GURJIT SINGHversusSTATE OF PUNJAB

232                       [2019]
               SUPREME COURT     14 S.C.R. 232
                              REPORTS                      [2019] 14 S.C.R.


A                               GURJIT SINGH
                                        v.
                              STATE OF PUNJAB
                    (Criminal Appeal Nos. 1492-1493 of 2010)
B                            NOVEMBER 26, 2019
                   [NAVIN SINHA AND B. R. GAVAI, JJ.]
             Penal Code, 1860: s.498-A – Cruelty and harassment on
      account of dowry demand – Prosecution proved that the deceased
      was harassed with a view to force her and her parents to meet
C
      unlawful demand for money and such a harassment was on account
      of failure by her and her parents to meet such a demand –Thus,
      charge under Explanation (b) of s.498-A was proved.
            Penal Code, 1860: ss.306, 498-A – Whether when the
      prosecution established cruelty under Explanation (b) of s.498-A
D
      and also established that the deceased committed suicide within
      seven years of the marriage, the accused could also be held guilty
      for the offence punishable under s.306 with the aid of s.113-A of
      the Evidence Act – Held: Merely because an accused is found
      guilty of an offence punishable under s.498-A and the death
E     occurred within a period of seven years of the marriage, the accused
      cannot be automatically held guilty for the offence punishable under
      s.306 by employing the presumption under s.113-A of the Evidence
      Act – Unless the prosecution establishes that some act or illegal
      omission by the accused drove the deceased to commit the suicide,
      the conviction under s.306 would not be tenable – Though the
F
      prosecution is successful in proving the case under s.498-A, the
      prosecution failed to establish beyond reasonable doubt that any
      act or omission of the accused instigated the deceased to commit
      suicide – There was no evidence on record to show that immediately
      prior to the deceased committing suicide there was a cruelty meted
G     out to the deceased by the accused due to which the deceased had
      no other option than to commit the suicide – The evidence on record
      further showed that the time gap between the last visit of the deceased
      to her parents with regard to the illegal demand and the date of
      commission of suicide was about two months – As such, there was
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                                       232
             GURJIT SINGH v. STATE OF PUNJAB                          233


nothing to show a proximate nexus between the commission of           A
suicide and the illegal demand made by the appellant – Further, the
cases wherein the conviction under s.306 had been held tenable by
this court, even though the charge was only under s.304B, it was
found that the charge in those cases specifically stated that the
deceased was driven to commit suicide on account of cruelty meted
                                                                      B
out to the deceased – However, in the instant case, the charge did
not state that the deceased was driven to commit suicide on account
of the harassment meted out to the deceased – It did not mention
that the accused had abetted in commission of suicide by the
deceased – Therefore, conviction under s.498-A is maintained and
conviction under s.306 is set aside – Evidence Act, 1872 – s.113-A.   C
      Partly allowing the appeal, the Court
      HELD : 1. The evidence of PW-10, father of the deceased
corroborated to an extent by PW-13 showed that the prosecution
was able to prove that the deceased was harassed with a view to
coercing her or any person related to her to meet any unlawful        D
demand for any property. On the basis of said evidence, the
prosecution proved the charge under Explanation (b) of Section
498-A of the IPC. [Para 11] [240-E-F]
      2. Merely because an accused is found guilty of an offence
punishable under Section 498-A of the IPC and the death has           E
occurred within a period of seven years of the marriage, the
accused cannot be automatically held guilty for the offence
punishable under Section 306 of the IPC by employing the
presumption under Section 113-A of the Evidence Act. Unless
the prosecution establishes that some act or illegal omission by      F
the accused has driven the deceased to commit the suicide, the
conviction under Section 306 would not be tenable. [Para 27]
[249-E-F]
      3. The prosecution failed to prove that the cruelty was of
such a nature which left no choice to the deceased than to commit     G
suicide. There was no material on record to show that
immdediately prior to the deceased committing suicide, there
was a cruelty meted out to the deceased by the accused due to
which the deceased had no other option than to commit suicide.
The evidence on record further showed that the time gap between
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234           SUPREME COURT REPORTS                   [2019] 14 S.C.R.


