JUDGMENT D. Biswas, J. 1. This appeal is directed against the judgment and order dated 17.4.1997 passed by the learned Sessions Judge, Kamrup at Guwahati in Sessions Case No. 142(K)93 Under Sections 498(A)/306 of I.P.C. The learned Sessions Judge by the impugned judgment convicted the appellant under aforesaid provisions of the Indian Penal Code and sentenced him to suffer imprisonment for a period of two years and to pay fine of Rs. 1,000/-, in default, further imprisonment for one month Under Section498(A), I.P.C. and to suffer rigorous imprisonment for four years and to pay fine of Rs. 2,000/-, in default, further imprisonment for two months Under Section 306, I.P.C. 2. The wife of the appellant committed suicide on 7.12.1989 by hanging herself in the bathroom. The matter was reported to the Officer-in-Charge of Dispur Police Station on the same day. It was registered as U.D. Case No. 32/1990. The women activists submitted an application, Exhibit-2, before the Police and this was also registered as G.D. Entry No. 374 dated 9.12.1989. The Sub-Inspector of Police, Shri D.C. Barua was directed to enquire into the matter. Later on, Dispur Police Station Case No. 762/1989 Under Section 306, I.P.C. was registered. On completion of the investigation, the police submitted charge sheet against the appellant. Prosecution case against the appellant is based on the allegations that the deceased was subjected to mental and physical torture by the appellant which ultimately led her to commit suicide. 3. On commitment, the learned Sessions Judge framed charge against the appellant Under Sections498(A)/306, I.P.C. The prosecution examined 14 witnesses to bring home the aforesaid charges. The defence examined two witnesses. 4. The learned Sessions Judge, on evaluation of the evidence on record, came to the conclusion that the deceased wife had committed suicide because of mental and physical torture perpetuated on her by the appellant-husband. On such finding, the verdict of guilt was pronounced sentencing the appellant as aforesaid. 5. I have heard Mr. K.P Pathak, learned Senior Counsel for the appellant and Ms. B. Rajkhowa, learned Public Prosecutor. There is no dispute with regard to the fact that the wife had committed suicide within two and half years of marriage. The argument was confined to the question of cruelty. Mr. Pathak referred to the evidence in details to show that the prosecution has miserably failed to establish the charge of physical and mental torture. 6. There is no dispute with regard to the fact that the wife had committed suicide within two and half years of marriage. The argument was confined to the question of cruelty. Mr. Pathak referred to the evidence in details to show that the prosecution has miserably failed to establish the charge of physical and mental torture. 6. It, therefore, becomes imperative to decide first whether the evidence on record prove the allegation of physical and mental torture. Dr. B.C. Raimedhi held the autopsy at Guwahati Medical College Hospital. The following injuries were found on the person of the deceased : "(1) One abrasion on lateral border of left hand 3x2 cm. which is ante mortem and caused by blunt impact. (2) Old scar brownish in appearance 3 x 0.5 cm. in size present obliquely on left abdomen. (3) Another old brownish scar 2 x 0.3 cm. present in front of left middle thigh. (4) An oblique non-continuous depressed and parchmentised broad and dried ligature mark measuring 24 cm. x 4 cm. present on both sides and front of the neck over and above the thyroid cartilage, the non-being to the back of the neck between two mastoid processes." 7. The doctor opined that the death was due to Asphyxia as a result of ante-mortem suicidal hanging. The injuries found on the person of the deceased are simple. One abrasion and two scars mark found on the person of a married woman will not in itself be the proof of physical torture. The injuries will have to be considered along with other evidence. 8. P.W. 1 Smt. Girija Baruah was the President of the Mahila Samity at the relevant time. She deposed that she was told by the deceased that her husband used to torture her physically. She was also shown the injured thumb and injury marks on her back. She tendered in evidence the application (Exhibit-l) submitted by the deceased. P.W. 2 Smt. Nilima Kakati was the Secretary of the Mahila Samity. She deposed that the deceased met them and showed the injury on her thumb caused by her husband and injuries on other parts of her person. About 10 days later, the deceased met her again and informed that she had left her matrimonial home being unable to tolerate the torture of her husband. Next day, this witness came to know that Saraswati had committed suicide. About 10 days later, the deceased met her again and informed that she had left her matrimonial home being unable to tolerate the torture of her husband. Next day, this witness came to know that Saraswati had committed suicide. These two witnesses have stated what they have been told by the deceased. They are not eye witnesses to the occurrence of torture and assault. They deposed on information given by the deceased before her death. 