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Wasim vs State Of Nct Of Delhi on 24 May, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 8th May, 2018
Decided on: 24th May, 2018
+ CRL.A. 365/2017
WASIM ….. Appellant
Represented by: Mr. Kanhaiya Singhal with
Mr.Prasanna, Advocates
versus
STATE OF NCT DELHI ….. Respondent
Represented by: Ms. Meenakshi Chauhan, APP
for the State with ASI Baljeet
Singh, PS Aman Vihar.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

1. Wasim challenges the impugned judgment dated 17th February, 2017
convicting him for offences punishable under Sections 498A/306 IPC and
the order on sentence dated 18th February, 2017 directing him to undergo
rigorous imprisonment for a period of three years and to pay a fine of
₹10,000/-, in default whereof to undergo simple imprisonment for a period
of one month, for offence punishable under Section 498A IPC and rigorous
imprisonment for a period of four years and to pay a fine of ₹50,000/-, in
default whereof to undergo simple imprisonment for a period of six months,
for offence punishable under Section 306 IPC.

2. Assailing the conviction, learned counsel for the appellant contends
that the appellant was charged for offence punishable under Section 304B
IPC but was convicted for offence punishable under Section 306 IPC.
Section 306 IPC cannot be said to be a minor offence in relation to offence
punishable under Section 304B IPC within the meaning of Section 222
Cr.P.C. for the reason that the two offences are of distinct categories.

Crl.A.365/2017 Page 1 of 23

Reliance is placed upon the decision of this Court reported as (2016) 232
DLT 318 Smt. Ramo Devi v. State. Secondly, from the suicide note, it is
clear that the deceased had not blamed anyone for her death. She also did
not mention about any harassment including alleged extra marital affair of
the appellant. Furthermore, it cannot be said that the appellant harassed the
deceased soon before her death or instigated her to commit suicide because
the appellant had gone to Nagercoil, Kanyakumari on 24th October, 2015 for
his job and the deceased committed suicide on 27 th October, 2015 when the
appellant was not even present in Delhi. Reliance is placed upon the
decision of the Supreme Court reported as 2006 (1) CAR (SC) 49 Harjit
Singh v. State of Punjab. There are major contradictions in the testimony of
the family members of the deceased. There was no mention of dowry
demand in statements of Ashwani and Sunita recorded under Section 161
Cr.P.C. and before the SDM. However, they improved their version in their
depositions the Court. There is delay of 9 days in lodging the FIR. Poonam
has not been examined as a witness to prove the alleged extra marital affair,
hence, the same cannot be the basis of conviction.

3. Learned APP for the State on the other hand submits that the call
detail records from September 2015 to November 2015 between the
appellant and Poonam explicitly reflect the extra marital affair between
them. Furthermore, from the testimony of the brother, mother and father of
the deceased the prosecution has proved its case that the appellant had
threatened the deceased to leave him.

4. Process of law was set into motion on 27th October, 2015 at around
6:36 P.M., when an information was received from wireless operator that a
lady had hanged herself near MCD school, Nirthari Village. Aforesaid

Crl.A.365/2017 Page 2 of 23
information recorded vide DD No. 74B (Ex. PW-21/A) was entrusted to SI
Bijender Dahiya (PW-23) who along with Ct. Sandeep (PW-21) reached
House No. 534, Nithari Village. By that time, body of the deceased Moni @
Moniya had already been brought down from the hanging condition. It was
noticed that the door had been pushed open from outside and Moniya had
committed suicide by bolting the door of the said room from inside. Broken
latch (chitkani) was found lying. Crime team was called at the spot. Spot
was photographed by Ct. Rakesh Kumar (PW-8). One suicide note (Ex.PW-
12/A) inside a magazine, a ball pen and a pair of slippers were found lying
in the room which were seized vide memo Ex. PW-21/C. One white sheet
along with one chunni with which Moniya committed suicide were also
seized vide Ex.PW-21/B. Body was sent to SGM Hospital for preservation
in mortuary and postmortem was got conducted. Statement of Ashwani,
brother of deceased, was recorded vide Ex.PW-7/A by Amit Kumar Singh
(PW-7), Executive Magistrate.

5. FIR No. 1376/2015 (Ex.PW-2/A) was registered under Sections
498A/304B IPC at PS Aman Vihar on the basis of complaint of Sunita
(mother of deceased) and on 4th November, 2015, further investigation was
handed over to SI Praveen Kumar (PW-16). On 5th November, 2015, he
went to Village Hirenkudna, parental house of deceased, where he met
Sunita (mother of deceased), Ashwani @ Sonu (brother of deceased) and
Sukhbir Singh (father of deceased). He made enquiries from them and
recorded their statements under Section 161 Cr.P.C.

