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Saturday, March 29, 2014

Sec.498 A, Sec.306 and Sec.304 B IPC - Letters of deceased were misread by the trial court and Trial court and High court went on assumptions and presumptions with out any valid evidence and discarded the evidence of defence with out assigning valid reasons-Epilepsy is not a Psychiatrist problem. It is a disease of nerves system and a MD (Medicine) could treat the patient of Epilepsy - Apex court held that it was an accident only occurred due to epilepsy in the kitchen while preparing food , prosecution failed to prove dowry harassment etc., = Mangat Ram .. Appellant Versus State of Haryana .. Respondent =2014 (March. Part ) judis.nic.in/supremecourt/filename=41344

  Sec.498 A, Sec.306 and Sec.304 B IPC -  Letters of deceased were misread by the trial court and Trial court and High court went on assumptions and presumptions with out any valid evidence and discarded the evidence of defence with out assigning valid reasons-Epilepsy is not a Psychiatrist problem.  It is  a  disease  of  nerves system and a MD (Medicine) could treat the patient of  Epilepsy -  Apex court held that it was an accident only occurred due to epilepsy in the kitchen while preparing food , prosecution failed to prove dowry harassment etc., =
 The appellant Mangat Ram,  a  member  of  SC  community,  married  the
deceased Seema, a member of the Aggarwal community on 13.7.1993  at  Ambala.
Few months after the marriage, on 15.9.1993, according to  the  prosecution,
the appellant sprinkled kerosene oil on the body of  the  deceased  and  set
her on fire, having failed to meet the dowry demand.   On  hearing  the  hue
and cry, neighbours assembled and took her to  the  Civil  Hospital,  Gohana
and, later, she was shifted to the Medical  College  and  Hospital,  Rohtak,
where she died on 17.9.1993.   The appellant, along  with  his  parents  and
sister, were charge-sheeted for the offences punishable under Sections  498-
A and 304-B IPC.=
The  trial  Court,   after
appreciating the oral and documentary evidence, came to the conclusion  that
an offence under Section 498-A IPC was made out against the  appellant,  but
not against the other three accused persons.  
The  trial  Court  also  found
that no offence under Section 304-B IPC was made  out  against  the  accused
persons, including the appellant.  
However, it  was  held  that  an  offence
under Section 306 IPC was made out against the appellant, though  no  charge
was framed under that section.  
After  holding  the  appellant  guilty,  the
trial Court convicted the appellant under Section 498-A  IPC  and  sentenced
him to undergo imprisonment for three years and to pay a fine of  Rs.1,000/-
, in default, to further undergo rigorous imprisonment (RI) for six  months.
  
The appellant was also convicted under Section 306 IPC  and  sentenced  to
undergo imprisonment for a period of seven  years  and  to  pay  a  fine  of
Rs.4,000/-, in default, to further undergo RI for two years.

Conclusion 

We have every reason to believe that, in the instant case,  the  death
was accidental, for the following reasons.
    - Though not proved in  her  dying  declaration,  it  has  come  out  in
      evidence that the deceased was suffering from Epilepsy  for  the  last
      three years i.e. before 15.3.1993, the date of incident.  
This fact is
      fortified by the evidence of Dr. Kuldeep, who  was  examined  as  DW1.
      He deposed that the deceased was suffering from Epilepsy and was under
      his treatment from 23.12.1992 to 2.4.1993 at Kuldeep Hospital,  Ambala
      City.  
His evidence was brushed aside by the trial Court on the ground
      that Dr. Kuldeep was  not  a  Psychiatrist.  
 It  may  be  noted  that
      Epilepsy is not a Psychiatrist problem.  It is  a  disease  of  nerves
      system and a MD (Medicine) could treat the patient of  Epilepsy.   
The
      reasoning given by the trial Court for brushing aside the evidence  of
      DW1 cannot be sustained.   
Therefore, the possibility of an accidental
      death, since she was suffering from Epilepsy,  cannot  be  ruled  out.
      
Evidently, she was in the kitchen and, might be,  during  cooking  she
      might have suffered Epileptic symptoms and fell down on the gas  stove
      and might have caught fire, resulting her ultimate death.
    - 
DW2, ASI Ram Mohan, the Investigating Officer  of  the  case,  deposed
      that he had recorded the statements of the deceased  wherein  she  had
      stated that she was suffering from Epilepsy for the last  three  years
      before the incident and that on  15.9.1993  while  she  was  preparing
      meals on stove, she had an attack of fits and fell on  the  stove  and
      caught fire.  
She had also deposed at that time that her  husband  was
      away at duty at Madhuban, Karnal.  
In our view, the  evidence  of  DW2
      has to be appreciated in the light of overall facts and  circumstances
      of the case.


