GURJIT SINGH versus STATE OF PUNJAB

[2019] 14 S.C.R. 232

[2019] 14 S.C.R.

GURJIT SINGH

STATE OF PUNJAB

(Criminal Appeal Nos. 1492-1493 of 2010)

NOVEMBER 26, 2019

[NAVIN SINHA AND B. R. GAVAI, JJ.]

Penal Code, 1860: s.498-A – Cruelty and harassment onaccount of dowry demand – Prosecution proved that the deceasedwas harassed with view to force her and her parents to meetCunlawful demand for money and such harassment was on accountof failure by her and her parents to meet such demand –Thus,charge under Explanation (b) of s.498-A was proved.

Penal Code, 1860: ss.306, 498-A – Whether when theprosecution established cruelty under Explanation (b) of s.498-ADand also established that the deceased committed suicide withinseven years of the marriage, the accused could also be held guiltyfor the offence punishable under s.306 with the aid of s.113-A ofthe Evidence Act – Held: Merely because an accused is foundguilty of an offence punishable under s.498-A and the deathEoccurred within period of seven years of the marriage, the accusedcannot be automatically held guilty for the offence punishable unders.306 by employing the presumption under s.113-A of the EvidenceAct – Unless the prosecution establishes that some act or illegalomission by the accused drove the deceased to commit the suicide,the conviction under s.306 would not be tenable – Though theFprosecution is successful in proving the case under s.498-A, theprosecution failed to establish beyond reasonable doubt that anyact or omission of the accused instigated the deceased to commitsuicide – There was no evidence on record to show that immediatelyprior to the deceased committing suicide there was cruelty metedGout to the deceased by the accused due to which the deceased hadno other option than to commit the suicide – The evidence on recordfurther showed that the time gap between the last visit of the deceasedto her parents with regard to the illegal demand and the date ofcommission of suicide was about two months – As such, there was

nothing to show proximate nexus between the commission ofsuicide and the illegal demand made by the appellant – Further, thecases wherein the conviction under s.306 had been held tenable bythis court, even though the charge was only under s.304B, it wasfound that the charge in those cases specifically stated that thedeceased was driven to commit suicide on account of cruelty metedout to the deceased – However, in the instant case, the charge didnot state that the deceased was driven to commit suicide on accountof the harassment meted out to the deceased – It did not mentionthat the accused had abetted in commission of suicide by thedeceased – Therefore, conviction under s.498-A is maintained andconviction under s.306 is set aside – Evidence Act, 1872 – s.113-A.

Partly allowing the appeal, the Court

HELD : 1. The evidence of PW-10, father of the deceasedcorroborated to an extent by PW-13 showed that the prosecutionwas able to prove that the deceased was harassed with view tocoercing her or any person related to her to meet any unlawfuldemand for any property. On the basis of said evidence, theprosecution proved the charge under Explanation (b) of Section498-A of the IPC. [Para 11] [240-E-F]

2. Merely because an accused is found guilty of an offencepunishable under Section 498-A of the IPC and the death hasoccurred within period of seven years of the marriage, theaccused cannot be automatically held guilty for the offencepunishable under Section 306 of the IPC by employing thepresumption under Section 113-A of the Evidence Act. Unlessthe prosecution establishes that some act or illegal omission bythe accused has driven the deceased to commit the suicide, theconviction under Section 306 would not be tenable. [Para 27][249-E-F]3. The prosecution failed to prove that the cruelty was ofsuch nature which left no choice to the deceased than to commitsuicide. There was no material on record to show thatimmdediately prior to the deceased committing suicide, therewas cruelty meted out to the deceased by the accused due towhich the deceased had no other option than to commit suicide.The evidence on record further showed that the time gap between

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Athe last visit of the deceased to her parents with regard to theillegal demand and the date of commission of suicide was abouttwo months. As such, there was nothing on record to show thatthere was proximate nexus between the commission of suicideand the illegal demand made by the appellant. [Paras 33-34][251-B-D]

4. Another aspect is that the cases wherein this Court hasheld that the conviction under Section 306 of the IPC was tenablethough charge was only under Section 304-B of the IPC, it wasfound the charge specifically stated that the deceased was drivento commit suicide on account of cruelty meted out to theCdeceased. However, in the present case, the charge does notstate that the deceased was driven to commit suicide on accountof the harassment meted out to the deceased. It also does notmention that the accused had abetted in commission of suicideby the deceased. Conviction under Section 498-A of the IPC isDmaintained and the conviction under Section 306 of the IPC isset aside. The appellant is acquitted of the charge under Section306 of the IPC. [Paras 35-37] [251-F; 252-B-C]

State of West Bengal v. Orilal Jaiswal (1994) 1 SCC73 ; Hans Raj v. State of Haryana (2004) 12 SCC257 : [2004] 2 SCR 678 ; Mangat Ram v. State ofHaryana (2014) 12 SCC 595 : [2014] 4 SCR 988- relied on.

