JUDGMENT : JOYMALYA BAGCHI, J. 1. The appeal is directed against the judgment and order of conviction dated 20.12.2012 and 21.12.2012 passed by the learned Additional Sessions Judge, Fast Track Court, Rampurhat, Birbhum, in Sessions Trial No. II of May, 2011 arising out of Sessions Case No. 35 of 2011 convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life each, and to pay fine of Rs. 5,000/- each, in default, to suffer rigorous imprisonment for 1 years each. 2. The prosecution case as alleged against the appellants and one Lal Sk. is to the effect that victim Najema Khatun was married to the appellant no. 1, Sukhchand Sk. @ Kamruzamman as per muslim rites 12 years prior to the incident. Najema resided with her husband at the matrimonial home along with appellant no. 2, Fatik Sk. @ Sirajul and appellant no. 3, Moina Bibi, her parents-in-law and one Lal Sk., her brother-in-law. She was subjected to mental and physical torture as she was dark complexioned and insufficient monies had been given to her husband and in-laws. Few days prior to the incident, Sukhchand Sk. tried to kill her by setting her on fire. From wedlock three children viz. two daughters and one son were born to the couple. On 22.06.2009 at 7P.M., P.W 7, Motiur Rahaman, father of the victim, received information over telephone that Sukhchand murdered his daughter by pressing her throat on the provocation of his family members. Over this issue, P.W. 7 lodged written complaint at Rampurhat P.S being Rampurhat Police Station Case No. 101 of 2009 dated 23.06.2009 under Sections 498(A)/302/34 of the Indian Penal Code. In conclusion of investigation, charge-sheet was filed against the appellants and one Lal Sk. and the case, being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Fast Track Court, Rampurhat, Birbhum, for trial and disposal. 3. Charges were framed under Sections 498(A)/302/34 of the Indian Penal Code against the appellants and one Lal Sk. They pleaded not guilty and claimed to be tried. 4. In course of trial, ten witnesses were examined by the prosecution. Defence of the accused persons is one of innocence and claimed to be tried. 5. 3. Charges were framed under Sections 498(A)/302/34 of the Indian Penal Code against the appellants and one Lal Sk. They pleaded not guilty and claimed to be tried. 4. In course of trial, ten witnesses were examined by the prosecution. Defence of the accused persons is one of innocence and claimed to be tried. 5. In conclusion of trial, learned Trial Judge by judgment and order dated 20.12.2012 and 21.12.2012 convicted and sentenced the appellants, as aforesaid. By the self-same judgment and order co-accused Lal Sk., however, was acquitted of the charges levelled against him. 6. Nobody appears for the appellants. Mr. Sur, learned Counsel is requested to appear as amicus curiae to assist the Court. He argued that there is no direct evidence that the appellants had committed the murder of the victim. Depositions of witnesses with regard to torture over demands of dowry are vague and omnibus in nature. There is nothing on record to show the appellants no. 2 and 3 provoked the appellant no. 1 to murder his wife. Said appellants stand on the same footing with co-accused Lal Sk. who has been acquitted by the trial court. Hence, the appeal ought to be allowed. 7. On the other hand, Mr. Maiti, learned Additional Public Prosecutor along with Ms. Mitra, learned Counsel appearing for the State argued that the victim was subjected to continuous torture by the appellants as she was dark complexioned and her family members failed to pay monies as demanded by the appellants. On the fateful day there was a quarrel between appellant no.1 and the victim and soon thereafter the victim was found dead with marks around her throat. P.W. 2, post mortem doctor, deposed that the victim had died due to manual strangulation. No explanation was offered by the appellants with regard to the homicidal death of the victim at her matrimonial home. Hence, the appeal is liable to be dismissed. 8. P.Ws. 5 and 7 are the parents of the victim housewife. 9. P.W. 5, Romela Bibi, is the mother of the victim. She deposed that the victim was married to Sukchand. Initially she was living comfortably but subsequently she was subjected to torture by the appellants as she was of dark complexioned and they could not pay more dowry. At the time of marriage six bhories of gold and cash of Rs. 45,000/- were paid. She deposed that the victim was married to Sukchand. Initially she was living comfortably but subsequently she was subjected to torture by the appellants as she was of dark complexioned and they could not pay more dowry. At the time of marriage six bhories of gold and cash of Rs. 45,000/- were paid. Najema reported the incident of torture on her. All the accused persons committed the murder of Najema on 5th Ashar. Utpal Khan (P.W. 1) her younger son-in-law was constructing the house of the accused persons at the time of the incident. He informed the incident to her husband over telephone. 