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Gauhati High Court · body

2008 DIGILAW 210 (GAU)

Promod Thakuria and Anr. v. State of Assam

2008-03-11

I.A.ANSARI

body2008
1. By the judgment and order, 6.10.1999, passed by the learned Sessions Judge, Nalbari, in Sessions Case No. 51/1997, while the two appellants stand convicted under section 306 read with section 34, IPC, the appellant No. 1 also stands convicted under section 494, IPC. While the appellant No. 2 has been released on probation of good conduct for a period of two years on executing a bond to this effect, the appellant No. 1, namely, Promod Thakuria has been sentenced, for his conviction under section 306, IPC, to undergo rigorous imprisonment for seven years and pay fine of Rs. 500 and, in default of payment of fine, suffer rigorous imprisonment for a further period of six months. For his conviction under section 494, IPC, the appellant No. 1, namely, Sri Promod Thakuria has been sentenced to suffer rigorous imprisonment for six months, both the sentences, passed against the appellant No. 1 having been directed to run concurrently. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: The appellant No. 1, Promod Thakuria, married one Smt. Bina Bala Kalita, though at the time of his marriage, Promod Thakuria already stood married to the appellant No. 2, namely, Smt. Nirala Thakuria. Both the accused tortured Bina Bala Kalita and deprived of her right to live in her matrimonial house as the wife of Promod Thakuria. Bina Bala Kalita informed her brother and other relatives about the conduct of the two accused. Bina's brother and her other relatives prevailed upon her to adjust to the situation. However, on 7.5.1990, Bina Bala Kalita committed suicide by hanging herself to death. On reaching home and finding his wife, Bina Bala Kalita, hanging from the ceiling of his house, accused Pramod Thakuria went to the police and informed them accordingly. A U.D. (i.e., Unnatural Death) case was registered on the basis of the information so received and, then, police visited the place of occurrence and held inquest over the dead body. After the dead body was discovered, Bina Bala Kalita's younger brother, Umesh Kalita, lodged a written Ejahar and treating the same as FIR, a case under section 498A, IPC was registered against both the accused. The post mortem report conducted on Bina Bala Kalita's dead body revealed that Bina's death was caused due to asphyxia as a result of hanging. After the dead body was discovered, Bina Bala Kalita's younger brother, Umesh Kalita, lodged a written Ejahar and treating the same as FIR, a case under section 498A, IPC was registered against both the accused. The post mortem report conducted on Bina Bala Kalita's dead body revealed that Bina's death was caused due to asphyxia as a result of hanging. On completion of investigation, police laid charge-sheet, under sections 493/498A/304B, IPC, against both the accused aforementioned. 3. To a charge framed, at the trial, under section 306 read with section 34, IPC, the two accused pleaded not guilty. 4. In support of their case, prosecution examined altogether eight witnesses. In their examination under section 313, Cr.PC, both the accused denied that they had committed the offence alleged to have been committed by them, the case of the defence being that of denial. In his examination under section 313, Cr.PC, the male appellant stated to the effect that since his first wife, Nirala Thakuria, was sick, he had married Bina Kalita, but he denied to have demanded any dowry or ill-treated her. In her examination under section 313, Cr.PC, the female appellant stated that she was legally married to Promod Thakuria and she too denied that she had ill-treated Bina Bala Kalita. 5. The learned trial court, having found the two accused-appellants guilty of offence under seetioa-306 read with section 34, IPC, convicted them accordingly and passed sentences against them as mentioned hereinbefore. Having found the appellant No, 1 guilty of an offence under section 494, IPC too, the learned trial court convicted the appellant No. 1 accordingly. Aggrieved by their conviction and the sentences passed against them, the two accused have preferred this appeal. 6. I hove heard Mr. L.P. Sharma, learned counsel for the accused-appellants, and Mr. V.S. Sinha, learned Additional Public Prosecutor, Assam. I have also heard Mr. M. Mukherjee, learned counsel, who has appeared as amicus curiae, in this appeal. 