Judgment:
R.P. Gupta, J.
1. The appellant is the husband Of deceased Radhikabai She hanged herself in her matrimonial home on 5th of Jan. 86. The husband was tried for abetting the suicide punishable under Section 396, I.P.C. and has been found guilty of that offence vide judgment dated 15-1-87. He has also been convicted under Section 498A, I. P. C, for treating her with cruelty. He was sentenced to R. I. for 3l/2 years for the offence punishable under Section 306, I.P.C. and R. I. for 2 years for the offence punishable under Section 498A, I.P.C. The sentence are to run concurrently.
2. There is no clear evidence on record as to when the appellant and the deceased were married, nor there is any finding about it By the trial Court. However, the trial Court found the appellant guilty on proof of the following facts :
i) That she (deceased) had given birth to four children from the accused, out of whom only one is alive.
ii) That the deceased had suffered an operation for removal of her womb after the last child, but she continued to be ill.
iii) That the husband was not providing her with sufficient maintenance although she had to live in the husband's house in the presence of the 2nd wife of the husband.
iv) That she had to sell three Khandis of paddy to P. W. 3 Nanku in order to support herself and her child.
v) That the husband accused suspected her of stealing this paddy and then selling to Nanku and obtained the price of paddy from Nanku so that she could not get the money.
vi) That the husband was occasionally beating her and she complained about ill-treatment to her brother and mother.
3. The inferences of trial Court may be noticed that the deceased publicly humiliate his wife about the theft on 5th Jan. Q7 or near about or a few days before. The trial Court inference and reasoning may be node from para 13 of its judgment which is as follows :-
How could a woman react otherwise than to commit suicide if firstly she had been deprived of her maintenance and subsequently a false accusation of theft: has been hurled against her. 1 have already observed that it was not a small amount of paddy but weighed three Khandis and if an elderly woman sells this paddy to the neighbour's house, it could hardly amount to theft as she was also the owner of the Dhan. This accusation of theft was only made to publicly humiliate her and the accused has further beaten her publicly, in front of the house of Nanku (P. W. 3). What could be more a positive step in the direction as is contemplated in abetting under Section 306, I.P.C. There could hardly be any direct evidence in the facts and circumstances of such case. It has been proved in this case that the accused has brought a second woman and even the womb of the deceased had been removed and the deceased did not make any substantial improvement in her health and the circumstances compelled her to sell the paddy to the neighbour. If a woman, placed as she was, in difficult circumstances, reacts violently to the public humiliation, could it be said that the accused has not abetted the suicide? In my opinion, the public humiliation of the deceased amounted to positive step to create circumstances for the commission of suicide. The accused had made the life of the deceased almost unbearable and the step has been public humiliation. The deceased could not bear any more and committed the suicide.
4. I have heard learned counsel on both sides. The evidence of the brother of deceased namely Jagdish (P. W. 2) really shows that after marriage her, three children died and one is still alive which shows that the deceased had given birth to 4 children before death. It further shows that after marriage, 'Gauna' has taken place when she was 16 years old and after birth of four children, the accused marriage another woman. He narrates that the appellant remarried about four years back. This witness was giving his statement on 9-10-86 which would put the time of remarriage around Jan. 1981. This lady had given birth to 4 children. One of whom was alive, and after that she committed suicide on 5-1-86. So the marriage must have been not less than 8 years old at the time of her suicide and most likely it was about 1Q years old. This inference is arising because birth of children takes a gap of minimum 10 months and after Gauna also, first child would be born after about nine months. If the conception takes place in the first few days of 'Gauna', then some time must have elapsed after marriage and before the Gauna. How much time elapsed we do not know. But, even if we take time as only few days, about 3'/2 years would have to pass after Gauna and till the birth of 4th child. That would be the minimum period. Thereafter the husband married the 2nd wife and about 4 1/2 years thereafter she committed suicide by hanging herself. So the suicide was committed more than 8 years after the marriage, in any case. The discussion about the period which elapsed between marriage and death is relevant in view of Section 113A of the Evidence Act which was introduced in the year , 1983 in order to raise presumptions of abetment of suicide when a woman is treated with cruelty by husband or his relatives. Section 113A is m the following terms :-
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.'
5. The presumption which could be available to prosecution under the above provision of Evidence Act is not available in this case.
