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2010 DIGILAW 510 (GAU)

Rajib Neog v. State of Assam

2010-07-29

C.R.SARMA

body2010
JUDGMENT C.R. Sarma, J. 1. The judgment and order, dated 20.05.2003, passed by the learned Sessions Judge, Kamrup, Guwahati, in Sessions case No. 203(K)/2000 is in challenge in this appeal. By the impugned judgment and order aforesaid the learned Sessions Judge convicted Sri Rajib Neog (hereinafter called the Appellant) for the offences under Section 498A and 306 of Indian Penal Code (in short IPC). 2. The Appellant was sentenced to suffer Rigorous Imprisonment for 3 (three) years and pay fine of Rs. 5000/- and in default of payment of fine suffer rigorous imprisonment for further period of 6 (six) months for his conviction under Section 498A and 306 of IPC. 3. Being aggrieved by the said conviction and sentence the Appellant has carried the appeal to this Court. 4. I have heard Mr. B.C. Das learned Senior Counsel appearing for the Petitioner and Mr. K. Munir, learned Addl. P.P., Assam. 5. The prosecution case, in brief, as revealed at the trial, may be stated as follows: Smt Sucharita Lahiri (hereinafter called the deceased), a highly qualified woman from Imphal (Manipur), was married by almost equally qualified Appellant in the month of July, 1997 and after their marriage they used to live together at Guwahati. The marriage was solemnized against the will of the father of the bride and as such he did not attend the said marriage of his daughter. After the marriage, the Appellant supported the deceased in doing her MBA course and she, after completing MBA, joined service in the Coca Cola Company at Guwahati. As alleged, the Appellant and his mother used to torture the deceased, both physically and mentally, and desired to divorce her to facilitate his second marriage. According to the prosecution, the Appellant/husband used to ill treat the deceased by compelling her to do household works against her will and restrained her from visiting her relatives and using the telephone. Once, in presence of the younger sister of the deceased, the Appellant had picked up a quarrel in the breakfast table and gave a slap to the deceased. Another day, due to her late arrival from office, the Appellant made her to wait outside the wall for about one and a half hours without opening the door of the house. Once, in presence of the younger sister of the deceased, the Appellant had picked up a quarrel in the breakfast table and gave a slap to the deceased. Another day, due to her late arrival from office, the Appellant made her to wait outside the wall for about one and a half hours without opening the door of the house. The company, in which the deceased worked, selected her for attending a conference of the company at Kolkata and accordingly she was required to go to Kolkata on 27.02.2000. In spite of making all arrangements for proceedings to Kolkata, the Appellant, at the last moment, i.e. two days before the said occurrence restrained her from going to Kolkata. As the Appellant had refused to allow the deceased to going to Kolkata, she, on the previous day of the occurrence, called her brother i.e. P.W. 9, who visited her and assured that he would make arrangement to drop her at the airport. But on the next morning i.e. on 27.02.2000, the P.W. 9 received an information from his sister that the deceased was hospitalized in the Down Town hospital for sustaining bum injuries. From the record it is revealed that, on 27.02.2000, at about 8:00 AM, the deceased committed suicide by setting her ablaze in the bathroom, as a result of which she sustained 95% bum injury, for which she was shifted to hospital for treatment wherein she succumbed to her said injury at about 4.00 PM on 28.02.2000. 6. Sri Somnath Lahiri (P.W. 9), who is the younger brother of the deceased, on 28.02.2000 lodged an FIR. (Ext. 8) with the O/C of the Women Police Station, Panbazar, Guwahati. 7. Upon receipt of the said FIR, police registered a case under Section 498A IPC and launched investigation into the matter. 8. During the investigation, the investigating officer prepared inquest report,-got the autopsy done, recorded the dying declaration of the deceased and the statement of the witnesses. The Investigating Officer collected and seized one plastic gallon (5 ltrs capacity) containing kerosene oil, one half burnt printed screen, one blue 95% brunt snippet, 31 Nos. of burnt match sticks, one match box, one bath soap, one shampoo, one plastic mug, one pair of hawai chhappal, some pieces of broken plaster of pairs and one odonil etc, from, the place of occurrence i.e. the marital house of the deceased. of burnt match sticks, one match box, one bath soap, one shampoo, one plastic mug, one pair of hawai chhappal, some pieces of broken plaster of pairs and one odonil etc, from, the place of occurrence i.e. the marital house of the deceased. Police also prepared a sketch map of the place of occurrence and took several photographs of the deceased. 9. Dr. D. Khanikar, Executive Magistrate, Guwahati, on 28.02.2000, recorded the dying declaration of the deceased in presence of Dr. Narendra Kumar Baishya, Asstt. Professor of Surgery, Dr. Nilotpal Bora, the informant, Sri Manjit Mahanta, who was brother-in-law of the deceased and Smt. Srabona Lahiri, elder sister of the deceased. 10. On completion of the investigation, charge-sheet, under Section 498A and 306 of IPC, was laid against the Appellant and his mother and they were forwarded to the Court to stand trial. 11. The case having been committed to the Court of the learned Sessions Judge, Kamrup, Guwahati, the learned trial Judge framed charge against the Appellant and his mother for the offence under Section 498A, while separate charge was framed under Section 306 of IPC against the Appellant. The charges were explained and read over the accused persons to which they pleaded not to guilty and claimed to be tried. 12. To prove its case, the prosecution examined as many as 12 (twelve) witnesses. At the close of the evidence for the prosecution the accused persons were examined under Section 313 Code of Criminal Procedure They denied the allegation, brought against them and declined to adduce defence evidence. 