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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL Nos. 1492­1493 OF 2010

GURJIT SINGH                                        ....APPELLANT(S)   

                                VERSUS

STATE OF PUNJAB                                .... RESPONDENT(S)

J U D G M E N T   

B.R. GAVAI, J.

1. These appeals  by special leave challenge  the  judgment

and order dated 20.2.2009 passed by the Division Bench of the

Punjab and Haryana High Court in Criminal Appeal No. 544­

DBA of 2001 and Criminal Appeal No. 959­SB of 2000. All the

four accused, including the appellant  herein (accused  No.3),

who is husband of the deceased, were charged and tried by the

learned trial  Court for the offence  punishable  under  Section

304­B and Section 498­A of the Indian Penal Code, 1860

(hereinafter referred to as “IPC”).   The other accused were the

father (accused No.1), the mother (accused No.2) and the sister­

in­law (wife of brother) (accused  No.4) of the  appellant. The

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Additional Sessions Judge, Hoshiarpur, held that the

prosecution had succeeded in proving the case against accused

Nos. 1   to 3 for the offence punishable under Section 498­A of

the IPC but has failed to prove the case against the said accused

(Nos. 1, 2 and 3) for the offence punishable under  Section 304­

B of the IPC.  Insofar as accused No. 4 is concerned, it was held

that the prosecution has failed to prove the case against her for

both the offences and she was accordingly acquitted of the

offence charged. The trial Judge, therefore, convicted the

appellant and his father and mother for the offence punishable

under Section 498­A of the IPC and sentenced them to undergo

rigorous imprisonment for a period of three years and to pay a

fine of   Rs. 4000/­ each and, in default of payment of fine, to

further  undergo rigorous imprisonment for a  period  of three

months.    

2.        Being aggrieved by the conviction and sentence under

Section 498­A of the IPC, the appellant along with his parents

preferred an appeal (being Criminal Appeal No.959­SB of 2000)

before the High Court. So also, the State preferred an appeal

(being Criminal Appeal No.544­DBA of 2001), being aggrieved by

that part of the order by which the trial Court acquitted accused

No. 4 and also acquitted accused Nos. 1, 2 and 3 for the offence

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punishable under Section 304­B of the IPC.   The High Court

upheld the conviction of accused Nos. 1, 2 and 3 for the offence

punishable under Section 498­A of the IPC. It also upheld the

acquittal  of  accused No.  4 and  further held that,  though the

prosecution could not bring the case under Section 304­B of the

IPC, the appellant  herein  was liable to be punished for the

offence punishable  under  Section 306 of the  IPC.  The High

court maintained the order of the sentence and fine as recorded

by the trial Judge for the offence punishable under Section 498­

A of the IPC. For the offence under Section 306 of the IPC, the

High Court sentenced the appellant herein to undergo rigorous

imprisonment for a period of five years and to pay a fine of Rs.

5000/­ and in default  of  payment of fine, to  further undergo

rigorous imprisonment for a period of five months. Being

aggrieved thereby, the present appeals are preferred by the

appellant.

3.          Shri Rajeshwar Singh Thakur, learned counsel for the

appellant, submitted that the conviction as recorded by the

learned trial court and confirmed by the High Court under

Section 498­A of the IPC is not tenable. It is submitted, that the

conviction is only on the basis of the evidence of PW­10 ­ Bishan

Singh, the father of the deceased. It is submitted, that there is

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no corroboration to the said evidence. It is submitted, that in

any case, the conviction under Section 306 of the IPC is not

tenable. It is contended that the charge  was for the offence

punishable under Section 304­B of the IPC, the ingredients of

which are totally different than the ingredients of Section 306 of

the IPC. It is submitted that as such grave prejudice was caused

to the appellant. It is further submitted that the evidence shows

that the father of the deceased, PW­10, has stated, that even

during the course of the trial, the appellant was on congenial

meeting terms with the father of the deceased and as such the

unnatural human conduct would discredit his testimony.

4. Per contra, Smt. Jaspreet Gogia, learned counsel

appearing on behalf of the State, submitted that insofar as

conviction under Section 498­A of the IPC is concerned, since

there is a concurrent finding, no interference is warranted. She

further submitted, that since the ingredients of Section 304­B

and Section 306 of the IPC are almost similar, no prejudice was

caused to the appellant by convicting him under Section 306 of

the IPC though no charge was framed for the same. It is

submitted that all the ingredients necessary for conviction

under Section 306 with the aid of Section 113­A of the Indian

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Evidence Act, 1872 were duly proved by the prosecution and as

such no interference is warranted in the present appeals.

