GORACHAND DE, J. ( 1 ) ANIL Kumar Choulia (husband), Santosh Kumar choulia (father-in-law) and Smt. Parulbala Choulia (mother-in-law) being aggrieved by and dissatisfied with the judgment and order of conviction and sentence dated 21. 9. 1989 passed by the Additional Sessions Judge, 5th Court, Midnapore in Sessions Trial No. XVIII of February 1988 arising out of G. R. Case No. 339 of 1986 preferred this appeal. By the said judgment, the learned Additional Sessions Judge found these appellants guilty under Sections 306 and 498a of the Indian Penal Code and convicted them thereunder as follows: (I) The appellant No. 1, Anil Kumar Choulia to suffer Rigorous imprisonment for 3 years and to pay a fine of Rs. 2000/-, in default, to suffer Rigorous Imprisonment for 2 months under section 306 of the IPC and also to suffer Rigorous Imprisonment for 2 years and to pay a fine of Rs. 1000/-, in default, to suffer rigorous Imprisonment for 1 month under Section 498a of the ipc and directed that both the substantive sentences shall run concurrently. (ii) The appellant No. 2, Santosh Kumar Choulia to suffer Rigorous imprisonment for 2 years and to pay a fine of Rs. 500/-, in default, to suffer Rigorous Imprisonment for 15 days under Section 306 ipc and also to suffer Rigorous Imprisonment for 3 months and to pay'a fine of Rs. 500/- in default, to suffer Rigorous imprisonment for 15 days under Section 498a of the IPC. (iii) The appellant No. 3. Smt. Parulbala Choulia to suffer Rigorous imprisonment for 3 years and 6 months and to pay a fine of rs. 1000/- in default, to suffer Rigorous Imprisonment for 1 month under Section 3o6 of the IPC and to suffer Rigorous imprisonment for 6 months and to pay a fine of Rs. 500/- in default, to suffer Rigorous Imprisonment for one month under section 498a of the Indian Penal Code. ( 2 ) THE prosecution case is that one Kabita Rani Dolai was given in marriage with the appellant No. 1, Anil Kumar Choulia in the year 1981 and during the marriage Rs. 25. 000/ was paid in cash to him. After 2-3 months of the marriage, the parents-in-law and the husband gave pressure on Kabita for bringing gold buttons and a pot for keeping betel leaves (Debar) and also demanded other articles as those articles given earlier were of cheap quality. 25. 000/ was paid in cash to him. After 2-3 months of the marriage, the parents-in-law and the husband gave pressure on Kabita for bringing gold buttons and a pot for keeping betel leaves (Debar) and also demanded other articles as those articles given earlier were of cheap quality. But the parents of Kabita could not meet the demand for which the parents-in-law and the husband used to abuse and assault her. Even when the relatives of Kabita used to visit her at her matrimonial home, the parents-in-law and the husband talked with them indecently and demanded the articles indicated herein above. During the casual visit of Kabita to her parents' house, she narrated the inhuman torture inflicted on her. However, after a settlement arrived at through the relatives of the parties, the parents-in-law and the husband assured that torture on Kabita would not recur. Moreover, the husband Anil Kumar choulia had an illicit love affair with the daughter of one Anil Jana. an inhabitant of the adjacent village and wanted to marry her. But Kabita did not acrede to such proposal of re-marriage for which she was treated with cruelty. On 18. 2. 1986 it was learnt from a reliable source that Kabila had died in her matrimonial home and on getting this information, the brother and other relations of Kabita rushed to the house of Anil and saw her lying dead on the first floor of her matrimonial home. It was detected that her left cheek was swollen and there were marks of assault on her hand and feet. Accordingly. Shri Monoranjan Dolai, brother of the deceased Kabita lodged a written complaint to the Officer-in-Charge, pingla Police Station on 23. 2. 1986 and on this basis, an FIR was drawn and Pingla P. S. Case No. 2 dated 23. 2. 1986 was started. In course of investigation of this case, prayer was made by the husband and the parents-in-law for anticipatory bail and the prayer was rejected on 28. 4. 1986. Thereafter, husband Anil and father-in-law Santosh surrendered before the learned SDJM on 23. 7. 1986 and they were taken into custody and subsequently were bailed out on 6. 8. 1986. The mother-in-law parulbala, however surrendered on 8. 8. 1986 and she was granted bail on the same date. 4. 1986. Thereafter, husband Anil and father-in-law Santosh surrendered before the learned SDJM on 23. 7. 1986 and they were taken into custody and subsequently were bailed out on 6. 8. 1986. The mother-in-law parulbala, however surrendered on 8. 8. 1986 and she was granted bail on the same date. On completion of the investigation, a chargesheet under sections 306 and 498a of the IPC was filed against we husband Anil and parents-in-law Santosh and Smt. Parulbala Choulia on 23. 7. 1987. Thereafter on 13. 11. 1987. the case was committed to the Court of sessions and on 2o. 2. 1988. the record was placed before the learned sessions judge and on that day after taking cognizance, the learned sessions Judge transferred the case to the learned Additional Sessions judge. 5th Court. Midnapore. ( 3 ) ON 9. 5. 88, charges under Section 498a/34 and Section 306 of the indian Penal Code were framed against all the three accused persons. Since all the accused persons pleaded not guilty to the charge, the case was taken up for evidence and altogether, 11 witnesses including the investigating Officer (I. O.) were examined by the prosecution. After examination of the accused persons under Section 313 of the Code of criminal Procedure opportunity was given to produce defence witness, if any. and as the defence did not give any evidence either oral or documentary, the learned Additional Sessions Judge took up the case for argument on 6. 9. 1989 and on conclusion of the argument of both sides oh 8. 9. 1969, he delivered the judgment and passed order in the manner indicated hereinabove. ( 4 ) MR. Sekhar Basu appearing on behalf of the appellants, challenged the judgment of the Sessions Court mainly on the ground that the prosecution failed to prove the charge as framed under Section 498a read with Section 34 of the Indian Penal Code or under Section 306 of the ifc. It is also argued that the learned Additional Sessions Judge failed to appreciate the charge and the evidence adduced in its proper perspective, and came to an erroneous finding. Accordingly, Mr. Basu scanning the materials on record and placing reliance on different case laws concluded that the case against the accused being not proved beyond reasonable doubt, all of them are liable to be found not guilty and consequently acquitted. ( 5 ) MR. Sudipto. Accordingly, Mr. Basu scanning the materials on record and placing reliance on different case laws concluded that the case against the accused being not proved beyond reasonable doubt, all of them are liable to be found not guilty and consequently acquitted. ( 5 ) MR. Sudipto. Moitra appearing on behalf of the State, however, supported the judgment of the learned Sessions Judge and after scanning the evidence and the circumstances, concluded that the conviction and sentence are liable to be upheld. ( 6 ) BEFORE entering into details, I deem it proper to reproduce the charges levelled against the accused persons which are as follows: charges i, Shri B. U. Mukherjee, Additional Sessions Judge, 5th Court, midnapore, hereby charge you-1. Anil Kumar Choulia. 