Holding

The Court upheld the convictions, finding that the prosecution established cruelty and abetment of suicide, and that the presumption under Section 113A applied, so the appeal is dismissed.

Summary

The Supreme Court examined the death of Bakulbala, a married woman found dead at her matrimonial home, and the convictions of her father‑in‑law (Ananda Mohan Sen) and husband (Gouranga Mohan) under Sections 498A and 306 of the IPC. The prosecution proved that she had been subjected to repeated physical and mental cruelty by multiple family members, leading to an unnatural death that was not accidental. The Court held that the presumption of cruelty under Section 113A of the Evidence Act was attracted, shifting the burden of proof to the accused, which they failed to discharge. It rejected the appellants' arguments that the case was merely a domestic dispute or a suicide, emphasizing that the totality of evidence indicated abetment of suicide. Consequently, the convictions were upheld and the appeal dismissed.

Issues considered

The prosecution must establish cruelty under Section 498A IPC.
Whether the elements of Section 306 IPC (abetment of suicide) are proved.
Whether Section 113A of the Indian Evidence Act creates a presumption of cruelty against the accused.
Whether the death was suicide, homicide, or accidental and the impact on liability.
Whether the High Court erred in its findings regarding the lack of poison detection and the burden of proof.

Legislation cited

Indian Evidence Act, 1872s. 113A
Indian Penal Code, 1860s. 306, s. 498A

Subjects

crueltydowry deathabetment of suicideSection 498ASection 306presumptionIndian Evidence Actunnatural death

Judgment

A ANANDA MOHAN SEN AND ANR.
-
v.
STA TE OF WEST BENGAL

MAY 16, 2007

B (S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Penal Code, /860-ss.498A and 306-Unnatural death of married
lady at her matrimonial home-Immediately after the occurrence, accused-
husband and father-in-law fled away---Conviction of husband and father-in-
>-
--
c law by Courts belov.~Justification of-Held, justified-Specific allegation
that deceased was subjected to cruelty-Systematic torture evident-
Presumption against accused under s. I I 3A of the Evidence Act-Prosecution
established ingredients of offences falling both under ss. 498A and 306-
Burden shifted on the accused which they failed to discharge-Evidence Act,
D 1872-s. I /3A.

The daughter-in-law of Appellant No.l was found dead at her matrimonial
home. Appell:rnt No.2 is the husband of deceased. Immediately after the 'T
~
occurrence, all the inmates of the house including the accused-Appellants
fled away from the house. A First Information Report was lodged on the very
E day of incident alleging that the deceased committed suicide being unable to
bear physical and mental torture upon her by the accused-Appellants. Trial
Court convicted the Appellants under ss.498A and 306 IPC. High Court upheld
the conviction. Hence the present appeal.

Dismissing the appeal, the Court
F
HELD: 1.1. It may be that there are certain contradictions and omissions r
but in a case of this nature the conclusion must be drawn from the totality of
the circumstances. Deceased admittedly died an unnatural death. The
prosecution evidences brought on records clearly suggest that she had been
subjected to cruelty both physical and mental. Existence of discord between
G
the parties in regard to torture at least at one point of time is not in dispute.
She had been driven out of her house. She had to come back to her parents
house again and again. Her husband did not even make any enquiry about ..,.- ....
her, when she was staying with her parents. A settlement had been arrived at

H 1088
ANANDA MOHAN SEN v. ST ATE OF WEST BENGAL I089
wherefor intervention of the members of the panchayat had been sought for. A
Only upon the said settlement, the deceased came back to her matrimonial
home. Unnatural death of the deceased must be considered from that point of
view. [Para 25) (1097-F, G; 1098-AJ

