Bombay High Court

State Of Maharashtra vs Harisarvottam Govind Joshi And ... on 21 June, 2017

Bench: S.S. Shinde

                                                                 cria342.99
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.342 OF 1999


 The State of Maharashtra,
 Through Police Station Kasarshirsi,
 Tq-Nilanga, Dist-Latur.
                                 ...APPELLANT 
        VERSUS             

 1) Harisarvottam s/o Govind Joshi,
    Age-28 years,

 2) Govind Madhavracharya Joshi,
    Age-62 years,

 3) Sow. Kusum Govind Joshi,

 4) Ramkrishnacharya s/o Madhavacharya
    Joshi,

 All R/o- Aurad Shahajani,
     Tq-Nilanga, Dist-Latur.   
                                 ...RESPONDENTS
                                 (Ori. Accused)

                      ...
   Mr. R.V. Dasalkar, A.P.P. for  Appellant -State.
   None present for Respondent Nos. 1 to 4.       
                      ...

               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.

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DATE OF RESERVING JUDGMENT : 7TH JUNE,2017.

DATE OF PRONOUNCING JUDGMENT: 21ST JUNE, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is directed against the

Judgment and order dated 31st May, 1999, passed by

the Additional Sessions Judge, Nilanga in Sessions

Case No.34 of 1998 (Previous Case No.184 of 1997),

thereby acquitting Respondent Nos.1 to 4 (original

accused Nos. 1 to 4), from the offences punishable

under Section 304-B, 498-A, 306 read with 34 of

the Indian Penal Code (for short "I.P. Code").

2. The prosecution case in nut-shell, is as

under:-

A) A marriage of victim Archana was

solemnized with accused No.1 - Harisarvottam

Govind Joshi at Udgir in the month of May, 1995.

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accused Nos. 2 and 3 namely Govind Joshi and Kusum

Joshi are parents of accused No.1 - Harisarvottam.

Accused No.4 - Ramkrishnacharya is uncle of

accused No.1 Harisarvottam. The husband and his

parents were residing together. Archana was being

ill-treated by the accused persons in connection

with demand of colour T.V. and of Rs.25,000/-. She

was also being subjected to beating by her husband

and parents of husband, on the ground that she

could not conceive. Moreover, all the accused

persons used to beat and humiliate Archana on

trifle matters like cooking of excess food, non-

cooking of food properly etc. They also used to

cause her to rub her nose on the ground and to beg

pardon for such trifle matters in presence of

neighbours and relatives.

B) On 30th December, 1996 in the morning

accused No.1 Harisarvottam asked Archana to serve

him meals, when she was fetching water. Therefore,

she asked him to get himself serve the food. On

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such reply accused No.1 Harisarvottam got annoyed

and beat her. Because of such beating and routine

cruel treatment, Archana poured kerosene on her

person and set herself on fire.

C) Accused No.1 Harisarvottam, on the very

same day, took her to Civil Hospital, Latur and

admitted her in the hospital. Concerned Medical

Officer intimated the matter to the Police

Station, Gandhi Chowk, Latur and accordingly first

dying declaration of Archana came to be recorded

by P.H.C. Narayan on 30th December, 1996 itself. A

second dying declaration was recorded by police on

31st December, 1996 through Executive Magistrate,

Latur.

D) On 5th January, 1997 Ramrao, father of

Archana came to know from her about the details of

the occurrence dated 30th December, 1996. Hence on

6th January, 1997 Ramrao lodged First Information

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Report Exhibit-57 to Police Station Kasarshirsi

specifying therein details of cruel treatment

which was being given to Archana by her husband,

parents and uncle of her husband, and also

specified therein that all the accused persons

poured kerosene on the person of Archana after

beating her and set her on fire. On the basis of

said First Information Report, a crime was

registered by P.S.O. of Police Station,

Kasarshirsi at Cr. No.3 of 1997 for an offence

punishable under Sections 307, 323, 498-A, 34 of

the I.P. Code and set criminal law in motion.

