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2011 DIGILAW 122 (GUJ)

Jagdish Haridas Kakkad v. State of Gujarat

2011-02-23

P.P.BHATT, RAVI R.TRIPATHI

body2011
JUDGMENT : P.P. Bhatt, J. Criminal Appeal No.1380 of 2008 is preferred by accused No.4 Jagdish under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for the sake of brevity) being aggrieved and dissatisfied by the judgment and order dated 27.2.2008 passed by learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Porbandar in Sessions Case No.13 of 2007 convicting him for having committed the offence punishable under Section 498-A and sentenced him to undergo 3 years rigorous imprisonment and to pay fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for further six months and also for convicting him for having committed the offence punishable under Section 306 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 25,000/-, in default, to undergo rigorous imprisonment for further period of one year. Learned Judge further directed to place Rs. 30,000/- in a fixed deposit out of the aforesaid total fine of Rs. 35,000/- in the name of minor Sanidhya Jagdishbhai Kakkad. Learned Judge was, however, pleased to acquit the appellant - accused No.4 for the offence punishable under Section 114 of IPC as well as Sections 3, 4 and 5 of the Dowry Prohibition Act. 1.1 Criminal Appeal No.1553 of 2008 is preferred by the State under Section 378(1)(3) of the Code being aggrieved and dissatisfied by the judgment and order dated 27.2.2008 passed by learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Porbandar in Sessions Case No.13 of 2007 acquitting the respondents accused Nos.1 to 3 and 5 to 7 of the offences with which they were charged. 1.2 Both these appeals are arising out of the judgment and order passed by learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Porbandar in Sessions Case No.13 of 2007 and, therefore, heard and decided together by this common judgment. 2. In brief, it is the case of the prosecution that accused Nos.1 to 3 are elder brothers-in-law of deceased Chandrika, accused No.4 Jagdish is the husband of the deceased, accused No.5 is the mother-in-law of deceased and accused Nos.6 and 7 are elder sisters-in-law of the deceased. 2. In brief, it is the case of the prosecution that accused Nos.1 to 3 are elder brothers-in-law of deceased Chandrika, accused No.4 Jagdish is the husband of the deceased, accused No.5 is the mother-in-law of deceased and accused Nos.6 and 7 are elder sisters-in-law of the deceased. It is alleged that as the financial condition of all these accused was not sound, deceased Chandrika was pressurized to bring money from her parental home and thereby the deceased was extended mental and physical harassment. As a result thereof, when the harassment became intolerable, she committed suicide by strangulating herself at the house of the accused situated at Gaekwadi on 10.3.2007 at 14.10 hours or before that. Accordingly, a complaint was lodged for the offence punishable under Sections 3, 4 and 5 of the Dowry Prohibition Act and Sections 306, 498-A and 114 of Indian Penal Code. 3. An investigation was carried out in the case and the accused were arrested. The Investigating Officer, having found sufficient material, filed a charge sheet for the offences punishable under Sections 306, 498-A and 114 of Indian Penal Code and Sections 3, 4 and 5 of the Dowry Prohibition Act in the court of Judicial Magistrate, First Class against all the accused. As the case was exclusively triable by the Sessions Court, learned Magistrate committed the case to the Sessions Court, Porbandar. 3.1 The learned Sessions Judge, Porbandar framed a charge against the accused at Exh.4. The charge was read over and explained to the accused. The accused denied all the charges and pleaded not guilty and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 3.2 To prove the guilt against the accused, prosecution examined several witnesses and has produced and relied upon several oral as well as documentary evidence which are as under. Oral Evidence 1. Dr. Hemantkumar Ramchandra Joshi - Exh.15 2. Piyushkumar Mohanlal Panchmatiya - complainant Exh.17. 3. Witness Shilpaben Piyushkumar Panchmatiya - Exh.20 4. Witness Bhartiben Vipulkumar Mashru - Exh.23 5. Witness Saiyed Kulsumbanu Mahammad Husain - Exh.27. 6. Witness Jaidevsinh Jayvangsinh Jadeja - Exh.29. Documentary Evidence 1. Postmortem report Exh.16 2. Original complaint Exh.18 3. Letter written after the engagement of the deceased Exh.21. 4. Inquest Panchnama Exh.26 5. Copy of diary of Kirti Mandir Police Station Exh.28. 6. Report regarding incident Exh.30. 7. Witness Saiyed Kulsumbanu Mahammad Husain - Exh.27. 