JUDGMENT : Pradeep Kumar Srivastava, J. Heard learned counsel appearing for appellants Mr. Gopal Krishna Sinha as well as learned Additional Public Prosecutor appearing for the State Mr. Manoj Kumar Mishra. 2. It is to be mentioned at the very outset that in Criminal Appeal (DB) No.690 of 2003, Appellant Sheikh Salimuddin @ Sk. Slim and Appellant 3. Both the appeals are arising from the common judgment passed in Sessions Trial No. 134/1990 by Ist Additional Sessions Judge, Fast Track Court, Garhwa dated 02 May, 2003 (arising out of Mazhiaon P.S. Case No. 36 of 1989) G.R. Case No. 307/1989) hence, taken together for hearing. FACTUAL MATRIX 4. Factual matrix giving rise to these appeals is that on 24.05.1989 at about 09:30 AM fardbeyan of one Sheikh Idris was recorded by Officer-In-Charge of Mazhiaon Police Station at village Adar stating inter alia that on 22.05.1989, informant had gone to matrimonial home of his sister Majloom Bibi (since deceased) for taking her 'Bidai', he requested for 'Bidai' of his sister from his brother-in-law (Sheikh Samimullah) and his father (Sheikh Sadique) because since last three years his sister has not been sent to her parental home. It is further alleged that informant's brother-in-law and father-in-law told that until the remaining amount as promised to be given at the time of marriage as dowry is not paid, they will not accede his request to send his sister (Mazlum Bibi) to her parental home. It is further alleged that just 15 days back informant's father had also gone to matrimonial home of Mazlum Bibi for taking 'Bidai', but the accused persons demanded Rs.4000/- from him and due to non-fulfillment of the same 'Bidai' was withheld. It is further alleged that prior to above incidents, the accused persons were given Rs.1000/- twice along with a cow, but were insisting upon their further demand. It is further alleged that on the next day i.e. on 23.05.1989, when informant was returning from his sister's matrimonial home, then she also started following him by saying that her life is in danger at her matrimonial home. In the meantime, Sheikh Salimuddin @ Sk. Slim (husband), Sheikh Samimullah, Sheikh Sadique, Naisha Bibi, Aliman Bibi also rushed outside and caught hold of his sister by hair, bow her down and dragged inside the house by assaulting her by means of fists and legs. In the meantime, Sheikh Salimuddin @ Sk. Slim (husband), Sheikh Samimullah, Sheikh Sadique, Naisha Bibi, Aliman Bibi also rushed outside and caught hold of his sister by hair, bow her down and dragged inside the house by assaulting her by means of fists and legs. It is further alleged that the brother-in-law (Sheikh Samimullah) of the informant assaulted his sister Mazlum Bibi by a Panza (An instrument used for weaving carpet) saying that "Sali Ka Kam Aj Tamam Kr denge''. The informant returned to his home due to fear and again along with witnesses Sheikh Kalamuddin (P.W.2), Sheikh Sarfuddin and Sadar Seikh Sukurullah (P.W.10) came back at about 09:00 PM in the night and saw his sister was lying dead on a cot. It is further alleged that due to night, the informant could not report about the incident to the police. He has claimed that his sister has been murdered by the accused persons due to non-fulfillment of dowry demand. 5. On the basis of above fardbeyan Majhiaon P.S. Case No. 36 of 1989, G.R. Case No. 307/1989 was registered for the offences under Section 302/34 of the I.P.C and Section 3/4 of the Dowry Prohibition Act. 6. The learned trial court after conclusion of trial held all the appellants guilty for the offence under Section 302/34 and sentenced to undergo imprisonment for life and further all the accused persons except Naisha Bibi held guilty for the offence under Section 3/4 of the Dowry Prohibition Act and have been sentenced to undergo R.I. for six months along with fine of the 500/- each. Both sentences are directed to run concurrently. 7. Assailing the impugned judgment of conviction and sentence of the appellants, it is submitted by learned counsel for the appellants that Aliman Bibi is Mother-in-law aged about 87 years and Naisa Bibi is Sister-in-law of the deceased aged about 68 years. The allegations against them are general and omnibus. There is no whisper in the First Information Report that these two appellants were instrumental in demanding money from the informant or his father or in any manner subjecting the deceased to cruelty. The allegations against them are general and omnibus. There is no whisper in the First Information Report that these two appellants were instrumental in demanding money from the informant or his father or in any manner subjecting the deceased to cruelty. The simple allegation against them was that when the deceased was