JUDGMENT J.N. Hore, J. Labanya Halder and his mother Kamalabala Halder, the two appellants before us, were convicted under s. 498A and 306, Indian Penal Code by the learned Additional Sessions Judge, 2nd Court, Alipore and appellant no. 1 Labanya Halder was sentenced to rigorous imprisonment for 2 years and fine of Rs. 1,000/- in default, rigorous imprisonment for 3 month more under s. 498A and rigorous imprisonment for 10 years and fine of Rs. 2,000/-, in default, further rigorous imprisonment for 6 months for his conviction under s. 306, Indian Penal Code. For her conviction under s. 498A, appellant no. 2 Kamalabala was sentenced to rigorous imprisonment for 1 year and fine of Rs. 500/-, in default, rigorous imprisonment for one month more and for her conviction under s. 306, Indian Penal Code she was sentenced to rigorous imprisonment for 3 years and fine of Rs. 1,000/-, in default rigorous imprisonment for 3 months more. The substantive sentences under the two counts were ordered to run concurrently. Briefly stated, the prosecution case was as under : 2. Alpana Halder (the deceased, daughter of complainant Hiralal Naskar since deceased, was married to appellant no. 1 Labanya Halder on 24.4.83. The complainant spent about Rs. 30,000/- at the time of marriage of his daughter with Labanya. After marriage, Panchanan Halder, father of Labanya, demanded Rs. 10,000/- as dowry from him. The complainant had no means to pay the dowry and Alpana was subjected to all sorts of ill-treatment and cruelty including physical torture due to failure of the complainant to pay the dowry. 3. On 7.5.84 the complainant received information from Lalu Mondal and Sankar Mondal that Alpana's dead body was found by the side of the railway track at Baruipur near southern level crossing goomty torn in pieces being run over by a train. The complainant then went to the house of the accused and made enquiries about Alpana but the accused persons did not show any interest in the matter. The complainant then went to Baruipur Police Station and lodged a written complaint. He received the dead body of Alpana from the morgue and cremated the same. The accused persons did not take part in the cremation. 4. The complainant then went to Baruipur Police Station and lodged a written complaint. He received the dead body of Alpana from the morgue and cremated the same. The accused persons did not take part in the cremation. 4. As the police did not take steps on the written complaint lodged at the police station, the complainant then filed a written complaint under s. 302/34/120B/120, Indian Penal Code against the accused persons before the Sub-Divisional Judicial Magistrate on 20.6.84 which was sent to the officer-in-charge, Sonarpur G.R.P.S. for investigation under s. 156(3) of the Code of Criminal Procedure. On completion of investigation police submitted charge-sheet under s. 498A/306/120B, Indian Penal Code against the appellants and two others which in usual course ended in committal of the case to the Court of Session. 5. In defence, the appellants pleaded innocence denying all the material allegations, though it was admitted that Alpana committed suicide by throwing herself before a running train. The defence case was that Alpana left the matrimonial home on 22nd Baisakh on the pretext of visit to her aunt's house. 6. In order to bring home the charges to the accused, the prosecution examined 26 witnesses while the defence examined none. 7. That Alpana died being run over by train is not disputed before us and is amply proved by the prosecution. Her dead body was found by PWs 1, 2 and 3 who are Railway employees and other witnesses in the morning of 7.5.84 near the southern railway crossing goomty of Baruipur Railway Station. The head was severed from the trunk. PW 17 held inquest on the dead body. PW 11 Dr. J.N. Roy who held post-mortem examination on the body of the deceased found the following injuries : (1) Traumatic decapitation at the level of C5 and C6 upper segment - lower surface highly lacerated having extra-vasated blood with grease measuring 4" X 4" X bone. Lower segment-upper surface highly lacerated having extra-vasated blood and grease mark measuring 4" X 4" X bone. The two segments anatomically put together were found identical; (2) Lacerated injury over the right eye-brow measuring 1/2" X 1/2" X muscle ; (3) Traumatic separation at the level of TIO and TII. Upper segment lower surface highly lacerated having extra-vasated blood and grease mark 10" X 8" X bone; lower segment upper surface-highly extra-vasated blood and grease mark 12" X 6" X bone. Upper segment lower surface highly lacerated having extra-vasated blood and grease mark 10" X 8" X bone; lower segment upper surface-highly extra-vasated blood and grease mark 12" X 6" X bone. when apposed looked identical; (4) Fracture-right side tibea and fibula 4” above the right angle. In the opinion of the doctor, death was due to the above injuries which were ante-mortem and accidental in nature. As the injuries caused by running over by a train are consistent both with the theory of accident and suicide, we may ignore the opinion of the doctor that the injuries were accidental. The matter is to be decided by other evidence on record. 