9. P.W. 3 Munindra Nath Kalita, a neighbour, deposed that he came to know that the accused had been quarrelling with Saraswati since the day of marriage. He could also hear "the sounds of shouts of Saraswati and accused". He did not ask either Saraswati or the accused anything about the quarrel. He further said that the deceased had told his wife that the accused had cut her thumb and his wife applied medicine to her wound. He further stated that he had often heard the deceased crying in her house and also heard the "sound of beating". This witness came to know from his wife that the accused had caused injury on her thumb. The evidence of this witness shows that the couple was not in good term, often quarrelling and shouting. 10. P.W. 4 Basanta Barman, another neighbour said that he heard that the two sons of the accused from his first wife were living with them. He often heard 'sound of beating and shouting'. The deceased once reported his wife that she was subjected to torture and asked to leave the house. Once the witness was reported by the deceased that she was assaulted by her husband. He has no direct knowledge about the alleged assault except reports from his wife and once from the deceased given prior to death. 11. The evidence of P.W. 5 Smt. Arati Ozah stand on a different footing. She stated that quarrel started between the couple after about three months of marriage and she used to hear the cries of Saraswati, the deceased. Once she had seen the accused pouring hot tea over head of Saraswati. She was also told by the deceased that the accused had burnt her with lighted cigarette. A cut injury was also shown to her on the left thumb caused by her husband. Once she had seen the accused pouring hot tea over head of Saraswati. She was also told by the deceased that the accused had burnt her with lighted cigarette. A cut injury was also shown to her on the left thumb caused by her husband. Her husband also told her that while he went to the house of the accused for a settlement, the husband had beaten Saraswati in their presence. A part of evidence of this witness is based on information given by the deceased and rest on her personal knowledge, particularly regarding pouring of hot tea water. 12. The evidence of P.W. 5 regarding pouring of hot tea water is evidently supported by P.W. 6 Smt. Gouri Bala Choudhury who was told by the deceased that her husband had poured hot tea on her head and scorched her with lighted cigarettes. P.W. 7 Aruna Hazarika told that in the meeting called by the women at the local Namgarh, the deceased had told the gathering that her husband had physically assaulted her, withdrew food and did not provide cloth and also showed some injuries. This witness was present when the deceased made the statement. P.W. 8 Nirada Mahanta also deposed in the same tune. There is nothing incriminating in the evidence of P.W. 9. P.W. 10 Rajani Kanta Deka deposed that he heard the couple quarrelling, but the reason for quarrel was not known. In his cross-examination, he stated that once he had been to the house of the deceased along with his wife and found the deceased breaking a wall inside the house. A hole had been made in the wall and she had been striking the wall like a 'mad man'. She had been uttering something in the process. 13. The evidence of the witnesses as a whole show that the couple was not in good term, often quarrelling and this was within the knowledge of people living in the neighbourhood. The evidence of torture as given by them is more or less from the report given by the deceased on different occasions. Only P.W. 5 stated that she had once seen the accused pouring hot tea water over the head of Saraswati, The cumulative effect of the statement of the witnesses from the neighbourhood clearly establish that Saraswati was not treated with the dignity a wife expects from her husband. Only P.W. 5 stated that she had once seen the accused pouring hot tea water over the head of Saraswati, The cumulative effect of the statement of the witnesses from the neighbourhood clearly establish that Saraswati was not treated with the dignity a wife expects from her husband. She was subjected to assault by her husband. Presumption of abetment of suicide can be drawn against the accused from the evidence on record. Now, let us examine whether the defence could rebut the presumption. 