J.P. Singh, J.
1. Accused of harassing and forcing his wife Sushma to commit suicide after about 2 years of her marriage, Gopal Dass, appellant has been sentenced to, five years rigorous imprisonment and fine of Rs. 1000/- under Section 306 RPC, to one year rigorous imprisonment and fine of Rs. 500/- under Section 498A RPC, and in default of fine to six months and four months simple imprisonment respectively, on his trial, and conviction, by Learned Sessions Judge, Udhampur vide his judgment and order dated 31-01-2001.
2. Aggrieved thereby he has appealed to this Court.
FACTS:
Unfolded in report under Section 173 of the Code of Criminal Procedure, the prosecution story is that after 10/15 days of the marriage, the relations between Gopal Dass, the husband, and Sushma, the wife, became strained when the appellant started demanding dowry. Appellant is stated to have treated his wife with cruelty when the parents of the deceased could not satisfy his demand to pay him money for starting business. He started accusing his wife of infidelity. Fed up with the daily quarrels, Sushma is stated to have consumed a poisonous drug to commit suicide on 17-05-98.
3. Learned Sessions Judge finds the appellant guilty of offences punishable under Section 306/498A RPC on the basis of his finding, which reads thus:
The evidence brought on record by the prosecution in support of its case establishes beyond any doubt that the accused, the husband of the deceased did not treat his wife nicely after she was unable to bring cash from her parental house to satisfy the demand of her husband in consequences of which she used to remain mentally upset and when there was no respite in the attitude of her husband the situation worsened day by day, in consequence of which the deceased did not find any other alternative but to commit suicide and end her life. The demand of dowry put by the accused is established not from the statement of Trilok Chand only but even from other witnesses examined in the case and the evidence of these witnesses is consistent that it was accused and accused only who wanted his wife to bring dowry from her parental house and her inability to do so made the accused maltreat his wife. Even otherwise also the death of the deceased having taken place within a period of seven years from the date of her marriage, the court can draw a presumption as to the abetment of suicide keeping in view the facts that the deceased had been subjected to cruelty after she had not been able to fulfill the demands of her husband Section 114C of Evidence Act which deals with the drawing of presumption provides as under: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 draw presumption having regard of other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband.
4. In the instant case the prosecution has sufficiently established that the death of the deceased has taken place only after two years of her marriage due to commission of suicide and there is evidence on record to support the contention of the prosecution that deceased was subjected to maltreatment and cruelty not only by her husband but appears to have been treated badly by other inhabitants of the house, in consequences of which the deceased had no other alternative but to commit suicide, despite the fact she was carrying a female featus of 20 weeks in her womb. The suicide proved to have been committed by deceased indicates that she was mentally upset in view of maltreatment of her husband as is gathered from the evidence available on the record. Therefore, under these circumstances there is no reason for the court to accept the contention of the defence that the deceased had not been maltreated in the house in consequence of which she had committed suicide.'
5. Learned Counsel appearing for the appellant questions the finding, judgment and order of Learned Sessions Judge saying that the findings are not supported by reliable evidence and are even otherwise bad in law based on wrong interpretation of Section 114-C of the Evidence Act.
6. Learned State Counsel, on the other hand, supports the judgment and order of Learned Sessions Judge urging that there was sufficient evidence against the appellant on records on the basis whereof Learned Sessions Judge had rightly convicted and sentenced him.
7. I proceed to examine the submissions made at the Bar, in the light of the evidence recorded by the trial Court and the records of the case, as under: The prosecution has examined, PWs- Om Parkash, Tarlok Chand, Dr. Romesh Chander, Shello Devi, Satya Devi, Kamal Din, Om Parkash-II and Abdul Rashid as its witnesses. Whereas, the appellant has examined two persons of the locality namely Darshna Devi and Gita Devi, besides Krishan Chander, his tenant, in support of his defence.
