JUDGMENT Anima Hazarika, J. 1. This appeal has been preferred by the Appellants viz. Md. Hasim Ali and Musst. Mahmuda Begum against the judgment and order dated 20.7.2005 passed by the learned Ad-hoc Additional Sessions Judge (FTC) Hojai, Nagaon in Sessions Case No. 257(N)/04 whereby and whereunder the Appellants have been convicted under Section 304(B) IPC and sentenced to undergo simple imprisonment for seven years. 2. The brief facts, which gave rise to prosecution against the Appellants are as follows: One Md. Sultanuddin Ahmed lodged an FIR (Ext. 4) with the Officer-in-Charge of Murajhar Police Station alleging inter alia therein that his son-in-law Hifjur Rahman has been subjecting his daughter Musst. Sufia Khatun to physical torture demanding dowry and finally on 5.3.2002, the accused person killed the informant's daughter by tying her in the neck and legs with gamocha. It has further been stated in the said FIR that deceased had a 1 1/2 years old male child. Explaining the delay in lodging the FIR, the informant stated that the villagers had lodged an FIR and so he did not lodge any FIR earlier. It is pertinent to mention herein that the informant had named the five accused persons in the FIR. They are as follows: 1) Hifjur Rahman, S/o. Md. Hasim Ali, 2) Abdul Hafiz, S/o. Md. Mona Mujan, 3) Hasim Ali, S/o. Hazi Kala Raja, 4) Mustt. Mahmuda Begum, W/o. Hasim AH, 5) Mujibur Rahman, S/o. Abdul Matin. Prior to lodging the FIR dated 19.3.2002, another FIR was lodged with the said police station by Md. Hussain Ahmed on the day of occurrence itself, i.e. on 5.3.2002 stating inter alia that Sufia Begum committed suicide by consuming poison and on the basis of the said FIR, the O/C of Murajhar PS registered UD Case No. 03/02 and it ended in final report submitted on 19.3.2002. 3. However, on receipt of the second FIR dated 19.3.2002, police registered it as Murajhar Rs. Case No. 34/02 under Section 304(B) IPC and investigated into the matter. After completion of the investigation, police submitted charge-sheet against the three accused persons namely, Hifjur Rahman, Hasim Ali and Mahmuda Begum under Section 304(B) IPC. 4. Since the offence under Section 304(B) IPC is triable by the Court of Sessions, the case was committed to the Court of Sessions by the concerned Magistrate. After completion of the investigation, police submitted charge-sheet against the three accused persons namely, Hifjur Rahman, Hasim Ali and Mahmuda Begum under Section 304(B) IPC. 4. Since the offence under Section 304(B) IPC is triable by the Court of Sessions, the case was committed to the Court of Sessions by the concerned Magistrate. The case was consequently renumbered as Sessions Case No. 257(N)/04 in the Court of Ad-hoc Addl. Sessions Judge, Fast Track Court, Hojai and charge was framed under Section 304(B) IPC against the accused Appellants. The charge so framed being read over and explained, the accused Appellants pleaded not guilty and claimed to be tried. Hence trial proceeded against them. 5. During trial, prosecution examined as many as six witnesses including the informant while defence examined two witnesses. The statements of the accused Appellants were recorded under Section313 Code of Criminal Procedure, wherein they have denied the allegation levelled against them. 6. Learned trial Court considering the evidence of P.W. 1 to 4 and disbelieving the evidence of D.W. 1 and D.W. 2 convicted and sentenced the accused Appellants as aforesaid. Hence, this appeal. 7. Now let us scan and scrutinize the evidence on record on the basis of which the learned trial Court passed the impugned judgment of conviction. 8. P.W. 1, Alia Khatoon is the mother of the deceased. She deposed inter alia that her daughter got married to Hifjur about 5 years back. But after 3-4 months of the marriage, her mother-in-law started torture upon her demanding cycle, radio and suit. Therefore, P.W. 1 kept her daughter at her house since she was not allowed to live at her in-law's house peacefully. After 1/1 1/2 months, one Hussain Ahmed came and took her to her in law's house with a promise to look after her. But after 3-4 months, the deceased again came back and told P.W. 1 that Hifjur, her son-in-law demanded a scooter. She expressed her inability to concede the demand. P.W. 1 kept her daughter for about 1 1/2 months. Thereafter, Hifjur's uncle took her back saying that he would take her responsibility. After 2/3 months, one day, at about 3 O'clock, P.W. 1 got an information over telephone that her daughter died. P.W. 1 further stated that while she visited the place of occurrence, she found her daughter covered with a bed sheet. Thereafter, Hifjur's uncle took her back saying that he would take her responsibility. After 2/3 months, one day, at about 3 O'clock, P.W. 1 got an information over telephone that her daughter died. P.W. 1 further stated that while she visited the place