JUDGMENT : JOYMALYA BAGCHI, J. 1. Appeal is directed against judgment and order dated 30.08.2019 passed by learned Additional Sessions Judge, Fast Track, 2nd Court, Jalpaiguri in Sessions Case No. 434 of 2013 (S.T. No. 08 of 2014) convicting the appellants for commission of offence punishable under Sections 302/304B/34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay a fine of Rs.1,00,000/- each, in default, to suffer rigorous imprisonment for six months more. 2. At the outset, it is submitted that appellant no. 3 viz. Anjali Roy has expired. Death certificate is already placed on record. Hence, the appeal so far as appellant no. 3 is concerned stands abated. Prosecution case: 3. Prosecution case as alleged against the appellants is to the effect that one Tanuka Roy Chakraborty married appellant no. 1 viz. Debasish Roy on 30.01.2010. Appellant no. 2 viz. Dulal Chandra Roy was her father-in-law. The couple resided at the matrimonial home with the in-laws. A girl child was born to the couple. Tanuka was subjected to mental and physical torture. After birth of girl child, torture increased upon Tanuka. On 12.03.2013 at around 7:00 A.M. Debasish informed father of Tanuka viz. Bimal Chakraborty (PW1) that she had died. Hearing the news Bimal with his wife, son and others came to Jalpaiguri Sadar hospital and saw her dead body Tanuka. 4. Thereafter, he lodged written complaint against Debasish and his parents viz. Dulal Chandra Roy and Anjali Roy resulting in registration of Kotwali Police Station Case No. 357 of 2013 dated 12.03.2013 under Sections 498A/302/34 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed. 5. Charges were framed under Sections 302/304B/34 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried. In course of trial, prosecution examined 20 witnesses and exhibited a number of documents. 6. In conclusion of trial, learned trial Judge by the impugned judgment and order dated 30.08.2019 convicted and sentenced the appellants, as aforesaid. Arguments at the bar: 7. Learned Advocate for the appellants submits that the death of the victim has not been proved to be homicidal. Post-mortem doctor was not examined. Post-mortem report notes death was due to ante mortem burn injuries. Ante mortem burn injuries per se would not give rise to an inference of homicidal death. Arguments at the bar: 7. Learned Advocate for the appellants submits that the death of the victim has not been proved to be homicidal. Post-mortem doctor was not examined. Post-mortem report notes death was due to ante mortem burn injuries. Ante mortem burn injuries per se would not give rise to an inference of homicidal death. Hence, prosecution case of murder has not been proved. On the issue of dowry death, it is argued in the FIR there is no reference to demand of dowry. De-facto complainant (PW1) even in court is completely silent with regard to torture over demand of dowry. Most of the witnesses embellished their versions in court and deposed the victim-housewife complained she had been subjected to torture over a demand of Rs. one lakh for construction of a kitchen. This insinuation is significantly absent in their earlier statements to police. Hence, torture over demand of dowry soon before the death has not been established. Accordingly, appellants are entitled to an order of acquittal. 8. Learned Additional Public Prosecutor along with Mr. Aniruddha Biswas for the State submits victim-housewife suffered burn injuries at her matrimonial home within three years of marriage. 7-8 days prior to the incident she came to her parental home and complained that her husband and in-laws had demanded Rs. one lakh for constructing a kitchen. Her parents noticed cigarette burn injuries on her hand which was caused by her husband. Torture on the victim-housewife for demand of dowry soon before her death is proved beyond doubt. Apart from burn injuries, the post-mortem report notes a haematoma on the head and lacerated injury in the abdomen of the deceased. Neighbours of the appellants viz. PWs. 7 & 8 found the body of the deceased lying in burnt condition in a room on the roof of the house. Appellants were present in the house. They did not explain how the victim had suffered burn injuries. These circumstances clearly establish the offence of murder. Prosecution evidence: 9. PWs. 1, 2, 3, 18 and 19 are the relations of the deceased. 10. PW1 (Bimal Chakraborty) is the father and de-facto complainant of the deceased. He stated his daughter Tanuka was married to Debasish. The couple resided happily for 3-4 months. Thereafter, she was subjected to torture. After birth of girl child, torture increased. 7-8 days prior to the incident, her daughter came to his house. 10. PW1 (Bimal Chakraborty) is the father and de-facto complainant of the deceased. He stated his daughter Tanuka was married to Debasish. The couple resided happily for 3-4 months. Thereafter, she was subjected to torture. After birth of girl child, torture increased. 7-8 days prior to the incident, her daughter came to his house. He found burn injuries in her hand. She stated Debasish had caused cigarette burn injuries. On 12.03.2013 Debasish informed him that his daughter had died. He along with his wife, son and others went to Jalpaiguri Sadar hospital and found the body of his daughter. Thereafter, he lodged written complaint which was scribed by Arindam Chowdhury (PW6). He proved his signature. He also signed on the inquest report. 