following the informant to go her parental home without the permission of in-laws/ family members, she was brought into house by scolding and by giving some assault by fists and fats which is quite normal in a family. Therefore, conviction and sentence of these appellants with the aid of 34 of the I.P.C. is not warranted at all under law. It is further submitted that the only allegation of assault by a sharp instrument i.e. Panza which is commonly used in weaving carpets has been attributed against the appellant Sheikh Samimullah (Husband) along with father-in-law Shiekh Sidique (since deceased) and brother-in-law (Sheikh Salimullah). It is further submitted that the appellant Sheikh Salimuddin who happens to be the husband of the deceased (Cr. A (D.B.) No. 690 of 2003) has already undergone imprisonment for 14 years 09 months during the pendency of the trial and post-conviction and was released on bail vide order dated 26.03.2014 on account of custody more than 10 years. He has served the sentence including remissions about 18 years 09 months 10 days, therefore, appellant Sheikh Samimullah has also sufficiently been punished for his guilt. The offence does not fall under Section 302 of the I.P.C. rather it comes under Section 304 Part II as is apparent from genesis and manner of occurrence as depicted by sole eye-witness-cum-informant (Sk. Idrish) (P.W.9). Hence, appellant Sheikh Samimullah also deserves alteration of conviction and sentence from the offence under Sections 302 to 304 Part II of the I.P.C. and the sentence to the extent of imprisonment already undergone by him. 8. On the other hand learned A.P.P has vehemently argued that it is a clear cut case of murder. It is apparent from the evidence of P.W.9 informant who is eye-witness of the occurrence and other witnesses who have seen the deceased under injured condition as well as the post-mortem report of the deceased that there was ligature mark on her neck apart from 09 sharp cut injuries caused to deceased. It is apparent from the evidence of P.W.9 informant who is eye-witness of the occurrence and other witnesses who have seen the deceased under injured condition as well as the post-mortem report of the deceased that there was ligature mark on her neck apart from 09 sharp cut injuries caused to deceased. The weapon used by the accused Sheikh Samimullah (i.e. Panza) was also seized in this case and has been proved by (P.W.7) Dr. Ranjan Kumar Pandey that the same was used in inflicting injuries to the deceased in indiscriminating manner. The cause of death has been opined to be asphyxia due to strangulation. Therefore, there is no doubt that the appellant Sheikh Samimullah has intentionally caused murder of his wife which has been well proved by the prosecution beyond all reasonable doubt. The offence cannot be altered under Section 304 Part II of the I.P.C. The appellant has been awarded sentence to undergo R.I. for life, therefore, the imprisonment already undergone by him cannot be equated with imprisonment for life as such this appeal has no merits which is fit to be dismissed. 9. We have gone through the record of the case along with impugned judgment and order in the light of contentions raised on behalf of both side. 10. The only point for consideration in this appeal is that "as to whether the conviction and sentence of the appellants for the offence under Section 302/34 of the I.PC. suffers from any error of law calling for any interference in this appeal?" 11. Before imparting our verdict on the above point we have to apprise and evaluate oral as well as documentary evidence led by the prosecution. 12. It appears that altogether 10 witnesses were examined by the prosecution to substantiate the charge leveled against the appellants. Out of them P.W.1 A.S.I. Shrikant Sharma is a formal witness and simply proved signature and the handwriting of the then S.I. Bangali Singh over the formal F.I.R. (Exhibit-1). P.W.2 Sheikh Kalamuddin has deposed that on 23.05.1989 Sheikh Idris (P.W.9) met him and told that he has returned from his sister's matrimonial home where his sister has been assaulted by her husband and other in- laws/family members namely Sheikh Samimullah (husband), Sheikh Salimuddin @ Sk. Slim (brother-in-law), Sheikh Sadique (father-in-law), Naisha Bibi (Sister-in-law), Aliman Bibi (Mother-in-law). P.W.2 Sheikh Kalamuddin has deposed that on 23.05.1989 Sheikh Idris (P.W.9) met him and told that he has returned from his sister's matrimonial home where his sister has been assaulted by her husband and other in- laws/family members namely Sheikh Samimullah (husband), Sheikh Salimuddin @ Sk. Slim (brother-in-law), Sheikh Sadique (father-in-law), Naisha Bibi (Sister-in-law), Aliman Bibi (Mother-in-law). The