Page No. 1/27

2026:GAU-AS:1563-DB

THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

Criminal Appeal [J] no. 37/2022

1. Bishu Dhali, Nagaon, Assam.

2. Smt. Molin Dhali, Nagaon, Assam.

………………Appellants

- VERSUS-

1. The State of Assam represented by the Public

Prosecutor, Assam.

2. Govinda Mallick, 2 No. Borjhar, P.S. Dalgaon, District –

Darrang, Assam.

……………….Respondents

BEFORE

HON’BLE MR. JUSTICE MANISH CHOUDHURY

HON’BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Advocates :

Advocate for the Appellants : Mr. A. Ahmed, Amicus Curiae

Advocate for the Respondent no. 1 : Ms. A. Begum,

Additional Public Prosecutor, Assam

GAHC010034212022

Page No. 2/27

Advocate for the Respondent no. 2 : Mr. B.M. Deka, Advocate

Date of hearing : 19.01.2026

Date of pronouncement of judgment : 06.02.2026

Whether the pronouncement is of the

Operative part of the judgment ? : No

Whether the full judgment has been

Pronounced ? : Yes

JUDGMENT & ORDER

[M. Choudhury, J.]

1. The present criminal appeal from jail under Section 383, Code of Criminal

Procedure, 1973 [‘the Code’ or ‘CrPC’, for short] is directed against a Judgment and

Order dated 11.01.2022 passed by the Court of learned Sessions Judge, Nagaon

[‘the Trial Court’ for short] in Sessions [T-1] Case no. 33 [N] of 2014. By the

Judgment and Order dated 11.01.2022, the Trial Court has convicted both the

accused-appellants for the offence of murder under Section 302, Indian Penal Code

[IPC] read with Section 34, IPC and they have both been sentenced to undergo

rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each, in default of

payment of fine, to suffer simple imprisonment for another six months each.

2. The First Information Report [FIR] was lodged by one Gobinda Mallick as the

informant before the Officer In-Charge, Uluoni Police Station on 30.12.2010. In the

FIR, the informant named the two accused-appellants along with their mother

Page No. 3/27

[name unknown] as the accused. It was mentioned that the younger sister of the

informant, Kanan Mallick died on Wednesday, 29.12.2010 in her matrimonial house

as a result of torture inflicted on her. The informant further stated that he came to

know about the incident from a source that the deceased was completely fine

during the day-time.

3. On receipt of the FIR, the Officer In-Charge, Uluoni Police Station registered it as

Uluoni Police Station Case no. 95 of 2010 [corresponding G.R. Case no. 682 of

2010] under Section 302/34, IPC on 30.12.2010 and took up the investigation of

the case himself.

4. In the course of investigation, one of the accused persons, Rashamoni Dhali was

arrested immediately after registration of the FIR and after arrest, she was sent to

judicial custody. Subsequently, Rashomoni Dhali was released on bail. The accused-

appellant no. 1 [hereinafter also referred to as accused no. 1 (A-1), at places, for

ease of reference], approached this High Court seeking the benefit of pre-arrest

bail. However, the High Court did not extend the benefit of pre-arrest bail to the

accused no. 1 [A-1]. Thereafter, the accused no. 1 submitted himself to the

jurisdiction of the Court of learned Sub-Divisional Judicial Magistrate [S.D.J.M.],

Nagaon on 10.10.2011 as per direction of the High Court. On such appearance, he

was sent to judicial custody. The accused-appellant no. 1 viz. Molin Dhali

[hereinafter also referred to as the accused no. 2 (A-2), at places, for ease of

reference] could not be arrested during the period of investigation as she allegedly

avoided arrest.

5. The first part of the investigation was carried out by one Dhirendra Barman, the

then Officer In-Charge of Uluoni Police Station. During the course of investigation,

the I.O. conducted inquest on the deadbody of the deceased through the

jurisdictional Circle Officer on 30.12.2010 at the P.O. After the inquest proceeding

and preparing an Inquest Report [Ext.-2], the deadbody of the deceased was sent

to Bhogeswari Phukononi [B.P.] Civil Hospital, Nagaon for post-mortem

Page No. 4/27

examination. The post-mortem examination was performed at B.P. Civil Hospital,

Nagaon on 31.12.2010 by the Medical & Health Officer [M.&H.O.]-I, Dr. Jugananda

Bori [P.W.6]. During the investigation, The I.O. also recorded the statements of the

witnesses under Section 161, CrPC. Going to the place of occurrence [P.O.], that is,

the house of the accused persons, which was also the matrimonial house of the

deceased, the I.O. also prepared a Sketch Map of the P.O. [Ext.-5].

6. As Dhirendra Barman, the 1

st

I.O., stood transferred from Uluoni Police Station, the

subsequent Officer In-Charge, Saidul Islam [P.W.7] received the case diary to

continue with the investigation. It was during Saidul Islam [P.W.7]’s period as the

I.O., the accused no. 1 [A-1] surrendered. As Saidul Islam [P.W.7] was also

transferred from Uluoni Police Station subsequently, he handed over the case diary

to Khagen Baruah who was serving, at that time, as the 2

nd

Officer at Uluoni Police

Station. It was Khagen Baruah who after collecting the Post-Mortem Examination

[PME] Report [Ext.-3] and completing the investigation into the case, Uluoni Police

Station Case no. 95 of 2010, submitted the charge-sheet under Section 173[2],

CrPC vide Charge-Sheet no. 65 on 31.08.2012 finding a prima facie case

established to proceed against three accused persons, namely, [i] the accused no.

1 [A-1], Sri Bishu Dhali; [ii] the accused no. 2 [A-2], Smti. Molin Dhali; and [iii]

Rashamoni Dhali; for the offence under Section 304B, IPC read with Section 34,

IPC. It was mentioned in the Charge-Sheet that during the period of investigation,

whereabouts of the accused no. 2 [A-2], Smti. Molin Dhali could not be ascertained

and therefore, she should be declared as an absconder.

