JUDGMENT Girish Chandra Gupta, J. 1. THIS appeal is directed against a judgment and order dated 24th March, 1998 passed by the learned Additional Sessions Judge, 4th Court, Nadia at Krishnagar, in Sessions Trial No. V of May 1997 corresponding to Sessions Case No. 2(12) of 1993 by which the learned Trial Court convicted six of the accused persons of offences under section 498A and 304B of the Indian Penal Code. 2. BY an order dated 25th March, 1998 the learned Trial Court sentenced all the convicts to suffer simple imprisonment for three years as also to pay a fine of Rs. 2,000/- each, in default of payment of fine to undergo a further simple imprisonment for three months each for the offence punishable under section 498A IPC. The convicts were also sentenced to suffer simple imprisonment of ten years each for the offence punishable under section 304B of the Indian Penal Code. The facts and circumstances of the case briefly stated are as follows: On 15th February, 1990 Mukti was married to the accused Shyamal Acharya according to Hindu Rites. Dowry was given. On 10th January, 1992 the complainant party received a news at about 11.30 P.M. from one Ramen Haider that the said Mukti was seriously ill. They rushed to the matrimonial home of Mukti and found her dead lying in a Cot. An FIR was lodged alleging that the accused persons after assaulting the victim had hanged her. In the alternative, it was alleged that she was compelled to commit suicide due to inhuman torture meted out to her coupled with demand for more money. It was also alleged that at the time of marriage they had spent Rs. 40,000/-besides gold ornaments weighing more than 50 gms. All the six accused persons were charge sheeted by the police after investigation and tried by the learned Trial Court. On behalf of the prosecution, thirteen witnesses were examined. Out of them, P.W.6 and P.W.7 were mere seizure witnesses. P.W. 11 was the constable, who had escorted the dead body. P.W. 12 was the investigating officer. P.W. 13 was the Autopsy Surgeon. P.W.2, Mukunda Lal Banerjee, P.W.3, Shila Chatterjee, P.W.4, Biplab Banerjee were some of the neighbours of the accused. Each one of them turned hostile. Tufan Biswas, P.W.8 a neighbour of the defacto complainant also turned hostile. P.W. 10, scribed the written complaint. P.W. 12 was the investigating officer. P.W. 13 was the Autopsy Surgeon. P.W.2, Mukunda Lal Banerjee, P.W.3, Shila Chatterjee, P.W.4, Biplab Banerjee were some of the neighbours of the accused. Each one of them turned hostile. Tufan Biswas, P.W.8 a neighbour of the defacto complainant also turned hostile. P.W. 10, scribed the written complaint. The prosecution was thus left with three witnesses namely P.W.I, Kalyani Chakraborty defacto complainant, P.W.5 Bela Mazumder and P.W.9, Kumudini Roy. P.W.5 incidentally is the sister-in-law (Boudi) of the P.W. 10. 3. MR. Dastoor, learned advocate, appearing in support of this appeal drew our attention to the evidence of the P.W.5 adduced during examination-in-chief wherein she deposed as follows: "I also knew her sister Mukti. She used to read in my school. Mukti was married with accused Shyamal Acharya of Rail Bazar. After marriage Mukti went to her husband's house. Thereafter, she used to come to me frequently and reported me that all the in-laws of her husband's house were torturing her and were demanding money from her. On 4-1 -921 met her in the house of Kalyani Chakraborty where her husband was also present. P.W. 1 Kalyani demanded loan of Rs. 10,000/- from me in order to give Mukti and her husband for their business but I expressed my inability. Mukti claimed money from P.W.I Kalyani. On 5-1-92 I again met Mukti and she reported me that her death was inevitable for the torture of her -in-laws namely Bimal Acharya, Pishi and father-in-law. I wanted to know from her if her husband did not make any protest but she told that he knew but did nothing. She also reported that accused Jayeeta who was going to their house frequently used to torture on her for money. All the accused persons are present on dock (identified). On the date of incident I went to her husband's house at night. I went to P.S. first and thereafter I went to her husband's house with police. Reaching there I found that Mukti was lying dead on a Cot. The witness voluntarily said that on my query accused reported me that she committed suicide by hanging with the help of handkerchief." 4. MR. I went to P.S. first and thereafter I went to her husband's house with police. Reaching there I found that Mukti was lying dead on a Cot. The witness voluntarily said that on my query accused reported me that she committed suicide by hanging with the help of handkerchief." 