JUDGMENT : Heard, Mr. Mrinal Kanti Roy learned counsel appearing for the appellants and Mr. Rajesh Kumar Mishra, learned Addl. Public Prosecutor appearing for the State. 2. The instant Criminal appeal is directed against the Judgment of conviction dated 21.01.2004 and order of sentence dated 22.01.2004, passed by the learned Addl. Sessions Judge-XIII, Dhanbad, in Sessions Trial No.04 of 1997 (G.R. No.4424 of 1995), whereby, both the appellants have been convicted for the offence punishable under Sections 306/34 of the Indian Penal Code and have been sentenced to undergo Rigorous imprisonment for five years and a fine of Rs.1,000/-and in default of payment of fine, to further undergo rigorous imprisonment for six months. 3. The prosecution case, in nutshell, is based upon on the basis of the ‘fardbeyan’ of the informant, Gopal Kumhar, recorded by Assistant Sub Inspector, Hariharpur Police Station, Dhanbad, on 06.12.1995 at 11.30 hours, where the informant has alleged that his youngest daughter was married with accused (Ashok Kumhar) 4 years ago, in Deoghar Temple. Further case of the prosecution is, that accused (Ashok Kumhar) is doing the business of selling vegetables and from the said wedlock; they have a daughter of two years. The informant has further alleged, that the accused (Ashok Kumhar) and his mother used to assault his daughter and for which, the informant tried to pacify them, but nothing has happened and ultimately, his daughter went to collect cow dung on 05.02.1995 and subsequently, deadbody was found hanging with a plastic rope upon a ‘Palas’ tree. The informant has further stated that he has been informed by Manik Kumhar (P.W.3) and Pena Kumhar (P.W.5) that his daughter has committed suicide and thereafter the informant along with his son, Anant Kumhar with co-villager, Prafulla Kumhar went to the village-Khorio and saw the deadbody of his daughter. On the basis of the said ‘fardbeyan’ of the informant, the Police instituted a case and First Information Report has been drawn vide G.R. No.4424 of 1995, under Sections 306/34 of the Indian Penal Code. 4. After investigation, the Police submitted charge-sheet under Sections 306/34 of the Indian Penal Code vide Charge-sheet No.22 of 1996 dated 29.02.1996, against both the accused persons, Ashok Kumhar and Hema Devi. 5. The cognizance of the offence has been taken vide order dated 03.04.1996 and the case has been committed to the Court of Sessions vide order dated 26.11.1996. 4. After investigation, the Police submitted charge-sheet under Sections 306/34 of the Indian Penal Code vide Charge-sheet No.22 of 1996 dated 29.02.1996, against both the accused persons, Ashok Kumhar and Hema Devi. 5. The cognizance of the offence has been taken vide order dated 03.04.1996 and the case has been committed to the Court of Sessions vide order dated 26.11.1996. The charge has been framed on 24th May, 1999 under Sections 498A, 306/34 of the Indian Penal Code, to which, the appellants pleaded their innocence and thus, they were put under trial. 6. The prosecution, in order to prove its case, has examined altogether ten witnesses. Sulochna Devi has been examined as P.W.1 and she has been declared hostile by the prosecution, Uttam Kumhar has been examined as P.W.2 and he has also been declared hostile by the prosecution, Manik Kumhar, an independent witness has been examined as P.W.3, Ganesh Kumhar, an independent witness has been examined as P.W.4, Pena Kumhar, an independent witness has been examined as P.W.5, Lal Mohan Mandal has been examined as P.W.6 and he has been declared hostile by the prosecution, Naresh Prasad Singh, an inquest witness has been examined as P.W.7, Madan Mohan Mandal, another inquest witness has been examined as P.W.8, Sri Gopal Kumhar (father of the deceased and informant of this) case, has been examined as P.W.9 and Dr. Shailendra Kumar, Medical Officer has been examined as P.W.10. 7. The prosecution has also adduced documentary evidences in support of its case. Exhibit-1 is the signature of the witness, Naresh Prasad Singh (P.W.7) on carbon copy of inquest report, Exhibit-1/1 is signature of witness, Madan Mohan Mandal, on the carbon copy of inquest report, Exhibit-1/2 is signature of Prafulla Kumhar, on the fardbeyan, Exhibit-1/3 is signature of Anant Kumhar on the fardbeyan, post-mortem report has been proved and marked as Exhibit-2, Left thumb impression of Gopal Kumhar (P.W.9), on fardbeyan has been marked as 'X' for identification. 