2. Santosh Kumar Choulia 3. Sm. Parulbala Choulia. as follows: that you being the husband, father-in-law and mother-in-law of Sm. Kabitarani Choulia on 17. 2. 1986 corresponding to 5th Falgoon. 1392 B. S. at Chaksola (Dujipore) P. S. Pingla in furtherance of common intention of you all subjected the said Sm. Kabitarani choulia to cruelty by physical and mental torture as is likely to derive her to commit suicide committed an offence punishable under Section 498a/34 of the Indian Penal Code and within the cognizance of the Court of Sessions. Secondly, that on 18. 2. 1986 corresponding to 6th Falgoon. 1392 B. S. at Chaksola (Dujipore) P. S. Pingla one Sm. Kabitarani Choulia committed suicide and that you abetted its commission by physical and mental lorture and thereby committed an offence punishable under Section 306 of the Indian Penal Code and within the cognizance of the Court of Sessions. And I hereby direct that you be tried by this Court on the said charges. Charges read over and explained in Bengali to the accused persons each of whom pleads not guilty to each of the charges and claims to be tried. " ( 7 ) MR. Sekhar Basu pointing out the first charge framed under Section 498a/34 of the Indian Penal Code contended that the alleged cruelty by physical and mental torture was subjected on the victim, Kabila on 17. 2. 1986 and that cruelty was likely to drive her to commit suicide. " ( 7 ) MR. Sekhar Basu pointing out the first charge framed under Section 498a/34 of the Indian Penal Code contended that the alleged cruelty by physical and mental torture was subjected on the victim, Kabila on 17. 2. 1986 and that cruelty was likely to drive her to commit suicide. It is also pointed out that in the second charge framed under Section 306 of the Indian penal Code, it is indicated that the accused persons abetted the commission of suicide by physical and mental torture on 18. 2. 1986. The dates of alleged cruelty as well as physical and mental torture being restricted to the dates 17. 2. 1986 and 18. 2. 1986, the evidence given by the prosecution as regards previous torture etc. should not be looked into and in fact, the defence did not cross-examine the witnesses on the evidence beyond the said two dates inasmuch as the entire onus is upon the prosecution to bring home the said charges framed by the Court and not opposed to by the prosecution earlier. So the substance of argument of Mr. Basu is that the alleged cruelty by physical and mental torture was inflicted on the victim on 17. 2. 1986 and the evidence given by the prosecution in respect of the incident prior to that day are to be brushed aside. ( 8 ) MR. Basu also argued that as the date of alleged cruelty is fixed on 17. 2. 1986, the prosecution was not competent to adduce evidence beyond the said date fixed in the charge and the Trial Court was also not competent to receive evidence beyond the said date. Accordingly, he contended that evidence adduced by prosecution beyond 17. 2. 1986 should not be relied upon. ( 9 ) REFERRING to Sections 211 and 215 of the Code of Criminal Procedure, mr. Basu argued that there is no ambiguity in framing of the charge under Section 498a/34 of the Indian Penal Code. So, any further particular beyond 17. 2. 1986 and not specifically stated in the charge will undoubtedly mislead the accused. The Trial Court without considring these provisions relied on such particulars beyond 17. 2. 1386 that occasioned into a failure of justice inasmuch as the accused was misled by such further particulars not included in the charge. ( 10 ) MR. 2. 1986 and not specifically stated in the charge will undoubtedly mislead the accused. The Trial Court without considring these provisions relied on such particulars beyond 17. 2. 1386 that occasioned into a failure of justice inasmuch as the accused was misled by such further particulars not included in the charge. ( 10 ) MR. Moitra, however, referring to Section 464 of the Code of Criminal procedure contended that the conviction of the accused persons in this case having been passed by a court of competent jurisdiction cannot be. invalidated merely on the ground that there was error or omission in the charge. The question of prejudice of the accused persons did not arise inasmuch as the police papers including the statements recorded under section 161 of the Criminal Procedure Code were supplied to the accused persons from which it was made clear as to on what basis prosecution was going to proceed against them, so after the framing of charge and a full trial and conviction, the accused persons cannot take a plea of prejudice nor it can be said that the failure of justice has, in fact, been occasioned. It is also contended that even during the cross-examination or while replying questions under Section 313 of the Code of Criminal Procedure, no objection was raised by the defence indicating that the defence was misled by any error or omission in the charge or due to the evidence adduced in this case. So Mr. Moitra concluded that though the first charge under Section 498a/34 of the Indian Penal Code was not happily drafted, but it cannot be said from the materials supplied to the accused that they were misled by the charge that occasioned in a failure of justice. Moreover, when such objection was not raised at an earlier stage in the proceeding, the stand taken by the appellants is liable to be negatived under the provision of Section 465 of the Code of Criminal Procedure. ( 11 ) AS regards the second charge framed against the accused persons under Section 306 of the IPC, Mr. Basu contended that according to the prosecution the abetment of commission of the suicide had actually taken place on 18. 2. 1986 on account of physical and mental torture perpetrated on the victim. So, there was no scope to adduce any evidence as regards abetment of suicide beyond the said date, 18. 2. Basu contended that according to the prosecution the abetment of commission of the suicide had actually taken place on 18. 2. 1986 on account of physical and mental torture perpetrated on the victim. So, there was no scope to adduce any evidence as regards abetment of suicide beyond the said date, 18. 2. 1986. But the Trial Court ignoring this imporiant fact and also without taking into consideration that the victim was subjected to cruelty only on 17. 2. 