E) The Investigating Officer Mr. Walchand

Munde, P.S.I. of Police Station, Kasarshirsi

recorded statement of Archana by visiting Civil

Hospital, Latur on 7th January, 1997. On the very

day, he got recorded dying declaration of Archana

through Mr. Pore, a Special Judicial Magistrate.

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F) The Investigating Officer visited the

place of occurrence on 8th January, 1997 and drawn

panchnama of place of occurrence in presence of

two panchas and also seized partly burnt clothes

i.e. saree, petticoat, blouse of Archana, as well

as one container containing 4 litres of Kerosene

and also recorded statements of witnesses.

G) On 15th January, 1997 Archana died, hence

inquest panchnama was conducted on the very day

and dead body was referred for autopsy. The

Medical Officer concerned expressed his opinion

about a probable cause of death as "shock due to

56% burns".

H) Accused persons were arrested during the

course of investigation. On completion of

investigation, sufficient evidence was available

on record for commission of offences punishable

under Sections 498-A, 304-B, 323, read with 34 of

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the I.P. Code. Hence charge-sheet was filed

against the accused persons in the Court of

J.M.F.C., Nilanga on 22nd April, 1997. The

J.M.F.C., Nilanga has committed the case to the

Court of Sessions in due course.

I) The trial Court framed charge against

accused on 31st October, 1998 for the offences

punishable under Sections 304-B read with 34 of

the I.P. Code, 306 read with 34 of the I.P. Code

and also for the offence under Section 498-A read

with 34 of the I.P. Code. A charge was explained

against all the accused persons. The accused

persons pleaded not guilty and claimed to be

tried. As per the defence of the accused, Archana

was sensitive and short tempered lady by nature

and her death was a result of her own act.

3. To prove the case, the prosecution has

examined in all seven witnesses. After recording

the evidence and conducting full fledged Trial,

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the Trial Court acquitted all the accused persons

from the offence punishable under Section 304-B,

498-A, 306 read with 34 of the I.P. Code. Hence

this Appeal by the State.

4. Learned A.P.P. appearing for the State

invites our attention to the evidence of PW-1

Vinayak, PW-2 Upendra, PW-3 Jankabai and PW-4

Ramrao and submits that if their evidence is read

in its entirety, then it unequivocally indicates

that there was ill-treatment and harassment to

Archana at the hands of the accused. It is

submitted that Archana committed suicide due to

instigation and abetment by the accused. He

submits that there was no reason for Archana to

commit suicide other than ill-treatment and

harassment at the hands of the accused. He further

invites our attention to four dying declarations

given by Archana and submits that in the dying

declarations Archana has specifically stated that

due to harassment and ill-treatment at the hands

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of the accused she committed suicide. Therefore,

he submits that the Appeal may be allowed.

5. We have given careful consideration to

the submissions of the learned A.P.P. appearing

for the State. With his able assistance we have

perused the entire notes of evidence, so as to

find out whether the findings recorded by the

trial Court are in consonance with the evidence

brought on record or otherwise.

6. Prosecution examined PW-1 Vinayak

Martandrao Kulkarni, uncle of Archana, PW-2

Upendra Dattatraya Kulkarni, husband of Archana's

sister, PW-3 Jankabai Ramrao Kulkarni, mother of

Archana and PW-4 Ramrao Martandrao Kulkarni,

father of Archana, on the point of demand and ill-

treatment, harassment to Archana at the hands of

the accused. All these four witnesses have deposed

that when they visited the hospital, Archana gave

oral dying declaration to them.

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7. Prosecution examined PW-5 Narayan

Bhujangrao Ranzunjare, Police Head Constable, who

recorded dying declaration of Archana (Exhibit-64)

on 30th December, 1996. PW-6 Shashikant Janardhan

Pore, Special Judicial Magistrate recorded dying

declaration of Archana (Exhibit-69) on 7th

January, 1997. PW-7 Walchand Pandharinath Munde,

P.S.I. was the Investigating Officer.