6. On 7th November, 2015, SI Praveen Kumar (PW-16) went to the
house of Wasim who was not cooperating in the investigation, so he was
taken to the Police Station. He made thorough inquiry from Wasim and

Crl.A.365/2017 Page 3 of 23
arrested him vide arrest memo Ex. PW-10/A. His personal search was
conducted vide Ex.PW-10/B.

7. On 19th November, 2015, further investigation was handed over to SI
Jitender Joshi (PW-20). He collected the admitted handwriting of the
deceased from Prathmik Balika Vidyalaya, Mubarakpur Dabas where she
was working as a teacher. Teacher’s diary was seized vide seizure memo Ex.
PW-14/A which was subsequently sent to FSL for opinion of handwriting
expert. CDRs of Wasim as well as one girl Poonam with whom it was
alleged that Wasim was having extra marital affair were collected. After
completion of investigation, charge sheet was filed. Vide order dated 15th
March, 2016, charge was framed for offences punishable under Sections
498A/304B IPC.

8. Sukhbir (PW-10), father of the deceased, deposed that on 27th
October, 2015 he had received a call from the jeth of the deceased who
informed that Moniya was unwell and asked him to come there immediately.
Thereafter, he called his son Ashwani and asked him to reach the
matrimonial home of Moniya with his mother. When they reached there,
they found out that Moniya had committed suicide by hanging herself. On
30th October, 2015, his wife told him that Moniya had informed her that
Wasim used to beat her and demand money. She also informed that Wasim
was having illicit relationship with a girl Poonam and wanted Moniya to
divorce him.

9. Sunita (PW-11), mother of the deceased, stated that after 2-3 days of
marriage, both Moniya and Wasim had come to their house. Moniya
revealed that her husband had asked to bring money from her parents. She
wanted that the marriage should not be in any trouble, therefore, she gave a

Crl.A.365/2017 Page 4 of 23
sum of ₹40,000/- in May and again ₹50,000/- in October to Moniya without
telling her husband or her son. Moniya had also told her that Wasim wanted
a bigger car and air-fare to go to his workplace in Tamil Nadu and for
return. Moniya also told that Wasim had another girl Poonam in his life and
he used to talk to her on phone for hours and when she objected, Wasim
used to beat her severely.

10. Ashwani (PW-12), brother of the deceased, stated that Wasim was
posted as teacher in Tamil Nadu. After marriage, Moniya started living at
her matrimonial home situated in Nithari village. Wasim used to come from
Tamil Nadu. Before marriage they learnt that there was some quarrel
between Wasim and his mother but the same was patched up by the time of
the marriage. Moniya had told him that Wasim was having an affair with
another girl Poonam and she had learnt that Wasim had even brought
Poonam to his house prior to marriage but his family was against the match.
He also stated that he told Moniya to bear for some time and that he would
talk to Wasim in this regard. Moniya had come to her parental home in
October, 2015 and had stayed for 20-25 days. On 27th October, 2015, Wasim
took Moniya to the matrimonial house. He further clarified that Wasim took
Moniya to the matrimonial home on 21 st October, 2015. During his cross
examination, he admitted that he did not reveal the fact regarding payment
of ₹40,000/- and ₹50,000/- by her mother to Moniya when he made his
statements on 27th October, 2015 and 28th October, 2015.

11. Dr.Manoj Dhingra (PW-1) In-charge Mortuary, SGM Hopsital stated
that on 28th October, 2015, he conducted the postmortem on the body of
Moniya and observed one external injury, i.e. ligature mark around the neck
with width 1.4 cm and circumference 24 cm, present above thyroid cartilage

Crl.A.365/2017 Page 5 of 23
in midline of neck running obliquely upwards and backwards on both the
sides and absent at nape of neck. It was 7.3 cm below chin; 1.2 cm below
right ear; 2.7 cm below left ear. Mark was dry, brownish red, parchmentised.
Cut section showed glistening white subcutaneous tissue. No damage was
seen to neck muscles. Cause of death was due to asphyxia as a result of ante
mortem hanging. Detailed post mortem report was proved vide Ex. PW-1/A.
He subsequently opined that the injury mentioned in the MLC was possible
by the white sheet (chadar) or similar cloth. Subsequent opinion was proved
as Ex.PW-1/B.

