A. Pasayat, J.
1. Three petitioners (hereinafter referred to as the 'accused') call in question legality of their conviction for commission of offences punishable under Secs.306 and 498A read with Secs. 34 of the Indian Penal Code, 1860 (in short, 'IPC'). Petitioners faced trial for alleged commission of offences punishable under Section 498A and 304(3) read with Section 34, 1PC. Learned Asst. Sessions Judge, Kendrapara held that petitioners were liable for conviction under Sections 498A and 306 read with Section 34, lPC. Each one of them was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100/-, in default to undergo rigorous imprisonment for one month for their conviction under Section 498A read with Section 34, IPC. Similarly, each one of them was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 200/-, in default to undergo rigorous imprisonment for two months for their conviction under Section 306 read with Section 34, IPC. Learned Addl. Sessions Judge, Kendrapara maintained conviction and sentence in appeal so far as Section 498A read with Section 34, IPC. is concerned. He only casually referred to allegations relating to Section 306 read with Section 34, IPC, but dismissed the appeal.
2. Background facts and accusation which led to the trial of the petitioners sans unnecessary details are as follows :
On 26-11-1989 one Ripana Debnath (herinafter referred to as the 'deceased') wife of accused Sanatan Debnath lost her life. Ripana and Sanatan were married about three years prior to the alleged occurrence. After the marriage, deceased was living in her father-in-law's house peacefully for some time. Subsequently accused persons put mental and physical torture and accused Sanatan left her with her parents. After some time accused persons brought her to their house. While she was staying with them, they assaulted her, and accused Sanatan set fire to her saree, as a result of which she sustained severe burn injuries on her person. She was first brought to Ramnagar dispensary and subsequently shifted to SCB Medical College Hospital, Cuttack where she breathed her last. One Krupasindhu Debnath (PW 4), a relative of the deceased lodged information at Jamboo Out Post on 26-11-1989, which was subsequently registeredas Mahakalapada P. S. Case No. 75 of 1989, investigation was undertaken by the S. I. of Police of Jamboo Out Post. Subsequently, on 31-12-1989 the Officer-in-charge, Mahakalpada P. S. received information from Mangalabag P. S. about the death of deceased on 27-11-1989. A case for commission of offence punishable under Section 304B, IPC was registered. Mangalabag Police also registered U. D. Case No. 460 of 1989 and took up investigation. After completion of investigation, charge-sheet was submitted under Secs. 498A and 304B, IPC against the accused persons. According to petitioners, there was no demand for dowry and there was no question of physical or mental torture. The deceased was not mentally sound for which she committed suicide.
3. Nine witnesses were examined to further the prosecution case. Prosecution mainly relied on the evidence of PWs 4, 5 and 6. PW 5 is the mother of the deceased, PW 6 is the father's elder brother of deceased, and PW 4, her cousin brother is the informant. These witnesses mainly stated about demand of dowry and alleged physical and mental torture. Learned trial Judge held that accused persons were guilty and have committed offence punishable under Section 498A, IPC for having demanded a cycle, wrist watch and cash of Rs. 500/-from the parents of the deceased at the time of her marriage. When articles and cash were not paid, the accused persons tortured physically and mentally, and as such committed offence under Section 498A read with Section 34, IPC, in furtherance of common intention of all. It was further held that the deceased in order to save herself from forturous demands of dowry made by the accused persons finding no other alternative because her parents were poor and could not meet the demand, committed suicide. The matter was assailed in appeal before learned Addl. Sessions Judge, Kendrapara, who maintained the conviction and sentence.
4. Learned counsel for petitioners submitted that the Courts below tried to make out a new case which was at a great variance from the prosecution version. Further it is submitted that evidence is so discrepant and contradictory that no credence should have been put. Learned counsel for State, however, supported the judgment of conviction and sentence.
5. Before dealing with factual position, the provisions to which the Courts below have referred to need a bird's eye view. Section 498A dealing with cruelty by husband or relatives of husband and reads as follows :
'498A. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation-For the purposes of this section, 'cruelty' means :
(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 woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.'
Section 306 dealing with abetment of suicide reads as follows :
'306. if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.'
