R. BHATTACHARYYA, J. ( 1 ) THIS criminal appeal stems out the order of conviction and sentence passed against the accused persons for having committed offences under section 302/34 of the IPC and section 201/34 of the IPC convicting Bimal for imprisonment of life and both Siprarani and Kalidasi under section 201/34 of the IPC according to them the benefit of section 360 of the CRPC when this appeal for reversal of the order of conviction and sentence. ( 2 ) THE Hon'ble Justice Sagir Ahmed in Ajit Savant Majagvai v, State of Karnataka 1997 SCC (Cri) 992 spoke for the bench that 'battle of sexes has always been a battle of wits. Today it is denuded of its charms. It has degenerated into a war involving physical violence, torture, mental cruelty and murder of the female including partly the wife. " ( 3 ) WHEN we embark upon to scrutinise the authorship of the crime of the unfortunate story of torture and ill treatment, as alleged on Archana meated out to her which had resulted in her premature death at the hands of her relations and the appellant took a vow before the nuptial fire to be not only saviour but also guard her against all odds. In short, the vow or the promise so made by him attributed, in particular, to her husband who only acknowledged that he was the friend, philosopher and guide of his wife. The above vow which was fluid before the nuptial fire, in reality, followed in marital life in letter. It is the normal wear and tear in the marital life which is inevitable but the marital relationship came to a such pass that could lead to a death is unimaginable. ( 4 ) IN our tempestuous voyage in quest of truth, it is notorious to find from the evidence that the vow or marital oath was totally polluted and made the marital life to suffer from despondency and brutalities. The tragic incident took place in the night of 13/14. 7. 81 at Baguipara Baikuntapur within the PS Sonarpur, District South 24 Pgs. Both Bimal the principal accused and Archana were married according to Hindu rites but the marital life as between the two bore a few holes which could never be plugged. The tragic incident took place in the night of 13/14. 7. 81 at Baguipara Baikuntapur within the PS Sonarpur, District South 24 Pgs. Both Bimal the principal accused and Archana were married according to Hindu rites but the marital life as between the two bore a few holes which could never be plugged. The illfated Archana, the newly weded wife ultimately turned to be the target of illtreatment plus torture of which Bimal the principal accused was the author. She was often beaten up by her husband which reached the parents via the deceased and the neighbours. The attempt to bring harmony in the marital life, though insisted on by the neighbour did not fructify, in view of the intolerable dehumanising conduct and treatment of Bimal. In fact, the marital life was full of sore. ( 5 ) SOMEHOW, or the other, an intimation was sent to the police station by the resident of Baikuntapur about the homicidal death of Archana which set the law into motion. On the basis of the intimation, Sonarpur PS started a U. D. Case being U. D. Case No. 36 of 14. 7. 81 which ended in submission of final report consequently gave rise to the animation of Sonarpur police station Case No. 36 of 81 under sections 302/34 and 201/34 of the IPC. ( 6 ) IN course of investigation, the investigating agency recorded the statements of the different witnesses, held inquest over the dead body to be the dead body of Archana Biswas, sent the same for post-mortem report, seized various articles and examined witnesses. The statement was also recorded of one Dulal Bose by the Judicial Magistrate under section 164 of the CRPC. ( 7 ) ON termination of investigation, charge-sheet was submitted. It was transparent from the charge-sheet that offence alleged above have been committed by the accused persons who were sent up for trial before the learned SDJM. He was of the view that the case was exclusively triable by the court of sessions, for which, he committed the case and the accused to the court of sessions to stand the trial. ( 8 ) AFTER taking cognizance under section 193 of the Code of Criminal Procedure. He was of the view that the case was exclusively triable by the court of sessions, for which, he committed the case and the accused to the court of sessions to stand the trial. ( 8 ) AFTER taking cognizance under section 193 of the Code of Criminal Procedure. the case made over to the learned Additional District and Session Judge for conclusion who upon consideration of the materials on record framed charges against the accused persons under section 302/34 of