Judgment:
C.K. Prasad, J.
1. Appellants being aggrieved by their conviction for offence under Section 306 of the Indian Penal Code and sentence of rigorous imprisonment for five years and fine of Rs. 1,000/-, in default rigorous imprisonment for three months, passed by IIIrd Addl. Sessions Judge, Chhindwara in Sessions Trial No. 153/88 by judgment dated 29.11.1989, have preferred this appeal.
2. According to the prosecution, two years prior to 8.8.1988, deceased Phoolwati was married to appellant No. 1 Ramesh and he used to assault the deceased on the issue of preparation of meal. Deceased Phoolwati whenever used to come to her parents' place from the house of her in-laws, she used to complain that her husband and mother-in-law i.e. appellant No. 2 Mst. Phutana Bai harassed her. According to the prosecution on 8.8.1988 at 7 a.m. she had gone to answer the call of the nature but did not return and on search the utensil which she had carried was found near the bamboo bush but she was found traceless. Search was made at her parents' place but she was not found. On 9.8.1988, appellant No. 1 gave report to the Police Station, Damua. On 10.8.1988, the brother-in-law of appellant No. 1 Ramesh was informed by one Metia Bai that dead body of Phoolwati is floating in her well. Report of the incident was given to the police station and on receipt thereof, P.W. 7 Narendra Prasad Dwivedi came to the place of occurrence, prepared the inquest memo and sent the dead body for post-mortem examination.
3. Police after usual investigation submitted charge-sheet against the appellants and they were ultimately committed to the Court of Sessions to face the trial. Appellants denied to have committed any offence and their plea was that Phoolwati had gone to well to fetch water and she slipped in the well and ultimately died. Prosecution in support of its case had altogether examined seven witnesses. Two defence witnesses have also been examined.
4. The Trial Court on appreciation of evidence held' that Mst. Phoolwati committed suicide and the appellants abetted the commission of offence.
5. I have heard Mr. S.K. Tiwari for the appellants and Mr. S.K. Gangrade, P.L. for the State. Mr. Tiwari submits that prosecution having not proved beyond all reasonable doubt that appellants had subjected the deceased to cruelty, presumption under Section 113B of the Evidence Act cannot be raised and as such it cannot be said that the appellants abetted the commission of suicide by Phoolwati. Mr. Gangrade, however, appearing on behalf of the State submits that the prosecution having established cruelty by the husband, the Trial Court rightly raised presumption under Section 113A of the Evidence Act and held the appellants guilty of abetting suicide.
6. Having appreciated the rival submission, I find subsance in the submission of Mr. Tiwari. P.W. 1 Nanhi Bai had although stated in her evidence that whenever the deceased Phoolwati used to come, she used to narrate about the harassment meted out to her by the appellants but in para-5 of her cross-examination she had clearly stated that she did not disclose about the harassment meted out to her daughter to the police during the course of investigation. P.W. 2 Chokhelal, who happens to be the father of the deceased had stated in his evidence that his daughter after the marriage came to her parents' place only once. P.W. 6 Dhanlal who happens to be the uncle of the deceased had stated in his evidence that she narrated to him about the assault two months prior to the date when she committed suicide. P.W, 1 Nanhi Bai and P.W. 6 Dhanlal in their earlier statements during the course of investigation had not stated about the assault or harassment by the appellants. P.W. 2 Chokhelal had stated that the deceased came to his house only once after the marriage. In view of the aforesaid omission and infirmity, I am of the opinion that the prosecution has not been able to prove beyond all reasonable doubt that the deceased was ever subjected to cruelty. Once this element is missing, presumption under Section 113A of the Evidence Act of abetment cannot be raised. It is relevant here to state that the Trial Court has convicted the appellant by raising presumption as provided under Section 113A of the Evidence Act. As stated earlier the sine qua non for raising such presumption is the proof of cruelty by the husband or relatives of the husband. This being absent, no presumption can be raised.
7. From the discussion aforesaid, it is evident that the prosecution has not been able to prove its case beyond all reasonable doubt.
8. In the result, appeal is allowed. Impugned judgment of conviction and sentence is set aside. Appellants are on bail. They shall be discharged of their bail bonds.