A     the last visit of the deceased to her parents with regard to the
      illegal demand and the date of commission of suicide was about
      two months. As such, there was nothing on record to show that
      there was a proximate nexus between the commission of suicide
      and the illegal demand made by the appellant. [Paras 33-34]
      [251-B-D]
B
             4. Another aspect is that the cases wherein this Court has
      held that the conviction under Section 306 of the IPC was tenable
      though charge was only under Section 304-B of the IPC, it was
      found the charge specifically stated that the deceased was driven
      to commit suicide on account of cruelty meted out to the
C     deceased. However, in the present case, 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. Conviction under Section 498-A of the IPC is
D     maintained and the conviction under Section 306 of the IPC is
      set aside. The appellant is acquitted of the charge under Section
      306 of the IPC. [Paras 35-37] [251-F; 252-B-C]
           State of West Bengal v. Orilal Jaiswal (1994) 1 SCC
           73 ; Hans Raj v. State of Haryana (2004) 12 SCC
E          257 : [2004] 2 SCR 678 ; Mangat Ram v. State of
           Haryana (2014) 12 SCC 595 : [2014] 4 SCR 988
           - relied on.
           K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and
           Ors. (2003) 1 SCC 217 : [2002] 3 Suppl. SCR 339 ;
F          Modinsab Kasimsab Kanchagar v. State of Karnataka
           & Anr. (2013) 4 SCC 551 : [2013] 2 SCR 357 ; Thanu
           Ram v. State of Madhya Pradesh (2010) 10 SCC 353 :
           [2010] 12 SCR 710 ; Satish Shetty v. State of
           Karnataka (2016) 12 SCC 759 : [2016] 3 SCR 145
           - distinguished.
G
           Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC
           618 : [2001] 4 Suppl. SCR 247 ; Pinakin Mahipatray
           Rawal v. State of Gujarat (2013) 10 SCC 48 : [2013]
           10 SCR 306 ; Narwinder Singh v. State of Punjab
           (2011) 2 SCC 47 : [2011] 1 SCR 110 ; Sanju Alias
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              GURJIT SINGH v. STATE OF PUNJAB                             235


      Sanjay Singh Sengar v. State of M.P. (2002) 5 SCC                   A
      371 : [2002] 3 SCR 668 - referred to.
                       Case Law Reference
[2001] 4 Suppl. SCR 247         referred to              Para 13
(1994) 1 SCC 73                 relied on                Para 17          B
[2002] 3 Suppl. SCR 339         distinguished            Para 18
[2004] 2 SCR 678                relied on                Para 20
[2013] 10 SCR 306               referred to              Para 23
[2014] 4 SCR 988                relied on                Para 25          C
[2013] 2 SCR 357                distinguished            Para 29
[2010] 12 SCR 710               distinguished            Para 30
[2016] 3 SCR 145                distinguished            Para 31
[2011] 1 SCR 110                referred to              Para 32          D
[2002] 3 SCR 668                referred to              Para 34
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1492-1493 of 2010.
      From the Judgment and Order dated 20.02.2009 of the High Court      E
of Punjab and Haryana at Chandigarh in Crl. A. No. 5440DBA of 2001
and Crl. A. No. 959-SB of 2000.
    Rajeshwar Singh Thakur, Nirmal Singh, Dinesh Verma, Subhasish
Bhowmick, Yash Pal Dhingra, Advs. for the Appellant.
     Ms. Jaspreet Gogia, Ms. Mandakini Singh, Advs. for the               F
Respondent.
      The Judgment of the Court was delivered by
      B. R. GAVAI, J.
      1. These appeals by special leave challenge the judgment and        G
order dated 20.2.2009 passed by the Division Bench of the Punjab and
Haryana High Court in Criminal Appeal No. 544-DBA of 2001 and
Criminal Appeal No. 959-SB of 2000. All the four accused, including the
appellant herein (accused No.3), who is husband of the deceased, were
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236             SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A     charged and tried by the learned trial Court for the offence punishable
      under Section 304-B and Section 498-A of the Indian Penal Code, 1860
      (hereinafter referred to as “IPC”). The other accused were the father
      (accused No.1), the mother (accused No.2) and the sister-in-law (wife
      of brother) (accused No.4) of the appellant. The Additional Sessions
      Judge, Hoshiarpur, held that the prosecution had succeeded in proving
B
      the case against accused Nos. 1 to 3 for the offence punishable under
      Section 498-A of the IPC but has failed to prove the case against the
      said accused (Nos. 1, 2 and 3) for the offence punishable under Section
      304-B of the IPC. Insofar as accused No. 4 is concerned, it was held
      that the prosecution has failed to prove the case against her for both the
C     offences and she was accordingly acquitted of the offence charged.
      The trial Judge, therefore, convicted the appellant and his father and
      mother for the offence punishable under Section 498-A of the IPC and
      sentenced them to undergo rigorous imprisonment for a period of three
      years and to pay a fine of Rs. 4000/- each and, in default of payment of
      fine, to further undergo rigorous imprisonment for a period of three
D
      months.
             2. Being aggrieved by the conviction and sentence under Section
      498-A of the IPC, the appellant along with his parents preferred an
      appeal (being Criminal Appeal No.959-SB of 2000) before the High
      Court. So also, the State preferred an appeal (being Criminal Appeal
E     No.544-DBA of 2001), being aggrieved by that part of the order by
      which the trial Court acquitted accused No. 4 and also acquitted accused
      Nos. 1, 2 and 3 for the offence punishable under Section 304-B of the
      IPC. The High Court upheld the conviction of accused Nos. 1, 2 and 3
      for the offence punishable under Section 498-A of the IPC. It also upheld
F     the acquittal of accused No. 4 and further held that, though the prosecution
      could not bring the case under Section 304-B of the IPC, the appellant
      herein was liable to be punished for the offence punishable under Section
      306 of the IPC. The High court maintained the order of the sentence
      and fine as recorded by the trial Judge for the offence punishable under
      Section 498-A of the IPC. For the offence under Section 306 of the
G     IPC, the High Court sentenced the appellant herein to undergo rigorous
      imprisonment for a period of five years and to pay a fine of Rs. 5000/-
      and in default of payment of fine, to further undergo rigorous imprisonment
      for a period of five months. Being aggrieved thereby, the present appeals
      are preferred by the appellant.
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               GURJIT SINGH v. STATE OF PUNJAB                                 237
                        [B. R. GAVAI, J.]