29.   Taking into consideration all aspects of the matter,  we  are  of  the
view that the prosecution has not  succeeded  in  establishing  the  offence
under  Section  498-A  and  Section   306   IPC   against   the   appellant.
Consequently, the appeal is allowed and the conviction and sentence  awarded
by the trial Court and confirmed by the High Court, are set aside.

      2014 (March. Part ) judis.nic.in/supremecourt/filename=41344
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN
                                                         REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 696 OF 2009
Mangat Ram                              .. Appellant
                                   Versus
State of Haryana                        .. Respondent

                               J U D G M E N T

K. S. Radhakrishnan, J.


1.    The appellant Mangat Ram,  a  member  of  SC  community,  married  the
deceased Seema, a member of the Aggarwal community on 13.7.1993  at  Ambala.
Few months after the marriage, on 15.9.1993, according to  the  prosecution,
the appellant sprinkled kerosene oil on the body of  the  deceased  and  set
her on fire, having failed to meet the dowry demand.   On  hearing  the  hue
and cry, neighbours assembled and took her to  the  Civil  Hospital,  Gohana
and, later, she was shifted to the Medical  College  and  Hospital,  Rohtak,
where she died on 17.9.1993.   The appellant, along  with  his  parents  and
sister, were charge-sheeted for the offences punishable under Sections  498-
A and 304-B IPC.


2.    The prosecution, in order to bring home the offences, examined  PWs  1
to 7 and also produced various documents.  On the side of defence, DWs 1  to
5 were examined and the accused  appellant  got  himself  examined  as  DW6.
After the evidence was closed, the accused was questioned under Section  313
of  the  Code  of  Criminal  Procedure  (Cr.P.C.),  who   denied   all   the
incriminating  statements  made  against  him.    The  trial  Court,   after
appreciating the oral and documentary evidence, came to the conclusion  that
an offence under Section 498-A IPC was made out against the  appellant,  but
not against the other three accused persons.  The  trial  Court  also  found
that no offence under Section 304-B IPC was made  out  against  the  accused
persons, including the appellant.  However, it  was  held  that  an  offence
under Section 306 IPC was made out against the appellant, though  no  charge
was framed under that section.  After  holding  the  appellant  guilty,  the
trial Court convicted the appellant under Section 498-A  IPC  and  sentenced
him to undergo imprisonment for three years and to pay a fine of  Rs.1,000/-
, in default, to further undergo rigorous imprisonment (RI) for six  months.
  The appellant was also convicted under Section 306 IPC  and  sentenced  to
undergo imprisonment for a period of seven  years  and  to  pay  a  fine  of
Rs.4,000/-, in default, to further undergo RI for two years.

3.    Aggrieved by the conviction and sentence awarded by the  trial  Court,
the appellant preferred Criminal Appeal No. 592-SB of 1997, which when  came
up for hearing before the Division Bench of the High Court on 3.5.2007,  the
Court passed the following order:
    “Present:    Mrs. Ritu Punj, DAG, Haryana
                 Mrs. Harpreet Kaur Dhillon, Advocate
                 is appointed as Amicus Curiae.


    Heard


    Dismissed, reasons to follow.”


4.    Aggrieved by the said order, the appellant preferred  SLP  (Criminal)
No. 7578 of 2007 which was later converted into Criminal Appeal No. 182  of
2008.  The criminal appeal  came  up  for  hearing  before  this  Court  on
25.1.2008 and this Court deprecated the  practice  of  the  High  Court  in
disposing of the criminal appeals without recording reasons in  support  of
its decision.   Placing reliance on the judgments of this Court in State of
Punjab and others v. Jagdev Singh Talwandi  (1984)  1  SCC  596,  State  of
Punjab and others v. Surinder Kumar and others (1992) 1 SCC 489 and  Zahira
Habibulla H. Sheikh and another v. State of Gujarat and others (2004) 4 SCC
158, this Court set aside the judgment of the High Court and  directed  the
High Court to hear the appeal on merits.