13. Considering the evidence on record, the learned Trial Judge, acquitted Smt. Shanti Neog i.e. the mother of the Appellant, for want of sufficient evidence. However, the Appellant was found guilty of the offences under Section 498A and 306 of IPC. Accordingly, he was convicted and sentenced as indicated above. 14. Mr. B.C. Das, learned Senior counsel, appearing on behalf of the Appellant, has submitted that the learned Trial Judge committed illegality by recording the conviction and the sentence without sufficient, cogent, reliable and substantive evidence against the Appellant.- 15. Accordingly, he was convicted and sentenced as indicated above. 14. Mr. B.C. Das, learned Senior counsel, appearing on behalf of the Appellant, has submitted that the learned Trial Judge committed illegality by recording the conviction and the sentence without sufficient, cogent, reliable and substantive evidence against the Appellant.- 15. It is contended by the learned senior counsel that in view of the facts that the Appellant has supported the deceased in her prosecuting MBA Course, even after their marriage and also allowed her to join service, the stray incident of slapping (even if correct), due to some misunderstanding, cannot be a sufficient ground to hold that the deceased was physically and mentally tortured by the Appellant and that the said act amounted to cruelty. 16. The learned senior counsel further argued that except the evidence given by the P.W. 1 i.e. the sister of the deceased, regarding slapping, that too once, there is no other evidence with regard to physical assault on the deceased. 17. It is also submitted that both the deceased and the Appellants were highly educated persons and they married according to their own will and choice and as such casual family discord due to some misunderstanding in the life of the couple can not be sufficient reason to conclude that the Appellant had treated the deceased with cruelty compelling her to commit suicide. 18. It is further contended, on behalf of the Appellant, that the evidence of the father of the deceased, the neighbourers and the dying declaration made by the deceased, clearly indicate that the Appellant did not treat the deceased with cruelty, as the defined under Section 498A IPC, compelling the deceased to commit suicide and that there is not an iote of evidence to substantiate that the Appellant had in any manner, instigated the deceased to commit suicide. 19. Refuting the argument, advanced by the learned Counsel, appearing for the Appellant, Mr. K. Munir, learned Addl. 19. Refuting the argument, advanced by the learned Counsel, appearing for the Appellant, Mr. K. Munir, learned Addl. Public Prosecutor, Assam has submitted that, as the Appellant committed suicide within a period of 7 (seven) years from the death of her marriage i.e. less then 2 years, presumption could be safely drawn that the Appellant was responsible for the death of the deceased and that there are sufficient evidence implicating the involvement of the Appellant The learned Additional Public Prosecutor further submitted that the deceased, failing to bear the physical as well as mental torture/harassment found no other alternative but to commit suicide and therefore, it stood established, that the Appellant had instigated and added her to commit suicide. 20. In order to appreciate the counter arguments, advanced by the learned Counsel appearing for the parties and to examine the correctness of the findings of the learned Trial Judge, I feel it appropriate to, briefly, recapitulate the offence on record, as follows. 21. In the present case out of the 12 (twelve) witnesses, examined by the prosecution, P.W. Nos. 1 and 2 are the sisters, P.W. 8 is the father and P.W. 9 is the brother of the deceased and they are the most relevant and vital witnesses, examined by the prosecution. P.W. Nos. 3, 4 and 5 are the neighbourers of the deceased and the Appellant. P.W. 6 is the medical officer, who performed the autopsy of the dead body of the deceased. P.W. 7 is the Executive Magistrate, who conducted the inquest in respect of the dead body. P.W. 10 is the Judicial Magistrate who recorded the statement of the witnesses under Section 164 Code of Criminal Procedure P.W. 11 is the Executive Magistrate, who recorded the dying declaration (Ext. 12) made by the deceased and P.W. 12 is the Investigating Officer. 22. Smt. Bipasha Lahiri (P.W. 1), younger sister of the diseased stated that the Appellant was an architecture by profession and the deceased was an Engineering degree holder. She further stated that her sister (the deceased), after their marriage used to stay with the Appellant at Guwahati and that she completed MBA course. According to the P.W. 1 though, initially, the married life of the said couple was peaceful, their relation became strained since 1999. She further stated that her sister (the deceased), after their marriage used to stay with the Appellant at Guwahati and that she completed MBA course. According to the P.W. 1 though, initially, the married life of the said couple was peaceful, their relation became strained since 1999. In 1999, according to P.W. 1, during the time of final MBA examination, she stayed in the house of the deceased for extending helping hand in her household works. She stated that one day, while taking breakfast, altercation had taken place between the said couple and that the Appellant given a slap on the deceased. She also stated that once, she was informed by the deceased that the Appellant had assaulted her as a result of which she became senseless requiring hospitalization. According to this witnesses she was reported by the deceased that the latter was told by the Appellant that their married life could not run in that way and that his mother had already asked him to look for Anr. girl for his marriage. She (P.W. 1) further stated that, noticing the family discord, she had advised the deceased to live separately from her husband or to take a transfer. She also stated that during the visit of the deceased to Jorhat Appellant's native place, the Appellant and his mother did not treat the deceased well and that, on 27.02.2000, while she (P.W. 1) was staying at Kolkata, she received the information from Dr. Jaya Lahiri, that her sister (deceased) got herself burnt. 