7. Before entering into the quality of evidence adduced by the prosecution, at the trial, certain legal issues, which are of immense importance and raised in the appeal, need to be dealt with. While considering the present appeal, what needs to be borne in mind is that section 198, Cr.PC bars taking of cognizance of an offence under section 494, IPC unless a complaint, in this regard, is made. 8. For the sake of brevity. While considering the present appeal, what needs to be borne in mind is that section 198, Cr.PC bars taking of cognizance of an offence under section 494, IPC unless a complaint, in this regard, is made. 8. For the sake of brevity. Section 198, Cr.PC is quoted hereinbelow : "198. Prosecution for offences against marriage. - (1) No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon complaint made by some person aggrieved by the offence : Provided that (a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman, who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf. (b) . (c) Where the person aggrieved by an offence punishable under 1 (Section 494 or 495) of the Indian Penal Code (45 of 1860), is the wife, complaint may be made on her behalf by her father, mother, brother, sister or, with the leave of the court, by any other person related to her by blood, marriage or adoption)." 9. From a careful reading of sub-section (1) of section 198, what becomes clear is that a court is barred from taking cognizance of an offence under section 494, IPC unless there is a complaint in this regard and the complaint has been made by some person aggrieved by the offence. This, in turn, means that a mere complaint would not enable a court to take cognizance of an offence under section 494, IPC unless the complaint is by a person, who can be treated as a person aggrieved, because of the offence of bigamy. Ordinarily, such an 'aggrieved person' would be the 'wife' or the 'husband' of the person, who, being already married, performs another marriage. Clauses (a), (b) and (c) of sub-section (1) of section 198, IPC embody some exceptions in this regard inasmuch as clauses (a), (b) and (c) allow a person, other than 'wife' or the 'husband', whose spouse performs a second marriage, to lodge complaint. Clauses (a), (b) and (c) of sub-section (1) of section 198, IPC embody some exceptions in this regard inasmuch as clauses (a), (b) and (c) allow a person, other than 'wife' or the 'husband', whose spouse performs a second marriage, to lodge complaint. Sub-section (1) of section 198, Cr.PC clearly states that when a person is under the age of 18 years, or is an idiot or a lunatic, or is, from sickness or infirmity, unable to make a complaint, or is a woman, who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf for prosecution of an accused under section 494, IPC. Similarly, clause (b) allows a person other than a person, who being the husband has been serving in the Armed Forces of the Union, to lodge a complaint if authorized by such a husband. Clause (c) of sub-section (1) of section 198 carves out yet another exception by permitting the father, mother, brother, sister, son or daughter, etc., of an woman, whose husband performs a second marriage, to make a complaint, with the leave of the court, provided that the person, who makes the complaint, is related to the person concerned by blood, marriage or adoption. 10. In the light of the bar imposed by the provisions of section 198, Cr.PC on the court's power to take cognizance of an offence under section 494, IPC, it becomes clear that unless a 'complaint', within the meaning of section 2(d), Cr.PC, is made by a 'person aggrieved', within the meaning of section 198, Cr.PC, no cognizance of an offence under section 494, IPC can be taken by a Magistrate. It needs to be borne in mind that according to section 2(d), a 'complaint' does not include 'police report'. One may also point out, of this stage, that a police report, as contained in section 2(r), Cr.PC, means a report forwarded by a police officer to a Magistrate, under section 173(2), on completion of investigation into a cognizable offence. It needs to be borne in mind that according to section 2(d), a 'complaint' does not include 'police report'. One may also point out, of this stage, that a police report, as contained in section 2(r), Cr.PC, means a report forwarded by a police officer to a Magistrate, under section 173(2), on completion of investigation into a cognizable offence. The Explanation to section 2(d) clarifies that when a report made by a police officer in a case, which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. 