Protima Dutta & Anr. v. The State

Sudhamay Basu, J.:— This is an appeal against the judgment and order passed by the Additional Sessions Judge, Alipore in Sessions Trial No. 3 of March, 1969 by which the two appellants, Protima Dutta and Subrata Dutta were convicted under S. 306/34 I.P.C and each sentenced to suffer R.I for five years.

2. The prosecution case relates to the tragic death of a young woman Sumana alias Buria at premises no. 35, Lansdown Terrace, Calcutta. This unfortunate girl lost her father in 1954, her mother having earlier committed suicide in 1951. Cheerful and vivacious Sumana was not apparently brought up in a normal, healthy and happy family surroundings. The appellant Subrata Dutta was her husband and appellant Protima Dutta was her mother-in-law. Prior to their marriage Subrata had fallen in love with Sumana, a former resident of premises no. 162A, Lansdown Road. Intimacy developed between them and the two were married against the wishes of Subrata's mother, Smt. Protima Dutta who did not like the union to take place. After marriage Subrata went to Satpura in Madhya Pradesh on transfer as an Officer of Kuljian Corporation. A son named Shibaji alias Bapsu was born there on 11.7.1966 From Satpura Subrata and Sumana returned to Calcutta and lived at 35, Lansdown Terrace. Besides Subrata's mother he had two brothers Jahar and Ratan and a young sister, Chitu who all lived in the same house. Subrata's father was a lawyer at Imphal, Assam who occasionally came to Calcutta. The prosecution case is that both Subrata and his mother Pratima treated Sumana with cruelty. Subrata not only tormented her mentally but also indulged in physical assaults. His mother instigated Subrata to torture the girl. They used to exhort her to die or leave the house. Subrata's mother even said that girls like Sumana better died by burning themselves. Subrata's mother used to suspect parentage of Sumana's son as the child was born shortly after the marriage between Subrata and Sumama. Sumana was even called a prostitute. Sumana's life became miserable. On the 7th of March, 1968 at about 10-30 she set fire to her clothes soaked with kerosene oil. Few days before death she told some neighbours and wrote to her about the miseries of her life. On the 7th of March, 1968 Sumana visited her paternal uncle's house at Lake Gardens with her son and returned to 35, Lansdown Terrace at about 8 P.M Her husband and other-in-law had gone out of the house on marriage invitation. The servant took the meal of Sumana to her room and found her sitting on the bed with her hands resting on her cheek. She was weening looking down towards the floor. The meal was left in the bed room. After the servant came out she bolted the door from inside. At about 10-45 her next door neighbour, Sri Arun Kumar Dutta, of premises no. 33, Lansdown Terrace, then a senior Municipal Magistrate saw the burning figure and rushed to 35, Lansdown Terrace followed by his wife, Shikha Rani Dutta, an Advocate of Judge's Court at Alipur. Sri Dutta saw her standing in the verandah adjoining her bed room cluching a pillar. She told Dutta that she was unable to stand any more. Dutta brought a sari from the bed room and put it round her body. She told Dutta, “Pishemassay, today is the 7th of March, the date of my mother's death. Today I have been asked to die. Save me”. Dutta shouted for help but no inmate came to help him. He brought a blanket from the bed room wrapped Sumana's body and with the help of two Hindusthani people who had come, laid her down on a wooden bench. Soon Pasupati Khan and Dr. Pal, two neighbours came there. Sumana wanted to drink water but no inmate of the house supplied water to her. The servant at last supplied water to Shikha Rani Dutta who gave the same to Sumana with the permission of Dr. Pal. Sri Dutta then called Subrata to take Sumana to the hospital. Subrata showed his burnt hand and said that he was not in a position to drive. Sri Dutta then asked for the keys of the car but Subrata gave no reply. As Dutta searched for a car or a taxi a neighbour offered a car. Smt. Bhiba Rani Dutta, Ex. M.L.A, elder sister of Shikha Rani Dutta also arrived there in her car. Sri Dutta then took Sumana to S.S.K.M Hospital. Sumana was examined and admitted in the hospital. Subrata also went there in the other car. He was discharged after examination and medical aid. The prosecution case is that the members of Subrata's family were very non-co-operative. Even on asking Subrata's mother did not give any money for the expenses of the hospital at first. Later on, of course, a sum of Rs. 100/- was given to Mr. Dutta. Sumana died on the 8th of March, 1968. Neither Subrata not his mother visited Sumana in the hospital. Subrata even did not attend the cremation of Sumana in spite of the requests. On receipt of injury report from the S.S.K.M Hospital a G.D Entry was made at Tollygunge Police Station and investigation was taken up. After completion of investigation a charge sheet under S. 306/34 I.P.C was submitted by the Police on the basis of which an enquiry was held by the learned Magistrate who committed the two appellants to the Court of Sessions. The learned Additional Sessions Judge examined 52 witnesses and after hearing arguments convicted the two accused as noted above.

