Patna High Court
Md. Soma Alam vs The State Of Bihar on 27 November, 2024
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.883 of 2019
Arising Out of PS. Case No.-63 Year-2011 Thana- BAISI District- Purnia
======================================================
Md. Soma Alam Son of Late Sk. Gharru @ Late Md. Dhiru Resident of
Village - Kanharia, P.S.- Baisi, (Dagaruwa), District - Purnea
... ... Appellant
Versus
The State Of Bihar
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Kumar Praveen, Advocate
For the Respondent : Mr. Jharkhandi Upadhyay, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 27-11-2024
Heard learned counsel for the appellant and learned
APP for the State.
2. The present appeal has been filed against
the judgment of conviction and order of sentence dated
15.12.2018
passed by the learned 3rd Additional District and
Sessions Judge, Purnea, in Session Trial No. 1500/2012
(C.I.S. No. 3501/2013), arising out of Baisi P.S. Case No.
63/2011 (G.R.No. 724/2011), by which the appellant was
convicted and sentenced to undergo rigorous imprisonment
for seven years for the offence under section 306 of the
Indian Penal Code and rigorous imprisonment for two years
for offence under section 498-A of the Indian Penal Code and
further a fine of Rs.10,000/- was imposed and in default of
payment of fine, the appellant has to undergo simple
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imprisonment for 6 months. Both the sentences are directed to
run concurrently.
3. The prosecution case is that one Shekh
Sahid, the father of the deceased, gave his statement before
the police on 28.03.2011 that he received a telephonic call
from the sasural of his daughter that his daughter died due to
consumption of poison. After getting such information, he
along with his wife, Bibi Sakunia and other family members
went to the sasural of his daughter, where he found that the
dead body of his daughter was lying in the courtyard of the
house. On query, he came to know that his son-in-law (the
appellant) used to torture and assault her and on account of the
torture, his daughter administered poison and died on
27.03.2011. On the basis of the aforesaid statement, Baisi P.S.
Case No.63 of 2011 dated 28.03.2011 was registered under
section 306 of the Indian Penal Code against the accused
persons.
4. After registration of the F.I.R., the police
investigated the case and submitted charge sheet against the
sole accused-appellant vide Charge Sheet No. 58 of 2011
dated 25.05.2011 under section 306 and 498-A of the Indian
Penal Code and rest two accused persons were not charge-
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sheeted. After receipt of the charge sheet, the learned court
below took cognizance of the aforesaid offence against the
appellant vide order dated 17.01.2013 and thereafter, the case
was committed to the Court of Sessions for trial. The charges
were framed on 17.01.2013 against the appellant for the
aforesaid offence. During the trial, the prosecution has
examined altogether 10 witnesses, who are as follows :-
P.W. 1- Sayeed Akhtar
P.W. 2- Dr. Sudhanshu Kumar
P.W. 3- Md. Hodda(hostile)
P.W. 4-Md. Samshud(hostile)
P.W. 5- Md. Bholu @ Shekh Bholu
P.W. 6- Saheed
P.W. 7- Sakunia
P.W. 8- Abdul Rahman
P.W. 9- Anoj Kumar
P.W. 10- Sandeep Kumar Anand
5. Certain documents were also exhibited on
behalf of the prosecution, which are as follows :-
Ext. 1- Post Mortem Report.
Ext. 2- Signature of Md. Samshul on inquest report.
Ext. 2/1- Signature of Abdul Rahman on inquest
report.
Ext. 2/2- Inquest report.
Ext. 3- Signature of Rizwan Ahmed on formal F.I.R.
Ext. 4- Writing and signature of Sandeep Kumar
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Ext. 4/1- Writing and signature on forwarding of
S.H.O. Arbind Kumar.
6. The trial court vide impugned judgment and
and sentence convicted the appellant for the offence under
sections 306 and 498-A of the Indian Penal Code as stated
above.
7. Learned counsel for the appellant submits
that prior to the present case, no case of torture or assault of
any kind had been lodged by the deceased or her family
members. He further submits that during the course of
investigation, the Investigating Officer has failed to collect the
evidence which could suggest the involvement of the
appellant in the occurrence.