7. On receipt of the Charge-Sheet submitted in connection with Uluoni Police Station

Case no. 95 of 2010 [corresponding G.R. Case no. 682 or 2010], the Court of Sub-

Divisional Judicial Magistrate [SDJM], Kaliabor as the committal court secured

appearance of the accused no. 1 [A-1] from jail custody on 31.03.2014. On that

day, the accused person, Rashamoni Dhali appeared before the Court of SDJM,

Kaliabor on receipt of summons. The charge-sheeted accused no. 2 [A-2], Smti.

Molin Dhali also appeared before the said Court on that day and submitted an

Page No. 5/27

application with a prayer to enlarge her on bail along with the accused no. 1 [A-1].

The prayers for bail made on behalf of the accused no. 1 [A-1] and the accused no.

2 [A-2] were rejected by the committal court and both of them were sent to judicial

custody. On that day itself, that is, on 31.03.2014, after furnishing the copies to the

charge-sheeted accused persons as per the provisions of Section 207, CrPC, the

case record of G.R. Case no. 682 or 2010 was committed to the Court of Sessions,

Nagaon under Section 209, CrPC as the offence under Section 304B, IPC was found

to be exclusively triable by the Court of Sessions. The Public Prosecutor was

notified accordingly and a direction was made to issue commitment warrants

against the two charge-sheeted accused persons, namely, Sri Bishu Dhali [A-1],

and Smti. Molin Dhali [A-2] to ensure their appearance before the Court of Sessions

on 04.04.2014. The charge-sheeted accused person, Rashamoni Dhali was allowed

to remain on previous bail and she was also directed to appear before a Court of

Sessions on the next date, 04.04.2014, which was fixed for appearance and

necessary order before the Court of Sessions, Nagaon.

8. On receipt of the case record of G.R. Case no. 682 of 2010, the Court of Sessions,

Nagaon [‘the Trial Court’] registered the case as Sessions [T-1] Case no. 33 [N] of

2014. The case was opened by the learned Public Prosecutor. After hearing the

learned Public Prosecutor and learned defence counsel; and upon perusal of the

materials on record; the Trial Court framed the following charges against all three

charge-sheeted accused persons on 02.05.2014 :-

Firstly, that you, on or about the 29.12.2010 at Patoliati under Uluoni Police

Station in furtherance of common intention caused the death of Kanan

Mallick by subjecting her to cruelty on demand of dowry and thereby

committed an offence punishable under Section 304B/34 of the Indian Penal

Code [IPC], and within my cognizance.

Page No. 6/27

Secondly, that you, or on about the same time date and place in furtherance

of common intention have committed murder by causing the death of Mallick

and thereby committed an offence punishable under Section 302/34 of the

Indian Penal Code [IPC], and within my cognizance.

9. When the charges were read over and explained to the accused persons, the

accused persons abjuring guilt, claimed to be tried. During the course of trial, the

prosecution side examined the following seven persons as prosecution witnesses

and exhibited the following five document as prosecution exhibits in order to bring

home the charges against the accused persons :-

Prosecution Witnesses

P.W.1 Govinda Mallick - Informant

P.W.2 Maheshwari Mandal @ Maharani Mandal

P.W.3 Binay Barman

P.W.4 Sikha Mandal

P.W.5 Rabin Mandal

P.W.6 Dr. Jugananda Bori – Medical & Health Officer

P.W.7 Saidul Islam – Investigating Officer [I.O.]

Prosecution Exhibits

Ext.-1 First Information Report [FIR]

Ext.-2 Inquest Report

Ext.-3 Post-Mortem Examination [PME] Report

Ext.-4 Charge-Sheet

Ext.-5 Sketch Map of the P.O.

10. However, during the pendency of the trial, the accused person, Rashamoni Dhali

expired on 30.03.2016 and as a result, the case stood abated against her.

Thereafter, the trial proceeded against the remaining two accused persons, that is,

Sri Bishu Dhali [A-1] and Smti. Molin Dhali [A-2].

Page No. 7/27

11. After closure of the evidence from the prosecution side, the two accused persons,

A-1 & A-2 were examined under Section 313, CrPC to provide them opportunity to

explain the incriminating circumstances appearing against them from the evidence

of the prosecution witnesses. The accused no. 1 [A-1] claiming innocence, stated

that the allegations against him were false. As per his version, he was not in the

house at the time of the incident and the victim had committed suicide as she was

suffering from depression at that time. The accused no. 2 [A-2] stated that at the

time of the incident, she was working at another person’s house. She further stated

that after the incident, she escaped out of fear. When asked by the Trial Court, the

defence declined to adduce any evidence. After hearing the learned counsel for the

parties and upon appreciation of the evidence/materials on record, the Trial Court

finding both the accused persons, A-1 and A-2 guilty of the offence of murder, had

delivered the Judgment and Order of conviction and sentence, which is assailed in

the present appeal.

12. We have heard Mr. A. Ahmed, learned Amicus Curiae for the accused-appellants;

Ms. A. Begum, learned Additional Public Prosecutor for the respondent no. 1, State

of Assam; and Mr. B.M. Deka, learned counsel for the respondent no. 2.

13. Mr. Ahmed, learned Amicus Curiae appearing for the accused-appellants has

submitted that the Trial Court upon an erroneous analysis of the evidence has

reached a finding that the two accused persons in furtherance of their common

intention caused the death of the victim and has found falsity in the plea of alibi of

the accused persons. He has contended that the prosecution has failed to establish

the fact of presence of the accused persons at the house in proximity of time to the

incident and in the absence of such established fact, it is not open for the

prosecution to place its case in reference to the rule of evidence embedded in

Section 106 of the Evidence Act. Had the burden of the prosecution mandated

under Section 101 of the Evidence Act been discharged properly then only the onus

would have been shifted to the accused persons to offer a plausible explanation as

Page No. 8/27

to how the victim had met her death. He has further contended that in the given

facts and circumstances of the case it was not proper for the Trial Court to refer to

any alleged false plea of alibi. It is his further contention that just because the

accused persons were found to be missing from their house after the incident to

evade arrest the same cannot be taken as a circumstance to hold them guilty.

