GUMANSINH @ LALO @ RAJU BHIKHABHAI CHAUHAN & ANR. versus THE STATE OF GUJARAT on 3 September 2021

SUPREME COURT REPORTS

[2021] 6 S.C.R.

AGUMANSINH @ LALO @RAJU BHIKHABHAI CHAUHAN & ANR.

v.

THE STATE OF GUJARAT

B(Criminal Appeal Nos. 940-941 of 2021)

SEPTEMBER 03, 2021

[S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]

Penal Code, 1860 – ss.498A and 306 – Married womancommitted suicide in her matrimonial home within 8 months ofCmarriage, purportedly, by consuming pesticide – Conviction ofappellants (husband and mother-in-law) by Courts below u/ss.498Aand 306 IPC – Challenge to – Held: Prosecution proved thatdeceased was harassed with a view to coerce her to meet unlawfuldemand of Rs.25,000/- and such harassment was on account ofDher failure to bring said amount from her father (PW-1) who wasfinancially incapable to meet such demand – Charge u/s.498-A ofcruelty clearly established against the appellants – Defence failedto adduce any evidence to rebut presumption as to abetment ofsuicide u/s.113-A of the Evidence Act – Prosecution successful inestablishing the evidence that deceased was left with no choice thanEto commit suicide – Conviction u/ss.498A and 306 IPC, affirmed– Evidence Act, 1872 – s.113A.

Crime Against Women – Domestic cruelty – Witness –Evidentiary value of close relatives/interested witness – Held: Mostoften, the offence of subjecting the married woman to cruelty isFcommitted within the boundaries of the house which in itselfdiminishes the chances of availability of any independent witness– Also, normally no independent or unconnected person wouldprefer to become a witness for a number of reasons – Nothingunnatural for a victim of domestic cruelty to share her trauma withGher parents, brothers and sisters and other such close relatives –Law does not disqualify the relatives to be produced as a witnessthough they may be interested witness – Penal Code, 1860 –s.498A.

Evidence – Witness – Interested witness – Appreciation –HHeld: Evidence of an interested witness requires scrutiny with utmost care and caution – If the evidence of any interested witness/relative on a careful scrutiny by the Court is found to be consistentand trust-worthy, free from infirmities or any embellishment thatinspires the confidence of the Court, there is no reason not to placereliance on the same.

Evidence Act, 1872 – ss.113A and 4 – s.4 defines the phrase‘may presume’ used in s.113-A – Definition of the word ‘maypresume’ — Meaning and effect of.

Evidence Act, 1872 – s.113A – Applicability – To attractthe applicability of s.113-A, three conditions are required to befulfilled :- (i) The woman has committed suicide, (ii) Such suicidehas been committed within a period of seven years from the dateof her marriage, and (iii) The charged-accused had subjected herto cruelty – However, the existence and availability of above saidthree circumstances are not to be invoked, like a formula, to enablethe presumption being drawn and the presumption is not anirrebuttable one.

Dismissing the appeals, the Court

HELD:1.Whether prosecution has successfullyestablished the charge of cruelty as laid down in Explanation (b)of Section 498-A IPC.

1.1. Most often the offence of subjecting the marriedwoman to cruelty is committed within the boundaries of the housewhich in itself diminishes the chances of availability of anyindependent witness and even if an independent witness isavailable whether he or she would be willing to be a witness inthe case is also a big question because normally no independentor unconnected person would prefer to become a witness for anumber of reasons. There is nothing unnatural for a victim ofdomestic cruelty to share her trauma with her parents, brothersand sisters and other such close relatives. The evidentiary valueof the close relatives/interested witness is not liable to berejected on the ground of being a relative of the deceased. Lawdoes not disqualify the relatives to be produced as a witnessthough they may be interested witness. [Para 21] [34-G-H]

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A1.2. However, when the Court has to appreciate theevidence of any interested witness it has to be very cautious inweighing their evidence or in other words, the evidence of aninterested witness requires a scrutiny with utmost care andcaution. The Court is required to address itself whether thereare any infirmities in the evidence of such a witness; whetherBthe evidence is reliable, trust-worthy and inspires the confidenceof the Court. Another important aspect to be considered whileanalyzing the evidence of interested witness is whether thegenesis of the crime unfolded by such evidence is probable ornot. If the evidence of any interested witness/relative on aCcareful scrutiny by the Court is found to be consistent andtrustworthy, free from infirmities or any embellishment thatinspires the confidence of the Court, there is no reason not toplace reliance on the same. [Para 22][35-B-D]

1.3. In the case at hands, PW-1,2,3 and 4, though they areDrelated to the deceased, are natural witnesses. There being nobar in examining the family members or any other person aswitnesses, their evidence is not liable to be discarded on thisground. The evidence of the aforesaid witnesses is foundconsistent without any material contradiction and inspiresconfidence. The Courts below have also properly scrutinizedEtheir evidence prior to taking them into account and there isnothing unusual in believing their testimonies. [Para 24][37-F-G]

1.4. From the evidence of the prosecution witness, it isclear that prosecution has proved that the deceased wasFharassed with a view to coerce her to meet unlawful demand ofRs.25,000/- and such a harassment was on account of failure byher to bring the said amount from her father (PW-1) who wasfinancially incapable to meet such demand. On the basis of theaforesaid evidence, the prosecution has been successful inGproving the charge of cruelty under Explanation (b) of Section498-A IPC. [Para 25][37-G-H; 38-A]

2. Whether the accused can also be held guilty for theoffence punishable under Section 306 IPC (which providespunishment for the offence of abetment of suicide) with the aidHof Section 113 A of the Evidence Act. [Para 27][39-A]