8. Learned counsel for the appellant has drawn
the attention of this Court to the deposition of the witnesses
and has submitted that out of 10 prosecution witnesses, P.W. 3
& P.W. 4 have been declared hostile. P.W. 6, who is the
informant of the case, has also denied the allegation of
demand of dowry and torture. The trial Court has failed to
examine and establish the alleged acts that were done by the
appellant which led to the deceased consuming poison.
9. Learned counsel for the appellant has relied
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upon a judgment of the Hon’ble Supreme Court in the case of
Naresh Kumar v. State of Haryana reported in (2024) 3 SCC
573 and has submitted that the ingredients of the offence
under Section 306 of the IPC are not made out against the
appellant. He has further submitted that in the FIR, the
informant (PW-6) has not mentioned any demand of dowry
and has stated that the neighbours informed him about the
torture meted out to the deceased by the appellant.
10. It has been submitted by the learned counsel
for the appellant that the ingredients of Section 498-A is also
not made out in the present case as none of the witnesses have
said that the appellant of his family members use to demand
dowry from the deceased or she was tortured for dowry. The
learned counsel has also submitted that during the trial the
informant and other witnesses have introduced the demand of
Rs. 50,000/- by the appellant and his family members.
11. It has been argued by the learned counsel
for the appellant that there is contradiction in the statement of
the informant and other witnesses and therefore the statement
of the informant cannot be believed.
12. Learned counsel for the appellant has
placed reliance on the following decisions of the Hon’ble
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Supreme Court :-
(i) Naresh Kumar v. State of Haryana reported in
(2024) 3 SCC 573
(ii) Sanju @ Sanjay Singh Sengar vs. State of M.P.
reported as (2002) 5 SCC 371
(iii) Gangula Mohan Reddy vs. State of A.P. reported
as (2010) 1 SCC 750
(iv) Gurcharan Singh vs. State of Punjab reported as
(2017) 1 SCC 433.
13. Mr. Jharkhandi Upadhyay, learned APP for
the State has submitted that the conviction has to be upheld in
view of the evidences available on record. He submits that the
witnesses have supported the prosecution case and the
deceased had committed suicide because of demand of dowry
and torture at the hands of the appellant.
14. I have considered the submissions of the
parties. PW-6, the informant in his fardbeyan given on
28.03.2011, has said that his daughter was being tortured by
the appellant and because of the torture meted-out to her, she
consumed poison on 27.03.2011 and died. The informant has
said that he came to know about the death of his daughter
from her neighbours and he also came to know that his
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daughter (the deceased) was regularly assaulted and tortured
by the appellant due to which she committed suicide.
15. The Hon’ble Supreme Court in the case of
Naresh Kumar v. State of Haryana reported in (2024) 3 SCC
573 has considered the various aspects of conviction under
Sections 306 and 498A of the IPC, the law for convicting the
accused for abetment to commit suicide. The following
paragraphs of the aforesaid judgment are relevant for the
present case:
“13. We have looked into the evidence of PW 4 i.e. the
brother of the deceased and also the evidence of
PW 5 i.e. the father of the deceased. Both these
witnesses have only stated that after the
marriage, there was a demand of some money by
the convict, as he wanted to start a ration shop.
It appears from the evidence of both these
witnesses that on account of such demand, the
deceased used to remain tense.
14. What ultimately led the deceased to take such a
drastic step of committing suicide is not clear. To
put it in other words, the plain reading of the
oral evidence of both these witnesses does not
disclose any form of incessant cruelty or
harassment on the part of the husband which
would in ordinary circumstances drag the wife to
commit suicide as if she was left with no other
alternative. Mere demand of money from the wife
or her parents for running a business without
anything more would not constitute cruelty or
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15. Section 306IPC reads as under:
“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.”
16. Thus, the basic ingredients to constitute an offence
under Section 306 IPC are suicidal death and
abetment thereof. Abetment of a thing is defined
under Section 107 IPC 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; orThirdly.–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.
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9/24Explanation 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
facilitate the commission thereof, is said
to aid the doing of that act.”
17. This Court in Geo Varghese v. State of Rajasthan
[Geo Varghese v. State of Rajasthan, (2021) 19
SCC 144] , considering the provisions of Section
306IPC along with the definition of abetment
under Section 107IPC observed as under : (SCC
pp. 149-50, paras 14-16)
“14. Section 306IPC makes abetment of
suicide a criminal offence and prescribes
punishment for the same. …
15. The ordinary dictionary meaning of
the word “instigate” is to bring about or
initiate, incite someone to do something.
