JUDGMENT 1. THIS appeal is directed against the judgment and order dated 10.7.2006 and 12.7.2006 passed in Sessions Trial No. 48 of May, 2005 corresponding to Sessions Case No. 157 of September, 2004 by learned Additional Sessions Judge, Fast Track Court-II, Ranaghat under Sections 498A/306 of the Indian Penal Code. 2. FACTUAL matrix is that de facto complainant Monoranjan Biswas submitted a written complaint at the concerned police station alleging that his cousin sister Anima Biswas got married to accused/appellant Bhola Mondal on 13th day of Baisakh, 1410 B.S. according to Hindu rites and customs. At the time of marriage gold ornaments, other articles and a cash of Rs. 8,000/- were given as dowry. Anima resided with her husband Bhola in her matrimonial home. After some days of their marriage Bhola and his mother Tepi @ Nomita Mondal, another appellant started mental and physical torture upon Anima. They demanded a further amount which was reported by Anima to the de facto complainant and others time to time when she visited her father's place. As per demand of accused persons/appellants an amount of Rs. 5,000/- was withdrawn from the Savings Bank Account of Anima which was deposited before her marriage and paid to her husband Bhola so that Anima may get rid of. the torture inflicted on her at her husband's place. There was no change in the matter, physical and mental torture upon Anima was continuing. On 21.7.2004 around 10 a.m. appellants Bhola and his mother picked up quarrel with Anima for slicing of fish. They dragged Anima into the room from the courtyard by catching hold the tuft of her hair which was seen by the adjacent neighbour and elder sister of Anima viz. Nilima Sarkar wife of Arun Sarkar of the same village i.e. Natungram, Mathpara. They called their neighbors in order to save Anima from torture at the hands of accused persons/appellants. They arrived at the house of the appellant and found the dead body of Anima was lying in the room. They noticed ligature mark around the neck of Anima and also found one cloth of appellant/accused Tepi @ Namita which was hanging from the 'beam' of the said room. It has been alleged further that Gitarani Samajdar, aunt of accused/appellant Bhola instigated accused/appellant Tepi @ Namita to kill Anima by setting her on fire. They noticed ligature mark around the neck of Anima and also found one cloth of appellant/accused Tepi @ Namita which was hanging from the 'beam' of the said room. It has been alleged further that Gitarani Samajdar, aunt of accused/appellant Bhola instigated accused/appellant Tepi @ Namita to kill Anima by setting her on fire. On the basis of the said written complaint Dhantala P.S. case No. 120 of 2004 dated 21.7.2004 under Sections 498A/306 of IPC was started. On completion of the investigation of the said case charge-sheet under Sections 498A/306 of IPC was submitted against accused persons, namely, Bhola Mondal, Tepi @ Namita Mondal and Gitarani Samajdar. 3. THE case was committed to the learned Court of Sessions, Nadia where from it was transferred to the Court of learned Additional District and Sessions Judge, Fast Track Court-II, Ranaghat for disposal. Charge against the accused persons under Sections 498A/306 of IPC was framed. On conclusion of the trial accused Gitarani Samajdar was found not guilty and accordingly she was acquitted from the charge levelled against her. But other two accused persons i.e. husband Bhola Mondal and his mother Namita Mondal @ Tepi were found guilty to the offence punishable under Sections 498A/306 of IPC and accordingly they were sentenced to suffer rigorous imprisonment for three years each and to pay a fine of Rs. 3,000 each in default to suffer rigorous imprisonment for six months each for the offence punishable under Section 498A of IPC. They were also sentenced to suffer rigorous imprisonment for seven years each and to pay a fine of Rs. 3,000/- each in default to suffer R.I. for six months each for the offence punishable under Section 306 if IPC. In that backdrop, this appeal has been preferred. 4. LEARNED Counsel appearing for the appellant has contended that before receiving of the information at the police station the investigation was taken up. He draws my attention to the formal first information report and has contended that the information received at the police station on 21.7.2004 around 17.30 hours but the seizure in connection with the case was made on that date around 13.05 hours. He has also contended that the witnesses of the prosecution are interested witnesses. No independent witness was examined. He draws my attention to the formal first information report and has contended that the information received at the police station on 21.7.2004 around 17.30 hours but the seizure in connection with the case was made on that date around 13.05 hours. He has also contended that the witnesses of the prosecution are interested witnesses. No independent witness was examined. The learned Court below has erred in law in convicting the appellant though the prosecution has objectively failed to prove the time, manner and place of assault by substantive evidence. The judgment impugned is based on surmise and conjectures but not on materials-on-record. The medical evidence did not support the evidence of the FIR maker Monoranjan Biswas regarding the marks of injury over the dead body of Anima Biswas. The Prosecution has failed to prove a