8. Resume of the prosecution and defence evidence, is as follows:
PW-1 Om Parkash says that, after her marriage, his niece did not have cordial relations with the appellant, her husband, because whenever she would come to the house she would narrate that the appellant had been quarrelling with her and would not speak to her nicely. Appellant had told her to get money from her parents so that he could start some business. Appellant had neither beaten her niece nor raised any demand for money, in his presence. Police had recovered a bottle of Nuvon and he is a witness to its seizure memo which is marked as EXPW-OP. He had told deceased's father to have a meeting with the appellant lest any mishap takes place. In cross-examination, he says that the police had recorded his statement after 2/3 months of the occurrence. The accused had started driving Auto Rikshaw 2/3 days prior to the occurrence. The accused was present at the time of the cremation of the deceased. The deceased had told him about one month before her death that the appellant had been demanding money. It has been incorrectly recorded in his statement under Section 161 of the Code of Criminal Procedure that he had tried to counsel the appellant. Sushma had not told him earlier that the appellant had been demanding money, except one month before her death.
PW-2 Tarlok Chand says that he had given his daughter Sushma in marriage to the appellant about two years before her death. Their matrimonial relations remained cordial for one year whereafter the appellant asked for Rs. 10/20 thousand for running his business to which he had shown his inability to pay. He was not sure whether the appellant had asked for the money on loan or otherwise. His daughter had come to him after about fifteen days thereafter and had shown his inability to pay money to her. His daughter and the appellant would, even thereafter, come to his house; but appellant would be drunk and his daughter would tell him and her mother that the appellant had been abusing and beating her because they had not paid them the money. About 2/3 months before her death, the deceased had come to his place and told him that the appellant had declared to divorce her. His daughter's sister-in-law had also been quarrelling with his daughter. He had talked to the father of the appellant too who had assured him that he would counsel the appellant. While under cross-examination, he says that the appellant was doing nothing at the time of his marriage, but had thereafter purchased an Auto Rikshaw. He says that he had told the police in his statement that the appellant had demanded Rs. 10/20 thousand, but he did not know as to why had not this been recorded in the statement under Section 161 of the Code of Criminal Procedure. He had further told the police that whenever his daughter would come to him, she would tell that the appellant had been beating her. There is no such mention, however, in his statement under Section 161 of the Code of Criminal Procedure. Appellant had not, however, beaten his daughter in his presence. Appellant was present at the time his daughter was cremated. He had not told any body about appellant's treating the deceased with cruelty at the time of the cremation. He had neither sent any body to the police to lodge a repot nor had he himself done so. He didn't know whether his daughter had committed suicide or had been murdered.
PW-3 Dr. Ramesh Chander says that while conducting the autopsy on the dead body of Sushma, he had kept his opinion reserved pending receipt of report regarding viscera. On receipt of the report, he had opined that Smt. Sushma Devi had expired because of cardio respiratory failure because of coma as a result of consumption of Dichlorovos (D.D.V.P), an Organo Phosphorous Insecticide. He had found a female foetus of twenty weeks gestation. There was semi digested colored material present in the stomach.
PW-4 Mst. Sheelo Devi says that the appellant is her son-in-law. The marital relations between the appellant and her daughter remained cordial for 1/11/2 years. Her daughter's, in-laws had been demanding money and dowry thereby troubling her. Her daughter had demanded Rs. 10/20 thousand when she had once come to their place. The appellant was without any job and would ask for money because he wanted to have an Auto Rikshaw. Her husband was unable to pay the amount. In order to harass her, nobody would take the food cooked by her. She had been informed by some one that her daughter had been taken ill and was in the hospital, but by the time she reached there, she had already expired and her dead body had been kept in the mortuary. The sister-in-law of the appellant would always tell that her daughter would be divorced and appellant would solemnize a second marriage. While under cross-examination, she says that the appellant had purchased an Auto Rikshaw about 8/9 months ago. She did not know as to whether the Auto Rikshaw had been taken on loan or otherwise. He had not asked for any money from her. The deceased had however asked for the money. She did not know as to why the appellant and deceased would quarrel. She had not lodged any report with any officer. The post death rites of the deceased had been performed by the appellant.
PW-5 Satya Devi, the sister of the deceased, says that the deceased had been married to the appellant about two years ago. Appellant's relation with his wife remained cordial for 5/6 months. Appellant would tell the deceased to bring more money from her parents as she had brought less dowry so that he could do some business. He wanted to purchase an Auto Rikshaw to earn his living. The deceased would tell her that the appellant had been sending her to her parents to get money and on her failure to get money, he would rebuke her. Whenever she had gone to attend functions in the house of the appellant, she would find him drunk and would rebuke the deceased. In cross-examination, she says that the appellant had never made any demand for dowry in her presence. She did not know as to whether the appellant had purchased the Auto Rikshaw on loan or otherwise. He was not aware as to who had performed the post death rites of the deceased. She would go to her parental house only on festivals. She was not aware whether deceased had purchased an Auto Rikshaw. She did not know about the business of the appellant. She had visited the deceased 10/12 days before her death and had found her gloomy.
