JUDGMENT : MD. MUMTAZ KHAN, J. 1. This appeal has been preferred by the appellants assailing the judgment and order of conviction dated November 6, 2003 and sentence dated November 7, 2003 passed by the learned Additional Sessions Judge, 2nd Court, Suri, District Birbhum in Sessions Trial No. March 8, 2002 arising out of Sessions Case No. 68 of 2001. By virtue of the impugned judgment appellants were convicted for the commission of the offence punishable under Sections 498A/307/34 of the Indian Penal Code (hereinafter referred to as IPC) and were sentenced to suffer rigorous imprisonment for 3 years each and to pay fine of Rs. 3000/- each in default to suffer rigorous imprisonment for 3 months more for the offence under Section 498A IPC and sentenced to suffer rigorous imprisonment for 10 years each and to pay a fine of Rs. 5000/- each in default to suffer rigorous imprisonment for 5 more months for the offence under Section 307/34 IPC with a direction that both the sentences shall run concurrently with usual direction of set off as per provisions of Section 428 of the Code of Criminal Procedure (here in after referred to as Cr.P.C.). 2. Prosecution case, in brief, is as follows: 3. P.W.2 was given in marriage with the appellant no.1 by P.W.1 but after one year of such marriage P.W.2 was subjected to cruelty by husband, father-in-law, since deceased and sister-in-law namely the appellants. P.W.2 being unable to bear such torture left the matrimonial home and started living at her father’s house. P.W.1 reported the matter to Panchayat and a settlement was arrived in the village by the local Panchayat. As per the settlement P.W.1 sent P.W.2 to her husband’s house on June 3, 2000. On June 5, 2000 at about 8 a.m., P.W.1 got an information from a relative of appellant that on that day at about 6 a.m. P.W.2 had been set on fire. On getting such information, P.W.1 went to the house of the appellants and found his daughter lying in the varanda in burnt condition. On being asked, P.W.2 told him that in the morning at about 6 a.m. she had been to the cowshed for cleaning. Then all on a sudden from behind her husband and sister-in-law poured kerosene oil on her person and set her on fire. On being asked, P.W.2 told him that in the morning at about 6 a.m. she had been to the cowshed for cleaning. Then all on a sudden from behind her husband and sister-in-law poured kerosene oil on her person and set her on fire. She then rushed to the house of her neighbor Dhudu Mondal who extinguished the fire. P.W.1 then with the help of local panchayat took P.W.2 to Labpur Hospital and got her admitted there in severe condition. P.W.1 the lodged a written complaint (Ext.1) scribed by P.W.9 before the officer in charge of Labpur P.S. (P.W.14). 4. On the basis of the above written complaint, P.W.14 started Labpur P.S. case No. 47 of 2000 dated June 5, 2000 under Sections 498A/307/326 IPC against the appellants and took up investigation of the case and thereafter, on completion of investigation submitted charge sheet against the appellants under Sections 498A/ 307/326 IPC. 5. On January 29, 2002 charges under Sections 498A/307/34 IPC were framed against the appellants and on their pleading not guilty to the charges, trial commenced. 6. Prosecution in order to prove it’s case, examined 14 witnesses and also produced and proved the written complaint, formal FIR, rough sketch map with index, seizure list, injury report etc. After completion of the evidence for the prosecution, appellants were examined under Section 313 Cr.P.C. Defence also examined 04 witnesses in support of their claim and thereafter on completion of trial, learned trial judge passed the impugned judgment. 7. During pendency of the appeal, appellant no.2 Manik Mondal expired and the appeal stood abated against him. 8. Mr. Souvik Mitter, learned advocate appearing for the appellants submitted that the impugned judgment, order of conviction and sentence are not sustainable in law in so far as the appellant no.3, Sumitra Mondal, is concerned as there was no evidence on record with regard to the role played by her in the commission of the offence though alleged in the FIR nor any such question with regard to pouring of kerosene oil and setting fire to the victim was put to her during her examination under Section 313 CrP.C. On the other hand from the evidence on record including that of the doctor, it was evident that P.W.2 caught fire while preparing tea. According to Mr. Mitter, the entire allegation is directed against the appellant no.1 only who has already served out the sentence. According to Mr. Mitter, the entire allegation is directed against the appellant no.1 only who has already served out the sentence. 