2.1. Section 113-A of the Evidence Act, provides forpresumption as to abetment of suicide by a married womanwithin seven years of marriage, by her husband or any of hisrelative. Explanation added to Section 113-A of the Evidence Actclearly provides that ‘cruelty’ shall have the same meaning asin Section 498-A of the IPC. [Paras 13, 14][31-F; 32-B]

2.2. To attract the applicability of Section 113-A of theEvidence Act, three conditions are required to be fulfilled :- (i)The woman has committed suicide, (ii) Such suicide has beencommitted within a period of seven years from the date of hermarriage, and (iii) The charged-accused had subjected her tocruelty. From the facts of the case at hands, all the threeconditions stand fulfilled. However, the existence and availabilityof the above said three circumstances are not to be invoked,like a formula, to enable the presumption being drawn and thepresumption is not an irrebuttable one. [Paras 32, 33, 34][41-C-F]

2.3. Admittedly, in the case at hands, the evidence clearlyestablishes the offence of cruelty or harassment caused to thedeceased and thus the foundation for the presumption exists.Admittedly the appellants have led no evidence to rebut thepresumption. Thus, in the facts and circumstances of the case,it can be safely concluded that the Courts below committed noillegality in holding that the accused-appellants abetted thesuicide of the deceased. The matter can be viewed from anotherangle. The prosecution was successful in establishing the chargeunder Section 498-A of cruelty against the appellants from whicha reasonable inference can be drawn that the deceasedcommitted suicide by consuming pesticides. The deceased wasin the custody of the appellant and died within the four walls ofher matrimonial home under suspicious circumstances. [Paras37 and 38][42-B-D]

2.4. Not only a specific charge was framed against theaccused-appellants, on one hand, the defence failed to adduce A

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Aany evidence to rebut the presumption under Section 113-A ofthe Evidence Act and on the other hand the prosecution wassuccessful in establishing the evidence that the deceased wasleft with no choice than to commit suicide. No fault can be foundwith the Trial Court and the Appellate Court placing reliance onthe evidence in drawing the presumption under Section 113-ABparticularly, when there was no material brought on record bythe defence to disprove the facts. [Paras 44, 45][45-G; 48-A-B]

3. Both the Trial Court as well as the High Court havethreadbare considered the evidence and have recorded cogentreasons to come to the conclusion that the prosecution has beenCsuccessful in proving the case against the appellants beyondreasonable doubt. [Para 46][48-B-C]

Gurjit Singh v. State of Punjab (2020) 14 SCC 264 –distinguished.

Maranadu and Anr. v. State by Inspector of Police,DTamil Nadu (2008) 16 SCC 529 : [2008] 13 SCR487 ; Ramesh Kumar v. State of Chhattisgarh (2001)9 SCC 618 : [2001] 4 Suppl. SCR 247 ; Ramesh VithalPatil v. State of Karnataka & Ors. (2014) 11 SCC516 ; Satish Shetty v. State of Karnataka (2016) 12ESCC 759 : [2016] 3 SCR 145 ; and K. Prema S. Rao& Anr. v. Yadla Srinivasa Rao & Ors. (2003) 1 SCC217 : [2002] 3 Suppl. SCR 339 – relied on.

Case Law Reference

From the Judgment and Order dated 28.12.2018 corrected videorder dated 08.02.2019 of the High Court of Gujarat at Ahmedabad inH

R/Criminal Appeal No.833 of 2000 and final order and judgment dated07.03.2019 in Criminal Miscellaneous Application No.1 of 2019.

Ms. Akriti Chaubey, Md. Tahir M. Hakim, Ejaz Maqbool, VarishA. Mansuri, Muhammad Isa M. Hakim, Advs. for the Appellants.

Ms. Deepanwita Priyanka, Aniruddha P. Mayee, Advs. for theRespondent.

The Judgment of the Court was delivered by KRISHNA MURARI, J.

1. Leave granted.

2. These appeals arise out of final order and judgment of theHon’ble High Court of Gujarat at Ahmedabad (hereinafter referred toas ‘High Court’) dated 28.12.2018 corrected vide order dated 08.02.2019in R/Criminal Appeal No. 833 of 2000 and final order and judgmentdated 07.03.2019 in Criminal Misc. Application (for extension of time)No. 1 of 2019 filed by the appellants challenging the order of convictionagainst them.

3. By the said judgment, the High Court has dismissed the appealfiled by the appellant herein challenging the judgment dated 27.07.2000passed by the Learned Sessions Judge, Vadodara in Sessions Case No.92 of 1998 convicting the appellant in respect of the offence punishableunder Section 306, 498A read with Section 114 of the Indian Penal Code(hereinafter referred to as ‘IPC’) is confirmed.

4. In brief, the prosecution case is that the marriage of AppellantNo. 1 was solemnized with Tahera (hereinafter referred to as the‘Deceased’) on 27.04.1997 and after the marriage, the deceased wasresiding with both the appellants. The Appellant No.1 was constantlyasking the deceased to bring Rs.25,000/- from her father (PW-1) inorder to purchase buffaloes as, he was keen on doing milk business.Due to poor financial condition, PW-1 was not able to satisfy thedemand of Appellant No. 1. Therefore, Appellant No.1 frequentlystarted beating the deceased, while Appellant No. 2 who was hermother-in-law used to pick up quarrel with her on the pretext that sheneither knew how to cook nor do any house-hold work properly. Thedeceased committed suicide on 14.12.1997 between 17:00 and 17:30hours by consuming poison at her matrimonial home for the sole reasonthat she was unable to bear the continuous mental and physical crueltymeted out to her by the appellants in a short span of 8 months.

