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2018 DIGILAW 1298 (GAU)

Dhaneswar Bora v. State of Assam

2018-09-03

AJIT BORTHAKUR

body2018
JUDGMENT : Ajit Borthakur, J. 1. Heard Mr. A.K. Bhattacharyya, learned Sr. counsel assisted by Mr. B.M. Choudhury, learned counsel appearing for the appellant and Mr. T.K. Mishra, learned Addl. Public Prosecutor, Assam appearing for the State respondent. 2. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973(for short 'Cr.P.C') preferred against the judgment and order, dated 03.10.2008, passed by the learned Sessions Judge, Morigaon, Assam in Sessions Case No. 69/2005, whereby the accused appellant is convicted under Sections 498A/306 of the Indian Penal Code (for short 'IPC') and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 2000/- only, in default to further rigorous imprisonment for one month under Section 498A of IPC and to undergo rigorous imprisonment for five years and to pay fine of Rs. 5000/- only, in default to suffer rigorous imprisonment for two months under Section 306 of the IPC. APPELLANT'S CASE: 3. The appellant's case, in a nutshell, is that one Kabyajyoti Bora lodged an FIR before the Officer-in-Charge, Morigaon Sadar P.S. on 11.01.1998, alleging that his sister Malabika Bora, who was married to the appellant performing Hindu religious rites, used to tell them occasionally that her husband/the appellant herein perpetrated cruelty on her and on that day at about 7.15 PM, the Police personnel from Bordowa Police Station informed them that his said sister was dead. On receipt of the said information, he rushed to the house of the appellant and found the information to be correct. He came to know from the people that the appellant had committed the incident in a planned manner. It was further alleged that the appellant had shifted to a house near to his college and he stopped his family members from visiting the said house. INVESTIGATION, TRIAL & CONVICTION: 4. Based on the above FIR, Morigaon P.S Case No. 04/1998, under Section 304B of the IPC was registered, which was subsequently registered as GR Case No. 16/1998(A) in the Court of learned Chief Judicial Magistrate, Morigaon. SI, Dinesh Das investigated into the occurrence and on completion of investigation laid a charge-sheet under Section 304B of the IPC against the appellant. Based on the above FIR, Morigaon P.S Case No. 04/1998, under Section 304B of the IPC was registered, which was subsequently registered as GR Case No. 16/1998(A) in the Court of learned Chief Judicial Magistrate, Morigaon. SI, Dinesh Das investigated into the occurrence and on completion of investigation laid a charge-sheet under Section 304B of the IPC against the appellant. The said charge-sheeted offence being exclusively triable by the Court of Session, the learned Chief Judicial Magistrate committed the case to the Court of learned Sessions Judge, Morigaon for trial, after observation of necessary formalities under Section 209 CrPC. Thereafter, the learned Sessions Judge, Morigaon, after perusing the materials on the case diary and hearing the learned counsel of both the sides, having found prima facie ground to proceed against the appellant framed charges under Sections 498A/304B of the IPC vide order, dated 26.08.2005, passed in Sessions Case No. 69/2005. The appellant pleaded not guilty. Thereafter, the prosecution examined as many as 15(fifteen) witnesses including the Investigating Officer. After closing the evidence of the prosecution side, the statement of the appellant was recorded under Section 313 CrPC. The appellant pleaded not guilty and examined himself in defence. Three witnesses were examined as Court witness in the case. The additional charge under section 306 of the IPC was framed against the appellant vide order, dated 24.04.2006. The learned Sessions Judge, Morigaon after hearing the argument advanced by the learned counsel for both the sides and appreciation of evidence of both the sides convicted and sentenced the appellant as stated above. GROUNDS OF APPEAL: 5. By the instant appeal, the accused appellant has assailed the above impugned judgment and order of the learned Sessions Judge, Morigaon, inter alia, on the ground that the learned Sessions Judge, Morigaon has convicted him on total mis-appreciation of evidence on record as the evidence clearly reveals no proof of the ingredients of the offences under which he is held guilty. The appellant contended that the cause of death of his wife was apparently a case of suicide by hanging, for which he cannot be held guilty. 6. Be it mentioned here that hearing in the instant appeal was concluded on 24.08.2018 and today is fixed for delivery of the judgment. ARGUMENTS: 7. Mr. A.K. Bhattacharyya, learned Sr. The appellant contended that the cause of death of his wife was apparently a case of suicide by hanging, for which he cannot be held guilty. 