JUDGMENT : T h e present appeal is filed against the judgment of conviction and sentence dated 10.12.1999, passed by 2nd Additional Sessions Judge, Barwani, in Sessions Trial No.74/1999, whereby, the appellant has been convicted under sections 306 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced to undergo 10 years RI with fine of Rs.3,000/- respectively with default stipulations by acquitting the co-accused Heeralal, Dilip and Vinayak from the charges under Section 306/34 of IPC. 2. Brief facts of the case are that on 09.12.1998 the deceased Surekha committed suicide by pouring kerosene oil on herself and setting her ablaze on fire due to the mental and physical harassment committed by the appellant alongwith other co-accused Heeralal, Dilip and Vinayak on the pretext of demand of dowry. Thereafter, she was taken to the M.Y. Hospital, Indore for treatment, but on 11.12.1998, she died. On the information, a Merg intimation was registered by the Police. Thereafter, the police during investigation found that the deceased has committed suicide due to demand of dowry. They were harassing her and tortured physically and mentally due to which she committed suicide. Initially, the offence under Section 498-A of IPC against the appellant and co-accused was registered and after death of deceased offence was aggravated to Section 306 of IPC. 3. During the investigation, spot map was prepared. Seized articles were sent to Forensic Laboratory and after recording of statements of witnesses under Section 161 of Cr.P.C., the police has filed the charge-sheet against the accused persons under Section 306/34 of IPC before the Chief Judicial Magistrate and the matter was committed to the Court of Sessions. Thereafter, accused persons were charged for offence under Section Section 306/34 of IPC instead of under Section 498-A of IPC. They abjured their guilt and took a plea that they had been falsely implicated in the present crime and prayed for trial. 4. In support of the case, the prosecution has examined as many as 10 witnesses namely Madhusudan (PW-1), Rakesh Jaat (PW-2), Dr. Rakesh Jain (PW-3), Saheb Singh (PW-4), Ramesh Chandra (PW-5), Rangrao (PW-6), Anant (PW-7), Chatar Singh Damad (PW-8), Dr. H.S. Bhatia (PW-9) Trilok (PW-10), Soram Kishore (PW-11), Ravi (PW-12), Ramnivas Tiwari (PW-13), Manorama Kosthi (PW-14), Samauddin (PW-15), Ahibaran Singh (PW-16), Mumtaj (PW-17), Surendra Dube (PW-18), Dr. P.C. Jain (PW-19) & Krishnapal Prasad Pal (PW-20). Rakesh Jain (PW-3), Saheb Singh (PW-4), Ramesh Chandra (PW-5), Rangrao (PW-6), Anant (PW-7), Chatar Singh Damad (PW-8), Dr. H.S. Bhatia (PW-9) Trilok (PW-10), Soram Kishore (PW-11), Ravi (PW-12), Ramnivas Tiwari (PW-13), Manorama Kosthi (PW-14), Samauddin (PW-15), Ahibaran Singh (PW-16), Mumtaj (PW-17), Surendra Dube (PW-18), Dr. P.C. Jain (PW-19) & Krishnapal Prasad Pal (PW-20). No witness has been adduced by the appellant in her defence. 5. Learned trial Court, on appreciation of the evidence and argument adduced by the parties, pronounced the impugned judgment on 10.12.1999 and finally concluded the case and convicted the appellant for commission of the said offence under the provisions of Section 306 of IPC acquitting the other co-accused persons. 6. Impugning the findings of conviction and sentence, learned counsel for the appellant submits that there are only omnibus allegations of demand of dowry against the appellant alongwith co-accused persons and there is nothing on record to connect the appellant with the offence. It is further submitted that the appellant is a lady and mother-in-law of the deceased. The learned trial Court has committed grave error of law and facts in considering the fact that the appellant and deceased were living with each other. It is further submitted that the learned trial Court while considering the evidence has committed error in not considering that if there was demand of dowry and cruelty, the deceased would have raised the alarm to anyone, but she has not lodged any complaint against any person of the family. The appellant was convicted solely on the basis of omnibus allegations leveled against the appellant learned trial Court has not found the charges proved under Section 306 of IPC against other co-accused persons and they have been acquitted by the learned trial Court from the aforesaid charges. 7. Further, counsel for the appellant submits that most of the witnesses namely are the relatives witnesses of the deceased, therefore, their statements recorded by the learned trial Court are usually against the appellants and there is no independent witness in the present case. Hence, they cannot be relied upon. Therefore, it is prayed that even if the case of the prosecution is accepted at its face value, the offence shall not travel more than the offence under Section 498-A of IPC. 8. Hence, they cannot be relied upon. Therefore, it is prayed that even if the case of the prosecution is accepted at its face value, the offence shall not travel more than the offence under Section 498-A of IPC. 8. Alternatively, learned counsel for the appellant has also expostulated on the point of sentence and prays that since the appellant has already undergone approximately one year in jail incarceration out of the 10 years and looking to the fact that co-appellants have already been acquitted by the learned trial Court on the same set of allegations, the sentence of the appellant may be reduced to the period already undergone. It is further submitted that the appellant deserves some leniency as the appellant already suffered the ordeal of the trial since 1998 i.e. for a period of 26 years. It is further submitted that this appeal be partly allowed and the sentence awarded to the appellant be reduced to the period already undergone. 