K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao andOrs. (2003) 1 SCC 217 : [2002] 3 Suppl. SCR 339 ;FModinsab Kasimsab Kanchagar v. State of Karnataka& Anr. (2013) 4 SCC 551 : [2013] 2 SCR 357 ; ThanuRam v. State of Madhya Pradesh (2010) 10 SCC 353 :[2010] 12 SCR 710 ; Satish Shetty v. State ofKarnataka (2016) 12 SCC 759 : [2016] 3 SCR 145- distinguished.

Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC618 : [2001] 4 Suppl. SCR 247 ; Pinakin MahipatrayRawal v. State of Gujarat (2013) 10 SCC 48 : [2013]10 SCR 306 ; Narwinder Singh v. State of Punjab(2011) 2 SCC 47 : [2011] 1 SCR 110 ; Sanju Alias

Sanjay Singh Sengar v. State of M.P. (2002) 5 SCC371 : [2002] 3 SCR 668 - referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 1492-1493 of 2010.

From the Judgment and Order dated 20.02.2009 of the High Courtof Punjab and Haryana at Chandigarh in Crl. A. No. 5440DBA of 2001and Crl. A. No. 959-SB of 2000.

Rajeshwar Singh Thakur, Nirmal Singh, Dinesh Verma, SubhasishBhowmick, Yash Pal Dhingra, Advs. for the Appellant.

Ms. Jaspreet Gogia, Ms. Mandakini Singh, Advs. for theRespondent.

The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. These appeals by special leave challenge the judgment andorder dated 20.2.2009 passed by the Division Bench of the Punjab andHaryana High Court in Criminal Appeal No. 544-DBA of 2001 andCriminal Appeal No. 959-SB of 2000. All the four accused, including theappellant herein (accused No.3), who is husband of the deceased, were

Acharged and tried by the learned trial Court for the offence punishableunder Section 304-B and Section 498-A of the Indian Penal Code, 1860(hereinafter referred to as “IPC”). The other accused were the father(accused No.1), the mother (accused No.2) and the sister-in-law (wifeof brother) (accused No.4) of the appellant. The Additional SessionsJudge, Hoshiarpur, held that the prosecution had succeeded in provingBthe case against accused Nos. 1 to 3 for the offence punishable underSection 498-A of the IPC but has failed to prove the case against thesaid accused (Nos. 1, 2 and 3) for the offence punishable under Section304-B of the IPC. Insofar as accused No. 4 is concerned, it was heldthat the prosecution has failed to prove the case against her for both theCoffences and she was accordingly acquitted of the offence charged.The trial Judge, therefore, convicted the appellant and his father andmother for the offence punishable under Section 498-A of the IPC andsentenced them to undergo rigorous imprisonment for period of threeyears and to pay fine of Rs. 4000/- each and, in default of payment of

fine, to further undergo rigorous imprisonment for period of threeDmonths.

2. Being aggrieved by the conviction and sentence under Section498-A of the IPC, the appellant along with his parents preferred anappeal (being Criminal Appeal No.959-SB of 2000) before the HighCourt. So also, the State preferred an appeal (being Criminal AppealENo.544-DBA of 2001), being aggrieved by that part of the order bywhich the trial Court acquitted accused No. 4 and also acquitted accusedNos. 1, 2 and 3 for the offence punishable under Section 304-B of theIPC. The High Court upheld the conviction of accused Nos. 1, 2 and 3for the offence punishable under Section 498-A of the IPC. It also upheldFthe acquittal of accused No. 4 and further held that, though the prosecutioncould not bring the case under Section 304-B of the IPC, the appellantherein was liable to be punished for the offence punishable under Section306 of the IPC. The High court maintained the order of the sentenceand fine as recorded by the trial Judge for the offence punishable under

Section 498-A of the IPC. For the offence under Section 306 of theGIPC, the High Court sentenced the appellant herein to undergo rigorousimprisonment for period of five years and to pay fine of Rs. 5000/-and in default of payment of fine, to further undergo rigorous imprisonmentfor period of five months. Being aggrieved thereby, the present appealsare preferred by the appellant.H

[B. R. GAVAI, J.]

3. Shri Rajeshwar Singh Thakur, learned counsel for the appellant,submitted that the conviction as recorded by the learned trial court andconfirmed by the High Court under Section 498-A of the IPC is nottenable. It is submitted, that the conviction is only on the basis of theevidence of PW-10 - Bishan Singh, the father of the deceased. It issubmitted, that there is no corroboration to the said evidence. It issubmitted, that in any case, the conviction under Section 306 of the IPCis not tenable. It is contended that the charge was for the offencepunishable under Section 304-B of the IPC, the ingredients of which aretotally different than the ingredients of Section 306 of the IPC. It issubmitted that as such grave prejudice was caused to the appellant. It isfurther submitted that the evidence shows that the father of the deceased,PW-10, has stated, that even during the course of the trial, the appellantwas on congenial meeting terms with the father of the deceased and assuch the unnatural human conduct would discredit his testimony.