23. In her cross-examination, this witness stated that she had told the police that the Appellant had slap the deceased. She further stated that, before her death, the deceased wanted to go to Kolkata, but the Appellant restrained her from going to Kolkata. According to this witness the deceased was a highly ambitious lady and she wanted to be independent as a result of which discord cropped up between the said couple. 24. Smt. Srabona Lahiri, who was the elder sister of the deceased, deposed as P.W. No. 2. In tune, with the evidence of P.W. 1, she stated the deceased completed MBA course after her marriage and that the deceased and her husband used to stay in a rented house at Guwahati. According to this witness from the day of their marriage the Appellant did not maintain good relation with the P.W. 2 and her husband. In tune, with the evidence of P.W. 1, she stated the deceased completed MBA course after her marriage and that the deceased and her husband used to stay in a rented house at Guwahati. According to this witness from the day of their marriage the Appellant did not maintain good relation with the P.W. 2 and her husband. She further stated that after the marriage, she along with her husband visited the marital home of the deceased, but as they were misbehaved by the Appellant, they never re-visited the Appellant. According to P.W. 2, she used to meet the deceased either in her place of service or somewhere and that whenever she met the deceased, she used to inform her (P.W. 2) about the sufferings caused to her by her husband and mother-in-law. She stated that, once, the deceased had informed her that she was assaulted by the Appellant for which she became senseless and that the Appellant used to assault the deceased for excessive telephone bills. P.W. 2 further stated that the deceased was required to do all the household works despite undergoing a gallbladder operation. She further stated that the Appellant did not allow the deceased to attend a conference at Kolkata According to this witness, on 27.02.2000, she telephonically came to know that the deceased sustained burn injury for which, she (P.W. 2) has met the deceased in the hospital. In her cross-examination, P.W. 2 stated that the deceased was highly ambitious and carrier concerned, which was the cause of discord between the husband and the wife. She also stated that the relation between the husband and the wife further detonated due to their dispute regarding the proposed visit of the deceased to Kolkata, her continuance with the service the dresses used by her and her late arrival from office. 25. Dr. Nilotpal Lahiri, father of the deceased, deposing as P.W. No. 8, stated that as the deceased had married the Appellant against his will so he did not attend their marriage. According to this witness, after their marriage, the Appellant and the deceased stayed at Guwahati (Tarun Nagar) and, during his visit to their house at Guwahati, the deceased informed him that, as she was required to do all the household works, she got tried. However, he did not have any adverse report regarding the marital life of his daughter. According to this witness, after their marriage, the Appellant and the deceased stayed at Guwahati (Tarun Nagar) and, during his visit to their house at Guwahati, the deceased informed him that, as she was required to do all the household works, she got tried. However, he did not have any adverse report regarding the marital life of his daughter. He further stated that, during her visit to his house at Imphal, the deceased informed him that she was tortured by her husband, who insisted her for to resign from the service. According to this witness, the Appellant also asked him to advice the deceased to give up her job and establish a firm, after obtaining loan, but he (P.W. 8) had advised her not to resign from the service. He further stated that he was informed by his daughter (deceased) that she was not happy with the Appellant and that she felt tried doing household works. 26. Sri Somnath Lahiri, who was the younger brother of the deceased, lodged the FIR. Deposing as P.W. No. 9, he stated, that he used to visit the house of the deceased and that he was reported by her that she was forced to do so some house hold works against her will. He further stated that, one day, during his visit to the Appellant's house, he noticed that the deceased had to wait one and a half hours out side the wall due to her late arrival from office, as her husband did not like such late arrival. He further stated that the Appellant did not allow her sister to talk to her other family members, even telephonically. He further stated that his sister Bipasha (P.W. 1) reported him that the Appellant had once slapped the deceased. He stated that two days prior to her death, the deceased told him that, she wanted to visit Kolkata for attending a Conference of the Coca Cola Company but her said visit was opposed her family members. In view of the above, as stated by the P.W. 9, he assured her that he would arrange to drop her at the airport, but, on the next morning, he was telephonically informed by his elder sister (P.W. 2) that the deceased was hospitalized in the Down Town Hospital with burn injuries. This witness lodged an ejahar with the police. He exhibited the FIR as Ext. This witness lodged an ejahar with the police. He exhibited the FIR as Ext. No. 8 and the statement, given by him before the magistrate as Ext. No. 9. 27. Mr. Dhiraj Sarma, who was a neighbourer of the Appellant deposed as P.W. No. 3. He stated that he had cordial relation and visiting terms with the said couple. According to this witness, he, noticing emission of smoke, rushed to the Appellant's house and found that the deceased was lying on the floor of the bathroom with burn injuries. He also stated that the deceased was shifted to the hospital wherein, she succumbed to the injuries. 