12. Santosh Devi (PW-13), Principal, Nithari Uttari Nigam Prathmik
Balika Vidyalaya, Mubarakpur Dabas, Delhi stated that the deceased was
working as a contract nursery teacher in the school. She stated that Sheela
Devi (PW-14) school attendant, had handed over one register to the police
which contained admitted handwriting of the deceased. Register was proved
vide Ex.PW-13/A. Sheela Devi (PW-14) corroborated the testimony of
Santosh Devi (PW-13).

13. Maulvi Gulam Rasool (PW-3) stated that he has been Imam and
Maulvi of Masjid at Village Hiran Kudna for more than ten years and he had
prepared and written the nikahnama of Moniya and Wasim dated 2 nd May,
2015. Nikhanama was proved vide Ex.PW-3/A.

14. Israr Babu (PW-4), Nodal Officer, Vodafone Service Ltd. proved the
Customer Application Forms (CAF) of mobile number 9911625212 issued
in the name of Wasim vide Ex.PW-4/A along with aadhar card as ID proof
and 9953240261 issued in the name of Poonam vide Ex.PW-4/D along with
election card as ID proof. CDR of the aforesaid mobile numbers for the
period 1st September, 2015 to 7th November, 2015 were proved vide Ex.PW-

Crl.A.365/2017 Page 6 of 23

4/B and Ex.PW-4/E respectively.

15. M.L. Meena (PW-22), Senior Scientific Officer, FSL Rohini stated
that on 14th January, 2016 one sealed wooden box with the seal of “SGMH
Mortuary Mangol Puri Delhi-83” was deposited by Ct. Vinod containing
stomach and pieces of small intestine in a jar, pieces of liver, spleen and
kidney in another jar and blood sample in a third jar. On chemical,
microscopic and TLC examination, no common poison could be detected
from the aforesaid exhibits. His report was proved vide Ex. PW-22/A.

16. The main issue urged by learned counsel for the appellant is that the
appellant could not have been convicted for the offence punishable under
Section 306 IPC as charge for offence punishable under Section 304B IPC
only was framed and no charge for offence punishable under Section 306
IPC was framed against him.

17. The issue that an accused who has been charged for offence
punishable under Section 304B IPC can be convicted for offence punishable
under Section 306 IPC in the absence of a charge on this count, is no longer
res integra having been settled by the Supreme Court in the decisions
reported as AIR 2003 SC 2865 Hira Lal Ors. Vs. State (Government of
NCT) Delhi and 2013 (7) SCC 108 Gurnaib Singh Vs. State of Punjab.
Distinguishing the decision of the Supreme Court in (2001) 2 SCC 577
Shamnsahed M.Multtani Vs. State of Karnataka, the Supreme Court in these
two decisions held that though 304B IPC cannot be treated as a minor
offence of 302 IPC for the reasons the ingredients of the two offences are
different and there is no presumption available under Section 113 (b) of
Indian Evidence Act for an offence punishable under Section 302 IPC
however after the amendment in the Evidence Act with the introduction of

Crl.A.365/2017 Page 7 of 23
Section 113(a), Indian Evidence Act, a presumption akin to Section 113(b)
of the Indian Evidence Act is available for offence punishable under Section
306 IPC. Thus in a given case, if the prosecution is not able to prove that
soon before death there was a demand of dowry but proves that there was
cruelty which was sufficient to abet commission of suicide, offence
punishable under Section 306 IPC would be made out. In such a case
presumption under Section 113(a) of the Indian Evidence Act is required to
be raised and the accused can be convicted for offence punishable under
Section 306 IPC.

18. In Gurnaib Singh’s case, Supreme Court held as under:-

11. Mr V. Madhukar, learned counsel for the respondent
State, resisting the aforesaid submissions, has contended that
marshalling of the evidence by the trial court and the
reappraisal by the High Court withstand close scrutiny and
there is no justification to interfere with the concurrent finding
of guilt. Alternatively, it is put forth by him that assuming that
the offence under Section 304-B IPC is not brought home, still
the material on record would justify a conviction under
Section 306 IPC which would not impel this Court to interfere
with the quantum of sentence.

