Judgment - Section 498A - Acquittal

Court: Gauhati High Court

Bench: JUSTICE U.B. Saha

Mrinal Kanti Roy Barman & Anr. Vs. State Of Tripura On 7 September 2009

Law Point:
Section 498a – Insufficient evidence to prove cruelty and demand of dowry — Conviction unsustainable. Mere allegation not enough to prove guilt in criminal case.

JUDGEMENT

1. The appellants are the husband and mother-in-law of the deceased Rumashree who received 100% burn injuries in the house of the appellants on 27.11.1992 and succumbed to her injuries on 30.11.1992 in the G.B. Hospital, Agartala. The learned Sessions Judge, South Tripura, Udaipur, camp at Agartala, after a full-dressed trial, convicted the appellant No. 1 Mrinal Roy Barman under Section 306, IPC and sentenced him to suffer Rl for ten years and to pay a fine of Rs. 5,000, in default, to suffer R.I. for two years and further convicted him under Section 498A of IPC and sentenced to suffer R.I. for two years and to pay a fine of Rs. 2,000, in default, to suffer R.I. for two years, and convicted the appellant No. 2 Swarnalata Roy Barman under Sections 498A and 306/34, IPC and sentenced to pay a fine of Rs. 10,000, in both sections, in default to suffer S.I. for three years vide judgment dated 27.3.1999 passed in Sessions Trial No. 53 (WT/A) of 1997 and Sessions Trial No. 100 (WT/A) of 1994. The sentences, so far appellant No. 1 is concerned, were to run concurrently. Aggrieved by, the appellants have filed the instant appeal under Section 374 read with Section 382, Cr.P.C. against the aforesaid judgment for setting aside the order of sentence dated 27.3.1999 and for acquittal of the accused appellants. It is to be mentioned here that the accused Indu Bhushan Roy Barman, the father in law of the deceased expired during the trial. Accordingly, the case so far it related to Indu Bhushan was struck off. The other accused Mridul Roy Barman, the elder brother of the appellant No. 1 was acquitted from the charges levelled against him as the learned Sessions Judge recorded that the evidence put forward by the prosecution found to have not proved in a manner which requires to be proved in criminal case. No State appeal against the acquittal of Mridul Kumar Roy Barman is pending.

2. Heard Mr. J.M. Chowdhury, learned Senior Counsel assisted by Mr. H. Debnath, learned Counsel for the accused-appellants and Mr. P.K. Biswas, learned Special Public Prosecutor as well as Mr. D. Sarkar, learned Public Prosecutor for the respondent State:

3. The prosecution case, in brief, is as follows:

One Shri Jyotirmoy Roy Barman (PW1) lodged a written complaint on 1.12.1992 to the Officer-in-Charge of West Agartala Police Station stating, inter alia, that on 27.11.1992 his daughter Rumashree Roy Barman, wife of the accused-appellant No. 1 was shifted to G.B. Hospital with 100% burn injuries for treatment and on 30.11.1992 at 0745 hours his daughter expired in G.B. Hospital. The complainant suspected some foul play behind the death of his daughter on the part of her husband (accused appellant No. 1) and other relations due to torture on his daughter and continuous instigation for committing suicide. He further alleged that after the marriage of his daughter with the accused-appellant No. 1 in the year 1987, his daughter was put under constant mental torture by her husband (the accused-appellant No. 1), her brother-in-law, father-in-law and mother-in-law. She did never get justice from her husband whenever she complained of ill torture from her in-laws. The complainant was of the firm view that his daughter was murdered by cold blood conspiracy by the members of the father-in-law’s house.

On receiving the complaint, the O/C, West Agartala Police Station treated the same as First Information Report and registered a case being West P.S. Case No. 3(12)92 under Sections 498(A)/306, IPC against the accused-appellants herein along with others. Initially, Shri Runu Dey, S.I. of Police (PW 13) was entrusted with the investigation of the case who investigated the case upto 31.12.1992 and thereafter Shri Apurba Krishna Banerjee, DSP,.CBI, SU, Calcutta (PW14) was given the charge of investigation of the case who after investigation submitted charge-sheet against the accused-appellants along with two others. Thereafter, the learned Chief Judicial Magistrate, West Tripura,

Agartala after taking cognizance of the offence under Sections 498A, 302, 306, IPC committed the case to the Court of Session for trial. A prima facie case having been established, charges under Sections 302/34, IPC were framed against accused-appellant No. 1, Mrinal Roy Barman and his brother Mridul Roy Barman. While charge under Sections 306/34, IPC was framed against the accused-appellant No. 1, charge under Sections 498A/120B, IPC was framed against all accused persons and charges were framed under Sections 306/114, IPC against accused Mridul, his father Indu Bhushan Roy Barman (since deceased) and his mother, Sarnalata Roy Barman, accused-appellant No. 2 herein to which they pleaded not guilty and claimed to be tried.

4. During trial, prosecution examined as many as 14 witnesses and exhibited some documents in support of their case, but the defence none and advanced a case of total denial.

5. Among the 14 prosecution witnesses, the learned Trial Court mainly relied on the evidence of PW 1 Jyotirmoy Roy Barman (informant as well as the father of the victim. PW2, Arabinda Roy Barman (brother of the victim), PW3, Smt. Ruchira Roy Barman (wife of victim’s elder brother), PW4, Shri Mrinal Kanti Chakraborty (neighbour of victim’s father). PW5 Smt. Pratima Roy Barman (mother of the victim), PW6, Shri Rupak Roy Barman (victim’s cousin) and PW 7, Shri Sukhamoy Ghosh (father of PW 3).

6. After recording the evidence of prosecution witnesses, the learned Trial Court examined the accused persons under Section 313 of the Code of Criminal Procedure wherein they pleaded innocence and specifically stated that all the allegations against them are false and they did never commit such a crime as alleged by the complainant. Thereafter, the learned Trial Court heard the learned Counsel for the parties and ultimately considering the evidences of prosecution witnesses and the submission of the learned Counsel of both sides, convicted and sentenced the present appellants by the impugned judgment as stated supra.

7. Mr. Chowdhury. learned Senior Counsel appearing for the accused-appellants contended that the learned Trial Court proceeded with the trial on mere ipse dixit of seven witnesses by the prosecution out of 14 to establish the case of alleged cruelty and harassment meted out by the accused-appellants to the victim without really there being any material to prove the guilt of the accused-appellants. He pointed out that as per explanation (a) and (b) of Section 498A of the IPC ‘cruelty’ has been defined which holds good for establishing the guilt under Section 306, IPC and in the instant case, except the fact that these witnesses orally stated that whenever the victim came to her parental house, she disclosed to them that her husband Mrinal and her brother-in-law, Mridul, father-in-law. Indu Bhushan and her mother-in-law, Sarnalata used to torture her for money and create pressure for bringing money from her father (PW1). She also disclosed that her brother-in-law took the leading part in creating such pressure and doing torture upon her and while Mridul used to torture her, her husband Mrinal, accused-appellant No. 1, her father-in-law and mother-in-law, accused-appellant No. 2 used to remain silent and say her that the decision of Mridul was final and they had nothing to do. In their statements, it is totally absent when and how the accused-appellants tortured her and demanded money. He also contended that from the entire evidence of prosecution witnesses, it appears that there was no unlawful demand by her mother-in-law, accused-appellant No. 2 and there is nothing in the evidence of PWs to show any overt act of accused-appellant No. 2 towards the victim which could hurt her except the alleged words ‘apaya’, ‘alaxmi’, ‘barren woman’, ‘unlucky’, etc., Furthermore, those statements are missing in the statements of the PWs made before the police. Therefore, the same cannot be treated as a valid evidence for arriving at a decision that the accused-appellant No. 2 prompted the victim to commit suicide. Hence, no case is made out under Section 498A, IPC against the accused-appellant No. 2.

8. He also contended that though in the FIR initially statement regarding physical torture upon the victim was there but subsequently that was scored out meaning thereby there was ho physical torture on the victim by the accused-appellants.

9. Now, there remains the allegation relating to mental torture. To brush aside the allegation of mental torture, Mr. Chowdhury referring to the statement of PW 5 submitted that the accused-appellant No. 1 and the victim led their married life for nine years and within this period there was no complaint to anybody including the police either by the victim or by any of her family members. For the first time, the story of demand of dowry was mentioned in the FIR, which proves, according to Mr. Chowdhury, that the story of demand of dowry is an afterthought. The said fact also establishes that there was no dispute between the victim and her in-laws including her husband, accused-appellant No. 1. According to him, the demand of dowry must be repeated one which will allegedly prompt the victim to commit suicide. He further placed reliance on the statement of PW 5 made in her cross-examination wherein though this witness initially stated that she stated to Darogababu that all the accused persons said her daugher ‘apaya’, ‘alaxmi’ and ‘barren lady’, but in subsequent stage she admitted that she did not state to Darogababu that all the accused persons, but stated only Mridul, who has already been acquitted by the learned Trial Court . Therefore, it can be easily said that the learned Trial Court disbelieved the statement of PW 5 so far the allegation of prosecution relating to ‘apaya’, ‘alaxmi’ and ‘barren lady’ is concerned and as such statements are mere improvement of the earlier statements. According to him, the learned Trial Court committed error in convicting the accused-appellants relying on the improved version of the prosecution witnesses which is deprecated by the Apex Court in Ashok Vishnu Davare v. State of Maharashtra, I (2004) DMC 354 (SC)=II (2004) SLT 204=(2004) 9 SCC 431. He again contended that the allegation of mental torture calling ‘apaya’, ‘alaxmi’and ‘barren lady’ has to be disbelieved as none of the neighbours of the in-laws of the victim was examined as witness for corroborating such evidence of mental torture. To prove that the accused-appellant No. 2 is in no way involved in the alleged offence, he contended that even if the evidence of prosecution is believed into to then also she is not responsible for the suicide committed by the victim as the allegations are not enough to prove that the alleged mental torture was of such nature that might force the victim to commit suicide.

10. He further contended that there is nothing available in the evidence of prosecution witnesses to show that since when the inmates of the in-law’s house of the victim started torturing her either for bringing money from her parents or for any other reason. Mere omnibus statement regarding demand of money does not ipso facto make out a case under Section 498A, IPC, prosecution is required to prove the overt acts attributed by the accused-appellants beyond reasonable doubt. In support of his aforesaid contention, he placed reliance on the decision of the Apex Court in Sakharam & Anr. v. State of Maharashtra, reported in (2003) 12 SCC 368.

11. He also contended that mere harassment of wife by her husband or in-laws due to dispute or difference without anything more pursuant to which if the wife commits suicide that will not attract Section 306, IPC.

12. His further contention is that the prosecution case should be disbelieved for non-examination of the vital witnesses like Anuradha, Dhiman Sinha on demand of dowry and Shri Bibhu Roy Barman, Smt. Banani Roy Barman and one Nilima Roy Barman; who is the full blood sister of PW 5, mother of the victim and a member of her (victim) in-law’s house on physical and mental torture. He submitted that the prosecution failed to examine one Pakhi, a close relative to whom PW5 allegedly narrated the distressed condition of her daughter. For non-examination of those witnesses, out of whom most are named in the charge sheet, the accused-appellants were deprived of from cross-examining them and such non-production and non-examination of those witnesses also creates a doubt in the prosecution case and the accused-appellants are also entitled to get the benefit of said doubt. In support of his aforesaid contention, Mr. Chowdhury placed reliance on the case of The State of U.P. & Anr. v. Jaggo @ Jagdish & Ors., reported in AIR 1971 SC 156, particularly para 16.

13. Learned Counsel further contended that the accused-appellant No. 1, Mrinal was not a party in the alleged offence, rather he tried to save the life of the victim which will be evident even from the statement of prosecution witnesses like the I/O of the case and from the findings of the learned Trial Court wherein the learned Trial Court held “all these facts lead me to think that accused Mrinal received bum injuries on alleged date and time while he made an attempt to save Rumasree when she was burning”. From the aforsaid fact also a reasonable person would considered that the accused-appellant No. 1 was not a party to the alleged incident of suicide of the victim, rather he tried to save the victim even in the last moment.

