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Tuesday, May 2, 2017

when acquitted under sec.498 A - no conviction under sec.306 due to missing link third ingredient for application of Section 113A = having absolved the appellants of the charge of cruelty, which is the most basic ingredient for the offence made out under Section 498A, the third ingredient for application of Section 113A is missing, namely, that the relatives i.e., the mother-in-law and father-in-law who are charged under Section 306 had subjected the victim to cruelty. No doubt, in the facts of this case, it has been concurrently found that the in-laws did harass her, but harassment is something of a lesser degree than cruelty. Also, we find on the facts, taken as a whole, that assuming the presumption under Section 113A would apply, it has been fully rebutted, for the reason that there is no link or intention on the part of the in- laws to assist the victim to commit suicide. In the absence of this vital link, the mere fact that there is a finding of harassment would not lead to the conclusion that there is “abetment of suicide”. On the facts, therefore, we find, especially in view of the fact that the appellants have been acquitted for the crime under Section 498 A of the Code, that abetment of suicide under Section 306 is not made out.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.790/2017
(@Petition(s) for Special Leave to Appeal (Crl.) No(s).1165/2017)

HEERA LAL AND ANR                                  Appellant(s)

                                VERSUS

STATE OF RAJASTHAN                                 Respondent(s)

                               J U D G M E N T

ROHINTON FALI NARIMAN J

1.    Leave granted.

2.    In the present case, an F.I.R. dated 28th March, 2002  was  lodged  in
which it was stated that the father-in-law and  mother-in-law  of  the  lady
who committed suicide  harassed  her  for  at  least  five  years  and  this
harassment, therefore, led to offences being committed under  Sections  498A
and Section 306 of the Indian Penal Code. The Trial Court  relied  upon  the
evidence of PWs 4 and 5, who were neighbours, who attested to the fact  that
there was harassment  meted  by  the  in-laws  to  the  dead  lady.  Medical
evidence also shows that there  were  90%  burns  as  the  lady  had  poured
kerosene on herself and set herself on fire. Most importantly, according  to
both the Trial Court and the  High  Court,  a  dying  declaration  was  made
before PW 9 who was a Sub-Divisional Magistrate, which reads as follows:-
“The PW-9, Himmat Singh has stated that as on 28.03.02, he  was  working  as
SDM and on that day he had gone to the hospital to record the  statement  of
the deceased. At that time Dr. Verma was the duty doctor and he  has  stated
that Lalita was in a state of fitness  to  record  her  statement.  When   I
asked  Lalita she had told that she was sleeping and
                                     -2-
her in-laws were quarrelling with her every day. Today also they  quarrelled
with me. They asked me to leave the house. My  husband  is  not  responsible
for anything. He resides in Kuwait. He has come  here  now.  I  am  residing
separately from my in-laws. Today they had come with their luggage and  said
that they have come to stay with her. I told them that  I  am  not  in  good
relations with them and therefore I cannot reside with them. They  told,  we
will stay here and you get lost. Then  I  got  angry  and  went  inside  the
kitchen and poured kerosene from the  stove  and  set  myself  on  fire.  My
father-in-law was looking at me but did not  try  to  stop  me.  My  husband
tried to save me. My in-laws were demanding dowry from me. I  did  not  have
any quarrels with my husband. My  signatures  are  there  on  the  statement
recorded by me. Lalita's thumb impression is there at point  X.  During  the
cross examination by the Ld. Counsel the witness stated that  the  statement
recorded by him is at Ex. P-5 and at point X the thumb impression of  Lalita
is there. At the time of recording the statement no one  from  her  parent's
side was present and the in-laws of the deceased  were  turned  out  of  the
room at the time of recording the statement. Lalita's husband Omprakash  was
present at the time of Lalita setting herself on fire and  at  the  time  of
putting off the flames.”

3.    On this evidence, the Trial Court held that the offence under  Section
498A was not made out but convicted  the  two  appellants  before  us  under
Section 306 and sentenced them  to  imprisonment  for  three  years.  In  an
appeal filed by them before the High Court, the  High  Court,  relying  upon
the aforesaid dying declaration, dismissed the appeal.
4.    Learned counsel for the appellants  has  argued  before  us  that  the
State did not appeal against their acquittal under Section  498A  and,  that
therefore, the fact that the offence under Section 498A