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A5. The PW-1, father of the deceased filed a complaint with PadraPolice Station which was registered as ICR No. 34 of 1997 for theoffences punishable under Section 498A and 306 read with Section 114of the IPC. After completion of the investigation, charge-sheet was filedin the Court of Learned Judicial Magistrate First Class, Padra, whocommitted the case to the Court of Sessions. The case was registeredBas Sessions Case No. 92 of 1998 and was made over to the LearnedAdditional Sessions Judge for trial. Charges were framed and againstthe appellants and they pleaded not guilty and claimed to be tried.

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6. In order to substantiate the case, the prosecution has examinedseven witnesses and all the incriminating evidence was put to theCappellants while recording their statement under Section 313 of Codeof Criminal Procedure Code, wherein they totally denied the case ofthe prosecution.

7. The Trial Court came to the conclusion that the Appellantssubjected the deceased to physical and mental cruelty which lead herDto commit suicide and convicted the appellants for offences punishableunder Section 498A and 306 of IPC and sentenced them to undergoRigorous imprisonment for a period of one year and pay fine ofRs. 500/- as well as two years Rigorous imprisonment and pay fine ofRs. 500/-.E

8. Aggrieved by the same, the accused appellants filed an appealbefore the High Court and mainly contended that there was no demandof money by Appellant No. 1 as he was only asking for loan to purchasebuffaloes in order to start milk business. It was further contended thatthe deceased was under medical treatment as she was suffering fromFsome mental illness. It was pointed out that only relatives were examinedas witnesses though independent witnesses were available andtherefore, the prosecution case becomes doubtful. It was furthercontended that the appellants were not present in the house when thedeceased committed and prayed for the appeal to be allowed and theconviction of the appellants be set-aside.G

9. However, the High Court observed that the evidence producedby the prosecution clearly indicates the deceased was subjected tomental and physical cruelty by the appellants on the account ofnon-fulfillment of demand of Rs.25,000/- and, therefore, the judgmentand order of conviction passed by the learned Trial Court wasHconfirmed.

10. Being aggrieved by the conviction and sentence under Section498-A IPC and Section 306 IPC, the accused have preferred theseappeals. Ms. Akriti Chaubey, learned Counsel for the appellantsvehemently submitted that the conviction as recorded by the learnedTrial Court and confirmed by the High Court is not tenable. It issubmitted that the evidence of the material witnesses suffer from majorcontradictions and there was no demand of any money by the appellantNo.1 because he was only asking for loan to purchase buffaloes withan intention to start milk business. She further submitted that thedeceased was suffering from some mental illness for which she wasunder medical treatment. Her further submission is that only closerelatives were examined as witnesses and there was no independentwitness.

11. Per contra, Ms. Deepanwita Priyanaka, learned counselappearing on behalf of the State submitted that there is a concurrentfinding of both the Courts below as such no interference is warranted.It is further submitted that all the ingredients necessary for convictionunder Section 306 IPC stands proved with the aid of Section 113-A ofthe Evidence Act, 1872 as such the present appeals deserved to bedismissed.

12. We have considered the rival submissions and also perusedthe impugned judgment as also the testimony of the witnesses with theaid of learned counsel for the parties.

13. It is undisputed that the suicidal death of the deceasedoccurred within a short span of eight months of marriage. Section 113-A of the Evidence Act, provides for presumption as to abetment ofsuicide by a married woman within seven years of marriage, by herhusband or any of his relative. The said section reads as under :-

“113A. Presumption as to abetment of suicide by a marriedwoman - When the question is whether the commission of suicide bya woman had been abetted by her husband or any relativeof her husband and it is shown that she had committedsuicide within a period of seven years from the date of hermarriage and that her husband or such relative of herhusband had subjected her to cruelty, the Court maypresume, having regard to all the other circumstances of the AB

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Acase, that such suicide had been abetted by her husband orby such relative of her husband.

Explanation.- For the purposes of this section, “cruelty”shall have the same meaning as in section 498A of the IndianPenal Code (45 of 1860).”

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14. Explanation added to Section 113-A of the Evidence Actclearly provides that ‘cruelty’ shall have the same meaning as in Section498-A of the IPC and thus it would be relevant to extract said sectionwhich reads as under :- “498A. Husband or relative of husband of a womanCsubjecting her to cruelty- Whoever, being the husband or therelative of the husband of a woman, subjects such womanto cruelty shall be punished with imprisonment for a termwhich may extend to three years and shall also be liable tofine.

DExplanation.- For the purpose of this section, “cruelty”means- (a) any willful conduct which is of such a nature as islikely to drive the woman to commit suicide or tocause grave injury or danger to life, limb or healthE(whether mental or physical) of the woman; or (b) harassment of the woman where such harassment iswith a view to coercing her or any person relatedto her to meet any unlawful demand for any propertyor valuable security or is on account of failure byFher or any person related to her to meet suchdemand.”

15. The prosecution case was that the marriage of the deceasedwho was the daughter of the complainant was solemnized with appellantno. 1 around eight months before the alleged incident and thereafterGshe was residing in her matrimonial home along with her husband, theappellant no.1 and mother-in-law, the appellant no. 2. For about twomonths, they had a peaceful life, thereafter the appellant no. 1 startedpressing deceased to bring Rs.25,000/- from her father to purchasebuffaloes as he was interested in starting business of milk. It wasHfurther stated that the complainant PW-1 was unable to satisfy the demand on account of his weak financial condition. When the demandof Rs.25,000/- could not be met by the complainant, the appellant no.1started beating the deceased and appellant no. 2, the mother-in-law alsoused to quarrel with her on the pretext that she was not knowingcooking and was not doing household work properly. On account ofphysical and mental cruelty meted out to her during a short span ofeight months of marriage, when it became unbearable she committedsuicide on 14.12.1997 between 17:00 and 17:30 hours by consumingpoison at her matrimonial home.