scrap of paper to show that actually there was salish over the family disputes. FIR maker Manoranjan, Nilima Sarkar, Purnima Ghatak and Mamata are close relatives of deceased Anima Biswas and as such the learned Court below ought to have disbelieved their evidence. There is no proof of the incident of demand of dowry and as such the suicide resulting therefrom could not be connected to conclude that refusal to meet the demands for dowry deceased Anima Biswas had committed suicide. He has also contended that the examination of the appellant under Section 313 of Cr. P.C. was highly improper. The impugned judgment is bad in law and is liable to be set aside. Mr. Dastoor has referred three decisions reported in AIR 1984 SC 1622 , AIR 1955 SC 792 and AIR 2007 SC 2045 to substantiate his argument. Mr. Abhijit Adhya, learned Counsel appearing for the State has contended that the prosecution has produced all the vital witnesses and caused the exhibition of documents. The evidence of the prosecution witnesses stood the test of sound cross-examination. The victim has committed suicide within a very short period of her marriage. There is evidence that appellants used to demand money and tortured the victim both physically and mentally and as a result the victim finding no option has committed suicide. The accused persons/appellants were examined under Section 313 of Cr. P.C. during their trial by the learned Court below and there was no departure in course of such examination to say that they were not properly examined. The accused persons/appellants were examined under Section 313 of Cr. P.C. during their trial by the learned Court below and there was no departure in course of such examination to say that they were not properly examined. The prosecution has proved the case and there is no illegality in the impugned judgment and order of conviction. The appeal may be dismissed. 5. THE prosecution has examined as many as 13 witnesses and during trial FIR, surathal report, seizure list, inquest report, post mortem report and rough sketch map with index of the place of occurrence have been exhibited. 6. PROSECUTION witness No. 1 is the FIR maker. He is Manoranjan Biswas. He has stated in his evidence that parents of Anima/victim gave money to the accused persons just after two months of her marriage with Bhola as per their demand and in spite of payment of such money Anima was both physically and mentally tortured for a further sum of Rs. 5,000/-. The said sum of Rs. 5,000/- was also paid after withdrawing the same from the Savings Bank Account of Anima. The said amount was paid to accused Bhola. He got the information over phone that accused persons killed Anima. He rushed to the in-law's house of Anima being accompanied by the para people. They found that dead body of Anima was lying on the floor of one room and accused Bhola and his mother Namita were found tied with the trees. He has stated further that he submitted written complaint. The written complaint was written by Barun Majumdar as per his instruction. He put his signature on it. He has further stated that at the time of inquest over the dead body of Anima he was present. He put his signature on the inquest report. In course of his cross-examination, he has stated that he saw accused persons to torture upon Anima and he informed the said incident to Gram Panchayat. He has also stated in his evidence that there were salish over the said matter. The salish held 4/5 times. Barun Majumdar has been examined as P.W.2. He has stated in his evidence that he wrote the FIR as per instruction of de facto complainant Manoranjan Biswas. He was tendered for cross- examination but his cross-examination was declined by the learned Defence Counsel. 7. SMT. Sumitra Majumdar has been examined as P.W. No. 3. The salish held 4/5 times. Barun Majumdar has been examined as P.W.2. He has stated in his evidence that he wrote the FIR as per instruction of de facto complainant Manoranjan Biswas. He was tendered for cross- examination but his cross-examination was declined by the learned Defence Counsel. 7. SMT. Sumitra Majumdar has been examined as P.W. No. 3. He is the neighbour of the accused persons. She has stated in her evidence that in her presence there was quarrel between Anima and her mother- in-law viz. Namita Mondal who also abused Anima in filthy and vulgar language and thereafter slapped her on the cheek .Thereafter, on hearing hue and cry raised by Nomita she went to the house of the accused persons and found the dead body of Anima lying on the floor of the room and one cloth was found hanging from the beam. She has also stated that Anima was a nice lady Nomita, mother-in-law of victim staying at her law's house. Several salishes were held regarding such dispute at their village. 