JUDGMENT 1. Appellants Narendra Singh, Shyarnsingh and Smt. Narwadabai has been convicted and sentenced by order dated 30.1.1993 by Shri K.C. Garg, the then Second Additional Sessions Judge, Bhind, under Section 306 IPC to a term of 7 years' RI and fine of Rs. 500/-. In default of fine, further term of three months' S.I. was awarded. 2. Shortly narrated facts are that Smt. Saroj deceased was wedded to appellant No.2 Shyarn Singh as early as in 1984. Appellants Narendra Singh and Smt. Narwadabai are uncle and aunt of appellant No.2 Shyarn Singh. The prosecution claimed that after the marriage, deceased Saroj was being subjected to cruelty as a result of which she committed suicide on 27.10.1988. A report (Ex.P/5) was lodged by PW 9 Dipti Singh, father of the deceased. On the basis of the report, usual investigation took place and a charge-sheet was submitted against the accused-appellants. The learned trial Court charged them under Sections 304A and 306 IPC. Accused persons denied the charge and claimed that there was a dispute between Dipti Singh on one hand and Narendra Singh on the other with respect to some money transaction. Appellant Shy am Singh was living separately than the others two appellants. Dipti Singh got the appellants implicated on account of enmity. 3. The prosecution examined 12 witnesses and relied upon documents Ex. P/18 in support of its case. The accused persons also entered upon their defence and examined PW 1 Ram Harsh and PW 2 Virendra Singh. After considering the entire evidence and hearing the parties, the learned trial Court concluded that the accused persons were guilty of the offence under Section 306 IPC. He however, acquitted all of them under Section 304A, IPC. As the appellants were convicted for the aforesaid offence, hence this appeal. 4. The learned counsel for the appellants argued vehemently that in order to make out a case under Section 304, IPC there are certain requirements of law and unless they are fulfilled the prosecution cannot succeed. In the present case, the fact that the deceased committed suicide too has not been satisfactorily proved and even if it is taken that she committed suicide, there is no material to show that the accused abetted the commission of suicide. The learned trial Court relied heavily upon the presumption attached to Section 113A of the Indian Evidence Act. In the present case, the fact that the deceased committed suicide too has not been satisfactorily proved and even if it is taken that she committed suicide, there is no material to show that the accused abetted the commission of suicide. The learned trial Court relied heavily upon the presumption attached to Section 113A of the Indian Evidence Act. But in order to attract this provision, it must be proved that there was a 'cruelty', within the meaning of the definition given under Section 498A of the IPC. As cruelty has not been proved, no presumption could be drawn. The learned counsel for the State of the other hand argued that admittedly the deceased was the wife of Shyam Singh and she died within 7 years of the marriage. The presumption under Section 113A of the Evidence Act is, therefore, attracted and the learned trial Court rightly convicted the accused-appellants. 5. In view of the submissions made by the learned counsel for the parties referred to above, we have to find out as to whether any offence under Section 306, IPC is made out or not from the evidence on record. Section 306 requires that the prosecution has to prove (1) the commission or suicide by a person and (2) that the accused abetted the commission thereof. In order to establish abetment, the essential requirements of Section 107 have also to be proved. Section 107 of IPC defines abetment of a thing and in order to make out a case of abetment, it has to be shown that a person is alleged to have abetted or instigated any person to do anything secondly, engaged with one or more other person or persons in any conspiracy for the doing of that thing and thirdly intentionally aids, by any act or illegal omission, the doing of that thing. Before discussing the evidence relating to the essential requirements of the offence punishable under Section 306, it may also be mentioned that Section 113A of Indian Evidence Act provides for a presumption as to abetment of suicide by a married woman. In order to attract this provision, it has to be shown that the lady had committed suicide within a period of 7 years from the date of marriage and her husband or such relative of her husband had subjected her to cruelty as defined under Section 498A of Evidence Act. In order to attract this provision, it has to be shown that the lady had committed suicide within a period of 7 years from the date of marriage and her husband or such relative of her husband had subjected her to cruelty as defined under Section 498A of Evidence Act. If we go through the provision of Section 498A, IPC, we find that 'cruelty' has been defined in the explanation as any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health and secondly, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security. In the light of this background, we have to scan the evidence adduced by the prosecution. 