of occurrence, she found her daughter covered with a bed sheet. Her neck and legs were found tied with gamocha. She also noticed injury marks on the head and back of the deceased. During cross-examination, P.W. 1 deposed that when Hifjur's uncle had taken back the deceased they or any of the relatives did not visit her out of disgust. She further stated that just after five minutes of her daughter's death, they were informed about her death by Hifjur's family. On the day of occurrence, Hifjur had informed her over telephone that since he would go outside, she should take back her daughter. Hifjur further informed over telephone that deceased had quarreled with her parents-in-law and because of that P.W. 1 should take back her daughter. But she informed him that she has already been informed by one Aziz regarding her daughter's death. On hearing the same, Hifjur told her that he was not aware of his wife's death. She further deposed that her son-in-law is an illiterate man and is a carpenter. But her daughter had passed HSLC. She has specifically stated that at the time of marriage proposal, no demand for any dowry had been made. She also deposed that they have electric connection in their house but her son-in-law does not have the said provision in his house. The road communication too is not good. Her daughter was not able to adjust herself with the atmosphere in the village. Her daughter got her education in a renowned school of the town, therefore, at first she had no desire to get married in village. Other suggestions put to her had been denied. 9. P.W. 2, Altaf Ahmed @ Jamal, brother-in-law of the deceased, while supporting the deposition of P.W 1 about demanding dowry by the accused Appellant deposed that he visited the place of occurrence and found the neck and legs of the deceased were tied with a gamocha. P.W. 2 further deposed that he noticed a mark in the head of the deceased. Blood was oozing out of the deceased's nose. P.W. 2 further deposed that he noticed a mark in the head of the deceased. Blood was oozing out of the deceased's nose. During cross-examination, he deposed that his house and house of the deceased are close to each other. He further deposed that he was present at the time of arrangement of marriage of the deceased with accused Hifjur. There had been no claim from either side. Other suggestions put to him had been denied. 10. P.W. 3, Abul Kalam is brother-in-law of the deceased. He deposed that he saw blood in the nose and mouth and her neck and legs were tied with gamocha. During cross-examination, he deposed that three days prior to the occurrence, the deceased came to their house, took meals merrily and enjoyed with them. She visited his house on her own accord to enjoy the Id festival as well as to see his newly bom baby. She was accompanied by her father-in-law but on that day she did not say anything about any family dispute. Her father-in-law brought sweets and clothes for his new born baby. He further deposed that at the time of death, the mouth of the deceased should be closed by two hands and if not after his/her death it may open automatically. He also specifically Stated that though it is not a custom, some people close the mouth by cloth. But he does not know whether some people also close the legs of the deceased by tying it by means of cloth. 11. P.W. 4, Sultanuddin Ahmed is the informant in this case. He categorically stated about the dowry demand made by accused Hifjur. He also narrated as to how his deceased daughter was subjected to torture on demand of dowry. He further deposed that he found the neck and legs of the dead-body tied with gamocha. He noticed spots on the neck and back of the deceased and blood was oozing out of her nose. He further deposed that he lodged the FIR after 5-6 days since the villagers had assured him to settle the issue by means of compromise. During cross-examination, he deposed that at the beginning, he and his son had brought his daughter (deceased) at an interval of 2/3 months. On first occasion, the in-laws had sent his daughter on a vehicle under care of a small boy. During cross-examination, he deposed that at the beginning, he and his son had brought his daughter (deceased) at an interval of 2/3 months. On first occasion, the in-laws had sent his daughter on a vehicle under care of a small boy. One year after her marriage, they visited Hifjur's house to see their grand son and Hifjur gave him a lungi and a sari to his wife. But they were not satisfied with the gift as per custom. He should have shown respect to them in a better manner as per custom. After 13 days of the incident, he submitted a written FIR. which was written by an Advocate's clerk. He further deposed that the members of the public had told him that they would settle the issue by means of some transaction. But they had not come for that. Although 2/3 persons had come, the transaction could not be finalized. He further deposed that he did not know the proposal for what amount of money had been discussed amongst the mediators. But a proposal in regard to that had been given. He had authorized the mediators to fix the amount on his behalf. He specifically stated that accused Hifjur and his parents had never demanded any goods from him. The suggestion put to him regarding withdrawal of insurance amount, which was in his daughter's name, had been denied by saying that he had not misappropriated the money by withdrawing the same. He also deposed that he had not filed any case for the torture on his daughter. Other suggestions put to him had been denied. 