5. The perusal of the record would reveal that though the

appellant has disputed the date of marriage to be 04.02.1989,

both the courts have disbelieved him and rightly so. The

deceased died an unnatural death on 28.09.1994 by consuming

poison. As such, the unnatural death occurred within a period

of seven  years of the  marriage.  The learned trial  Judge  has

acquitted the appellant for the offence punishable under Section

304­B of  the IPC since the prosecution has failed to prove the

demand for dowry, while convicting him along with the parents

for the offence punishable under Section 498­A of the IPC. The

High Court maintained the conviction under Section 498­A of

the IPC, however, it also convicted the appellant for the offence

punishable under Section 306 of the IPC with the aid of Section

113­A of the Indian Evidence Act, 1872.   

6. The question that we are called upon to answer is as to

whether the conviction as confirmed by the High Court under

Section 498­A of the IPC and as recorded by it for the first time

under Section 306 of the IPC would be sustainable or not.

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7. The relevant provisions of the IPC that fall for

consideration are as under:  

“107. Abetment of a thing ­ A person abets the doing of a thing, who—

First.—Instigates any person to do that thing; or

Secondly.—Engages  with one or  more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

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306.  Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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498­A.  Husband or  relative  of  husband of  a  woman subjecting her to cruelty.— Whoever, being the husband  or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and  shall  also  be liable to fine.  Explanation.—For the purposes of this section, “cruelty” 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)

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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.”

8. The relevant provision of the Indian Evidence Act, 1872

that also requires consideration is as follows:

“113­A.   Presumption as to abetment of suicide by a married woman. ­­When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and  it is  shown that  she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of  the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.  ­­  For the  purposes of this section, "cruelty" shall have the same meaning as in section 498A of the IPC (45 of 1860).]”

9. The perusal of the evidence of PW­10 ­ Bishan Singh, the

father of the deceased, would establish that the deceased,

Jaswinder Kaur was married to appellant on 04.02.1989. His

daughter had two issues. The elder one was four years old and

the son was about 1 ½  years old at the time of the occurrence.

He stated, that after the marriage, accused were harassing his

daughter for giving less dowry. In the year 1992, he had given

one steel almirah  to  his  daughter  but the  accused were  not

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satisfied with the dowry article. In March 1993, he had

purchased one fridge through his son­in­law, Jagtar Singh, from

the Military Canteen for Rs. 6,600/­,  which was given to the

accused persons.  Even then the accused were not satisfied. The

accused were pressing his daughter, Jaswinder Kaur, to bring

Rs. 50,000/­ from her parents. He further stated, that the

accused  were compelling  his  daughter out of anger to  bring

Rs. 50,000/­, in cash, as they were to purchase a plot at

Hoshiarpur. He further stated that on two­three occasions, his

daughter came to his Village Kharal Kalan and he requested her

that  Rs.  50,000/­ were  not  with him at that  stage and after

selling the paddy crop he can pay that amount. He stated that,

thereafter, after consoling his daughter, he sent her to her

in­laws house. He further stated, that on 28.09.1994 when he

was in his house, he came to know that his daughter had died.

Suspecting that his daughter was given poison or she consumed

poison, he lodged a report with the police.  

10. To some extent, the evidence of PW­10 is corroborated by

the evidence of PW­13 ­ Iqbal Singh.  He has stated, that prior

to the occurrence, i.e., the death of the deceased there was a

dispute between the accused persons and the deceased,

Jaswinder Kaur, as Rs. 50,000/­ was being demanded by the

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accused persons from the parents of the deceased for

purchasing a plot.  He  further stated, that  the parents of the

deceased could not pay Rs. 50,000/­ and promised to pay the

same after  selling  paddy crop.  He  further  stated, that  before

demand of Rs. 50,000/­, one refrigerator and one almirah was

given to the accused persons by the parents of the deceased on

their demand and this was over and above dowry given at the

time of the marriage.

11.  Thus from the evidence of PW­10 which is corroborated

to an extent by PW­13, we have no hesitation to hold that the

prosecution has proved that the deceased was harassed with a

view to coercing her or any person related to her to meet any

unlawful demand for any property or valuable security or such a

harassment  was  on account  of failure  by  her  or  any  person

related to her to meet such a demand.   We  find, that on the

basis of aforesaid evidence, the prosecution has proved the

charge under Explanation (b) of Section 498­A of the IPC.  