6. Before Section 386, IPC can be acted' upon, there , must be clear proof of the fact that the death in question was a suicidal death. (See. Wazir Chand and another v. State of Haryana : AIR 1989 SC 378). Abetment of suicide is confined to the case of persons who aid and abet the commission of suicide by the hand of the person herself who commits suicide. When the question is whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage, and that her husband or such relative of her. husband had subjected her to cruelty, the Court may presume having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. But the sine qua non for application of Section 306, IPC is the factum of suicide. But where circumstances did not establish either murder or an abetted suicide, the accused can escape the jaws of Secs. 300 and 306, IPC, but they can be caught in the web of Section 498A, IPC. The offence of 'abetment' must naturally conform to the definition of that term as given in Section 107, IPC- that is to say, there must be instigation, co-operation or Intentional assistance given to the would-be suicide. It is not necessary, nor indeed is it a part of the definition, that the suicide should have been committed in consequence of the abetment. But in order to render a person liable as an abettor, it is of course necessary, as indeed it is in the case of any other offence, that the abettor should be something more than a mute spectator-spectator baud particeps. It is conceivable that such presence may encourage a woman to do a deed, which she might otherwise refrain from. In the case the question whether mere presence amounted to intentionally aiding another will have to be decided. Suicide is self-murder. Suicide as such is no Crime, as one committing suicide places herself beyond the reach of law, but its abetment doas not. It is to be noted here that another important provision (Section 304(3), IPC) was introduced by Act No. 43 of 1986 With effect from 19-11-1986. A presumption of unnatural death in terms of Section 113B of the Evidence Act is attached in a casa-where Section 304B is applicable. In a case of mental torture, even if the girl does not commit suicide that would amount to an offence of 'cruelty' within the meaning of Section 498A which has been brought into existence by Section 2 of Criminal Law (Second Amendment) Act, 1989V Where a married girl commits suicide within seven years of marriage, the Court may presume by virtue of another newly created section in the Indian Evidence Act, 1872, viz. Section 113A that her husband and relatives had abetted her to commit suicide. This new section has been introduced by the self-same Criminal Law (Second Amendment) Act, 1989. These are welcome measures to combat menace of dowry death Section 498A does not relate to every harassment or every type of cruelty. The complainant has to establish that harassment was with a view to force the victim to commit suicide or to fulfil illegal demand of dowry. The section has given a new dimension to the concept of cruelty for the purposes of matrimonial remedied and that the type of conduct described would be relevant for proving cruelty.
7. Coming to the evidence led by the prosecution, evidence of PWs 4, 5 and 6 which h3s been highlighted by the Courts below to attach culpability needs reference. PW 4 the cousin brother of the deceased has admitted that he has no knowledge about dowry demanded by the accused persons. Further, he stated that he had ascertained about tortures as on various occasions deceased had complained before him about torture by accused persons. Courts below have observed that there are discrepancies in the evidence of PWs 5 and 6, the mother, and elder brother of father of the deceased respectively regarding demand of dowry. These witnesses have categorically stated that at the time of marriage they have given one pair of ear-rings to the deceased, and one gold-ring to accused Sanatan and cash of Rs. 500/-was only to be given and because of this accused persons started torture on the deceased after . about eight months of her marriage. Their evidence is further to the effect that accused Sanatan left the deceased in her parents' house and demanded one cycle, wrist watch and cash of Rs. 500/-. Prosecution version was that accused Sanatan poured diesel on the body pf the deceased. and set fire for which she sustained injuries. Learned trial Judge noticed that there was not a single witness to support this plea of the prosecution though PWs 4 and 5 have stated that when the deceased was treated at the S. C. B. Medical College, she narrated the incident before the Police. Learned trial Judge, however, discarded evidence of these witnesses on that score because the deceased was lying with severe burn injuries and was unable to speak anything at the hospital and therefore, her dying declaration could not be recorded. Evidence of PWs 4, 5 and 6 to that effect was held to be incredible. The plea that accidentally Ripana caught fire was discarded. With reference to the evidence of PW 1 who did not stick to his version before the police, it was concluded that the deceased committed suicide by setting fire on her body and she committed suicide because the accused persons tortured her physically and mentally, Ultimately it was concluded that offence under Section 498A read with Section 34, IPC was made out, and since she had committed suicide, the accused persons were held to have committed offence punishable under Section 306 read with Section 34, IPC. Interestingly, there was no charge under Section 306, IPC, so far as petitioners are concerned. Prosecution fed no evidence to allege the commission of suicide. Learned Additional Sessions Judge as indicated above, has not discussed elaborately about suicide aspect and has made a casual observation. PW4, the informant has accepted not to have attended the marriage of the deceased. He has admitted that the deceased never wrote any letter to him and he also did not get information from anybody regarding torture. PW 5 did not state'during investigation that the father of accused Sanatan demanded cash of Rs. 500/- and a cycle. On the other hand, statement during investigation was to the effect that they had given Rs. 500/- at the time of marriage. She stated that she had not personally heard from the deceased about any torture but got information regarding torture from some persons whose names she could not say. That part of the evidence is really of no consequence. So far as PW 6 is concerned, he had not stated during investigation about demand of any dowry. On the contrary, during investigation he has stated that a cycle, a wrist watch and cash of Rs. 500/- was given to accused Sanatan at the time of marriage. About the alleged demand he stated to have heard it from Jagannath Debnath, who has not been examined. Interestingly, the father of the deceased who is alive was not examined as witness. Further, evidence of PW 6 is vulnerable because of his examination after about a month of the occurrence. Though it cannot be laid down as a rule of universal application that whenever a vital witness is examined after long lapse, his evidence is to be discarded, yet plausible explanation hat to be offered, why a vital witness though available was examimed after a considerable length of time.
8. In the aforesaid background, it would be unsafe to convict the accused persons. Their conviction and sentence are set aside, and they are acquitted of the charges. Their bail bonds be discharged. The prayer for revision is accepted.