28. Sri Soroj Sarma, who was also a neighbourer of the deceased, deposed as P.W. No. 4. He stated that the deceased sustained burn injuries for which she was hospitalized. In his cross-examination, this witness stated that the distance between his house and the house of the Appellant would be 12 ft. and that he noticed that the said couple had been maintained cordial relation. He also stated that the mother of the Appellant, used to stay at Jorhat and that once in a year she came to Guwahati and stayed with the Appellant. 29. Sri Dilip Kumar Sarma, who belongs to the same locality, deposing as P.W. No. 5, stated that the wife of the Appellant, who sustained burn injury was taken out from her bed room after breaking open of the door. In tune with the evidence of P.W. 4, he stated that he never heard about any quarrel between the said couple. 30. Dr. B.C. Roy Medhi, who performed the autopsy of the dead body of the deceased, deposing as P.W. No. 6, stated that the deceased sustained burn injuries of variable degrees, from first to four degree, covering 90% of the body surface area. He opined that the cause of death of the deceased was shock, resulting from anti-mortem burn injury. The time of death was stated to be approximately 12 to 20 hours. He exhibited the postmortem report as Ext. No. 8 and his signature thereon as Ext. No. 4(1). He also stated that he received of the death body, which was identified by the elder brother of the husband of the deceased and the younger brother of the deceased. 31. He exhibited the postmortem report as Ext. No. 8 and his signature thereon as Ext. No. 4(1). He also stated that he received of the death body, which was identified by the elder brother of the husband of the deceased and the younger brother of the deceased. 31. Smt. A. Adhikari, Executive Magistrate, Guwahati, deposing as P.W. No. 7, stated that, as per direction of the Additional District Magistrate, Sri S.K. Roy, she held inquest in respect of the dead body of the deceased, in presence of witness. He exhibited the inquest report as Ext. No. 5 and his signatures thereon as Ext. 5(2), and 5(3). 32. Smt. Indira Barman, Civil Judge, (Junior Division No. 1, Nagaon), who was examined as P.W. No. 10, stated that she recorded the statement of Smt. Bipasha Lahiri (P.W. 1), Srabona Lahiri (P.W. 2) and Somnath Lahiri (P.W. 9) under Section 164 Code of Criminal Procedure She exhibited the said statements as Exts. Nos. 1, 2 and 9, respectively and her signatures thereon as Ext. Nos. 1(4), 2(5) and 9(5). 33. Sri Debojit Khanikar, Executive Magistrate, deposing as P.W. No. 11, stated that he recorded the statement (dying declaration) of the deceased in the hospital in presence of witnesses, including the attending doctors. He exhibited the photocopy of the said statement as Ext. No. 12 and stated that the original statement which was submitted before the Deputy Commissioner, Kamrup was not available. 34. In his cross-examination, P.W. 11 stated that the Ext. No. 12 was prepared by him in his own hand and that Ext. No. 12(1) was his signature. He further stated that at the time of recording the said statement two Doctors namely Dr. Narendra Kr. Baishya and Dr. Nilotpal Bora and Sri Somnath Lahiri brother of the deceased, Sri Manajit Mahanta, i.e. the brother-in-law of the deceased were present. He exhibited their signatures on the said statement as exhibits Nos. 12(2), 12(3), 12(4) and 12(5) respectively. He further stated that at the time of recording her statement, the deceased was in fit mental condition to make statement. 35. Smti. Dipali Buragohain, who was the OC of the All Women Police Station, Panbazar, Guwahati, investigated into the matter. He exhibited their signatures on the said statement as exhibits Nos. 12(2), 12(3), 12(4) and 12(5) respectively. He further stated that at the time of recording her statement, the deceased was in fit mental condition to make statement. 35. Smti. Dipali Buragohain, who was the OC of the All Women Police Station, Panbazar, Guwahati, investigated into the matter. The said investigating officer, deposing as P.W. No. 12, stated that, on 27.02.2000, she received a message from the OC of the Geeta Nagar Police Station, Guwahati, about the hospitalization of the deceased and on being so informed, she, after making a GD, being G.D. entry No. 501, dated 22.02.2000, rushed to the Gauhati Medical College hospital and recorded the statement of the deceased. She exhibited the said statement, made by the deceased, as Ext. 13 and her signature thereon as Ext. No. 13(1). She further stated that, after her return from the GMCH, she received a written Ezahar from Sri Somnath Lahiri (P.W. 9). She exhibited the said Ezahar as Ext. No. 8 and her signature thereon as Ext. No. 8(2). It appears that, before receipt of the said Ext. No. 8, the investigating officer got the information about the occurrence and recorded the statement of deceased. Therefore, the Ext. No. 8 was not a FIR in the eye of law. In fact the message received by the Investigating officer, which had moved the machinery of the investigation into action was the FIR. The Ext. No. 8 was at best a statement made by the P.W. No. 9. 