16. Aforesaid complaint lodged by PW-1, the father of thedeceased, was registered vide I-C.R.No. 341 of 1997 for the offencespunishable under Sections 498-A and 306 read with Section 114 of theIndian Penal Code.

17. A perusal of evidence of PW-1, Mustufa Chhotubhai Ghori,the father of the deceased would establish that deceased was marriedto appellant no. 1, eight months prior to the alleged incident. He statedin his testimony that the married life of the two was smooth for initialtwo months, however, after two months of the marriage, the appellantno. 1 started insisting Tahira (the deceased) to ask for a sum ofRs.25,000/- from PW-1 to purchase buffaloes for milk business, but hewas unable to pay the said amount as he was earning his livelihood byrunning a tea stall and was also indebted. He also stated that since hecould not fulfill the demand because of his weak financial position, hisdeceased daughter was ill-treated and beaten frequently by appellantno.1. He further stated that the appellant no. 2, the mother-in-law ofthe deceased also started quarreling on the pretext that the deceasedcould not make chapatti properly nor could she do the household workand her father has not taught her anything. He also stated that thedeceased used to share her trauma with her mother (PW-4) who inturn used to tell her everything. He further stated that the son-in-lawwas very suspicious and he did not let Tahira (the deceased) to go aloneto any place and used to beat her. He also stated that lastly appellantno. 2 came to his house along with the deceased and demanded Rs.500/- from his wife (PW-4), as her husband was to go to Ajmer. He alsostated that in the night at about 1:30A.M., PW-3 his brother, came andinformed about the death of the deceased. In the cross-examination,his testimony was unshaken. Though during cross-examination, it wastried to be elicited from this witness that deceased was suffering fromsome kind of illness prior to marriage and was undergoing some AB

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Atreatment. The witnesses admitted in the cross-examination that thedeceased was suffering from some pain and his wife used to take herfor treatment and was given medicine. Apart from above, neither thenature of illness nor the details of the treatment or medication could beelicited from this witness. As a matter of fact, there was not even asuggestion by the defence that deceased was suffering from any kindBof mental illness or undergoing treatment for the same.

18. The evidence of PW-1 stands corroborated by the evidenceof PW-4, Dariyaben Mustufa Ghori, the mother of the deceased, aswell as PW-3 Ahmadbhai Chhotubhai Ghori, the brother of complainantand PW-5, Hanif Mustufa Ghori, brother of the deceased.C

19. It is pertinent to mention that much emphasis has been laidby learned counsel for the appellants on the cross-examination ofPW-1, wherein he stated that even before marriage the deceased wasundergoing treatment and medication. Learned counsel for theappellants vehemently contended that the deceased was suffering fromDsome mental disease and was undergoing treatment and her mentalinstability might have resulted in suicide. The argument is not liable tobe accepted inasmuch as neither any evidence was produced by thedefence in this regard nor anything about the illness or medication wasstated by them in their statement under Section 313. The deceased livedEin her matrimonial home with the appellants for about eight months aftermarriage and if she was undergoing any prolonged treatment, it wasnot possible for the appellants not to have acquired knowledge of thesaid facts.

20. It was next submitted by the learned counsel for theFappellants that all the witnesses are relative and interested witnessesand no independent witness was examined by the prosecution to provethe case, thus, the prosecution case becomes doubtful.

21. Most often the offence of subjecting the married woman tocruelty is committed within the boundaries of the house which in itselfdiminishes the chances of availability of any independent witness andGeven if an independent witness is available whether he or she wouldbe willing to be a witness in the case is also a big question becausenormally no independent or unconnected person would prefer to becomea witness for a number of reasons. There is nothing unnatural for avictim of domestic cruelty to share her trauma with her parents, brothersHand sisters and other such close relatives. The evidentiary value of the close relatives/interested witness is not liable to be rejected on theground of being a relative of the deceased. Law does not disqualifythe relatives to be produced as a witness though they may be interestedwitness.

22. However, when the Court has to appreciate the evidence ofany interested witness it has to be very cautious in weighing theirevidence or in other words, the evidence of an interested witnessrequires a scrutiny with utmost care and caution. The Court is requiredto address itself whether there are any infirmities in the evidence ofsuch a witness; whether the evidence is reliable, trust-worthy andinspires the confidence of the Court. Another important aspect to beconsidered while analyzing the evidence of interested witness is whetherthe genesis of the crime unfolded by such evidence is probable or not.If the evidence of any interested witness/relative on a careful scrutinyby the Court is found to be consistent and trust-worthy, free frominfirmities or any embellishment that inspires the confidence of the Court,there is no reason not to place reliance on the same.

23. A three-Judge Bench of this Court in the case of Maranaduand Anr. Vs. State by Inspector of Police, Tamil Nadu[1], whileconsidering this issue, has observed as under:- “Merely because the eyewitnesses are family members theirevidence cannot per se be discarded. When there isallegation of interestedness, the same has to be established.Mere statement that being relatives of the deceased they arelikely to falsely implicate the accused cannot be a groundto discard the evidence which is otherwise cogent andcredible. We shall also deal with the contention regardinginterestedness of the witnesses for furthering prosecutionversion.

“….Relationship is not a factor to affect credibility of awitness. It is more often than not that a relation would notconceal actual culprit and make allegations against aninnocent person. Foundation has to be laid if plea of falseimplication is made. In such cases, the court has to adopt acareful approach and analyse evidence to find out whetherit is cogent and credible.