4. MR. Dastoor, wanted us to compare the deposition of the P.W.5 adduced in chief with what was deposed by the Investigating Officer during his cross-examination on behalf of the defence which reads as follows: "I examined Smt. Bela Majumder on 18-3-92. She did not state before me that Mukti used to come to her frequently and that her in-laws used to torture on her and were demanding more money. She also did not tell before me that on 5-1-92 Mukti reported her that her death was inevitable for the torture of the accused persons and she also did not tell before me that Jayeeta used to come frequently to their house who used to torture her for money." It was contended that if the improvement or the exaggeration, resorted to in Court, is eliminated it would appear that she did not have any personal knowledge about the matter at all which would also be established from the fact that she was examined by the police on 18th March, 1992 whereas the incident took place on 10th January 1992. 5. MR. Dastoor, contended that she has really perjured herself in order to prop up a false case. 6. MR. Dastoor then drew our attention to the evidence of the P.W.9 Kumudini who during her examination-in-chief deposed as follows: "After marriage Mukti went to her husband's house. During marriage Rs. 7,000/- in cash, some gold ornaments and other furniture were given as dowry. Mukti used to come in the house of Kalyani. Mukti lived happily in her husband's house. Thereafter she reported me that her husband, Bimal, Haranath, accused Jayita (idfd) created pressure upon her to bring more money from Kalyani to extend their cloth business. When Kalyani and Mukti failed to satisfy their claim she was subjected to cruelty by her father-in-law, brother-in-law, Pisi. Pisi of accused Shyamal is present on dock (idfd.). The witness voluntarily says that her husband did not create pressure upon her. When Kalyani and Mukti failed to satisfy their claim she was subjected to cruelty by her father-in-law, brother-in-law, Pisi. Pisi of accused Shyamal is present on dock (idfd.). The witness voluntarily says that her husband did not create pressure upon her. Thereafter she died in the house of her husband." He also drew our attention to her deposition during her cross-examination which reads as follows: "I.O. examined me. I stated before I.O. that father-in-law, brother-in-law and sister-in-law of Mukti created pressure on her for money for purchase of goods of their cloth business. I cannot say particularly for how many times I met with Mukti when she used to come in the house of Kalyani. I also cannot remember to say when I met her for the last time. I am now working with Kalyani at Anganwari. I was present at the time of talk of marriage between Mukti and Shyamal. Before marriage paper was prepared. I did not sign there. I cannot say how many persons came at Kalyani's house as 'Borjatri' and how many persons went in the house of accused Shyamal at the time of Boubhat as 'Kanejatri'. I cannot say the particulars of articles and how may Bhories of gold were given in her marriage. I did not hear that Mukti was working after her marriage. She did not miscarriage. It is not a fact that I am a tutor witness." 7. MR. Dastoor, contended that it would at once appear that the P.W.9 had no personal knowledge whatsoever as regards the life of the deceased Mukti at her matrimonial home. Everyone except P.W.9 admitted that the victim had unfortunately miscarried twice or thrice. But the P.W.9 denied that Mukti ever had any miscarriage. This goes to show according to him that she had no personal knowledge about the matter. She admittedly was a co-worker with the P.W. 1 which she also admitted during her cross-examination. She came to give evidence just to oblige the defacto complainant, the P.W. 1. During her examination in chief she deposed that the accused persons including the husband were torturing her. Soon thereafter she voluntarily admitted during the examination-in-Chief itself that the husband did not torture her. 8. MR. Dastoor, then took us through the evidence of the P.W. 12, which largely contradicted the evidence of the P.W.9, during his cross-examination and deposed as follows: "I examined Kumudini Roy. Soon thereafter she voluntarily admitted during the examination-in-Chief itself that the husband did not torture her. 8. MR. Dastoor, then took us through the evidence of the P.W. 12, which largely contradicted the evidence of the P.W.9, during his cross-examination and deposed as follows: "I examined Kumudini Roy. She did not state before me that Mukti reported me that father-in-laws, brother-in-laws and sister-in-law of Mukti create pressure on her for demanding money for their cloth business." Admittedly, the learned Trial Court in finding the accused persons guilty relied upon the evidence of P.W. 1, 5 and 9. 