14. He contended that from scrutiny of the evidences of the prosecution witnesses, it appears that no case under Section 498A, IPC has been made out against the accused-appellants as there is nothing in the evidence of PWs that what amount was demanded by the accused-appellant No. 1. In absence of specific evidence regarding demand for dowry mere harassment and negligence to the victim itself would not constitute cruelty and if a case under Section 498A, IPC fails then the case under Section 306, IPC will automatically fail because there is absolutely no evidence of abatement of suicide. In support of the aforesaid submission, the case of Girdhar Shankar Tawade v. State of Maharashtra, reported in I (2002) DMC 780 (SC)=III (2002) SLT 447=(2002) 5 SCC 177, was relied on.

15. He also contended that even though there was no independent corroboration as required for establishing a case under Section 498A, IPC, i.e. demand of dowry, the learned Trial Court convicted the accused-appellants under Section 498A, IPC, which is liable to be set aside on the ground that when the learned Trial Court disbelieved one part of the prosecution case, yet believed other part of it. According to him, either a witness should be believed as a whole or should not be believed at all. Court cannot believe a witness for one purpose and disbelieve for another purpose.

16. Mr. Biswas while responding to the submission of Mr. Chowdhury, tried to prove the prosecution case contending, inter alia, that the torture on the victim was continuous and demand of dowry was also all along as would be evident from paragraphs 2 and 3 of the FIR wherein it is stated that in her in-law’s family, the victim was constantly subjected to mental torture by allmembers of that family and the elder-brother of the accused-appellant No. 1, namely, Mridul Roy Barman was having a habitual attitude to the victim as he was an unmarried fellow and spread poison in the minds of other members of the family and the victim did not receive any sympathy from her husband, accused-appellant No. 1 if she made any complaint against those ill treatments, rather he was a stern supporter of the ill treatment and misbehaviour by the members of his family, particularly the elder brother and parents. But the victim was reluctant to say anything about her life in the matrimonial house. Ultimately, she disclosed regarding the torture to the prosecution witnesses, particularly PWs 1, 3 and 5, which will be evident from the statement of PW 1 wherein he stated that victim Rumashree told him that her in-laws including Mrinal and Mridul used to abuse her in filthy language and used to call her “barren woman’’, “unlucky”, etc., Mr. Biswas further relied on the evidence of PW1 wherein this PW stated that Rumashree disclosed to him that the whole amount of her salary was kept with her husband Mrinal and she used to visit his (PW 1) house off and on. At that time she frequently took meals in his (PW1) house and also used to say that she left her in-law’s house for her school without taking meal.

17. Learned Counsel also contended that Mrinal, the accused-appellant No. 1 and other accused persons created pressure upon the victim to sell the landed property gifted to her by her father (PW1) just before 8/9 months of her death and as she did not agree to the said proposal she was tortured and her death was the result of such torture as would be evident from the evidence of PW1, father of the victim. It is also evident from the evidence of PW2 that Mrinal created pressure on the victim for money. He again contended that from the evidence of PW1, it is evident that Mrinal created mental pressure on the victim by demanding lump sum amount of money off and on and if she expressed her inability to satisfy the demand, she was pressurized to take money from the informant (PW 1) and those incidents were expressed by the victim as and when she visited the house of the informant and due to continuous cruel attitude and misbehaviour, she had to leave the house of her in-laws and was forced to stay in her parental house.

18. He also contended that she was abused by the in-laws including the mother-in-law, accused-appellant No. 2 by the words ‘apaya’, ‘alaxmi’ i.e. ‘barren lady’ and ‘unlucky’ as she had no issue from the wedlock and by using those words, the accused-appellant No. 2 tortured her mentally, which forced her to commit suicide.

19. He submitted that harassment and humiliation for insufficient dowry varies from case to case. There are many ways to express the demand of dowry. In the instant case, the accused-appellants said to be used a sophisticated one without using the word ‘dowry’. The Court has to take note of the behaviour of the in-laws to the victim Rumashree, which forced her to leave the in-law’s house and stay in the parental house and not only that even she refused to go back to her in-law’s house even on request and the fact of such ill treatment gets support from the evidence of prosecution witnesses, mainly of PWs 1, 2, 3 and 5, which are also corroborated by other PWs. He also contended that mere non-examination of the independent witnesses would not be a ground for disbelieving the entire prosecution case and the Court should not taken any adverse inference for such non-examination. In support of his aforesaid contention, he relied on the decision of Apex Court in State of West Bengal v. Orilal Jaiswal & Anr., reported in I (1994) DMC 138 (SC)=IV (1993) CCR 392 (SC)=AIR 1994 SC 1418, particularly para 13 wherein the Apex Court noted:

“As the Investigating Officer failed and neglected to examine the members of the family of the deceased at an early date, the learned Sessions Judge, in fairness, has not taken into consideration the evidences of the sister and other close relations of the deceased and has mainly relied on the evidence of the mother in basing his finding. Even if it is held that the deceased had complained to her mother only about the cruel treatment meted out to her we think that for a newly married woman her misfortune in the house of in-laws was not expected to be made public and confining to the mother was only natural. Coming to the observation of the High Court that the neighbours or the tenants have not been examined, it appears to us that in the facts of the case, no adverse inference can be drawn for such non-examination. The abuse and insult hurled on the daughter-in-law usually are not expected to be made public so that the neighbours may have occasions to criticise the improper conduct of the accused and hold them with disrespect and contempt. The High Court has expressed doubts about the genuineness of the case of physical torture and abuses made by the husband and the deceased for the absence of any independent evidence given by the neighbours and co-tenants about such physical assault or the abuses hurled on the wife by the accused. We have indicated that ordinarily it is not expected that physical torture or the abuses hurled on the wife by the husband and the mother-in-law should be made in such a way as to be noticed by the tenants living in the adjoining portions of the house.”

20. He contended that the victim was so tortured that she was not even willing to go back to her in-laws’ house as would be evident from the evidence of PWs 1, 3 and 5 that while she was asked to go back to her in-laws’ house on request of Shri Bibhu Roy Barman and his wife Smt. Banani Roy Barman after staying in her parental house for four months, she specifically made a statement, inter alia, that if she was sent back to that house, she would die. According to Mr. Biswas, her aforesaid statement indicates that the victim was always afraid of the torture in her in-law’s house.

21. He further contended that whenever she was asked about her condition in her in-laws’ house, she burst into tears and said “better not to ask anything about my life there. Please say something pleasant to my relief” and not only that even in the hospital also when she was in death bed she was repeatedly murmuring a few sentences like “they did not allow me to live, regular torture in the house of in-laws, give away my clothes to the poor”, etc., He submits that from the aforesaid statement of the victim also it is clear that she committed suicide due to mental torture made by her in-laws in demand of dowry.

22. In response to the point raised by the defence, inter alia, that delay in lodging FIR regarding the alleged offence itself is a ground for taking adverse inference against the prosecution case, learned Special Public Prosecutor contended that from the statement of PW 1, it is clearly evident that he was awfully busy with the treatment of his daughter (since deceased) and also was not mentally well on seeing his ailing daughter who was almost in the death bed and as such no exception can be taken to such conduct of filing the FIR after some delay. Court should have borne in mind that when PW 1 first, met with the police, he actually went to buy medicine, but then also he informed the condition of his daughter to the police, but due to heavy crowd he returned back. According to him, if. is the duty of the police officer to register FIR in terms of Section 154, Cr.P.C. if the allegations would give rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned and the same by itself does not take away the right of the competent officer to make any preliminary inquiry in a given case in order to find out as to whether the first information sought to be lodged had any substance or not. In support of his aforesaid contention, Mr. Biswas referred to the case of Rajinder Singh Katoch v. Chandigarh Administration & Ors., reported in IV (2007) DLT (Crl.) 330 (SC)=VIII (2007) SLT 584=144 (2007) DLT 241 (SC)=IV (2007) CCR 167 (SC)=AIR 2008 SC 178.

23. He also submitted that FIR need not be an encyclopedic one. It would be enough if in the said report the names of the accused persons and their overt acts are mentioned. If there are some omissions in the FIR on the part of the informant, Court has to consider for what reason that had happened and what was the physical and mental condition of the first informant. The Court has to see whether in the FIR, the first informant falsely implicated anybody and once the first information report is found to be truthful, the entire prosecution story should not be thrown away only because there are some omissions. In the instant case, according to him, the minor omission in the FIR as well as in the 161 statement of the witnesses were due to their physical and mental condition and not for any other reason. Hence, on the basis of their evidence a conviction can be made as the learned Trial Court rightly found them truthful witnesses. In support of his aforesaid contention, he relied upon the case of Animireddy Venkata Ramcma & Ors. v. Public Prosecutor, H.C. of A.P. reported in III (2008) SLT 40=II (2008) CCR 23 (SC)=II (2008) DLT (Crl.) 95 (SC)=AIR 2008 SC 1603.

24. Finally, Mr. Biswas contended that it is clear from the evidence of PWs 1, 2, 3 and 5 that the accused-appellants created mental torture on the victim, Rumashree continuously and also had made certain unlawful demand because of which she committed suicide. He also contended that once the unlawful demand is established, nothing more is required to be proved that pursuant to any demand there was any other action or overt act of cruelty and on the said basis when the learned Trial Court found the accused-appellants guilty, this appeal is liable to be dismissed.

25. In support of his contention that humiliating remarks like ‘apaya’, ‘alaxmi’, ‘baren woman’, ‘unlucky’, etc., made by the mother-in-law, appellant No. 2 herein was not only for not bearing a child by the deceased victim but also for not fulfillment of demand of dowry. Mr. Biswas placed reliance on the decision of the Apex Court in Baldev Krishan v. State of Punjab, reported in I (1997) CCR 203=(1997) 4 SCC 486.

26. As it appears from the submission of the learned Counsel for the parties the allegation against the appellants was mainly that the victim deceased was harassed by the members of her in-laws including her husband, appellant No. 1 as she failed to fulfil the demand of dowry as made by them and she could not bear a child for fulfilling their expectation. Hence, it is necessary firstly to consider what is the meaning of “cruelty” and “dowry” as well the meaning of “abetment” as there is also the allegation of abetment for suicide.

“Cruelty—By explanation (a) and (b) of Section 498A of IPC cruelty has been defined as—

(a) Any wilful 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; or

(b) Harassment of the women where such harassment is with a view of coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

‘Dowry’—Dos muliers. “Lat” otherwise called maritagium, or marriage goods/that which the wife brings to the husband in marriage. This word should not be founded with dower-Co. Litt 31. Wharton’s Law Lexicon. The definition of ‘dowry’ will also be available in Section 2 of the Dowry (Prohibition) Act, 1961. In common parlance, dowry means where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage.”

27. The case of Vikram Singh v. State of Rajasthan, reported in 2007 Cr.LJ 1622, discussed about the definition of dowry in Para Nos. 11, 12 and 13 and the same are reproduced hereinunder:

“11. In Satvir Singh v. State of Punjab, (2001) 8 SCC 633 : (2001) Cri.L.J. 4625), the Hon’ble Apex Court considered the definition of ‘dowry’ as defined under Section 2 of the Dowry Prohibition Act, 1961 with reference to the offence under Section 304B of the IPC, and held that it should be any property or valuable security given or agreed to be given in connection with the marriage. Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of ‘dowry’.

The relevant para No. 21 of the judgment reads as under—

“21. Thus, there are three occasions related to dowry. One is before the marriage, second is ‘at any time’ after the marriage. The third occasions may appear to be an unending period. But the crucial words are ‘in connection with the marriage of the said parties’. This means that giving or agreeing to give any property or valuable security by any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of ‘dowry’. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.”

12. In K. Prema S. Rao v. Ydla Srinivasa Rao, (2003) 1 SCC 217: (2003) Cri.L.J. 69, the Hon’ble Apex Court considered the definition of ‘dowry’ in the context of offence under Section 304A, lPC, along with Section 113B of the Evidence Act and held that one of the key ingredients of the offence is that deceased must have been subjected to cruelty and harassment ‘in connection with the demand for dowry’ shortly before her death. Para 16 of the judgment reads as under—

‘16. The evidence which has been found acceptable by the Court s below against accused 1 is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death ‘otherwise than under normal circumstances’. To attract the provisions of Section 304B, lPC, one of the main ingredients of the offence which is required to be established is that ‘Soon before her death’ she was subjected to cruelty and harassment ‘in connection with the demand for dowry’. There is no evidence on record to show that the land was demanded as dowry. It was given by the father to the deceased in marriage ritual as pasupukumkuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was ‘not in connection with any demand for dowry”]. One of the main ingredients of the offence of ‘demand of dowry’ being absent in this case, the High Court cannot be said to have committed any error in acquitting accused 1 for offence under Section 304B, lPC.