12. Now the question that would fall for consideration is as to

whether when the prosecution establishes cruelty under

Explanation (b) of Section 498­A of the IPC and also establishes

that the deceased committed suicide within seven years of the

marriage, could the accused be also held guilty for the offence

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punishable under Section 306 of the IPC with the aid of Section

113­A of the Indian Evidence Act.  

13. The said question fell for consideration before the bench

of three learned Judges of this Court in the case of  Ramesh

Kumar  vs.  State of Chhattisgarh1.  This Court, after

reproducing the provisions of Section 306 of the IPC and Section

113­A of the Indian Evidence Act, 1872 observed thus:   

“12.  This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26­12­1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in­laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law.  Before the presumption may be raised, the foundation thereof must exist.  A bare reading of Section 113­A shows that to attract applicability of Section 113­A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty.  On existence and availability of the abovesaid circumstances, the court may presume that such  suicide  had  been abetted  by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the  presumption is  not  mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence

1 (2001) 9 SCC 618

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and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression — “the other circumstances of the case” used in Section 113­A suggests the  need  to reach a  cause­and­ effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the  evidence  adduced  in  defence  or the facts and circumstances otherwise  available on record may destroy the presumption. The phrase “may presume” used  in Section 113­A is defined  in Section 4 of the Evidence Act,  which says — “Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

13.  The present case is not one which may fall under clauses secondly and thirdly of Section 107 of the Penal Code, 1860. The case has to be decided by reference to the first clause i.e. whether the accused­appellant abetted the suicide by instigating her to do so.”       

                             (emphasis supplied)

14. It could thus be seen, that this Court has observed that

to attract the applicability of Section 113­A of the Indian

Evidence Act, the following conditions are required to be

satisfied:

(i)  The woman has committed suicide,

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(ii) Such suicide has been committed within a period of   seven years from the date of her marriage,

(iii)  The husband or his relatives, who are charged had  subjected her to cruelty.

15. This  Court further  observed that  on the existence and

availability of the aforesaid circumstances, the court may

presume that such suicide had been abetted by her husband or

by such relatives  of  her  husband. It  has been held that the

presumption is not mandatory; but only permissive as the

words “may presume” suggests.   It has further been held that

the existence and availability of the aforesaid three

circumstances shall not, like a formula, enable the presumption

being drawn.  It has been held that before a presumption being

drawn, the court shall have regard to all other circumstances of

the case. It has been held, that the consideration of all the other

circumstances of the case may strengthen the presumption or

may dictate the conscience of the court to abstain from drawing

the presumption. It thus observed that the expression “the other

circumstances of the case” used in  Section 113­A of the Indian

Evidence Act suggests the need to reach a cause­and­effect

relationship between the cruelty and the suicide for the purpose

of raising a presumption.

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16. It has been further held that when the case does not fall

under clauses secondly and thirdly of Section 107 of the IPC,

the case is to be decided with reference to the first clause, i.e.,

whether the accused­appellant abetted the suicide by

instigating her to do so. It will  be further relevant to refer to

following observations in Ramesh Kumar (supra):

“20.  Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.

21.  In State of W.B. v. Orilal Jaiswal,  (1994) 1 SCC  73, this  Court  has cautioned that the court should  be extremely  careful in  assessing  the facts and circumstances of each case  and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the  court that  a victim committing suicide was hypersensitive to ordinary petulance,  discord  and  differences in  domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to  induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should

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not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

22. Sections 498­A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting  a  woman to  cruelty  may  amount to  an offence under Section 498­A and may also, if a course of conduct amounting to cruelty is established  leaving no other option  for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498­A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned…..”

