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Home » Crl.A./97/2017 on 12 July, 2021

Crl.A./97/2017 on 12 July, 2021

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

Crl.A. No. 97/2017

Dhirendra Nath Das,
S/o- Late Shyam Ch. Das
R/o- Vill. Akaya, P.O- Akaya under
Patacharkuchi Police Station
Dist.- Barpeta, Assam
PIN- 781329.
…… Appellant

-VERSUS-

1. State of Assam
REP. BY P.P., ASSAM.

2. Kangkan Talukdar,
Son of Sri Niranjan Talukdar.

3. Minakshi Basak
Wife of Sri Gopal Basak.

4. Smti Subhadra Talukdar
Wife of Sri Niranjan Talukdar.

All are residents of Pathsala, Ward No.3
Under Patacharkuchi Police Station
In the District of Barpeta
Assam, PIN-781325.

…..Respondents
Page 2 of 43

For the Appellant : Mr. K. Sharma, Advocate
: Mr. D. Das, Advocate

For the Respondent No.1 : Ms. B. Bhuyan, Addl. P.P.

For the Respondent Nos.2-4 : Mr. A. Hussain, Advocate.

Date of Hearing : 04.02.2021.

Date of Judgment : 12.07.2021.

:: BEFORE::
HON’BLE MR. JUSTICE N. KOTISWAR SINGH
HON’BLE MR. JUSTICE SOUMITRA SAIKIA

JUDGMENT & ORDER

(N. Kotiswar Singh, J)

Heard Mr. K. Sharma, learned counsel for the appellant. Also heard
Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam for respondent
No.1 and Mr. A. Hussain, learned counsel appearing for the respondent
Nos.2-4.

2. The present appeal has been filed against the order of acquittal of the
accused-respondents no. 2 to 4 of the charges under Section 304(B)/302/34
IPC by the learned Additional Sessions Judge, Bajali at Pathsala in Sessions
Case No.185/2015 arising out of G.R. No. 180/2015 vide judgment and
order dated 10.02.2016.

3. The brief facts of the case as can be gathered from the records are
that, an FIR was lodged by one Dhirendra Nath Das, the appellant on
10.03.2015 before the Officer-In-Charge of Pathsala Police Outpost that the
complainant‟s daughter, Binita Das was married to the accused respondent
No.2, Kangkan Talukdar in the month of „Ahin‟ (September-October) by
Page 3 of 43

observing all the social norms, customs and traditions and was living her
conjugal life with the said Kangkan Talukdar. It was alleged that the
accused-respondent Nos.2, 3 and 4 had been torturing his daughter
physically and mentally by demanding dowry at various points of time after
the marriage and on 9th March, 2015, the accused-respondents burnt his
daughter to death by setting her on fire after pouring kerosene on her.

4. Based on the aforesaid FIR lodged on 10.03.2015, the police
investigated the matter and on completion of the investigation submitted
charge-sheet before the court. Accordingly, the learned Additional Sessions
Judge, Bajali framed the following two charges against the accused-
respondents.

Firstly, they were charged of committing dowry death of Binita Das
punishable under Section 304B IPC as the death occurred within one
year of the marriage; and

Secondly, they were charged of committing murder with common
intention of causing death of Binita Das, punishable under Section
302 IPC.

5. Accordingly, the respondent Nos.2, 3 and 4 were charged under
Sections 304B/302/34 IPC.

6. The prosecution examined as many as 9 (nine) witnesses and
adduced evidences in support of the prosecution case.

7. After hearing the parties, the Ld. Trial Court framed the following two
points for determination.

i) Whether the accused on 09.03.2015 at Pathsala W/No. 3 under
Patacharkuchi P.S. in furtherance of common intention committed
dowry death of Binita Das, as alleged?
Page 4 of 43

ii) Whether the accused on 09.03.2015 at Pathsala W/No.3 under
Patacharkuchi P.S. in furtherance of common intention committed
murder intentionally causing the death of Binita Das, as alleged?

8. The learned Trial Court on consideration of the evidence on record
held that the prosecution has failed to prove that soon before the death of
Binita Talukdar, she was subjected to cruelty or harassment by her husband
or any relatives of her husband in connection with any demand for dowry.
The Trial Court also held that it was not proved that the accused caused the
death of victim and under such circumstances the accused persons
deserved to be acquitted by giving the benefit of doubt.

Accordingly, the Trial Court acquitted them from the aforesaid
charges.

9. Before we proceed to examine the correctness of the acquittal order
passed by the learned Trial Court, we will refer to the salient features of the
evidences on record.

10. P.W.1 was the complainant and father of the deceased, Sri Dhirendra
Nath Das, the appellant herein. He testified that he was the informant and
the deceased Binita Das was his daughter. He deposed that his daughter
got married to Kangkan Talukdar, respondent No.2 on 30.09.2014 in
accordance with Hindu rites and rituals. Thereafter, she lived with Kangkan
Talukder as his wife. He deposed that after few months of marriage, the
respondent No.4, Smti Subhadra Talukdar, mother of Kangkan Talukder and
respondent No.3, Minakshi Talukdar, sister of Kangkan Talukdar demanded
T.V., fridge, washing machine and golden chain from his daughter. He
expressed his inability to fulfil these demands. He also alleged that his
daughter was misbehaved by Subhadra, respondent No.4 and Minakshi,
respondent No.3, which was reported to him by his daughter. He also
stated that in the night of 09.03.2015, Ramakanta Das, informed that his
Page 5 of 43

daughter was murdered. On the next day he found his daughter dead at
Pathsala Police Out Post. He found her burnt. Accordingly, he lodged an FIR
and identified the ejahar which was exhibited as Ext.1.

In the cross-examination, he admitted that at the time of marriage,
there was no demand for money. He stated that his daughter came to his
house three times after her marriage. He also stated that her husband
Kangkan also came to his house. He treated him as his son and he also
respected him. He also stated that he visited the house of the accused
Kangkan twice. He stated that he was treated well prior to the occurrence
and he did not lodge any complaint against the accused. He also stated that
there was no dispute with the family members of the accused till the date of
the death of his daughter. He also stated that he had not made any
statement before the I.O. of the demand for T.V., fridge, washing machine
etc. He also stated that he did not see the occurrence and did not know
how his daughter died.

11. P.W.2, Smti Bhanita Das, is the cousin sister of the deceased. She
also stated that after one month of the marriage of Binita, she went to her
parents‟ house and stayed there for about 40 (forty) days. Binita told her
that the mother of the accused Kangkan, Subhadra, respondent No.4 and
Minakshi, sister of Kangkan, respondent No.3 demanded one golden chain,
washing machine and T.V to be brought from the house of her parents. She
also stated that the aforesaid facts were reported to her by the mother of
the deceased Binita. She also stated that on 09.03.2015, the mother of
Binita came to the house of accused-respondent No.2 and requested the
mother of Kangkan to send her daughter to her house but the mother of
Kangkan refused to send her for which there was an altercation between
mother of Binita and mother of Kangkan. Thereafter, mother of Binita left
the house of Kangkan. It was on the night of the same day that Binita
committed suicide.
Page 6 of 43

In the cross-examination, she stated that she did not visit the house
of Kangkan and did not know about the marital life of Kangkan and Binita.
She stated in the cross-examination that Subhadra (the respondent No.4)
was treated well and there was good relation between the accused and the
informant before the occurrence and there was no bichar between the
parties. She also stated that the police did not interrogate her and she did
not state before the I.O. that the accused-respondents demanded fridge,
T.V., washing machine etc. She also did not know how Binita died. She did
not state before the I.O. but saw ashes in the bathroom of the accused
Kangkan.

12. P.W.3, Sri Dhananjay Das, is the Gaonburah of village Akaya. He
knows the informant and deceased Binita Das. He stated that on
10.03.2015, at about 9:00 a.m., he was informed that the daughter of the
informant, Binita Das had died and accordingly he went to the house of the
informant and asked about the occurrence and the informant told him that
she was murdered. He then went to Pathsala Police Outpost and thereafter
went to the house of the accused and father in law of Binita told him that
Binita had committed suicide.

In the cross-examination, he stated that he did not maintain any diary
and he did not personally know the accused persons and he did not know
about the marital life of the deceased and also did not know how the
occurrence took place.

