Judgment Chandra Bhushan Bajpai, J. 1. This appeal is directed against the judgment dated 29-11-1999 passed by Additional Sessions Judge, Mungeli, District Bilaspur in Sessions Trial No. 260/98. By the impugned judgment, the appellant has been convicted and sentenced in the following manner. Conviction Sentence Under Section 306 of the Indian Penal Code To undergo RI for 3 years and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo RI for two months. 2. Conviction is impugned on the ground that without there being an iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned, thereby committed illegality. 3. As per the case of prosecution, on 7-5-1998, at about 9.30 a.m., Siddhram Sahu from village Nirjam, Police Station Mungeli reached to Police Station and gave information that his aunt, (appellant) and brother Awadhram informed him that Narbadiya Bai committed suicide by setting herself ablaze in a room which was used by deceased Narbadiya Bai and her husband Awadhram. He along with other villagers visited the place of incident and found Narbadiya Bai dead in a burnt condition. A container of kerosene oil was placed nearby. Police officials of Mungeli recorded merg vide Ex. P/3 and rushed to the place of incident. Investigating Officer seized match stick, half filled container of kerosene oil, one small bottle, burnt piece of sari, match box and one wooden roller vide Ex. P/4. Investigating Officer prepared spot map vide Ex. P/5. After giving notice to the witnesses vide Ex. P/1, inquest over the dead body was prepared by the investigating officer vide Ex. P/2. Dead body of the deceased was sent for autopsy to medical officer Mungeli vide Ex. P/6A. Dr. R. Bhattacharya (P.W. 11) conducted autopsy and found symptoms/injuries on face, scalp, neck, chest, forearm, shoulder, abdomen thigh, backside of leg and almost all the parts of the body eas having burn injuries and total area of burn was 92% approximately. In his opinion death was as a result of asphyxia due to excessive burn. 36-46 hours elapsed between death and commencement of postmortem examination. Viscera has been preserved for chemical analysis. Post-mortem was conducted by team of doctors namely Dr. V. Suryavanshi along with Dr. R. Bhattacharya. Post-mortem report (Ex. P/6(A)) was prepared and signed by both the doctors. In his opinion death was as a result of asphyxia due to excessive burn. 36-46 hours elapsed between death and commencement of postmortem examination. Viscera has been preserved for chemical analysis. Post-mortem was conducted by team of doctors namely Dr. V. Suryavanshi along with Dr. R. Bhattacharya. Post-mortem report (Ex. P/6(A)) was prepared and signed by both the doctors. After receipt of the said report and after inquiry upon the merg, the investigating officer held that is a case of abetment of suicide by the appellant. B.M. Pari (P.W. 10) proved the First Information Report written by ASI H.S. Dwivedi vide (Ex.-P/6) who also registered the offence under Section 306 of the IPC against the appellant as crime No. 93/98 on 25-5-1998. 4. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'.). The appellant was duly arrested vide arrest memo. Ex. P/9. F.I.R. was registered by H.S. Dwivedi (P.W. 13). After completion of investigation, charge-sheet was filed before Judicial Magistrate First Class, Mungeli on 30th June, 1998, who in turn committed the case to the Court of Session, Bilaspur. Learned Additional Sessions Judge, Mungeli received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as 14 witnesses. The appellant was examined under Section 313 of the Code wherein she denied the circumstances appearing against her, pleaded innocence and false implication in crime in question. 6. After providing opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. I have heard learned counsel for the parties and perused the judgment impugned and records of the trial Court. 8. Learned counsel for the appellant vehemently argued that deceased was not legally married wife of Awadhram. Her marriage with Awadhram was by customary procedure (choodi marriage). There is no eyewitness to the incident. The deceased was not mentally sound. If there were complaints regarding torture by the appellant, the same was not presented before the community meeting for its settlement. Initially the deceased was married to some other person at village Sonpuri about 15 years prior to the incident and thereafter she again married with Awadhram 4 years back. There is no specific allegation as to when and how the appellant tortured the deceased. Initially the deceased was married to some other person at village Sonpuri about 15 years prior to the incident and thereafter she again married with Awadhram 4 years back. There is no specific allegation as to when and how the appellant tortured the deceased. Only there are general allegation regarding cruelty or indecent behavior. As submitted, Section 113 of the Evidence Act, 1872 is not applicable in this case as there is no specific allegation regarding cruelty. Merely on the basis of general allegation regarding torture and cruelty the appellant may not be held for abetment of suicide. The prosecution has failed to prove its case against the appellant and the appeal may be dismissed. Also submits that presently the appellant is about 65 years old, at the time of the incident, she was about 45 years and she was falsely implicated only on the basis of general allegation and therefore, she may be acquitted. 