the IPC, and thereafter, a further charge were under section 201/34 of the IPC. ( 9 ) THE learned trial Judge read over the contents of the charges to the accused persons who pleaded not guilty and claimed to be tried. The prosecution in the instant case examined as many as 17 witneses and the defence also examined one witness. The court upon consideration of the statement made by the accused persons under section 313 of the CRPC and also in consideration of the evidence on record held the accused persons guilty for the offences charged with and accordingly, passed the order of conviction and sentence hereto before mentioned. ( 10 ) THE order of conviction and sentence, since wounded the right of the accused persons as the reasonings assigned by the learned court below were incongruous, for which, they approached this court to substitute the order of conviction into an order of acquittal. ( 11 ) IN this appeal, we are constrained to deal with the unfortunate story of torture of the prosecution culminated into a murder vis-a-vis the story of sucide pleaded by the accused toward off the charge of murder. The story of suicide, if holds field, the unfortunate story of torture which was the result of death is sure to crumble. We must bear in mind that the pleas are not overlaping of each other but distinct which must be culled out from the evidence on record about the genuineness or otherwise of the case presented by the rival groups. ( 12 ) IN the advent of the two pleas, looking to the evidence on record, we find that following witnesses were examined by the prosecution to ground the charge. ( 12 ) IN the advent of the two pleas, looking to the evidence on record, we find that following witnesses were examined by the prosecution to ground the charge. They are :- ( 13 ) PW-1 Amal Biswas, PW-2 Nimai Chandra Ghosh, PW-3 Sudhanya Ghosh, PW-4 Gadadhar Ghosh, PW-5 Babul Ghosh, PW-6 Jotirmoy Ghosh, PW-7 Smt. Labangalata Ghosh, PW-8 Smt. Minati Ghosh, PW-9 Sri Dulal Ghosh, PW-10 Saral Chandra Ghosh, PW-11 Nitai Ghosh, PW-12 Alok Kumar Ghosh, PW-13 Pranab Kumar Deb (J. M.), PW-13 A. S. I. Sri Pramodh Kumar Mishra, PW-15 Inspector of Police, Ashok Kumar Guha, PW-16 Dr. Dipen Kumar Biswas and PW-17 S. I. Sri Chittaranjan Das. ( 14 ) THE defence borrowed support from a lone evidence of his D. W. 1, Sri Santosh Kumar Ghosh. ( 15 ) THE evidence of PW-1 speaks of the starting of Sonarpur PS Case No. 36 dated 14. 7. 81 suomoto by PW-1. ( 16 ) PW-2 Nimai was the brother of the deceased who was given in marriage with Bimal. The friend of Bimal passed on an information to the wife of PW-2 about the assault inflicted by Bimal the accused on his wife. It is manifest from his examination and chief that Archana delivered a news to the brother of PW-2 about the severe pain on her body. He was reported by one Ratan about the death of Archana in the marital home. He found her hanging from a jackfruit tree of a low height with her feet touching the ground. He withstood the gruelling cross-examination and all along held the ground in his evidence about the death of his sister. There was an animosity between the accused and the deceased over the education that grew hatred between the two is an unsuccessful attempt of the defence to give a twist to the case of the prosecution. The infliction of assault was never shaken in view of the evidence on record. ( 17 ) THE evidence of PW-2, according to us, does not raise any suspicion about his evidence in view of his relationship with the deceased. ( 18 ) PW-3 is Sudhanya whose evidence is almost in tune with PW-2. He made a description of the injuries found by him on the different parts of her body. He attested in his evidence that he was present when the body was brought down. ( 18 ) PW-3 is Sudhanya whose evidence is almost in tune with PW-2. He made a description of the injuries found by him on the different parts of her body. He attested in his evidence that he was present when the body was brought down. He divulged in his evidence about the torture by her husband on her which she often used to complain. He also forbade Bimal from beating Archana. There is no significant cross-examination contrary to the statements made in examination in chief. His evidence so far as the cross-examination is concerned was confined to his relationship with the deceased. He was also a witness to the inquest. The evidence of PW-2 does not bring forth any material which could flavour the claim of suicide. The injuries found on her person and attested by him do not reflect at any rate the convenient plea of suicide. ( 19 ) PW-4 is Gadadhar Ghosh whose evidence affords confidence about