JUDGMENT :

1. Heard Mr. B. Chakraborty, learned counsel appearing on behalf of the appellants. Also heard Mr. K.K. Das, learned Addl. P.P. for the State of Assam.

2. This appeal is preferred to set at naught the judgment and order dated 12.04.2011 passed by the learned Additional Sessions Judge (FTC No. 1) in Sessions Case No. 114(K)/2008, convicting Giren Das, Pitambar Das and Smt. Ambabala Das, under Section 498(A) of the Indian Penal Code (IPC for short) and sentencing them to undergo rigorous imprisonment for 1(one) year and to pay a fine of Rs. 2,000/-with default clause and convicting them under Section 304(B) IPC and sentencing them to undergo rigorous imprisonment for 10(ten) years, without fine. The sentences are to run concurrently.

3. The genesis of the case was that the deceased Bhanumati Das was subjected to cruelty by Giren Das and his family members to meet their illegal demand of dowry. On the night of 08.03.2006, Bhanumati Das committed suicide and when the informant learnt about the incident, he went to the matrimonial house of his sister and learnt that Giren Das, Pitambar Das and Smt. Aambabala Das, committed murder of his sister.

4. The brother of the deceased Sri Ratan Das (hereinafter referred to as informant) lodged the FIR with the police at Palashbari P.S, and the FIR was registered as Palashbari P.S. Case No. 39/2006, under Section 120(B)/304(B) IPC and the Investigating Officer (I/O in short) embarked upon the investigation. On completion of investigation, charge-sheet under Sections 120(B)/498(A)/304(B)/306 IPC was laid against the accused Sri Giren Das, Sri Pitambar Das and Smt. Aambabla Das. The accused Sri Giren Das will hereinafter be referred to as A-1, Sri Pitambar Das as A-2 and Smt. Aambabala Das as A-3. On the commencement of trial, charges were framed by the trial Court under Sections 498(A)/304(B) IPC and the appellants abjured their guilt and claimed innocence.

5. To connect the appellants with the crime, the prosecution adduced the evidence of 7(seven) witnesses and the defence adduced the evidence of 2(two) witnesses to refute the charges. On the incriminating circumstances arising against them, the statements of the appellants were recorded under Section 313(1) (b) of the Code of Criminal Procedure (Cr.P.C for short) and their responses were recorded. Their answers were evasive.

6. The learned counsel for the appellant, Mr. U. Das, laid stress in his argument that the learned trial Court did not scrutinize the evidence carefully and the judgment and order is liable to be set aside. It has been conjectured that the victim was subjected to cruelty. The evidence of two defence witnesses Sri Pradip Kr. Das (DW-1) and Sri Bejoy Ch. Das (DW-2) were not taken into consideration while deciding the case. The judgment is erroneous because the trial Court observed that the accused did not tender any evidence in defence. This is a serious irregularity and the impugned judgment is liable to be set aside. The factum of cruelty is sine-qua-non to convict a person under Section 498(A)/304(B) IPC and the evidence is sans this essence of cruelty. The prosecution has failed to produce reliable independent witnesses and thus this case was not proved beyond reasonable doubt.

7. The question that falls for consideration is whether the trial Court erred in convicting the appellants under Section 304(B)/34 IPC. The learned counsel for the appellant relied on the decision of the Hon’ble Supreme Court in:-(i) Sanjiv Kumar Vs State of Punjab reported in (2009) 16 SCC 487, and on the decisions of this Court in, (ii) Kanu Debnath Vs. State of Tripura reported in (2012) (5) GLT 322, (iii) Gulzar Ali @ Gulzar Hussain Vs. State of Assam reported in 2013 (3) 437.

8. On the anvil of these submissions, I proceed to decide this appeal by re-appreciating the evidence.

9. The informant Sri Ratan Das testified as PW-1 that about 3/4 years ago, his sister Bhanumati eloped with A-1. Thereafter, after 15/20 days the villager