5.    The High Court then considered the criminal appeal and dismissed  the
same on merits vide its judgment dated 27.5.2008 confirming the  conviction
and sentence awarded against the accused by the trial Court.  Aggrieved  by
the same, this appeal has been preferred.

6.    Mr. Satinder S. Gulati, learned counsel appearing for the  appellant,
took us elaborately through the oral and documentary  evidence  adduced  by
the parties and submitted that the judgment of the trial Court as  well  as
the High Court  is  based  on  conjunctures,  full  of  contradictions  and
surmises and there is no evidence  to  substantiate  the  charges  levelled
against the accused. Learned counsel submitted that there  was  a  complete
misreading of the oral and documentary evidence and, at  every  stage,  the
Courts below adopted its own strange reasoning which was  not  brought  out
from the deposition of the witnesses.  Learned counsel  pointed  out  that,
throughout the judgment of the trial Court as well as the High  Court,  one
can notice that the Courts below were prejudiced to the accused for  having
entered into an inter-caste marriage and opined that  the  plight  of  such
marriages would be discontentment and unhappiness. Learned counsel  pointed
out that there is sufficient evidence to conclude  that  the  deceased  was
suffering from Epilepsy for the last few years of  the  incident  and  that
death might have been caused by accident and, in any view,  it  was  not  a
homicidal death.  Further, it was pointed out that  the  prosecution  could
not prove that the appellant was at home when the  incident  had  happened.
Learned counsel also submitted that the trial Court has committed an  error
in altering the offence to that  of  Section  306  IPC  after  finding  the
accused not guilty under Section 304-B IPC.  Learned  counsel  pointed  out
that the ingredients of the offence under Section 304-B as well as  Section
306 IPC are entirely different and the trial Court has  committed  a  grave
error in convicting the appellant under Section 306 IPC.   Learned  counsel
also pointed out that there is absolutely no evidence of dowry  demand  and
the conviction recorded  under  Section  498-A  IPC  is  also  without  any
material.  In support of his various contentions, learned counsel also made
reference to few judgments of this Court, which we will deal in the  latter
part of this judgment.


7.    We did not have the advantage of hearing any counsel on the  side  of
the State, even though, the hearing was going on  for  a  couple  of  days.
Learned counsel appearing for the appellant took us through the depositions
of the witnesses examined on the side of the prosecution  as  well  as  the
defence, as also the documentary evidence placed before the Court.

8.    We may first examine whether an offence under Section 498-A  IPC  has
been made out against the appellant.  Admittedly, the marriage between  the
appellant and the deceased was an inter-caste love marriage and, after  few
months of the marriage, she died of  burn  injuries  on  17.9.1993  at  her
matrimonial home.  The question is whether immediately  before  and  during
the period between the date of marriage and the date of incident, was there
any dowry demand on the side of the accused.  In  order  to  establish  the
ingredients of  Section  498-A  IPC,  the  prosecution  examined  PW4,  the
maternal grand-father of the deceased, who had brought up her on the demise
of her parents.  On a plain reading of the deposition of PW4, it  is  clear
that he was against the inter-caste marriage of her grand-daughter with the
appellant, who  belonged  to  the  Scheduled  Caste  community,  while  the
deceased  belonged  to  the  Aggarwal  community.   PW4,  in   his   cross-
examination, stated that he had agreed for the marriage since the  deceased
was adamant to marry the appellant.   PW4  also  stated  that  he  had  not
participated in Tikka ceremony held in  the  house  of  accused  appellant.
Further, it was also stated that he had not contacted any other  member  of
the family of  the  accused  before  the  marriage.   PW4,  in  the  cross-
examination, stated that he had gone to Madhuban prior to the  marriage  to
dissuade the appellant from entering into such a marriage and, for the said
purpose, he met the DSP, Madhuban, who then called Mangat Ram, but  he  was
adamant to marry Seema.  We have to appreciate the evidence of PW4  in  the
light of the fact that he was  totally  against  the  inter-caste  marriage
between the accused and the deceased.   PW4 also deposed that  the  accused
persons had  demanded  a  dowry  of  Rs.10,000/-  and  a  scooter  and,  on
14.8.1993, PW4 gave Rs.10,000/-  in  cash  to  the  accused  and  had  also
promised to make arrangement for the purchase of a scooter.