11. I may pause here to point out that under the Explanation to section 2(d), a report submitted, under section 173(2), by a police officer in a case, which, on completion of investigation, discloses commission of a non-cognizable offence, shall be treated as a complaint and the police officer shall be treated as the complainant; but the fact remains that under section 198, it is not every complaint, but a complaint made by an 'aggrieved person', within the meaning of section 198, which can become the foundation for taking of cognizance by a Magistrate. Thus, though, ordinarily, when a police report discloses of commission of a non-cognizable offence, the court can take cognizance of the non-cognizable offence on the basis of such a complaint; the fact remains that when section 198 puts an embargo on the powers of the court to take cognizance except when the complaint is lodged by a 'aggrieved person', within the meaning of section 198, and that no court can take cognizance of offence under section 494 on a police report even if such a police report, in a given case, is treated as a 'complaint' in terms of the Explanation to section 2(d). 12. Even in Abdul Rehman Mahomed Yusufv. Mahomed Haji Ahmad Agbotwala and Another, AIR 1960 SC 82 , the Apex Court has made clear that cognizance of an offence, under section 494, IPC, is barred unless a complaint of the nature, as perceived by section 198, Cr.PC is made to the Magistrate. 12. Even in Abdul Rehman Mahomed Yusufv. Mahomed Haji Ahmad Agbotwala and Another, AIR 1960 SC 82 , the Apex Court has made clear that cognizance of an offence, under section 494, IPC, is barred unless a complaint of the nature, as perceived by section 198, Cr.PC is made to the Magistrate. The decision, in Abdul Rehman Mahomed Yusuf (supra), leaves no room for doubt that a court cannot take cognizance of an offence under section 494, IPC unless and until there is a 'complaint' made by an 'aggrieved person' within the meaning of section 198. [See also Lily Thomas and Another v. Union of India and Others, (2000) 6 SCC 224 ]. 13. In the present case, no cognizance of offence under section 494, IPC was, admittedly, taken by the learned Trial court, but the accused-appellant No. 1 has been held guilty of an offence under section 494, IPC. Since there was no complaint, as envisaged, under section 198, Cr.PC, with regard to the alleged commission of an offence under section 494, IPC, neither cognizance could have been taken of the offence under section 494, IPC nor was the court competent to convict the appellant No. 1 under section 494, IPC. 14. In short, thus, in the present case, since there was no complaint by an aggrieved person, within the meaning of section 198, Cr.PC, against the appellant No. 1 alleging commission of an offence under section 494, IPC, the appellant No. 1 could not have been convicted under section 494, IPC. 15. Moreover, section 494, IPC reads as under : - "494. Marrying again during lifetime of husband or wife. - Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception. - Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception. - This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge." 16. A careful reading of section 494, IPC makes it clear that in order to make a person guilty of an offence under section 494, IPC, what has to be proved is that the second marriage would have been valid, but for the fact that the person, undergoing the marriage, in question, (i.e., the second marriage) was already married. It logically follows that if the second marriage has to be void, the first marriage must be legally valid. If the first marriage is not legally valid, the question of the second marriage being void does not arise at all. Hence, the second marriage too must have all the ingredients of a valid marriage, for, when the second marriage is not valid or according to law, it would, otherwise, also be void. Consequently, no offence, in such a case, can be said to have been made out under section 494, IPC. 17. Thus, the word 'marries', occurring in section 494, means whoever 'marries' by some form of marriage known or recognized by the law. Merely showing that some form of ceremony of marriage was gone through is, therefore, not sufficient to sustain an accusation of bigamy under section 494, IPC. 17. Thus, the word 'marries', occurring in section 494, means whoever 'marries' by some form of marriage known or recognized by the law. Merely showing that some form of ceremony of marriage was gone through is, therefore, not sufficient to sustain an accusation of bigamy under section 494, IPC. In fact in (AIR 1973 SC 713), the Apex Court has made it clear in that in order to attract the provisions of section 494, both the marriages of the accused must be valid in the sense that the necessary ceremonies, required by the personal law governing the parties had been duly performed. 18. Unless, therefore, the requirements of a valid marriage are established in both the marriages of the person, who is sought to be prosecuted, the offence under section 494 cannot be said to have been completed. 19. In the case at hand, no evidence was adduced and no evidence, admittedly, exists to show that the marriage, between the appellant No. 1 and Bina Kalita, was solemnized according to law and/or that their marriage would have been valid, but for the fact that the appellant No. 1 already stood married to the appellant No. 2, when he married Bina Kalita. 