9. Learned counsel for the State on the other hand supports the impugned judgment and prays for dismissal of this appeal. It is further submitted that the learned trial Court has passed the impugned judgement after considering each and every circumstance of the case and convicted the appellant rightly. It is further submitted that the deceased has committed suicide due to demand of dowry and harassment caused by the appellant. However, he has not denied the factum of acquittal of the other co-accused persons namely Heeralal, Dilip and Vinayak. 10. In view of the aforesaid contentions and arguments advanced by counsel for both parties, the question for determination in this appeal is as to whether the findings of the learned trial Court regarding conviction as well as punishment of appellant under Section 306 of IPC is correct in the eyes of law and facts. 11. On this aspect, the prosecution case mainly relied upon the statements of Shahebsingh (PW-3), father of the deceased Ramesh (PW-5), Rangrao (PW-6), neighbour of Sahebsingh, Anant (PW-7). In addition to that the prosecution has also relied upon the dying declaration of the deceased which has been recorded before the Executive Magistrate, District Khargone. As per available record, it is undisputed fact that the deceased Surekha was daughter-in-law of the appellant, she was married to Dilip, son of appellant in the year 1996. In addition to that the prosecution has also relied upon the dying declaration of the deceased which has been recorded before the Executive Magistrate, District Khargone. As per available record, it is undisputed fact that the deceased Surekha was daughter-in-law of the appellant, she was married to Dilip, son of appellant in the year 1996. The said incident happened on 09.12.1998 and as a result thereof, the deceased expired on 11.12.1998. It is also undisputed fact that initially, she was treated by Dr. Rajesh Jain and thereafter, she was hospitalized in Badwani. Dr. Rajesh Jain has specifically stated that on 09.12.1998, the husband of deceased Dilip got the deceased Surekha for treatment and her condition was not good and smell of kerosene oil was coming from her body. As per statement of Dr. Rajesh Jain and his MLC Report, the burn of deceased Surekha was 100% superficial and deep. As per statements of other witnesses, it is clearly established that the deceased committed suicide by pouring kerosene oil on her body. On that basis, the appellant alongwith other co-accused persons are made liable to abate the deceased for committing suicide. 12. On this point, the statement of Shaheb Singh is also significant, wherein he clearly stated that the deceased Surekha came after marriage to his house, she narrates that her mother-in-law, father-in-law and Vinayak used to torture her by demanding money of Rs.20,000/- for the business of Dilip the husband of the deceased. She has also stated that her mother-in-law/appellant comparatively tortured her excessively and did not give her food. The mother-in-law and father-in-law used to beat her. Ramesh Chandra (PW-5), uncle of the deceased, Rangrao (PW-6) and Anant (PW-7) have also deposed similar statements in their examination-in-chief. Other witnesses Trilok and Kishore have also been produced by prosecution in support of their case but they have not supported the prosecution case and have been declared hostile. 13. The statements of these witnesses have not been remained intact in their cross-examination. However, in this case, a dying declaration was also recorded by Executive Magistrate Tehsildar, Smt. Manorama Kosthi (PW-14). Virtually, the dying declaration (exhibit-P/4), is a relevant piece of evidence on which the appellant was convicted and other co-accused persons have been acquitted by the learned trial Court. 14. However, in this case, a dying declaration was also recorded by Executive Magistrate Tehsildar, Smt. Manorama Kosthi (PW-14). Virtually, the dying declaration (exhibit-P/4), is a relevant piece of evidence on which the appellant was convicted and other co-accused persons have been acquitted by the learned trial Court. 14. I have gone through the dying declaration wherein on answer of first question, the deceased stated that her mother-in-law used to beat her excessively and she was also embarrassed by her father-in-law due to which, she set her ablaze by pouring kerosene oil. With regard to her father-in-law and husband, she stated that they did not harass her, although, her father-in-law scolded her. 15. I have gone through the whole dying declaration but nothing has been mentioned regarding abetment. Now, the question is as to whether on such type of dying declaration, the appellant can be ascertained as a main abettor for committing suicide. 