JUDGMENT D.P. Mohapatra, J.
1. In this appeal the appellants assail the judgment and order of the learned Addl. Sessions Judge, Jajpur in S. T. Mo. 238/54 of 1989 convicting them of the offences punishable under Sections 304B/498A/306, IPC, and sentencing each of them to undergo R. I. for eight years for the offence under Section 304B and awarding no separate sentence for the other two charges. Appellant No. 1 Pramila Patnaik is the mother-in-law of the deceased Keno @ Subasini Mohanty, appellant No. 2 Prabodh Kumar, Patnaik is her husband and appellant No. 3 Subodh Chandra Patnaik @ Subodh Kumar Patnaik is her brother-in-law (younger brother of Prabodh Kumar Patnaik).
2. The deceased Subasini had married Probodh on 7-5-1987. Her parents are residents of village Talapada under Dhamnagar Police Station in the district of Balasore. Prabodh’s parents reside in village Balarampur under Dharmasala Police Station in the district of Cuttack. The incident giving rise to the criminal case took place on 3-8-1988 at about evening time when Subasini is alleged to have committed suicide by setting fire to herself in her father-in-law’s house at Balarampur.
The gist of the prosecution case is that at the time of marriage there was demand for dowry including Rs. 15,000/- in cash by the accused persons. Bhaskar Chandra Mohanty (PW 1), father of Subasini paid Rs. 10,000/- in cash and spent the balance amount for hiring a bus for bringing the groom’s party to his village. After the marriage members of the family of the in-laws of Subasini were not satisfied with quality of the articles sent with the bride and also wanted the balance amount of Rs. 5000/- to be paid. The said demand having not been satisfied by PW 1 the accused persons are alleged to have harassed and tortured Subasini. She was abused and denied food. Due to the torture Subasini was frightened to reside in the family of the accused. In the meantime she gave birth to a male child while staying in her parents’ house, on 22-2-1988, the child died after a few days. Thereafter she went to her father-in-law’s house. From there she had addressed a letter to her father (Ext. 1) expressing her reluctance to stay in the house of the accused, getting which her father (PW 1.) went to Balarampur with one Narendra Prasad Mohanty to bring Subasini to his house, but the appellants 1 and 2 suggested to send Subasini with her husband at the time of car festival. Indeed Subasini and her husband came to village Talapada, the latter left after staying there for two days and during his stay he was apprised of the complaints of Subasini about the ill-treatment and torture meted out to her in his house. On 2-7-1938 her husband dropped a post-card to Subasini asking her to come immediately to Balarampur since he was ill and accordingly she returned to her father-in-law’s house. Debendra Mohanty will accompanied Subasini to Balarampur informed her parents that he found her husband in good health. When he suggested to bring back Subasini with him to Tatapada her husband suggested to leave her there on his way to the place of posting. On 4-8-1988 at about 10 A.M. Narendra Prasad Mohanty and another arrived at Talapada and gave news of the death of Subasini at the S. C. B. Medical College Hospital, Cuttack on account of burn injuries sustained by her father immediately rushed to the Hospital. Thereafter he reported the matter at the Mangalabag Police Station in Cuttack town and on being directed by the authorities there he lodged the First Information Report (F. I. R.) at the Dharmasala Police Station whereafter investigation was taken up.
3. In course of the investigation the police examined the witnesses, seized the letters marked Exts. 1 to 5, the various articles given by PW 1 at the time of marriage of Subasini, sent her deadbody for post mortem examination seized the remnants of her wearing apparel, the Janata model stove with which she was allegedly cooking at the time of the incident. On completion of the investigation charge-sheet was submitted under the sections noted earlier.
4. The accused persons completely denied the allegations made by the prosecution. Their further plea was that the death of Subasini was caused by accidental fire when she was cooking in the kitchen. They alleged that the case has been fabricated against them with a view to get back the materials of Subasini.
