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2018 DIGILAW 2559 (JHR)

Ashraf Ali, S/o Haider Ali v. State of Jharkhand

2018-11-27

KAILASH PRASAD DEO

body2018
JUDGMENT : Heard, Mr. Rajesh Lala assisted by Mr. Arpit Kumar, learned counsels for the appellant and learned counsel for the State, Mr. Tapas Roy, learned Additional Public Prosecutor. 2. The instant Criminal appeal is directed against the Judgment of conviction dated 06th February, 2004 and order of sentence, dated 07th February, 2004, passed by the learned Additional Sessions Judge-XI, Dhanbad in Sessions Trial No.91 of 2002, whereby the sole appellant, Ashraf Ali, who has been charged under Sections 304B I.P.C. and 3/4 of the Dowry Prohibition Act, has been convicted for the offence committed and punishable under Section 306 of the Indian Penal Code, as the charge under Section 304B I.P.C. has not been proved by the prosecution and awarded to undergo rigorous imprisonment for five years and a fine of Rs.500/-and in case of default in payment of fine, to further undergo simple imprisonment for two months for the offence committed and punishable under Section 306 of the Indian Penal Code. 3. The prosecution case, is based upon, the fardbeyan of the informant, Juli Kumari (P.W.3) recorded by V. B. Singh, Sub Inspector of Police, Kenduadih Police Station, Dhanbad, on 06.11.2001 (Tuesday) at 7.30 P.M. The informant has alleged that she got an information from one boy that her sister has committed suicide by hanging. Thereafter the informant hurriedly came to the house of her sister and saw that dead body of her sister lying and several ladies were present, but she could not identify any of them. It is further stated that Ashraf, brother-in-law present there has not disclosed the reason of death. The informant has alleged that brother-in-law (Ashraf) used to quarrel with her sister. They have returned from Pune on 05.11.2001 and since then they were quarreling in which the mother-in-law and father-in-law of her sister were also instigating. It is further alleged in the First Information Report that as the victim has gone to the house of her mother which was incidental reason of the quarreling, but subsequently it is alleged that because of non-payment of dowry, the accused persons have tortured her. The informant has categorically stated that after killing her sister, the brother-in-law has hanged her sister. 4. The informant has categorically stated that after killing her sister, the brother-in-law has hanged her sister. 4. On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report bearing Kenduadih P.S. Case No. 130 of 2001, dated 07.11.2001 corresponding to G.R. No.3193 of 2001 under Sections 304 B/34 of the Indian Penal Code and Section 3/4 Dowry Prohibition Act. 5. After investigation, the Police has submitted charge-sheet vide Charge-sheet No.129 of 2001 dated 30.11.2001 against the sole accused/appellant under Section 304 (B) I.P.C. and 3/4 of the Dowry Prohibition Act. 6. The cognizance of the offence has been taken against accused/appellant vide order dated 03.01.2002 and the case has been committed to the Court of Sessions vide order dated 19.02.2002. 7. The charge has been framed by the learned trial court on 20.03.2002 against the sole accused/appellant under Section 304B I.P.C. and 3/4 D.P. Act, to which the accused/appellant has pleaded not guilty and claimed to be tried and thus, he was put under trial. 8. The prosecution, in order to prove its case, has examined altogether five prosecution witnesses and also exhibited four documents to prove its case beyond all reasonable doubt against the charged accused/appellant, Ashraf Ali. Kasim Ansari, father of the deceased has been examined as P.W.1, Md. Mansoor Alam has been examined as P.W.2, Juli Khatoon, informant of the case, has been examined as P.W.3, Bijay Bahadur Singh, investigating officer of the case, has been examined as P.W.4 and Dr. Shailendra Kumar, Medical Officer, has been examined as P.W.5 and he has conducted the post -mortem examination of dead body of Hazra Khatoon (deceased). Signature of the informant in the fardbeyan has been proved and marked as Exhibit-1, Fardbeyan of the informant has been proved and marked as Exhibit-2, inquest report of the deceased has been proved and marked as Exhibit-3 and post – mortem report has been proved and marked as Exhibit-4. 9. After closure of the prosecution evidence, statement of the accused/appellant has been recorded under Section 313 Cr.P.C., on 04.09.2003, to which the accused/appellant has categorically stated that the victim has committed suicide as his father-in-law has not given her child to the victim and that is the reason the victim has committed suicide. The defence has also examined six defence witnesses. The defence has also examined six defence witnesses. A number of charge-sheet witnesses have not been examined by the prosecution, but those have been examined on behalf of the defence. Md. Gulam Rabbani, a charge-sheet witness has been examined as D.W.1, Rahmat Ali, another charge-sheet witness has been examined as D.W.2, Inayat Hussain, another charge-sheet witness has been examined as D.W.3, Md. Salim, another charge-sheet witness has been examined as D.W.4, Md. Gayasuddin has been examined as D.W.5 and Abdul Zabbar has been examined as D.W.6. 