9.    PW5, a distant relative of PW4, also stated that after 15-20 days  of
the marriage, the deceased came along with the accused to the residence  of
PW4 and, at that time, the deceased  had  told  PW4  and  others  that  the
accused was harassing her since  she  had  not  brought  dowry.   PW5  also
deposed that articles like cooler, fridge, sofa, double bed were  given  to
the accused by way of dowry.  PWs 4 and 5 had  deposed  that  a  demand  of
dowry was made not only by the accused Mangat Ram, but also by his  parents
and sister.  The trial Court recorded a clear finding that the  prosecution
had failed to bring home the guilt as against the parents and sister of the
accused under Section 498A, 304-B IPC, which  was  not  questioned  by  the
prosecution.   However, if that part of the evidence of PWs 4 and  5  could
not be believed against the rest of the accused, then we fail to see how it
could be put against the accused alone, especially when PWs  4  and  5  had
stated that the demand for dowry was made by all the accused on  13.8.1993.
The evidence of PWs 4 and 5 has to be appreciated in the light of the  fact
that they were  against  the  inter-caste  marriage,  since  the  appellant
belonged to Scheduled Caste community and the deceased belonged to Aggarwal
community, a forward community.  Alleged dowry demand  of  Rs.10,000/-  and
the demand of scooter, stated to have been made by the accused,  could  not
be established not only against the other three accused persons,  but  also
against the appellant as well.

10.   We may now examine, apart from the dowry demand,  had  the  appellant
treated the deceased with cruelty and abetted the  deceased  in  committing
suicide.  We have already found on facts that  the  prosecution  could  not
establish that there was any dowry demand from the side of  the  appellant.
Once it is so found, then we have to examine what was the cruelty meted out
to the deceased so as to provoke her to end her life.   It has come out  in
evidence that when the deceased sustained burn injuries,  the  accused  was
not at home.  In this connection, we may refer to  para  25  of  the  trial
Court judgment, which reads as follows:
    “25.   Secondly, Seema died un-natural death.  The most  crucial  point
           which the prosecution was bound to establish, whether Seema  was
           subjected to cruelty and harassment on  account  of  paucity  of
           dowry or there was a fresh demand of dowry,  there  is  no  such
           evidence on the file that  she  was  subjected  to  cruelty  and
           harassment.  Bidhi Chand  and  Avinash  Chander  both  appeared.
           They did not state that  Seema  was  subjected  to  cruelty  and
           harassment  for  paucity  of  dowry  given  at   the   time   of
           marriage........”
                                  [Emphasis Supplied]

11.   The trial Court itself says that there was no such  evidence  on  the
file that she was subjected to cruelty or harassment. But, in  para  26  of
its judgment, the trial Court, adopted a strange reasoning to hold that the
accused had treated the deceased with cruelty, which is as follows:
    “26.   ....... An educated girl of business community  was  left  in  a
           village life and in the house of a lower community people  whose
           way of living, whose way of talking, whose way of  behaviour  is
           not at par with the family members of Seema, since deceased.  As
           such, Seema was feeling perplexed agitated.   She expected  from
           Mangat Ram that she must be  kept  with  him  at  his  place  of
           posting and not to be left in a village life in the  company  of
           rustic persons and that appeared the cause of discontentment and
           unhappiness.  It has been experienced that such  marriage  meets
           ill fate, like the present one.  From statement of  Bidhi  Chand
           and letters Ex.PE and PF an inference can be easily  drawn  that
           Seema was fully unhappy and dis-contended from the behaviour  of
           Mangat Ram accused, since he had left her in village life at the
           mercy of her mother-in-law Jiwni and that is why, she  had  been
           calling her grand maternal father to come for  her  rescue,  but
           Bidhi Chand, as explained by him,  could  not  rush  to  village
           Baroda because his son and his wife  met  with  an  accident  at
           Chandigarh and he went there.”
                                        [Emphasis Supplied]
12.   Further, in para 31, the trial Court has stated that the  conduct  of
Mangat Ram keeping and leaving Seema in Baroda  at  his  home  amounted  to
causing cruelty and harassment to Seema.   In para 32, the trial Court  has
also recorded a very strange reasoning, which is as follows:
    “32.   Accused was very safely entered into  defence  and  led  defence
           evidence that Seema had been suffering from  epilepsy  prior  to
           her marriage. In case, if this  fact  would  have  been  in  the
           knowledge of Mangat Ram, he would have never solemnised marriage
           with Seema.  After enjoying sex with her, he must have  deserted
           this lady...........”