4. Per contra, Smt. Jaspreet Gogia, learned counsel appearing onbehalf of the State, submitted that insofar as conviction under Section498-A of the IPC is concerned, since there is concurrent finding, nointerference is warranted. She further submitted, that since the ingredientsof Section 304-B and Section 306 of the IPC are almost similar, noprejudice was caused to the appellant by convicting him under Section306 of the IPC though no charge was framed for the same. It is submittedthat all the ingredients necessary for conviction under Section 306 withthe aid of Section 113-A of the Indian Evidence Act, 1872 were dulyproved by the prosecution and as such no interference is warranted inthe present appeals.

5. The perusal of the record would reveal that though the appellanthas disputed the date of marriage to be 04.02.1989, both the courts havedisbelieved him and rightly so. The deceased died an unnatural death on28.09.1994 by consuming poison. As such, the unnatural death occurredwithin period of seven years of the marriage. The learned trial Judgehas acquitted the appellant for the offence punishable under Section304-B of the IPC since the prosecution has failed to prove the demandfor dowry, while convicting him along with the parents for the offencepunishable under Section 498-A of the IPC. The High Court maintainedthe conviction under Section 498-A of the IPC, however, it also convictedthe appellant for the offence punishable under Section 306 of the IPCwith the aid of Section 113-A of the Indian Evidence Act, 1872.

6. The question that we are called upon to answer is as to whetherthe conviction as confirmed by the High Court under Section 498-A ofthe IPC and as recorded by it for the first time under Section 306 of theIPC would be sustainable or not.

7. The relevant provisions of the IPC that fall for considerationBare as under:

“107. Abetment of thing - person abets the doing of thing,who—

First.—Instigates any person to do that thing; or

Secondly.—Engages with one or more other person or personsin any conspiracy for the doing of that thing, if an act or illegalomission takes place in pursuance of that conspiracy, and in orderto the doing of that thing; or

Thirdly.—Intentionally aids, by any act or illegal omission, thedoing of that thing.

Explanation 1.—A person who, by wilful misrepresentation, orby wilful concealment of material fact which he is bound todisclose, voluntarily causes or procures, or attempts to cause orprocure, thing to be done, is said to instigate the doing of thatthing.

Explanation 2.—Whoever, either prior to or at the time of thecommission of an act, does anything in order to facilitate thecommission of that act, and thereby facilitates the commissionthereof, is said to aid the doing of that act.

xxx

306. Abetment of suicide.—If any person commits suicide,whoever abets the commission of such suicide, shall be punishedwith imprisonment of either description for term which mayextend to ten years, and shall also be liable to fine.

xxx

498-A. Husband or relative of husband of womansubjecting her to cruelty.— Whoever, being the husband orthe relative of the husband of woman, subjects such woman tocruelty shall be punished with imprisonment for term which may

extend to three years and shall also be liable to fine. Explanation.—For the purposes of this section, “cruelty” means— (a) any wilfulconduct which is of such nature as is likely to drive the womanto commit suicide or to cause grave injury or danger to life, limbor health (whether mental or physical) of the woman; or (b)harassment of the woman where such harassment is with viewto coercing her or any person related to her to meet any unlawfuldemand for any property or valuable security or is on account offailure by her or any person related to her to meet such demand.”

8. The relevant provision of the Indian Evidence Act, 1872 thatalso requires consideration is as follows:

“113-A. Presumption as to abetment of suicide by marriedwoman. —When the question is whether the commission ofsuicide by woman had been abetted by her husband or anyrelative of her husband and it is shown that she had committedsuicide within period of seven years from the date of her marriageand that her husband or such relative of her husband had subjectedher to cruelty, the court may presume, having regard to all theother circumstances of the case, that such suicide had beenabetted by her husband or by such relative of her husband.

Explanation. — For the purposes of this section, “cruelty” shallhave the same meaning as in section 498A of the IPC (45 of1860).]”