6. Witness Jaidevsinh Jayvangsinh Jadeja - Exh.29. Documentary Evidence 1. Postmortem report Exh.16 2. Original complaint Exh.18 3. Letter written after the engagement of the deceased Exh.21. 4. Inquest Panchnama Exh.26 5. Copy of diary of Kirti Mandir Police Station Exh.28. 6. Report regarding incident Exh.30. 7. Yadi sent to the Executive Magistrate for making inquest Exh.31. 8. Dying form for drawing inquest panchnama. 9. Yadi sent to the Doctor of Bhavsinh Hospital Exh.33. 10. Recovery of ornaments found from the dead body Exh.34. 11. Panchnama of scene of offence Exh.35. 12. Report mentioning the details of the items recovered from the spot by the F.S.L. Officer Exh.36. 13. Report regarding arrest of the accused Exh.37. 14. Report regarding sending of vicera for analysis. Exh.38. 15. Receipt regarding receiving muddamal by FSL, forwarding letter and muddamal report Exhs.39 to 41. 16. Certificate of the Doctor of Jamnagar regarding treatment to the waist of the deceased Exh.42. 17. Report regarding scene of offence by the F.S.L.Mobile Exh.43. 18. Statement of accused Jagdish Exh.44. 3.3 On submission of closing purshis by the learned APP, learned Sessions Judge, Porbandar recorded further statement of the accused under Section 313 of the Code in which he has denied all the charges. Thereafter, on affording an opportunity of hearing to the learned advocates appearing for the respective parties, learned Sessions Judge delivered the impugned judgment convicting and sentencing the appellant as stated above in the earlier part of this judgment giving rise to the present appeal. 4. Heard learned Senior Counsel Mr. N.D.Nanavati with learned advocate Mr. N.D.Buch for the appellant and Mr. K.P. Raval, learned APP for the respondent State. 5. Learned Senior Counsel has referred to and relied upon the grounds mentioned in the appeal memo and vehemently submitted that the judgment and order passed by learned Additional Sessions Judge is illegal, improper, unjust, unreasonable, void and against the facts and circumstances of the case and also in utter disregard of the evidence on record. 5.1 Learned Senior Advocate for the appellant has made the following submissions. 5.2 That the incidents narrated and discussed in the judgment and the story made out in the complaint are not probable. That there is no immediate cause which can establish the alleged offence against the present appellant - accused No.4. That the marriage span is of more than 7 years. 5.2 That the incidents narrated and discussed in the judgment and the story made out in the complaint are not probable. That there is no immediate cause which can establish the alleged offence against the present appellant - accused No.4. That the marriage span is of more than 7 years. That oral evidence of Shilpaben wife of complainant - Piyushbhai Panchmatiya at Exh.20 indicates that the deceased was possessing very sensitive nature and because of the same, she might have taken such a step and committed suicide, but there is no immediate cause established by the prosecution. 5.3 That the finding of fact and appreciation of evidence by the learned Judge are bad in law which deserve to be reversed especially in the facts and circumstances of the present case. 5.4 That the learned Judge has committed grave error by holding that the allegations against the appellant herein qua the offence under Sections 498-A and 306 of IPC have been made out by the prosecution. It is submitted that while holding so, the learned Judge has completely ignored the material contradictions and omissions with regard to the material aspects of the case amongst oral as well as documentary evidence on record. 5.5 That the learned Judge has completely failed to appreciate the evidence on record while holding that the allegation of torture, harassment and cruelty with regard to the demand for money is proved. 5.6 That it is one of the allegations against the appellant that the appellant had misrepresented that the appellant was the owner of the property at Madhavpur and also that the family of the appellant was financially sound. In his submission, this contention is not proved beyond all reasonable doubt. 5.7 That it has been also stated by P.W.2 Piyushkumar at Exh.17 in paragraphs 26 and 27 that there was no document to show that any power of attorney was executed. The said witness has also shown his inability to produce any document to show that any such Power of Attorney was executed. 5.8 That on the aspect that the appellant was found in a compromising position with the female servant of the house within a month of his marriage, P.W.2 Piyushkumar Mohanlal Exh.17 is completely silent. It is submitted that neither FIR in question nor the deposition of P.W.2 Piyushkumar Exh.17 makes any reference about the same in this regard. 