(The oral evidence of the witnesses was then summarised by his lordship and discussed from pages 4 to 23 of the judgment — Ed.)

3. Apart from the oral evidence it has also transpired that certain letters were made exhibits (Ext. 7, 8 & 9 series) in course of the trial which have important bearing on this case. These letters were written by Sumana from time to time. One of the letters written to her brother, Ext. 7/2 dated the 25.11.67 states that “for sometime past Bulu (her husband) has been severely beating me with a slipper. His mother made me hear many words before my taking meal at night such as, woman of the town with a great liking for marketing”. In another letter dated the 27.12.67 addressed to the brother she wrote “Today I am asking for death … He does not hesitate to call me a prostitute today. The people want to be relieved of my responsibilities. I do not also want to live. You tell me the easiest way to die”. In another letter dated the 6.2.68, Ext. 7/5, addressed to the brother she states “Now mother-in-law in presence of Bulu has been showing great favour to Bapsu and to him. She has been wishing my death …….. I now whole heartedly pray to God so that I may be out from this hell”.

4. In another letter dated the 6.3.68 immediately before her death she wrote as follows:

“Nothing is left in my body as a result of assault. I have come to the last stage, receiving kicks and shoe beating in the face. Glass has entered my eyes after spectacle was broken. Anyone receiving such inhuman treatment from these people would be turned into a beast. Even a wild beast does not receive assaults as I do”. Another letter, Ext. 14 dated 23.10.67 which is written by Subrata's father to Subrata contains this:

“You have not written to me as to your conduct towards Sumana. You know I am serious about it and somehow I am mighty unhappy as to the treatment she is having from you all. Was she ill? Who paid for her treatment? Write to me. You are spending a lot after the car and neglecting her requirements. Not only that you are also taking all her money. I do not like this. I am very eager to know all about this thing”. In another letter, Ext. 43 dated the 29.7.1967 Subrata's father wrote to Smt. Nalini Mazumder “I am her father. So long I am alive she is not fatherless and, if necessary, I shall make arrangements for her. Kindly advise Sumana so that she behave with modesty and she never becomes argumentative”.

5. The admissibility of the letters written by Sumana was called in question. According to S. 32 of the Evidence Act statements written or verbal of relevant facts made by person who is deed are them selves relevant when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question. It is argued that the statements in the letter are too remote in point of time and too indefinite to constitute abetment of suicide. Much reliance was placed by Mr. Banerjee on the words in S. 32 namely “Circumstances of the transaction” resulting in death. It was argued that the letters are at best general evidence of abuse and cruelty. Cruelty as such does not constitute, abetment of suicide.

6. Not all statements of deceased persons can be taken into account. Only such statements as relate to circumstances of transaction resulting in death can be proved. The ‘transaction in this case is systematic ill treatment for years since the marriage of Sumana with incitement to end her life. Circumstances of the transaction include evidence of cruelty which produces a state of mind favourable to suicide. Although that would not by itself be sufficient unless there was evidence of incitement to end her life it would be relevant as evidence. In the case of Pakala Narayana v. The King Emperor reported in 43 CWN 473 the Judicial Committee construed the phrase “Circumstances of the transaction” which held that the phrase which no doubt convey some limitations and is not as broad as the analogous use in “circumstantial evidence” and narrower than “res gestae” explained as follows:

“A variety of questions has been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the “circumstances can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction; general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible…

Circumstances must have some proximate relation to the actual occurrence: though as for instance in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal does”.

