JUDGMENT:- (1). BOTH these appeals are directed against a judgment dated 10th February, 2006 passed by Shri S. Majumdar, Additional Sessions Judge, fast Track Court, Chandannagar, Hooghly in Sessions Trial Case No. 1 of 2005 arising out of Sessions Case No. 1 of 2005 convicting the accused Sital kr. Dey and his parents under Sections 498a/306/304b (2)/34 of the Indian penal Code and an order also passed on 13th February, 2006 sentencing the accused Sital Kr. Dey, his father Ajit Kr. Dey and his mother Smt. Jayanti dey to suffer simple imprisonment for a term of 10 years for the offence punishable under Section 304b (2) of the Indian Penal Code and to suffer rigorous imprisonment for 5 years as also to pay a fine of Rs. 1,000/-, in default to suffer further simple imprisonment for three months each for the offence punishable under Section 306 of the Indian Penal Code. Both the sentences were directed to run concurrently. No separate punishment was inflicted under Section 498a of the Indian Penal Code. (2). THE facts and circumstances of this case briefly stated are as follows:-On 3rd March, 1997 Pranati Malik was given in marriage to the accused Sital Kr. Dey according to the Hindu rites and customs. On 14th july, 2002 she committed suicide by consuming Endo-Sulfane, a pesticide used for agriculture. At 16.10 hrs. on 14th July, 2002 Baidyanath Malik brother of the deceased Pranati, lodged an FIR on the basis of which a case under Sections 498a/306 was started. Baidyanath-(P.W. 1) in his statement under Section 154 Cr. P. C. stated that at the time of marriage a sum of Rs. 80,000/-in cash, gold ornaments weighing 10 bhoris and other articles were given as per demand of the in-laws of the deceased. The in-laws were not allegedly satisfied with the dowry given at the time of marriage. They subjected his sister to mental torture. The mother-in-law of the deceased is also alleged to have resorted to physically assaulting the deceased which led her to commit suicide by taking poison. (3). INQUEST was held on 15th July, 2002 at 2.30 p.m. by Shri Panchanan das, a W.B. C.S. Executive Officer (P.W. 13). The inquest report has been marked Exhibit-13. The inquest report contains a statement that apparently no sign of striking upon the body of the deceased was found. Mr. (3). INQUEST was held on 15th July, 2002 at 2.30 p.m. by Shri Panchanan das, a W.B. C.S. Executive Officer (P.W. 13). The inquest report has been marked Exhibit-13. The inquest report contains a statement that apparently no sign of striking upon the body of the deceased was found. Mr. Das (P.W. 13) in his deposition also admitted that no mark of injury on the body of the deceased was found during inquest. Dr. Pradip Kr. Mondal (P.W. 10) conducted the postmortem examination at 3.30 p.m. on 15th July, 2002. He had initially reserved his opinion. The viscera of the deceased was sent for chemical test. The FSL report has been tendered in evidence and marked Exhibit-12. On the basis of the viscera report it was deposed by the P.W. 10 that Endo-Sulfane was detected which is deadly and can kill a person. In his cross-examination he admitted that if a person is assaulted for half an hour before his death external injuries are bound to be there on the body, The post mortem report. (Exhibit-11) goes to show that there was no external injury found on the person of the deceased. (4). BESIDES Baidyanath Malik brother of the deceased, Sri Kashinath malik (P.W. 8) and Sri Biswanath Malik (P.W. 12) were also examined. P.W. 1 in his evidence deposed that the accused persons used to torture his sister in order to coerce her to bring dowry from her parental house. He further deposed that about 15 days prior to her committing suicide she had come to their house and disclosed the demand of her in-laws for money and the torture inflicted upon her. He further deposed that the demand was met partially but not fully. (5). P.W. 8 Kashinath Malik, another brother of the deceased, who had scribed the written complaint marked Exhibit-1 did not in his Examination-in-Chief depose anything except that he had written out the complaint as per instruction of his elder brother Baidyanath Malik. (6). P.W. 12 Biswanath Malik, another brother of the deceased, deposed in his Examination-in-Chief that whenever his deceased sister came to their house she used to complain about dissatisfaction of her in-laws with the amount of dowry received and ill-behaviour meted out to her. (6). P.W. 12 Biswanath Malik, another brother of the deceased, deposed in his Examination-in-Chief that whenever his deceased sister came to their house she used to complain about dissatisfaction of her in-laws with the amount of dowry received and ill-behaviour meted out to her. He further deposed that about 10 to 15 days prior to her death she had come to their house and told that she would have to die if the demands of her in-laws were not met. (7). MR. Basu, learned Advocate appearing in support of the appeal on behalf of the convicts submitted that there is a marked improvement in the case of the prosecution which is illustrated by the evidence given in Court compared to the case made out in the written complaint. In the written complaint there are allegations about mental torture against the accused persons. Physical torture has been attributed only to the mother-in-law. There is no indication in the written complaint that after the marriage any fresh demand