Judgment : ASHIM KUMAR BANERJEE.J: 1. BACK DROP Gajen Barman had love affair with Tutul. They both belonged to village Falakata Hospital Para, Police Station Falakata in the district of Jalpaiguri. The parents of Tutul were agreeable to the marriage. Initially, Gajen’s family had objection. Ultimately, the marriage was fixed and held on 16th Shraban, 1393 B.S. Soon after marriage, the in-laws particularly the mother-in-law and brother-in-law (Bhasur) and his wife (Ja) inflicted torture upon Tutul. Tutul was subjected to physical torture. Gajen started living in a separated room in the same house having a separate mess. Despite being separated from the family, the assault continued. Tutul used to report to her parents. The parents informed the neighbours and requested Gajen to take appropriate action. 2. INCIDENT On February 22, 1989 at about 3:45 p.m. Malina, the mother of Tutul saw some people taking Tutul to the Hospital. Tutul sustained burn injury. She was kept in a balcony of the Female Ward of Falakata Hospital. She remained conscious. She told her mother Malina that at about 3.00/3.30 p.m. her mother-in-law, brother-in-law and his wife had assaulted her bitterly and driven her from the house. Tutul could not bear the torture and burnt herself. Malina made a complaint to the Police. On the same day Tutul died. The Police arrested all the three accused and charged them for the offence committed under Section 498-A read with Section 306 of the Indian Penal Code. All the accused pleaded innocence and opted to be tried. 2. EVIDENCE :- PW-1 (Joy Deb Roy) :- The witness was a tenant in the house where the accused family was residing. Joy Deb stated that Tutul had died out of burn injury. Occasionally, there was altercation and quarrel between Tutul on the one side and the accused on the other side. He witnessed the seizure. In cross-examination, he stated that he had been driven out from his parental home and taken shelter for seven days in the said house. He denied the allegation of having any dispute between him and the accused. He also denied that the dispute had been in relation to vacating of the room for which the Panchayat President had intervened. PW-2 (Smt. Manju Roy):- The witness was the wife of Joy Deb. She corroborated her husband on the issue of altercation and quarrel Tutul had with the accused. He also denied that the dispute had been in relation to vacating of the room for which the Panchayat President had intervened. PW-2 (Smt. Manju Roy):- The witness was the wife of Joy Deb. She corroborated her husband on the issue of altercation and quarrel Tutul had with the accused. Tutul cried for help to save her after being burnt. She also got burn injury while trying to save Tutul. Shibani also poured water on Tutul. Her husband also tried to save them. Her husband accompanied the injured to the hospital. PW-3 (Sri Upendra Barman):- The witness was rickshaw puller. The Police used his rickshaw to come to the spot. PW-4 (Sri Madhu Sudan Deb):- The witness was tendered for examination. PW-5 (Smt. Malina Dey):- The witness was the unfortunate mother of the victim. She did not corroborate her complaint. Naresh Gope wrote the complaint. Malina signed the same. In cross-examination, she disclosed that after the unfortunate incident Tripti, the younger sister of Tutul got married to Gajen. Malina stated that her daughter had not reported to her about any torture or ill treatment done by her in-laws. At this stage the witness was declared hostile. She denied the suggestion that she “falsely suppressed” the truth in order to save the accused. In cross-examination by the defence, the witness stated that Manju being PW-2 had gone to her house in order to bring her grand daughter. There was been dispute with regard to the vacating of the room by Joy Deb as Gajen requested Joy Deb to vacate the room. PW-6 (Gajen Barman) :- The witness was driver by profession. He had intimacy with Tutul prior to marriage. After marriage, he kept Tutul in his residence as he had to go out side in connection with his work. Occasionally, he used to visit his house at Muktipara and stayed there. During his visit, Tutul never reported anything untoward relating to the behaviour of the family members with her. He also stayed at Birpara with Tutul for some time after marriage. At this stage, the witness was declared hostile. In cross-examination, Gajen stated that Tutul had died out of her burn injury. She was caught fire and succumbed to her injury. He denied that he was staying out side in view of the torture inflicted upon Tutul by her in-laws. He was out for work. At this stage, the witness was declared hostile. In cross-examination, Gajen stated that Tutul had died out of her burn injury. She was caught fire and succumbed to her injury. He denied that he was staying out side in view of the torture inflicted upon Tutul by her in-laws. He was out for work. When he got the news of the accident he rushed to Muktipara. He married Tripti subsequently. During cross-examination by the defence, he again asserted that Tutul never complained of any torture being inflicted upon her by her in-laws. PW-7 & 8 (Pratima Dey & Tripti Dey):- The witnesses were tendered for cross-examination. PW-9 (Gopi Nath Barui) :- The witness was the doctor who attended Tutul. She was admitted with burn injury. The doctor recorded a dying declaration being Exhibit- 5. He requested the local Block Development Officer to be present, in whose presence he recorded the dying declaration. PW-10 (Dr. Sambhu Nath Ghosh) :- The witness was the Autopsy Surgeon who confirmed that the victim had eighty per cent burn injury. The death was due to burn and ante mortem in nature as opined by the post mortem doctor. PW-11 (Naresh Chandra Gope):- The witness was the Home Guard who wrote the complaint as per the statement of Malina. Malina put her signature after being satisfied about its contents. 