7. In the case of Harihar Mullick v. The State (Criminal Appeal No. 5 of 1958) which was cited at the Bar Debabrota Mookerjee, J. commented on the aforesaid observation of the Privy Council and said that “This observation taken as a whole would, in my view, imply that the time factor is not always a criterion in determining whether the piece of evidence is properly included within “circumstances of transaction”. In the illustration provided by the case of prolonged poisoning, it as clearly indicated that the evidence of circumstances might be given which from the point of view of time would be distant from the date of death. His Lordship noted that “In that case the allegation was that there was sustained cruelty extending over a period of three years interpersed with exhortation to the victim to end her life”. His Lordship further observed and held that the evidence of cruelty was one continuous chain, several links of which were touched up by the exhortations to die”. Thus evidence of cruelly, ill treatment and exhortation to end life adduced in the case must be held admissible, together with the statement of Nilima (who committed suicide) in that regard which related to the circumstances terminating in suicide”. His Lordship believed those statements. In that case an appeal against conviction on a charge under S. 305 was dismissed by the Bench.

8. Mr. Banerjee, however, relied on two unreported decisions of this Court; (1) Revision No. 400 of 1948 (The Superintendent and Remembrancer of Legal Affairs v. Chittaranjan Dey and (II) Reference No. 2 of 1064 (The State v. Shyam Sundar Mullick). The former was a revision petition for setting aside an order of the Sessions Judge who discharged the accused on a charge under S. 306 I.P.C The letter written by the deceased on the day she committed suicide by hanging was considered. But the father of the deceased was examined and he denied the stories of the ill treatment by the husband. In the circumstances the rule was discharged as the Court was of the view that no reasonable jury could have convicted the accused on that evidence. In the latter case a reference and a criminal appeal, both arising out of the same trial by the learned Judge of the City Sessions Court, were considered by a Bench of this court. The Bench found no reason to interfere with the finding of acquittal. The Court found that the statements made by the victim were inadmissible and the evidence of her parents and her brother and uncle were not such from which it was possible to arrive at a conclusion that there was instigation to commit suicide. Referring to the Criminal Appeal No. 5 of 1958 to which attention of the court was drawn Das, J. distinguished the unreported decision as the same did not apply to the facts of that case. In that case there was a charge of sustained and continuous cruelty and utterances and in that circumstances evidence of continuous cruelty and ill treatment was admissible. Indeed in the case of Gour Chandra Chatterjee v. The State, AIR 1950 Cal. 36 which was also cited at the Bar it was held that evidence of past cruelty or incitement to commit suicide would be inadmissible. But in that case the definite charge framed was that there was instigation to the woman to commit suicide on two dates precisely mentioned in the charge. Therefore, the said decision would have no application in the other case, viz. Criminal Appeal No. 5 of 1958, which was a case where sustained and continuous cruelty amounted to instigation or abetment of suicide. In the present case, it may be noted, the charge specifically is that there was abetment of the commission of suicide by instigating Sumana Dutta from time to time to commit suicide. There is, therefore, no scope of application of the principle enunciated in AIR 1950 Cal. 306. We respectfully agree with the reasoning given by Debabrota Mookerjee, J. in Criminal Appeal No. 5 of 1958 in this respect. We are unable to hold that the letters covering a period of less than two years are entirely inadmissible in evidence.

