JUDGMENT
R.S. Garg, J.
1. The appellant being aggrieved by the judgment D/- 7-3-1999 passed in Sessions Trial No. 199/94 by the learned First Addl. Sessions Judge, Baloda Bazar convicting the appellant for offence punishable under Section 306,1.P.C. and sentencing him to undergo R.I. for 10 years and pay fine of Rs. 5000/-, in default of payment of fine to undergo R.I. for one year, has filed this appeal.
2. The prosecution case in brief is that the accused had married with the deceased Geetabai about six months prior to her death. Sometime before the death on 1-11-1993 the husband of the deceased had some fight/dispute with the deceased, taking an exception either to the fight/dispute or the conduct of the accused, the deceased Geetabai poured kerosene oil and immolated herself. She was admitted in the hospital on 1-11-1993 where her dying declaration Ex. P. 3 was recorded by PW-8 Sajjan Singh. The said Geetabai breath her last on 10-11-1993.
2-A. Finding that the present was a case under Section 306, I.P.C. the police registered the first information report, obtained medical report, prepared the panchnamas and recorded the statement of the witnesses.
On completion of the investigation, the challan was filed. As the accused pleaded not guilty the trial Court recorded the statement of the witnesses and after hearing the parties finding the accused guilty sentenced him as referred to above.
3. Shri Siddarath Datt learned counsel for the appellant submits that even the entire prosecution evidence is taken as it is, the prosecution would not be successful in securing the conviction of the accused. According to him neither the requirement of Section 306, I.P.C. on facts nor on the legal foundation is satisfied therefore, the conviction is bad on facts and in law.
4. Shri Deepak Okdhe learned counsel for the State placing his strong reliance upon Section 113A of the Indian Evidence Act and Section 107 and explanation 2 of the Indian Penal Code submits that the prosecution was successful in proving the commission of the offence. He submits that the appeal deserves to be dismissed.
4-A. Undisputedly Geetabai was married to one Neel Kumar and after she was desserted by Neel Kumar the accused had kept the said Geeta Bai as his wife. After about sixmonths of the said marriage, Geeta Bai immolated herself. On these facts there is no dispute.
4-B. Before coming to the merits of the case, I consider it proper to refer to the provisions of law. Section 306, I.P.C. reads as under:–
306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with impriosnment of either description for a term which may extend to ten years, and shall also be liable to fine.
5. If the death is occasioned within seven years of the marriage, Section 113A of the Indian Evidence Act authorises the Court to presume that the suicide had been abetedby her husband. Section 113A of the Indian Evidence Act reads as under:–
113-A. 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 had 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.
6. Abetment has been defined under Section 107 of Indian Penal Code.
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 person or persons in any conspiracy for the doing of that thing, if an act or illegal ommission 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 wilful misrepresentation or by wilful 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 facilitates the commission thereof, is said to aid the doing of that act. For Explanation 2 read with clause thirdly of Section 107, I.P.C. the prosecution is required to prove that somebody was prepared to do some act and the accused either prior to or at the time of the commission of an act did something in order to facilitate the commission of that act. Unless it is shown that some one was prepared to do some act, Explanation 2 of clause thirdly would not be applicable. The alleged dispute which we find in Ex. P. 3 would not come within the mischief of “intentional aid.” It is not the prosecution case that the wife wanted to commit suicide and the accused facilitated her for committing the said act.
7. A presumption can be raised under Section 113A where the death takes place within 7 years from the date of her marriage and the prosecution proves that the husband had subjected her to cruelty. Unless the cruel treatment is proved, Court would not be entitled to presume anything. Even if cruel treatment is proved then too it is not obligatory upon the Court to presume the facts because the law says that the “Court may presume.” While presuming something the Court is obliged to have regard to all the other circumstances of the case. If cruel treatment is proved and the Court wants to presume something then the Court is obliged to take into consideration all the other circumstances of the case.
8. A presumption can be raised for abetment of suicide if the suicide is committed within a period of 7 years from the date of marriage. The first requisite for attracting the provisions of Section 113A of the Evidence Act is that it must be proved that the wife was subjected to cruelty as defined in Section 498A, I.P.C. Unless the husband is held guilty of treating the deceased with cruelty no presumption of abeting the deceased for committing the suicide is available under Section 113A. Under the first part of Section 113A the wilful conduct of the husband and his relatives towards the woman is relevant. If the wilful conduct of the husband or his relatives with the woman is of such nature as is likely to drive the woman to commit suicide or to cause to herself grave injury etc., the conduct would amount to cruelty.