       3. Shri Rajeshwar Singh Thakur, learned counsel for the appellant,      A
submitted that the conviction as recorded by the learned trial court and
confirmed by the High Court under Section 498-A of the IPC is not
tenable. It is submitted, that the conviction is only on the basis of the
evidence of PW-10 - Bishan Singh, the father of the deceased. It is
submitted, that there is no corroboration to the said evidence. It is
                                                                               B
submitted, that in any case, the conviction under Section 306 of the IPC
is not tenable. It is contended that the charge was for the offence
punishable under Section 304-B of the IPC, the ingredients of which are
totally different than the ingredients of Section 306 of the IPC. It is
submitted that as such grave prejudice was caused to the appellant. It is
further submitted that the evidence shows that the father of the deceased,     C
PW-10, has stated, that even during the course of the trial, the appellant
was on congenial meeting terms with the father of the deceased and as
such the unnatural human conduct would discredit his testimony.
       4. Per contra, Smt. Jaspreet Gogia, learned counsel appearing on
behalf of the State, submitted that insofar as conviction under Section        D
498-A of the IPC is concerned, since there is a concurrent finding, no
interference is warranted. She further submitted, that since the ingredients
of Section 304-B and Section 306 of the IPC are almost similar, no
prejudice was caused to the appellant by convicting him under Section
306 of the IPC though no charge was framed for the same. It is submitted
that all the ingredients necessary for conviction under Section 306 with       E
the aid of Section 113-A of the Indian Evidence Act, 1872 were duly
proved by the prosecution and as such no interference is warranted in
the present appeals.
       5. The perusal of the record would reveal that though the appellant
has disputed the date of marriage to be 04.02.1989, both the courts have       F
disbelieved him and rightly so. The deceased died an unnatural death on
28.09.1994 by consuming poison. As such, the unnatural death occurred
within a period of seven years of the marriage. The learned trial Judge
has acquitted the appellant for the offence punishable under Section
304-B of the IPC since the prosecution has failed to prove the demand          G
for dowry, while convicting him along with the parents for the offence
punishable under Section 498-A of the IPC. The High Court maintained
the conviction under Section 498-A of the IPC, however, it also convicted
the appellant for the offence punishable under Section 306 of the IPC
with the aid of Section 113-A of the Indian Evidence Act, 1872.
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238            SUPREME COURT REPORTS                        [2019] 14 S.C.R.


A           6. The question that we are called upon to answer is as to whether
      the conviction as confirmed by the High Court under Section 498-A of
      the IPC and as recorded by it for the first time under Section 306 of the
      IPC would be sustainable or not.
             7. The relevant provisions of the IPC that fall for consideration
B     are as under:
            “107. Abetment of a thing - A person abets the doing of a thing,
            who—
            First.—Instigates any person to do that thing; or

C           Secondly.—Engages with one or more other person or persons
            in any conspiracy for the doing of that thing, if an act or illegal
            omission takes place in pursuance of that conspiracy, and in order
            to the doing of that thing; or
            Thirdly.—Intentionally aids, by any act or illegal omission, the
D           doing of that thing.
            Explanation 1.—A person who, by wilful misrepresentation, or
            by wilful concealment of a material fact which he is bound to
            disclose, voluntarily causes or procures, or attempts to cause or
            procure, a thing to be done, is said to instigate the doing of that
            thing.
E
            Explanation 2.—Whoever, either prior to or at the time of the
            commission of an act, does anything in order to facilitate the
            commission of that act, and thereby facilitates the commission
            thereof, is said to aid the doing of that act.
F           xxx
            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.
G           xxx
            498-A. 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
H
               GURJIT SINGH v. STATE OF PUNJAB                                239
                        [B. R. GAVAI, J.]

