Gauhati High Court
Nurjamal Ali @ Hoque @ Nurjamal Hoque vs The State Of Assam And Anr on 13 July, 2026
Page No.# 1/19
GAHC010138322024
2026:GAU-AS:9499
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./215/2024
NURJAMAL ALI @ HOQUE @ NURJAMAL HOQUE
S/O KITAB ALI @ KITAP ALI,
VILL.- NAITOR, P.S.- NAGARBERA, DIST.- KAMRUP, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM.
2:FAZAL HOQUE @ MD. FAZAL ALI
S/O LATE PASAN ALI
VILL.- NAITOR
P.O.- NAGARBERA
P.S.- NAGARBERA
DIST.- KAMRUP
ASSAM
PIN- 781127
Advocate for the Petitioner : MR. N UDDIN, MR S K CHHETRY,MR. M ISLAM,MD A ISLAM
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Advocates for the Appellant: Mr. N.Uddin
Advocate for the respondents: Mr. P.S. Lahkar, Addl.P.P
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Date on which judgment is reserved: 15.05.2026
Date of pronouncement of judgment : 13.07.2026
Whether the pronouncement is of
the operative part of the judgment : Full judgment.
Whether the full judgment has been
pronounced : Yes
JUDGEMENT AND ORDER (CAV)
Heard learned counsel for the Appellant Mr. N.Uddin and learned Additional
Public Prosecutor Mr. P.S. Lahkar for the State of Assam.
2. This criminal appeal under Section 415 of the BNSS, 2023 has been filed
by Md. Nurjamal Ali @ Hoque @ Nurjamal Hoque(hereinafter referred to as the
‘accused’ or the ‘appellant’) who is aggrieved by the Judgment and Order dated
17.05.2024 passed by the learned Sessions Judge, Kamrup, Amingaonin
connection with Sessions Case No. 338/2014,convicting the appellant under
Section 304B of the Indian Penal Code, 1860 (‘IPC‘ for short) andsentencing him
to undergo rigorous imprisonment for 8 years and to pay a fine of Rs. 20,000/-
(Rupees Twenty Thousand) with default stipulation.
3. The genesis of the case was that the victim Mustt. Ajima Khatun’s
marriage was solemnized with the appellant and after her marriage, the
appellant along with his family members, used to demand dowry. She was
subjected to cruelty to meet their illegal demand of dowry. On 30.11.2012, at
about 10 am, Md. Raham Ali who was also made an accused in connection with
the above-mentioned case, came to Md. Fazal Hoque’s house and informed him
that his daughter has died by hanging.Immediately,the wife and son of Md.
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Fazal Hoque (hereinafter referred to as the informant) went to the appellant’s
house and saw the victim lying on the floor. This impelled the informant to lodge
the FIR, which was registered as Nagarbera PS case No.73/2012under Section
304B of the IPC.
4. The Investigating Officer embarked upon the investigation and on
conclusion of the investigation,charge sheet was laid against the appellant while
the other accused, named in the FIR, were not charge sheeted due to
insufficient evidence against them. On appearance of the appellant, a formal
charge under Sections 304B/302 IPC was framed and read over and explained
to the appellant, who pleaded not guilty and claimed to be tried.
5. To substantiate its stance, the prosecution adduced the evidence of 8
(Eight) witnesses and the defence cross-examined some witnesses to refute the
charges. On the incriminating materials arising against him, several questions
were asked to the appellant under Section 313of the Code of Criminal
Procedure, 1973 (CrPC for short) and the answers to the questions by the
appellant depicts a plea of total denial.
6. The learned counsel for the accused/appellant assails the evidence
adduced by the prosecution. It is submitted that no scope was accorded to the
defence to project the contradictions elicited through the cross-examination of
the witnesses as per Section 145 of the Indian Evidence Act 1872 ( ‘the
Evidence Act‘ for short) qua Section 162 of the CrPC. PW2 and PW4, who
happens to be the deceased victim’s parents, have stated that they were
informed by their daughter about the cruelty meted out to her by the appellant
to meet his illegal demand of dowry. Only PW2 and PW4 have deposed about
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cruelty to the victim, whereas the evidence of PW8 cannot be considered as
PW8 was declared to be a hostile witness.