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A11. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953SC 364) it has been laid down as under:- “26. A witness is normally to be considered independentunless he or she springs from sources which are likely tobe tainted and that usually means unless the witness hascause, such as enmity against the accused, to wish toimplicate him falsely. Ordinarily a close relation would bethe last to screen the real culprit and falsely implicate aninnocent person. It is true, when feelings run high andthere is personal cause for enmity, that there is a tendencyto drag in an innocent person against whom a witnesshas a grudge along with the guilty, but foundation mustbe laid for such a criticism and the mere fact ofrelationship far from being a foundation is often a sureguarantee of truth. However, we are not attempting anysweeping generalization. Each case must be judged on itsown facts. Our observations are only made to combat what B

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is so often put forward in cases before us as a generalrule of prudence. There is no such general rule. Each casemust be limited to and be governed by its own facts.”

The above decision has since been followed in Guli Chandand Ors. v. State of Rajasthan (1974 (3) SCC 698) in whichVadivelu Thevar v. State of Madras (AIR 1957 SC 614) wasalso relied upon.

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13. We may also observe that the ground that the witnessbeing a close relative and consequently being a partisanwitness, should not be relied upon, has no substance. Thistheory was repelled by this Court as early as in Dalip Singh’scase (supra) in which surprise was expressed over theimpression which prevailed in the minds of the Members ofthe Bar that relatives were not independent witnesses.Speaking through Vivian Bose, J. it was observed:

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“25.We are unable to agree with the learned Judges ofthe High Court that the testimony of the two eyewitnessesrequires corroboration. If the foundation for such anobservation is based on the fact that the witnesses arewomen and that the fate of seven men hangs on theirtestimony, we know of no such rule. If it is grounded on H

the reason that they are closely related to the deceasedwe are unable to concur. This is a fallacy common tomany criminal cases and one which another Bench of thisCourt endeavoured to dispel in -`Rameshwar v. State ofRajasthan’ (AIR 1952 SC 54 at p.59). We find, however,that it unfortunately still persists, if not in the judgmentsof the Courts, at any rate in the arguments of counsel.”

14. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC202) this Court observed: (p. 209-210 para 14):

“14…….But it would, we think, be unreasonable tocontend that evidence given by witnesses should bediscarded only on the ground that it is evidence of partisanor interested witnesses.......The mechanical rejection ofsuch evidence on the sole ground that it is partisan wouldinvariably lead to failure of justice. No hard and fast rulecan be laid down as to how much evidence should beappreciated. Judicial approach has to be cautious indealing with such evidence; but the plea that suchevidence should be rejected because it is partisan cannotbe accepted as correct.”

15. To the same effect is the decisions in State of Punjab v.Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana(2002 (3) SCC 76) and Gangadhar Behera and Ors. v. Stateof Orissa (2002 (8) SCC 381).”

24. In the case at hands, PW-1,2,3 and 4, though they are relatedto the deceased, are natural witnesses. There being no bar in examiningthe family members or any other person as witnesses, their evidenceis not liable to be discarded on this ground. From a perusal of theevidence of the aforesaid witnesses, we find that it is consistent withoutany material contradiction and inspires confidence. The Courts belowhave also properly scrutinized their evidence prior to taking them intoaccount and there is nothing unusual in believing their testimonies.

25. Thus, from the evidence of the prosecution witness we haveno hesitation to hold that prosecution has proved that the deceased washarassed with a view to coerce her to meet unlawful demand ofRs.25,000/- and such a harassment was on account of failure by herto bring the said amount from her father (PW-1) who was financiallyincapable to meet such demand. We find, on the basis of the aforesaid AB

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Aevidence, that the prosecution has been successful in proving the chargeof cruelty under Explanation (b) of Section 498-A IPC.

26. Suicidal death by consuming pesticide stands affirmed by theevidence of PW-2, Dr. Anand, who was one of the panel members ofdoctors who carried out post-mortem of the deceased. He stated inBhis cross-examination that :-

“On 15/12/1997 I was serving as the PMC medical officerat Gandhi. At noon 3-15 hours the dead body of TaheraGumansinh Chauhan was brought to be and the time wasaround 3-30 hours. In the panel doctor was Dr. RolisharanCand he is at present at the Rajkot Medical College. Whilechecking the dead body, as for the internal injuries, on thelegs the threads were placed. There was normal injury onthe right thigh. There was no other external injury that couldprove that the death occurred due to beating. Even thereafter,the stomach was opened and the particular that came outDhad plunging smell. The samples of her intestine, liver, kidneyand blood were obtained and were sent for analysis at theforensic science laboratory, Ahmedabad, so that the actualfacts could be known. This analysis report was sent by theforensic department to us. One was sent to police station.EBut I have not received a copy. Therefore, I can give furtherdeposition if the copy of police is shown to me. I am as ontoday shown the mark 8/9 being the papers of theprosecution and upon seeing I state that, in the intestine ofthe deceased the poisonous pesticide DiazinonOrganophosphate was found. This proves that, the death ofFTaheraben had occurred due to consuming of poison. Thepanel doctor along with me undertook the post mortem ofdeceased. I am shown the mark 8/7 PM report and we bothdoctors have prepared the same. The doctor along with mehas signed it in my presence. It has my signature. I identifyGthe same. It is given exhibit 17.”

His statement was intact in the cross-examination and nothingcontradictory could be elicited from him.

27. Now, the question that falls for our consideration is theprosecution having successfully established the charge of cruelty as laidHdown in Explanation (b) of Section 498-A IPC and also the fact that GUMANSINH @ LALO @ RAJU BHIKHABHAI CHAUHAN &ANR. v. THE STATE OF GUJARAT [KRISHNA MURARI, J.]

the deceased committed suicide by consuming pesticide within sevenyears of marriage, whether the accused can also be held guilty forthe offence punishable under Section 306 IPC with the aid of Section113 A of the Evidence Act.