9. Learned counsel for the appellant placed reliance in Bhagwan Das v. Kartar Singh, (2007 Cri. L.J. 3420 : AIR 2007 SC 2045 ) in which Hon'ble Supreme Court held that since there was harassment of wife by husband or in-laws due to differences--per se does not attract Section 306 read with Section 107 of the IPC, if the wife commits suicide for a charge under Section 306 there has to be something more. He also placed reliance and cited the case law of Rajababu v. State of M.P., (2008 Cri. L.J. 4301 : AIR 2008 SC 3212 ) in which the Hon'ble Supreme Court held that mere facts of suicide by woman within 7 years and cruelty by husband does not automatically give rise to presumption--Court is required to look into the other circumstances of the case. As in the said case, the deceased was unhappy with her husband as he was illiterate and poor and the mother-in-law of the deceased used to ask her to run hand driven flour mill. No direct evidence or other circumstances is established that mother-in-law either aided or instigated her to commit suicide. Presumption under Section 113A of the Evidence Act cannot be proved. Mother-in-law therefore, may be acquitted upon giving benefit of doubt. He further submits that on the basis of these two case laws which are identical to the present case the appellant may be acquitted. 10. Presumption under Section 113A of the Evidence Act cannot be proved. Mother-in-law therefore, may be acquitted upon giving benefit of doubt. He further submits that on the basis of these two case laws which are identical to the present case the appellant may be acquitted. 10. On the other hand, learned counsel for the State opposed the appeal and submitted that it is admitted that four years prior to the incident, Narbadiya Bai was married to Awadhram, son of the appellant, on the basis of customary choodi marriage which is admissible in the society. Within seven years of her marriage, on account of mental and physical torture, indecent behavior and cruelty, the deceased committed suicide as Awadh Ram also got married again and the appellant used to torture the deceased to leave her matrimonial house since she was not appropriate for them. The appellant also beaten the deceased. The deceased always stated to her maternal family members regarding torture and cruelty and other activities of the appellant. The appellant, on account of second marriage of Awadhram, wanted to throw out the deceased. No admissible evidence was adduced to prove that the deceased was mentally unsound. The deceased died in her bed room. Awadhram himself has not lodged the merg and the merg was lodged by Sidhram (P.W. 78), a distant relative. Why the appellant or her son has not intimated this to the police by themselves put their conduct doubtful as required in natural course for which the appellant was obliged to offer some explanation. For performing of second marriage by her son is admitted by the appellant in her examination under Section 313 of the Code in answer to question No. 4. Marrying again in the lifetime of wife is an offence which shows the conduct of family members of the appellant. Learned counsel for the State also submits that in the present case, torture and cruelty was occurred on many occasions in regular course and since the appellant wants to throw out the deceased, she used to beat the deceased. In totality of indecent behavior of the appellant, the deceased committed suicide. Section 113A of the Evidence Act is applicable to the facts of this case as this is a case of torture, mental and physical, cruelty, second marriage of husband of the deceased during her lifetime. In totality of indecent behavior of the appellant, the deceased committed suicide. Section 113A of the Evidence Act is applicable to the facts of this case as this is a case of torture, mental and physical, cruelty, second marriage of husband of the deceased during her lifetime. The appellant wanted to throw the deceased out of the house and all these covers the ingredients of Section 113A of the Evidence Act and with the help of such provision abetment of suicide is properly proved. As submitted, the trial Court has rightly held the appellant guilty under Section 306 of the IPC and she was awarded moderate sentence of RI for three years only where a life of a young married woman aged about 25 years finished in the outcome of the circumstances. He prayed that the appeal has not substance and the same may be dismissed accordingly. 11. The evidence on record is required to be scrutinized in the light of settled legal principle and provisions containing under Sections 306 and 107 of the IPC along with Section 113A of the Evidence Act. In order to find out whether the appellant is guilty of abetting commission of suicide of Narbadin Bai, the evidence adduced by the prosecution should be examined carefully in the light of Section 107 of IPC, 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 aides 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 facilitate the commission thereof, is said to aid the doing of that act". 12. 12. In State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73 : AIR 1994 SC 1418 the Supreme Court cautioned that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence 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 appears to the Court that a victim committing suicide was hyper-sensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce similarly circumstances 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. 