to the appellant about five years prior to the incident. PW-1 has

stated that the accused persons did not demand dowry prior to the marriage but after the

marriage, they started demanding Godrej (steel almirah), showcase, gold ring etc. Since Page No.# 7/19

he had failed to meet their demand the accused had assaulted Pompi. About one year

after the marriage the accused persons had assaulted Pompi and sent her to their house.

The accused Pakhindra sold the gold earrings, which he had given to his daughter at the

time of her marriage and pocketed the money. Prior to the incident, an amount of Rs.

2,000/- was taken from him for treatment of the mother of the accused. Pompi stayed at

his home for 15 days. Thereafter, accused Pakhindra came to his home and admitted his

fault and took Pompi along with him. One year later, Pompi was again sent to his house

on 24-08-2010 to take Rs. 10,000/- from him. Since he did not have any money, he gave

Rs. 500/- to Pompi and sent her back. In the evening, Pakhindra came home and

assaulted Pompi since she had not taken Rs. 10,000/-. On 25-08-2010, the accused

persons, in a body, killed Pompi and kept her body hanging with a 'chadar'. He could learn

about the same from the villagers. Then, he had sent his daughter and wife there and he

went on the following day, i.e. on 26-08-2010 and saw the dead body hanging. On

reaching there on 26-08-2010, when he asked Pakhindra's mother about the incident, she

told him that all of them had killed and kept the body hanging. Later on, Police came

there and the SDC held inquest on the dead body in their presence. Exhibit- 1 was the

inquest report and Exhibit- 1(2) was his signature. This witness has stated that after the

postmortem examination was over the dead body was cremated but the accused persons

were not present during the cremation.

13. During his cross-examination PW-1 has stated that Pakhindra and Pompi used to

stay in a separate house from her in-laws having a separate dining arrangement.

Pakhindra started living separately three years after his marriage. Prior to the incident, Page No.# 8/19

there was dispute between Pakhindra and Pompi but Pompi had good rapport with

Pakhindra's parents, siblings and other relatives. The quarrel of Pompi was only with

Pakhindra. PW-1 has also stated that Pakhindra himself did not demand anything from

him but be demanded money through his daughter only. This witness has further stated

that he did not see Pakhindra beating Pompi but he denied the suggestion that Pompi

hanged herself since he had not given her Rs. 10,000/-. The witness has further stated

that he had come to know about the incident from Gajen Bezbaruah who had also

informed the matter to the inmates of his father-in-law's house over phone. PW-1 had

replied that he did not state before the Police that showcase, Godrej (steel almirah) etc.

were demanded nor did he tell the Police that the money which the accused had earned

by selling the earrings had been pocketed by him. This witness had, however, explained

that as the Police did not question him he did not tell them that Pakhindra's mother told

him that all of the accused persons had killed Pompi. PW-1 has admitted that accused

persons had filed a cross case against them.

14. PW-2 Smti. Purnima Bezbaruah is the mother of the victim and the informant in

this case. In her deposition this witness has stated that the marital life of her daughter

and accused Pakhindra was peaceful till about 2/3 years after their marriage. Thereafter,

the accused persons started demanding articles such as gold ornaments, steel almirah,

showcase etc. and her daughter Pompi used to inform her that her husband and the

family members used to demand the said articles. On 24-08-2010, her daughter Pompi

came to their house and informed that her husband has demanded Rs. 10,000/-. They

paid Rs. 500/- only to her daughter to handover the same to her husband. On the next Page No.# 9/19

day, at around 03:00 am, her brother Jiten Bezbaruah came to their house and told that

something wrong had happened to Pompi and asked them to visit the house of Pompi.

She, along with her brother Jiten Bezbaruah, directly went to the Police Station, i.e.

Kamarkuchi Outpost and found that some persons from village Dokuha were present

there. She has stated that the house of the accused persons is situated at village Dokuha.

From those villagers they came to know that on the previous night a feast was held in the

house of the accused persons and Pompi was found hanging. Then they came to the

house of the accused persons and found Pompi hanging from the ceiling. About five days

thereafter, she went to the court of Chief Judicial Magistrate, Nalbari and filed a complaint

narrating the occurrence. PW-2 has proved the complaint Exhibit- 2 by identifying her

signatures therein as Exhibit- 2(1) and 2(2). During cross-examination PW-2 has stated

that she came to know from Atul Bezbaruah that a feast was held in the house of the

accused persons on the previous night of the occurrence. She has, however, admitted

that it is not mentioned in the complaint (Exhibit-2) that the accused persons had

demanded gold ornaments, steel almirah, showcase nor did she tell the same to the

Police while recording her statement.