10. The learned trial court, after hearing learned counsel for the parties and on the basis of the materials brought on record, has passed the impugned judgment of conviction and order of sentence. Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, the accused/appellant has preferred the present Criminal Appeal before this Hon'ble Court, assailing the same. 11. Heard, Mr. Rajesh Lala assisted by Mr. Arpit Kumar, learned counsels appearing for the appellant. Learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law, as the charge has been framed under Section 304 B I.P.C. and 3/4 of the D. P. Act where presumption under Section 113 B of the Evidence Act is applicable, but without framing of charge under Section 306 I.P.C., the appellant has been convicted by the learned trial court ignoring the provisions, as envisaged under Section113 A of the Indian Evidence Act. Learned counsel for the appellant has thus, submitted that there is no evidence that any demand of dowry was made by the appellant which relates to the marriage of the appellant, as envisaged under Section 2 of the D. P. Act. Learned counsel for the appellant, in support of his submission, has put reliance upon a judgment, as reported in 2010 (9) SCC 73 , in the case of Durga Prasad and Anr. Vs. State of M. P., wherein it has been held that though the appellant has been charged under Section 304B I.P.C., but he has not been found guilty under Section 3/4 of the D. P. Act. Apart from this, any demand made after the marriage, cannot be considered to be dowry, as envisaged under Section 2 of the D. P. Act. State of M. P., wherein it has been held that though the appellant has been charged under Section 304B I.P.C., but he has not been found guilty under Section 3/4 of the D. P. Act. Apart from this, any demand made after the marriage, cannot be considered to be dowry, as envisaged under Section 2 of the D. P. Act. As per “Section 2 of the Dowry Prohibition Act, 1961 “dowry’ means any property or valuable security given or agreed to be given either directly or indirectly – (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person. at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of persons to whom the Muslim Personal Law (Shariat) applies.” 12. Learned counsel for the appellant has further submitted that since the appellant has not been convicted under Section 3/4 of the D. P. Act, as such, the appellant cannot be convicted for the offence committed and punishable under Section 304 B I.P.C., for convicting a person under Section 304 B I.P.C., four basic ingredients are required for constituting an offence :- (i) The death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) Such death must have occurred within seven years of her marriage; (iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband. (iv) Such cruelty or harassment must be for or in connection with demand of dowry. 13. Learned counsel for the appellant, in support of his submission, has further put reliance upon a judgment, as reported in 2003 (3)JLJR 245 , Tilak Bedia & Anr. Vs. The State of Bihar (now Jharkhand). Learned counsel for the appellant has submitted that though the learned trial court has acquitted the appellant of the charge under Section 304B I.P.C., but without framing charge under Section 306 I.P.C., has wrongly convicted the appellant under Section 306 I.P.C. without taking judicial notice with respect to the provisions as contained under Section 113A of the Evidence Act. 14. Learned counsel for the appellant has submitted that though the learned trial court has acquitted the appellant of the charge under Section 304B I.P.C., but without framing charge under Section 306 I.P.C., has wrongly convicted the appellant under Section 306 I.P.C. without taking judicial notice with respect to the provisions as contained under Section 113A of the Evidence Act. 14. Learned counsel for the appellant, in support of his submission, has further put reliance upon a judgment, as reported in (2001) 9 Supreme Court Cases 618, Ramesh Kumar Vs. State of Chhattisgarh, particularly in Paras 10, 11, 12, 20 and 21, which are being reproduced here-under :- “10. Section 306 IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be liable to be punished. The ingredients of abetment are set out in Section 107 of IPC which reads as under: "707. Abetment of a thing -A person abets the doing of a thing, who-First-Instigate 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." 11. There is no direct evidence adduced of the accused-appellant having abetted Seema into committing suicide. The prosecution has relied on Section 113-A of Evidence Act which reads as under : 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 or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation.-For the purpose of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code. 12. Explanation.