6. Be it mentioned here that hearing in the instant appeal was concluded on 24.08.2018 and today is fixed for delivery of the judgment. ARGUMENTS: 7. Mr. A.K. Bhattacharyya, learned Sr. counsel appearing for the appellant vehemently submitted that the learned Sessions Judge, Morigaon convicted the appellant on mere suspicion and conjectures which is not admissible in law and undermining that the entire prosecution story is demolished by material contradictions in evidence of the prosecution witnesses and further, for want of evidence of independent witnesses supporting the presence of ingredients of the offences under which the appellant has been convicted. Mr. Bhattacharyya advanced argument in detail on facts as emerged from the evidence, oral and documentary, on record. 8. Mr. Bhattacharyya, learned Sr. counsel submitted that the basic purport of Section 498 A of the IPC takes note of the word 'cruelty' in three specific situations namely, to drive the woman to commit suicide or to cause great injury or danger to life, limb or health, both mental and physical and thus involving a physical torture or cruelty as is explained in Explanation (a) to the said Section. Mr. Bhattacharyya further submitted that in Explanation (b), there is absence of physical injury meaning thereby covering of coercive harassment to the woman embracing all the attributes of 'cruelty' in terms of Section 498 A of the IPC in order to curb the vice of cruelty to the married women. According to Mr. Bhattacharyya, Sections 498 A and 306 of the IPC are independent and constitute different offences depending on the facts and circumstances emerged in an individual case of subjecting a woman to 'cruelty' attracting the offence under 498A and if the course of conduct amounting to 'cruelty' is established leaving no other option for the woman except to commit suicide, is punishable under Section 306 of the IPC. Section 113 A of the Evidence Act, Mr. Bhattacharyya contended, is a presumption, which is, of course, rebuttable, establishes a link between the said two offences permitting a presumption of commission of the offence of abetment under Section 107 of the IPC, which defines the expression 'abetment of a thing'-an indispensable element in both the aforesaid offences to warrant conviction of the accused. According to Mr. Bhattacharyya contended, is a presumption, which is, of course, rebuttable, establishes a link between the said two offences permitting a presumption of commission of the offence of abetment under Section 107 of the IPC, which defines the expression 'abetment of a thing'-an indispensable element in both the aforesaid offences to warrant conviction of the accused. According to Mr. Bhattacharyya, the learned Sr. counsel, there are three sets of witnesses out of which the related witnesses have tendered evidence against the appellant based on what they heard or allegedly reported by the victim, which was never made known to the outsiders, whereas, the neighboring witnesses stated to have not witnessed anything unnatural in the behavior either of the appellant or his family except occasional weeping of the appellant's wife, who even on repeated enquiry by the neighbors did not disclose the reason for weeping. 9. Mr. B.M. Choudhury, learned counsel assisting Mr. Bhattacharyya, learned Sr. counsel for the appellant cited the principles laid in Lakshmi Singh Vs. State of Bihar, reported in (1976) 4 SCC 394 ; Nachhattar Singh & Ors. Vs. State of Punjab, reported in (1976) 1 SCC 750 and Kali Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 . 10. Mr. T.K. Mishra, learned Addl. Public Prosecutor, Assam submitted that the evidence of P.Ws-2, 4 and 6 have corroborated the prosecution contention that the deceased was driven to commit suicide due to the continuum cruelty perpetrated on her by her husband/the appellant. Mr. Mishra, further submitted that the deceased committed suicide within a period of 11 months of her marriage with the appellant in their house to which they shifted only one month before the incident. According to Mr. Mishra, the complicity of the appellant in the commission of the offences has been established by the circumstantial evidence of the neighboring witnesses, who unequivocally deposed about the sequence of events that preceded the incident, which is corroborated by the family members of the deceased. APPRECIATION OF EVIDENCE: 11. P.W.-1, Kabyajyoti Bora, is the informant and the brother of the deceased Malabika Bora, who lodged the FIR, dated 11.01.1998, but the same remained un-exhibited for the original FIR was lost. APPRECIATION OF EVIDENCE: 11. P.W.