ORDER : 1. This appeal has been preferred by the Appellants/accused under Section 374 (2) of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment of conviction and order of sentence dated 28/07/2004 passed in Sessions Trial No.31/2004, whereby the Second Additional Sessions Judge, Mahasamund has convicted them for the offences punishable under Sections 498-A and 306 IPC and sentenced them for the rigorous imprisonment for 03 years under Section 498-A IPC, while rigorous imprisonment for 07 years under Section 306 IPC, together with fine amount of Rs.500/- and Rs.1000/- respectively along with usual default clauses. 2. Briefly stated the case of the prosecution is that the Appellants have been charged with regard to the offences punishable under Sections 304-B IPC on account of death of one Menka, who was the wife of Appellant No.1- Jaswant Jangde and Daughter-in-law of Smt. Bisahin Bai, the Appellant No.2 herein. Her marriage was solemnized in the month of April, 2003 and while living with them at the village Khamharmuda has set her on fire in the night of 29/11/2003, owing to which, she sustained burn injuries and was brought to the Primary Health Center, Jhalap for treatment, but looking to her critical condition, she was referred to the Medical College at Raipur, where she breathed her last on 03/12/2003 at 05:00 PM. A written information about this fact was given by the wardboy of the concerned hospital to the Police Station Moudahapara, Raipur, based upon which, Merg was registered vide Ex.P-1 and inquest of the dead body was made on 04/12/2003 vide Ex.P-2 and thereafter, it was sent for autopsy, which was conducted by Dr. Ulhas Gonna Dey (PW/9), who opined the cause of death vide report Ex.P-8 to be the failure of Cardio-respiratory owing to burn injuries and its complications. Ulhas Gonna Dey (PW/9), who opined the cause of death vide report Ex.P-8 to be the failure of Cardio-respiratory owing to burn injuries and its complications. Since the death of the deceased was unnatural, offence punishable under Section 304-B IPC was, therefore, registered vide Ex.P-10 and during the course of investigation, a plastic jerrycan bag poured with half liter of Kerosene oil was seized from the spot vide Ex.P-5 and after recording the statements of prosecution witnesses, the charge sheet was submitted before the Court of Chief Judicial Magistrate, Mahasamund and the matter was, thereafter, committed vide order dated 12/01/2004 to the learned Sessions Judge for its trial, where the charge under Section 304-B IPC has been framed, which has been denied by the Appellants and claimed to be tried. 3. In order to bring home the guilt of the Appellants, the prosecution has examined 15 witnesses and produced 16 documents, while the Appellant Jaswant Jangde himself, one Phool Singh and Devnarayan were examined in rebuttal. 4. The trial Court, after considering the evidence led by the parties, arrived at a conclusion that no evidence is available on record, so as to hold that the deceased was subjected to cruelty soon before her death on account of demand of dowry. It held further that since the Appellants were not happy with the deceased as she had not come with sufficient means from her house and because of that, she was harassed and ill-treated by the Appellants which instigated her to commit suicide. In consequence, the Appellants have held guilty for the offence punishable under Sections 498-A and 306 IPC and have been sentenced as mentioned hereinabove. 5. Smt. Meena Shastri, learned Counsel appearing for the Appellants submits that the finding of the Court below holding that the Appellants were not happy with regard to insufficient means brought by the deceased and owing to which, she was harassed and maltreated by them, which compelled and instigated her to take such an extreme step, is apparently contrary to the materials available on record. It is contended further that after evaluating the evidence led by the prosecution, it was observed by the trial Court that no evidence is there on record to hold that the deceased was subjected to cruelty because of demand of dowry soon before her death, yet the Court below has erred in holding that she was harassed by them, which compelled her to commit suicide. Her further contention is that, disbelieving the suicidal note (Ex.P-4) made by the deceased revealing the fact that she herself was responsible for her own act, in which, the prosecution has placed its reliance, vitiates the entire findings and consequent upon the conviction of the Appellants. It is contended further that in absence of any cogent and reliable evidence placed on record that she was subjected to cruelty for taking such an extreme step and/or, the fulfillment of ingredients provided under Section 107 IPC, the conviction of the Appellants under Sections 498-A and 306 IPC ought not to have been made by the trial Court. In support, she placed her reliance upon the decisions rendered by the Supreme Court in the matter of Mangat Ram Vs. State of Haryana reported in (2014)12 SCC 595 and Gurjit Singh Vs. State of Punjab reported in (2020) 14 SCC 264 . 6. On the other hand, Shri Atanu Ghosh, learned Counsel appearing for the State/Respondent has supported the impugned judgment of conviction and order of sentence as passed by the Court below. 7. I have heard learned Counsel appearing for the parties and perused the entire records carefully. 