Criminal Appeal No. 354 of 1993 (SJ) *** Against the judgment and order dated 18.10.1993 Passed by Sri Bipin Bihari Verma, 3rd Additional Sessions Judge, West Champaran, Bettiah, in S. Trial No.180 of 1992 *** Rajesh Ranjan Verma S/o Vijay Narayan Verma, resident of village- Kolhua Chautarwa, P.S. Chautarwa, District- West Champaran …. Appellant Versus The State of Bihar …Respondent *** For the Appellant : Mr. Ajay Kumar Thakur, & Mr.Rakesh Kumar, Advocates For the State : Mr. S. N. Prasad, A.P.P *** P R E S E N T The Hon’ble Justice Smt. Anjana Prakash *** Anjana Prakash, J. The sole appellant has been convicted for the offence under sections 306 and 498-A of the Indian Penal Code and sentenced to rigorous imprisonment for five years and fine of rupees one thousand in default of which two months rigorous imprisonment and two years rigorous imprisonment and fine of rupees one thousand in default of which imprisonment for one month respectively by the judgment dated 18.10.1993 passed by the 3rd Additional Sessions Judge, West Champaran, Bettiah, in Sessions Trial No. 180 of 1992. 2. The case of the prosecution is that Sarita, the deceased was married with the appellant on 30.6.1998 i.e. about 2 to 2-1/2 years before the present occurrence. On 19.11.1990, when the informant and his wife had gone to meet his sister, the deceased, they saw the family members quarrelling with the deceased over demand of a motor cycle. However, the informant settled the dispute. On the next date, he sent his nephew P.W.4 Raju Kumar to invite the appellant, the deceased and other family members to a house function but when P.W.4 reached the house was locked and the nieghbour informed that the deceased had been taken to the hospital. Upon this, the informant came to the village of the deceased and saw that the accused persons were ready to cremate the - 2 - dead body of his sister but they fled away on seeing him and thereafter the present case was instituted on 25.11.1990 in Bettiah. 3. The police after investigation submitted chargesheet against the appellant and the case was committed to the court of Sessions for trial where charges were framed under section 306,498-A and 304-B of the Indian Penal Code. However, the appellant was acquitted of the charge under section 304-B of the Indian Penal Code after the trial court examined the materials recorded and concluded that the allegation of demand for dowry was not substantiated by the prosecution and the same not being beyond the reasonable doubt the appellant was acquitted for the offence under se4ction 304-B of the Indian Penal Code. 4. The prosecution in all examined eleven witnesses, out of whom, P.W.1 Kapil Deo Prasad and P.W.2 Umesh Prasad are not material witnesses. P.W.3 Sarswati Devi has been declared hostile. P.W.4 Raju Kumar is nephew of the informant, who is said to have gone to the house of the deceased and the appellant on the fateful day. P.W.5 Ram Chandra Prasad is the neighbour of the appellant, P.W.6 Brajeshwar Pd. Srivastava, is the informant and P.W.7 Ranjeet Prasad is the father of the deceased, P.W.8 Dr. T. N. Shukla held the post mortem on the person of the deceased and sent viscera for examination, P.W.9 Umesh Prasad is a formal witness, P.W.10 Rabindra Prasad has deposed on factum of quarrel between the appellant and his wife over the demand of motor cycle. P.W.11 Upendra Singh is the Investigating Officer. 5. The defence also examined one witness D.W. 1 Mohan Singh to prove the fard bayan of the appellant (Ext. A) which was the UD case and a certificate that the appellant was on duty on 19.11.1990.The death certificate granted by the doctor of the deceased Sarita is Ext. B, whereas, Station Diary entry no. 563 dated 22.11.1990 is Ext.C. 6. In the background of the case that the trial court has already acquitted the appellant of the charge under section 304-B of the Indian Penal Code, wherein, one of the important ingredients was that the woman should have unnaturally lost her life on account of harassment in connection for dowry against which no appeal has been filed by - 3 - the prosecution. The only question remaining before this court now is whether the prosecution has discharged its duty in proving that the cruelty have been meted out to the deceased on account of which she committed suicide. Section 113-A of the evidence Act stipulates as reproduced hereunder: “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 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. Explanation----For the purposes of this section, “cruelty” shall have the same meaning as in Section 498-A of the Indian