8. Upon perusal of the evidence of the

prosecution witnesses on the point of alleged

harassment/ ill-treatment and unlawful demand,

PW-4 Ramrao Martandro Kulkarni, father of Archana

(deceased), in his deposition, stated that

marriage of Archana with accused No.1

Harisarvottam was performed in the month of May,

1995 and after marriage Archana had been to her

matrimonial house at Aurad-Shahajani. It appears

that after one month of marriage he visited Aruad-

Shahajani and the accused/Respondents told him

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that Archana was not properly performing her

household duties and they also complained about

non-giving of certain articles in the marriage

which were remained to be given by PW-4. It

appears that accused told him about inexperience

of Archana in cooking the food and further

complained that she was cooking excess food. On

the whole it appears that such narration by the

accused was of trifle nature except that they

asked PW-4 to give certain articles which were

remained to be given in marriage. This is one part

of the evidence of PW-4.

9. Evidence of PW-4 to the extent of

unlawful demand of Rs.25,000/- and set of colour

television by the accused persons can be

considered as second part of ill-treatment and

harassment given by the accused to Archana. If the

evidence of other prosecution witnesses on the

point of alleged harassment, ill-treatment and

unlawful demand of Rs.25,000/- and set of colour

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television is considered, more or less they have

also stated like PW-4 in their evidence before the

Court. So far actual incident dated 30th December,

1996 of pouring kerosene by Archana on her person

and setting ablaze herself, according to PW-1 to

PW-4, the same was on account of non-fulfillment

of demand of Rs.25,000/- and set of colour

television. All these four witnesses have stated

that Archana told them that due to routine ill-

treatment given to her by the accused, she poured

kerosene on her person and set herself ablaze. If

the evidence of PW-4 Ramrao and PW-3 Jankabai,

father and mother of Archana is considered, they

have stated that because of routine ill-treatment

Archana had poured kerosene on her person and told

her husband that she would get herself burnt. It

is further stated that husband of Archana had

thrown match box on the person of Archana which

was lying on the platform of kitchen. If the

evidence of these four prosecution witnesses i.e.

PW-1 to PW-4, on the point of harassment, ill-

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treatment and unlawful demand is considered in its

entirety, it suffers from omissions,

exaggerations, contradictions and improvements and

makes it unbelievable to rely upon the same. If

the cross-examination of PW-4 Ramrao is considered

carefully, PW-4 admitted that on 30th December,

1996 nothing was disclosed to him by his daughter

regarding the occurrence. When he was confronted

with the document at Exhibit-57 which was scribed

by him, he fairly stated that nothing to the

effect that all the accused persons had subjected

Archana to beating and poured kerosene and set her

on fire was stated to him by Archana. He stated

that Exhibit-57 was scribed by him on the basis of

suspicion only. As already discussed, the evidence

of PW-1 to PW-4 can be divided into two parts,

firstly harassment by the accused on account of

trifle grounds of not properly performing the

daily work in the house such as cooking excess

food, wastage of remaining food and asking her by

the accused to beg pardon by rubbing nose in front

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of relatives in case of wastage of food, and

secondly on account of ill-treatment and non-

fulfillment of unlawful demands by the accused,

Archana poured kerosene on her person and set

herself ablaze, and according to PW-3 and PW-4

accused No.1 Harisarvottam threw match box on her

person, which is not stated by other two

witnesses.

10. So as to appreciate the charge framed for

the offences punishable under Section 304-B read

with 34 of the I.P. Code and also Section 306 read

with 34 of the I.P. Code is concerned, unless

ingredients of said Sections and Section 107 of

I.P. Code are attracted, merely because there was

some sort of harassment on account of trifle

grounds by the accused, it may not be appropriate

to reverse the acquittal of the accused. In order

to appreciate the aforesaid aspect, it would be

apt to make reference to four dying declarations

of Archana. Dying declaration at Exhibit-64 was

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recorded by PW-5 Narayan Bhujangrao Ranzunjare,

Police Head Constable on 30th December, 1996.

