Dagadu Waluba Jadhav vs The State Of Maharashtra
2017 Latest Caselaw 1613 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                     
                     BENCH AT AURANGABAD.

                                                     
                      CRIMINAL APPEAL NO.543 OF 2001.


        Dagadu s/o Waluba Jadhav,
        age 25 years, occu. -
        r/o Anturli (Kh),
        Tq. Pachora, Dist. Jalgaon.                     ... APPELLANT.
                                                        (Ori. Accused No.1).

                Versus

        The State of Maharashtra.                       ... RESPONDENT.


                                                ...
                            Mr.G.V. Wani, Advocate for appellant.
                        Mr.K.S. Patil, Addl. P.P. For respondent / State.
                                                ...



                                                 CORAM : V.L. ACHLIYA, J.

                                      Reserved on:   12th January, 2017.
                                      Pronounced on:    11th April, 2017.


        JUDGMENT: 

1. This appeal is directed against the judgment and order

dated 6th December, 2001 delivered in Sessions Case No.29 of

1999 by the 1st Ad hoc Additional Sessions Judge, Jalgaon.

By the impugned judgment and order, the learned Additional

Sessions Judge has convicted appellant - original accused

No.1 for the offence punishable under Section 306 of IPC and

sentenced him to suffer R.I. for four years and to pay a fine of

Rs.1000/-, in default of payment of fine, to suffer R.I. for two

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months.

2. In brief, the facts of the prosecution case as unfolded

during the course of trial are summarized as under:

(a) The appellant (original accused No.1) along with co-

accused Waluba Sandu Jadhav (accused No.2) and

Chandrakala @ Jijabai Waluba Jadhav (accused No.3),

father and mother of accused No.1, were tried for the

offences punishable under Sections 306, 498A r.w. 34

of IPC. On conclusion of the trial, the learned

Additional Sessions Judge has acquitted them for

offences under Section498A of IPC. The accused Nos.1

and 2 were also acquitted for offences under Section

306 r.w. Section 34 of IPC. However, the accused No.1

was convicted for the offence punishable under Section

under Section 306 of IPC.

(b) On 6.4.1998, Hari Bhika Danke, (PW-1), father of

Chhayabai (herein after referred to as the deceased)

lodged complaint with Police Station Pachora, district

Jalgaon, alleging therein that his daughter Chhayabai

was married with accused No.1 about two years prior to

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lodging of the complaint. After marriage, she started

cohabiting with accused Nos.1 to 3 at their matrimonial

house at village Anturli. Accused Nos.1 to 3 used to ill-

treat and harass her. After 15 days of marriage, he

visited the house of accused to fetch his daughter.

However, the accused refused to sent her and made

grievance against his daughter that she is not able to

do household work. When he brought his daughter to

his house, she disclosed that her husband and in-laws

used to taunt her since she could not do the household

work and her husband beat her as watch was not given

in marriage. When her father-in-law came to fetch her,

he gave him watch of his brother. After 2 to 3 months

thereafter, the complainant went to the house of

accused to fetch his daughter. But the accused did not

allow her to talk to him. Her husband and in-laws

demanded money for construction of house. He told

them that he has no money to pay them. The accused

refused to send his daughter with him. In the previous

month, he received inland letter from father-in-law of

his daughter. By that letter, he was informed that his

daughter is suffering from typhoid and she may not

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survive more than 4 - 5 days and asked him to

immediately come to see her. He, therefore, went to the

house of the accused along with his wife to see his

daughter. At that time, accused No.1 told them that he

and Chhayabai (deceased) would come to their house to

attend marriage of his cousin brother. Accordingly, on

20th March, 1998, accused No.1 and his daughter came

to their house and they stayed there for four days. At

that time, Chhayabai disclosed that accused continued

to ill-treat her. She asked him to give Rs.3000/- to her.

He told her that he has no money to pay to her.

Thereafter, the accused and his daughter went to their

matrimonial house. Thereafter, he received letter from

accused No.1 wherein, he asked him to urgently pay

him Rs.5000/- and by money order or bring it

personally. A few days thereafter i.e. on 5.4.1998, the

accused No.2 and two persons came to his house and

enquired as to whether his daughter had come to his

house. They disclosed that Chhayabai was found

missing from their house since Friday. On next day, he

along with family members and relatives went to Anturli

when he came to know that the dead body of his

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daughter was found in a well in the village. After

performing the last rites on the dead body of his

daughter, the complainant visited the police station on

6.4.1998 and lodged complaint alleging therein that the

deceased committed suicide due to continuous ill-

treatment, at the hands of accused. On the basis of the

complaint lodged by P.W.1, the offence punishable

under sections 306, 498-A r/w 34 IPC came to be

registered vide C.R. No.33 of 1998 against accused with

Police Station, Pachora.

