REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO. 5885 OF 2009   

THANU RAM          … PETITIONER  Vs.

STATE OF M.P.  … RESPONDENT

J U D G M E N T

ALTAMAS KABIR, J.

1. The Petitioner herein, Thanu Ram, was married  

to Hirabai (deceased) in 1984.  On 24th March, 1988,  

Hirabai committed suicide in her matrimonial home  

by  sprinkling  kerosene  upon  herself  and  setting

herself on fire.  She died in the hospital on 25th  

March, 1988, having suffered 90-95% burn injuries.  

Prior to her death, she made a dying declaration to  

the Naib Tahsildar, J.R. Lahre, who was examined by  

the prosecution as P.W.9. Dr. K. Vinay Kumar, in  

whose  presence  the  declaration  was  made,  was  

examined by the prosecution as P.W.11 to testify  

that Hirabai was in a fit mental condition to make  

the dying declaration before P.W.9.   

2. The  Petitioner,  his  father,  Dhanaram,  and  

mother, Lachhavantin, were tried and convicted for  

the offence punishable under Section 498-A and 306  

of the Indian Penal Code (IPC) and sentenced to  

undergo  Rigorous  Imprisonment  for  3  years  and  5  

years,  respectively.  In  appeal  before  the  High  

Court, accused Dhanaram was acquitted, while the  

conviction and sentence of the Petitioner and his  

mother were confirmed.   

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This Special Leave Petition has been preferred  

by the husband of the deceased, Thanu Ram, against  

the said judgment and order of the High Court.  For  

the sake of record, it may be mentioned that the  

Petitioner’s mother, Lachhavantin, died in prison  

while serving her sentence.   

3. Dr.  Rajesh  Pandey,  learned  Advocate  for  the  

Petitioner, raised two basic issues in the course  

of  his  submissions,  namely,  (i)  whether  the  

offences complained of under Sections 306 and 498-A  

IPC were at all sustainable, and (ii) whether the  

dying  declaration,  said  to  have  been  made  by  

Hirabai on which the decision of the Courts below  

was  based,  could  have  been  relied  upon  without  

proper corroboration.   

4. The prosecution examined 13 witnesses to prove  

its case which was denied by the accused in their  

statement under Section 313 of the Code of Criminal  

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Procedure (Cr.P.C.).  According to the prosecution,  

since Hirabai committed suicide within 7 years of  

her marriage with the Petitioner, the presumption  

under  Section  113-A  of  the  Indian  Evidence  Act,  

1872, was available against the accused and having  

regard to the evidence adduced by the prosecution,  

a case had clearly been made out for conviction of  

all the accused persons under Sections 306 and 498-

A IPC.

5. Dr. Pandey urged that the Trial Court as well  

as the High Court had failed to notice the main  

ingredient  of  an  offence  under  Section  306  IPC,  

namely, the question of abetment in the commission  

of such suicide which has been spelt out in Section  

107 IPC.  Learned counsel pointed out that in order  

to abet the doing of a thing, the abettor must be  

found  to  have  instigated  any  person  to  do  such  

thing or engage with one or more person or persons  

in any conspiracy for the doing of that thing.   

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6. In addition to the above, Dr. Pandey contended  

that the meaning of the expression “cruelty” used  

in Section 498-A IPC cannot be linked up with an  

offence  under  Section  306  IPC,  unless  the  

“intention” as mentioned in Section 107 IPC or the  

presumption available under Section 113-A of the  

Indian  Evidence  Act,  were  duly  satisfied.   Dr.  

Pandey submitted that in the instant case, there is  

no  evidence  on  record  to  indicate  that  the  

Petitioner had, in any way, instigated Hirabai with  

the  intention  of  making  her  commit  suicide.  

Accordingly,  the  charge  under  Section  306  IPC  

cannot be sustained.

7. In the course of his aforesaid submissions, Dr.  

Pandey  referred  to  the  evidence  of  P.W.9,  J.R.  

Lahre, Naib Tahsildar and Executive Magistrate, who  

had recorded the dying declaration of Hirabai at  

the hospital on 24th March, 2008.  From the evidence  

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of P.W.9, Dr. Pandey pointed out that while Hirabai  

had  spoken  in  Chattisgarhi,  the  said  statements  

were recorded by P.W.9 in Hindi.  Dr. Pandey then  

referred to the evidence of P.W.11, Dr. K. Vinay  

Kumar,  who  had  in  his  evidence  stated  that  the  

deceased  had  spoken  in  Hindi,  and  not  in  

Chattisgarhi, as stated by P.W.9, and the same had  

been recorded in Hindi by P.W.9.  Dr. Pandey urged  

that  the  said  contradictions  were  sufficient  to  

throw  doubt  on  the  veracity  of  the  dying  

declaration, which should have been discarded, both  

by the Trial Court, as well as by the High Court.

