JUDGMENT AND ORDER : 1. Heard Ms. Bijita Sarma, learned counsel appearing on behalf of the appellant. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor, appearing on behalf of the State of Assam. 2. This appeal has been filed by the appellant from jail against the judgment and order dated 04.08.2014 passed by the learned Additional Sessions Judge (FTC), Barpeta in Sessions Case No. 293/2012 under which the appellant stood convicted for the offence under section 304-B of the IPC and sentenced to suffer rigorous imprisonment for 7 years and a fine of Rs. 10,000/- in default, simple imprisonment for another 6 months for the offence aforesaid. 3. Appellant/accused Nabir Hussain @ Nabebur stands trial under Sections 304-B/302 IPC for commission of offence of causing death of his wife Ambia Khatun, who was subjected to cruelty for demand of dowry prior to her death on 20.11.2010 at village Balavitha, under the jurisdiction of Sarbhog police station. 4. The prosecution case in brief is that an FIR dated 20.11.2010 lodged by one Md. Askar Ali, Son of late Jainuddin of village Bhaluki Salmara of Barpeta police station alleging that his daughter Ambia Khatun was married to the appellant/ accused, namely, Nabir Hussain @ Nabebur about 6/7 years ago and out of their wedlock two children were born to Ambia. But after the marriage she was subjected to physical and mental torture by her husband for demand of dowry. On 19.11.2010 the accused/ appellant severely beaten up his wife as a result of which she sustained grievous injuries on her person. On 20.11.2010, the informant could learn about the physical torture meted out against his daughter by the accused person and he immediately shifted her to Barpeta Road Hospital where his injured daughter succumbed to her injuries. Upon receipt of the aforesaid FIR, the police registered a case being Barpeta Road P.S. No. 190/2010 under Section 304-B of the IPC and investigated the case and after completion of the investigation submitted the charge sheet under the said section of law against the accused person for his trial. 5. On receipt of the summons, the accused person appeared before the court of learned CJM, Barpeta, and the learned court below after furnishing the copy, finding materials under section 304-B IPC which is exclusively triable by the court of Sessions committed the record on 13.12.2012. 5. On receipt of the summons, the accused person appeared before the court of learned CJM, Barpeta, and the learned court below after furnishing the copy, finding materials under section 304-B IPC which is exclusively triable by the court of Sessions committed the record on 13.12.2012. Accordingly, after hearing the parties and perusing the case record, the learned CJM framed charge under Sections 304-B/302 of the IPC. The charge so framed was read over and explained to which the accused pleaded not guilty and claimed to be tried. 6. After hearing the parties, the learned trial court convicted the accused Nabir Hussain @ Nabebur and sentenced him to undergo for rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/- in default to undergo simple imprisonment for another period of 6 months for his conviction under Section 304-B of the IPC against which the present appeal is preferred. 7. Ms. Sarma submits that there are discrepancies regarding the cause of death alleged to be informed by the deceased. The PW-1, Baharul Islam deposed in his deposition that the deceased told him in the Barpeta Road Hospital that her husband i.e. the accused/ appellant, assaulted her on the date of occurrence and prior to the date of occurrence the accused husband used to assault her. On the other hand, Askar Ali, PW-2 who is the complainant and the father of the deceased Ambia, deposed that on the date of occurrence he went to Bhaluki Salmara Bazar and his nephew Rashid informed him on the road that the accused had brutally assaulted his daughter and he should go there immediately. He informed the PW-1 and the PW-1 went to the house of the accused person on his bike. The said PW-1 put the deceased Ambia tying her on the pillion seat and took her from the house of the accused person and came to Damkata bazaar. The PW-2, the father of the deceased with the help of 3/4 persons lifted the deceased on the vehicle and took her to Barpeta Road Hospital. On the way, the deceased informed about the occurrence to the PW-2 and further informed that the accused appellant had pressed her neck severely, hit her brutally on her shoulder and punched her in the back of the abdomen. On the way, the deceased informed about the occurrence to the PW-2 and further informed that the accused appellant had pressed her neck severely, hit her brutally on her shoulder and punched her in the back of the abdomen. In the hospital, she was admitted and after about half an hour i.e. at about 9.30 a.m. Ambia died and thereafter the PW-1 informed the death to the police and lodged an ejahar. However, the PW-2 deposed that the PW-1 did not accompany them while going to the hospital. Rather, the PW-1 went to the hospital only after the death of Ambia. So, Ms. Sarma submits that there was discrepancy so far the cause of death and the assault alleged to be purported by the appellant. PW-2 contradicts the deposition of the PW-1 to the effect that PW-1 was told by the deceased Ambia at Barpeta Road Hospital that her husband, the accused/appellant, had assaulted her on the date of occurrence. Ms. Sarma submits that in order to come to the conclusion with respect to the assault as alleged to be perpetrated on the deceased, a duty was cast upon the prosecution side at least to record the evidence of the persons who accompanied the deceased to the hospital and also the nurses who treated her at least prior to her death who were present at the time of such disclosure to PW-2 to make it believable. There being no such evidence on record the finding of the court below is not conclusive and a shade of doubt remains in the conviction of the accused/ appellant. 8. On the other hand, Mr. Lahkar, the learned Additional Public Prosecutor, submits that the alleged discrepancy as pointed out by Ms. Sarma is not material at all. In fact, it is not disputed by the appellant that she was lifted with the injuries from the court yard of the house of the appellant. There is no leading evidence as to how she suffered those injuries from the defence side. In such a situation, the statement of the deceased with regard to the torture and the assault perpetrated on her by the husband appellant cannot be disbelieved at all. 9. The learned trial court took into consideration the post mortem report and accepted the opinion that the death was due to shock, haemorrhage and as a result of injuries sustained on her person. 