5. To establish the charges against the accused the prosecution examined eight witnesses of whom PW 1 Bhaskar Chandra Mohanty was father of Subasini, PW 2 Binapani Mohanty was mother of Subasini, PW 3 Ambika Mohanty was a relation and a friend of Subasini who was also a resident of Talapada, PW 4 Debendranath Mohanty was the cousin brother of Subasini who had accompanied her to Balarampur on the last occasion, PW 5 Gokula Chandra Jena, PW6 Durga Prasad Singh and PW 7 Nrusingha Charan Behera were the three police officers who conducted investigation of the case at different stages and PW 8 Dr. Subarna Manjari Kar was the doctor who conducted autopsy on the deadbody of Subasini. The prosecution also filed several documents including the letters of Subasini (Exts. 1 to 5).
On behalf of the accused three witnesses were examined. Rama Chandra Saha (DW 1), a forester at Duburi was examined to establish that appellant Subodh Kumar Patnaik had accompanied the witness on 3-8-1988 on patrol duty in Mahagiri Demarcated Protected Forest, DW 2 Bauribandhu Patnaik was the front door neighbour of the house of the accused persons at Balarampur who reached the place of occurrence shortly after the incident and DW 3 Rabindranath Prusty was the Pharmacist at Kabatabandha Addl. PHC who had given prescription to Probodh Kumar Patnaik on 28-7-1988. Several letters written by Subasini to members of father-in-law’s family. (Exts. B, B/1, C to C/3, D, F to F/1 and G) and letters written by her father (PW 1) to her, to her father-in-law and her husband (Exts. A to A/16) were produced on behalf of the defence.
6. Assessing the evidence on record the learned Addl. Sessions Judge held, inter alia that Subasini died 15 months after her marriage by committing suicide due to the physical and mental torture associated with the wilful conduct of the accused persons towards her; and that the appellant No. 2 remained all along passive and by his wilful conduct joined hands in the dowry torture of Subasini. On the said findings the learned trial Judge-held that the prosecution had been able to bring home the charges under Sections 304B, 498A read with Section 306, IPC against the accused persons. Accordingly he convicted the accused persons under the said sections and sentenced them in the manner noted earlier.
7. Before assessing the evidence in the case it will be convenient to notice the relevant statutory provisions and discuss the legal position arising out of the legislative changes introduced in the Penal Code to combat the menace of dowry deaths. As noted earlier, the accused persons have been charged for offences punishable under Sections 304B/ 498A/306, IPC.
Section 304B which deals with the offence of dowry death provides, inter alia, that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death. On a bare reading of the section it is manifest that the ingredients to be established are ; (i) that the death of the woman was caused by any burns or bodily injury or occurred otherwise than under normal circumstances within seven years of her marriage; and (ii) that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry.
Section 498A provides, inter alia, that whoever being the husband or the relative of the husband of a woman, subjects to 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. Under the Explanation to the section ‘cruelty’ is defined to mean–(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.
Section 306 IPC which deals with abetment of suicide must be read in the back drop of the facts of the case and the other penal offences charged against the accused. Under the section, 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.
‘Abetment’ as defined in Section 107 comprises (i) instigation to do that thing which is an offence; (ii) engaging in any conspiracy for the doing of that thing; and (iii) intentionally aiding by any act or illegal omission the doing of that thing.
Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence.