homicidal death. He is categoric that he woke up from sleep on hearing the sound of the accused Bimal. He went to the PS. He has disclosed in his evidence that he did not find any mark of injury on the person of Archana Ghosh. The evidence itself does not generate any suspicion that the death of Archana was suicidal as it does not agree with the evidence of PW-3. He was brought down from the jackfruit tree of average height gets a premium of an unnatural death. It may be that in one circumstance a witness may see one thing which the other may not. But that does not hover any doubt on the evidence of his as we are concerned with the authorship of the crime and the plea advanced by the prosecution and the defence but nothing more. Thus, the evidence of PW-4 does not bear any significant dent on the case of the prosecution. ( 20 ) PW-5 is Bablu Ghosh who is related to the witness. He is the Mesomosai of the accused. It is really interesting to find from his evidence when he says that victim Archana used to complain against accused Bimal. This is really a very invalidable piece of evidence which could not be undervalued. the evidence so far disclosed never reflected any animous of Bimal against PW-5 or vice versa. He is the Mesomosai of the accused. It is really interesting to find from his evidence when he says that victim Archana used to complain against accused Bimal. This is really a very invalidable piece of evidence which could not be undervalued. the evidence so far disclosed never reflected any animous of Bimal against PW-5 or vice versa. There could be no earthly reason to spin out a false story of torture, in particular, when told by the Mesomosai of Biaml. His evidence when appraised in the perspective of the other tangible materials on record, it is very difficult to blow off his evidence. ( 21 ) PW-6 is Jotirmoy Ghosh whose evidence is of no consequence either for the prosecution or for the defence. ( 22 ) PW-7 is Labangalata Ghosh who made a holy disclosure in her evidence about the torture and the assault inflicted on Archana by Bimal. It is none but Archana who made a complaint of such torture and assault. Her cross-examination does not inspire the plea of suicide although her son committed it. The crux of the evidence of torture and assault complained of by the deceased cannot be scored through or underrated. The cross-examination of PW-7 falls on a different premises. ( 23 ) PW-8 is Smt. Minati Ghosh who is the sister of the deceased. She gave an equal account of torture and assault committed by the accused persons in the marital home. The evidence of torture and assault as told by the deceased to PW-8 could not be made to be washed off the record though endeavoured by the accused. She summarily dismissed in her evidence the claim of the defence that her sister was suffering from complex. She was more educated than her husband which lead her to commit suicide for being captivated by the depression of mind. ( 24 ) PW-9 is Sri Dulal Ghosh. The evidence of Dulal is really striking as he found in the morning while going out to collect milk and passing by the side of the accused persons found some people assembled near the accused persons which sparked of suspicion. He heard Biswanath Ghosh telling his son Bimal and his wife and daughter that they killed Archana. PW-9 Dulal found the accused person to pull Archana and take her to the tubewell near the house. He heard Biswanath Ghosh telling his son Bimal and his wife and daughter that they killed Archana. PW-9 Dulal found the accused person to pull Archana and take her to the tubewell near the house. He had a conversation with the accused persons over the same goes beyond dispute. He has been corroborated over the matter as found by him in the morning of July by the evidence of PW-11 Nitai Ghosh. PW-9 Dulal said nothing in his evidence about the death or murder except the strange conduct of the accused persons and the utterings of Biswanath accusing Bimal and the two other accused as the authors of the crime. There might be minor variation in his evidence which never gave a blow to his evidence. He has been thoroughly cross-examined about the topography of the place in vain. He was related to both the deceased and the accused. The defence could not extract any material which could strike his evidence. The unusual conduct of the accused in the morning following of the fateful day assures confidence of his evidence which cannot be thrown over board by the erratic cross-examination. ( 25 ) PW-10 is Sri Saral Chandra Ghosh who found Archana hanging from the jackfruit tree near the house of the accused persons. He has given out in his