36. During the investigation, the Investigating Officer prepared a sketch map, recorded the statement of the witnesses, collected the inquest report and the autopsy report and seized some articles from the place of occurrence. At the close of the investigation, the Investigating officer submitted charge against the Appellant and his mother Smt. Shanti Neog under Section 498A/306IPC. In her cross-examination, the Investigating Officer stated that Smt. Bipasha Lahiri (P.W. 1) did not tell her that, while taking breakfast, the Appellant had slapped the deceased in her presence. She also stated that P.W. 9, i.e. Somnath Lahiri did not tell her that the deceased was not allowed to enter her house for one and a half hours for being late in arriving home from office. She also stated that P.W. 9, i.e. Somnath Lahiri did not tell her that the deceased was not allowed to enter her house for one and a half hours for being late in arriving home from office. She further stated that, said P.W. 9 did not tell her that the deceased was slapped by the Appellant in presence of Bipasha Lahiri (P.W. 1). In his examination, under Section 313 Code of Criminal Procedure, the Appellant denied all the allegation brought against him. 37. From the above, discussed evidence on record it is found that both the Appellant and the deceased were highly educated persons and they married at their sweet will, that too against the wish of the parents of the deceased. It is admitted position that, even after her marriage, the Appellant had supported the deceased to study A course and with such support the deceased obtained MBA degree and join the Coca Cola Company. 38. There is nothing on record that the Appellant had ever restrained the deceased from undergoing further study. As the Appellant allowed the deceased to study MBA course, it does not sound reasonable to believe that he did not like her continuance in the service. 39. P.W. 4, who was a neighbourer of the said couple clearly stated that the said couple lived alone at Guwahati, in their rented house, and that the mother of the deceased used to stay with them once in a year. From the evidence of the P.W. 1, 2, 8 and 9 i.e. the sisters, the father and the brother of the deceased, it transpires that the deceased was required to perform household works herself, which she did not like to do. 40. From the evidence of P.W. 8, i.e. the father of the deceased, it is found, that during his visit to the house of the deceased at Guwahati, he was informed by the deceased that she was required to do household works, and that she got tried. The detailed nature/particulars of household works, which she had to do was not stated by the P.W. 8. In view of the absence of detailed particulars/nature of such household works it is not possible to hold that the requirement to perform household works amounted to physical or mental cruelty. The detailed nature/particulars of household works, which she had to do was not stated by the P.W. 8. In view of the absence of detailed particulars/nature of such household works it is not possible to hold that the requirement to perform household works amounted to physical or mental cruelty. Facts remains that the said couple urged to live alone, therefore, requirement to perform the household works, can not be termed as cruelty, sufficient to provoke to commit suicide. 41. Accept the evidence of P.W. 1 regarding inflicting a slap on the deceased, that too, in the year 1999, there is no other specific evidence of physical assault. That apart, the Investigating officer, who was examination as P.W. 12, stated that the P.W. 1 did not state before him regarding inflicting slap by the Appellant. Therefore, it is found that the P.W. 1 did not state about the giving of slap by the Appellant at the initial stage of giving statement before the Investigating Officer. This omission on her part raises suspicion about the veracity of her evidence. It is further found from the evidence of P.W. 1 that the Appellant had one said that his mother had asked him to find out a girl for him. From the evidence of P.W. 2 it was found that there was misunderstanding and the discord between the said couple got aggravated for not allowing the deceased to go to Kolkata to attend the conference. Though P.W. 2 also stated that the Appellant used to torture the deceased. She did not satisfy the nature of torture. In fact she had no personal knowledge about the physical and mental torture, if any, meted out to the deceased. Though the P.W. 2 stated that the deceased had once became senseless on being assaulted by the Appellant. She did not state the period during which and under what circumstances the said assault was made. According to this witness she was informed that the Appellant used to take drink and that she was assaulted due to excessive telephonic bill. From the evidence of the said P.W. 2 it appears that she had no personal knowledge about the assault or cruelty. Hence the evidence of P.W. 1 and P.W. 2 do not inspire confidence to believe that the deceased was treated with cruelty, which was sufficient to compel her to commit suicide. 42. From the evidence of the said P.W. 2 it appears that she had no personal knowledge about the assault or cruelty. Hence the evidence of P.W. 1 and P.W. 2 do not inspire confidence to believe that the deceased was treated with cruelty, which was sufficient to compel her to commit suicide. 42. P.W. 9 i.e. younger brother of the deceased, who used to visit the house of the deceased, stated that, once, he found his sister waiting out side of the wall for not being allowed to enter the home for about one and half a hours due to her late arrival for the office. He also stated that his sister was slapped and that she was not allowed to talk to the family members. If the deceased was slapped or physically assaulted by the Appellant there was no reason for the P.W. No. 9 not to know directly from the deceased, about such conduct of the Appellant. This witness did not state, on which date/day the deceased was not allowed to enter her house. There is nothing on record to found that she was not allowed to enter house for one and a half hours immediately prior to the date of committing the suicide. Therefore, her said detention, if any, outside the wall can't be believed to be a reasonable cause for committing suicide by the deceased. The father of the deceased, who used to visit the marital home of the deceased stated about doing the household works by the deceased. He stated that he had no adverse report regarding the marital life of the deceased. However, the P.W. 8 stated that during the visit of the deceased to her parent's house, she had informed that she was tortured by her husband and that he insisted on her to resign from the job. Except using the word torture, the P.W. 8 did not state anything in details about the nature of torture or treatment. Therefore, use of the term torture, without detailed narration indicating nature and gravity of such torture it can't reasonable to hold that the Appellant had treated his deceased wife with cruelty compelling her to commit suicide. 