7. It is further contended by the learned counsel for the appellant that the
doctor’s evidence is clear that the ligature mark on the neck was the only injury
found on post-mortem examination, which clearly depicts that the victim was
not subjected to cruelty before her death, and the victim committed suicide for
reasons unknown. It is further submitted that although PW2 has testified that
he purchased furniture,but no receipts were produced to substantiate his
stance.
8. The cross-examination of PW2, the victim’s father, i.e. the informant,
clearly depicts that he has not lodged any case earlier against the appellant
relating to cruelty meted out to his daughter. It is also to be borne in mind that
PW3 is also a distant relative. The evidence of the other witnesses, PW5 and
PW6, does not at all implicate that the appellant subjected the victim to cruelty
to meet his illegal demand of dowry. They have never heard of any quarrel or
cruelty in the household of the deceased and the appellant. The remaining part
of the argument on behalf of the appellant will be discussed at the appropriate
stage.
7. The learned counsel for the appellant has relied on the decision of the
Supreme Court in the case of CharanSingh @ Charanjit Singh vs. The
State of Uttarakhand reported in connection with Criminal appeal No. 447/
2012 (order dated 20.04.2023 ) and on the decision of the High Court of
judicature at Patna in connection with Rajiv Ranjan vs State of Bihar in
connection with Criminal Appeal DB No. 640/2019 ( order dated 19.09.2024)
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8. Per contra, learnedAdditional Public Prosecutor laid stress in his argument
that there was no scope to lodge an FIR relating to the cruelty meted out to the
victim by the appellant and his family members. He submitted that the evidence
of PW2, informant clearly reveals that the victim died immediately after 2-3
months of her marriage.He submitted that the demand of dowry was
immediately after the marriage between the victim and the appellant. An early
FIR relating to any incident of dowry or cruelty is not required to be proved. He
also submitted that the father tried to meet the demand of dowry and PW6 has
specifically stated that he was informed by the victim’s father that prior to the
incident, the informant apprised him of the demand of furniture by the
appellant. It is submitted by the learned Additional PP that this evidence of
PW6 was not contradicted nor controverted. Thus, no evidence of IO is required
to prove any contradictions relating to his earlier statement as no question
relating to the earlier statement of this witness under Section 145 of the
Evidence Act were put to him. It also submitted by the learned Additional PP
that the answers of the appellant under Section 313 CrPC were evasive.He did
not discharge his onus under Section 106 of the Evidence Act. In a case of
unnatural death under such circumstances, the appellant has to discharge his
onus under Section 106 of the Evidence Act. There was no explanation offered
by the appellant to justify what drove the victim to commit suicide.
9. The learned Additional PP emphasized through his argument that the
evidence of the IO does not prejudice the appellant as no contradictions could
be elicited through the cross-examination of the witnesses to contradict the fact
that within 2-3 months of her marriage, the victim committed suicide on
instances of demand of dowry in the proximate past.
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10. As this is a first appeal, the evidence of the witnesses are re-appreciated.
The informant, Md. Fazal Hoque as PW2 deposed that he lodged the ejahar
which was written by a scribe. About 3 ½ years ago, his daughter, Ajima
Khatun, was married to the appellant. About 2/3 months after their marriage,
the appellant demanded furniture as dowry and subjected his daughter to
cruelty. His daughter used to inform him about the cruelty meted out to her and
used to be despondent. It was further deposed that about 6 days prior to the
incident, his daughter, came to his house and informed him about the mental
and physical cruelty meted out to her. She informed him about the demand of
dowry and the cruelty she was subjected to. Subsequent thereto, on the
following Monday, he purchased some furniture from the market to meet the
appellant’s demand of dowry and on the next day, the appellant came and
sneered at the quality of the furniture and took back his daughter to his house.
Thereafter, the appellant again started torturing his daughter and he refused to
take the furniture purchased by PW2.
