The presumption of abetment under Section 113A of the Evidence Act does not apply automatically; the prosecution must prove cruelty to establish guilt under Sections 306 and 498A IPC.

JUDGMENT :

Hemant M. Prachchhak, J.

1. The appellant-State of Gujarat has preferred the present Appeal under Section 378(1)(3) of the Code of Criminal Procedure ("Cr.P.C." for short) against the judgment and order of acquittal dated 28.2.2007 passed by the learned Additional Sessions Judge and Presiding Officer, FTC-2, Ahmedabad (hereinafter be referred to as “the trial Court”) in Sessions Case No. 412 of 2006 whereby the respondents-original accused persons were acquitted from the charges levelled against them under Sections 306, 498(A) read with Section 114 of the Indian Penal Code (hereinafter be referred to as "I.P.C.").

2. The facts giving rise to present Appeal are that the complainant Mahendra Hanuman Prasasd Sharma lodged complaint with Bapunagar Police Station being I-CR-No- 70/06 against the accused persons for the offences punishable under Section 306, 498 [A] read with 114 of I.P.C. stating that on 7/11/2000 marriage of his daughter viz. deceased Ushaben was taken place with accused no.1 Sanjay Kailashchandra Tiwari, residing at Nil Housing Society Chali, Behind Soneriya Block, Bapunagar, Ahmedabad.

2.1 Thereafter, the accused persons pressurized deceased Ushaben to held her sister viz. Hemlata marriage with accused no.2 Jitendra i.e. brother of accused no.1 but sister of deceased Ushaben did not want to marry with accused no.2 Jitendra, and therefore, accused persons were causing mental and physical harassment to the deceased by beating her and also subjecting her to cruelty and because of that on 9/3/2003, at about 7.30 a.m., by mental and physical harassment and taunting of the accused persons, deceased Ushaben hanged herself at her Matrimonial home and committed suicide, and thereby, accused persons have abetted in committing her suicide.

2.2 After completion of the investigation charge sheet came to be filed against accused persons before JMFC, Ahmedabad. However, as the case was triable, by the Sessions Court, therefore, Learned. J.M.F.C., Ahmedabad, committed the said case to the Sessions Court as per the provisions of 209 of Criminal Procedure Code. Thereafter, charge was framed against the accused persons for the offences punishable under Section 306, 498 [A] read with 114 of I.P.C. The accused respondents pleaded not guilty to the charges and claimed to be tried.

2.3. After hearing both the parties and after evaluating the evidence placed on record, the trial Court vide order dated 28.2.2007 passed in Sessions Case No. 412 of 2006, acquitted all the accused respondents.

2.4 In view of the above facts, the State of Gujarat has preferred present Appeal against the order of acquittal passed by the trial Court.

3. Heard Mr. Yuvraj Brahmbhatt, learned APP for the appellant and Mr. Bhunesh C. Rupera, learned Counsel for the respondents.

4. Mr.Yuvraj Brahmbhatt, learned APP for the appellant has submitted that the trial Court, while passing the impugned order of acquittal has committed serious and grave error by discarding the evidence led by the prosecution in its true and proper spirit and therefore, the impugned judgment and order passed by the trial Court is unjust and illegal. It is further contended that within span of six years, the deceased had committed suicide and therefore, the trial Court ought to have drawn the presumption under Section 113-A of the Indian Evidence Act.

4.1 Mr.Yuvraj Brahmbhatt, learned APP further contended that the trial Court has committed a serious error of law and on fact while considering the evidence led by the prosecution, namely the evidence of the P.W.1, P.W.2, P.W.3, P.W.4 as well as P.W.5 and P.W.6 who are neighbours and independent witnesses and therefore, the impugned order passed by the Trial Court is unjust and erroneous.

4.2 Mr.Yuvraj Brahmbhatt, learned APP also further contended that there was serious allegation with regard to the ill-treatment to the deceased on account of the marriage of sister of the deceased with the brother of the accused No.1 however, Hemlataben sister