8. Since the Appellants have been convicted for the offence punishable under Sections 498-A and 306 IPC, it is, therefore, necessary to examine both the provisions, which provides as under:- Section 498A. Husband or relative of husband of a woman subjecting her to cruelty--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Husband or relative of husband of a woman subjecting her to cruelty--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, "cruelty means"— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 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. 9. According to Section 498-A IPC, the basic ingredients are cruelty and harassment. The elements of cruelty so far as clause (a) is concerned, have been classified as under:- (i) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or (ii) Any wilful conduct which is likely to cause grave injury to the woman, or (iii) Any wilful act which is likely to cause danger to life, limb or health (whether mental or physical) of the woman. 10. The definition of cruelty contained in explanation consists in two parts. Clause (a) relates to wilful conduct which is of such a nature to drive the woman to commit suicide, as observed herein above. The second part which contains in clause (b) relates to harassment of woman with a view to coercing her to meet any unlawful demand for property etc.. Clause (a) relates to wilful conduct which is of such a nature to drive the woman to commit suicide, as observed herein above. The second part which contains in clause (b) relates to harassment of woman with a view to coercing her to meet any unlawful demand for property etc.. Therefore, in order to bring home the guilt of the Appellants, it is necessary for the prosecution to establish the fact that the deceased was subjected to cruelty as provided under the explanation to the said provision and it would not be enough to show that the conduct of the Appellants was wilful, but it has to be established further the degree or intensity of such conduct which is likely to drive the deceased to commit suicide. In other words, it would not be sufficient enough to say that the deceased was subjected to torture and cruelty on account of demand of dowry. 11. While keeping the ingredients provided under Section 498-A IPC, as observed herein above, it is necessary to examine the evidence led by the prosecution. 12. Smt. Sheela Bai (PW/2) is the mother of the deceased and it was stated that her daughter informed her regarding ill-treatment and harassment which was meted out by her husband and mother-in-law and, deposed further that her eardrum was ruptured owing to the assault made by her husband and treatment of her daughter was made at Village Jhalap. According to her testimony, she was burnt by them and even the information was not provided and subsequently, she came to know about the facts from one person of the village. In her cross-examination, it was stated that in-laws of her daughter have never demanded anything from her, but her daughter used to take material from the house, because of the demand made by her in-laws. It is deposed further that her son-in-law had told that they will keep her daughter only when she respect and obeys his mother and in the meeting convened in the village, she (deceased) was advised to obey and act according to her mother-in-law and live with them cordially. She stated further that an altercation used to take place, because her mother-in-law used to quarrel with her daughter. 13. She stated further that an altercation used to take place, because her mother-in-law used to quarrel with her daughter. 13. Paras Jogi (PW/3) is the brother of the deceased and according to him, his sister was being ill-treated and harassed by her in-laws on account of demand of dowry and his sister used to said that her in-laws were torturing because of not giving dowry and her mother-in-law (Bisahin Bai) once had thrown kerosene oil upon her. It is stated further that whenever his sister comes from her in-laws house, she always used to say that her husband is assaulting her on account of demand of dowry. He deposed further that his aunt Shanti Bai met with his sister when she was in the hospital and informed that her husband and mother-in-law had thrown kerosene oil upon her. He stated further that his sister of her own has poured kerosene oil and set herself on fire and her husband has thrown water on her upon seeing as such and took her to the hospital at Jhalap for her treatment. In his cross-examination, it was stated that nothing was demanded by her in-laws at the time of her marriage nor they had given anything after the marriage, though her in-laws had demanded Rs.30,000/- from the deceased. He deposed further that his sister had slapped his nephew (Brother-Bhuneshwar’s son) when she came at the time of Diwali festival, for which, the quarrel took place between them i.e. Bhuneshwar and Menka. 14. Bhuneshwar Jogi (PW/4), another brother of the deceased Menka has stated in his evidence that his aunt Smt. Shanti Bai, who met her sister (deceased) in the hospital and said that his sister informed her that all these had happened only because of her mother-in-law. His version is, thus, appears to have been deviated from his brother Paras Jogi’s (PW/3) statement in this regard. In his cross-examination, it was stated that one month after the solemnization of marriage, in-laws of his sister started harassing her on account of demand of dowry. He deposed further that he had visited twice her in-laws house in order to console and pacify her and his mother also told her to obey her mother-in-law and live cordially with them. In his cross-examination, it was stated that one month after the solemnization of marriage, in-laws of his sister started harassing her on account of demand of dowry. He deposed further that he had visited twice her in-laws house in order to console and pacify her and his mother also told her to obey her mother-in-law and live cordially with them. It was stated further that his son was slapped by his sister when she came at the time of Diwali festival, but has denied the fact that because of such incident, quarrel had taken place with her. 15. Roman Lal Kurrey (PW/5), is an agriculturist, has stated in the same lines that when Menka returned to her parental house, it was informed that her husband and mother-in-law used to assault her and her mother-in-law had poured kerosene oil upon her. In his cross-examination, it was stated that he console and pacify her and said not to quarrel with her in-laws. It is stated further that the deceased Menka told that her in-laws had demanded Rs.30,000/-. 