PW2 further deposed that after about 3 days Md. Raham Ali, a relative of
the appellant, came and informed him that his daughter has passed away. At
that time, he was in the market, and then his wife, Monora Khatun, and their
elder son Ansar Ali, immediately went to the appellant’s house and found their
daughter lying in the courtyard. He learnt about the incident at about 10 a.m.
in the market and immediately he went to the appellant’s house and saw his
daughter’s body. He also noticed a mark on her chest and he noticed a rope of
about one and a half feet in length. Raham Ali informed him that his daughter
committed suicide by hanging with the help of the rope. However, he was not
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convinced that his daughter had committed suicide, and he was certain that she
was killed by the appellant and his family members. He immediately went to the
police station on the same day and lodged the FIR.
11. The learned counsel for the appellant laid stress in his argument that the
cross-examination of PW2 clearly depicts that he could not remember the name
of the scribe of the FIR. This person was an important witness and he was not
examined by the prosecution. He has also admitted in his cross-examination
that he did not submit any receipt of purchasing the furniture to the police.
12. In this case, the evidence of PW2 is corroborated and supported by the
evidence of PW4.
PW4 Manowara Khatun is the wife of PW2 and she has testified that her
daughter was married 3 (Three) months prior to the incident. After her
daughter’s marriage, the appellant, i.e. her son-in-law subjected her daughter to
cruelty to meet his demand of dowry. He also started demanding wooden
furniture and accordingly, her husband purchased some wooden furniture which
was however rejected by her son-in-law i.e. the appellant, as he did not approve
of the same. When her husband purchased the wooden furniture, her daughter
was in their house and the appellant came to their house, and took back their
daughter to her matrimonial home. Thereafter, again, the appellant subjected
her daughter to cruelty.On Wednesday, the appellant took back the victim to his
house and on Friday, the brother-in-law of the appellant informed them that her
daughter had passed away. Immediately, she went to the victim’s matrimonial
home and she saw her body, which was laid on the courtyard of the house. She
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learnt that her daughter was killed by the appellant.
13. Learnedcounsel for the appellant/accused laid stress in his argument that
PW4 has also admitted in her cross-examinationthat she never lodged any case
in the police station relating to the demand of dowry by the appellant. She has
also admitted that the police did not record her initial statement.
14. Another witness PW5, Md. Ashan Ali @ Asen Ali deposed that about 4/5
months prior to the incident, victim’s marriage was solemnized with the
appellant socially.Thereafter, she started her conjugal life in the appellant’s
house. Initially, for about one and a half months, they had a good relationship.
Subsequently, he came to know that the victim was subjected to cruelty by the
appellant.Prior to the incident, the victim’s father informed him twice that his
daughter was being tortured due to his inability to fulfil the demand of furniture
by the appellant. In fact, the victim also informed him about the cruelty meted
out to herby the appellant to meet his demand of dowry.
15. PW5 further deposed that prior to the incident, the victim’s father, on
Monday, bought some simple furniture from Dhupdhara market and presented
the furniture to the appellant by calling the appellant and the victim to their
house, but the appellant refused to accept the furniture as the furniture was not
to his liking.Thereafter, the appellant along with his wife went back to their
house. On the same week, on Friday, on 30.11.2012 at about 9.30 AM,Raham
Ali informed the victim’s father that his daughter had committed suicide by
hanging. At that time, the informant was not at home and on receiving the
information, his wife and son immediately went to the Place of Occurrence (PO
for short). As his house is about 200 meters from the informant’s house, he too
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went to the PO.He noticed a 2 (Two)feet long plastic rope lying on the neck of
the victim and her body was lying on the floor of the house. He and the mother
of the victim noticed a mark on the victim’s neck and the other ladies of the
village also noticed a mark on her chest. He believes that the victim was killed
by the appellant in a pre-planned manner.
16. Learned counsel for the appellant laid stress in his argument that the
evidence of the Medical Officer belies the evidence of PW2 and PW5, who stated
that they have noticedmarksof injuries on the victim’s neck and chest and the
Medical Officer did not detect any injury, apart from the ligature mark. It is also
submitted that PW5 is not a neighbour of the appellant, and he is a neighbour
of the informant and he will not know of any incident of domestic violence
taking place in the appellant’s house. He has also admitted in his cross-
examination that he did not have any personal knowledge of the incident. He
has admitted in his cross-examination that he heard that the deceased had
committed suicide by hanging.
