THE HON’BLE SRI JUSTICE K.C.BHANU Criminal Revision Case No.1116 of 2003 (Dated 04.12.2009) Between: Bhagavathula Bhaskar Rao S/o late B.Sriram Sharma R/o Malkajgiri, R.R.District, Hyderabad. …Petitioner-accused A n d State of A.P., through P.S. Malkajgiri Rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent-complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1116 OF 2003 ORDER: This Criminal Revision Case, under Sections 397 and 401 Cr.P.C., is directed against the judgment dated 04.08.2003 passed in Criminal Appeal No.39 of 2003 on the file of the I Additional Sessions Judge, Ranga Reddy District, at L.B. Nagar, whereunder and whereby, the conviction of the petitioner of the offence punishable under Section 306 I.P.C and sentence to undergo Rigorous Imprisonment for three years, as imposed in S.C.No.674 of 1999 on the file of the Principal Assistant Sessions Judge, Ranga Reddy District, were confirmed. 2. The brief facts that are necessary for disposal of the present revision case, may be stated as follows:- The deceased Bhagavathula Padmaja is no other than the wife of the petitioner- accused. Their marriage was performed on 17.5.1998 according to Hindu Rites and Customs. The deceased was working as a Typist in a private organization and whereas the accused was running a xerox and typewriting institute. After the marriage, they started living together in a house at Malkajgiri. It is alleged that the accused was harassing the deceased stating that she was not cooking food properly and that he was abusing her in piercing words. Unable to bear the said harassment, the deceased committed suicide on 12.6.1999. Basing on a report given by Pw.1, police registered a case initially under Section 174 Cr.P.C. During the course of investigation, it came to light that the deceased committed suicide because of the abetment made by the accused, and therefore, the police altered the Section of Law from 174 Cr.P.C to Section 306 IPC. Pw.11, the Mandal Revenue Officer, Malkajgiri, on a requisition from the police, conducted inquest on the dead body of the deceased and concluded that the deceased died under suspicious circumstances. After inquest, the dead body was subjected to Post Mortem Examination. The doctor, who conducted autopsy, opined that the deceased died due to burn injuries. After completion of investigation, the police filed the charge sheet. 3. The trial court framed a charge for the offence punishable under Section 306 IPC against the accused, and when the same was read over and explained to him in telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws. 1 to 12 and got marked Exs.P1 to P7, besides case properties-M.Os 1 and 2. No oral or documentary evidence was adduced on behalf of the accused. 5. The trial Court, relying upon the evidence of Pws.6 and 7, who are no other than the brothers of the deceased, found the accused guilty of the offence punishable under Section 306 IPC, accordingly convicted thereunder and sentenced to undergo Rigorous Imprisonment for three years. On appeal, the lower appellate Court confirmed the said conviction and sentence. Challenging the same, the present revision is preferred by the accused. 6. Now, the point for determination is whether the judgments of the Courts below are correct, legal and proper? 7. Learned counsel appearing for the petitioner contended that there is no evidence to show that the accused abetted the deceased to commit suicide; that the words allegedly used by the accused were not so harsh so as to facilitate the deceased to commit suicide; that the actual words uttered by the accused have not been spoken to, by Pws.6 and 7, and therefore, both the Courts below gave an incorrect finding with regard to the charge under Section 306 IPC. 8. On the other hand, learned Additional Public Prosecutor contended that the evidence of Pws.6 and 7 would clearly go to show that the deceased was subjected to cruelty, and unable to bear with the harassment, the deceased committed suicide within one year after the marriage and hence, presumption under Section 113A of the Indian Evidence Act can be drawn and if the said presumption is drawn, the accused can be held to have committed the offence punishable under Section 306 IPC; that the concurrent findings of the Courts below need not be interfered with as none of the finding is shown to be illegal, incorrect or improper. 9. The revisional powers of this Court under Sections 397 and 401 Cr.P.C are truncated. Unless a finding is shown to be illegal or improper or incorrect, ordinarily, this Court will not interfere with the concurrent findings of the two courts below. A finding can be said to be incorrect or illegal, if it is not based upon the evidence available on record. In this revision, this Court cannot sit over in an appeal to re- appreciate the evidence adduced by the prosecution and to arrive at a different conclusion than the one reached by the trial Court as well as the appellate Court. To know whether the findings are illegal or incorrect, necessarily, the evidence adduced by the prosecution has to be referred to. 10. The relationship between the accused and the deceased is not in dispute. The death of the deceased in the manner as stated by the prosecution is not in dispute. The death of the deceased within one year after the marriage is not in dispute. The death of the deceased as a result of the burn injuries is also not in dispute. The only question that remains for consideration is whether the accused abetted the deceased to commit suicide?. 11. The initial burden is always on the prosecution to establish the case. The accused is presumed to be innocent unless the contrary is proved and the burden is always on the prosecution to establish the guilt of the accused beyond all reasonable doubt. That burden never shifts unless law says so. Under Section 113- A of the Indian Evidence Act, the prosecution has first to establish that the deceased committed suicide within a period of seven years from the date of her marriage and that her husband had subjected her to cruelty. 