1986 came to a finding that the prosecution was able to prove that Kabita after her marriage was subjected to cruelty "and harassment by her husband as well as the relations of her husband namely, the father-in-law and the mother-in-law and accordingly, with the aid of presumption under Section 113a of the Evidence Act concluded that the suicide of Kabila had been abetted by the three accused persons. Mr. Basu placing reliance on a division Bench judgment of this Court in Protima Dutta and Anr. vs. State (81 CWN 713) pointed out the requirements of proving abetment to commit suicide. In paragraph 17, their Lordships viewed:"a person abets the doing of a thing when he or she, inter alia, instigates any person to do that tiling. The other modes of abetment besides instigation are conspiracy and intentional aid. The word 'instigation' literally means to goad or urge forward or to provoke, incite, urge or encourage to do an act It is something more than cooperation. " ( 12 ) IT is argued that there is nothing on the record to show or indicate that the accused persons suggested to the deceased by their conduct or by their language to commit suicide. Mr. Basu pointing out the evidence adduced in this case forcefully argued that there is no material to show or indicate that any of the accused persons by their conduct or language, direct or indirect, encouraged or provoked Kabita to commit suicide. ( 13 ) MR. Basu also placed reliance on another Division Bench judgment of this Court reported in 1989 C. Cr. L. R (Cal) 4o (Niharbala Banerjee and Anr. vs. State) to augment his argument that there is nothing on the record to show or indicate that there was any intentional aiding or abetting at the hands of the accused persons for the commission of the alleged offence. Scanning the evidence of the witnesses Mr. L. R (Cal) 4o (Niharbala Banerjee and Anr. vs. State) to augment his argument that there is nothing on the record to show or indicate that there was any intentional aiding or abetting at the hands of the accused persons for the commission of the alleged offence. Scanning the evidence of the witnesses Mr. Basu pointed out that mere indications that the deceased was treated with cruelty is not sufficient to prove that the accused persons abetted commission of suicide by the victim Kabita. ( 14 ) MR. Basu also placed reliance on a judgment of the Apex Court reported in 1995 Supreme Court Cases (Cri) 1157 (Mahendra Singh and Anr. vs. State of Ml P. I to show that for proving abetment as defined in Section 107 of the Indian Penal Code, it is to be proved that the accused persons actually abetted the doing of a thing by instigating the victim to do the thing, or engaged with one another in any conspiracy for the doing of the thing and if it actually happens pursuant to that conspiracy, or the accused persons intentionally aided by their act or illegal omission to do the thing, namely, the suicide. Mr. Basu contended that neither of the ingredients of the abetment are attracted on the statements made by the accused persons and accordingly, it is concluded that the prosecution hopelessly failed to bring home the charge framed under section 306 of the Indian Penal Code. ( 15 ) MR. Basu also placed reliance on a decision of the Apex Court in ramesh Kumar vs. State of Chhattisgarh, reported in JT 2001 (S) SC 599, to show that the stray allegations of dowry demand as made by the interested witnesses like the brother and mother of the victim should not have been relied upon by the Trial Court for converting it into a case of dowry death. It is contended that to satisfy the requirement of instigation, a reasonable certainty to incite the consequence most be spelt out. It is argued that there is nothing on the record or in the evidence to show that the accused persons had by their acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option than to commit suicide. Mr. It is argued that there is nothing on the record or in the evidence to show that the accused persons had by their acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option than to commit suicide. Mr. Basu argued that neither it is indicated in the charge as to how the accused persons instigated the victim to commit suicide nor there is any material to show or indicate that any of the accused persons on 18. 02. 1986 instigated the victim to commit suicide. Hence, Mr. Basu concluded that the prosecution hopelessly felled to prove the charge as framed under section 498a/34 and under Section 306 of the Indian Penal Code and accordingly all the accused persons are liable to be found not guilty and consequently, the sentences are to be set aside with an order of acquittal. ( 16 ) MR. Moitra was fair enough to concede that the charge under Section 306 of the IPC was net properly drafted. But it is pointed out that the details of abetment though not given in the charge, but when a charge under Section 498a/34 of the IPC, was framed in this case it is to be noted that 'cruelty' and "harassment' as explained in Section 498a are inbuilt in Section 306 and as such, due to Improper drafting of the charge the accused persons were neither prejudiced nor there was any occasion of failure of justice. So Mr. Moitra analysing the evidence adduced in this case on behalf of the prosecution and placing reliance on different case laws concluded that the accused persons had no occasion to be misled on the ground of certain omissions or error or irregularity in the charge and as these points were not taken At an earlier stage In the proceeding the accused persons are precluded to take up these points after the final disposal of the case. ( 17 ) FOR elaborating his argument Mr. Moitra drew the attention of this court to the following facts and circumstances elucidated in the evidence : (I) The marriage of the victim had taken place before 5 years of her death. ( 17 ) FOR elaborating his argument Mr. Moitra drew the attention of this court to the following facts and circumstances elucidated in the evidence : (I) The marriage of the victim had taken place before 5 years of her death. (ii) The victim used to stay in her in-law's house with her husband and parents-in-law (iii) There was persistent demand of dowry in the form of exchange of inferior quality of articles and inability to fulfill such demand. (iv) As the demand of dowry in the form of exchange of inferior quality of articles was not fullilled, torture upon the victim started. (v) Attempts were made for settlement, but such talks of settlement failed. (vi) There was unnatural death of the victim in the house of her husband. (viii) Mother-in-law and husband of- the victim were present at the time of such unnatural death. (viii) Death of the victim was due to consumption of pesticides. (ix) The opinion of the autopsy surgeon indicated that instantaneous death after intake of pesticides was not possible. But no attempt was made by the accused persons for giving requisition of a doctor or to send the victim to any hospital for treatment. (x) No information was sent by the in-laws family to the parents of the victim as regards the unnatural death. (3d) After the lodging of the FIR the accused persons disappeared. {xii) alse explanation