14. From D.W. 1 Dr. Deepali Dutta, a practising Psychiatrist, retired as Principal of Gauhati Medical College, had the occasion to treat the deceased for about six weeks for acute Peranoidel. Exhibit-A is the certificate and Exhibit-B is the prescription given by her. She had treated the deceased for Peranoidel mental illness. She deposed as follows : "Acute Peranoidel state is a mental illness, in which a patient may become very violent and acutely and extremely restless. A patient may express morbid suspicion. This kind of patient commit suicide because of their improper nature. This may be aggravated during or pre-menstrual period." 15. D.W. 2 Mitulmoni Mahanta is the son of the accused from his first wife. His evidence is quoted below : "The accused is my father. My mother is living. I do not know how my parents got separated. Father later married Saraswati Mahanta. Father treated my step-mother very nicely. Step mother's behaviour was also good. She behaved nicely when she was in good mood. Occasionally, she behaved violently. She used to abuse others, shout loudly and threw about the things. If father tried to resist her, she physically assaulted him. One day father and I took her to Dr. Deepali Dutta. The doctor gave her medicines. Once when mother was behaving in a violent manner, I called in two neighbouring people on being asked to do so by father. They were Rajani Deka and Aikon. When they came, step-mother closed the door to the room. From inside she hit the door with a crow-bar as a result of which a piece of door broke and hit father in his leg." 16. The evidence of the two defence witnesses particularly, that of the expert shows that the deceased was not in perfect state of. mental health. When they came, step-mother closed the door to the room. From inside she hit the door with a crow-bar as a result of which a piece of door broke and hit father in his leg." 16. The evidence of the two defence witnesses particularly, that of the expert shows that the deceased was not in perfect state of. mental health. The evidence of the neighbour show that both the wife and the husband were quarrelling and shouting aloud resulting in beating. From the evidence available, major part of which is based on the report from the wife, it is difficult to blame the husband alone for such unhappy happenings. Over sensitivity of a woman because of morbid suspicion may lead to provocating behaviour exhorting the husband to react and reciprocate. The evidence on record is also not overwhelming enough to conclude that the wife had developed mental illness only because of the torture by her husband. The evidence of D.W. 1 Dr. Deepali Dutta is of significance since she stated that a patient of acute Peranoidel may become violent and extremely restless and this kind of person may also commit suicide. Prevalence of Schizophrenia amongst the women is not uncommon. It may occur even before the age of 20 years. In such a situation, a wife may behave in an erratic way compelling the husband to react and in such process the husband may exceed the permissible limit of restraint required to be imposed. For that, he may be guilty of offence of assault, but not of abetment to commit suicide. The evidence of the prosecution and defence witnesses when considered together create a doubt as to whether the impact of the assault was of such a degree that it was sufficient enough to drive the wife to commit suicide. A patient of acute Peranoidel may even commit suicide on slightest excitement. Such a patient do not require strong compelling reasons to end her life. On this context, we may quote hereinbelow the evidence of D.W. 2 relating to the death of the deceased : "About 20 days before her death, Saraswati Mahanta went away from the house. I do not know where she had gone. On the day of occurrence when I had been reading, step-mother came and told father, 'I have got something to talk to you. I am coming from the bathroom'. I do not know where she had gone. On the day of occurrence when I had been reading, step-mother came and told father, 'I have got something to talk to you. I am coming from the bathroom'. So saying, she entered the bathroom. When she did not come out for ten minutes, father sent me to have a look. Going there, I found the door closed from inside. I called her but did not get any response. I told father of this. I again came there with father and looked through the gap under the door. Suspecting something, I informed the neighbours. Father went to the police station. Police came. They broke open the door and found that Saraswati Mahanta had hanged herself in the neck." 17. The above evidence of D.W. 2 shows that his step-mother had committed suicide after being absent for about 20 days from the house. Obviously, there was no occasion during the preceding 20 days for the accused to cause any physical assault though the pain of suffering may lie hidden in the mind of the deceased. To sustain conviction Under Section 306, I.P.C., the Court will have to be satisfied that the elements of abetment exist. The ingredients of Section 107, I.PC. must be satisfied to sustain conviction Under Section 306, I.PC. Sections 107 read as follows : "107. Abetment of a thing.