-1, Kabyajyoti Bora, is the informant and the brother of the deceased Malabika Bora, who lodged the FIR, dated 11.01.1998, but the same remained un-exhibited for the original FIR was lost. However, his (P.W-1) evidence reveals that on receipt of the information about the death of his sister Malabika from the local Bardowa Police Station, on 11.01.1998 at about 7.15 PM, he along with his brother Parthapratim, sisters Mridusmita (P.W-6) and Nibedita went to Jyotinagar, Morigaon, where the appellant along with his deceased wife Malabika lived in their newly constructed house since one month before. According to him(P.W-1), when they arrived at the house of the appellant, they found presence of the appellant's brother Prafulla and another who was not known to him. They did not find Dhaneshwar. They inspected the place where Malabika was found dead by hanging, but could not gather any information from the persons present about the circumstances in which Malabika died. P.W-6, Mridusmita Bora has corroborated this piece of evidence of P.W-1, her brother. Then P.W-1 went to the house of P.W-8, Baneswar Mahanta, who has not, as a whole, supported the prosecution case for which he was declared as a hostile witness. Although P.W-1 implicated the accused appellant with the allegation of commission of cruelty on his deceased sister Malabika as reported to him by P.W-8, P.W-8, however, termed the accused appellant as a simple, honest and sincere person and witnessed his cordial relationship with his deceased wife Malabika, who were occasionally seen together enjoying theatre and attending picnic etc. 12. According to P.W-1 Kabyajyoti Bora, P.W-8 Baneswar Mahanta told him that witnessing unbearable cruelty on his sister in the afternoon, he along with Principal, P.W-5 Prabhu Narayan Mazumdar, one Heremba Goswami and P.W-9 Sadananda Mahanta went to the house of the appellant, then subsequently, he deposed that it was reported to him by P.W-9. Perusal of the evidence of P.Ws-5 and 9, however, does not indicate that they witnessing any cruelty by the accused appellant on his wife, they went to their house situated at Jyotinagar, Morigaon. 13. The evidence of PW-1 Kabyajyoti Bora, the brother of the deceased further revealed that after marriage, the appellant and his deceased wife used to live at Naokata village and since then, the appellant husband started demanding money, godrej, showcase, and cash Rs. 30,000/- i.e 50% of the expenditure of his marriage. 13. The evidence of PW-1 Kabyajyoti Bora, the brother of the deceased further revealed that after marriage, the appellant and his deceased wife used to live at Naokata village and since then, the appellant husband started demanding money, godrej, showcase, and cash Rs. 30,000/- i.e 50% of the expenditure of his marriage. It is further revealed that appellant used to send his deceased wife Malabika to their house alone to bring money from their father. It is also revealed that the appellant used to sleep in separate room and she was not given meal sometimes and did not provide even lamp in the evening hours and further, she was compelled to wash utensils at the tube-well outside the compound. Perusal of the evidence of P.W-15, S.I. Dinesh Das, the I.O, it appears that PW-1 did not state these material facts in his statement recorded under Section 161 Cr.P.C. The evidence of PW-2, Arun Bora, the father of the deceased shows that he had no personal knowledge about those facts except by way of coming to know from his deceased daughter and his wife, i.e. the mother of the deceased, who is examined as CW-3. PW-2 stated about ill treatment meted out by the appellant to his wife Malabika from the time of their marriage and that he came to know about such ill-treatment by way of abstaining from looking after her well being, but such facts were denied to have been stated in his statement under Section 161 Cr.P.C as is revealed from the evidence of PW-15, the I.O. These allegations have also come in the evidence of PW-6, Mridusmita Bora, the sister of the deceased. The defence appears to have cross-examined PW-15, the I.O in a summary manner. PW-15 stated that PW-6 in her statement stated that her sister (the deceased) told her that her husband the appellant expressed annoyance for marrying her and also about telling her to lead her life as she liked. It needs to be mentioned that by reason of being related to the victim, the evidence of such relatives cannot be brushed aside terming such evidence to be interested if it appears to be very natural witnesses, which is, of course, further scrutinized later on. It needs to be mentioned that by reason of being related to the victim, the evidence of such relatives cannot be brushed aside terming such evidence to be interested if it appears to be very natural witnesses, which is, of course, further scrutinized later on. However, as none of the aforesaid related family witnesses did not witness what had actually taken place within the four walls of their house, between the appellant husband and his wife, this Court feels it necessary to look for some evidence beyond the family members to ascertain whether the evidence of such witnesses cast some light on such implicating circumstantial evidence. 14. The learned trial Court examined 3(three) witnesses as Court witness namely CW-1 Smti. Usharani Dutta Mazumdar, CW-2, Smti. Mini Mahanta, the colleague lecturers of the appellant in Morigaon College and CW-3, Smti. Giri Prabha Bora, the mother of the deceased Malabika. On scrutiny of the evidence of CW-1, it is noticed that she is a close neighbor of the family of the appellant and the deceased. The appellant informed her when she went to their house that his wife was weeping, in the bedroom, she straightway went to her bedroom and noticed one 'Chadar' hanging from the 'marali' i.e roof, whereupon she was terrified and called her husband, who, in turn, called Malabika's husband and both of them, therefore, entered into the bedroom of Malabika. 