9. MR. Dastoor, contended that the evidence of the P.W. 1 is equally unbelievable. 10. WE were taken through the evidence of the P.W. 1. During her examination-in-chief, she deposed as follows: "I am a resident of Dhubulia under P.S. Dhubulia, Dist. Nadia. Mukti Acharya was my sister. She was married with accused Shyamal Acharya on 15-2-90. I paid Rs. 7,000/- on cash and 5 bharies of gold along with other presentation namely Almirah, etc. WE gave those articles as per demand of accused persons. After marriage she went to her husband's house. After two months of the marriage of my sister she came to my house and reported me that accused Bimal Acharya demanded Rs. 10,000/- from her for his business but I failed to pay her any amount. Thereafter my sister Mukti returned to her husband's house. After some days accused persons created pressure on her to give the said amount from me. Accused Joyeeta who was married then used to come frequently to the husband's house of Mukti and used to torture on her for non-payment of further money as claimed her husband and father-in-law were seeing the torture on her never resisted them to make such oppression. Accuseds Bimal and Joyeeta were making torture upon her mainly. Lastly, she came to my house on 4-1 -92 and told me that without payment she had no relief and accused Bimal, Joyeeta and father-in-law are making torture on her mercilessly. All accused persons are present on dock (identified). One woman known as "Pisi" but actually she was kept of Mukti's father-in-law was also making torture upon her. On 4-1 -92 I failed to pay any amount to her for my poverty. All accused persons are present on dock (identified). One woman known as "Pisi" but actually she was kept of Mukti's father-in-law was also making torture upon her. On 4-1 -92 I failed to pay any amount to her for my poverty. On 10-1-92 at about 9-30 P.M. two boys came to me and told that Bimal sent them stating that condition of Mukti was very bad. After hearing that I went to her house with one Tufan Biswas. After reaching there I found that she was lying dead on her bed. On my query, her father-in-law reported me that she committed suicide by hanging. I reported the fact to police station. This is the FIR written by Netai Majumder as per my dictation which bears my signature marked as Ext.1. Police seized the handkerchief by which she was hanging. This is my signature the seizure list marked as Ext.2. I am worker of Anganwadi under I.C.D.S. scheme. I get Rs. 450/- per month as allowance only. My father is dead. At that time my mother was alive but after hearing the death of my sister the left side of her body was paralysed and died on last March. Mr. Dastoor, drew our attention to the following sentence: "Her husband and father-in-law were seeing the torture on her never resisted them to make such oppression." 11. HE submitted that during her cross-examination-in-chief itself she has exonerated the husband and the father-in-law of the deceased. 12. HE contended that admittedly the P.W. 1 was earning Rs.450/- P.M. She had to support herself and her ailing mother. She herself was a widow without any issue. Her elder sister had admittedly been murdered by her husband. Mr. Dastoor questioned whether it was possible for anyone to make any claim for money from a person whose monthly income was Rs. 450/-with the obligation to maintain herself and her ailing mother? He contended that the theory of the demand for dowry is a deliberate falsehood resorted to with an ulterior motive. 13. HE also submitted that there was no question of any torture nor in fact the accused persons resorted to any such thing which would be established from any number of letters written by the P.W. 1 herself to the deceased which were tendered in evidence on behalf of the defence and were collectively marked Ext. 13. HE also submitted that there was no question of any torture nor in fact the accused persons resorted to any such thing which would be established from any number of letters written by the P.W. 1 herself to the deceased which were tendered in evidence on behalf of the defence and were collectively marked Ext. A. HE contended that the theory of alleged torture and the theory of alleged demand for dowry were both resorted to with an oblique motive to procure a conviction of