13.1. In support of his above submissions, Mr. Ahmed has relied upon the decisions in

Sakharam vs. State of Madhya Pradesh, [1992] 2 SCC 153; Sk. Yusuf vs. State of

West Bengal, [2011] 11 SCC 754; Sujit Biswas vs. State of Assam, [2013] 12 SCC

406; and Reena Hazarika vs. State of Assam, [2019] 13 SCC 289.

14. Ms. Begum, learned Additional Public Prosecutor appearing for the State has

supported the Judgment and Order of conviction and sentence passed by the Trial

Court. It is contended that in the case in hand, the prosecution has been able to

establish the relevant facts by way of cogent and reliable evidence and the false

explanation coupled with the false plea of alibi had made the chain of circumstantial

evidence complete from which a conclusion can reasonably be drawn that none

other than the accused persons were the assailants. It has been contended that

when a death had occurred inside the house where they were inmates the accused

persons’ abscondence was a strong circumstance. The prosecution witnesses who

were close relatives of the deceased, had pointed fingers at the accused persons as

regards their torture upon the deceased. It has, thus, been contended that taking

into all the attending facts and circumstance the finding of guilt has been arrived at

by the Trial Court and the same does not call for any interference.

15. We have given due consideration to the rival submissions and have also gone

through the evidence/materials available in the case record of Sessions [T-1] Case

no. 33[N] of 2014, in original. We have also considered the decisions referred to

and relied upon by the learned counsel for the parties in support of the submissions

made.

Page No. 9/27

16. Taking into consideration the submissions made on behalf of the parties, it is

apposite to refer to the testimony of the prosecution witnesses and the prosecution

exhibits, at first.

17. P.W.1, Gobinda Mallick, in his examination-in-chief, stated that he knew all the

three accused persons [At that time, Rashamoni Dhali was alive]. He testified that

the marriage between his sister, Kanan and the accused no. 1 [A-1], Bishu Dhali

was solemnised four years earlier. Since after the marriage, the accused persons

tortured his sister both physically and mentally. His sister told him many times to

take her back to the parental house as her husband used to beat her badly. On the

date of the incident, he went to the house of his another sister in the same village

where the accused and deceased resided. There a brother-in-law of the accused no.

1 [A-1] informed him that his sister had died. Then, he went to the matrimonial

house of his sister. Reaching there, he [P.W.1] saw that his sister was lying dead

on the floor of the house. He saw injuries on the neck and legs of his sister. He did

not find presence of any of the family members of the accused in the house at that

time. Then, he informed the Police and lodged the FIR. Police personnel came to

the place of occurrence [P.O.] and prepared a Sketch Map of the P.O. He stated

that he did not see who killed his sister but believed that the family members of her

in-laws’ house had killed his sister. P.W.1 exhibited the FIR as Ext.-1 along with his

signature therein as Ext.-1[1]. He also exhibited the Inquest Report as Ext.-2 along

with his signature therein as Ext.-2[2].

17.1. In cross-examination, P.W.1 stated that before the incident which led to his sister’s

death, his deceased sister gave birth to a child in Ananta Memorial Nursing Home at

Tezpur and that child died after two/three days. He stated that his mother and

father also committed suicide by jumping into River Dhansri. His house was situated

at three hours travel distance by bus from his sister's house. P.W.1 stated that he

came to the house of his another sister, Sikha [P.W.4] at around 7-00 p.m. and on

that night itself, he lodged the FIR [Ext.-1]. P.W.1 stated that the houses of Bhojen

Biswas, Basu, Rabin Mandal and Maheswari were situated near the matrimonial

Page No. 10/27

house of the deceased. He had, however, no visiting terms with those neighbours’

houses. He stated that his sister reported him about physical and mental torture

committed upon her by the accused no. 1 [A-1] and other family members, but he

did not inform about the same to anyone else. P.W.1 denied a suggestion that due

to depression owing to the death of the new born child, the deceased committed

suicide by hanging herself on bamboo bushes. P.W.1 admitted that he did not state

before the I.O. that his sister informed him about the torture committed upon her

by her in-laws and that she requested him to take her back from the house of the

accused. He further admitted that he did not state before the I.O. about the injuries

sustained by his deceased sister. P.W.1 stated that after the marriage, the

relationship between his deceased sister and her husband [A-1] was cordial. At the

time of birth of the child, the accused no. 1 [A-1] paid Rs. 18,000/- for medical

expenses of his wife. At that time, their relationship was cordial. The incident took

place after one month of the date of delivery of the child. P.W.1 denied a

suggestion that the allegations made were not true and a false case had been

instituted against the accused persons.

18. P.W.2, Maheswari Prasad @ Maharani Mandal who is an elder sister of the

deceased, stated in examination-in-chief that the incident took place about four

years ago. Her younger sister, Kanan Mallick was given in marriage with the

accused no. 1 [A-1] about one year before the incident. After the marriage, the

deceased gave birth to a child and incident took place after about three days from

the date of delivery of the child. On the date of occurrence, one Subhash, a

brother-in-law of the accused no. 1 [A-1], informed them that her sister, Kanan

Mallick who was in the matrimonial house, was seriously ill. On receipt of the said

information, she [P.W.2] along with her husband, Rabin Mandal [P.W.5] and

brother-in-law [not named] went to the house of the accused no. 1 and going

there, she [P.W.2] found that her sister, Kanan was lying on the ground inside the

living room of the house. At the time, no one was present in the house of the

accused. P.W.2 stated that to her knowledge, the conjugal life of her sister with the

accused no. 1 [A-1] was peaceful and there was no dispute between them.

Page No. 11/27

18.1. At that juncture, the learned Public Prosecutor made a prayer before the Trial Court

to declare P.W.2 as hostile and the Trial Court after going through the previous

statement of the witness recorded under Section 161, CrPC by the I.O., permitted

the learned Public Prosecutor to cross-examine P.W.2.