15. The learned trial Court examined the mother of the deceased namely, Giri Prabha Borah, as CW-3. Her evidence therefore, needs to be appreciated in detail. According to her, the marriage between the appellant and his deceased wife was solemnized on 17.02.1997, when Malabika was prosecuting Master Degree course. Initially she (CW-3) was not willing to give her in marriage as she was prosecuting higher studies, but as the appellant promised that he would facilitate her further studies, Malabika consented to her marriage. After their marriage, she visited the matrimonial home on two occasions. However, she did not have any occasion to visit their new accommodation. Her further evidence reads as hereinbelow extracted: "....Dhaneswar sent Malabika to our house demanding an amount of Rs. 30,000/-. Malabika had visited our home after her marriage with Dhaneswar only on two occasions. The amount of Rs. 30,000/- was demanded by Dhaneswar saying that he had incurred huge expenditure for the marriage with Malabika. Her further evidence reads as hereinbelow extracted: "....Dhaneswar sent Malabika to our house demanding an amount of Rs. 30,000/-. Malabika had visited our home after her marriage with Dhaneswar only on two occasions. The amount of Rs. 30,000/- was demanded by Dhaneswar saying that he had incurred huge expenditure for the marriage with Malabika. As informed by Malabika, Dhaneswar did not take anything prepared by her: neither tea, nor meal nor even water. He put her to do the house-hold chores to which she was not accustomed to. Dhaneswar even did not allow her two meals in a day. He only allowed her to take rice at one time in the day and he advised her to die and also insisted that she should go back and bring an amount of Rs. 30,000/- and Dhaneswar had mentally tortured my daughter. I stated all these to the police. Dhaneswar even did not enter her sleeping room and abstained from her. Malabika died within one year of her marriage with Dhaneswar." In cross-examination, she inter-alia deposed- "....There was vast age difference Dhaneswar and Malabika. At that time there was nothing in the nature of any demand by Dhaneswar. Dhaneswar was fully aware of our economic condition and also the fact that my husband had already retired from service. Malabika had Honours in Economics." " ...He did not insist on any money for any other family matters, but on grounds that he had incurred heavy expenditures at the time of his marriage and so he demanded Rs. 30,000/-. He did not ask for the money in the nature of help but rather demanded it." "...I did not state to the I.O that Dhaneswar demanded Rs. 30,000/- from us on grounds that he has spent a huge amount for his marriage with Malabika." "...It is not a fact that I did not state to the I.O that Dhaneswar did not enter the sleeping room of Malabika." "....It is not a fact that Malabika could not adjust with Dhaneswar due to age disparity and as such, she committed suicide." 16. Her (CW-3) evidence thus shows that the marriage between the appellant and Malabika was an arranged marriage and on mutual consent, there was vast disparity between the age of the appellant and his wife by about 18 years and after marriage, both of them moved together around including the house of CW-3. Her (CW-3) evidence thus shows that the marriage between the appellant and Malabika was an arranged marriage and on mutual consent, there was vast disparity between the age of the appellant and his wife by about 18 years and after marriage, both of them moved together around including the house of CW-3. Her evidence reflects on the failure of marital obligations on the part of the appellant and unlawful demand of money, which she did not state in her statement made before the Investigating Officer. Her evidence appears to have been corroborated by the other family members PWs-1, 2 and 3 in material particulars. However, before lending credence to their evidence, this Court feels it apposite to look for other corroborative reliable testimony of the neighboring witnesses and others connected to the family affairs of the appellant as normal observers before placing reliance wholly on their evidence for the sake of pure justice. 