the husband and the in laws of the deceased. HE added that the police was actively involved in propping up a false case. The FIR contains an endorsement to show that the written complaint was received at 00.05 hrs., on 11th January, 1992. There is a further endorsement that the case was started at 00.25 hrs. on 11th January, 1992. We already have noticed that the P.W.I received the information at about 11.30 P.M. on 10th January, 1992. Therefore, the story made to appear is that immediately after P.W. 1 got the news she went to the house of the deceased; found her lying dead on the cot and prepared the FIR and made it over to the police before half past twelve in the night. But surprising part according to Mr. Dastoor is that the written complaint goes to show that the incident happened yesterday which means that the written complaint was drafted on the following day. The police, whereas, has made it to appear by antedating that the written complaint was filed within less than an hour from the receipt of the news about the illness of the deceased. P.W. 10 scribed the written complaint. HE deposed as follows: "I wrote the FIR in the house of Kalyani Chakraborty. Tufan Biswas and many others informed me about the death of Mukti and accordingly I went there. I wrote the FIR on the next day of her death." 14. HE also drew our attention in this regard to the evidence of P.W. 1 wherein she admitted that "I lodged FIR at police station as I was mentally perplexed then." He wanted us to compare this evidence of the P.W.I with the endorsement made on the written complaint which suggested that the written complaint was received at the place of occurrence itself. 15. MR. 15. MR. Dastoor, therefore, submitted that the charges against the accused persons were not established by any evidence far less any satisfactory evidence. He, therefore, prayed for an outright acquittal. 16. MS. Gomes, learned advocate, appearing for the State, disputed the submission made by Mr. Dastoor. She submitted that the complicity of the accused persons would appear from the following circumstances. (a) She drew our attention to Ext. "B" purporting to be a letter written by the accused Haralal to the mother of the deceased. Ext. "B" is an inland letter containing two postal seals which might suggest that the letter was posted from the post office of the matrimonial house of the victim and reached her father's house. There are, thus, two postal seals. She contended that if the letter was a genuine one, the same should have been in the custody of the complainant/ respondents and not in the custody of the person who wrote the letter. This letter, she contended, was tendered through a hostile witness namely P.W.3, Shila. The letter was never disclosed by the accused persons during the investigation. P.W.3, Shila during her examination under section 161 did not talk about any such letter nor did she disclose during her examination under section 161 that she was a student of the accused Haralal or that she was acquainted with his handwriting. MS. Gomes submitted that not only the accused persons influenced the prosecution witnesses and prevailed upon them to withhold the truth from the Court but also they made her to adduce false evidence in order to obtain an acquittal. She submitted that by this conduct they betrayed their guilt. (b) She drew our attention to the following cases suggested to the P.W. 1: "It is not a fact that within one year of the marriage of Mukti my elder brother stopped to pay money to me and then I advised to Mukti to get a job to help me and accused Bimal, Haralal and Jayeeta resisted and I forcibly sent her to Barasat for service and accused persons brought her to their house and then I kept my sister for many days in my house in the name of her treatment. It is not a fact that my sister committed suicide as she lost her mental balance." She submitted that the case suggested on behalf of the defence can without hesitation be accepted by the Court which would lend assurance to the Court to find that they had in fact tortured the victim. The torture inflicted by Bimal, Haralal and Joyeeta cannot be doubt. (c) The P.W. 1 was also suggested by and on behalf of the defence and the suggestion was accepted by the P.W. 1 which reads as follows: "It is a fact that semen of Shyamal was weak for which treatment was required. I also advised Shyamal for treatment. I also advised Mukti for treatment by a doctor." MS. Gomes contended that the husband of the deceased was a semi-impotent person and that precisely was the reason why the victim mis-carried twice or thrice. She wanted us to