9. Mr. Madhusudan Sur, learned advocate appearing for the State submitted that any kind of assault upon wife and even use of filthy languages tantamount to torture and attracts the provision of 498 A IPC. According to Mr. Sur, appellant no.3, Sumitra Mondal, used to instigate appellant no.1, Sukdeb Mondal, and this found corroboration from the evidence on record specially that of P.W.2, P.W.3 and P.W.5 who have narrated the role played by her. He, however, in all fairness submitted that there is no such material on record to attract the provisions of Section 307 of the IPC against Sumitra Mondal. According to Mr. Sur, in so far as the appellant no.1 is concerned he is the principal accused and the prosecution has been able to prove the charges against him beyond shadow of doubt. 10. We have considered the submissions of the learned advocates appearing for the respective parties and given our thoughtful consideration to the evidence and the materials on record to consider the propriety of the impugned judgment and order passed by the learned court below. 11. Learned trial judge after over all assessment of the evidence on record particularly that of PW1, father of the victim and the de-facto complainant, PW2, the victim, P.W.3, mother of the victim, P.W.4, uncle of the victim, P.W.5, brother of the victim, P.W.13, the doctor and the Investigating Officer arrived at the conclusion that the prosecution was able to prove the charges under Sections 498A/307/34 IPC against the appellants. 12. Section 498A IPC provides for punishment to the husband or the relatives of the husband of a woman who subjects such woman to cruelty. The term “cruelty” has been defined as any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. 13. Now let us analyze the evidence of the prosecution witnesses one by one. 14. PW 1 is the father of P.W.2 and the complainant of this case. He deposed before court on March 20, 2002. 13. Now let us analyze the evidence of the prosecution witnesses one by one. 14. PW 1 is the father of P.W.2 and the complainant of this case. He deposed before court on March 20, 2002. He specifically stated on oath that his daughter (P.W.2) was given in marriage with the appellant no.1 about 2/3 years ago and after marriage she started residing with him at his house and during her stay at the matrimonial home his son-in-law namely appellant no.1 ill-treated her and used to assault her. He then called a Panchayat and in the said Panchayat matter was compromised and then he sent his daughter at her matrimonial home. Thereafter, his son-in-law poured kerosene oil on her person and set her on fire. On getting the news of burning of his daughter his wife (P.W.3) and son (P.W.5) went to their house but his son-in-law and his father Manik Mondal did not permit them to take his daughter to the hospital. Accordingly, he went to the Prodhan (P.W.11) and on his intervention his daughter was sent to the Labpur hospital where she was admitted and remained there for 25/26 days. He then lodged the complaint (Ext.1) at the Lavpur P.S. which was scribed by P.W.9. He identified Mat. Ext.1 to be the seized burnt saree and blouse of his daughter. He was cross-examined at length but nothing came out contrary to his statements made in his examination-in-chief. On the other hand during cross-examination he clearly stated that after six months of his daughter’s marriage she was assaulted by her husband and over such ill-treatment Panchayat was called on two occasions. He also specifically stated that after Panchayat he sent his daughter two days before when she was set on fire by her husband. He denied the defence suggestion that his daughter caught fire at the time of preparation of tea. Defence failed to impeach his credibility. 15. P.W.2 is the daughter of P.W.1 and the victim. She deposed before the court on March 20, 2002. She clearly stated that she was married 3 years back and after marriage she started living at her matrimonial home and gave birth to a dead child at Sian hospital. After release from the hospital she went to her in-laws house and after 3/4 days from returning back from hospital her husband used to assault her at the instigation of her ja Sumitra. After release from the hospital she went to her in-laws house and after 3/4 days from returning back from hospital her husband used to assault her at the instigation of her ja Sumitra. Her father then reported the matter to panchayat and after salish of panchayat her uncle and elder brother brought her to her matrimonial home. After two days at dawn on 22nd Jaistha about 1 yrs. ago while she was cleaning cow shed, then at that time her husband poured kerosene oil on her person and set her on fire by a lighter. She then rushed to the house of ‘khursasur’ and her ‘khursasur’ extinguished the fire. Thereafter, her paternal brother-in-law, Dukhu Mondal informed her parents and getting the said news her father, mother and elder brother came and she narrated the incident to them. Her parents then wanted to take her to the hospital but she was not allowed by her father-in-law and only after intervention of Panchayat Pradhan she was taken to the Labpur hospital at about 1/1.30 p.m. by her parents, elder brother and others where she was treated (she showed her injuries to the court in course of her deposition and the learned trial Judge also noticed the existence of burning spot below her left arm and on her back). Her