13. P.W.4, Smt. Premlata Das, is also a cousin sister of deceased Binita,
of village Akaya. She knew the informant Dhirendra Nath Das and the
accused Kangkan Talukdar as well as the deceased Binita. She stated that
after five months of marriage, Binita was killed. She stated that after
marriage, one day deceased Binita came to her parents‟ house and told her
that Minakshi, Kankan and Subhadra, accused/respondent Nos. 2, 3 and 4
demanded washing machine, gold chain, T.V. and fridge.
Page 7 of 43

In the cross-examination, she stated that she did not visit the house
of the accused-respondents prior to the occurrence and she did not know
about the family life of Binita. She also stated that she did not discuss about
the dowry with the accused. She also stated that there was good relation
between both the parties till the death of Binita. She also stated that the
accused-respondents did not demand anything when visiting the house of
Binita. She also stated that she did not state before the I.O. that the
accused demanded T.V., fridge, washing machine, gold chain etc.

14. P.W.5 is Dr. Mauchumi Dutta Khataniar, who is a neighbour of the
accused persons. In her deposition, she stated that she knew the accused.
About five months ago, at about 10 P.M, she heard a hue and cry from the
house of the accused Kangkan Talukdar and as she had a child with her,
she did not go to the place of occurrence. On the same day, she came to
know that the wife of Kangkan died by pouring kerosene oil. In the cross-
examination, she stated that she did not have any knowledge about the
marital life of the accused and did not know any other matter of the
occurrence.

15. P.W.6 was one Dr. Nabajit Barman who conducted the post-mortem
examination of the dead body of the deceased Binita Talukdar.

As per his findings, the death was due to shock following ante
mortem burn injury on 100% of the total body surface and all injuries
except injury No.1 were caused by blunt force impact.

In his cross-examination he stated that the deceased expired due to
burn injury. He also stated that injuries may be caused due to falling or
hitting on any substance.

16. P.W.7, Mahesh Patgiri was an inhabitant of Pathsala, who knew the
accused persons. He stated that four months back, one day he came to
know that the wife of the accused Kangkan Talukdar died in the bathroom.
Page 8 of 43

He did not know how and why she died and he also did not know about the
personal life of the accused Kangkan Talukdar and his wife.

In the cross-examination, he also stated that he did not know how
and why the deceased Binita died.

17. P.W.8 is one Smt. Dulu Rani Das, a resident of Pathsala, Ward No.3
and a neighbour of the accused respondents.

She deposed that she knew the informant as well as his deceased
daughter Binita. She also mentioned about the marriage of the deceased
with Kangkan Talukdar and that they were living together as wife and
husband. She stated that on 09.03.2015, at about 11:00 pm her tenant
Kishor Kumar called her and told her that there was a hue and cry outside
and when she came out and went to the gate of Kangkan, she came to
know that the wife of Kangkan committed suicide by setting fire by
kerosene oil. She also stated that on the next day she came to know from
the gathering that there was a fracture on the leg of the deceased and that
her husband, the mother in law of the deceased, respondent No.4 and sister
in law of the deceased, respondent No.3 assaulted the deceased Binita. She
also stated that prior to one month of the occurrence, the accused-
respondent No.3, Minakshi shifted to a rented house from her parent‟s
house just near to the house of her parents. P.W.8 also stated that one day
in the morning Subhadra Talukdar, respondent No.4 told her that deceased
Binita was not obedient and good.

In the cross-examination, she stated that the marriage between Binita
and Kangkan was solemnised as agreed by both the parties and the family
members of the deceased Binita had visited the house of the accused prior
to the occurrence. She also stated that there was cordial relationship
between the families. She also stated that she did not see any quarrel
between the accused and Binita but one day she saw the mother in law of
Page 9 of 43

deceased Binita, the respondent No.4 rebuking Binita. She stated that she
did not know why the mother in law of Binita rebuked Binita. She observed
cordial relation between the accused and Binita. She also stated that she did
not know why Binita committed suicide. She also stated that she met the
family members of Binita and the parents of Binita did not say anything
against the accused. She also stated that she did not state before the I.O.
that she came to know from the gathering that the accused caused fracture
on the leg of Binita and they assaulted Binita. She also stated that she went
to the house of the accused several times.

18. P.W.9 was the Investigating Officer of the case. His evidence is
reproduced here in its entirety to understand the nature and manner of
investigation undertaken by him, which will be analysed in greater detail
hereinafter:

“On Solemn Oath.
On 9/3/2015 I was working as S.I. of Police at Pathsala Police
Outpost. On that day at about 11 p.m. I was informed over telephonic by Sri
Jitu Roy that one Binita Talukdar committed suicide pouring kerosene oil,
resident of Pathsala Town.
Accordingly I recorded a G.D. Entry vide G.D Entry No. 164 dated
9/3/2015. I myself visited the place of occurrence and requisition was also
made for making the inquest by the Executive Magistrate.
During investigation I visited the place of occurrence, recorded the
statement of witnesses, drew sketch map of the place of occurrence. Inquest
was conducted by Executive Magistrate. After inquest the dead body was
forwarded for post-mortem Examination to FAAMC & Hospital Barpeta. I
also seized one piece of burn bucket and one Blue colour half burn Mag and
one Hawai Chappal. On the next day of the incident one Sri Dhirendra Nath
Das lodged on Ejahar before Pathsala Police Out Post and accordingly a
G.D. Entry was made vide G.D. Entry No. 175 dates 10/3/2015 and the
same was forwarded to the O.C. Patacharkuchi Police Station for
registering the case and accordingly a case was registered vide
Patacharkuchi P.S Case No. 106/15 u/s 304(B)/34 IPC.
I also arrested the accused persons and I forwarded the accused
persons, namely- Kankan Talukdar, Minakshi Basak and Subhadra
Talukdar.
Page 10 of 43

In the meantime, I was transferred and I handed over the case Dairy to
the O.C Patacharkuchi P.S. Thereafter S.I. of police Sailen Kumar Kalita
collected P.M. report and after completion of investigation S.I. of police
Sailen Kumar Kalita submitted chargesheet against Sri Kangkan Talukdar,
Sri Minakshi Basak and Smti Subhadra Talukdar u/s 304(B)/34 IPC.
Ext. 1 is the FIR,
Ext. 1(3) is my signature,
Ext. 3 is the Extract copy of Pathsala O.P.G.D Entry No. 164 dtd.
9/3/15 (Proved in origin, under objection from defence side),
Ext. 4 is the seizure list,
Ext. 4(1) is my signature,
Ext. 5 is the Inquest Report,
Ext. 5 (1) is the sign of S. Khan, ACS which I know,
Ext. 6 is the Sketch Map,
Ext. 7 is the charge- sheet,
Ext. 7(1) is the signature of S.I of Police Sailen Kumar Kalita,
which I know.
XXXXXXXXXXXXXXXXX
I was informed that victim committed suicide at the bathroom. G.D.
Entry No. 164 dated 9/3/2015 was the first information. There was no
specific allegation against the accused in the aforesaid G.D. Entry.
I have recorded the statement of Kankan Talukdar, Minakshi Basak
on 9/3/2015. On that day I have prepared the seizure list. While I recorded
the statement of informant I did not ask him why FIR was lodged late.
There was no specific date as regards demands of dowry. There was
no allegation against the accused prior to this case. There was not
mentioned the demand of washing machine, T.V., and other ornaments.
There was not mentioned in my note as to why victim committed suicide.
However, there is mention in my statement.
Burn injury took place inside the bathroom and door was opened in
the bathroom. The bathroom was pakka.
I have not ascertained the length and breadth of bathroom. Seized
bucket was found at the bathroom.
P.W-1, Dhirendra Nath Das did not state before me that accused
demanded T.V., washing machine, Freeze.
It was not mentioned in my case diary note that there was either good
relation or bad relation between accused person and the family of
complainant.
Page 11 of 43

P.W.- 4, Premalta Das did not state before me that Binita told her that
accused demanded fridge, washing machine, T.V., gold chain etc.
P.W-8, Dulumani Das did not state before me that she came to know
from the gathering that there was fracture on the leg of deceased Binita and
they assaulted.”

19. All the accused pleaded not guilty to the charges and did not adduce
any evidence in their defence and thus, opted to remain silent.

20. Learned Trial Court in acquitting the accused respondent Nos.2-4 of
the aforesaid charges under Section 304B/302/34 IPC, proceeded in the
following manner.

