JUDGMENT B.D. Agarwal, J. 1. The Appellant herein, has been convicted under Section 304B of the Indian Penal Code and he has been sentenced to undergo RI for 7 (seven) years and also to pay fine of Rs. 1,000/- with default sentence of 3 (three) months RI vide impugned judgment and order dated 24.8.2007 passed by the learned Additional Sessions Judge No. 4 (FTC) Kamrup, Guwahati in Sessions Case 317 (K) of 2006. However, the learned Sessions Judge has acquitted father and mother-in-law of the deceased due to insufficiency of evidence of abetment or instigation for demand of dowry or regarding cruelty or harassment to the deceased. Being aggrieved with the conviction and sentence the husband has preferred this appeal. 2. I have heard Shri K. Agarwal learned Counsel for the accused Appellant. Also heard Shri B.S. Sinha, learned Additional Public Prosecutor for the State of Assam. Also perused the impugned judgment and the evidence proffered by the prosecution and the record. 3. The gist of the prosecution case is that the deceased had married the Appellant about 6 (six) years prior to her unnatural death. The deceased went missing in between the night of 2nd and 3rd July, 2006. Her dead body was found floating in a nearby pond in the early morning of 14th July. On the same day the father-in-law of the deceased informed about the missing of the deceased Makani Das to her elder brother (PW 1). Simultaneously, Police was also informed about the missing of Makani and noticing her dead body in pond. This oral information was reduced into writing vide GDE No. dated 4.7.2006 (Ext. 8) at Hajo Police Station. When the preliminary investigation was on PW 1 also lodged a normal written FIR alleging that his sister met with an unnatural death due to physical and mental torture for nonfulfillment of demand of dowry. This FIR was registered as Hajo PS Case No. 27 of 2000 under Section 304B/34 of the Indian Penal Code (Briefly 'IPC hereinafter). After investigation charge-sheet was submitted on 27.9.2006. 4. In order to establish the offence of dowry death the prosecution examined altogether 10 (ten) witnesses. This FIR was registered as Hajo PS Case No. 27 of 2000 under Section 304B/34 of the Indian Penal Code (Briefly 'IPC hereinafter). After investigation charge-sheet was submitted on 27.9.2006. 4. In order to establish the offence of dowry death the prosecution examined altogether 10 (ten) witnesses. PW's 1, 2 and 4 are related to the deceased; PWs 3, 6 and 7 are independent witnesses; PW 5 is the autopsy doctor, PW 8 is the Judicial Magistrate who had recorded 164 statement of PW 6, PW 9 is the Circle Officer being a witness to the inquest upon the dead body and PW 10 is the Investigating Officer. 5. The defence case of total denial and no evidence in defence was also tendered. Having found sufficient evidence of inflicting mental torture for demand of dowry by the husband he has been convicted accordingly. 6. Shri Agarwal, learned Counsel for the Appellant submitted that in order to convict a person under Section 304B the prosecution is duly bound to prove that the demand of dowry was proximate to the incident and it was the immediate cause for committing suicide. In support of this submission the learned Counsel has referred to the decisions of the Hon'ble Supreme Court rendered in the case of Akula Ravinder and Ors. v. State of Andhra Pradesh reported in 1991 Supp (2) SCC 99, Hira Lal and Ors. v. State reported in (2003) 8 SCC 80 ; Harjit Singh v. State of Punjab reported in (2006) 1 SCC 463 , Tarsem Singh v. State of Punjab reported in 2008 (16) SCALE 168, Prem Kan-war v. State of Rajasthan reported in 2009 Cri.L.J. 1123. The learned Counsel further submitted that since prosecution evidence are not strong enough to take a view that the deceased was subject to cruelty for non-fulfillment of demand of dowry the Appellant also cannot be convicted under Section 498A in lieu of dowry death offence. The learned Counsel for the Appellant also submitted that the evidences are lacking to hold that the Appellant had abated the offence of suicide. The learned Counsel for the Appellant also submitted that the evidences are lacking to hold that the Appellant had abated the offence of suicide. The learned Counsel' submitted that to convert the offence from Section 304B to Section 306, IPC with the aid of Sections 215 and 222 of the Code of Criminal Procedure also the prosecution has to establish that the deceased had committed suicide either due to instigation or due to certain acts or omissions of the accused. 