9. The learned trial court took into consideration the post mortem report and accepted the opinion that the death was due to shock, haemorrhage and as a result of injuries sustained on her person. The said post mortem report was accordingly proved. The learned trial court also took into consideration the deposition of the rest of the witnesses who are neighbours and inhabitants of the village of the appellant. It is taken into consideration that an attempt was made to establish that the death of the deceased was due to suicide by consuming poison. However, such attempt on the part of the defence side was disbelieved inasmuch as had the cause of death been suicide by consuming poison, the same would have been detected in the post mortem report. The learned trial court considered the offences under Section 304-B of the IPC and in order to bring the guilt of the accused appellant within the ambit and scope of Section 304-B of the IPC also recorded as follows:- “Hon’ble Gauhati High Court in Umesh Sarma and Another vs. State of Assam, (2010) 3 GLR 13 in paragraph 9 has held that – “the peculiar circumstances in respect to an offence under section 304B IPC is that the court has a statutory compulsion merely on the establishment of two factual positions namely, (i) death of a wife should have occurred otherwise than under normal circumstances within 7 years of her marriage; (ii) soon before her death, she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry, to presume that the accused had committed dowry death. If any accused wants to escape from the said catch, the burden is on him to disprove and if he fails to rebut the presumption, the court is bound to act on it.” 10. The learned trial court keeping in view of the said ingredients convicted the appellant under Section 304B of the IPC and apparently the prosecution has failed to prove that soon before the death of the deceased Ambia she was subjected to cruelty or harassment by the accused appellant in connection with any demand for dowry to presume that the accused appellant had committed any dowry death which is one of the vital ingredients under Section 304-B of the IPC. 11. 11. On perusal of the evidence of the various witnesses on record and from the discussions made in the judgment by the learned trial court, it is apparent that the prosecution has failed to show that immediately prior to the torture meted to the deceased, there was a claim for dowry. The learned trial court has failed to consider the said aspect of the matter and wrongly invoking Section 304-B of the IPC convicted the accused appellant. On a specific query to Mr. Lahkar, the learned Additional Public Prosecutor, he submits that the said error is very much apparent on the judgment. However, he submits that as the cause of death as per the post mortem report and the information given to the PW-2 by the deceased are synchronising, so it is proved that at least owing to the torture carried out by the appellant husband on the deceased Ambia, she died. Mr. Lahkar also submits that considering the totality of the circumstances, the accused appellant ought to have been punished under Section 304 Part-II of the IPC. 12. Considered the submissions of both the learned counsels. From the deposition of PW-2 coupled with the post mortem report it can be concluded that the deceased was hit by the appellant husband brutally on her shoulder, punched in her back and abdomen and pressed her neck severely. The post mortem report indicates as following:- “2. Wounds, Position, Character: 1. One bruise noted over posterior aspect of left lower chest (3" x 1"). 2. Abrasion present over front of both legs. Rt. 1" x ½" Lt. ½" x ½." *** IV – ABDOMEN *** 2. Peritonoum: Healthy contains clotted blood in large amount *** *** 8. Spleen: A linear tear noted over outer surface. *** In my opinion death is due to shock and haemorrhage as a result of injuries sustained in her person. Type of weapon – blunt Time since death – about 48 hours.” 13. From the said injuries it cannot be concluded that such injuries inflicted on the deceased by the appellant without any intention to cause death. Rather, the same gives an indication that the injuries inflicted on the body of the deceased were done with the intention of causing death and thereby leading this court to hold that the offence against the appellant is proved under Section 304 Part-I of the IPC. 14. Rather, the same gives an indication that the injuries inflicted on the body of the deceased were done with the intention of causing death and thereby leading this court to hold that the offence against the appellant is proved under Section 304 Part-I of the IPC. 14. On the submission of Ms. Sarma this court holds that the discrepancies are not vital in order to nullify the charge against the accused/appellant. There is specific evidence that the deceased was lying injured in the courtyard of the house of the appellant/ accused. The husband appellant also absconded and he never took the deceased to the hospital on his own. If there was/were any explanation with regard to the injury on the person of the deceased, the same ought to have brought on record by the defence side. As no such explanations are forthcoming, the prosecution has no other alternative, but to accept the prosecution case that the appellant/ accused had caused the injury to the person of the deceased. So such discrepancies cannot be termed to be material in dislodging the case of the prosecution. 15. Considering the discussions made hereinabove, this court accordingly holds the conviction for 7 years rigorous imprisonment and to pay a fine of Rs. 10,000/- in default, the appellant has to undergo simple imprisonment for another period of 6 months for his conviction under Section 304 Part-I of the IPC. With the aforesaid modification this appeal is accordingly disposed of. Send back the LCRs. 16. This court appreciates the valuable service rendered by Ms. B. Sarma, learned Amicus Curiae and as against her professional fees, a sum of Rs. 7,500/- be paid to her from the legal services authority.