28. In the case at hands, the prosecution failed to adduceany direct evidence to establish that the accused abetted deceasedinto committing suicide. The prosecution has placed reliance onSection 113-A of the Evidence Act to establish the charge of abetmentagainst the accused.

29. Section 107 of IPC describes offence of abetment as under:- “-Section 107 of IPC

107. Abetment of a thing.—A person abets the doing of athing, who—

(First)— Instigates any person to do that thing; or (Secondly)—Engages with one or more other person orpersons in any conspiracy for the doing of that thing, if anact or illegal omission takes place in pursuance of thatconspiracy, and in order to the doing of that thing; or (Thirdly) — Intentionally aids, by any act or illegal omission,the doing of that thing.

Explanation 1.—A person who, by wilful misrepresentation,or by wilful concealment of a material fact which he is boundto disclose, voluntarily causes or procures, or attempts tocause or procure, a thing to be done, is said to instigate thedoing of that thing. Illustration A, a public officer, isauthorized by a warrant from a Court of Justice to apprehendZ. B, knowing that fact and also that C is not Z, wilfullyrepresents to A that C is Z, and thereby intentionally causesA to apprehend C. Here B abets by instigation theapprehension of C. Explanation 2.—Whoever, either prior toor at the time of the commission of an act, does anything inorder to facilitate the commission of that act, and therebyfacilitate the commission thereof, is said to aid the doing ofthat act.

30. Section 306 of IPC provides punishment for the offence ofabetment of suicide, reads as under:- A

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“306. Abetment of suicide.—If any person commits suicide,whoever abets the commission of such suicide, shall bepunished with imprisonment of either description for a termwhich may extend to ten years, and shall also be liable tofine.”

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B31. This question came up for consideration before a three-JudgeBench in the case of Ramesh Kumar Vs. State of Chhattisgarh[2]. Inpragraph 12 of the said judgment, it has been observed as under :- “This provision was introduced by Criminal Law (Second)Amendment Act, 1983 with effect from 26.12.1983 to meet asocial demand to resolve difficulty of proof where helplessCmarried women were eliminated by being forced to commitsuicide by the husband or in-laws and incriminatingevidence was usually available within the four-corners of thematrimonial home and hence was not available to any oneoutside the occupants of the house. How-ever still it cannotbe lost sight of that the presumption is intended to operateDagainst the accused in the field of criminal law. Before thepresumption may be raised, the foundation thereof must exist.A bare reading of Section 113-A shows that to attractapplicabilty of Section 113- A, it must be shown that (i)woman has committed suicide, (ii) such suicide has beenEcommitted within a period of seven years from the date ofher marriage, (iii) the husband or his relatives, who arecharged had subjected her to cruelty. On existence andavailability of the abovesaid circumstances, the Court maypresume that such suicide had been abetted by her husbandor by such relatives of her husband. The Parliament hasFchosen to sound a note of caution. Firstly, the presumptionis not mandatory; it is only permissive as the employment ofexpression “may presume” suggests. Secondly, the existenceand availability of the above said three circumstances shallnot, like a formula, enable the presumption being drawn;before the presumption may be drawn the Court shall haveGto have regard to ‘all the other circumstances of the case’.A consideration of all the other circumstances of the casemay strengthen the presumption or may dictate the conscienceof the Court to abstain from drawing the presumption. Theexpression - ‘The other circumstances of the case’ used in H2 (2001) 9 SCC 618

H2 (2001) 9 SCC 618

Section 113-A suggests the need to reach a cause and effectrelationship between the cruelty and the suicide for thepurpose of raising a presumption. Last but not the least thepresumption is not an irrebuttable one. In spite of apresumption having been raised the evidence adduced indefence or the facts and circumstances otherwise availableon record may destroy the presumption. The phrase ‘Maypresume’ used in Section 113-A is defined in Section 4 of theEvidence Act, which says-’whenever it is provided by this Actthat Court may presume a fact, it may either regard such factas proved, unless and until it is disproved or may call forproof of it.”

32. From the above observations, it becomes clear that to attractthe applicability of Section 113-A of the Evidence Act, three conditionsare required to be fulfilled :-

i. The woman has committed suicide,

ii. Such suicide has been committed within a period ofseven years from the date of her marriage,

iii. The charged-accused had subjected her to cruelty.

33. From the facts of the case at hands, all the three conditionsstand fulfilled. There is no dispute about the facts that the deceasedcommitted suicide within a period of seven years from the date of hermarriage and charged-accused had subjected her to cruelty, as we haveconfirmed the findings of the Trial Court as well as High Court thatprosecution has been successful in proving the charge of cruelty underExplanation (b) of Section 498-A IPC.

34. It is no doubt correct that the existence and availability ofthe above said three circumstances are not to be invoked, like a formula,to enable the presumption being drawn and the presumption is not anirrebuttable one, as held by a three-Judge Bench of this Court in thecase of Ramesh Kumar Vs. State of Chhattisgarh (Supra).

35. At this stage, we may also make a reference to Section 4 ofthe Evidence Act, which defines the phrase ‘may presume’ used inSection 113-A, which reads as under :- “Shall Presume - whenever it is directed by this Act thatthe Court shall presume a fact, it shall regard such fact asproved, unless and until it is disproved.”

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A36. The above definition of the words ‘may presume’ makes itclear that whenever the act provides that the Court may presume afact, the said fact is to be regarded as proved, unless and until it isdisproved.

37. Admittedly, in the case at hands, the evidence clearlyBestablishes the offence of cruelty or harassment caused to the deceasedand thus the foundation for the presumption exists. Admittedly theappellants have led no evidence to rebut the presumption.