5.8 That on the aspect that the appellant was found in a compromising position with the female servant of the house within a month of his marriage, P.W.2 Piyushkumar Mohanlal Exh.17 is completely silent. It is submitted that neither FIR in question nor the deposition of P.W.2 Piyushkumar Exh.17 makes any reference about the same in this regard. It is submitted that it is only the depositions of P.W.3 Shilpaben Piyushkumar Exh.20 and P.W.4 Bharatiben Vipulkumar Exh.23 that make the aforesaid allegation. It is, however, submitted that on that aspect, there is no convincing evidence and, therefore, it cannot be said that the cruelty or harassment was meted out to the deceased by the appellant herein. 5.9 That mainly there are three incidents highlighted in the prosecution evidence making allegations to show mental and physical harassment caused by the accused and his family members. Firstly, that after one month of their marriage, the accused husband was found in a compromising situation with the maid servant in their bed room by the deceased; secondly, that about 8 months prior to the date of the incident, deceased was thrown down from the bed and thirdly that about 2 to 3 months back from the date of the incident, the elder brother of the appellant herein had borrowed Rs. 15,000/- from the younger brother of the complainant and when the brother of the complainant asked the brother of the accused to return the said amount, a quarrel took place and she was pressurized to forget about the money thereby causing mental agony to her and she was subjected to cruelty. It is submitted that there is no cogent and convincing evidence in this regard which would indicate that the magnitude of the alleged incident was so grave as would drive the deceased to commit suicide. It is further submitted that it has been laid down in a catena of decisions of this Court as well as of the Hon'ble Supreme Court that for the purpose of proving the case under Sections 498-A and 306 of IPC, the prosecution has to establish the proximity of the incident of harassment and cruelty. It is submitted that from the bare reading of the FIR coupled with the evidence on record, it is clear that the aspect of immediate proximity is not present. It is submitted that from the bare reading of the FIR coupled with the evidence on record, it is clear that the aspect of immediate proximity is not present. 5.10 That one of the most essential elements of the offence under Section 498-A of IPC is that the harassment or cruelty should be such which would drive the lady to commit suicide. It is further submitted that from the aforesaid, it is clear that the prosecution has miserably failed to prove offence under Section 498-A of IPC. It is further submitted that there has been no independent witness to prove that the deceased was subjected to cruelty or harassment. It is submitted that even from the evidence of the material prosecution witnesses Nos.2,3 and 4, there is nothing which would lead to draw an inference that any cruelty or harassment was meted out to the deceased. 5.11 That so far as ingredients of Section 306 of IPC are concerned, the prosecution has not made out any case or brought on record any reliable piece of evidence which can establish ingredients of Section 306 of IPC and, therefore, the conviction under Section 306 of IPC is not sustainable. 5.12 Learned Senior Counsel for the appellant - accused No.4 has referred to and relied upon the judgments in support of his arguments in the case of Gangula Mohan Reddy v. State of Andhra Pradesh, reported in (2010) 1 SCC 750 , in the case of Ramesh Kumar v. State of Chhattisgarh, reported in (2001) 9 SCC 618 and in the case of Devender Singh v. State of Haryana, reported in (2009) 16 SCC 396 . 6. As against that, so far as Criminal Appeal No.1380 of 2008 is concerned, learned APP Mr. K.P.Raval has tried to justify the findings given by learned Additional Sessions Judge while convicting the appellant - accused No.4 under Section 498-A as well as Section 306 of IPC. Learned APP has also pointed out from the oral evidence on record and tried to show that mental as well as physical harassment and torture were caused to the deceased. Learned APP also pointed out certain incidents from the oral evidence available on record. 6.1 So far as Criminal Appeal No.1380 of 2008 is concerned, learned APP has strenuously submitted that order of acquittal passed by learned Judge is contrary to law and evidence on record of the case. Learned APP also pointed out certain incidents from the oral evidence available on record. 