was offered by the accused persons while questioned under Section 313 of the Code of Criminal procedure as regards sending of death information or disappearance of the accused persons from the date of the FIR. ( 18 ) FROM all these facts and circumstances, Mr. Moitra concluded that the prosecution was able to prove both the charges against the accused persons and they were rightly convicted by the Trial Court. However Mr. Moitra was fair enough to point out that the PW. 6 gave evidence against the father-in-law as regards the demand of dowry and as there is no corroboration of this statement the Court is to take into consideration whether conviction of father-in-law can be upheld on the basis of the evidence adduced by a single witness in this case. ( 19 ) BEFORE taking up the law points as pointed out by the learned counsels of both sides, we deem it proper to assess the evidence adduced in this case. ( 19 ) BEFORE taking up the law points as pointed out by the learned counsels of both sides, we deem it proper to assess the evidence adduced in this case. It is to be noted that altogether 11 witnesses were examined in this case and for the sake of convenience we deem it proper to analyse their evidence after giving their description. PW. 1 : Monoranjan Dolai. brother of the victim-informant. PW. 2 : Narayan Chandra Goraia member of the local Panchayat samity, Chatla where the accused persons used to reside. PW. 3 : Haripada Chouliaa co-villager of the accused persons. PW. 4 : Krishna Prosad Chouliaa co-villager as well as relation of the accused persons. PW. 5 : Usharani Dolaimother of the victim. PW. 6 : Shri Goblnda Dasa co-villager of the father of the victim. PW. 7 : Dr. Kingshuk Basuautopsy surgeon. PW. 8 : Sambhu Tudualleged to be a domestic servant in the family of the accused persons. PW. 9 : Shri Ajay Bhattacharjeea private tutor who used to reside in the house of Monoranjan Dolai (PW. 1 ). PW. 10 : S. I. Asit Senguptathe Investigating Officer. PW. 11: A. S. I. Ashis Kumar Bhowmikheld inquest on the dead body of the victim, Kabita. ( 20 ) IT is pertinent to mention that no evidence was adduced by the defence after the examination of the accused persons under Section 313 of the Code of Criminal Procedure. But the defence case as could be ascertained from the cross-examination of the PW. 5, Usha Rani Dolai (mother of the victim. Kabita) is that Kabila committed suicide as an outburst of emotion after she had quarreled with her mother-in-law over feeding of milk of her child. It also transpires from the cross-examination of the PW. 1. Monoranjan Dolai (brother of the victim) at the time of her death. Kabita left behind a daughter aged 8 month and that the said daughter is still alive and is living in custody of the accued persons. ( 21 ) OUT of the 11 witnesses examined by the prosecution. PW. 1 and pw. 5 respectively the brother and mother of the victim practically reiterated the facts included in the written complaint in details. Both of them claimed that during the marriage of the victim with the accused Anil, a cash dowry of Rs. 25. 000/- was given along with other articles. PW. 1 and pw. 5 respectively the brother and mother of the victim practically reiterated the facts included in the written complaint in details. Both of them claimed that during the marriage of the victim with the accused Anil, a cash dowry of Rs. 25. 000/- was given along with other articles. that after 2-3 months of the marriage, the husband and parents-in-law asked the victim to change the articles given during the marriage on the plea that those articles were of cheap quality, that they demanded a set of gold buttons for the husband and an utensil for keeping betel leaves (Dabar) for the mother-in-law and as such demands were not fulfilled, they used to torture the victim and also assaulted her. that all these facts they came to know from the victim during her casual visits to her parents' house, that Anil had an affair with the daughter of one Anil Jana. that attempts were made to settle the dispute, that the victim thereafter committed suicide as the torture inflicted upon her was unbearable. ( 22 ) PW. 9. Ajay Bhattacharyya claiming himself to be a private tutor in the house of the father of the victim also claimed that he came to know from the victim that her mother-in-law and her husband used to torture her by assaulting her, that the victim's father used to take her to her matrimonial home after reasoning, that he also came to know from the victim that her husband had an affair with the daughter of one anil Jana of the adjacent village and that Kabita committed suicide by consuming poison. ( 23 ) AFTER a careful scrutiny of the evidence adduced by the three witnesses, it appeal's that PW. 9 did not disclose the reason of the torture inflicted on the victim. The story of an affair of victim's husband with the daughter of one Anil Jana as disclosed by the PW. 9 before the Court is undoubtedly a new evidence as it transpires from the evidence of the investigating Officer (PW. 1d) that he (PW. 9) did not make such a statement before the police. It was only stated before the police that he came to know from the victim that Anil had an affair with another person before his marriage. ( 24 ) THE PW. 1d) that he (PW. 9) did not make such a statement before the police. It was only stated before the police that he came to know from the victim that Anil had an affair with another person before his marriage. ( 24 ) THE PW. 1, however, claimed that the victim disclosed that Anil was in love with the daughter of Anil Jana, that Anil gave a proposal to the victim to accept the re-marriage of Anil with that girl, that the victim did not agree to such proposal for which Anil asked the victim to die so that he could marry the girl again. But this fact of instigation to kill herself is not indicated in the FIR and as such, the instigation to die is undoubtedly a new evidence given before the Court and it is absolutely an embellishment. Neither the PW. 5 nor the PW. 9 corroborated this part of evidence of the PW. 1. No other witness has been examined in support of existence of Anil Jana in the adjacent village of Anil or the alleged affairs between Anil and the daughter of Anil Jana. The accused Anil in his cross-examination under Section 313 of the Code of Criminal procedure pleaded his ignorance about any person named Anil Jana. Thus, according to PW. 9, Anil had an affair with a girl before his marriage. The PW. 5 only stated about an affair of Anil with the daughter of Anil jana. Both these witnesses remained completely silent about the proposal of the accused Anil to remarry that girl of Anil Jana. Thus, the PW. 1 alone claims that the accused Anil gave a proposal of re-marriage and on the denial of the victim, she was subjected to torture. This uncorroborated testimony of the PW. 1 coupled with the embellishment as indicated hereinabove. are sufficient to indicate that the above-mentioned embellishment was made with a purpose. This fact, coming for the