38. Thus, in the facts and circumstances of the case, it can besafely concluded that the Courts below committed no illegality in holdingCthat the accused-appellants abetted the suicide of the deceased. Thematter can be viewed from another angle. The prosecution wassuccessful in establishing the charge under Section 498-A of crueltyagainst the appellants from which a reasonable inference can be drawnthat the deceased committed suicide by consuming pesticides. Thedeceased was in the custody of the appellant and died within the fourDwalls of her matrimonial home under suspicious circumstances.

39. A two-Judge Bench of this Court, in the case of RameshVithal Patil Vs. State of Karnataka & Ors.[3] in almost identical factsand circumstances, has observed in paragraph 26 of the judgment asunder:-E

“Moreover, admittedly the deceased committed suicide withina period of seven years from the date of her marriage.Section 113-Aof the Evidence Act is, therefore, clearlyattracted to this case. Presumption contemplated therein mustspring in action. This provision was introduced by CriminalFLaw Second Amendment Act, 1983 to resolve the difficultyof proof where married women are forced to commit suicidebut incriminating evidence is difficult to get as it is usuallyavailable within the four walls of the matrimonial home.

In this case, the prosecution has led evidence to establishGcruelty and harassment caused to the deceased which isrightly taken into account by the High Court. Thus, thefoundation for the presumption exists. The appellant,however, has led no evidence to rebut the presumption.

H3 (2014) 11 SCC 516

Therefore, it can be safely concluded in the facts of this casethat the appellant abetted the suicide of the deceased.”

40. Reference may also to be made to the following observationsof this Court in the case of Satish Shetty Vs. State of Karnataka[4]:- “Once the prosecution succeeds in establishing thecomponent of cruelty leading to conviction under Section498 A, in our view only in a rare case, the Court can refuseto invoke the presumption of abetment, if other requirementsof Section 113-A of the Evidence Act stand satisfied. Thisproposition is amply supported by the view taken by thethree-Judge Bench of this Court in the case of K.PremaS.Rao & Anr. Vs. Yadla Srinivasa Rao & Ors.[5].”

41. In the case of K. Prema S. Rao (Supra), this Court whileholding that in view of Section 215 Cr.PC ommission to frame chargeunder Section 306 IPC has not resulted in any failure of justice andthus, there was no necessity to remit the matter to the Trail Court forframing the charge under Section 306 IPC and direct a retrial for thatcharge. It further went on to observe as under:- “The same facts found in cruel treatment of his wife, makeout a case against him under Section 306 IPC of havingabetted commission of suicide by the wife.The appellant wascharged for an offence of higher degree causing “dowrydeath” under Section 304Bwhich is punishable withminimum sentence of seven years rigorous imprisonment andmaximum for life. Presumption under Section 113A of theEvidence Act could also be raised against him on same facts”constituting offence of cruelty under Section 498A, IPC.

(Emphasis applied)

42. The reliance placed by learned counsel for the appellants onthe judgment of this Court rendered by a two-Judge Bench in the caseof Gurjit Singh Vs. State of Punjab[6] is totally mis-founded, as the caseis distinguishable on facts. In the said case, this Court found that thoughthe prosecution was successful in proving the case under Section 498Aof the IPC but the prosecution had failed to prove that the cruelty was 4 (2016) 12 SCC 7595 (2003) 1 SCC 2176 (2020) 14 SCC 264

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Aof such a nature which left no choice to the deceased than to commitsuicide. It was found that the prosecution has failed to place on recordany evidence to establish beyond reasonable doubt that any act oromission of the accused instigated the deceased to commit suicide.There is no material on record to show that immediately prior to thedeceased committing suicide there was a cruelty meted out to theBdeceased by the accused due to which the deceased had no other optionthan to commit the suicide. It may be relevant to extract the followingobservations made in the judgment :- “37. Another aspect that needs consideration is that the caseswherein this Court has held that the conviction underCSection 306 of the IPC was tenable though charge was onlyunder Section 304-B of the IPC, it was found the chargespecifically stated that the deceased was driven to commitsuicide on account of cruelty meted out to the deceased.However, in the present case, the charge reads thus:

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“That you all on 28.9.94 in the area of Village Bohan,the death of Jaswinder Kaur wife of you, Gurjit Singhand daughter-in-law of you, Gurdial Singh and MohinderKaur and sister-in-law of Ranjit Kaur, was causedotherwise than under normal circumstances, you all beingEher relatives, within a period of seven years of hermarriage subjected her to cruelty and harassment for allin connection with demand for dowry and therebycommitted an offence of dowry death punishable undersection 304B of the Indian Penal Code, and within myFcognizance.”

38. It would thus be seen, that the charge does not state thatthe deceased was driven to commit suicide on account of theharassment meted out to the deceased. It also does notmention that the accused had abetted in commission ofGsuicide by the deceased. In that view of the matter, we areof the considered view that the cases wherein conversion isheld to be permissible are clearly distinguishable.”

43. On the contrary, in the case at hands, the following chargewas framed against the accused-appellants vide order dated 29.05.2000Hby the Trial Court :- CHARGES

I, Mr. A.C. Modi, Vadodara District Additional Sessions Judge,hereby frame charges against both of you the accused that, The marriage of the accused no. 1 took place with Taherabenand therefore Taheraben and both accused resided together. Theaccused no. 1 used to undertake milk business, the accused no.1 asked regularly Taheraben to brin an amount of Rs.25,000/-from her father, for the purchase of milk. But as Taheraben hadthe idea of financial condition of her father, she could not fulfillthe demand. Due to this, the accused no.1 used to time and againbeat up Taheraben. Meanwhile the accused no.2 being themother-in-law of Taheraben, she used to remark that Taherabenwas not doing household work in a proper manner, is not cookingfood properly and thereby in such a manner the accused no. 1was wrongly incited by the accused no 2 and thus Taherabenwas beaten. In this manner, you both the accused, within a spanof eight months of marriage, casued mental and physicalharassment to Taheraben, made her life worse, created a situationwhereby she wished for death and due to your such behaviour,left with no other option, in order to end her life on 14/12/1997from 17:00 hours to 17:30 hours, Taheraben consumed pesticideat Medhad village, thereby committed suidcide and hence shedied.