9. As to the point whether Sumana committed suicide it transpires that near about the time of occurrence it was given out by Subrata and his mother that the burning was the result of an accident by bursting of a Janata stove. Reference may be made in this connection to the evidence of P.Ws 3, 10, 19 and 42. But from the other evidence and circumstances it appears that the learned Sessions Judge was correct in rejecting the story of catching fire as a result of a sudden bursting of a kerosene stove. None of the appellants stated under S. 347 that the fire was the result of a sudden bursting of a kerosene stove. As the learned Sessions Judge noted in this connection immediately prior to the incident of burning P.W 34, the boy servant found Sumana at about 8-30 P.M weeping with her eyes on the floor. P.W 5, Mr. Arun Dutt heard a cry of Sumana and a shout of Subrata at about 10-45 P.M Both the cries came from Sumana's bed room. He saw flame all over the body of Sumana as she stepped forward from the bed room to the verandah. He saw flames above her head. He then hurried to the house of Subrata. Failing to get through the eastern entrance he crossed the drawing room and reached the verandah. He saw the accused persons, Subrata's brothers and sisters either in the bed room or in the passage. Sumana was standing alone on the verandah naked holding a pillar. Her body and hair were burnt. He smelt heavy kerosene oil and fume coming from Sumana's body and her bed room. She told the witness “Pishemashay, hold me. I cannot stand any more”. She also said “Today is the 7th of March, the date of my mother's death. Today I have been asked to die. Save me”. P.W 3, Mrs. Dutta's evidence is more or less the same and corroborates P.W 5, P.W 10, a next door neighbour heard a cry of “fire fire” at about 10-30 P.M and from his verandah he found Sumana burning in the verandah of the house of Subrata. The person was engulfed in fire. He saw flames rising above her head. He noticed that Subrata was going to pour water on the burning figure holding a tab of water but the witness warned him not to pour water and asked him to press the burning figure with a quilt or a blanket. When this witness reached Subrata's house he found the burning figure lying on a bench and found Mr. and Mrs. Dutta there. He also smelt kerosene. P.W 15, Dr. H. Pal, on his arrival in the house of Subrata could indentify Sumana by her voice. He also smelt kerosene from the room adjoining the verandah. Ext. XXXI is the southern door leaf of the door of the bed room of Sumana. The evidence of P.W 5 is that in the lower portion of the inner side of the door leaf he found a charring mark. P.W 40, Mr. Basak, a senior physicist of the Forensic Science Laboratory also examined Ext. XXXI and found burnt marks terminated by sharp upper edge forming a distinct curbed contour where the intensity of charring was maximum. The charring was found to have gradually diminished towards the lower and the two sides. Burnt marks of similar intensity could be produced by placing some cotton fabrics in flame against the door leaf for about 18/20 seconds. From this it appears that for 18/20 seconds the person was perhaps in a squatting position having a portion of the right buttock firmly in contact against the lower part of the door leaf when the clothes of the person were burning. According to Mr. Basak this might have resulted in the big burnt mark conditions in the door leaf. P.W 41. Dr. Deb who held the post-mortem examination on the body of Sumana found extensive burn injuries of first and second degree all over the body except posterior lateral side of the right buttock measuring 6″×6″, upper half and back of left thigh and left buttock. This evidence along with other evidence of P.W 40 suggested that Sumana with flames all over her body was squatting inside her bed room besides southern door leaf. The statement under S. 342 Cr. P.C by the accused persons also showed that Sumana was sitting by the side of the door leaf. The learned Sessions Judge correctly inferred that a woman accidentally catching fire from the bursting of a kerosene stove would not be found squatting inside the bed room with the door bolted from inside instead of trying to rush out from the room to save herself. The opinion of Dr. Murari Mohan Mukherjee, P.W 31 who examined Sumana and found 80% burnts on her body is that such severe burns are not produced by accidental bursting of a Janata type of stove. The boy servant, P.W 34, has stated that next morning he found the stove lying in two parts which he reassembled. There is also no evidence of the presence of any baby food, trace of milk or milk food in the bed room. In view of the facts and circumstances, noted above, we are inclined to agree with the learned Sessions Judge that in all probablity Sumana set fire to her clothes after she had poured kerosene oil on her clothes. We endorse the finding that Sumana committed suicide.