PW-6 Abdul Hamid has conducted the investigation of the case. He says that according to his investigation, there was bitterness in the relationship of the appellant and the deceased, and the appellant had been harassing the deceased to bring dowry and money. He had inspected the documents prepared during inquest proceedings and recorded the statements of witnesses under Section 161 of the Code of Criminal Procedure. The appellant had once disappeared from his house due to some family dispute regarding which missing report was lodged in the police station on 02.06.1996. He had, however, returned on 27th of October, 1996. During cross-examination, he deposed that he had recorded the statements of the parents of the deceased and did not remember when the viscera report had been received in the police station. No complaint was lodged either by the deceased or by the parents of the deceased against the appellant in the police station.
PW-7 Qamar Din is a witness only to the seizure memo EXPWQD and is not aware about the proceedings under Section 174 of the Code of Criminal Procedure.
PW-8 Om Parkash-II S/o Mangu Ram says that the deceased was his sister-in-law (wife's sister). He had arranged her marriage with the appellant. Their relations remained cordial only for 3/4 months where after the appellant had been telling her to get money from her parents because he wanted to start some business. She could not bring money. All this he had known from the deceased when he would meet him at her parental house. He had gone to the appellant 2/3 times to counsel him. While under cross-examination, he says that he had invited the appellant for food after about 10/12 days of the marriage. He denied the suggestion that the appellant had quarreled with him on that day. He had not seen the appellant and the deceased quarreling with each other and neither had the appellant made any demand for dowry in his presence. Before the death of the deceased, the appellant had purchased his Auto Rikshaw. He is not aware as to whether the appellant had taken loan from the Bank to purchase the Auto Rikshaw. Appellant had not accused the deceased of infidelity. The appellant had been living in a joint family. Neither he nor the parents of the deceased had ever gone to the appellant's house.
DW-1 Darshna Devi says that she lives in the same Mohalla where the appellant and the deceased had been putting up. The appellant and the deceased had been living with love and in peace and on the day of occurrence she had seen her getting water from the water tap whereafter she had started vomiting and was taken to the hospital where she expired. The appellant was not at home on that day and had gone to Jammu with his Auto Rikshaw. She denies the suggestion made to her in cross-examination that the appellant would harass the deceased when she would not bring money from her in-laws. She says that the place where the deceased was getting water from the water tap could be seen from her house. The parents of the deceased had never visited the house of the appellant.
DW-2 Krishan Chander says that he knew the appellant, his parents and the deceased. The appellant and the deceased would not quarrel and had been living with love and affection. Appellant was not at home when the deceased had died. He had gone to Jammu. His parents too were not at home. Only tenants and the brother and sister-in-law of the deceased were at home. Appellant had purchased an Auto Rikshaw about one or two months before the death of Sushma. He had witnessed the deceased getting three-four buckets of water from the water tap and thereafter he does not know whether the deceased had taken some poisonous thing by mistake. She was taken to hospital where she had died. He was the tenant in the house of the appellant. While under cross-examination, he says that he was the tenant of the appellant on the day of the occurrence also. Deceased looked to have been living happily. He had never talked to her. He cannot comment as to whether she was depressed. He has remained as a tenant of the appellant for 6/7 years. Deceased had not taken any thing in his presence. After taking 3/4 buckets of water, when the deceased did not come out from the house, her sister-in-law had disclosed that some thing had happened to her whereafter she was taken to the hospital.
DW-3 Geeta Devi says that the appellant had gone to Jammu and was not at home when the deceased had died. Parents of the appellant too were not at home. The appellant and the deceased had been living with love and affection. The deceased was getting water from the water tap on the day of occurrence and had taken one bucket of water when she started vomiting. She was taken to the hospital in an Auto Rikshaw where she died. Deceased had not been harassed either by the appellant or by any other member of his family. Her house is the third house from the house of the appellant. She often visited the house of the appellant. The parents of the appellant too, at times stayed in the house. The deceased was not depressed as suggested. She denied the suggestion that the appellant would tell the deceased to get money from her parents. No conciliatory meeting had taken place between the parents of the deceased and the appellant before the death of the deceased. Whenever the father of the deceased would come to the appellant's house, he would bring some eatables.