12. P.W. 5 is the Judicial Magistrate, who recorded the statement of Mustt. Alia Khatun. Md. Abdul Kalam, Altaf and Sultanuddin Ahmed under Section 164 Code of Criminal Procedure vide Ext. 1, 2, 3 and 5. During cross-examination he deposed that P.W. 4 Sultanuddin did not state before him that his son-in-law had demanded suit. 13. P.W. 6, Sri Debaranjan Sarma was posted as Officer-in-Charge of Murajhar Police Station. He deposed that on 5.3.02, at about 8.30 PM, the complainant Hussain Ahmed of Karioni village lodged an FIR stating inter alia that Sufia Begum, his neighbour committed suicide by consuming poison and accordingly, he registered UD Case No. 03/ 02 and entrusted ASI, Sri Pranab Kr. Das with the investigation. He deposed that on 5.3.02, at about 8.30 PM, the complainant Hussain Ahmed of Karioni village lodged an FIR stating inter alia that Sufia Begum, his neighbour committed suicide by consuming poison and accordingly, he registered UD Case No. 03/ 02 and entrusted ASI, Sri Pranab Kr. Das with the investigation. After completion of the investigation, he submitted final report on 19.3.02 and on the same date, the complainant Sultanuddin (P.W. 4) lodged an FIR vide Ext. 4. P.W. 6 investigated into the matter. During investigation he examined the witnesses, recorded the statements and from the statements of the witnesses he came to know that the victim was murdered for dowry. Her viscera were sent to Forensic Science Laboratory, Guwahati for examination. From the FSL report, it appears that there was negative test report of poisoning. The FSL report is Ext. 6. During cross-examination, he deposed that none of the witnesses stated before him that they saw the deceased being killed by the accused persons. They only said that they suspected that Sofia was killed by the accused persons. When confronting with the statements made under Section 161 Code of Criminal Procedure, he deposed that P.W. 1, mother of the victim did not state before him that the husband of her daughter demanded suit and radio after 3-4 months of her marriage. He further deposed that P.W. 2 did not state before him that they entered into the room of the deceased by breaking open the lock of the door. He further deposed that P.W. 4, i.e. the father of the deceased stated before him that when he reached the place of occurrence, he met accused Hifjur, his father and mother and other villagers at the place of occurrence. P.W. 4 also did not state before him that deceased Sufia informed him that she was assaulted by her husband for dowry nor she stated that he should gift a suit piece as demanded by Hifjur. P.W. 4 did not state that he saw any mark in the neck and back of the deceased. He only stated that he suspected that deceased was killed by her husband and her in-laws. P.W. 3 stated before P.W. 6 that he did not know about the dowry demand from his father-in-law. The delay in filing the FIR was not explained by the complainant. No statement had been made in this regard. He only stated that he suspected that deceased was killed by her husband and her in-laws. P.W. 3 stated before P.W. 6 that he did not know about the dowry demand from his father-in-law. The delay in filing the FIR was not explained by the complainant. No statement had been made in this regard. 14.The defence examined Rasida Begum and Anowara Begum as D.W. 1 and D.W. 2 respectively. D.W. 1 is grandmother of accused Hifjur. She deposed that 4-5 days prior to the occurrence, she had paid a Courtesy visit to the house of the accused. At 12.30 PM on the day of occurrence, at the time of Namaz, deceased Sufia Begum had brought water for her, whereupon she performed 'Uzu' after taking bath and thereafter, both of them went inside their house in order to perform 'Namaz'. D.W. 1 performed 'Namaz' in one room and Sufia performed in another room. There was no door in between the rooms. After 10/15 minutes, when her namaz was over, she heard sound at Sufia's room. She called Sufia and when she did not get any reply, she went there and found Sufia struggling at the place of her 'Namaz' prayer. At that time, Mahmuda and her husband, i.e. parents of Hifjur, (accused Appellants) were fishing in the pond, which was at a distance of 100 metres from the