12. To appreciate the rival proponements advanced at the
Bar, we think it apposite to refer to Section 304-B IPC which
deals with dowry death. It reads as follows:

“304-B.Dowry death.–(1) Where the death of a woman is
caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of her
marriage and it is shown that soon before her death she
was subjected to cruelty or harassment by her husband or
any relative of her husband for, or in connection with, any
demand for dowry, such death shall be called ‘dowry

Crl.A.365/2017 Page 8 of 23
death’, and such husband or relative shall be deemed to
have caused her death.

Explanation.–For the purposes of this sub-section,
‘dowry’ shall have the same meaning as in Section 2 of the
Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life.”

13. To get the said provision attracted, certain ingredients are
to be satisfied. Scanning the said provision, this Court
in Satvir Singh v. State of Punjab [(2001) 8 SCC 633: 2002
SCC (Cri) 48] has stated thus: (SCC p. 641, para 14)

“14. … The essential components of Section 304-B are:

(i) Death of a woman occurring otherwise than under
normal circumstances, within 7 years of marriage. (ii)
Soon before her death she should have been subjected to
cruelty and harassment in connection with any demand
for dowry. When the above ingredients are fulfilled, the
husband or his relative, who subjected her to such cruelty
or harassment, can be presumed to be guilty of offence
under Section 304-B. To be within the province of the
first ingredient the provision stipulates that ‘where the
death of a woman is caused by any burns or bodily injury
or occurs otherwise than under normal circumstances’. It
may appear that the former limb which is described by
the words ‘death caused by burns or bodily injury’ is a
redundancy because such death would also fall within the
wider province of ‘death caused otherwise than under
normal circumstances’. The former limb was inserted for
highlighting that by no means death caused by burns or
bodily injury should be treated as falling outside the
ambit of the offence.”

Crl.A.365/2017 Page 9 of 23

14. In this context, it is apposite to refer to Section 113-A of
the Evidence Act, 1872. The said provision is extracted below:

“113-A.Presumption as to abetment of suicide by a
married woman.–When the question is whether the
commission of suicide by a woman had been abetted by
her husband or any relative of her husband and it is
shown that she had committed suicide within a period of
seven years from the date of her marriage and that her
husband or such relative of her husband had subjected
her to cruelty, the court may presume, having regard to
all the other circumstances of the case, that such suicide
had been abetted by her husband or by such relative of
her husband.”

15. Section 113-B, which provides for presumption as to
dowry death, was inserted with a view to fight against the
plague of dowry death. The said provision is as follows:

“113-B.Presumption as to dowry death.–When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any
demand for dowry, the court shall presume that such
person had caused the dowry death.

Explanation.–For the purpose of this section, ‘dowry
death’ shall have the same meaning as in Section 304-B
of the Indian Penal Code (45 of 1860).”

16. Interpreting the aforesaid provisions in juxtaposition
with Section 304-B IPC, this Court, in Hira Lal v. State (Govt.
of NCT of Delhi) [(2003) 8 SCC 80: 2003 SCC (Cri) 2016],
has expressed thus: (SCC p. 86, para 9)

“9. A conjoint reading of Section 113-B of the Evidence
Act and Section 304-B IPC shows that there must be

Crl.A.365/2017 Page 10 of 23
material to show that soon before her death the victim
was subjected to cruelty or harassment. The prosecution
has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of ‘death
occurring otherwise than in normal circumstances’. The
expression ‘soon before’ is very relevant where Section
113-B of the Evidence Act and Section 304-B IPC are
pressed into service. The prosecution is obliged to show
that soon before the occurrence there was cruelty or
harassment and only in that case presumption operates.
Evidence in that regard has to be led by the
prosecution.”

The learned Judges, while proceeding further and interpreting
the expression “soon before”, opined thus: (Hira Lal
case [(2003) 8 SCC 80: 2003 SCC (Cri) 2016], SCC p. 87,
para 9)

“9. … The determination of the period which can come
within the term ‘soon before’ is left to be determined by
the courts, depending upon facts and circumstances of
each case. Suffice, however, to indicate that the
expression ‘soon before’ would normally imply that the
interval should not be much between the cruelty or
harassment concerned and the death in question. There
must be existence of a proximate and live link between
the effect of cruelty based on dowry demand and the
death concerned. If the alleged incident of cruelty is
remote in time and has become stale enough not to
disturb the mental equilibrium of the woman concerned,
it would be of no consequence.”