9. Prosecution has not led any evidence to prove its allegation appearing in the report under Section 173 of the Code of Criminal Procedure that the appellant had been accusing the deceased of infidelity. This part of the prosecution story has, therefore, to be ignored.
10. The only remaining allegation appearing in report under Section 173 of the Code of Criminal Procedure against the appellant on which the prosecution had led its evidence is that the appellant had been harassing the deceased to bring money from her parents and on her failure to get it, he had been treating her with cruelty which had later compelled her to commit suicide.
11. To prove this allegation against the appellant, the prosecution evidence does not project a consistent version as to when actually the appellant had started harassing and treating the deceased with cruelty which had ultimately compelled her to commit suicide.
12. PW-Satya Devi, the sister of the deceased and PW-Om Parkash, her husband say that the relations between the husband and the wife had remained cordial only for 4 - 6 months of the marriage and thereafter the appellant had started harassing and beating the deceased. The parents of the deceased PWs-Tralok Chand and Sheelo Devi, on the other hand, say that the marital relations of the couple had remained cordial for 1/11/2 years whereafter the appellant had started harassing the deceased when the parents of the deceased had not conceded the demand of the appellant to pay him Rs. 10/20 thousand for purchasing an Auto Rikshaw to start his business;
13. The version projected by the two sets of witnesses as to when the relations of the couple had become strained, does not match with the prosecution story as it appears in report under Section 173 of the Code of Criminal Procedure which says that the relations of the couple had deteriorated after 10/15 days of the marriage.
14. All the prosecution witnesses are, however, unanimous in saying that the appellant had not maltreated or harassed the deceased at any time in their presence. They had come to know about the harassment when the deceased had told all about this when she was with her parents about 2/3 months prior to her death.
15. The prosecution witnesses have testified that before the death of appellant's wife, the appellant had purchased an Auto Rikshaw and had been plying it, ostensibly, to earn his living.
16. The version projected by the eye witnesses that they had come to know about the maltreatment of the deceased about 2/3 months prior to the death of the deceased when she had told all about this at her parental house, does not appear to be truthful muchless convincing because by that time, the deceased is stated to have purchased an Auto Rikshaw, on his own, to earn his living. If that be the case, the only cause which according to the prosecution had strained the relations of the couple because of deceased's parent's refusal to pay him money to purchase an Auto Rikshaw, having disappeared with the purchase of the Auto Rikshaw by the appellant, and no other cause having been projected by the prosecution for appellant's harassing the deceased, the prosecution story that the appellant had been harassing the deceased and it was because of this harassment that the deceased had been compelled to commit suicide, cannot be believed.
17. The prosecution has not produced any witness from the locality where the couple had been putting up together. There is no explanation for such omission and the prosecution evidence is silent about the relations of the couple after the purchase of Auto Rikshaw by the appellant.
18. In view of the divergence in the statements of the prosecution witnesses projecting contradictory version about the time when the relations of the couple had allegedly become strained and altogether different version about the time when the relations are stated to have been strained, appearing in the report under Section 173 of the Code of Criminal Procedure, the missing evidence in the prosecution story about the state of relations the couple had, after the purchase of an Auto Rikshaw by the appellant, assumes great significance because the root cause of the appellant's harassing the deceased is stated to be the refusal of the parents of the deceased to pay him money to purchase an Auto Rikshaw.
19. In the absence of any evidence in this direction and major contradictions appearing in the prosecution version and the statements of the prosecution witnesses as to when their relations had actually become strained because of which the deceased is stated to have committed suicide, it cannot be said that the prosecution had succeeded in proving that the appellant had treated the deceased with cruelty on her parents' refusal to fulfill his demand for paying him Rs. 10/20 thousand to purchase an Auto Rikshaw. The prosecution had introduced the story of appellant's demanding money from the parents of the deceased to purchase an Auto Rikshaw, for the first time, when the prosecution witnesses had been examined in the Court. Demand of the appellant to purchase an Auto Rikshaw does not appear either in the statements of the witnesses under Section 161 of the Code of Criminal Procedure nor in report under Section 173 of the Code of Criminal Procedure. This omission would, therefore, partake the character of a major contradiction. Resultantly, presumption under Section 114-C of the Evidence Act cannot be drawn against the appellant to presume that because the death had taken place within seven years of the marriage, so the appellant had to be presumed to have abetted the suicide of his wife.