dwelling house. D.W. 1 asked them to come sharp. They came in a run and raised out cries. Hearing their cries, neighbours gathered there. Oil and water were served to the deceased. Garlic juice was applied in her head and legs thinking that she might suffer from high blood pressure. Hasim Ali, father-in-law of Sufia went to call in a doctor. Hearing hue and cry, one of Sufia's aunt (mother's sister) came from a neighbouring house. She also served oil and water to Sufia. After Sufia's death, her legs and mouth remained open, so she kept her legs tied together with a gamocha and also tied her mouth with a gamocha in order to keep the mouth closed. That should be done as per their religion. Since the room where she died was a small one, she was brought to a bigger room and laid down there covering with a clean sheet of cloth. During cross-examination, D.W. 1 has stated that Mahmuda is her eldest daughter and accused Hifjur is Mahmuda's son. That should be done as per their religion. Since the room where she died was a small one, she was brought to a bigger room and laid down there covering with a clean sheet of cloth. During cross-examination, D.W. 1 has stated that Mahmuda is her eldest daughter and accused Hifjur is Mahmuda's son. She further stated that she had not seen sadness in Sufia's face. As per their religion legs and mouth of a dead person should not remain open and so she tied the legs and mouth of Sufia (deceased) with a gamocha. She specifically stated that she had not seen any injury on the person of the deceased. 15. D.W. 2 is the related aunt of the deceased. She is aged about 60 years. She deposed that deceased was her niece. On the day of occurrence, having heard a commotion at Hifjur's house, she went there in a run and found Sofia struggling on the mat where she was offering 'Namaz'. She saw her mother-in-law massaging her head and legs with oil, garlic and water to control her pressure. Sufia's father-in-law went to call in a doctor. But he did not find the doctor and in the meantime she died. Since the eyes, legs and mouth of the deceased remained open, they tied them with a gamocha. They took the dead body to a big room and laid the same towards north and south covering with a clean sheet of cloth. During cross-examination, she deposed that Sufia's parents came at 1 PM on the day of occurrence. They found her legs and mouth tied with gamocha but they did not ask anything about that. She stated that there had been no disturbance after Sufia's marriage and no quarrel had taken place between Sufia and Iliflur. She had not seen any injury on her body. She further stated that no demand for anything had been made in her marriage. Suggestion put to her to the effect that she had not helped in tying Sufia's hands, legs and mouth, has been denied by her. 16. During examination of the accused persons under Section 313 Code of Criminal Procedure, both the accused persons specifically stated that their religion provides that if the legs and mouth of a dead person remained open, the same should be tied. 16. During examination of the accused persons under Section 313 Code of Criminal Procedure, both the accused persons specifically stated that their religion provides that if the legs and mouth of a dead person remained open, the same should be tied. They further stated that they never demanded any dowry from her nor they had tortured her. 17. On the basis of the depositions made by die witnesses, learned trial Court convicted the accused Appellants under Section 304(B) IPC and sentenced them as aforesaid. Their simple case is that they had been falsely implicated without any fault on their part. 18. I have heard Mr. R.P. Sarma, learned Senior Counsel assisted by Ms. R. Devi, learned Counsel appearing for the Appellants. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 19. Learned Senior Counsel strenuously urged that while convicting the accused Appellants under Section 304(B) IPC, learned Court below did not take into consideration the discrepancies and contradictions in the evidence of the prosecution witnesses, more so, the evidence made by P.W. 1 and 4, i.e. the mother and father of the deceased. In view of the contradictory statements made by them, they are not at all reliable witnesses. P.W. 4, father of the deceased lodged the FIR of his daughter's death after 14 days of the day of occurrence. While he himself deposed that within 5 minutes of her daughter's death he got the news. His explanation for undue delay is not at all acceptable. P.W. 4 has specifically stated in his cross-examination that he wanted money from the Appellants for settlement of the matter while the Appellants refused to pay him any money P.W. 4 lodged the FIR, meaning thereby, P.W. 4 lodged the FIR implicating the Appellants as they refused to pay money and created a false and fabricated story of her daughter's dowry death. Learned trial Court