9. The perusal of the evidence of PW-10 - Bishan Singh, the fatherof the deceased, would establish that the deceased, Jaswinder Kaurwas married to appellant on 04.02.1989. His daughter had two issues.The elder one was four years old and the son was about 1 ½ years oldat the time of the occurrence. He stated, that after the marriage, accusedwere harassing his daughter for giving less dowry. In the year 1992, hehad given one steel almirah to his daughter but the accused were notsatisfied with the dowry article. In March 1993, he had purchased onefridge through his son-in-law, Jagtar Singh, from the Military Canteenfor Rs. 6,600/-, which was given to the accused persons. Even then theaccused were not satisfied. The accused were pressing his daughter,Jaswinder Kaur, to bring Rs. 50,000/- from her parents. He further stated,that the accused were compelling his daughter out of anger to bringRs. 50,000/-, in cash, as they were to purchase plot at Hoshiarpur. He

Afurther stated that on two-three occasions, his daughter came to hisVillage Kharal Kalan and he requested her that Rs. 50,000/- were notwith him at that stage and after selling the paddy crop he can pay thatamount. He stated that, thereafter, after consoling his daughter, he senther to her in-laws house. He further stated, that on 28.09.1994 when hewas in his house, he came to know that his daughter had died. SuspectingBthat his daughter was given poison or she consumed poison, he lodged areport with the police.10. To some extent, the evidence of PW-10 is corroborated bythe evidence of PW-13 - Iqbal Singh. He has stated, that prior to theoccurrence, i.e., the death of the deceased there was disputeCbetween the accused persons and the deceased, Jaswinder Kaur, asRs. 50,000/- was being demanded by the accused persons from theparents of the deceased for purchasing plot. He further stated, that theparents of the deceased could not pay Rs. 50,000/- and promised to paythe same after selling paddy crop. He further stated, that before demandDof Rs. 50,000/-, one refrigerator and one almirah was given to the accusedpersons by the parents of the deceased on their demand and this wasover and above dowry given at the time of the marriage.

11. Thus from the evidence of PW-10 which is corroborated toan extent by PW-13, we have no hesitation to hold that the prosecutionEhas proved that the deceased was harassed with view to coercing heror any person related to her to meet any unlawful demand for any propertyor valuable security or such harassment was on account of failure byher or any person related to her to meet such demand. We find, thaton the basis of aforesaid evidence, the prosecution has proved the chargeunder Explanation (b) of Section 498-A of the IPC.F

12. Now the question that would fall for consideration is as towhether when the prosecution establishes cruelty under Explanation (b)of Section 498-A of the IPC and also establishes that the deceasedcommitted suicide within seven years of the marriage, could the accusedbe also held guilty for the offence punishable under Section 306 of theGIPC with the aid of Section 113-A of the Indian Evidence Act.

13. The said question fell for consideration before the bench ofthree learned Judges of this Court in the case of Ramesh Kumar vs.State of Chhattisgarh[1]. This Court, after reproducing the provisions of

H1 (2001) 9 SCC 618

Section 306 of the IPC and Section 113-A of the Indian Evidence Act,1872 observed thus:

“12. This provision was introduced by the Criminal Law (Second)Amendment Act, 1983 with effect from 26-12-1983 to meet asocial demand to resolve difficulty of proof where helpless marriedwomen were eliminated by being forced to commit suicide by thehusband or in-laws and incriminating evidence was usuallyavailable within the four corners of the matrimonial home andhence was not available to anyone outside the occupants of thehouse. However, still it cannot be lost sight of that the presumptionis intended to operate against the accused in the field of criminallaw. Before the presumption may be raised, the foundation thereofmust exist. bare reading of Section 113-A shows that to attract-applicability of Section 113A, it must be shown that (i) the womanhas committed suicide, (ii) such suicide has been committed withina period of seven years from the date of her marriage, (iii) thehusband or his relatives, who are charged had subjected her tocruelty.On existence and availability of the abovesaidcircumstances, the court may presume that such suicide had beenabetted by her husband or by such relatives of her husband.Parliament has chosen to sound note of caution. Firstly, thepresumption is not mandatory; it is only permissive as theemployment of expression “may presume” suggests. Secondly,the existence and availability of the abovesaid three circumstancesshall not, like formula, enable the presumption being drawn;before the presumption may be drawn the court shall have tohave regard to “all the other circumstances of the case”. Aconsideration of all the other circumstances of the case maystrengthen the presumption or may dictate the conscience of thecourt to abstain from drawing the presumption. The expression—“the other circumstances of the case” used in Section 113-Asuggests the need to reach cause-and-effect relationship betweenthe cruelty and the suicide for the purpose of raising presumption.Last but not the least, the presumption is not an irrebuttable one.In spite of presumption having been raised the evidence adducedin defence or the facts and circumstances otherwise available onrecord may destroy the presumption. The phrase “may presume”used in Section 113-A is defined in Section 4 of the Evidence Act,

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Awhich says — “Whenever it is provided by this Act that the courtmay presume fact, it may either regard such fact as proved,unless and until it is disproved, or may call for proof of it.

13. The present case is not one which may fall underclauses secondly and thirdly of Section 107 of the Penal Code,B1860. The case has to be decided by reference to the first clausei.e. whether the accused-appellant abetted the suicide byinstigating her to do so.”

(emphasis supplied)

14. It could thus be seen, that this Court has observed that toCattract the applicability of Section 113-A of the Indian Evidence Act, thefollowing conditions are required to be satisfied:

(i) The woman has committed suicide,

(ii) Such suicide has been committed within period of sevenDyears from the date of her marriage,(iii) The husband or his relatives, who are charged had subjectedher to cruelty.