10. It may be noted that the charge against both the appellants is under S. 306/34 I.P.C, namely, that in furtherance of the common intention of both of them they abetted commission of suicide by Sumana Dutta by instigating the latter from time to time to commit suicide as a result of which the suicide was committed.

11. As to the mother-in-law, Mr. Banerjee stated that it was not unnatural for the lady not to take kindly to Sumana who previous to her marriage had loved another boy and who gave birth to a child soon after marriage. Even if she did not like the marriage after all she accepted her as her daughter-in-law. Even assuming that there was some cruelty, Mr. Banerjee argued that cruelty as such did not amount to instigation. Moreover, the incidence prior to the committing of suicide showed that both the husband and the mother-in-law were immediately absent in the house before the suicide took place. Besides Sumana did not make any complaint at Lake Gardens about anybody in the afternoon of the day when she committed suicide.

12. Mr. Sanyal on behalf of the State urged that no human being much less an educated girl of a respectable family can put up with such inhuman treatment. The same would turn one into an animal. Mr. Sanyal drew our attention to the evidence of P.W 6 that when Sumana visited her on the morning of the 5th of March, she looked as if she had spent sleepless night. Her husband had come to that house on the previous day but she did not know it. She said that at the instigation of the mother-in-law her husband used to beat her. The mother-in-law even suspected the parentage of the child and even asked her to die. PW 7 the husband of PW 6 also corroborated her in this respect. Their evidence discloses that Sumana was urged to commit suicide. Both P.Ws 3 and 5 stated that Sumana before she became unconscious stated that “even that day which was the date of her mother's death they asked her to die”.