20. In the face of what have been pointed out above, it becomes transparent that the conviction of the appellant No. 1 under section 494, IPC is not sustainable. 21. Let me, now, turn to section 498A IPC. This section reads : "498A. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purposes of this section, 'cruelty' means - (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman ; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand." 22. Section 498A aims at penalizing a person, who, as 'husband' or relative of the 'husband', subjects the 'wife' of the 'husband' to cruelty. The word 'cruelty' has been defined by the Explanation to section 498A to mean any willful conduct, which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or 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 is on account of failure by her or any person related to her to meet such demand. In the light of the substantive penal provisions contained in section 498A, IPC, when the Explanation to the term 'cruelty', appearing in section 498A, IPC, is read, it becomes clear that the woman, which section 498A refers to, must be proved to have been the 'wife' of the person, who, as her 'husband' or as relative of the 'husband', subjects such a woman to 'cruelty'. Subjecting a female person to cruelty would not attract the provisions of section 498A, IPC unless the female person, so subjected to 'cruelty', is the 'wife' of the person, who subjects the woman to 'cruelty' or the person, who subjects such a woman to 'cruelty', is the relative of such woman's 'husband'. 23. In the present case, the deceased was, admittedly, a second wife and in the absence of anything showing that the first marriage was not legal, one cannot avoid, but hold that strictly speaking, Bina Bala Kalita could not have been described as 'wife' within the meaning of section 498A, IPC and, hence, even if she was subjected to cruelty by both or any of the two accused-appellants, the acts of the accused-appellant(s) concerned could not hove attracted the penal provisions of section 498A, IPC. 24.1 may, now, come to section 113A of the Evidence Act. This section states: "113A. Presumption as to abetment of suicide by a married woman. 24.1 may, now, come to section 113A of the Evidence Act. This section states: "113A. Presumption as to abetment of suicide by a married woman. -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 seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all 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 498A of the Indian Penal Code (45 of 1860)." 25. So far as section 113A of the Evidence Act is concerned, it is, admittedly, attracted, when a 'married' woman commits suicide_within a period of seven years from the date of her marriage. A careful reading of section 113A clearly shows that this section can be applied to fasten only the 'husband'or the relative of the 'husband' with the penal liability of an offence under section 306, IPC. If the man, sought to be prosecuted, is, under the law, not the 'husband' of the woman, who commits suicide, or relative of the 'husband' of the woman, who commits suicide. Section 113A would not be attracted even if the man, alleged to be 'husband', was maintaining with such a woman, claimed to be 'wife', a relation, which was matrimonial in nature. 26. In the present case, the learned trial court has taken resort to section 113A, Evidence Act to raise a presumption that the appellants had abetted commission of suicide by Bina Kalita, though facts of this case, as discussed above, make it transparent that the presumption, as contemplated by section 113A, could not have been raised, when the appellant No. 1 cannot be, legalistically speaking, be treated 'husband' of Bina Kalita. 27. Let me, now, draw a distinction between an offence under section 498A, IPC and section 306, IPC. This necessarily brings me to section 306, IPC, which reads as under : "306. 27. Let me, now, draw a distinction between an offence under section 498A, IPC and section 306, IPC. This necessarily brings me to section 306, IPC, which reads as under : "306. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 28. Before one deals with the scope of section 306, IPC, it is necessary that one understands as to what the word 'abetment' conveys under the Indian Penal Law. Section 107, IPC, which is most relevant in this regard, reads : "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; Thirdly, intentionally aids, by any act or illegal omission, the doing of that thing." 