15. This Court further observed that on the existence and availabilityof the aforesaid circumstances, the court may presume that such suicideEhad been abetted by her husband or by such relatives of her husband. Ithas been held that the presumption is not mandatory; but only permissiveas the words “may presume” suggests. It has further been held that theexistence and availability of the aforesaid three circumstances shall not,like formula, enable the presumption being drawn. It has been heldthat before presumption being drawn, the court shall have regard to allFother circumstances of the case. It has been held, that the considerationof all the other circumstances of the case may strengthen the presumptionor may dictate the conscience of the court to abstain from drawing thepresumption. It thus observed that the expression “the othercircumstances of the case” used in Section 113-A of the Indian EvidenceGAct suggests the need to reach cause-and-effect relationship betweenthe cruelty and the suicide for the purpose of raising presumption.

16. It has been further held that when the case does not fall underclauses secondly and thirdly of Section 107 of the IPC, the case is to bedecided with reference to the first clause, i.e., whether the accused-

appellant abetted the suicide by instigating her to do so. It will be furtherrelevant to refer to following observations in Ramesh Kumar (supra):

“20. Instigation is to goad, urge forward, provoke, incite orencourage to do “an act”. To satisfy the requirement of instigationthough it is not necessary that actual words must be used to thateffect or what constitutes instigation must necessarily andspecifically be suggestive of the consequence. Yet reasonablecertainty to incite the consequence must be capable of being speltout. The present one is not case where the accused had by hisacts or omission or by continued course of conduct createdsuch circumstances that the deceased was left with no other optionexcept to commit suicide in which case an instigation may havebeen inferred. word uttered in the fit of anger or emotion withoutintending the consequences to actually follow cannot be said tobe instigation.

21. In State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, thisCourt has cautioned that the court should be extremely careful inassessing the facts and circumstances of each case and theevidence adduced in the trial for the purpose of finding whetherthe cruelty meted out to the victim had in fact induced her to endher life by committing suicide. If it transpires to the court that avictim committing suicide was hypersensitive to ordinary petulance,discord and differences in domestic life quite common to the societyto which the victim belonged and such petulance, discord anddifferences were not expected to induce similarly circumstancedindividual in given society to commit suicide, the conscience ofthe court should not be satisfied for basing finding that the accusedcharged of abetting the offence of suicide should be found guilty.

22. Sections 498-A and 306 IPC are independent and constitutedifferent offences. Though, depending on the facts andcircumstances of an individual case, subjecting woman to cruelty-may amount to an offence under Section 498A and may also, if acourse of conduct amounting to cruelty is established leaving noother option for the woman except to commit suicide, amount toabetment to commit suicide. However, merely because an accusedhas been held liable to be punished under Section 498-A IPC itdoes not follow that on the same evidence he must also and

[2019] 14 S.C.R.

Anecessarily be held guilty of having abetted the commission ofsuicide by the woman concerned…..”

(emphasis supplied)

17. The Court observed that instigation is to goad, urge forward,provoke, incite or encourage to do “an act”. Though the court observedBthat to satisfy the requirement of instigation, it is not necessary thatactual words must be used to that effect or what constitutes instigationmust necessarily and specifically be suggestive of the consequence.However, it has been observed that reasonable certainty to incite theconsequence must be capable of being spelt out. Relying on the judgmentCof this court in the case of State of West Bengal vs. Orilal Jaiswal[2], itis observed that the court should be extremely careful in assessing thefacts and circumstances of each case and the evidence adduced in thetrial for the purpose of finding whether the cruelty meted out to thevictim had in fact induced her to end her life by committing suicide. Ithas further been held that Section 498-A and Section 306 of the IPC areDindependent and constitute different offences. It has been observed,that depending on the facts and circumstances of an individual case,subjecting woman to cruelty may amount to an offence under Section498-A of the IPC. It has further been observed, that if course ofconduct amounting to cruelty is established leaving no other option forEthe woman except to commit suicide, it may also amount to abetment tocommit suicide. It is further observed, that, however, merely becauseaccused had been held liable to be punished under Section 498-A of theIPC, it does not follow that on the same evidence he must also andnecessarily be held guilty of having abetted the commission of suicide bythe woman concerned.F

18. Another three-Judge bench of this Court in the case of K.Prema S. Rao and Anr. vs. Yadla Srinivasa Rao and Ors.[3] had anoccasion to consider the question as to whether in the circumstances offraming charge only under Section 304-B of the IPC and not framingthe one under Section 306 of the IPC, could the conviction under SectionG306 of the IPC read with Section 113-A of the Indian Evidence Act betenable? In the said case, the Court found that the charge specificallymentioned as under.