The word ‘instigate’ in the literary sense means to incite, sat or urge on, stir up goad, forment, stimulate, provoke etc. In the case of The State of Punjab v. Iqbal Singh and Ors., reported in AIR 1991 SC 1532 the Apex Court dealing with the legislative changes to combat the menace of dowry deaths observed thus :
“……The increasing number of such deaths was a matter of serious concern to our law-makers. Cases of cruelty by the husband and his relatives culminated in the wife being driven to commit suicide or being done to death by burning or in any other manner. In order to combat this menace the legislature deckled to amend the Penal Code, Criminal Procedure Code and the Evidence Act by the Criminal Law (Second Amendment) Act, 1983 (No. 46 of 1983). So far as the Penal Code is concerned, Section 498A came to be introduced whereunder ‘cruelty’ by the husband or his relative to the former’s wife is made a penal offence punishable with imprisonment for a term which may extend to three years and fine. The explanation to the section defines ‘cruelty’ to mean (i) 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 her life, limb or health, or (ii) causing harassment of the woman with a view to concerning her or any person related to her to meet any unlawful demand for any property or valuable security. Thus, under this newly added provision if a woman is subjected to cruelty by her husband or his relative it is penal offence and by the insertion of Section 198A in the Code of Criminal Procedure a Court can take cognizance of the offence upon a police report or upon a complaint by the aggrieved party or by the woman’s parents, brother, sister, etc. The offence is made non-bailable. In so far as the Evidence Act is concerned, a new Section 113A came to be introduced which reads as under:
‘113-A. 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 relatives 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 498Aof the Indian Penal Code (45 of 1860).’ On a plain reading of this provision it is obvious that if a wife is shown to have committed suicide within a period of seven years from the date of marriage and there is evidence that she was subjected to cruelty by her husband or his relative, it would be permissible for the Court to presume that such suicide was abetted by her husband or by such relative of her husband. The Amendment Act 46 of 1983 received the assent of the President on 25th December, 1983 and was published in the Gazette of India, Extra, dated 26th December 1983. The trial Court rendered its judgment on 23rd February, 1984 and it does not appear if the prosecution concentrated on Section 113A, Evidence Act, for otherwise it would have tried to place on record the exact date of marriage to take advantage of the presumption arising thereunder. The High Court referred to this provision but did not say anything in regard to its application. Being a rule of evidence it could perhaps have been invoked if proof regarding the exact date of marriage was laid. Since there is not cogent evidence that the marriage was solemnised within seven years from the date of incident we need not dilate on that point.
The law underwent a further change with the introduction of Section 304B in the Penal Code and Section 113B in the Evidence Act by the Dowry Prohibition (Amendment) Act, 1986. Where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruelty or harassment by her husband or any of his relative for or in connection with any demand for dowry, such death is described as dowry death under Section 304B for which the punishment extends to imprisonment for life but not less than imprisonment for seven years. By Section 113B, Evidence Act the Court has to raise a presumption of dowry death if the same has taken place within seven years of marriage and there is evidence of the woman having been subjected to cruelty and/or harassment.
The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. We must keep in mind this legislative intent. It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Sections 113A and 113B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members Section 498A. IPC would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under Section 304B IPC. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry. Section 113B, Evidence Act provides that the Court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract Section 302 IPC. Then we have a situation where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of Section 306, IPC. In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide…………”
“While civil case may be proved by mere preponderance of evidence, in criminal case the prosecution must prove the charge beyond all reasonable doubt. This is so even after the instruction of SCC 493A, IPC and Section 113A, Evidence Act. The Courts must strictly be satisfied that no innocent person, innocent in the sense of not being guilty of the offence of which he is charged, is convicted, even at the risk of letting of some guilty persons. There is a higher standard of proof in criminal cases than in civil cases. But there is no absolute standard in either of the cases. The doubt must be of a reasonable man. The standard adopted must be the standard adopted by a prudent man which of course may vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plan that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt mutt be commensurate with the nature of the offence to be investigated.” (quoted from placitum).
The Punjab & Haryana High Court in the case of Ashok Kumar v. The State of Punjab, reported in 1987 Crl. L. J. 1412 construing the provisions of Section 113A, Evidence Act held that under the provisions of Section 113A of the Evidence Act, as inserted with effect from December 26, 1983, unless the husband can be held guilty of subjecting the wife to cruelty, no presumption of abetting the wife in committing suicide is available under the provision.
The Bombay High Court in the case of Smt. Sarala Prabhakar Waghmara v. State of Maharashtra and Ors., reported in 1990 Crl. L. J. 407 held that it is not every harassment or every type of cruelty that would attract Section 498A it must be established that beating and harassment was with a view to force wife to commit suicide or to fulfil illegal demands of husband and in-laws.
8. On a close look at the provisions of Sections 304B and 498A, IPC, it is evident that one of the essential ingredients to be established for the offences under both the sections is that the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband in connection with any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand. The other ingredients like death having taken place in abnormal circumstances and within the statutory period of seven years of Section 304B have been amply established from the materials on record. The moot point therefore is whether from the materials on record it can be said that before her death Subasini was subjected to cruelty or harassment by the accused persons on account of or relating to the demand for dowry. If the question is answered in the affirmative then the presumption under Section 113A and 113B of the Evidence Act will also come to play.