16. Dukalu Ram (PW/1), is an agriculturist and according to him, the mother of the deceased informed him that her daughter was maltreated and harassed by her in-laws on account of insufficient means of dowry, when he asked her about seeing her daughter crying. 17. Dr. Vipin Kumar Rai (PW/6), who examined primarily the deceased, stated that when he asked about her burning, it was replied that she herself is committing suicide and no one is responsible for it. It is deposed further that he recorded her said version in original record of U.P.D., marked as Ex.P-4, i.e. the suicidal note in presence of two witnesses and had taken her thumb impression on it and, since her condition was critical, therefore, he referred her to the Govt. Hospital at Raipur. The statement of this witness is corroborated by Dilip Singh Jangde (PW/7), who was the witness of seizure memo (Ex.P-5), spot map (Ex.P-6) and Nazri Naksha (Ex.P-7), stated that the deceased said that she herself has set on fire by pouring kerosene oil and thereafter she was referred to the Govt. Hospital at Raipur for treatment. In his cross-examination, it was stated that the deceased was never subjected to cruelty on account of demand of dowry. 18. Hospital at Raipur for treatment. In his cross-examination, it was stated that the deceased was never subjected to cruelty on account of demand of dowry. 18. Smt. Shanti Bai (PW/11), who is the aunt of the deceased and according to her, she was informed by the deceased when she met her in the hospital that her husband and mother-in-law tortured her and poured kerosene oil on her at the relevant point of time and she was carrying pregnancy of 05 months. It was, however, admitted in her cross-examination that this version of her was not made in the case diary statement (Ex/D-3). There is, thus, material contradictions in her statement as well. 19. Dr. Ulhas Gonna Dey (PW/9), who conducted the autopsy of the dead body of the deceased, opined that the death has occurred due to burn injuries and because of its complications. 20. According to the statement of Investigating Officer (PW-10) and Bhuneshwar Jogi (PW-4), Smt. Sheela Bai, (PW-2), the deceased’s mother has not stated that the deceased’s mother-in-law has poured kerosene oil upon her. 21. Jaswant Kumar Jangde, (DW-1), the Appellant No.1, appeared in the witness box and stated that prior to the alleged incident, his wife had gone to her parental house, where quarrel took place with her brother-Bhuneshwar and owing to which, she was intensed when she returned and because of that, she committed suicide while pouring kerosene oil on herself and, stated further that when he has seen her burning, he tried to save her and owing to which, his hands are also burnt and was treated by the doctor. It is stated further that he brought her to the hospital for treatment, where he gave his blood to her and deposed further that during the course of her treatment, she stated to the doctor that she herself has committed suicide. In the cross-examination, it was stated that he woke up upon hearing the noise of his wife and has seen her burning in verandah, when a suggestion was put to him. It was denied specifically by him that she committed suicide because of illtreatment and harassment given by him and his mother on account of demand of dowry. 22. From perusal of the evidence led by the prosecution witnesses, it appears that only a bald statement was made by them with regard to the alleged demand of dowry. It was denied specifically by him that she committed suicide because of illtreatment and harassment given by him and his mother on account of demand of dowry. 22. From perusal of the evidence led by the prosecution witnesses, it appears that only a bald statement was made by them with regard to the alleged demand of dowry. They, however, have failed to state that owing to the alleged demand of dowry, she was forced to take such an extreme step to end her life. Contrarily, it appears from their testimonies that when her husband had seen her burning, he tried to save her and his hands were also burnt as evidenced from the evidence, although no definite opinion was found in this regard vide MLC Report, dated 16.12.2003 (Ex.P-11). Suicidal note (Ex.P-4), in which, the prosecution has placed its reliance and which was duly proved by Dr. Vipin Kumar Rai (PW-6), who primarily examined the deceased-Menka, reveals the fact that the deceased herself has poured kerosene oil on her and none was responsible for the alleged act. In such circumstances, it cannot be said that the act of the Appellants was as such which instigated or compelled her to commit suicide. The findings of the Court below convicting the Appellants under Section 498-A IPC is, therefore, liable to be and is hereby set aside. 