18.2. During her cross-examination by the defence, P.W.2 stated that her marriage was

solemnised before the marriage of her deceased sister. P.W.2 stated that the

houses of Subhash Dhali, Bhojen Biswas, Basu Biswas, Dimbu Mandal and Banka

Biswas were situated near the house of the accused persons. P.W.2 further stated

that when he arrived at the P.O. she found that many persons had already

gathered at the P.O.

19. P.W.3, Binay Barman stated that he knew all the three accused persons and the

informant-P.W.1. He stated that the marriage between the deceased and the

accused no. 1 [A-1] was solemnised about two years earlier to the date of the

incident and after marriage, the deceased started residing in the house of the

accused no. 1 [A-1] to lead her conjugal life with the accused no. 1 [A-1]. Apart

from them, the elder sister, that is, the accused no. 2 [A-2] and their mother,

Rashamoni Dhali also resided in the matrimonial house of the deceased. As regards

the incident, P.W.3 stated that he was present in his own house at that time. Then,

one Rabin Mandal [P.W.5] who was one of the relatives of the accused persons,

came to his house and informed him that Kanan Mallick had expired. P.W.3 stated

that he did not go to the house of the accused persons on that night. It was on the

following day Police personnel came to his house to call him to the P.O. Then going

to the P.O., he stated to have seen the deadbody of the deceased lying there in the

courtyard. At that time, the accused, Rashamoni Dhali was present in the house.

But, he did not see the other two accused persons, A-1 & A-2 in the house.

19.1. During cross-examination, P.W.3 stated that the accused persons were his

neighbours. The house of the accused persons was situated at a hearing distance

Page No. 12/27

from his house. But on the date of the incident, he was watching TV and hence, he

did not hear any hue and cry raised from the house of the accused persons. P.W.3

stated that he did not hear at any point of time that the accused persons

committed torture upon the deceased in pursuance of their demand for dowry.

P.W.3 stated to have heard about the incident in the evening time of the date of

the incident. However, he went to the P.O. at 9-30 a.m. on the following day. At

that time, there was a gathering of 30/35 persons in the house of the accused

persons. At that time, he saw presence of Bhaben Mandal, Rabin Mandal [P.W.5]

and some others there whose names he could not remember. At the time, he saw

the presence of the elder sister of the deceased.

20. P.W.4, Sikha Mandal stated that she knew the accused persons. P.W.4 stated that

the death of her younger sister, Kanan Mallick occurred after about one year from

solemnisation of her marriage with the accused no. 1 [A-1]. On the date of the

incident, the deceased was at her matrimonial house. The incident occurred at

around 7-00 p.m. Subhash, a brother-in-law of the accused no. 1 [A-1], came to

her house to inform that her sister, Kanan Mallick had fallen ill and he asked them

to visit her. Receiving the information, she [P.W.4] and her husband went to the

house of the accused persons. Going there, she found his younger sister dead in

the house. At that time, no one was present in the house. She saw a red mark in

the neck of the deceased and also an injury on her legs. Many people gathered at

the P.O. Then, his younger brother [P.W.1] informed about the incident to Police.

Police personnel came. P.W.4 stated that her younger sister had a good relationship

with her husband [A-1] after her marriage. The deceased gave birth to a child, but

the child died in the hospital three days after birth. The relationship between the

deceased and the accused no. 1 [A-1] deteriorated since thereafter. The Police held

inquest on the deadbody of the deceased and P.W.4 exhibited the Inquest Report

as Ext.-2 along with his signature therein as Ext.-2[2].

20.1. During cross-examination, P.W.4 stated that her parental house was at Dalgaon,

District - Darang. P.W.4 stated that the distance between her matrimonial house

Page No. 13/27

and the house of the accused persons was about 1½ miles. She claimed ignorance

about the date of the incident. She stated that both her parents committed suicide.

After Subhash gave them the information, her younger brother, P.W.1-informant

went to the house of the accused, at first, at around 7-00 p.m. It was thereafter,

she and her husband went there. At the house of the accused persons, no member

from their family was present when they went there. The deceased died after three

months after the death of her child. P.W.4 stated that P.W.1-informant and her

husband took her sister, Kanan to the hospital for her delivery. P.W.4 stated that

she did not hear that the accused no. 1 [A-1] spent Rs. 18,000/- during treatment.

After the death of the child, quarrel used to break out between her deceased sister

and her husband [A-1] and the relationship between them deteriorated. After the

death of the child, P.W.1 visited her [P.W.4] house on the date of the incident only.

P.W.4 stated that the houses of Subhash, Dimbu, Bhusan, Rupsan, Binoy Barman

[P.W.3] and Bhojen were situated in the vicinity of the accused persons’ house. The

house of one Basu Biswas, who used to live along with his mother and three

unmarried sisters, was in close vicinity to the house of the accused. P.W.4 stated to

have seen red marks on the neck and leg of her deceased sister. The accused no. 1

[A-1] and his two brothers’ families shared the same campus and there was a

common courtyard in the middle of their houses. P.W.4 denied suggestions that she

did not state before the Police that the brother-in-law of the accused no. 1 [A-1]

came to her house at around 07-00 p.m. on the night of the incident to inform that

her youngest sister, Kanan had fallen ill; and that he asked her to visit the house

and then, she and her husband went to the house of the accused persons to

witness that her sister was dead with red marks on her neck.

21. P.W.5, Rabin Mandal gave his testimony before the Court on 23.05.2017. In his

examination-in-chief, P.W.5 stated that he knew the two accused persons, the

informant and the deceased, who was the wife of the accused no. 1 [A-1] & a

younger sister of the informant-P.W.1. He deposed that the incident occurred about

eight/nine years earlier. At around 10-00 a.m. on that day, he heard that Police

personnel came to the house of the accused. Then he also had gone to the house

Page No. 14/27

of the accused. There he saw the deadbody of the deceased, lying in the courtyard.

A lot of people also gathered at the P.O. But, he did not see the two accused

persons in their house.

21.1. In cross-examination, P.W.5 stated that the deceased was his sister-in-law as she

was an younger sister of his wife. P.W.5 stated that he was not in visiting terms

with the accused. He did not know if the deceased had any disagreement with her

husband [A-1]. P.W.5 further stated that he knew nothing about the incident.