8. The evidence of PW 3 is that he saw the deceased coming from Kalyanpur side at about 4.40 A.M. and jumping on the railway line before a running train. Appellant No. 1 also admits in his examination under s. 313, Criminal Procedure Code that Alpana committed suicide. There is, therefore, no dispute that it was a case of suicide and not accident and the prosecution has also proved it satisfactorily. 9. The next question for our consideration is whether the appellants or any of them were guilty of cruelty within the meaning of s. 498A, Indian Penal Code and abetment of the suicide. Section 498A provides that whoever being the husband or the relative of the husband of a woman subjects her to cruelty shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine. Cruelty is defined in the Explanation as (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to came 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 or on account of failure by her or any person related to her to meet such demand. Section 113A which was inserted in the Evidence Act with effect from 25.12.83 by Criminal Law (Second Amendment) Act, 1983 provide, that when a married woman commits suicide within a period of 7 years from the date of her marriage and it is shown that her husband or a relative of her husband subjected her to cruelty within the meaning of s. 498A, Indian Evidence Act, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. So if the charge under s. 498A is established, the court may draw a presumption, that the appellant abetted the suicide committed by the deceased and are therefore, guilty under s. 306, unless the presumption is rebutted, So the most important question is whether the prosecution has been able to prove satisfactorily cruelty within the meaning of s. 498A of the Indian Penal Code. 10. PWs 5, 6, 7, 12, 13, 19, 19, 20 and 21 are witnesses to the alleged cruelty. Before discussing their evidence it may be pointed out that the petition of complaint was filed on 20.6.84-44 days after the occurrence. There is no satisfactory explanation for such an inordinate delay. Hiralal Naskar who filed the complaint died before the trial. There is no substantive evidence seeking to explain the delay. The explanation in the petition of complaint which has been wrongly accepted by the learned Judge as substantive evidence is that the complaint lodged a written complaint at the Baruipur Police Station but police did not take steps and ultimately he filed the complaint before the S.D.J.M. There is no absolutely no evidence to show that any such complaint was ever lodged either at the Baruipur Police Station or at Sonapur G.R.P.S. Even if such an information was lodged with the police, that does not explain such an inordinate delay in filing the complaint. If no step were taken by police, the complaint could have informed the higher authorities or filed the complaint in court after waiting for reasonable time for the police to take action. In our opinion, there is no satisfactory explanation for such an inordinate delay in filing the complaint which has been treated as First Information Report in the case. There was enough scope for distortion, embellishment and improvement. In our opinion, there is no satisfactory explanation for such an inordinate delay in filing the complaint which has been treated as First Information Report in the case. There was enough scope for distortion, embellishment and improvement. Another important fact in the case is that all the material witnesses where examined long after the date of occurrence. PWs 5 and 6 were examined by the Investigating Officer on 1.8.84 about 3 months after the occurrence. PW7 was examined on 10.8.84. PWs. 12 and 20 were examined on 18.8.84 while PWs. 13 and 19 were examined on 19.8.84 and 31.10.84 respectively. PW18 was examined as late as on 12.12.84 about 7 months after the occurrence. There is no explanation for such inconceivable delay in examined of the material witnesses. It may be mentioned here that the formal witnesses were examined such earlier. The unexplained inordinate delay in filling the complaint and examination of the material witnesses raises a doubt about the possibility of concoctions, embellishment and improvement. 11. PWs 5, 6, 13 and 18 are witnesses to the alleged statements of the deceased made long before her death complaining of harassment for dowry and torture. PW5 Ashoke Halder, a rickshaw van puller and a neighbour of PW 13 Jatinder Nath Mondal, ‘Pisemahasaya’ of the deceased (husband of father’s sister) has deposed that Alpana told him about 6 months before her death that she was subjected to torture by her husband for bringing inadequate money as dowry. He does not support the prosecution story that appellant no. 1 demanded a sum of Rs. 10,000/- for investment in his business. He did not make any such statement regarding torture for bringing inadequate dowry to the Investigating Officer. The omission is in respect of a material particular and his present testimony cannot be relied on. That apart, his testimony is vague and does not disclose what specific acts of torture where done by appellant no. 1. His evidence does not disclose when, where and under what circumstances she made the alleged statement. It appears to us to be quite improbable that Alpana would disclose such a personal matter to a young-man who was neither related to him nor intimately know to her. 12. 