17. Her (CW-1) evidence significantly shows that she enquired from Malabika as to who had tied the 'Chadar', to which she replied that she herself tied it and on further enquiry as to why she behaved like that to which she replied nothing and continued weeping. She (C.W-1) suspected misunderstanding between the appellant and his wife Malabika and decided to call the parents of Malabika as well as to take the help of some senior associates of the College to effect temporary separation of them or to send Malabika to her parental home so that they can reconcile their differences in the meantime or if not at all possible to live peacefully to part each other. The occurrence of commission of suicide by hanging by Malabika took place on that Sunday. From her cross-examination, it inter-alia appears that on a Friday, they went to the house of the appellant and the appellant called his wife to come out, but she did not come out and therefore, he requested her to call his wife. Therefore, she went inside and found Malabika sitting on the bed and weeping, for which she asked her why she was so morose, but she continued weeping only and did not speak anything. Thereafter, they returned from the house of the appellant without knowing the apparent reason for her weeping, but she guessed that there might have been some misunderstanding due to some reason between them i.e. the husband and wife. Thereafter, they returned from the house of the appellant without knowing the apparent reason for her weeping, but she guessed that there might have been some misunderstanding due to some reason between them i.e. the husband and wife. She further stated that some of the College teachers and her husband went to the house of the appellant on a Sunday for a discussion over the aforesaid incident, but on their arrival they found that Malabika had already committed suicide. They found the appellant engaging one worker on that day in his house premises and the appellant was also not aware that his wife had already committed suicide inside their house. She further stated that once or twice they visited the house of the appellant and during their visits the appellant and his wife entertained them in normal atmosphere and they also visited their residence after their marriage on one occasion. On some occasions they were also seen going together for enjoying theatre. She did not see Malabika cleaning utensils outside her home. Corroborating her (CW-1) evidence, the evidence of CW-2, Smti. Mini Mahanta, stated that her family had no terms with the family of the appellant, which shifted to their new house located in their locality about a month before the death of Malabika. Her evidence further reveals that on the day, when Malabika was found to have committed suicide, Prabhu Narayan Mazumdar (PW-5), Baneswar Mahanta (PW-8) and Heramba Goswami came to their house and called her husband to accompany them to the house of the appellant as there was some misunderstanding between the appellant and his wife and they wanted to prevail upon them for settling their differences. However, when they reached their home they came to know that Malabika had already committed suicide. From her (CW-2) cross-examination, it appears that she is the immediate neighbor of the appellant and from her house, the house of the appellant is visible and despite being so, she did not notice any abnormality in the behavior of the appellant and Malabika. She saw them moving around together and virtually she did not have any such personal knowledge about any difference between the appellant and his wife. 18. Perusal of the evidence of PW-12, Dr. ATM Eusuf, the Medical Officer of Morigaon Civil Hospital, who, jointly with Dr. She saw them moving around together and virtually she did not have any such personal knowledge about any difference between the appellant and his wife. 18. Perusal of the evidence of PW-12, Dr. ATM Eusuf, the Medical Officer of Morigaon Civil Hospital, who, jointly with Dr. K. Khound, performed the post-mortem examination on the corpse of Malabika on 12.01.1998, in connection with UD Case No. 1/98 held the opinion that the cause of her death was asphyxia following suicidal hanging vide Ext. 1, the carbon copy of the post-mortem report and that there was no mark and history of external physical assault. Thus, the post-mortem report rules out any possibility of assault/application of criminal force on the deceased immediately before her death in any manner, the autopsy Surgeon opined. 19. In the instant case, PW-3 Bipin Chandra Kalita, his wife PW-4 Binumai Kalita and PW-8 Baneswar Mahanta are the neighbors of the appellant and the deceased located at Jyoti Nagar, Morigaon. From the evidence of PW-3, Bipin Chandra Kalita, it appears that although he had no speaking terms with Malabika, he heard Malabika sometimes weeping at their newly constructed house and one day saw her weeping sitting near a bridge which was situated near their house but, he did not enquire her as to what afflicted her to weep. PW-3, however, reported the incident to PW-9 and one Heramba Goswami, who were teachers in Morigaon College, where the appellant was also working as a lecturer as well as PW-7 Sarbeswar Kalita, a neighbor of PWs-1 and 2. Thereafter, he asked his wife PW-4 to interrogate the wife of the appellant as to why she was so weeping and after about 15 to 20 days, Malabika committed suicide by hanging in her room. His wife PW-4, Binumai Kalita, had speaking terms with Malabika as a neighbor at the newly constructed house, located at the adjacent place of their residence. According to her (PW-4), she requested Malabika to