-For the purpose of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code. 12. This provision was introduced by Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four-corners of the matrimonial home and hence was not available to any one outside the occupants of the house. However still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability of Section 113-A, it must be shown that (i) woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to 'all the other circumstances of the case'. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression -'The other circumstances of the case' used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase 'May presume' used in Section 113-A is defined in Section 4 of the Evidence Act, which says-'whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.' 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. 21. In State of West Bangal v. Orilal Jaiswal and Anr., [1994] 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicde. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. 15. 15. Learned counsel for the appellant, in support of his submission, has further put reliance upon a judgment, as reported in (2004) 12 Supreme Court Cases 257, Hans Raj Vs. State of Haryana, particularly in Paras 12, 13 and 15, which are being reproduced here-under :-. “12. The question then arises as to whether in the facts and circumstances of the case the appellant can be convicted of the offence under Section 306 I.P.C. with the aid of the presumption under Section 113 A of the Indian Evidence Act. Any person who abets the commission of suicide is liable to be punished under Section 306 I.P.C. Section 107 I.P.C. lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more person in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. In the instant case there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon Section 113-A of the Indian Evidence Act under which the Court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The explanation to Section 113-A further clarifies that cruelty shall have the same meaning as in Section 498A of the Indian Penal Code which 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". 13. 13. Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113A of the Indian Evidence Act the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the Court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in Section 498-A I.P.C. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar Vs. State of Chhattisgarh (2001) 9 SCC 618 wherein this Court observed : (SCC pp. 626-27, para 12) "12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression "the other circumstances of the case" used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in Section 113-A is defined in Section 4 of the Evidence Act, which says "Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it". 15. In the State of West Bengal Vs. Orilal Jaiswal this Court observed : (SCC pp. 89- 90, para 15) "15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. 15. In the State of West Bengal Vs. Orilal Jaiswal this Court observed : (SCC pp. 89- 90, para 15) "15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater [(1950) 2 All ER 458,459] has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject- matter". 16. Learned counsel for the appellant, relying upon the aforesaid judgment, has submitted that under the provisions of Section 113A of the Indian Evidence Act, presumption as to abetment to suicide by a married woman, has been enunciated whereas presumption as to dowry death has been enunciated under Section 113 B of the Indian Evidence Act. So the proof which is required for conviction of the appellant under Section 306 I.P.C., is Section 113A of the Indian Evidence Act and without framing charge under Section 306 I.P.C., the conviction of the appellant under Section 306 I.P.C. cannot be passed, as the charge has been framed under Section 304B I.P.C. 17. Learned counsel for the appellant, in support of his submission, has further put reliance upon a judgment, as reported in (2014) 12 Supreme Court Cases 595, Mangat Ram Vs. Learned counsel for the appellant, in support of his submission, has further put reliance upon a judgment, as reported in (2014) 12 Supreme Court Cases 595, Mangat Ram Vs. State of Haryana, particularly in Paras 28, 29, 30, 31 and 32, which are being reproduced here-under :-. “28. We have already indicated that the trial Court has found that no offence under Section 304-B IPC has been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been framed on that section against the accused. The scope and ambit of Section 306 IPC has not been properly appreciated by the Courts below. Section 306 IPC 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.” Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by act or illegal omission in the commission of suicide. 29. In the instant case, of course, the wife died few months after the marriage and the presumption under Section 113A of the Evidence Act could be raised. Section 113A of the Evidence Act reads as follows: “113A. 29. In the instant case, of course, the wife died few months after the marriage and the presumption under Section 113A of the Evidence Act could be raised. Section 113A of the 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 and 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.” 