13. After careful consideration of the facts and circumstances of this case we are unable to agree with Mr. Banerjee that what Sumana said were the results of a tormented mind. A review of the facts revealed in the evidence, some of which have already been narrated above shows that the statements made by her in her letters relating to the unbearable conditions of her life were corroborated by other testimony. From the very inception of the marriage the appellant, Pratima Dutta, was hostile to Sumana. In fact not only did she oppose the marriage of Subrata but even asked Munni the sister of Sumana to induce Sumana not to marry Subrata. On the Ostami day in 1967 Sumana's aunt had a heated discussion with the mother-in-law when the latter shut the door. On that day Sumana was found a torn sari and looked very morose. Evidence also showed that Mr. P.C Neogi, a respectable gentleman who was an Ex General Manager of Durgapur, was asked to intervene in the unfortunate state of affairs of the family. The evidence of P.Ws 6 and 7 to which reference was made by Mr. Sanyal can be recalled in this connection. The deceased went to the house of P.Ws 6 and 7 and it was pursuant to questions put to her and revelation of the fact that her husband had earlier visited them without her knowledge that she came out with her tale of sorrow. She showed them the injury in her leg, Allegations of instigation by the mother-in-law were made. Sumana said that the mother-in-law even suspected parentage of her child and asked her to die. P.W 8, Basanti Majumder, in her evidence gave details about the miserable condition in which Sumana lived. Sumana's mother-in-law even insulted her on the Ostami Puja day of 1967 which was towards the end of the year. Sumana's mother-in-law went to the length of telling this witness that it would be better to put an end to the lives of girls like Sumana by burning. Even in December, 1967 Sumana went to her and said that at the instigation of mother-in-law Subrata had been beating her. The mother-in-law even told her to die or to hang herself. She had even been driven out of the house one night. Neighbours heard a girl's weeping in the house. Principal of a College, P.W 22, said that Sumana's mother-in-law often complained to her regarding presents and gift that were given at the time of marriage. Letters of Subrata's father suggest that the mother-in-law was a person to be careful about. The father-in-law asked Sumana to keep quiet before the lady and avoid annoying the lady. Even if earlier letters were not proximate the letters dated the 6th of February and others of March, 1968 were quite proximate. Sumana was feeling miserable and felt unable to bear her life. Even earlier, i.e, on 25.11.67 (Ext. 7/2) Sumana had complained that she was called a woman of the street. She said that she received kicks and was beaten with heavy wire of heater. In her letter of the 27th December, 1967 she had said that she was about to die. In a desparate state of mental agony she was asking him as to what was the easy way to death. In the letter dated 6.2.68 she again says that the mother-in-law wanted that she should die. In the letter dated 6-3-68 that is just the day before her death (Ext. 7/8) she said that her body was exhausted by beating. She had kicks with shoes. Even her glasses were broken. Even when Sumana was burning she said that she was asked to die that very day. There is of course no other evidence as to when she was asked to die but what she said was revealed by P.Ws 3 and 5. The abnormal attitude of the mother-in-law when Sumana caught fire and was burning is also in accord with the allegations in the charge. P.W 14 also said that in December Sumana came to his house and said that her life had become unbearable because of the tortures upon her by her husband and her mother-in-law. In February, 1968 also Sumana repeated the same complaints about ill treatment. She found it impossible to live in the house of her mother-in-law and requested him to make arrangement to send her to Bombay. Evidence of P.Ws 12 and 13 also go to show that as late as in February, 1968 Sumana told P.W 12 that her mother-in-law was not treating her well. The very fact that even Subrata's father in his letters was taking Subrata to task and advising Sumana to be careful in her behaviour with her mother-in-law is also not without significance. The learned Sessions Judge found “sustained cruelty” by the mother-in-law upon Sumana on the basis of evidence of P.Ws 6, 8, 12, 13, 14 and 18. We do not see any reason to take a different view. No cogent reason has been assigned why the testimony of these witnesses should not be accepted. The condition of her life as revealed in the letters dated 25.11.67, 6.2.68 and 6.3.68 were also correctly relied upon by the learned Sessions Judge as evidence to show that Sumana was being goaded by the mother-in-law to put an end to her life. Circumstances attending the burning of Sumana were also consistent with the prosecution case against the mother-in-law. No inmates of the house was near the burning figure. Evidence also shows that earlier Subrata sustained burns in his hand. He said that he sustained injury by trying to save Sumana. Evidence of many witnesses, such as, P.Ws 3, 5, 10, 15 and 42 show that the mother-in-law was nowhere near Sumana. Even when water was called for, nobody came forward to give it to the dying girl. In fact Sumana cried out in despair that “they would not give me water”. Nobody helped with the key of the car so that Sumana might be brought to the hospital. Such callousness on the part of the mother-in-law is only consistent with the attitude that she wanted her to die. She did not care even to visit Sumana in the hospital or attend the cremation like her son.

14. It is true that some of the letters themselves show that Sumana was not a meek type of girl but the learned Sessions Judge has taken pains to examine if her statements could be dismissed as being axaggerated or false. We see no reason to differ from the conclusion arrived at by the learned Sessions Judge.

15. So far as the appellant Subrata Dutta is concerned, Mr. Banerjee contended that there was no evidence in any event that the husband ever asked her to commit suicide. On the other hand, the evidence has shown that the sound ‘hai’ was uttered by Subrata when Sumana caught fire. It was he who tried to save Sumana and himself sustained burning injuries. This conduct apart from anything else is inconsistent with the allegation of instigation. He was, as would appear from the evidence of many witnesses, wearing underwear which indicates the sudd nness of the incident. Mr. Banerjee laid stress on the conduct of Subrata all through. Even at M.P where Subrata was transferred immediately after his marriage, he attended the hospital and even stayed there for some days when Sumana was admitted to that hospital for delivering a child. He did not disown his responsibilities altogether as a husband. According to Sumana's wishes he tried to have a transfer from Calcutta so that she might live separately from the mother-in-law. There is also evidence that Subrata purchased ornaments for her and that he took her out on holidays. Mr. Banerjee laid considerable stress on the fact that Sumana wanted to live away from her mother-in-law and with Subrata. If Subrata was such a bad person as would instigate her to commit suicide, Mr. Banerjee argued, she would not have wished to live with him separately. Occasional quarrels are not rare between husband and wife and even if Subrata had indulged in excesses on one or two occasions by even assaulting her that would not answer to the requirements of the charge. Mr. Banerjee also drew the attention of the Court to the evidence of Sri Ranjit Kumar Roy an Ex Member of the Indian Civil Service and his wife. Both said that Sumana never made any complaint against her husband.