6.1 So far as Criminal Appeal No.1380 of 2008 is concerned, learned APP has strenuously submitted that order of acquittal passed by learned Judge is contrary to law and evidence on record of the case. 6.2 Learned APP has made the following submissions.: 6.3 That learned Judge has erred in holding that the prosecution has failed to establish its case beyond reasonable doubt. Learned APP further submitted that learned Judge has erred in evaluating the evidence on record of the case and without appreciating the evidence in the true perspective has acquitted the respondents-accused. 6.4 That PW No.2-Piyushkumar Mohanlal Panchmatia-complainant-brother of the deceased, who has been examined at Exh.17, PW No.3-Shilpaben Piyushbhai, wife of complainant who has been examined at Exh.20 and PW No.4-Bhartiben Vipulbhai Mashru, sister of deceased, who has been examined at Exh.23 have clearly stated in their testimonies that respondents-accused gave physical and mental torture to bring money from her parental home. Nothing adverse could be elicited from the deposition of these witnesses which would render the prosecution case doubtful. However, learned Judge did not consider the say of this witness and has acquitted the rest of the respondents-accused who were together with accused No.4 and compelled the deceased to commit suicide. 6.5 That PW No.6-Jaydevsinh Jayvantsinh Jadeja, P.S.I., has been examined at Exh.29 who has conducted the investigation of the offence in question. He has drawn the Panchnama in the presence of the Panch witnesses, statements of the witnesses were recorded, body of the deceased was sent for post-mortem and opinion of the F.S.L. was sought for and after having found sufficient evidence to link the respondents accused with the crime, he filed the charge-sheet before the competent court. He submitted that the evidence of this witness has not been considered in its true perspective. 6.6 That learned Judge has wrongly discarded the evidence of the complainant on the ground that his deposition is not in conformity with the complaint; that during the cross-examination some discrepancies between the evidence recorded before the Court and the complaint were noticed. 6.7 That the circumstances created by the accused persons which led the deceased to commit suicide are not taken into consideration by the learned Judge. 6.7 That the circumstances created by the accused persons which led the deceased to commit suicide are not taken into consideration by the learned Judge. 6.8 That the complainant and other witnesses supported the case of prosecution and they have stated that harassment was meted out to the deceased at the behest of the respondents-accused. Learned Judge has not appreciated this important aspect of the evidence in its real spirit and has acquitted the accused persons. Therefore, the impugned judgment and order passed by the learned Judge is illegal, invalid and improper and the same deserves to be quashed and set aside. 6.9 That the Doctor has clearly stated that the death of the deceased has occurred due to strangulation. However, the said fact has not been taken into consideration to connect the accused with crime. Learned APP submitted that order of acquittal is passed without there being any cogent and substantial reason. 6.10 That learned Judge ought to have considered the aspect of harassment. Because whenever the deceased used to come back to her brother's house, she used to make complaints about the harassment which indicates that harassment was being meted out to her at the hands of the accused and therefore it can be used as corroborative piece of evidence. However, learned Judge did not consider this aspect and has held that such type of evidence cannot be used as vital piece of evidence to link the accused with the crime. 6.11 That learned Judge committed a grave error in not believing the prosecution story when the same was proved beyond reasonable doubt by leading cogent, reliable and impeachable evidence. 6.12 That learned Judge ought to have used the same set of evidence which was taken into consideration so far as accused No.4 is concerned. Because when it was proved that to some extent accused No.4 was responsible for suicide committed by the deceased, then the other accused who were together with him are also responsible. It is submitted that all prosecution witnesses have categorically stated about the harassment given by the accused persons to the deceased and demand of money made by the accused. However, the learned Judge did not consider the said aspect of the matter and has erroneously come to the conclusion to acquit the respondents-accused. It is submitted that all prosecution witnesses have categorically stated about the harassment given by the accused persons to the deceased and demand of money made by the accused. However, the learned Judge did not consider the said aspect of the matter and has erroneously come to the conclusion to acquit the respondents-accused. Lastly, he submitted that the impugned judgment and order passed by the learned Judge is against the evidence on record of the case and hence it is illegal, invalid and improper and therefore, the same deserves to be quashed and set aside by this Court. 