16. Learned Government Advocate for the State has submitted that as per Section 113A of Indian Evidence Act, when a woman had committed suicide, the Court may presume having regard to all other circumstances of the case 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 relatives of her husband had subjected her to cruelty, the Court 'may presume'. Here, the word is used 'may presume'. As per section 4 of the Indian Evidence Act, 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, where all other co-accused including husband of the deceased have been acquitted by the learned trial Court, the Court is required to call the proofs for presuming the fact that appellant/mother-in-law of the deceased had abetted the deceased to commit suicide. 17. From the face of record, it is crystal clear that the deceased has committed suicide within seven years of her marriage. As per the prosecution story, the demand for dowry has not been found proved by learned trial Court. 18. So far as the presumption regarding abatement is concerned, the law laid down by Hon'ble Apex Court in the case of Hansraj Vs. State of Haryana (2004) 12 SCC 257 is worth referring here :- "13. As per the prosecution story, the demand for dowry has not been found proved by learned trial Court. 18. So far as the presumption regarding abatement is concerned, the law laid down by Hon'ble Apex Court in the case of Hansraj Vs. State of Haryana (2004) 12 SCC 257 is worth referring here :- "13. 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". 14. 14. 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 113-A 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." 19. On this aspect, a recent decision of Hon'ble Apex Court rendered in Kashibai and Ors. Vs. State of Karnataka reported in 2023 LawSuit (SC) 840 relying upon the another judgments by Hon'ble Apex Court passed in the case of Mangatram Vs. State of Haryana reported in (2014) 12 SCC 595 and Hansraj (supra) viewed as under :- "15. In Mangat Ram Vs. State of Haryana, this Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under: - “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 113-A of the Evidence Act would not automatically apply. 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 113-A 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 would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A 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 : 2004 SCC (Cri) 217], wherein this Court has examined the scope of Section 113-A of the Evidence Act and Sections 306, 107, 498-A, etc. and held that, unlike Section 113-B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113-A of the Evidence Act. This Court held that, under Section 113-A 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. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113-A, 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.” 2 (2014) 12 SCC 595 16. So far as the evidence adduced by the prosecution in the instant case is concerned, in our opinion the prosecution had failed to adduce any clinching evidence to enable the Court to conclude that the appellants- accused had abetted the deceased to commit suicide. In absence of any satisfactory evidence having been brought on record, in our opinion both the Courts below had committed grave error in holding the appellants guilty of the offence under Section 306 of IPC. 17. In that view of the matter while upholding the conviction of the appellants under Section 498A, we acquit the appellants from the charges levelled against them under Section 306 of IPC by giving them benefit of doubt. Since the appellants have already undergone the imprisonment for a period of two years for the offence under Section 498A read with Section 34 of IPC, as directed by the courts below, it is hereby directed to set free the appellants forthwith." 20. In view of the aforesaid settled principles laid down by Hon'ble Apex Court, it is crystal clear that even that the deceased was a lady, committed suicide within a period of seven years from the date of her marriage and her husband or such relatives of her husband had subjected her to cruelty, the Court is not bound to presume that suicide has been abetted by her husband and such relatives of her husband. Virtually, Section 113A of Indian Evidence Act, gives wide discretion to the Court to raise such type of presumption with regard to other all such circumstances of the case. 21. In the case at hand, having gone through the whole dying declaration, some facts came that mother-in-law of deceased has subjected her to cruelty but she never stated anything regarding abetment for committing her suicide. She never said that the deceased does not deserve to be alive or she should die. 21. In the case at hand, having gone through the whole dying declaration, some facts came that mother-in-law of deceased has subjected her to cruelty but she never stated anything regarding abetment for committing her suicide. She never said that the deceased does not deserve to be alive or she should die. In this case, husband of deceased himself has taken her to the hospital and he alongwith his parents had tried to save her life. Hence, only on the basis of presumption under Section 113A of the Indian Evidence Act, the appellant cannot be convicted for the offence under Section 306 of IPC. Certainly, since she has committed cruelty with the deceased, she is liable to be convicted under Section 498A of IPC. Here, it is pertinent to mention that there is no charge framed against the appellant under Section 498A of IPC but in view of settled legal position, the appellant may be convicted for the offence under Section 498A of IPC without framing charge. 