(c) Ashok Karpe (PW-5), PSI attached to Pachora Police

Station conducted the investigation. Prior to

registration of offence, on the basis of information

received from Police Patil of village Anturli, Accidental

Death No.23 of 1998 was registered. After registration

of the offence, investigating officer made inquest

panchanama of the dead body of deceased and referred

the dead body of deceased for postmortem. The

investigating officer visited the spot of incident and

made Panchanama. From the spot of incident, he

seized one plastic tin, used for the purpose of latrine.

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He recorded the statements of the witnesses such as

Laxmibai Danke (PW-2) - mother of the deceased,

Ukhardu Narayan Danke (PW-3) - uncle of the

deceased, Kaduba Bhika Danke (PW-4) - uncle of the

deceased. During the course of investigation, the

complainant produced four letters which he had

received from the accused persons. He seized those

letters. He arrested the accused. After completion of

investigation, the investigating officer prepared a charge

sheet and filed it in the Court of J.M.F.C. Pachora. In

due course, the case was committed to the Court of

Sessions. On committal of the case, charge under

sections 306, 498-A r/w 34 of IPC came to be framed

against the accused. All of them pleaded not guilty and

claimed to be tried. In this view, the case proceeded

against the accused.

3. In order to prove its case, prosecution has examined

five witnesses and proved certain documents. The defence of

accused appears to be of total denial and false implication at

the instance of the complainant and other family members.

On conclusion of the trial, the learned Additional Sessions

Judge has reached to the conclusion that prosecution has

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failed to prove the charge under section 498-A r/w 34 of IPC

against the accused Nos.1 to 3. However, the learned

additional Sessions Judge found accused No.1 alone to be

guilty of offence punishable under section 306 of IPC and

convicted him to undergo sentence as stated above. Being

aggrieved, the appellant has preferred this appeal on the

various grounds set out in the memo of appeal.

4. I have heard Mr. Wani, learned counsel for the

appellant and Mr. Patil, learned APP for respondent State and

carefully perused the record and proceedings.

5. Mr.Wani, learned counsel for the appellant assailed the

reasons and findings recorded by the trial Court with

contention that same are self-contradictory and based upon

misreading of evidence. He further submitted that the

reasons and findings recorded by the trial Court are perverse.

He has pointed out that the trial Court has observed that

prosecution has failed to prove that deceased was subjected

to any harassment. The evidence adduced by the prosecution

of alleged demand of money as well as wrist watch, the trial

Court has disbelieved the witnesses vis-a-vis story of

prosecution. While acquitted the accused under Section 498A

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of IPC, convicted the appellant for the offence punishable

under Section 306 of IPC based upon same evidence. The

learned Counsel submitted that once the trial Court has

reached to the conclusion that the prosecution has failed to

prove the guilt under Section 498A of IPC, the conviction of

appellant under Section 306 of IPC is not sustainable in law.

In this context, learned Counsel has referred and relied upon

the decision of the Apex Court in the case of Raja Babu vs

State of Madhya Pradesh1. He submitted that there is

absolutely no evidence to show that the appellant - accused

abetted commission of suicide by the deceased. The learned

Counsel submitted that presumption under Section 113A of

the Indian Evidence Act, 1872 is not attracted in the case for

the sole reason that there is no evidence as such to establish

harassment and demand by the appellant. By referring the

impugned judgment, the learned Counsel submitted that the

trial Court has convicted appellant only for the reason that

the deceased died within two years of her marriage. It is

pointed out that the trial Court has disbelieved prosecution

witnesses namely, Hari Bhika Danke (P.W.1) father of

deceased, Laxmibai Haribhan Danke (P.W.2) mother of

deceased, Ukhardu Narayan Danke (P.W.3) uncle of deceased, 1 2008(17) SCC 526;