13. In Appasaheb & Anr. v. State of Maharashtra, 2007 (1) Crimes 110: (AIR 2007: SC 763) (SC), Their Lordships of the Hon’ble Supreme Court considered the similar point in the context of offence under Section 304B, IPC with the meaning of ‘dowry’ as defined under Section 2 of the Dowry Prohibition Act, 1961, and held that giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential . A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. Para 9 of the judgment reads as under—

‘9. Two essential ingredients of Section 304B, IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for ‘dowry’. The explanation appended to Sub-section (1) of Section 304B, IPC says that ‘dowry’ shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.’

Section 2 of Dowry Prohibition Act reads as under—

“2. Definition of ‘dowry’—In this Act ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly—

(a) By one party to a marriage to the other party to the marriage;

(b) By the parent of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies.’

In view of the aforesaid definition of the word ‘dowry’ any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of statute that if the act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. [see Union of India v. Garware Nylonds Ltd., AIR 1996 (SC) 3509, and Chemical and Fibres of India v. Union of India, AIR 1997 (SC) 558]. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not. Therefore, show that any demand for ‘dowry’ as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B, IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.”

28. In the case of Satvir Singh v. State of Punjab, reported in II (2001) DMC 734 (SC)=VI (2001) SLT 803=IV (2001) CCR 75 (SC)=(2001) Cr.LJ 4625, in para 21, the Apex Court also considered the definition of “dowry” as defined under Section 2 of the Dowry Prevention Act, 1961 with reference to Section 304B of the IPC as under:

“21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is ‘at any time’ after the marriage. The third occasions may appear to be an unending period. But the crucial words are ‘in connection with the marriage of the said parties’. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of ‘dowry’. Hence, the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.

29. Again, the definition of ‘dowry’ was considered by the Apex Court in the context of offence under Section 304A, IPC along with Section 113B of the Evidence Act in K. Prema S. Rao v. Yadla Srinivasa Rao, reported in II (2002) DMC 776 (SC)=VI (2002) SLT 168=IV (2002) CCR 286=(2003) Cr.LJ 69, wherein it is held that one of the key ingredients of the offence is that deceased must have been subjected to cruelty and harassment in connection with the demand for dowry shortly before her death.

30. In Appaasaheb & Anr. v. State of Maharashtra, reported in I (2007) DMC 143 (SC)=I (2007) SLT 188=I (2007) CCR 197 (SC)=I (2007) DLT (Crl.) 1 (SC)=AIR 2007 SC 763, the Supreme Court also discussed about the meaning of “dowry” as defined under Section 2 of the Dowry Prevention Act, 1961 and held that giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.

31. In Reema Aggarwal v. Anupam, I (2004) DMC 201 (SC)=I (2004) CCR 163 (SC)=I (2004) SLT 466=AIR 2004 SCW 344, the Apex Court discussed about the definition of term “dowry under Section 2 Of the Dowry Act, which is available in para 14 of the said judgment.

Para 14 is reproduced herein under:

“14. The definition of the term ‘dowry’ under Section 2 of the Dowry Act shows that any property or valuable security given or, ‘agreed to be given’ either directly or indirectly by one party to the marriage to the other party to the marriage ‘at or before or after the marriage’ as a ‘consideration for the niarriage of the said parties’ would become ‘dowry’ punishable under the Dowry Act. Property or valuable security so as to constitute ‘dowry’ within the meaning of the Dowry Act must, therefore, be given or demanded ‘as consideration for the marriage’.”

32. Further in para 18 of Reema Aggarwal (supra), the Apex Court dealt with the concept of dowry as well as the aim of the legislation introducing the provision of Section 498A as well as 304B, IPC. For better understanding para 18 of the aforesaid judgment is quoted herein under:

“18. The concept of ‘dowry’ is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498A and 304-B, IPC and Section 113B of the Indian Evidence Act, 1872 (for short the ‘Evidence Act’) were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take a shelter behind a smokescreen to contend that since there was no valid marriage the question of dowry does not arise? Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature ‘dowry’ does not have any magic charm written over it. It is that a level given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. Legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that Legislature which was conscious of the social stigma attached to children of valid and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given it would not further the legislative intent. On the contrary, it would be against the concerned shown by the Legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to ‘any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction’. It would be appropriate to construe the expression ‘husband’ to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B, IPC. Such an interpretation, known and recognized as purposive construction has come into play in a case of this nature. The absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as ‘husband’ is no ground to exclude them from the purview of Section 304B or 498A, IPC, viewed in the context of the very object and aim of the legislations introducing those provisions.”

33. The word “abetment” has been defined in Section 107, IPC as under:

“107. Abetment of a thing.—A person abets the doing of a thing, who—First—Instigates any person to do that thing; or

Secondly—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly—Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1— A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2— Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

34. In the case of Ramesh Kumar v. State of Chattisgarh, reported in II (2001) DMC 636 (SC)=VII (2001) SLT 356=IV (2001) CCR 178 (SC)=(2001) 9 SCC 618, the Apex Court discussed about words and phrases ‘instigation’ and noted that ‘instigation is to good, urge forward, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation”. Referring to the case of Orilal Jaiswal (supra), it is also noted that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide and if it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

35. Not to overburden this judgment, filtering out the statement of the witnesses, this Court is only reproducing the necessary statement of the witnesses to examine the charge levelled against the accused-appellants and come to a proper conclusion of the case.

36. PW 1 Sri Jyotirmoy Roy Barman is the father of the deceased Rumashree and the informant of the case. He stated in his deposition that his daughter Rumashree married the accused appellant by way of registration in the office of the Marriage Registrar, Agartala, against their will and he opposed the said marriage as the elder brother of the accused Mrinal, i.e. Kalyan Roy Barman married his sister-in-law, Nilima. Moreover, the deceased Rumashree was a science student, on the other hand, the accused Mrinal did not even pass the Higher Secondary examination. After the registration of her marriage, on a fateful night Rumashree left his house without his permission and she remained untraceable on that night. On the following day, he came to know that his daughter went to her husband’s (accused-appellant No. 1) house. He went there and consulted with the guardians of the accused-appellant No. 1/He proposed to perform a ceremonial marriage. Accordingly, the marriage ceremony was solemnized according to Hindu rites and customs in his house. He presented so many things, like Sofa Set, TV Set, gold ornaments, etc., to his daughter. But in that marriage, Indu Bhusan Roy Barman, the father of the accused-appellant No. 1 told him that if he (Indu Bhushan) could arrange social marriage of his son with other girl, then he would have got Rs. 50,000 to 1,00,000 as cash, but he gave him nothing. Unfortunately no ‘Boubhat’ ceremony of his daughter was performed. However, after 15 to 20 days when his daughter visited his house, he asked her as to why ‘Boubhat’ ceremony was not performed and she disclosed that as he paid nothing in cash to her husband Mrinal in the marriage, the Boubhat ceremony was not performed. She was weeping like anything at that time.

This witness further stated that during her (Rumashree) lifetime, her husband Mrinal, her brother-in-law, Mridul, mother-in-law, Sarnalata and father-in-law, Indu Bhushan used to torture her and create pressure upon her for bringing money from him. He also stated that deceased Rumashree used to keep her full amount of salary with her husband Mrinal and she told him that the accused-appellant No. 1 and Mridul used to abuse her in filthy language and used to call her barren woman. They abused her as such, for not bearing any child even after nine years of marriage. To fulfil the demands of Mrinal and his guardians and to maintain peace Rumashree often used to take money from his wife and pay the same to Mrinal and considering the future of his daughter, he refrained from lodging any complaint with the police. He further stated that on the day of Mahasasthi of Durga Puja, Bibhu Barman and Banani Barman who are Uncle and Aunty of Mrinal respectively, visited their house and told them that Rumashree is the wife of their family and she must visit and attend the Durga Puja which will be held in their house and she should remain present in their house at that time. But inspite of their request Rumashree declined to go to her husband’s house by saying that she will be killed if she returns. Then he told Banani that not only Mrinal but his elder brother Mridul also used to torture upon Rumashree and also assaulted her. And there was no talking terms between the mother of Mrinal, appellant No. 2, and his daughter Rumashree during the last 2/3 years as her mother in law used to call her barren woman, unlucky and behaved with her in an unusual manner. Hearing the same, Banani told him that she will take initiative so that no more mental or physical torture will be drawn upon her and as such they allowed Rumashree to go with them. Relying upon their assurance and considering that Durga Puja is a traditional family festival of Rumashree’s father in law’s house, he advised Rumashree to return to her husband’s house and made attempt so that she might return. Later, on 26.11.1992 i.e. on the night of Laxmi Purnima, she came to his house. Before 26.11.1992 Rumashree visited his house at Shibnagar and stayed there for about four months as because her life in the house of her in-laws was unbearable and mental and physical torture was done upon her on the issue of selling the gifted land and finding no other alternative she took shelter in his house. While Rumashree was staying in his house he advised her to go back to her husband’s house but she refused to go there saying that if she returned to her in-law’s house she might be killed by her in-laws, as she apprehended so.

He also stated that prior to the death of Rumashree, he executed a deed of gift for 4½ (four and half) gandas of Bhiti land but, the execution of the gift deed in the name of his daughter Rumashree became a curse as because her husband and other in-laws created pressure on her to sell the said gifted property to give them the sale proceedings it But his daughter declined to do so. As a result cruelty and torture was increased on her to a great extent for not selling the gifted property.

This, witness further stated that on 27.11.1992, Friday, at about 10.30 a.m. Rupak Barman of Khajanchibari (PW 6), a relative of Mrinal Barman came to his house with a vehicle and told him to take his seat in the vehicle hurriedly and while he asked him as to what happened, Rupak apprised him that his daughter had been severely injured by bursting of a kerosene stove. Hearing this, his wife started crying and saying that somebody set fire on the body of Rumashree. Thereafter he along with his wife and Rupak and one Mrinal Chakraborty (PW 4) of his locality rushed to G.B. Hospital and found Rumashree lying with burn injuries in the hospital. On query Rumashree cried out saying, “they did not allow me to live”. He also found several nurses attending his injured daughter Rumashree. At that time one nurse told him to bring medicine quickly. After purchasing medicine when he went to Rumashree, he found his daughter in law, Ruchira Roy Barman (PW 3) and his wife Pratima Roy Barman (PW 5). On being asked by him, his wife told that Rumashree told them that “they did not permit me to live”. On reaching GB. Hospital he did not find any member of the Khajanchibari, i.e. in laws’ house of Rumashree except Banani Barman. When he asked about how the alleged incident of 100% burn injuries were caused to Rumashree, Banani replied, in presence of several others of Shibnagar, i.e. of the locality of PW 1 that it was not the case of stove bursting, and she also stated that in laws of Rumashree set fire on her person and she (Banani) on hearing cry of Rumashree, rushed to the door of the room and found that the room was closed and by pushing it she (Banani) entered into the room and found that Rumashree was burning and also found Mrinal, Mridul, Indu Bhushan and Swarnalata there. He also stated that, he found Mrinal, husband of Rumashree in the ground floor with some medicine in his both hands but Mrinal did not go near Rumashree.

He also stated that while he went to Agartala town with Mrinal Chakraborty for purchasing medicine he visited West Agartala PS at about 8.00-8.30 p.m. and he found that the police station was over crowded and seeing this he simply informed a Police Officer about the alleged incident and also informed that Rumashree was admitted in GB. Hospital with burn injuries.