2 (1994) 1 SCC 73H3 (2003) 1 SCC 217

[B. R. GAVAI, J.]

“That on or about the 22nd day of October, 1989, at your house atTunikipadu of Gampalagudem Mandal, Yedla Krishna Kumari, wifeof A-1 among you and daughter-in-law of A-2 and A-3 amongyou, committed suicide by consuming poison, and that you allsubjected her to such cruelty and harassment as did drive her tocommit suicide, with the object of extracting ac. 5.00 of land asdowry to A-1 and thereby committed an offence punishable underSection 304-B of the Indian Penal Code, 1860 and within thecognizance of this court.

or alternatively

That, prior to the 22nd day of October, 1989, at your house atTunikipadu, you subjected Yedla Krishna Kumari, wife of A-1among you and daughter-in-law of A-2 and A-3 among you, tosuch cruelty and harassment as did drive the said KrishnaKumari to commit suicide, and thereby committed an offencepunishable under Section 498-A of the Indian Penal Code, 1860and within the cognizance of this court.”

19. The court, therefore, held that the ingredients to constitute anoffence under Section 306 of the IPC were already found in the chargeand as such no prejudice was caused to the accused therein, though noseparate charge was framed under Section 306 of the IPC. Apart fromthat, the evidence on record established that when the letters concealedby the husband were discovered by the wife and handed over to thefather and she was driven out of the house, this cruel conduct of thehusband led the wife to commit suicide. It could thus be seen, that in thefacts of the said case, the Court found that the conviction under Section306 of the IPC could be recorded. It was found that, apart from theearlier acts of harassment for parting with the land which she hadreceived in marriage as stridhana, there was an act of driving the deceasedout of the house which had direct nexus with the deceased committingsuicide.

20. The bench of two Judges of this Court had an occasion toconsider similar issue in the case of Hans Raj vs. State of Haryana[4].It will be relevant to refer to following paragraphs:

“12. The question then arises as to whether in the facts andcircumstances of the case the appellant can be convicted of the

offence under Section 306 IPC with the aid of the presumptionunder Section 113-A of the Indian Evidence Act. Any person whoabets the commission of suicide is liable to be punished underSection 306 IPC. Section 107 IPC lays down the ingredients ofabetment which includes instigating any person to do thing orengaging with one or more persons in any conspiracy for the doingof thing, if an act or illegal omission takes place in pursuance ofthat conspiracy and in order to the doing of that thing, or intentionalaid by any act or illegal omission to the doing of that thing. In theinstant case there is no direct evidence to establish that the appellanteither aided or instigated the deceased to commit suicide or enteredinto any conspiracy to aid her in committing suicide. In the absenceof direct evidence the prosecution has relied upon Section 113-Aof the Indian Evidence Act under which the court may presumeon proof of circumstances enumerated therein, and having regardto all the other circumstances of the case, that the suicide hadbeen abetted by the accused. The explanation to Section 113-Afurther clarifies that cruelty shall have the same meaning as inSection 498-A of the Indian Penal Code…...13. Unlike Section 113-B of the Indian Evidence Act, statutorypresumption does not arise by operation of law merely on proofof the circumstances enumerated in Section 113-A of the IndianEvidence Act. Under Section 113-A of the Indian Evidence Act,the prosecution has first to establish that the woman concernedcommitted suicide within period of seven years from the date ofher marriage and that her husband (in this case) had subjectedher to cruelty. Even if these facts are established the court is notbound to presume that the suicide had been abetted by her husband.Section 113-A gives discretion to the court to raise such apresumption, having regard to all the other circumstances of thecase, which means that where the allegation is of cruelty it mustconsider the nature of cruelty to which the woman was subjected,having regard to the meaning of the word “cruelty” in Section498-A IPC. The mere fact that woman committed suicide withinseven years of her marriage and that she had been subjected tocruelty by her husband, does not automatically give rise to thepresumption that the suicide had been abetted by her husband.The court is required to look into all the other circumstances ofthe case. One of the circumstances which has to be considered

by the court is whether the alleged cruelty was of such nature aswas likely to drive the woman to commit suicide or to cause graveinjury or danger to life, limb or health of the woman……”

21. The court found that in the case there was no direct evidenceto establish that the appellant either aided or instigated the deceased tocommit suicide or entered into any conspiracy to aid her in committingsuicide. It has been held that when the allegation is of cruelty, it mustconsider the nature of cruelty to which the woman was subjected havingregard to the meaning of the word “cruelty” in Section 498-A of IPC. Ithas been held that one of the circumstances which has to be taken intoconsideration by the court is whether the alleged cruelty was of such anature as was likely to drive the woman to commit suicide or to causegrave injury or danger to life, limb or health of the woman.

