Judgment Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment of conviction dated 3rd November, 2006 in Sessions Case No. 20(DM)/2004 passed by the learned Sessions Judge, Darrang, convicting the 5(five) accused/appellants under Sections 498(A)/34 IPC as well as under Sections 304-B/34 IPC. They have been sentenced to undergo rigorous imprisonment for 1 (one) year for the offence under Sections 304-B/34 IPC. As regards the conviction under Sections 498(A)/34 IPC, they have been sentenced to undergo rigorous imprisonment for 1 (one) year, each, with fine of Rs. 2,000/- (Rupees Two Thousand), each, and in default further rigorous imprisonment for 6(six) months. Both the sentences are to run concurrently and the period already undergone during trial is to be set off under Section 428 Cr.P.C. The 5(five) accused/persons are (1) Md. Imran Hussain; (2) Md. Farooque Hussain; (3) Md. Altaf Hussain; (4) Mrs. Paribanu Begum @ Parijan Nessa and (5) Mrs. Laily Begum, out of which the accused/appellant No. 3, Md. Altaf Hussain, expired on 19th November, 2010 during the pendency of this appeal. Be it stated here that the accused/appellants are on bail pursuant to the order passed on 27th September, 2007 in Criminal Misc. Case No. 476/2007. 2. Dalgaon Police Station Case No. 177/2001 was registered under Sections 304-B/302/34 IPC on the basis of the FIR lodged on 5th August, 2009. The FIR was lodged by PW-1, Afroja Ahmed (Begum); the mother of the victim. As stated in the Fir, her daughter was given on marriage with the accused/appellant No. 1, Md. Imran Hussain on 6th March, 1999. It was alleged that ever since the marriage was performed, the persons named in the FIR used to torture her on demand of do wry. In such circumstances, the victim had visited her mother's house on several occasions. However, her family members kept her in her in-law's house, to maintain good family relationship. As stated in the FIR* the informant could come to know that on the previous night, the accused persons named in the FIR, poured Kerosene oil on the body of the victim and set her on fire. Immediately she was shifted to Mangaldoi Civil Hospital, wherefrom she was taken to Gauhati Medical College & Hospital. However, she died on the date of lodging the FIR, i.e. on 5th August, 2009. The persons named in the FIR are as follows:-- "(i) Md. Immediately she was shifted to Mangaldoi Civil Hospital, wherefrom she was taken to Gauhati Medical College & Hospital. However, she died on the date of lodging the FIR, i.e. on 5th August, 2009. The persons named in the FIR are as follows:-- "(i) Md. Imran Hussain (husband of the victim); (ii) Md. Farooque Hussain (brother of the husband); (iii) Md. Altaf Hussain (brother of the husband); (iv) Mrs. Paribanu Begum @ Parijan Nessa (mother-in-law)." 3. Thus, in the FIR, the appellant No. 5, Ms. Laily Begum, sister of the husband was not named. In due course, on receipt of the FIR investigation was carried out and on completion of the same, charge-sheet was submitted against the accused persons to face trial under Sections 302/34 IPC. However, the trial Court framed charges against the accused/appellants under Section 498(A)/34IPC as well as under Sections 304-B/34 IPC and the same was read over and explained to the accused on which they pleaded not guilty and claimed to be tried. 4. Trial started thereafter and during trial, prosecution examined 14(fourteen) witnesses including the Medical-Officer and the Investigating Officer. The accused/appellants were also examined under Sections 313 Cr.P.C. They also examined 1 (one) defence witness (PW-1). Their plea was that of total denial. 5. On the basis of the evidences on record, the learned trial Court formulated the following points for decision and answered the same in the affirmative towards conviction of the accused/appellants. Hence, this appeal. "(1) Whether the accused persons in furtherance of their common intention at Dalgaon under Dalgaon Police Station subjected Saleha Sultana to cruelty demanding dowry and thereby committed offence U/s.498-A/34 of the Penal Code? (2) Whether on 4.8.2001 at Dalgaon Town under Dalgaon Police Station the accused had, in furtherance of their common intention, poured kerosene on the body of Saleha Sultana for non-fulfillment of dowry and intentionally caused death of Saleha and are liable to be punished U/S. 304-B IPC?" 6. I have heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. T.N. Srinivasan and Mr. A. Barkataki, learned counsel for the accused/appellants. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. I have also perused the entire materials on record to which the learned counsel appearing for the parties have extensively referred to. 7. Mr. I have heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. T.N. Srinivasan and Mr. A. Barkataki, learned counsel for the accused/appellants. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. I have also perused the entire materials on record to which the learned counsel appearing for the parties have extensively referred to. 7. Mr. Choudhury, learned senior counsel for the accused/appellants submits that on perusal of the evidence on record, it cannot be said to be a case of conviction. According to him, the investigation of the case started with the particular G.D. Entry but it was shown started with lodging of the FIR later on. He also submits that the purported suicide note having not been exhibited and the particular witness, who had purportedly seen writing of the said suicide note having not been examined by the prosecution, it is fatal to the case of the prosecution. In this connection, he has placed reliance on certain decisions, which are Narain & Ors. v. State of Punjab reported in AIR 1959 SC484; Rang Bahadur Singh & Ors. v. State of U.P. reported in (2000) 3 SCC 454 ; Hem Raj & Ors. v. State of Haryana reported in (2005) 10 SCC 614 and Bircha Kurmi v. State of Assam reported in 2013 (4) GLT 1017. 8. Mr. Das, learned Additional Public Prosecutor, Assam countering the above argument submits that there being evidence towards establishing the charge under both the Sections referred to above, the impugned judgment of conviction is required to be sustained. He submits that minor discrepancies here and there cannot be fatal to the case of the prosecution. 9. On perusal of the records, it appears that investigation was set to motion on the basis of the G.D. Entry No. 100 dated 4th August, 2001. As per the said GD. Entry dated 4th August, 2001 made by one Suresh Ch. Das, Officer-in-Charge of Dalgaon Police Station, upon investigation, it was found that at about 9:30 PM, the deceased tried to commit suicide but the accused/appellant No. 1, i.e. the husband, seeing the occurrence extinguished the fire. However, since the deceased sustained bum injuries on different parts of her body, she was taken to Dalgaon State Dispensary, wherefrom she was taken to Mangaldoi Civil Hospital. However, since the deceased sustained bum injuries on different parts of her body, she was taken to Dalgaon State Dispensary, wherefrom she was taken to Mangaldoi Civil Hospital. As noticed above, the fir was lodged on 5th August, 2001 narrating the incident of the previous night, i.e. 4th August, 2001. 10. During investigation, the statement of one Sabir Ahmed, aged about 9 years, was recorded under Section 161 Cr.P.C. who was allegedly an eye witness to writing of the suicide note. During his statement under Section 161 Cr.P.C. he stated that he was watching TV in a nearby house and at around 9.30 pm hearing hue and cry, he alongwith others came out and saw the victim catching fire and the accused/appellants trying to extinguish the same. He also stated that prior to the said incident at around 9:00 pm, he could see the victim writing on apiece of paper and on being asked as to what she was writing, she told him that she was writing down the things to be purchased from the grocery shop. Neither this witness was examined by the prosecution nor the purported suicide note was exhibited. On the other hand, the learned trial Court has discarded the evidence of DW-1, Md. Rajibur Rahman, who, in his deposition, stated about seeing the suicide note and the contents thereof. According to him, in the said suicide note there is no implication of the accused persons, rather they have been absolved. The learned trial Court has disbelieved the testimony of DW- r on the ground that the said suicide note was not exhibited during trial. DW-1 made the statement in reference to the seizure of the suicide note by the Investigating Officer vide Exhibit-3, which was authenticated by him vide Exhibit-3(ka). 11. PW-14 is the doctor who performed the post mortem examination on the dead body and found the following injuries:-- "(1) Cut wound (4 cm X 2 cm X 0.5 cm) deep-present transveracy on inner aspect of right leg-front end of the cut behind-located at 3-50 cms below right patella and 4 cm inner to midline of right leg. (2) Lacerated wound-1.5 cm X 1 cm X scalp deep was also found present on inner and to right eye ridge 1 cm above inner angle of right eye." 12. (2) Lacerated wound-1.5 cm X 1 cm X scalp deep was also found present on inner and to right eye ridge 1 cm above inner angle of right eye." 12. PW-14 also contradicted the following:-- "(3) Burns-Epidermal and dermo epidermal-Burns all over the body surface area except scalp under scalp hairs and soles of both legs (forehead and face also involved in burn). Tips of scalp hairs, eye lashes-Eyebrow lashes, Axillary hairs, Public hairs were also burnt and signed. About 95% of the body surface area involved in burn. Both the