JUDGMENT C.K. Prasad, J. 1. Appellants, being aggrieved by their conviction u/s 306 of the Indian Penal Code and sentence of rigorous imprisonment of five years each, for an offence u/s 306 of the I.P.C. by the IIIrd Addl. Sessions Judge, Jabalpur in Sessions Trial No. 228/85 have preferred this appeal. 2. Admitted facts of the case are that the deceased Krishna Bai was the daughter of Dalchand P.W. 3 and she was married to appellant No. 1 Kaluram in the year 1982. It is further an admitted position that appellant No. 2 Premlal is the younger brother of appellant No. 1 and the deceased Krishna Bai set herself on fire on 9.4.85 and she died on 12.4.85. 3. According to the prosecution, appellants used to demand dowry of sum of Rs. 10,000/- and on its non-payment, deceased was used to be assaulted and harassed by the appellants. It is the case of the prosecution that the deceased used to complain to her father Dalchand about the assault made by them. Prosecution story further is that on 1.2.1985 when Dal chand P.W.3 had taken his daughter Krishna Bai (the deceased) to her Sasural she made a complaint that she was assaulted by her husband Kaluram by hunter and they have given a report about the same to the police station Bherghat (Ex.P-19). According to the prosecution on 18.3.85 when appellant Kaluram went to bring his wife from her parents place, a Panchayat was held and an agreement was entered into (Ex.P-5) saying that appellant No. 1 shall not harass his wife. 4. According to the prosecution, on 9.4.1985 at 6 p.m. when the deceased was at her Sasural she was assaulted by the appellants and she poured Kerosene oil on her body and set herself on fire. On 9.4.1985, in the hospital, dying declaration (Ex.P-11) of the deceased was recorded by Naib Tehsildar, S.S. Patel. The said dying declaration was recorded after receipt of the certificate by the doctor that she is in fit state to give dying declaration. On 12.4.1985 Dr. A.K. Yadu P.W. 1 conducted the postmortem on the body of the deceased and found burn injuries on her body, face, chest, back and on internal examination he opined that the deceased died on burn injury. On 12.4.1985 Dr. A.K. Yadu P.W. 1 conducted the postmortem on the body of the deceased and found burn injuries on her body, face, chest, back and on internal examination he opined that the deceased died on burn injury. After investigation, police charge-sheeted the appellants for offence u/s 305 of the I.P.C. In support of its case prosecution examined altogether 12 witnesses. Defence of the appellants is denial of the offence and their stand is that they never harassed the deceased. In support of their case they have examined 4 defence witnesses. P.W. 1 is Dr. A.K. Yadu who has conducted post-mortem on the body of the deceased, he has stated in his evidence that on examination he found that the deceased had burn on chest below breast, abdomen back, genitalia, front of both thigh, upper limbs, legs and scalp hairs. In the post-mortem report, he has stated that the cause of death was shock due to burn injury. P.W. 2 is a relation of the deceased and he has stand in his evidence that on 12.4.1985 when he has gone to the Medical College to see the deceased, she has stated that Kerosene oil was poured by her Dewar (appellant No. 2) from behind and thereafter he fired away. In the cross examination this witness has stated that he was never examined by the police during investigation. P.W. 3 Dalchand is the father of the deceased and he has stated that the deceased was married to appellant No. 1 in the year 1982. He has further stated in his evidence that appellant Kaluram and his father demanded a sum of Rs. 10,000/- as dowry for construction of the house but on account of paucity of fund, he could not meet the demand. He has further stated in his evidence that the deceased, when used to reside at her parents place, she used to narrate about the assault by appellant No. 1 Kaluram. This witness has further stated in his evidence that the deceased wrote him a letter (Ex.P-4) stating therein that she was assaulted by the appellant. He has further deposed that on 1st February, 1985, he had gone to Krishna Bai in-laws place, to bring her for participating in the marriage of his another daughter, where he was told that she was assaulted by her husband by electrical wire. He has further deposed that on 1st February, 1985, he had gone to Krishna Bai in-laws place, to bring her for participating in the marriage of his another daughter, where he was told that she was assaulted by her husband by electrical wire. He has further stated in his evidence that the deceased came to his place alongwith her father-in-law and when the appellant came to take her to her in-laws place, he narrated that he will send his daughter only when he will undertake in writing that she will be treated nicely. Thereafter, an agreement was entered into (Ex.P-5) stating that the deceased shall be kept nicely and thereafter she was sent to her in-laws place. This witness has further stated that on receipt of the information that the deceased has sustained burn injury and admitted in Medical