Gauhati High Court
Crl.A./47/2013 on 2 April, 2025
GAHC010004232013
2025:GAU-AS:3928
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL NO.47 OF 2013
Sri Maheswar Mali
S/o- Late Saona Ram Mali
R/o- Village Issadgharia
P.O- Kaniha
P.S- Rongia
District- Kamrup, Assam.
.......Appellant
-Versus-
1. The State of Assam,
Represented by the Public
Prosecutor, Gauhati High Court.
2. Dr. Dhirendra Kr. Das
S/o- Late Mathura Mohan Das
3. Smti. Aikon Das
W/o- Late Mathura Mohan Das
4. Smti Madhabi Das
D/o- Late Mathura Mohan Das
Respondent Nos. 2, 3 and 4 are
resident of village- Na Borka,
P.S. Rangia, District: Kamrup,
Assam.
Page 1 of 16
.......Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellant : Mr. T. J. Mahanta, Senior Advocate,
assisted by Mr. T. Gogoi, Advocate.
For the Respondent(s) : Mr. P. S. Lahkar, Additional Public
Prosecutor, Assam.
: Mr. B. M. Choudhury, Advocate for
respondent Nos. 2, 3 & 4.
Date of Hearing : 02.04.2025.
Date of Judgment : 02.04.2025.
JUDGMENT & ORDER (ORAL)
Heard Mr. T. J. Mahanta, learned Senior Counsel
assisted by Mr. T. Gogoi, learned Counsel for the appellant.
Also heard Mr. P. S. Lahkar, learned Additional Public
Prosecutor, Assam for the State respondent and Mr. B. M.
Choudhury, learned Counsel for the private respondents.
2. This appeal is preferred under Section 372 of the
Code of Criminal Procedure, 1973 (hereinafter referred to
as "Cr.P.C.") against the judgment & order dated
13.12.2012 passed by the learned Additional Session
Judge, (F.T.C.), Kamrup, Rangia (hereinafter referred to as
the "trial Court") in Session Case No. 38(K)/2007, whereby
the accused persons/private respondents were acquitted
from the charge under Section 498(A)/306 of the Indian
Penal Code (hereinafter referred to as "IPC").
3. The brief facts of the case are that on 07.09.2004
the appellant lodged an FIR before the jurisdictional police
station alleging inter alia that on 11.02.2004 his daughter
Smti. Mintu Das Deka (hereinafter referred to as
"deceased") was married to the accused
person/respondent No.2 and after a few days of marriage
she was subjected to torture by the accused
persons/private respondents. It was further alleged that
she was pregnant, however, the accused/respondent No.2
was forcing her to terminate the pregnancy, which she
refused. It is further alleged that on 06.09.2004 the
deceased died because of burn injury.
4. Accordingly, an FIR was registered as Rangia P.S.
Case No.336/2004, under Section 304(B) of the IPC
corresponding G.R. Case No. 685/2004. After the
investigation was completed, the Investigating Officer
submitted Charge-sheet against the accused
persons/private respondents under Section 304 (B) of IPC.
Accordingly, the matter was committed to the trial Court
whereafter, the trial Court framed charge against the
accused persons/private respondents under Section
498(A)/306 of the IPC.
5. The prosecution examined as many as 12(twelve)
witnesses in support of their case, whereas the accused
persons/private respondents examined 2(two) witnesses in
their defence.
6. Upon conclusion of the trial, the trial Court
acquitted the accused persons/private respondents by
judgment & order dated 13.12.2012 from the aforesaid
charges. Situated thus, the present appeal has been
preferred.
7. Mr. T. J. Mahanta, learned Senior Counsel for the
appellant submits that under Section 113(A) of the Indian
Evidence Act, 1972 (hereinafter referred to as "Evidence
Act"), in the event a married woman committed suicide
within a period of 7(seven) years of her marriage, it shall
be presumed that her husband has abated her to commit
suicide. He further submits that it is for the accused to
rebut such presumption by adducing cogent evidence. He
accordingly, submits that since the aforesaid presumption
has not been rebutted by the accused persons/private
respondents by adducing cogent evidence, the judgment &
order of the trial Court acquitting the accused persons from
the charged offence is palpably and manifestly erroneous.
8. Per contra Mr. B. M. Choudhury, learned Counsel
for the private respondents submits that the judgment &
order of the trial Court being based on legal evidence, no
interference from this Court is warranted. He further
submits that the trial Court upon considering the evidence
and other material on record and analyzing the same
having taken a probable view in the matter, the same
ought not to be disturbed by this Court under Section 372
of Cr.P.C.