In his cross he stated that the daughter of Alokmoy Dutta namely, Anuradha Dutta, a Lecturer of college and her husband Dhiman Sinha, Professor resided in his house as a tenant since six months of the date of occurrence and another person namely, Nikhil Mitra by profession a teacher was residing in his house since last 6/7 years with his family including children. In the lifetime of Rumashree she was very much loved by Anuradha and his husband Dhiman Sinha. He also stated in his cross, that in his statement dated 50.11.1992 recorded by the police under Section 161, Cr.P.C. he did not mention that accused Indu Bhushan, accused Smt. Sarnalata, Kalyan Roy Barman, Nilima Roy Barman, Debojyoti Roy Barman, Muniya Roy Barman, Babli Roy Barman and Manisha Roy Barman also used to torture physically and mentally upon his daughter Rumashree since her marriage and up to 27.11.1992 but in the last line of the said statement dated 50.11.1992 he mentioned that he will supply information to the effect that father and mother of Mrinal Barman are also involved with the death of Rumashree. He also stated in his cross that his Ejahar does not include the types of mental and physical torture done upon Rumashree by her elder brother-in-law Mridul nd father-in-law Indu Bhushan. Not only that, in his cross he also stated that he did not witness the alleged incident on 27.11.1992 and did not mention in the Ejahar from whom he came to learn about the alleged occurrence occurred between 8.30 and 9.00 a.m. In his cross he also stated that he did not make any statement to the police on 27.11.1992 and 50.11.1992 to the effect that accused Mrinal used to demand lump sum amount of money from his daughter Rumashree and it was also not disclosed in his statement to the police that Mrinal frequently demanded lump sum amount of money from his daughter Rumashree and if she had no money then to take money from him and to pay to Mrinal. He also stated in his cross that he did not mention in his Ejahar by giving example about the ill-treatment on her daughter by Mridul Roy Barman. He also stated in his cross that before the alleged incident he enquired about the ill -treatment on her daughter by the members of the Khajanchibari namely, Sadhana Roy Barman. He also stated in his cross that he did not state to the police on 30.11.1992 while recording his statement under Section 161, Cr.P.C. that Banani with her husband Bibhu Roy Barman gave him assurance while taking Rumashree to their house that no torture will be done on her and considering the assurance given by Banani and her husband he sent his daughter during Durga Puja to her in-laws’ house. In his cross he also stated that he did not disclose to the police on 30.11.1992 that he enquired about the burn injuries of his daughter from Banani and he did not ask Mrinal on 27.11.1992 how he and his daughter received burn injuries. More so, he specifically stated in his cross that he did not disclose to any one that Banani made a statement to him that accused persons set fire on Rumashree. He also stated in his cross that he did not make any attempt to know who brought Rumashree to the G.B. Hospital. He also did not disclose to any body that Mrinal and Mridul used to call his daughter barren woman. In his Ejahar he did not mention that to maintain peace in the family of her husband, Rumashree used to take money from his wife (mother of Rumashree) to pay the same to the accused Mrinal. He denied to justify as to why he did not inform the relatives about the aforesaid facts of torture on his daughter but during the lifetime of Rumashree he informed his relatives that Rumashree used to take money from him to pay to the accused persons and he also disclosed the names of those persons to the police officer to whom he disclosed this fact but he did not mention the names of those persons in his Ejahar or statement to the police dated 27.11.1992 and 30.11.1992.

37. PW 2 Arabinda Roy Barman is the brother of deceased Rumashree. Admittedly he is not an eye witness to the incident. He has written the Ejahar lodged by his father (PW 1) as dictated by him (PW1) in Bengali and the same was translated into English by his father-in-law, Prof. Sukhamoy Ghosh (P W 7). He has stated that on the day of the alleged incident, he was at Vanghmun in North Tripura .District in connection with his official duties. On receiving the information about the alleged incident, he came to Agartala on 28.11.1992 and rushed to GB. Hospital where he found Rumashree lying unconscious with burn injuries. He came to know from his parents, PWs 1 and 5. respectively and his wife (PW 3),that Rumashree told them that/they did not allow her to live. This witness also narrated the happenings owing to the marriage of Rumashree with accused appellant No. 1. He further stated that Rumashree disclosed that her father-in-law used to torture her mentally by rebuking her as alaxmi, apaya, etc., and he several times requested her brother-in-law Mrinal to look into the matter. But in spite of his such request, Mrinal always used to keep himself mum, rather he was supporting such mental torture upon Rumashree. He further stated that the accused persons used to do mental torture for bringing money from his father and also for not giving birth a child by Rumashree.

This witness corroborated the evidence of P W 1, inter alia, that about six months prior to the death of Rumashree, his father (PW 1) gave her a plot of land by executing a gift deed in her name and knowing this, the accused persons created pressure on her for selling the said plot of land. She disagreed to do so which was the other reason for causing mental torture upon her by the accused persons. This witness went on to state that he learnt from Rumashree that she was not provided with proper meal at the time of going to her school from the matrimonial home. As a result, she was compelled to leave her matrimonial home and come to their house. She stayed in their house for about 4/5 months despite their attempts to send her back to her matrimonial house. Subsequently, on the request of Banani Barman and Bibhu Barman on the eve of Durga Puja in 1992, Rumashree went to her matrimonial home. Banani Barman assured them that no further torture would be caused on her by her in-laws. He further stated that while Rumashree was in the hospital, he has not found any of the accused persons except accused Mrinal who was admitted in a separate ward in the same hospital.

In his cross he stated that after 6/7 months of marriage of Rumashree, he heard that trouble started in her conjugal life. He further stated that he did not make any statement to the Investigating Officer that at the instance of Mridul Barman the whole family of Indu Bhushan Roy Barman went against Rumashree and after 3/4 years of her marriage the situation turned worse and he told Mrinal that he was shocked when he heard that inmates of the house of her father in law rebuked her by saying Alaxmi, Apaya, etc., He also did not disclose to the Investigating Officer that though he requested Mrinal to look into the matter. Mrinal always kept himself mum, rather practically he found that Mrinal was supporting such mental and physical torture upon Rumashree and Rumashree narrated the story of mental torture upon her to his parents. He further stated that he made no statement to the Investigating Officer that accused Mrinal, Indu Bhushan, Swamalata rebuked Rumashree as she could not give birth to a child and accused Mridul also rebuked her for not being the mother of a child and the other three accused supported him. He also did not make any statement to the Investigating Officer, inter alia, that accused Mridul, Indu Bhushan, Sarnalata created pressure upon Rumashree to sell the land gifted to her by her father and on the date prior to the incident Rumashree visited their house and told his father “better not to ask anything about the situation of her matrimonial home and to change the topic”. He stated to the Investigating Officer that Banani Barman and Bibhu Barman assured them and Rumashree that no more torture will be done upon her and on their request she returned to her matrimonial house. He further deposed that he stated to Investigating Officer that he came to learn from Rumashree that accused Mrinal created pressure on her for money.

38. P W 3 Ruchira Roy Barman is the sister in law of deceased Rumashree. In her statement, she said that she heard regarding the incident of burn injuries on 27.11.1992 at about 9.15/9.20 a.m.. when she was in her office situated at Ramnagar-04, from some of her colleagues who were talking, inter alia, that a young wife at Khajanchibari has been injured by burning. Immediately thereafter, she rushed to Khajanchibari by an auto rickshaw and met Nilima, the wife of elder brother of accused Mrinal. Seeing her, she asked, what happened to Rumashree? In reply, Nilima told her that Rumashree received burn injuries and Mrinal also received burn injuries. Both of them were sent to G.B. Hospital. She also enquired from her as to how the burn injuries were caused to them but she avoided to answer this question. Thereafter, by the same auto rickshaw, she went to her father’s house at Office Lane, Agartala and reported the alleged incident to her father Sukhamoy Ghosh (PW 7) that bum injuries were caused to Rumashree by the inmates of the house of her in-laws. Thereafter, by auto rickshaw she rushed to GB. Hospital where she found Rumashree with burn injuries on her whole body and her mother in law (PW 5) was sitting on the bed side of Rumashree. Rumashree was found restless with pain and she was murmuring, “They did not allow me to live. They killed me give away my clothes to the poor persons”. On that day, she was in the hospital for the whole day and injured Rumashree regained her sense once at dawn of the intervening night of 27/28th October, 1992. When she asked Rumashree to know who caused burning injuries to her she repeated the same words, “they did not allow me to live, they killed me and give away my clothes to poor persons”, for several times. This witness also went on to state that when she learnt of burning injuries on the person of the deceased Rumashree she suspected that the inmates of Rumashree’s father in-laws’ house caused the said burn injuries to her person and deceased Rumashree during her lifetime used to say that she was not happy in her in-laws’ house as her in-laws often used to abuse her by saying’ ‘barren woman’, ‘alaxmi’ and created pressure on her to bring money from her father (PW1) and Rumashree complained to her regarding unusual behaviour with her by her in-laws’ and her (Rumashree) husband also used to put pressure on her for bringing money from her parents. Rumashree also alleged about misbehaviour from her brother-in-law accused Mridul, husband Mrinal and father-in-law Indu Bhushan and mother-in-law Sarnalata. Particularly, Rumashree mentioned the name of Mridul, at whose instance the other family members used to abuse her and Rumashree further alleged that in their house, everybody obeyed the order of Mridul. She also corroborated to the statement of other witnesses regarding the visit of Banani and her husband Bibhu one day ahead of Durga Puja in the year 1992 to her in-laws’house, i.e. the house of PW 1, who asked the father of Rumasree for sending Rumashree in her in-laws’ house owing to Durga Puja. Rumashree disagreed to the said proposal and her father also hesitated to accept the said proposal but both Banani and Bibhu assured that nothing would happen if Rumashree returned to her in-laws’ house. Thereafter, Rumashree went to her matrimonial house during Durga Puja which is a traditional festival of Khajanchibari, though Rumashree disagreed initially to go back to her father in-law’s house but on their assurance she returned to her in-laws’ house saying that she would be killed there.

She also stated that her marriage was solemnised after two years of the marriage of Rumashree and when Rumashree came to their house, she looked her face gloomy and her husband told her that there were disturbances in the family of Rumashree. This witness also stated that when she heard from Rumashree that she might be killed by Mrinal if she could not pay the sale proceeds of the land gifted to her by her father, she observed that Rumashree felt insecured in the house of Mrinal, which she informed her mother in-law later. This witness also stated that at the time of leaving her father’s house, Rumashree told that, “this journey to the father in-law’s house is the last journey” which has been recorded by the Investigating Officer at page 3 of the 161, Cr.P.C.

In her cross she stated that she did not disclose about the story of torture upon Rumashree by her in-laws to anybody as it was the private family matter of Rumashree. She also stated that she was beside the bed of injured Rumashree at GB. Hospital while Rumashree was saying, in presence of her mother-in-law, that “they did not allow me to live” and which she did not disclose to police intentionally. She further stated that she heard that accused Mrinal received injuries during the alleged occurrence. She suspected that the inmates of the father-in-law’s house of Rumashree caused the burn injuries to Rumashree as during her life-time Rumashree often alleged to her that they rebuked her saying alaxmi, barren woman and also created pressure on her to bring money from her father.

This witness also stated in her evidence that the name of the wife of elder brother of Mrinal Barman is Smt. Nilima Barman who is the full blood sister of her mother-in-law. She also stated that she did not disclose to the Investigating Officer that Nilima asked her what happened and then she asked whether anything happened to Rumashree, but Nilima replied, “nothing so serious” and that both Rumashree and Mrinal were injured and admitted to hospital. In her cross she also stated that she did not disclose to the Investigating Officer of the case that she found her mother-in-law beside the bed of Rumashree in the hospital. In her cross she also stated that she did not state to the Investigating Officer that Rumashree murmured by saying “they did not allow me to live, give away my clothes to the poor”. She also stated that she did not make any statement to the Investigating Officer that at the time of returning to her matrimonial house with Banani and Bibhu Barman Rumashree told that she would not go. If she goes, she would be killed and this journey to her father in law’s house will be her last journey.

39. PW 4 Mrinal Kanti Chakraborty was the private tutor of Rumashree in her early life. He is also the neighbour of PW 1. He stated in his deposition that he used to visit the house of PW.l. On 27.11.1992 at about 10.00 a.m. he was in the house of the informant PW 1 while Rupak Barman (PW 6) came to the house of PW 1 and reported the alleged incident relating to Rumashree. Then he accompanied informant father of Rumashree PW1 to the GB. Hospital along with Pratima Barman (PW 5), mother of Rumashree. In his statement he also narrated the story of Rumashree’s marriage and regarding the non-performance of Boubhat ceremony for non-fulfilling of the demands of the father-in-law of Rumashree. In his statement, he further stated that while he visited G.B. Hospital along with PW 1 and PW 5, he found Rumashree with burn injuries and she was surrounded by Doctors and Nurses. Seeing her mother Rumashree inquired about her father (PW 1) and when she saw her father, Rumashree told “Babu, I did not obey your advice before for which they finished me today and killed me”. But he cannot say whether the aforesaid utterings of Rumashree were heard by Doctors or nurses attending her at that time. In his statement, he further stated that while the attending Doctors advised PW 1 to bring medicine, no other member of the family of Indu Bhushan Barman was present in the hospital, but in the afternoon he found Banani Roy Barman in the Verandah of the hospital. She was not known to him prior to 27.11.1992 and finding her the father of Rumashree asked her in his presence, “Aunty you gave me word that no untoward incident will occur at the time of taking Rumashree to your house but today she received 100% burn injuries.” Then he came to know from the father of the Rumashree about Banani.