visit their home but she did not visit and she noticed her in a joyful mood, for which one day, she interrogated her, but did not get any satisfactory reply, except telling her that there were some reasons. According to her (PW-4), she requested Malabika to visit their home but she did not visit and she noticed her in a joyful mood, for which one day, she interrogated her, but did not get any satisfactory reply, except telling her that there were some reasons. She (PW-4) witnessing Malabika sitting in the field, requested her to tell everything openly, to which she replied that her husband did not love her and they used to live in separate rooms and if she offered anything to her husband i.e. the appellant, he did not take. This conversation had taken place about one month before the incident of commission of suicide by Malabika and interestingly, during the aforesaid intervening period of one month, she never wanted to know any clarification over the allegations made by Malabika from her husband/the appellant. There is no explanation on the evidence of PWs 3 and 4, the husband and wife, as to why no approach of the appellant was made on having learnt about persistence of strained relation between him and his wife as good neighbors. PW-4 did not even report the aforesaid allegations and incidents of weeping by Malabika to anybody except her husband PW-3. Coming to the evidence of PW-7, Sarbeswar Kalita, a neighboring resident of Bordowa has simply stated to have received an information from PW-3, Bipin Chandra Kalita to the effect that the daughter of PW-2 used to weep and their family was in trouble, which information was conveyed to PW-1, the son of PW-2, i.e. the brother of the deceased, without having any personal knowledge about what was actually going on in the family of the appellant and further, he admittedly did not state these facts in his statement under Section 161 Cr.P.C. 20. From the evidence of PW-9 Sadananda Mahanta, a colleague of the appellant in Morigaon College, it appears that one day, he along with the Principal of their college, PW-5 Prabhu Narayan Mazumdar went to the house of the appellant and they found the appellant working in the courtyard with a labour and witnessing their arrival, he came near them and requested to take seat. At that time, neighbors Heramba Goswami and PW-8, Baneswar Mahanta were also sitting in their house. Prof. Goswami asked the appellant if he had strain relation with his wife to which he replied in the negative. At that time, neighbors Heramba Goswami and PW-8, Baneswar Mahanta were also sitting in their house. Prof. Goswami asked the appellant if he had strain relation with his wife to which he replied in the negative. After that the appellant called his wife by her name, but she was inside the house closing the door and she did not respond to the repeated callings of the appellant. Appellant peeped through the window and found his wife to have committed suicide by hanging, which he at once reported to them. Before that, the appellant wanted them to have tea, whereupon they requested him to call his wife. After finding the appellant's wife committing suicide, PW-5 informed the Police, over phone about the said incident. From the cross-examination of PW-9, it transpires that on repeated calling of his wife when no response was received, her husband the appellant became annoyed with her and then he peeped through the window and having noticed his wife's commission of suicide, he became perturbed, indicating thereby, that he had no previous knowledge about his wife committing suicide at that moment as he behaved at that moment as a reasoned man would have normally reacted in such a perplexed abruptly developed situation. According to him (PW-9), who is a close neighbor, never saw the appellant quarreling with his wife. His evidence thus reveals that the relationship between the appellant and his deceased wife was cordial, which piece of material evidence is corroborated, as stated above, by PW-8. The evidence of PW-10 Bani Baruah, another lecturer of Morigaon college, reveals that her evidence of strain relation between the appellant and his wife was hearsay evidence only and as such, no reliance can be placed on her evidence on this count. However, from her (PW-10) cross-examination, it appears that she did not notice any abnormal behavior on the part of the appellant, who was the husband of the deceased. PW-11, Atul Bora, who is a businessman by profession and a neighbor of the appellant, simply stated to have heard that the wife of the appellant had committed suicide and as such, his evidence is apparently hearsay like the evidence of PW-10. PW-13 Diganta Kr. Bora, brother-in-law of the deceased deposed that his sister-in-law Malabika died on 11.01.1998 and Police seized one 'Chadar' and a stool which he recognized vide M. Ext. 1 and M. Ext. PW-13 Diganta Kr. Bora, brother-in-law of the deceased deposed that his sister-in-law Malabika died on 11.01.1998 and Police seized one 'Chadar' and a stool which he recognized vide M. Ext. 1 and M. Ext. 2, the seized 'Chadar' respectively. 