9. Coming to the evidence, the prosecution examined four witnesses, PWs 1 to 4, relating to the incident. They are all relations of the deceased Subasini. PW 1 Bhaskar Chandra Mohanty, father of Subasini stated, inter alia, that before the marriage it was settled that he was to give Rs. 15.000/- in cash and gold ornaments of 10 bharis with other articles like Almirah, T. V., utensils etc. He had paid Rs. 10,000/- before the marriage and had hired a bus for taking the groom’s party spending the rest of the amount. Subasini had come to his house for about five to six times after her marriage and all the times she was saying that the articles given at the time of her marriage have not been held to be of standard qualities by the accused persons she was also telling the witness that she was being deprived of food and was being abused for the poor quality of the goods. The Witness stated that she had also dropped him a letter on 9-7-1988 (Ext. 1). The witness also proved the letters written by Subasini (Exts. 2 to 5). He believed that his daughter was burnt by the accused persons. In cross-examination the witness admitted that Exts. A to A/6 are the letters written by him, Exts. B to B/13 are the letters written by Subasini to her husband, Exts. C to C/3 are the letters written by her, Ext, D is her letter to Prasanta Kumar Patnaik, Ext. E is the letter written by Subasini to her mother-in-law. Exts. F and F-1 are the letters written by Subasini to her mother in-law and Ext. G is the letter written by Subasini. The witness admitted that he had not seen the assault on Subasini in his own eyes nor he had seen any kind of torture inflicted to Subasini in his presence. He came to know about it from the version of Subasini and from her letters. From his evidence it appears that accused Probodh worked as Supervisor in the Forest Department and was stationed at Karamagi in Keonjhar district at the material time. Subasini was unhesitant to join for husband. The witness further stated that no Panchayati was held either in the village of the accused or in his village. He had not lodged any FIR or any petition anywhere during the life time of Subasini about the torture allegedly inflicted on her. The witness further stated that Subasini had written to him not about committed assault but of an attempted assault and that accused Subodh Chandra Patnaik had attempted to assault her in presence of Probodh. The witness also stated that he could not exactly say who laid the demand of dowry.
PW 2 Binapani Mohanty, mother of Subasini stated that the accused persons used to torture Subasini for Rs. 5000/- which had been spent towards expenses for hire of the bus and for the marriage procession : they used to assault her for this dowry amount when Subasini used to come to their house she was narrating to her (witness) and to others these facts and she was also intimating them about her tortured conditions through letters. It appears from her evidence that Prododh had come to their house with Subasini many times. In cross-examination the witness stated that after about two to three months of the marriage they received letters about the torture inflicted to Subasini and thereafter they received about 10 to 12 letters. All these letters were handed over to the police. When Subasini came to their house after the honeymoon night she had not complained about any ill-treatment. At the time of her delivery of her child Subasini had stayed with them for about six months. About five to ten times the witness had heard from Subasini about the torture inflicted on her. When they were in the house of the witness Probodh and Subasini were sitting together and were behaving cordially. It further appears from her evidence that Mukunda and Purna Patnaik had demanded dowry and Rs. 10,000/- had been paid to Purna Chandra Patnaik two to three days prior to the date of marriage. The witnesses further stated that Subasini had been assaulted by four persons once or twice and the assault was about a year after the marriage. Subasini was telling the witness that she was fearful of her mother-in-law. The witnesses however admitted that she had not seen any torture being inflicted on her daughter. From the evidence of the Investigating Officer (PW 6) it appears that this witness had not stated before him that Subasini was assaulted for non-payment of dowry and was not provided with food at times ; she had also not stated the names of the accused persons who had exerted pressure on Subasini to bring cash of Rs. 5000/- .
From the evidence of PW 3, the cousin sister of Subasini (her father’s younger brother’s daughter) it appears that Subasini had written letters to the witness regarding her torture and ill-treatment and told her about it. In cross-examination the witness admitted that she had not seen giving and taking of the dowry amount. Subasini had told her that none in the house of the accused persons were liking her and she was being assaulted. This witness, as appears from the evidence of the investigating Officer (PW 6) had not specifically stated before him that Subasini was subjected to torture for non-payment of dowry.