first time in course of evidence, was also not included in the charge. Accordingly, the accused persons had no opportunity to challenge such evidence coming for the first time in Court and if this embellished evidence is taken into consideration for the purpose of finding out the guilt of the accused persons, it would tantamount to failure of justice inasmuch as the accused persons were misled by such new facts. Accordingly, the accused persons had no opportunity to challenge such evidence coming for the first time in Court and if this embellished evidence is taken into consideration for the purpose of finding out the guilt of the accused persons, it would tantamount to failure of justice inasmuch as the accused persons were misled by such new facts. Moreover, it is highly unsafe to rely on the evidence of PW. 1 on this score for the purpose of proving the mental cruelty perpetrated on the victim so as to bring the offence punishable under Section 498a of the indian Penal Code. ( 25 ) AS regards the other part of the evidence indicating physical and mental torture on the victim on account of the inability of the parents ot the victim to change the articles or to give a set of gold buttons or an utensil for keeping the betel leaves (Debar), it is already indicated above that PW. 9 did not disclose the cause of torture upon the victim. The PW. 1, however, claimed that during their occasional visits in the house of the victim, the parents-in-law and the husband of the victim used to talk with them indecently over their demand for the articles, but the PW. 1 never claimed that he witnessed the assault of the victim at the hands of the accused persons. But the PW. 5 claimed that during their visits to the house of the accused persons, she saw the accused persons assaulting the victim. This very important fact of assault of the victim in pr sence of the PW. 1 and PW. 5 is neither disclosed in the fir nor it is corroborated by any independent witness. Actually if such an occasion did arise, it cannot be expected that it is not indicated in the written FIR which was filed after six days of the death of the victim. So a reasonable doubt is to be expressed as regards the evidence given by the PW. 5; on the point of assault on the victim in their presence. It is needless to mention that this fact is also not specifically indicated in the charge. So, it can be said that the accused persons were misled by this new fact and acceptance of such an evidence would undoubtedly occasion into a failure of justice. 5; on the point of assault on the victim in their presence. It is needless to mention that this fact is also not specifically indicated in the charge. So, it can be said that the accused persons were misled by this new fact and acceptance of such an evidence would undoubtedly occasion into a failure of justice. ( 26 ) SO comes the evidence on the point of alleged disclosure of the victim on the point of treating her with cruelty. The PW. 1, PW. 5 and pw. 9 have stated that the victim disclosed that she was being tortured and assaulted by the accused persons for non-fulfilment of the demand of return of the articles and the new demand of one set of gold buttons and an utensil for keeping betel leaves (Debar ). It "is already discussed above that PW. 9 did not disclose the reason of the torture on Kabita. So the brother (PW. 1) and mother (PW. 5) of the victim Kabita narrated the cause of such torture. The PW. 1 further stated before the Court that on 2-3 occasions the PW. 1 and his father sat with the relations and para people of the accused persons for solving the matter when assurances were given by those people that the incident of torture would not recur. The PW. 5 claimed that before the Maker Sankranti day, PW. 1 went to the house of the victim and talked to the para people and neighbours for a settlement Out of the neighbours produced before this Court, PW. 3 and PW. 4 were declared hostile by the prosecution and from their evidence, it revealed that they were relations of the accused persons. From them, it came out that there was no occasion of any torture upon the victim. No question was also asked as to whether there was any talk of settlement as claimed by PW. 1 or PW. 5. The PW. 2 is a member of the local Panchayat Samity where the accused persons reside and his specific evidence in cross-examination is that the relationship of the accused persons with the victim Kabita was good. He also claimed that immediately after getting the news of suicide, he informed the matter to the Pirigla Police Station. So the story of any settlement as claimed by the PW. 1 and PW. 5 remains uncorroborated. He also claimed that immediately after getting the news of suicide, he informed the matter to the Pirigla Police Station. So the story of any settlement as claimed by the PW. 1 and PW. 5 remains uncorroborated. Moreover, the time of such settlement is also contradictory. According to the PW. 1, these talks of settlement bad taken place on 2-3 occasions whereas the PW. 5 claims that such settlement had taken place one month before the death of rabita, that is at the time of Maker Sankranti when the PW. 1 visited the house of the victim. So if the story of settlement is not corroborated, it is difficult to place any reliance on the evidence of the PW. 1 and PW. 5 on the point of alleged assault before the last 5 years of the death of the victim. If the torture is unbearable and it iff a continuing one. there should have been some other corroborative material, but all such materials had not been produced before the Trial-Court. ( 27 ) PW. 6 is a neighbour of PW. 1. He claimed that Kabita used to tell him about the torture inflicted on her. PW. 6 also stated that the cause of such torture was the payment of cash dowry, button set and a Dabar. This fact was not disclosed by the PW. 6 before the Investigation Officer. He simply stated before the Investigating Officer that Kabita. disclosed that her in law family including her husband used to demand cash dowry and articles. But neither the PW. 1 nor the PW. 5 gave any evidence about the demand of cash dowry. So it is very unsafe to place any reliance on the evidence of the PW. 6 as he has contradicted the PW. 1 and PW. 5 on a vital disclosure of the victim. Moreover, the PW. 6 did not know Ajay bhattacharyya who deposed in this case as PW. 9. He has also not claimed that PW. 9 used to stay in the house of the PW. 1 as a teacher as claimed by the PW. 9. Of course, the evidence of PW. 9 as regards his stay in the family of the PW. 1 for teaching is not corroborated by the PW. 1 and pw. 5. The PW. 9 also failed to supply the details of his stay in the house of the PW. 1 as a teacher as claimed by the PW. 9. Of course, the evidence of PW. 9 as regards his stay in the family of the PW. 1 for teaching is not corroborated by the PW. 1 and pw. 5. The PW. 9 also failed to supply the details of his stay in the house of the PW. 1 and he claimed before the police that he was residing in the house of some person or persons for the purpose of private tution. ( 28 ) SO from all these contradictory evidence on the vital question of torture on the victim undoubtedly cast a shadow on the real state of affairs. It is also interesting to note that all such alleged tortures are not indicated in the charge as is discussed hereinabove and as such, it is rightly argued by Mr. Basu that there was no occasion to cress-examine these witnesses on this vital fact. Mr. Moitra argued that errors in not disclosing these facts are not vital in this case. But it is to be" kept in mind that initially no onus was shifted on the accused persons to disprove a case of this nature, and the entire onus was upon the prosecution to prove a case against accused persons after framing of proper charge incorporating all the material particulars. From the trend of investigation and the framing of charge, it is sufficiently clear that the entire prosecution case centered round the alleged incident that took place on 17. 