(emphasis supplied)

 17. The Court observed that instigation is to goad, urge

forward, provoke, incite or encourage to do “an act”.   Though

the court observed that to satisfy the requirement of instigation,

it is not necessary that actual words must be used to that effect

or what constitutes instigation must necessarily and specifically

be suggestive of the consequence. However, it has been

observed that a reasonable certainty to incite the consequence

must be capable of being spelt out.  Relying on the judgment of

this court in the case of State of West Bengal vs. Orilal Jaiswal2,

it is observed that the court should  be  extremely careful in

assessing the facts  and  circumstances  of each  case  and the

2 (1994) 1 SCC 73

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evidence adduced in the trial for the purpose of finding whether

the cruelty meted out to the victim had in fact induced her to

end her life by committing suicide.  It has further been held that

Section 498­A and Section 306 of the IPC are independent and

constitute different offences. It has been observed, that

depending on the facts and circumstances of an individual case,

subjecting a woman to cruelty may amount to an offence under

Section 498­A of the IPC. It has further been observed, that if a

course of conduct amounting to cruelty is established leaving no

other option for the woman except to commit suicide,  it  may

also amount to abetment to commit suicide. It is further

observed, that, however, merely because accused had been held

liable to be punished under Section 498­A of the IPC, it does not

follow that on the same evidence he must also and necessarily

be held guilty of having abetted the commission of suicide by

the woman concerned.  

18. Another three­Judge bench of this Court in the case of K.

Prema S. Rao and Anr.   vs.  Yadla Srinivasa Rao and Ors.3

had an occasion to consider the question as to whether in the

circumstances of framing   charge only under Section 304­B of

the IPC and not framing the one under Section 306 of the IPC,

could the conviction under Section 306 of the  IPC read with

3 (2003) 1 SCC 217

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Section 113­A of the Indian Evidence Act be tenable?   In the

said case, the Court found that the charge specifically

mentioned as under. “That on or about the 22nd day of October, 1989, at your house at  Tunikipadu of  Gampalagudem Mandal,  Yedla Krishna Kumari, wife of A­1 among you and daughter­in­ law  of  A­2  and A­3  among  you, committed  suicide  by consuming poison, and that you all subjected her to such cruelty and harassment as did drive her to commit suicide, with the object of extracting ac. 5.00 of land as dowry to A­1 and thereby committed an offence punishable under Section 304­B of the Indian Penal Code, 1860 and within the cognizance of this court.

or alternatively

That,  prior to the 22nd day of  October,  1989,  at  your house at Tunikipadu, you subjected Yedla Krishna Kumari, wife of A­1 among you and daughter­in­law of A­ 2 and A­3 among you, to such cruelty and harassment as did drive the said Krishna Kumari to commit suicide, and thereby committed an offence punishable under Section 498­A of the Indian Penal  Code,  1860 and within the cognizance of this court.”

19. The court, therefore, held that the ingredients to

constitute an offence under Section 306 of the IPC were already

found in the charge and as such no prejudice was caused to the

accused therein, though no separate charge was framed under

Section 306 of the IPC.  Apart from that, the evidence on record

established that  when the letters concealed  by the  husband

were discovered by the wife and handed over to the father and

she  was  driven out of the  house, this cruel conduct of the

husband led the wife to commit suicide. It could thus be seen,

that in the facts  of the  said case, the  Court found that the

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conviction under Section 306 of the IPC could be recorded. It

was found that, apart from the earlier acts of harassment for

parting with the  land which she had received in marriage as

stridhana, there was an act of driving the deceased out of the

house which had direct  nexus with the deceased committing

suicide.

20.  The bench of two Judges of this Court had an occasion

to consider a similar issue in the case of Hans Raj vs. State of

Haryana4. It will be relevant to refer to following paragraphs:  

“12.    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 IPC with the aid of the presumption under Section 113­A of the Indian Evidence Act. Any person who abets the commission of suicide is liable to be punished under Section 306 IPC. Section 107 IPC lays down the ingredients of abetment which includes  instigating any person to do a thing or engaging with one or more persons 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 113­A 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 113­A further clarifies that cruelty shall have the same meaning as in Section 498­A of the Indian Penal Code…...

4 (2004) 12 SCC 257

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13.  Unlike Section 113­B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113­A of the Indian Evidence Act. Under Section 113­A 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 113­A 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 the  word “cruelty” in Section 498­A IPC. 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……”

21. The court found that  in the case there was 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. It has been held

that  when the allegation is of cruelty, it must consider the

nature  of cruelty to  which the  woman was  subjected  having

regard to the meaning of the word “cruelty” in Section 498­A of

IPC. It has been held that one of the circumstances which has

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to be taken into consideration by the court is whether the

alleged cruelty was of such a 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.  