for any dowry was made. He submitted that in order to bring the case within the four corners of Section 304b, the P. Ws. 1 and 12 deliberately resorted to making a false case from the box as regards the demand or fresh demand of money. Further falsehood, according to him, was resorted to by bringing in a story that 15 days prior to the date of suicide the deceased had told her brothers about the demand of money and that she would have to die if the demand was not met. He drew our attention to the evidence of the I. O. (P.W. 14) who in his cross-examination admitted that Biswanath Malik did not tell him that his deceased sister had told him that unless the demand of the accused persons was met she would have to die or commit suicide. As a matter of fact Biswanath did not even tell the I.O. that the deceased had come to their house 10 days prior to her death. Mr. Basu therefore contended that the evidence of the P. Ws. 1 and 12 on the face of it is a piece of concoction and no reliance can be placed thereon. As regards the P.W. 8 another brother of the deceased, he submitted that the P.W. 8 did not utter a single word as regards any alleged torture or alleged demand of money in his Examination-in-chief. 1 and 12 on the face of it is a piece of concoction and no reliance can be placed thereon. As regards the P.W. 8 another brother of the deceased, he submitted that the P.W. 8 did not utter a single word as regards any alleged torture or alleged demand of money in his Examination-in-chief. He deposed to have scribed the written complaint as per instruction of his elder brother and he signed there. Mr. Basu submitted that the evidence of the three brothers of the deceased, who are supposed to have been acquainted fully with the facts and circumstances of this case, does not go to establish that there was any demand for money made ever after the marriage which took place 5 years prior to the date of incident. He submitted that the absence of any female members of the family of the P.W.S. 1, 8 and 12 from the witness box is also a telling circumstances. Had there been any case of torture for an alleged demand of dowry or otherwise the female members of the parents family would be the first batch of persons to know about the same because a woman is expected to confide about her grievances to another woman. (8). BESIDES the brothers of the deceased, a brother of the accused sital was also examined. Asim (P.W. 5) deposed that the deceased was all along tortured and assaulted by the accused persons for realisation of further money. He further deposed that on 14th July, 2002 all the accused persons put her into a room and assaulted her for half an hour. Before she was taken into the room she was slapped. He deposed that after the accused persons came out of the room Pranati consumed poison. (9). MR. Basu submitted that it is not even the case of the P.W. 1 in his written complaint that the accused persons at all physically tortured the victim and far less from the very beginning of her marital life. As a matter of fact physical assault has been attributed, in the written complaint, only to the mother-in-law. The Executive Officer who conducted the inquest and the doctor who conducted the post mortem examination did not find any mark of injury on the person of the deceased. As a matter of fact physical assault has been attributed, in the written complaint, only to the mother-in-law. The Executive Officer who conducted the inquest and the doctor who conducted the post mortem examination did not find any mark of injury on the person of the deceased. The doctor in his evidence deposed that if a person is assaulted for half an hour marks of injury are bound to be there on his/her person. He submitted that the evidence of the P.W. 5 becomes further suspicious for:- (a) He admitted in his cross-examination that he neither called the local people nor did he shout when the accused persons resorted to violence upon the deceased, (b) According to the evidence of the P.W. 2, the P.W. 5 had separated from his father, (c) P.W. 5 had married contrary to the wishes of his parents and therefore he had a personal axe to grind against them and (d) The learned trial judge has recorded the following deamnour of the P.W. 5. "the witness is found restless and uses to remain silent for a long period before answer". (10). MR. Basu submitted that there are inherent weaknesses in his evidence, discussed above, and therefore no reliance can be placed on the evidence of the said P.W. 5. (11). P.W. 2, a neighbour, deposed that on 13th July, 2002 the deceased had told him and his wife and also his family members that the accused persons physically tortured her and that she was kept in starvation for last three days, P.W. 14, the I.O. in his cross-examination admitted that the P.W. 2 did not in his examination under Section 161 tell him that the accused persons tortured the deceased for realising dowry nor was he told that the deceased was kept in starvation for last three days. (12). P.W. 3 another neighbour, deposed that the deceased used to tell him that the accused persons physically tortured her in order to compel her to bring further money from her fathers house. She further had complained that she was often kept on starvation. His wife Rekha Bar was the elected member of the Gram Panchayat of that locality. He admitted in his cross-examination that the deceased had intimacy with Rekha