22. P.W.6, Dr. Jugananda Bori was, on 31.12.2010, posted as Medical & Health Officer

[M.&H.O.]–I at Bhogeswari Phukanani [B.P.] Civil Hospital, Nagaon. P.W.6 stated

that on 31.12.2010, he performed post-mortem examination on the deadbody of

the deceased, a female aged about 24 years, in reference to Uluoni Police Station

Case no. 95/2010 dated 30.12.2010. He stated that on examination, he found that

a ligature mark was present in the neck between chin and thyroid cartilage and the

ligature mark was continuous. After dissection, he found that there was fracture of

the hyoid bone. Abrasion of size : 3 c.m. X 1 c.m. was found in the right leg.

Cranium and Spinal Canal were healthy. Though thorax was found healthy it was

congested. Abdomen organs were healthy. Mouth, Pharynx and Esophagus were

congested. He opined that the cause of death was due to asphyxia following

strangulation. He stated that in case vigorous force is applied on the neck, then

hyoid bone can be fractured. He further stated that the death was homicidal in

nature. P.W.6 exhibited the PME Report as Ext.-3 and his signature therein as Ext.-

3[1].

22.1. In cross-examination, P.W.6 stated that in the PME Report, he did not specifically

mention whether the death was homicidal or suicidal. The time of death might be

within twenty-four hours. He admitted that he did not make any remark about the

tongue. He stated that the ligature mark on the neck was complete, that is,

continuous. He stated that in case of strangulation there was chance of breaking

down of the hyoid bone. In case of fall down on hard surfaces also, the type of

Page No. 15/27

abrasion, as sustained by the deceased, might be caused in the leg. According to

him, fracture of hyoid bone might also be caused in case of hanging.

23. P.W.7, Saidul Islam deposed in his examination-in-chief, recorded on 01.08.2019,

and further examination-in-chief, recorded on 06.09.2021, that on 10.10.2011, he

was posted at Uluoni Police Station as Officer In-Charge and on that day, he

received the case diary of Uluoni Police Station Case no. 95/2010 from his

predecessor, Dhirendra Barman [since deceased]. P.W.7 stated that he knew the

handwritings of Late Dhirendra Barman. During the period P.W.7 was investigating

as the I.O., the accused no. 1 [A-1] appeared before him. P.W.7 further stated that

during the pendency of investigation, he was transferred from Uluoni Police Station

and therefore, he handed over the case diary to one Khagen Baruah [since

deceased] who was then serving as 2

nd

Officer at Uluoni Police Station. P.W.7

stated that his predecessor Officer In-Charge, Dhirendra Barman after registration

of the case, initiated and conducted the investigation by visiting the place of

occurrence [P.O.], conducting inquest on the deadbody of the deceased through

the jurisdictional Circle Officer, sending the deadbody for post-mortem examination

and drawing a Sketch Map of the P.O. Dhirendra Barman arrested the accused,

Rashamoni Dhali [since deceased] and also recorded the statements of the

witnesses. P.W.7 stated that it was Khagen Baruah [since deceased] who after

collecting the PME Report, submitted the Charge-Sheet. P.W.7 exhibited the FIR as

Ext.-1; the Charge-Sheet as Ext.-4; and the Sketch Map of the P.O. as Ext.-5; along

with his signatures therein.

23.1. During cross-examination, P.W.7 stated that the place of occurrence was in Patoliati

village. As per the FIR, the date of the incident was 29.10.2010 and the FIR was

lodged at about 10-00 a.m. on 30.10.2010. Prior to institution of the FIR, no

general diary entry was made. As per the Sketch Map of the P.O., Bhajen Dhali,

Hema Dhali, Subhash Dhali, Dimbu Mandal and Banka Biswas were neighbours of

the accused persons but there were not examined by the I.O.

Page No. 16/27

24. It is apt to refer, at first, to the relationships of the deceased, the accused [A-1],

the accused [A-2] and the prosecution witnesses, P.W.1, P.W.2, P.W.4 and P.W.5.

The deceased, Kanan Mallick is the wife of the accused no. 1 [A-1]. The accused

no. 2 [A-2] is an elder sister of the accused no. 1 [A-1] and, therefore, is a sister-

in-law of the deceased. The deceased is a younger sister of the informant-P.W.1.

The prosecution witnesses, P.W.2 and P.W.4 are two elder sisters of the deceased.

P.W.5 is a brother-in-law who had married the elder sister of the deceased, P.W.2.

Thus, the prosecution witnesses – P.W.1, P.W.2, P.W.4 and P.W.5 – are close

relatives of the deceased and the accused. P.W.3 is a neighbour of the deceased

and the accused persons.

25. As per the testimony of P.W.2, P.W.4 and P.W.5, they were residents of Village –

Bharidhua. It has further emerged that their houses, as like the matrimonial house

of the deceased, which was located at Village – Pataliati were in the nearby area.

The informant-P.W.1 was a resident of Village – 2 No. Borjhar, Police Station –

Dalgaon, District – Darrang. As per the testimony of P.W.1, his place of residence

was situated at a distance and it would take about three hours if one would travel

by bus.