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Kaduba Bhika Danke (P.W.4) uncle of deceased, who were

examined by prosecution to establish cruelty and demand on

the part of the present accused. But, the trial Court has

convicted the appellant by taking recourse to section 113A of

the Indian Evidence Act. He submitted that only for the

reason that death has occurred within two years of marriage,

presumption cannot be raised as to abetment of suicide by a

married woman unless the prosecution adduce evidence that

soon before her death, such woman had been subjected by

the accused to cruelty or harassment. By referring to

reasons and findings recorded by the trial Court, the learned

Counsel pointed out that the trial Court has observed that

prosecution has failed to prove harassment as well as demand

of dowry by accused - appellant, still convicted the appellant

- accused. He submitted that in absence of evidence of

harassment or demand of dowry, the trial Court has erred in

raising the presumption under Section 113A of the Indian

Evidence Act and convicting the appellant.

6. On the other hand, learned APP has supported the

judgment and order passed by the trial Court and submitted

that reasons and findings recorded by the trial Court are

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quite consistent with the evidence on record. By referring the

testimony of P.Ws.1 to 4, learned APP submitted that

prosecution has proved that there was demand made by the

accused to pay Rs.5000/- by father of the deceased. So also

on account of not giving wrist Watch in the marriage, the

deceased was subjected to ill-treatment and harassment. He

further submitted that the deceased was found to have

committed suicide within two years of her marriage. In the

background of the testimony of P.Ws.1 to 4, learned APP

submitted that the trial Court was fully justified in convicting

appellant for the offence punishable under Section 306 of IPC.

He further submitted that the offences punishable under

Section 498A and 306 of IPC are altogether different offences

and acquittal of appellant - accused of the offence punishable

under Section 498A of IPC, would not automatically result

into acquittal of accused of the offence punishable under

Section 306 of IPC.

7. If, we consider the judgment and order passed by the

trial Court which is impugned by way of appeal, then the

appellant - accused was tried for committing offences

punishable under Sections 306, 498A r.w. 34 of IPC along

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with co-accused Waluba Sandu Jadhav (accused No.2) and

Chandrakala @ Jijabai Waluba Jadhav (accused No.3), father

and mother of appellant - accused No.1. On conclusion of

trial, the trial Court has acquitted accused Nos.2 and 3. So

also the appellant - accused No.1 came to be acquitted of the

offence punishable under Section 498A of IPC. However, he

has been convicted for the offence punishable under Section

306 IPC.

8. If, we peruse the reasons and findings recorded by the

trial Court to convict appellant - accused for the offence

punishable under Section 306 of IPC, then the conviction is

mainly recorded on the basis of conduct of the appellant -

accused after deceased was found to be missing from house.

The relevant reasons and findings recorded by the trial Court

to convict appellant - accused for the offence punishable

under section 306 of IPC read, as under:

" When the deceased had left house assuming for a moment to attend the nature's call, was it not the duty of accused No.1 to go in search of her when she had not returned at home. Instead of searching her, accused No.2 after about 2 days wen at the place of complainant to inform that his daughter was missing. When legal obligation was cast upon the accused No.1 at least to inform to the parents of the deceased while she was

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missing, he did not do anything. That shows his guilty conscious. Even information was not given to the police about missing of the deceased Chhayabai on the material time, place & date. No plausible explanation has put forth by the side of accused persons as to how and when she left the house. On the contrary, accused No.2 made wilful mis-representation and wilfully concealed the fact of the suicide of the deceased Chhayabai in the well, situated in Anturli outskirt. Thus there appears instigation by wilful concealment of suicidal death of the deceased Chhayabai on the material time, place and date, on the part of accused No.1 when she was living in his company. Though the fact was well within the knowledge of accused No.1 that his wife did not return for a long time at home, he did not give information of the same to the parents of the deceased. The reason must be that he abetted the commission of her suicide. Having considered all the above facts and circumstances, coupled with improbable defence, I am of the considered opinion that the accused No.1 abetted the commission of her suicide for which he has to be held guilty u/s 306 of the I.P.C. Even the subsequent conduct of accused No.1 not remaining present for the last rites of the deceased at Pachora shows his guilty conscious. P.W.1 in clear terms has stated that accused No.1 & 3 were not present at the time of last rites of the deceased performed at Pachora, which is not seriously challenged by the side of defence. For the first time, the complainant on 6-4-98 learnt from one Nana Patil resident of village of the accused that dead body of Chhayabai was found in the well. P.W.2 also states that for funeral only accused No.2 was present. Having considered all these aspects of the matter, I am of the firm view that though accused No.1 was under legal obligation to inform to the parents of the deceased, he did nothing and thus instigated the abetment of suicide of the deceased. I answer this point accordingly."