7. It is the settled position of law that when examining an offence of dowry death the Court has to keep in mind the provisions of presumptions laid down under Sections 113-A and 113-B of the Evidence Act. Section 113-A empowers the Court to draw an adverse presumption against the accused for abetment of suicide if the suicide by a woman is committed within 7 years of marriage and that her husband or relatives subjected her to cruelty. Section 113-B of the Evidence Act prescribes that if a woman is subjected to cruelty or harassment for demand of dowry soon before her death the Court may presume that the accused has committed the offence of dowry death. 8. In the case before me no doubt PWs 1, 2, 3 and 4 have spoken about dowry related harassment to the deceased. However, these witnesses have not given any specific evidence that the demand of dowry was continuous and persistent and that such demand was made soon before the informant's sister committed suicide. In the authorities cited on behalf of the Appellant I find that the Apex Court has consistently held that it is not enough to hold a person guilty under Section 304B, IPC if the demand of dowry was made at certain point of time, which cannot be linked with death with all certainty. In other words, it is sine qua non to establish that such demand was made, remained unfulfilled and then the deceased was subjected to cruelty "soon before her death". Unfortunately, there is no such cogent evidence. Hence, the conviction of the Appellant under Section 304B, IPC cannot be sustained 9. In other words, it is sine qua non to establish that such demand was made, remained unfulfilled and then the deceased was subjected to cruelty "soon before her death". Unfortunately, there is no such cogent evidence. Hence, the conviction of the Appellant under Section 304B, IPC cannot be sustained 9. In the case of Prem Kumar (supra), the Hon'ble Supreme Court has held that in order to attract Section 304B of the following ingredients have to be established: (i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. (ii) Such death must have occurred within 7 years of the marriage. (iii) Soon before her death, the woman must have been subject to cruelty or harassment by her husband or any relative of her husband; and (iv) Such cruelty or harassment must be in connection with the demand of dowry. 10. In the aforesaid case, their Lordships have further held that to ascertain whether it is a case of a dowry death or an offence which may attract Section 498A, IPC it is also necessary to conjointly read the definition of "dowry" given under Section 2 of the Dowry Prohibition Act, 1961. As per this definition the demand for any property or valuable security must be at or before or any time after the marriage. In other words, any such demand must be in connection with the marriage and if there is any break in such demand, the offence would be out of purview of Section 304B, IPC. In the case at hand there is no evidence of sustained demand of dowry and more particularly soon before the unnatural death of informant's sister. Hence, conviction of the Appellant under Section 304B, IPC is unsustainable. 11. Section 498A, IPC relates to cruelty and harassment upon a married woman by her husband or relative of her husband. To ascertain whether the Appellant can still be convicted under 498 A in lieu of Section 304B it is necessary to look at the penal law, which runs as below: 498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purpose of this Section 'cruelty' means (a) any willful conduct which is of such a nature as 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. 12. A bare reading of Section 498A, IPC shows that the offence embraces within its fold any cruelty which may drive the woman to commit suicide or inflict injury which may endanger her life. Explanation (a) Explanation (b) relates to harassment of the woman for non-fulfillment of demand of dowry. 13. Since, the victim has committed suicide within 7 (seven) years of marriage it would be appropriate to appreciate the evidence simultaneously to ascertain whether the Appellant has committed offence punishable under Section 498A or Section 306, IPC and/or both the offences. 14. Section 306, IPC has not defined abetment of suicide. Hence, recourse has to be taken to Section 107 of the IPC for this purpose, which defines abetment. The abetment of suicide and the definition of abetment as per Sections 306 and 107 are quoted below for ready reference: 306. Abetment of suicide.-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. 107. Abetment of suicide.-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. 107. Abetment of a thing.-A person abets the doing of a thing, who- Firstly-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 wilful misrepresentation, or by wilful 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 commission of any act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. 15. Since the suicide was committed within a period of 6 years of marriage, there is also scope of drawing adverse presumption against the accused. Hence, it is also necessary to look at the provisions of Section 113-A of the Evidence Act, 1872. Section 113-A of the Evidence Act is reproduced below: Presumption as to 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. Explanation.