17. In sync with the evidence of PW2, PW4 and PW5, Habiluddin Ahmed
deposed as PW3 that both the appellant and the informant are known to him as
they are co-villagers.The incident occurred on 30.11.2012. He heard a
commotion and he immediately took his motorcycle and went to the PO. He saw
a gathering, and people were crying and he was informed that the victim had
passed away.He went inside the house and saw the dead body lying on the
floor. The mother of the appellant informed him that the deceased died by
hanging from the ‘bamboo kanchee’of the ceiling. On his queries, some people
informed him that the deceased hanged herself with a rope which was found
lying near the body.The rope would be approximately 2 feet in length.
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18. PW3 further deposed that the marriagebetween the deceased and the
appellant was solemnized only 4 (Four) months prior to the incident. He heard
about some dispute between the family of the deceased and the appellant
regarding some furniture purchased by the father of the deceased, and the
appellant did not approve of the furniture.He heard about this fact from the
father of the deceased, as well as from the appellant. When he reached the PO,
the police was not present. At that time, the family members of the deceased
were also not present at the PO.He had not seen the body of the deceased in
hanging condition. Subsequently, police came to the PO and his statement was
recorded. The inquest was held by Sayed Mohammad Jahid Chishti, Circle
Officer of Nagarbera. He has identified the inquest report as Ext. 4 and he has
proved his signature as Ext. 4(3). The victim’s father also informed him that
initially the relationship between the deceased and the appellant was not
strained, butsubsequently, the relationship turned sour and they started
quarrelling.
19. Learned counsel for the appellant laid stress in his argument that PW3
would not be aware of the incidents as he resides further away from the PO and
this is the reason why he had to travel by his motorcycle to the PO on the day
of the incident. He has also admitted in his cross-examination that he did not
see any furniture or other articles given by the father of the deceased to the
appellant at the time of marriage and he was not aware of any articles which
were given to the appellant at the time of his marriage. He has admitted that he
has not stated before the police about any furniture or articles being given by
the father of the deceased to the appellant.He has also admitted that he has not
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stated before the police that the appellant subjected the victim to cruelty due to
the inadequate articles and furniture given by the informant to the deceased at
the time of her marriage. However, on scrutiny, his cross-examination reveals
that he heard about the incident from the father of the deceased and from
others as well; despite the fact he admitted that he was not aware about the
relation between the appellant and the deceased prior to the incident.
20. An important witness according to the prosecution appears to be PW6.
Md. Noor Mohammad Ali, deposed as PW6 that the incident occurred on
30.11.2012 in the appellant’s house. He was in the market, when he heard
about the incident at about 9.30-10.00 AM. He then went to the PO and saw the
informant’s daughter lying on the floor of the house. The appellant’s mother on
being queried, informed him that the victim died as a result of hanging. The
appellant’s mother also showed him a rope used for hanging. The rope was a
plastic rope, about 2 feet in length. He noticed a light mark on the neck of the
deceased. The SDC came and held inquest in his presence. He affixed his
signature on the inquest report. He has proved his signature on the inquest
report as Ext. 4(4). Some women from the village also stated that they noticed
a mark on the victim’s chest.
21. PW6 further testified that he does not believe that the victim committed
suicide. He had earlier heard from the informant that the appellant demanded
furniture from the victim’s family. The deceased and the appellant got married
about 4-5 months prior to the incident.
22. The cross-examination of PW6 is important. It appears that PW6 is an
independent witness. Whether any statement has been contradicted as per
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Section 145 of the Evidence Act qua Section 162 of the CrPC? In his cross-
examination PW6 has reiterated that he heard about the cruelty meted out to
the deceased from the father of the deceased and from other persons also. He
has also stressed in his cross-examination that the statements made in the
Court were also made before the police. Thus, no contradiction as per Section
145 of the Evidence Act vis-a-vis Section 162 of the CrPC could be elicited
through the cross-examination of this witness. As argued by the learned counsel
for the appellant, this evidence of PW6 cannot be considered to be hearsay
evidence. He has categorically stated in his examination-in-chief as well as in
his cross-examination that the victim’s father informed him about the cruelty
meted out to his daughter by the appellant to meet his demand of furniture.