9. Thus, if we consider reasons and findings recorded by

the trial Court, to convict appellant - accused for the offence

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punishable under Section 306 of IPC, then it can be safely

stated that conviction is based mainly on the inference drawn

by the trial Court as to conduct of the appellant - accused

after the deceased was found to be missing. There is no

reference to any other evidence adduced in the case to form

the basis to hold that the appellant - accused has aided and

abetted the commission of suicide by the deceased.

10. If, we consider the judgment and order passed by the

trial Court, then the trial Court has held that the prosecution

has failed to prove that the accused have acted in furtherance

of common intention and subjected deceased to cruelty and

thereby committed offence under Section 498A of IPC. While

dealing with Point No.1 formulated for consideration, the trial

Court has scrutinized the evidence as adduced in the case

and reached to the conclusion that there is no cogent,

convincing and reliable evidence to establish cruelty on the

part of accused within the meaning of word "cruelty" as

explained in Clause (a) or Clause (b) of Section 498A of IPC.

11. It is pertinent to note that the case of prosecution is

mainly based upon oral testimony of P.Ws.1 to 4 coupled with

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three letters at Exhs.17, 18 and 19, alleged to be written by

the appellant - accused to his father-in-law i.e. Hari Bhika

Danke P.W.1. The learned Additional Sessions Judge has

found the testimonies of Hari Bhika Danke (P.W.1), Laxmibai

Haribhan Danke (P.W.2), Ukhardu Narayan Danke (P.W.3)

and Kaduba Bhika Danke (P.W.4) are anyway helpful to

prove offence under Section 498A of IPC as well as section

306 of IPC against the accused. So far as the letters at

Exhs.17, 18, and 19 are concerned, the learned Additional

Sessions Judge observed that the prosecution has failed to

establish that the letters in question were written by the

appellant - accused and bears the signature of accused No.1.

It is further observed that the letter (Exh.19) appears to be

sent by accused No.2. It is further observed that even the

contents of letter nowhere disclose the commission of any act

on the part of accused No.1 so as to infer that the accused

has anyway abetted the commission of suicide by deceased.

Thus, neither the oral evidence adduced by prosecution nor

the letters at Exhs.17, 18 and 19 found sufficient to convict

the appellant. As stated above, the conviction is mainly based

upon the inference drawn by the trial Court on the basis of

conduct of the appellant - accused after deceased was found

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missing.

12. In my view, the reasons and findings recorded by the

trial Court to convict the appellant for the offence punishable

under Section 306 of IPC are not sustainable in law. There is

no cogent, convincing and clinching evidence to support the

conviction of the appellant for the offence punishable under

Section 306 of IPC. In my view, the reasons and findings

recorded by the trial Court are wholly based upon surmises

and conjectures and there is no evidence as such to establish

that the accused aided or abetted the commission of suicide

by the deceased.

13. It is quite settled position in law that in order to bring

the case within the purview of section 306 of IPC, there must

be a case of suicide and a person who is said to have abetted

the commission of suicide, must have played an active role by

an act of instigation or by doing certain act to facilitate the

commission of suicide. In order to sustain the charge under

Section 306 of IPC, the prosecution must prove that the act

was abetted by the accused. The word "abetment" employed

in section 306 of IPC has been defined under Section 107 of

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IPC which reads, as under:

"107. Abetment of a thing.- A person abets the doing

of a thing, who -

First- Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1- A person who by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."

14. Thus, upon plain reading of section 107 of IPC, it can

be said that a person abets the doing of thing, when - (1) he

instigates one person to do that thing; or (2) engages with one

or more other persons in any conspiracy for the doing of that

thing; or (3) intentionally aids, by any act or illegal omission,

the doing of that thing. The meaning of the word "instigate"

refers to an act to provoke, incite, urge or bring about

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persuasion to do any thing. If, we consider the case of the

prosecution in hand as against the appellant - accused, then

it is no where the case of the prosecution that appellant -

accused entered into any conspiracy with one or more

persons to abet the commission of suicide by the deceased.