17. Keeping in view the aforesaid principles, it is to be seen
whether the deceased was driven to commit suicide because of
the harassment meted out to her in connection with demand
for dowry. The learned trial Judge as well as the High Court
has accepted the evidence of the brother, PW 1; the father, PW
4 and PW 5, Numberdar of the village that there was demand

Crl.A.365/2017 Page 11 of 23
for dowry. The learned counsel for the appellant would submit
that the finding recorded on this score is not based on the
material on record but founded on surmises. To test the
acceptation of the said submission, we have thought it apt to
scrutinise the evidence of PWs 1, 4 and 5:

17.1. PW 1, brother of the deceased, has only made a bald
statement that the accused persons were not satisfied with the
dowry and were asking his sister to bring a sum of Rs 50,000.
Similar is the testimony of PWs 4 and 5. That apart, nothing
has been stated by the witnesses. It has been deposed by the
father that the deceased had written two to three letters stating
about the demand for dowry but the said letters have not been
brought in evidence. That apart, the brother, PW 1, in cross-
examination, has refuted the same. It is also noticeable that
PW 4 had not told his other daughters about the demand for
dowry which is expected of a father.

17.2. Thus, on the base of such sketchy evidence, in our
considered opinion, it is difficult to concur with the finding
that there was demand for dowry by the accused husband and
the harassment pertained to such a demand. The conclusion on
this score, we are inclined to think, is based on certain a priori
notions. When such a conclusion is arrived at which is
manifestly erroneous and unsupported by the evidence on
record, needless to say, this Court, in exercise of power under
Article 136 of the Constitution, can re-evaluate and interfere.
This has been so stated in Alamelu v. State [(2011) 2 SCC 385:
(2011) 1 SCC (Cri) 688] , Heinz India (P) Ltd. v. State of
U.P. [(2012) 5 SCC 443 : (2012) 3 SCC (Civ) 184 : (2012) 3
SCC (Cri) 198] and Vishwanath Agrawal v. Sarla Vishwanath
Agrawal [(2012) 7 SCC 288 : (2012) 4 SCC (Civ) 224 : (2012)
3 SCC (Cri) 347].

18. Presently we shall dwell upon the other limb of cruelty as
engrafted under Section 498-A. Section 498-A deals with
husband, or relative of husband of a woman, subjecting her to

Crl.A.365/2017 Page 12 of 23
cruelty. The said provision along with the Explanation reads
as follows:

“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 extend to three years and shall also
be liable to fine.

Explanation.–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 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.”
Clause (a) of the Explanation to the aforesaid provision
defines “cruelty” to mean “any wilful conduct which is of
such a nature as is likely to drive the woman to commit
suicide”. Clause (b) of the Explanation pertains to
unlawful demand. Clause (a) can take in its ambit mental
cruelty.

19. It has come out in evidence that there was ill treatment by
the mother-in-law and the husband. The bride was in her early
twenties. She was turned out of the matrimonial home on
certain occasions. This aspect has been established beyond
doubt. There can be no dispute that in a family life, there can
be differences, quarrels, misgivings and apprehensions but it
is the degree which raises it to the level of mental cruelty. A
daughter-in-law is to be treated as a member of the family with

Crl.A.365/2017 Page 13 of 23
warmth and affection and not as a stranger with despicable
and ignoble indifference. She should not be treated as a
housemaid. No impression should be given that she can be
thrown out of her matrimonial home at any time. In the case at
hand, considering the evidence of the prosecution witnesses,
we are disposed to think that it is a case where the bride was
totally insensitively treated and harassed. It is not that she has
accidentally consumed the poison. She had deliberately put an
end to her life. The defence had tried to prove that she was
suffering from depression and because of such depression, she
extinguished the candle of her own life. The testimony of the
doctors cited by the defence has not been accepted by the
learned trial Judge as well as by the High Court. They have
not been able to bring in adequate material on record that she
was suffering from such depression as would force her to
commit suicide. On a perusal of the evidence of the said
witnesses, we find that the finding recorded on that score is
absolutely impeccable. In view of the same, the evidence
brought on record that she was treated with cruelty and
harassed deserves to be given credence to and, accordingly,
we do so.

20. There is no dispute that no charge was framed under
Section 306 IPC. Though the charge has not been framed
under Section 306 yet on a question that has been put under
Section 313 CrPC, it is clear as crystal that they were aware
that they are facing a charge under Section 304-B IPC which
related not to administration of poison but to consumption of
poison by the deceased because of the demand of dowry and
harassment. It is major evidence in comparison to Section 306
IPC which deals with abetment to suicide by a bride in the
context of Explanation clause (a) of Section 498-A IPC. The
test is whether there has been failure of justice or prejudice
has been caused to the accused.