30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term “the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband” would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor the reasoning adopted by the Courts below would be sufficient enough to draw a presumption so as to fall under Section 113A of the Evidence Act. 31. In this connection, we may refer to the judgment of this Court in Hans Raj v. State of Haryana (2004) 12 SCC 257 , wherein this Court has examined the scope of Section 113A of the Evidence Act and Sections 306, 107, 498-A etc. 31. In this connection, we may refer to the judgment of this Court in Hans Raj v. State of Haryana (2004) 12 SCC 257 , wherein this Court has examined the scope of Section 113A of the Evidence Act and Sections 306, 107, 498-A etc. and held that, unlike Section 113B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated inSection 113A of the Evidence Act. This Court held that, under Section 113A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the Court is not bound to presume that suicide has been abetted by her husband. Section 113A, therefore, gives discretion to the Court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word ‘cruelty’ in Section 498-A IPC. 32. We are of the view that the circumstances of the case pointed out by the prosecution are totally insufficient to hold that the accused had abetted his wife to commit suicide and the circumstances enumerated under Section 113A of the Evidence Act have also not been satisfied.” 18. Learned counsel for the appellant, in support of his submission, has further put reliance upon a judgment, as reported in 2017 (1) JBCJ 288 [SC], K.V. Prakash Babu Vs. State of Karnataka, particularly in Para 16, which is being reproduced here-under :-. “16. The concept of mental cruelty depends upon the milieu and the strata from which the person come from and definitely has an individualistic perception regarding being had to one's endurance and sensibility. It is difficult to generalize but certainly it can be appreciated in set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. It is difficult to generalize but certainly it can be appreciated in set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC. 19. Learned counsel for the appellant, on the above premises, has submitted that the impugned judgment of conviction and order of sentence, cannot sustain in the eyes of law, in the facts and circumstances of the case. 20. Mr. Tapas Roy, learned Additional Public Prosecutor appearing for the State has vehemently argued the case and submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials available on record. Learned counsel for the State has submitted that a young lady died within 7 years of her marriage in an abnormal circumstances by hanging and as per the First Information Report, the appellant has hanged her and as such, the learned trial court has rightly convicted the appellant under Section 306 I.P.C. Learned counsel for the State has further submitted that though a number of charge-sheet witnesses are mentioned in the charge-sheet, but it is open to prosecution to examine the witnesses as per its wisdom. Non-examination of all the charge-sheet witnesses will not cause prejudice to the appellant, as during lapse of time, some of the charge-sheet witnesses have turned hostile during trial and as such, they have not been examined on behalf of the prosecution. Non-examination of all the charge-sheet witnesses will not cause prejudice to the appellant, as during lapse of time, some of the charge-sheet witnesses have turned hostile during trial and as such, they have not been examined on behalf of the prosecution. Learned counsel for the State has further submitted that the prosecution has filed an application before the court below with respect to non-examination of these witnesses on 17.06.2002, as such, no serious prejudice has been caused to the appellant because of non-examination of some of the charge-sheet witnesses and that too when these charge-sheet witnesses have been examined on behalf of the defence subsequently and as such, no prejudice has been caused to the appellant. Learned counsel for the State has thus, submitted that considering the death of a young lady within seven years of her marriage, in abnormal circumstances, coupled with the fact that in the First Information Report and the evidence, there is ingredient with regard to demand of dowry, the conviction of the appellant is sustainable in the eyes of law and this Court may not interfere with the same, at this stage. 