1.2. The submission that the dispute was between deceased and her
mother-in-law which is an usual thing and other members of the family were B
not involved, does not appear to be correct. Deceased made allegations against
all the family members. There is absolutely no reason if allegations against
all the family members had not been made, why a settlement had to be arrived
at. Evidence of PW-9, a close friend of the deceased, in this regard is
significant. (Para 261 (1098-A, BJ C
2. Explanation appended to Section 4'18A defines cruelty in three parts.
Clause (a) of the said Explanation itself is in two parts. One is any wilful
conduct which is of such a nature as is likely to drive the woman to commit
suicide and the second part is to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman. It may be that death by D
itself may not lead to an inference that cruelty was meted out to the deceased,
but in this case there are specific allegations. The witnesses proved the same.
'-;" Ex.3-C, whereupon reliance has been placed by the Appellants, although no
allegation had been made against her husband, the deceased categorically
stated the type of torture which was being meted out to her. In Ex. 3, however,
she categorically stated that even the garments which had been presented by E
her parents were not liked by her husband and she had been abused and
insulted by her husband. In some of the letters, it appears that she expressed
her vent that she had thought of committing suicide but then consoled her
mother that she would not do so. The contents of those letters had not been
denied or disputed. Even in one of the letters Ex. A-1, she made allegations p
..., against her in laws during her stay at matrimonial home. Her mental condition
during the stay at her matrimonial home can be well-imagined. For
establishing a charge of cruelty, it is not necessary that the husband must
always stay in the matrimonial home. Systematic torture of the deceased is
evident in this case. (Para 27) (1098-C-G)
G
3. It is nobody's case that the death was an accidental one. In the First
Information Report, it was categorically stated that the deceased had
committed suicide. In the medical report, the exact cause of death could not
be stated, as the viscera preserved by the autopsy surgeon was to be sent to
the chemical expert. However, the viscera contained a whitish violate fluid with H
1090 SUPREME COURT REPORTS [2007] 6 S.C.R.

A a smell like that of kerosene. PW-11, the autopsy surgeon, was definitely of >-
the opinion that the death was due to the effect of poisoning, but he merely
stated that he would be able to hold conclusively as to the cause of the death
by poisoning only if he could find detection of poison in the viscera repo,rt.
His deposition if read as a whole would clearly go to show that he could not
B give definite opinion only in regard to the nature of poison. If an accidental
consumption of poison was required to be proved, the accused persons would
not have fled away from their house. Had it been a case of accident, they would
have at least made an attempt to take her to the hospital.
[Paras 30, 31and34( (1099-B-E; 1100-DI

C Taiyab Khan and Ors. v. State of Bihar (Now Jharkhand), (2005) 13
SCC 455; Harjit Singh v. State ofPunjab, (20061 I SCC 463 and Wazir Chand
and Anr. etc. v. State of Haryana etc., [1989) 1 SCC 244, referred to.

4.1. Involvement of all the accused persons to commit the offence must
be determined having regard to the entirety of the situation and the materials
D brought on records. Section 113-A of the Evidence Act raises a presumption
against the accused, subject of course to the following conditions: (a) That
the husband or any member of his family had subjected the married woman to
cruelty within the meaning of Section 498A IPC; (b) The presumption is not
mandatory; it is only permissive according to the facts and circumstances of
a given case and (c) A consideration of all the other circumstances of the
E case may strengthen the presumption or may cause the Court to abstain from
drawing the presumption. [Para 371 [1101-D, E, F)

4.2. Death took place on the verandah of the matrimonial house of
deceased. Ordinarily suicide would be committed at a secluded place and not
F in open place. It would not be committed before anybody and certainly not when
everybody in the house was present. In a case of this nature, Section 113-A of
Indian Evidence Act would be attracted. Appellants did not adduce any evidence.
All the inmates of the house were accused. All came within the purview of
Section 113-A of the Evidence Act. Onus shifted to them to show that the death
was accidental in nature. Those who were near the deceased at the relevant
G time should have shown as to how the accident took place. It is difficult to
believe that an educated woman would take poison accidentally.
(Para 38) (1101-F, G, H; 1102-AJ

P. Mani v. State of Tamil Nadu, [2006) 3 SCC 161, distinguished.

H 5. The case at hand indicates the participation of the accused
AN ANDA MOHAN SEN v. STATE OF WEST BENGAL [S.B. SINHA, J.] 1091

immediately before the commission of the crime. The prosecution having A
established the ingredients of offences falling both under Sections 498A and
306 of the IPC, the burden shifted on the accused which they failed to
discharge. (Para 40) (1102-F]

Randhir Singh v. State of Punjab, (2004) 13 SCC 129, referred to.
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 743 qf
2007.

