L. NARASIMHA REDDY, J. ( 1 ) A-1 in Sessions Case No. 81 of 1994 on the file of the Assistant Sessions Judge, Kavali, is the petitioner in this Revision. Himself, his parents A-2 and A-3 and his sisters A-4 and a-5 were tried for offences under Secs. 306 and 498a of IPC. The trial Court, through its judgment dated 28-8-1996, convicted A-1, a-2 and A-3 of the said offences and sentenced each of them to undergo Rigorous imprisonment (RI) for a period of 3 years and to pay a fine of Rs. 1,000/- each, in default to undergo simple imprisonment (SI) for a period of 6 months for offence under Sections 306 and 389 IPC; and to undergo RI for a period of 1 year and pay a fine of Rs. 500/- each, in default to undergo SI for a period of 3 months for offence under Section 498-A ipc. Both the sentences were directed to run concurrently. ( 2 ) A-1, A-2 and A-3 filed Crl. A. No. 78 of 1996 on the file of the Court of Sessions, nellore. The lower appellate Court, through its judgment dated 4-2-2000, acquitted A-2 and A-3 and sustained the sentence and conviction against A-1. Hence, the present crl. R. C. , by A-1. ( 3 ) THE case as presented by the prosecution was as under:- a-1 was married to Amuda Kumari, the daughter of P. Ws. 2 and 4 on 12-1-1991. At the time of marriage, A-1 was employed in m/s. Swathi Pipe Industries, at Ongole. One month after the marriage, he resigned the job. At the time of marriage, he was given some cash and gold. After resigning the job, he started demanding his wife to bring one lakh from her parents so that he can join as a partner in another business. P. W. . 2 visited the house of the accused during Ugadi festival. A quarrel has taken place between herself and the accused on the issue of payment of the amount. P. Ws. 3, sister of p. W. 4 has also visited the house of the accused and during her discussion with kumari, w/o of A-1, she was informed that the accused were pestering her to bring dowry. P. W. 1, the brother of the said Kumari, has visited the house of the accused at Kavali on 26-1-1993. P. Ws. 3, sister of p. W. 4 has also visited the house of the accused and during her discussion with kumari, w/o of A-1, she was informed that the accused were pestering her to bring dowry. P. W. 1, the brother of the said Kumari, has visited the house of the accused at Kavali on 26-1-1993. His sister Kumari and A-1 asked him about the money. He informed them of the financial difficul ties in the family and expressed his inability. On the next day i. e. , 27-1-1993, a neighbour of the accused came to Tangutur and informed that Kumari was serious. Since PW. 4 was not in the house, P. W. 1 waited for him and sent p. W. 2 to Kavali. Subsequently P. Ws. 1 and 4 reached Kavali where Kumari was found dead. They submitted a complaint to the police Station on the same day. ( 4 ) BEFORE the trial Court, the prosecution has examined P. Ws. 1 to 11 and marked documents Exs. P-1 to P-4 and M. Os. 1 to 3. For the defence, D. Ws. 1 and 2 were examined and Exs. D-1 to D-9 were marked. As observed earlier, P. W. 1 is the brother of the deceased, p. Ws. 2 and 4 are her parents, P. W. 3 is her paternal aunt, P. Ws. 5 and 7 to 11 appear to be only formal witnesses and P. W. 6 is the immediate neighbour of the accused. The material witnesses, who had acquaintance with the deceased, are P. Ws. 1 to 4 and 6. D. Ws. 1 and 2 are the persons said to be acquainted with the business of P. W. 4 i. e. , father of the deceased, Ex. P-1 is the report given to the Police. Ex. P-2 is the inquest report, Ex. P-3 is the Observation Mahazar and Ex. P-4 is the Post-mortem Certificate. Exs. D-1 and D-2 are portions of statements recorded from P. W. 4 under Section 161 cr. P. C. Ex. D-3 is the letter dated 10-3-1992 addressed by P. W. 4 to A-2 asking him to specify the auspicious day to take A-1 to tanguturu. Ex. D-4 is another such letter addressed by P. W. 4 to A-2 requesting them to come to take the deceased to Tanguturu. Ex. P. C. Ex. D-3 is the letter dated 10-3-1992 addressed by P. W. 4 to A-2 asking him to specify the auspicious day to take A-1 to tanguturu. Ex. D-4 is another such letter addressed by P. W. 4 to A-2 requesting them to come to take the deceased to Tanguturu. Ex. D-5 is the letter dated 16-3-1992 addressed by P. W. 4 to A-1 requesting him to help p. W. 4 in the business. Ex. D-6 to D-9 are the letters said to have been written by P. W. 2 to a-1 about their business transactions. M. O. 1 is a wooden stool used by the deceased in hanging, M. O. 2 are the pillows, M. O. 3 is her upper garment. ( 5 ) ON appreciation of oral and documentary evidence, the trial Court found that the prosecution failed to establish the charges against A-4 and A-5 and acquitted them. It has convicted A-1 to A-3, on being convinced that they have abetted the