The central legal point established in the judgment is the admissibility of dying declaration and the legal principle of presumption under Section 113-A of the Evidence Act in establishing the offense of cruelty leading to suicide.

P.G. Agarwal, J.

1. Heard Mr. B. Chakraborty, learned Counsel for the accused Appellant and Mr. B. Sinha, the learned P.P.

2. This appeal is directed against the judgment and order dated 15.7.2004 passed by the Ad hoc Addl. Sessions Judge, Karimganj in Sessions Case No. 73/2003 (GR Case No. 213/2002) whereby the accused Appellant was convicted Under Section 498(A)/306 IPC and sentenced to imprisonment for five years and to pay a fine of Rs.5,000/- in default further imprisonment for three months Under Section 306 IPC. The accused Appellant was also sentenced to imprisonment for six months and to pay a fine of Rs.1,000/- in default further imprisonment for one month Under Section 498(A) IPC. Both the sentences were ordered to run concurrently.

3. The facts in brief is that the accused Appellant Rajkamal Choudhury @ Babu Choudhury is the husband of Shanta Choudhury. The said Shanta Choudhury committed suicide by drowning in the well situated within the compound of the accused Appellant on 28.2.2002, i.e., within seven years of the marriage as we find that the marriage was solemnized between the parties some time in the year 1998. The brother of the deceased thereafter filed a written FIR alleging interalia that since the solemnization of the marriage, the accused Appellant and his mother Rekha Chowdhury used to torture the deceased, both physically and mentally in respect of dowry demand and other domestic affairs as a result of which the deceased was forced to commit suicide. Police conducted usual investigation and submitted charge sheet and the two accused were tried for commission of offence Under Section 498(A)/304(B) IPC.

4. During trial, the prosecution examined as many as nine witnesses. The defence did not adduce any evidence. One Bijananda Singh was examined as Court witness No. 1. On conclusion of the trial, the learned trial Court acquitted accused Rekha Chowdhury and convicted and sentenced the accused Appellant as stated above. Hence the present appeal.

5. In this case, the factum of marriage between the accused Appellant and the deceased Shanta Chowdhury solemnized in the year 1998 is not in dispute. There is also overwhelming oral and medical evidence on record that the said Shanta Chowdhury died on 28.2.2002 by way of drowning.

6. P.W. 1 is Dr. Krishna Prasanna Sinha who held the autopsy over he dead body and found as follows:

An average built female body whose rigor mortis was present, eyes closed, mouth half opened, ears cleared, nostrils contained fine white tenacious froth, abrasion present over the chin with presence of inflammatory change. Her both hands were found clenched and empty. No other sign of external injury could be detected.

Thorax: Watis, ribs and cartilages were healthy; pleurae found healthy, larynx and trachea were found congested contained white fine tenacious froth, right lung and left lung found congested, pericardium congested; heart healthy and contained blood in all chambers, vessels healthy.

Abdomen: Walls healthy; peritoneum congested; mouth pharynx oesophagus healthy, stomach and its contents healthy and contained liquid materials; small intestine healthy and contained liquid materials; large intestine healthy and found empty.

Cranium and spinal canal: Scalp, skull, vertebrae, membrane, brain and spinal cord were found healthy; liver, spleen and kidneys were found healthy; bladder healthy and empty; organs of generation healthy. The deceased was found pregnant at that time. Ulteras found eight week size and contained product of conception.

Muscles, bones and joints: No injury found.

7. In the opinion of the doctor, the death was due to asphyxia, i.e., suffocation, due to drowning in the water, as, in course of autopsy there was found liquid materials both in stomach and in small intestine. In his cross examination the doctor has also further stated that such kind of death may occur by self-drowning in the pond, well, river etc.

8. As regards the cause of death, the medical evidence is th