Second dying declaration at Exhibit-71 was

recorded by Taluka Executive Magistrate on 31st

December, 1996. Third dying declaration at

Exhibit-69 was recorded by PW-6 Shashikant

Janardhan Pore, Special Executive Magistrate on

7th January, 1997. Fourth dying declaration at

Exhibit-72 was recorded by PW-7 Walchand

Pandharinath Munde, Investigating Officer on 7th

January, 1997.

(i). On 30th December, 1996 statement of

Archana (Exhibit-64) was recorded by PW-5 Narayan.

In said dying declaration, she has stated about

incident of 30th December, 1996 that at about 9.00

a.m. her husband - accused No.1 Harisarvottam

asked why she has not cooked the food and in reply

she stated that there was some delay in cooking

the food on that day, and on that count there was

some quarrel between the couple. On account of

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such quarrel, Archana got angry and in ager she

poured kerosene on her person and set herself

ablaze. She specifically stated that she herself

poured kerosene on her person and took the match

box which was lying on the kitchen platform and

set herself ablaze. She has specifically stated

that when she shouted, her husband and neighbourer

Shantabai Vasantrao Kulkarni poured water on her

person and extinguished the fire. Husband took her

to the hospital by private vehicle at Aurad

Shahajani and thereafter she was shifted to the

Government Hospital at Latur. Admittedly, Archana

survived for fifteen days after said incident and

the prosecution had occasion to record her four

dying declarations. In the dying declaration at

Exhibit-64, as discussed herein above, she has not

stated anything about any harassment, ill-

treatment or unlawful demand either by the husband

or by other co-accused except that on the ground

of not cooking the food within time, there was

some quarrel between herself and her husband

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Harisarvottam.

. Said dying declaration at Exhibit-64 has

been proved by the prosecution by examining PW-5

Narayan Bhujangrao Ranzunjare. In his deposition,

PW-5 stated that he recorded statement of Archana

on 30th December, 1996 in between 1.00 p.m. to

1.30 p.m. It was stated by Archana that on the

ground of non-cooking of food within time, there

was quarrel between herself and her husband and in

anger she poured kerosene on her person and set

herself ablaze. He has specifically stated in his

evidence that contents of statement were read over

to Archana and she signed the said dying

declaration. During cross-examination he stated

that she was able to speak and was conscious to

give such statement and he got satisfied that

patient was conscious and in a position to give

the statement.

(ii). It appears that on 31st December,

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1996 statement of Archana was recorded at about

10.45 a.m. by Taluka Executive Magistrate. Said

dying declaration is at Exhibit-71, which is in

question-answer form. It appears that when she was

asked about the incident, she stated the date and

time of the incident and that in anger she poured

kerosene on her person and set herself ablaze. At

the time of incident, only husband and herself

were present. Her husband wanted to go to the

agricultural field and therefore he asked Archana

why she has not cooked the food yet and said that

he will go to the agricultural field without

having food. There was some quarrel. Archana got

angry and poured kerosene on her person and set

herself ablaze. Husband poured water on her person

and extinguished the fire and she was taken to the

hospital by the husband. She stated that she

herself poured kerosene on her person and set

herself ablaze and nobody was responsible for the

said incident. It appears that she has further

stated that there was no any dispute with anybody

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and in heat of anger she herself poured kerosene

on her person and set herself ablaze. It appears

that though the prosecution did not examine the

said witness, the defence examined the said

witness and the said dying declaration Exhibit-71

was considered by the trial Court. If the dying

declaration at Exhibit-71 is considered, she has

not attributed anything against any accused except

quarrel took place on that day between herself and

accused No.1 Harisarvottam.