7. Now the aforesaid rival submissions are required to be considered while analyzing the judgment and order passed by learned Additional Sessions Judge. Considering the aforesaid rival submissions and on perusal of the oral as well as documentary evidence on record and while analyzing the observations/findings given by learned Additional Sessions Judge in his judgment and order in the context with the evidence on record, it appears that so far as finding given by learned Additional Sessions Judge with regard to the offence punishable under Section 498-A of IPC is concerned, the same is based on oral as well as documentary evidence available on record which is discussed at length by learned Additional Sessions Judge in his judgment. 8. In the instant case, from the facts which have come on the record of the case, no immediate cause could be shown by the prosecution. Mainly, three incidents are highlighted in the entire oral evidence led by the prosecution viz., (i) on 20.11.1999 the marriage was solemnized between deceased Chandrikaben and accused No.4 Jadgishbhai and after one month of marriage, the husband was found with the maid servant in a compromising position and was having affair with maid servant, (ii) before seven to eight months of the incident, the deceased was pulled down along with mattress from the bed; and (iii) four months prior to the incident, Shri Hitesh Haridas Kakkad - elder brother of husband of the deceased had borrowed an amount of Rs. 15,000/- from the brother of the deceased, with an understanding that the amount will be repaid after some time. On expiry of few months, brother of the deceased inquired as to when that amount is going to be returned. On that night, all the accused quarrelled with the deceased and caused her mental torture. 15,000/- from the brother of the deceased, with an understanding that the amount will be repaid after some time. On expiry of few months, brother of the deceased inquired as to when that amount is going to be returned. On that night, all the accused quarrelled with the deceased and caused her mental torture. Besides, she was told to convey her brother that he should not ask for this money. This incident is projected as an incident by which great mental harassment was caused to the deceased. 9. These are the incidents narrated by the prosecution, but the time span between these incidents is suggestive of the fact that there was no immediate cause for committing suicide. Besides, the prosecution story does not inspire any confidence. Further, it is on record that prior to the marriage of deceased Chandrikaben, an impression was given to the family members of Chandrikaben that the financial condition of Jagdishbhai accused No.4 and his family was sound, but later on, the deceased and her family members came to know that their financial condition is not sound. Thereafter, they started harassing deceased Chandrikaben so as to procure financial aid from her parental home. There is also a mention about one power of attorney given by the family members of the accused husband in favour of the brother of the deceased in respect of properties situated at Madhavpur. The depositions of PW 2 complainant, PW 3 - Shilpaben wife of the complainant and PW 4 Bhartiben - sister of the complainant do not inspire any confidence about it as they did not produce copy of any such power of attorney. In fact, PW 3 and 4 have specifically stated that they have not seen the power of attorney. More over, they were not in a position to give details of the power of attorney including that of which right is given by way of such power of attorney and so far oral evidence given by PW 3 and 4 is concerned, the same appears to be hearsay evidence and that is without any basis. 10. At this stage, it would be fruitful to reproduce Section 498-A of IPC which reads as under. "Section 498-A. Husband or relative of husband of a woman subjecting her to cruelty. 10. At this stage, it would be fruitful to reproduce Section 498-A of IPC which reads as under. "Section 498-A. 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 purposes 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.)" 