22. This court in the case of Hans Raj (supra) has also referredto the judgment of this court in the case of State of West Bengal vs.Orilal Jaiswal (supra), wherein it is observed that the requirement ofproof beyond reasonable doubt does not stand altered even after theintroduction of Section 498-A of the IPC and Section 113-A of the IndianEvidence Act.

23. It will be relevant to refer to the following observations ofthis Court in the case of Pinakin Mahipatray Rawal vs. State ofGujarat[5] :

“26. Section 113-A only deals with presumption which the courtmay draw in particular fact situation which may arise whennecessary ingredients in order to attract that provision areestablished. Criminal law amendment and the rule of procedurewas necessitated so as to meet the social challenge of saving themarried woman from being ill-treated or forcing to commit suicideby the husband or his relatives, demanding dowry. Legislativemandate of the section is that when woman commits suicidewithin seven years of her marriage and it is shown that her husbandor any relative of her husband had subjected her to cruelty as perthe terms defined in Section 498-A IPC, the court may presumehaving regard to all other circumstances of the case that suchsuicide has been abetted by the husband or such person. Thougha presumption could be drawn, the burden of proof of showing

Athat such an offence has been committed by the accused underSection 498-A IPC is on the prosecution. On facts, we have alreadyfound that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive thewife to commit suicide or that the alleged extramarital affair wasof such degree which was likely to drive the wife to commitBsuicide.

27. Section 306 refers to abetment of suicide. It says that if anyperson commits suicide, whoever abets the commission of suchsuicide, shall be punished with imprisonment for term whichmay extend to 10 years and shall also be liable to fine. The actionfor committing suicide is also on account of mental disturbancecaused by mental and physical cruelty. To constitute an offenceunder Section 306, the prosecution has to establish that personhas committed suicide and the suicide was abetted by the accused.The prosecution has to establish beyond reasonable doubt thatthe deceased committed suicide and the accused abetted thecommission of suicide. But for the alleged extramarital relationship,which if proved, could be illegal and immoral, nothing has beenbrought out by the prosecution to show that the accused hadprovoked, incited or induced the wife to commit suicide.”

E24. It has thus been observed that though presumption could bedrawn, the burden of proof of showing that such an offence has beencommitted by the accused is on the prosecution. The prosecution has toestablish beyond reasonable doubt that the accused had instigated,conspired or intentionally aided so as to drive the wife to commit suicide.

F25. In Mangat Ram vs. State of Haryana[6] this Court observedthus:

“28. We have already indicated that the trial court has found thatno offence under Section 304-B IPC has been made out againstthe accused, but it convicted the accused under Section 306 IPC,Geven though no charge had been framed on that section againstthe accused. The scope and ambit of Section 306 IPC has notbeen properly appreciated by the courts below. ………..

Abetment of suicide is confined to the case of persons who aid orabet the commission of the suicide. In the matter of an offenceH6 (2014) 12 SCC 595

under Section 306 IPC, abetment must attract the definition thereofin Section 107 IPC. Abetment is constituted by instigating personto commit an offence or engaging in conspiracy to commit, aidor intentional aiding person to commit it. It would be evidentfrom plain reading of Section 306 read with Section 107 IPCthat, in order to make out the offence of abetment or suicide,necessary proof required is that the culprit is either instigating thevictim to commit suicide or has engaged himself in conspiracywith others for the commission of suicide, or has intentionally aidedby an act or illegal omission in the commission of suicide.”

26. After observing the aforesaid, this Court, relying on thejudgment of this Court in the case of Hans Raj (supra), observed thateven if it is established that the woman concerned had committed suicidewithin period of seven years from the date of marriage and that herhusband has subjected her to cruelty, the court is not bound to presumethat suicide has been abetted by her husband. It is required to take intoconsideration all other circumstances of the case.

27. It could thus be seen, that the view taken by the three-JudgeBench of this Court in the case of Ramesh Kumar (supra) that whena case does not fall under clause secondly or thirdly, it has to be decidedwith reference to the first clause, i.e., whether the accused has abettedthe commission of suicide by intentionally instigating her to do so; hasbeen consistently followed. As such, we are of the view that merelybecause an accused is found guilty of an offence punishable under Section498-A of the IPC and the death has occurred within period of sevenyears of the marriage, the accused cannot be automatically held guiltyfor the offence punishable under Section 306 of the IPC by employingthe presumption under Section 113-A of the Evidence Act. Unless theprosecution establishes that some act or illegal omission by the accusedhas driven the deceased to commit the suicide, the conviction underSection 306 would not be tenable.

28. Insofar as the judgment of this Court in K. Prema S. Rao(supra), on which the High Court had relied, is concerned, we havealready discussed hereinabove that in the said case there was evidenceon record proving that immediately prior to committing the suicide thedeceased was driven out of the house. As such, it was held that the saidcruelty would amount to abetment to commit suicide.