1. His evidence does not disclose when, where and under what circumstances she made the alleged statement. It appears to us to be quite improbable that Alpana would disclose such a personal matter to a young-man who was neither related to him nor intimately know to her. 12. The evidence of PW6 Sailen Adhikary is that he saw Alpana about 3 months after marriage in the house of Ghata alias Jatindra Nath Mondal (PW13), Alpana told him that the member of her father-in-law’s family demanded Rs. 10,000/- as dowry and as the money could not be paid she was subjected to torture. She did not, however, tell him who had subjected her to torture. His further testimony is that Ghata Mondal and his wife persuaded Alpana to go back to her matrimonial home. PW6 worked as labourer at Jatin Mondal’s house. PW13 Jatin Mondal has deposed that six months after her marriage. Alpana come to his house and reported that she had been tortured by the inmates of her matrimonial home. She asked him to inform her father. He sent for her father who came to his house. The further testimony of the witness is that Alpana did not tell him the reason for the tortures. The testimony of the witness shows the Alpana came only once to his house about 6 months after her marriage and made the statement. The testimony of PW13 also falsifies the evidence of PW6 that Alpana’s husband and in laws demanded a dowry of Rs. 10,000/- and for non-payment of the same she was subjected to torture. The testimony of PW13 cannot be relied on in view of the fact that he did not make any such statement of the Investigating Officer who recorded his statement under s. 161, Criminal Procedure Code as back as on 19.8.83. 13. The evidence of PW18 Nirmal Naskar, younger brother of Alpana does not fare better. His testimony is that Alpana visited their house on several occasion after her marriage and on the 3rd visit she told them that accused Labanya Halder demanded Rs. 10,000/- from her father through her for starting a business in readymade garments. The witness notices marks of injuries on her cheeks. The entire statement of the witness referred to above is contradicted by his earlier statement recorded under s. 161 Criminal Producer Code. 10,000/- from her father through her for starting a business in readymade garments. The witness notices marks of injuries on her cheeks. The entire statement of the witness referred to above is contradicted by his earlier statement recorded under s. 161 Criminal Producer Code. He did not say this even in his much belated statement recorded on 12.12.84. His testimony regarding demand for Rs. 10,000/- and existence of injury on the cheeks of the deceased is a subsequent improvement and must be discarded. 14. There is, therefore, no satisfactory evidence that the deceased made any statement regarding demand of dowry of her torture for non-payment of the money. Assuming that the deceased made such statement six months or one year before her death, the same are clearly inadmissible inasmuch as the circumstances have no proximate relation to the actual occurrence, viz. suicidal death of Alpana. 15. The Indian law on the question of nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of clause (i) of s. 32 viz. “the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death come into question” is not to be found in the English law. The leading decision on this question which has been followed by a long catena of authorities of almost all the courts including the Supreme Court is the case of Pakala Narayan Swami v. Emperor, AIR 1939 PC 47, where Lord Atkin has laid down the following tests: “It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the “circumstances” can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transactions, general expression indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible……..“circumstances of the transactions” is a phrase no doubt that conveys some limitations. It is not as boards as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than “res gestae”. Circumstances must have some proximate relation to the actual occurrence……………It will be observed that “the circumstances are of the transaction which resulted in the death of the declarant.” 16. In Sharad Birdhichaed Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1922, Fazal Ali, J. on a review of the authorities, laid down the following propositions : (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a parson who dies, whether the death is homicide, or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has, thought it necessary to widen the share of s. 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible, because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under s. 32. (3) The second part of Clause (I) of s. 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity 1ind sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4). It may be important to note that s. 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of s. 