43. That apart in her dying declarations i.e. Ext. Therefore, use of the term torture, without detailed narration indicating nature and gravity of such torture it can't reasonable to hold that the Appellant had treated his deceased wife with cruelty compelling her to commit suicide. 43. That apart in her dying declarations i.e. Ext. No. 12 and 13, the deceased stated that, as she was not allowed to go to Kolkata by her husband to attend the seminar of the company, she felt that her life was meaningless and as such she had committed suicide by pouring kerosene oil. The dying declaration recorded by the Executive Magistrate, P.W.. 11 was exhibited, as Ext. No. 12. The Ext. No. 12 reads as follows: ... Name is Sucharita. I wanted to go to Calcutta. He, my husband said that he will be absolutely lost without me. I am the only girl selected from my office to represent at Calcutta. I could not get off two days from home. I slogged hard for the presentation. I thought that life has no meaning for me. I saw the kerosene jar in the room lying on the floor Then, I poured kerosene on my body and lit fire. I locked two doors before. Then, I screamed and they broke the doors and got into. 44. The learned Executive Magistrate before, recording the said statement made a note, which reads as follows: The patient utters some words with much discomfort. The parts which she uttered are recorded below: 45. The said statement was signed by the two doctors, the younger brother (P.W. 9) and the one Manjit Mahanta, brother-in-law of the deceased and her sister Smt. Srabona Lahiri (P.W. No. 2). The Executive Magistrate testified that the deceased was in fit mental condition to make her statement. Neither the evidence of the P.W. 11, nor the correctness of the dying declarations were challenged/controverted. Therefore, I find that the deceased was found to be capable of making statement. A statement of the deceased was exhibited by the 10 as Ext. No. 13. The said statement, i.e. Ext. No. 13 has also not been challenged by either of the parties. If the Appellant had tortured the deceased in any manner, the deceased, in her life-time, would have certainly disclosed the nature and type of torture. A statement of the deceased was exhibited by the 10 as Ext. No. 13. The said statement, i.e. Ext. No. 13 has also not been challenged by either of the parties. If the Appellant had tortured the deceased in any manner, the deceased, in her life-time, would have certainly disclosed the nature and type of torture. But her statement "my husband said that he will (would) be absolutely lost without me" indicates that her husband wanted her very much and was not prepared to stay alone without, her, even for two days. It is further revealed that the deceased was the only lady member attending the said conference. 46. The learned senior counsel appearing for the Appellant, in support of his contention relied on the decisions in- (1) Sanju @ Sanjay Singh Sengar v. State of M.P. reported in (2002) 5 SCC 371 , (2) Manju Ram Kalita v. State of Assam reported in 2010 (2) GLT (SC) 27, (3) Shamnsaheb M. Multtdni v. State of Karnataka reported in (2001) 2 SCC 577 , (4) State of West Bengal v. Orilal Jaiswal and Anr. reported in (1994) 1 SCC 73 , (5) Girdhar Shankar Tawade v. State of Maharashtra reported in (2002) 5 SCC 177 . 47. Section 498A IPC, which defines cruelty, reads as follows: 498A. Husband or relative of husband of a woman subjecting 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 three years and shall also be liable to fine. Explanation.-For the purpose of this section, "cruelty" means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 48. 48. In the case of Girdhar Shankar Tawade (supra) the Supreme Court observed: The basic purport of the stamtory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the work "cruelty" as is expressed by the legislatures: whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but-the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498A. In view of the definition prescribed by Section 498A IPC, the explanations thereto and the principle laid by the Apex Court, in a case of suicide by a married woman, the harassment should be wilful and sufficient to lead the woman to commit suicide. That apart, the cruelty or harassment, if any, meted out to the woman, must have a nexus with any lawful demand for property or valuable security. 49. In our present case it was alleged that the deceased was tortured, physically and mentally. The alleged torture/harassment were that she was slapped, in 1999, that she was required to do some household works which she did not like to do, that she was also assaulted for excessive telephonic bills, that she was not allowed to talk to her relatives on phone, that once she was made to wait for about one and a half hours outside the house due to her late arrival from office and that lastly she was not allowed to go to Kolkata being a lone lady member of the company. There is no allegation/evidence regarding any demand of property or valuable security. There is nothing substantive on record that the alleged torture/assault caused or were likely to cause grave injury or danger to life, limb or health of the deceased. There is no allegation/evidence regarding any demand of property or valuable security. There is nothing substantive on record that the alleged torture/assault caused or were likely to cause grave injury or danger to life, limb or health of the deceased. In the backdrop of the above, it is to be examined whether there was any wilful conduct on the part of the Appellant so as to compel the deceased to commit suicide. 