burning wearing apparels namely saree and blouse were taken by the police. She after release from hospital went to her father’s house and since then she had been residing there. During cross examination she admitted that before birth of the child she was not assaulted by the husband physically but there was mental torture and that she stated to the Daroga Babu that when she returned back to her husband’s house she was assaulted by her husband at the instigation of her ja (sister-in-law). She also specifically stated during cross examination that there was a Panchayat in the village and after salish she came back to her husband’s house but after two days the incident of setting fire took place and her ‘khursasur’ extinguished the fire. She also specifically stated during cross examination that there was a Panchayat in the village and after salish she came back to her husband’s house but after two days the incident of setting fire took place and her ‘khursasur’ extinguished the fire. Thus, from the above it is evident that her evidence with regard to cruelty by her husband namely appellant No. 1 during her stay at the matrimonial home, Panchayat meeting in the village towards her ill-treatment and her returning back to the matrimonial home only after Panchayat and incident of setting her fire by her husband from her behind within 02 days of her arrival remained unshaken during cross examination. Nothing was brought out during her cross-examination which could render her evidence dis-believable in so far as the cruelty and setting her on fire by her husband is concerned. 16. The above statements of PW2 also found corroboration from PW3, PW4 and PW5, her mother, uncle and brother respectively. PW3, also deposed that after marriage her daughter (PW2) started living with her in- laws at her matrimonial home but during her stay there she was assaulted by them. Her daughter gave birth to a dead child within one year of her marriage and after giving birth of the child she was sent to the husband’s house but her son-in-law (appellant No.1) abused her in filthy languages and also assaulted her. She further deposed that due to such torture her daughter came back to their house. There was a settlement in the panchayat and after that they sent her to the matrimonial home but again she was subjected to cruelty by her husband as a result she returned back to their home. Thereafter, they further took the help of Panchayat and after that they sent her daughter to the matrimonial home but after two days on her arrival she was burnt by her husband. On getting information of the incident at about 8.30 a.m. she and her son went there and found her lying in the varanda without any treatment. On being asked her daughter told them that her husband poured kerosene oil on her person and set her on fire. On getting information of the incident at about 8.30 a.m. she and her son went there and found her lying in the varanda without any treatment. On being asked her daughter told them that her husband poured kerosene oil on her person and set her on fire. She further deposed that they tried to take her daughter to the hospital but father-in-law of her daughter did not allow them and accordingly her husband informed the Panchayat Pradhan and at the intervention of the Panchayat Pradhan her daughter was sent to the hospital where she was treated. She was cross examined by the defence but her evidence remained unshaken and nothing came out contrary to her statements-in-chief. 17. PW 4 had deposed that after marriage PW2 went to her matrimonial home and there she was subjected to cruelty by her husband and he came to know the same from PW 2 when she came back to her father’s house. He further deposed that cousin brother-in-law of PW 2 reported about burning of PW 2 and accordingly her mother and elder brother went to the P.O. and he also went there and found PW 2 lying in the varandah writhing in pain. They then went to Pradhan and only at the intervention of Pradhan PW 2 was taken to the hospital. 18. PW 5 had also specifically stated that during stay of PW 2 at her matrimonial home she was abused and assaulted by her husband. Thereafter, a salish was held and after that she was taken to the matrimonial home. He further deposed that PW 2 again came to their house and told them that her husband assaulted and abused her. They again called Panchayat and after that P.W.2 was sent to the matrimonial home and thereafter the incident of burning of his sister by fire took place. On getting the news he along with his mother went to the place of occurrence and found her lying in the burnt condition and on being asked PW 2 told them that her husband set her on fire. They tried for treatment of the victim but they were not allowed and only after intervention of Pradhan, PW 2 was taken to the hospital. He was also cross examined by the defence and his evidence also remained unshaken. 19. They tried for treatment of the victim but they were not allowed and only after intervention of Pradhan, PW 2 was taken to the hospital. He was also cross examined by the defence and his evidence also remained unshaken. 