Tapas Kumar Giri, J.
1. The appellants/accused of this case are challenging the judgment passed by the Learned Assistant Sessions Judge, Kalna in Sessions Case No. 59 of 1989 convicting the appellants/ accused under Section 498-A/306, IPC and the order dated 19-8-1989 sentenced them to suffer rigorous imprisonment for seven and half years and to pay a fine of Rupees 3000/- each i.d. to suffer an imprisonment for another six months for the offence under Section 306, IPC and no separate sentence need be passed for the other charge under Section 498-A, IPC.
2. The prosecution story as unfolded during trial in nutshell is as follows:
3. One Panchanan Das, the brother of deceased Banalata Sarkar lodged the written information dated 25-3-1986 before the O.C. Purbasthali P.S. stating inter alia that his sister Banalata was married to accused Prangopal Sarkar about five years ago and soon after the marriage she was subjected to mental and physical torture by the husband and his family members. She sometimes reported to him as to her sorrow and unhappy married life and was pressed to demand dowry for (from) her matrimonial home. On the next morning the informant came to see his sister Banalata in the matrimonial home after being informed about the incident dated 24-3-1986 and found her dead and learnt that she had committed suicide by taking poison as she was compelled to commit suicide on account of torture by her parents-in-law and brother-in-law and husband.
4. Purbasthali P.S. Case No. 14 under Section 306, IPC was started and the investigation was started by the I.P. who held the inquest of the dead body of Banalata and sent the dead body to Kalna Hospital for post-mortem. The I.O. after completion of investigation submitted the charge-sheet under Section 498-A/306, IPC. against the appellants and the husband Prangopal Sarkar. Charges were framed against all accused who pleaded not guilty and claimed to be tried.
5. Prosecution examined 13 (thirteen) witnesses including the informant, Medical Officers and the I.O. None was examined on behalf of the defence.
6. After hearing the Learned Counsel for the parties, the impugned judgment dated 19-8-1989 was passed. It appears that the State has not preferred any appeal against the impugned judgment whereby the accused Prangopal Sarkar, the husband of Banalata came to be acquitted for the commission of offences under Section 306/498-A, IPC.
7. It is better to give a brief resume of the evidence of the prosecution hereunder:
8. P.W. 1, Panchanan Das, the brother of the deceased as well as the informant of this case stated that the marriage of Prangopal and Banalata took place and Banalata committed suicide by taking poison and she was taken to hospital by the accused. He also stated that Banalata was subjected to mal-treatment and torture by all accused and pressed upon her to fetch cash from her father and she reported the torture to him and others. He also stated that the poison bottle was detected in the house of the accused. P.W. 2, Sankar Das, son of P.W. 1 stated that Banalata committed suicide due to torture upon her by all accused. He also stated that Banalata disclosed to him about the further demand of more cash by the accused.
9. P.W. 3, Nimai Datta, the nephew of P.W. 1, stated the same fact as stated by P.W. 2.
10. P.W. 5, Doly Sarkar stated that Banalata committed suicide by taking poison due to family trouble. She stated that on the date of occurrence she went to the house of the accused and found Banalata to suffer pain due to poison reaction and she was removed to local health centre. She (P.W. 5) also stated that there was frequent quarrel between accused Tulsi Sundari, Prankrishna and Banalata and abused in filthy language. She (P.W. 5) also stated that she asked Madhusudan and Tulsi Sundari to behave properly with Banalata and on the date of occurrence she was abused in filthy language which she could not tolerate and ultimately committed suicide by taking poison.
11. P.W. 4, Satyaranjan Mistri, P.W. 6, Amal Kumar Roy, P.W. 7, Kalindra Mitra, P.W. 8, Smt. Malati Mitra, P.W. 9, Smt. Swapna Mistri stated the factum of the death of Banalata and they were declared hostile.
12. P.W. 10, Smt. Purnima Acharyawas only tendered by the prosecution.
13. P.W. 11, Dr. C. Sengupta held the post-mortem examination of the dead body of Banalata and he reserved his opinion as to cause of death pending receipt of F.S.L. Report in respect of viscera of the deceased.
14. P.W. 12, Dr. S. Chatterjee stated that he found her in gasping condition and applied some medicine and had stomach wash of the said patient and referred to Kalna Hospital for better treatment.
15. P.W. 13, the I.O. of this case held the inquest of the dead body and sent the dead body to Kalna Hospital for P.M. examination and after completion of investigation he submitted the charge-sheet.