-For the purposes of this Section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860). (Emphasis mine) 16. Explanation.-For the purposes of this Section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860). (Emphasis mine) 16. In the case of Mahendra Singh v. State of Madhya Pradesh reported in AIR 1995 (SCW) 4570 , the Hon'ble Supreme Court has held that before convicting a person under Section 306, IPC, the prosecution has to prove the ingredients of abetment as described under Section 107 of the IPC. 17. In the case of Randhir Singh v. State of Punjab reported in (2004) 13 SCC 129 , which directly stemmedout of an offence covered by Section 306, IPC, after adverting to various provisions of law their Lordships have observed that the Courts should be on guard and careful to analyze the requirements of law in following words in Paragraphs 12 and 13 of the aforesaid case: 12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In case of conspiracy also it would involve that mental process of entering into conspiracy for doing of that thing. 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. 13. In State of W.B. v. Orilal Jaiswal this Court has observed 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 of a finding that the accused charged of abetting the offence of suicide should be found guilty. 18. Upon scanning the record what I find that evidence suggests commission of both the offences. 18. Upon scanning the record what I find that evidence suggests commission of both the offences. Apart from the testimony of PWs 1, 2, 3 and 4 that the deceased was subjected to cruelty for nonfulfillment of demand of dowry I find that PW 2, who used to reside separately from the family of the deceased has deposed that Makani used to come crying occasionally to her father's house and on being enquired she told the witness that she was suffering from mental stress due to inhuman torture inflicted upon her by her husband. In fact, while giving statement under Section 313, Code of Criminal Procedure the father of the Appellant has also admitted the fact that Makani had frequently visited her parents' house leaving her children in their house. These statements clearly indicate about constant mental torture upon the deceased. 19. The above apart, according to the autopsy Doctor (PW 5) the suicide of the woman must have taken place between 36 to 48 hours from the time of conducting autopsy. From the post mortem report it is gathered that the autopsy was conducted at about 3.40 p.m. on 4.7.2006 and as such, the suicide must have been committed in the early morning of 3rd July. However, the fact of missing of the woman was not disclosed to the guardian of the victim nor to the Police Station till 4th July. This fact also indicates that the deceased must have been subjected to mental torture soon before committing suicide by her and the husband and in-laws tried to hush-up the matter; which they could not do so due to commission of suicide by the victim and followed by recovery of her dead body. Be that as I may, there is no iota of evidence to suggest that the victim was a hypersensitive woman and prone to attempt to commit suicide on petty matters and day-to-day difference between husband and wife. Hence, I hold that the deceased had committed suicide due to persistent mental torture by her husband. Consequently, I hold that the Appellant is liable to be convicted both under Sections 306 and 498A of the IPC. The authorities of the Hon'ble Supreme Court with regard conviction under Section 306, IPC cited on behalf of the Appellant are distinguishable on facts. 20. In the result, the appeal stands dismissed. Consequently, I hold that the Appellant is liable to be convicted both under Sections 306 and 498A of the IPC. The authorities of the Hon'ble Supreme Court with regard conviction under Section 306, IPC cited on behalf of the Appellant are distinguishable on facts. 20. In the result, the appeal stands dismissed. However, the conviction of the Appellant is modified/altered from that of Section 304B to that under Sections 306 and 498A, IPC. Considering the facts and circumstances of the case that substantive sentence of 3 years with fine of Rs. 1,000/- would meet the ends of justice. Accordingly, the Appellant stands convicted under Sections 306 and198-A, IPC and he is sentenced to undergo RI for 3 (three) years and also to pay fine of Rs. 1,000/- (one thousand only) as cumulative and concurrent sentence on both the counts. In default of payment of fine, the Appellant shall undergo further RI for three months. 21. Return the LCR Records with the copy of this judgment. The learned Additional Sessions Judge is directed to issue modified custody warrant. Appeal dismissed