This Court in Ramesh Kumar v. State of
Chhattisgarh [Ramesh Kumar v. State of
Chhattisgarh, (2001) 9 SCC 618 : 2002
SCC (Cri) 1088] , has defined the word
“instigate” as under : (SCC p. 629, para
20)
20. Instigation is to goad, urge forward,
provoke, incite or encourage to do “an
act”.’
16. The scope and ambit of Section
107IPC and its co-relation with Section
306IPC has been discussed repeatedly by
this Court. In S.S. Chheena v. Vijay
Kumar Mahajan [S.S. Chheena v. Vijay
Kumar Mahajan, (2010) 12 SCC 190 :
Patna High Court CR. APP (SJ) No.883 of 2019 dt.27-11-2024
10/24(2011) 2 SCC (Cri) 465] , it was observed
as under : (SCC p. 197, para 25)’25. Abetment involves a mental process
of instigating a person or intentionally
aiding a person in doing of a thing.
Without a positive act on the part of the
accused to instigate or aid in committing
suicide, conviction cannot be sustained.
The intention of the legislature and the
ratio of the cases decided by the Supreme
Court is clear that in order to convict a
person under Section 306IPC there has to
be a clear mens rea to commit the offence.
It also requires an active act or direct act
which led the deceased to commit suicide
seeing no option and that act must have
been intended to push the deceased into
such a position that he committed
suicide.’
18. This Court in M. Arjunan v. State [M. Arjunan v.
State, (2019) 3 SCC 315 : (2019) 2 SCC (Cri)
219] , while explaining the necessary ingredients
of Section 306IPC in detail, observed as under :
(SCC p. 317, para 7)
“7. The essential ingredients of the
offence under Section 306IPC are : (i) the
abetment; (ii) the intention of the accused
to aid or instigate or abet the deceased to
commit suicide. The act of the accused,
however, insulting the deceased by using
abusive language will not, by itself,
constitute the abetment of suicide. There
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that the accused intended by such act to
instigate the deceased to commit suicide.
Unless the ingredients of
instigation/abetment to commit suicide
are satisfied, the accused cannot be
convicted under Section 306 IPC.”
19. This Court in Ude Singh v. State of Haryana
[Ude Singh v. State of Haryana, (2019) 17 SCC
301 : (2020) 3 SCC (Cri) 306] , held that in
order to convict an accused under Section
306IPC, the state of mind to commit a particular
crime must be visible with regard to determining
the culpability. It was observed as under : (SCC
pp. 321-22, para 16)
“16. In cases of alleged abetment of
suicide, there must be a proof of direct or
indirect act(s) of incitement to the
commission of suicide. It could hardly be
disputed that the question of cause of a
suicide, particularly in the context of an
offence of abetment of suicide, remains a
vexed one, involving multifaceted and
complex attributes of human behaviour
and responses / reactions. In the case of
accusation for abetment of suicide, the
court would be looking for cogent and
convincing proof of the act(s) of
incitement to the commission of suicide.
In the case of suicide, mere allegation of
harassment of the deceased by another
person would not suffice unless there be
such action on the part of the accused
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which compels the person to commit
suicide; and such an offending action
ought to be proximate to the time of
occurrence. Whether a person has abetted
in the commission of suicide by another
or not, could only be gathered from the
facts and circumstances of each case.
16.1. For the purpose of finding out if a
person has abetted commission of suicide
by another, the consideration would be if
the accused is guilty of the act of
instigation of the act of suicide. As
explained and reiterated by this Court in
the decisions above referred, instigation
means to goad, urge forward, provoke,
incite or encourage to do an act. If the
persons who committed suicide had been
hypersensitive and the action of accused
is otherwise not ordinarily expected to
induce a similarly circumstanced person
to commit suicide, it may not be safe to
hold the accused guilty of abetment of
suicide. But, on the other hand, if the
accused by his acts and by his continuous
course of conduct creates a situation
which leads the deceased perceiving no
other option except to commit suicide, the
case may fall within the four corners of
Section 306 IPC. If the accused plays an
active role in tarnishing the self-esteem
and self-respect of the victim, which
eventually draws the victim to commit
suicide, the accused may be held guilty of
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abetment of suicide. The question of mens
rea on the part of the accused in such
cases would be examined with reference
to the actual acts and deeds of the
accused and if the acts and deeds are only
of such nature where the accused
intended nothing more than harassment
or snap show of anger, a particular case
may fall short of the offence of abetment
of suicide. However, if the accused kept
on irritating or annoying the deceased by
words or deeds until the deceased reacted
or was provoked, a particular case may
be that of abetment of suicide. Such being
the matter of delicate analysis of human
behaviour, each case is required to be
examined on its own facts, while taking
note of all the surrounding factors having
bearing on the actions and psyche of the
accused and the deceased.”