21. PW-14 ASI Anu Ram Nath was the Investigating Officer in UD case No. 1/98, registered on the basis of an F.I.R lodged by the appellant himself on 11.01.1998 at about 4.15 p.m and during investigation, he inspected the place of occurrence i.e. the house of the appellant, prepared an inquest report vide Ext. 2 on the corpse of the deceased Malabika and then sent the corpse for post-mortem examination and on completion of the investigation, he submitted final report stating that the case was apparently a case of suicide. The case record does not show that the final report of the said UD case was exhibited in the case, which amounted to suppression of an essential fact for justice in the matter. This fact has come in the evidence of PW-15, S.I Dinesh Das, the Investigating Officer of this case, which was registered on 11.01.1998 based on the F.I.R. lodged by PW-1 Kabyajyoti Bora. According to him (PW-15) he sent some of the witnesses to get their statement recorded under Section 164 Cr.P.C., but no statement recorded under Section 164 Cr.P.C. was exhibited in the case. There is no explanation on record as to why those judicial statements were not exhibited during trial. After completion of investigation, PW-15, the I.O laid the charge-sheet vide Ext. 2. It needs to be mentioned here that he tendered evidence based on the duplicate Case Diary, without any explanation as to why the original Case Diary including the FIR of the case was not available. 22. The appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution case and pleaded innocent. From his statement in defence, it appears that the deceased wife did not like him due to difference in age and termed him as an incompetent husband. His statement further revealed that she used to sleep throughout the day, but he did not disturb her and that the witnesses who had cordial relationship with him turned hostile after his wife Malabika met with unnatural death. 23. His statement further revealed that she used to sleep throughout the day, but he did not disturb her and that the witnesses who had cordial relationship with him turned hostile after his wife Malabika met with unnatural death. 23. Thus, there are four sets of witnesses, one the family witnesses consisting of PW-1 the brother, PW- 2 the father, PW-6 the sister, PW-13 brother-in-law and CW-3, the mother of the deceased Malabika; neighbors PW- 3, PW-4, PW-7, PW-8, PW-11, CW-1 & CW-2 and the colleagues of the appellant in Morigaon College namely PW-5, PW-9 & PW-10 and further, the Official witnesses namely PW-12, the Doctor, PW-14, the I.O in UD case No. 01/98 and PW-15, Dinesh Das. While appreciating the evidence led by the prosecution side, this Court has taken into consideration, the defence evidence of the appellant himself with equal weight with that of the evidence tendered by the prosecution witnesses. There is no dispute on record that Malabika, the deceased wife of the appellant committed suicide in the afternoon of 11.01.1998 at their newly constructed house at Jyotinagar under Morigaon P.S. The question remains as to under what circumstances, Malabika committed suicide? 24. In substance, the family members of the deceased blamed the appellant husband accusing him of driving his wife to commit suicide by hanging due to constant mental cruelty in different forms, since after the marriage by the appellant on his unlawful demand for money which her family members could not meet and on the other hand, due to not maintaining marital fidelity as well. The neighboring witnesses as it apparently emerged on evidence had not seen anything in spite of their close proximity to their family life. What it appears is that although both the appellant and his deceased wife had been maintaining social relation such as visit to the neighbors' house, attending to picnic, and watching of theatre, but the victim frequently resorted to weeping inside and outside their house, without disclosing as to what afflicted her. On enquiry of the neighbors even the deceased Malabika did not divulge anything to them even on the last day of her committing suicide and therefore, the reason behind her commission of suicide has remained a mystery. On enquiry of the neighbors even the deceased Malabika did not divulge anything to them even on the last day of her committing suicide and therefore, the reason behind her commission of suicide has remained a mystery. The neighbors and the colleagues of the appellant did not notice any abnormality either in the behavior of the appellant or otherwise anything what is opposed to a reasoned man's reaction in the circumstances. Therefore, in such fact situation and circumstances, the question arises whether the appellant can reasonably be suspected of having complicity in the commission of suicide by his wife Malabika. Legally speaking, an accused is presumed to be innocent until he is found guilty beyond all reasonable doubt. In Sohan and Anr. Vs. State of Haryana, reported in (2001) 3 SCC 620 , the Hon'ble Supreme Court reiterated the principle