9. Once the commission of the offence under Section 498A I.P.C. is proved, while trying the case, the Court may draw a presumption having regard to all the relevant facts given in the section and the other circumstances of the case, that the suicide was abeted by the accused. It is imperative and the mandate of law that before drawing the presumption the Court would not only hold the accused guilty for his cruel treatment but the Court has to take into consideration all the other circumstances of the case. The law clearly says that where the very offence under Section 498A, I.P.C. is not proved, the presumption shall not be available.
10. According to Section 306, I.P.C. if any person commits suicide whoever abets the commission of such suicide shall be punished. For securing a conviction under Section 306, I.P.C. with the help and assistance of Section 113A of the Indian Evidence Act it must be proved to the satisfaction of the Court beyond shadow of doubt that the accused treats the deceased with cruelty and instigated the person to commit suicide or entered in some conspiracy for commission of the suicide by his act or illegal omission or intentionally aided by his acts of illegal ommission.
11. PW-1 Dr. A.K. Jhawar had examined the deceased on 1-11-1993. He found that the deceased had suffered 90% burns. PW-6 Maya Shanker is a seizure witness. PW-7 Mangaldas is a witness of suicide. PW-9 Dr. Girja Shanker Pathak is a witness of the Panchnama prepared after the death. PW-10 Rameshwar Dayal is the investigationg Officer while PW-11 Dr. Arvind Nerulwar has been examined by the prosecution to prove Ex. P. 12 which was signed by Dr. D.C. Jain. PW-8 Sajjan Singh Neetam was working as Tehsildar and was invested with the powers of the Executive Magistrate. According to him he recorded the dying declaration of the deceased under Ex.P -3 on 1-11-1993. According to him he was informed by the deceased that because of some fight/dispute with the husband the deceased burnt herself. From his statement it would only appear that the deceased had burnt herself. His evidence would be sufficient to prove that the death was unnatural and took place within 7 years of the marriage.
12. PW-2 Bhagwat Bai is the mother of the deceased Geetabai. In paragraphs 2 and 3 she had stated that she was informed by the in-laws of her daughter that Geeta Bai was seriously sick. When they came to her village they found that Geeta Bai was badly burnt. She has categorically stated that Geetabai remained unconscious for 10 days and without talking to her breathe her last. In para 4 she had stated that she could not have any word with the deceased. In the cross-examination she had stated that her daughter had informed her that she was very happy but on the second occasion the daughter informed her that she was beaten. PW-3 Phoolchand is the neighbour of the husband of the deceased. He does not say anything about the cruel treatment.
13. PW-4 Chaituram is the father of the deceased Geeta bal. In paragraph 2 he had stated that the deceased was not in a position to talk to anybody and she breathed her last in D.K. Hospital. In paragraph 3 he stated that he was informed by the village people that deceased and the accused had some fight therefore, Nandlal might have assaulted the deceased. In Paragraph 4 he had stated that the accused wanted to bring his first wife back therefore, Geeta Bai was beaten by the husband. In the cross-examination when he was confronted with his police statement he had to admit that the beating and the conduct of the accused was not stated by him to the police.
14. PW-5 Amreeca Bai is the sister-in-law (elder brother’s wife) of the accused. She was declared hostile and did not support the prosecution. On the other hand she states that the accused was looking after the deceased properly.
15. From the statement of the witnesses quoted above, it would not be possible to hold that the accused was treating his wife with cruelty. Section 498A of the I.P.C. reads as under:–
498-A. Husband or relative of husband of a women subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a women 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.
16. A person can be held guilty under Section 498A, I.P.C. where it is proved that the husband or the relative of the husband subjected such woman to cruelty. According to the explanation appended to Section 498A cruelty means- (a) any wilfull 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 cocercing her or any person related to her to meet any unlawful demand for any purpose or valuable security or is on account of failure by her or any person related to her to meet some or any unlawful demand for any property or valuable security. In the opinion of this Court, Clause (a) would be not applicable because the prosecution has failed in proving that the accused by his wilfully conduct was driving the woman to commit suicide or to cause grave injury or danger to life (limb or health).
17. So far as the conduct of the accused regarding recalling of first wife and beating given to the second wife as introduced to PW-4 is concerned Chaituram it can straightway be rejected because these statements were not made by the said witness to the police in his 161 statement. So far as the statement of PW-2 Bhagwat Bai are concerned, I am unable to find that she was successful in proving that the deceased was dealt with cruelty either after the marriage or before the death.
18. I find absolute absence of evidence to support the charge. Disagreeing with the findings recorded by the trial Court, I am of the opinion that the prosecution has failed in bringing home the guilt.
19. The Court below was unjustified in convicting the accused. His appeal deserves to and is accordingly allowed. The accused is acquitted of all the charges. The accused is said to be in jail. A release warrant be sent immediately and the accused be released immediately if not required in any other case.