20. This Court in Mariano Anto Bruno v. State
[Mariano Anto Bruno v. State, (2023) 15 SCC
560 : 2022 SCC OnLine SC 1387] , after
referring to the abovereferred decisions rendered
in context of culpability under Section 306IPC
observed as under : (SCC para 45)
“45. … It is also to be borne in mind that
in cases of alleged abetment of suicide,
there must be proof of direct or indirect
acts of incitement to the commission of
suicide. Merely on the allegation of
harassment without there being any
positive action proximate to the time of
occurrence on the part of the accused
which led or compelled the person to
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commit suicide, conviction in terms of
Section 306 IPC is not sustainable.”
21. This Court in Gurcharan Singh v. State of Punjab
[Gurcharan Singh v. State of Punjab, (2020) 10
SCC 200 : (2021) 1 SCC (Cri) 417] , observed
that whenever a person instigates or
intentionally aids by any act or illegal omission,
the doing of a thing, a person can be said to have
abetted in doing that thing. To prove the offence
of abetment, as specified under Section 107IPC,
the state of mind to commit a particular crime
must be visible, to determine the culpability.
22. This Court in Kashibai v. State of Karnataka
[Kashibai v. State of Karnataka, (2023) 15 SCC
751 : 2023 SCC OnLine SC 575] , observed that
to bring the case within the purview of
“abetment” under Section 107IPC, there has to
be an evidence with regard to the instigation,
conspiracy or intentional aid on the part of the
accused and for the purpose proving the charge
under Section 306IPC, also there has to be an
evidence with regard to the positive act on the
part of the accused to instigate or aid to drive a
person to commit suicide.
23. Had there been any clinching evidence of
incessant harassment on account of which the
wife was left with no other option but to put an
end to her life, it could have been said that the
accused intended the consequences of his act,
namely, suicide. A person intends a consequence
when he : (1) foresees that it will happen if the
given series of acts or omissions continue, and
(2) desires it to happen. The most serious level of
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culpability, justifying the most serious levels of
punishment, is achieved when both these
components are actually present in the accused’s
mind (a “subjective” test).
24. For intention in English law, Section 8 of the
Criminal Justice Act, 1967 provides the frame in
which the mens rea is assessed. It states:
“A court or jury, in determining whether
a person has committed an offence,
(a) shall not be bound in law to infer that
he intended or foresaw a result of his
actions by reasons only of its being a
natural and probable consequence of
those actions; but
(b) shall decide whether he did intend or
foresee that result by reference to all the
evidence, drawing such inferences from
the evidence as appear proper in the
circumstances.”
Under Section 8(b), therefore, the jury is allowed
a wide latitude in applying a hybrid test to
impute intent or foresight on the basis of all the
evidence.
25. It is now well settled that in order to convict a
person under Section 306IPC there has to be a
clear mens rea to commit the offence. Mere
harassment is not sufficient to hold an accused
guilty of abetting the commission of suicide. It
also requires an active act or direct act which led
the deceased to commit suicide. The ingredient of
mens rea cannot be assumed to be ostensibly
present but has to be visible and conspicuous.
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26. We take notice of the fact that the High Court has
laid much emphasis on Section 113-A of the
Evidence Act.
27. Section 113-A of the Evidence Act reads thus:
113-A. 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 498-A of the Indian Penal Code (45 of
1860).”
28. This Section was introduced by Criminal Law
(Second Amendment) Act 46 of 1983. The Penal
Code, the Code of Criminal Procedure, 1973 and
the Evidence Act were amended keeping in view
the dowry death problems in India.