21. The Ld. Trial Court considered the charge under Section 304B IPC by
highlighting the ingredients of the said offence as follows:

(a) The death of a woman was caused by burns or bodily injury or
occurred otherwise than under normal circumstances;
(b) Such death occurred within seven years of her marriage;

(c) The deceased was subjected to cruelty or harassment by her
husband or any relative of her husband;
(d) Such cruelty or harassment was for or in connection with the
demand for dowry;and
(e) Such cruelty or harassment was subjected to the deceased soon
before her death.

22. The Ld. Trial Court thereafter, proceeded to examine the evidences
on record and observed that as regards the death of Binita due to burn
injuries, it was not disputed by the accused and accordingly, the core
question which was to be decided was whether the accused respondent
Nos.2, 3 and 4 had caused the death of the deceased Binita Talukdar or
whether the accused caused the dowry death of the deceased.

The Trial Court also noted that there was no eye witness to the
occurrence to the effect that the accused had caused the burn injuries to
Page 12 of 43

the victim and under such circumstances, the Trial Court had to look into
the circumstantial evidences as well as the oral evidences.

23. The learned Trial Court observed that in order to bring within the
purview of offence under Section 304B IPC, the prosecution has to prove
that soon before the death of victim, the victim was subjected to cruelty or
harassment by her husband and any relative of her husband in connection
with any demand for dowry.

24. The Trial Court observed that in the instant case, P.W.1, Dhirendra
Nath Das, and P.W.2, Smt. Bhanita Das @ Binita in their evidences-in-chief
stated that after two months of marriage of Binita with Kangkan Talukdar,
the accused persons, namely, Kangkan Talukdar, Subhadra and Minakshi
demanded one golden chain, one washing machine, one fridge and T.V.
from the deceased Binita Talukdar. However, the said statements were not
made before the Investigating Officer at the time of recording their
statement under Section 161 CrPC, which was confirmed by the I.O. in his
deposition as P.W.9.

25. Learned Trial Court also noted that the P.W.1, Sri Dhirendra Nath
Das, in his cross-examination stated that at the time of marriage there was
no demand of dowry and his daughter came to his house three times after
her marriage and that Kangkan also came to his house and he treated him
as his son and the accused respected him also. It was also noted that there
was no dispute between the family members of the accused and the family
of the complainant till the death of his daughter.

26. The Trial Court also noted the statement of the P.W.2 during her
cross-examination that she did not know the marital life of Kangkan and
Binita and that Subhadra, the respondent No.4 had gone to the house of
deceased Binita but she did not know how she was treated. The Court also
noted that P.W.2 had stated that there was good relation between the
Page 13 of 43

accused and the informant prior to the occurrence and accused persons had
visited their house and they did not make any demand for dowry.

27. The Trial Court also noted the deposition of the P.W.4 in her cross-
examination where she stated that there was good relation between both
the parties till the death of Binita and the accused did not demand anything
while visiting the house of Binita.

28. The Trial Court also noted the deposition of P.W.5, Dr. Mauchumi
Dutta Khataniar in her cross-examination that she came to know that the
wife of Kangkan Talukdar died by pouring kerosene oil and she did not have
any knowledge about the marital life of the accused.

The Trial Court also noted the deposition of P.W.7, Sri Mahesh Patgiri,
who stated in his cross-examination that he did not know how and why
Binita died.

The Trial Court also noted the deposition of P.W.8, Smt. Dulu Rani
Das, in her cross-examination that there was cordial relationship between
the two families and she did not see any quarrel between the accused and
Binita and she did not know why Binita committed suicide.

29. From the above evidences, the Trial Court came to the conclusion
that the prosecution failed to prove that soon before the death of Binita
Talukdar she was subjected to cruelty or harassment by her husband or any
relative of the husband in connection with any demand of dowry.

The Trial Court also held that it has not been proved that the accused
caused the death of the victim, though the Trial Court did not discuss any
evidence in this regard.

The Trial Court held that under such circumstances, the accused
persons deserved to be acquitted by giving benefit of doubt and
accordingly, acquitted the accused persons by holding that the prosecution
Page 14 of 43

had failed to prove the ingredients under Section 304B/302/34 IPC against
the accused persons beyond all reasonable doubts.

30. Thus, being aggrieved by the aforesaid acquittal of the accused
respondent Nos.2, 3 and 4, the present appeal has been preferred by the
complainant with the leave of the Court.

31. This Court, while considering the appeal has noted certain features in
the trial and judgment of the Trial Court, which in our opinion would
warrant remand of the case for retrial by exercising the power under sub-
clause (a) of Section 386 CrPC whereunder the appellate court can in an
appeal from an order of acquittal, reverse such order and direct that further
inquiry be made, or that the accused be re-tried or committed for trial, as
the case may be, or find him guilty and pass sentence on him according to
law.

32. As we proceed to deal with the grounds for arriving at such a
conclusion, it may be apposite to refer to the relevant law in this regard
which is the legal basis for our conclusion.

33. In Sudha Renukaiah v. State of A.P.1, the Hon‟ble Supreme Court
while dealing with the exercise of the appellate power under Section 386
CrPC observed that the High Court has full power to reverse an order of
acquittal and if the accused are found guilty they can be sentenced
according to law. In that case, a reference was made to the decision of the
Privy Council in Sheo Swarup Vs. Emperor2, wherein the power of the
appellate court as provided under Section 423 CrPC (under the old Code of
1898) was discussed as follows.

“Sect. 423 runs thus: “(1.) The Appellate Court shall then send for the
record of the case, if such record is not already in Court. After perusing
such record, and hearing the appellant or his pleader, if he appears, and the

1
(2017) 13 SCC 81
2
AIR 1934 PC 227 (2)
Page 15 of 43

Public Prosecutor, if he appears; and, in case of an appeal under s. 417 the
accused if he appears, the Court may, if it considers that there is no
sufficient ground for interfering, dismiss the appeal, or may– (a) in
anappeal from an order of acquittal, reverse such order and direct that
further inquiry be made, or that the accused be retried or committed for
trial, as the case may be, or find him guilty and pass sentence on him
according to law; (b) in an appeal from a conviction (1.) reverse the finding
and sentence, and acquit or discharge the accused, or order him to be retried
by a Court of competent jurisdiction subordinate to such Appellate Court or
committed for trial, or (2.) alter the finding, maintaining the sentence, or
with or without altering the finding, reduce the sentence, or (3.) with or
without such reduction and with or without altering the finding, alter the
nature of the sentence, but, subject to the provisions of section 106, sub-
section (3), not so as to enhance the same; (c) in an appeal from any other
order, alter or reverse such order; (d) make any amendment or any
consequential or incidental order that may be just or proper.

(2.) Nothing herein contained shall authorize the Court to alter or reverse
the verdict of a jury, unless it is of opinion that such verdict is erroneous
owing to a misdirection by the judge, or to a misunderstanding on the part
of the jury of the law as laid down by him.”

It will be observed that upon the express terms of the Code (1.) an
appeal lies from any order of acquittal passed by any Court other than a
High Court; (2.) such an appeal (the trial not being by jury) will lie upon a
matter of fact; (3.) on such an appeal the Court may reverse the order of
acquittal, find the accused guilty and pass sentence on him. There is no
indication in the Code of any limitation or restriction on the High Court in
the exercise of its powers as an appellate tribunal. Further, it is to be
observed that no distinction is drawn as regards the powers of the High
Court in dealing with an appeal, between an appeal from an order of
acquittal and an appeal from conviction.

Many authorities were cited to their Lordships which undoubtedly
reveal differences of views as to the powers of the High Court in dealing
with an appeal from an order of acquittal on a matter of fact. No useful
purpose will be served by examining this long list of decisions. It will
suffice if theirLordships state the conclusion which they have reached as the
result of careful consideration of the full arguments which were addressed
to them.

There is, in their opinion, no foundation for the view, apparently
supported by the judgments of some Courts in India, that the High Court
has no power or jurisdiction to reverse an order of acquittal on a matter of
fact, except in cases in which the lower Court has “obstinately blundered,”
or has “through incompetence, stupidity or perversity” reached such
Page 16 of 43

“distorted conclusions as to produce a positive miscarriage of justice,” or
has in some other way so conducted or misconducted itself as to produce a
glaring miscarriage of justice, or has been tricked by the defence so as to
produce a similar result.