      extend to three years and shall also be liable to fine. Explanation.—   A
      For the purposes 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
                                                                              B
      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.”
       8. The relevant provision of the Indian Evidence Act, 1872 that
also requires consideration is as follows:
                                                                              C
      “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      D
      her to cruelty, the court may presume, having regard to all the
      other circumstances of the case, that such suicide had been
      abetted by her husband or by such relative of her husband.
      Explanation. — For the purposes of this section, “cruelty” shall
      have the same meaning as in section 498A of the IPC (45 of              E
      1860).]”
        9. The perusal of the evidence of PW-10 - Bishan Singh, the father
of the deceased, would establish that the deceased, Jaswinder Kaur
was married to appellant on 04.02.1989. His daughter had two issues.
The elder one was four years old and the son was about 1 ½ years old          F
at the time of the occurrence. He stated, that after the marriage, accused
were harassing his daughter for giving less dowry. In the year 1992, he
had given one steel almirah to his daughter but the accused were not
satisfied with the dowry article. In March 1993, he had purchased one
fridge through his son-in-law, Jagtar Singh, from the Military Canteen        G
for Rs. 6,600/-, which was given to the accused persons. Even then the
accused were not satisfied. The accused were pressing his daughter,
Jaswinder Kaur, to bring Rs. 50,000/- from her parents. He further stated,
that the accused were compelling his daughter out of anger to bring
Rs. 50,000/-, in cash, as they were to purchase a plot at Hoshiarpur. He
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240               SUPREME COURT REPORTS                      [2019] 14 S.C.R.


A     further stated that on two-three occasions, his daughter came to his
      Village Kharal Kalan and he requested her that Rs. 50,000/- were not
      with him at that stage and after selling the paddy crop he can pay that
      amount. He stated that, thereafter, after consoling his daughter, he sent
      her to her in-laws house. He further stated, that on 28.09.1994 when he
      was in his house, he came to know that his daughter had died. Suspecting
B
      that his daughter was given poison or she consumed poison, he lodged a
      report with the police.
             10. To some extent, the evidence of PW-10 is corroborated by
      the evidence of PW-13 - Iqbal Singh. He has stated, that prior to the
      occurrence, i.e., the death of the deceased there was a dispute
C     between the accused persons and the deceased, Jaswinder Kaur, as
      Rs. 50,000/- was being demanded by the accused persons from the
      parents of the deceased for purchasing a plot. He further stated, that the
      parents of the deceased could not pay Rs. 50,000/- and promised to pay
      the same after selling paddy crop. He further stated, that before demand
D     of Rs. 50,000/-, one refrigerator and one almirah was given to the accused
      persons by the parents of the deceased on their demand and this was
      over and above dowry given at the time of the marriage.
             11. Thus from the evidence of PW-10 which is corroborated to
      an extent by PW-13, we have no hesitation to hold that the prosecution
E     has proved that the deceased was harassed with a view to coercing her
      or any person related to her to meet any unlawful demand for any property
      or valuable security or such a harassment was on account of failure by
      her or any person related to her to meet such a demand. We find, that
      on the basis of aforesaid evidence, the prosecution has proved the charge
      under Explanation (b) of Section 498-A of the IPC.
F
            12. Now the question that would fall for consideration is as to
      whether when the prosecution establishes cruelty under Explanation (b)
      of Section 498-A of the IPC and also establishes that the deceased
      committed suicide within seven years of the marriage, could the accused
      be also held guilty for the offence punishable under Section 306 of the
G     IPC with the aid of Section 113-A of the Indian Evidence Act.
             13. The said question fell for consideration before the bench of
      three learned Judges of this Court in the case of Ramesh Kumar vs.
      State of Chhattisgarh1. This Court, after reproducing the provisions of
      1
H         (2001) 9 SCC 618
              GURJIT SINGH v. STATE OF PUNJAB                                 241
                       [B. R. GAVAI, J.]

Section 306 of the IPC and Section 113-A of the Indian Evidence Act,          A
1872 observed thus:
      “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          B
      husband or in-laws and incriminating evidence was usually
      available within the four corners of the matrimonial home and
      hence was not available to anyone outside the occupants of the
      house. However, still it cannot be lost sight of that the presumption
      is intended to operate against the accused in the field of criminal
      law. Before the presumption may be raised, the foundation thereof       C
      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          D
      cruelty. On existence and availability of the abovesaid
      circumstances, the court may presume that such suicide had been
      abetted by her husband or by such relatives of her husband.
      Parliament has chosen to sound a note of caution. Firstly, the
      presumption is not mandatory; it is only permissive as the
      employment of expression “may presume” suggests. Secondly,              E
      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            F
      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.     G
      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,
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242             SUPREME COURT REPORTS                           [2019] 14 S.C.R.