accused persons were demanding Rs.4000/- and were also not ready to send the deceased to her parental home in spite of lapse of three years. He was also informant that Rs.2000/- were given after some interval, but the accused persons were not satisfied. This witness alongwith Sheikh Idris, Sheikh Akhtar, Sarfuddin and Sheikh Sukurullah went to village Banzari from where he was also accompanied with Shiekh Sakarullah who was the Sadar of the village and proceeded to village Adar and met with village Mukhiya Sheikh Safi and then went to matrimonial home of the sister of Sheikh Idris where they saw the dead body of Majloom Bibi. Her mother-in-law and father-in-law were also present. They also noticed mark of injuries on neck, cut injuries on several parts of the body of the deceased. Thereafter, they went to police station and case was lodged. In his cross-examination, this witness admits that he is cousin of the informant. P.W.3 Sheikh Safique has been declared hostile by the prosecution and also denied any statement before police and Magistrate. He has also denied his signature on seizure list of iron Panza. P.W.4 Shiekh Nizamuddin has been declared hostile by the prosecution and admitted his signature on statement under Section 164 of the Cr.P.C. as Exhibit-2, and on seizure list marked as Exhibit-2/1. P.W.5 Saryu Bhuiyan is also a witness of seizure list but declared hostile by the prosecution and denied his thumb impression over any seizure list. P.W.6 Mohammad Kamruddin has also been declared hostile by the prosecution, but proved his signature on blood stained Saree piece and Saya which is marked as Exhibit-2/2, but denied the aforesaid recovery in his presence. P.W.7 Dr. Ranjan Kumar Pandey has conducted autopsy on the dead body of the deceased (Majloom Bibi) aged about 25 years, wife of Sheikh Samimullah and found following ante-mortem injuries: The body was average built, swollen and foul smelling. Few blebs were present at places. Blood mixed froth was coming from mouth and nostril. Eyes were closed right eye lid ecchymosed. Ranjan Kumar Pandey has conducted autopsy on the dead body of the deceased (Majloom Bibi) aged about 25 years, wife of Sheikh Samimullah and found following ante-mortem injuries: The body was average built, swollen and foul smelling. Few blebs were present at places. Blood mixed froth was coming from mouth and nostril. Eyes were closed right eye lid ecchymosed. Outer part of conjunctive of right eye was ecchymosed. Pupils were dilated. Nails were blue. Rigor mortis were present in the lower limbs. Following ante-mortem injuries were found on the dead body. (i) One ligature mark around the neck in its lower part 1. 1/2" broad in the right side of the neck and 1" broad in the left side of the neck. The ligature mark was faint with front and blackish in colour. The mark was abraded at places. Muscles and subcutaneous lesion underlying the ligature mark was ecchymosed. Muscle and subcutaneous lissome of the upper part of the front of the chest was also ecchymosed. (ii) Semilunar 1" long scratch on the front part of the middle part of the right forehead. (iii) Six scar marks of the seizes varying from 1/4" to 1" long on the middle of the back of left forearm. (iv) Ecchymosis 2" X 1" on the lower part of the left forearm with fracture of the underlying ulna bone. (v) Ecchymosis 2" X 1.1/4" on the lower part of the back of left arm and adjoining part of left elbow swollen. (vi) Ecchymosis 2" x 1.1/2" on the left mastoid region just behind the pinna of left ear. (vii) Ecchymosis 3/4" X ½" on the outer part of left eyebrow. (viii) Right upper and lower eye lids ecchymosis. Injury No.(ii) and (iii) were caused by hard and blunt pointed object may be finger nails and injury no. (iv) and (viii) were caused by hard and blunt substances may be fists and kicks. Injury no. (i) strangulation might have been caused by rope or piece of cloth. It is opined that the death was caused by asphyxia due to strangulation. Time elapsed since death was 12 to 36 hours at the time of examination. P.W.8 Aziz Khan is a constable and formal witness who has proved the fardbeyan of the informant in the handwriting of S.I. Ranjit Oraon which is marked as (Exhibit-4). P.W.9 Shiekh Idris is the informant-cum-sole eye witness of this case. Time elapsed since death was 12 to 36 hours at the time of examination. P.W.8 Aziz Khan is a constable and formal witness who has proved the fardbeyan of the informant in the handwriting of S.I. Ranjit Oraon which is marked as (Exhibit-4). P.W.9 Shiekh Idris is the informant-cum-sole eye witness of this case. According to his evidence on 23.05.1989, he had gone to village Adar at the matrimonial home of his sister Majloom Bibi for taking her 'Bidai'. His