deceased in committing suicide. It has also taken a view that the various acts and omissions on the part of A-1 to A-3 also constitute offence under Section 498-A. The lower appellate Court acquitted A-2 and a-3 by confirming the sentence against A-1. ( 6 ) SRI C. Padmanabha Reddy, learned senior counsel for A-1 submits that even according to the prosecution, the complainants have alleged that A-1 together with deceased have been requesting for certain amounts to be invested towards their share in the partnership firm and the same cannot constitute a demand for dowry. It is his case that P. W. 6, who was examined by the prosecution, has categorically deposed that the deceased was being looked after well by all the accused including A-1 and she was very happy with A-1 and since the said witness was not declared hostile, the entire case of the prosecution stands neutralized with his independent version. He submits that the courts below have assumed several things, which are not borne out by the record. The invocation of provisions of Sec. 113-A of the Indian Evidence Act was totally unwarranted. He submits that the prosecution has failed to establish the ingredients of abetment under Section 107 ipc and consequently there does not exist any basis for convicting the petitioner under section 306 IPC. The invocation of provisions of Sec. 113-A of the Indian Evidence Act was totally unwarranted. He submits that the prosecution has failed to establish the ingredients of abetment under Section 107 ipc and consequently there does not exist any basis for convicting the petitioner under section 306 IPC. It is his case that the presumption under Section 113-A is not at all applicable for the offence under section 498-A and, in that view of the matter, the conviction under that section is also unsustainable. He relied upon certain decisions of the Supreme Court. ( 7 ) THE learned Public Prosecutor, on the other hand, submits that both the courts have concurrently found, on the basis of evidence on record and on application of settled principles of law, that A-1 was guilty of the offence charged against him and no interference is called for. According to him, the evidence of P. Ws. 1 to 4 was consistent and the chain of events ever since the marriage of A-1 with the deceased, leave the courts with no doubt as to the complicity of a-1 in the offence. He further submits that though the facts of the case attracted section 304b IPC, the accused was tried under section 306 read with Sees. 107 and 498-A ipc. ( 8 ) IN the light of the submissions made by the learned senior Counsel and the learned public Prosecutor, it needs to be seen as to whether the prosecution has established the charges levelled against the accused under sections 306 and 498-A IPC. ( 9 ) SECTION 306 comes into play when a person is said to have abetted another in committing suicide. The prosecution has, therefore, to establish that the person accused of the offence has abetted. Abetment by its very nature, may include certain specific acts or omissions on the part of the accused, resulting in the commission of suicide by the deceased. Abement is defined under section 107 IPC as under:"107. The prosecution has, therefore, to establish that the person accused of the offence has abetted. Abetment by its very nature, may include certain specific acts or omissions on the part of the accused, resulting in the commission of suicide by the deceased. Abement is defined under section 107 IPC as under:"107. 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. " even to invoke Section 107 IPC, the "thing" referred to therein needs to be established. The application of the situation "secondly" referred to under Section 107 IPC, can safely be ruled out in the facts of the case. Even if the allegations of the prosecution are taken on their face value, they can, at the most, come within the ambit of "first" and "thirdly". ( 10 ) ANOTHER important provision, which needs to be noticed here is Section 113-A of the Indian Evidence Act. The Parliament has enacted Section 113-A enabling the Courts to draw certain presumption as to abetment in the event of suicide of a married woman, within 7 years of marriage. It reads as under:"113-A. Presumption as to the 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". To invoke the provision of this Section, it shouldbe shown that (1) the married woman has committed suicide; (2) the suicide has taken place within 7 years from the date of marriage; and (3) the husband or his relative subjected her to cruelty. husband". To invoke the provision of this Section, it shouldbe shown that (1) the married woman has committed suicide; (2) the suicide has taken place within 7 years from the date of marriage; and (3) the husband or his relative subjected her to