9. I have given my prudent considerations to the
arguments advanced by the learned Counsels of both
parties and also perused the material available on record.
10. It appears that though the prosecution witnesses
especially PW-1, PW-2, PW-3, PW-5 and PW-8, who
are the parents, sister and brothers of the deceased,
deposed that the accused persons/private respondents
demanded a Maruti Car and Rs. 1,00,000/- (rupees one
lakh) from the deceased, and upon the same being not
fulfilled subjected her to cruelty. However, upon perusal of
the evidence of the Investigating Officer (PW-10), it
appears that the Investigating Officer clarified during
cross-examination that when those witnesses were
examined under Section 161 of Cr.P.C., they did not
mention that the accused persons/private respondents
demanded a Maruti Car and Rs. 1,00,000/- (rupees one
lakh) as dowry and due to non fulfillment of the said
demand, the accused persons/private respondents
subjected the deceased to cruelty. It further appears that
the other prosecution witnesses i.e., PW-4, PW-6 and
PW-7 who are the neighbours and has visiting terms with
the accused persons/private respondents has clearly
clarified during cross-examination that the relationship
between the deceased and the accused persons/private
respondents was good.
11. It further appears that the DW-1 who is a
Consultant Gynecologist of Borthakur Clinic, Guwahati has
deposed that she was examining the deceased regularly
upon being brought by the accused/respondent No.2, while
she was pregnant. It further appears from the testimony of
DW-2, who is a Psychiatrist, that he was treating the
deceased since a considerable long time as she was
mentally ill. It further appears from the testimony of DW-2
that the deceased was suffering from Bipolar Affective
Disorder Mania. It further appears that relevant documents
as regards prescription, hospitalization and discharge
thereof in connection to the said mental illness has also
been exhibited and proved by the aforesaid DW-2.
12. It further appears that PW-1, the informant/father
of the deceased admitted Exhibit-D which is the
prescription dated 04.02.2004 issued by DW-2 and also
admitted that on 28.05.2004, the deceased was admitted
in Style Guwahati Psychiatric Hospital and discharged on
10.06.2004. PW-1 also admitted Exhibit-E, which is the
discharge certificate issued by the said hospital. It appears
that the trial Court after analyzing the evidence on record
has held the accused persons/private respondents not
guilty of the offence charged.
13. Apt to reproduce the operating portion of the
aforesaid judgment of the trial Court, which is hereunder:
"DW 1 Dr. Aina Borthakur, a Consultant
Gynecologist of Borthakur Clinic, Guwahati has
deposed that she knows accused Dr. Dhiren Das.
On 14.6.04, accused Dr. Das brought his wife
Mintu Das for Antenatal check up (pregnancy).
Again on 1.8.04, accused brought Mintu Das, the
deceased for check up. She examined her and
prescribed medicine and also advised to take
proper diet. Ext. F is the prescription issued by her.
She has stated that on 1.8.04 pregnancy was 24
weeks. In cross she has stated that she examined
Mintu Das at Borthakur Clinic but Ext. F is not on
the pad of Borthakur Clinic. She has stated that at
the time of examination mental condition of Mintu
Das was good.
DW Dr. Pankaj Lochan Sarma has deposed
that he took MBBS Degree in the 1981. In the year
1986, he took diploma in Psychological Medicine
from Central Institute of Psychiatry, Bangalore.
And M.D. Degree in the year 1988 from NIMHANS,
Bangalore. He is a private practitioner of
psychiatry Department. In 1994 he started a clinic
at Panjabari, Guwahati in the name and style
Guwahati Psychiatric Hospital. On 4.2.2004, he
has a prescription Ext. D in the name of Mintu
Deka, Ext. D(1) is his signature. After examination
he found that Mintu Deka was suffering from
Bipolar affective disorder mania. This is mental
illness. On 28.5.04 Mintu Das was admitted in his
hospital and she was discharged on 10.6.04. Ext.
E is the discharge certificate of his hospital. She
was suffering from the same illness which was
found on 4.2.04. On 26.6.04 Mintu Das again came
for check up. After examination he advised her to
continue the medicine which was prescribed at the
time of discharge and came after one month. On
30.7.04 Mintu Das came for advice and advised to
continue the same medicine and advised to take
Fluoxetine for depression. Ext. G is the prescription
in the name of Mintu Das issued on 30.7.04. In
cross, he has stated that at the time of admission
in the hospital Mintu Das told him that she is
pregnant. He has admitted that Ext. D is in his
Private Pad. In Ext. D he has not mentioned the age
of Mintu Das. He has also not mentioned the
address and name of guardian.