19. Pw11, the Prodhan, has also deposed that on June 5, 2000 he had been to the house of appellant No. 1 and found PW2 in burnt condition and at his intervention she was sent to the hospital. During cross examination he has specifically stated that there was a salish and both he and Upa-Pradhan were present and at his intervention victim was sent to the hospital for treatment. This also found corroboration from PW6 and PW 10. 20. Pw13, Medical officer attached to the Labpur BPHC, has specifically stated that on June 5, 2000 at about 12.50 hrs he examined Fancy Mondal wife of Sukhdeb Mondal (P.W.2) and found 10 per cent superficial burn on the left side back of chest, back of left shoulder and back of left arm and the patient stated to him that she was set on fire by her husband by pouring kerosene oil on her person on that date in the morning. He also clearly stated that if the said fire had continued for a little more time there was every chance of death of the victim due to such burning. Thus, we find that the above statements of prosecution witnesses also found corroboration from medical report. 21. It is true that P.W.1, P.W.3, P.W.4, P.W.4 and P.W.5 are the relations of the victim but only because they are the parents, brother and uncle of the victim their specific averment on oath cannot be brushed aside and disbelieved. Moreover, investigating officer has duly given explanation for not examining any person of the village of the appellants. Defence by examining one RMP medical practitioner, uncle of appellant no.1 and other two villagers tried to prove that burning of the victim was accidental while preparing tea. They all have admitted that on the relevant date P.W.2 caught fire and the said fire was put off by D.W.2 at his house where she had rushed. The claim of DW1 that victim told him that she caught fire while preparing tea does not appear to be believable as he himself admitted that he did not note the same in the medical paper or anywhere else. The claim of DW1 that victim told him that she caught fire while preparing tea does not appear to be believable as he himself admitted that he did not note the same in the medical paper or anywhere else. So, it seems he has stated this on memory which is not expected from any doctor and that too after long period. Moreover, P.W.2 has clearly stated during cross-examination that she was not treated by D.W.2. The evidence of other defence witnesses that P.W.2 caught fire while preparing tea also do not appear to be believable in view of the statements of the victim and other prosecution witnesses more so of the doctor(P.W13) who treated the victim on the same day at 12.50 hrs. He clearly deposed that victim stated him that she was set on fire by her husband. He was even not challenged by the defence on that score. 22. Thus the evidence on record unerringly points towards the guilt of the appellant no. 1, Sukhdeb Mondal, in subjecting his wife (P.W.2) to cruelty during her stay at the matrimonial home and setting her on fire thereby causing burn injuries on her person which according to the doctor had it continued for some more time it would have been fatal. So, the intention was very much apparent to cause the death of the victim. The story of instigation by the appellant no.3 to appellant no.1 to assault P.W.1 as alleged by P.W.2 do not find corroboration from other witnesses. There is also no iota of evidence on record with regard to the involvement of appellant no.3 either with regard to subjecting the victim to cruelty or setting her on fire as alleged in the FIR. Learned Court below taking into account the entire circumstances and the evidence on record arrived at the conclusion that the evidence on record clearly point towards the guilt of the appellants in the commission of the offence under Sections 498A/307/34 IPC. We do not find any irregularity and/or illegality with regard to the above findings of the learned Court below in so far as the appellant no.1 is concerned. We do not find any irregularity and/or illegality with regard to the above findings of the learned Court below in so far as the appellant no.1 is concerned. But with regard to the findings of the learned court below towards the involvements of other appellants are concerned we find that the learned court below was not justified in holding them guilty of the offence alleged against them and as such, our interference with the impugned judgment is required on that score. Accordingly, we affirm the conviction and sentenced passed against the appellant no.1, Sukhdeb Mondal and set aside the conviction and sentence passed against the appellant no.3, Sumitra Mondal. She is acquitted from the charges framed against her and she be released from her bail bonds. 23. The appeal is, therefore, allowed in part. 24. Copy of this judgment along with the lower court records be sent down to the trial court for information and taking necessary action. 25. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. Jay Sengupta, J. : I agree.