10.1 It is also pertinent to note here that a life for woman in the family of a husband is sometimes so miserable that it becomes intolerable and that drives a woman to commit suicide. In such cases Section 498-A of IPC comes into play. In our opinion, learned Additional Sessions Judge has not committed any error while coming to the conclusion that the case is made out only against the appellant - accused No.4 with regard to Section 498-A of IPC and, therefore, in our opinion, the same is not required to be interfered. 10.2 So far as the conviction for the offence punishable under Section 306 of IPC is concerned, the same is required to be considered in the context of the evidence on record. The submission made by learned Senior Counsel appears to be convincing inasmuch as, 'no proximate cause is shown by the prosecution'. To that extent, this Court is of the opinion that learned Additional Sessions Judge failed to appreciate the evidence on record in its true perspective. 11. More over, it is also required to be noted that the complainant was Additional Public Prosecutor in the District Court, Jamnagar and on receiving the news while going to Porbandar, on the way he called upon some Police Officers at Porbandar and informed them about the incident. 11. More over, it is also required to be noted that the complainant was Additional Public Prosecutor in the District Court, Jamnagar and on receiving the news while going to Porbandar, on the way he called upon some Police Officers at Porbandar and informed them about the incident. On perusal of the complaint on one hand and the oral evidence given by various witnesses on the other, it is clear that a systematic story is developed by the complainant who was possessing legal background. Therefore, there is reason to believe that he drafted the complaint in such a manner that all the family members can be implicated in the crime. 11.1 It is on record from the complaint as well as oral evidence of the complainant - Piyushkumar Mohanlal - brother of the deceased, an APP in Sessions Court, Jamnagar that the span of marriage between the deceased Chandrika and accused No.4 is of more than 7 years. 12. Oral evidence of PW 2 complainant Piyushkumar Mohanlal - brother of the deceased and APP in Sessions Court, Jamnagar is at Exh.17. The oral evidence given by PW 3 Shilpaben - wife of Piyushbhai at Exh.20 is also discussed in paragraph 13 of the judgment wherein she has admitted in her cross examination that deceased Chandrikaben was of sensitive nature. More over, father-in-law Haribhai, sister-in-law Minaben and brother-in-law were keeping good relation with her. She has also stated in her cross examination that the accused persons are having three storeyed building/house. This is suggestive of the financial condition of the accused persons. PW 4 Bhartiben - sister of the deceased has also reiterated the incidents at Exh.23 which includes the incident of three months before. There being no immediate cause, ingredients of Section 306 of IPC do not get satisfied. 13. In order to attract Section 306 of IPC, the ingredients of abetment, nexus between willful conduct on the part of the accused and consequential death must be established. Solitary incident of coercion cannot be held, 'sufficient' to constitute abetment. At this stage, it will be appropriate to reproduce Section 306 of IPC for ready perusal which reads as under. "306. Abetment of suicide. Solitary incident of coercion cannot be held, 'sufficient' to constitute abetment. At this stage, it will be appropriate to reproduce Section 306 of IPC for ready perusal which reads as under. "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." 13.1 It is also pertinent to note that the aforesaid provisions of Section 306 of IPC are required to be considered in light of the definition of "abetment" contained in Section 107 of IPC which reads as under. "Section 107 : 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." Explanation 1 - which has been inserted along with Section 107 reads as under. "Explanation 2.- Whoever, either prior to or at the time of the commission of an 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." 14. Similarly, the provision of Section 113-A of the Evidence Act is equally important to be considered in the present case which reads as under. Similarly, the provision of Section 113-A of the Evidence Act is equally important to be considered in the present case which reads as under. "113-A. 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." 