13.   We fail to see how the Court can come to the conclusion  that  having
known the deceased was suffering from Epilepsy, he would not  have  married
the deceased.  If the Court’s reasoning is accepted, then nobody  would  or
could marry a person having Epilepsy. Another  perverse  reasoning  of  the
trial Court which, according to the trial Court, led to the act of suicide,
is as follows:
    “33.   ...... She has been brought up  by  her  grand  maternal  father
           Bidhi Chand and he contracted a love marriage with her.  But  in
           spite of that, he quenched his lust of sex by enjoying Seema and
           then left her in a  rustic  life  of  village.   Seema,  out  of
           frustration and discontentment, wanted to get rid of that  life.
           When her maternal grand father did not reach for her rescue, she
           being fully harassed, sprinkled kerosene oil  on  her  body  and
           took her life. ...............”
                                        [Emphasis Supplied]
14.   The underlined portion indicates  that  the  deceased  had  committed
suicide out of frustration and discontentment and due to  the  reason  that
her maternal grandfather did not reach for her rescue.   Reference  to  few
letters sent by the deceased to her maternal grand father in  this  respect
is apposite.  In her letter dated 18.8.1993 (Annexure P-17) to  PW4,  there
is absolutely no indication of  any  harassment  or  dowry  demand  by  the
accused.  The letter would only indicate that she was home-sick and  wanted
very much to see her grand father, the operative portion of the same  reads
as follows :
      “…. But you should come it is very important work.  If  you  will  not
      come on 25th or 26th then I will give my life.  Therefore both of  you
      should come. Even if Somnath mama will say no for you to go to  Baroda
      but both of you should come, it is important work.  If  you  will  not
      come then your daughter will give her life.  What more should I  write
      you are wise enough.  If there is  any  mistake  in  the  letter  then
      forgive me.  I sent a letter to Bandoi  also.   That  day  we  reached
      Baroda at 3 O’clock.  Both of us wish Namaste to  all  of  you.   Give
      love to Rahul, Sahul.  I miss all of you a lot.  Daddyji after getting
      my letter come to Baroda on 25th or 26th immediately, it is  important
      work.  If you will not come I will give  my  life  therefore  you  and
      mamaji should come.  I am closing my letter.  I am writing again  that
      Daddyji you should come.  It is very important work.  If you will  not
      come on 25th or 26th then on 27th you will get a telephone call of  my
      death. ….”

15.   Reference may also be made to another letter dated 11.9.1997  sent  by
her to PW4.  In that letter also, there was no complaint of  any  harassment
or dowry demand.   On the other hand, the letter would  further  reemphasize
that she was home-sick and very  much  wanted  to  see  her  maternal  grand
father, the operative portion of the letter reads as follows:
      “…. Daddyji you may not come for a night but you should come  to  meet
      me for an hour or two.   It is very important work.  Daddyji you  keep
      on replying to my letter I feel very  happy.   I  miss  Rahul,  Sahul,
      Raju, Sonu, Shalu and Rachit, Sapna, Aarti and all of you.  I keep  on
      crying the whole day and whole night by remembering you.   I  want  to
      meet all of you. Nanaji come to Baroda immediately  after  reading  my
      letter on 17th or 18th date, it is very important work.  If  you  love
      me then you should come.  Daddy  if  you  will  not  come  even  after
      reading my letter then I take your vow  that  I  will  give  my  life.
      Reply to the letter on getting it.  From my side and from my mother in
      law’s side and from Mangat’s side we wish Namaste to all of you.  Give
      love to children.  Writer of letter your daughter.  (Seema)”

16.   The picture that emerges from the conduct of  the  deceased  was  that
she was very home-sick at her matrimonial home and was  very  much  attached
to PW4 and her friends and relatives  at  her  home.  The  accused  being  a
Police Constable had to serve at various places away from his  village  and,
then necessarily he had to leave his wife  at  his  home  in  the  care  and
protection of his parents.  Not taking the wife along with him, itself  was,
however, commented upon by the trial Court  stating  that  the  accused  had
left his wife, an educated girl belonging to  a  business  community,  in  a
village and in the house of a lower community people,  whose  way  of  life,
whose way of talking, whose way of behaviour would not be at  par  with  the
family members  of  the  deceased.   On  this  reasoning,  the  trial  Court
concluded that the deceased was feeling  perplexed,  agitated  and  expected
that  the accused would take her  at  his  place  of  posting,  rather  than
leaving in a village in the company of rustic persons  which,  according  to
the Court, led to discontentment and unhappiness.