29. Section 113-A of the Evidence Act requires proof :
(1) that her husband or relatives subjected her to
cruelty, and (2) that the married woman
committed suicide within a period of seven years
from the date of her marriage.
30. Although, it is not necessary for us to refer to
Section 113-B of the Evidence Act which raises
presumption as to dowry death yet with a view to
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indicate the fine distinction between the two
presumptions we are referring to Section 113-B.
In Section 113-A the legislature has used the
word “may”, whereas in Section 113-B the word
used is “shall”.
31. In this appeal, we are concerned with Section 113-
A of the Evidence Act. The mere fact that the
deceased committed suicide within a period of
seven years of her marriage, the presumption
under Section 113-A of the Evidence Act would
not automatically apply. The legislative mandate
is that where 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, the presumption under
Section 113-A of the Evidence Act may be raised,
having regard to all other circumstances of the
case, that such suicide had been abetted by her
husband or by such relative of her husband.
32. What is important to note is that the term “the
court may presume having regard to all other
circumstances of the case that such suicide had
been abetted by her husband” would indicate
that the presumption is discretionary, unlike the
presumption under Section 113-B of the Evidence
Act, which is mandatory. Therefore, before the
presumption under Section 113-A is raised, the
prosecution must show evidence of cruelty or
incessant harassment in that regard.
33. The court should be extremely careful in
assessing evidence under Section 113-A for
finding out if cruelty was meted out. If it
transpires that a victim committing suicide was
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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 would not be satisfied
for holding that the accused charged of abetting
the offence of suicide was guilty.
34. Section 113-A has been interpreted by this Court
in Lakhjit Singh v. State of Punjab [Lakhjit Singh
v. State of Punjab, 1994 Supp (1) SCC 173 :
1994 SCC (Cri) 235] , Pawan Kumar v. State of
Haryana [Pawan Kumar v. State of Haryana,
(1998) 3 SCC 309 : 1998 SCC (Cri) 740] and
Shanti v. State of Haryana [Shanti v. State of
Haryana, (1991) 1 SCC 371 : 1991 SCC (Cri)
191] .
35. This Court has held that from the mere fact of
suicide within seven years of marriage, one
should not jump to the conclusion of abetment
unless cruelty was proved. The court has the
discretion to raise or not to raise the
presumption, because of the words “may
presume”. It must take into account all the
circumstances of the case which is an additional
safeguard.
36. In the absence of any cogent evidence of
harassment or cruelty, an accused cannot be held
guilty for the offence under Section 306IPC by
raising presumption under Section 113-A.
37. Before we part with this matter, we may only
observe that the criminal justice system of ours
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can itself be a punishment. It is exactly what has
happened in this case. It did not take more than
10 minutes for this Court to reach to an
inevitable conclusion that the conviction of the
appellant convict for the offence punishable
under Section 306IPC is not sustainable in law.
The ordeal for the appellant started sometime in
1993 and is coming to the end in 2024 i.e. almost
after a period of 30 years of suffering. At the
same time, we are also mindful of the fact that a
young woman died leaving behind her 6-month-
old infant. No crime should go unpunished. But
at the same time, the guilt of the accused has to
be determined in accordance with law. To put it
in other words, the guilt of the accused has to be
determined on the basis of legal evidence on
record.
38. The question is : On what and where did the two
courts falter? In our opinion, the two courts
faltered as they failed to apply the correct
principles of law to the evidence on record on the
subject of abetment of suicide. The two courts
got enamoured by just three things : (i) the
deceased committed suicide within seven years of
marriage, (ii) the accused was demanding money
from the parents of the deceased for starting
some business, and (iii) the deceased used to
remain tense. We do not say that these are
irrelevant considerations. All the three aspects
are relevant. But there are settled principles of
law to be made applicable to the matters of the
present type.
39. In the case of accusation for abetment of suicide,
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the court should look for cogent and convincing
proof of the act of incitement to the commission
of suicide and such an offending action should be
proximate to the time of occurrence.
Appreciation of evidence in criminal matters is a
tough task and when it comes to appreciating the
evidence in cases of abetment of suicide
punishable under Section 306IPC, it is more
arduous. The court must remain very careful and
vigilant in applying the correct principles of law
governing the subject of abetment of suicide
while appreciating the evidence on record.
Otherwise it may give an impression that the
conviction is not legal but rather moral.