50. In a case of suicide, the person, who abates such commission of suicide, is liable to be punished under Section 306 IPC. For holding the person guilty of the offence under Section 306 IPC, it must be proved that somebody had abated the commission of suicide. The gravamen of the offence punishable under Section 306 IPC, is abating suicide. Section 107 IPC, which reads as follows, defines abatement of doing of a thing thus: 107. Abetment of a thing: A person abets the doing of a thing, who- First-Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly-Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. The word 'instigate' appearing in Section 107 IPC means the active role played by a person with a view to stimulate Anr. person to do the thing. It is the instigation to the commission of the offence itself, which constitutes the offence of abatement. The instigation must amount to provoking, inciting, urging or encouraging a person to do a thing. In the case of Sonti Rama Krishna v. Sonti Shanti Sree and Anr. person to do the thing. It is the instigation to the commission of the offence itself, which constitutes the offence of abatement. The instigation must amount to provoking, inciting, urging or encouraging a person to do a thing. In the case of Sonti Rama Krishna v. Sonti Shanti Sree and Anr. reported in AIR 2009 SC 923 , the Apex Court observed that the words uttered in a fit of anger or emotion without any intention cannot be termed as instigation Therefore, in order to hold a person guilty of abating, it must be established that he had intentionally done something which amounted to instigating Anr. to do a thing. In view of the above, in our present case, it was the burden of the prosecution to establish that the Appellants had assaulted or treated the deceased in such a manner with the intention that the deceased would be led to commit suicide. In the case of Sohan Raj Sharma v. State of Haryana, reported in AIR 2008 SC 2108 , the Supreme Court observed that 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 mental process of entering into conspiracy for the doing of that thing. More active role, which can be described as instigating or aiding in the doing of a thing is required to be established before a person can be said to be abetting the commission of offence under Section 306 IPC. As referred by the Supreme Court, in the case of State of West Bengal v. Orilal Jaiswal and Anr. (supra), 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, induct her to end her life by committing suicide. It was further observed by the Apex Court that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. 51. It was further observed by the Apex Court that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. 51. In the case of Orilal Jaiswal (supra), the Apex Court observed that court is also required to consider if the victim committing suicide was hyper-sensitive to the ordinary petulance, discord and differences in domestic life. 52. The dying declaration i.e. the Ext. No. 12 and 13 reveals that the deceased, on being restrained from going to Kolkata to attend the conference, took her life to be meaningless and decided to end her life. Admittedly she was the lone lady member deputed by her employer. In the said circumstance the husband's refusal to allow his wife to go to Kolkata, cannot be deemed to be reasonable ground for treating the life as meaningless one and therefore to take the path of suicide. It appears that the deceased was to some extant hyper sensitive and sentimental. The dying declaration aforesaid indicates that the deceased, on being restrained from going to Kolkata lost her normal frame of mind and being over come by unusual psychological imbalance lost all hopes and aspirations for living and thus decided to end her life by committing suicide. 53. In the case of Shamnsaheb M. Multtani v. State of Karnataka (supra), the Apex Court noting the difference in the legal position between the offences under Section 304B IPC and 306 IPC observed as follows in paragraph Nos. 29 and 30. 29. At this stage, we may note the difference in the legal position between the said offence and Section 306 IPC which was merely an offence of abetment of suicide earlier. The section remained in the statute-book without any practical use till 1983. But by the introduction of Section 113A in the Evidence Act the said offence under Section 306 IPC has acquired wider dimensions and has become a serious marriage-related offence. Section 113A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death the court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc. Section 113A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death the court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc. When the law says that the court may presume the fact, it is discretionary on the part of the court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the court to act on the presumption the accused can persuade the court against drawing a presumption adverse to him. 30. But the peculiar situation in respect of an offence under Section 304B IPC, as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this: Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it. 54. In the case of Manju Ram Kalita (supra), the Apex Court observed that: 22. "Cruelty" for the purpose of Section 498A IPC is to be established in the context of Section 498A IPC as it may be a different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of Section 498A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty. 55. In the case of Sanju @ Sanjay Singh Sengar (supra), the Hon'ble Apex Court observed that the words uttered in a fit of anger or emotion cannot be said to be instigation. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty. 55. In the case of Sanju @ Sanjay Singh Sengar (supra), the Hon'ble Apex Court observed that the words uttered in a fit of anger or emotion cannot be said to be instigation. In the present case though the P.W. 1 stated that the Appellant had said that his married life could not go in that way and that his mother had asked him to look for Anr. girl, the said utterings appear to be made in a fit of anger being emotional out burst due marital discord. Though it has been alleged that the Appellant used to assault the deceased, except the said slapping incident that too once, there is nothing on record to fmd that the Appellant had repeated the same or that he had taken any steps for arranging his second marriage or divorcing the deceased. Rather the statement made by the deceased, in her dying declaration, indicates that the Appellant wanted the deceased very much and that he was not ready to live without her even for two days. In my considered opinion keeping in mind the attending circumstances, the husband's refused to allow his wife to attend the conference at Kolkata, as the single lady member, can not be deemed to be cruelty under Section 498A IPC. 56. From the evidence as discussed above, it has been revealed that the Appellant had given a slap on the deceased i.e. once in the breakfast table. This single act on the part of the Appellant, appears to be an act done in a fit of anger as a result of emotional outburst. Therefore, this act can't amount to cruelty Under Section 498A IPC. 57. According to P.W. 9, the deceased was not allowed to enter her residence once for one and a half hours because of her late arrival from her office. There is nothing to find that this was the regular plight of the deceased. The allegation that the deceased was required to do all the household works, in the absence of any particulars regarding the nature of the work, it can not be ascertained that the same amounted to torture. The allegation that the Appellant was not to allow the use the telephone or to talk to her relatives is not supported by her father. 58. The allegation that the Appellant was not to allow the use the telephone or to talk to her relatives is not supported by her father. 58. The father of the deceased, who deposed as P.W. 8, clearly stated that no adverse report, regarding the marital life, was received by him. What he stated was that the deceased informed him that she was tortured by her husband, but he failed to narrate the nature of torture meted out to his daughter. That apart, P.Ws. 1, 2 and 9 also failed to give detailed particulars about the nature of the tortures committed by the Appellant. The word torture is vague term. In order to hold a person guilty of committing cruelty, it is necessary to examine if the alleged torture under Section 498AIPC amounted to cruelty as defined by Section 498A IPC. Therefore, the prosecution is required to state/explain the detailed particulars or nature of the alleged torture in a given case. But, as discussed above, in the present case the prosecution witnesses failed to describe the nature of the alleged torture. Considering the totality of the evidence on record, coupled with the dying declaration, it is found that the refusal of the husband to grant permission to go to Kolkata was the only cause which led the deceased to commit suicide. There is nothing on record to show that the Appellant continuously/persistently treated the deceased with cruelty, in the close proximity of her committing suicide. Therefore, it can't be safely concluded that the deceased had committed suicide due to any cruelty on the part of her husband. If cruelty or conduct of her husband was the cause of the suicide then she would have certainly disclose the same before the Magistrate at the time of making her dying declaration. But she did not state anything regarding such cruelty or harassment. Therefore, the said dying declaration and the statement of the P.W. 8 (father of the deceased) inspire confidence to believe that the deceased was not compelled to commit suicide due to any cruelty or ill treatment on the part of the Appellant. 59. No evidence has been adduced to show that the nature and gravity of the assault was such that the same was unbearable, for which she had no other alternative but to commit suicide. 59. No evidence has been adduced to show that the nature and gravity of the assault was such that the same was unbearable, for which she had no other alternative but to commit suicide. There is no evidence on record to show as to how and in which manner or in which parts of the body and how frequently the deceased was assaulted by the Appellants. Thee is also nothing on record to show that she had sustained any injury on her person. That apart, at no point of time, the deceased was required to take any medical help for such ill treatment/assault, if any. If the deceased was treated with such cruelty as defined in Section 498A IPC, the witnesses, more particularly, the mother and the brOrs. of the deceased should have been able to specifically narrate the same. They simply stated that the deceased was assaulted and tortured without indicating the nature and extent of hurt/injury, if any. Hence, it cannot be sufficient to safely conclude that the alleged conduct of the Appellant falls within the definition of Section 498A IPC and 306 IPC. In view of the absence of any substantive evidence, it cannot be held that the conduct of the Appellants was of such a nature, which compelled the deceased to commit suicide. 60. In view of the above discussions, it is found that the prosecution failed to substantiate by adducing cogent and reliable evidence, that the Appellant had treated the deceased with such cruelty as defined by the Section 498A IPC. That apart, there is nothing on record to show that the Appellants had abated the deceased in any manner to commit suicide. The entire evidence on record and the facts and circumstances lead to the irresistible conclusion that the prosecution failed to prove the offences under Section 498A and 306 IPC beyond all reasonable doubt. Therefore, the conviction and sentence as recorded by the learned Sessions Judge cannot be sustained. 61. The appeal, therefore, is allowed and the judgment and order, dated 20.05.2003, passed by the learned Sessions Judge Kamrup, Guwahati, in Sessions case No. 203(K)/2000 stands set aside and quashed. Accordingly, the Appellant is acquitted of the charge under Sections 498A and 306 IPC and set at liberty. Send down the records. His bail bond shall stand discharged. Appeal allowed.