13. The Supreme Court rendered in the matter of Sanju alias Sanjay Singh Sengar v. State of M.P., (2002) 5 SCC 371 : ( AIR 2002 SC 1998 ) (Para. 13) as also the judgment dated 3-11-2011 passed by this Court in Criminal Revision No. 511/04 (2012 Cri. L.J. (NOC) 205 (Chh.)) (Nihalluddin alias Munna v. State of Chhattisgarh). Both the cases referred above pertain to the offence punishable under Section 107, IPC. The Supreme Court in the case of Sanjay Singh Sengar v. State of M.P. (supra) has categorically held that ingredients of Section 107 are that instigating a person to do a thing and "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite to commit an act which in the instant case is not reflected from the plain reading of the suicidal note. The Supreme Court in para. 12 of its judgment has held as under:- "The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation." 14. Similarly, this Court while deciding Cr. Rev. No. 511/04 in the case of Nihalluddin v. State of Chhattisgarh, dated 3-11-11 : (2012 Cri. Presence of mens rea, therefore, is the necessary concomitant of instigation." 14. Similarly, this Court while deciding Cr. Rev. No. 511/04 in the case of Nihalluddin v. State of Chhattisgarh, dated 3-11-11 : (2012 Cri. L.J. (NOC) 205 (Chh), has also relied upon the above referred judgment of Supreme Court and also the earlier judgments referred by the Supreme Court, considering the ingredients required for an offence under Section 306/107, IPC and held that there should be a clear mens rea to commit an offence under this section and there should be a direct or active act by the accused which led the deceased to commit suicide. This Court while deciding the case of Nihalluddin v. State of Chhattisgarh (supra) further held that there must be some evidence of instigation or co-operation or initial assistance by the accused persons forcing the victim/deceased to commit suicide to attract the offence under Section 306, IPC. 15. The Supreme Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (16) SCC 605 : ( AIR 2010 SC 1446 ), had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigated" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 16. In the case of Amalendu Pal alias Jhantu v. State of West Bengal 2010 (1) SCC 707 : ( AIR 2010 SC 512 ) Para. 13, the Supreme Court explained abetment in following words- "10. The legal position as regards Section 306, IPC which is long settled was recently reiterated by this Court in Randhir Singh v. State of Punjab, (2004) 13 SCC 129 as follows in Paras. 12 and 13 : (SCC p. 134) : AIR 2004 SC 5097 , p. 5100, Paras. 12 & 13). "12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. 12 and 13 : (SCC p. 134) : AIR 2004 SC 5097 , p. 5100, Paras. 12 & 13). "12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the 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. i. In the State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73 : ( AIR 1994 SC 1418 ) this Court has observed that the Court should be extremely careful in assessing the facts and circumstances of finding whether the cruelty meted out to the victim had in fact induced her to end the life by 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." 17. Further, in Kishori Lal v. State of M.P., (2007) 10 SCC 797 : ( AIR 2007 SC 2457 , p. 2458, Para. 6) this Court gave a clear exposition of Section 107, IPC when it observed as follows in Para. 6: (SCC p. 799). "6. Section 107, IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word 'instigate' literally means to provoke, incite, urge on or bring about by persuasion to do any thing. These things are essential to complete abetment as a crime. The word 'instigate' literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107, Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence." 18. Section 306, IPC reads thus: "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. 19. Section 113A of the Evidence Act reads thus: “113A. 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 or 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. 20. In order to appreciate the arguments advanced on behalf of the parties and the settled legal position, I have examined the evidence adduced on the basis of above settled legal position. 21. Four years prior to her death, Narbadin Bai performed customary marriage with Awadhram as stated by witnesses Ramji (P.W. 1), Badri (P.W. 2), Panchram (P.W. 3) and Mankunwar (P.W. 4). Thus piece of evidence remains firm and in the cross-examination also the appellant admitted to question No. 2 under Section 313 of the Code that Narbadiaya Bai was performed customary choodi marriage with her son Awadhram four years prior to the incident. Thus piece of evidence remains firm and in the cross-examination also the appellant admitted to question No. 2 under Section 313 of the Code that Narbadiaya Bai was performed customary choodi marriage with her son Awadhram four years prior to the incident. Customary choodi marriage is acceptable in the society. In absence of any further challenge on behalf of the appellant, it is duly proved that the deceased was legally married wife prior to four years of date of incident. 