College Jabalpur, he went to the hospital and on enquiry the deceased stated that quarrel has taken place and thereafter her brother-in-law (appellant No. 2) poured Kerosene oil and set her on fire. In the cross-examination this witness has stated that in the hospital she has not stated that her husband used to threaten her to divorce. P.W. 4 is the Patwari who has prepared the sketch map (Ex.P-6) of the place of occurrence. P.W. 5 Battu Prasad Tiwari is the police photographer who has taken the photographs of the deceased (Exs. P-7, P-8 and P-9), besides he has also proved the negative of these photographs (P-7A, P-8A and P-9A). P.W. 6 is the Naib Tehsildar who has recorded the dying declaration of the deceased. In his evidence, he has stated that on 9.4.1985 he received a request (Ex.P-10) from the officer incharge of the police station for recording the dying declaration of the deceased u/s 164 of the Code of Criminal Procedure. At this, according to this witness he went to the Medical College and inquired about the condition of the deceased from the incharge medical officer and on his certification (Ex.P-10), he recorded the dying declaration of the deceased (Ex.P-11) which contains signature of the medical officer. In his cross examination this witness has stated that when he went to the medical college for recording the dying declaration the officer incharge was also with him and before the dying declaration was recorded the deceased relations were also present near the bed. In his cross examination this witness has stated that when he went to the medical college for recording the dying declaration the officer incharge was also with him and before the dying declaration was recorded the deceased relations were also present near the bed. He has specifically stated in the cross examination that at the time of recording of the dying declaration he has removed all her relation and officer incharge from the ward. He has further stated in the cross examination that before recording the statement he has stated to the relation of the deceased to leave the room and not to tutor anything to the deceased. Dying declaration of the deceased has been recorded in the question answer form, relevant portion of which on translation are as follows - I was married 3 years ago. I caught the fire at 6 O'clock in the evening. I was abused by my brother-in-law Premlal and ill-words were hurled on me, which I could not bear. My husband used to harass me, my husband used to threaten me to divorce and as such after pouring Kerosene oil on the body, I set myself on fire. I went to Bheraghat police station two months ago alongwith my father Dalchand Choudhary and lodged report against my husband and Dewar, but no action was taken. 5. P.W. 7 is Sub-Inspector of police who recorded the marg and directed for conducting the post-mortem on the body of the deceased. P.W. 8 is the seizure witness. P.W. 9 is the relative of the deceased and he has stated in his evidence that 6-7 months after the marriage, appellant Kaluram and his father demanded Rs. 10,000/- for purchase of the land. At this, the deceased's father stated that because of the marriage he had no money and accordingly he did not pay the money as demanded. He has further stated in his evidence that when he went to the hospital to see the deceased, on enquiry she stated that appellant No. 2 has abused her and in the evening when she was working, appellant No. 2 came from behind, poured Kerosene oil and set her on fire. In the cross-examination he has stated that his evidence was not recorded by the police during investigation. P.W. 10 is the officer-in-charge of the police station who has requested for recording the post-mortem report. In the cross-examination he has stated that his evidence was not recorded by the police during investigation. P.W. 10 is the officer-in-charge of the police station who has requested for recording the post-mortem report. He has further stated that on 9.4.1985 he has taken permission from the Medical Officer for getting the dying declaration recorded. P.W. 11 is the officer incharge of the police station who has recorded the statement of P.W. 3 Dalchand and P.W. 9 Ram Dayal during investigation. In the cross examination he has stated that P.W. 9 has not stated during the course of investigation about the demand of Rs. 10,000/- as dowry. P.W. 12 is the head constable who has proved the Sanha report. D.W. 1 Sheikh Abbas has stated in his evidence that appellant No. 1 Kaluram was working as a Mason, when at about 5.30 p.m. some boys came and informed that the wife of appellant No. 1 had set herself on fire. D.W. 2 Ram Kripal has proved the Sanaha report Ex.D-1 given by appellant No. 1 to the Bheraghat police station. D.W. 3 Jahoor Khan has stated in his evidence that he alongwith appellant No. 2 Premlal were working in the Gelatine factory on 9.4.1985 and when they were coming back at 6 p.m. he learnt that the deceased has set herself on fire. He has further stated in his evidence that the deceased was used to be treated nicely and the appellants never quarrelled with them. D.W. 4 Shankarlal is a neighbour