8. After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr.P.C. on 1st December, 2003 and after hearing the learned counsel for the parties, the learned trial court has passed the impugned judgment of conviction and order of sentence, which has been assailed before this Hon'ble Court by the learned counsel appearing for the appellants. 9. Mr. 9. Mr. Mrinal Kanti Roy, learned counsel appearing for the appellants, while assailing the impugned judgment of conviction and order of sentence, has submitted that without having any material constituting an offence, the appellants have been convicted under Sections 306/34 of the Indian Penal Code though the learned trial Court has acquitted the appellants under Section 498A of the Indian Penal Code. Learned counsel for the appellants has further submitted, that from perusal of Section 113A of the Evidence Act, it appears that there must be some cogent material for compelling the deceased to commit suicide and without there being any material, the learned trial court has convicted the appellants. Learned counsel for the appellants has further submitted, that P.W.1 (Sulochna Devi), P.W.2 (Uttam Kumhar) and P.W.6 (Lal Mohan Mandal) have been declared hostile by the prosecution. Learned counsel appearing for the appellants has further submitted, that P.W.7 (Naresh Prasad Singh) and P.W.8 (Madan Mohan Mandal) are the inquest witnesses. He has also drawn attention of this Court towards the evidence of P.W.3 (Manik Kumhar, who is an independent witness in this case) as made in Para-3 of his cross-examination, wherein this witness has categorically stated, that Ashok was living separately from her mother and Ashok used to sell vegetables in the market. Learned counsel for the appellants has also drawn attention of this Court towards the evidence made in Para-5 of his cross-examination, when this witness (P.W.3-Manik Kumhar) has admitted, that he has never seen any quarrel between the husband and wife. The mother of Ashok has no concern with wife of Ashok (daughter-in-law), as she was residing separately. This witness (Manik Kumhar-P.W.3) has also not seen quarrel between mother-in-law and daughter-in-law. P.W.3 is one of the persons, who went to the father of the deceased to informed about the occurrence. Learned counsel for the appellants on the basis of the aforesaid statement, has submitted that there is no ingredient to show that the appellants have committed an act, which had compelled the lady to commit suicide. 10. Mr. Rajesh Kumar Mishra, learned Addl. Public Prosecutor appearing for the State vehemently argued this case, but from perusal of records, he could not controvert the avermet made in Paras-3 and 5 of cross-examination of P.W.3 (Manik Kumhar). 11. 10. Mr. Rajesh Kumar Mishra, learned Addl. Public Prosecutor appearing for the State vehemently argued this case, but from perusal of records, he could not controvert the avermet made in Paras-3 and 5 of cross-examination of P.W.3 (Manik Kumhar). 11. Learned counsel appearing for the appellants has further drawn attention of this Court, towards the evidence of P.W.4 (Ganesh Kumhar), who has admitted during cross-examination in Para-4 that Ashok and his brothers were living separately and he has not seen any quarrel between wife and husband and also between mother-in-law and daughter-in-law, rather in Para-5 during cross-examination, this witness (P.W.4) has stated, that the lady used to collect the cow-dung fuel from 'Bahiyaar'. On the basis of the evidence of the witnesses, learned counsel for the appellants has submitted that there is no evidence of abetment against the appellants and the learned trial court has passed the impugned judgment of conviction and order of sentence without having any material against the appellants. Learned Counsel for the State on perusal of evidence of P.W.4 of his cross-examination in Paras-4 and 5 brought on record, has not disputed the fact that there is no evidence of abetment. 