-A person abets the doing of a thing who,- First - Instigates a 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." 18. The three circumstances available to constitute the offence of abetment cannot be read in the evidence of the witnesses. There is neither instigation nor any element of conspiracy. Intention to aid the doing of a thing by any act or illegal omission are also not available in the instant case. The fact remains that after the sordid happenings, the wife left the house and came back after 20 days and committed suicide. This 20 days is a period long enough for a person for reflection. Intention to aid the doing of a thing by any act or illegal omission are also not available in the instant case. The fact remains that after the sordid happenings, the wife left the house and came back after 20 days and committed suicide. This 20 days is a period long enough for a person for reflection. The evidence on record make out a clear case of abetment Under Section 107 for maintaining conviction Under Section 306, I.P.C., abetment being precondition to the offence Under Section 306, I.P.C. Presumption Under Section 113A of the Indian Evidence Act may be drawn only when it is shown that the woman had committed suicide within a period of seven years from the date of marriage and the husband or his relative, who are charged had subjected her to cruelty. Cruelty is defined in the Explanation to Section 498(A), I.P.C. which reads as follows : "Section 498A-........................ Explanation : For the purpose of this section, 'cruelty' means,- (a) 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 (whether mental or physical) of the woman; or (b) 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 or is on account of failure by her or any person related to her to meet such demand." 19. Clause (b) of the Explanation is not attracted in the instant case. There is no allegation of any unlawful demand. In so far Clause (a) is concerned, the evidence on record show that it has relevance since the wife was subjected to physical assault. Exhibit-7, the letter written by the deceased on 25.11.1989 i.e. about 11 days before her death also shows that she was subjected to physical assault by the accused. 20. Section 113A of the Indian Evidence Act permits presumption of abetment only when one of the two clauses of the Explanation to Section 498A is proved. This presumption is not decisive and subject to rebuttal. The defence in the instant case adduced evidence of the expert and that of the son to show that the deceased was over-sensitive and often became violent in her conduct. According to D.W. 1, Dr. This presumption is not decisive and subject to rebuttal. The defence in the instant case adduced evidence of the expert and that of the son to show that the deceased was over-sensitive and often became violent in her conduct. According to D.W. 1, Dr. Deepali Dutta, she was a patient of acute Peranoidel and such a patient even may commit suicide. The evidence of D. Ws. 1 and 2 cast a shadow of doubt on the prosecution case that the wife had committed suicide only because of the physical and mental torture mounted upon her by the accused husband. This doubt stand on the way of convicting the accused upon presumption Under Section 113A for abetting suicide of his wife. The deceased had left the house a few days before her death. This is a mitigating circumstance to the presumption of guilt There must be reasonable proximity between the act of assault and the consequence. A person guilty Under Section 498(A), I.P.C. should not necessarily be guilty Under Section 306, I.P.C. Every case of assault and harassment will not lead to conviction Under Section 306, I.P.C. unless nexus is established. The presumption Under Section 113A, in my opinion, has been rebutted by the defence to that extent. The accused is, therefore, entitled to acquittal of the offence charged Under Section306, I.P.C. However, the conviction Under Section 498A warrants no interference since the evidence on record show that she was subjected to physical assault. 21. The accused-appellant is, therefore, acquitted of the charge Under Section 306, I.P.C. Conviction Under Section 498A is maintained. The accused is a retired Lecturer of Assam Engineering College and is above 60 years of age. Hence, the sentence awarded by the learned Sessions Judge is hereby modified and he is sentenced to imprisonment for a period of three months and to pay a fine of Rs. 1,000/-, in default further imprisonment for 15 days. The period spent by him in custody shall be set off from the sentence of imprisonment. The appellant shall surrender before the learned Sessions Judge to serve the remaining period of sentence, if any, and the learned Sessions Judge is to pass orders accordingly. 22. The appeal is partly allowed, as aforesaid.