who has stated that appellants used to treat the deceased nicely and he never saw them quarrelling. He has further stated in his evidence that when neighbours gathered after the incident, deceased stated to them that she has herself set on fire. 6. P.W. 2 Shobharam as also P.W. 9 Ramdayal have stated in their evidence that in the hospital the deceased is alleged to have stated to them that appellant No. 2 came from behind, poured Kerosene oil on her and set her on fire, but P.W. 9 has not stated anything about the same during the investigation. P.W. 2 was not examined by the police during investigation. Deceased in her dying declaration has specifically stated that she has set on fire herself by pouring kerosene oil on her body. P.W. 2 was not examined by the police during investigation. Deceased in her dying declaration has specifically stated that she has set on fire herself by pouring kerosene oil on her body. Further the father of the deceased P.W. 3 has not stated anything about the alleged pouring of kerosene oil by appellant No. 2 and setting her on fire. In such circumstance, I am not prepared to believe the statement of P.W. 2 and P.W. 9 that it was appellant No. 2 who poured Kerosene oil on the body of the deceased and set her on fire. 7. It is relevant here to state that deceased in her dying declaration has stated about the abuse by appellant No. 2 immediately preceding the incident and harassment by her husband appellant No. 1, before she committed suicide. Shri H.S. Dubey appearing on behalf of the appellant submits that P.W. 2 and P.W. 9 have given different stray about the manner of occurrence, which clearly shows that the prosecution has not been able to prove its case beyong all reasonable doubt. I am afraid the submission is devoid of any merit. True it is that the evidence of P.W. 2 and P.W. 9 so far as it relates to pouring of kerosene oil by appellant No. 2 and setting the deceased on fire by him does not inspire confidence and their evidence are fit to be discarded but on this ground alone the entire prosecution story cannot be thrown out. Shri Dubey then submits that conviction of the appellant cannot be based on the dying declaration. He submits that there is nothing on the record to show that the deceased was in a fit state of mind to give the dying declaration. He further terms the dying declaration to be tutored. I do not find any substance in either of the contentions. Mere presence of the relations in the hospital, as stated by the Naib Tehsildar in his evidence shall not make the dying declaration tutored. P.W. 6, Naib Tehsildar has stated in his evidence that he went to the hospital to record the dying declaration he found the relation of the deceased near the bed but he has categorically stated in his cross examination that he removed all his relation before the dying declaration was recorded and warned the relation not to tutor her. P.W. 6, Naib Tehsildar has stated in his evidence that he went to the hospital to record the dying declaration he found the relation of the deceased near the bed but he has categorically stated in his cross examination that he removed all his relation before the dying declaration was recorded and warned the relation not to tutor her. Accordingly, I am not prepared to accept that the dying declaration is tutored. 8. It is relevant here to state that this witness has further stated that after it was certified by the medical incharge that the deceased is in a fit state of mind to give dying declaration, the same was recorded. It is relevant here to state that in the cross-examination, no question was put to this witness about the mental condition of the deceased and in the face of P.W. 6 stating that he recorded the dying declaration only after obtaining the medical certificate from the medical officer, submission made by the learned counsel that the deceased was not in a fit state of mind to give the dying declaration cannot be accepted. Accordingly, I negative this submission of the learned counsel. 9. It is relevant here to state that in the dying declaration, the deceased has stated that appellant No. 2 abused her profusely and said bad words which she could not bear. She has further stated in the dying declaration that her husband used to harass her and threaten her to divorce as she set herself on fire. Dying declaration has been given in Hindi which is as follows - Shri Dubey contends that abuse by appellant No. 2 and harassment by appellant No. 1 and threat to divorce, leading to commission of suicide do not amount to abatment and therefore appellants cannot be said to have committed the offence u/s 306 of the Indian Penal Code. According to his submission the offence can be under Section 498-A of the I.P.C. In support of his submission, learned counsel has placed reliance on a judgment of Supreme Court in the case of Mahendra Singh & Anr. Vs. According to his submission the offence can be under Section 498-A of the I.P.C. In support of his submission, learned counsel has placed reliance on a judgment of Supreme Court in the case of Mahendra Singh & Anr. Vs. State of M.P. 1996 Cri.L.J. 894 and