(iii). It appears that another dying

declaration of Archana, Exhibit-69, was recorded

on 7th January, 1997 by the Special Executive

Magistrate, Latur i.e. PW-6 Shashikant Janardhan

Pore. In the said dying declaration, she stated

that her marriage was performed one and half year

before the incident dated 30th December, 1996.

There was some harassment by father-in-law and

mother-in-law on account of not cooking the food

properly. She further stated that her husband

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wanted to go to the agricultural field on 30th

December, 1996 and there was some delay in cooking

the food. Her husband told her to pack his tiffin

immediately and he uttered some abusive words. In

reply, Archana also scolded her husband. When this

quarrel was going on, husband started to proceed

to agricultural field, however she caught hold his

hand and asked him to have the meal and there was

quarrel between the couple. However, her husband

had meal and when he went in bathroom to wash his

hands, she poured kerosene on her person and set

herself ablaze. On her shouts, husband immediately

rushed to her and poured water on her person and

extinguished the fire. Husband told her not to

worry, and he will take her immediately to the

hospital, and accordingly she was taken to the

hospital of Dr. Kukade, by her husband. She stated

that other co-accused are also causing some

harassment to her on account of cooking excess

food and also on an allegation of wastage of food.

She has specifically stated that, she had no any

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grievance or grudge against the husband, and she

has grievance against her father-in-law and

mother-in-law. The said dying declaration was

recorded one week after recording dying

declaration at Exhibit-64, which was recorded on

30th December, 1996. If the contents of both the

dying declarations at Exhibit-64 and Exhibit-69

are conjointly read, in the first dying

declaration at Exhibit-64 neither she has

mentioned about any harassment or ill-treatment at

the hands of husband or co-accused except quarrel

took place between the couple on account of non-

cooking the food within time. In dying

declaration at Exhibit-69, as already observed,

she has mentioned about the harassment at the

hands of husband and other co-accused on trifle

grounds or for non performing her duties in the

house promptly. In both these dying declarations,

there is no mention of an unlawful demand of

Rs.25,000/- and set of colour television.

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(iv). Fourth dying declaration was also

recorded on 7th January, 1997 by Investigating

Officer PW-7 Pandharinath Munde, which is at

Exhibit-72. Upon careful perusal of the contents

of the said dying declaration, there is no

signature of the declarant though it is stated

that Archana was conscious and said statement was

read over to her. It appears that in said dying

declaration, Archana stated about harassment and

ill-treatment at the hands of accused persons on

trifle grounds. However, so far incident dated

30th December, 1996 is concerned, she has again

reiterated that in the heat of anger she herself

poured kerosene on her person and set herself

ablaze. There is no any overt-act attributed to

husband or any other accused. It is true that if

the contents of the said dying declaration are

read in its entirety, she has narrated about the

harassment by the accused on account of not

cooking food within time, cooking excess food and

wastage of food etc. As already observed, neither

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the said statement is signed by Archana nor there

is any thumb impression. Be that as it may, even

if the contents of the said dying declaration are

taken as it is, at the most it can be observed

that there was quarrel between Archana and accused

No.1 on account of trifle grounds. In all the four

dying declarations, she has not stated about

unlawful demand of Rs.25,000/- and set of colour

television and on that count there was harassment

and ill-treatment at the hands of the accused.

11. If the contents of all the dying

declarations are read conjointly, there is no any

whisper about unlawful demand of Rs.25,000/- and

set of colour television and there was harassment

and ill-treatment at the hands of the accused on

that count. Therefore irresistible conclusion is

that the evidence of prosecution witnesses i.e.

PW-1 to PW-4 that there was oral dying declaration

to them and Archana told them about ill-treatment

on account of unlawful demands, deserves no

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consideration.