that the burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish it's case beyond all reasonable doubts. In Dalip Singh and Ors. Vs. State of Punjab, reported in AIR 1953 SC 364 , the Hon'ble Supreme Court observed that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. The Hon'ble Supreme Court in Bhargavan Vs. State of Kerala, reported in (2004) 12 SCC 414 , held that the relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In the case of Ashish Batham Vs State of Madhya Pradesh, reported in (2002) 7 SCC 317 , the Apex Court held that mere suspicion, however strong it may be, cannot take the place of legal proof. Further in Hanumant Vs. the State of Madhya Pradesh, AIR 1952 SC 343 , the Hon'ble Supreme Court made it clear that conviction can be based on circumstantial evidence but it should be tested by the touchstone of Law relating to circumstantial evidence. Further in Hanumant Vs. the State of Madhya Pradesh, AIR 1952 SC 343 , the Hon'ble Supreme Court made it clear that conviction can be based on circumstantial evidence but it should be tested by the touchstone of Law relating to circumstantial evidence. Conviction based on circumstantial evidence must satisfy the following tests: 1. The circumstances from which an inference of guilt is sought to be drawn, must cogently and firmly be established: 2. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused: 3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused: and 4. The circumstances appearing are incapable of explanation of any other hypothesis than that of the guilt of the accused. 25. It may be added further that in Lakshmi Singh and Ors Vs. State of Bihar, reported in (1976) 4 SCC 394 , the Hon'ble Supreme Court held that it is well settled that fouler the crime, higher the proof. Here also a reference may be made to an observation made by the Hon'ble Supreme Court in Nachhattar Singh and Ors Vs. State of Punjab, reported in (1976) 1 SCC 750 , to the effect that "the various infirmities and defects in the prosecution case, as referred to above, had broken the grain of the story and mixed it with chaff to such an extent that it was difficult, almost impossible, to separate them and find the guilt of the appellants to have been proved beyond reasonable doubts." 26. In the instant case, what it appears is that the family witnesses have tendered grave incriminating circumstances against the appellant showing that in the compelling circumstances of cruelty, perpetrated by her husband/the appellant, Malabika committed suicide, whereas, the neighboring witnesses have consistently contradicted the aforesaid evidence of the family witnesses as none of them had seen the appellant indulging in any act of cruelty on her and did not even notice any abnormal behavior on the part of the appellant to suspect reasonably of his involvement in commission of the offences of cruelty and instigating his wife to commit suicide. The presumption has been reinforced by the evidence that the UD case No. 1/1998 was submitted in final report to the effect that the death of Malabika was the result of suicide. Needless to say that suicidal tendency is basically a psychotic disorder caused by constant depression which can be prevented by way of timely medical intervention. There is no clue on evidence as to what had driven Malabika, who was an educated lady, to suffer intense depression culminating in her commission of suicide by hanging within a year of her marriage to the appellant, who was also a college teacher. Therefore, the adverse presumption against the appellant under Section 113 A of the evidence Act, cannot rightly be inferred as the appellant by way of cross-examining the prosecution witnesses and examining and subjecting himself to the cross-examination of the prosecution, has effectively rebutted the said statutory presumption. The situation is such that there are apparently two views each opposed to the other view, one going against the appellant and another in favour of the appellant and as such, applying the principle laid by the Hon'ble Supreme Court in Kali Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 , in the backdrop of evidence on record, this Court is of the considered opinion that the benefit of the evidence which goes in favour of the appellant should be given preference to the evidence which goes in favour of the prosecution. CONCLUDING REMARKS: 27. For the reasons, set forth above, this Court is of the considered opinion that there is no cogent and convincing evidence to infer beyond reasonable doubt that the appellant had subjected his wife, the deceased, Malabika to any ill-treatment or causing of pain or distress or otherwise instigated or abetted in any manner so as to drive her to commit suicide. 28. Consequently, the appeal stands allowed and accordingly the impugned judgment and order of conviction of the appellant is set aside. The accused/appellant is acquitted of the charges under Sections 498 A/306 of the IPC and set at liberty forthwith. Send back the LCR along with a copy of this judgment and order.