2. 1986 and 18. 2. 1986 and not beyond that. The Investigating agency after two months of the alleged incident somehow collected the statement of one Sambhu Tudu (PW. 8 ). This PW. 8 claimed that he was residing as a cowherd in the family of the accused persons. But this statement is not corroborated by any of the witnesses examined in this case. On the other hand, the accused persons specifically denied the prosecution story of engagement of the PW. 8 in their house as a cowherd. This FW. 8. as it appears, narrated before the Investigating- Officer an incident that was taught to be a case of murder. The story that was made out before the police is that in the evening of 17. 2. 1986 when the accused pandbala (mother-in-law) was boiling paddy she assaulted the victim. 8 in their house as a cowherd. This FW. 8. as it appears, narrated before the Investigating- Officer an incident that was taught to be a case of murder. The story that was made out before the police is that in the evening of 17. 2. 1986 when the accused pandbala (mother-in-law) was boiling paddy she assaulted the victim. It is also stated that the husband Anil thereafter assaulted the victim by means of one Arah broken part of a cart which is in the nature of a blunt stick) and thereafter, feedbly took her to the first floor and poured poison Inside Use mouth of he victim as a result of which, the victim died. But while examined before this Court, this witness (PW. 8) claimed that at the relevant time, he used to pass his nights in the house of the accused persons. The PW. 8 further stated that the victim Kabita was not treated well and the accused Anil and his mother used to assault kabita. It is also stated that on one evening when the paddy was being boiled, the mother-in-law Parulbala assaulted the victim Kabita when kabila leff the place and went upstairs. Then accused Anil came back from outside and he along with his mother went to the upstairs with kabita, a hue and cry was heard from up-stairs, the PW. 8 went there and found that the accused Anil was sitting on the floor and his mother was standing on the other side of Kabita and Kabita was on the ground and thrashing her limbs. The PW. 8 further stated that on seeing this he came down. Accordingly, the witness was declared hostile and on being cross-examined by the prosecution, the PW. 8 claimed that he was examined by the police when he disclosed that the accused Anil returned home and assaulted Kabita by means of an 'arab. '. But in the next breath, the PW. stated that at the relevant time he had gone to the nearby pond. However, the PW. 8 disclosed' that he stated before the police about the assault of Kabita in the hands of Anil on prior 3-4 occasions. In cross-examination by the defence, the PW. 8 admitted that during the last 6 years or so, he was staying in the family of one Haribabu. The PW. However, the PW. 8 disclosed' that he stated before the police about the assault of Kabita in the hands of Anil on prior 3-4 occasions. In cross-examination by the defence, the PW. 8 admitted that during the last 6 years or so, he was staying in the family of one Haribabu. The PW. 8 also tried to indicate that at the time of boiling of paddy, the accused parulbala gave two slaps on her (Kabila's) cheek. It is also disclosed by the PW. 8 in course of cross-examination by the defence that he raised hue and cry, but no outsider did come after the alleged incident. Much stress was given by the prosecution on the evidence of this PW. 8. It is claimed that there is no reason to disbelieve the evidence of the PW. 8 on the point of assault on the victim at the hands of the mother-in-law and subsequently at the hands of the husband. But it Is already indicated above that this witness was declared hostile by the prosecution. It is also indicated hereinabove that the engagement of the PW. 8 in the house of the accused persons has not been corroborated by any of the witnesses. The evidence of the PW. 8 is also contradictory on vital points. Even if it is believed that on the issue of boiling of paddy the mother-in-law gave two slaps on the victim that cannot be construed to be an instigation to commit suicide. ( 29 ) IN the case of Ramesh Kumar (supra), the Apex Court referring to the case of State of West Bengal us. Onlal Jaiswal and Anr. , reported in (1994) 1 SCC 73 , cautioned 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 the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance. 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 in 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. " ( 30 ) IN the instant case, the prosecution alleged that the cruelty was perpetrated on the victim on 17. 2. 86 and abetment of suicide was also given at the same time as a result of which the victim committed suicide on 18. 2. 1986. There is no ambiguity in the charge as framed in this case under Section 498a/34 and Section 306 of the Indian Penal Code. It appears that placing reliance on the evidence of PW. 8 such a charge was framed and it was never disclosed that the alleged cruelty was perpetrated on the victim since 2-3 months after the marriage. So the entire case as made out by the prosecution centres round the alleged incident of 17. 2. 1986 and 18. 2. 1986 and hence, it is rightly argued by Mr. Basu that there was no reason on the part of the defence to cross-examine the witnesses on the facts that were not included in the charge. True it is that police papers were handed over to the accused persons. But at the same time it is to be kept in mind that while framing the charge it was made clear to the accused persons that they were being tried on the basis of the incidents of 17. 2. 1986 and 18. 2. 