12. In the light of discussion in foregoing

paragraphs, the evidence brought on record by the

prosecution is not sufficient to attract the

cruelty as contemplated under the provisions of

Section 498-A of the I.P. Code. In absence of

proving an unlawful demand for any property or

valuable security or is on account of failure by

wife or any person related to her to meet such

demand, harassment on account of same has not been

proved by the prosecution in as much as, as

already observed Archana in her four dying

declarations at Exhibit-64, Exhibit-69, Exhibit-71

and Exhibit-72 has not stated single word about

unlawful demand of Rs.25,000/- and set of colour

television. Therefore, the cruelty and harassment

of the woman as contemplated under the provisions

of Section 498-A of the I.P. Code is not proved by

the prosecution. In that view of the matter charge

for the offence punishable under Section 498-A

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read with 34 of the I.P. Code shall fail. We do

not find any perversity in the findings recorded

by the trial Court while dealing with the

aforesaid charge for the offence punishable under

Section 498-A read with 34 of the I.P. Code.

13. In the present case charge was also

framed for the offence punishable under Section

304-B read with 34 of the I.P. Code. The

provisions of Section 304-B of the I.P. Code reads

as under:-

"304-B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

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Explanation- For the purposes of this sub- section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

14. In the light of discussion in foregoing

paragraphs that the prosecution failed to prove

cruelty or harassment by the Respondents- accused

in connection with any demand for dowry, an

inevitable conclusion is that the findings of

acquittal recorded by the trial Court deserves no

interference.

15. The Hon'ble Supreme Court had occasion to

consider the scope of Section 304-B of the I.P.

Code in the case of Satvir Singh and others vs.

State of Punjab and another1. In Para 14 of the

Judgment, it is held that :-

1 (2001)8 S.C.C. 633

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"14. The essential components of Section 304-B are: (i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage. (ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under Section 304-B. To be within the province of the first ingredient the provision stipulates that "where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstance". It may appear that the former limb which is described by the words "death caused by burns or bodily injury" is a redundance because such death would also fall within the wider province of "death caused otherwise than under normal circumstances". The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence."

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16. The Supreme Court in the case of Rajinder

Singh vs. State of Punjab2, in Para 23 observed as

under:

"We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304B."

17. It is true that in the facts of the

present case, death of Archana occurred within

seven years from the date of marriage and death

occurred otherwise than under normal

circumstances. However, as already discussed in

all the four dying declarations at Exhibit-64,

2 AIR 2015 S.C. 1359

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Exhibit-69, Exhibit-71 and Exhibit-72 of Archana,

there is nothing to suggest that soon before the

death or Archana she was subjected to cruelty and

harassment in connection with demand of dowry by

the accused.

18. The charge was also framed for the

offence punishable under Section 306 read with 34

of the I.P. Code. So as to appreciate the said

charge in the light of evidence brought on record

by the prosecution, it will have to be seen

whether the ingredients of Section 107 and Section

306 of I.P. Code are attracted in the facts of the

present case and then only it is possible to hold

that alleged offence under Section 306 of the I.P.

Code is disclosed against the Respondents-accused.

The prosecution has not brought on record cogent

and convincing evidence so as to prove that within

the proximity of alleged incident dated 30th

December, 1996 the Respondents-accused

abetted,intentionally aided or instigated in

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alleged commission of suicide by Archana.

19. The Supreme Court, in recent Judgment in

the case of Heera Lal and another vs. State of

Rajasthan (Criminal Appeal No.790 of 2017) decided

on 24th April, 2017, in Para 6 to 10 held thus:

"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.

7. This Court in an illuminating

Judgment in Ramesh Kumar vs. State of

Chhattisgarh (2001) 9 SCC 618 has stated

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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

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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

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Act, which says - "Whenever it is provided by this Act 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".

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10. 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."

20. Therefore, keeping in view the evidence

brought on record by the prosecution and the

exposition of law in the aforementioned Judgments

by the Supreme Court, in the present case in

absence of any evidence on record suggesting any

instigation, abetment or aid on the part of the

Respondents-accused in commission of pouring

kerosene on her person by Archana and setting her

ablaze, it will have to be held that the alleged

office under Section 306 of the I.P. Code is not

disclosed.

21. In the light of discussion in foregoing