26. None of the prosecution witnesses, P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 had

deposed that they had witnessed any incident of assault on the deceased by the

accused persons, A-1 and A-2 on the date of incident. The informant-P.W.1 stated

that on the date of the incident, 29.12.2010, he went to the house of his another

sister situate in the same village as that of the accused, that is, Pataliati. When he

was in the house of the said sister, a brother-in-law of the accused no. 1 [A-1]

informed him that the deceased had died. P.W.2 stated that on the date of the

incident, Subhash Dhali, a brother-in-law of the accused no. 1 [A-1], informed them

that her sister, Kanan Mallick was in her matrimonial house in a seriously ill

condition. In her testimony, P.W.4 stated that at around 07-00 p.m. on the date of

the incident when she was in her house, a brother-in-law of the accused no. 1 [A-

1], who married an younger sister of the accused no. 1 [A-1], namely, Subhash

Page No. 17/27

came to her house to inform that her sister, Kanan had fallen ill and Subhash asked

them to visit Kanan. Thus, it is clear that the prosecution witnesses, the informant-

P.W.1, P.W.2 and P.W.4 were all informed by Subhash Dhali. But, neither the I.O.

had cited Subhash Dhali as a listed witness in the Charge-Sheet nor the prosecution

had called him as a prosecution witness during the trial. In their testimony, P.W.2

and P.W.4 further stated that the house of Subhash Dhali was in the vicinity of the

matrimonial house of the deceased. From the evidence on record, it has, thus,

emerged that it was Subhash Dhali who had knowledge about the death or ailing

condition of the deceased, earlier in point of time than P.W.1, P.W.2 and P.W.4. It

was only after receipt of information from Subhash Dhali, P.W.1, P.W.2 and P.W.4

had proceeded to the P.O.

27. On reaching the house of the accused no. 1 [A-1], which was also the matrimonial

house of the deceased, from the house of his sister - Sikha Mandal [P.W.4], P.W.1

saw that his sister, Kanan was lying dead on the floor with injuries on her neck and

legs. By the time P.W.2 reached the P.O., there was gathering of a large number of

persons there. P.W.2 stated that she proceeded to the P.O. with her husband,

P.W.5 and at the P.O., she saw her sister, Kanan lying on the ground in the living

room of her matrimonial house in dead condition. But, P.W.5 contradicted his wife’s

testimony by stating that he heard at around 10-00 a.m. one day later. Police

personnel came to the house of the accused no. 1 [A-1] and then only, he went to

the house of the accused no. 1 [A-1]. P.W.5 stated that going to the P.O., he saw

that the deadbody was lying in the courtyard and by that time, a lot of people had

already gathered. As per P.W.4, when on receipt of the information she went to the

P.O., she found her younger sister lying in dead condition inside the house with

injury marks on her neck and legs and there was gathering of persons. If by the

time P.W.1 had reached the P.O. many persons had already assembled at the P.O.,

it can be easily inferred that there was a time gap between the arrival of P.W.1 at

the P.O. and the death of the deceased.

Page No. 18/27

28. From the nature of testimony of the prosecution witnesses, P.W.1, P.W.2, P.W.3,

P.W.4 and P.W.5, it is evident that none of them had reached the P.O. immediately

after the incident. However, from the versions given by these prosecution witnesses

it has emerged that in and around the house where the deceased was found lying

dead, there were many houses. As per P.W.1, the houses of Bhojen Biswas, Basu,

Rabin Mandal and Maheshwari were in the vicinity. If Rabin Mandal and

Maheshwari, referred to by P.W.1, were P.W.5 and P.W.2, then the fact that their

houses were in the neighbourhood of the house of the accused persons and the

deceased did not emerge from the testimony of P.W.2 and P.W.5. As per the

testimony of P.W.2, the houses of Subhash Dhali, Bhojen Biswas, Basu Biswas,

Dimbu Mandal and Banka Biswas were situated near the P.O. P.W.4 testified that

the houses of Subhash, Dimbu, Bhushan, Rupchand Bhojen and Basu Biswas along

with the house of Binoy Barman [P.W.3] were located in the vicinity. But, the

prosecution did not examine any of them to lead evidence on the aspect that during

day time on the date of incident or at any time prior to the incident, they noticed

the presence of the accused persons in their house. Subhash Dhali who was the

person, according to P.W.1, P.W.2 and P.W.4, had reported them about the

deceased first, perhaps, in proximity of time to the incident was not examined by

the prosecution.

29. One aspect from the testimony of P.W.6, the doctor who had performed the post-

mortem examination, is noticeable. In his evidence-in-chief, P.W.6 stated that in his

findings, he had seen a ligature mark in the neck between chins and thyroid

cartilage and it was continuous. He also opined that in case vigorous force is

applied on the neck, then the hyoid bone can be fractured. On dissection, he found

that hyoid bone was fractured. He further deposed that the death was homicidal in

nature. During cross-examination, he stated that the ligature mark found in the

neck was complete i.e. continuous. He stated that in case of strangulation, there

would be chance of breaking of the hyoid bone. It is noticed by the Court that

fracture of hyoid bone might also be caused in case of hanging. But in the PME

Report [Ext.-3], which was prepared by P.W.6 only, it was mentioned that the

Page No. 19/27

ligature mark seen in the neck between chin and thyroid cartilage was non-

continuous. Thus, the testimony of P.W.6 as regards ligature mark is at variance

with the finding recorded by him in the PME Report [Ext.-3]. No opinion was

recorded in the PME Report [Ext.6] to the effect that the death was homicidal in

nature. In cross-examination, P.W.6 admitted that in the PME Report [Ext.-3], he

did not specifically mention whether the death was homicidal or suicidal.

30. The opinion given by a medical witness need not be the last word on the subject.

Such an opinion is to be tested by the Court. But, due weight must be given to

opinions given by persons who are experts in the particular subject. Ordinarily, the

value of medical evidence is only corroborative. It proves that the injuries could

have been caused in the manner alleged and nothing more. The use which the

defence can make of the medical evidence is to prove that the injuries would not

possibly have been caused in the manner alleged.

31. There was no specific medical opinion whether the death was homicidal or suicidal

in the PME Report [Ext.-3]. It was only when P.W.6 testified before the Court, he

mentioned that the death was homicidal in nature. The weight to be given to such

piece of medical opinion would therefore, be dependent upon other evidence on

record. However, we proceed further accepting that the death of the deceased, in

all probability, was a homicidal one to analyse the other evidence brought on the

table by the prosecution.