17.   We fail to understand how a judicially trained  mind  would  come  out
with such a reasoning and, at least, we expected that the High  Court  would
have set right that perverse reasoning, but we are surprised  to  note  that
the High Court  adopted  yet  another  strange  reasoning,  which  reads  as
follows:
      “When deceased had contracted marriage with the  appellant-accused  on
      her own accord against the wish  of  her  maternal  grandfather  then,
      deceased was not expected to commit suicide because she  was  to  stay
      with the appellant-accused.   On  the  other  hand,  appellant-accused
      being employee had not kept the deceased with him at the place of  his
      posting.  Deceased was staying with  the  parents  of  the  appellant-
      accused.  So, actions of the appellant-accused abetted the deceased to
      commit suicide.”


18.   We fail to see how the failure of a married person to take  his  wife
along with him to the place where he is working or posted, would amount  to
cruelty leading to abetment of committing suicide by the wife.  Taking wife
to place of posting depends upon several factors, like the  convenience  of
both, availability of accommodation and so many factors.   In  the  instant
case, the accused had left the wife in the matrimonial home in the  company
of his parents and we fail to see how that action would amount to  abetment
to commit suicide.

19.   We may point out that the High Court itself after placing reliance on
the letters – Exh. PE and PF - written by  the  deceased  to  her  maternal
grandfather, has noted that there was no reference at all in these  letters
of the demand of dowry by the accused, but stated  that  the  deceased  was
unhappy and upset over the behaviour of the accused, having left her in the
company of his parents.  We have gone through those letters and,  in  those
letters, there is nothing to show  that  the  deceased  was  upset  by  the
behaviour of the accused.  On the other hand, the letters only expose  that
the deceased was extremely home sick and wanted the company of her maternal
grandfather.  We are surprised to note that the High Court found fault with
the accused for leaving the deceased “at the mercy of his parents”.  Again,
the High Court made another strange reasoning, which reads as follows:
      “Immediately after marriage, two letters were written in the months of
      August and September, 1993.   Appellant-accused being employee  should
      have kept the deceased with him.   No prudent man is to commit suicide
      unless abetted to do so.  Actions of the appellant-accused amounts  to
      cruelty compelling the deceased to commit suicide.   Conviction  under
      Section 306 IPC was rightly recorded by the trial Court.  No  question
      of interference.   If husband is given  a  benefit  of  doubt  on  the
      allegation that no direct evidence, no circumstantial  evidence,  when
      the marriage was inter-caste, then what type of evidence  deceased  or
      complainant was to collect.     .”
                                        [Emphasis Supplied]

20.   We find it difficult to comprehend the reasoning  of  the  High  Court
that “no prudent man is to commit suicide  unless  abetted  to  do  so.”   A
woman may attempt to  commit  suicide  due  to  various  reasons,  such  as,
depression,  financial  difficulties,  disappointment  in  love,  tired   of
domestic worries, acute or chronic ailments and so on and need  not  be  due
to abetment.  The reasoning of the High  Court  that  no  prudent  man  will
commit suicide unless abetted to do  so  by  someone  else,  is  a  perverse
reasoning.

21.   We fail to see how the High Court can say that  the  accused  being  a
police man should have kept his wife with him at  his  workplace.   Further,
the High Court then posed a wrong question to itself stating that  if  there
is no direct  evidence,  no  circumstantial  evidence,  then  what  type  of
evidence the deceased or complainant was to collect, when  the  marriage  is
inter-caste, a logic we fail to digest.

22.   We are sorry to state that the trial Court as well as the  High  Court
have not properly appreciated the scope  of  Sections  498-A  and  306  IPC.
Section 498-A IPC, is extracted below for an easy reference:
           “498-A.  Whoever, being the  husband  or  the  relative  of  the
      husband of a woman, subjects such woman to cruelty shall  be  punished
      with imprisonment for a term which may extend to three years and shall
      also be liable to fine.


           Explanation.- For the purposes of this section, ‘cruelty’ means-


              a) any 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
                 is on account of failure by her or any  person  related  to
                 her to meet such demand.”