sister was not being sent to his paternal home since last three years due to non-payment of Rs.4000/- arrears of dowry agreed to be paid at the time of marriage. He was not having money, but assured that he will fulfill the demand of his brother-in-law and in-laws of his sister. He has further deposed that his sister disclosed that she is apprehending danger to her life at the instance of her husband and in-laws family members. This witness further assured to accused persons to pay the aforesaid demanded money after harvesting the crops. He slept in the night at his sister's matrimonial home and in the morning when he started proceeding to his home, then his sister also accompanied him because she was apprehending her murder at the instance of her husband and in-laws family members. When his sister was accompanying him and came outside of the house, then Sheikh Samimullah (husband), Sheikh Salimuddin @ Sk. Slim (husband), Sheikh Sadique, Naisha Bibi, Aliman Bibi surrounded his sister and his brother-in-law having an iron Panza (an instrument for weaving carpets) and Sheikh Salimuddin (brother-in- law) bearing iron-rod and Sheikh Sadique having lathi started assaulting to his sister. He has further deposed that his brother-in-law (Samimullah) given Panza blow to his sister near left eye and back and also strangulated his neck. Sheikh Salim assaulted by iron rod on left hand and Sheikh Sadique (father-in-law) gave 3 – 4 lathi blows. Mother-in- law and sister-in-law were dragging by hair by assaulting fist and fats. He has further deposed that his brother-in-law (Samimullah) given Panza blow to his sister near left eye and back and also strangulated his neck. Sheikh Salim assaulted by iron rod on left hand and Sheikh Sadique (father-in-law) gave 3 – 4 lathi blows. Mother-in- law and sister-in-law were dragging by hair by assaulting fist and fats. He has further deposed that upon protest by this witness, the accused persons also abused him in a filthy language and aim to assault him, then he fled away from there and informed about the occurrence to his parents and other nearby villagers and again returned to the house of accused persons along with Sheikh Kalamuddin, Sheikh Akhtar, Sheikh Sarfuddin and Sardar Safarullah and also met the Mukhiya of the Village, Adar and reached there in the night at about 09:00 to 10:00 PM. They saw the dead body of the Majloom Bibi lying in a room on a cot, but no family members were present. In the night, he stayed at the house of village Mukhiya and next day morning the information was given to the police. He has proved his signature on Fardbeyan. He has further deposed that the police arrived at the place of occurrence and seized iron Panza, iron rod, a piece of blood stained saree, blood stained saya, blood stained jumper from the house of the accused persons. He also admits that mother-in-law of the deceased was present in the house and other family members have been fled away. His sister was murdered by the accused persons in their house due to non-fulfillment of dowry demand. This witness has been croos-examined at length by the accused persons, but he has remained firm and nothing has been elicited to discredit or disbelieve his testimony. P.W.10 Sheikh Sukurullah has also deposed that on 22.05.1989, Idris came to his house at 09:00 PM and told that his sister is being assaulted by her husband, mother-in-law, father-in-law and sister-in-law and there is likelihood that she might have been killed, then this witness along with Panchayat Mukhiya Kabir and other persons went to the house of accused persons and reached there at about 09:30 PM. He saw dead body of sister of Idris lying on a cot in her matrimonial home. He also came to know from Idris that due to non-fulfillment of dowry demand his sister has been killed by the accused persons. He saw dead body of sister of Idris lying on a cot in her matrimonial home. He also came to know from Idris that due to non-fulfillment of dowry demand his sister has been killed by the accused persons. There is nothing in his cross-examination to disbelieve his aforesaid testimony rather he admits that in his presence no demand of dowry was made by the accused persons and assault was not given in his presence. 13. The case of defence is denial from occurrence and false implication. However, no oral or documentary evidence has been adduced by the defence. 