22. So far as death of deceased in the house of the appellant by committing suicide by setting herself ablaze is concerned, it is not challenged by the appellant. Even otherwise from the statement of Dr. R. Bhattacharya (P.W. 11), post-mortem report (Ex. P/6A) spot map (Ex. P/5) and the statement of other witnesses prosecution has substantially proved that Narbadin Bai has committed suicide on 7-5-1998 in the house of the appellant at village Nirjam, Police Station Mungeli by setting herself ablaze. Section 113 of the Evidence Act clearly indicates that if within 7 years of marriage someone commits suicide it is shown that relative of her husband had subjected her to cruelty the Court may presume having regard to other circumstances of the case that such suicide has been abetted by such relative of her husband and in the present case undisputedly, the appellant is mother-in-law of the deceased. As per evidence of Ramji (P.W. 1), whenever the deceased comes to her maternal house, she always stated regarding torture by her mother-in-law and also that the second marriage of Awadhram and the appellant used to torture her as she wants to throw her out from house. Badri (P.W. 2) also deposed that her mother-in-law told her to go to maternal house and take food there. She also stated regarding marpeet by the appellant also. Pancham (P.W. 3), brother of the deceased, also supports the case of the prosecution. As per this evidence, his sister told him regarding torture by her mother-in-law with an allegation that she does not do work. Mankunwar (P.W. 4) near relative of the deceased also deposed at para. 1 that deceased Narbadiya Bai told him that her mother-in-law used to beat her and then only she came to maternal house. He also deposed that the appellant used to beat her on her cheek. Mankunwar (P.W. 4) near relative of the deceased also deposed at para. 1 that deceased Narbadiya Bai told him that her mother-in-law used to beat her and then only she came to maternal house. He also deposed that the appellant used to beat her on her cheek. These witnesses were cross-examined at length, but they remained very firm in their evidence and nothing could be elicited as to discredit these witnesses after lengthy cross-examination. In the nutshell, after the second marriage of the son of the appellant, the appellant used to beat the deceased and also subjected to mental and physical torture as she was not proper for them and she used to ask her to get out from the family. The appellant or her son has not lodged any report regarding the suicide of the deceased for which no plausible explanation was offered by them. Even the appellant has not examined her son as defence witness since he was material witness being husband as to how and when he noticed regarding the incident and thereafter what they acted further. As per merg intimation (Ex. P/3), the deceased and her husband were sleeping in the same room on the date of incident. The deceased died on account of suicide by setting her on fire in the same room and as to how her husband had not noticed the flame and fire and other post facts because after setting on fire, normally nobody keeps mum and the victim usually shout or call for help because in normal circumstances burning of whole body gives immense pain and the victim usually call for help. Since the incident committed in secrecy no eye-witness can be procured, material witness Awadhram being the husband, his act creates suspicion as why he did not lodge merg himself makes the circumstances suspicious. The deceased sustained 92% burn injuries which leads her immediate death and no family members including the appellant noticed nothing gives suspicion for the conduct of the appellant. 23. The case law cited are not applicable as the facts of this case is quite different. In the present case, there are physical and mental torture, cruelty, element of second marriage of husband, the appellant used to beat her and asked her to get out since she was not useful, which indicates that the Section 113A of the Evidence Act applies to the facts of this case. In the present case, there are physical and mental torture, cruelty, element of second marriage of husband, the appellant used to beat her and asked her to get out since she was not useful, which indicates that the Section 113A of the Evidence Act applies to the facts of this case. 24. It is argued that the deceased was of unsound mind for which no admissible evidence or document was adduced by the appellant. Simply by examining two defence witnesses that the deceased was not mentally sound and in absence of any admissible medical or reliable evidence it cannot be held that the deceased was not mentally sound. When we look towards other circumstances which are appeared in the case, I am of the considered view that Section 113A of the Evidence Act is applicable to the conduct and behavior of the appellant and other family members including husband of the deceased which indicates the guilt of the appellant regarding abetment. 15 days prior to her death, she was taken to her matrimonial house. The deceased and their relatives on both sides are just illiterate or less literate, they are not connected with phone or other amenities. There is no communication of the deceased to her maternal relatives. With this it can safely be inferred that on the basis of evidence available on record clearly goes to show that the deceased committed suicide on abetment by the appellant as she was subjected to cruelty by the appellant. The learned Trial Court has rightly presumed that having regard to other circumstances of the case such suicide had been abated by the appellant. After holding the appellant guilty, the trial Court sentenced her only for three years of RI and along with fine sentence of Rs. 1,000/- seems to be just and proper and it warrants no interference. 25. Consequently, to part with, the appeal being devoid of any merit liable to be and is hereby dismissed. It is stated that the appellant is on bail. She shall surrender before the trial Court forthwith to serve the remaining sentence awarded to her. The trial Court shall also take appropriate steps to send the appellant to jail for serving the remaining jail sentence. Appeal dismissed.