ORDER
M.S.A. Siddiqui, J.
1. The deceased Parvati was married to the accused Anil Kumar on 5.12.1992. On the night intervening 9th/10th April, 1994, within two years of her marriage, Parvati committed suicide in her matrimonial home. As per prosecution case, from the very beginning Parvati had an unhappy married life because of the accused persons constantly maltreating and harassing her, which ultimately drove her to commit suicide. On 10.4.1994, the S.D.M., after receiving intimation of the alleged incident, came to the spot recorded the statement of the deceased’s brother Man Mohan and direct- ed registration of the case under Sections 498-A/304-B I.P.C. Pursuant to the said direction, FIR No. 138/94, under Sections 498-A/304-B I.P.C. was registered at the Police Station Tilak Marg. Investigation pursuant thereto culminated in submission of a charge-sheet against the accused persons. On 15.1.1998, the Additional Sessions Judge, New Delhi framed charges under Sections 304-B/498-A I.P.C. against the accused persons. Aggrieved thereby, the accused persons have come up in revision before this Court.
2. Learned counsel for the petitioners contended that the impugned order of framing the charges has not only resulted in manifest injustice meted out to the petitioners but the same is patently illegal, improper and unjustified inasmuch as the materials collected by the prosecuting agency does not make out any offence against the accused persons.
3. In the instant case, the learned Additional Sessions Judge has framed charges under Sections 304-B/498-A I.P.C. against the petitioners. Section 304-B I.P.C. provides that 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 and relative shall be deemed to have caused her death. Section 113-B of the Evidence Act lays down that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before the death such woman had been subjected to cruelty or harassment for, or in connection with any demand for dowry, the Court shall presume that such person had caused the “dowry death”.
4. It is undisputed that the accused Anil Kumar is the husband of the deceased Parvati and that the accused Mahabir Singh is the father and the accused Smt. Poonam is the sister of the accused Anil Kumar. It is also undisputed that the deceased Parvati died within two years of her marriage at the residence of her husband. The deceased died due to asphyxia on account of hanging, which clearly shows that she died otherwise than under normal circumstances. I am, therefore, of the view that even if she had committed suicide by hanging, still the death comes within the scope of Section 304-B IPC, if it is shown that she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry. The impugned order reveals that the learned Addition- al Sessions Judge has relied upon the statements of the deceased’s mother Laxmi and brother Man Mohan for framing the charge under Section 304-B IPC against the accused persons. Surprising, both the witnesses have unequivocally stated in their case diary statements that the deceased’s in-laws had never raised any demand for dowry. Their statements are also conspicuous by the absence of any dowry demand raised by the deceased’s husband.
5. As noticed earlier, the first premise stands satisfied in this case that the death of the deceased took place within seven years of her marriage. The second premise that the deceased died due to asphyxia on account of hanging is a factum which has not been disputed. The third and most vital ingredient of Section 304-B I.P.C. is totally missing in this case. In order to satisfy the third ingredient, a plea is made to resort to the legal presumption envisaged in Section 113-B of the Evidence Act. It is imperative, for invoking the legal presumption under Section 113-B of the Evidence Act to show that soon before her death she was subjected to cruel- ty or harassment for or in connection with any demand for dowry. In the present case, case diary statements of Smt. Laxmi and Man Mohan clearly show that the deceased’s husband or in-laws never raised any dowry demand. In view of the statements of the said witnesses, it is not permissible to take recourse to the legal presumption under Section 113-B of the Evidence Act. Thus, in my view, the learned Additional Sessions Judge has committed a manifest illegality in framing the charge under Section 304-B/34 I.P.C. against the accused persons.
6. It is significant to mention that the case diary statements of Smt. Laxmi and Man Mohan read along with the letters written by the deceased clearly show that the deceased Parvati was highly emotional and sensitive woman. She got the shock of her life when due to ill-treatment by her husband and in laws she found that all her dreams had been shattered to pieces after marriage leaving her a dejected, depressed and disappointed woman, which ultimately led her to end her life. This possibility is spelt out from her diary produced in the case. This diary contains letters writ- ten by the deceased and they bring out with telling effect the distressed life that she was leading almost from the day of her marriage with the accused Anil Kumar. It further shows that the married life of the deceased lacked connubial felicity and was marked by constant bickerings, the cause for this discard being the addiction of the accused Anil Kumar to liquor. The cruelty or torture administered to a woman sometimes manifests itself in various forms. To begin with, it might be mental torture and then it may assume the form of physical torture. In Pawan Kumar Vs. State of Haryana, , it was held that cruelty or harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of Sections 304-B and 498-A I.P.C. It was also held that wilful conduct means conduct wilful- ly done; this may be inferred by direct or indirect evidence which could be construed to be such. There is nothing on record to show or suggest that the deceased had a suicidal tendency. The fact that the deceased committed suicide within two years of her mar` will go to show that she would not have acted in that manner unless she had felt instigated to commit suicide by the ill-treatment and harassment caused to her by the accused persons. Thus, the aforesaid circumstances clearly make out a case under Sections 306/498-A/34 I.P.C. against the accused persons.
7. For the foregoing reasons, the revision is partly allowed and the charge under Section 304-B IPC framed against the accused persons is quashed. The learned Additional Sessions Judge is directed to frame a charge under Section 306 I.P.C. against the accused persons in addition to the charge under Section 498-A I.P.C. already framed against them. Before I part with this order, I would like to make it clear that nothing stated herein shall be construed as an expression of opinion on merits of the case. Parties are directed to appear before the trial court on 24.12.1999.