12. Learned counsel for the appellants has further submitted, that Pena Kumhar has been examined as P.W.5. This witness (P.W.5) has informed the informant about the occurrence and this witness (P.W.5), during cross-examination in Para-4 and Para-5, has admitted, that Ashok and his mother were living separately and he has never seen any quarrel between the appellants/accused and the deceased. This witness (P.W.5) has further stated during cross-examination, that he has not heard any dowry demand before committing suicide. P.W.7 (Naresh Prasad Singh) and P.W.8 (Madan Mohan Mandal) have been examined in this case and they are the inquest witnesses and they have proved their signatures on the carbon copy of the inquest report as Exhibit-1 and Exhibit-1/1 respectively. They have categorically stated, during cross-examination, that they have no knowledge about the occurrence nor about the family of the appellants. Gopal Kumhar (informant and father of the victim), has been examined as P.W.9. He has proved his left thumb impression on ‘fardbeyan’ marked as 'X' for identification and he has also proved the signature of co-villager (Prafulla Kumhar) and his son (Anant Kumhar) as Exhibits-1/2 and 1/3 respectively. Gopal Kumhar (informant and father of the victim), has been examined as P.W.9. He has proved his left thumb impression on ‘fardbeyan’ marked as 'X' for identification and he has also proved the signature of co-villager (Prafulla Kumhar) and his son (Anant Kumhar) as Exhibits-1/2 and 1/3 respectively. This witness (P.W.9) has admitted in Para14 of his cross-examination, that when he asked his daughter, as to why the husband and mother-in-law are quarreling with her, he did not remember, that what reason has been assigned by his daughter. 13. Learned counsel for the appellants has further submitted, that the informant has himself admitted that there was no assault, rather there was a quarrel. This witness (P.W.9) has admitted in Para-20 of his cross-examination that he has never informed Police Station nor 'Mukhia' nor 'sarpanch' about the incident. This witness (P.W.9) has further admitted, that in para-22 of his cross-examination, that he does not enquire about the person, who has informed him that Ashok Kumhar has murdered his daughter. This witness (P.W.9) has further stated, that he has stated before the Police that his daughter has been assaulted by Ashok Kumhar. Learned counsel for the appellants from perusal of the evidence of P.W.9, has submitted, that at best it is a case that there was a quarrel between the wife and the husband, but that was not sufficient to constitute an offence under Section 306 of the Indian Penal Code. For convicting a person under Section 306 of the Indian Penal Code, the material must be there to constitute an offence. Section 113A of the Indian Evidence Act reads as follows :- “113A. Presumption as to abetment of suicide by a married woman. For convicting a person under Section 306 of the Indian Penal Code, the material must be there to constitute an offence. Section 113A of the Indian Evidence Act reads as follows :- “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 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.” There is no evidence that any presumption can be drawn against the husband or the mother-in-law for committing suicide by the deceased (Anita Devi), as the Doctor, who has been examined as P.W.10 and proved and marked the post-mortem report as Exhibit-2. There is no evidence of any external injury on the person of the deceased to corroborate the initial allegation made by the informant, that the husband and mother-in-law used to assault the deceased and as such, in absence of any injury on the person of the deceased, the material to constitute an offence under Section 306 of the Indian Penal Code is lacking in this case. The learned counsel for the appellants has further submitted, that the Doctor (Dr. Shailendra Kumar) has been examined as P.W.10. This witness has stated that the lady died because of Ligature mark -1/2” x between larynx and Chin going upwards and back-wards obliquely along the line mandible towards occiput, where a gap of 2” was found on back of the neck. It was not continuous on the back side for 2”. It was grooved hard leathery and parchment like and chocolate brown in colour. Doctor has opined that death was due to Asphyxia, as a result of hanging, but Doctor has not found any external injury on the person of the deceased. During cross-examination, this witness (P.W.10) has admitted in Para-13 that it was a clear-cut case of ante-mortem hanging. 14. Mr. Doctor has opined that death was due to Asphyxia, as a result of hanging, but Doctor has not found any external injury on the person of the deceased. During cross-examination, this witness (P.W.10) has admitted in Para-13 that it was a clear-cut case of ante-mortem hanging. 