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant. 17. Sabyasachi Mukherjee, J. while concurring with the view of Fazal Ali, J. sounded a note of caution. He has observed as follows : “I would, however, like to state that this approach should be taken with a great deal of caution and care and though I respectfully agree with Fazal Ali, J that the test of proximity cannot and should not be too literally construed and be reduced practically to a cut-and-dried formula of universal application, it must be emphasised that whenever it is extended beyond the immediate, it should be the exception and must be done with very great caution and care. As a general proposition, it cannot be laid down for all purpose that for instance where a death takes place within a short time of marriage and the distance of time is not spread over three or four months, the statement would be admissible under s. 32 of the Evidence Act. This is always not so and cannot be so. In very exceptional circumstances like the circumstances in the present case such statements may be admissible and that too not for proving the positive fact but as an indication of a negative fact, namely raising some doubt about the guilt of the accused as in this case.” 18. There are no very exceptional circumstances like those in Sharad's case (supra) in the instant case. The distance is spread over more than 6 months. The element of continuity is lacking. There were isolated one or two statements made more than 6 months before the suicidal death of Alpana. It is not a case where statements and letters are directly connected with or related to her death or reveal a tell-tale story or that death was the logical culmination of a continuous drama long in process and is, as it were, a finale of the story. It is a case where a few cryptic and general statements were made long before her death which cannot be said to be directly connected or related to her death. In our opinion, the alleged statements, if any, are not relevant and admissible as dying declaration under s. 32(1) of the Evidence Act. 19. The next group of witnesses comprising PWs 7, 12, 19 and 20 have deposed on the movements and the alleged statement of the deceased on 6.5.84 the day before the occurrence. PW 7 Monimohan Naskar, husband of PW 19 and son of PW 20, has stated that on 6.5.84 his mother Chapala Naskar (PW 20) brought Alpana to their house from the railway track where she was found. He noticed a bruise on the left cheek of Alpana who was weeping on his query Alpana reported that her mother-in-law had beaten her and that her husband's sister had abused her. She remained at their house till 9.00 P.M, The latter part of his statement that her husband's sister abused her must be discarded as It has been contradicted by his statement under s. 161 Criminal Procedure Code. She remained at their house till 9.00 P.M, The latter part of his statement that her husband's sister abused her must be discarded as It has been contradicted by his statement under s. 161 Criminal Procedure Code. According to PW 19 Chandrabati Naskar, wife of PW 7, Alpana made a statement after bring brought by her mother-in-law that her husband and parents-in-law used to subject her to torture and also assault her. The witness also found a mark of injury on the cheek of Alpana. There are discrepancies in material particulars between the testimony of these two witnesses. PW 19 did not state to the I.O. that the father-in-law and sister-in-law of Alpana tortured her. PW 20 Chapala Naskar, mother of PW7 gives yet a different version of the alleged dying declaration. According to her Alpana said that she was being ill-treated at her matrimonial home. The evidence shows that the deceased made the statement in the house of PW 20 after she was brought from the Railway line in presence of these witnesses. But PWs 7, 19 and 20 give different versions of the alleged dying declaration. Moreover, the evidence of PW 21 shows that Alpana was taken by her uncle (PW 13) and aunt. According to him, he and PW 20 kept the girl in their custody till Jatin Mondal and his wife took her away. So the story of PW 20's taking the girl to her house where she made the alleged statement is falsified by the evidence of PW 21. 20. The evidence of PW12 Kartick Chandra Gharai is that he heard from his youngest daughter Sujata that the deceased came out of her matrimonial house after a quarrel. Sujata was not examined. So his evidence is hearsay and in admissible. The witness also states that he saw the deceased the day prior to her death and found her in good condition. He has also deposed that Jatin and his wife took the girl to their house. According to PW21, the deceased did not say anything on his query. 21. Such is the utterly unsatisfactory nature of the evidence adduced by the prosecution which has hopelessly failed to prove the alleged demand for dowry of Rs. 10,000/- and systematic torture, both physical and mental to the deceased for non-payment of the dowry goading the deceased to commit suicide. 21. Such is the utterly unsatisfactory nature of the evidence adduced by the prosecution which has hopelessly failed to prove the alleged demand for dowry of Rs. 10,000/- and systematic torture, both physical and mental to the deceased for non-payment of the dowry goading the deceased to commit suicide. The order of conviction and sentence under s. 498A Indian Penal Code cannot, therefore, be sustained. 22. We, therefore, allow the appeal and set aside the order of conviction and sentence. Appellant no. 1 Labanya who is in jail be forthwith set at liberty if not wanted in connection with any other case. Appellant no. 2 Kamalabala who is on bail be discharged from bail-bond. Ajit Kumar Sengupta, J.-I agree. Appeal allowed.