According to the version of PW 4, a cousin brother of Subasini, she had told, him that her mother-in-law was of the view that the amount spent on hire charges of the bus and the marriage procession must be met by her (Subasini) father and for non-payment of the balance amount of Rs. 5000/- she was being constantly abused by her mother-in-law. She had also sent letters to PW 1. As noticed earlier, this witness had accompanied Subasini to Balarampur on 27-7-1988. From his cross-examination it appears that after six to seven months of the marriage, probably in the month of November, the witness could know that Subasini had been subjected to torture. They had not informed the police or any other authority about the torture on Subasini. The witness further stated that he had gone to the house of the accused persons for about four to five times and he was behaved property whenever he had gone there except on the tone occasion on 27-7-1988. The witness also stated that on his return to Talapada he told PW 1 that accused Probodh was suffering from dysentery. From the evidence of PW 6 it appears that this witness had not stated before him during the investigation that Subasini had told him that according to her mother-in-law the amount spent towards hire charges of the bus and the marriage procession should be met by her father and that for non-payment of that amount she was constantly abused by her mother-in-law. The witness had also not stated before the Investigating Officer that Subasini had sent letters to PW 1 in that regard.
10. From the testimony of the witnesses and the contents of the letters filed in the ease, it is clear that the two families- that is, parents of Subasini and her parents-in-law were on visiting terms and had correspondence with each other. None of the witnesses, has any direct knowledge about any demand/pressure on Subasini for dowry or about cruelty, ill-treatment and torture allegedly meted out to here in the house of her parents-in-law. Their source of information mainly was the letters written by Subasini. Therefore the letters filed in the case assume considerable importance.
The letters were written during the period from 1-6-1987 to 2-8-1988. Most of the letters were written by Subasini to her husband and to her parents. I have carefully perused all the letters. From the contents of the letters I do not find any expression either explicit or even implicit alleging any pressure on her on account of dowry demands or any assault, ill-treatment, cruel behaviour, torture on that ground. On the other hand, the contents of the letters clearly indicate that she was always trying to impress on her husband not to worry about her and take good care of himself. The letters further indicate that she was deeply in love for her husband and very much wanted to be with him. She felt that she was lucky in getting him as her husband. In her letters she was always asking him to write to her more often. She had given certain instructions to him regarding food to be taken by him. In her letters to her parents-in-law she was quite respectful towards them and concerned about other members of their family. The contents of some of the letters however show that she was unhappy since she was not able to visit her parents regularly and was not able to join her husband wherever he was posted. It further appears from her letters that she was very happy on the birth of her son and was completely shattered on the death of the child. She was particularly unhappy about the medical advice given to her that she should not conceive for about four years. Even during that period she had tried to console her husband and requested him to take good care of himself. In her letters to her parents she did not make any complaint about any demand/pressure on her for dowry or any assault, cruelty, torture etc. She was mostly asking them to come and see her at her in-laws’ place.
From her letter dated 9-7-1988 (Ext. 1) addressed to her father she had written that if anything happened to her then he should take steps, if necessary, taking recourse to process of law, to take return of the ornaments and articles given to her as dowry. She has also requested him to take her to his house immediately but nothing is stated in the letter indicating any apprehension in her mind or any particular reason for her request to leave her marital home. Even in the letter she wrote that she would be leaving the ornaments either with her husband or in her almirah. Though this letter indicates some apprehension to her life, but as noted earlier no specific reason for it is stated. Further, simply from this letter it is not possible to accept that Subasini was subjected cruelty, harassment or torture on account of or relating to the demand for dowry. In the absence of acceptable evidence to establish this foundational fact, the charges under Sections 304B, 498A and 306, IPC cannot be said to have been established even applying the presumption under Section 113A of the Evidence Act.
11. Considering the evidence on record as shortly discussed in the preceding paragraphs in the light of the principles laid down by the Apex Court and other High Courts in the decided cases noted earlier. I have no hesitation in holding that the prosecution has failed to prove the charges framed against the appellants beyond reasonable doubt. The learned Addl. Sessions Judge was clearly in error in holding to the contrary.