29. Broadly speaking, 'abetment', as contemplated in section 107, IPC, falls into three distinct categories, namely, (i) a person can be said to abet the doing of a thing, when such a person instigates the other person to do that thing or (ii) when a person engages with one or more other person(s) in any conspiracy in the doing of that thing or (iii) when any person intentionally aids, by any act or illegal omission, doing of a thing. 30. In short, thus, the offence of'abetment' is committed, when a person instigates another to do a thing or when he enters into a conspiracy for doing of a thing or when he intentionally aids, by illegal act or omission, the doing of that thing. 31. The question, now, is as to whether 'intention' is an integral part of the offence of 'abetment'. In this regard, it is necessary to point out that when a person enters into a conspiracy to do a thing, he not only knows, but also intends the effect of doing that thing, which he has conspired with one or more persons to do. Similarly, when such a person commits the offence of abetment by aiding, such aiding, in the face of the provisions of section 107, IPC, has to be intentional. Similarly, when such a person commits the offence of abetment by aiding, such aiding, in the face of the provisions of section 107, IPC, has to be intentional. The limited question, therefore, which remains to be ascertained is this : whether 'abetment' by 'instigation' involves 'intention" ? 32. According to forward to prove, incite, encourage to do act'. Stroud defines 'abet' thus, "To constitute an aider or abettor, some active steps must be taken, by word or action, with intent to instigate the principal or principals. Encouragement does not, of necessity, amount to aiding and abetting. It may be intentional or unintentional. A man may unwittingly encourage another in fact by his presence, by misinterpreted gestures, or by his silence or no-interference - or he may encourage intentionally by expressions, gestures, or actions, intended to signify approval. In the latter case, he aids and abets; in the former, he does not. It is no criminal offence to stand by a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But thd fact that a person was voluntarily and purposely present witnessing, the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent it, and it had the power so to do or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in the finding that he willfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not." 33. Black defines 'abet' to assist or facilitate the commission of a crime or to promote its accomplishment. 34. According to Wharton, 'to abet'means, literally, to bait or excite, as in the case of an animal. It its legal sense, it means to encourage, advise or instigate the commission of a crime. 35. In Ramesh Kumar v. State of Chattisgarh, (2001) 9 SCC 618 , the Apex Court, while interpreting the expression 'instigation' as an act of 'abetment', in section 306, observed : '20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation." 36. In Randhir Singh v. State of Punjab, (2004) 13 SCC 129 , the Apex Court, explaining as to what abetment, in the context of an offence under section 306 conveys, observed thus, "12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under section 306, IPC." 37. In the light of the definition of abetment or of the words 'to abet' mean and, particularly, taking into view how the Apex Court has described abetment in Ramesh Kumar (supra) and Randhir Singh (supra), what becomes clear is that abetment involves a mental process of entering into a conspiracy for doing of a thing or a mental process of aiding a person in doing a thing or in the mental process of instigating, i.e., to goading, urging forward, provoking, enticing or inscribing to do a thing. Thus, abetment implies an intentional act or omission on the part of the person, who is alleged to have abetted an act. There need not be direct evidence of such intention and such intention may be inferred even from circumstantial evidence. 38. Thus, abetment implies an intentional act or omission on the part of the person, who is alleged to have abetted an act. There need not be direct evidence of such intention and such intention may be inferred even from circumstantial evidence. 38. InState ofW.B. v. OrilalJaiswal, (1994) 1 SCC 73 , the Apex Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced, in the trial, for the purpose of finding whether the cruelty meted out to the victim had, in fact, induced her to end her life by committing suicide. 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. 