The entire case of the prosecution based on allegations that

the accused aided and abetted commission of suicide by the

deceased by causing her ill-treatment, harassment,

humiliation and the ill-treatment caused to the deceased was

of such nature, which left her with no option except to commit

suicide.

15. In the case of Randhir Singh and another vs State of

Punjab2, the Apex Court has observed that abetment involves

a mental process of instigating a person or intentionally

aiding that person in doing of a thing. Therefore, the

intention of a person is of vital importance while analyzing the

evidence to ascertain whether the act alleged against the

accused, even if proved, makes out a case of nature that such

person has committed those acts or omission with an

intention to drive deceased to commit suicide. While

assessing such evidence, the Court is also expected to take 2 2004(13) SCC 129;

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into account the act committed by accused immediately prior

to commission of suicide by the deceased. The Court is

expected to be extremely careful in assessing the facts and

circumstances and the evidence adduced in the case to

ascertain as to whether cruelty meted out to victim in fact,

induced her to end life by committing suicide. The Court is

also expected to analyse evidence to see that a victim

committing suicide was hypersensitive to ordinary petulance,

discord and differences in domestic life, quite common to the

society to which the victim belonged. The Court is expected to

satisfy itself that the nature of the evidence is such that the

deceased was left with no alternative except to commit

suicide.

16. No doubt, in a case relating to offence punishable under

Section 306 of IPC, normally direct evidence would not be

available and it is the circumstances in which death took

place, the conduct of the accused and nature of the crime is

expected to be taken into account. It is, therefore, necessary

that in such type of cases, the Court is expected to examine

the facts and circumstances of the case very carefully and

also assess the evidence before it in order to find out whether

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cruelty and harassment meted out to the victim had left the

victim with no other alternative but to put an end to her life.

There must be proof of direct or indirect incitement to the

commission of suicide. The conviction under Section 306 of

IPC cannot be recorded merely on the basis of allegation of

harassment without any positive action, proximate to the time

of occurrence, on the part of accused which led or compelled

a person to commit suicide.

17. As observed, the learned Judge of the trial Court has

found the testimonies of P.Ws.1 to 4 coupled with letters at

Exhs.17,18 and 19, as not sufficient to hold that the deceased

was subjected to ill-treatment and harassment by the

appellant - accused. If the trial Court has reached to such

conclusion, then in absence of any evidence that deceased

was ill-treated and harassed, the finding of conviction under

Section 306 of I.P.C. could not have been recorded. The

Courts are expected to record the findings based upon

evidence adduced in the matter and not merely on the basis

of its own assumption, presumption, having no foundation on

record. The reasons and findings to be recorded must have

basis on record to sustain such conclusions. In my view, the

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reasons and findings recorded by the trial Court in the instant

case are recorded merely on the basis of assumption and

presumption drawn by the trial Court without any evidence to

that effect on record. The conviction is mainly based upon

inference drawn on the basis of conduct of accused. It is

pertinent to note that as per prosecution case, deceased was

found to be missing from 4.4.1998. Hari Bhika - P.W.1 father

of the deceased and complainant in the case has categorically

deposed that on 5.4.1998 accused No.2 - father-in-law of

deceased visited his house along with two persons to enquire

as to whether Chhya had come to his house and told that she

was missing since yesterday i.e. 4.4.1998. The dead body of

the deceased was recovered from a well on 6.4.1998. If

deceased was found to be missing on 4.4.1998 and on

5.4.1998, accused No.2 visited house of her father in search

of deceased, then such conduct no way leads to draw

inference that appellant - accused No.1 had concealed the

fact of missing of Chhaya from her parents and failed to

immediately report them that their daughter was missing

from home. In natural course, whenever any person is found

to be missing, the family members, relatives and friends of

such person make efforts to search such person by making

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inquiry with neighbours, friends and persons in the vicinity

and near ones and thereafter they try to find out whereabouts

of such person by contacting relatives of such person. The

visit of accused No.2 i.e. father-in-law of deceased to her

parents in search of the deceased on the next day of her

missing and informing them that their daughter is missing, is

quite natural conduct on the part of accused and there is

nothing unusual in their conduct to draw inference and

convict the appellant - accused. So also there is no evidence

to show that the appellant - accused No.1 had not attended

funeral so as to drawn inference that he abetted commission

of suicide. In this view, the reasons and findings recorded by

the trial Court are perverse and not sustainable in law.