From the Final Judgment and Order dated l 0.04.2006 of the High Court
. --< at Calcutta in Cr!. A. No. 351 of 2003.

Pradip K. Ghosh, Sr. Adv. Rauf Rahim and Md. Iqbal for the Appellants.
c
Avijit Bhattacharjee and Saumva Kundu for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted. D
INTRODUCTION

..,- 2. Appellants are before us being aggrieved by and dissatisfied with the
judgment of conviction and sentence dated 10.04.2006 passed by a Division
Bench of the Calcutta High Court in Criminal Appeal No. 351 of2003, affirming · E
a judgment of conviction and sentence passed by the learned Assistant
Sessions Judge, Burdwan in Sessions Case No. 218 of 1995 under Sections
498A and 306 of the Indian Penal Code (for short, '!PC'). The High Court,
however, modified the sentence in respect of charge under Section 306 IPC,
reducing it from five years to three years, so far as the first Appellant is
concerned. F
'-,, PROSECUTION CASE:

3. The prosecution case is as under :

Deceased Bakulbala was married to Appellant No.2 (Gouranga Mohan) G
in the year 1991. On 03.02.1994 at about 07.30 a.m. she was found dead at the
verandah of her matrimonial home. Immediately after the occurrence, all the
inmates of the house including the appellants fled away from the house. It
was locked. PW-I, Shyam Sundar Dey, father of the deceased received
information about the death of his daughter. He having reached the place of
H
1092 SUPREME COURT REPORTS [2007] 6 S.C.R.

A occurrence found the dead body of his daughter lying. A First Information
Report was lodged on the same day at about 2105 hrs. before the officer in
charge of Khandaghosh Police Station, alleging physical and mental torture
upon her by all the accused. PW-I opined that the deceased committed
suicide being unable to bear such torture.

B 4. The officer in charge of the police station upon receipt of the said
First Information Report arrived at the place of occurrence at about I0.30 p.m.
The inquest report of the dead body, however, was conducted on the next
day, which, inter alia, reads as under :

"On primary investigation it was found that the deceased was
c given in marriage to Shri Gounrana Mohan Sen, the eldest son of Sri
Ananda Mohan Sen of village Dubrajpur on 21st Magh 1397. Since
after her marriage husband, father-in-law, mother-in-law, brother-in-
law, Kartick Sen-all combined used to commit various physical and
mental torture on her in connection with household duties. Yesterday
D dated 03.02.1994 at about 7 a.m. husband, father-in-law, mother-in-law
and brother-in-law Kartick abused her again in connection with
household duties and asked deceased Baku! "can you not die by
taking poison? Go out of the house''. Being mentally shocked she
took poison named "sumidon" and as a result she died at 7.30 a.m.
Many persons know about the physical and mental torture committed
E to her.

For ascertaining the real cause of death the dead body is sent to
FSM Medical College, Burdawan through Shankar Das Bairagya,
Constable."

F EVIDENCE BEFORE THE COURT

5. The post-mortem examination was conducted at about 12.30 hrs. on
04.02.1994. Dr. S. Chakraborty (PW-I I), the autopsy surgeon, reserved his
opinion in regard to the cause of the death pending chemical examiner's
report. The condition of the heart and contents of the stomach, however, were
G noticed therein as under:
"Heart All the chamber full of blood and its
clots to pinpoint haemorrhage on its
surface.

H Stomach and its contents Non-congested contains 250 ml. of
ANANDA MOHAN SEN v. STA TE OF WEST BENGAL [S.B. SINHA, J.) 1093

whitish violate fluid with a smell like A
that of kerosene. "

6. The statements of Smt. Kanan Bala Dey (PW-5), mother of the
deceased, Haradha,,., Halder (PW-8), a neighbour and relative of PW-1 and
Himadri Sekhar Dey (PW-10), brother of the deceased, were recorded under
Section 161 of the Code of Criminal Procedure. The statements of Smt. Madhavi B
Halder (PW-6) and Smt. Bithika Paul (PW-9), aunt and friend respectively of
the deceased were recorded on 12.02.1994. Investigation was carried out in
a slip-shod manner. Viscera was also sent for chemical examination only on
14.03.1994. It is difficult to appreciate that the investigating officer took such
a long time in sending the article for chemical examination after such a long C
time.

