Judgment :- Alok Kumar Basu, J. Moinuddin Sheikh @ Bulu, Ainuddin Sheikh, Tulu Sheikh @ Anarul, Dalim Sheikh and Nasima Bibi faced charges under section 498A and under section 304B of the IPC and in the alternative section 306 of the IPC before the learned Additional Sessions Judge, 1st Track Court, Krishnanagar in the district of Nadia in connection with Sessions Trial No. 11 of April, 2004 corresponding to Sessions Case No. 1(12) of 2003 and after conclusion of trial, Moinuddin Sheikh @ Bulu along with his parents Ainuddin Sheikh and Nasima Bibi were convicted under section 498A along with section 304B of the IPC and all the three were sentenced to suffer rigorous imprisonment for life under section 304B and to suffer rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for six months each for the offence under section 498A of the IPC. Tulu Sheikh @ Anarul and Dalim Sheikh were, however, found not guilty and both of them were acquitted of all the charges framed against them. 2. Being aggrieved by, and dissatisfied with, the order of conviction and sentence, Moinuddin Sheikh along with Ainuddin Sheikh and Nasima Bibi have preferred this appeal. 3. The prosecution case in brief was that Selina Bibi, the youngest daughter of de facto complainant Tehesan Ali was married to appellant Moinuddin Sheikh @ Bulu, son of appellant Ainuddin Sheikh and Nasima Bibi on 18th April, 2001 and at the time of marriage Rs. 35,000/- in cash and other articles including gold and silver ornaments were given by de facto complainant. 4. It was the specific allegation of de facto complainant that soon after marriage when Moinuddin Sheikh along with Selina Bibi came to the house of de facto complainant, and the de facto complainant at that time assured Moinuddin that he would give a new motorcycle to him at appropriate time. 5. It was alleged in the petition of complaint that after return to Nagadi where Moinuddin used to reside with Selina Bibi after marriage, Moinuddin along with his parents started torturing upon Selina both physically and mentally for non-fulfillment of the demand of appellant Moinuddin regarding the motorcycle. 6. 5. It was alleged in the petition of complaint that after return to Nagadi where Moinuddin used to reside with Selina Bibi after marriage, Moinuddin along with his parents started torturing upon Selina both physically and mentally for non-fulfillment of the demand of appellant Moinuddin regarding the motorcycle. 6. On 31st May, 2001 getting news about illness of Selina Bibi, when de facto complainant along with his wife and other relatives went to Nagadi, they came to learn that Selina was already removed to Bethuadahari Hospital and going at Bethuadahari Hospital de facto complainant found the deadbody of Selina Bibi. 7. De facto complainant thereafter lodged the petition of complaint on 7th June, 2001 alleging torture meted to Selina by the appellants over dowry demand and resulting the unnatural death of Selina. 8. On the basis of complaint of de facto complainant, Nakashipara P.S. instituted the present case against the appellants and others and after completion of investigation, charge-sheet was submitted against all of them. 9. The Trial Judge framed charges under section 498A as well as under section 304B of the IPC and in the alternative charge under section 306 of the IPC against the appellants and as the appellants pleaded innocence and claimed for trial, prosecution produced ten witnesses before the Trial Judge and apart from oral evidence, prosecution also placed before the learned Trial Judge, the original written complaint of Tehesan Ali, the post-mortem report of the deceased lady, seizure list and other documents. 10. The learned Additional Sessions Judge having regard to the statement of P.W.1 and after considering the post-mortem report was of the view that Selina Bibi, daughter of de facto complainant Tehesan Ali, died an unnatural death at her matrimonial home within almost 48 days from her marriage. The learned Judge after due consideration of the statement of P.W.2 Tehesan Ali, P.W.3 Kamala Bibi, P.W.4 Ehesan Ali, P.W.5 Murtaz Ali and P.W.6 Emajuddin Sk. came to the conclusion that since her marriage Selina Bibi was subjected to both physical and mental torture at her matrimonial home and appellants were responsible for such torture and appellants inflicted such torture with the sole purpose of getting a motorcycle for appellant moinuddin Sheikh as dowry. 11. came to the conclusion that since her marriage Selina Bibi was subjected to both physical and mental torture at her matrimonial home and appellants were responsible for such torture and appellants inflicted such torture with the sole purpose of getting a motorcycle for appellant moinuddin Sheikh as dowry. 11. Thus, the learned Trial Judge after considering the prosecution evidence as a whole and after hearing submissions of both the prosecution and the accused persons came to the conclusion that all the ingredients necessary to record an order of conviction under section 498A as well as under section 304B of the IPC were satisfactorily proved by the prosecution against the present three appellants and on such conclusion, the learned Trial Court recorded an order of conviction both under section 498A and under section 304B of the IPC against the present appellants. 