12. Section 113-A of the Indian Evidence Act reads as hereunder: “113A 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.” 13. 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. When a married woman commits suicide within seven years after the marriage and it is shown that the she was subjected to cruelty or harassment soon before her death, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Explanation to Section 113-A further clarifies that cruelty shall have the same meaning as in Section 498-A of the Indian Penal Code which means:- a. any willful conduct which is of 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 a woman means where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her on any person related to her to meet such demand. Therefore, it has to be presumed from the evidence that the above circumstances might have taken place. 14. The question then arises is whether in the facts and circumstances of the case, the petitioner can be convicted of the offence under Section 306 IPC, with the aid of the presumption under Section 113-A of the Indian Evidence Act, 1872. To prove the offence under Section 306 IPC, there must be abetment. Section 107 I.P.C. lays down the ingredients of abetment, which are as follows: “107 Abetment of a thing:- A person abets in doing of a thing, who- Firstly-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, in doing of that thing. 15. A perusal of the above definition indicates that there must be instigation to do an act or there must be conspiracy in doing that act or there must be intentional aiding in doing such an act. Explanation 2 to Section 107 I.P.C. says that whoever, either prior to or at the time of 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. 16. In the instant case, the entire case of the prosecution rests upon the evidence of Pws.6 and 7, who are no other than the brothers of the deceased. The evidence of Pw.6 would go to show that whenever he telephoned to the deceased, she was informing him that the accused was abusing her with piercing words and on account of ill treatment and harassment of the accused, the deceased committed suicide. Except that, he did not state anything as to what are the piercing words and what is the abusive language used by the accused towards the deceased. No doubt, it has come in the evidence that the deceased was a sensitive woman, but at the same time, all the words uttered by the accused need not provoke the deceased to commit suicide. Similarly, Pw.7 stated that in the month of November 1998, the deceased came to his house and informed that the accused harassed her saying that she was not preparing food properly and abusing her using piercing words. His evidence also does not disclose as to what are the piercing words used by the accused. The actual words, which caused annoyance to the deceased have not been spoken to by these two witnesses. Mere abusive language or saying something to the wife does not lead to an irresistible conclusion that it would lead a woman to commit suicide. Those words must be used with an intention to instigate the deceased to commit suicide or they must be aiding to the deceased to facilitate commission of the offence. There is no such evidence in this case. 17. Similarly, even if the entire case of the prosecution is to be accepted, it cannot be said that the acts alleged against accused are so severe in order to facilitate the deceased to take an extreme decision of burning herself by pouring kerosene. Therefore, this aspect of the evidence has not properly been appreciated. Therefore, the initial burden, which lies on the prosecution, has not been discharged by adducing necessary evidence. Hence, the question of drawing a presumption under Section 113-A of the Evidence Act, 1872, may not arise. 18. Learned counsel appearing for the petitioner relied upon a decision of the apex Court in Han Raj v. State of Haryana, wherein it was held that: “We do not find ourselves in agreement with the finding of the Trial Court, having regard to the facts and circumstances of this case and our finding that the prosecution is guilty of improving its case from stage to stage. The allegations that the appellant did not like to keep the deceased with him because she was not good looking, or that he was addicted to liquor or that the deceased had reported these matters to her parents and others, or that the appellant intended to re-marry and had told his wife Jeetoo about it, or that the deceased had once come to her father’s house in an injured condition, or even the allegations regarding beatings, do not find place in the statements recorded by the police in the course of investigation.” 19. Therefore, having regard to the principles aforesaid and the evidence available on record, it has to be held that the findings of the Courts below are not based upon proper appreciation of evidence, and in the absence of any legal evidence, it is not safe to base a conviction upon the accused. Accordingly, the conviction and sentence of the accused of the offence punishable under Section 306 I.P.C are set aside and the accused is acquitted of the charge for the offence under Section 306 IPC. His bail bonds shall stand cancelled. 20. The Criminal Revision Case is accordingly allowed setting aside the judgment dated 4.8.2003 passed in Criminal Appeal No.39 of 2003 on the file of the I Additional Sessions Judge, Ranga Reddy District. _______________ K.C.BHANU, J Dt.04-12-2009 RAR THE HON’BLE SRI JUSTICE K.C.BHANU Criminal Revision Case No.1116 of 2003 (Dated 04.12.2009)