He has denied that Mintu Das who was
treated by him is not the same Mintu Das of this
case. He has stated that generally a woman wants
to see her baby. He has denied that Mintu Das
who was treated by him is not the wife of Dr.
Dhiren Das. Title of Mintu Das was Deka before
marriage. In connective with the treatment to Mintu
Das he came to contact with accused Dr. Dhiren
Das.
Now, let me appreciate the evidence of Star
witnesses namely PW 1, PW 2, PW 3, PW 5 and
PW 8. All these witnesses are parents and sisters
and brother of the deceased. The 10 (PW 10) In his
cross examination stated that during examination
of these witnesses u/s 161 of Cr.p.c. they had not
told him that accused persons demanded one
Maruti Car and Rs. one lac as dowry and non
fulfillment of the said demand the accused persons
subjected the deceased to cruelty. PW 1 the
Informant had also not stated before the PW 10
that on 6.9.04, he sent PW 2 and PW 3 to bring the
deceased from her matrimonial home. PW 2 and
PW 3 not stated that on 6.9.04 they went to bring
the deceased from her matrimonial home. PW 8 the
mother of the deceased in her examination-in-chief
has only stated as they did not receive any
information of the deceased so they sent PW 2 and
PW 3. The defence stressed on the proof of dowry
demand and it remained satisfied with it since the
I/O (PW 10) in cross examination stated that none
of the witnesses told him about the torture on the
deceased for demand of dowry and non
termination of pregnancy on 1.8.04. Evidence of
PW 1, 2, 3, 5 and 8 that on 1.8.04 accused Dhiren
Das and his mother took the deceased to Dr. Aina
Borthakur for termination of pregnancy is not
corroborated with the evidence of the said doctor
who was examined as DW 1. In cross examination
of DW 1 prosecution has failed to bring out that on
1.8.04 the deceased was brought to her for medical
termination of pregnancy. It is found that the
prosecution, in cross examination, did not put any
suggestion to DW 1 to the effect that the victim was
brought for termination of her pregnancy.
PW 1, 2, 3, 5 and 8 did not make any
statement with regard to dowry demand and
torture before the 10 (PW 10). The statement u/s
161 of Cr.p.c. is not an evidence under the law.
The statement under section 161 Cr.p.c. can be
tested to find out whether an omission is a
contradiction or not, which is Irreconcilable with
the deposition made in the court.
In the case of Tahsilder Singh -Vs- State of
UP reported in AIR 1959 SC 1012 that every
omission does not amount to contradiction;
omission which by necessary implication lead to
conflicting version between the statement made
before the police and the court would amount to
contradiction.
Our own Honb'le High Court In Kaushik Das
-Vs- State of Tripura reported In 2009 (1) Gauhati
Law Journal 89 held that omission of making any
statement of facts during investigation before police
under section 161 of Cr.p.c. amounted to material
contradiction and would impair evidence of
prosecution witnesses. The Honb'le High Court
held that if the witnesses did not say anything
about the fact of dowry before the 10 at the initial
stage is during investigation, the testimony of these
witnesses before the court carried no value and no
conviction can be recorded on the basis of such
evidence. The law is already settled in this regard
and the Honb'le High Court referred one of the case
namely, Rajayya and another -Vs- State of Kerela,
reported in (1998) 4 SCC 85.
Further PW 4, 6, 7 who are the neighbours
and visiting terms with the accused, clearly stated
in cross examination that the relationship between
the deceased and accused persons were good.
From the above discussion of evidence on
records, I find that prosecution has failed to bring
home the case of cruelty for unlawful demand and
termination of pregnancy.
From the evidence of the prosecution
witnesses it reveals that the deceased was
suffering from mental depression prior to her
marriage. After marriage also the deceased was
admitted in a psychiatric clinic.
It is an admitted position that there is no
direct evidence on abetment against the present
accused persons.
Section 306 IPC deals with abetment of
suicide. The ordinary principle of presumption as
provided under the Indian Evidence Act, has no
application in the cases relating to abetment of
Suicide by a married woman and/or dowry death.
For this purpose, the provisions under section 113
A and 113 B of the Evidence Act only could be
applied.