Sects. 417, 418 and 423 of the Code give to the High Court full power
to review at large the evidence upon which the order of acquittal was
founded, and to reach the conclusion that upon that evidence the order of
acquittal should be reversed. No limitation should be placed upon that
power, unless it be found expressly stated in the Code. But in exercising the
power conferred by the Code and before reaching its conclusions upon fact,
the High Court should and will always give proper weight and
consideration to such matters as (1.) the views of the trial judge as to the
credibility of the witnesses; (2.) the presumption of innocence in favour of
the accused, a presumption certainly not weakened by the fact that he has
been acquitted at his trial; (3.) the right of the accused to the benefit of any
doubt; and (4.) the slowness of an appellate Court in disturbing a finding of
fact arrived at by a judge who had the advantage of seeing the witnesses. To
state this, however, is only to say that the High Court in its conduct of the
appeal should and will act in accordance with rules and principles well
known and recognized in the administration of justice.”

34. The Hon’ble Supreme Court, after discussing numerus decisions in
this regard, summed up the legal position relating to the power of the
appellate court in interfering with the order of acquittal by the appellate court
in Ghurey Lal v. State of U.P.3, in the following words,

“70. In light of the above, the High Court and other appellate courts should
follow the well-settled principles crystallised by number of judgments if it
is going to overrule or otherwise disturb the trial court’s acquittal:
1. The appellate court may only overrule or otherwise disturb the trial
court’s acquittal if it has “very substantial and compelling reasons” for
doing so.
A number of instances arise in which the appellate court would have
“very substantial and compelling reasons” to discard the trial court’s
decision. “Very substantial and compelling reasons” exist when:
(i) The trial court’s conclusion with regard to the facts is
palpably wrong;
(ii) The trial court’s decision was based on an erroneous view of
law;
(iii) The trial court’s judgment is likely to result in “grave
miscarriage of justice”;

3
(2008) 10 SCC 450
Page 17 of 43

(iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;
(v) The trial court’s judgment was manifestly unjust and
unreasonable;
(vi) The trial court has ignored the evidence or misread the
material evidence or has ignored material documents like
dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration
to the findings of the trial court.
3. If two reasonable views can be reached–one that leads to acquittal,
the other to conviction–the High Courts/appellate courts must rule in
favour of the accused.”

35. As regards retrial, in one of the earliest decisions of the Hon’ble
Supreme Court in Ukha Kolhe v. State of Maharashtra4, it was held that:
“11. An order for retrial of a criminal case is made in exceptional cases, and
not unless the appellate court is satisfied that the Court trying the proceeding
had no jurisdiction to try it or that the trial was vitiated by serious
illegalities or irregularities or on account of misconception of the nature of
the proceedings and on that account in substance there had been no real trial
or that the Prosecutor or an accused was, for reasons over which he had no
control, prevented from leading or tendering evidence material to the charge,
and in the interests of justice the appellate court deems it appropriate, having
regard to the circumstances of the case, that the accused should be put on his
trial again. An order of re-trial wipes out from the record the earlier
proceeding, and exposes the person accused to another trial which affords the
prosecutor an opportunity to rectify the infirmities disclosed in the earlier
trial, and will not ordinarily be countenanced when it is made merely to
enable the prosecutor to lead evidence which he could but has not cared to
lead either on account of insufficient appreciation of the nature of the case or
for other reasons. Harries, C.J., in Ramanlal Rathi v. State [AIR (1951) Cal
305] observed:
“If at the end of a criminal prosecution the evidence leaves the Court
in doubt as to the guilt of the accused the latter is entitled to a verdict
of not guilty. A retrial may be ordered when the original trial has not
been satisfactory for particular reasons, for example, if evidence had
been wrongly rejected which should have been admitted, or admitted
when it should have been rejected, or the court had refused to hear
certain witness who should have been heard. But retrial cannot be
ordered on the ground that the prosecution did not produce the proper
evidence and did not know how to prove their case.”

4
(1964) 1 SCR 926 : AIR 1963 SC 1531 : (1963) 2 Cri LJ 418,
Page 18 of 43

In the present case, undoubtedly the trial before the Magistrate suffered from
irregularities which we have already set out. The evidence, such as was led,
was deficient in important respects; but that could not be a sufficient ground
for directing a retrial. If the Sessions Judge thought that in the interests of
justice and for a just and proper decision of the case it was necessary that
additional evidence should be brought on the record he should have, instead
of directing a retrial and reopening the entire proceeding, resorted to the
procedure prescribed by Section 428(1) of the Code of Criminal Procedure.
There is no doubt that if the ends of justice require, the appellate court should
exercise its power under the said section.”

36. The aforesaid decision was reiterated in Ajay Kumar Ghoshal v.
State of Bihar5, wherein it was held that,

“11. Though the word “retrial” is used under Section 386(b)(i) CrPC, the
powers conferred by this clause is to be exercised only in exceptional cases,
where the appellate court is satisfied that the omission or irregularity has
occasioned in failure of justice. The circumstances that should exist for
warranting a retrial must be such that where the trial was undertaken by the
court having no jurisdiction, or trial was vitiated by serious illegality or
irregularity on account of the misconception of nature of proceedings. An
order for retrial may be passed in cases where the original trial has not been
satisfactory for some particular reasons such as wrong admission or wrong
rejection of evidences or the court refused to hear certain witnesses who were
supposed to be heard.
12. “De novo” trial means a “new trial” ordered by an appellate court in
exceptional cases when the original trial failed to make a determination in a
manner dictated by law. The trial is conducted afresh by the court as if there
had not been a trial in first instance. Undoubtedly, the appellate court has
power to direct the lower court to hold “de novo” trial. But the question is
when such power should be exercised. As stated in UkhaKolhe v. State of
Maharashtra [UkhaKolhe v. State of Maharashtra, (1964) 1 SCR 926 : AIR
1963 SC 1531 : (1963) 2 Cri LJ 418] , the Court held that : (AIR p. 1537,
para 11)
“11. An order for retrial of a criminal case is made in exceptional cases,
…… …… …… …… …… …… …… …… …… …………….”

37. In this regard, it may be also apposite to refer to the principles guiding
the revisional power of the High Court in exercise of the power conferred
under Section 401 CrPC. Though the scope of a revisional court is limited
and the appellate court exercises a much more extensive jurisdiction, the
5
(2017) 12 SCC 699 : (2017) 4 SCC (Cri) 458,
Page 19 of 43

principles governing a revisional court can also be taken into consideration
by the appellate court. The Hon’ble Supreme Court in Sheetala Prasad v.
Sri Kant6, while highlighting the revisional power of the High Court under
Section 401 CrPC observed that if material evidence has been overlooked
by the trial court, the High Court can certainly interfere with the order of
acquittal or conviction.

It was thus held in Sheetala Prasad (supra)as follows:

12. The High Court was exercising the revisional jurisdiction at the instance
of a private complainant and, therefore, it is necessary to notice the
principles on which such revisional jurisdiction can be exercised. Sub-
section (3) of Section 401 of the Code of Criminal Procedure prohibits
conversion of a finding of acquittal into one of conviction. Without making
the categories exhaustive, revisional jurisdiction can be exercised by the
High Court at the instance of a private complainant
(1) where the trial court has wrongly shut out evidence which the
prosecution wished to produce,
(2) where the admissible evidence is wrongly brushed aside as
inadmissible,
(3) where the trial court has no jurisdiction to try the case and has still
acquitted the accused,
(4) where the material evidence has been overlooked either by the trial
court or the appellate court or the order is passed by considering
irrelevant evidence, and
(5) where the acquittal is based on the compounding of the offence
which is invalid under the law.
13. By now, it is well settled that the revisional jurisdiction, when invoked
by a private complainant against an order of acquittal, cannot be exercised
lightly and that it can be exercised only in exceptional cases where the
interest of public justice requires interference for correction of manifest
illegality or the prevention of gross miscarriage of justice. In these cases, or
cases of similar nature, retrial or rehearing of the appeal may be ordered.”
(emphasis supplied)

38. Keeping the aforesaid legal position in mind we will proceed to give
our reasons for interfering with the acquittal of the accused and for
directing a retrial.

