What is distinction between Section 113A and Section 113B of Evidence Act?

It is relevant to note that Under Section 113B, the Court shall presume dowry death unlike Section 113A where the provision says that Court may presume abetment of suicide. This is the vital difference between the two provisions which raises presumption as regards abetment of suicide. When the Courts below want to apply Section 113A of the Evidence Act, the condition precedent is that there has to be first some cogent evidence as regards cruelty & harassment. In the absence of any cogent evidence as regards harassment or abetment in any form like aiding or instigating, the court cannot straightway invoke Section 113A and presume that the Accused abetted the commission of suicide. {Para 13}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1408 of 2015

Decided On: 09.01.2025

Ram Pyarey Vs. The State of Uttar Pradesh

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Citation: 2025 INSC 71,MANU/SC/0074/2025.

Read full Judgment here: Click here.

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Supreme Court: Whether the court must draw presumption under S 113A of Evidence Act if there is no cogent evidence as regards cruelty & harassment

The law as regards the abetment of suicide punishable Under Sections 306 of the Indian Penal Code is now well settled. It appears that the Courts below laid much emphasis on Section 113B of the Evidence Act, 1872 (for short, "the Evidence Act"). Sections 113A {S 117 of BSA} & 113B of the Evidence Act {S 118 of BSA} talks about presumption. Sections 113A {S 117 of BSA} and 113B {S 118 of BSA}respectively read thus:{Para 12}

113A. {S 117 of BSA} 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.

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

113B.{S 118 of BSA} 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 had 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 purposes of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).

13. It is relevant to note that Under Section 113B {S 118 of BSA}, the Court shall presume dowry death unlike Section 113A {S 117 of BSA} where the provision says that Court may presume abetment of suicide. This is the vital difference between the two provisions which raises presumption as regards abetment of suicide. When the Courts below want to apply Section 113A of the Evidence Act, the condition precedent is that there has to be first some cogent evidence as regards cruelty & harassment. In the absence of any cogent evidence as regards harassment or abetment in any form like aiding or instigating, the court cannot straightway invoke Section 113A and presume that the Accused abetted the commission of suicide.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1408 of 2015

Decided On: 09.01.2025

Ram Pyarey Vs. The State of Uttar Pradesh

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Citation: 2025 INSC 71,MANU/SC/0074/2025.

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Under which circumstance the court can convict accused for offences U/S 498A and S 306 of IPC even though accused were not charged under those sections?

 Omission to frame charge does not disable the court from convicting the Accused for the offence which is found to have been proved on the evidence on record. The code has ample provisions to meet a situation like the one before us. From the statement of charge framed Under Section 304B and in the alternative Section 306, it is clear that all the facts and ingredients for framing the charge for offence Under Section 306 existed. The mere omission on the part of the trial judge to mention Section 306 Indian Penal Code with 498A would not preclude this Court from convicting the Accused for the said offence when found proved. In the charge framed Under Section 304B of Indian Penal Code, it has been clearly mentioned that the Accused has subjected the deceased to such cruelty and harassment as to drive her to commit suicide by self-immolation and as such non-framing of the specific charge would not be fatal in the instant case as no injustice is being caused to the Accused. {Para 28}

29. This Court in K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and Ors. MANU/SC/0890/2002 : (2003) 1 SCC 217 has held that mere omission or defect in framing of charge would not be fatal if from the statement of charge Under Section 304B and in the alternative Section 498A, it is clear that all facts and ingredients for framing of charge Under Section 306 existed in the case, same would suffice. It was further held that:

22. Mere omission or defect in framing charge does not disable the criminal court from convicting the Accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed Under Section 304-B and in the alternative Section 498-A Indian Penal Code (as quoted above) it is clear that all facts and ingredients for framing charge for offence Under Section 306 Indian Penal Code existed in the case. The mere omission on the part of the trial Judge to mention Section 306 Indian Penal Code with Section 498-A Indian Penal Code does not preclude the court from convicting the Accused for the said offence when found proved. In the alternate charge framed Under Section 498-A Indian Penal Code, it has been clearly mentioned that the Accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 Code of Criminal Procedure take care of such a situation and safeguard the powers of the criminal court to convict an Accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 Code of Criminal Procedure needs reproduction:

221. Where it is doubtful what offence has been committed.-(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the Accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the Accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

23. The provision of Sub-section (2) of Section 221 read with Sub-section (1) of the said Section can be taken aid of in convicting and sentencing Accused 1 of offence of abetment of suicide Under Section 306 Indian Penal Code along with or instead of Section 498-A Indian Penal Code.

24. Section 215 allows the criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the Accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 Code of Criminal Procedure which reads:

215. Effect of errors.-No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the Accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

25. As provided in Section 215 Code of Criminal Procedure omission to frame charge Under Section 306 Indian Penal Code has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge Under Section 306 Indian Penal Code and direct a retrial for that charge. The Accused cannot legitimately complain of any want of opportunity to defend the charge Under Section 306 Indian Penal Code and a consequent failure of justice. 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 Indian Penal Code 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 Indian Penal Code. 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 Indian Penal Code.