21. In Gurbachan Singh v. State of Punjab [AIR 1957 SC
623: 1957 Cri LJ 1009], this Court examined the question of
prejudice and held as under: (AIR p. 626, para 7)

Crl.A.365/2017 Page 14 of 23
“7. … in judging a question of prejudice, as of guilt, courts
must act with a broad vision and look to the substance and not
to technicalities, and their main concern should be to see
whether the accused had a fair trial, whether he knew what he
was being tried for, whether the main facts sought to be
established against him were explained to him fairly and
clearly and whether he was given a full and fair chance to
defend himself.”

22. In Shamnsaheb M. Multtani v. State of Karnataka
[(2001) 2 SCC 577 : 2001 SCC (Cri) 358] , a three-Judge
Bench, while dealing with the concept of “failure of justice”,
has opined thus: (SCC pp. 585-86, paras 23-24)

“23. We often hear about ‘failure of justice’ and quite often
the submission in a criminal court is accentuated with the
said expression. Perhaps it is too pliable or facile an
expression which could be fitted in any situation of a case.
The expression ‘failure of justice’ would appear, sometimes,
as an etymological chameleon (the simile is borrowed from
Lord Diplock in Town Investments Ltd.v. Deptt. of the
Environment [1978 AC 359: (1977) 2 WLR 450: (1977) 1
All ER 813 (HL)]). The criminal court, particularly the
superior court should make a close examination to ascertain
whether there was really a failure of justice or whether it is
only a camouflage.

24. One of the cardinal principles of natural justice is that
no man should be condemned without being heard (audi
alteram partem). But the law reports are replete with
instances of courts hesitating to approve the contention that
failure of justice had occasioned merely because a person
was not heard on a particular aspect. However, if the aspect
is of such a nature that non-explanation of it has
contributed to penalising an individual, the court should say
that since he was not given the opportunity to explain that

Crl.A.365/2017 Page 15 of 23
aspect there was failure of justice on account of non-
compliance with the principle of natural justice.”

23. In Narwinder Singh v. State of Punjab [(2011) 2 SCC 47:
(2011) 1 SCC (Cri) 601], while accepting the finding of the
High Court that the prosecution has not been able to establish
the charge under Section 304-B IPC and had, therefore
converted the punishment to one under Section 306 IPC, this
Court observed that cruelty or harassment sans demand of
dowry which drives the wife to commit suicide attracts the
offence of abetment of suicide under Section 306 IPC. The
Court further observed that mere omission or defect in framing
charge would not disable the court from convicting the
accused for the offence which has been found to be proved on
the basis of the evidence on record. In such circumstances, the
matter would fall within the purview of Sections 221(1) and (2)
CrPC.

24. In K. Prema S. Rao v. Yadla Srinivasa Rao [(2003) 1
SCC 217: 2003 SCC (Cri) 271], the Court, analysing the
evidence, ruled thus: (SCC p. 227, para 25)

“25. … The same facts found in evidence, which justify
conviction of the appellant under Section 498-A for cruel
treatment of his wife, make out a case against him under
Section 306 IPC of having abetted commission of suicide by
the wife. The appellant was charged for an offence of higher
degree causing ‘dowry death’ under Section 304-B which is
punishable with minimum sentence of seven years’ rigorous
imprisonment and maximum for life. Presumption under
Section 113-A of the Evidence Act could also be raised
against him on same facts constituting offence of cruelty
under Section 498-A IPC. No further opportunity of defence
is required to be granted to the appellant when he had
ample opportunity to meet the charge under Section 498-A
IPC.”

Crl.A.365/2017 Page 16 of 23

25. In the case at hand, the basic ingredients of the offence
under Section 306 IPC have been established by the
prosecution inasmuch as the death has occurred within seven
years in an abnormal circumstance and the deceased was
meted out with mental cruelty. Thus, we convert the conviction
from one under Section 304-B IPC to that under Section 306
IPC. As the accused has spent almost five years in custody, we
limit the period of sentence to the period already undergone.

19. Supreme Court while dealing with the aforesaid issue in the decision
reported as (2014) 12 SCC 595 Mangat Ram v. State of Haryana also held:

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, 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. Section 306 IPC reads as under:

“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.”