11. PW2 (Kajal Chakraborty) is the mother of the deceased. She deposed torture increased upon Tanuka after birth of the child. 7-8 days prior to the incident, Tanuka came to her residence and stated that her husband had demanded Rs. one lakh. She noticed cigarette burn injuries on her body. Cross-examination of the witness shows the said witness had not disclose the demand of dowry and cigarette burns on her daughter to the Investigating Officer. 12. PW3 (Basanti Chakraborty) is the sister-in-law of the deceased. She deposed 7-8 days prior to the incident Tanuka came to their house and claimed her husband and father-in-law had demanded Rs. one lakh. However, during cross-examination, she denied making such statement to police. 13. PW4 (Smt. Maya Banerjee) is the neighbour of PW1. She stated she was present when Tanuka claimed accused persons had demanded Rs. one lakh for construction of kitchen. She was examined on 16.04.2013 i.e. more than a month after the incident. 14. PW5 (Smt. Kanan Das) is a family friend of the deceased. She deposed torture upon Tanuka increased after birth of the girl child. She also deposed 7-8 days prior to the incident husband and in-laws of Tanuka had demanded Rs. one lakh. In cross-examination, she stated she did not disclose this fact to others. 15. PW18 (Arnab Chakraborty) is the brother of Tanuka. He deposed that his sister was subjected to mental and physical torture. She had told his mother that the accuseds had demanded Rs. one lakh. He also deposed at the time of marriage they had given gifts and cash as per demand. 16. PW19 (Bijoy Ranjan Chakraborty) is the uncle of Tanuka. PW18 (Arnab Chakraborty) is the brother of Tanuka. He deposed that his sister was subjected to mental and physical torture. She had told his mother that the accuseds had demanded Rs. one lakh. He also deposed at the time of marriage they had given gifts and cash as per demand. 16. PW19 (Bijoy Ranjan Chakraborty) is the uncle of Tanuka. He stated that he heard about the incident from his brother Bimal and his wife. 17. PWs. 7, 8, 12, 14 and 16 are the neighbours of the appellants. 18. PW7 (Smt. Beauty Das) stated she used to hear quarrels in the house of the appellants. On the date of incident, she saw smoke coming from the roof. She went to the house and found the burnt body of Tanuka lying in a room. one head pillow, a jerricane containing kerosene oil and match stick was present. She did not find the walls of the room burnt. 19. PW8 (Rajashri Sharma) deposed there was matrimonial dispute between the couple. She corroborated PW7 with regard to the circumstances in which the body of Tanuka was found at the matrimonial home. 20. PW15 (Subhrojit Roy) has corroborated PWs. 7 and 8 with regard to the circumstances in which the dead body was found. 21. Other witnesses viz. PW12 (Gita Roy), PW13 (Sanju Mukherjee), PW14 (Atanu Talapatra) and PW16 (Rana Roy) did not support the prosecution case and were declared hostile. They however, deposed Tanuka was found with burn injuries in the house of the appellants. 22. PW17 (Arka Subhra Talapatra) is a relation of the appellants. He is a hearsay witness. He deposed he heard the appellants had killed Tanuka. 23. PW9 (Kamini Mohan Roy) is the ASI of police attached to Kotwali Police Station. He conducted inquest over the body of Tanuka. 24. PW11 (Partha Pratim Chatterjee) was posted as Deputy Magistrate, Jalpaiguri. He conducted magisterial inquest over the body. He deposed he found injuries on her body. 25. PW20 (Umesh Chandra Das) is the Investigating Officer. He proved the formal FIR (Ext. 9). He proceeded to the place of occurrence. He drew up the sketch map of the place of occurrence (Ext. 10). He recorded statements of witnesses. He seized a plastic jerricane containing kerosene oil under a seizure list (Ext. 7/1.) He arrested the accused persons. He collected the post-mortem report. He sent articles for forensic examination. 9). He proceeded to the place of occurrence. He drew up the sketch map of the place of occurrence (Ext. 10). He recorded statements of witnesses. He seized a plastic jerricane containing kerosene oil under a seizure list (Ext. 7/1.) He arrested the accused persons. He collected the post-mortem report. He sent articles for forensic examination. He submitted charge-sheet. Whether offence of murder is proved: 26. To establish the charge of murder it is incumbent on the prosecution to prove the victim had suffered homicidal death. Prosecution did not examine the post-mortem doctor. His report was exhibited on consent as Exhibit-8. In the post-mortem report, following injuries were noted: “(A) (i) 1st, 2nd degree burn injuries all over the scalp, face & neck except few areas at the posterior part of the scalp, (ii) 1st, 2nd degree burn injuries all around the both upper limb including the axilla. (iii) 1st, 2nd degree burn injuries all around the chest wall. (iv) 1st, 2nd degree burn injuries all around the upper half of the abdominal wall. (v) 1st, 2nd degree burn injuries over the lower abdomenjust above the symphysis pubis. (vi) 1st, 2nd degree burn injuries all around the Lt. Lower limb except foot. (vii) 1st, 2nd degree burn injuries anterior lateral aspect of Rt. Thigh, lower gluteal area & all around the leg. All the burn injuries are fresh & showing evidences of vital reactions and involve 90% body surface area. (B) 2” x 2” fresh ante mortem scalp haematoma over the frontal area. (C) Spindle shaped Peri-mortal laceration 1” x 3” x muscles placed transversely at lower anterior abdominal wall just 1” above the symphysis pubis margin of which are irregular without any evidence of bleeding. No other injuries except those noted above could be detected over body after careful examination and dissection. No foreign body detected.” He opined death was due to the effects of ante mortem burn injuries. 