14.1 Section 113-A provides that there should be, 'suicide within a period of seven years from the date of marriage' and that 'her husband or such relatives 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'. In the instant case, the marriage was solemnized between the deceased Chandrikaben and accused No.4 appellant herein on 28.11.1999 and unfortunate incident of suicide occurred on 10.3.2007. Therefore, the marriage span between the deceased and accused No.4 was of more than seven years. Therefore, presumption under Section 113-A of the Evidence Act does not arise in the instant case. 15. Learned Senior Counsel has referred to and relied upon a judgment in the case of Devender Singh (supra). Para 6 thereof reads as under. "Having considered the judgment of the High Court, we are of the opinion that the approach of the High Court is not correct. As the purported demand made by the husband had no direct nexus or immediate cause for commission of suicide by his wife, the same would not amount to abetment of commission of such suicide. The very fact that the High Court has proceeded on the basis that the demand made by the husband did not amount to dowry, in our opinion, negates the prosecution case. It should not have jumped to the conclusion that the same must have caused embarrassment to the deceased which led to her commission of suicide. The observations were in the realm of conjectures and surmises. It should not have jumped to the conclusion that the same must have caused embarrassment to the deceased which led to her commission of suicide. The observations were in the realm of conjectures and surmises. In a criminal case, no conviction can be based on conjectures and surmises." 15.1 Learned Senior Counsel also referred to and relied upon the judgment in the case of Gangula Mohan Reddy (supra). Paragraphs 6, 7, 10, 12 and 17 thereof read as under. "6. The learned counsel for the appellant submitted that the conviction of the appellant is totally unsustainable because no ingredients of offence under Section 306 of the Code can be made out in the facts and circumstances of this case. It would be profitable to set out Section 306 of the Code : "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." 7. The word "suicide" in itself is nowhere defined in the Penal Code, however its meaning and import is well known and requires no explanation. "Sui" means "self" and "cide" means "killing", thus implying an act of self-killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. 10. "Abetment" has been defined under Section 107 of the Code. We deem it appropriate to reproduce Section 107, which reads 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." Explanation 2 which has been inserted along with Section 107 reads as under. "Explanation 2.- Whoever, either prior to or at the time of the commission of an 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." 12. "Explanation 2.- Whoever, either prior to or at the time of the commission of an 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." 12. The learned counsel also placed reliance on another judgment of this Court in Ramesh Kumar v. State of Chhattisgarh. A three - Judge Bench of this Court had an occasion to deal with a case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. The Court in para 20 has examined different shades of the meaning of "instigation". Para 20 reads as under : (SCC p.629) "20. 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. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation." 17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide." 16. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide." 16. Having regard to the aforesaid facts and circumstances of the case and in light of the principles enumerated in the aforesaid judgment, we are of the opinion that so far as ingredients of Section 498-A of IPC are concerned, learned Additional Sessions Judge has not committed any error in reaching to the conclusion that the same are satisfied in the instant case. The said finding given by learned Additional Sessions Judge based on the evidence on record is not required to be interfered. 16.1 Having perused the judgment and order impugned in these appeals, it is seen that learned Judge has rightly evaluated and appreciated the oral evidence given by PW 1 - Dr.Hemantkumar Ramchandra Joshi Exh.15 who has performed postmortem of the deceased, PW 2 complainant - Piyushkumar Mohanlal Panchmatiya - Exh.17, PW 3 - Shilpaben Piyushkumar Panchmatiya - wife of the complainant - Exh.20, PW 4 Bhartiben Vipulkumar Mashru - sister of the complainant - Exh.23 for awarding the sentence for the offence punishable under Section 498-A of IPC. Dr.Joshi has given a clear opinion in his report that deceased Chandrikaben has committed suicide by strangulating herself. The death of deceased Chandrikaben is not natural death, but the deceased has committed suicide by strangulating herself and this act of suicide was committed at the residence of the accused. This fact is proved beyond reasonable doubt as discussed in the finding given by learned Additional Sessions Judge. Learned Judge has further observed in the judgment while analyzing the evidence given by Piyushkumar, Shilpaben and Bhartiben and has come to the conclusion that deceased Chandrikaben has committed suicide on account of mental and physical harassment caused by her husband accused No.4 - Jagdishbhai. Learned Judge has, therefore, rightly appreciated the evidence on record by coming to the conclusion that ingredients of Section 498-A of IPC are satisfied qua accused No.4 - appellant herein. 