8. MALAY Biswas has been examined as P.W. No. 4. He has stated that on hearing the news of her death, he went to the house of Bhola and found the dead body of Anima was being taken by the police in a van rickshaw. He put his signature on the seizure list and inquest report. P.W. No. 5 is Smt. Sufala Sarkar, a neighbour of accused persons. She has stated that hearing the sound of weeping, she went to the father-in-laws house of Anima and found her dead body lying on the floor of the room. She was declared hostile by the prosecution. She was confronted with her previous statement which she made before the investigating officer. The prosecution with the leave of the Court cross- examined her and in course of such cross-examination she has admitted to have been examined by the investigating officer but denied to have stated before him about the incident and torture. The evidence of the prosecution witness No. 5, Sufala Sarkar was placed at the time of examination of prosecution witness No. 13 i.e. investigating officer who has stated that Sufala in her statement under Section 161 Cr. P.C. has stated about the torture meted out to Anima and demand of dowry by the accused persons. The evidence of the prosecution witness No. 5, Sufala Sarkar was placed at the time of examination of prosecution witness No. 13 i.e. investigating officer who has stated that Sufala in her statement under Section 161 Cr. P.C. has stated about the torture meted out to Anima and demand of dowry by the accused persons. She has also stated in her said statement that Namita picked up quarrel with Anima, abused her in filthy and vulgar language by catching hold of the tuft of her hair. She has categorically stated that Anima was compelled to commit suicide by hanging in her father-in-laws house. Shri Basudeb Guha has been examined as P.W. No. 6. He is Deputy Magistrate, Ranaghat. He held inquest over the dead body of Anima Biswas on 22.7.2004 and proved the said inquest report which has been marked as Ext. 4. Deputy Magistrate has categorically opined in that report that the death of Anima was either suicide or murder. 9. P.W. No. 7 is Dr. Debasish Majumdar. He is a Medical Officer who was attached to Ranaghat Sub-Divisional Hospital at the relevant point of time. He has conducted post mortem examination over the dead body of Anima on 22.7.2004. On examination he found ligature mark in the neck of the deceased and opined that the death was due to hanging which was ante mortem in nature. In course of his examination the post mortem report has been marked as Ext. 5. 10. P.W. No. 8 is Nilima Sarkar, she is the sister of Anima. She has stated in her evidence that her sister Anima has committed suicide by hanging at her in law's house as she was the victim of torture at the instance of the accused persons since after seven days of her marriage for money and other dowry. She has also stated that her in-law's house is adjacent to the in-law's house of her sister Anima. Her sister Anima stated to her about the torture meted out to her at her in law's house. She has stated also that she has seen in her own eyes that accused persons tortured Anima. In her cross-examination she has categorically stated that Anima narrated the story of torture to her and para people held salish several times regarding the disputes between Anima and the accused persons. She has stated also that she has seen in her own eyes that accused persons tortured Anima. In her cross-examination she has categorically stated that Anima narrated the story of torture to her and para people held salish several times regarding the disputes between Anima and the accused persons. She has also stated that Nomita picked up quarrel with Anima over the issue of slicing fish just before the occurrence and at that time accused Bhola was present there. She has further stated in her cross-examination that her dwelling house situated near to the house of the accused persons and accused Bhola and Anima got married out of love affairs and thereafter their marriage was solemnized according to Hindu rites and customs. P.W. No. 9 is Smt. Purnima Ghatak and P.W. No. 10 is Mamata Biswas. Purnima Ghatak is the elder sister and Mamata Biswas is the mother of Anima. They have stated about the torture and demand of dowry as stated by other witnesses. Purnima has stated that Anima committed suicide by hanging 14 months after her marriage. She has also stated about the salish and demand of dowry. The para people tied accused Bhola and Anima with the trees and police arrested them from the spot. She and her mother Mamata arrived at the house of accused persons and found the dead body of Anima lying on the floor of the room. They noticed ligature mark around her neck and also found one cloth hanging from the beam of the room. 11. P.W. No. 11 is Gobinda Biswas. He has stated in his evidence that at first the family of accused Bhola did not accept the marriage in between Bhola ,and Anima and after taking some money from the parents of Anima, accused Bhola and his wife Anima were allowed to enter into the house. He has also stated that Anima lived peacefully at her in-law's house only for 15 days and thereafter she became the subject of torture at the hand of the accused persons for more money which he heard from Anima. He was present at the time of inquest and put his signature on the inquest report. In his cross-examination, he has specifically stated that he was one of the participants in the salish to make settlement of the dispute going on between Anima and the accused persons. 12. He was present at the time of inquest and put his signature on the inquest report. In his cross-examination, he has specifically stated that he was one of the participants in the salish to make settlement of the dispute going on between Anima and the accused persons. 