12. After going through the prosecution evidence which was placed before us by Mr. Sengupta appearing on behalf of the appellant and after considering the submissions of both Mr. Sengupta and the learned Advocate appearing for the State respondent, we have no hesitation to hold that so far conviction order recorded against appellant Ainuddin Sheikh and Nasima Bibi is concerned, the learned Trial Court erred both in fact and law. 13. We find from the impugned judgment that according to the learned Trial Judge there was sufficient evidence to indicate beyond all reasonable doubt that appellant Ainuddin Sheikh along with Nasima Bibi took active part in inflicting torture on Selina Bibi for dowry in the form of a motorcycle and on such observation, the learned Trial Judge held Ainuddin Sheikh and Nasima Bibi guilty for both the offences under sections 498A and 304B of the IPC. 14. After considering the prosecution evidence mainly the statement of de facto complainant, his wife, his son and his son-in-law, we are of clear view that Selina Bibi had never any occasion to reside with Ainuddin Sheikh and his wife Nasima Bibi and there was practically no evidence on record to show that Ainuddin Sheikh and Nasima Bibi ever pressed any demand for the motorcycle. 15. Thus, having regard to the prosecution evidence and after considering the submission of both Mr. 15. Thus, having regard to the prosecution evidence and after considering the submission of both Mr. Sengupta and the learned Advocate appearing for the State, we are of the view that the conviction order recorded against Ainuddin Sheikh and Nasima Bibi cannot be supported either in fact or in law. 16. Mr. Dipak Sengupta for the appellant Moinuddin Sheikh submits that conviction of appellant Moinuddin also under section 498A and under section 304B of the IPC cannot be supported either in fact or in law and even the alternative charge under section 306 of the IPC does not appear to be sustainable in law. Mr. Sengupta in support of his submissions has drawn our attention to the following points with reference to the evidence on record:— The cause of death of Selina Bibi as alleged by prosecution was not at all clear as it appears from the opinion of the doctor who conducted medical examination. Mr. Sengupta contends that since prosecution did not procure the report of chemical examination of viscera of the deceased lady, no conclusion can be made regarding the unnatural death of Selina Bibi; Mr. Sengupta contends that in this particular case admittedly when Tehesan Ali, father of Selina Bibi along with his relatives came to the matrimonial home and got information regarding the death of Selina Bibi, no attempt was made to lodge any complaint with the local P.S. although Tehesan Ali and his relatives had the opportunity to meet the police officer who came to hold inquest over the deadbody of Selina Bibi. Mr. Sengupta contends that it is clear from record that only after a week Tehesan Ali lodged a Court complaint under section 156(3) of the Cr. PC against the appellants and there appears no explanation for this unusual delay behind lodging of the complaint against the appellants and this is sufficient to hold that the complaint of Tehesan Ali was an afterthought and it was an act of sheer revenge. Mr. PC against the appellants and there appears no explanation for this unusual delay behind lodging of the complaint against the appellants and this is sufficient to hold that the complaint of Tehesan Ali was an afterthought and it was an act of sheer revenge. Mr. Sengupta contends that if we carefully and dispassionately consider the statement of Tehesan Ali, his wife, his son and his son-in-law, we would find no convincing evidence at all to indicate that Selina was ever tortured by Moinuddin Sheikh for the motorcycle and that being the factual position available from evidence on record, the learned Trial Judge was totally unjustified in convicting Moinuddin Sheikh both under section 498A and under section 304B of the IPC; Mr. Sengupta finally submits that it is available from the deposition of P.W.7 that Selina Bibi, in fact, did not like Moinuddin Sheikh as her husband and that was the only cause of her unnatural death. Mr. Sengupta contends that there is nothing on record to show that Moinuddin Sheikh ever instigated Selina Bibi to commit suicide and hence, Moinuddin cannot be convicted even under the alternative charge of section 306 of the IPC. 17. The learned Advocate appearing for the State respondent submits that from the evidence on record it appears that Selina Bibi died an unnatural death within two months from her marriage with Moinuddin Sheikh and Selina Bibi died at her matrimonial home by consuming unknown poison. The learned Advocate contends that soon after marriage of Selina Bibi, Selina resided with Moinuddin at the matrimonial home at Nagadi. The learned Advocate contends that we find evidence on record particularly, from the statement of P.W.2 to P.W.6 who were both the parents of Selina Bibi, her brother and her sister-in-law that soon after marriage Moinuddin Sheikh demanded the motorcycle from Tehesan Ali and when Moinuddin Sheikh came back at Nagadi with Selina, he started torturing Selina for the motorcycle. 18. 