15. PW-3 Sri Madan Bezbaruah is a co-villager and he knew all the accused persons as

well as the deceased. PW-3 has deposed that after the marriage Pompi lived with her

husband Pakhindra in village Dokuha and they were blessed with a child. He knew

nothing about the occurrence. Cross-examination of this witness was declined by the

defense side.

15. PW-4 Mantu Haloi is another neighbour of the accused persons and he has Page No.# 10/19

deposed that on the night of the occurrence, he was at his residence. At around 11:00

pm he had heard a 'hulla' coming from the side of Pakhindra Bezbaruah's house. He

rushed to the house of the accused and found that his wife, i.e. the deceased Pompi

Bezbaruah was hanging from the beam of the roof.

16. PW-5 Paresh Kalita is another neighbour of the accused and he has also deposed

before the court that on the night of the occurrence, at around 10:30 pm, he was at his

home. He heard accused Dhireswar Bezbaruah crying by the side of the road near his

house. He came out and learnt that Pompi Bezbaruah had committed suicide.

17. Sri Debaru Bezbaruah was examined as PW-6. He is also a native of village

Dokuha. PW-6 has stated that in the morning, after hearing from the people that Pompi

had died, he went to the place of occurrence and came to know that Pompi died by

hanging herself from the tin shed in the house of the accused. The Magistrate held

inquest on the dead body and Exhibit-1 was the inquest report wherein, he had put his

signature. During his cross-examination, the witness has stated that he saw the dead

body from the road but did not go near the tin shed belonging to the accused Pakhindra.

18. PW-7 Sri Abhiram Talukdar was the Government Gaonburah (Village headman) of

village Dokuha. He is also the inquest witness. PW-7 has stated that on 26-08-2010, the

Circle Officer-cum-Executive Magistrate of Barbhag Revenue Circle had held inquest on

the dead body of Pompi Bezbaruah in the house of the accused Pakhindra Bezbaruah. At

the time of holding the inquest, he was present there and the Exhibit-1 is the inquest

report which bears his signature. During cross-examination the witness has stated that he

did not see any injury on the dead body.

Page No.# 11/19

19. Dr. Lalit Chandra Das (PW-8) was the Sr. Medical & Health Officer on duty at the

SMK Civil Hospital, Nalbari on 26-10-2010 when the body of the victim was brought there

for conducting postmortem examination. The PW-8 has proved the postmortem report

Exhibit- 3 by identifying his signature therein. According to Ext-3 the following injuries

were found on the dead body:

"An young female dead body is examined. Mouth and eyes closed. Nasal and mouth bleeding present which cannot be washed with water. Face congested. Ligature mark round the neck present below thyroid cartilage. Abrasion and bruises round about the ligature mark. On dissection of the ligature mark ecchymosed subcuticular areolar tissue, fracture of laryax and tracheal rings. Laceration carotid vessel left side dark blood clot detected on dissection cannot be washed with water. Mouth, pharynx, oesophagus congested. Other parts are remained healthy."

PW- 8 has opined that cause of death was due to strangulation which was ante-

mortem in nature. In his cross-examination, the PW-8 has also stated that strangulation is

homicidal and approximate time of death is not mentioned in his report. Ligature mark

was found continuous round the neck.

20. PW- 9 S.I. Sirajul Haque was the In-Charge on duty at the Kumarikata O.P. coming

under the Nalbari Police Station on 26-08-2010. PW-9 has deposed that on that day a

U.D. Case was registered vide Nalbari P.S. U.D. Case No. 25/2010 and the O/C, Nalbari

P.S. had directed him to investigate the case. Based on the U.D. case registered vide G.D.

Entry No. 408 dated 26-08-2010,he had proceeded to the place of occurrence and

recorded the statements of the witnesses. The inquest over the dead body was held by

the Executive Magistrate and the dead body of Pompi Bezbaruah was sent for

postmortem examination to the S.M.K. Civil Hospital at Nalbari. The I/O has further stated Page No.# 12/19

that he drew a sketch map of the place of occurrence. The formal ejahar was received by

the O/C, Nalbari P.S. from Purnima Bezbaruah (PW-2) through the court and the court

had directed the O/C to investigate the case and submit F.F. of the case on 31-08-2010.

On receipt of the FIR, the O/C, Nalbari P.S. registered a case under Section 304-B of the

IPC as Nalbari P.S. Case No. 422/2010 and entrusted him with the investigation. Upon

completion of investigation, charge-sheet was submitted against the accused persons

under Section 498-A/ 306 IPC. The I/O has also stated that he had arrested accused

Pakhindra Bezbaruah but accused Mohan Das got anticipatory bail from the High Court.