12. P.W. No. 12 is Sujoy Majumdar who is witness to the inquest and P.W. No. 13 is Sub-Inspector Rejaul Haque. Sub-Inspector Rejaul Haque is the I.O. of the case. He has stated as to how investigation was done by him. He drew the sketch map of the place of occurrence with index (Ext. 6). He held inquest over the dead body of Anima and prepared inquest report (Ext. 2/4). He examined witnesses and recorded their statement under Section 161 of Cr. P.C. He collected post mortem report and on completion of the investigation submitted charge-sheet against the accused persons. It is an admitted fact that the victim got married with appellant Bhola Mondal following a love affair and their marriage was solemnized on 13th day of Baisakh, 1410 B.S. according to Hindu rites and customs. It is also an admitted fact that Anima has died due to effect of hanging which was ante-mortem in nature at her husband's place on 21.7.2004 around noon. The records speak that the evidence of de facto complainant's two sisters and mother of the victim is clear, consistent, unambiguous and corroborative with each other. Beside the evidence of the witnesses who are near and dear one to the victim, the evidence of independent witnesses who are neighbour of the accused persons is also very much clear. Those witnesses are Sumitra Majumdar and Gobinda Biswas. They have supported the evidence of the de facto complainant and others. All the witnesses have stated in the same tune categorically that Anima was subjected to torture both physically and mentally at her in-law's place. There was consistent demand of money and more money from Anima's parents by the accused persons. The torture meted out to Anima reached to an ultimate height and there were salish in the village on several dates to find out the ways so that Anima may live her peaceful life at her husband's place in the company of her beloved husband whom she married following a love affair and prosecution witness No. 11 Gobinda Biswas was one of the participants in that salish. Both independent witnesses have stated that they are the direct witnesses of torture on to Anima by her husband and husband's mother. All the witnesses were substantially cross-examined. The cross- examination failed to elicit any discrepancy whatsoever to questions the veracity of the witnesses produced by the prosecution. The evidence of the prosecution witnesses stood the test of lengthy cross-examination and remained unshaken. The defence has literally failed to elicit anything tangible which might remotely damage the testimony of the prosecution witnesses. It has come in evidence which is also an admitted fact that Anima has died by hanging within a span of one year three months of her marriage in her matrimonial home. The evidence of Autopsy Surgeon Dr. Debashish Majumdar reveals that death was due to the effect of hanging. Post mortem report i.e. Ext. 5 has been proved by doctor in course of his evidence. The oral evidence of doctor and post mortem report clearly reveal that the death was due to the effect of hanging. 13. ANIMA Biswas, victim died otherwise than under normal circumstances and the same is not disputed which I repeat. Section 113-A of the Indian Evidence Act deals with presumption as to abetment of suicide by a married woman. This section does not create an offence or make it punishable. It only deals with presumption which a Court may draw in a particular facts situation as contemplated under the provision is found existing. Presumption under Section 113-A would obviously arise only when the necessary ingredients in order to attract that provision are established. It is required that it should be proved that suicide has been committed by woman and there should be an allegation of abetment by her husband. Or any relative of her husband or she has been subjected to cruelty and such presumption is extendable for a period of 7 years from the date of marriage. There is substantive evidence to show that victim ANIMA faced ill treatment at the instance of her husband and mother-in-law and has committed suicide by hanging within a span of one year three months from the date of her marriage and as such it is the accused persons to rebut the presumption but they during their trial has neither adduced any evidence nor were in a position to elicit anything substantive by cross-examination of the prosecution witnesses to rebut such presumption. None has been examined as defence witness to show and prove that ANIMA did not commit suicide or that the death took place in normal circumstances on account of any disease or illness suffered by the deceased or death took place in a manner with which they were not at all concerned. Section 113-A of the evidence Act provides that when the question is whether the commission of suicide by woman had been abetted by her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relation of her husband have subjected her to cruelty, the Court may presume having regard to all other circumstances of the case that such suicide had been abetted by her husband and by such other relatives of her husband. 14. IN the case which is in our hand that the cruelty upon Anima has been proved beyond the shadow of doubt. There is specific evidence to prove that Anima was subjected to torture and she has committed suicide in her in-law's house and such suicide has been committed by her within a period of one year three months i.e. well within the seven years from the date of her marriage and that appellants Bhola Mondal and his mother Namita Mondal @ Tepi subjected her with cruelty. IN that backdrop, I find no hesitation to arrive at such a decision that Section 113-A of the Indian Evidence Act is attracted in this particular case to come to a conclusion that the cruelty of Bhola and his mother Namita simply abetted Anima to commit suicide to put an end to her life so that she may get rid of from the clutch of the accused persons. On close look of the FIR, it transpires that the FIR was received at the P.O. on 21.7.2004 at about 15.30 hours and the same was sent to Officer-in-Charge, Dhantala P.S. through Constable No. C/1492, Brojogopal Saha. On the receipt of the FIR formal FIR was drawn after observing all the formalities. 