27. Learned Additional Public Prosecutor has referred to the injuries described as “B” and “C” in the post-mortem report. He contends the said injuries show the victim was assaulted prior to her death. He has also referred to the deposition of the neighbours viz. PWs. 7, 8 and 15 to impress that the dead body was found under suspicious circumstances which indicates the victim suffered homicidal death. He contends the said injuries show the victim was assaulted prior to her death. He has also referred to the deposition of the neighbours viz. PWs. 7, 8 and 15 to impress that the dead body was found under suspicious circumstances which indicates the victim suffered homicidal death. It is also argued adverse inference may be drawn as the appellants did not come out with explanation regarding cause of death. 28. I have considered the aforesaid submissions in the light of the evidence on record. Post-mortem doctor did not opine the burn injuries were homicidal. 29. It is true the post-mortem report notes two other injuries apart from the burn injuries. Scalp haematoma is noted over the frontal area and a lacerated injury is noted in the abdomen of the deceased. Post-mortem report does not state that the death was due to these injuries. Though these injuries may give an impression that the victim may have been assaulted prior to her death, the said injuries cannot be said to have caused death. Hence, the medical evidence does not establish the cause of death as homicidal. 30. Even the attending circumstances relied on by the prosecution do not unequivocally establish the burn injuries as homicidal. PWs. 7, 8 and 15 found the body of the deceased lying in a room on the roof of the house. A jerricane containing kerosene oil with match stick was found beside her body. The said articles were seized. These circumstances are ambivalent and do not rule out a case of suicide. It is also relevant to note the appellants went to the hospital and the husband immediately informed PW1 about the death of his daughter. Their conduct does not probabilise prosecution case of murder. 31. When the evidence on record does not establish the cause of death as homicide, onus cannot be shifted on the appellants to explain how the victim was murdered. 32. Hence, I am of the opinion the prosecution has failed to prove that the victim had suffered homicidal death. In absence of such evidence, charge under Section 302 IPC must necessarily fail. Dowry death whether proved: 33. Appellants have also been convicted under Section 304B IPC. Evidence on record shows that the victim suffered unnatural death due to burn injuries. Her death had occurred within seven years of marriage. In absence of such evidence, charge under Section 302 IPC must necessarily fail. Dowry death whether proved: 33. Appellants have also been convicted under Section 304B IPC. Evidence on record shows that the victim suffered unnatural death due to burn injuries. Her death had occurred within seven years of marriage. In the backdrop of the aforesaid proven facts, it is incumbent on the prosecution to prove that the appellants had subjected the housewife to torture over demands of dowry soon before her unnatural death. 34. Let me now examine whether the prosecution has discharged its burden beyond doubt. 35. FIR was registered by the father of the deceased (PW1). In the FIR, PW1 is silent with regard to demand of dowry or torture upon the housewife on such score. Even in court he did not state that the torture upon the housewife was over demand of dowry but other witnesses viz. PWs. 2, 3, 4, 5, 18 and 19 claimed 7-8 days prior to her death, the victim-housewife had come to her parental home and complained that the appellants had demanded Rs. one lakh for construction of kitchen. PWs. 1 and 2 noted cigarette burn injuries on her body which she stated was caused by her husband. 36. Learned Advocate for the defence strenuously argues these facts were stated for the first time in court. They are absent in the FIR or in the statements of witnesses before the police officer. While considering this plea one must not lose sight of the fact that the FIR was lodged by a distraught father. He had been informed about the unfortunate death of his daughter. Hearing the news he rushed to the hospital and saw her daughter lying dead. After discussion with other relations, he lodged the written complaint. Naturally he was not in a proper frame of mind to give graphic details with regard to the nature of torture. However, in court PW1 stated that her daughter had come to his residence 7-8 days prior to her death. He noted cigarette burn injuries on her body which she stated was caused by her husband. His evidence is corroborated by his wife (PW2) who also noted burn injuries on the hand of the victim. 