evidence that Bhabasindu had been to the house of one Alok Ghosh, the cousin brother of Saral's wife and that Bimal and his father went there. They made an attempt to compromise the differences and dissensions ahead of the occurrence. Since he did not speak of compromise in the statement before the police, the whole evidence of his could be marked with suspicion. ( 26 ) PW-11 is Nitai Ghosh who has fully corroborated the evidence of Dulal, PW-9. Since PW-9 grew suspicious, he requested Nitai to visit the marital home of the deceased. His professional career is sought to have been contradicted by the defence. Thus, there is no material which could project a shadow on his evidence. Had he any foul motive, his evidence would bear embellishment. ( 27 ) PW-12 is Aloke who was related to the deceased. He has asserted in his evidence about a few blows dealt by Bimal who conveyed the same to PW-12. He has delineated in his cross-examination the state of mind of Bimal when he visited his house who was trembling. ( 27 ) PW-12 is Aloke who was related to the deceased. He has asserted in his evidence about a few blows dealt by Bimal who conveyed the same to PW-12. He has delineated in his cross-examination the state of mind of Bimal when he visited his house who was trembling. The above evidence when combined with the evidence in examination of chief lends full and absolute assurance about his testimonies which cannot be viewed with distruss. ( 28 ) PW-13 is Pranab Kumar Deb, the Judicial Magistrate, who recorded the statements of PW-9 Dulal under section 164. His cross-examination is not beside the issue for the statement recorded by him. ( 29 ) PW-14 is Pramodh Kumar Mishra who is an Investigating Officer. He read over the contents of the document which was admitted into evidence exhibit-3. He also held the inquest over the dead body of the deceased and sent the deed body to the Doctor to hold the P. M. ( 30 ) PW-15 is Ashok Kumar Guha who is an Inspector of Police. ( 31 ) PW-16 is Dr. Dipen Kumar Biswas who gave a candidate testimony that death was the result of the effects of the injuries noted by him which were ante-mortem and homicidal in nature. It was not the result of the suicide that became predominant in his evidence which dismissed the claim of suicide. He withstood the cross-examination of the defence, the evidence of PW-16 completely rules out the case of the defence. He found blooding injury on the organs in the viscera. He also found injuries on the organs like liver, spleen, kidney, blodder, uterus if the victim. ( 32 ) IT has been extracted from his evidence by the defence that the injuries were the direct cause of death of the victim. The above invulnerable evidence had exposed the clay feet of the case of the defence that the death was suicide. The accused has been caught up in a dilemma which has not been cured by an imbecile plea of suicide. It is undoubtedly a dithering action of the accused in order to be out of the wood. But this wavering continued and never came to an end. However, the defence may say, the evidence of the Doctor who hold the autopsy on the dead body of the deceased is the last nail in the coffin. It is undoubtedly a dithering action of the accused in order to be out of the wood. But this wavering continued and never came to an end. However, the defence may say, the evidence of the Doctor who hold the autopsy on the dead body of the deceased is the last nail in the coffin. The story of suicide even if accepted to be true, the medical evidence on record completely outweighs such plea as the medical evidence is free from all doubt. ( 33 ) PW-17 is the SI Sri Chittaranjan Das who was one of the Investigating Officers. Indeed, there is no controversy between the evidence of the village witnesses and the Doctor. The suicide aspect of the matter became forlorn for the impregnable medical evidence on record. ( 34 ) THE accused made an endeavour to give a false colouring to the death, the object being to be absolved from criminal liability. ( 35 ) THE expert opinion of the Doctor that the injuries of the deceased were the direct result of the death could never be shaken nor there is any evidence on record that the injuries which were the direct cause of death by friendly hand. ( 36 ) IN the backtrain of the above, the medical evidence cannot mortgage its opinion with the plea of the accused that the death was suicide. The question necessarily becomes germane for consideration about the cause and effect of the injuries which occurred in the marital home about which the explanations furnished by the accused persons are meticulously silent who sought to have