8. In support of his submissions, learned counsel  

firstly referred to a Three-Judge Bench decision of  

this  Court  in  Rakesh  Kumar Vs.  State  of  

Chhattisgarh [(2001)  9  SCC  618],  where  the  same  

question fell for consideration and it was,  inter  

alia, held that merely because an accused is found  

guilty  under  Section  498-A  IPC,  he  should  not  

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necessarily be held to be guilty under Section 306  

IPC on the basis of the same evidence.  It was held  

that in order to make out a case under Section 306  

IPC,  the  requirements  of  Section  113-A  of  the  

Evidence  Act  would  have  to  be  satisfied,  having  

particular regard to the element of instigation and  

that there must be a reasonable certainty to incite  

the conspiracy.   

9. Reliance was also placed on the decision of  

this Court in Amalendu Pal vs. State of West Bengal  

[(2010)  1  SCC  707],  where  this  Court  was  

considering whether a case of abetment of suicide  

had been made out as provided under Section 107  

IPC, and it was held that in the absence of any  

direct evidence to show that the appellant had by  

his  acts  instigated  or  provoked  the  deceased  to  

commit suicide, the offence could not be brought  

within the ambit of Section 306 IPC, although, the  

conviction under Section 498-A IPC was upheld.   

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10. Dr. Pandey also referred to the decision of  

this  Court  in  Sushil  Kumar  Sharma Vs.  Union  of  

India & Ors. [(2005) 6 SCC 281], where the vires of  

Section  498-A  IPC  had  been  challenged.   In  the  

course  of  his  submissions,  the  question  also  

surfaced  as  to  whether  the  consequences  of  

“cruelty” within the meaning of Section 498-A IPC,  

which  are  likely  to  drive  a  woman  to  commit  

suicide, were required to be established in order  

to apply the provisions of Section 498-A IPC.  The  

said case examined the provisions of Section 304-B  

IPC in relation to Section 498-A IPC and the effect  

of Section 304-B of the Evidence Act, and in course  

of such discussion, it was sought to be observed  

that the basic difference between Sections 306 IPC  

and 498-A IPC is that of intention.  It was held  

that under Section 498-A IPC, cruelty committed by  

the husband or his relations result in the woman  

committing  suicide,  whereas  Section  306  involves  

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the abetting of an offence under Section 306 IPC  

with  the  intention  of  making  the  victim  take  

recourse to taking her own life.

11. Yet another decision of this Court in the case  

of Gangula Mohan Reddy Vs. State of Andhra Pradesh  

[(2010) 1 SCC 750], was referred by Dr. Pandey.  In  

the  said  decision,  the  Court  reiterated  the  

observations made by this Court in Randhir Singh &  

Anr. Vs.  State of Punjab [(2004) 13 SCC 129], to  

the effect that abetment involves a mental process  

of instigating a person or intentionally aiding a  

person in the doing of a thing.  Without a positive  

act on the part of the accused to instigate or aid  

in committing suicide, conviction under Section 306  

IPC cannot be sustained.   

12. In conclusion, learned counsel referred to the  

decision of this Court in  B. Shashikala Vs. State  

of A.P. [(2004) 13 SCC 249], where a question had  

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arisen regarding recording of the dying declaration  

of the victim in Hindi by the learned Magistrate  

who asked the questions in English with the victim  

replying  in  Hindi  and  the  Doctor  acting  as  a  

translator between them.  It was held that since  

both  the  Magistrate  and  the  Doctor  had  working  

knowledge  of  Hindi  and  since  both  had  certified  

about the translation, there was no possibility of  

the  victim  making  any  tutored  statement.   The  

declaration  was,  therefore,  held  to  be  rightly  

admitted and relied upon by the Courts below.

13. Dr. Pandey submitted that in the absence of any  

proven intention on the part of the Petitioner to  

instigate Hirabai into committing suicide by his  

actions, his conviction under Section 306 IPC could  

not be sustained and was liable to be set aside,  

even if the evidence adduced made out a case under  

Section 498-A IPC.  