14. Mr. Mrinal Kanti Roy, learned counsel for the appellants has submitted that from the evidence of P.W.9 (Gopal Kumhar), there is no ingredient to constitute an offence under Section 306 of the Indian Penal Code against the appellants. From the evidence of Doctor (P.W.10), it is apparent that the lady had died because of Asphyxia, as a result of hanging. From para-13 of cross-examination of the Doctor (P.W.10), it is a clear-cut case of ante-mortem hanging. Since there is no external injury on the person of the deceased, it cannot be said that the person died because of abetment. Had it been a case of abetment, there must be some injury on the person of the deceased. Had there been any assault, there must be some external injury on the person of the deceased. 15. Learned counsel for the appellants has further submitted, that under the aforesaid background, the appellants may be acquitted from the charge under Sections 306/34 of the Indian Penal Code. Mr. Mrinal Kanti Roy, learned counsel appearing for the appellants has submitted, that non-examination of the Investigating officer has certainly caused serious prejudice to the appellants, as the appellants could not draw contradictions, which have cropped up in the prosecution case. Non-examination of the Investigating officer has further caused prejudice to the case of the appellants, as the son of the informant and co-villager of the informant have not been examined. Learned counsel appearing for the appellants has drawn attention of this Court towards the statements of appellants recorded under Section 313 of the Criminal Procedure Code and from the questionnaire form, it appears that it was a case under Section 302 of the Indian Penal Code and not under Section 306 of the Indian Penal Code. No specific question has been made, that torture or assault made by these appellants, the deceased was compelled to commit suicide and in absence of any such specific question, the impugned judgment of conviction and order of sentence is bad in law. 16. Mr. No specific question has been made, that torture or assault made by these appellants, the deceased was compelled to commit suicide and in absence of any such specific question, the impugned judgment of conviction and order of sentence is bad in law. 16. Mr. Mrinal Kanti Roy, learned counsel appearing for the appellants has placed reliance in the case of Hans Raj Vs. State of Haryana, reported in (2004) 12 Supreme Court Cases 257, wherein the Hon'ble Supreme Court has held that “presumption, when can be drawn – Mere fact that the woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by the husband, held, does not automatically give rise to the presumption that suicide had been abetted by the husband.” 17. Learned counsel has submitted, that since the appellants have already been acquitted under Section 498A of the Indian Penal Code and the Hon'ble Supreme Court has also held that these are not sufficient grounds for convicting a person under Sections 306/34 of the Indian Penal Code, as such, presumption under Section 113A of the Indian Evidence Act, 1872 cannot be invoked for convicting the appellants under Section 306 of the Indian Penal Code. 18. Learned counsel for the appellants has further submitted that there is no direct evidence by the prosecution to establish that husband has tried to instigate or entered into conspiracy to compel the victim (wife) to commit suicide, the appellants cannot be convicted under Section 306 of the Indian Penal Code. 19. Learned counsel appearing for the appellants has also relied upon a decision rendered in the case of Ramesh Kumar Vs. State of Chhattisgarh, as reported in 2002 (1) EastCrC 331 (SC) : (2001) 9 Supreme Court Cases 618 wherein Hon'ble Supreme Court has held that “there must be a reasonable certainty to incite the consequence”, since there is no material that the appellants have ever instigated the lady to commit suicide nor the informant (P.W.9-Gopal Kumhar) has ever alleged that the daughter ever stated before him because of cruelty or torture, she thinks to commit suicide, as such, in absence of such evidence, the conviction of the appellants under Section 306/34 of the Indian Penal Code is non-sustainable in the eyes of law. 20. Mr. Rajesh Kumar Mishra, learned Addl. 20. Mr. Rajesh Kumar Mishra, learned Addl. Public Prosecution appearing for the State has submitted, that the judgment of conviction and order of sentence is well-founded, passed by the learned trial court, on the basis of the materials brought on record. Learned counsel for the State has further submitted, that this Court may not interfere in the impugned judgment of conviction and order of sentence at this stage, as the same has been passed on the basis of materials brought on record. 