Paragraph numbers below are the court’s original numbering, recovered from the source text.
24. It has thus been observed that though presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused is on the prosecution. The prosecution has to establish beyond reasonable doubt that the accused had instigated, conspired or intentionally aided so as to drive the wife to commit suicide.
25. In Mangat Ram vs. State of Haryana6 this Court observed thus: “28. We have already indicated that the trial court has found that no offence under Section 304-B IPC has been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been framed on that section against the accused. The scope and ambit of Section 306 IPC has not been properly appreciated by the courts below. ……….. Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence 6 (2014) 12 SCC 595 under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide.”
26. After observing the aforesaid, this Court, relying on the judgment of this Court in the case of Hans Raj (supra), observed that even if it is established that the woman concerned had committed suicide within a period of seven years from the date of marriage and that her husband has subjected her to cruelty, the court is not bound to presume that suicide has been abetted by her husband. It is required to take into consideration all other circumstances of the case.
27. It could thus be seen, that the view taken by the three-Judge Bench of this Court in the case of Ramesh Kumar (supra) that when a case does not fall under clause secondly or thirdly, it has to be decided with reference to the first clause, i.e., whether the accused has abetted the commission of suicide by intentionally instigating her to do so; has been consistently followed. As such, we are of the view that merely because an accused is found guilty of an offence punishable under Section 498-A of the IPC and the death has occurred within a period of seven years of the marriage, the accused cannot be automatically held guilty for the offence punishable under Section 306 of the IPC by employing the presumption under Section 113-A of the Evidence Act. Unless the prosecution establishes that some act or illegal omission by the accused has driven the deceased to commit the suicide, the conviction under Section 306 would not be tenable.
28. Insofar as the judgment of this Court in K. Prema S. Rao (supra), on which the High Court had relied, is concerned, we have already discussed hereinabove that in the said case there was evidence on record proving that immediately prior to committing the suicide the deceased was driven out of the house. As such, it was held that the said cruelty would amount to abetment to commit suicide. GURJIT SINGH v. STATE OF PUNJAB [B. R. GAVAI, J.]
29. Insofar as the judgment of this Court in Modinsab Kasimsab Kanchagar vs. State of Karnataka & Anr.7 is concerned, no doubt that the learned counsel for the State is justified in relying on the said judgment as the conviction in the said case is for the offence punishable under Section 498-A of the IPC and Sections 3, 4 & 6 of the Dowry Prohibition Act, 1961. However, in the said case, the conviction under Section 304-B of the IPC was set aside by this Court. However, the question, as to whether when the charge is framed only under Section 304-B of the IPC could the conviction be recorded under Section 306 of the IPC did not fall for consideration in the said case.
30. In the case of Thanu Ram vs. State of Madhya Pradesh8 this Court by observing that on account of interplay between Section 113-A of the Indian Evidence Act, 1872 and Sections 498-A, 107 and 306 of the IPC, held that the appellant was liable for conviction for the offence punishable under Section 498-A and Section 306 of the IPC. However, it is to be noted that in the said case the Court relied on the dying declaration of the deceased wherein she stated that she had been treated with both mental and physical cruelty. In the said case, there was a dying declaration of the deceased which was believed by the court. The said dying declaration was corroborated by the evidence of PW-13, on the basis of which the Court held that the ill treatment was such which triggered her immediate intention to commit suicide.
31. In the case of Satish Shetty vs. State of Karnataka9 the victim was found to have injuries on her person. Though, the deceased and the husband had slept together in the same room before she consumed poison, the appellant-husband had not at all explained the injuries sustained by the victim. In these circumstances, the conviction under Section 306 of the IPC, as recorded by the High Court for the first time, was maintained by this Court.
32. Insofar as the judgment of this Court in the case of Narwinder Singh vs. State of Punjab10, it is by the two learned Judges of this Court and it does not take into consideration the judgment by three learned Judges of this Court in Ramesh Kumar (supra).. 7 (2013) 4 SCC 551 8 (2010) 10 SCC 353 9 (2016) 12 SCC 759 10 (2011) 2 SCC 47
33. Applying the aforesaid principles to the present case, we find that though the prosecution is successful in proving the case under Section 498-A of the IPC, we are of the view that the prosecution has failed to prove that the cruelty was of such a nature which left no choice to the deceased than to commit suicide. The prosecution has not been in a position to place on record any evidence to establish beyond reasonable doubt that any act or omission of the accused instigated the deceased to commit suicide. There is no material on record to show that immediately prior to the deceased committing suicide there was a cruelty meted out to the deceased by the accused due to which the deceased had no other option than to commit the suicide. We are of the view, that there is no material placed on record to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising presumption.
34. It could further be seen from the evidence on record that the time gap between the last visit of the deceased to her parents with regard to the illegal demand and the date of commission of suicide is about two months. As such, there is nothing on record to show that there was a proximate nexus between the commission of suicide and the illegal demand made by the appellant. In the case of Sanju Alias Sanjay Singh Sengar vs. State of M.P.11 this Court found that there was time gap of 48 hours between the accused telling the deceased ‘to go and die’ and the deceased ‘committing suicide’. As such, this Court held that there was no material to establish that the accused had abetted the suicide committed by the deceased.
35. Another aspect that needs consideration is that the cases wherein this Court has held that the conviction under Section 306 of the IPC was tenable though charge was only under Section 304-B of the IPC, it was found the charge specifically stated that the deceased was driven to commit suicide on account of cruelty meted out to the deceased. However, in the present case, the charge reads thus: “That you all on 28.9.94 in the area of Village Bohan, the death of Jaswinder Kaur wife of you, Gurjit Singh and daughter-in-law of you, Gurdial Singh and Mohinder Kaur and sister-in-law of Ranjit Kaur, was caused otherwise than under normal circumstances, you all being her relatives, within a period of seven years of her marriage subjected to her to cruelty and harassment for all in 11 [(2002) 5 SCC 371] GURJIT SINGH v. STATE OF PUNJAB [B. R. GAVAI, J.] connection with demand for dowry and thereby committed an offence of dowry death punishable under section 304-B of the Indian Penal Code, and within my cognizance.”
36. It would thus be seen, that the charge does not state that the deceased was driven to commit suicide on account of the harassment meted out to the deceased. It also does not mention that the accused had abetted in commission of suicide by the deceased. In that view of the matter, we are of the considered view that the cases wherein conversion is held to be permissible are clearly distinguishable.
37. In the foregoing circumstances, the appeals are partly allowed. Conviction under Section 498-A of the IPC is maintained and the conviction under Section 306 of the IPC is set aside. The appellant is acquitted of the charge under Section 306 of the IPC.
38. The appellant is stated to be on bail, his bail bonds shall stand discharged and he is directed to surrender within four weeks for serving the remaining period of his sentence, if not already undergone. Devika Gujral Appeal partly allowed.