32. The informant-P.W.1 when cross-examined, admitted that after the marriage, the

relationship between the accused no. 1 [A-1] and the deceased was cordial and the

accused no. 1 [A-1] made expenditure towards medical treatment of the deceased

at the time of delivery of the child. P.W.2, an elder sister of the deceased, had

testified to have knowledge that the conjugal life between the accused no. 1 [A-1]

and the deceased was peaceful and there was no dispute between them. P.W.3, a

neighbour of the accused persons and the deceased and not a relative of either

side, deposed that he did not hear at any point of time that the accused persons

Page No. 20/27

committed torture in pursuance of their demand for dowry. P.W.4, another elder

sister of the deceased, stated that the deceased had a good relationship with her

husband after marriage. From such testimony of the witnesses, it has emerged that

the marital relationship between the accused no. 1 [A-1] and the deceased after

marriage was cordial and peaceful. There was no demand or torture for dowry from

the accused persons in the absence of any challenge on that count. The related

witnesses had, however, made a mention that the marital relationship deteriorated

after the death of the child.

33. From the testimony of P.W.1, P.W.2 and P.W.4, discrepancies as regards the time

period between the birth and consequent death of the child delivered by the

deceased and the death of the deceased could be noticed. According to P.W.1, the

death of the deceased was after one month of the delivery of the child. On the

other hand, P.W.2 stated that the death of the deceased occurred after three days

from the delivery of the girl child. P.W.4 had stated that the deceased died three

months after the death of the child who died three days after birth. The testimony

of these witnesses as regards the time gap between the birth/death of the child and

the death of the deceased is found inconsistent and irreconcilable. These witnesses

sought to project that the relationship between the accused no. 1 [A-1] and the

deceased, which was earlier cordial, deteriorated after the death of the child.

34. In the absence of any evidence regarding demand of dowry and convincing

evidence of torture, the Trial Court has already acquitted the accused persons from

the charge under Section 304B/34, IPC and we have no reason to disagree with

such finding.

35. Both P.W.1 and P.W.4 had admitted that both of their parents had committed

suicide. Highlighting the said aspect, the defence has sought to project that there

was a suicidal tendency in the family of the deceased and after the death of her

child, the deceased had ended her life suffering from depression. A mother who

had faced a premature death of her child few days after delivery would be

Page No. 21/27

melancholic and full of grief. In such a situation, the possibility of giving rise to

thoughts of suicide cannot be ruled out altogether, more so, when the family of the

deceased has a previous history of committing suicide.

36. The case in hand, in the absence of any direct evidence, is one based on

circumstantial evidence. In a case based on circumstantial evidence, motive

assumes greater relevance than in a case based on direct evidence. It is not a

settled proposition that absence of motive would dislodge the entire prosecution

story. In Sakharam vs. State of Andhra Pradesh [supra], it has been observed

that absence of motive may not be relevant in a case where the evidence is

overwhelming but it is a plus point for the accused in a case where the evidence

against him is only circumstantial. From the evidence brought on record, the

prosecution has not been able to bring forth any clear motive on the part of the

accused-appellant to cause the death of the deceased.

37. The last seen theory in criminal law is a principle of circumstantial evidence which

holds that if an accused was the last person seen to be in the company of the

victim before the victim’s disappearance or death, a presumption may arise that the

accused is responsible.

38. In a case where the prosecution seeks to bring conviction based on circumstantial

evidence, an obligation is cast on the prosecution to establish each of the

circumstances by way of evidence which are of cogent, reliable and conclusive

nature. In the case in hand, it was the duty of the prosecution to lead evidence of

such nature to establish the facts that on the date of the incident, both the accused

persons were in their house along with the deceased. Not only the presence, the

prosecution should have established conclusively that either at the time of the

incident or in time proximity to the incident of death, the accused persons were

seen in the house in the company of the deceased. In the present case, the

prosecution side did not produce any evidence on that count.

Page No. 22/27

39. In Sharad Birdhichand Sarda vs. State of Maharashtra, [1984] 4 SCC 116 , which

has attained the status of locus classicus, the Supreme Court while drawing

distinction between ‘must be’ and ‘may be’ has observed that the circumstances

from which the conclusion of guilt is to be drawn should be fully established and the

circumstances concerned ‘must or should be’ and not ‘may be’ established. The

accused must be and not merely may be guilty before a Court can convict and the

mental distance between ‘may be’ and ‘must be’ is long and divides vague

conjectures from sure conclusions. There must be a chain of evidence so complete

as not to leave any reasonable ground for the conclusion consistent with the

innocence of the accused and must show that in all human probability the act must

have been done by the accused. The circumstances should be of a conclusive

nature and tendency and they should exclude every possible hypothesis except the

one to be proved.

40. It is also settled, as held in Deonandan Mishra vs State of Bihar, AIR 1955 SC

801 and Sharad Birdhichand Sarda [supra], that only if the circumstances

established by the prosecution are of a conclusive nature and tendency pointing

towards the accused as the assailants excluding every other possible hypothesis

consistent with the innocence of the accused, a Court can use a false explanation or

a false defence as an additional link to lend an assurance to the Court and not

otherwise. It has been held that before a false explanation can be used as an

additional link, three essentials parameters must be satisfied and they are, firstly,

various links in the chain of evidence led by the prosecution have been satisfactorily

proved; secondly, the said circumstance points to the guilt of the accused with

reasonable definiteness; and thirdly, the circumstance is in proximity to the time

and situation.

41. In Reena Hazarika vs. State of Assam , the deceased resided along with the

appellant and his minor daughter in a tenanted premises and the allegation against

the appellant was that she had assaulted the deceased in the intervening night.

Three prosecution witnesses deposed that they had heard noises and on going

Page No. 23/27

there, they found the deceased with head injury. The post-mortem examination

revealed a number of injuries on the person of the deceased and the injuries were

anti-mortem in nature and caused by moderately heavy sharp cutting weapon and

homicidal in nature. The Trial Court and the High Court held the appellant guilty as

the last seen theory had established the presence of the appellant with the

deceased at night. In appeal, the Hon’ble Supreme Court has observed as under :-

9. …….Suffice it to observe that in a case of circumstantial evidence the

prosecution is required to establish the continuity in the links of the chain of

circumstances, so as to lead to the only and inescapable conclusion of the

accused being the assailant, inconsistent or incompatible with the

possibility of any other hypothesis compatible with the innocence of the

accused. Mere invocation of the last-seen theory, sans the facts and

evidence in a case, will not suffice to shift the onus upon the accused

under Section 106 of the Evidence Act, 1872 unless the prosecution first

establishes a prima facie case. If the links in the chain of circumstances

itself are not complete, and the prosecution is unable to establish a prima

facie case, leaving open the possibility that the occurrence may have taken

place in some other manner, the onus will not shift to the accused, and the

benefit of doubt will have to be given.