itself admitted that P.W. 4 is a greedy man. Under such circumstances, it is apparent that P.W. 4 and his family members wanted some cash on natural death of their daughter by implicating the accused persons falsely under Section 304(B) IPC but the learned trial Court without considering all these material facts passed the impugned judgment of conviction. Mr. Sarma further submitted that the learned trial Court failed to give due weightage to the evidence of D.W. 1 and D.W. 2 both of whom are old ladies. Mr. Sarma further submitted that the learned trial Court failed to give due weightage to the evidence of D.W. 1 and D.W. 2 both of whom are old ladies. D.W. 1 is the mother of the accused No. 2 and D.W. 2, who is aged about 60 years, is the aunt of the deceased. Both of them had convincingly described the cause of tying the legs and mouth of the deceased with the gamocha which the learned Court below has erroneously presumed to be the cause of death of the deceased. But the learned trial Court below has failed to appreciate the evidence of D.W. 1 and D.W. 2. More so, FSL report shows negative lest of poison and if the deceased had been killed as alleged, it would have come in the examination of the doctor, who held the post mortem examination but the doctor has not been examined in the instant case. From the evidence of the witnesses it is revealed that the story of harassing by the accused Appellant was an afterthought, inasmuch as, prosecution witnesses had not said anything about the harassment for dowry while they made statements under Section 161 Code of Criminal Procedure and failure of the trial Court to consider such a contradiction in the version of the prosecution has made the conviction unwanted and illegal one. 20. Per contra, Mr. D. Das, learned Additional PP submitted that the learned Court below having considered the evidence of the prosecution witnesses passed the judgment of conviction and hence, this Court may not interfere with the same. 21. Now the questions to be answered are as to whether the accused Appellants were erroneously convicted under Section 304(B) IPC or whether the case against them under the aforesaid section has been proved beyond all reasonable doubt. 22. To convict an accused under Section 304(B) IPC, the following ingredients are to be proved by the prosecution- i) Death of a woman is caused either by any bums or bodily injury or otherwise than under normal circumstances. ii) It should be within seven years of her marriage. iii) It should also be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband. iv) Such harassment or cruelty should pertain to the demand for dowry. ii) It should be within seven years of her marriage. iii) It should also be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband. iv) Such harassment or cruelty should pertain to the demand for dowry. From the ingredients of Section 304(B) IPC, as mentioned hereinabove, it would reveal that, to convict an accused under Section 304(B) IPC, the prosecution must prove that soon before her death the victim was subjected to cruelty or harassment. Prosecution to mle out possibility of natural or accidental death has to bring it within the purview of "death occurring otherwise than in normal circumstances." In the instant case, evidence adduced against the Appellants relating to alleged demand of dowry are not cogent. No credible evidence has been brought on in record to substantiate the accusations. 23. To prove the ingredients of Section 304(B) IPC, burden lies on the prosecution. In the present case at hand, from the statements of the prosecution witnesses it is found that there is no direct or substantial evidence regarding bodily injury or dowry harassment of the deceased, inasmuch as regarding injury mark also no cogent, reliable evidence is available on the materials on record to prove the fact that the deceased had died due to injury caused by the accused Appellants. The above points have not been considered by the learned trial Court. 24. The learned trial Court also has not taken into consideration the evidence adduced by D.W. 1 and D.W. 2, two old ladies, who had categorically stated that as per their religion, they tied the hands, legs and mouth of the deceased with gamocha. This categorical statement has not been considered by the trial Court without giving any cogent reason, more so. D.W. 2 is the aunt of the deceased. 25. Taking all these facts into consideration, this Court is of the view that prosecution has failed to make out a case under Section 304(B) IPC against the accused Appellants. The appeal is thus liable to be allowed which I hereby do. The appeal is accordingly allowed. The judgment and order of conviction passed by the learned Court below is set aside. It is submitted that the Appellants are in jail. They be set at liberty forthwith if not wanted in any other case. 26. Send down the lower Court record.