15. THE distance of the P.S. from P.O. is 15 km. THE time of seizure is 13.05 hours which been mentioned in the seizure list. THE unnatural death of the victim is an admitted fact and as such the argument regarding discrepancy of time is of little importance. 15. THE distance of the P.S. from P.O. is 15 km. THE time of seizure is 13.05 hours which been mentioned in the seizure list. THE unnatural death of the victim is an admitted fact and as such the argument regarding discrepancy of time is of little importance. Such discrepancy cannot be treated having severe impact to wash out positive evidence showing the culmination of the offence at the instance of the appellants. It is nobody's case that the salisnama was prepared. THE prosecution has produced witness Gobinda Biswas who was present at the salish and his direct evidence is sufficient to batter the argument regarding non- production of documentary evidence. 16. MR. Dastoor, learned Counsel of the appellant has cited three decisions. The Hon'ble Apex Court in the decision reported in AIR 1955 SC 792 (Machiander v. The State of Hyderabad) has observed that:- "Judges and Magistrates must realise the importance of the examination under Section 342. It is their duty to question the accused properly and fairly, bringing home to his mind in clear and simple language the exact case he has to meet and each material point that is sought to be made against him and of affording him a chance to explain them if he can and so desires." 17. THE Hon'ble Supreme Court in the decision reported in AIR 1984 SC 1622 (Sharad Birdhichand Sarda v. State of Maharashtra) has observed that:- "This Court held that any circumstances in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal .Procedure Code, the same cannot be used against him." 18. THE case which is in our hand is relating to torture to a woman at the instance of her husband and mother-in-law. On plain perusal of the Section 313 Cr. P.C. examination sheet it appears that questions put to the appellants during their trial were based on evidence on records. THE case which is in our hand is relating to torture to a woman at the instance of her husband and mother-in-law. On plain perusal of the Section 313 Cr. P.C. examination sheet it appears that questions put to the appellants during their trial were based on evidence on records. All the questions were put to the accused persons/appellants properly and fairly, bringing home to their mind in clear and simple language the exact case they had to meet and each material point that was sought to be made against them and of affording them a chance to explain it. THE answers given by the accused persons/appellant is only a framed-sentence "all are false". Moreover, there was no argument from the side of the defence before learned Court below that accused persons were not properly examined under Section 313 of Cr.P.C. I, therefore, find it judicious to say that the decisions noted hereinabove are not applicable in this case. The Hon'ble Apex Court in the decision reported in AIR 2007 SC 2045 (Bhagwan Das v. Kartar Singh and Ors.) has observed that:- "It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion would not be by itself and without something more attract Section 306 IPC read with Section 107 IPC. However, in our opinion mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 IPC, if the wife commits suicide." 19. THE victim woman met with an unnatural death within one year three months and provision laid down in Section 113-A of the Indian Evidence Act is fairly attracted which I discussed above. THE decision is as such not application in this case. Here the decision reported in 2006(1) C Cr LR (Cal) 635 (Niren Adhikary v. State of West Bengal) may be seen:- "Once cruelty is proved and once it is established that the lady committed suicide within seven years' of marriage, then presumption under Section 113-A of the Evidence Act would automatically spring up against the accused and there is very little or no endeavour on the part of the accused to extricate from that presumption. In our opinion, the learned Sessions Judge was right in using the presumption and it may be presumed that the accused had compelled the unfortunate lady to commit suicide." 20. CONSIDERING the facts and circumstances, evidence on record and banking on the aforenoted discussions, I find reason to hold that the judgment and order of sentence impugned do not suffer from any illegality. The appeal, thus, stand dismissed. 21. ACCUSED persons/appellants, namely, Bhola Mondal and Namita Mondal @ Tepi, if on bail are directed to surrender forthwith before the learned Court below to serve out the sentence. 22. SEND a copy of this judgment to the Court below for information. Urgent xerox certified copy of this order, if applied for, be given to the learned Advocate for the parties expeditiously.