lungs were found congested. Shots particulars were present on mucosa on places of trachea. Heart was found healthy and chambers contained clotted and liquid blood. Brain was healthy. Stomach was empty and healthy. Soots particles were also present on mucosa on mouth on places. The genital organ externally was involved in burn." 13. The said PW-14opinedthatthedeath was caused due to shock resulting from ante mortem burn involving about 95% of the surface described in the report. According to him, cut wounds were ante mortem in nature caused by blunt weapon. The victim died on 5th August, 2001 at about 1.30 AM. The post mortem report was exhibited as Exhibit-8. As regards the injuries found on the body, it was observed that cut wounds could be caused by blunt weapon. No any weapon was recovered and/or seized. 14. The learned trial Court has convicted the accused/appellants primarily on the basis of the evidence of PWs-5, 6 & 9. PW-1 is the first informant and also the mother of the victim. She, in her deposition, although stated that her daughter was subjected to cruelty and harassment with the demand of dowry, but she contradicted her oral testimony when tested in reference to the oral testimony of PW-13, i.e. the Investigating Officer. PW-13, in his evidence, stated that PW-1 did not state before him that the accused/appellants had demanded dowry and that the deceased reported her that she was subjected to torture. 15. PW-2 giving a different version of the story narrated in the FIR and also the incident stated that he did not see any quarrel and dispute between the parties. He was categorical that he found the deceased and the appellant living a happy married life. PW-3 is the witness, whose house is situated at a distance of about 20/30 Mtrs. from the house of the accused/appellants. He was categorical that he found the deceased and the appellant living a happy married life. PW-3 is the witness, whose house is situated at a distance of about 20/30 Mtrs. from the house of the accused/appellants. He expressed his total ignorance as to the torture allegedly meted to the deceased. PW-4 although stated that her sister, i.e. the deceased, was misbehaved by the accused/appellants and she used to visit her house but she was not specific. Her evidence when tested in reference to the testimony of PW-13, her implication of the accused/appellants falls through, which also finds mention in the impugned judgment of conviction. 16. Likewise PW-7 although tried to implicate the accused/appellants, no such implications are to be found in her statement under Section 161 Cr.P.C. PW-8 stated in his deposition that he could see cut injury in the right leg of the deceased. PW-12 is the seizure witness, who saw the seizure of a book relating to cutting and knitting (Exhibit-5). PWs-10 and 11 are seizure witnesses. PW-5, in her deposition, stated that deceased was her younger sister. On receipt of a phone call, she rushed to Mangaldoi Civil Hospital and found the deceased with burn injuries. According to her, the deceased could tell her through gesture that she did not inflict the bum injuries herself. She stated that it was a case of murder. She also made a general statement that the accused/appellants used to torture the deceased on dowry demand as was informed by the deceased whenever she had visited her house. She also stated about providing a gas cylinder to her on being apprised of the inconvenience being faced. In the cross-examination, referring to the particular injury sustained by the deceased, she stated that she was not taken to hospital but was provided with pain killer. 17. PW-6 is another witness, on the basis of which the learned trial Court has convicted the accused/appellants. She is the cousin sister of the deceased. She, in her deposition, stated that the deceased was tortured on demand of a gas cylinder. There was also demand of a scooter. On receipt of a phone call, she also rushed to the Hospital and found the deceased there, who was not in a position to talk. She is the cousin sister of the deceased. She, in her deposition, stated that the deceased was tortured on demand of a gas cylinder. There was also demand of a scooter. On receipt of a phone call, she also rushed to the Hospital and found the deceased there, who was not in a position to talk. In the cross-examination, she stated that she was not remembering as to whether while making the statement before police she had stated about demand of scooter. She was specific that she did not state before the police about the demand of gas cylinder by the accused persons. 