Bar. Rekha Bar has not been examined. Mr. She further had complained that she was often kept on starvation. His wife Rekha Bar was the elected member of the Gram Panchayat of that locality. He admitted in his cross-examination that the deceased had intimacy with Rekha Bar. Rekha Bar has not been examined. Mr. Basu submitted that, regard being had to the natural human conduct, the deceased was expected to confide to his wife Rekha bar who was also holding a position of authority, rather than confiding to her husband, the P.W. 3 (13). P.W. 4, yet another neighbour, deposed that a suicidal note was recovered from the wearing apparels of the deceased which has been marked exhibit-2. The suicidal note has not been taken into consideration by the learned Trial Judge because the officer who seized the alleged suicidal note was not examined nor was there any dependable evidence as to wherefrom was the suicidal note recovered. P.W. 14 the I.O. in his evidence admitted that he did not seize anything on the date of incident from the place of occurrence. (14). P.W. 9 deposed that the accused persons physically tortured the deceased in order to realise further dowry. The deceased, according to him, was also starved. He however has admitted in his cross-examination that he did not tell any of these things to the police. As a matter of fact this witness was not examined under Section 161 Cr. P.C. (15). THERE are several statements made under Section 164 Cr. P. C. by the witnesses examined in Court. The earliest statement recorded under section 164 is that of the P. W. 5 which appears to have been recorded on 16th September, 2002. All other statements under Section 164 Cr. P. C. were recorded in November 2002. Mr. Basu submitted that these statements under section 164 are of no assistance in deciding the case and they cannot be looked into because they were made belatedly in order to make out a case against the accused persons. (16). MR. Salam, learned Advocate appearing for the State in Criminal appeal No. 137 of 2006, submitted that the Court has to assess the evidence of the P. Ws. 1, 2, 3, 4, 5 and 9 to arrive at its finding as regards the guilt of the accused persons. (17). MR. (16). MR. Salam, learned Advocate appearing for the State in Criminal appeal No. 137 of 2006, submitted that the Court has to assess the evidence of the P. Ws. 1, 2, 3, 4, 5 and 9 to arrive at its finding as regards the guilt of the accused persons. (17). MR. Tirthankar Ghosh, learned Advocate appearing in support of the Government Appeal No. 13 of 2007 supported the conviction but challenged the quantum of punishment. According to him when the learned Trial Judge found the accused persons guilty under Section 304b there was no reason why they should have been sentenced to suffer only simple imprisonment of 10 years. He also challenged the punishment inflicted under Section 306 of the Indian Penal Code. According to him the learned Trial Judge was extremely lenient in awarding 5 years rigorous imprisonment for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code. According to him the punishment inflicted is not commensurate with the guilt of the accused persons and they deserve a stricter punishment. He therefore invited this Court to enhance the quantum of punishment. (18). WE have considered the submissions made by the learned advocates. We also have gone through the evidence. We are inclined to agree with Mr. Basu that the ingredients of Section 304b are absent in the written complaint filed on the date of the incident. The evidence of the brothers of the deceased namely P. Ws. 1, 8 and 12 disclosed a clear attempt to bring the case within four corners of Section 304b of the Indian penal Code. The infirmities in their evidence pointed out by Mr. Basu are real and cannot be lightly brushed aside. Similarly, the evidence of the neighbours does not inspire any confidence. We should not however be understood to have been of the opinion that there was no torture. What we mean is that there is no dependable evidence to show that the deceased was subjected to cruelty or harassment by the accused persons in connection with any demand for dowry. We are in the circumstances of the opinion that conviction of the accused under Section 304b read with Section 34 of the Indian Penal Code cannot be sustained. (19). WE are firmly of the view that the conviction of the accused persons under Sections 306/498a/34 of the Indian Penal Code is well founded. We are in the circumstances of the opinion that conviction of the accused under Section 304b read with Section 34 of the Indian Penal Code cannot be sustained. (19). WE are firmly of the view that the conviction of the accused persons under Sections 306/498a/34 of the Indian Penal Code is well founded. Some of the reasons for entertaining in this view are as follows:-(a) All the accused persons in their examination under Section 313 stated that the deceased suffered from mental depression because she did not conceive during a long period of 5 years of her marital life. The accused Sital in answer to question No. 28 put to him in his examination under Section 313 Cr. P. C. stated as follows: "q. 28. Do you want to say anything more? a. 28.1 had cordial relation with my wife. We had no issue. So she had grudge in her mind. The people folk of our para made fun in this regard. She told that her life was valueless for non-issue of any child. " the