6
(2010) 2 SCC 190,
Page 20 of 43

39. A minute scrutiny and analysis of the evidence by the Trial Court
reveals that the focus of the Trial Court was essentially directed to the
existence or otherwise of the ingredients of Section 304B IPC, i.e., whether
there was any demand for dowry and whether soon before her death the
deceased was subjected to cruelty or harassment by the husband or any
other relative of the husband in connection with demand for dowry, which is
clearly evident from the concluding paragraph no. 33 of the impugned
judgement which reads as follows:

“33. From the foregoing discussion it appears that the prosecution has failed
to prove that soon before the death of Binita Talukdar she was subjected to
cruelty or harassment by her husband or any related of her husband in
connection with any demand of dowry. It is also not proved that the accused
caused the death of victim. In such circumstances accused persons are
deserve to be acquitted on benefit of doubt.”

40. The Trial Court held that it was also not proved that the accused
caused the death of the victim, yet, that finding was with reference to the
offence under Section 304B of IPC and that too, without discussing whether
the accused were at all responsible for the death or not. It is to be
remembered that in a case under Section 304B IPC, it was not needed on
the part of the prosecution to prove that the accused had actually caused
the death of the woman, if other ingredients are proved.

Unfortunately, there was no discussion about the offence under
Section 302 IPC though the Trial Court had observed that it was not proved
that the accused had caused the death of the victim.

41. It may be noted that though the effect of both the offences under
Section 302 IPC and 304B IPC may be the same, in the sense that both deal
with the murder of a person, the approach of the Trial Court in dealing with
these offences may not necessarily be the same.
Page 21 of 43

While dealing with the offence under Section 304B IPC, the
prosecution has to prove the ingredients that, the death of the woman was
caused by any burns or bodily injury or occurred otherwise than under
normal circumstances, and the death occurred within seven years of her
marriage, and that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband and such cruelty
or harassment was for, or in connection with, any demand for dowry. Once
these ingredients are proved, the court will consider such death to be a
“dowry death” and thereafter, the husband and/or the relative shall be
deemed to have caused her death, as also provided under Section 113B of
Evidence Act, which provides that 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 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 had caused the dowry death.

In other words, there is a presumption drawn against the husband
and such relatives of causing the “dowry death”, for which the prosecution
does not have to prove that they had actually caused the death of the
women, if the other ingredients mentioned above are proved. The burden
gets shifted to the accused to prove that none of the aforesaid ingredients
exists, and thus it was not a “dowry death”.

42. From a minute examination of the impugned judgment, it is quite
apparent that the Ld. Trial Court was primarily concerned with the issue
that “dowry death” had not taken place and accordingly, acquitted all the
accused on the ground that the charge of cruelty or harassment or demand
of dowry had not been proved, thus holding that charge under Section 304B
IPC was not proved.

The approach of the Trial Court, however, in considering the charge
under Section 302 IPC will be different in the present case. In a case of
Page 22 of 43

murder punishable under Section 302 IPC, the prosecution has to prove,
inter alia, that the accused had indeed caused such bodily injury leading to
the death and did so with intention to cause death, unlike in the case of
Section 304B IPC where the presumption of causing “dowry death” is to be
drawn, if other ingredients are proved.

Though the onus is entirely on the prosecution to prove all the
ingredients of the offence of murder as defined under Section 300 IPC, as
punishable under Section 302 IPC and the onus is certainly heavier than the
one to be discharged under Section 304B IPC, there may be cases, as in the
present case, where the accused has to offer some explanation, when the
death occurred within the confines of a home where the public do not have
easy access and which are within the personal knowledge of the
inhabitants, which they only can explain as provided under Section 106 of
Evidence Act.

43. In Trimukh Maroti Kirkan v. State of Maharashtra7, the Hon‟ble
Supreme Court held that,

“14. If an offence takes place inside the privacy of a house and in such
circumstances where the assailants have all the opportunity to plan and
commit the offence at the time and in circumstances of their choice, it will
be extremely difficult for the prosecution to lead evidence to establish the
guilt of the accused if the strict principle of circumstantial evidence, as
noticed above, is insisted upon by the courts. A judge does not preside over
a criminal trial merely to see that no innocent man is punished. A judge also
presides to see that a guilty man does not escape. Both are public duties.
(See Stirland v. Director of Public Prosecutions [1944 AC 315 : (1944) 2
All ER 13 (HL)] — quoted with approval by Arijit Pasayat, J. in State of
Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The
law does not enjoin a duty on the prosecution to lead evidence of such
character which is almost impossible to be led or at any rate extremely
difficult to be led. The duty on the prosecution is to lead such evidence
which it is capable of leading, having regard to the facts and circumstances
of the case. Here it is necessary to keep in mind Section 106 of the
Evidence Act which says that when any fact is especially within the
knowledge of any person, the burden of proving that fact is upon him.

7
(2006) 10 SCC 681
Page 23 of 43

Illustration (b) appended to this section throws some light on the content
and scope of this provision and it reads:
“(b) A is charged with travelling on a railway without ticket. The
burden of proving that he had a ticket is on him.”
15. Where an offence like murder is committed in secrecy inside a house,
the initial burden to establish the case would undoubtedly be upon the
prosecution, but the nature and amount of evidence to be led by it to
establish the charge cannot be of the same degree as is required in other
cases of circumstantial evidence. The burden would be of a comparatively
lighter character. In view of Section 106 of the Evidence Act there will be a
corresponding burden on the inmates of the house to give a cogent
explanation as to how the crime was committed. The inmates of the house
cannot get away by simply keeping quiet and offering no explanation on the
supposed premise that the burden to establish its case lies entirely upon the
prosecution and there is no duty at all on an accused to offer any
explanation.”
“18. The question of burden of proof where some facts are within
the personal knowledge of the accused was examined in State of
W.B. v. Mir Mohd. Omar [(2000) 8 SCC 382 : 2000 SCC (Cri)
1516] .
………………………………………………………………………

……………………………………………………………………… …….. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports: (SCC p. 392) “31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof on the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.

33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts,unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.”

44. Similarly, in such case, where the death occurs within the confines of a household, the conduct of the inmates becomes very relevant and crucial to the determination of the immediate cause of death. In Kundula Bala Subrahmanyam v. State of A.P.8, the Hon‟ble Supreme Court observed that, “20. The conduct of the appellants, son and mother, both at the time when the deceased lay burning on the floor of the kitchen and afterwards till she succumbed to the burn injuries is the next circumstance relied upon by the prosecution to connect the appellants with the crime.

21. ………………………………….. None of the two appellants or the father-in-law made any attempt whatsoever to extinguish the fire and save the deceased. They raised no alarm. They stood there as if waiting for her death, rather than make any effort to save her. Their conduct, thus, runs consistent with the hypothesis of their guilt and betrays that of an innocent person. In their statements under Section 313 of CrPC they did not deny their presence in the house at the time of the occurrence, but denied their involvement in the crime. The normal human conduct of any person finding someone engulfed in flames would be to make all efforts to put off the flames and save the life of the person. Though, the appellants were the closest relations of the deceased, they did not do anything of the kind. ………………….. ……… They rendered no first-aid to the deceased. Their conduct at the time of the occurrence, therefore, clearly points towards their guilt and is inconsistent with their innocence. The appellants did not even accompany the deceased to the hospital in the matador van. Had the husband not been a party to the crime, one would have expected that he would be the first person to take steps to remove the deceased to the hospital and leave no stone unturned to save her life. An innocent mother- in-law would have also done the same, even if she had no love or emotional feelings for her daughter-in-law. Neither the husband nor the mother-in-law of the deceased took any steps to remove the deceased to the hospital, let alone accompany her to the hospital…………………………………..Since, (1993) 2 SCC 684 the deceased had admittedly suffered burn injuries in the kitchen of her house, there was an obligation on the part of the appellants and the father- in-law of the deceased, who have admitted their presence in the house at the time of occurrence, to explain the circumstances leading to the deceased dying of 90% burn injuries. None has been offered. The theory of suicide was put up only as an argument of despair………………………………………………………………..The prosecution has, thus, successfully established that the conduct of both the appellants, both at the time of the occurrence and immediately thereafter, is consistent only with the hypothesis of the guilt of the appellants and inconsistent with their innocence.”

45. This Court also took a similar view in Rajesh Mahali @ Dalohatia Vs. The State of Assam and Anr.9, wherein this Court also held that when a death occurred of a woman with injuries in the head, who was staying with her husband, failure of the husband-accused to offer any explanation as to how his wife died an unnatural death, is a strong circumstance pointing to his guilt as his wife died inside the house with injuries in her head and there was no one else in the house of the husband. While coming to such a conclusion this Court relied on the decision of the Hon‟ble Supreme Court in Ganesh Lal Vs. State of Maharashtra10 as well as in Trimukh Maroti Kirkan (supra).