18. The learned APP for the State has argued that the

deceased was found to have committed suicide within two

years of marriage and, therefore, there is presumption under

Section 113A of the Evidence Act. In counter to the

submissions advanced, learned Counsel for the appellant has

contended that in order to attract presumption under Section

113A of the Evidence Act, prosecution has to first establish

that deceased was subjected to cruelty. He submits that the

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presumption under Section 113A of the Evidence Act is not

automatically attracted in an offence punishable under

Section 306 of IPC. In support of the submissions advanced,

learned Counsel has placed reliance on the decision of Apex

Court in case of Raja Babu (supra).

19. In my view, only for the reason that the deceased found

to have committed suicide within a period of seven years of

her marriage, presumption under Section 113A of the

Evidence Act is not attracted. As discussed, the trial Court

held that the prosecution has failed to prove that the

deceased was treated with cruelty by the accused. The

accused have been acquitted of the offence punishable under

Section 498A r/w 34 of IPC. The trial Court has observed

that testimonies of P.Ws.1 to 4 - the witnesses examined to

prove the case of prosecution, found not worthy to be relied

upon to sustain conviction. In absence of any evidence that

the deceased was subjected by her husband or in-laws to

cruelty, presumption under Section 113A of the Evidence Act

cannot be attracted in the case in hand.

20. In case of Raja Babu (supra) referred to and relied

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upon by learned Counsel for the appellant, the Apex Court

has observed in paragraphs 19 and 20, as under:

"19. Under Section 113-A of the Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband or any relative of her husband had subjected her to cruelty. Section 113-A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must 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.

20. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh reported in (2001) 9 SCC 618 wherein this Court observed:

"12. 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

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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 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

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disproved, or may call for proof of it.' "

21. In the case of Mangat Ram v. State of Haryana 3, the

Apex Court has dealt with the purport of section 113-A of the

Evidence Act and in para 16, the Court has observed, as

under:

"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

3 AIR 2014 SC 1782;

543.01crapl

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."

22. As discussed in the foregoing paras, conviction of

appellant was purely based upon inference drawn by the trial

Court on the basis of conduct of the accused after deceased

was found to be missing from home. It is no where held by

the trial Court that prosecution has proved that deceased was

subjected to cruelty by her husband or in-laws immediately

prior to commission of suicide by the deceased. So also the

trial Court has not recorded that the deceased was subjected

to cruelty of a nature to drive the woman of ordinary

prudence, sound mental state and intellectual capacity to

commit suicide. There is no evidence as such to draw an

inference that the appellant - accused, at any time, intended

the deceased to commit suicide.

543.01crapl

23. Even if, we accept entire case of the prosecution in its

entirety and consider the testimonies of P.Ws.1 to 4, still no

case is made out to infer that the appellant - accused carried

any intention that deceased should commit suicide. In the

light of case of prosecution at the most, it can be said that

there was matrimonial discord in between the deceased and

appellant. The accused used to blame the deceased that she

was not able to do the household work. On that count, there

used to be some quarrel between the accused and deceased.

It is further case of the prosecution that the accused used to

make demand of money. It is pertinent to note that it has

come on record that the act of suicide was committed on

6.4.1998. In the previous month, the deceased along with

appellant - accused No.1 had come to house of P.W.1 Hari

Bhika and they stayed there for four days and attended

marriage in their relation. It has also come on record that the

deceased was seriously ill and accused had intimated her

parents about the health condition of their daughter.

Therefore, even if, we take the case of prosecution in its

entirety to be true and correct, still it cannot be inferred that

accused acted with an intention to aid or instigate the

deceased to commit suicide.

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24. In view of discussion made above, conviction of

appellant for the offence punishable under Section 306 of IPC

is not sustainable. The reasons and findings recorded by the

trial Court are perverse as same are found to be based on

surmises and conjectures having no foundation on record. In

this view, the appeal deserves to be allowed.

25. Accordingly, appeal is allowed in terms of prayer clause

(B). The judgment and order passed by the 1 st Ad hoc

Additional Sessions Judge, Jalgaon in Sessions Case No.29 of

1999 convicting appellant for the offence punishable under

Section 306 of IPC is set aside. Appellant - accused is

acquitted of the offence punishable under Section 306 of IPC.

Fine amount if deposited, the same be refunded to the

appellant. Bail bonds of the appellant - accused stands

discharged.

[ V.L. ACHLIYA, J ]

Kadam.