18. The learned Advocate for the State contends that in a case under section 498A read with section 304B of the IPC, prosecution is required to prove that the victim housewife was the legally married wife of the accused husband, the victim housewife died an unnatural death or died in a suspicious manner, such occurrence took place within seven years of marriage, just prior to her death the victim wife was subjected to torture physically or mentally and finally, such torture was made with the sole purpose of claiming dowry and if all the above ingredients are satisfied, the Court is bound to hold that the victim wife suffered `dowry death and if such `dowry death took place at the matrimonial home, under section 113B of the Indian Evidence Act, the husband and other members of the matrimonial home are legally bound to give explanation for such unnatural death of the housewife and if no plausible explanation is available, there will be a presumption that husband and other members of the matrimonial home are guilty for the offence both under section 498A or under section 304B of the IPC. 19. The learned Advocate for the State submits that in this particular case the learned Trial Court was satisfied about all the necessary ingredients of section 304B of the IPC and naturally, keeping in view of the provision of section 113B of the Indian Evidence Act, the learned Trial Court rightly convicted appellant Moinuddin Sheikh under section 498A as well as under section 304B of the IPC. 20. We have examined prosecution evidence carefully and we have also considered submissions of both Mr. Sengupta and also the learned Advocate for the State. 21. There is no denying of the fact that appellant Moinuddin Sheikh was married with deceased Selina Bibi and said Selina Bibi died an unnatural death within two months from the said marriage and it is not disputed that Selina Bibi died while staying with appellant Moinuddin Sheikh in his house at Nagadi. 22. A question has been raised as to whether Selina Bibi died an unnatural death or not since the doctor who conducted post-mortem examination reserved his final opinion pending receipt of chemical examiners report regarding the viscera contents of the deceased lady. 22. A question has been raised as to whether Selina Bibi died an unnatural death or not since the doctor who conducted post-mortem examination reserved his final opinion pending receipt of chemical examiners report regarding the viscera contents of the deceased lady. But, on examination of the post-mortem report itself we find that the doctor while conducting post-mortem examination gave his opinion that victim died due to taking of some unknown poison and it is also available from the cross-examination of father of the victim, her mother and other relatives that a suggestion was given to them that victim committed suicide and that being the position of evidence, we are bound to hold that Selina Bibi really died an unnatural death within two months from her marriage and, in fact, she committed suicide by taking poison at the matrimonial home. 23. The prosecution allegation against appellant Moinuddin Sheikh was that soon after marriage Moinuddin while visiting the house of P.W.2 demanded the old motorcycle of P.W.2 and at that point he was assured that he would be given a new motorcycle at appropriate time. It was the specific prosecution allegation that after Selina Bibi came to the house of Moinuddin Sheikh at Nagadi, Moinuddin Sheikh started torturing her for not getting the motorcycle from her father P.W.2. 24. P.W.2 to P.W.6 in their examination-in-chief reiterated the allegation expressed in the written complaint of P.W.2 that Selina Bibi was subjected to torture over demand of motorcycle as part of dowry of the marriage and it was Moinuddin Sheikh who inflicted the torture on Selina. 25. The learned Trial Judge having regard to the fact that Selina Bibi within two months of her marriage faced unnatural death and such unnatural death took place due to torture meted to her on demand of dowry in the form of a motorcycle came to the conclusion that since Moinuddin was responsible for the torture over demand of motorcycle and since Selina Bibi died within two months of her marriage in an unnatural way, the necessary ingredients of section 498A and section 304B of the IPC were proved beyond all reasonable doubt. 26. It has been the contention of Mr. Sengupta on behalf of the appellant Moinuddin Sheikh that there was scanty evidence regarding the allegation of dowry demand and also regarding the allegation of torture inflicted on Selina Bibi and in that context Mr. 26. It has been the contention of Mr. Sengupta on behalf of the appellant Moinuddin Sheikh that there was scanty evidence regarding the allegation of dowry demand and also regarding the allegation of torture inflicted on Selina Bibi and in that context Mr. Sengupta is very vocal about the unusual delay in lodging complaint by P.W.2. 27. We find both from the petition of complaint as well as from the examination of P.W.2 that he gave explanation for the delay in lodging the complaint and having regard to the fact and circumstances of the case, we are inclined to accept such explanation as natural and reasonable. 