In this manner, you both the accused have abetted the suicideof Taheraben and thereby have committed the crime underSections 306, 498-A and 114 of the IPC.

I hereby declare to held judicial proceedings against you as forthe same.”

44. Thus, it would be seen that not only a specific charge wasframed against the accused-appellants, on one hand, the defence failedto adduce any evidence to rebut the presumption under Section 113-Aand on the other hand the prosecution was successful in establishingthe evidence that the deceased was left with no choice than to commitsuicide. A reference may be made to the oral testimony of PW-3, theuncle of the deceased, the relevant part of his examination-in-chief isextracted here under:- A

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“After marriage Tahera went to reside at her matrimonialhouse. At the matrimonial house of Tahera resided herhusband Gumansinh, father-in-law, mother-in-law and sister-in-law named Madhu. The marriage life of Tahera wentproperly for a period of two or two and half months ofmarriage. Gumansinh was suspicious by nature. He did notlet Tahera go alone anywhere. He would go with Tahera dueto his suspicious nature. He did not let her talk with anyoneand would do inquiry as to such things. He would askTahera to bring Rs.25,000 from her father as he wished topurchase buffaloes and do business of milk. Tahera wouldstate that his father has a tea stall and there was debt onhim, how could he give money! Thus, as the amount wasnot given, Gumansinh used to beat Tahera, quarrel withher and thereby physically and mentally harass her. Themother-in-law of Tahera would state that, Tahera did notcook well, she did not do work properly. The mother-in-lawof Tahera would instigate the husband of Tahera and thusshe would create a quarrel between them. I used to go to thehouse of my brother Mustufa regularly for my businesspurpose. At that place Tahera told these things time andagain, these were told to me by brother and sister-in-law.Tahera had come to meet me for 5-7 times and she also toldme these things……………………………………………….……………”

things……………………………………………….……………”

“On Monday, Mustufa talked with me that, from Medadhthat Tahera and her mother-in- law arrived at his house.The mother-in-law of Tahera asked that they be givenbuffaloes while purchasing them from Isamil. Or else anamount of Rs.5000 be given. But Tahera’s mother denieddoing this. They further stated that, the father-in-law ofTahera was going to Ajmer and thus an amount of Rs.500be given. This amount of Rs.500 was given to Dariyabenthe mother-in-law of Tahera. He further stated on thephone that the harassment is going on increasing now.Due to which Tahera had asked that uncle be informedthat she cannot take it anymore, the harassment is goingon and thus she should be taken.

GUMANSINH @ LALO @ RAJU BHIKHABHAI CHAUHAN &ANR. v. THE STATE OF GUJARAT [KRISHNA MURARI, J.]

On the second day, my mother Sakina, my wife Rashidaand I i.e., we three persons, went to Medhad in threewheeler tempo. We meet the mother-in-law of Tahera atthat place. The mother-in-law of Tahera told me that, sonof her elder brother was to be operated and he has to goto hospital. We asked her to send Tahera with us and shereplied that the father-in-law of Tahera was to go to Ajmerdue to which she should be returned. Thereafter I broughtTahera to my house at Bhoj. Tahera remained at my housefor a period of 2-3 days and Tahera told me thateven now she is harassed. Even now Gumansinh isseeking the amount and he is beating her. Moreover, hermother-in-law is even stating that Tahera is not cookingwell and that she does not do work properly. Thus, hermother-in-law would in some other manner start a quarrelwith her and make Gumansinh beat her. Tahera told methat, she will not be able to keep up with it, if this goeson and that she will not return. The father–in-law ofTahera was to go to Ajmer and therefore we told Taherathat these sorrowful days will pass, thereby sent her to hermatrimonial house. I told her that, I will not send her iffurther harassment would be kept. I explained her thisthing and sent her to her matrimonial house.

She was dropped to her matrimonial house at Medadh bymy son and other two persons in the Tempo. Thereafteron that very night at 11:00 to 11:30 hours, Fatmabenbeing the mother-in-law of Tahera and vikram being theson-in-law of Fatmaben along with another one manarrived at my house. They told me that Tahera consumedpoison and therefore has expired. I told these people toinform this to her father Mustufa, thereafter I searchedfor a vehicle and went to inform this thing to my brotherMustufa at Fertilizernagar. I also informed this to my otherbrother Usman who resided at Tandalja and also informedthis to others. I told my brother to inform this to all andwent to the house of my brother Musfufa. I informed himthat Tahera has expired in her matrimonial house as sheconsumed poison ……………………………………………..”

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A45. The testimony of this witness was unshaken duringcross-examination and nothing contrary could be elicited from him, andthus we find no fault with the Trial Court and the Appellate Courtplacing reliance on the evidence in drawing the presumption underSection 113-A particularly, when there was no material brought onrecord by the defence to disprove the facts.B

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46. Both the Trial Court as well as the High Court havethreadbare considered the evidence and have recorded cogent reasonsto come to the conclusion that the prosecution has been successful inproving the case against the appellants beyond reasonable doubt.

47. Having gone through the relevant facts and the reasoningsrecorded by the Trial Court and affirmed by the High Court, we arenot persuaded to take a different view. Thus, we find no reason tointerfere with the impugned judgment. The appeals are, therefore,dismissed.

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Bibhuti Bhushan Bose

Appeals dismissed.

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