This has not been contradicted as per Section 145 of the Evidence Act. Thus,
the appellant cannot be held to be prejudiced by the non-examination of the IO.
This is the reason why the learned Trial Court proceeded to convict the
appellant despite the absence of the IO. When the witness, PW6, has affirmed
that he has stated before the IO about the cruelty meted out to the victim,
there was no requirement of affirmation by the IO, relating to any contradiction,
as no contradiction could be elicited through the cross-examination of PW6.
23. The evidence of PW6 substantiates and corroborates the evidence of
PW2, PW3, PW4 and PW5.
24. PW2 – Fazal Hoque, PW3 – Habiluddin Ahmed, PW4 – Monowara Khatun
and PW5 – Ashan Ali @ Asen Ali, have testified that the appellant and the victim
got married about 4-5 months prior to the incident. PW2 was in the market
when he heard about the incident and Raham Ali came to their house and
informed his wife Monowara Katun about the incident. On being informed by
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Raham Ali about the incident, Monowara Khatun (PW4) stated that she went to
the appellant’s house and PW2, informant, stated that his wife Monowara
Khatun and their elder son Ansar Ali went to the appellant’s house on being
informed about the incident at about 10 AM. He also went to the PO. PW3, PW5
and PW6 categorically stated that the incident occurred on 30.11.2012 at about
9.30-10.00 AM.
25. There is not even an iota of doubt that this is a case of suicide. The
Medical Officer, Dr. Aditya Madhab Baruah stated as PW1 that the cause of
death was ex facie, a result of antemortem suicidal hanging.
26. Although PW3’s evidence corroborates and substantiates the evidence of
PW1, PW2, PW4, PW5 and PW6, yet, in his cross-examination, he has denied
the suggestion of the defence that he has not stated before the police that the
appellant used to torture the deceased for dowry. This statement was required
to be affirmed by the IO and non-examination of the IO in case of PW3 may be
a discrepancy in the evidence butthe appellant cannot be held to be prejudiced
only on this contradiction which was not affirmed by the IO.The evidence of
PW-6 is not required to be contradicted as his earlier statement before the IO
has not been disputed by the defence during his cross-examination. However,
PW3 has reiterated through his cross-examination that he heard about the
cruelty meted out to the victim by the appellant to meet his demand of dowry,
from the victim’s father as well as from the other villagers. This statement of
PW3 was not contradicted as per Section 145 of the Evidence Act vis-Ã -vis
Sections 161/162 of the CrPC. Thus, non-examination of the IO does not cause
any prejudice to the appellant.
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27. PW2 has also stressed through his cross-examination that he has stated
before the police about the cruelty meted out to his daughter by the appellant
over the demand of dowry. Thus, he has strongly affirmed twice through his
evidence that the victim was subjected to cruelty by the appellant to meet his
demand of dowry. No suggestion as per Section 145 of the Evidence Act vis-Ã -
vis Section 162 of the CrPC, has been made by the defence, to bring in
contradiction relating to the earlier statement of the informant before the police
and his statement in the Court. Thus, non-examination of the IO in this case
does not prejudice the appellant.
28. It would be apt to reiterate that the evidence of PW2 and PW3 clearly
implicates that the appellant subjected his wife to cruelty to meet his demand of
dowry. The evidence of PW4 is not taken into consideration as PW4 has
categorically stated in her cross-examination that the police did not record her
statement.
29. Learned counsel for the appellant gave much weightage to the evidence
of the hostile witnesses PW7 and PW8. Sri Nowshad Ali as PW7 and Tomser Ali
as PW8, denied any knowledge about the cause of death of the victim. PW8 was
also declared a hostile witness.