A            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.
             13. The present case is not one which may fall under
             clauses secondly and thirdly of Section 107 of the Penal Code,
B            1860. The case has to be decided by reference to the first clause
             i.e. whether the accused-appellant abetted the suicide by
             instigating her to do so.”
                                                              (emphasis supplied)
             14. It could thus be seen, that this Court has observed that to
C     attract the applicability of Section 113-A of the Indian Evidence Act, the
      following conditions are required to be satisfied:
             (i) The woman has committed suicide,
             (ii) Such suicide has been committed within a period of seven
D            years from the date of her marriage,
             (iii) The husband or his relatives, who are charged had subjected
             her to cruelty.
              15. This Court further observed that on the existence and availability
      of the aforesaid circumstances, the court may presume that such suicide
E     had been abetted by her husband or by such relatives of her husband. It
      has been held that the presumption is not mandatory; but only permissive
      as the words “may presume” suggests. It has further been held that the
      existence and availability of the aforesaid three circumstances shall not,
      like a formula, enable the presumption being drawn. It has been held
      that before a presumption being drawn, the court shall have regard to all
F
      other circumstances of the case. It has been held, that the 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. It thus observed that the expression “the other
      circumstances of the case” used in Section 113-A of the Indian Evidence
G     Act suggests the need to reach a cause-and-effect relationship between
      the cruelty and the suicide for the purpose of raising a presumption.
            16. It has been further held that when the case does not fall under
      clauses secondly and thirdly of Section 107 of the IPC, the case is to be
      decided with reference to the first clause, i.e., whether the accused-
H
               GURJIT SINGH v. STATE OF PUNJAB                                   243
                        [B. R. GAVAI, J.]

appellant abetted the suicide by instigating her to do so. It will be further    A
relevant to refer to following observations in Ramesh Kumar (supra):
       “20. Instigation is to goad, urge forward, provoke, incite or
       encourage to do “an act”. To satisfy the requirement of instigation
       though it is not necessary that actual words must be used to that
       effect or what constitutes instigation must necessarily and               B
       specifically be suggestive of the consequence. Yet a reasonable
       certainty to incite the consequence must be capable of being spelt
       out. The present one is not a case where the accused had by his
       acts or omission or by a continued course of conduct created
       such circumstances that the deceased was left with no other option
       except to commit suicide in which case an instigation may have            C
       been inferred. A word uttered in the fit of anger or emotion without
       intending the consequences to actually follow cannot be said to
       be instigation.
       21. In State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, this
       Court has cautioned that the court should be extremely careful in         D
       assessing the facts and circumstances of each case and the
       evidence adduced in the trial for the purpose of finding whether
       the cruelty meted out to the victim had in fact induced her to end
       her life by committing suicide. If it transpires to the court that a
       victim committing suicide was hypersensitive to ordinary petulance,       E
       discord and differences in domestic life quite common to the society
       to which the victim belonged and such petulance, discord and
       differences were not expected to induce a similarly circumstanced
       individual in a given society to commit suicide, the conscience of
       the court should not be satisfied for basing a finding that the accused
       charged of abetting the offence of suicide should be found guilty.        F

       22. Sections 498-A and 306 IPC are independent and constitute
       different offences. Though, depending on the facts and
       circumstances of an individual case, subjecting a woman to cruelty
       may amount to an offence under Section 498-A and may also, if a
       course of conduct amounting to cruelty is established leaving no          G
       other option for the woman except to commit suicide, amount to
       abetment to commit suicide. However, merely because an accused
       has been held liable to be punished under Section 498-A IPC it
       does not follow that on the same evidence he must also and
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244               SUPREME COURT REPORTS                     [2019] 14 S.C.R.


A              necessarily be held guilty of having abetted the commission of
               suicide by the woman concerned…..”
                                                          (emphasis supplied)
             17. The Court observed that instigation is to goad, urge forward,
      provoke, incite or encourage to do “an act”. Though the court observed
B     that to satisfy the requirement of instigation, it is not necessary that
      actual words must be used to that effect or what constitutes instigation
      must necessarily and specifically be suggestive of the consequence.
      However, it has been observed that a reasonable certainty to incite the
      consequence must be capable of being spelt out. Relying on the judgment
C     of this court in the case of State of West Bengal vs. Orilal Jaiswal2, it
      is observed that the court should be extremely careful in assessing the
      facts and circumstances of each case and the evidence adduced in the
      trial for the purpose of finding whether the cruelty meted out to the
      victim had in fact induced her to end her life by committing suicide. It
      has further been held that Section 498-A and Section 306 of the IPC are
D     independent and constitute different offences. It has been observed,
      that depending on the facts and circumstances of an individual case,
      subjecting a woman to cruelty may amount to an offence under Section
      498-A of the IPC. It has further been observed, that if a course of
      conduct amounting to cruelty is established leaving no other option for
E     the woman except to commit suicide, it may also amount to abetment to
      commit suicide. It is further observed, that, however, merely because
      accused had been held liable to be punished under Section 498-A of the
      IPC, it does not follow that on the same evidence he must also and
      necessarily be held guilty of having abetted the commission of suicide by
      the woman concerned.
F
            18. Another three-Judge bench of this Court in the case of K.
      Prema S. Rao and Anr. vs. Yadla Srinivasa Rao and Ors.3 had an
      occasion to consider the question as to whether in the circumstances of
      framing charge only under Section 304-B of the IPC and not framing
      the one under Section 306 of the IPC, could the conviction under Section
G     306 of the IPC read with Section 113-A of the Indian Evidence Act be
      tenable? In the said case, the Court found that the charge specifically
      mentioned as under.