10. P.W. 7, Motiur Rahaman, is the father of the victim and de-facto complainant in the instant case. He deposed that he gave money and gold ornaments at the time of marriage. The accused persons misbehaved with her daughter as she was not fair skinned. They demanded more dowry which he could not pay. As a result, she was tortured and murdered on 20th June, 2009. His younger son-in-law informed over telephone that Sukchand had killed his wife by strangulation in collaboration with other accused persons. He informed the incident to her daughter, Farida Begum (P.W.3), his wife (P.W.5) and his son, Mustakim Sk. (P.W.8). On the next day, he went to Rampurhat S. D. Hospital and identified the dead body of his daughter. Police conducted inquest over the body. He signed on the inquest report. He filed complaint at the police station which was scribed by P.W.4, Md. Enamul Haque. He proved his signature thereon. 11. P.W.3, Farida Begum, sister of the victim, P.W.8, Mustakim Sk., the brother of the victim and P.W.4, Md. Enamul Haque, a neighbour and scribe of the First Information Report have substantially corroborated the evidence of P.W.5 and P.W.7. 12. The most vital witness, however, is P.W.1, Utpal Khan, younger son-in-law of P.W.5 and P.W.7. He deposed that he was on visiting terms with the accused persons. He saw quarrels between Najema Khatun and her husband. Parents and brother of Sukchand used to advise him to divorce his wife Najema due to her dark compexion. Najema was murdered on 26.9.2009. He was working as mason in the house of the accused persons since 11.6.2009 and was also staying in their house. On 20.6.2009 at 4.00 P.M., Sukchand was present in the house and was assisting in mixing building materials. Najema was murdered on 26.9.2009. He was working as mason in the house of the accused persons since 11.6.2009 and was also staying in their house. On 20.6.2009 at 4.00 P.M., Sukchand was present in the house and was assisting in mixing building materials. He abused his wife in filthy language. His parents provoked him to kill her. He restrained them from doing so. After finishing work, he went out of the house. When he returned at 7.00 P.M., he found the dead body of Najema was lying on the varandah. He noticed mark on the neck of Najema. Sukchand and others failed to explain how she had died. The accused persons took the dead body of the victim to hospital. They did not inform the police and fled away. He informed P.W.7, Motiur Rahaman, father of the victim. Police conducted inquest over the dead body of the victim. He signed on the inquest report. 13. P.W.6, Subodh Mandal, an A.S.I. of Police, posted at Rampurhat Police Station, conducted inquest over the dead body of the victim. He proved the inquest report (Ext.1/1). He sent the dead body for post mortem examination. 14. P.W.2, Dr. Hiranmoy Ghosh, is the post mortem Doctor who held post mortem over the body of the victim. 15. He opined that the cause of death was due to strangulation and antemortem and homicidal in nature. 16. P.W.10, Atanu Mandal is the first investigating officer of the case. He went to the place of occurrence. He drew rough sketch map, Ext.8. He recorded statements of witnesses. He seized marriage certificate under a seizure list, Ext.2. Upon transfer, investigation was handed over to P.W.9 arrested the accused persons, collected post mortem and submitted charge sheet. 17. From the evidence on record it appears that the appellant no.1 was married to the victim Najema Khatun. The couple resided with the appellant Nos.2 and 3 and one Lal Sk. at the matrimonial home. From the wedlock, three children were born. On 20.6.2009, the victim suffered homicidal death at the matrimonial home due to manual strangulation. P.W.1 was working as a mason in the matrimonial home of the victim since 11.6.2009. He noticed a quarrel between appellant no.1 and the victim. Subsequently, after completion of work, he had gone out of the house and upon return to the house at 7.00 P.M., he found that the victim was lying dead. P.W.1 was working as a mason in the matrimonial home of the victim since 11.6.2009. He noticed a quarrel between appellant no.1 and the victim. Subsequently, after completion of work, he had gone out of the house and upon return to the house at 7.00 P.M., he found that the victim was lying dead. The appellants failed to give cogent explanation for the homicidal death of the victim housewife. Relying on the evidence of P.W.1, it has been argued that the appellant no.1 had killed the victim on the instigation of the appellant Nos.2 and 3. 