30. The learned Trial Court on the issue of non-examination of the IO has held
as follows :-
“27. At the time of argument Ld. Defence Counsel has specifically argued that the
prosecution has failed to examine the I/O in connection with this case and this has
caused prejudice the accused person and as such benefit should go in favour of the
accused person. Hon’ble Supreme Court in the case of Dinesh Yadav Vs. State of
Page No.# 15/19Jharkhand decided on 09.03.2017 in Crl. Appeal No. 494/2017 observed as follows-
when no material contradiction have been brought out, then non- examination of the
I/O as a prosecution witness is of no consequence and under such circumstances, no
prejudice is caused to the accused.
Hon’ble Supreme Court held that non-examination of the I/O is to be perceived in the
background of the case as well as the evidence being adduced during the course of
trial in order to infer whether it has caused prejudice to the interest of the accused or
not. The same view was observed by the Hon’ble Supreme Court in case of Bahadur
Naik Vs. State of Bihar reported in (2000) 9 SCC 153 and in the case of Baldev Singh
Vs. State of Haryana reported in 2016 Criminal Law Journal 154.
**** **** ****
29. In the instant case in our hand while going through the cross examination of
the witnesses we have found that the defence has not brought out any material
contradiction in the testimony of the PWs to be confirmed through the I/O. Defence
during cross examination of the witnesses has not referred to the statements of the
witnesses recorded during their 161 Cr. PC statement in order to prove the
contradiction through the I/O as required u/s 145 of the Indian Evidence Act. After
carefully analyzing the evidences particularly the cross examination part of the
witnesses, I have found that the non-examination of the I/O has not caused any
prejudice to the accused person. Moreover, in this case the prosecution was not able to
examine the I/O as the I/O has expired during the trial.”
31. No infirmity is discernible in the decision of the trial Court.
32. Learned counsel for the appellant laid stress in his argument that the
evidence of another independent witness Md. Ashan Ali @ Asen Ali (PW5) is not
reliable. His house is at a distance of 200 meters away from the informant’s
house according to his deposition, which clearly reveals that he is a neighbour
of the informant and not a neighbour of the deceased victim. However, his
evidence clearly depicts that he was informed by the victim as well as by the
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informant that the appellant subjected the victim to cruelty. She was physically
and mentally tortured by the appellant. Thus, this act of the appellant drove the
victim to commit suicide. He (PW5) was cross-examined in extenso but the
defence failed to elicit any contradictions through elaborate cross-examination
of this witness. No major or minor contradictions as per Section 145 of the
Evidence Act qua Section 162 of the CrPC could be culled out through the cross-
examination of this witness. Thus, it would be apt to reiterate that non-
examination of the IO does not at all prejudice the appellant.
33. Learned counsel for the appellant as well as learned Additional Public
Prosecutor have relied on the decision of the Hon’ble Supreme Court in Lahu
Kamlakar Patil and Another Versus State of Maharashtra reported in (2013) 6
SCC 417 wherein it has been held that :-
“18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be
appreciated. He has admitted his signature in the FIR but has given the excuse that it
was taken on a blank paper. The same could have been clarified by the investigating
officer, but for some reason, the investigating officer has not been examined by the
prosecution. It is an accepted principle that non-examination of the investigating officer
is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2 SCC
317 : 1996 SCC (Cri) 271] , this Court has stated that non-examination of the
investigating officer is not fatal to the prosecution case, especially, when no prejudice is
likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC
153 : 2000 SCC (Cri) 1186] , it has been opined that when no material contradictions
have been brought out, then non-examination of the investigating officer as a witness for
the prosecution is of no consequence and under such circumstances, no prejudice is
caused to the accused. It is worthy to note that neither the trial Judge nor the High
Court has delved into the issue of non-examination of the investigating officer. On a
perusal of the entire material brought on record, we find that no explanation has been
offered. The present case is one where we are inclined to think so especially when the
informant has stated that the signature was taken while he was in a drunken state, the
Page No.# 17/19panch witness had turned hostile and some of the evidence adduced in the court did not
find place in the statement recorded under Section 161 of the Code. Thus, this Court in
Arvind Singh v. State of Bihar [(2001) 6 SCC 407 : 2001 SCC (Cri) 1148] , Rattanlal v.