20. Presumption under Section 114-C of the Evidence Act, Svt. 1977 cannot be drawn merely because the death had taken place within seven years of the marriage of the deceased. To invoke the provisions of Section 114-C of the Evidence Act for drawing such presumption, the prosecution has not only to prove that the death had taken place within seven years from the date of the marriage, but also that the husband or such relative of the husband had subjected the deceased to cruelty. In the absence of sufficient proof, in regard to husband or his relations subjecting the deceased to cruelty, presumption under Section 114-C of the Evidence Act cannot be drawn. Even on proof of the fact that the husband or any of his relative had treated the deceased with cruelty, the presumption under Section 114-C of the Evidence Act may not be drawn as a matter of course. It has to be so drawn, having regard to all other circumstances of the case as well.
21. That apart, looked from purely legal angle, the prosecution case, even otherwise, is not sustainable for the simple reason that the evidence which it had led in the case, is inadmissible in evidence in so far as the charge against the appellant under Section 498A RPC is concerned. This is so because the evidence of PWs-Om Parkash, Tarlok Chand, Satya Devi, Sheelo Devi and Om Parkash that they had not themselves seen the appellant either harassing or beating the deceased, and it was the deceased who had told them all about her maltreatment by the appellant, when she had come to her parental house, does not fall within the parameters prescribed by Section 32 of the Evidence Act and would, therefore, be only hearsay evidence. Evidence of such type of witnesses is relevant only if it had related to the cause of death. I am supported in taking this view by a judgment of Hon'ble Supreme Court of India reported as Gananath Pattnaik v. State of Orissa : [2002]1SCR845 , where Hon'ble Supreme Court of India held as follows:
Learned Counsel for the appellant then submitted that the findings returned by the trial court regarding the cruelty within the meaning of Section 498A of the Indian Penal Code are not based on any legal evidence.
To hold that the accused had once given pushes to the deceased which drove her to commit suicide is based upon the alleged testimony of PW 4 who is the mother of the deceased. We have minutely read the statement of the aforesaid witness and do not find any mention of her having seen the accused pushing the deceased which, in turn, could be held to be 'cruelty' driving her to commit suicide.
Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW 5, who is the sister of the deceased. In her deposition recorded in the court on 4-5-1990 PW 5 had stated:
Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfillment of balance dowry amount of a scooter and a two-in-one.' and added:
On 3-6-1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima Apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused now-a-days. She further complained before us that the accused is taking away the child from her, and that her mother-in-law has come and some conspiracy is going against her (the deceased). She further told that 'mate au banchei debenahin.Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused.
22. The evidence of the aforementioned witnesses, being inadmissible in evidence, has thus been erroneously relied upon by the learned Sessions Judge to hold the appellant guilty under Section 498A RPC.
23. In so far as the offence under Section 306 RPC is concerned, one has to keep in mind that disputes and discords in the matrimonial home and harassment of the wife by the husband or his relations, may not per se attract the provisions of Section 306 RPC.
24. Looked from yet another legal angle, the conviction and sentence of the appellant under Section 306 RPC cannot be sustained on any count whatsoever in the absence of any evidence having been led by the prosecution which would prove the ingredients of Section 107 RPC against the appellant, for it is only when the ingredients of Section 107 RPC, are held proved against an accused that he may be held to be an abettor for the commission of any other offence. In order to succeed in the prosecution of an offence under Section 306 RPC, the prosecution is required to prove all the ingredients of Section 107 RPC against the offender. In the absence of any such proof, charge under Section 306 RPC cannot be sustained. I am supported in taking this view by a judgment of Hon'ble Supreme Court of India reported as Bhagwan Dass v. Kartar Singh and Ors. : 2007CriLJ3420 , where their Lordships of the Supreme Court, held as follows:
The only allegation against the appellant was that they harassed the deceased Shobha because she did not bring adequate dowry. Hence, it is submitted by the learned Counsel for the appellant that this amounted to abetment to suicide and hence was covered under Section 306 RPC, read with Section 107.