accused Jayanti Dey in her exmination under Section 313 cr. P. C. in answer to question No. 28 put to her stated as follows:-Q. 28. Do you want to say anything more? a. 28. We had good relation with my daughter in law i.e., my husband and with my son. She had no issue so she was mentally depressed. Her depression became deeper with the talks of the para people. "the pangs inflicted upon the deceased have conveniently been passed on by the mother-in-law and the husband to the people of the locality. If the members of the family did not participate in inflicting pangs upon the deceased, for her alleged infertility, the people of the locality would hardly have dared or bothered to do so. We are inclined to hold on the basis of the evidence already discussed that the accused persons tortured the deceased and the reason for such torture was that she had not been able to conceive. Naturally, they were or may have been interested in getting rid of this barren housewife. They had a motive behind torturing her:-(b) There is no evidence before us to show that any attempt whatsoever was made to save the life of the deceased after she was detected to have consumed poison. Realising his difficulty Mr. Naturally, they were or may have been interested in getting rid of this barren housewife. They had a motive behind torturing her:-(b) There is no evidence before us to show that any attempt whatsoever was made to save the life of the deceased after she was detected to have consumed poison. Realising his difficulty Mr. Basu submitted that one of the witnesses in his statement under Section 164 Cr. P. C. has told that the accused Sital took his wife on a trolley for the purpose of making medical assistance available to her. We have refrained from looking into the statements made under Section 164 because Mr. Basu submitted that they were belatedly recorded and do not inspire any confidence. We, therefore, gave an option to mr. Basu to make his choice as to whether the statements under section 164 should be taken into consideration by this Court in assessing the evidence in support of the charges against the accused persons. He submitted that the statements under Section 164 should not be taken into consideration. Therefore, there is nothing before us to show that there was any attempt to save the life of the deceased. (c) There is nothing before us to show that any attempt was made by the accused persons to consult any doctor or to take the benefit of the medical science for the purpose of removal of the alleged infertility of the deceased. (d) P. W. 12 Biswanath Malik was suggested in his cross-examination that about three months prior to her death the deceased had contacted Mankundu Mental Hospital and she also had undergone psychiatric treatment which the P. W. 12 denied. No evidence in this regard was brought forth on behalf of the defence. (e) The aforesaid circumstances and the evidence read with section 113a of the Evidence Act clearly establish the charges under sections 306/498a/34 of I.P.C. (20). WE, therefore, uphold the conviction under Sections 306/498a/34 of the I.P.C. (21). MR. Ghosh, learned Advocate appearing in support of the Government appeal No. 13 of 2007 did not bring to our notice any adequate fact which may call for any enhancement of the punishment. He did not tell us as to why the punishment inflicted by the learned Trial Court for the offence punishable under Section 306 is inadequate or why is the same not proportionate to the guilt of the accused persons. He did not tell us as to why the punishment inflicted by the learned Trial Court for the offence punishable under Section 306 is inadequate or why is the same not proportionate to the guilt of the accused persons. After all the object of punishment is correction, Punishment is also inflicted in order to deter the like-minded people who may be contemplating to commit a crime. We do not think that any of these objects would remain unfulfilled if we do not interfere with the quantum of punishment fixed by the learned Trial Court. We are in the circumstances not inclined to interfere with the punishment provided for by the learned Trial Court for the offence punishable under Section 306 I.P.C. In the result the Government appeal is dismissed. The appeal filed by the convicts is partly allowed. Both the conviction and the sentence under Section 304b (2) read with Section 34 of the I.P.C. are set aside. (22). THE conviction and the sentence under Sections 306/34 of the I.P.C. are upheld. The conviction under Section 498a read with Section 34 of I.P.C. is also upheld. We do not intend to pass separate sentence for the offence punishable under Section 498a read with Section 34 of I.P.C. as we have already affirmed the order of conviction and sentence awarded by the learned Trial Judge for the major offence punishable under Section 306 read with Section 34 of I.P.C. The appellants are directed to forthwith surrender before the learned Trial Court to serve out the rest of the sentences under section 306 read with Section 34 of I.P.C. Bail granted to them is hereby cancelled. Let a revised jail warrant be issued. (23). LOWER Court Records with a copy of this judgment be transmitted forthwith to the learned Trial Court for information and necessary action. Urgent xerox certified copy of this judgment, if applied for be supplied to the learned Counsel for the parties on compliance of all formalities.