In Ganesh Lal (supra) where the death of the wife of the accused took place inside the house of the accused husband, the Hon‟ble Supreme Court held that in such circumstances, the accused husband had an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. It was also observed that silence of the accused was inconsistent with the innocence of the accused and consistent with the hypothesis of guilt of the accused.

46. Of course, the factual situation in which the Hon‟ble Supreme Court made the aforesaid observations in the said cases are different from the reported in 2018 SCC OnLine Gau 904 (1992) 3 SCC 106 facts or evidences revealed in the present case. However, this will not distract from the fact that the inmates of the house where the deceased Binita Das died by allegedly committing suicide by pouring kerosene, had an obligation to explain the circumstances under which she died as the relatives of the deceased who were not at the time of occurrence could not have shed any light on the immediate circumstances under which she allegedly committed suicide within the confines of a home surrounded by walls on all four sides.

As to the conduct of the accused in the present trial, unfortunately, nothing has been mentioned by any witness, including the Investigating Officer of the case who had examined all the accused.

47. This is a case, where the father (the complainant) or any of her relatives from the paternal side was not expected to be an eye witness nor could give any material evidence of the immediate circumstances surrounding the death as they were not at the place of occurrence at the time of occurrence. The accused being the inmates of the house who were present at the time of occurrence would be in the best position to describe the immediate circumstances surrounding the incident, as the burning of the deceased by kerosene happened inside the walled compound, where there was no access of the public or neighbourhood.

48. There are many circumstances which called for explanation from the accused, which, unfortunately was never sought for, nor considered nor probed.

49. The circumstances immediately preceding the burning of the deceased was never brought on record. For example, though the Investigating Officer stated that one Jitu Roy informed him over the telephone that the deceased committed suicide by pouring kerosene oil, the said Jitu Roy was not examined in the trial. It is not clear whether he was examined by the IO during the investigation. If he was examined by the IO, why was he not cited as a prosecution witness? Even if he was not cited as a prosecution witness, the Trial Court also did not examine him by invoking the power under Section 311 of CrPC as he could have shed some light on the incident as he was the person who first informed the IO of the incident? He could have also explained who had informed him, and also whether any of the accused informed the said Jitu Roy? If so, in what manner the accused informed the said Jitu Roy? If not, what were the accused doing at the relevant time? As regards these facts, the IO could have given some evidence. But, nothing came from the mouth of the IO.

Similarly, it was mentioned by the complainant that one Ramakanta Das had informed him on 09.03.2015 at night that his daughter was murdered.

PW 8, a neighbour of the accused also deposed that her tenant Kishor Kumar called her informing that there was a hue and cry and thereafter, PW 8 came out and went to the gate of Kangkan (respondent no. 2) and came to know that Kangkan‟s wife committed suicide by setting fire with kerosene oil.

But unfortunately, there is no reference to these persons, Jitu Roy, Ramakanta Das and Kishor Kumar in the evidence of the I.O. The Trial Court could have also examined them by invoking the power under Section 311 CrPC, even if they were not produced by the prosecution as they were the contemporaneous informants/ witnesses who received information about the incident soon after the incident and passed on the information to the complainant, the IO and a prosecution witness.

However, as noted above, the evidence of the I.O. was very brief and devoid of any details of his investigation and the manner in which the investigation was carried out, and without any reference to the above facts.

50. From the above, it is very clear that the investigation conducted by the IO was merely a routine one. It appears he was merely visiting the place of occurrence, getting the inquest and post-mortem performed and arresting the accused. But nothing is shown to indicate that the IO had made any serious attempt to find out the circumstances in which the death had occurred. It appears the IO was simply recording the statements and not making any investigation. It appears that the I.O. was acting more like a recorder and chronicler of events, rather than being an inquisitive investigator in search of truth as to what really happened on that fateful night. Natural questions which will arise in the mind of a diligent investigator did not appear to have occurred to the IO. While at this stage we are not suggesting any reinvestigation of the crime, yet, a retrial will reveal many aspects of the case upon examining/re-examining witnesses, in the light of injuries which are already on record, to understand how these injuries came to be caused which could throw light on the circumstances immediately preceding the incident which in turn would have helped the Trial Court to come to a definitive conclusion as to whether it was a case of suicide as claimed by the accused or a murder as claimed by the complainant.

51. Section 174 CrPC provides, inter alia, that when the officer in charge of a police station or the empowered police officer receives information that a person has committed suicide, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted.

In the present case, we do not know how the dead body of the deceased was brought to the Pathsala Outpost where the inquest was held in the morning. By not holding the inquest at the place of occurrence, vital pieces of evidences and information were not recorded, viz, the location of the bucket, slippers and any other material or article which could have indicated the nature of the death.

52. Some of the injuries recorded in the post mortem have caused concern to us which had remained unexamined in the trial and by the Trial Court. The injuries mentioned in the post-mortem report are as follows:

“(1) Burn injuries are present over the whole body including the palms and solis. The burn injuries are congested at places. All burn injuries are epidermal to dermo-epidermal in nature varying from 1st degree to 3rd degree except those burn injuries over both lower limbs which are deep burn involving muscles and bone.
(2) A heat fracture of right tibia is present in its upper third, 5 cm below the knee joint. The fracture is dry, oblique and did not (?) show only bleeding around the fracture lima.
(3) A contusion of size 2 cm x 1 cm is present over front of Right side of neck muscle (Reddish in colour), 3 cm away from midline and 8 cm above sterno-clavicular joint.
(4) A contusion of size 1.5 cm x 1 cm (Reddish in colour) is present over front of left side of neck muscle, 3 cm away from midline and 8 cm above sterno-clavicular joint.
(5) A contusion of size 1.5 cm x 1 cm is present over front of left side of neck muscle (Reddish in colour), 4 cm away from midline and 6 cm above sterno-clavicularjoint.
(6) A contusion of size 1 cm x 1 cm (Reddish in colour), is present over front of left side of neck muscle, 4 cm away from midline and 4 cm above sterno- clavicular joint.
(7) A contusionof size of 4 cm x 2 cm (Reddish in colour) is present over the occipital region of the scalp in midline at the level of occipital protuberance.”
53. As per the expert opinion recorded in the post-mortem report and proved by PW 6, who performed the post mortem examination, death was due to shock following ante mortem burn injury covering 100% of total body surface area and all the injuries except no. 1 were caused by blunt force impact.

This post-mortem report and the opinion of the PW 6 raise serious questions which were never probed by the I.O. nor considered by the prosecution nor the Trial Court.

54. As is clearly evident from the post-mortem report, there were as many as five injuries described as contusions of different sizes, of which four were on the neck above sterno-clavicular joint which were all caused by blunt force impact.

The question which arises naturally, but never clarified nor considered during the trial was, how these four contusion injuries were caused on the neck? The opinion of the doctor who performed the post-mortem was that these injuries were caused by blunt force and in the cross examination it was stated that these injuries could be caused by falling or hitting on any substance.

55. The critical question which thus, arises is, if the accused claimed that the deceased committed suicide by pouring kerosene over her body, how could these injuries on the neck be caused? Could such four contusions on the neck be caused while falling and if so, on what object she fell? In the photograph taken in the bathroom where she was found dead, there is no apparatus or structure other than the walls and the bucket. These contusions on the neck also appear to have a pattern. Do these marks indicate that her neck was pressed by some fingers? If so, whose fingers? Could the deceased press her own neck to cause these injuries? If not, who could have caused these injuries on the neck? The expert opinion is that these injuries were caused by blunt force. Who could have exerted the blunt force on the neck to cause these injuries?

These are some questions, neither the prosecution nor the Trial Court got clarified from any of the witnesses. These were also not brought to notice of the accused while being examined under Section 313 CrPC. These are tell-tale evidences on record, not surmises or assumptions, which could have thrown light on what actually transpired on that day just before the death of the deceased as these were ante mortem injuries.

56. There was also another contusion injury of the size, 4 cm x 2 cm, reddish in colour present over the occipital region of the scalp in midline at the level of occipital protuberance. This injury on the scalp was also caused by use of blunt force as stated by the expert witness. How could such injury be caused? Could such injury be self-inflicted if no other person had caused it? Or was it caused by someone pushing her head against the wall?