      2
          (1994) 1 SCC 73
      3
H         (2003) 1 SCC 217
                 GURJIT SINGH v. STATE OF PUNJAB                               245
                          [B. R. GAVAI, J.]

         “That on or about the 22nd day of October, 1989, at your house at     A
         Tunikipadu of Gampalagudem Mandal, Yedla Krishna Kumari, wife
         of A-1 among you and daughter-in-law of A-2 and A-3 among
         you, committed suicide by consuming poison, and that you all
         subjected her to such cruelty and harassment as did drive her to
         commit suicide, with the object of extracting ac. 5.00 of land as
                                                                               B
         dowry to A-1 and thereby committed an offence punishable under
         Section 304-B of the Indian Penal Code, 1860 and within the
         cognizance of this court.
                                 or alternatively
         That, prior to the 22nd day of October, 1989, at your house at        C
         Tunikipadu, you subjected Yedla Krishna Kumari, wife of A-1
         among you and daughter-in-law of A-2 and A-3 among you, to
         such cruelty and harassment as did drive the said Krishna
         Kumari to commit suicide, and thereby committed an offence
         punishable under Section 498-A of the Indian Penal Code, 1860
         and within the cognizance of this court.”                             D

        19. The court, therefore, held that the ingredients to constitute an
offence under Section 306 of the IPC were already found in the charge
and as such no prejudice was caused to the accused therein, though no
separate charge was framed under Section 306 of the IPC. Apart from
that, the evidence on record established that when the letters concealed       E
by the husband were discovered by the wife and handed over to the
father and she was driven out of the house, this cruel conduct of the
husband led the wife to commit suicide. It could thus be seen, that in the
facts of the said case, the Court found that the conviction under Section
306 of the IPC could be recorded. It was found that, apart from the            F
earlier acts of harassment for parting with the land which she had
received in marriage as stridhana, there was an act of driving the deceased
out of the house which had direct nexus with the deceased committing
suicide.
        20. The bench of two Judges of this Court had an occasion to           G
consider a similar issue in the case of Hans Raj vs. State of Haryana4.
It will be relevant to refer to following paragraphs:
         “12. The question then arises as to whether in the facts and
         circumstances of the case the appellant can be convicted of the
4
    (2004) 12 SCC 257                                                          H
246      SUPREME COURT REPORTS                            [2019] 14 S.C.R.


A     offence under Section 306 IPC 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 IPC. Section 107 IPC lays down the ingredients of
      abetment which includes instigating any person to do a thing or
      engaging with one or more persons in any conspiracy for the doing
B
      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
C     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
D
      further clarifies that cruelty shall have the same meaning as in
      Section 498-A of the Indian Penal Code…...
      13. Unlike Section 113-B of the Indian Evidence Act, a statutory
      presumption does not arise by operation of law merely on proof
      of the circumstances enumerated in Section 113-A of the Indian
E     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
F     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 the word “cruelty” in Section
G     498-A IPC. 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
H     the case. One of the circumstances which has to be considered
                 GURJIT SINGH v. STATE OF PUNJAB                               247
                          [B. R. GAVAI, J.]

         by the court is whether the alleged cruelty was of such nature as     A
         was likely to drive the woman to commit suicide or to cause grave
         injury or danger to life, limb or health of the woman……”
       21. The court found that in the case there was 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         B
suicide. It has been held that when the allegation is of cruelty, it must
consider the nature of cruelty to which the woman was subjected having
regard to the meaning of the word “cruelty” in Section 498-A of IPC. It
has been held that one of the circumstances which has to be taken into
consideration by the court is whether the alleged cruelty was of such a
nature as was likely to drive the woman to commit suicide or to cause          C
grave injury or danger to life, limb or health of the woman.
       22. This court in the case of Hans Raj (supra) has also referred
to the judgment of this court in the case of State of West Bengal vs.
Orilal Jaiswal (supra), wherein it is observed that the requirement of
proof beyond reasonable doubt does not stand altered even after the            D
introduction of Section 498-A of the IPC and Section 113-A of the Indian
Evidence Act.
      23. It will be relevant to refer to the following observations of
this Court in the case of Pinakin Mahipatray Rawal vs. State of
Gujarat5 :                                                                     E

