IMPORTANT POINT
Unless cruelty as under section 498-A IPC is not established, an accused cannot be convicted u/s 306.

JUDGMENT :

Rohinton Fali Nariman, J.

1. Leave granted.

2. In the present case, an F.I.R. dated 28th March, 2002 was lodged in which it was stated that the father-in-law and mother-in-law of the lady who committed suicide harassed her for at least five years and this harassment, therefore, led to offences being committed under Sections 498A and Section 306 of the Indian Penal Code. The Trial Court relied upon the evidence of PWs 4 and 5, who were neighbours, who attested to the fact that there was harassment meted by the in-laws to the dead lady. Medical evidence also shows that there were 90% burns as the lady had poured kerosene on herself and set herself on fire. Most importantly, according to both the Trial Court and the High Court, a dying declaration was made before PW 9 who was a Sub-Divisional Magistrate, which reads as follows:-

“The PW-9, Himmat Singh has stated that as on 28.03.02, he was working as SDM and on that day he had gone to the hospital to record the statement of the deceased. At that time Dr. Verma was the duty doctor and he has stated that Lalita was in a state of fitness to record her statement. When I asked Lalita she had told that she was sleeping and her in-laws were quarrelling with her every day. Today also they quarrelled with me. They asked me to leave the house. My husband is not responsible for anything. He resides in Kuwait. He has come here now. I am residing separately from my in-laws. Today they had come with their luggage and said that they have come to stay with her. I told them that I am not in good relations with them and therefore I cannot reside with them. They told, we will stay here and you get lost. Then I got angry and went inside the kitchen and poured kerosene from the stove and set myself on fire. My father-in-law was looking at me but did not try to stop me. My husband tried to save me. My in-laws were demanding dowry from me. I did not have any quarrels with my husband. My signatures are there on the statement recorded by me. Lalita's thumb impression is there at point X. During the cross examination by the Ld. Counsel the witness stated that the statement recorded by him is at Ex. P-5 and at point X the thumb impression of Lalita is there. At the time of recording the statement no one from her parent's side was present and the in-laws of the deceased were turned out of the room at the time of recording the statement. Lalita's husband Omprakash was present at the time of Lalita setting herself on fire and at the time of putting off the flames.”

3. On this evidence, the Trial Court held that the offence under Section 498A was not made out but convicted the two appellants before us under Section 306 and sentenced them to imprisonment for three years. In an appeal filed by them before the High Court, the High Court, relying upon the aforesaid dying declaration, dismissed the appeal.

4. Learned counsel for the appellants has argued before us that the State did not appeal against their acquittal under Section 498A and, that therefore, the fact that the offence under Section 498A has not been made out is final. This has a vital bearing on the offence under Section 306 as one of the ingredients of this offence is that cruelty should have been meted out by the offenders. He also argued that based on the dying declaration which has been given prime importance, this is not a case of abetment as there is no evidence of any intention to help the deceased to commit suicide.

5. On the other hand, the learned counsel appearing for the State of Rajasthan supported the impugned Judgment. According to him, it is concurrently held, based on the evidence of the case as well as the dying declaration, that abetment of suicide is made out on the facts of the case. Learned counsel also heavily relied upon the presumption contained in Section 113A of the Evidence Act inasmuch as death has been caused within seven years of the marriage; and this presumption, not having been rebutted, did not require any inter