IMPORTANT POINT
Court can presume u/s 113-A, Evidence Act, commission of an offence u/s 107 IPC on the basis of evidence adduced to prove an offence under Section 498-A.

JUDGMENT

Altamas Kabir, J. —

1. The Petitioner herein, Thanu Ram, was married to Hirabai (deceased) in 1984. On 24th March, 1988, Hirabai committed suicide in her matrimonial home by sprinkling kerosene upon herself and setting herself on fire. She died in the hospital on 25th March, 1988, having suffered 90-95% burn injuries. Prior to her death, she made a dying declaration to the Naib Tahsildar, J.R. Lahre, who was examined by the prosecution as P.W.9. Dr. K. Vinay Kumar, in whose presence the declaration was made, was examined by the prosecution as P.W.11 to testify that Hirabai was in a fit mental condition to make the dying declaration before P.W.9.

2. The Petitioner, his father, Dhanaram, and mother, Lachhavantin, were tried and convicted for the offence punishable under Section 498-A and 306 of the Indian Penal Code (IPC) and sentenced to undergo Rigorous Imprisonment for 3 years and 5 years, respectively. In appeal before the High Court, accused Dhanaram was acquitted, while the conviction and sentence of the Petitioner and his mother were confirmed. This Special Leave Petition has been preferred by the husband of the deceased, Thanu Ram, against the said judgment and order of the High Court. For the sake of record, it may be mentioned that the Petitioner’s mother, Lachhavantin, died in prison while serving her sentence.

3. Dr. Rajesh Pandey, learned Advocate for the Petitioner, raised two basic issues in the course of his submissions, namely, (i) whether the offences complained of under Sections 306 and 498-A IPC were at all sustainable, and (ii) whether the dying declaration, said to have been made by Hirabai on which the decision of the Courts below was based, could have been relied upon without proper corroboration.

4. The prosecution examined 13 witnesses to prove its case which was denied by the accused in their statement under Section 313 of the Code of Criminal Procedure (Cr.P.C.). According to the prosecution, since Hirabai committed suicide within 7 years of her marriage with the Petitioner, the presumption under Section 113-A of the Indian Evidence Act, 1872, was available against the accused and having regard to the evidence adduced by the prosecution, a case had clearly been made out for conviction of all the accused persons under Sections 306 and 498-A IPC.

5. Dr. Pandey urged that the Trial Court as well as the High Court had failed to notice the main ingredient of an offence under Section 306 IPC, namely, the question of abetment in the commission of such suicide which has been spelt out in Section 107 IPC. Learned counsel pointed out that in order to abet the doing of a thing, the abettor must be found to have instigated any person to do such thing or engage with one or more person or persons in any conspiracy for the doing of that thing.

6. In addition to the above, Dr. Pandey contended that the meaning of the expression “cruelty” used in Section 498-A IPC cannot be linked up with an offence under Section 306 IPC, unless the “intention” as mentioned in Section 107 IPC or the presumption available under Section 113-A of the Indian Evidence Act, were duly satisfied. Dr. Pandey submitted that in the instant case, there is no evidence on record to indicate that the Petitioner had, in any way, instigated Hirabai with the intention of making her commit suicide. Accordingly, the charge under Section 306 IPC cannot be sustained.

7. In the course of his aforesaid submissions, Dr. Pandey referred to the evidence of P.W.9, J.R. Lahre, Naib Tahsildar and Executive Magistrate, who had recorded the dying declaration of Hirabai at the hospital on 24th March, 2008. From the evidence of P.W.9, Dr. Pandey pointed out that while Hirabai had spoken in Chattisgarhi, the said statements were recorded by P.W.9 in Hindi. Dr. Pandey then referred to the evidence of P.W.11, Dr. K. Vinay Kumar, who had in his evidence stated that the deceased had spoken in Hindi, and not in Chattisgarhi, as stated by P.W.9, and the same had