7. Before the learned Trial Judge, 13 witnesses were examined on behalf
of the prosecution. Out of the said witnesses, Shib Shankar Ghosh (PW-2)
and Biswanath Mallick (PW-3), wh0 were the residents of the same village as
that of the accused, were declared hostile. Another co-villager of the appellants, D
Bhutnath Pal (PW-4) was only tendered for cross-examination. The investigation
was carried out principally by Sub Inspector S.D. Saha (PW-12). Charge-
sheet, however, was submitted by another Investigating Officer, namely, Sub
Inspector M.M. Das (PW-13). Dr. S. Chakraborty, who conducted the post-
mortem examination examined himself as PW-11.
E
8. Appellants herein along with Smt. Shakti Sundari Sen, mother-in-law
of the deceased and Nityananda Sen (brother-in-law of the deceased) were
charged for commission of the offence punishable under Sections 498A and
306 IPC. Smt. Shakti Sundari Sen died on 14. l 0.1998. Examination of the
witnesses before the learned Trial Judge also took a long time i.e. between F
09.07.2001and06.06.2003. The learned Trial Judge found the appellants guilty
of commission of the said offences and sentenced Appellant No. I to undergo
simple imprisonment for 2 years under Section 498A IPC and to pay a fine
of Rs. 1000/-; and to undergo simple imprisonment for 5 years under Section
306 IPC and to pay a fine of Rs. 2,000/-, in default of payment of fme to
undergo simple imprisonment for one and two months under Sections 498A G
and 306 IPC respectively; and sentenced Appellant No. 2 to undergo simple
imprisonment for 2 years under Section 498A and to pay a fine of
Rs.1,000/- and to undergo simple imprisonment for 8 years under Section 306
IPC and to pay a fine of Rs.2,000/-, in default of payment of fines to undergo
simple imprisonment for one and two months under Sections 498A and 306
H
1094 SUPREME COURT REPORTS [2007] 6 S.C.R.

A IPC respectively.
9. Appeal preferred by the appellants herein was dismissed by the High
Court by its impugned judgment dated 10.04.2006.

10. It is stated that Nityananda one of the convicted persons committed
B suicide 11.04.2006.

SUBMISSIONS

11. Mr. Pradip K. Ghosh, learned Senior Counsel appearing on behalf of
the appellants, in support of the appeal, submitted that the High Court
C committed a serious error in passing the impugned judgment of the conviction
and sentence insofar it failed to take into consideration that essentially it was
a typical case of a dispute between the mother-in-law and the daughter-in-
law. Gouranga (Appellant No.2 herein) was not residing at the village and in
that view of the matter his presence immediately before the occurrence has
not been proved. Involvement of Ananda Mohan Sen, Appellant No.I, (father-
D in-law), the learned counsel Senior Counsel contended, is also not beyond
reasonable doubt. In any event, it was not a case where the ingredients of
Section 306 IPC can be said to have been proved and for arriving at the said
conclusion, it was obligatory on the part of the High Court to conclusively
arrive at a finding that the deceased had committed suicide. A serious error
E has been committed by the High Court insofar as it had arrived at certain
contradictory or inconsistent findings which have vitiated the reasonings for
recording a judgment of conviction, namely :

(i) No poison was detected in the viscera;

(ii) There was a long time gap between sending viscera and
F examination;

(iii) A judicial notice can be taken of the fact that such long gap
between sending of the viscera and the examination thereof would
cause the poison to be degraded and decomposed, for which no
authority has been noticed.
G
(iv) The High Court committed an error in opining :

"Sitting in Appeal we are not supposed to count the errors and
take stock of the mistakes. It would serve no purpose and it would
be more appropriate to find out the remedy rather than to address us
H
ANANDA MOHAN SEN v. STATE OF WEST BENGAL [S.B. SINHA, J.) 1095
with the disease. A
xxx xxx xxx

Reticence on the part of the court, in our view, has not helped the matter
at all. As observed by us earlier, in a first appeal we would not be correct to
simply locate the fault lines and keep quiet, but it would be expected of us B
to salvage the ruins from the debris of a wanting situation and restore it to
its pristine value for giving a wholesome effect to the Criminal Justice System.

