A.K. Mishra, J.

1. Appellants have been c onvicted for an offence under Sections 498A and 306, IPC and sentenced to undergo R.I. for three years on each count. Both the sentences were ordered to run concurrently.

2. Dead body of wife of appellant Kanhai was found in a well on July 2nd, 1987 at village Madawanmar. Marriage of the deceased was performed with Kanhai prior to 4 to 5 years. Prosecution alleged that the accused Kanhai, mother-in-law Harhuwawali and Munna, brother of Kanhai used to quarrel with the deceased and harassed her. On the date of incident also quarrel took place in the family. Accused Kanhai had slapped the deceased. In the evening deceased jumped into well along with infant daughter and committed suicide. Deceased Ramkali as well infant daughter's dead bodies were recovered from a well. Spot map Ex. P-14 was prepared. Post-mortem was performed by Dr. J.C. Lohrat. Cause of death was found to be asphyxia owing to drowning.

3. Accused persons abjured the guilt and it was contended that the marriage took place prior to 12 years of the date of incident. Ramkali had gone to well to bring water. She had fallen in the well accidentally and was not treated with cruelty.

4. Learned counsel for the appellant has submitted that the presumption under Section 113A of the Evidence Act was not available and has been wrongly drawn. He has further submitted that it has not been proved that the deceased committed suicide. Until unless there is evidence of suicide, conviction under Section 306, IPC cannot be recorded. There is no evidence of abetment of suicide. In his submission, the necessary ingredients constituting abetment are missing from the evidence. There is no positive act which may show that the appellants were responsible for abetting commission of suicide if any.

5. Learned counsel for the State has submitted that it is a case where presumption under Section 113A of the Evidence Act is clearly attracted as death took place within 7 years of marriage.

6. It is a case of suicide. Deceased jumped in the well alongwith infant daughter. He has further submitted that there is circumstantial evidence that there was dispute in the family, even on the date of incident. There was quarrel and deceased used to be harassed. Presumption under Section 113A of the Evidence Act is retrospective in operation, since it is a procedural provision as held by Supreme Court in case of Gurbachan Singh v. Satpal Singh and Ors. Presumption under Section 113A of the Evidence Act is rebuttable. For attracting presumption under Section 113A it is necessary that the commission of suicide should be proved and should also be proved that the marriage took place within 7 years and Court shall have due regard to all other circumstances of the case, to find whether suicide was abetted by her husband or such relative of her husband.

7. Prosecution has examined various witnesses. Tribhuwan Prasad (P.W. 1) being a neighbour, ultimately did not support the prosecution case, but, there are certain circumstances which are borne out from his deposition. He has deposed in Para 2 that he had asked Jalam Choukidar to go and check what was happening in the house, on that Jalam had gone and reported to him that: there was some "BAATCHEET", meaning thereby that there was some dispute going on in the house, which was the cause for the witness to ask Jalam Choukidar to check what was happening in the house. In Para 5 he has clearly deposed that at the relevant time he had scolded Kanhai from his own house and had asked Kanhai to send back deceased to her parental house, in case he was not willing to keep her. This part of the deposition of the witness is clinching and goes to show that deceased used to be harassed by Kanhai and this witness had intervened and had advised accused Kanhai to send back the deceased to her parental house. In the absence of cruel behaviour there was no such occasion for this witness to scold Kanhai and ask him to send back the deceased