During his cross-examination, the I/O has stated that Dulal Bezbaruah, i.e. the father of

the deceased had lodged a FIR before the Police on 26-08-2010 wherein the names of

the accused persons did not find place. In that ejahar it was mentioned that the

informant came to know that his daughter Pompi was found hanging. On the basis of the

said information, U.D. case was registered

21. From a careful analysis of the evidence brought on record we find that the Doctor

(PW-8) has opined that the death of the deceased was due to strangulation and was

homicidal in nature. The said opinion is based on the findings in the postmortem report

(Exhibit-3). The opinion of the PW-8 was not specifically assailed by the defense side

during his cross-examination. Therefore, it can be assumed that the homicidal death of

the deceased Pompi stood established from the medical evidence brought on record.

22. From the evidence of PW-1, it has come out that the incident took place within five

years of the marriage between the accused Pakhindra Bezbaruah and the deceased Pompi

Bezbaruah. There is evidence on record also to show that within 2/3 years of their Page No.# 13/19

marriage, the accused person and his family members started making demands for dowry

in the form of Godrej alimrah, showcase etc. besides asking for money. PW-1 has clarified

that the accused used to demand money through his wife Pompi. From the evidene of

PW-1 it has further come out that on 24-08-2010, his daughter Pompi came home and

asked for Rs. 10,000/- on being demanded by her husband i.e. the accused but since he

did not have enough money, he gave her only Rs. 500/- and sent her back. This witness

has also stated that in the evening, the accused Pakhindra came home and assaulted

Pompi as she could not bring Rs. 10,000/-. It was on the next day, i.e. on 25-08-2010,

late in the evening, that the victim was found hanging inside the house of the accused.

23. With a view to examine the submission of Mr. Mahajan that PW-1 did not make

such statement before the I/O, we have gone through the case diary and find that in his

statement recorded under Section 161 Cr.P.C., this witness has in fact stated before the

I/O that there was demand for dowry from the accused and his family members after the

marriage took place and they had tortured their daughter on such count. However, it is

correct that the PW-1 did not specifically mention about the almirah (Godrej), showcase

etc. being demanded by the accused persons.

24. The evidence adduced by the PW-1 as regards demand for money and other

articles by the accused through their daughter Pompi from time to time and the torture

meted out to her has been duly corroborated by the PW-2 who has also deposed that on

24-08-2010 Pompi came to their house and told her that her husband demanded a sum

of Rs. 10,000/-. They paid Rs. 500/- only to be handed over to the husband. This witness

has also stated before the I/O that there was dowry demand from the accused person Page No.# 14/19

and her in-law's family soon after the marriage although the details of such demand were

not furnished to the I/O.

25. If the evidence of PW-1 and 2 are read in conjunction, then what transpires is that

before the marriage took place and about two years after the marriage between the

appellant/accused and the deceased, there was no dowry demand coming from the

accused or his family members. But after 2/3 years of their marriage, the accused person,

viz. Pakhindra Bezbaruah had started making demands for some articles and/ or money

from the PW- 1 and 2 through his wife Pompi. When such demands were not met, the

accused used to torture his wife.

26. The evidence on record further establishes that the accused Pakhindar used to

initially live with his other family members in the same household. But 2/3 years after his

marriage, he had moved into a separate house along with his wife Pompi and had started

living in a separate household. Evidence adduced by PWs- 1 and 2 suggests that it was

around that time the demand of dowry etc. started coming from him.

27. It is correct that apart from PW-1 and 2 there is no other witness to the dowry

demand coming from the accused. However, it is to be borne in mind being the parents of

the deceased, it is the PWs 1 and 2 who be the first persons who would be aware of such

demands coming from the accused.

28. Insofar as the failure on the part of the PW-1 and 2 to give specific particulars of

the nature of demands made by the accused while recording their statements before the

I/O is concerned, we are of the view that failure to mention such details before the I/O Page No.# 15/19

cannot be treated as material improvement in the testimony of these witnesses. The PWs-

1 and 2 have spoken in one voice before the I/O that there was demand for dowry

coming from the accused persons. Their statements were recorded by the I/O soon after

the occurrence and therefore, it is quite natural that just having suffered the loss of their

daughter the witnesses might not be in a proper mental state so as to disclose full

particulars of dowry demand to the I/O. What is to be noted here-in is that there is no

material contradiction in their testimony recorded before the court nor could the defense

side prove any such contradiction in accordance with law. Moreover, we do not find any

justifiable ground to presume that the parents of the victim would falsely implicate their

son-in-law for committing the murder of their daughter by cooking up a false story of

dowry demand, more so, in view of the fact that the accused has a minor child born out

of his marriage with the deceased. For the above reason, we are of the view that the

evidence adduced by PWs-1 and 2 corroborates the version of each other, is trustworthy

and therefore, has been rightly relied upon by the court below.