After all we have to achieve the truth and merely like a bad workman
.__, -{ not find fault with the tools of the decision making process."

12. A death whether homicidal or suicidal or accidental in nature would
c
be determinative of the nature of offence and, thus, the High Court was not
correct in relying upon the decision of this Court in Taiyab Khan and Ors.
v. State of Bihar (Now Jharkhand) [2005] 13 SCC 455 in arriving at the
conclusion that the result of the viscera examination would make no difference
to the fate of the case, as an offence uncer Section 3048 !PC was involved. D
13. Section l !3A of the Indian Evidence Act, 1872 will have no
application inasmuch as in order to invoke presumption arising thereunder, it
)'
• must be established as an issue of fact that the deceased had committed
suicide.
E
14. A distinction must also be borne in mind between the ingredients
of offences under Section 306 !PC and 3048 thereof.

15. There is no evidence to suggest, as was alleged by PW-I, that
8akulbala had been killed.
F
16. In absence of any evidence by the medical expert that the death was
y
homicidal, suicidal or accidental in nature, the conclusion of the High Court
that she had committed suicide was not proved.

17. In any view of the matter, there is nothing to show that the appellants
herein had incurred joint liability. Section I !3A of the Evidence Act in the G
facts and circumstances of the case would not be attracted so far as husband
of the deceased is concerned, as there is nothing to show that he had any
• -< role to play in regard to the alleged physical or mental torture of the deceased .
The evidence of PW-5 to the effect that he used to assault 8akulbala cannot
be believed, as no such statement has been made under Section 161 of the
H
r
1096 SUPREME COURT REPORTS [2007] 6 S.C.R.

A Code of Criminal Procedure. ~

18. Similarly, statement made by PW-10 to the said effect cannot be
~\
believed. The High Court furthermore failed to notice the letters wherein it
was stated: "Your son-in-law loves me and that is a big relief'. "Your son-
in-law lovingly states that he would be relieved", "There is no trouble from
B the side of your son-in-law" and Gauranga used to stay at Burdwan on week
days and used to return on week ends.

19. So far as Ananda Mohan Sen (Appellant No. I herein) is concerned,
even the High Court has observed that his role was diminutive. No specific r
instance of any act of cruelty has been mentioned by any of the witnesses
c against him. As a matter of fact he had all along been asking her to stay at
Burdwan with her husband, which contradicts any cruelty on his part.

20. There is no direct or circumstantial evidence in regard to any act of
cruelty or torture between 02.06.1993 and 03.02.1994 when she died i.e. after
the purported talk of settlement was made.
D
21. Mr. Avijit Bhattacharjee, learned counsel appearing on behalf of the
State, on the other hand, would refer to the judgment of the High Court, which
according to him, dealt with all the evidences both oral and documentary at
great details.
'f
.
E ANALYSIS OF THE EVIDENCE

22. The fact that death of Bakulbala took place within seven years of
marriage is not in dispute. The de£eased was lovingly called as 'Mamoni'.
According to PW-1, she used to complain about her ill-treatment by her
husband, parents-in-law and brother-in-law. According to the said witness
F they used to abuse and assault the deceased. He had deposed that his son
Himadri had gone to the house of Bakulbala on 15th Falgoon, 1399 i.e. 7-8
,..
months prior to her death. Both of them were driven out whereafter only he
went to his daughter's house for settlement. A settlement was arrived at
whereafter she was taken to her matrimonial home. Despite the same, the
G assault and abuse on her continued.