21. Heard, Mr. Rajesh Lala, assisted by Mr. Arpit Kumar, learned counsels appearing for the appellant and learned counsel for the State, Mr. Tapas Roy, learned Additional Public Prosecutor and perused the materials available on record including the First Information Report, framing of the charge, the evidence of all the five prosecution witnesses, four prosecution exhibits, and statement of accused under Section 313 Cr.P.C, evidence of six defence witnesses as well as impugned judgment of conviction and order of sentence. Before going into detail into the evidence of the case, this Court is taking judicial notice of the submission made by the learned counsel for the appellant with regard to the legal proposition as to whether a person can be convicted under Section 306 I.P.C., in the case where charge has been framed under Section 304 B I.P.C. and 3/4 of the D. P. Act or not? 22. 22. This Court has perused the provisions as contemplated under Sections 304 B, and 306 I.P.C. and Sections 113A and 113B of the Indian Evidence Act, 1872 and also perused the judgment cited by the learned counsel for the appellant as reported in (2014) 12 Supreme Court Cases 595, Mangat Ram (supra), wherein the Hon'ble Apex Court has categorically observed that in the aforesaid case also, the learned trial court has found that the offence under Section 304B I.P.C. is not made out against the accused, but convicted the accused/appellant under Section 306 I.P.C., even though no charge has been framed under Section 306 I.P.C. The scope and ambit of Section 306 I.P.C. has not been properly appreciated by the courts. Section 306 I.P.C. reads as abetment of suicide, if any person commit suicide, whoever abets commission of such suicide shall be punished with imprisonment either description for term which may extend to ten years and shall also be liable to fine. Abetment of suicide is confined to the case of the person who aid or abet commission of suicide in the matter of an offence under Section 306 I.P.C. and abetment must attract definition under Section 107 I.P.C. This Court is of the opinion that there is insufficient evidence to hold that the accused abetted his wife to commit suicide. There is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into a conspiracy to aid her in committing suicide. A word uttered in the fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation. 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, rather instigation must necessarily and specifically be suggestive of the consequence. A reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused 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. The present one is not a case where the accused 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. This Court has also taken judicial notice of the statement of the appellant recorded under Section 313 Cr.P.C., particularly the question No.9, which has been explained by the appellant as the reason for committing suicide. Section 113A of the Indian Evidence Act, 1872, is not automatically applied, if a married woman commits suicide within 7 years of her marriage. The presumption under Section 113A of the Indian Evidence Act would not automatically apply unless the prosecution is able to prove that such suicide had been abetted by her husband and presumption under Section 113A of the Indian Evidence Act, is discretionary. Bare reading of Section 113A of the Indian Evidence Act, 1872, shows that to attract provisions as contained under Section 113A of the Indian Evidence Act, there must be shown that :-(I) The woman has committed suicide (ii) Such suicide has been committed within seven years from the date of her marriage (iii) The husband or his relative 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. This expression “other circumstances of the case” used in Section 113A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebutable one. In spite of a presumption having been raised, the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. Learned counsel for the appellant has rightly submitted before this Court that the appellant was never charged under Section 306 I.P.C. rather the appellant has been charged under Section 304B I.P.C. and both the sections are not inter-related. Learned counsel for the appellant has rightly submitted before this Court that the appellant was never charged under Section 306 I.P.C. rather the appellant has been charged under Section 304B I.P.C. and both the sections are not inter-related. The learned trial court has not framed alternative charge under Section 304B, 302 and 306 I.P.C. and thus, came to a wrong finding Considering the provisions of Section 113B and 113A of the Indian Evidence Act, 1872, to be inter-linked, this Court is in full consonance with the learned counsel for the appellant and as such, the impugned judgment of conviction and order of sentence passed against the appellant under Section 306 I.P.C., when the appellant was charged under Section 304B I.P.C. along with 3/4 of the D.P. Act, but in both the sections, the appellant has been acquitted by the learned trial court, cannot sustain in the eyes of law. 23. Accordingly, the Judgment of conviction dated 06th February, 2004 and order of sentence, dated 07th February, 2004, passed by the learned Additional Sessions Judge-XI, Dhanbad in Sessions Trial No.91 of 2002, is hereby set aside. 24. The appellant, who is on bail, is discharged from the liability of the bail bonds. 25. Accordingly, the present Criminal Appeal stands allowed. 26. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.