If all these contusion injuries are taken together, were these caused by someone who pressed the neck of the deceased and banged her head on the wall?

Is it possible that these injuries be self-inflicted by someone who was committing suicide by burning herself with kerosene?

57. There is also the second injury mentioned in the post-mortem report of a heat fracture of right tibia in the upper third and 5 cm below the knee joint and which was dry, oblique and with bleeding around the fracture lima, which according to the medical expert was caused by use of blunt force. How could this injury be caused? Could the deceased self-inflict this injury and if so, in what manner, as it involved use of blunt force? If the deceased could not have caused it on herself, who caused it? Could it be caused by someone else who fractured her leg with the use of some blunt weapon?

Did someone use force to push the deceased by holding and pressing her neck on the wall, thus causing the contusion injuries on the neck and the occipital region of the head indicated in the injuries no. 3 to 6 and cause fracture of the leg by using some blunt weapon as indicated in the injury no. 7 of the post mortem, so that she cannot go out of the bathroom and was left to die burning?

It may be also noted that there is some reference to that injury by the prosecution witness no. 8, but there was no discussion or consideration of the said evidence.

58. It has come on record that the door of the bathroom where the deceased was burnt and died was open. If the door was not locked from inside, thus not bolted, under normal circumstances, would not someone who is burning rush out crying and shouting because of sheer pain of burning? Is it normal for a person to commit suicide by burning by keeping the door open? If the door was open, when did the inmates of the house discover the burning of the deceased and what did they do on coming to know of it?

59. It is also notable that the deceased did not leave behind any suicide note. Though, presence or absence of any suicide note may not be determinative of the nature of the death, yet along with other surrounding circumstances, the absence of it could be indicative of the nature of the death that it may not be a suicide.

60. The deceased apparently died due to burn by pouring kerosene over her body. If so, was kerosene normally kept in the house? If not, who procured it? If she procured it, did it not arouse any suspicion in the minds of the members of the household? If others procured it, for what reasons was it procured and where was it stored and how did the deceased access it? These are questions only the inmates can answer.

Was any matchbox or matchstick or any lighter or candle or any such article recovered from the bathroom or its vicinity by which the fire was ignited on the kerosene? Should not have been such article recovered from nearby the body? If not, what is the implication?

61. These are not speculations but legitimate questions which normally would arise during investigation and during trial especially in the light of the injuries referred to above. Unfortunately, the IO did not shed any light on these crucial aspects and the prosecution also failed to examine these aspects. The Trial Court also did not put any question to the witnesses as well as to the accused to elicit their stand on these crucial and relevant issues.

62. On the other hand, as clearly evident from the judgment, the Trial Court proceeded that it was entirely the onus of the prosecution to prove the charge without considering the aspects of the duty of the accused to offer some explanations where death takes place within the confines of a private residence, as highlighted by the Hon‟ble Supreme Court in Trimukh Maroti Kirkan (supra) and Kundula Bala Subrahmanyam (supra).

63. The place of occurrence was in the bathroom, which is located adjacent to their residential house. The residential house, bathroom and some other structure are surrounded by pucca walls on all four sides as per the sketch map. Thus, there is no public access to the residential complex. The incident also occurred in the late evening during 9 pm to 10 pm as per the evidence, when the all accused were apparently inside their house. In their statements under Section 313 of CrPC they did not deny their presence in the house at the time of the occurrence, and they merely claimed innocence. If that is so, was there no obligation on their part to explain how the incident happened, as held in Kundula Bala Subrahmanyam (supra)?

When did they become aware that the deceased was burning herself by pouring kerosene over her body?

Did they hear any cry of the deceased? If they heard, what did they do? Did they try to help her? Did they seek the help of any immediate neighbour?

Is it possible that the deceased would burn herself without making any cry or shout because of the intense pain that would be caused by the burning of the body? The evidence is that she suffered burn all over her body ranging from first to third degree burn injuries.

Did any of the accused make any attempt whatsoever to extinguish the fire and save the deceased?

Did they raise any alarm after seeing her burning or dead?

As noted above, the bathroom was found not closed from inside, but was open.

Would the deceased try to commit suicide by keeping the door of the bathroom open? If the door was not locked from inside, is it natural for a burning person to rush out?

It appears very unnatural that a person would commit suicide by burning herself by keeping the door open. Death by burning cannot be instantaneous and the instinct of self-preservation would lead her to run away from the bathroom. Was she immobilised to run because her leg was fractured? Was she immobilised from running because she was rendered momentarily unconscious by banging her head on the wall thus causing the contusion injuries listed in sl. no. 3 to 7 in the post-mortem report?

These are some of the questions which naturally arise in the mind of any person, which could only be clarified by the inmates of the household who were the only persons inside the house at the time of occurrence.

64. As observed by the Hon‟ble Supreme Court in Trimukh Maroti Kirkan (supra) in view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish the charged offence lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

65. All the accused opted to remain silent during the trial claiming innocence without any explanation as to how the death occurred in the bathroom where nobody other than the house inmates had any access as the house is surrounded by pucca walls all around. Their eerie silence disturbs us.

66. Unfortunately, as noted above, the I.O. did not also give proper evidence on how he conducted the investigation, as to what he did on arrival at the place of occurrence, whom he examined at the place of occurrence and what was their version and the IO also did not mention anything about the conduct of the accused or the house inmates. The complainant and his relatives could not have been eyewitnesses as the incident occurred not in their home or vicinity but in the residence of the in- laws located distantly. Therefore, they could not have thrown much light on the immediate circumstances leading to the burning.

Under these circumstances, the accused who were the only other inmates of the house could have given their version as to what happened, when they found out the incident and what they did to save the deceased, and thus reveal their conduct which would have helped ascertain the immediate cause of the death of the deceased.

These are aspects which could have been clarified during the trial. Unfortunately, this did not happen.

67. The Trial Court also did not discuss anything about the injuries caused to the deceased in the judgment. As discussed above, the Trial Court was mainly concerned with the issue whether the deceased was subjected to any cruelty soon before her death or whether there was demand for dowry by the accused.

The Trial Court did not discuss anything about the circumstances in which the death occurred, though there were evidences on record that there were many injuries which were caused by blunt force and that these injuries could be caused by falling or hitting any substance.

There was no attempt by the Prosecution to ascertain the significance of these injuries as to whether these could have any effect of implicating the accused. Neither, the Trial Court had also discussed about these aspects in the judgment. These injuries were ignored as if these had no relevance. In our view these would have serious implications on the innocence or otherwise of the accused, if it could be clarified that these could not have been self-inflicted injuries.

Since, there is no confessional statement from any of the accused and there was no eye witness, the entire case is based on circumstantial evidence in which the role of the inmates become significant in the light of Section 106 of the Evidence Act and the decisions referred to above.

68. These are some of the questions which came to our mind while going through the records. It is unfortunate that these questions did not occur in the mind of the Investigating Officer nor the prosecution. What could be reasons for such sloppy investigation? Was it due to lack of experience of the investigator, or the lack of knowledge or incompetency of the investigator or did the I.O. come under certain influence not to delve too deep into the matter? We do not wish to venture to offer any answer without adequate material basis. Yet, it is undeniable that the investigation was not conducted with thoroughness the case deserved in trying to ascertain the immediate cause of the burning to death of the deceased. Nevertheless, inspite of the sloppiness and defects in the investigation, some of the answers to these crucial questions can be obtained in course of the retrial.

69. In this regard, we may also refer to the decision in Pooja Pal v. Union of India11, wherein the Supreme Court emphasised the importance of fair and proper investigation by the investigating agency and role of the court, which is to secure justice on the basis of true facts which ought to be unearthed. The Hon‟ble Supreme Court in the aforesaid case, observed that discovery, vindication and establishment of truth are the avowed purposes underlying the existence of the courts of justice and importance and need for maintaining the delicate judicial balancing of the competing interests in a criminal trial, the interests of the accused and the public and to a great extent that too of the victim, at the same time not losing the sight of public interest involved in the prosecution of persons who commit offences. The Supreme Court also recalled the power of the trial court under Section 311 of the CrPC and Section 165 of the Evidence Act to be invoked to subserve the cause of justice and the public interest by eliciting evidence in aid of a just decision and to uphold the truth and to prevent miscarriage of justice.