42. Mere absconding by itself does not necessarily lead to a firm conclusion of guilty

mind. Even an innocent man may feel tremulous and try to evade arrest when

wrongly suspected of a grave crime. The act of absconding can be a relevant piece

of evidence and the same can be considered along with other evidence but its value

would always depend on the circumstances of each case. Ordinarily, much

importance is not to be attached to the act of absconding. In Matru vs. State of

Uttar Pradesh, [1971] 2 SCC 75, it has been held that it can scarcely be held as

determining lead in completing the chain of circumstantial evidence which must

admit of no other reasonable hypothesis than that of the guilt of accused. Following

Page No. 24/27

Matru [supra], the Supreme Court in Sujit Biswas [supra] has observed that in a

case based on circumstantial evidence, mere abscondence of an accused may be

part of the natural conduct. Abscondence is in fact relevant evidence, but its

evidentiary value depends upon the surrounding circumstances, and hence, the

same must only be taken as a minor item in evidence for sustaining conviction. An

adverse interference can be drawn against the accused only and only if the

incriminating materials stand fully established, and the accused is not able to

furnish any explanation for the same.

43. It has been held to be a settled legal proposition in SK. Yusuf [supra] that in case

a person is absconding after commission of offence of which he may not even be

the author, such a circumstance alone may not be enough to draw an adverse

inference against him as it would go against the doctrine of innocence. It is quite

possible that he may be running away merely on being suspected, out of fear of

police arrest and harassment. Mere abscondence of the accused cannot be taken as

a circumstance which gives rise to draw an adverse inference against him.

44. While reaching the finding of guilt the Trial Court has relied upon the proposition

laid down in Trimokh Maroti Kirkan vs. State of Maharashtra, [2006] 10 SCC

681. In Trimokh Maroti Kirkan, when an accused was alleged to have committed

a murder inside the premises of a private property and the prosecution succeeds in

leading evidence to show that either immediately before the commission of time or

at the time of commission of the crime, the accused and the deceased were

together there without any third person with them and if the accused does not offer

any explanation how the deceased received the fatal injuries or offers an

explanation which is found to be false, then it becomes a strong circumstance to

indicate that he is responsible for the crime. Such obligation is cast in view of the

rule of evidence embodied in Section 106 of the Evidence Act.

45. To get the rule of evidence embodied in Section 106, Evidence Act operational, the

prosecution has a prior duty under the rule contained in Section 101, Evidence Act.

Page No. 25/27

As per Section 101, Evidence Act, the burden to prove the case resting on

circumstantial evidence would always be on the prosecution. Unless the prosecution

leads reliable, cogent and conclusive evidence to establish that either immediately

before the commission of the crime or at the time of the commission of the crime,

the accused and the deceased were together inside the house without there being

any other person with them, there is no corresponding obligation on the part of the

accused to offer an explanation under Section 106, Evidence Act. In the case in

hand, the prosecution has not succeeded, in the considered view of this Court, in

leading evidence to show that shortly before the alleged death, be it homicidal or

suicidal, the accused and the deceased were seen together to draw an inference

that at the time of death of the deceased, the accused persons were present inside

the dwelling house. In view of failure on the part of the prosecution to lead such

evidence on that count, the accused had no duty to offer an explanation as to how

the deceased had sustained the injuries on her person and how the deceased met

her death.

46. So, any false explanation or any defence taken by the accused persons in such

backdrop cannot be considered as an incriminating circumstance acting against the

accused persons. Therefore, the Trial Court’s finding regarding false explanation or

false plea of alibi is found unacceptable. Rather, the explanation given by the

accused persons was a reasonable explanation and there was no reasonable basis

to cast doubt on it in the absence of any evidence to the contrary. There was no

recovery of any weapon of assault to establish a connection with the accused

persons. In such obtaining fact situation, the question whether death was homicidal

or suicidal is not required to be gone.

47. In the light of the discussions made above and for the reasons assigned therein,

more particularly, in view of a number of missing links in the chain of

circumstances, we have not been able to persuade ourselves to be in agreement

with the finding of guilt arrived at by the Trial Court. In the administration of

criminal justice, it is a golden principle that when two views are possible on the

Page No. 26/27

evidence adduced in the case, one pointing to the guilt of the accused and other to

his innocence, the view which is favourable to the accused should be adopted. This

principle has a special relevance in cases wherein the guilt of the accused is sought

to be established by circumstantial evidence. As the prosecution has failed to prove

this case against the accused-appellants along with any common intention beyond

all reasonable doubt by way of clear, reliable and credible evidence, we find that

the Judgment and Order dated 11.01.2022 of conviction and sentence passed by

the learned Trial Court is not sustainable in law and the same is liable to be set

aside. It is accordingly set aside.

48. Consequently, the criminal appeal is allowed.

49. Both the accused-appellants are to be released from custody forthwith if their

custody is not required for any other case or purpose.

50. We recommend for disbursement of compensation to the eligible next kith and kin

of the deceased under Section 357A, CrPC and the extant Victim Compensation

Scheme framed thereunder. We further observe that such enquiry shall be

undertaken and completed with expedition and thereafter, to award and disburse

appropriate compensation thereunder to the victim[s] entitled upon conclusion of

such enquiry.

51. Before parting with the record, we wish to place our appreciation on record as

regards the services rendered by Mr. A. Ahmed, learned Amicus Curiae appearing

for the appellants and direct the Registry to make available to him just

remuneration as per the notified fee structure applicable to the Amicus Curiae.

52. The records of the Trial Court are to be sent back forthwith.

JUDGE JUDGE

Page No. 27/27

Comparing Assistant