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14. The  submissions  made  on  behalf  of  the  

Petitioner were strongly resisted on behalf of the  

State  of  Chhattisgarh  by  Mr.  Atul  Jha,  learned  

Advocate, who urged that the Trial Court had held  

that  nothing  had  been  elucidated  by  the  defence  

from the evidence of P.W.9 and P.W.11 which could  

cause  the  evidence  of  the  said  witnesses  to  be  

disbelieved.  On the other hand, the Trial Court  

had observed that from the statements of P.W.9 and  

P.W.11 it had been proved beyond doubt that the  

dying declaration of the deceased Hirabai had been  

correctly recorded prior to her death.  Mr. Jha  

submitted that the acts of cruelty committed by the  

accused  against  Hirabai  had  been  clearly  

demonstrated from the evidence of P.W.2, Jodhiram,  

father of the deceased, P.W.3, Devsir Bai, mother  

of  the  deceased,  and  P.Ws.  7  and  13,  who  are  

brothers of the deceased.  Mr. Jha submitted that  

the  said  acts  of  mental,  physical  abuse  and  

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cruelty, were sufficient to drive a young woman to  

commit  suicide  within  7  years  of  her  marriage,  

notwithstanding the fact that she was six months’  

pregnant and such fact was known to the Petitioner.  

It  was  submitted  that  the  intention  of  the  

Petitioner to instigate and/or provoke the victim  

into  committing  suicide,  was  writ  large  on  the  

available evidence and the judgment of conviction  

and sentence of the Trial Court, which was affirmed  

by  the  High  Court,  did  not  warrant  any  

interference.   

15. In regard to the several decisions cited by Dr.  

Pandey, Mr. Jha submitted that the principles laid  

down therein were never in question, but the same  

had only limited application as far as the facts of  

the present case are concerned.

16. As will be evident from the submissions made on  

behalf  of  the  respective  parties,  and,  

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particularly,  those  advanced  by  Dr.  Pandey,  the  

differences between the provisions of Section 498-A  

IPC and 306 IPC, in the light of Section 107 IPC  

and  Section  113-A  of  the  Evidence  Act,  assumes  

importance.  That there is sufficient evidence to  

bring home a charge under Section 498-A IPC, is not  

seriously  disputed.   What  is  urged  in  all  

earnestness on behalf of the Petitioner is that in  

the absence of any intention to instigate Hirabai  

into committing suicide by his actions, which may  

at best amount to cruelty within the meaning of  

Section 498-A IPC, the provisions of Section 107  

IPC and Section 113-A of the Indian Evidence Act  

were not attracted to the facts of the case.   

17. In  order  to  appreciate  the  legal  conundrum  

which has been presented by the facts of this case,  

the provisions of Section 306 and 107 IPC, as also  

Section 498-A thereof, are extracted hereinbelow,  

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along with the provisions of Section 113-A of the  

Evidence Act :

“Section 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.”

“107. Abetment of a thing.--A person abets  the  doing  of  a  thing,  who  First.-  Instigates any person to do that thing; or Secondly.-Engages with one or more other  person  or  persons  in  any  conspiracy  for  the  doing  of  that  thing,  if  an  act  or  illegal omission takes place in pursuance  of that conspiracy, and in order to the  doing  of  that  thing;  or  Thirdly.- Intentionally aids, by any act or illegal  omission, the doing of that thing.

Explanation 1.-  A  person  who,  by  wilful  misrepresentation,  or  by  wilful  conceal- ment of a material fact which he is bound  to  disclose,  voluntarily  causes  or  procures, or attempts to cause or procure,  a thing to be done, is said to instigate  the doing of that thing.

Explanation 2.- Whoever, either prior to  or  at  the  time  of  the  commission  of  an  act, does anything in order to facilitate  the  commission  of  that  act,  and  thereby  facilitate the commission thereof, is said  to aid the doing of that act.”  

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“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  purpose  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.”  

“113A.  Presumption  as  to  abetment  of  suicide  by  a  married  women.- 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  

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husband  or  by  such  relative  of  her  husband.