cruelty. The presumption to be drawn as to abetment in this Section is rebuttable. Further, the presumption cannot be drawn as a matter of course even where the three ingredients referred to above exist. The Court is required to have "regard to the other circumstances of the case". The supreme Court in Ramesh Kumar v. State of chattisgarh observed in this regard as under:-"last but not the least, the presumption is not an irrebuttable one, in spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destray the presumption. The phrase "may presume" used in section 113-A is defined in Section 4 of the Evidence Act, which says - "whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until is disproved, or may call for proof of it. " ( 11 ) WHAT constitute "instigation" has aptly been described by the Supreme Court in ramesh Kumar case. In para 20 of the judgment, it was explained as under:"instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. "as regards assessment of the facts constituting "instigation", the Supreme court added a note of caution to the following effect:"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. (See State of W. B. v. Orilal Jaiswal (1994) 1 scc 73 " ). ( 12 ) REVERTING to the facts of the case, much will depend on whether the prosecution has established that the petitioner herein is guilty of such instigation. The allegation against A-1 is that he has been harassing and pestering the deceased to bring amount towards dowry from her parents. P. W. 1, who is no other than the brother of the deceased, has stated that his sister has informed him that A-1 has been insisting on her to bring more money to join as a partner in the business. He has stated that on the day, preceding the death of the deceased, he went to Kavali and there A-1 and the deceased had enquired him as to whether he has brought any amount. He claims to have informed these facts to his parents on his return. P. W. 2 is the mother of the deceased. She has spoken to certain instances of such demand. In her cross-examination, she stated that the deceased had addressed certain letters to her informing that A-1 was demanding additional amount and stated that they were destroyed. Her evidence is to the following effect:"my daughter addressed some letters to us about harassment of the accused and that they were destroyed. "at another place she said "a day prior to death, P. W. 1 visited Kavali. He was asked by A-1 and Kumari whether he has brought any money, ( 13 ) NEITHER P. W. 1 nor P. W. 4 have spoken about these letters. It was not as if there was a gap of several years and that such important letters were destroyed after lapse of considerable time. Marriage itself was performed in January 1991 and the deceased died in January 1993. ( 14 ) P. W. 3 is the maternal aunt of the deceased. She too claims to have visited the house of the accused and met the deceased and that she was informed by the deceased of the demand of dowry. Much does not turn up on her evidence. ( 15 ) P. W. 4 is the father of the deceased. He is consistent to the effect that the amount was being demanded by A-1 as well as the deceased, together, for the purpose of investment in a partnership. Much does not turn up on her evidence. ( 15 ) P. W. 4 is the father of the deceased. He is consistent to the effect that the amount was being demanded by A-1 as well as the deceased, together, for the purpose of investment in a partnership. The following excerpts from his evidence are relevant:"during the stay at Tanguturu she stated to me that her husband requires money to start his own business. ""2 months prior to the date of incident my daughter A-1 came to Tangutur and requested money and I requested my daughter and A-1 to adjust the money later. "he admitted that he had addressed letter marked as Ex. D-5 to A-1 requesting the latter to assist him in business. A clear suggestion was made to him that A-1 was financial better than him and he (P. W. 4) was heavily indebted, as evident from the various diaries that where shown to him. ( 16 ) P. W. 6 is an independent witness, in the sense, that he does not belong to the family of P. Ws. 1, 2 and 4 and that of the accused. In his chief examination, P. W. 6 deposed that on 27-1-1993 at about 10. 