37. PW2 claimed that her daughter told her that Debasish had demanded a sum of Rs. one lakh for construction of a kitchen. He noted cigarette burn injuries on her body which she stated was caused by her husband. His evidence is corroborated by his wife (PW2) who also noted burn injuries on the hand of the victim. 37. PW2 claimed that her daughter told her that Debasish had demanded a sum of Rs. one lakh for construction of a kitchen. It is contended the said witness did not state this to the police. Non-disclosure before a police officer may be for various reasons. It is common knowledge that the police officers record cryptic statements and leave out elaborate details. Crux of her evidence that her daughter came to her parental home 7-8 days prior to the incident and had burn injuries on her hand finds corroboration from the deposition of her husband (PW1). Demand of Rs. one lakh for construction of kitchen by the husband is corroborated by others viz. PWs. 3, 4, 5, 18 and 19. 38. In view of the aforesaid evidence, I am of the opinion prosecution case that the victim-housewife had come to her parental home 7-8 days prior to her death with cigarette burn injuries on her hand caused by her husband is proved beyond doubt. Demand by the appellant-husband is also consistently stated by all the witnesses in court. Hence, the prosecution case that appellant no. 1 viz. Debasish Roy had made a demand of Rs. one lakh for construction of a kitchen and subjected her to torture by stabbing lighted cigarette on her hand 7-8 days prior to the incident is proved beyond doubt. 39. Accordingly, offence under Section 304B IPC is established against appellant no. 1 viz. Debasish Roy. 40. However, evidence that appellant no. 2 viz. Dulal Ch. Roy i.e. father-in-law of the victim-housewife had subjected her to torture soon before her death is not forthcoming. As per PW1, the cigarette burn injuries were caused by Debasish and not by her father-in-law Dulal. It is also not clear whether the other injuries noted on the body of the deceased were caused by Dulal. 41. With regard to demand of Rs. one lakh, the prosecution evidence is not consistent so far as it relates to Dulal. Mother of the deceased (PW2) claimed that the money had been demanded only by the husband Debasish. It is true other witnesses tried to rope in all the in-laws in the demand. 41. With regard to demand of Rs. one lakh, the prosecution evidence is not consistent so far as it relates to Dulal. Mother of the deceased (PW2) claimed that the money had been demanded only by the husband Debasish. It is true other witnesses tried to rope in all the in-laws in the demand. In cases involving dowry death it is common knowledge that relations and friends of the deceased housewife out of overzealousness seek to exaggerate and rope in all the in-laws. Their evidence has to be shifted keeping such sentiment in mind. PW2 is the mother of the victim-housewife and the most reliable witness. It may be noted she is silent with regard to the demand of dowry by the father-in-law Dulal. 42. Hence, I am inclined to extend the benefit of doubt to the appellant no. 2 viz. Dulal Chandra Roy. 43. In the light of the aforesaid discussion, I acquit appellant nos.1 and 2 viz. Debasish Roy and Dulal Chandra Roy of the charge under Sections 302/34 IPC. 44. I convict appellant no. 1 viz. Debasish Roy for the offence punishable under Section 304B IPC but acquit appellant no. 2 viz. Dulal Chandra Roy of the said charge. 45. In view of the aforesaid, sentence imposed upon appellant no. 2 viz. Dulal Chandra Roy is set aside. 46. With regard to the sentence imposed upon appellant no. 1 viz. Debasish Roy, I am informed that Debasish had suffered incarceration for more than ten years. Evidence on record is unclear whether the victim-housewife suffered homicidal death. 47. Balancing the aggravating and mitigating factors, I modify the sentence imposed upon Debasish Roy and direct that he shall suffer rigorous imprisonment for the period already undergone and shall pay fine of Rs.1,00,000/- in default, to suffer rigorous imprisonment for six months more. 48. CRA No. 26 of 2019 is accordingly, disposed of. In view of disposal of the appeal, connected application being CRAN No. 1 of 2020 is also disposed of. 49. Bail bonds of appellant no. 2 viz. Dulal Chandra Roy shall be discharged after expiry of six months in terms of Section 437A of the Code of Criminal Procedure. 50. Lower court records along with a copy of this judgment be sent down at once to the learned trial Court for necessary action. 51. 49. Bail bonds of appellant no. 2 viz. Dulal Chandra Roy shall be discharged after expiry of six months in terms of Section 437A of the Code of Criminal Procedure. 50. Lower court records along with a copy of this judgment be sent down at once to the learned trial Court for necessary action. 51. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. I agree - Subhendu Samanta, J.