17. So far as the ingredients of Section 306 of IPC are concerned, as discussed hereinabove, there is no sufficient material or evidence on record to connect the accused with the said offence. 17. So far as the ingredients of Section 306 of IPC are concerned, as discussed hereinabove, there is no sufficient material or evidence on record to connect the accused with the said offence. However, learned Additional Sessions Judge has committed an error in reaching the conclusion that on the basis of the material available on record, ingredients of Section 306 of IPC are satisfied for convicting the accused No.4 for the said offence. The basic difference that lies between two sections is that of "intention". Under Section 498-A of IPC cruelty committed by the husband or any of his relatives drives a woman to commit suicide while under Section 306 IPC suicide is abetted and intended as has been held by the Honourable the Apex Court in the case of Sushil Kumar Sharma v. Union of India and others, reported in AIR 2005 SC 3100 . More over, in light of the principles enumerated in the judgments referred to hereinabove which are applicable to the facts of the present case, the conviction for the offence punishable under Section 306 of IPC is required to be quashed and set aside. 18. So far as Criminal Appeal No.1553 of 2008 filed by the State is concerned, in light of the aforesaid facts and circumstances discussed while deciding Criminal Appeal No.1380 of 2008, in our opinion, no separate discussion is required to be done in the instant case because oral as well as documentary evidence and finding of learned Additional Sessions Judge are discussed at length and, therefore, there is no necessity to repeat the same. Learned Additional Sessions Judge has rightly appreciated material on record and acquitted other accused persons. Learned Additional Sessions Judge has not committed any error in evaluating evidence on record while acquitting the other accused. 18.1 Having perused the judgment and order impugned in these appeals, it is seen that learned Judge has rightly appreciated the evidence available on record while coming to the conclusion that there is no concrete evidence brought on record by the prosecution or the prosecution has failed to prove beyond any reasonable doubt that except accused No.4 Jagdishbhai - husband of the deceased, no other accused are found guilty of the offence punishable under Sections 498-A read with Sections 114 and 306 of IPC. 19. 19. Learned Judge has rightly observed that there is no specific incident narrated by the prosecution witnesses about mental and physical harassment caused to the deceased by the other accused persons. The prosecution witnesses have also not stated about the nature of such harassment by the other accused persons. The prosecution witnesses have also not stated specifically about the demand of dowry by the other accused persons. The allegations are not proved qua other accused persons. The appeal preferred by the State, therefore, deserves to be dismissed. 20. In view of the above, in both the appeals, the following final order is passed. Criminal Appeal No.1380 of 2008 : The appeal is partly allowed. The conviction of accused No.4 - appellant Jagdish Haridas Kakkad under Section 498-A of Indian Penal Code is confirmed and the sentence is maintained and to that extent, the appeal is dismissed. The conviction and sentence imposed upon the appellant - original accused no.4 by learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Porbandar in Sessions Case No.13 of 2007 for the offence punishable under Section 306 of IPC is quashed and set aside and to that extent the appeal is allowed. The appellant - accused No.4 is acquitted from the charge under Section 306 of IPC. It is, therefore, directed that accused No.4 - appellant Jagdish Haridas Kakkad be set at liberty forthwith if he is not required to be detained in jail for any other offence. Rest of the judgment and order is not altered. Direct service is permitted. Criminal Appeal No. 1553 of 2008 The appeal is dismissed. Order accordingly.