This witness also stated that Banani Barman became excited and told that “Who said that burning caused to Rumashree by bursting of a stove, Rumashree just before the occurrence went to her room and petted a child. Just after her return to her room Banani Barman heard a sound like ‘Bachao’, Bachao’. She was able to follow that it was Rumashree’s voice. She rushed to the room of Rumashree. Pushing the door of the said room she fell down and after rising Banani found that Rumashree was lying facing to the ground and there was fire all over her body. Her husband Mrinal was sitting on the cot of the room. Mridul Barman, brother-in-law of Rumashree was standing at the door. Rumashree’s father-in-law and mother-in-law were in the adjacent room. This witness further stated that, hearing all these from Banani Barman, they started thinking that there is something behind the burning of Rumashree. He also stated that suddenly he found Mrinal Barman in the Ground Floor Ward of the said hospital with some medicine pasted on his forearms.

He further stated that after few months of her marriage when he met Rumashree he found her disheartened and on query her father told him that Rumashree was suffering from mental depression due to ill-treatment in her in-laws’ house for the reason that Rumashree could not become a mother, and the family members of her in-laws’ house used to abuse her, alaxmi, apaya, etc., and the accused persons also used to create pressure upon Rumashree to bring money from her father. This witness also stated that her father disclosed to him that he gifted Rumashree a homestead land and the accused persons were creating pressure upon Rumashree to pay them money by selling the said plot of land. He also stated that he came to Agartala from G.B. Hospital along with the father of Rumashree and Sukhamoy Ghosh for purchasing medicine and got down near West Agartala P.S. and he advised PW 1 to give an information in the said P.S. He and Sukhamoy Ghosh then went to purchase medicine and the PW 1 remained in the West Agartala P.S. who informed about the said incident verbally to the Police Officer of the said P.S. and when he returned to the said P.S. after purchasing medicine, as per advice of the said Police Officer they left the police station for G.B. Hospital.

This witness further stated, after about 4 months stay in her father’s house Rumashree went to her matrimonial house, on the evening of Mahasasthi in the year 1992 with Smt. Banani Barman and Rumashree’s father told him that as Banani Barman assured him that nothing more will happen, then Rumashree went to her in-laws’ house with Banani.

In his cross he denied the suggestion made by defence, inter alia, that Rumashree did not disclose to him that the father of accused Mrinal Barman demanded Rs. 50,000, and as it was not given, no ‘Boubhat’ was held. On hearing the sufferings of the wife of P W1 that they killed her daughter, then a suspicion arose in his mind but he did not state to Darogababu that Biru Barman’s wife cried out, saying that they killed her daughter and it is not a fact that he was not present in the house of PW 1 at about 10.00 a.m. on 27.11.1992 and heard that the wife of PW 1 cried out by saying that they killed her daughter. He also stated that Rumashree was in the General Ward of hospital and she told her father that “Babu, I did not obey your advice and for which they finished me today and killed me and if I obeyed your advice then today I am not be in this condition”. He did not know that the aforesaid utterings of Rumashree were heard by Doctors and Nurses who were attending her at that time and the Doctor and Nurses did not enquire about aforesaid utterings of Rumashree from him. And he did not know whether Doctor babu and Nurses enquired from PW 1 regarding the utterings of Rumashree. On query, PW 1 and his wife told him ‘they’ means ‘accused persons’ but I did not state to Darogababu or before the Court the meaning of ‘they’ as replied by PW 1 and his wife. He did not state to the Investigating Officer that after long pursuasion and request Rumashree was sent to her matrimonial house. He also did not state to the Darogababu that Banani disclosed to PW 1 that before the occurrence Rumashree went to her room and patted a child. He further stated that Banani told that there was fire all over her body and her husband Mrinal was found sitting on a cot of the room and Mridul Barman was standing at the door of the room. He also went on to state that he did not state falsely all the facts as stated before the Court during recording of his examination in chief and those facts being tutored by others.

40. PW 5 Pratima Roy Barman, mother of victim Rumashree in her statement narrated the facts regarding the marriage of Rumashree with accused appellant No. 1 and non-performance of ‘Boubhat’ by the family ofher in-laws as stated by PW 1 and in addition she also stated that her daughter also told her that the inmates of in-laws’ house of Rumashree called her ‘apaya’, ‘alaxmi’ and ‘barren lady’ and she was asked not to enter into the dwelling hut by front door as passage and she used to use her back passage to enter her dwelling hut as they said that they do no like to see her face as she is an unfortunate lady and apaya. She also stated that once her daughter Rumashree was also driven from her in-laws’ house by the accused person and thereafter she used to stay in her house. And her daughter felt insecured to live in her in law’s house. During her stay in her in-laws’ house, she was tortured by the accused persons, particularly by her brother-in-law, Mridul who misbehaved with her inhumanily and she was even physically tortured. She found severe injury in the right hand of Rumashree. Initially though she did not like to disclose the real facts of injury, later her daughter disclosed that she was assaulted by the accused Mrinal who caused the injury on her hands. Once she was given a slap in her ear by the accused Mrinal, as a result of which, her ear drum was badly affected and blood was oozing out. On query Rumashree expressed that accused persons pressed her for money to bring from her father and whenever she raised objection, the accused Mridul and Mrinal assaulted her and abused her in filthy language. This witness further stated that her daughter was not given full meal and very often when her daughter visited her house she had to take food. When she became fed up with the behaviour of the inmates of her in-laws’ house, she returned to her house and stayed for quite some time. But in the month of September, on Billashasthi day (first day of Durgapuja), Banani Barman and her husband came to their house to take Rumashree. But Ruma refused to go with them because she was apprehending that the accused persons kill her at any time. But we compelled her to go when Banani and her husband assured us that nothing would happen. She also stated that her husband gifted a land to Rumashree, but thereafter the accused persons created pressure on Rumashree to sell the land to purchase truck. They also threatened them that if she failed to sell the land she would face direr consequences and Mridul said that since she was issueless, what she would do with the money?

On 27.11.1992, Rupak Barman of Khajanchibari came to their house at about 10/10.30 a.m. and told that Rumashree fell ill seriously and was admitted to G.B. Hospital. They were also informed that Rumashree received injury by bursting of kerosene stove. This witness also stated that once she advised her sister Nilima who is also the sister in law of Rumashree to settle the matter between Ruma and her in-laws’ but she failed to do so. After about 4/5 months of the incident once she met with Nilima at T.R.T.C. Office and told her to give evidence in connection with the alleged incident, then Nilima told that it was not possible on her part to give evidence as she was living in the same house and if she gave evidence then she would be killed by them and Rumashree became the victim of the conspiracy and it has been settled that none of the inmates of that house would depose truly in connection with this case. In the month of May, 1992 when Rumashree came to their house in a distressed conditions from her in-laws’ house, her daughter narrated her distressed condition which she told to her nearest relative and friend, namely, Pakhi.

In her cross, she also stated that it is not a fact that Banani and her husband did not take responsibility while taking Ruma to her father in-laws’ house and that it was not a fact that Ruma did not state to them that it was her last visit. It was also not a fact that deceased Ruma and her husband did not visit their house in the evening on 26.11.1992. She also stated that all the accused persons told her daughter apaya, alaxmi and barren lady.

This witness also stated that she did not state to Darogababu that all the accused persons said her daughter apaya, alaxmi and barren lady but she stated only Mridul. She also stated that she did not state to her husband PW1 before lodging the complaint that the inmates of the house of accused said his daughter apaya, alaxmi and barren lady.

41. PW 6, Rupak Roy Barman stated that Biru Barman is his uncle. He used to visit the in-laws’ house of Rumashree who used to told him that her in-laws’ misbehaved with her and abused her and occasionally assaulted her. Once when he was entering the in-laws’ house of Rumashree, he heard that one lady was shouting and abusing Rumashree and when he entered the house, he found the accused persons abusing Rumashree with filthy language and the accused Mrinal caught hold of her throat and gave a slap and other accused Mridul gave a pushing, as a result she fell on the wall. Seeing this, he shouted what is going on! Thereafter, seeing him, the accused persons left the room and Rumashree told him that they would kill her and ultimately, he took Rumashree to her house by a rickshaw. Subsequently, on 27.11.1992, when he was coming to the house of Biru Barman, he got the information about the said incident and he rushed to the G.B. Hospital. He and one of his friend donated blood for Rumashree, but he did not find any family members of Khajanchibari in the G.B. Hospital. He also stated that the accused persons pressed Rumashree for money and that was the roof cause of all troubles.

He stated in his cross that it was not a fact that while he was at Agartala he used to visit the house of Rumashree and she did not tell him that her in-laws misbehaved and abused her and assaulted her. He further stated that he did not state to Darogababu that in-laws of Rumashree pressed on her for money and it was the cause of all evils.

42. PW 7, Sri Sukhamoy Ghosh, the father of Ruchira Roy, father-in-law of Arabinda Roy stated that he used to visit the house of Rumashree after the marriage of her daughter Ruchira. He came to know from Biru Barman that Rumashree is not happy in her in-laws’ house. And the accused Mridul used to call her alaxmi, apaya and her father-in-law and mother in law misbehaved with her. In the first part of November, 1992, he met Rumashree at Banamalipur and he offered her a lift to her house upto Fire Brigade Chowmohani and he found Rumashree gloomy. On query she told him that her life became miserable. Her inmates did not care to arrange her treatment by Doctor and Rumashree started weeping. This witness went on to state that once Mrinal came to his house and told him that his father-in-law did not agree to pay any money to him though he is spending money for his sons. Mrinal also told him that the father-in-law gave him some money for purchasing a vehicle (truck) and he also stood guarantor for purchasing the truck for the remaining part of the purchased money. He also stated that Rumashree is in trouble because of money and land as her inmates pressed her for money. He also heard about mental torture to Rumashree from her daughter and her father-in-law Biru Barman. In the May, 1992, Rumashree came to the house of her father and she told that she will not go back to her father-in-law’s house and he heard it from Biru babu, his daughter and his son in-laws’, Arabinda. On 27.11.1992 at about 10 a.m. his daughter went to his house to inform him that Rumashree received burn injury in her in-laws’ house and she would go to G.B. Hospital. Thereafter this witness along with his wife first came to the house of Biru Barman and without finding them there, went to the G.B. Hospital.

In cross, this witness stated that as told by Ruchi Roy, Biru babu and Arabinda regarding leaving of Rumashree in May, 1992 and taking shelter in her father’s house is false and motivated.

43. For arriving at proper finding it would be pertinent to discuss in short the salient portion of the evidence of the three doctors as examined by the prosecution, PW10 Dr. Pijush Kanti Das, who carried out the PM examination over the dead body of deceased Rumashree stated in his statement that in his opinion the death was due to grievous burn injuries found on the person of the victim and those are sufficient to cause death and such injuries could be caused by somebody by setting fire or can be self inflicted or by an accident. In his cross he stated that he did not mention in the PM report that how the deceased received the injuries and the manner thereof but he specifically mentioned that the deceased received severe burn injuries in the genital area and genital area means lower abdomen, vaginal and the thigh area. PW 11 Dr. Indrajit Paul, who was working under PW 12 Dr. Kishalay Chowdhury, and who treated the accused Mrinal while he was in hospital on 27.11.1992 to 30.11.1992 found burn injuries on his both hands and wound infected burn over both arms amounted, over 8% surface area. He also stated that even after discharge from hospital accused Mrinal was under his treatment from 7.12.1992 for burn injuries over his both hands and left forearm as he received 7% to 9% burn injuries. PW 12 Dr. Kishalay Chowdhury who was the Medical Officer, in-charge of FS-2 of Surgical Unit of G.B. Hospital on 27.11.1992 stated in his statement that Rumashree was admitted to hospital with burn injuries and injured was under his, treatment and at that time Dr. Indrajit Paul PW 11 and B.S. Choudhury, were working under him in the said unit. In his cross, he stated that bed ticket of Rumashree indicates that on 29.11.1992 the condition of Rumashree was very poor but he did not find any indication in the bed head ticket that on 29.11.1992 whether the patient was given decadrawn, choramine, oxygen in order to save the respiratory troubles or not. In his statement, he nowhere stated what was the condition of Rumashree after her admission in the hospital particularly whether she was in a position to make any statement in expectation to her death, inter alia, that they did not allow her to live.