16. The appellants have challenged the impugned order of conviction.
17. Mrs. S. Biswas, the learned Advocate on behalf of the appellants contended that there was no cogent proof regarding the cruelty, ill-treatment or harassment to deceased Banalata.
18. The learned Advocate Mrs. Biswas contended that there was no proof to have abetted deceased Banalata for committing suicide.
19. Mrs. Biswas urged that there was no proof to show that the death of Banalata was caused by way of poisoning.
20. In view of that, the appellants will be acquitted from the charges as alleged by the prosecution.
21. Mrs. Biswas lastly contended that the sentence may be reduced due to old age of the accused as the incident took place about 22 years ago.
22. In support of the contention, Learned Advocate cited the case laws, reported in : 2007CriLJ3420 (Bhagwan Das v. Kartar Singh), : AIR2007SC2457 (Kishori Lal v. State of Madhya Pradesh), : 2002CriLJ2796 (Sanju alias Sanjay Singh Sengar v. State of M.P.), : 2006CriLJ554 (Harjit Singh v. State of Punjab), : 2005CriLJ3439 (Sushil Kumar Sharma v. Union of India), 1987 Cri LJ 1724 (Harishchandra v. State of M.P.) : 2002CriLJ4124 (Mohd. Hoshan, A.P. v. State of A.P.).
23. Mr. Amajit Dey, learned Advocate appearing on behalf of the State contended that the prosecution was able to make out the allegation of Sections 306 and 498-A, IPC against all the appellants and the learned Assistant Sessions Judge rightly passed the sentence and as such the present appeal is liable to be dismissed. In support of the contention, Learned Advocate Mr. Dey cited a case law reported in 2007 (2) SCC (Cri) 210 : 2007 Cri LJ 779 (Surender v. State of Haryana).
24. It was not disputed about the death of Banalata. P.W. 12, Dr. S. Chatterjee who initially examined Banalata stated that it was clear case of poisoning and he treated her as the patient of poisoning case including stomach wash. P.W. 11, who held the P.M. examination on Banalata sent the viscera to the F.S.L. for chemical examination. The said report was not before the learned Assistant Judge during trial. However, the opinion of P.W. 12 being a medical expert was sufficient that Banalata committed suicide by poison.
25. In the case law Sushil Kumar Sharma (supra) the Apex Court observed that 'in case under Section 305/498-A, IPC there is basic difference between these two provisions i.e. 'cruelty' committed by the accused to commit suicide as per provision of Section 498-A, IPC where under Section 306, IPC provides the abatement to commit suicide.'
26. In the present appeal the only allegation against the appellants was that they harassed the deceased Banalata for demand of money from her father's house as well as they misbehaved upon her that amounted to abetment to suicide and it was covered under Section 306/498-A, IPC read with Section 107, IPC.
27. In the case law Bhagwan Das (supra) it was observed that 'The word 'abetment' has been defined in Section 107, IPC as follows:
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 the act, and thereby facilitates the commission thereof, is said to aid the doing of the act.
28. The word 'instigate' literally means to good, urge for word, provoke, incite or encourage to do an act and a person is said to instigate any other when he actively suggest or stimulate him to act by any means or language direct or indirect.
29. In the case law State of West Bengal (supra) the Apex Court observed. 'In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A, IPC and Section 113-A of Indian Evidence Act. Although, the Court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved all reasonable doubts must depend upon the facts.'
30. In the case law Harjit Singh (supra) the Apex Court observed 'the word 'cruelty' employed therein is a virtual importation of that word from Section 498-A, IPC, the offence envisaged in Section 306, IPC is capable of enveloping all cases of suicide within its ambit, including dowry-related suicide. According to him, the second limb of the Explanation to Section 498-A which defines the word 'cruelty' is sufficient to clarify the position. That limb reads thus:
For the purposes of this section 'cruelty' means:harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any lawful 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.
31. At the first blush we thought that there was force in the said contention but on a deeper analysis we found that the contention is unacceptable. Section 306, IPC when read with Section 113-A of the Evidence Act has only established the Court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498-A, IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306, IPC whether the cruelty or harassment was caused 'soon before her death' or earlier.'