30 a. m. , the deceased was alone in her house and he went inside to speak to her and found her lying dead by hanging. It is he who noticed the incident first. In the cross- examination, he deposed as under: "kumari was moving closely with me. The accused were looking after her well. A-1 the husband of Kumari was happy with Kumari. She never complained to me any ill-treatment by the accused. Then my boy was sent to Tangutur to inform the parents of Kumari. " p. W. 6 was not declared hostile, much less, cross-examined by the prosecution. When an independent witness, such as P. W. 6, has spoken to the fact that the petitioner was looking after the deceased well and that the deceased was happy with the petitioner, such a piece of evidence cannot be ignored or brushed aside. ( 17 ) ON a consideration of the facts referred to above, it is clear that P. W. 1 to 4 have never complained about the demand of dowry by the accused from the deceased. The letters alleged to have been addressed by the deceased are said to have been destroyed. ( 17 ) ON a consideration of the facts referred to above, it is clear that P. W. 1 to 4 have never complained about the demand of dowry by the accused from the deceased. The letters alleged to have been addressed by the deceased are said to have been destroyed. Neither any mediation was undertaken nor the matter was reported to any Police Station. Even one day prior to the date of the incident, p. W. 1 has gone to the house of the accused. One after the other witnesses i. e. , P. W. 1 to 4, had been visiting the house of the accused with the different intervals. From the letters addressed by P. W. 4 marked as Exs. D-3 and d-4, it is evident that the cordial relations existed between the families. When P. W. 4 himself has requested A-1 by writing ex. D-5 to help in business, it is rather improbable that A-1 has insisted the deceased to bring money from her parents as dowry. P. W. 4 has admitted that the various diaries produced in the Court was maintained by him and that they revealed his financial position to be very weak. The diaries came from the possession of A-1. A person, who knew the financial weakness of his father in law and who was himself approached for financial assistance, cannot be expected to pester his wife to bring more amount. The cumulative effect of absenceof any complaint, existence of cordial relations as evidenced from the letters Ex. D-3 and D-4 and requesting for financial assistance by P. W. 4 himself, would certainly improbabilise the demand by A-1 of any amount towards dowry. ( 18 ) FURTHER, even assuming that there existed such a demand, the nature of the same, as evidence from the depositions of p. Ws. l, 2 and 4, was only in the form of a request for investment in the business. Such a requester se cannot be treated as a demand for dowry. These aspects certainly need to be taken into account while drawing presumption. If regard is had to all these circumstances, the presumption as provided under Section 113-A of the Evidence Act is impermissible; thereby A-1 cannot be said to have abetted the commission of suicide by the deceased. Such a requester se cannot be treated as a demand for dowry. These aspects certainly need to be taken into account while drawing presumption. If regard is had to all these circumstances, the presumption as provided under Section 113-A of the Evidence Act is impermissible; thereby A-1 cannot be said to have abetted the commission of suicide by the deceased. These circumstances would also disable the Court to conclude that there existed any abetment as defined under section 107 IPC; by A-1. Once the ingredients of abetment are missing, the question of the person having committed offence under section 306 does not arise. Therefore, the conviction of A-1 under this offence was unsustainable and the same is accordingly set aside. ( 19 ) NOW remains the conviction under section 498-A. While considering the case of the prosecution for offence under Sec. 498-A, particularly, when the victim is no more, the conviction should be on the basis of legally admissible evidence. None of the prosecution witnesses can be said to be direct witnesses to any single incidence or a series of acts or omissions constituting offence under section 498-A. Their evidence can broadly be treated as the one under Section 32 of the evidence Act. As observed by the Supreme court in Gananath Pattnaik v. State of Orissa, such evidence needs to be considered with a note of caution. It was held therein that section 32 is an exception to Rule as to hearsay Evidence and deals with statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. It was held that if such a statement does not conform to Section 32 or is covered by Rules as to hearsay Evidence, the same cannot be relied upon to hold the accused as guilty. The discrepancies in the evidences of the witnesses and the cumulative effect of various aspects referred to above would also hold good in coming to. the conclusion that the conviction and sentence against the petitioner for offence under Section 498-A is not sustainable. The same is accordingly set aside. ( 20 ) IN the result, the Crl. R. C. is allowed and the conviction and sentence of the petitioner under Sections 306 and 498-A of ipc are set aside. Fine, if any, paid by the petitioners shall be refunded.