18. I have scrutinised the evidence on record in great details. It appears that there was a quarrel between the appellant no.1 and the victim soon before the incident. Thereafter, the victim was found dead with marks of injury around her throat and it has been opined by the post mortem Doctor, P.W.2, Dr. Hiranmoy Ghosh that she suffered manual strangulation. The appellant no.1, her husband failed to give any explanation how the victim suffered homicidal death at the matrimonial home. The evidence of P.W.1 in this regard is corroborated by the evidence of other witnesses particularly P.W.7, the de-facto complainant in the instant case. 19. I am of the opinion that the aforesaid circumstances unerringly point to the appellant no.1 as one who had killed his wife by manual strangulation on the fateful day after having a quarrel with her. There is also evidence on record that she had been tortured on earlier occasions due to her dark complexion and on further demands of dowry. 20. Hence, I have no doubt in my mind that the conviction of the appellant under Section 498A and under Section 302 of the Indian Penal Code ought to be upheld. 21. Coming to the roles of the appellant Nos.2 and 3 in the instant case, I find that apart from vague and generic statements that they encouraged the appellant no.1 to murder his wife, there is no specific evidence with regard to the nature of extortion made by the said appellants. Nor any overt act has been attributed to them to aid the appellant no.1 in committing the murder. It is also important to note under similar circumstances, co-accused Lal Sk. had been acquitted by the trial judge. 22. Nor any overt act has been attributed to them to aid the appellant no.1 in committing the murder. It is also important to note under similar circumstances, co-accused Lal Sk. had been acquitted by the trial judge. 22. In the light of the aforesaid discussion casting doubt with regard to the roles of appellant Nos.2 and 3 in the crime, I am hesitant to come to a definite conclusion that they shared common intention with appellant no.1 to commit the murder of the housewife. 23. The case is based on circumstantial evidence. There is evidence on record that there was a quarrel between appellant no.1 and the victim immediately prior to the incident. Thereafter the victim was found murdered at her matrimonial home due to manual strangulation. The appellant no.1, husband failed to explain how she suffered homicidal death. The evidence on record, however, does not disclose any overt act played by appellant nos. 2 and 3 in the incident leading to the homicidal death of the victim. 24. Under such circumstances, to implicate the appellant nos.2 and 3 in the murder of the housewife would be wholly unjustified and contrary to law. 25. Accordingly, I am inclined to extend the benefit of doubt to the appellant Nos.2 and 3. 26. In view of the fact that appellant no. 1 had throttled the victim as would appear from the evidence on record, I am of the opinion that conviction of the said appellant for the offence under section 302 IPC simpliciter (without reframing the charge to that effect) would not cause prejudice to him nor would it occasion failure of justice in this case. 27. In the light of the aforesaid discussion, I uphold the conviction and sentence of the appellant no.1 for commission of offence punishable under Sections 498A/302 of the Indian Penal Code. Bail bond of the appellant no.1 is cancelled and he is directed to surrender before the court below forthwith, failing which the trial court shall take appropriate steps for execution of the sentence in accordance with law. 28. Conviction and sentence of the appellant Nos.2 and 3 are set aside. 29. Period of detention suffered by the appellant no. 1 during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure. 30. 28. Conviction and sentence of the appellant Nos.2 and 3 are set aside. 29. Period of detention suffered by the appellant no. 1 during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure. 30. The appellant nos.2 & 3 shall be discharged, if not wanted in any other case, from their bail bonds after expiry of a period of six months in terms of Section 437A of the Code of Criminal Procedure. 31. The appeal is allowed in part. 32. Copy of the judgment along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance. 33. I record my appreciation for the able assistance rendered by Mr. Madhusudan Sur, learned Advocate, as amicus curiae in disposing of the appeal. 34. Urgent photostat certified copy of the order, if applied for, be given to the parties on priority basis. I agree.