6. The first ingredient of the offence punishable under Section 306 is that the lady had committed suicide. PW 2 Sharda Devi is the mother of the deceased Saroj. She deposed that the her daughter was married about 6-7 years back to Shyam Singh. Gona had taken place after one year of marriage. When she went in Gona, she had disclosed that her ornaments had been taken by her uncle-in-law Narendra Singh and aunt-in-laws Narmada Bai and she had no ornaments. When she went to her sasural, she gave her ear-ring of five anna and a golden ring of three annas. When she returned second time, she told that her uncle-in-law and aunt-in-laws harassed her-and they did not give her food, allow to enter the kitchen. She was not given meals for three days. She categorically stated that she did not know as to how she died, whether she died out of poison given by others or she had herself taken poison. Her husband had gone to take Saroj. She was not sent when her son Rakesh had gone her sasural for vidai. She was weeping. She stated that she was being harassed. She was not given food and clothes' etc. she was made to understand. Her husband had gone to take Saroj. She was not sent when her son Rakesh had gone her sasural for vidai. She was weeping. She stated that she was being harassed. She was not given food and clothes' etc. she was made to understand. In her cross-examination she has specifically stated that when she came to give statement in Court, her counsel had made her understand and had read over to her as to what statement she was to give, it, therefore, clearly goes to show that she is a tutored witness and no reliance can be placed upon her testimony. I may also mention that in para 7 of her statement she stated that police did not make any enquiry from her. In para 8 also she stated that the police of Umri did not make any enquiry from her, made' enquiry from her husband. She also stated in para 8 that her son Rakesh and husband did not tell her that her daughter was being harassed by her in-laws. She also stated in the same paragraph that it was wrong that her daughter had committed suicide. Thus, if her statement is taken to be correct, it goes to show that Saroj did not commit suicide. 7. The other witness examined by the prosecution is PW 9 Dipti Singh, father of the deceased. He deposed that his nephew Rajesh had told him on 27.10.98 that his daughter Saroj had died. Thereafter he along with his elder brother Shiv Singh, cousin Shiv Narayn Singh and Ramgopal Singh went to Chakra and from there they went to Dhonchra. Before he reached there, the dead body of her daughter had been consumed. He remained there and then lodged the report. All inhabitants of village Dhonchra told him that his daughter had died by consuming some poisonous thing. She was married in the year 1984 to Shyam Singh. His daughter told him and his wife Sharda several times that aunt-in-law, uncle-in-law and husband Shyam Singh used to harass her, abuse her and beat her. Once she was kept starving for three days and was of allowed to enter the kitchen. He made her to understand several times. He also made Shyam Singh to under stand several times and told him that in case there was any mistake, there was no necessity of beating. She be made to understand. Once she was kept starving for three days and was of allowed to enter the kitchen. He made her to understand several times. He also made Shyam Singh to under stand several times and told him that in case there was any mistake, there was no necessity of beating. She be made to understand. She had read up-to 5th class. He received her letters. But he did not keep them properly. It was written clearly in the letters that Narendra Singh, Narmada Bai and Shyam Singh were bent upon to beat her. He had given a complaint (EX. P/4) in writing to officer-in-charge of P.S. Umri. He admitted that her mother-in-law was alive. He had come to know her harassment from the time of Gona that the in-laws of sasural used to harass her. His daughter had told him several times through letters that she was being harassed. The letters were not available. No intimation was given to the police on account of insult. A suggestion was thrown to him that his daughter committed suicide on account of the fact that she was sick, but he has denied it. Thus, perusal of the statement shows that he has given sweeping statement. She told him that she was being harassed. It is significant to mention here that his statement, does not show that there was any harassment before the death or there was anything, which may be said to constitute harassment leading to commission of suicide. His statement also does not show that the lady had committed suicide. In this way, his statement too does not prove the essential requirements of the offence punishable under Section 306 IPC. 8. PW 1 Het Singh, who had passed Aurved Ratna from Allahabad, stated that he used to do medical practice. Accused Shyam Singh was very well known to him. On the date of occurrence at about 7.00 a.m., Virendra Singh went to him and told him that he will see Shyam Singh's wife Saroj. He went there and found her unconscious. He sprinkled water, but she did not regain consciousness. He gave a coramine injunction. Saroj regained some consciousness. When he enquired from her, she disclosed that she had taken opium and she be saved. He had asked the inmates of the house to take her to Bhind. They took her to Bhind. He went there and found her unconscious. He sprinkled water, but she did not regain consciousness. He gave a coramine injunction. Saroj regained some consciousness. When he enquired from her, she disclosed that she had taken opium and she be saved. He had asked the inmates of the house to take her to Bhind. They took her to Bhind. He has been declared hostile by the prosecution, but if his statement is seen, it transpires that Saroj had stated that she taken opium and she be saved. He stated that he did not know as to how Saroj died. Narendra Singh met him and he told him that Saroj had died. Narendra Singh told him that Saroj had taken something. Saroj could not be saved in the hospital. 