39. Thus, 'abetment', in the context of an offence under section 306, IPC, would mean inciting, encouraging, provoking or urging forward to commit suicide. Such an act of inciting, encouraging, provoking or urging would obviously reflect an intentional act, on the part of the accused, to induce one or intentionally drive one. Hence, to commit suicide merely because of the fact that a husband subjects his wife to cruelty and the cruelty is of the extent that it would, oridinarily, drive a woman to commit suicide, such an act of subjecting the wife to cruelty by such a husband would not necessarily amount to abetment unless the court is satisfied that the wife was subjected to cruelty, or the woman was subjected to cruelty, with intent to drive her to commit suicide. 40. Turning to the inherent difference between what section 498A penalizes or what section 306 punishes, it needs to be pointed out that j a careful reading of section 498A shows that when a 'wife' is subjected to 'cruelty' to such an extent that a woman, placed in her position, is likely to commit suicide, an offence under section 498A is complete irrespective of the fact whether the woman, so subjected to 'cruelty', actually commits suicide or not. Conversely, it is also true that merely because of the fact that a wife, who has been subjected to cruelty, commits suicide, it will not, automatically, make out a case of'abetment' to commit suicide. 41. Let us try to understand the ambit of section 306, IPC by an example. Two men A and B are married to X and Y respectively. A has been subjecting his wife, X, to cruelty, which was of such a nature and of such an extent that it would have, ordinarily, driven a woman, placed in the position of X, to commit suicide, but A never intended that X shall commit suicide. However, unable to bear such cruelty, X commits suicide. Let us, now, compare such a case with the case "of B. Let us assume that B subjects Y to cruelty with intent that she commits suicide and unable to bear such cruelty, Y commits suicide. In the case of A, where there was no intention drive the woman to commit suicide, though his wife, X, did commit suicide, the fact remains that in the case of B, there was an intention to instigate Y to commit suicide; hence, while B can be held liable and guilty of an offence under section 306, IPC, A cannot be so held guilty of an offence under section 306, IPC. The test is, therefore, not as to whether X or Y was subjected to cruelty. The test is also not whether X or Y committed suicide. The test would be as to whether the woman was subjected to cruelty with a view to making her commit suicide or without such an intention. If the intention was not to drive the woman to commit suicide, the mere fact that the nature of cruelty was such that the woman was likely to commit suicide, it would not make out a case of section 306, IPC. In an offence under section 306, IPC, therefore, it is imperative for the prosecution to prove that the woman committed suicide not merely because of the fact that she was subjected to cruelty, but that she was subjected to cruelty with a view to making her commit suicide. No wonder, therefore, the Apex Court, in Sushil Kumar v. Union of Indie, 2005) 6 SCC 281, observed, at para 11, thus : "11. No wonder, therefore, the Apex Court, in Sushil Kumar v. Union of Indie, 2005) 6 SCC 281, observed, at para 11, thus : "11. The basic difference between the two sections, i.e., section 306 and section 498A is that of intention. Under the latter, cruelty, committed by the husband or his relations drag the woman concerned to commit suicide, while under the former provision suicide is abetted and intended." 42. It will, therefore, depend on the facts of a given case as to whether a person did or did not intend that the woman, in question, shall commit suicide. There need not be any direct evidence of such intention. Clearly, therefore, such an intention can be gathered from the facts and attending circumstances of a given case. Not only the conduct previous to the act of commission of suicide, but, at times, even the subsequent conduct of the accused may give rise to an inference that the person, in question, did intend, while subjecting the woman to cruelty, that she shall commit suicide. Ordinarily, therefore, when a woman is placed in such a situation that she is left with no option, but to commit suicide, it would be reasonable to infer that an intention existed to drive the woman to commit suicide and in such a case, the onus would be on the man, who is prosecuted, to show that no such intention to drive the woman to commit suicide existed, though he might have been subjected the woman to cruelty of such a degree that she was left with no option, but to commit suicide. It is in the light of what has been pointed out above that one has to read the decision in Ramesh Kumar v. State of Chattisgarh, (2001) 9 SCC 618 , wherein R.C. Lahoti, (as his Lordship then was), speaking for the court, observed : "22. Sections 498A and 306, IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under section 498A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under section 498A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under section 498A, IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary, article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on p. 11 of diary (Article A) clearly states that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares - none to be held responsible or harassed for her committing suicide. The writing on p. 12 of diary (Article A) clearly suggests that sometime earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Ext. P-10 corroborates the inference flowing from the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his wife to the hospital also improbabilises the theory of his having abetted suicide." 