23. We may not deal with the evidences of PWs 2 to 4. As noticed
hereinbefore, PWs 2 and 3 were declared hostile and PW-4 was tendered on
cross-examination. PW-5 was the mother of the deceased. She was also
.. ~

categorical in her statement in regard to ill-treatment meted out to her daughter.
H She categorically stated that she was assaulted by the parents-in-law and
ANANDA MOHAN SEN v. STATE OF WEST BENGAL (S.B. SINHA, J.] 1097

brother-in-law of the deceased and she had been driven out together with her A
son on 16th Falgoon. Even after settlement her daughter was severely
assaulted. On the fateful day, the accused persons assaulted and killed her
by pouring poison in her mouth and left the house under lock and key. PW-
6, Smt. Madhavi Halder, is the paternal aunt of the deceased. She found marks
of injuries on the dead body of Bakulbala. She expected the dispute would
be settled after she gave birth to a child. Jagat Kumar Das (PW-7) is an B
independent person. Settlement preceded the dispute. The dispute arose
because of torture. He is a witness to the settlement. PW-8, Harddhan Halder,
a resident of Baidyap:ir village also supported the prosecution case. Smt.
-(
Biuthika Paul, who examined herself as PW-9 was a close friend of Bakulbala.
This witness in no uncertain terms stated that the deceased used to complain c
about the ill-treatment meted out to her in her in-laws house and it would have
. been better if she had not been married and continued her studies. The
deceased had stated before her that she had been abused and assaulted even
for minor and insignificant mattres. She was made to do domestic works like
a maid servant and even she had been denied proper meal. According to this
witness, the brother-in-law of Bakulbala asked her sleep with him when her D
husband was out the house; but on her reporting thereabout she was assaulted

.. y
by her husband.

24. PW-10 is the younger brother ofBakulbala. He was the witness to
the incident of 16th Falgoon, when he and Bakulbala were assaulted and
driven out from the house. E

FINDINGS

25. The learned Trial Judge in arriving at the conclusion had, inter alia,
taken note of the fact that despite the deceased suffering from the skin
disease, she had never been taken to the doctor, nor any paper was filed as F
y to whether any treatment was given. It may be that there are certain
contradictions and omissions but in a case of this nature the conclusion must
be drawn from the totality of the circumstances. Bakulbala admittedly died an
unnatural death. The prosecution evidences brought on records clearly suggest
that she had been subjected to cruelty both physical and mental. Existence G
of discord between the parties in regard to torture at least at one point of time
is not in dispute. She had been driven out of her house. She had to come
back to her parents house again and again. Her husband did not even make
' " any enquiry about her, when she was staying with her parents. A settlement
had been arrived at wherfor intervention of the members of the panchayat had
H
1098 SUPREME COURT REPORTS (2007] 6 S.C.R.

A been sought for. Only upon the said settlement, the deceased came back to >
her matrimonial home. Unnatural death of the deceased, in our opinion, must
be considered from that point of view.

26. Submission of Mr. Ghosh that the dispute between mother-in-law
and daughter-in-law is an usual thing and other members of the family were
B not involved, does not appear to be correct. She made allegations against all
the family members. There is absolutely no reason if allegations against all
the family members had not been made, why a settlement had to be arrived
at. Evidence of PW-9, a close friend of the deceased, in this regard is
;.
significant. Naturally, a married girl would confide with a close friend or
mother. A mother, on the other hand, may not bring everything to the notice
c of her husband on the belief that the things will improve.

27. Indian Penal Code was amended by Criminal Law Amendment Act
1983 with a view to deal with menace of dowry deaths. Explanation appended
to Section 498A defines cruelty in three parts. Clause (a) of the said explanation
D itself is in two parts. One is any wilful conduct which is of such a nature as
is likely to drive the woman to commit suicide and the sec<>nd part is to cause
grave injury or danger to life, limb or health (whether mental or physical) of
the woman. It may be that death by itself may not lead to an inference that "{
cruelty was meted out to the deceased, but in this case there are specific ~