22. This court in the case of  Hans  Raj  (supra) has also

referred to the judgment of this court in the case of  State of

West Bengal vs. Orilal Jaiswal (supra), wherein it is observed

that the requirement of proof beyond reasonable doubt does not

stand altered even after the introduction of Section 498­A of the

IPC and Section 113­A of the Indian Evidence Act.  

23. It will be relevant to refer to the following observations

of this Court in the case of  Pinakin Mahipatray Rawal   vs.

State of Gujarat5 :  

“26.  Section  113­A  only  deals  with  a  presumption which the court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill­treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498­A IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn,  the burden of proof of showing that such an offence has been

5 (2013) 10 SCC 48

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committed by the accused under Section 498­A IPC is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A­1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extramarital affair was of such a degree which was likely to drive the wife to commit suicide.

27.  Section 306 refers to abetment of suicide. It says that if  any person commits suicide,  whoever  abets  the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable  doubt that the  deceased  committed suicide and the accused abetted the commission of suicide. But for the alleged extramarital relationship, which  if  proved,  could be  illegal  and  immoral,  nothing has been brought out by the prosecution to show that the accused  had provoked, incited or induced the wife to commit suicide.”

24. It has thus been observed that though presumption could

be drawn, the burden of proof of showing that such an offence

has been committed by the accused is on the prosecution. The

prosecution has to establish beyond reasonable doubt that the

accused had instigated, conspired or intentionally aided so as to

drive the wife to commit suicide.

25. In  Mangat Ram  vs.  State of Haryana6  this Court

observed thus:

“28.  We have  already  indicated  that the trial court has found that no offence under Section 304­B IPC has

6 (2014) 12 SCC 595

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been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been  framed on  that  section against the  accused. The scope and ambit of  Section 306 IPC has not been properly appreciated by the courts below. ………..  

Abetment of  suicide  is confined to the case of  persons who aid or abet the commission of the suicide. In  the matter  of  an offence under  Section 306  IPC,  abetment must attract the definition thereof in Section 107  IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself  in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide.”

26. After observing the aforesaid, this Court, relying on the

judgment of this Court in the case of  Hans Raj  (supra),

observed that even if it is established that the woman concerned

had committed suicide within a period of seven years from the

date of  marriage and that her husband has subjected her to

cruelty, the  court is  not  bound  to  presume that  suicide  has

been abetted by her husband. It is required to take into

consideration all other circumstances of the case.

27. It could thus be seen, that the view taken by the

three­Judge Bench of this Court in the case of Ramesh Kumar

(supra)  that when a case does not fall under clause secondly or

thirdly, it has to be decided with reference to the first clause,

22

i.e., whether the accused has abetted the commission of suicide

by intentionally instigating her to do so; has been consistently

followed. As such, we are of the view that merely because an

accused is found guilty of an offence punishable under Section

498­A of the IPC and the death has occurred within a period of

seven years of the marriage, the accused cannot be

automatically held guilty for the offence punishable under

Section 306 of the  IPC by employing  the presumption under

Section 113­A of the Evidence Act. Unless the prosecution

establishes that some act or illegal omission by the accused has

driven the deceased to commit the suicide, the conviction under

Section 306 would not be tenable.

28. Insofar as the  judgment of this Court  in  K. Prema S.

Rao  (supra), on which the High Court had relied, is concerned,

we have already discussed hereinabove  that in  the said case

there was evidence on record proving that immediately prior to

committing the suicide the deceased was driven out of the

house. As such, it was held that the said cruelty would amount

to abetment to commit suicide.

29. Insofar as the judgment of this Court in  Modinsab

Kasimsab Kanchagar   vs.   State of Karnataka & Anr.7  is

concerned, no doubt that the learned counsel for the State is

7 (2013) 4 SCC 551

23

justified in relying on the said judgment as the conviction in the

said case is for the offence punishable under Section 498­A of

the IPC and Sections 3,  4 & 6 of the Dowry Prohibition Act,

1961. However, in the said case, the conviction under Section

304­B of the IPC was  set  aside  by this  Court.  However, the

question, as to whether when the charge is framed only under

Section 304­B of the IPC could the conviction be recorded under

Section 306 of the IPC did not fall for consideration in the said

case.