my attention has been drawn to the following paragraph of the said Judgment - The charge under Section 306 IPC is basically based on the dying declaration of the deceased which when translated reads as follows - My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning. Learned counsel for the appellant rightly submitted that but for the statement of the deceased there is no other pointed evidence from which it could be inferred that there was any abatement so as to bring the acts of the appellants within Section 306 IPC, under which the appellants have been punished. The dying declaration per se, could not involve the appellants in offence punishable under Section 306 IPC, because it provides for abetment of suicide. Whoever abets the commission of suicide, and if any person commits suicide due to that reason, he shall be punished with imprisonment of either description for a term which may extent to ten years and shall be punished with imprisonment of either description for a term which may extent to ten years and shall also be liable to fine. Abetment has been defined in Section 107 IPC to mean that a person abets the doing of a thing who firstly instigates any person to do a 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. Neither of the ingredients of abetment are attracted on the statement of the deceased. The conviction of the appellants under Section 306 IPC merely on the allegation of harassment to the deceased is not sustainable. The appellants deserve to be acquitted of the charge. 10. Neither of the ingredients of abetment are attracted on the statement of the deceased. The conviction of the appellants under Section 306 IPC merely on the allegation of harassment to the deceased is not sustainable. The appellants deserve to be acquitted of the charge. 10. Section 306 of the Indian Penal Code provides for punishment for abetment of suicide. Section 306 of the I.P.C. reads as follows - 306. 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. Section 113-A of the Evidence Act provides for presumption as to abetment of suicide by a married women, the same reads as follows - 113-A : 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. Section 113-A of the Evidence Act was inserted by Criminal Law (2nd Amendment) Act, 1983 w.e.f. 26.12.1983. A plain reading of Section 113-A of the Evidence Act makes it clear that when a question arises as to whether the commission of suicide by a woman had been abeted by husband or any relation of the husband and in case it is shown that the suicide has been committed within a period of 7 years from the date of marriage and the wife was subjected to cruelty, the Court may presume that the suicide has been abetted by husband or relative. 11. Here in the present case, the suicide has been committed within a period of 7 years from the date of marriage. In such a circumstance, one is required to see as to whether the deceased was subjected to cruelty by the appellants. 11. Here in the present case, the suicide has been committed within a period of 7 years from the date of marriage. In such a circumstance, one is required to see as to whether the deceased was subjected to cruelty by the appellants. In view of explanation to Section 113-A of the Evidence Act, cruelty shall have the same meaning as enumerated u/s 498-A of the I.P.C. Explanation 6 to Section 498-A of the I.P.C. states that harassment of the woman with a view to coercing her or any person related to her to meet any lawful demand to any property on account of failure to meet such demand amounts to cruelty. Therefore the harassment by the husband or the near relation for the purpose of meeting the demand of dowry is cruelty. In the background of the aforesaid legal position one has to see as to whether the appellants have abetted the offence ? 12. P.W. 2, the father of the decased has stated in his evidence that appellant No. 1 and his father, after the marriage demanded a sum of Rs. 10.000/- and on account of paucity of fund, the same was not given and therefore appellant No. 1 started beating the deceased. Letter written by the deceased to her father (Ex.P-4) also shows that she was assaulted by appellant No. 1 which caused swelling on her back. It is relevant here to state that on 18.3.1985 appellant No. 1 executed an agreement which inter alia acknowledges that earlier their used to be quarrel with the requirement i.e. her food and clothes. Besides the aforesaid evidence, in the dying declaration the deceased has stated about harassment and abuse by appellant No. 2 and threat of divorce by appellant No. 1. I have negatived the contention of the appellants regarding the infirmity pointed out by him in the dying declaration and in that view of the matter there is overwhelming evidence to show that it was on account of harassment by the appellants that the deceased committed suicide. In my opinion, suicide was the direct outcome of the harassment by the appellants. 13. In the result, I do not find any merit in the appeal and it is dismissed accordingly. The appellants are on bail, they shall surrender and serve out the remaining sentence. Appeal dismissed