28. Now, coming to the cross-examination of prosecution witnesses and with reference to the cross-examination of P.W.7 in particular we find that an endeavour was made on behalf of the appellant Moinuddin Sheikh to convince the Trial Court that Selina Bibi committed suicide since she was not agreeable to accept Moinuddin Sheikh as her husband, because of the fact that there was both financial disparity and educational disparity between the two. 29. From the provision of section 113B of the Indian Evidence Act together with the provision of section 304B of the IPC we find that if in a case, the housewife died an unnatural death within seven years from marriage at her matrimonial house and if there are allegations that the said housewife was subjected to torture prior to her death over dowry demand, a presumption would follow that the housewife suffered `dowry death and a presumption would also follow that the husband and other members of the matrimonial home were responsible for such `dowry death. It has also been laid down in section 113B of the Indian Evidence Act that the presumption to be drawn against husband and other members of matrimonial home is rebutable presumption and it has been observed in the case of Jashoda & Anr. vs. State of M.P., reported in 2004 SCC (Criminal) page 671 that if husband or any other member of the matrimonial home takes any plea to rebut the presumption stated above, onus would lie upon the husband or such member of the matrimonial home to place convincing evidence in support of their attempt to rebut the presumption. 30. vs. State of M.P., reported in 2004 SCC (Criminal) page 671 that if husband or any other member of the matrimonial home takes any plea to rebut the presumption stated above, onus would lie upon the husband or such member of the matrimonial home to place convincing evidence in support of their attempt to rebut the presumption. 30. We have stated earlier that appellant Moinuddin Sheikh through cross-examination of P.W.2 to P.W.6 and also through cross-examination of P.W.7 and also by his answer given during his examination under section 313 of the Cr. PC sought to establish that Selina Bibi committed suicide as she did not like Moinuddin Sheikh as her husband, but, apart from such general questions put to the prosecution witnesses, there is no convincing evidence from the side of Moinuddin Sheikh to establish his plea. 31. Thus, when we find from evidence on record that Selina Bibi committed suicide within two months from her marriage at the matrimonial home and when we find that being a young lady there was no special reason behind her commission of suicide, the husband under whose custody Selina Bibi died the unnatural death was legally bound to explain the circumstances leading to such tragic death of Selina and when there was no such explanation, rather, we find from the evidence of prosecution that Selina was subjected to torture before her death over dowry demand and Moinuddin Sheikh was responsible for such torture and for such dowry demand, following the provisions of section 498A and section 304B of the IPC read with section 113B of the Evidence Act, we are inclined to hold that Selina suffered a `dowry death and Moinuddin Sheikh was responsible for such `dowry death. 32. Thus, after considering the submissions made by the learned Advocate of the respective parties and after proper consideration of prosecution evidence, we are of the view that the learned Judge rightly convicted appellant Moinuddin Sheikh both under section 498A and under section 304B of the IPC and we do not find any infirmity in the conviction order of the learned Trial Court. 33. Mr. Sengupta has submitted before us that the sentence imposed against Moinuddin Sheikh under section 304B of the IPC has been too harash in view of the fact and circumstances on record. 33. Mr. Sengupta has submitted before us that the sentence imposed against Moinuddin Sheikh under section 304B of the IPC has been too harash in view of the fact and circumstances on record. We have seriously considered over this point and after considering the fact and circumstances we fully share the view of Mr. Sengupta that the sentence imposed against Moinuddin Sheikh for the offence under section 304B of the IPC is really too harash and we are of the view that in the interest of justice, Moinuddin Sheikh should be sentenced to suffer minimum sentence of seven years imprisonment and also to pay a fine of Rs. 1,000/-in default to suffer rigorous imprisonment for three months more. 34. With the above observation, we allow this appeal in part and we set aside the order of conviction and sentence of appellant Ainuddin Sheikh and Nasima Bibi and hold that both of them are not guilty of both the offences and they shall stand acquitted accordingly. 35. We, however, are inclined to confirm the conviction order of appellant Moinuddin Sheikh @ Bulu both under section 498A and under section 304B of the IPC, but, we modify the sentence of Moinuddin Sheikh under section 304B of the IPC to this extent that Moinuddin Sheikh shall suffer rigorous imprisonment for seven years and shall also pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for three months more for the offence under section 304B of the IPC. 36. Office is directed to send LCR along with copy of this judgment and order immediately to the learned Trial Court with a direction to issue modified jail warrant against Moinuddin Sheikh with a further direction that Moinuddin shall be entitled to the benefit of set off as provided in section 428 of the Cr. PC. 37. We find from record that both appellants Ainuddin Sheikh and Nasima Bibi were released on bail and they stand discharged from their respective bail bond with immediate effect. 38. Urgent xerox certified copy of this judgment and order be supplied expeditiously on making proper application and after complying with all legal formalities. I agree. Appeal allowed in part. `