1966. So acceptance of evidence beyond the said period actually misled the accused persons and the Trial Court relying on such evidence came to a finding that resulted into failure of justice. There is nothing in the evidence of PW. 8, nor in the materials collected by the prosecution and produced before the Court during the trial to show or indicate that any of the accused persons gave any inducement to the victim for committing suicide. There is nothing in the evidence of PW. 8, nor in the materials collected by the prosecution and produced before the Court during the trial to show or indicate that any of the accused persons gave any inducement to the victim for committing suicide. ( 31 ) IN this connection it would not be out of place to point out that only 8 months before the suicide, the victim gave birth to a child thereby falsifying the story of continuous torture upon the victim. Moreover, the pw. 5 in her cross-examination admitted that the victim had ill health throughout and that she had frail health. The accused Parulbala while examined under Section 313 of the Code of Criminal Procedure was questioned as to whether Kabita committed suicide and the reply came that she was of that bant of mind. This is undoubtedly a very vital point; from the evidence as adduced by the PW. 5 and the reply given by the accused Parulbala. it appears that the mental break up of the victim was not normal, may be due to her frail health, and in fact the cause of commission of suicide by her is not properly explained by the prosecution. It is needless to point out that the prosecution has failed to prove the continuous torture or ill-treatment upon Kabita by framing a proper charge. ( 32 ) THE next question is whether the presumption as to abetment of suicide under the newly inserted Section 113a of the Indian Evidence act is applicable in the present case. The said Section in the Evidence act was introduced on 25. 12. 1983 by Criminal Law (Second Amendment)act. 1983 reads as follows :"113-A. Presumption as to Abetment of Suicide by a Married women. When the question is whether the 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 7 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 the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation: For the purposes of this Section 'cruelty' shall have the same meaning as In Section 498-A of the Indian Penal Code (45 of 1860 ). Simultaneously. Section 498-A was also inserted in the Penal code by the same Amendment Act as follows: her to cruelty: 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 3 years and shall also be liable to fine. Explanation. For the purposes of this Section 'cruelty' means : (a) Any willful conduct which is of such a nature as it 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 (o 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. " ( 33 ) IT is already discussed above that the allegation of cruelty given for the first time after the suicide of the victim has not been corroborated though it transpires from the evidence of the witnesses that such corroboration was available by production of the witnesses in respect of the alleged talks of settlement between the parlies. But not a single witness of the said alleged talks of settlement has been examined to show that cruelty was perpetrated on the victim and thereafter the problem was solved by settlement. So the evidence of the most interested witnesses like PW. 1 and PW. 5 on the point of cruelty have not been corroborated beyond reasonable doubt. The nature of cruelty as is also pointed out by the PW. 1. PW. 5, PW. 6 and PW. 9 is not identical. So at one side the cruelty and on the other side, the talks of settlement and thereafter re-staying In the in-laws' house by the victim having not been proved by convincing evidence, a doubt can reasonably be expressed as regards the nature of cruelty. 1. PW. 5, PW. 6 and PW. 9 is not identical. So at one side the cruelty and on the other side, the talks of settlement and thereafter re-staying In the in-laws' house by the victim having not been proved by convincing evidence, a doubt can reasonably be expressed as regards the nature of cruelty. So the mere allegation of cruelty, without anything more by way of corroboration, is insufficient to prove the offence of abetment of suicide under Section 306 of the Indian Penal Code in accordance with the definition of abetment in Section 107 of the Indian Penal Code. ( 34 ) THE effect of the amendment, both in the Evidence Act and the indian Penal Code, as indicated hereinabove, is that the prosecution is relieved of the. onus to prove the ingredients of abetment to suicide beyond reasonable doubt in case of a suicide by a married woman within 7 years of marriage. But the pre-requisites of the presumption is the proof of cruelty within the meaning of Section 498a of the Indian Penal Code and as soon as if is proved that a married woman was subjected to cruelty at the hands of her husband or by the relatives of the husband, the presumption of abetment of suicide will be there and the onus would then shift to the accused persons to prove that they did not abet the suicide. From the facts and circumstances of this case and the discussions hereinabove made, it is sufficiently indicated that a reasonable doubt should be expressed as regards the story of cruelty on. the victim. Or in their words, it can be said that the story of cruelty has not been proved beyond reasonable doubt. Accordingly the prosecution having failed to prove the basic requirement of the presumption, the onus never shifted to the accused persons and as such, it is not at all possible in the present case to convict the accused persons with the aid of the presumption as to abetment of suicide of the victim either under Section 49ba or Section 306 of the Indian Penal Code in teims of the provisions of Section 113a of the Evidence Act. ( 35 ) LASTLY, comes the conduct of the accused persons during the alleged incident and thereafter. ( 35 ) LASTLY, comes the conduct of the accused persons during the alleged incident and thereafter. It is claimed by the witnesses examined by (he prosecution that no doctor was called in or no attempt was made lo send the victim for medical aid specially when it is indicated by the autopsy surgeon that instantaneous death was not possible after the intake of pesticides. Such evidence is in the nature of opinion evidence, not corroborated by any other material and as such, it is rightly argued that no reliance would be placed on such evidence. Side by side, it is also to be noted from the evidence on record as well as from the -reply given by the accused persons under Section 313 of the Criminal Procedure Code that a local quack doctor arrived at the spot. So the story of not calling a person for medical aid is ruled out. ( 36 ) AS regards few marks appearing on the dead body, it appears that at the time of inquest report it was specifically pointed out that there was no mark of external injury, Of course. the autopsy surgeon noticed few marks which could be caused after coming in contact with any hard substance. The suggestion of the prosecution was that the victim was assaulted by hard substance like a broken part of a cart (Arah ). The beating of the victim by means of Arah as evidenced by PW. 8 is not corroborated by any material and it is already discussed above that no reliance should be placed on the evidence of a hostile witness like the pw. 8 through whom the prosecution wanted to insert a story of homicide. Practically, the prosecution case was based on the basis of the alleged incident of 17. 