Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.790/2017

(@Petition(s) for Special Leave to Appeal (Crl.) No(s).1165/2017)

HEERA LAL AND ANR Appellant(s)

VERSUS

STATE OF RAJASTHAN Respondent(s)

J U D G M E N T

ROHINTON FALI NARIMAN J

1.Leave granted.

2.In the present case, an F.I.R. dated 28

th

March, 2002 was

lodged in which it was stated that the father-in-law and

mother-in-law of the lady who committed suicide harassed her for at

least five years and this harassment, therefore, led to offences

being committed under Sections 498A and Section 306 of the Indian

Penal Code. The Trial Court relied upon the evidence of PWs 4 and

5, who were neighbours, who attested to the fact that there was

harassment meted by the in-laws to the dead lady. Medical evidence

also shows that there were 90% burns as the lady had poured

kerosene on herself and set herself on fire. Most importantly,

according to both the Trial Court and the High Court, a dying

declaration was made before PW 9 who was a Sub-Divisional

Magistrate, which reads as follows:-

“The PW-9, Himmat Singh has stated that as on 28.03.02, he

was working as SDM and on that day he had gone to the

hospital to record the statement of the deceased. At that

time Dr. Verma was the duty doctor and he has stated that

Lalita was in a state of fitness to record her statement.

When I asked Lalita she had told that she was sleeping and

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Page 2 her in-laws were quarrelling with her every day. Today also

they quarrelled with me. They asked me to leave the house. My

husband is not responsible for anything. He resides in

Kuwait. He has come here now. I am residing separately from

my in-laws. Today they had come with their luggage and said

that they have come to stay with her. I told them that I am

not in good relations with them and therefore I cannot reside

with them. They told, we will stay here and you get lost.

Then I got angry and went inside the kitchen and poured

kerosene from the stove and set myself on fire. My

father-in-law was looking at me but did not try to stop me.

My husband tried to save me. My in-laws were demanding dowry

from me. I did not have any quarrels with my husband. My

signatures are there on the statement recorded by me.

Lalita's thumb impression is there at point X. During the

cross examination by the Ld. Counsel the witness stated that

the statement recorded by him is at Ex. P-5 and at point X

the thumb impression of Lalita is there. At the time of

recording the statement no one from her parent's side was

present and the in-laws of the deceased were turned out of

the room at the time of recording the statement. Lalita's

husband Omprakash was present at the time of Lalita setting

herself on fire and at the time of putting off the flames.”

3.On this evidence, the Trial Court held that the offence under

Section 498A was not made out but convicted the two appellants

before us under Section 306 and sentenced them to imprisonment for

three years. In an appeal filed by them before the High Court, the

High Court, relying upon the aforesaid dying declaration, dismissed

the appeal.

4.Learned counsel for the appellants has argued before us that

the State did not appeal against their acquittal under Section 498A

and, that therefore, the fact that the offence under Section 498A

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Page 3 has not been made out is final. This has a vital bearing on the

offence under Section 306 as one of the ingredients of this offence

is that cruelty should have been meted out by the offenders. He

also argued that based on the dying declaration which has been

given prime importance, this is not a case of abetment as there is

no evidence of any intention to help the deceased to commit

suicide.

5. On the other hand, the learned counsel appearing for the State

of Rajasthan supported the impugned Judgment. According to him, it

is concurrently held, based on the evidence of the case as well as

the dying declaration, that abetment of suicide is made out on the

facts of the case. Learned counsel also heavily relied upon the

presumption contained in Section 113A of the Evidence Act inasmuch

as death has been caused within seven years of the marriage; and

this presumption, not having been rebutted, did not require any

interference at our end.

6.Having heard the learned counsel appearing for the parties and

having gone through the evidence, we are of the opinion that

Section 113A of the Indian Evidence Act requires three ingredients

to be satisfied before it can be applied i.e., (i) that a woman has

committed suicide, (ii) such suicide has been committed within a

period of seven years from the date of her marriage and (iii) the

husband or his relatives who are charged had subjected her to

cruelty.

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7.This Court in an illuminating Judgment in Ramesh Kumar vs.

State of Chhattisgarh (2001) 9 SCC 618 has stated the law as

follows:-

Page 4 “This provision was introduced by the Criminal Law (Second)

Amendment Act, 1983 with effect from 26-12-1983 to meet a

social demand to resolve difficulty of proof where helpless

married women were eliminated by being forced to commit

suicide by the husband or in-laws and incriminating evidence

was usually available within the four corners of the

matrimonial home and hence was not available to anyone outside

the occupants of the house. However, still it cannot be lost

sight of that the presumption is intended to operate against

the accused in the field of criminal law. Before the

presumption may be raised, the foundation thereof must exist.

A bare reading of Section 113-A shows that to attract

applicability of Section 113-A, it must be shown that (i) the

woman has committed suicide, (ii) such suicide has been

committed within a period of seven years from the date of her

marriage, (iii) the husband or his relatives, who are charged

had subjected her to cruelty. On existence and availability of

the abovesaid circumstances, the court may presume that such

suicide had been abetted by her husband or by such relatives

of her husband. Parliament has chosen to sound a note of

caution. Firstly, the presumption is not mandatory; it is only

permissive as the employment of expression “may presume”

suggests. Secondly, the existence and availability of the

abovesaid three circumstances shall not, like a formula,

enable the presumption being drawn; before the presumption may

be drawn the court shall have to have regard to “all the other

circumstances of the case”. A consideration of all the other

circumstances of the case may strengthen the presumption or

may dictate the conscience of the court to abstain from

drawing the presumption. The expression - “the other

circumstances of the case” used in Section 113-A suggests the

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need to reach a cause-and-effect relationship between the

cruelty and the suicide for the purpose of raising a

presumption. Last but not the least, the presumption is not an

irrebuttable one. In spite of a presumption having been raised

the evidence adduced in defence or the facts and circumstances

Page 5 otherwise available on record may destroy the presumption. The

phrase “may presume” used in Section 113-A is defined in

Section 4 of the Evidence Act, which says - “Whenever it is

provided by this Act that the court may presume a fact, it may

either regard such fact as proved, unless and until it is

disproved, or may call for proof of it.”

8.We find that having absolved the appellants of the charge of

cruelty, which is the most basic ingredient for the offence made

out under Section 498A, the third ingredient for application of

Section 113A is missing, namely, that the relatives i.e., the

mother-in-law and father-in-law who are charged under Section 306

had subjected the victim to cruelty. No doubt, in the facts of this

case, it has been concurrently found that the in-laws did harass

her, but harassment is something of a lesser degree than cruelty.

Also, we find on the facts, taken as a whole, that assuming the

presumption under Section 113A would apply, it has been fully

rebutted, for the reason that there is no link or intention on

the part of the in-laws to assist the victim to commit suicide.

9.In the absence of this vital link, the mere fact that there is

a finding of harassment would not lead to the conclusion that there

is “abetment of suicide”.

10On the facts, therefore, we find, especially in view of the

fact that the appellants have been acquitted for the crime under

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Section 498 A of the Code, that abetment of suicide under Section

306 is not made out.

11.In the circumstances, we set aside the impugned Judgment of

the High Court. If incarcerated, the appellants shall be released

forthwith.

Page 6 12.The appeal is allowed in the afore-stated terms.

.......................J

(ROHINTON FALI NARIMAN)

.........................J

(MOHAN M. SHANTANAGOUDAR)

NEW DELHI;

24TH APRIL, 2017.

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