6. Now, let us see if the evidence led by the prosecution leads to inference of abetment of suicide. The trial Court in its zeal was greatly led by the fact that there was a second marriage contracted by the husband while the first marriage has not been terminated by divorce or otherwise and that most probably the wife was lead to sell the paddy out of shear need of maintenance. No witness states why she sold the paddy. P. W. 3 Nanku does not speak about the reasons of sale of paddy by her, but narrates about the factum. He had to give price of Rs. 300/- per Khandi Paddy, but the accused took away the money from him and the accused even beat Radhika Bai at the house of this witness in his presence. This happened about 3 or 4 days before her suicide. Apparently, the trial Court was led by the fact that the husband had publicly humiliated her by beating her and the trial Court presumed that the necessity of sale of paddy must have arisen to the wife for need of herself and her child and the husband did not look after her needs and persecuted her. So she was led to commit suicide. By this, the learned trial Court has inferred as abetment of suicide and also cruel treatment.
7. The brother and mother of the deceased have simply stated that she used to complain to them about harassment to her by the husband and also that the husband used to chids, abuse and beat her. So the cruel treatment was found on the part of the husband against the wife.
8. The question is whether by proof of such cruel treatment, is it possible to infer abetment of suicide? It is well settled principle in our criminal jurisprudence that the prosecution has to prove the guilt of the accused for every offence beyond reasonable doubt and the accused must be given benefit of presumption of innocence unless that standard of proof is achieved. If suicide is a necessary consequence of illtreatment, the law comes to favour the prosecution in order to deter the husbands and their relatives from their cruel conduct of treatment by introducing the presumption of abetment by means of Section 113A in the Evidence Act. But that presumption is conditional and the condition is that the suicide must have taken place within 7 years of the marriage and there must have been a cruel treatment by the husband or his relatives against the wife who is deceased.
9. Now, in this case, there is certain evidence of P. W. 3 Nanku that even in his presence the wife was beaten. We do not know whether she had stolen paddy or not. In cross-examination, there is no suggestion to Nanku that Radhika Bai had stolen the paddy from the stocks of her husband. Generally speaking, when a wife takes some paddy from the stocks of the husband, she takes it from her own possession as the possession of husband and wife is considered joint over the moveable property in the household. So there could be no theft. There were no allegations of theft nor even a suggestion as to why she came to sell the paddy. We do not know. There is no evidence about it. The trial Court has taken presumption that she must have been in dire need. In criminal jurisprudence, such presumption are not permissible. But since there was no suggestion even of theft, the beating of the wife itself was a. cruelty and beating in the house of a third person, was certainly a humiliation also. So there is established cruel treatment by the husband upon the wife. So one condition of Section 113A Evidence Act is established.
10. However, in order to raise a presumption the second condition must also be established i.e., the death within? years. This proves otherwise that the death has taken place beyond 7 years of marriage definitely. So the presumption available under Section 113A Evidence Act is not available to the Court in this case.
11. The only other question is whether by such cruel treatment itself as is established in this case it can be said that in the ordinary course of nature such conduct of husband amounts to pursuading her by conduct to commit suicide or commission of suicide in such circumstances would amount to abetment by cruelty. We cannot be lead by the fact that presumption of abetment is available in cases of death within seven years. We must keep our judgment clean of such presumption and one cannot even latently introduce the presumption. The inference must flow from the conduct as provided by evidence. By sheer proof of beating in the house of 3rd person, this inference is not possible and we cannot presume it as natural consequential conduct, after beating, by operation of Section 114 of Evidence Act or otherwise.
12. The Supreme Court of India in a recent case of the State of Punjab v. Iqbal Singh AIR 1991 SC 1532 : 1991 Cri LJ 1897, was faced with the situation where there was cruel conduct of the husband continuously toward his wife, but the marriage was more than seven years old before the suicide by the wife. So the presumption under Section 113A of the Evidence Act was not available to the Court. It was found that there was pressure of dowry on her and on her mother by the husband. A-divorce deed was executed, but was not acted upon. The wife apprehended danger to her life and sought even police protection. Their Lordships observed, after referring to the various provisions introduced in Indian Penal Code and Evidence Act, such as the provisions of Sections 498A and 304B of the Indian Penal Code and Section 113A of the Evidence Act and Section 113B of the Evidence Act and propounding in their implication dealt with the situation, where presumption was not available, and observed :
Then we have a situation where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so. The case would squarely fall within the ambit of Section 306, I.P.C. In such a case, the conduct of the person would tentamount to inciting or provoking or virtually pushing the woman into desparate situation of no return. It would compel her to put an end to her miseries by committing suicide.