30. In the case of  Thanu Ram  vs.  State of Madhya

Pradesh8  this Court by observing that on account of interplay

between Section 113­A of the Indian Evidence Act,  1872 and

Sections 498­A, 107 and 306 of the IPC, held that the appellant

was liable for conviction for the offence punishable under

Section 498­A and Section 306 of the IPC. However, it is to be

noted that in the said case the Court relied on the dying

declaration of the deceased wherein she stated  that  she had

been treated with both mental and physical cruelty. In the said

case, there was a dying declaration of the deceased which was

believed by the court. The said dying declaration was

corroborated by the evidence of PW­13, on the basis of which

8 (2010) 10 SCC 353

24

the Court held that the ill treatment was such which triggered

her immediate intention to commit suicide.

31. In the case of  Satish Shetty  vs.  State of Karnataka9

the victim was found to have injuries on her person. Though,

the deceased and the husband had slept together in the same

room before she consumed poison, the appellant­husband had

not at all explained the injuries sustained by the victim. In these

circumstances, the conviction under Section 306 of the IPC, as

recorded by the High Court for the first time, was maintained by

this Court.

32. Insofar as the judgment of this Court in the case of

Narwinder Singh  vs.  State of Punjab10,  it is by the two

learned Judges of this Court and it does not take into

consideration the judgment by three learned Judges of this

Court in Ramesh Kumar (supra)..

33. Applying the aforesaid principles to the present case, we

find that though the prosecution is successful in proving the

case under Section 498­A of the IPC, we are of the view that the

prosecution has failed to prove that the cruelty was of such a

nature  which  left  no  choice to the  deceased  than  to  commit

suicide. The prosecution has not been in a position to place on

9 (2016) 12 SCC 759 10 (2011) 2 SCC 47

25

record any evidence to establish beyond reasonable doubt that

any act or omission of the accused instigated the deceased to

commit suicide.   There is no material on record to show that

immediately prior to the deceased committing suicide there was

a cruelty  meted  out to the  deceased  by the  accused  due to

which the deceased had no other option than to  commit the

suicide. We are of the view, that there is no material placed on

record to reach  a cause  and effect relationship  between the

cruelty and the suicide for the purpose of raising presumption.  

34. It could further be seen from the evidence on record that

the time gap between the last visit of the deceased to her

parents with regard to the illegal demand and the date of

commission of suicide is about two months.   As such, there is

nothing on record to show that there was a proximate nexus

between the commission of suicide and the illegal demand made

by the appellant.  In the case of  Sanju Alias Sanjay Singh

Sengar vs.  State of M.P.11 this Court found that there was time

gap of 48 hours between the accused telling the deceased ‘to go

and die’ and the deceased ‘committing suicide’.    As such, this

Court  held that there  was  no  material to establish that the

accused had abetted the suicide committed by the deceased.  

11 [ (2002) 5 SCC 371]

26

35. Another aspect that needs consideration is that the cases

wherein this Court has held that the conviction under Section

306 of the IPC was tenable though charge was only under

Section 304­B of the IPC, it was found the charge specifically

stated that the deceased was driven to commit suicide on

account of cruelty meted out to the deceased. However, in the

present case, the charge reads thus:

“That you all on 28.9.94 in the area of Village Bohan, the  death of Jaswinder  Kaur  wife of you, Gurjit Singh  and daughter­in­law of you, Gurdial Singh and Mohinder Kaur and sister­in­law of Ranjit Kaur, was caused otherwise than under normal circumstances, you all being her relatives, within a period of seven years of her marriage subjected to her to cruelty and harassment for all in connection with demand for dowry and thereby committed an offence of dowry death punishable under section 304­B of the Indian Penal Code, and within my cognizance.”

36. It would thus be seen, that the charge does not state that

the deceased was driven to commit suicide on account of the

harassment meted out to the deceased. It also does not mention

that the accused had abetted in commission of suicide by the

deceased. In that view of the matter, we are of the considered

view that the cases wherein conversion is held to be permissible

are clearly distinguishable.

37. In the foregoing  circumstances, the  appeals  are  partly

allowed. Conviction under Section 498­A of the IPC is

27

maintained and the conviction under Section 306 of the IPC is

set aside. The appellant is acquitted of the charge under Section

306 of the IPC.

38. The appellant is stated to be on bail, his bail bonds shall

stand discharged and he  is directed to surrender within four

weeks for serving the remaining period of his sentence, if not

already undergone.  39.

       .........................J.                                                [NAVIN SINHA]

......................J.                                                   [B.R. GAVAI]

NEW DELHI; NOVEMBER 26, 2019.