displaced the homicidal death by suicide which is an unsuccessful contravance. ( 37 ) THE explanation furnished by the accused in course of their examination by the court is an apology to suicide. All the accused persons have rejected the homicide and their explanation do not have any nexus which their pleas. It is true that a person may raise several pleas but the materials must surface to gain success of the plea. Plea cannot be considered independently of the materials on record or any absence of materials. The materials can foster the plea and it is for the court to scrutinise such plea with reference to the materials on record. It is true that a person may raise several pleas but the materials must surface to gain success of the plea. Plea cannot be considered independently of the materials on record or any absence of materials. The materials can foster the plea and it is for the court to scrutinise such plea with reference to the materials on record. Plea devoid of materials is always to be considered as fictitious which is cultivated by the accused in this case and has made a mess of the whole show. ( 38 ) THE evidence of DW-1 Santosh Kumar Ghosh has given the topography of the place of occurrence and nothing more. It is not the topography of the place which will prevail over the situation but it will be the act of the accused which should be considered and appreciated in the perspective of the materials on record. ( 39 ) THE evidence is replete that Archana fell victim to wrath indignation and anger which snapped of her life. The brutalities knew no bounds and the medicolegal testimony hangs heavily on the untrue and falsity of the defence case where neither the plea of suicide nor the over education of Archana could come to the fold of truth. It never assumed verginity when being totally invaded by the disinterested medical testimony. ( 40 ) THIS is all about the evidence which describes that horrible picture of marital life of the deceased and the accused. We have already indicated that the explanation furnished by the accused about the death of Archana is a lame explanation as it degenerated into decay for the medical evidence which alone if read in isolation or in conjunction with the evidence of the local resident affords to give a sanctity and reliability of the prosecution case. It is a fruitless endeavour of the accused to give a show of suicide in order to get over the crisis. None of the witnesses in our estimation showed their cold-feet during the trial. Thus, we accept the testimonies of the prosecution and reject that of the defence. The case of the prosecution has been proved to the core, for which, the accused cannot escape conviction. ( 41 ) WE have already indicated above that the action of the accused can never be attributed to the design of committing death. Thus, we accept the testimonies of the prosecution and reject that of the defence. The case of the prosecution has been proved to the core, for which, the accused cannot escape conviction. ( 41 ) WE have already indicated above that the action of the accused can never be attributed to the design of committing death. But the indiscriminate assault led to the death of the victim deceased. It is very difficult, in view of the peculiar facts and circumstances of the case, that there was a definite intention on the part of the accused to cause death can neither be presumed nor inferred. On the existing materials, it is very difficult to hold as cannot be held that the offence of the accused appellant comes within the fold of section 302. For the offence complained of and since proved in the trial, the accused could be convicted under section 304 part-II of the IPC. ( 42 ) THE reason assigned by the learned court below in convicting the accused under section 302 are not acceptable and accordingly, we disagree with the conviction and sentence passed under section 302. Instead, we convict the accused under section 304 part-II of the IPC and sentence him to undergo 7 years rigorous imprisonment. ( 43 ) SINCE conviction has been recorded in respect of the other accused according benefit under section 360 of the Code of Criminal Procedure and also under the Probation of Offenders Act, we do not want to interfere with the same for the passage of time. The appeal is accordingly allowed in part. The accused be released forthwith unless wanted in connection with any other case, if the sentence is already served out. ( 44 ) LET the record go down to the court below as expeditiously as possible. Later. The appellant may take benefit of section 428 of the Cr PC. , if entitled D. P. Sircar-I, J.-I agree. Appeal allowed in part