The Apex Court In Ramesh Kumar Vs State
of Chhatisgarh (2001) SCC 618 held that before the
presumption may be raised, the foundation thereof
must be exist. To attract provision of section 113 A;
A must be shown that; (I) the woman has
committed sulcide (II) such suicide has been
committed within a period of seven years from the
date of her marriage (III) the husband or his
relatives who are charged had subjected her to
cruelty. It was also held that the presumption is
not mandatory, it is only permissive.
From the DW 2 it appears that the deceased
was under his treatment from the beginning. The
deceased was suffering from depression.
Further, I do not find from the evidence of the
prosecution witnesses that the victim was
subjected to such an extreme physical and mental
torture which became so intolerable for her to
commit suicide.
In view of the above discussions on the basis
of evidence on records, I find it difficult to accept
that the victim was driven by the accused persons
to commit suicide. I find that the prosecution has
failed to establish the charge u/s 306 IPC against
the accused persons.
The accused persons are acquitted of the
charge u/s 498 A/306 IPC and set at liberty. Their
bail bonds are cancelled"
14. Reading of the aforesaid judgment of the trial
Court, it appears that the trial Court has taken a probable
view on the basis of the evidence on record. Reference is
made to the decision of the Apex Court in the case of
Chandrappa and Ors. Vs. State of Karnataka,
reported in (2007) 4 SCC 415. Paragraphs 36 to 42 of the
aforesaid judgment are reproduced hereunder for ready
reference:
"36. In Ramesh Babulal Doshi v. State of Gujarat
15 this Court said: (SCC p. 229, para 7)
„While sitting in judgment over an acquittal
the appellate court is first required to seek an
answer to the question whether the findings of the
trial court are palpably wrong, manifestly
erroneous or demonstrably unsustainable. If the
appellate court answers the above question in the
negative the order of acquittal is not to be
disturbed, Conversely, if the acquittal cannot at all
be sustained in view of any of the above infirmities
it can then and then only-reappraise the evidence
to arrive at its own conclusions.‟
37. In Allarakha K. Mansuri v. State of Gujarat,
referring to earlier decisions, the Court stated: (SCC
p. 63, para 7)
„7. The paramount consideration of the court
should be to avoid miscarriage of justice. A
miscarriage of justice which may arise from the
acquittal of guilty is no less than from the
conviction of an innocent. In a case where the trial
court has taken a view based upon conjectures
and hypothesis and not on the legal evidence, a
duty is cast upon the High Court to reappreciate
the evidence in acquittal appeal for the purposes of
ascertaining as to whether the accused has
committed any offence or not. Probable view taken
by the trial court which may not be disturbed in the
appeal is such a view which is based upon legal
and admissible evidence. Only because the
accused has been acquitted by the trial court,
cannot be made a basis to urge that the High Court
under all circumstances should not disturb such a
finding.‟
38. In Bhagwan Singh v. State of M.P. the trial
court acquitted the accused but the High Court
convicted them. Negativing the contention of the
appellants that the High Court could not have
disturbed the findings of fact of the trial court even
if that view was not correct, this Court observed:
(SCC pp. 89-90, para 7)
„7. We do not agree with the submissions of
the learned counsel for the appellants that under
Section 378 of the Code of Criminal Procedure the
High Court could not disturb the finding of facts of
the trial court even if it found that the view taken
by the trial court was not proper. On the basis of
the pronouncements of this Court, the settled
position of law regarding the powers of the High
Court in an appeal against an order of acquittal is
that the Court has full powers to review the
evidence upon which an order of acquittal is based
and generally it will not interfere with the order of
acquittal because by passing an order of acquittal
the presumption of innocence in favour of the
accused is reinforced. The golden thread which
runs through the web of administration of justice in
criminal case is that if two views are possible on
the evidence adduced in the case, one pointing to
the guilt of the accused and the other to his
innocence, the view which is favourable to the
accused should be adopted. Such is not a
jurisdiction limitation on the appellate court but
judge-made guidelines for circumspection. The
paramount consideration of the court is to ensure
that miscarriage of justice is avoided. A
miscarriage of justice which may arise from the
acquittal of the guilty is no less than from the
conviction of an innocent. In a case where the trial
court has taken a view ignoring the admissible
evidence, a duty is cast upon the High Court to
reappreciate the evidence in acquittal appeal for
the purposes of ascertaining as to whether all or
any of the accused has committed any offence or
not.‟
39. In Harijana Thirupala v. Public Prosecutor,
High Court of A.P. this Court said: (SCC p. 476,
para 12)
„12. Doubtless the High Court in appeal
either against an order of acquittal or conviction as
a court of first appeal has full power to review the
evidence to reach its own independent conclusion.