29. Section 304-B of the IPC deals with the offences of dowry death which is quoted

here-in-below for ready reference.

"304B. Dowry death. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

Page No.# 16/19

30. The death of the deceased in this case did not occur under normal circumstances.

From the evidence adduced by the prosecution witnesses, it has been firmly established

that the incident took place within five years of the marriage between the accused

Pakhindra Bezbaruah and deceased Pompi Bezbaruah. The victim had died under

mysterious circumstances. There was demand for dowry made by the accused Pakindra

from time to time through his wife i.e. the deceased and the accused also used to torture

the deceased in connection with such dowry demand. As a matter of fact, the evidence

adduced by the PWs 1 and 2 clearly show that there was demand for dowry in the form

of Rs 10,000/- made by the accused Pakindra even on the previous day of the incident

and on her failure to get that amount from her parents, she was assaulted by the

accused. From the evidence available on record, it is clear that the torture meted out to

the deceased was soon before her death and the same was also in connection with the

dowry demand. In such view of the matter, we are of the opinion that all the ingredients

of sections 304-B/498(A) of the IPC has been cogently established by the prosecution. By

the sane analogy, we also hold that it has also been established that the victim was

subjected to cruelty in connection with dowry demands made by her husband.

31. Section 113-B of the Evidence Act raises a presumption as regards dowry death.

Section 113-B reads as follows:

"113B. Presumption as to dowry death. - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."

Page No.# 17/19

32. In view of the provisions of Section 113-B of the Evidence Act once the ingredients

of Section 304-B of IPC is established there would arise a presumption as to the

culpability of the accused. In this case since, the accused Pakhindra was living in a

separate household with his deceased wife and minor child, it was incumbent upon him to

displace the presumption of guilt under Section 304-B of the IPC. However, from the

materials on record we find that the accused has failed to displace such presumption

arising against him.

33. Coming to the next question as to whether the charge brought against the accused

under Section 302 IPC has been proved, we have noticed that on the evening of the

incident a feast took place in the house of parents of accused Pakhindra which is situated

at a distance of about 50 ft. The house of Pakhindra and his father Dhireswar was

separated by the house of Atul Bezbaruah who has deposed that he was aware of the

feast taking place on that night. It appears from the evidence on record that Pakhindra

had participated in that feast. Even the PW-2 has said that a feast had taken place in the

house of the accused persons hinting at the family members of accused Pakhindra

Bezbaruah. Later in the evening, the deceased was found hanging from a beam in the

house of accused Pakhindra. There is, however, no evidence to show that Pakhindra was

present in his own house soon before the incident took place nor is there any evidence to

show that the accused and the deceased were last seen together in the place of

occurrence. Since the prosecution has failed to establish the last seen together

circumstance and in the absence of any other evidence to show that the accused

Pakhindra Bezbaruah was present in the house on the evening when the deceased was Page No.# 18/19

found hanging from the ceiling, it cannot be said that there was any burden upon the

accused to offer plausible explanation as to the circumstances under which his wife had

died. We therefore, find force in the submission of Mr. Mahajan that the links in the chain

of circumstances so as to prove the guilt of the accused under Section 302 IPC could not

be established by the prosecution by adducing cogent evidence. In other words, we are of

the considered opinion that the prosecution has failed to prove the charge brought

against the accused person under Section 302 of the IPC beyond reasonable doubt by

adducing cogent evidence. The accused Pakhindra is therefore, acquitted of the charge

framed under Section 302 of the IPC. However, his conviction under Section 304-B read

with Section 498-A of the IPC stands affirmed.

34. In view of our conclusion, as reflected here-in-above, the question as to whether

the accused could have been convicted both under Section 302 and 304-B of the IPC in

the same proceeding has become a mere issue of academic importance in this case and

therefore, the said issue is kept open for a just decision in an appropriate proceeding.

For the reasons stated here-in-above, we set aside the conviction of the appellant

under Section 302 of the IPC and the appellant stands acquitted in respect of the

aforesaid charge. Consequently, sentence of rigorous imprisonment for life and imposition

of fine of Rs. 5,000/- for committing the offence under Section 302 IPC is also set aside.

However, the conviction of the appellant under Section 304-B of the IPC read with

Section 498-A IPC as well as the sentence awarded there-under stands affirmed.

Appeal stands partly allowed.

Page No.# 19/19

Send back the LCR.

JUDGE JUDGE GS

Comparing Assistant