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

18. Section  107  IPC  clearly  defines  abetment  to  

mean that a person abets the doing of a thing who  

instigates a person to do that thing.  The question  

with which we are confronted is whether there is  

sufficient evidence on record to indicate that by  

any  of  the  acts  of  cruelty  attributed  to  the  

Petitioner,  there  was  an  intention  to  instigate  

Hirabai  into  committing  suicide.   There  is  no  

getting away from the fact that Hirabai committed  

suicide in the 4th year of her marriage when she was  

six months’ pregnant.  Ordinarily, a woman in an  

advanced  stage  of  pregnancy  would  not  commit  

suicide even when treated with cruelty.  It is only  

in extreme circumstances that a woman may decide to  

take her life and that of her unborn child when she  

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reaches a point of no return and is in a mental  

state to take her own life.  In the instant case,  

we  have  the  dying  declaration  of  the  victim  

Hirabai,  which  we  are  inclined  to  rely  upon,  

notwithstanding the objections raised by Dr. Pandey  

regarding  its  veracity.  We  see  no  reason  to  

disbelieve either P.W.9, J.R. Lahre, Naib Tahsildar  

and Executive Magistrate, or P.W.11, Dr. K. Vinay  

Kumar, who attended to Hirabai in the hospital.  As  

is well-established, a dying declaration has to be  

treated with caution, since the accused does not  

get a chance to cross-examine the victim.  In this  

case,  however,  there  is  no  ambiguity  or  

irregularity  as  far  as  the  dying  declaration  is  

concerned  and  it  has  been  stated  in  clear  and  

simple language that the victim had been treated  

with  both  mental  and  physical  cruelty  and  the  

victim  has  stated  quite  candidly  how  she  poured  

kerosene on her body and set herself on fire.  The  

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evidence  of  P.W.13,  Uttam  Kumar,  the  younger  

brother of the deceased, corroborates the story of  

the prosecution as to the manner in which Hirabai  

was treated by the Petitioner, which triggered her  

immediate intention to commit suicide which was the  

culminating point of ill-treatment meted out to her  

by the Petitioner and his mother.   

19. In  our  view,  the  element  of  instigation  as  

understood within the meaning of Section 107 IPC is  

duly  satisfied  in  this  case  in  view  of  the  

provisions of Section 113-A of the Indian Evidence  

Act, 1872, which provides for a presumption to be  

arrived  at  regarding  abetment  of  suicide  by  a  

married woman and certain criteria are also laid  

down therein.  The first criterion is that such  

suicide  must  have  been  committed  within  7  years  

from  the  date  of  the  victim’s  marriage.   Since  

Hirabai committed suicide in the 4th year of her  

marriage, such condition is duly satisfied.  The  

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second  condition  is  that  the  husband  or  such  

relative of the husband had subjected the victim to  

cruelty which led to the commission of suicide by  

the victim.  Section 113-A indicates that in such  

circumstances, the Court may presume, having regard  

to all the circumstances of the case, that such  

suicide had been abetted by her husband or by such  

relative of her husband.  In the Explanation to  

Section 113-A it has also been indicated that for  

the  purpose  of  the  said  Section,  the  expression  

“cruelty” would have the same meaning as in Section  

498-A IPC.  Accordingly, if the degree of cruelty  

is such as to warrant a conviction under Section  

498-A  IPC,  the  same  may  be  sufficient  for  a  

presumption to be drawn under Section 113-A of the  

Evidence  Act  in  harmony  with  the  provisions  of  

Section 107 IPC.

20. All the decisions on the point cited by Dr.  

Pandey, deal with the differences in relation to  

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the  provisions  of  Section  498-A  and  Section  306  

IPC, except in Sushil Kumar Sharma’s case (supra),  

where the provisions of Section 498-A IPC had been  

considered in the context of Section 304-B IPC.  In  

that context, it was sought to be explained that  

the big difference between Section 306 IPC and 498-

A IPC is that of intention.  The provisions of  

Section 113-A of the Indian Evidence Act or its  

impact on an offence under Section 498-A IPC or  

Section 306 IPC vis-à-vis Section 107 IPC was not  

considered in any of these decisions.   

21. In our view, it is the said provision which  

makes all the difference as far as the present case  

is concerned.  Section 113-A of the Evidence Act  

establishes a link between an offence under Section  

498-A IPC, 107 IPC and 306 IPC, thereby permitting  

the Court to presume the commission of an offence  

under  section  107  IPC  on  the  basis  of  evidence  

adduced  to  prove  an  offence  under  Section  498-A  

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IPC.  As mentioned hereinbefore, the evidence of  

P.Ws.2,  3,  7,  9,  11  and  13  is  sufficient  to  

establish  the  prosecution  case  against  the  

Petitioner under Section 498-A IPC and Section 306  

IPC.

22. We, therefore, see no reason to interfere with  

the  impugned  judgment  of  the  High  Court  or  the  

Trial  Court.   The  Special  Leave  Petition  is,  

accordingly, dismissed.  

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (A.K. PATNAIK)

New Delhi Dated:05.10.2010

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