State of J&K [(2007) 13 SCC 18 : (2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v.
State of Jharkhand [(2008) 16 SCC 561 : (2010) 4 SCC (Cri) 50] , has explained
certain circumstances where the examination of investigating officer becomes vital. We
are disposed to think that the present case is one where the investigating officer should
have been examined and his non-examination creates a lacuna in the case of the
prosecution.”
34. By relying on paragraph 18 of the Lahu Kamlakar Patil (supra), the
learned Additional Public Prosecutor has drawn the attention of this Court to the
decision of the Hon’ble Supreme Court in Behari Prasad and Others Versus State
of Bihar reported in (1996) 2 SCC 317 wherein it has been held that :-
“23. It, however, appears to us that the entire case diary should not have been
allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the
case, it appears to us that the involvement of the accused in committing the murder
has been clearly established by the evidences of the eyewitnesses. Such evidences are
in conformity with the case made out in FIR and also with the medical evidence.
Hence, for non-examination of Investigating Officer, the prosecution case should not
fail. We may also indicate here that it will not be correct to contend that if an
Investigating Officer is not examined in a case, such case should fail on the ground
that the accused were deprived of the opportunity to effectively cross-examine the
witnesses for the prosecution and to bring out contradictions in their statements
before the police. A case of prejudice likely to be suffered by an accused must depend
on the facts of the case and no universal strait-jacket formula should be laid down
that non-examination of Investigating Officer per se vitiates a criminal trial. These
appeals, therefore, fail and are dismissed. The appellants who have been released on
bail should be taken into custody to serve out the sentence.”
35. Reverting back to this case, it is held that the appellant is not at all
prejudiced due to non-examination of IO. In this case on hand, no
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contradictions could be elicited through the cross-examination of PW-2, PW-5
and PW6 as per Section 145 of the Evidence Act.
36. Learned counsel for the appellant has also relied on the decision of the
Hon’ble Supreme Court in Charan Singh versus The State of Uttarakhand
wherein the Hon’ble Supreme Court vide order dated 20.04.2023 in connection
with Criminal Appeal No. 447/2012 has held that :-
“23. On a collective appreciation of the evidence led by the prosecution, we are of the
considered view that the prerequisites to raise presumption under Section 304B IPC and
Section 113B of the Indian Evidence Act having not been fulfilled, the conviction of the
appellant cannot be justified. Mere death of the deceased being unnatural in the
matrimonial home within seven years of marriage will not be sufficient to convict the
accused under Section 304B and 498A IPC. The cause of death as such is not known.”
37. In the instant case, it is explicitly evident that the victim’s death was the
consequence of suicidal hanging. The victim was driven to commit suicide. The
robust, uncontradicted and uncontroverted evidence clearly reveals that the
victim was subjected to cruelty within 3-4 months of her marriage to the
appellant. The evidence is uncontradicted and uncontroverted that the victim
was mentally and physically harassed by the appellant as he did not approve of
the quality of furniture presented to him by the victim’s father. As the
Prosecution could prove its case beyond a reasonable doubt that, presumption
under Section 113B operates against the appellant. The appellant did not offer
any explanation. His answers under Section 313 of the Cr.PC were evasive.
38. The appellant did not discharge his burden under Section 106 of the
Evidence Act by explaining the cause of unnatural death of the victim within 3-4
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months of her marriage with him. There is glaring evidence against the
appellant that the victim was subjected to cruelty by the appellant. The defence
failed to dispel the clinching evidence against the appellant.
39. In the light of the decision of the Hon’ble Supreme Court in Lahu
Kamlakar Patil (Supra), the conviction of the appellant under Section 304B of
the I.P.C. is upheld, but the sentence is modified and scaled down slightly. The
appellant is convicted under Section 304B of the IPC and he is sentenced to
undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 1000/- and
in default of payment of fine to undergo rigorous imprisonment for 1 month.
This disposes of the appeal.
40. In terms of the above observation, the appeal is disposed of.
41. Send back the Trial Court Records.
JUDGE
Comparing Assistant