44. In Jaggo @ Jagdish & Ors. (supra), the Apex Court considering its earlier decision. In Habeed Mohammad v. State of Hyderabad, AIR 1954 SC 51, observed regarding the purpose of criminal trial as well as the duty of the Public Prosecutor and also the effect of non-examination of the vital witnesses. Para 16 of the aforesaid law report is quoted hereinunder:

“16. This Court in Habeed Mohammad’s case, 1954 SCR 475:AIR 1954 SC 51 (supra), referred to the observations of Jenkins, CJ. in Ram Ranjan Roy v. Emperor, ILR 42 Cal 422: AIR 1915 Cal 545, that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a Public Prosecutor is to represent the administration of justice so that the testimony of air the available eye-witnesses should be before, the Court. Lord Roche in Stephen Seneviratne v. The King, AIR 1936 PC 289, referred to the observations of Jenkins, CJ and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their trstimony is for or against the case for the prosecution. That is why this Court in Habeed Mohammad’s case, 1954 SCR475 : AIR 1954 SC 51 (supra), said that the absence of an eyewitness in the circumstances of the case might affect a fair trial. On behalf of the appellant it was said that Ramesh Chand was won over and, therefore, the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness has been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eye-witness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with Ramesh at the time of the occurrence.”

45. In Sakharam & Anr. (supra), the learned Counsel for the appellants in that case contended that the judgment and order rendered by the High Court was, on the face of it, illegal and erroneous, as there was no evidence against the appellants that they demanded dowry or that they ill-treated their daughter-in-law (Gangabai) who committed suicide in the night between 9.5.1998 and 10.5.1998, like the contention made in this case by the learned Counsel for the appellants that there was no evidence before the learned Trial Court, i.e. the learned Sessions Judge that when and whom the appellants demanded dowry or that they ill-treated the deceased victim who allegedly committed suicide. The Apex Court in para 4 of the said judgment expressed their views, inter alia—

“The aforesaid submission of the learned Counsel for the appellants is well founded. There is no evidence on record that the appellants demanded dowry or that they ill-treated their daughter-in-law who committed suicide. The evidence which is brought on record is that of Shankar (PW 1) father of the deceased, who has vaguely stated that the accused were ill-treating his daughter for nonpayment of the remaining dowry amount of Rs. 40,000. He has made the aforesaid statement on the basis of what his daughter Gangabai stated to him before one month of her death. There is no specific allegation made by the witness that the present appellants were demanding dowry or were harassing his daughter. Similarly the evidence of Prabhu (PW 2) who was the middleman, who settled the marriage of Gangabai with original Accused 1 Madhav is also equally vague. He has only stated that he was meeting Gangabai and she was telling him that the accused were ill-treating her for non-payment of dowry. In cross-examination, he has stated that he met Gangabai before the birth of a daughter to Gangabai. Admittedly, Gangabai had given birth to her daughter 7 months prior to the date of incident. That would mean that this witness met Gangabai 7 or 8 months prior to the date of incident. Except the evidence of the aforesaid two witnesses, there is no other evidence brought on record by the prosecution for establishing that the present appellants ill-treated their daughter-in-law Gangabai and were demanding dowry. On the basis of so-called omnibus statement of these two witnesses, the appellants cannot be convicted. For the fault of the husband, the in laws or other relatives cannot, in all cases, be held to be involved in the demand of dowry. Who demanded dowry and subjected her to cruelty is required to be established. In cases, where such accusations are made, the overt acts attributed to such persons are required to be proved beyond reasonable doubt.”

Their Lodrships have specifically observed that a tendency has, however, developed for roping in all relations of the in-laws of the deceased wife in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits.

46. In Girdhar Shankar Tawade (supra), the Apex Court also noted that Section 498A, IPC is attributable only in the event of proved cruelty by the husband and the relatives of the husband of the woman and the charges under Sections 306 and 498A, IPC are independent of each other and acquittal of one does not lead to acquittal on the other. But in order to justify a conviction under Section 498A, IPC there must be materials and cogent evidence on record. Paras 16, 17 and 18 of the said law report are relevant for proper understanding of the decision of the Apex Court in the aforesaid case, which are reproduced hereunder:

“16. We have already noted Section 498A hereinbefore in this judgment and as such we need not delve into the same in greater detail herein excepting recording that the same stands attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman. Admittedly, the finding of the Trial Court as regards the death negated suicide with a positive finding of accidental death. If suicide is ruled out then in that event applicability of Section 498A can be had only in terms of Explanation (b) thereto which in no uncertain terms records harassment of the woman and the statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand—there is total absence of any of the requirements of the statute in terms of Section 498A. The three letters said to have been written and as noticed earlier cannot possibly lend any credence to the requirement of the statute or even a simple demand for dowry.

17. As regards the core issue as to whether charges under Sections 306 and 498A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary neither are we inclined to do so, but in order to justify a conviction under the later provision there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereon—the documentary evidence (namely, those three letters), in our view, falls short of the requirement of the statute: even on an assumption of the fact that there, is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl’s in-laws’ place and requests the husband to treat her well—at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498A. Demand for dowry has not seen the light of day.

18. A faint attempt has been made during the course of submissions that Explanation (a) to the Section stands attracted and as such, no fault can be attributed to the judgment. This, in our view, is a wholly fallacious approach to the matter by reason of the specific finding of the Trial Court and the High Court concurred therewith that the death unfortunately was an accidental death and not suicide. If suicide is left out, then in that event question of applicability of Explanation (a) would not arise—neither the second limb to cause injury and danger to life or limb or health would be attracted. In any event the wilful act or conduct ought to be the proximate cause in order to bring home the charge under Section 498A and not de hors the same. To have an event sometime back cannot be termed to be a factum, taken note of in the matter of a charge under Section 498A. The legislative intent is clear enough to indicate in particular reference to Explanation (b) that there shall have to be a series of acts in order to be harassment within the meaning of Explanation (b). The letters by themselves though may depict a reprehensible conduct, would not, however, bring home the charge of Section 498A against the accused. Acquittal of a charge under Section 306, as noticed hereinbefore, though not by itself a ground for acquittal under Section 498A but some cogent evidence is required to bring home the charge of Section 498A as well, without which the charge cannot be said to be maintained. Presently, we have no such evident available on record.”

47. In Ashok Vishnu Davare (supra), the Apex Court while discussing the allegations against the husband relating to his demand of money and physical ill-treatment to his wife held that the order of conviction and sentence imposed on the accused husband on the basis of glaring improvement made in the evidence by PWs is liable to be set aside. In para 12 of that judgment it is noted by the Apex Court , inter alia:

“This part of the statement of PW 6 clearly shows that his evidence in regard to having seen the beating of the deceased by the appellant and the demand for money is an improvement from his previous statement made to the police. This coupled with the fact that in the complaint no such allegation has been made, makes us feel that is not safe to rely on the evidence of this witness.”

It is also noted in para 13 that PW 7 of that case in his evidence had stated that on one or two occasions the deceased was driven out of the house because she did not bring money which was not even the case of the prosecution. The evidence of PW 7 had shown that the demand for money was made by the appellant’s father who was A-2 before the Trial Court hence, Their Lordships observed that they did not think it would assist the prosecution in any manner to implicate the appellant. It is further noted that from the evidence of PW 8, the 10 it was seen that PW 3 Sonabai, the neighbour of PW 2 did not tell him that the deceased had told her about the demand of Rs. 5,000 and that she had heard about it. Therefore, that part of the evidence of PW 3 became an improvement. Finally, the Apex Court held, inter alia:

‘From the above evidence, in our opinion, it is not possible to come to the conclusion that the prosecution has established its case beyond all reasonable doubt in regard to the charges alleged against the appellant. In our opinion, the Court s below have not properly appreciated the evidence and failed to notice the glaring improvements made by the witnesses in their evidence given before the Court . These improvements in our opinion materially affect the creditworthiness of the prosecution case, hence it is not safe to base a conviction’.

48. In Orilal Jaiswal (supra), the Apex Court considering the fact and circumstances of that case and the rival contentions made by the learned Counsel appearing for the parties discussed about the delay in filing the FIR by, the parents in a case of suicide by a newly wedded daughter due to mal treatment of the in-laws, which is available in para 11 of the said law report. Relevant portion of para 11 is quoted hereinunder:

“11………….. The elder brother Om Prakash immediately left for the hospital and thereafter the mother, father and other family members of the deceased rushed to the hospital where they came to learn that their daughter had died by committing suicide in the house of the in-laws. There is no difficulty to imagine that such news had caused a great mental shock to the mother particularly when the deceased had to end her life within 10 months from the date of marriage. If on getting the news of suicide being committed by the daughter, mother becomes unwell and is not in a proper mental frame to make any statement to the police, no exception can be taken to such conduct. It should be borne in mind that the elder brother of the deceased gave a written complaint to the police on the very day of the incident by indicating that there had not been any natural death of his sister and he felt that his sister had been murdered by her in-laws. On the very next date, the mother made a statement to the police indicating the plight of her deceased daughter and the physical and mental torture to which she was subjected to by the accused. Such statement of the mother has been treated as an FIR in the case. In the aforesaid circumstances, it cannot be held that there has been unjustified inordinate delay in lodging the FIR and even if the mother had become unwell after hearing the news of the daughter’s death other adult members of the family could; have lodged the complaint with the Police. It appears to us that the High Court has failed to note that the elder brother of the deceased had in fact made a written complaint on the very same day to the police but the same was not treated as FIR by the Police and he also made a statement, before the police on the next day wherein the allegations of cruelty meted out to his sister were clearly indicated.”

49. In Para 12 of the aforesaid law report, the Apex Court also noted, inter alia, ‘It is the prosecution case that mother-in-law abused the daughter-in-law by saying that she was a woman or evil luck and had brought misfortune to the family. It is, therefore, quite natural that the mother of the deceased had made complaints to her mother-in-law and had requested her not to abuse and humiliate her daughter. Hence, the question of complaint by the father was neither expected nor necessary. Coming to the finding made by the High Court that there is no evidence regarding the injuries received by Usha, or the maltreatment made to her, it may be indicated that the mother, elder brother, sister and other relations of the deceased have deposed about the maltreatment and physical assault of the deceased. The doctor conducting the post-mortem has noted some injuries which were ante mortem on the person of the deceased. Whether such evidences are to be accepted or not and whether the injuries, ante mortem in nature found on the person of the deceased can be explained or not are different considerations but it will not be correct to hold that there is no evidence about maltreatment given to Usha or there is absence of any evidence of injuries sustained by her before death.’

50. In Para 14 of Baldev Krishan (supra), the Apex Court noted that humiliating remarks as regards the poor quality of gifts of meagre value given at the time of marriage amounts to harassment on account of insufficient dowry. The Apex Court also discussed about Section 113B of the Evidence Act. The said paragraph 14 is reproduced herein below:

“14. After a careful scrutiny of the evidence of these three witnesses and other materials on record, we are satisfied that the contentions raised by learned Counsel for the appellants are totally unsustainable. Rekha Rani (PW 1) and Kama! Goyal (PW 2) testified several instances when the appellants taunted Pratibha by saying that A-3 had better proposals from people who were prepared to give dowry of rupees two lakh but they had accepted her proposal. The witnesses further stated that Pratibha always used to complain that members of her in-laws’ family often made humiliating remarks as regards the poor quality of gifts of meagre value given at the time of marriage. In the facts of this case such remarks in our opinion undoubtedly connected with harassment on account of insufficient dowry. There are ways and ways to express the demand of dowry. One adopted by the appellants could be said to be a sophisticated one without using the word “dowry”. Rekha Rani in her evidence had referred to the incident in detail when she and her husband on 2.6.1982 went to give presents to Pratibha on Nirjala Ekadashi festival. From her evidence there is no manner of doubt that the appellants had given most humiliating treatment not only to Pratibha but also Rekha Rani. A-2 had gone to the extent of calling the parents of Pratibha bastards and telling her that they should have found a suitable match for their daughter having a squint. The fact of ill-treatment meted out to Pratibha also finds support from the evidence of Kamal Goyal (P W 2) on two occasions when he had visited the house of A-l when Pratibha was found totally perplexed and depressed and was unable to speak out her painful feelings. As and when Pratibha went to Sangrur and particularly when she had gone at the time of her delivery, she told her parents how she was treated by the appellants. The letters Exs. PB-1 and PB-2, on record do suggest and express concern over the well-being of Pratibha at her in-law’s house and those two letters were written to Rekha Rani (PW 1) and Vijay Kumar (PW 5).”