                                     -3-

has not been made out is final. This has a  vital  bearing  on  the  offence
under Section 306 as one of the ingredients of this offence is that  cruelty
should have been meted out by the offenders. He also argued  that  based  on
the dying declaration which has been given prime importance, this is  not  a
case of abetment as there is no  evidence  of  any  intention  to  help  the
deceased to commit suicide.
5.    On the other hand, the learned counsel  appearing  for  the  State  of
Rajasthan  supported  the  impugned  Judgment.  According  to  him,  it   is
concurrently held, based on the evidence of the case as well  as  the  dying
declaration, that abetment of suicide is made out on the facts of the  case.
Learned counsel also  heavily  relied  upon  the  presumption  contained  in
Section 113A of the Evidence Act inasmuch as death has  been  caused  within
seven  years  of  the  marriage;  and  this  presumption,  not  having  been
rebutted, did not require any interference at our end.
6.    Having heard the learned counsel appearing for the parties and  having
gone through the evidence, we are of the opinion that Section  113A  of  the
Indian Evidence Act requires three ingredients to  be  satisfied  before  it
can be applied i.e., (i) that a  woman  has  committed  suicide,  (ii)  such
suicide has been committed within a period of seven years from the  date  of
her marriage and (iii) the husband or his  relatives  who  are  charged  had
subjected her to cruelty.
                                     -4-
7.    This Court in an illuminating Judgment in Ramesh Kumar  vs.  State  of
Chhattisgarh (2001) 9 SCC 618 has stated the law as follows:-
“This provision was introduced by the Criminal Law (Second)  Amendment  Act,
1983 with effect  from  26-12-1983  to  meet  a  social  demand  to  resolve
difficulty of proof where helpless married women were  eliminated  by  being
forced to commit  suicide  by  the  husband  or  in-laws  and  incriminating
evidence was usually available within the four corners  of  the  matrimonial
home and hence was not available to anyone  outside  the  occupants  of  the
house. However, still it cannot be lost sight of  that  the  presumption  is
intended to operate against the  accused  in  the  field  of  criminal  law.
Before the presumption may be raised, the foundation thereof must  exist.  A
bare reading of  Section  113-A  shows  that  to  attract  applicability  of
Section 113-A, it must be shown that (i) the woman  has  committed  suicide,
(ii) such suicide has been committed within a period  of  seven  years  from
the date of her marriage, (iii)  the  husband  or  his  relatives,  who  are
charged had subjected her to cruelty. On existence and availability  of  the
abovesaid circumstances, the court may presume that such  suicide  had  been
abetted by her husband or by such relatives of her husband.  Parliament  has
chosen to  sound  a  note  of  caution.  Firstly,  the  presumption  is  not
mandatory; it is only  permissive  as  the  employment  of  expression  “may
presume”  suggests.  Secondly,  the  existence  and  availability   of   the
abovesaid  three  circumstances  shall  not,  like a  formula,
enable the presumption being drawn; before the presumption may be drawn  the
court shall have to have regard to  “all  the  other  circumstances  of  the
case”. A consideration of all  the  other  circumstances  of  the  case  may
strengthen the presumption or may dictate the conscience  of  the  court  to
abstain  from  drawing  the  presumption.  The  expression  -   “the   other
circumstances  of the case” used in Section 113-A suggests the
                                     -5-

need to reach a cause-and-effect relationship between the  cruelty  and  the
suicide for the purpose of raising a presumption. Last but  not  the  least,
the presumption is not an  irrebuttable  one.  In  spite  of  a  presumption
having been raised  the  evidence  adduced  in  defence  or  the  facts  and
circumstances otherwise available on record  may  destroy  the  presumption.
The phrase “may presume” used in Section 113-A is defined in  Section  4  of
the Evidence Act, which says - “Whenever it is provided  by  this  Act  that
the court may presume a fact, it may either  regard  such  fact  as  proved,
unless and until it is disproved, or may call for proof of it.”

8.    We find that having absolved the appellants of the charge of  cruelty,
which is the most basic ingredient for the offence made  out  under  Section
498A, the third ingredient for  application  of  Section  113A  is  missing,
namely, that the relatives i.e., the  mother-in-law  and  father-in-law  who
are charged under Section 306  had  subjected  the  victim  to  cruelty.  No
doubt, in the facts of this case, it has been concurrently  found  that  the
in-laws did harass her, but harassment is something of a lesser degree  than
cruelty. Also,  we  find  on the facts, taken as a whole, that assuming  the
presumption under Section 113A would apply, it has been fully rebutted,  for
the reason that there is no link or  intention  on  the  part   of  the  in-
laws to assist the victim to commit suicide.
9.    In the absence of this vital link, the  mere  fact  that  there  is  a
finding of harassment would  not  lead  to  the  conclusion  that  there  is
“abetment of suicide”.
10    On the facts, therefore, we find,  especially  in  view  of  the  fact
that  the  appellants have been acquitted for the crime under
                                     -6-
Section 498 A of the Code, that abetment of suicide  under  Section  306  is
not made out.
11.   In the circumstances, we set aside the impugned Judgment of  the  High
Court. If incarcerated, the appellants shall be released forthwith.
12.   The appeal is allowed in the afore-stated terms.





                                       .......................J
                                       (ROHINTON FALI NARIMAN)





                                       .........................J
                                       (MOHAN M. SHANTANAGOUDAR)
NEW DELHI;
24TH APRIL, 2017.




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