21. Having heard, Mr. Mrinal Kanti Roy, learned counsel appearing for the appellants and Mr. Rajesh Kumar, learned Addl. Public Prosecutor appearing for the State as well as from perusal of the records such as, First Information Report, charge, the prosecution evidence including the exhibits and statements made under Section 313 of the Criminal Procedure Code, this Court is of the opinion that the deceased committed suicide, but no specific reason has been brought by the prosecution, as to why she has committed suicide. The prosecution has miserably failed to bring on record any material to constitute an offence under Section 306 of the Indian Penal Code. Section 113 A of the Indian Evidence Act, 1872 says that presumption can only lie, if there is material against the appellants. Here, there is no material even the informant, who has alleged in the First Information that the husband and mother-in-law used to assault the deceased has subsequently stated, that there was a quarrel between the husband, mother-in-law and the deceased (daughter-in-law) and quarrel cannot be a ground that lady will commit suicide. 22. From the perusal of the judgment, I find that this judgment is fully applicable in the present case, as there is no direct material that the husband or the mother-in-law had instigated the deceased to commit suicide nor there is direct material or there is evidence of cruelty, the learned trial court has acquitted the appellants under Section 498A of the Indian Penal Code. 23. From perusal of the judgment cited by the learned counsel for the appellants, I also find that the aforesaid decision is applicable in the present case, as there is no direct evidence nor there is any instigation nor any presumption can be drawn with regard to other circumstances of the case for convicting the appellants. 23. From perusal of the judgment cited by the learned counsel for the appellants, I also find that the aforesaid decision is applicable in the present case, as there is no direct evidence nor there is any instigation nor any presumption can be drawn with regard to other circumstances of the case for convicting the appellants. In the present case, there is no such material to presume that because of relationship between the wife and the husband and the mother-in-law, the deceased committed suicide, as such, the impugned judgment of conviction and order of sentence warrants interference by this Hon'ble Court. 24. This Court is also of the opinion from perusal of medical report, hanging was found and the Doctor has admitted during evidence in para-13 of his cross-examination, that the deceased died and it is a clear cut case of antemortem hanging. Since there is no external injury, it can be safely said, that a person cannot be hanged without having resistance, showing some sign of it. There was no injury on the person of the deceased. This Court is also taking serious view of the matter, as non-examination of the brother of the deceased and co-villager coupled with the fact non-examination of the Investigating officer has certainly caused serious prejudice to the case of the appellants. 25. In the aforesaid background of the discussions, this Court is of the opinion that the prosecution has miserably failed to prove the case beyond all reasonable doubt against the appellants. Thus, the appellants are acquitted of the charge under Sections 306/34 of the Indian Penal Code, as such, the impugned judgment of conviction and order of sentence is non-sustainable in the eyes of law. 26. Accordingly, the Judgment of conviction dated 21.01.2004 and order of sentence dated 22.01.2004, passed in Sessions Trial No.04 of 1997 (G.R. No.4424 of 1995) by the learned Addl. Sessions Judge-XIII, Dhanbad, is hereby set aside by giving benefit of doubt, in favour of the appellants. 27. Accordingly, the instant Criminal appeal stands allowed. 28. The appellants, who are already on bail, as such, they are discharged from the liability of their bail bonds. 29. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal allowed.