40. For all the foregoing reasons, we have reached to
the conclusion that the prosecution has not been
able to establish the guilt of the accused beyond
reasonable doubt.”
16. Whether the offence under Section 498A
and 306 of the IPC are made out against the appellant or not
has to be considered after examining the evidence of the
witnesses examined by the prosecution. PW-1, PW-3 and PW-
4 have been declared hostile. PW-5 is Mama (maternal uncle)
of the deceased. He has deposed that on the date of
occurrence, he was at his village and after hearing about the
death of her neice, he came to the village of the deceased. He
did not know how the deceased died. There was a black mark
on the face of the deceased. He has said that the husband and
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wife i.e. the appellant and the deceased used to fight and on
some occassions, he had mediated between them. He has
visited the house of the deceased two or three months before
the date of occurrence.
17. PW-6 is the father of the deceased. He has
deposed that the marriage was solemnized one year before the
date of occurrence. The informant had given sufficient dowry
as per his financial status. She came back to her parental home
after Vidai and she stayed there for six months. After that, she
was taken to her sasural where her in-laws used to fight with
the deceased. The deceased used to inform her brother, Abdul
Karim, who was working in Punjab and who in turn used to
inform the informant to inquire about his daughter from the
sasural of the deceased. The informant further stated that Rs.
50,000/- was demanded by the appellant but the informant
was unable to fulfill the said demand. The informant states
that when he reached the house of his deceased daughter, he
found her dead. The family members had fled away and the
dead body was lying in the Verandah of the house. When he
reached the house, the police had already reached the place of
occurrence. After post-mortem, the informant took the dead
body of his daughter and the last rites were done.
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18. PW-7 is the step-mother of the deceased.
She has said that the appellant used to demand Rs. 50,000/- and
because of non-payment, the appellant has done this act.
19. PW-8 is the witness on the inquest report.
PW-9 and PW-10 are the Investigation Officer.
20. From the FIR and the deposition of PW-5
and PW-6, it appears that the deceased was married with the
appellant around one year before the date of occurrence and
there were disputes between them. There is no independent
witness who has supported the allegation of torture or
mistreatment. While reading the FIR as well as, from the
evidence of PW-4, PW-5 and PW-6, it appears that the husband
and wife used to quarrel. The prosecution has not been able to
prove the demand of dowry. It appears that the allegation of
demand of dowry has subsequently been introduced during the
trial.
21. To convict the appellant under Section 306
of the IPC, it has to be proved that the appellant has aided or
instigated the commission of suicide by the deceased. The
dispute between husband and wife prior to the deceased
having committed suicide will not result into offence of
abetment by the appellant. The prosecution must prove the
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willful conduct of the appellant forcing the deceased to
commit suicide or causing grave injury or danger to life or
health.
22. The witnesses have made a general
statement of torture and cruelty which will fall short of
abetment i.e. any act committed by the accused which aids or
instigates the commission of suicide by the deceased. Mere
commission of suicide by the deceased without any such acts
of the accused would not result in the conviction of the
accused. The prosecution has failed to establish that the
actions of the appellant was in the nature of instigation or that
the appellant actively engaged in a conspiracy or that he
intentionally aided in the commission of suicide.
23. PW-2 has given the reason of death as
consumption of poison by the deceased. The consumption of
poison has also been supported by the FSL report.
24. So far as the offence under Section 498A of
the IPC is concerned, in my opinion, the ingredients of that
offence are also lacking in the present case. The witnesses
have not given specific statement with regard to cruelty meted
out to the deceased for making out a case under Section 498A
unless and until the prosecution is able to prove the offence of
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cruelty, the presumption under Section 113 B of the Evidence
Act cannot be drawn and therefore, the appellant cannot be
asked to prove his innocence.
25. In the facts of the case and in view of the
discussions made above, I am of the view that no offence
under Section 306 and 498A is made out against the appellant.
Therefore the impugned judgment of conviction and order of
sentence dated 15.12.2018 passed by the learned 3rd
Additional District and Sessions Judge, Purnea, in Session
Trial No. 1500 of 2012 is hereby set aside.
26. The present appeal is allowed.
(Sandeep Kumar, J)
kiran/-
AFR/NAFR N.A.F.R. CAV DATE N/A Uploading Date 21.12.2024. Transmission Date 21.12.2024.