23. Now, in so far as conviction of the Appellants under Section 306 IPC is concerned, I do not find any evidence led by the prosecution that the Appellants at any point of time had abated or instigated the deceased-Menka to commit suicide. It is to be seen that before holding the Appellants guilty for the offence under Section 306 IPC, ingredients required under Section 107 IPC are to be fulfilled by the prosecution, which is, however, completely missing in the instant matter and the trial Court even without assigning reasons, nor by taking notes of the ingredients provided under Section 107 IPC, have held the Appellants guilty under the said provision in a very casual manner. 24. It is now to be seen at this juncture the principles laid down by the Supreme Court in the matter of Mangat Ram (Supra), wherein the wife of the appellant has died within few months of her marriage. 24. It is now to be seen at this juncture the principles laid down by the Supreme Court in the matter of Mangat Ram (Supra), wherein the wife of the appellant has died within few months of her marriage. In the said matter, while taking note of the ingredients provided under Section 107 IPC and the presumptions arises under Section 113-A of the Indian Evidence Act, 1872, it has been held at paragraphs 28 to 31, as under:- 28. ………………………………………….. “Abetment of suicide is confused 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 an 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 113-A of the Evidence Act could be raised. Section 113-A of the Evidence Act reads as follows: “113-A. Presumption as to abetment of suicide by a married woman.--- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.” 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 , 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. 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.” 25. 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.” 25. In the instant matter, the trial Court has convicted the Appellants under Section 498-A and 306 IPC, therefore, the question would arise for determination as to whether, when the prosecution establishes cruelty as defined under the explanation to Section 498-A IPC and also establishes the fact that the deceased committed suicide within 7 years of marriage, could the accused be held liable for the offence punishable under Section 306 IPC with the aid of Section 113-A of the Indian Evidence Act. The said question has been considered by the Supreme Court in the matter of Ramesh Kumar Vs. State of Chhattisgarh, reported in (2001) 09 SCC 618, wherein it was held at para 12 as under:- 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 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 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. 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. 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 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.” 26. It is to be seen further that the charges so framed in the matter are, however, does not state that the deceased was driven to commit suicide on account of the harassment meted out to her. Therefore, the conviction of the Appellants cannot be made under Section 306 IPC in the light of the principles laid down by the Supreme Court in the matter of Gurjit Singh (Supra), wherein, under the similar circumstances, when the charge was not specifically made to the effect that the deceased was driven to commit suicide on account of harassment meted out to her, it was held at paragraphs 37 and 38 as under:- 37. “Another aspect that needs consideration is that the cases wherein this Court has held that the conviction under Section 306 IPC was tenable though charge was only under Section 304- B IPC, it was found the charge specifically stated that the deceased was driven to commit suicide on account of cruelty meted out to the deceased. However, in the present case, the charge reads thus: “That you all on 28.9.1994 in the area of Village Bohan, the death of Jaswinder Kaur wife of you, Gurjit Singh and daughter-in-law of you, Gurdial Singh and Mohinder Kaur and sister-in-law of Ranjit Kaur, was caused otherwise than under normal circumstances, you all being her relatives, within a period of seven years of her marriage subjected her to cruelty and harassment for all in connection with demand for dowry and thereby committed an offence of dowry death punishable under Section 304-B of the Penal Code, and within my cognizance.” 38. It would thus be seen, that the charge does not state that the deceased was driven to commit suicide on account of the harassment meted out to the deceased. It also does not mention that the accused had abetted in commission of suicide by the deceased. In that view of the matter, we are of the considered view that the cases wherein conversion is held to be permissible are clearly distinguishable.” 27. In the instant matter, neither the charge was specifically framed under Section 306 IPC nor the evidence has been led by the prosecution, so as to hold that the deceased was abated by the Appellants to commit suicide. The conviction of the Appellants under Section 306 IPC, therefore, cannot be held to be sustainable in the eye of law. 28. Consequently, the appeal is allowed and the impugned judgment of conviction and order of sentence passed by learned Second Additional Sessions Judge, Mahasamund (C.G.) in Sessions Trial No.31/2004 is hereby set aside. As the Appellants were already on bail, their bail bonds and surety bonds stand discharged. A copy of this order be sent to the learned trial Court for necessary compliance.