23.   Explanation to Section 498-A gives the  meaning  of  ‘cruelty’,  which
consists of two clauses.   To attract Section 498-A, the prosecution has  to
establish the wilful conduct on the part of the accused and that conduct  is
of such a nature as is likely to drive the  wife  to  commit  suicide.    We
fail to see how the failure to take one’s wife  to  his  place  of  posting,
would amount to a wilful conduct of such a nature which is likely  to  drive
a woman to commit suicide.   We fail to see how a married woman left at  the
parental home by the husband would by itself amount to a wilful  conduct  to
fall within the expression of ‘cruelty’,  especially  when  the  husband  is
having such a job for which he has to be away at the place of  his  posting.
We also fail to see how a wife left in a village life  “in  the  company  of
rustic persons”, borrowing language used by the trial  Court,  would  amount
to wilful conduct of  such  a  nature  to  fall  within  the  expression  of
‘cruelty’.  In our view, both the trial Court as  well  as  the  High  Court
have completely misunderstood the scope of Section 498-A IPC read  with  its
explanation and we are clearly of the view that  no  offence  under  Section
498-A has been made out against the accused appellant.

24.   We have already indicated that the  trial  Court  has  found  that  no
offence under Section 304-B IPC has been made out against the  accused,  but
it convicted the accused under Section 306 IPC, even though  no  charge  had
been framed on that section against the accused.  The  scope  and  ambit  of
Section 306 IPC has not been  properly  appreciated  by  the  Courts  below.
Section 306 IPC reads as under:
      “306. If any person commits suicide, whoever abets the  commission  of
      such  suicide,  shall  be  punished  with   imprisonment   of   either
      description for a term which may extend to ten years, and  shall  also
      be liable to fine.”

      Abetment of suicide is confined to the case of persons who aid or abet
the commission of the suicide.  In the matter of an  offence  under  Section
306 IPC, abetment must attract the definition thereof in  Section  107  IPC.
Abetment is constituted by instigating a person  to  commit  an  offence  or
engaging in a conspiracy to commit, aid or intentional aiding  a  person  to
commit it.  It would be evident from a plain reading  of  Section  306  read
with Section 107 IPC that, in order to make out the offence of  abetment  or
suicide, necessary proof required is that the culprit is either  instigating
the victim to commit suicide or has engaged himself  in  a  conspiracy  with
others for the commission of suicide, or has intentionally aided by  act  or
illegal omission in the commission of suicide.

25.   In the instant case, of course, the wife died  few  months  after  the
marriage and the presumption under Section 113A of the  Evidence  Act  could
be raised.  Section 113A of the Evidence Act reads as follows:
           “113A.  Presumption as to  abetment  of  suicide  by  a  married
      woman.- when the question is whether the commission of  suicide  by  a
      woman had been abetted by her husband or any relative of  her  husband
      and it is shown that she had committed  suicide  within  a  period  of
      seven years from the date of her marriage and that her husband or such
      relative of her husband and 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.”


26.   We are of the view that the mere fact that if a married woman  commits
suicide within a period of seven years  of  her  marriage,  the  presumption
under Section 113A of the Evidence Act would not automatically  apply.   The
legislative mandate is that where  a  woman  commits  suicide  within  seven
years of her marriage and it is shown that her husband or  any  relative  of
her husband has subjected her to cruelty, the presumption as  defined  under
Section 498-A IPC, may attract, having regard to all other circumstances  of
the case, that such suicide has been abetted  by  her  husband  or  by  such
relative of her husband.  The term “the Court may presume, having regard  to
all the other circumstances of the case, that such suicide had been  abetted
by her husband” would indicate that the presumption  is  discretionary.   So
far as the present case is concerned, we have  already  indicated  that  the
prosecution has not succeeded in showing that there was a dowry demand,  nor
the reasoning adopted by the Courts below  would  be  sufficient  enough  to
draw a presumption so as to fall under Section 113A  of  the  Evidence  Act.
In this connection, we may refer to the judgment of this Court in  Hans  Raj
v. State of Haryana (2004) 12 SCC 257, wherein this Court has  examined  the
scope of Section 113A of the Evidence Act and Sections 306, 107, 498-A  etc.
and held that,  unlike  Section  113B  of  the  Evidence  Act,  a  statutory
presumption does not arise by operation  of  law  merely  on  the  proof  of
circumstances enumerated in Section 113A of the Evidence Act.    This  Court
held that, under Section 113A of the Evidence Act, the  prosecution  has  to
first establish that the woman concerned committed suicide within  a  period
of seven years from the date of  her  marriage  and  that  her  husband  has
subject her to cruelty.  Even though those facts are established, the  Court
is not bound to presume that  suicide  has  been  abetted  by  her  husband.
Section 113A, therefore, gives discretion to  the  Court  to  raise  such  a
presumption having regard to all other  circumstances  of  the  case,  which
means that where the allegation is of cruelty, it can  consider  the  nature
of cruelty to which the woman was subjected, having regard  to  the  meaning
of the word ‘cruelty’ in Section 498-A IPC.