22. In this regard, another judgment in M. Shrinivasulu Vs. State of Andhra Pradesh reported in (2007) 12 SCC 443 , wherein Hon'ble Apex ordained as under :- "a person charged and acquitted under Section 304B of IPC can be convicted under Section 498A without that charge being there, if such a case is made out" 23. Hence, even the charge has not been framed for the offence punishable under Section 498A of IPC, if the offence is made out against the appellant, she may be convicted under Section 498A of IPC instead of Section 306 of IPC. 24. Learned counsel for the petitioner has also contended that all witnesses are relatives and no independent witness has been produced in support of prosecution case, hence, on the basis of statements of relatives of the deceased, the appellant cannot be convicted. 25. Here, it is worth to refer that the said incident of appellant was happened in boundary of house/close premises, hence, no independent person is expected to support the prosecution case. That apart, it is well recognized time honoured principle that now independent person does not want to indulge themselves in others' matters 26. So far as the relatives of deceased is concerned, certainly, the case is supported by relatives of deceased but only on account of that, the appellant has not been convicted. That apart, it is well recognized time honoured principle that now independent person does not want to indulge themselves in others' matters 26. So far as the relatives of deceased is concerned, certainly, the case is supported by relatives of deceased but only on account of that, the appellant has not been convicted. There is specific dying declaration in this regard, placed by the prosecution. The said dying declaration is intact and has not been controverted by the prosecution. It is pertinent to mention here that while deposing dying declaration, the deceased has not alleged relatives and other members of the family. She has alleged against only her mother-in-law which fortify the sanctity of her dying declaration. That apart, there is sufficient material to support the said cruelty against the deceased under Section 498A of IPC in which, she can be convicted for the offence under Section 498A of IPC. 27. So far as the arguments regarding non-availability of independent witnesses is concerned, it is well settled that no criminal case can be overboarded due to non-availability of independent prosecution witnesses. In this regard, the following verdict of landmark judgment of the Hon'ble Apex Court rendered in the case of Appa Bhai vs. State of Gujarat AIR 1988 SC 696 is worth referring here as under: "10.......Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused......" 28. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused......" 28. In upshot of the aforesaid discussion, in entirety and analysis of the aforesaid legal position, this Court is satisfied that although the prosecution has miserably failed to establish the offence under Section 306 of IPC, yet the evidence available on record, graphically justifies that the appellant can be safely convicted for the offence punishable under Section 498A of IPC for committing cruelty with her daughter-in-law/deceased. Hence, the appeal is liable to be partly allowed to the extent to set aside the conviction and sentence passed against the appellant under Section 306 of IPC and instead of that she can be convicted for the offence punishable under Section 498A of IPC. 29. Accordingly, this criminal appeal is partly allowed and appellant is convicted under Section 498A of IPC. Now, coming to the part of sentence, certainly due to cruelty, the deceased committed suicide but looking to the fact that in this case, the appellant was in custody from 10.02.1999 to 10.12.1999 (304 days) and suffered ordeal of the trial since 1998 and also completed incarceration period more than 10 months. The age of the appellant is more than 70 years. Therefore, she may be sentenced for the period already undergone. At this stage, while the appellant has completed the age of 70 years, it does not seem to be proper to send her into jail for further period of sentence. Hence, under the facts and circumstances of the case, she is convicted only for the offence punishable under Section 498A of IPC with fine of Rs.10,000/- to be paid by the appellant within a period of one month. which may be recovered within a period of 2 months. 30. The fine amount, if already deposited, shall be adjusted subject to deposit of fine amount within aforesaid period, the bail bond of the appellant shall be discharged after depositing of the fine amount. If the appellant fails to deposit the fine amount as stipulated above, she will suffer 1 month of simple imprisonment in default. 31. 30. The fine amount, if already deposited, shall be adjusted subject to deposit of fine amount within aforesaid period, the bail bond of the appellant shall be discharged after depositing of the fine amount. If the appellant fails to deposit the fine amount as stipulated above, she will suffer 1 month of simple imprisonment in default. 31. The order of learned trial Court regarding disposal of the seized property stands confirmed. 32. A copy of this order be sent to the concerned trial Court for necessary compliance. 33. Pending application, if any, stands closed. Certified copy, as per rules.