18. PW-9 in his deposition stated that he had heard that there was misunderstanding between the parties. However, he also admitted that he did not know anything in details. While suggestion was made that he did not make any allegation against the accused persons while making statement under Section 161 Cr.P.C., he denied the same. In the cross-examination, he also stated that he had only heard about the torture being meted out to the deceased but he himself did not see anything. 19. It is on the basis of the above testimonies of PWs-5, 6 and 9, the learned trial Court formed the opinion that there is nothing to disbelieve them as they were consistent in their evidence. However, when such testimonies are tested in reference to the testimony of PW-13, who had recorded the statements under Section 161 Cr.P.C., it is found that no such allegations were made while making the statements under Section 161 Cr.P.C. It is in this context, Mr. Choudhury, learned senior counsel representing the accused/appellants submits that the testimonies of PWs-5, 6 and 9 are not reliable, more particularly, when they are interested witnesses being relatives of the deceased. He also submits that there is serious infirmity in lodging of the subsequent FIR once the investigation had started with the above referred GD. Entry. As noted above, the purported suicide note allegedly written by the deceased was not exhibited, although it was seized. The eye witness to the said suicide note (and not the contents), i.e. the above mentioned 9(nine) years old boy, was also not examined. According to Mr. Choudhury, this was done having regard to the weakness of the case of the prosecution. 20. The eye witness to the said suicide note (and not the contents), i.e. the above mentioned 9(nine) years old boy, was also not examined. According to Mr. Choudhury, this was done having regard to the weakness of the case of the prosecution. 20. In Narain (supra), the Apex Court dealing with the duty of the prosecution to produce the material witness to establish its case held that the test whether a witness is material for the purpose is not whether he would have given evidence in support of the defence, but the test is whether he is a witness essential to the unfolding of the narrative on which the prosecution is based. It was held that non-examination of the material witness, which, according to the defence, was deliberate and unfair might vitiate the prosecution case. 21. In Rang Bahadur Singh (supra) also, dealing with the fact of non-examination of material witness, the Apex Court held that non-examination of the person whose testimony may have deleterious impact on the veracity of the other witness would be in incongruity which would cast a doubt on the prosecution case. 22. In Hem Raj (supra), the Apex Court held that non-furnishing of explanation by the prosecution in respect of failure to examine independent and material witness though available would assume significance when evidence of the other witnesses cast serious doubt about the veracity of the prosecution version. 23. The case of Bircha Kurmi (supra) has been referred to so as to emphasize that because of non production of the material witness to support the prosecution case, the accused/appellants are entitled to benefit of doubt. 24. Apart from the fact that the evidence of PWs-5 and 9 are not consistent when tested in reference to the statements given under Section 161 Cr.P.C. the PW-9 was also declared hostile. It is in this context, Mr. Choudhury, learned senior counsel for the appellants has submitted that their testimonies carry no evidentiary value to record conviction. As recorded in the impugned judgment of conviction, the witnesses gave different statements regarding relationship. The learned trial Court also recorded the finding that the hear say evidence of PWs-5, 6 and 9 is not admissible in the eye of law. Choudhury, learned senior counsel for the appellants has submitted that their testimonies carry no evidentiary value to record conviction. As recorded in the impugned judgment of conviction, the witnesses gave different statements regarding relationship. The learned trial Court also recorded the finding that the hear say evidence of PWs-5, 6 and 9 is not admissible in the eye of law. However, at the same time, it has been held that they could successfully explain the ill motive and conduct of the accused persons towards convicting the accused/appellants in reference to the ingredients of Section 34 IPC. However, there is nothing in the evidence to suggest that in the particular act although not established beyond reasonable doubt, they formed a common intention towards constituting the offence under the aforesaid Sections. 25. For all the aforesaid reasons, I am of the considered opinion that the accused/appellants are entitled to benefit of doubt. Consequently, the impugned judgment of conviction stands interfered with. Appeal is allowed. Appellant's bail bond shall stand discharged. The Registry shall transmit the records. Appeal Allowed.