27.   We are of the view that the circumstances of the case pointed  out  by
the prosecution are totally  insufficient  to  hold  that  the  accused  had
abetted his wife to commit suicide and the  circumstances  enumerated  under
Section 113A of the Evidence Act have also not been satisfied.   In  Pinakin
Mahipatray Rawal v. State of Gujarat  (2013)  10  SCC  48,  this  Court  has
examined the scope of Section 113A of the Evidence Act, wherein  this  Court
has reiterated the legal position that the legislative  mandate  of  Section
113A of the Evidence Act is that if a woman  commits  suicide  within  seven
years of her marriage and it is shown that her husband or  any  relative  of
her husband had subjected her to cruelty, as per the presumption defined  in
Section 498-A IPC, the  Court  may  presume,  having  regard  to  all  other
circumstances of the case,  that  such  suicide  had  been  abetted  by  the
husband or such person.  The Court held that, though a presumption could  be
drawn, the burden of  proof  of  showing  that  such  an  offence  has  been
committed by the accused under Section 498-A  IPC  is  on  the  prosecution.
The Court held that the burden is on the prosecution to establish  the  fact
that the deceased committed suicide and the  accused  abetted  the  suicide.
In the instant case, there  is  no  evidence  to  show  whether  it  was  an
accidental death or whether the deceased had committed suicide.

28.   We have every reason to believe that, in the instant case,  the  death
was accidental, for the following reasons.
    - Though not proved in  her  dying  declaration,  it  has  come  out  in
      evidence that the deceased was suffering from Epilepsy  for  the  last
      three years i.e. before 15.3.1993, the date of incident.  This fact is
      fortified by the evidence of Dr. Kuldeep, who  was  examined  as  DW1.
      He deposed that the deceased was suffering from Epilepsy and was under
      his treatment from 23.12.1992 to 2.4.1993 at Kuldeep Hospital,  Ambala
      City.  His evidence was brushed aside by the trial Court on the ground
      that Dr. Kuldeep was  not  a  Psychiatrist.   It  may  be  noted  that
      Epilepsy is not a Psychiatrist problem.  It is  a  disease  of  nerves
      system and a MD (Medicine) could treat the patient of  Epilepsy.   The
      reasoning given by the trial Court for brushing aside the evidence  of
      DW1 cannot be sustained.   Therefore, the possibility of an accidental
      death, since she was suffering from Epilepsy,  cannot  be  ruled  out.
      Evidently, she was in the kitchen and, might be,  during  cooking  she
      might have suffered Epileptic symptoms and fell down on the gas  stove
      and might have caught fire, resulting her ultimate death.
    - DW2, ASI Ram Mohan, the Investigating Officer  of  the  case,  deposed
      that he had recorded the statements of the deceased  wherein  she  had
      stated that she was suffering from Epilepsy for the last  three  years
      before the incident and that on  15.9.1993  while  she  was  preparing
      meals on stove, she had an attack of fits and fell on  the  stove  and
      caught fire.  She had also deposed at that time that her  husband  was
      away at duty at Madhuban, Karnal.  In our view, the  evidence  of  DW2
      has to be appreciated in the light of overall facts and  circumstances
      of the case.


29.   Taking into consideration all aspects of the matter,  we  are  of  the
view that the prosecution has not  succeeded  in  establishing  the  offence
under  Section  498-A  and  Section   306   IPC   against   the   appellant.
Consequently, the appeal is allowed and the conviction and sentence  awarded
by the trial Court and confirmed by the High Court, are set aside.




                                                                …………………………J.
                                                       (K. S. Radhakrishnan)






                                                                …………………………J.
                                          (Vikramajit Sen)
New Delhi,
March 27, 2014.


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