43. The dying declaration Ext. P-10 corroborates the inference flowing from the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his wife to the hospital also improbabilises the theory of his having abetted suicide." 43. In the light of the various legal issues, which have been discussed above, and, particularly, as to what 'abetment', in section 306, IPC, means and conveys, let me, now, turn to the facts of the present case. 44. As already indicated above, prosecution has examined altogether eight witnesses. Out of these witnesses, as far as PW1 and PW2 are concerned, they had merely seen the dead body hanging from ceiling, when the police arrived at the house of the appellant No. 1 and one of these two witnesses is a witness to the inquest held by the police on Bina's dead-body. PW7 and PW8 are the Investigating Officers of the case. PW6 is the doctor, who had conducted post-mortem examination. 45. Thus, the only witnesses, who have spoken about Bina Kalita having been subjected to 'cruelty', are PW3, elder brother of the deceased, PW4, younger sister of the deceased, and PW5, another younger sister of the deceased. The evidence of these three witnesses, namely, PW3, PW4 and PW5 are, therefore, of great relevance. In this regard, it may be-pointed out that each of these three witnesses has admitted that none of them had seen their sister, Bina Kalita, being subjected to cruelty. As far as PW1 is concerned, his evidence is that both the accused used to beat his sister and did not want Bina Kalita to remain in their house and unable to bear such torture, Bina Kalita committed suicide. In effect, thus, PW3 says that Bina Kalita used to be beaten, the two appellants did not want her to live in their house and being unable to bear such torture, Bina Kalita committed suicide. 46. It needs to be, now, noted, as already indicated above, that PW3 has admitted that he himself had not seen Bina Kalita being beaten or assaulted by any of the two appellants. His evidence also gives no indication as to what is the basis of his accusation that the two appellants used to beat Bina Kalita. 46. It needs to be, now, noted, as already indicated above, that PW3 has admitted that he himself had not seen Bina Kalita being beaten or assaulted by any of the two appellants. His evidence also gives no indication as to what is the basis of his accusation that the two appellants used to beat Bina Kalita. His evidence also gives no indication at all that Bina Kalita had, at any point of time, reported to him that the two appellants had beaten her and/or that the two appellants were unwilling to let her to live their house. Thus, the evidence of PW3 neither proves that any of the two appellants had assaulted or beaten Bina Kalita nor does his evidence prove that the two appellants did not want Bina Kalita to live in their house. 47. I may, at this stage, pause here to point out that it is one thing to say that a person is subjected to torture or cruelty and it is quit another to give the particulars of the acts or omissions, which constituted such torture or cruelty. When a person accuses another person of having tortured someone or having subjected someone to cruelty, it is the duty of the prosecution to bring on record the particulars of the acts or omissions, which constituted such torture or cruelty. Otherwise, merely saying that a person was tortured or subjected to cruelty makes no sense or carries no legal meaning if the acts or omissions, which constituted such torture or cruelty, are not revealed. 