allegations. The witnesses proved the same. Ex.3-C, whereupon reliance has
E been placed by Mr. Ghosh, although no allegation had been made against her
husband, the deceased categorically stated the type of torture which was
being meted out to her. In Ex. 3, however, she categorically stated that even
the garments which had been presented by her parents were not liked by her
husband and she had been abused and insulted by her husband. In some of
F the letters, it appears that she expressed her vent that she had thought of
committing suicide but then consoled her mother that she would not do so. ..,...
The contents of those letters had not been denied or disputed. Even in one
of the letters Ex. A-1, she made allegations against her in laws during her stay
at matrimonial home. Her mental condition during the stay at her matrimonial
home can be well-imagined. For establishing a charge of cruelty, it is not
G necessary that the husband must always stay in the matrimonial home.
Systematic torture of the deceased is evident in this case. We do not find any
reason to differ from the findings of the learned Trial Judge or the High Court.
#
...
28. The question which now arises for consideration is as to whether
a case for conviction under Section 306 IP has been made out. It is no doubt
H
AN ANDA MOHAN SEN v. STATE OF WEST BENGAL [S.B. SINHA, J.] I099
true that for arriving at such a conclusion, the prosecution must , inter alia, A
establish that the deceased committed suicide and she had been subject to
cruelty within the meaning of Section 498A IPC. [See Harjit Singh v. State
of Punjab, [2006] l SCC 463.

29. It may also be true that for the aforementioned purpose a degree of
certainty has to be arrived at, as was held in Wazir Chand and Anr. etc., v. B
State of Haryana etc., [1989] I SCC 244.

30. The fact that the deceased had died an unnatural death is not in
·--< dispute. It is nobody's case that her death was an accidental one. In the First
Information Report, it was categorically stated that the deceased had committed
suicide. In the medical report, the exact cause of death could not be stated, c
as the viscera preserved by the autopsy surgeon was to be sent to the
chemical expert. We have, however, noticed hereinbefore that viscera contained
a whitish violate fluid with a smelt like that of kerosene. She was found dead
early morning at the verandah of her matrimonial home. PW-I I was definitely
of the opinion that the death was due to the effect of poisoning, but he merely
D
stated that he would be able to hold conclusively as to the cause of the death
by poisoning only if he could find detection of poison in the viscera report.
y In his report it was stated :

" ....There was vermilion marks on forehead and front middle of scalp
hairs whitish froth was coming out from nostril and facial stains at the E
(illegible) region ..... "

31. His deposition if read as a whole would clearly go to show that he
could not give definite opinion only in regard to the nature of poison. The
cause of death by poisoning was, therefore, not in issue. A plastic bottle with
while cork with a label 'Sumidon' was also seized. The autopsy surgeon F
y noticed the smell of kerosene.

32. It is of some significance to note that even before the learned Trial
Judge, an argument was advanced by the learned counsel for the appellants
that it was a case of suicide, stating :
G
"Learned Advocate for the accused persons, during his argument,
stated that Bakulbala personally took the poison in her mouth and
died and the onus of proving this is upon the prosecution and while
such death is caused by consumption of poison, then two other
points are to be considered whether that death is homicidal or
H
1100 SUPREME COURT REPORTS (2007) 6 S.C.R.

A accidental in take or not...."
>-
In Taiyab Khan (supra), this Court opined :

" .... It is a case of unnatural death. The learned counsel for the appellant
argued that the viscera report would have shown as to whether the
B death occurred on account of consumption of poison. This report was
never received and therefore, it cannot be said to be a case of death
by poisoning. In our view, the absence of viscera report does not
make any difference to the fate of the case. The fact remains that it
is a case of unnatural death ....." >--

c 33. It may be, as was submitted by Mr. Ghosh, that therein the offence
alleged to have been committed was one under Section 3048 !PC, but in a
case of this nature, the legal principle thereof can be applied. In that case on
the basis of the materials on records even a suggestion that the deceased had
taken poison of her own and committed suicide has been disbelieved.

D 34. In the instant case, everybody proceeded on the basis that it is a
case of suicide. If an accidental consumption of poison was required to be
proved, the appellants and accused persons would not have fled away from
their house. Had it been a case of accident, they would have at least made "(

an attempt to take her to the hospital. Had it been done, such an argument
.:.
was possible to be advanced. No doubt there exists a difference between the
E
ingredients of Section 306 and 3048 IPC, as has been held by this Court in
Harjit Singh (supra), but then it is not necessary for us in this case to go
into that aspect of the matter as it is not a case where the appellants have
been charged under Section 3048 !PC but only for commission of an offence
under Section 306 IPC.
F
35. In P. Mani v. State o/Tamil Nadu, [2006] 3 SCC 161 the accused were
y
charged under Section 302 IPC. It was in that situation, this Court opined that
the provision of Section l 13A of the Evidence Act was not available. Therein,
it was noticed :