51. In Para 8 of Rajinder Singh Katoch (supra), the Apex Court stated as under:

“8. Although the officer in charge of a police station is legally bound to register a first information report in terms of Section 154 of the Code of Criminal Procedure, if the allegations made by them gives rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned; the same by itself, does not take away the right of the competent officer to make a preliminary inquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not. In this case, the authorities had made investigations into the matter. In fact, the Superintendent of Police himself has, pursuant to the directions issued by the High Court , investigated into the matter and visited the spot in order to find out the truth in the complaint of the petitioner from the neighbours. It was found that the complaint made by the appellant was false and the same had been filed with an ulterior motive to take illegal possession of the first floor of the house………”

52. In Para 13 of Animireddy Venkata Ramana (supra), the Apex Court discussed about the effect of minor omission in the FIR as well as the 161 statement of the witnesses when first information report is found to be truthful. Para 13 is reproduced herein under as the same would be helpful for reaching to a proper conclusion of this case.

“13. Once, however, a First Information Report is found to be truthful, only because names of some accused persons have been mentioned, against whom the prosecution was not able to establish its case, the entire prosecution case would not be thrown away only on the basis thereof. If furthermore the purported entry in the general diary, which had not been produced, is not treated to be a First Information Report, only because some inquiries have been made, the same by itself would not vitiated the entire trial. Inquiries are required to be made for several reasons; one of them is to ascertain the truth or otherwise of the incident and the second to apprehend the accused persons. Arrest of accused persons as expeditiously as possible, leads to a better investigation. Accused No. 1 was a Sarpanch of the village, Accused No. 2 is a Fair Price Shop dealer. Accused No. 3 was also admittedly a well-known person. It is also not denied and disputed that other accused were also related to him.

In view, of the fact that such an incident had taken place, indisputably it would immediately be known to the villagers. Those who hold some respectable position in the village and particularly those who are concerned with the administration of Panchayat were expected to be present.”

53. In Mahendra Singh v. State of M.P., reported in 1995 (3) SCC (Suppl.) 731, it was observed by the Apex Court that it is common knowledge that the words uttered in a quarrel or in the spur of the moment or in anger cannot be treated as constituting mens rea. In that case the appellant said to the deceased “to go and die”. As a result of such utterance, the deceased went and committed suicide. However, the Supreme Court observed that no offence under Section 306, IPC read with Section 107, IPC was made out because there was no element of mens rea.

54. Before scrutiny of the impugned judgment and the evidence on record, it is necessary to discuss whether there was really any delay in lodging the FIR by the prosecution regarding the alleged incident or not as Mr. Biswas while responding to the submission of Mr. Chowdhury contended that there was no delay caused in lodging the FIR by the informant PW1 as the family members of the victim deceased were busy with the medical treatment of the victim deceased and also bereaved due to her death. In the present case, no doubt there is apparently a long delay of two days to give information to the police as the bereaved parents of the deceased were busy with the treatments of the deceased victim and, only after her death the father of the victim deceased (PW1) lodged the FIR though he earlier attended the police station and informed the police regarding the alleged incident and also informed regarding hospitalization of the victim and after death of the victim deceased her bereaved parents as well as the family members took some time to recover from such an undesirable situation like death. A person who lost his son or daughter or any member of his family, he only can feel what he lost due to the last journey of his relations like the daughter. For recovering from the mental shock received by the family members like the informant herein required some time. Therefore, the delay caused, even if any, cannot be a ground for disbelieving the entire case of the prosecution. The aforesaid view of this Court would get support from the decision of the Apex Court in Ravinder Kumar & Anr. v. State of Punjab, reported in VI (2001) SLT 471=IV (2001) CCR 24 (SC)=AIR 2001 SC 3570, wherein Their Lordships noted:

“In the present case no doubt there that apparently a long delay of two days to give information to the police but the bereaved widow was not absolutely certain that she lost her husband once and for all until her brother in law confirmed to her. After identifying that the same was her husband, the initial tension and suspense undergone by her would have billowed up into a massive wave of grief. It is only understandable how much time a woman placed in such a situation, would take to reach some level of placidity for communicating to the strangers of what she knew about the last journey of her husband. We, therefore, find no merit in the contention based on the delay of lodging the FIR.”

In the case of Ravinder Kumar (supra), Their Lordships also took note of the case of Tarasingh v. State of Punjab, 1991 (1) SCC (Suppl.) 536, where in the Apex Court observed, inter alia, that—

“it is well settled that the delay run giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”

Effect of inordinate delay in filing of FIR in such case has also discussed by the Apex Court in Orilal Jaiswal (supra). What has to be seen by the Court is whether the delay was intentional and due to such delay there was any concoction in the prosecution story. In the instant case, according to this Court, the delay which took place in lodging the FIR is natural one and submission of Mr. Biswas, learned Special PP has some substance.

55. On scrutiny of the impugned judgment as well as the submission of the learned Counsel for the parties and the evidence on record it is the admitted position that the prosecution case is wholly based on circumstantial evidence, as there was no eye witness to the occurrence who had seen the alleged incident or even if there were some eye witnesses, either they were not examined by the prosecution or they were not produced before the Court. It is also evident from the impugned judgment that prior to her death deceased Rumashree had been living separately with her husband though after her marriage she was living with her in-laws and due to some differences they started living separately. It is also an admitted position that all the witnesses except the official witnesses are from the family of the deceased. No independent witnesses were examined by the prosecution except the official witnesses and the appellants were convicted on the basis of the evidence of the close relations of the deceased, more particularly on the, basis of the evidences of mother, father, brother and sister in law. There is no dispute that in a given case the Court can find guilty even on the basis of the evidence of the father, mother and or close relations of the deceased if the prosecution can establish that their evidences are fully trustworthy and even after proper attempt no independent witness could be produced and examined. In the instant case the whole allegation of the prosecution against the appellants are either based on presumption or on the alleged statement of the deceased Rumashree, inter alia, that she was harassed by her husband or in-laws for not bearing a child and/or not fulfilling the demand of dowry. But mere allegation is not enough to prove guilt in a criminal case. Prosecution has to establish its case independently by way of adducing proper evidence with necessary proof.

56. It is a case wherein the death of victim deceased caused by burn injuries is an admitted fact. But question remains whether the victim deceased committed suicide for repeated demand of dowry and due to cruelty and harassment made by her in-laws including her husband (appellant No. 1) and mother-in-law (appellant No. 2) or as abeted by them.

57. To bring home the charge under Section 498A, IPC, prosecution mainly relied on the evidence of PW1, the informant father, PW 2, PW 3 and PW 5, brother, sister-in-law and mother of the victim deceased respectively, and other relations of the deceased. From the whole evidence of prosecution witnesses, it appears that only allegation against the appellant No. 2, the mother-in-law was that she used to call the deceased victim as ‘apaya’, ‘alaxmi’, ‘barren woman’, ‘unlucky’, etc., for not bearing a child. There was no allegation against her that she ever made any unlawful demand to her daughter-in-law Rumashree, which could attract the provision under Section 498A, IPC. Prosecution also could not make out any specific case to show that any wilful conduct of appellant No. 2, Sarnalata drove the deceased victim to commit suicide. The evidence adduced against the appellant No. 2 is not only deficient, but also not convincing and reliable. Even assuming that appellant No. 2, mother-in-law abused her saying ‘alaxmi’, ‘apaya’, ‘barren woman’ or ‘unlucky’, then also it cannot be said that her conduct drove the victim to commit suicide, as it was known to Rumashree that her in-laws would not accept her properly for which she had done registry marriage against their will.

58. The act attributed to husband appellant No. 1 was that he used to create mental torture on the deceased victim by demanding lump sum amount and for supporting it, the prosecution mainly relied on the evidence of PWs 1 to 7. From scrutiny of the evidence of PW 1, it appears that the deceased Rumashree told him that her husband Mrinal (appellant No. 1), her brother-in-law Mridul, who has already been acquitted, her father-in-law Indu Bhushan (since deceased) and her mother-in-law, Sarnalata (appellant No. 2) used to torture her for money and Mridul took leading part in creating such pressure. But nowhere in the statement it is stated that what was the exact amount demanded either by the husband Mrinal or by any of the in-laws and when such demand was made and whether sudh demand was a repeated one.

59. P W 2, Arabinda Barman, elder brother of the deceased though in his chief stated, inter alia, that so far disclosed by Rumashree, the inmates of Indu Bhushan used to do mental torture upon her by rebuking her as ‘apaya’, ‘alaxmi’, etc., and he requested his brother-in-law accused Mrinal on several times to look into the matter, but in spite of that Mrinal always kept mum, rather he was supporting such mental orture upon Rumashree, but in his cross this witness stated that he made no statement to the I/O, that he told Mrinal that he was shocked when he heard that inmates of the house of her (Rumashree) father-in-law rebuked her as ‘apaya’, ‘alaxmi’. He also stated in his cross that he did not state to the I/O, that Rumashree narrated the story of mental torture upon her to his parents specifically as stated by him in his examination-in-chief. In his statement he stated that so far he knew accused persons used to do mental torture upon deceased Rumashree as she could not give birth of a child and for not bringing money from her father (PW 1).

60. PW 3, sister-in-law of the deceased and wife of PW 2 has in fact made no statement with regard to demand of money by accused Mrinal (appellant No. 1). Similarly, PW 5, the mother of the deceased and PW 6, the nephew of PW1 have also made no statement with regard to the demand of money by accused-appellant No. 1.

61. PW 4 has stated that the informant (PW 1) told him that the accused persons used to create pressure upon Rumashree for bringing money from him.

62. PW 7, the father of PW 3 as well as the father-in-law of PW 2 in his statement stated that the accused Mrinal during visit in his house once or twice after marriage told him that his father-in-law (PW1 did not agree to pay any money to him though he was spending money for his sons. He also stated that Rumashree was in trouble because of money and land as her in-laws pressed her for money.

63. Even if the aforesaid statement of prosecution witnesses are believed then also question remains as to when the accused appellant No. 1 demanded money and how and in what manner he tortured the deceased and harassed her as alleged and there is also no statement which can prove that it was a case of repeated and continuous demand for money by the appellant No. 1. For establishing a case under Section 498A, IPC the cruelty must be of such a nature as is likely to force the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman is required to be proved. Mere omnibus statement regarding demand of money does not ipso facto make out a case under Section 498A, IPC prosecution is required to prove the overt acts attributed to the accused-appellants beyond reasonable doubt as per the views of the Apex Court in Sakharam & Anr. (supra).

64. Assuming however, that the victim deceased Rumashree stated to her parents and other family members, prosecution witnesses about physical and mental torture to her by saying alaxmi, apaya and barren lady by the appellants which allegedly constitute cruelty, then also question arises whether the said statements of Rumashree are admissible in evidence under Section 32 of the Evidence Act as dying declaration. The alleged statement of Rumashree either to her parents or to her brother and sister in law, i.e. PW 1, PW 5, PW 2 and PW 3 respectively are extremely vague and does not disclose as to what and on how many occasions the accused appellants demanded money and also when accused appellant Mrinal tortured her for selling the land gifted to her by her father PW 1- and also the alleged statements of Rumashree of G.B. Hospital, inter alia, “They did not allow me to live. They killed me. Give away my clothes to the poor persons” also do not disclose any overt acts of the accused appellants for which she was either forced or driven to commit suicide or even endangered her life or limb. It appears from the evidence of the prosecution witnesses namely, PW1, PW 3 and PW 5 that their statement made in; the chief by which they tried to connect the accused appellant with the offence of alleged mental and physical torture on demand of dowry or for abetment of suicide are missing in the statement before the police, therefore, it cannot be ruled out that those statements are after thought as contended by Mr. Chowdhury. Not only that, PW12 the Doctor who treated the victim Rumashree also did not make any statement regarding her condition whether she was in a position to make any statement in expectation to her death in the hospital. Therefore, the statements of the deceased victim in the facts and circumstances of the case in hand do not fully come within Section 32(1) of the Indian Evidence Act. Even assuming that the alleged statements are admissible in views of Section 32(1) of the Indian Evidence Act, the same are also insufficient either to prove cruelty within the meaning of Section 498A of IPC. Testimony of father, mother, brother, and other close relations of the victim cannot always be treated reliable as they are highly interested party with an intention to punish the husband of the victim as well as the members of the family of in-laws. There is no doubt that there are some cases where even on the basis of the testimony of the father, mother, brother and other members of the family of the victim in a case of 498A and 306 of IPC conviction can be made subject to the statements are based on direct evidence or facts relating to cruelty, abetment and/or instigation relating to demand of dowry and cruelty and such a cruelty driven, the victim to commit suicide. But in the instant case, admittedly there is no direct statement and/or evidence against the accused appellant No. 1 that he asked for any unlawful demand of money as urges by Mr. Chowdhury, learned Counsel. According to this Court, the submission of Mr. Chowdhury has some force as the same is based on the materials available on record. Hence this Court is unable to accept the submission of Mr. Biswas as it is settled by this time that every harassment by the husband or in-laws to the victim, wife and daughter in law are not come within the meaning of cruelty to establish that there was any cruelty on the part of the family members of the victim, prosecution is to be established that such harassment is for the purpose of mental and physical torture towards the victim with an intention to fulfil the unlawful demands of the husband and the family members of the in laws of the victim.