         “26. Section 113-A only deals with a presumption which the court
         may draw in a particular fact situation which may arise when
         necessary ingredients in order to attract that provision are
         established. Criminal law amendment and the rule of procedure
         was necessitated so as to meet the social challenge of saving the     F
         married woman from being ill-treated or forcing to commit suicide
         by the husband or his relatives, demanding dowry. Legislative
         mandate of the section is that when a woman commits suicide
         within seven years of her marriage and it is shown that her husband
         or any relative of her husband had subjected her to cruelty as per    G
         the terms defined in Section 498-A IPC, the court may presume
         having regard to all other circumstances of the case that such
         suicide has been abetted by the husband or such person. Though
         a presumption could be drawn, the burden of proof of showing
5
    (2013) 10 SCC 48                                                           H
248               SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A              that such an offence has been committed by the accused under
               Section 498-A IPC is on the prosecution. On facts, we have already
               found that the prosecution has not discharged the burden that A-
               1 had instigated, conspired or intentionally aided so as to drive the
               wife to commit suicide or that the alleged extramarital affair was
               of such a degree which was likely to drive the wife to commit
B
               suicide.
               27. Section 306 refers to abetment of suicide. It says that if any
               person commits suicide, whoever abets the commission of such
               suicide, shall be punished with imprisonment for a term which
               may extend to 10 years and shall also be liable to fine. The action
C              for committing suicide is also on account of mental disturbance
               caused by mental and physical cruelty. To constitute an offence
               under Section 306, the prosecution has to establish that a person
               has committed suicide and the suicide was abetted by the accused.
               The prosecution has to establish beyond reasonable doubt that
D              the deceased committed suicide and the accused abetted the
               commission of suicide. But for the alleged extramarital relationship,
               which if proved, could be illegal and immoral, nothing has been
               brought out by the prosecution to show that the accused had
               provoked, incited or induced the wife to commit suicide.”
E            24. It has thus been observed that though presumption could be
      drawn, the burden of proof of showing that such an offence has been
      committed by the accused is on the prosecution. The prosecution has to
      establish beyond reasonable doubt that the accused had instigated,
      conspired or intentionally aided so as to drive the wife to commit suicide.

F              25. In Mangat Ram vs. State of Haryana6 this Court observed
      thus:
               “28. We have already indicated that the trial court has found that
               no offence under Section 304-B IPC has been made out against
               the accused, but it convicted the accused under Section 306 IPC,
G              even though no charge had been framed on that section against
               the accused. The scope and ambit of Section 306 IPC has not
               been properly appreciated by the courts below. ………..
               Abetment of suicide is confined to the case of persons who aid or
               abet the commission of the suicide. In the matter of an offence
      6
H         (2014) 12 SCC 595
               GURJIT SINGH v. STATE OF PUNJAB                                 249
                        [B. R. GAVAI, J.]