A29. Insofar as the judgment of this Court in Modinsab KasimsabKanchagar vs. State of Karnataka & Anr.[7] is concerned, no doubtthat the learned counsel for the State is justified in relying on the saidjudgment as the conviction in the said case is for the offence punishableunder Section 498-A of the IPC and Sections 3, 4 & 6 of the DowryProhibition Act, 1961. However, in the said case, the conviction underBSection 304-B of the IPC was set aside by this Court. However, thequestion, as to whether when the charge is framed only under Section304-B of the IPC could the conviction be recorded under Section 306 ofthe IPC did not fall for consideration in the said case.

30. In the case of Thanu Ram vs. State of Madhya Pradesh[8]Cthis Court by observing that on account of interplay between Section113-A of the Indian Evidence Act, 1872 and Sections 498-A, 107 and306 of the IPC, held that the appellant was liable for conviction for theoffence punishable under Section 498-A and Section 306 of the IPC.However, it is to be noted that in the said case the Court relied on theDdying declaration of the deceased wherein she stated that she had beentreated with both mental and physical cruelty. In the said case, therewas dying declaration of the deceased which was believed by thecourt. The said dying declaration was corroborated by the evidence ofPW-13, on the basis of which the Court held that the ill treatment wassuch which triggered her immediate intention to commit suicide.

31. In the case of Satish Shetty vs. State of Karnataka[9] thevictim was found to have injuries on her person. Though, the deceasedand the husband had slept together in the same room before she consumedpoison, the appellant-husband had not at all explained the injuries sustainedby the victim. In these circumstances, the conviction under Section 306Fof the IPC, as recorded by the High Court for the first time, wasmaintained by this Court.

32. Insofar as the judgment of this Court in the case of NarwinderSingh vs. State of Punjab[10], it is by the two learned Judges of thisCourt and it does not take into consideration the judgment by three learnedGJudges of this Court in Ramesh Kumar (supra)[.].

7 (2013) 4 SCC 5518 (2010) 10 SCC 3539 (2016) 12 SCC 759H10 (2011) 2 SCC 47

33. Applying the aforesaid principles to the present case, we findthat though the prosecution is successful in proving the case under Section498-A of the IPC, we are of the view that the prosecution has failed toprove that the cruelty was of such nature which left no choice to thedeceased than to commit suicide. The prosecution has not been in aposition to place on record any evidence to establish beyond reasonabledoubt that any act or omission of the accused instigated the deceased tocommit suicide. There is no material on record to show that immediatelyprior to the deceased committing suicide there was cruelty meted outto the deceased by the accused due to which the deceased had no otheroption than to commit the suicide. We are of the view, that there is nomaterial placed on record to reach cause and effect relationship betweenthe cruelty and the suicide for the purpose of raising presumption.

34. It could further be seen from the evidence on record that thetime gap between the last visit of the deceased to her parents with regardto the illegal demand and the date of commission of suicide is about twomonths. As such, there is nothing on record to show that there was aproximate nexus between the commission of suicide and the illegaldemand made by the appellant. In the case of Sanju Alias SanjaySingh Sengar vs. State of M.P.[11]this Court found that there was timegap of 48 hours between the accused telling the deceased ‘to go anddie’ and the deceased ‘committing suicide’. As such, this Court heldthat there was no material to establish that the accused had abetted thesuicide committed by the deceased.

35. Another aspect that needs consideration is that the caseswherein this Court has held that the conviction under Section 306 of theIPC was tenable though charge was only under Section 304-B of theIPC, it was found the charge specifically stated that the deceased wasdriven to commit suicide on account of cruelty meted out to the deceased.However, in the present case, the charge reads thus:

“That you all on 28.9.94 in the area of Village Bohan, the death ofJaswinder Kaur wife of you, Gurjit Singh and daughter-in-law ofyou, Gurdial Singh and Mohinder Kaur and sister-in-law of RanjitKaur, was caused otherwise than under normal circumstances,you all being her relatives, within period of seven years of hermarriage subjected to her to cruelty and harassment for all in

11 [(2002) 5 SCC 371]

Aconnection with demand for dowry and thereby committed anoffence of dowry death punishable under section 304-B of theIndian Penal Code, and within my cognizance.”

36. It would thus be seen, that the charge does not state that thedeceased was driven to commit suicide on account of the harassmentBmeted out to the deceased. It also does not mention that the accusedhad abetted in commission of suicide by the deceased. In that view ofthe matter, we are of the considered view that the cases whereinconversion is held to be permissible are clearly distinguishable.

37. In the foregoing circumstances, the appeals are partly allowed.CConviction under Section 498-A of the IPC is maintained and theconviction under Section 306 of the IPC is set aside. The appellant isacquitted of the charge under Section 306 of the IPC.

38. The appellant is stated to be on bail, his bail bonds shall standdischarged and he is directed to surrender within four weeks for servingDthe remaining period of his sentence, if not already undergone.

Devika Gujral

Appeal partly allowed.