48. Coming to the evidence of PW4, it may be pointed out that her evidence is of the same nature as that of her brother. Even PW4 does not give the particulars of acts or omissions, which constituted torture or which could have been described as an act of cruelty. The only act of cruelty, which is discernible from her evidence, is that according to her, the two appellants did not want Bina Kalita to live in their house. She too has, nowhere, deposed that Bina Kalita had told her that she was not being allowed by the appellants to stay or live in their-house. There is also no evidence to show that Bina Kali to had, any point of time, told PW4 that she had been physically assaulted by any of the two appellants. She too has, nowhere, deposed that Bina Kalita had told her that she was not being allowed by the appellants to stay or live in their-house. There is also no evidence to show that Bina Kali to had, any point of time, told PW4 that she had been physically assaulted by any of the two appellants. PW4, if I may reiterate, clarified that she had never seen the appellants' quarelling with Bina Kalita or subjecting her to cruelty. In fact, to a pointed query made by the defence, PW4 admitted that she had never talked to the male appellant, i.e., appellant No. 1, on the question of her sister being subjected to cruelty. Thus, the evidence of PW4 also does not help the case of the prosecution in proving that the two appellants had abetted the act of suicide by Bina Kalita by torturing her or subjecting her to cruelty. 49. Lastly, let me turn to the evidence of PW5. In her evidence, PW5 has deposed that since after her marriage with the appellant No. 1, Bina Kalita was being tortured. This witness too has given no particulars of the acts or omissions, which can be show to have constituted an act of torture or an act of cruelty. 50. What is, however, important to note, in the evidence of PW5, is that according to her, Bina Kalita had told her that she would not be in a position to live in the house of the two appellants. In view of the fact that PW5 admitted that she had not herself seen Bina Kalita being tortured and in view also of the fact that PW5 has, nowhere, deposed that Bina Kalita had reported to her that she was being beaten, assaulted or tortured by the appellants, her evidence, given to the effect that Bina Kalita was being subjected to cruelty, does not carry any weight. The only incriminating piece of evidence, which surfaces from the mass of evidence, which PW5 has given, is that Bina Kalita had told her that she would not be able to live in the house of the appellants. This piece of evidence is too vague and does not necessarily indicate as j to what act or acts of the two appellants had prompted Bina Kalita to make this kind of statement. This piece of evidence is too vague and does not necessarily indicate as j to what act or acts of the two appellants had prompted Bina Kalita to make this kind of statement. Two individuals may have two different reasons for not liking to live with a person or in a family. In such circumstances, it was the duty of the prosecution to establish the reasons as to why the deceased did not want to live in the house of the two j accused-appellants, who are alleged to have abetted commission of suicide; but the prosecution miserably failed to prove the reasons, which made Bina Kalita say that she would not be able to live with the two accused-appellants. 51. What surfaces from the above discussion of the evidence on record, as a whole, is that there is no direct evidence to show that Bina Kalita was ever subjected to cruelty. There is also no evidence to show that Bina Kalita ever complained to anyone that she was assaulted, beaten or not allowed to stay by the two appellants in their house. Merely because of the fact that Bina Kalita happens to have told PW5 that she would not be able to stay in the house of the two appellants, such piece of evidence cannot be extended to mean that the two appellants had tortured Bina Kalita and/or induced her or intentionally driven her to commit suicide. 52. What crystallizes from the above discussion is that there was no cogent and clinching evidence on record proving any act of the appellants having abetted commission of suicide by Bina Kalita. 53. In the result and for the reasons discussed above, this appeal succeeds. 54. What follows from the above discussion is that the conviction of the appellant No. 1 under section 494, IPC is not sustainable in law. His conviction under section 494, IPC is, therefore, set aside and he is held not guilty of the offence under section 494, IPC. As far as conviction of the two appellants under section 306 read with section 34, IPC is concerned, the same is aLo not sustainable in the facts and circumstances of the present case and are, therefore, set aside. Both the appellants are held not guilty of the offence under section 306 read with section 34, IPC. The bond, executed by the appellant No. 2, shall accordingly stand cancelled. Both the appellants are held not guilty of the offence under section 306 read with section 34, IPC. The bond, executed by the appellant No. 2, shall accordingly stand cancelled. The appellant No. 1 shall be set at liberty forthwith unless he is required to be detained in connection with any other case. The impugned judgment and order shall accordingly stand set aside. 55. Send back the LCR.