      under Section 306 IPC, abetment must attract the definition thereof      A
      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,
                                                                               B
      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.”
       26. After observing the aforesaid, this Court, relying on the
judgment of this Court in the case of Hans Raj (supra), observed that          C
even if it is established that the woman concerned had committed suicide
within a period of seven years from the date of marriage and that her
husband has subjected her to cruelty, the court is not bound to presume
that suicide has been abetted by her husband. It is required to take into
consideration all other circumstances of the case.                             D
       27. It could thus be seen, that the view taken by the three-Judge
Bench of this Court in the case of Ramesh Kumar (supra) that when
a case does not fall under clause secondly or thirdly, it has to be decided
with reference to the first clause, i.e., whether the accused has abetted
the commission of suicide by intentionally instigating her to do so; has       E
been consistently followed. As such, we are of the view that merely
because an accused is found guilty of an offence punishable under Section
498-A of the IPC and the death has occurred within a period of seven
years of the marriage, the accused cannot be automatically held guilty
for the offence punishable under Section 306 of the IPC by employing
the presumption under Section 113-A of the Evidence Act. Unless the            F
prosecution establishes that some act or illegal omission by the accused
has driven the deceased to commit the suicide, the conviction under
Section 306 would not be tenable.
       28. Insofar as the judgment of this Court in K. Prema S. Rao
(supra), on which the High Court had relied, is concerned, we have             G
already discussed hereinabove that in the said case there was evidence
on record proving that immediately prior to committing the suicide the
deceased was driven out of the house. As such, it was held that the said
cruelty would amount to abetment to commit suicide.
                                                                               H
250             SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A            29. Insofar as the judgment of this Court in Modinsab Kasimsab
      Kanchagar vs. State of Karnataka & Anr.7 is concerned, no doubt
      that the learned counsel for the State is justified in relying on the said
      judgment as the conviction in the said case is for the offence punishable
      under Section 498-A of the IPC and Sections 3, 4 & 6 of the Dowry
      Prohibition Act, 1961. However, in the said case, the conviction under
B
      Section 304-B of the IPC was set aside by this Court. However, the
      question, as to whether when the charge is framed only under Section
      304-B of the IPC could the conviction be recorded under Section 306 of
      the IPC did not fall for consideration in the said case.
             30. In the case of Thanu Ram vs. State of Madhya Pradesh8
C     this Court by observing that on account of interplay between Section
      113-A of the Indian Evidence Act, 1872 and Sections 498-A, 107 and
      306 of the IPC, held that the appellant was liable for conviction for the
      offence punishable under Section 498-A and Section 306 of the IPC.
      However, it is to be noted that in the said case the Court relied on the
D     dying declaration of the deceased wherein she stated that she had been
      treated with both mental and physical cruelty. In the said case, there
      was a dying declaration of the deceased which was believed by the
      court. The said dying declaration was corroborated by the evidence of
      PW-13, on the basis of which the Court held that the ill treatment was
      such which triggered her immediate intention to commit suicide.
E
             31. In the case of Satish Shetty vs. State of Karnataka9 the
      victim was found to have injuries on her person. Though, the deceased
      and the husband had slept together in the same room before she consumed
      poison, the appellant-husband had not at all explained the injuries sustained
      by the victim. In these circumstances, the conviction under Section 306
F     of the IPC, as recorded by the High Court for the first time, was
      maintained by this Court.
            32. Insofar as the judgment of this Court in the case of Narwinder
      Singh vs. State of Punjab10, it is by the two learned Judges of this
      Court and it does not take into consideration the judgment by three learned
G     Judges of this Court in Ramesh Kumar (supra)..


      7
        (2013) 4 SCC 551
      8
        (2010) 10 SCC 353
      9
        (2016) 12 SCC 759
      10
H        (2011) 2 SCC 47
                  GURJIT SINGH v. STATE OF PUNJAB                               251
                           [B. R. GAVAI, J.]

       33. Applying the aforesaid principles to the present case, we find       A
that though the prosecution is successful in proving the case under Section
498-A of the IPC, we are of the view that the prosecution has failed to
prove that the cruelty was of such a nature which left no choice to the
deceased than to commit suicide. The prosecution has not been in a
position to place on record any evidence to establish beyond reasonable
                                                                                B
doubt that any act or omission of the accused instigated the deceased to
commit suicide. There is no material on record to show that immediately
prior to the deceased committing suicide there was a cruelty meted out
to the deceased by the accused due to which the deceased had no other
option than to commit the suicide. We are of the view, that there is no
material placed on record to reach a cause and effect relationship between      C
the cruelty and the suicide for the purpose of raising presumption.
        34. It could further be seen from the evidence on record that the
time gap between the last visit of the deceased to her parents with regard
to the illegal demand and the date of commission of suicide is about two
months. As such, there is nothing on record to show that there was a            D
proximate nexus between the commission of suicide and the illegal
demand made by the appellant. In the case of Sanju Alias Sanjay
Singh Sengar vs. State of M.P.11 this Court found that there was time
gap of 48 hours between the accused telling the deceased ‘to go and
die’ and the deceased ‘committing suicide’. As such, this Court held
that there was no material to establish that the accused had abetted the        E
suicide committed by the deceased.
       35. Another aspect that needs consideration is that the cases
wherein this Court has held that the conviction under Section 306 of the
IPC was tenable though charge was only under Section 304-B of the
IPC, it was found the charge specifically stated that the deceased was          F
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 28.9.94 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      G
          Kaur, was caused otherwise than under normal circumstances,
          you all being her relatives, within a period of seven years of her
          marriage subjected to her to cruelty and harassment for all in

11
     [(2002) 5 SCC 371]                                                         H
252              SUPREME COURT REPORTS                        [2019] 14 S.C.R.


A            connection with demand for dowry and thereby committed an
             offence of dowry death punishable under section 304-B of the
             Indian Penal Code, and within my cognizance.”
            36. It would thus be seen, that the charge does not state that the
      deceased was driven to commit suicide on account of the harassment
B     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.
            37. In the foregoing circumstances, the appeals are partly allowed.
C     Conviction under Section 498-A of the IPC is maintained and the
      conviction under Section 306 of the IPC is set aside. The appellant is
      acquitted of the charge under Section 306 of the IPC.
            38. The appellant is stated to be on bail, his bail bonds shall stand
      discharged and he is directed to surrender within four weeks for serving
D     the remaining period of his sentence, if not already undergone.


      Devika Gujral                                           Appeal partly allowed.




E




F




G




H