3. EXAMINATION OF THE ACCUSED: - SHIBANI:- Shibani admitted that Tutul had died out of the burn injury. She denied the description of the incident as given by Manju. She denied each and every statement of the witnesses so put to her. BANGSHIDHAR BARMAN:- Bangshidhar asserted that the house belonged to him. He also denied each and every statement that was put to him by the learned Judge. 4. JUDGMENT: The learned Assistant Sessions Judge, Jalpaiguri, upon analysis of the evidence, held the accused Shibani and Bangshidhar guilty of the offence. We are told that mother-in-law being Bhabeswari Barman died during the trial. The learned Judge relied on the dying declaration and on that basis held the accused guilty of the offence. According to the learned Judge, the dying declaration would support the case of torture by the accused. We are told that mother-in-law being Bhabeswari Barman died during the trial. The learned Judge relied on the dying declaration and on that basis held the accused guilty of the offence. According to the learned Judge, the dying declaration would support the case of torture by the accused. Since the torture was inflicted within seven years of marriage it would attract presumption under Section 113-A of the Indian Evidence Act and, thus, would lead to conviction of both the accused under Section 498-A read with Section 306 of the Indian Penal Code. Hence, this appeal. 4. CONTENTION OF THE APPELLANT:- Mr. Sanat Chaudhury, learned counsel appearing for the appellant contended as follows:- (i) During trial the Investigating Officer was not examined as he had died before holding of the trial. No other officer was called by the prosecution and as such the defence was prejudiced being deprived of the right of cross-examination. (ii) The Block Development Officer was also not examined. (iii) Assuming the statement of Joy Deb and Manju were correct, occasional quarrel/altercation would not amount to torture and cruelty within the meaning of Section 498-A or Section 113-A, particularly in absence of an element of dowry being present in the matter. (iv) The doctor opined that the victim had sustained eighty per cent burn injury and as such she was not capable of giving any declaration, the declaration was, thus, doubtful. (v) The doctor did not certify that the patient was mentally alert and physically competent to make the dying declaration. Such dying declaration was thus not admissible in evidence. (vi) The prosecution witnesses did not speak of any instigation that could be termed as abatement attracting mischief of Section 306. (vii) PW-2 categorically stated that the appellant no. 1 tried to save the victim which would also make the case of the prosecution suspicious. (viii) Even if the dying declaration was taken to be sacrosanct, in absence of any particular name as the accused being uttered by the victim the accused could not have been tried and convicted for the alleged offence. (ix) Even if the defence had some weakness such weakness should not be used as assistance for the prosecution. Mr. Chaudhury prayed for setting aside of the conviction and corresponding acquittal of the accused. To support his contention Mr. (ix) Even if the defence had some weakness such weakness should not be used as assistance for the prosecution. Mr. Chaudhury prayed for setting aside of the conviction and corresponding acquittal of the accused. To support his contention Mr. Chaudhury relied on the following decisions:- (i) 1990 Calcutta Criminal Law Reporter (Calcutta) Page-169 (Annakali Dutta & Ors. – VS- The State) (ii) All India Reporter 1994 Supreme Court Page-129 (State of Uttar Pradesh –VS-Shishupal Singh) (iii) 1996 Criminal Law Journal Page-1480 (Sunkara Suri Babu –VS- State of Andhra Pradesh) (iv) All India Reporter 2010 Supreme Court Page-327 (Gangula Mohan Reddy –VS-State of Andhra Pradesh) 5. CONTENTION OF THE PROSECUTION :- Ms. Minoti Gomes, learned counsel appearing for the prosecution placed the judgment of the Court below and contended that the learned Judge considered each and every issue so minutely there was hardly any scope for interference. She adopted the judgement as her submission before the Court of the appeal. To support her contention Ms. Gomes relied on the following decision: - 1986 The Calcutta Criminal Law Reporter (Calcutta) Page-233 (Mrs. D.A. Macgillivary – VS- State) 6. REPLY:- Mr. Chaudhury while replying, reiterated what he had stated during his argument at the out set. While summing up, Mr. Chaudhury contended that element of instigation was conspicuously absent. Shibani tried to save the victim as told by PW-2. Bangshidhar was not in the house. All this facts taken together should raise substantial doubt in the mind of the Court deserving acquittal of the accused. 