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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.790/2017

(@Petition(s) for Special Leave to Appeal (Crl.) No(s).1165/2017) HEERA LAL AND ANR                                  Appellant(s)                                 VERSUS STATE OF RAJASTHAN                                 Respondent(s)

J U D G M E N T 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

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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

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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 interference at our end.  6. Having heard the learned counsel appearing for the parties and having  gone  through  the  evidence,  we  are  of  the  opinion  that Section 113A of the Indian Evidence Act requires three ingredients to be satisfied before it can be applied i.e., (i) that a woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage and (iii) the husband  or  his  relatives  who  are  charged  had  subjected  her  to cruelty.

-4- 7. This Court in an illuminating Judgment in Ramesh Kumar vs. State  of  Chhattisgarh  (2001)  9  SCC  618  has  stated  the  law  as follows:-

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“This provision was introduced by the Criminal Law (Second) Amendment  Act,  1983  with  effect  from  26-12-1983  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 in-laws 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  113-A  shows  that  to  attract applicability of Section 113-A, 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  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 113-A suggests the

-5- need  to  reach  a  cause-and-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

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otherwise available on record may destroy the presumption. The phrase  “may  presume”  used  in  Section  113-A  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.”

8. We find that having absolved the appellants of the charge of cruelty, which is the most basic ingredient for the offence made out under Section 498A, the third ingredient for application of Section  113A  is  missing,  namely,  that  the  relatives  i.e.,  the mother-in-law and father-in-law who are charged under Section 306 had subjected the victim to cruelty. No doubt, in the facts of this case, it has been concurrently found that the in-laws did harass her, but harassment is something of a lesser degree than cruelty. Also,  we  find  on the facts, taken as a whole, that assuming the presumption  under  Section  113A  would  apply,  it  has  been  fully rebutted, for the reason that there is no link or  intention  on the  part  of the in-laws to assist the victim to commit suicide. 9. In the absence of this vital link, the mere fact that there is a finding of harassment would not lead to the conclusion that there is “abetment of suicide”. 10 On the facts, therefore, we find, especially in view of the fact  that  the  appellants have been acquitted for the crime under

-6- Section 498 A of the Code, that abetment of suicide under Section 306 is not made out. 11. In the circumstances, we set aside the impugned Judgment of the High Court. If incarcerated, the appellants shall be released forthwith.

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12. The appeal is allowed in the afore-stated terms.

.......................J (ROHINTON FALI NARIMAN)

.........................J     (MOHAN M. SHANTANAGOUDAR) NEW DELHI; 24TH APRIL, 2017.

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