Penal Code (45 of 1860).” On looking closely at the said section, it is evident that the requirement of the onus shifting to the accused is only when: (i) That the deceased has committed suicide within a period of seven years (ii) That the same has been abetted by the husband or any relative of her husband. (iii) That the husband or relative had subjected her to cruelty. Unless, the three ingredients are satisfied the presumption about the abetment of suicide can not be drawn by any court simply for the allegation having been made about the same. 7. In this background, if we examine the evidence of P.W.4 Raju Kumar, it will be apparent that he is the nephew of the informant and had gone to the house of the deceased and had merely learnt that there had been quarrel between the accused person and the deceased and no more than that. He is not an eye witness to any cruelty having been meted out to the deceased by the appellant. P.W. 6, the informant and brother of the deceased and P.W.7 Ranjeet Prasad, the father of the deceased have merely stated that they used to quarrel over the demand of Television, Motor cycle and ornaments. The fact that cruelty had been meted out on account of non-fulfillment of demand of T.V., Motor cycle and ornaments has already been disbelieved by the court below and, therefore, once - 4 - the reason for cruelty has been disbelieved the major portion of the prosecution case comes to a naught. Under the circumstances, the onus on the prosecution to prove cruelty, essential ingredients of section 306 of the Indian Penal Code is not fulfilled and no presumption can be drawn against the accused in the background of the case. 8. Next, the prosecution has relied upon the letters of the deceased which are merely to the effect that she was dissatisfied on account of conduct of the accused, who used to drink and smoke and this can not be qualified as cruelty and, therefore, in my opinion, the prosecution can not take the aid of section 113-A of the Evidence Act in proving the case against the appellant. 9. Coming to section 107 of the Indian Penal Code which qualifies abetment of a thing and reproduced hereunder: “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 found 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 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.” One will notice that there has to be a conscious “instigation” of the person to abet a certain thing and only then can it be said that abetment has been committed by an accused. In the present case, I find total paucity of any evidence in this regard and, therefore, no offence under section 306 of the Indian Penal Code is made out against the present appellant. - 5 - 10. So far as the evidence of the neighbours in regard to quarrel between the deceased and the appellant is concerned, P.W. 5 Ramchandra Prasad has not stated this fact before the Investigating Officer P.W.11 and P.W. 10 has been examined by the Investigating Officer 2-3 days after the occurrence. So, their evidence also with regard to any quarrel would not even vaguely suggest any abetment and the same can also not be pressed into service by the prosecution. 11. The defence of the appellant is that the deceased had complained of stomachache on the date of occurrence due to which she was removed to the Sadar Hospital, Bettiah, where she was alive for one day and unfortunately, died in course of treatment. The doctor has given a certificate in this regard and also Ext. A proves that initially a UD case had been instituted by the present appellant showing the conduct of innocence. The appellant reiterated his stand in his statement under section 313 Cr.P.C. and has brought the medical reports with regard to the treatment of the deceased. 12. Under the circumstances, I find no reason to convict the appellant under section 306 of the Indian Penal Code and acquit him of the charge. However, the charge under section 498-A of the Indian Penal Code is concerned, the letters of the deceased reveal that she was being assaulted off an on and, therefore, the appellant can not escape the liability of conviction for the offence under section 498-A of the Indian Penal Code and accordingly, he is convicted for the offence under section 498-A of the Indian Penal Code and sentenced to a period of two months rigorous imprisonment. The period spent in jail custody by the appellant would be calculated for the period of sentence passed by the present judgment. 13. In the result, the appeal is dismissed with modification as aforesaid. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 28th October, 2009 NAFR / JA/-