16. Some of these facts specially his conduct at Satpura in attending the hospital at the time of the birth of the child, the fact that Sumana wanted to live apart from mother-in-law with him, the fact that even after quarrel when Subrata was coming away from the Lake Gardens house it was Sumana who called him back, the testimony of Mr. Ranjit K. Roy and Mrs. Roy, P.Ws 12 and 13 that neither heard of any complaints by Sumana against her husband, the fact that Subrata made some attempts to extinguish the fire of Sumana when she caught fire give rise to circumstances which are somewhat inconsistent with the charge. In any event, we are prepared to give him the benefit of doubt.

17. There seems to be no such mitigating circumstances so far as the mother-in-law is concerned whose conduct has been found to be one of ‘sustained cruelty’ towards the daughter-in-law by the learned Sessions Judge. The charge, however, as framed is that both the appellants “in furtherance of the common intention of both” abetted the commission of suicide by instigating the deceased from time to time to commit suicide. If Subrata is left out the crime cannot be in furtherance of the common intention of both. In the eye of law, of course, there is no bar to convict a person even if the charge under S. 34 fails provided, of course, the ingredients of the abetment by instigation are proved from the evidence adduced and no prejudice is caused to the accused. The evidence adduced on behalf of the prosecution shows that the mother-in-law was always hostile to the deceased and she was althrough very unkind.

18. A person abets the doing of a thing when he or she, inter alia, instigates any person to do that thing. The other modes of abetment besides instigation are conspiracy and intentional aid. The word instigation literally means to goad or urge forward or to provoke, incite, urge or encourage to do an act. It is something more than co-operation. The evidence disclosed in this case revealed many circumstances which would show that the mother-in-law suggested to the deceased by her conduct, by her language direct of indirect to commit suicide. True it did not amount to express solicitation but certainly her cruel conduct towards young Sumana over the months made the latter suffer mentally. The series of conduct referred to above amount to actively suggesting and stimulating Sumana to commit suicide and that clearly amounts to instigation. There is no doubt that Sumana Committed suicide as she was very miserable and as she lost all interests in life on account of callousness, apathy and continued hostility — even cruelty — towards her in her mother-in-law's house where from time to time her sensitive mind was made to think directly and indirectly by the mother-in-law that the only way out for her was to embrace death by committing suicide. Sumana was subtly and overtly urged and encouraged to choose that course. Law does not require that instigation should be in a particular form. The cumulative effect of her conduct, in our view, amounted to instigating Sumana to commit suicide. The conduct of the mother-in-law specially at the time of Sumana's death and immediately thereafter are consistent with such conduct. The callousness and apathy in that extreme form amount to more than indifference.

19. It is true that many of the reported cases of abetment only relate to instances where women committed “suttee”. But times have changed. In spite of progress and a trend towards a modern industrialized and urbanised society and in spite of the Women's Liberation movements cases of suicide by girls in the prime of their life after marriage even in cities are not unfortunately infrequent. Abements to such unfortunate ending of life exhibit new forms and features which were not present in crimes in olden days. But such crimes, nonetheless, are heinous and call for punishment.

20. In the circumstances we convict the appellant, Pratima Dutta under S. 306 I.P.C As the proceedings, however, have been a protracted one and the lady is advanced in age, we think that a sentence of one year's simple imprisonment would meet the ends of justice and we sentence her accordingly. The appellant Pratima Dutta will surrender to her bail bond and serve out the sentence. She will, however, have the benefit of S. 428 of the Code of Criminal Procedure. The appeal of Subrata Dutta is allowed. He is acquitted of the charge and is set at liberty. He is discharged from his bail bond.

Chanda, J.:— I agree.

Appeal of Subrata allowed and sentence reduced in case of Pratima.