As the facts from which cruelty is to be inferred are to be alleged and proved, it is not sufficient to merely say that the deceased was subjected to torture or cruelty. The specific acts of omission or commission by the alleged offender has to be specifically proved. In absence of proof of such acts of omission or commission, the Court is not in a position to decide whether the conduct of the accused amounts to cruelty within the meaning of 498A. So the vague and exaggerated statements that the deceased was subjected to torture or cruelty is not enough to prove fee charge under Section 498A, IPC. More so, when these statements were made before parents before some days of the death of Rumashree i.e. in the nature of hearsay and are not directly connected with or related to her death or reveal to tell the tale that death was a logical culmination of continuous torture, rather the statements are more cryptic, vague and general in nature, not just before her death. More so, it appears from the medical evidence that the deceased Rumashree received 100% burn injuries and if it is so definite then that she was not in a position even to speak for more long time. Not only that, admittedly none of the nurses who were present, according to the prosecution, at the time of alleged dying declaration, that the in-laws of Rumashree did not allow her to live, was also not examined for proving her alleged statement. Even Doctor who treated her in the hospital also was not asked whether she was in a condition to make the aforesaid statement.

65. The explanation of the prosecution relating to burn injury in the hand of accused Mrinal is also not satisfactory as it is highly improbable that the accused appellant Mrinal, the husband of the victim-deceased held the victim in engulfing fire by his own hands and got burn injuries on his arms as explained by the prosecution regarding the injury sustained by the appellant Mrinal and it cannot be ruled out that the accused Mrinal tried to save the victim while she was trying to commit suicide as it appears from the evidence that he himself was also injured and hospitalized. Had he been the abettor of the commission of the suicide of his wife, he would not have tried to save and hospitalize her with the aid of the other family members. There is no evidence and the material available on record from which an inference can be drawn that the accused appellant is the abettor of the alleged suicide of his wife, victim-deceased. More so, there is no direct evidence that the appellant accused husband had by his acts or omission or by continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide. The learned Trial Court also in paragraph 30 of the impugned judgment while discussing the prosecution case for criminal conspiracy which is punishable under Section 120B specifically stated that accused Mrinal sustained injuries on 27.11.1992 in the course of occurrence as PW11 specifically stated that accused Mrinal was under his treatment, and he found injuries in both arms of accused Mrinal with 7% burn injuries and there is no reason to disbelieve the evidence of PW 11 Dr. Indrajit Paul. Learned Trial Judge also stated that non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case. The case of the defence is that accused received burn injuries for, he made an attempt to save Rumashree while she was burning. In fact there is no eye witness of the alleged incident and the witnesses found to have been examined in this case have narrated the circumstantial evidence and the entire prosecution case is based on circumstantial evidence. In the circumstances accused Mrinal received burn injuries is probable. In such a situation like this when the prosecution fails to explain the injuries on the person of the accused Mrinal under such circumstances it can be well presumed that accused received burn injuries while he made an attempt to save Rumashree when she was burning. So the prosecution case that accused by pulling hair of Rumashree pressed her downwards when Rumashree was burning is found to be doubtful and as such the charge against the accused under Section 302 cannot be held to be proved beyond reasonable doubt as stated by the learned Trial Court . Learned Trial Court also reached to a specific finding that on careful analysis of the evidence it cannot be said that the accused Mrinal is responsible for causing burn injuries by setting her on fire and caused her death. It is curious to note that when the learned Trial Court came to a specific conclusion that Mrinal made an attempt to save the deceased Rumashree while she was burning/if that be so, then question of indirect and/or direct incitement/instigation caused by the accused Mrinal which prompted the deceased Rumashree to commit suicide, cannot be inferred as in a case of alleged abetment of suicide there must be proof of direct or indirect acts of incitement or instigation to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough as per the decision of Mahendra Singh (supra). Every case depends upon its own factual scenario. In the instant case, it is the admitted position that none of the family members of Rumashree tried to know from Mrinal how he sustained burn injuries in his hands and how Rumashree sustained 100% burn injuries, who according to the prosecution was present at the place of alleged incident. Not only that, no evidence brought on record to show the intention of the accused to aid or abet deceased Rumashree to commit suicide. And not only that, demand of money towards dowry was also not made directly by accused appellant to the parents of the deceased nor they have seen the accused while alleged mental and physical torture was done. It was the deceased who allegedly told to the prosecution witnesses and the alleged incident took place after nine years of the marriage of deceased Rumashree. Therefore, this Court is not in a position to take the aid of Section 113A of the Evidence Act, to take any presumption that the suicide had been abetted by the appellants. Therefore, the same cannot be admissible under Section 32(1) of the Indian Evidence Act.

66. This Court also noticed from the evidence of PW10, Dr. Pijush Kanti Das who carried out the post-mortem examination over the body of the deceased Rumashree in the IGM Hospital on 30.11.1992 in connection with the West Agartala P.S. U/D Case No. 8(11)/92 under Section 174, Cr.P.C. and stated that according to his opinion the death was caused due to grievous burn injuries on the person of the deceased which was sufficient to cause death and such injuries could be caused if somebody sets fire or can be self-inflicted or by an accident.

67. Therefore, from the facts and circumstances as involved in this case it cannot be ruled out that the burn injuries caused to Rumashree due to which she died, may be the result of an accidental fire and that aspect of the matter was not properly examined by the learned Trial Court. More so, when Medical evidence is inclusive, it is also a settled position of law that the general burden to prove its case is always with the prosecution which never shifts to the defence except in exceptional circumstances and when from the evidence two possibilities are available or open of which if one goes in favour of the prosecution and the other benefits the accused, the accused is undoubtedly entitled to get the benefit of doubt In the instant case, the prosecution fails to prove the source from where the fire originated, Not only that, another important aspect of this case is with regard to non-examination of some important witnesses who, were examined by the Investigating Officer and whose names are disclosed by the prosecution, witnesses, namely, Banani Barman and Bibhu Barman who went to the house of the father of the deceased to take Rumashree, back to her matrimonial home, Banani is a prime witness in this case, who first entered into the room where the alleged incident occurred after hearing the cry of deceased Rumashree, Bachao’, ‘Bachao’ and cry of Mrinal, ‘Fire’, ‘Fire’. Not only that Nilima Barman who is the full blood sister of PW 2, mother of the deceased, on the one hand she is the Aunt of the deceased Rumashree, and on the other hand she is the sister-in-law with whom the PW 3 first met when she went to Khajanchibari, house of Rumashree’s in-laws as well as one Pakhi Banik, who was the close friend of deceased Rumashree though they were the charge-sheeted witnesses. Similarly, the prosecution did not examine Rupak Roy Barman, Kirit Roy Barman, though they are also the charge-sheeted witnesses. Not only that, the other witnesses like Dhiman Sinha, Anuradha Dutta and Nikhil Mitra, were also not examined by the prosecution, who are tenants and close neighbour of PW 1 as it would be evident from P W1‘s statement that Nikhil Mitra who was living in his house since 6/7 years and Rumashree used to visit the rooms of Anuradha frequently and Anuradha and Dhiman also used to visit her family rooms. It also appears from the evidence of PW 1 that in the lifetime of Rumashree she was very much loved by Anuradha and her husband Dhiman. For non-examination of these witnesses prosecution did not assign any explanation or reason.

68. There is no doubt that prosecution is not bound to examine all the witnesses and the same is entitled to make selection of witnesses for which they will have to give reason why they are not examining, those witnesses. When Banani, an essential witness for unfolding the narrative, on which the prosecution case is based on, even after examination by the police, was not produced before the Court , particularly, when no allegation was made that if produced she would not speak the truth, in any case, the Court would have been well advised to exercise its discretionary powers to examine such a witness. In the instant case it was also the duty of the learned Trial Court to call the witnesses like Banani, Nilima, Bibhu and Pakhi who could have given some light regarding the alleged cruelty to deceased as well as the cause for burning injuries sustained by deceased Rumashree. Non production of these witnesses for examination before the learned Trial Court not only draws an adverse inference against the prosecution case, in view of Illustration (j) of Section 114 of Evidence Act, but the circumstances of them being withheld from the Court also casts a serious reflection on the fairness of the trial. For non-production as well as non-examination of these witnesses, the appellants were considerably prejudiced in their defence by reason of this omission on the part of the prosecution and on the part of the Court , particularly, when in a criminal trial, the decree of proving is stricter than what is required in a civil proceeding. More so, according to this Court, the learned Trial Court also failed to discharge its duties as entrusted upon it under law. When the facts came up before the Court, that Banani herself stated to the PW1 that in laws of Rumashree set fire on her person and she on hearing cry of Rumashree rushed to the room and found that the door of the room was closed and by pushing it she entered into the room and found Rumashree was burning, therefore, according to this Court, accused appellants were prejudiced for non-examination of this witness. Merely an apprehension of the prosecution, that as she is a relation of the in-laws of Rumashree she would not give evidence in support of prosecution, is not enough. When she was partly an eye witness of the alleged incident, the accused were entitled to test her witness, particularly when she went in the room where Rumashree was burning crying ‘Bachao’ ‘Bachao’. The aforesaid views of this Court also get support from the decision of the Apex Court in Jaggo @ Jagdish & Ors. (supra).

69. It is also not clear to this Court when the evidence against the appellant No. 2 Swarnalata and the co-accused Mridul, who has been acquitted by the learned Trial Judge, was the same but without any plausible reason the learned Trial Judge has convicted the appellant accused No. 2 Swarnalata Barman. This Court is of considered opinion, that the findings of the learned Trial Judge are perverse and against the evidence recorded in this case. The prosecution has miserably failed to successfully bring home the evidence either under Section 498A or under Section 306, IPC against the said appellant accused No. 2 and as such her conviction deserves to be set aside. This Court has already stated that to prove an offence under Section 306, IPC prosecution is to prove that there is indirect or direct incitement/instigation caused by the accused which prompted the deceased to commit suicide, which is totally absent in the instant case. Therefore, in view of the decision of the Apex Court in Mahendra Singh (supra), this Court is not hesitant to hold that the prosecution has also failed to make out any case under Section 306, IPC against the accused appellant No. 2, Swarnalata as they have failed to prove whether the deceased committed suicide having been subjected to cruelty within the meaning of Section 498A, IPC.

70. As the prosecution fails to prove that the husband accused appellant abetted Rumashree for committing suicide, no case is made out against him under Section 306, IPC.

71. Probably, the Trial Court impressed upon the fact that the death of Rumashree was caused due to the burn injuries inside the room where she stayed and in presence of her husband and other family members of her in-law’s house, but Court should not be emotional while deciding a criminal case, where strict proof is called for, for establishing the guilt of the accused person. On the basis of suspicion and emotion, a person should not be convicted by a Criminal Court unless the prosecution has established its case by way of proof that the accused are guilty of offence.

72. More so, in the case of Mahendra Singh (supra), it was held that merely because the deceased woman stated in her dying declaration that she was harassed by the accused, the accused cannot be held guilty for an offence under Section 306, IPC.

73. For the foregoing reasons, the impugned judgment dated 27.3.1999/ 30.3.1999 is interfered with and hereby set aside. The appellants are, thus, acquitted from the charges levelled against them. As the appellants are on bail, they are discharged from their bail bonds.

74. In the result the appeal is allowed.

Appeal allowed.

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