2004 Supreme(SC) 248

2004(3) Supreme 676
SUPREME COURT OF INDIA
(From Kerala High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Hans Raj -Appellant
versus
State of Haryana -Respondent
Criminal Appeal No. 609 of 1997
Decided on 26-2-2004
Counsel for the Parties :
For the Appellant : Dhruv Mehta, S.K. Mehta, Advocates.
For the Respondent : Ms. Avneet Toor, D.P. Singh, Vinay Kumar Garg, Advocates.

IMPORTANT POINT
Section 113A Evidence Act given a discretion to Court to raise a presumption and mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband does not automatically give rise to the presumption that suicide had been abetted by her husband.

Headnote:Indian Penal Code, 1860-Sections 306 and 498A-Evidence Act, 1872-Section 113-A -Appellant convicted of offences-Wife of appellant got married in 1982 committed suicide on 24-8-1986-FIR allegations, lodged by father of deceased, that appellant was addict to liquor and whenever deceased raised objections, she used to be assaulted and there were frequent quarrels-Trial Court though found improvement in evidence during trial that appellant used to taunt deceased as she was not good looking, or that he was going to remarry, but found that appellant had maintained complete silence and that law enjoined upon appellant an obligation to explain circumstances in which deceased committed suicide-Reliance was placed on presumption u/s 113A of Evidence Act-Conviction was upheld in appeal by High Court-Appeal-All that evidence established was that appellant was addicted to "Bhang" and that frequent quarrels took place when deceased objected to his taking bhang-No direct evidence that appellant either aided or instigated deceased to commit suicide-Statutory presumption u/s 113A Evidence Act does not arise by operation of law merely on proof of circumstances enumerated u/s 113A of the Act-Provision gives discretion to Court to raise such a presumption-In the facts of the case presumption was not invocable-Conviction u/s 306 IPC was liable to be set aside but maintainable u/s 498A IPC-Sentence of one year imprisonment u/s 498A IPC awarded.

       Held : The question then arises as to whether in the facts and circumstances of the case the appellant can be convicted of the offence under Section 306 I.P.C. with the aid of the presumption under Section 113 A of the Indian Evidence Act. Any person who abets the commission of suicide is liable to be punished under Section 306 I.P.C. Section 107 I.P.C. lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more person in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. In the instant case there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon Section 113-A of the Indian Evidence Act under which the Court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The explanation to Section 113-A further clarifies that cruelty shall have the same meaning as in Section 498A of the Indian Penal Code which means:-

        "(a) any wilful 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 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 or any person related to her to meet such demand."

       Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the Court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in Section 498-A I.P.C. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. (Paras 13 and 14)

       Having regard to the principles aforesaid, we may now advert to the facts of this case. The learned Trial Judge took the view that since the wife of the appellant committed suicide and since the appellant did not disclose as to what conversation preceded her committing suicide and that there were allegations of cruelty against the appellant, it must be presumed under Section 113-A of the Indian Evidence Act that the suicide had been abetted by him. 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 Jeeto 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. These allegations have been made at the trial for the first time. All that was alleged in the FIR or even at the stage of investigation was that there were frequent quarrels between the husband and wife sometimes resulting in physical assault, on account of the husband being addicted to consumption of Bhang . The other allegation that the appellant was aggrieved of the fact that his sister Naro was not being properly treated by Fateh Chand, PW-3, brother of the deceased, also appears to be untrue because there is nothing on record to show that there was any disharmony in the marital life of his sister Naro. In fact, Fateh Chand, PW-3, her husband, himself stated on oath that he was living happily with his wife Naro, sister of the appellant. On such slender evidence therefore we are not persuaded to invoke the presumption under Section 113-A of the Indian Evidence Act to find the appellant guilty of the offence under Section 306 I.P.C. (Para 17)