However, it will not interfere with an order of
acquittal lightly or merely because one other view
is possible, because with the passing of an order of
acquittal presumption of innocence in favour of the
accused gets reinforced and strengthened. The
High Court would not be justified to interfere with
order of acquittal merely because it feels that
sitting as a trial court it would have proceeded to
record a conviction; a duty is cast on the High
Court while reversing an order of acquittal to
examine and discuss the reasons given by the trial
court to acquit the accused and then to dispel those
reasons. If the High Court fails to make such an
exercise the judgment will suffer from serious
infirmity.‟
40. In Ramanand Yadav v. Prabhu Nath Jha this
Court observed: (SCC pp. 614-15, para 21)
„21. There is no embargo on the appellate
court reviewing the evidence upon which an order
of acquittal is based. Generally, the order of
acquittal shall not be interfered with because the
presumption of innocence of the accused is further
strengthened by acquittal. The golden thread
which runs through the web of administration of
justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the
accused should be adopted. The paramount
consideration of the court is to ensure that
miscarriage of justice is prevented. A miscarriage
of justice which may arise from acquittal of the
guilty is no less than from the conviction of an
innocent. In a case where admissible evidence is
ignored, a duty is cast upon the appellate court to
reappreciate the evidence in a case where the
accused has been acquitted, for the purpose of
ascertaining as to whether any of the accused
committed any offence or not.‟
41. Recently, in Kallu v. State of M.P. this Court
stated: (SCC pp. 317-18, para 8)
„8. While deciding an appeal against
acquittal, the power of the appellate court is no less
than the power exercised while hearing appeals
against conviction. In both types of appeals, the
power exists to review the entire evidence.
However, one significant difference is that an order
of acquittal will not be interfered with, by an
appellate court, where the judgment of the trial
court is based on evidence and the view taken is
reasonable and plausible. It will not reverse the
decision of the trial court merely because a
different view is possible. The appellate court will
also bear in mind that there is a presumption of
innocence in favour of the accused and the accused
is entitled to get the benefit of any doubt. Further if
it decides to interfere, it should assign reasons for
differing with the decision of the trial court.‟
42. From the above decisions, in our considered
view, the following general principles regarding
powers of the appellate court while dealing with an
appeal against an order of acquittal emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the evidence
upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition on
exercise of such power and an appellate court on
the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as,
„substantial and compelling reasons‟, „good and
sufficient grounds‟, „very strong circumstances‟,
„distorted conclusions‟, „glaring mistakes‟, etc. are
not intended to curtail extensive powers of an
appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of „flourishes
of language‟ to emphasise the reluctance of an
appellate court to interfere with acquittal than to
curtail the power of the court to review the evidence
and to come to its own conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions are
possible on the basis of the evidence on record, the
appellate court should not disturb the finding of
acquittal recorded by the trial court."
15. Reading of the aforesaid judgment it is apparent
that if the trial Court acts on evidence to acquit the
accused persons, the appellate Court shall not interfere
such finding of the trial Court. Thus, this Court while sitting
in judgment over an acquittal, the paramount consideration
of the Court ought to be to avoid miscarriage of justice.
Thus, it is when the trial Court has taken a view based on
no legal evidence or upon conjectures and hypothesis, the
High Court is entitled to re-appreciate the evidence in
acquittal appeal for the purposes of ascertaining as to
whether the accused has committed any offence or not.
However, when the trial Court has taken a probable view
which is based upon legal and admissible evidence, the
High Court ought not disturb such findings of the trial
Court.
16. In the present case, the findings of the trial Court
is based on evidence. Therefore, this Court is of the
considered view that such findings of the trial Court
warrant no interference from this Court.
17. As regards the argument of Mr. T. J. Mahanta,
learned Senior Counsel for the appellant to the effect that
the presumption is to be drawn against the husband as per
Section 113(A) of the Evidence Act, if the deceased
married woman committed suicide within a period of
7(seven) years of their marriage is misplaced inasmuch as
unless and until it is shown that either the husband or any
of his relative subjected the wife to cruelty during such
period, no presumption under Section 113(A) of the
Evidence Act can be drawn against the husband.
18. In the present case, there is no evidence of
cruelty established by the prosecution. Hence, the criminal
appeal fails.
19. Accordingly, the criminal appeal stands dismissed
and is disposed of.
20. Return the trial court records.
JUDGE
Comparing Assistant