G "11. The High Court furthermore commented upon the conduct of the
appellant in evading arrest from 4-10-1998 to 21-10-1998. The
investigating officer did not say so. He did not place any material to
show that the appellant had been absconding during the said period.
He furthermore did not place any material on record that the appellant
could not be arrested despite attempts having been made· therefor.
H Why despite the fact, the appellant who had been shown to be an
AN ANDA MOHAN SEN v. STATE OF WEST BENGAL [S.B. SINHA, J.] 1101

-< accused in the first information report recorded by himself was not A
arrested is a matter which was required to be explained by the
investigating officer. He admittedly visited the place of occurrence
and seized certain material objects. The investigating officer did not
say that he made any attempt to arrest the appellant or for that matter
he had been evading the same. He also failed and/or neglected to
make any statement or bring on record any material to show as to B
what attempts had been made by him to arrest the appellant. No
evidence furthermore has been brought by the prosecution to show
-( as to since when the appellant made himselr' unavailable for arrest
and/or was absconding."

The said decision was rendered on its own facts.
c
36. In the aforementioned situation, invocation of Section 113-A of the
Evidence Act, in our opinion was misconceived. Such is not the position here.

37. Involvement of all the accused persons to commit the offence must
be determined having regard to the entirety of the situation and the materials D
brought on records. Section 113-A of the Evidence Act raises a presumption
against the accused, subject of course to the following conditions :

(a) That the husband or any member of his family had subjected the
married woman to cruelty within the meaning of Section 498A IPC.
E
(b) The presumption is not mandatory; it is only permissive according
to the facts and circumstances of a given case.

(c) A consideration of all the other circumstances of the case may
strengthen the presumption or may cause the Court to abstain from drawing
the presumption. F
y
38. A young lady committed suicide in the morning. Ordinarily, in a
village, all members of the family would get up early. Death took place on the
verandah of her house. Ordinarily suicide would be committed at a secluded
place and not in open place. It would not be committed before anybody and
G
certainly not when everybody in the house was present. In a case of this
nature, Section 113-A of Indian Evidence Act would be attracted. Appellants
,.., '('
did not adduce any evidence. All the inmates of the house were accused. All
came within the purview of Section 113-A of the Evidence Act. Onus shifted
to them to show that the death was accidental in nature. Those who were near
the deceased at the relevant time should have shown as to how the accident H
1102 SUPREME COURT REPORTS [2007] 6 s. c. R.

A took place. It is difficult to believe that an educated woman would take poison
accidentally.
39. In Randhir Singh v. State of Punjab, [2004] 13 SCC 129, it was
observed:
"9. Great stress was laid on the victim's statement having not expressed
B before her friends about any harassment. In a tradition and custom-
bound Indian society no conservative woman would disclose family
discords before a person, however close he or she may be. Merely
because the deceased had not to Id close friends about the demand
of dowry or harassment that does not positively prove the absence )-
of demand of dowry. The said circumstance has to be weighed along
c with the evidence regarding demand of dowry. Ifthe evidence regarding
demand of dowry is established, is cogent and reliable merely because
the victim had not stated before some persons about the harassment
or torture that would be really of no consequence."
It was also observed:

D "13. In State of W.B. v. Ori/al Jaiswal I this Court has observed that
the courts 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

E
in fact induced her to end the life by committing suicide. If it transpires
to the court that a victim committing suicide was hypersensitive to
ordinary petulance, discord and differences in domestic life quite
-<

-
commor. 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
F should be found guilty."
40. Each case, however, is required to be determined on its own facts. y
The case at hand indicates the participation of the accused immediately
before the commission of the crime. The prosecution having established the
ingredients of offences falling both under Sections 498A and 306 of the
Indian Penal Code, the burden shifted on the accused which they failed to
G discharge.
41. In the facts and circumstances obtaining in this case, we are of the
opinion that it is not a case where interference with the impugned judgment
is called for. The appeal is dismissed accordingly.

H B.B.B. Appeal dismissed.