The word 'abetment' has been defined in Section 107 IPC as follows:
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 willful misrepresentation, or by willful 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 the act, and thereby facilitates the commission thereof, is said to aid the doing of the act.
Learned counsel for the appellant has relied on the decision of this Court in Brij Lal v. Prem Chand and Anr. : [1989]2SCR612 . In that case it was held that:
Where there was overwhelming evidence that the accused had made the life of his wife intolerable by constantly demanding money and made it clear to her that if she wanted to die, she may do so on very same day and give him relief forthwith, thereby spurring her and goading her to commit suicide, the case would squarely fall under the first category of abetment under Section 107.
25. On the other hand, learned Counsel for the respondents relied on the decisions referred to in the impugned judgment. Thus in Netai Dutta v. State of West Bengal 2005(3) SC 46, where a suicide note was involved, this Court came to the conclusion that in the suicide note there was no reference to any act or incident whereby the appellant was alleged to have committed any willful act or omission or intentionally aided or instigated the deceased to have committing suicide. Hence, it was held that there was no abetment to suicide.
26. Similarly, in Mahendra Singh and Anr. v. State of M.P. 1995 Supp. (3) SCC 731, it was observed by this Court that it is common knowledge that the words uttered in a quarrel or in the spur of the moment or in anger cannot be treated as constituting mens rea. In that case the appellant said to the deceased 'to go and die'. As a result of such utterance, the deceased went and committed suicide. However, the Supreme Court observed that no offence under Section 306 IPC read with Section 107 IPC was made out because there was no element of mens rea.
27. In Randhir Singh and Anr. v. State of Punjab 2004(13) SCC 129, it was observed that 'more active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.'
In the same decision, it was observed following the decision in State of West Bengal v. Orilal Jaiswal : 1994CriLJ2104 that:
the courts 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 the 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 not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion would not by itse (SC)lf and without something more attract Section 306 IPC read with Section 107 IPC.
However, in our opinion mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 IPC, if the wife commits suicide. Hence, we agree with the view taken by the High Court. We, however, make it clear that if the suicide was due to demand of dowry soon before her death then Section 304B IPC may be attracted, whether it is a case of homicide or suicide. Vide Kans Raj v. State of Punjab and Ors. : 2000CriLJ2993 , Satvir Singh and Ors. v. State of Punjab and Anr. : 2001CriLJ4625 , Smt. Shanti and Anr. v. State of Haryana AIR 1991 SC 1261.
In the present case, since no charge under Section 304B has been framed, obviously the accused cannot be convicted under that provision.
28. The findings of Learned Sessions Judge that the prosecution had sufficiently established that the death of the deceased had taken place only after two years of her marriage and there is evidence on records to support the contention of the prosecution that the deceased was subjected to maltreatment and cruelty not only by her husband, but also by other inhabitants of the house and because of this the deceased had no other alternative but to commit suicide despite the fact that she was carrying a female foetus of 20 weeks in her womb, cannot, in view of the above discussion and legal position on the subject, be sustained both on facts and in law.
While examining the accused under Section 342 of the Code of Criminal Procedure, the evidence of PW-Ramesh Chander and his post-mortem report marked as EXPWRC has not been put to the appellant for his explanation. Report of Dr. Jagdish Singh, Assistant Director Forensic Science Laboratory, Srinagar, too does not appear to have been tendered in evidence. This report too has not been put to the appellant for his explanation.
29. The net result of this omission is that the prosecution cannot be said to have proved as to what was the cause of Sushma's death. The only evidence which could have proved suicidal death of Sushma because of her consuming an Organo Phosphorus Insecticide, having not been proved and put to the appellant for his explanation, causes another fatal blow to the prosecution case. For all what has been said above, I do not find the prosecution to have succeeded in proving any case against the appellant which may warrant his conviction.
30. The judgment and order of learned Sessions Judge, Udhampur, convicting the appellant under Section 306/498A RPC and sentencing him to imprisonment and fine as mentioned in the opening part of this judgment, is accordingly set aside.
31. This appeal, therefore, succeeds and is accordingly allowed, acquitting the appellant of charges under Section 306/498A RPC.