visualise the situation of a newly married woman, who found her husband impotent or semi-impotent and his relatives prevailed upon her to give up her job. Having given up her job she did not find a happy marital life. The reason was the weakness of the husband himself. In such a situation, she wanted to go back to her service which the in-laws would not permit. She questioned whether this was torture or something else. (d) There is no explanation given by the accused persons as to who did notice the victim in a hanging condition? Who were informed? Who laid her down? What step was taken to bring in a doctor? There is a complete silence as regards each one of these questions. (e) She drew our attention to the inquest report wherein it is written that upon preliminary enquiry it was ascertained that the victim used to be continuously tortured. She submitted that this statement made immediately after the incident by the witnesses constituted res gestae under section 6 of the Evidence Act and is relevant. (f) Lastly, she contended that there is presumption available both under section 113A and section 113B of the Evidence Act. She, therefore, contended that there is no reason why this Court should interfere with the Judgment and order passed by the learned Trial Court. We have considered the rival submissions advanced by the learned Advocates. (f) Lastly, she contended that there is presumption available both under section 113A and section 113B of the Evidence Act. She, therefore, contended that there is no reason why this Court should interfere with the Judgment and order passed by the learned Trial Court. We have considered the rival submissions advanced by the learned Advocates. In finding the accused guilty under section 304B IPC the learned Trial Court proceeded on the basis that the victim committed suicide. Assuming that the victim committed suicide within less than seven years of marriage, the conviction under section 304B IPC can be upheld provided there is evidence to show that the claim for dowry played a pivotal role. That is altogether missing in this case. Ms. Gomes was unable to rely upon the evidence adduced by the prosecution. She therefore fell back upon the case suggested by the defence which at the highest is that the accused Haralal, Bimal and Jayeeta resisted the resumption of job by the victim. The physical weakness of the husband did not arise from any culpable behaviour of any of the accused persons. The combined effect of these two factors coupled with two or three miscarriage might have led the victim to end her life but the share of blame of the aforesaid three accused persons could not be more than resistance. to her resumption of the job. It is therefore not possible to uphold the conviction under section 304B IPC or even to scale it down to section 306 as hinted by Ms. Gomes. 17. WE have also taken into consideration the fact that the accused Haralal and the accused Bimal according to Mr. Dastoor are dead. He produced Xerox copies of the two death certificates, which may be kept on the record. 18. THERE is no dependable evidence as regards the involvement of the husband of the deceased Shyamal nor against Sumati. Therefore, they are acquitted of the charges altogether. Only one left is the accused Joyeeta. Her conviction under section 498A of the Indian Penal Code is upheld but the conviction under section 304B IPC is set aside for the reasons discussed above. We also maintain the sentence inflicted by the learned Trial Court for the offence under section 498A IPC. 19. IN the result, the appeal partly succeeds. 20. Her conviction under section 498A of the Indian Penal Code is upheld but the conviction under section 304B IPC is set aside for the reasons discussed above. We also maintain the sentence inflicted by the learned Trial Court for the offence under section 498A IPC. 19. IN the result, the appeal partly succeeds. 20. THE accused Joyeeta shall forthwith surrender and shall serve out the sentence for the offence under section 498A. She shall get the benefit of section 428 of the Code of Criminal Procedure. She is directed to surrender within eight weeks from date. The learned Trial Court shall issue revised jail warrant. In case the appellant Joyeeta does not voluntarily surrender warrant of arrest and such further orders shall be issued as may be necessary to secure her presence. 21. THE concerned department of this Court is directed to send down the lower court records with a copy of this judgment to the concerned learned Trial Court forthwith. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible. Appeal disposed of.