14. We have given thoughtful consideration to overall aspects of the case and the materials available on record. It is obvious that except P.W.9 (informant) there is no eye-witness of the occurrence rather other witnesses namely P.W.2 (Sheikh Kalamuddin) and P.W.10 (Sheikh Sukurullah) have accompanied the informant (P.W.9) when he returned and communicated about the incident to these witnesses in the night and they again went to see the occurrence at the matrimonial home of Mazlum Bibi. We further find that P.W.9 (informant) as an eye-witness of the occurrence who went to the house of deceased for Bidai just one day prior to occurrence and stayed overnight there. All the occurrence took place in his presence including assault given to the deceased has not been rebutted in any manner by the defence in his cross-examination. There is no reason to disbelieve the testimony of sole eye-witness in this case. It also transpires that the severe injuries and strangulation has been caused by the appellant husband (Shiekh Samimullah) and there allegation of causing injuries by iron rod and lathi against the brother-in-law and father-in-law. The cause of death is also asphyxia due to strangulation. Therefore, role attributed against the appellants Naisa Bibi and Aliman Bibi in Cr.A.(DB) No. 689 of 2003 appears to be very general and omnibus that they were catching the hair of the deceased and assaulting by fits and fats. The cause of death is also asphyxia due to strangulation. Therefore, role attributed against the appellants Naisa Bibi and Aliman Bibi in Cr.A.(DB) No. 689 of 2003 appears to be very general and omnibus that they were catching the hair of the deceased and assaulting by fits and fats. Therefore, the role allegedly played by the appellants Naisa Bibi and Aliman Bibi is very minimal and may be exaggerated, therefore, we do not find concrete evidence against the appellants Naisa Bibi and Aliman Bibi to justify their conviction for the offence of murder with the aid of Section 34 of the I.P.C. Accordingly, conviction and sentence of the appellants in Naisa Bibi and Aliman Bibi in Cr.A.(DB) No. 689 of 2003 is hereby set aside and they are acquitted from the charges leveled against them. 15. Appellants Naisha Bibi and Aliman Bibi of Cr. A (D.B.) No. 689 of 2002 are on bail, hence they are discharged from their respective bail bonds and sureties are also discharged. 16. So far as the conviction and sentence of alive male appellant (brother-in-law) namely (Sheikh Samimullah) in Cr.A.(DB) No. 690 of 2003 is concerned, there is direct evidence that he had assaulted the deceased by iron Panza and also strangulated her neck which was the sole cause of death of the deceased. As per opinion of Dr. Ranjan Kumar Pandey (P.W.7) who had conducted post-mortem on the dead body of the de- ceased. The injuries so caused by this appellant were also found suffi- cient in the ordinary course of nature to cause death of the deceased. Therefore, by no stretch of imagination particularly, in view of genesis and manner of occurrence, it can be held that the appellant was not in- tending cause death of his wife or his act was unintentional. There is absence of any exceptional circumstance to bring the case under Sec- tion 304 Part I or II of I.P.C. i.e. Culpable Homicide not amounting to murder as defined under Section 299 of the I.P.C. 17. Although appellant has undergone imprisonment for some considerable term, but it cannot be equated to the imprisonment awarded to him which is rigorous imprisonment for life. It is also quite obvious that the appellant has not been given benefit of remission by the State Government under the prevailing provisions of law. Although appellant has undergone imprisonment for some considerable term, but it cannot be equated to the imprisonment awarded to him which is rigorous imprisonment for life. It is also quite obvious that the appellant has not been given benefit of remission by the State Government under the prevailing provisions of law. Therefore, we don't find any illegality or infirmity in the conviction and the sentence of the appellant for the offence under Section 302 of the I.P.C. which is hereby upheld and confirmed. 18. Accordingly, the appeal filed on behalf of appellant (husband) namely (Sheikh Samimullah) in Cr.A.(DB) No. 690 of 2003 is hereby dismissed. 19. In the result, the appeal filed by appellants Naisa Bibi and Aliman Bibi Cr.A.(DB) No. 689 of 2003 is Allowed. 20. The appeal filed on behalf of alive male appellant Sheikh Samimullah in Cr.A.(DB) No. 690 of 2003 is dismissed. 21. The appellant Sheikh Samimullah is directed to surrender before the concerned trial court within two months from the date of passing of this judgment to suffer the remaining sentence awarded to him. Failing which the concerned trial court shall take all coercive steps for his ar- rest and taking into custody and send him to suffer sentence awarded to him. 22. Pending I.As, if any stands disposed of. 23. Let a copy of this judgment along with trial court records be sent back to the court concerned for information and needful.