9. PW 7 Dr. K.K. Agrawal had medically examined Saroj. He stated that on 26.10.86 Saroj was brought in the hospital in unconscious state by her uncle Narendra Singh. He suspected that the death might have been caused by poison. She was unconscious. He had given intimation to the police about the death. Thereafter she died at Bhind. He was not informed as to whether Saroj was treated medically earlier. He deposed that the death could have been caused by consuming poison by herself. It may also be mentioned here that the death had taken place at Bhind hospital as stated by this witness. The post-mortem report (Ex. P/12) is on record. The doctor has not been produced, though this report has been admitted. A perusal of the report shows that no definite opinion could be given as far as death is concerned but he had observed that viscera was preserved and sent for analysis. Ex. P/10 is the letter of the Supdt. of Police, Bhind addressed to the Chemical Examiner, FSL Sagar for expert opinion. There is, however, no report of the expert showing that viscera contained poison. It is the duty of the prosecution to have obtained the expert report and to have brought it on record, but it has not been done. Apart from the statement of PW 1 Het Singh, who had initially visited the deceased and his statement that she had disclosed to him that she had taken opium, there is no other material on record to show that the deceased had committed suicide by taking poison. Apart from the statement of PW 1 Het Singh, who had initially visited the deceased and his statement that she had disclosed to him that she had taken opium, there is no other material on record to show that the deceased had committed suicide by taking poison. The learned trial Court has given a categorical finding that Smt. Saroj had committed suicide by taking poison. In view of the fact that there is no specific evidence on record that• the deceased had taken poison and she committed suicide it cannot be definitely said that she committed suicide. I have already stated above that the mother of the deceased categorically deposed that she did not commit suicide. However in view of the statement of Het Singh (PW1), to whom the deceased had stated that she had taken opium; I accept for the sake of argument that she committed suicide. 10. In view of my finding, though reluctantly, that the deceased had committed sucide, it has now to be seen as to whether the appellants had abetted the commission of suicide. I have already shown above that the evidence on record does not go to show that there was any harassment or torture within the meaning of 'cruelty' as given in Section 498A. The simple reason is that the statement of the mother of the deceased, Sharda Devi (PW 8) is a tutored statement, as stated by her. No reliance can be placed in this view of the matter on her statement. The statement of the father of the deceased too cannot be believed because if there was a tutoring of one witness, it can safely be inferred that other witnesses must also have been tutored. Even if it is taken that the father was not tutored in that case too, his statement cannot be said to be reliable in order to establish that the deceased was harassed or treated with cruelty . 11. The learned trial Court has based its finding upon the presumption under Section 113A of the Indian Evidence Act. I have already mentioned above that in order to attract the provision of Section 113A, it has to be proved that the husband or any relative of her husband had subjected her to cruelty. 11. The learned trial Court has based its finding upon the presumption under Section 113A of the Indian Evidence Act. I have already mentioned above that in order to attract the provision of Section 113A, it has to be proved that the husband or any relative of her husband had subjected her to cruelty. The fact that it is proved that the committal of suicide was within seven years of marriage of subjection of cruelty in itself is not sufficient to apply the provision of Section 113A. All the surrounding circumstances have to be seen and only then presumption can be drawn. It may be mentioned that the "cruelty" should be such as to drive the woman to commit suicide. It is on proof of such facts coupled with other circumstances that the Court can draw presumption of abetment against husband or his relatives for a suicide committed by the woman. In deciding whether permissive presumption or presumption of fact as envisaged in' S. 113A should be invoked in any particular case, the Court has to circumspect and consider all the attending facts and circumstances of the case. In case, where evidence of torture is not reliable, no presumption can be drawn. In other words if there is no reliable evidence of harassment of torture, the presumption attached under Section 133A cannot be drawn. Unless it is established that the wife was subjected to cruelty, no presumption can be raised. In 1989'CrLJ (NOC) 38, it was laid down that mere fact that deceased wife was treated with cruelty by husband and mother-in-law is not sufficient to prove abetment in commission of suicide. In this view of the matter, in absence of any reliable evidence relating to torture, I am of the opinion that no presumption can be drawn under Section 113A. The learned trial Court, therefore, committed an error in raising a presumption. As no presumption could be raised on the basis of the circumstances brought on record and in absence of reliable evidence relating to cruelty, there remains no material to connect the accused persons with the offence punishable under Section 306 IPC I, therefore, conclude that the learned trial Court has committed an error in holding the accused persons guilty of the offence punishable under Section 306 IPC. The appeal must, therefore, succeed. It is accordingly allowed. The appeal must, therefore, succeed. It is accordingly allowed. The order of conviction and sentence passed against the appellants are set aside and they are acquitted of the charge for which they were tried. The appellants are on bail. They need not surrender. Bail bonds are cancelled and surety discharged. Fine, if paid, shall be refunded.