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 under Section 306 IPC, abetment must attract the
definition thereof in Section 107 IPC. Abetment is constituted
by instigating a person to commit an offence or engaging in a
conspiracy to commit, aid or intentional aiding a person to
commit it. It would be evident from a plain reading of Section
306 read with Section 107 IPC that, in order to make out the
offence of abetment or suicide, necessary proof required is
that the culprit is either instigating the victim to commit
suicide or has engaged himself in a conspiracy with others for

Crl.A.365/2017 Page 17 of 23
the commission of suicide, or has intentionally aided by an act
or illegal omission in the commission of suicide.

29. In the instant case, of course, the wife died few months
after the marriage and the presumption under Section 113-A of
the Evidence Act could be raised. Section 113-A of the
Evidence Act reads as follows:

“113-A.Presumption as to abetment of suicide by a
married woman.–When the question is whether the
commission of suicide by a woman had been abetted by
her husband or any relative of her husband and it is
shown that she had committed suicide within a period of
seven years from the date of her marriage and that her
husband or such relative of her husband had subjected
her to cruelty, the court may presume, having regard to
all the other circumstances of the case, that such suicide
had been abetted by her husband or by such relative of
her husband.”

30. We are of the view that the mere fact that if a married
woman commits suicide within a period of seven years of her
marriage, the presumption under Section 113-A of the
Evidence Act would not automatically apply. The legislative
mandate is that where a woman commits suicide within seven
years of her marriage and it is shown that her husband or any
relative of her husband has subjected her to cruelty, the
presumption as defined under Section 498-A IPC, may attract,
having regard to all other circumstances of the case, that such
suicide has been abetted by her husband or by such relative of
her husband. The term “the Court may presume, having
regard to all the other circumstances of the case, that such
suicide had been abetted by her husband” would indicate that
the presumption is discretionary. So far as the present case is
concerned, we have already indicated that the prosecution has
not succeeded in showing that there was a dowry demand, nor
would the reasoning adopted by the courts below would be

Crl.A.365/2017 Page 18 of 23
sufficient enough to draw a presumption so as to fall under
Section 113-A of the Evidence Act.

32. We are of the view that the circumstances of the case
pointed out by the prosecution are totally insufficient to hold
that the accused had abetted his wife to commit suicide and the
circumstances enumerated under Section 113-A of the
Evidence Act have also not been satisfied.

33. In Pinakin Mahipatray Rawal v. State of Gujarat [(2013)
10 SCC 48 : (2013) 4 SCC (Civ) 616 : (2013) 3 SCC (Cri)
801] , this Court has examined the scope of Section 113-A of
the Evidence Act, wherein this Court has reiterated the legal
position that the legislative mandate of Section 113-A of the
Evidence Act is that if 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 the
presumption defined in Section 498-A IPC, the court may
presume, having regard to all other circumstances of the case,
that such suicide had been abetted by the husband or such
person. The court held that, though a presumption could be
drawn, the burden of proof of showing that such an offence
has been committed by the accused under Section 498-A IPC
is on the prosecution. The court held that the burden is on the
prosecution to establish the fact that the deceased committed
suicide and the accused abetted the suicide. In the instant
case, there is no evidence to show whether it was an
accidental death or whether the deceased had committed
suicide.

20. As regards the contention of learned APP for State that extra marital
relations would amount to cruelty Supreme Court in the decision reported as
AIR 2016 SC 5430 K.V Prakash Babu v. State of Karnataka while dealing
with the issue whether involvement of husband in an extra-marital affair

Crl.A.365/2017 Page 19 of 23
invites his conviction for offence punishable under Section 306 IPC for
abetment to commit suicide by the wife, observed as under:

15. Slightly recently in Ghusabhai Raisangbhai Chorasiya v.
State of Gujarat, the Court perusing the material on record
opined that even if the illicit relationship is proven, unless
some other acceptable evidence is brought on record to
establish such high degree of mental cruelty the explanation

(a) to Section 498-A of the IPC which includes cruelty to drive
the woman to commit suicide, would not be attracted. The
relevant passage from the said authority is reproduced
below:–

“True it is, there is some evidence about the illicit
relationship and even if the same is proven, we are of the
considered opinion that cruelty, as envisaged under the
first limb of Section 498A Indian Penal Code would not
get attracted. It would be difficult to hold that the mental
cruelty was of such a degree that it would drive the wife
to commit suicide. Mere extramarital relationship, even if
proved, would be illegal and immoral, as has been said in
Pinakin Mahipatray Rawal (supra), but it would take a
different character if the prosecution brings some
evidence on record to show that the accused had
conducted in such a manner to drive the wife to commit
suicide. In the instant case, the accused may have been
involved in an illicit relationship with the appellant no. 4,
but in the absence of some other acceptable evidence on
record that can establish such high degree of mental
cruelty, the Explanation to Section498-A which includes
cruelty to drive a woman to commit suicide, would not be
attracted.”