7. OUR VIEW:- There are four main witnesses whose evidence are relevant for consideration Joy Deb and Manju corroborated each other. According to them, there had been occasional altercation and/or quarrel. Tutul caught fire. She cried for help. Manju raised alarm when Joy Deb rushed. Manju got burn injury while trying to save Tutul. Shibani poured water to save her. Joy Deb tried to put off the fire by using quilt. Neither Joy Deb nor Shibani mentioned the name of Bangshidhar. Bangshidhar asserted that he was not at home. Hence, absence of Bangshidhar was clear. With regard to instigation we do not find any direct evidence either from Manju or from Joy Deb. It is true that Malina was subsequently gained over, might be as her second daughter Tripti got married to Gajen. Malina already lost her elder daughter. Bangshidhar asserted that he was not at home. Hence, absence of Bangshidhar was clear. With regard to instigation we do not find any direct evidence either from Manju or from Joy Deb. It is true that Malina was subsequently gained over, might be as her second daughter Tripti got married to Gajen. Malina already lost her elder daughter. She possibly did not want to create a situation making her second daughter’s life miserable. Even if we take into account the complaint raised by Malina contemporaneously, we would find that there had been quarrel and/or altercation between Tutul on the one hand and Bangshidhar, Shibani on the other hand along with her deceased mother-in-law. We also find that Tutul never complained about Gajen, rather in her dying declaration she categorically stated that Gajen was not guilty. We do not find enough particulars of such torture. There might be discord between Tutul and her in-laws. Gajen tried to save his wife. He separated himself from the family. He was staying away from the house for some time and then again came back home, however lived separately. Admittedly, no element of dowry was involved. We do not know under what circumstance Tutul took such drastic decision. It might be, on the spur of the moment or for the immediate quarrel she had with her in-laws. She might be a hyper sensitive one, that would not, per se, in our view, lead to a presumption under Section-113-A of the Indian Evidence Act. There is one more salient feature. Assuming there had been some altercation or difference of opinion, we cannot overlook the fact that Shibani tried to save her by pouring water on Tutul. Bangshidhar was admittedly not at home. Apart from mentioning his name being a party to the feud we do not find any convincing evidence to implicate him. We find from the dying declaration that the victim had stated to the doctor that her mother-in-law, Bhasur (elder brother of her husband) and Ja (wife of elder brother of her husband) often tortured her both mentally and physically. She also stated that her husband Gajen was not guilty. We also find that the doctors recorded the same in presence of the Block Development Officer. Both of them signed the same. The doctor, however, did not certify that the patient was capable of making such declaration. She also stated that her husband Gajen was not guilty. We also find that the doctors recorded the same in presence of the Block Development Officer. Both of them signed the same. The doctor, however, did not certify that the patient was capable of making such declaration. Even if we take the said declaration in consideration, at best it would lead to a complain as against her mother-in-law, brother-in-law and sister-in-law. However, there was no direct nexus with her decision to commit suicide. This also did not give any clear indication of the degree of torture she was subjected to. In absence of the same it would be difficult to sign the judgment of conviction solely on the basis of the said dying declaration, particularly when the ocular evidence of Joy Dev and Manju was not sufficient to support the case of instigation by the accused. Our view is strengthened by the peculiar conduct of the mother of the victim who did not support her complaint during trial. Even if we take her complaint as sacrosanct we do not get enough materials to convince ourselves that the accused were responsible for aiding and abetting and leading her to take a decision to end her life by committing suicide. It is true that Tutul died within seven years of her marriage. It is also true that she committed suicide at her in-laws’ place We do not find any conclusive evidence wherefrom we could come to a conclusion that her decision to commit suicide was a result of torture being committed upon her leading to a presumption under Section 113A of the Evidence Act. With due respect to the learned Judge and despite our best effort, we could not lend our support to his views. His academic discussion on the interpretation of Sections 498-A and 306 of the Indian Penal Code and Section 113-A of the Evidence Act being accurate, the application of such proposition of law however faulted in the instant case. In our considered, view it is a fit and proper case where the accused must get the benefit of doubt. 8. RESULT:- The appeal succeeds and is allowed. The conviction and sentence imposed upon the accused by the learned Judge are set aside. 9. DIRECTION:- The Bail Bonds are cancelled. In our considered, view it is a fit and proper case where the accused must get the benefit of doubt. 8. RESULT:- The appeal succeeds and is allowed. The conviction and sentence imposed upon the accused by the learned Judge are set aside. 9. DIRECTION:- The Bail Bonds are cancelled. The appellants are acquitted from the charges brought against them under Section 498-A read with Section 306 of the Indian Penal Code. The appeal is disposed of accordingly.