Their Lordships enumerated various cruelties committed by the husband on his wife and continuous demand of dowry and found that these cruelties were stemming from non-fulfilment of dowry and finally observed :-
The last strew on the camel's back fell when she was severly beaten on the previous day i.e., 6th June 1983, as is evident from her letter dated 7-6-83. An atmosphere of terror was created to push her into taking extreme step. It seems it was carefully chalked out streategy to provoke her into taking extreme step to kill herself and her children as she apprehended that they will be much more miserable after she is dead and gone. In this fact situation, can it be said that the husband had not been responsible in creating a situation which would provoke or force her into taking the only alternative left open to her namely suicide? Can it be said that the husband did not realise where he was leading her by his wilful conduct? We think in the peculier facts and circumstances of the case, the trial Court has rightly convicted the husband under Section 306, I.P.C. We think that the High Court committed an error in reversing the conviction. We, therefore allow this appeal, set aside the High Court's order and restore the order of conviction and sentence passed by the trial Court.
13. Considering the facts of our case in the light of this situation of law, the question is whether the cruel conduct of husband towards his wife was such as had left no alternative for her except to end her life. The circumstances revealed from the material on record have been found noted as found by the trial Court in para 2 of this judgment. Her phychology must have been already affected by the factors that the three of her four children had already died. Only one was alive. But this is the factor controlled by nature and not a creation of the husband. She had suffered an abortion, that too is a creation of nature. The fact about the husband not providing her sufficient maintenance is in the realm of probabilities and not proved beyond doubt. After all, she was living in the house along with second wife of the husband. So this could not be a circumstance of such cruelty to her as to lead to suicide. Regarding reasons of sale of 'paddy', it has already been discussed and the same is not establishing with certainty. The factum of sale is established by Nankoo (P. W. 3). If the husband suspected her stealing of paddy, he had reason to become angry with her and if the anger was to this extent that he used some violence on her by slapping her although in the house of Nankoo, it would not be called a circumstance like a last straw on Camel's back. There is no evidence how long or how often she was being physically manhandled. In these circumstances, can we say that, as a reasonable woman, who was adapted to her circumstances and considering the strate of society to which she belonged, the husband's behaviour towards her, left no option for her out of the life of misery, except to finish her life. This fact situation is being considered when presumption under Section 113A Evidence Act, is not available.
14. The Court must in no case 'rush' to that inference against the accused. The Court must consider that the prosecution has to establish the guilt of accused beyond reasonable doubt and accused must get benefit of presumption of innocence. From these circumstances noticed above and from the back ground of the wife, it is not possible to hold that as a reasonable woman she had no other options left. There is no evidence how she was living if maintenance was not provided by the husband, after all she was living in the house of husband and she had been suffering the second wife, we do not know since when. So the inference of the trial Court that a woman in her situation could not do otherwise than to commit suicide, is not a natural inference keeping in mind, that the circumstances do not lead to only this inference. She may have developed extra sensitivity at the particular time. The presumption under Section 113A of Evidence Act is not available to the Court. The circumstances established on record in the position, do not necessarily lead to the inference that she had no other option except to and her life and that the husband can be deemed to have provoked her to commit suicide. After all the incident at Nankoo's House had taken place 3-4 days earlier and she had not taken the extreme step for 3-4 days. She had time to reflect. What happened during 3-4 days is not known. There is no evidence about it on record. Considering all these aspects, I hold that the inference taken by the trial Court is not a justified inference and the proof of abetment is not on the standard of proof beyond reasonable doubt. There may be deep suspicion about it. But no more. So it cannot be said for certain that she committed suicide merely because of this conduct of the husband in treating her with cruelty.
15. The net result of my above discussion is that conviction under Section 306, I.P.C. cannot be sustained and it set aside. Appellant is acquitted of charge under Section 306, I.P.C. But there is ample evidence on record that the husband, present appellant, treated the wife with cruelty as is punishable under Section 498A, I.P.C. That part of judgment is upheld.
16. This brings me to the sentence for the offence under Section 498A, I.P.C. The trial Court has sentenced this appellant to R. I. for 2 years for that offence. The maxi mum sentence permissible under that section is 3 years R. I. and fine.
17. Considering the facts and circumstances of the case, 1 reduce the sentence for the offence punishable under Section 498A also to R. I. for one year and fine of Rs. 1,000/- in default of which he shall further undergo R. I. for 3 months. If the appellant has been in custody for any period in this case earlier, that shall be adjusted towards the sentence.
The warrant of modification of conviction of sentence shall be sent.
Copy of judgment shall be sent to the trial Court to see that the accused shall surrender to his bonds.