16. The concept of mental cruelty depends upon the milieu and
the strata from which the persons come from and definitely has
an individualistic perception regard being had to one’s
endurance and sensitivity. It is difficult to generalize but
certainly it can be appreciated in a set of established facts.

Crl.A.365/2017 Page 20 of 23

Extra-marital relationship, per se, or as such would not come
within the ambit of Section 498-A Indian Penal Code. It would
be an illegal or immoral act, but other ingredients are to be
brought home so that it would constitute a criminal offence.
There is no denial of the fact that the cruelty need not be
physical but a mental torture or abnormal behaviour that
amounts to cruelty or harassment in a given case. It will
depend upon the facts of the said case. To explicate, solely
because the husband is involved in an extra-marital
relationship and there is some suspicion in the mind of wife,
that cannot be regarded as mental cruelty which would attract
mental cruelty for satisfying the ingredients of Section 306
Indian Penal Code.

17. We are absolutely conscious about the presumption
engrafted under Section 113-A of the Evidence Act. The said
provision enables the Court to draw presumption in a
particular fact situation when necessary ingredients in order
to attract the provision are established. In this regard, we may
reproduce a passage from Pinakin Mahipatray Rawal
(supra):–

Criminal law amendment and the rule of procedure was
necessitated so as to meet the social challenge of saving
the 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 the terms defined in Section 498-A Indian Penal
Code, 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 that such an offence has been committed by the
accused under Section 498-A Indian Penal Codeis on the
prosecution.” We have reproduced the aforesaid passage

Crl.A.365/2017 Page 21 of 23
only to highlight that the Court can take aid of the
principles of the statutory presumption.

18. In the instant case, as the evidence would limpidly show,
the wife developed a sense of suspicion that her husband was
going to the house of Ashwathamma in Village Chelur where
he got involved with Deepa, the daughter of Ashwathamma. It
has come on record through various witnesses that the people
talked in the locality with regard to the involvement of the
appellant with Deepa. It needs to be noted that Deepa, being
not able to digest the humiliation, committed suicide. The
mother and the brother of Deepa paved the same path. In such
a situation, it is extremely difficult to hold that the prosecution
has established the charge under Section 498A and the fact
that the said cruelty induced the wife to commit suicide. It is
manifest that the wife was guided by the rumour that
aggravated her suspicion which has no boundary. The seed of
suspicion planted in mind brought the eventual tragedy. But
such an event will not constitute the offence or establish the
guilt of the accused-appellant under Section 306 of the Indian
Penal Code.

19. Having said that we intend to make it clear that if the
husband gets involved in an extra-marital affair that may not
in all circumstances invite conviction under Section 306 of the
Indian Penal Code but definitely that can be a ground for
divorce or other reliefs in a matrimonial dispute under other
enactments. And we so clarify.’

22. On the facts of the present case, it is apparent that the deceased
suspected her husband to be in an extramarital relation which fact she stated
to her family members also, however there is no evidence that in order to
seek divorce from the deceased there was cruelty to the extent that she was
driven to commit suicide. Thus, this Court finds that the prosecution has not
made out any case for raising a presumption that on account of mental

Crl.A.365/2017 Page 22 of 23
cruelty by being involved in an extramarital relationship Wasim abated the
commission of suicide by the deceased.

23. This brings the Court to another facet of facts of the case i.e. whether
the acts of Wasim had a live and proximate link to the death of the deceased
as admittedly prior to the incident the appellant was not in Delhi. Nothing
has been shown that before the death of the deceased she was subjected to
such a mental and physical cruelty by the appellant which abated her
committing suicide. There is no proximate and live link between the cruelty
or demand of dowry and the suicide committed as already held by the
learned Trial Court.

24. However in view of the fact that though not soon before death but
soon after the marriage there was demand of dowry and money was taken,
this Court deems it fit to uphold the conviction under Section 498A IPC.
Consequently the conviction and order on sentence of the appellant for
offence punishable under Section 306 IPC is set aside however, for offence
punishable under Section 498A IPC is maintained.

25. Appeal is disposed of.

26. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.

27. TCR be returned.

(MUKTA GUPTA)
JUDGE
MAY 24, 2018
‘vn’/mamta

Crl.A.365/2017 Page 23 of 23

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