70. We are of the view that apart from non-consideration during the trial and by the Trial Court of the injuries no. 2 to 7 mentioned in the post- mortem report which were caused by blunt force, there are many other aspects of the case, which were not considered during the trial as discussed above. In our view these are vital evidences and aspects which would have a direct bearing on the decision of the trial court which could be clarified only by a retrial.

(2016) 3 SCC 135

71. It may be noted that two distinct and separate charges were framed against the accused, firstly, under Section 304B IPC and another under Section 302 IPC. As noticed above, the trial and the judgment was focussed on the offence relating to Section 304B IPC. There was virtually no trial under Section 302 IPC, nor the judgment dealt with the offence under Section 302 IPC. Thus, the acquittal of the accused was primarily relating to offence under Section 304B IPC and not Section 302 IPC. Hence, there has been miscarriage of justice as far as trial relating to Section 302 IPC and acquittal from the aforesaid charge are concerned as it cannot be said that merely because the accused were acquitted of the charge under Section 304B IPC, they shall be acquitted from the charge under Section 302 IPC as well, for the reasons discussed above.

72. Under the circumstance, we are of the opinion that the defect in the trial cannot be cured by merely directing further recording of evidence under Section 391 CrPC, as no effective trial had been conducted as far as the charge under Section 302 IPC is concerned.

We are of the view that there has been a serious miscarriage of justice and there exist very substantial and compelling reasons as discussed above, for directing a retrial.

73. Consequently, we direct a retrial by setting aside the acquittal order passed by the Ld. Additional Sessions Judge, Bajali at Pathsala in Sessions Case No.185/2015 arising out of G.R. No. 180/2015 vide judgment and order dated 10.02.2016.

Resultantly, all the accused, the Respondents no. 2, 3 and 4 will surrender before the learned Additional Sessions Judge, Bajali at Pathsala in connection with the Sessions Case No.185/2015 arising out of G.R. No. 180/2015 to face the retrial. However, since they were acquitted, they shall be entitled to remain on bail till the retrial is over, on execution of bail bond and surety bond of such amount or on such conditions to the satisfaction of the learned Additional Sessions Judge, Bajali, during the retrial.

74. The learned Additional Sessions Judge, Bajali, accordingly, after the retrial pass appropriate judgment and order in accordance with law.

It goes without saying that for the purpose of retrial, the Trial Court would be at liberty to invoke the provisions of Sections 311 CrPC, 165 of the Evidence Act and summon any person as a witness, even if not summoned earlier as a witness, especially those three persons who informed the Investigating Officer, the complainant and the prosecution witness no. 8 of the incident, and or recall any witness and re-examine such a witness to ascertain the facts and circumstances of the case in the light of the above referred observation made by us for a just determination of the case. Thereafter, appropriate questions can be put to the accused under Section 313 CrPC in the light of the evidences which may emerge.

75. While directing retrial, we would like to clarify that this retrial does not mean a de-novo trial as far as the charge under Section 304B IPC is concerned, as we do not wish to disturb the said finding of the Trial Court. The Ld. Trial Court had come to a conclusion based on the evidences as discussed above and acquitted the accused of the offence under Section 304B IPC by giving benefit of doubt.

76. In Khedu Mohton v. State of Bihar12, it was held that, “3. It is true that the powers of the High Court in considering the evidence on record in appeals under Section 417 CrPC, are as extensive as its powers in appeals against convictions but that Court at the same time should bear in mind the presumption of innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the Appellate Judge has found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusion. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court (1970) 2 SCC 450 is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal.”

Similarly, it was held in Ramji Surjya Padvi v. State of Maharashtra13, that, “10. …………………………….. While there is no doubt that the jurisdiction of an appellate court is coextensive with that of the trial court, in the case of an appeal against a judgment of acquittal it cannot totally brush aside the appreciation of the evidence by the trial court. The reasons for reversing a judgment of acquittal should be cogent and if two views are reasonably possible, the appellate court should be slow in interfering with the judgment of the trial court, even if it is possible for it to take a different view after a process of laborious reasoning………………..” In Suratlal v. State of M.P.14, it was also held that, “16. After hearing the arguments of the counsel on both sides and after going through the evidence on record and the judgments of the courts below, we are of opinion that the view of the evidence taken by the trial court was also reasonably possible. In such a situation, when two views of the evidence, one indicating conviction and the other supporting acquittal, are equally possible, the High Court should not have disturbed the findings of the trial court………………………….”

77. On consideration of the evidence on record, we could have come to a different conclusion to the one arrived at by the Trial Court as far as the charge under Section 304B IPC is concerned. The key witnesses have categorically stated that the accused demanded dowry in form of TV, fridge, washing machine gold chain etc. from the deceased. PW2 also specifically stated that there was an altercation between the mother of the deceased and her mother-in-law on the day of the incident in the house of Kangkan. It was in the night of the same day that the deceased committed suicide. PW4 also stated that after the marriage, one day the deceased had come to her parents‟ house and told that the accused had demanded washing machine, gold chain, TV and fridge.

We have noted that the Trial Court arrived at the aforesaid conclusion as the allegation that the deceased was subjected to cruelty or harassment (1983) 3 SCC 629 (1982) 1 SCC 488 in connection with demand for dowry could not be proved beyond reasonable doubt in the light of the evidences emerging in the cross examination of the key witnesses which indicated not a very strained relationship between the two families on account of demand for dowry. Though the key witnesses gave evidence in the examination-in-chief that the accused demanded dowry of TV, fridge, washing machine, gold chain etc., it was proved that they did not mention this allegation in their statement recorded under Section 161 CrPC. Further during the cross examination, the key prosecution witnesses also did not portray a very strained relationship between the two families. Considering these evidences, the conclusion arrived by the Trial Court that the basic ingredients to constitute offence under Section 304B IPC had not been established beyond reasonable doubt, cannot be considered to be unreasonable or palpably wrong.

We are also of the view that the aforesaid conclusion arrived at by the Trial Court as regards the charge under Section 304B IPC is also an equally possible view based on the evidences on record.

Therefore, we do not intend to disturb the conclusion of the Trial Court that offence under Section 304B IPC was not proved beyond all reasonable doubts against the accused.

78. However, the accused were also charged under Section 302 IPC. As discussed above, merely because the charge under Section 304B IPC could not be proved, does not necessarily mean that the charge under Section 302 IPC would fall, as the parameters of these two offending Sections are not same in the present case, for the reasons discussed above.

As noted above, in the present case, the Trial Court did not examine the actual cause of death of the deceased apart from merely observing that the accused did not cause the death of the deceased, which was not based on any reason nor by considering the material evidence. The charge of committing the offence under Section 302 IPC accordingly, needs to be re- examined as to whether the accused really caused the death of the deceased for which we have ordered a retrial in the light of the observations made above. As observed by us, there was practically no trial as far as the offence under Section 302 IPC is concerned, nor the Trial Court considered it on the basis of evidences.

Thus, the retrial will be confined to the charge under Section 302 IPC for which the Trial Court will be competent to summon any person as a witness, and re-call and re-examine any such other witnesses for the aforesaid purpose as directed above.

79. Let the original records of the trial be remitted to the Court of the Additional Sessions Judge, Bajali for the retrial.

The respondents no. 2, 3 and 4 shall appear before the Court of the Additional Sessions Judge, Bajali to face the retrial within one month from today, who shall, however, be allowed to remain on bail during the trial as directed above.

80. The appeal is accordingly allowed to the extent indicated above.

81. While disposing of this appeal, we are constrained to make certain observations as to the manner in which the investigation was carried on. We feel that the Investigating Officer ought to have been more proactive in trying to collect vital information and evidences at the place of occurrence. We do not understand why the inquest was not conducted at the place of occurrence, which is desirable as per the provisions of law as well, to record the immediate surroundings near the dead body which will shed light on the immediate circumstances in which the death occurred. Many potential key witnesses were also not examined by the Investigating Officer.

Proper and meticulous investigation is the key to unearth the truth when there is apparently no eyewitness, and more so, when it is the case of alleged suicide. We owe a duty to the society to bring out the cause of the death and punish the guilty and protect the innocent for which a thorough and proper investigation must be carried out.

We hope and trust that the competent authority will look into this aspect for ensuring proper training of the investigating officers so that the trials do not suffer on account of any lapses on the part of the investigating officers/agencies in such cases.

Accordingly, a copy of this order be also furnished to the Director General of Police, Government of Assam for necessary actions.

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