2. 1986. But excepting the alleged story that the victim was rebuked in that night or even one or two slaps were given to her by the mother-in-law there is no other evidence to show or indicate that the victim was severely tortured and assaulted by means of a broken arah or any other hard substance. On the other hand. there is also evidence for which a judicial notice can also be taken that being rebuked the victim went upstairs and thereafter, the victim fell down on the ground and started twisting her limbs, undoubtedly after the intake of pesticides. On the other hand. there is also evidence for which a judicial notice can also be taken that being rebuked the victim went upstairs and thereafter, the victim fell down on the ground and started twisting her limbs, undoubtedly after the intake of pesticides. So the marks of injuries that were appearing on the dead body can reasonably be construed to be the injuries or scratches the victim received due to the fall and subsequent restless twisting of her limbs and body. So the marks of injuries on the body of the victim does not prove the case either under Section 498a or under Section 306 of the ipc in the manner as tried to be introduced by the prosecution. ( 37 ) AS regards the conduct of not sending any message to the parents of the victim after her death, it is to be noted that neither the PW. 1 nor the PW. 5 has supplied the name of the person who gave the information to them. It is simply stated that a known person from the neighbouring village informed them about the incident. On the other hand, it is clarified by the defence as is also indirectly clarified in course of cross-examination of the prosecution witnesses that a distant relation of the accused persons gave the message of suicide to the parents of the victim immediately alter the Incident as a result of which the PW. 1 rushed to the in-laws' house of the victim and found the dead body was lying in the first floor. So not giving the information as alleged by the prosecution practically has no basis. ( 38 ) IT Is also argued, for proving the conduct, that the accused persons absconded immediatly after the alleged Incident. But from the evidence adduced by the prosecution It Is suffciently dear that the accused persons were present in the house after the alleged incident and they were residing in the same premises even thereafter. The Investigating Officer has stated that the accused persons absconded after the starting of the case. It is already indicated hereinabove that the FIR was lodged after 5 days of the alleged incident. The FIR Is also couched in such a manner using such language that It can be construed to be a legal drafting after much deliberations. So though the suicide was committed in the night between 17. 2. It is already indicated hereinabove that the FIR was lodged after 5 days of the alleged incident. The FIR Is also couched in such a manner using such language that It can be construed to be a legal drafting after much deliberations. So though the suicide was committed in the night between 17. 2. 1986 and 18. 2. 1986, it took the PW. I to lodge the FIR after 5 days. This delay had not been explained. It is simply stated that on 18. 2. 1986, the PW. 1 went to the Police Station and came to know that the police has already started investigating the case and no case was taken from him. It appears that one unnatural death ease was started by the police after the information was given to them by the PW. 2. So at the time of starting of the unnatural death case or Immediately thereafter, there was no allegation of treating the victim with cruelty nor there was any whisper of murdering the victim. Only after 5 days of the alleged incident on getting a lawfully drafted complaint, the case was started giving a long-drawn story of cruelty. Thereafter the investigating agency also tried to introduce a story of homicide with the aid of the PW. 8. So during this period, it was reasonable on the part of the accused persons to move for anticipatory bail which they actually did. But the prayer for bail was rejected on 28. 4. 1966 for which the husband And and father-in-law Santosh surrendered before the Court on: 23. 7. 1986 and they were released on bail on 6. 8. 1996 The mother-in-law also surrendered on 8. 8. 86 and she was also bailed out on the same date. But there is nothing in the prosecution evidence to show or indicate that all the accused persons left their residential bouse till they were released on bail. It is simply indicated in the evidence that the investigating Officer did not find the accused persons in course of his visit to the village In connection with the investigation of the case. It to undoubtedly a normal conduct and it cannot be construed that the accused persons knowing fully were that they had commodited the alleged offence fled away from their realation house. It to undoubtedly a normal conduct and it cannot be construed that the accused persons knowing fully were that they had commodited the alleged offence fled away from their realation house. ki fact, then is no of the FIR ( 39 ) SO from the above ddiscussion, It to to be said that the 12 circumstances pointed out by Mr. Moitra to paragraph 17 above are sufficiently explained. It is also sufficient- dear that there is no iota of evidence against the lather-in-law, Santosh and as such, them was no reason to convict the said accused Santosh under Section 306 and section 498a of the Indian Penal Code. It is also explained hereinabove that both the charges levelled against the remaining two accused persons namely, the husband Anil and the mother-in-law Parulbala have not been proved beyond any reasonable doubt and hence their conviction under both the charges cannot be upheld. Committing of suicide within 5 years of marriage is undoubtedly a painful incident. But for that reason alone, none of the accused persons can be found guilty. It is once again reiterated that the entire case centered round the incident of 17. 2. 1986 and the evidence adduced by the prosecution is simply indicative of discord and differences in domestic life which are common to the society to which the victim belonged and such discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide. Accordingly, we tome to a conclusion that none of the accused persons can be found guilty for commission of offence under section 306 and Section 498a of the Indian Penal Code. ( 40 ) THE appeal is allowed. The conviction and sentence passed by the learned Additional Sessions Judge are hereby set aside. All the three accused persons, namely. Anil Kr. Choulia, Santosh Choulia and Smt. Parulbala Choulia are found not guilty to the charge and accordingly, each of them be acquitted. All the accused persons accordingly be discharged from their bail bonds. Appeal allowed.