32. Let us now consider to proceed the prosecution case. In the present case the prosecution relied upon the evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 5. P.W. 1 to P.W. 3 are the close relatives of deceased Banalata. The evidence of P.W. 1 to P.W. 3 should be scrutinized properly so that their evidence should be corroborated by the evidence of P.W. 5. The residence of P.W. 5 was at a little distance from the P.O. From the evidence of P.W. 5 it is seen that Banalata disclosed to P.W. 5 about her unhappy married life and she had frequent visiting terms with the accused as neighbour and she requested Tulsi Sundari and Madhusudan for proper behaviour. In the evidence of P.W. 5, there was no allegation against Prankrishna except throwing metal glass towards Banalata causing bleeding injury on her right eye brow on the date of incident and then her mother (Tulsi Sundari) abused her in filthy language and she committed suicide ultimate by taking poison. Moreover, P.W. 5 did not state any allegation against Madhusudan on the alleged date of occurrence. P.W. 1, P.W. 2 and P.W. 3 did not state the nature of torture upon Banalata by Madhusudan and Prankrishna. The evidence of P.W. 5, as an independent witness, is more reliable to say about the misbehaviour on Banalata by Tulsi Sundari. P.W. 4 and P.W. 6 to P.W. 9 as hostile witnesses did not support the prosecution case but their evidence confronted with their earlier statement under Section 161, Cr. P.C. can be rejected.
33. Moreover, the evidence of P.W. 5 is more reliable as independent witness and her testimony can be acted upon Section 134 of the Evidence Act enjoins that evidence has to be weighed and not counted.
34. It is evident that P.W. 1 to P.W. 3 and P.W. 5 were not the eye-witness in respect of torture including physical torture upon Banalata by the accused. Those witnesses stated that they had learnt from deceased Banalata. The statement of a dead person as disclosed by these witnesses are admissible in evidence according to Section 32 of the Evidence Act. The evidence of P.W. 1, P.W. 2 and P.W. 3 who were the close relatives of deceased Banalata should not be thrown out as interested witness. But their evidence are corroborated with the evidence of P.W. 5 regarding the torture upon Banalata and demand of money. There are slight discrepancies in the testimonies of the above P.Ws. with reference to their statement under Section 161, Cr. P.C. But it cannot be said to be false. The charge of cruelty and abetment have been proved against accused Tulsi Sundari.
35. Accused Tulsi Sundari (mother-in-law) was in-charge of house hold affairs and she had the active role in the aforesaid torture which she did not stop in spite of caution by P.W. 5.
36. In view of the foregoing discussion and the materials on record, this Court is of the firm view that the accused Tulsi Sundari is liable to be convicted for the offence punishable under Section 306/498-A, IPC. No allegation of torture and demand of money against Madhusudan and Prankrishna is established from the evidence of P.W. 1 to P.W. 3 and P.W. 5. The accused Madhusudan and Prankrishna are acquitted from the charge under Section 306/498-A, IPC.
37. Therefore, we have no hesitation to hold that the prosecution has been able to prove the charge under Section 306/498-A, IPC, against Tulsi Sundari without any shadow of doubt.
38. The learned Advocate Mrs. Biswas also urged that if the conviction of the appellants are going to be confirmed, the sentence and fine may be reduced due to old age of the accused appellant. In support of the submission the Learned Advocate cited two decisions, reported in : (2002)10SCC76 (Devi Ram v. State of Haryana), : 2002CriLJ4124 (Mohd. Hoshan A.P. v. State of A.P.).
39. It appears in the paper book (page 42) the age of appellant. Tulsi Sundari was 50 years in July, 1989 during her examination under Section 313, Cr. P.C. The present age of Tulsi Sundari is about 69 years. Considering the old age, the conviction of accused appellant Tulsi Sundari is modified. Accused Tulsi Sundari is sentenced to rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 1000/- (one thousand) i.d. to suffer an imprisonment for another 2 (two) months.
40. The order of conviction of accused Tulsi Sundari Sarkar passed by the learned Assistant Sessions Judge, Kalna dated 19-8-1989 is modified. Accused Madhusudan Sarkar and Prankrishna Sarkar are acauitted from this case. They are on bail.
41. Their respective bail bonds are discharged.
42. Appellant Tulsi Sundari Sarkar is on bail. We cancel her bail bond with immediate effect.
43. She is directed to surrender before the Trial Court within 15 (fifteen) days from this order falling which the Trial Court shall take necessary steps for her apprehension and for sending her to prison to suffer the imprisonment.
44. The Trial Court should issue the modified jail warrant in respect of accused Tulsi Sundari Sarkar.
45. Send the LCR along with the copy of the judgment to the Trial Court for information and for taking appropriate action in the light of direction contained in this judgment.
46. Urgent xerox certified copy of this judgment and order by supplied to the Advocate on record for the appellant on making application at the earliest after complying with all necessary legal formalities.
Ashim Kumar Banerjee, J.
45. I agree.