30. In the aforesaid background and the evidence on record as already noticed by us hereinabove, it can be safely noted that High Court ought to have examined as to whether Accused could have been convicted for an offence for which no charge was framed and not undertaking of such an exercise would result in failure of justice? Thus, it will have to be seen from the facts unfolded in the present case as to whether the Accused was aware of the basic ingredients of the offence for which they are being tried and whether the main facts sought to be established against them were explained to them clearly and whether they got a fair chance to defend themselves. If the answer is in the affirmative, then necessarily this Court will have to proceed further and examine as to whether Accused can be convicted for the offence not charged and if the answer is in the negative it would result in acquittal of the Accused for said offence. In the instant case the dying declaration of the deceased would clearly indicate that deceased was mentally traumatized and she was unable to tolerate the torture and harassment meted out by the Accused person on account of which she committed suicide. It is this taunting or mental torture which she could not withstand and forced her to commit suicide by self- immolation. In that view of the matter, we are of the considered opinion that Accused persons are liable to be convicted for the offence punishable Under Section 306 Indian Penal Code though charge was not framed. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3274 of 2023 

Decided On: 19.10.2023

Paranagouda and Ors. Vs. The State of Karnataka and Ors.

Hon'ble Judges/Coram:

S. Ravindra Bhat and Aravind Kumar, JJ.

Author: Aravind Kumar, J.

Citation: MANU/SC/1171/2023.

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What are the essential ingredients for applicability of S 113A of Evidence Act?

  From the bare reading of the said provisions, it clearly transpires that in order to convict a person for the offences under Section 306 IPC, the basic constituents of the offence namely where the death was suicidal and whether there was an abetment on the part of the accused as contemplated in Section 107 IPC have to be established. {Para 8}

44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.”

10. In view of the above, it is quite clear that in order to bring the case within the purview of ‘Abetment’ under Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused. For the purpose proving the charge under Section 306 IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide.

15. In Mangat Ram Vs. State of Haryana (2014) 12 SCC 595, this Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under: -

“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 sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION 

CRIMINAL APPEAL NO. …. Of 2023 (Arising out of SLP (Crl.) No. 8584/2022) 

KASHIBAI & ORS. Vs THE STATE OF KARNATAKA

Coram: AJAY RASTOGI; J., BELA M. TRIVEDI; J. 

BELA M. TRIVEDI, J.

Dated: 28.02.2023 

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Whether court can convict accused for an offence U/S 306 of IPC if he was charged under S 498A and 304B of IPC?

 Both the Courts below have found the husband guilty of cruel treatment of his wife and as a result the wife committed suicide within seven years of their marriage. On such evidence the presumption which arises under Section 113A of the Evidence Act is that the husband abetted the suicide. The word "cruelty" as mentioned in the Explanation below Section 113A of the Evidence act has been given the same meaning as contained in the Explanation below Section 498A, IPC. On the fact found, 'the wilful' conduct of the husband in forcing the deceased to part with her land which she had received in marriage as "stridhana" and for that purpose concealing her postal mail was so cruel that she was driven to commit suicide. A case of conviction and sentence of accused No. 1 under Section 306, IPC has thus clearly been made out even though his acquittal for commission of the offence of 'dowry death' punishable under Section 304B, IPC is not found liable to be disturbed.

20. The learned counsel for the accused has argued that in the absence of a charge framed against the accused under Section 306 IPC, the accused cannot be convicted under the said Section.

21. From the record we find that although a charge specifically under Section 306 IPC was not framed but all facts and ingredients constituting that offence were mentioned in the Statement of Charges framed under Section 498A and Section 304B of IPC. 

22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the Alternative Section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence.

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 1457 of 1995

Decided On: 25.10.2002

 K. Prema S. Rao  Vs.  Yadla Srinivasa Rao and Ors.

Hon'ble Judges/Coram:

M.B. Shah, K.G. Balakrishnan and D.M. Dharmadhikari, JJ.

Citation: MANU/SC/0890/2002,(2003) 1 SCC 217

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Whether husband and his relatives can be convicted for abetment of suicide of wife if they are acquitted in offence U/S 498A of IPC?

This Court in an illuminating judgment in Ramesh Kumar v. State of Chhattisgarh MANU/SC/0654/2001 : (2001) 9 SCC 618 has stated the law as follows:

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 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 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".

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 790/2017 

Decided On: 24.04.2017

 Heera Lal  Vs.  State of Rajasthan

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Mohan M. Shantanagoudar, JJ.

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Whether Seeking Financial Help from Wife amount to Cruelty?

 Insofar   as   the   allegations   of   ill­treatment   are

concerned, from the evidence it appears that the prosecution

witnesses have not described any specific instance or specific

nature   of   ill­treatment.   P.W.1   has   merely   stated   that   the

Appellant used to harass Kavita because she was unable to cook

properly and that he used to give abuses to her. This conduct by

itself will not fall within the meaning of explanation (A) u/s

498­A, where the term “Cruelty” is explained. In the fact of this

case, it cannot be said that this conduct of the Appellant was of

such a nature that it was likely to drive Kavita to commit suicide

or to cause grave injury or danger to her life, limb or health. The

allegations fall much short of the requirements of explanation

(a) to section 498­A.

22. Insofar as the demand of Rs.1,000/­ is concerned, as

mentioned earlier, there are no allegations that on that count

specifically Kavita was harassed. Therefore even explanation (b)

where “Cruelty” is explained u/s 498­A is not attracted in the

present case. Even as per the prosecution case, the Appellant

was seeking financial help to secure a room on rent. Considering

the Appellant's poor financial condition, such request for help

cannot be termed as 'unlawful demand.' There is no evidence to

show that the deceased was ill­treated because the amount of

Rs.1,000/­ was not paid.

23. Ms.Kaushik submitted that since the deceased Kavita

had committed suicide within six month of marriage, section

113­A of the Indian Evidence Act, is attracted. The Court was

required   to   raise   the   presumption   against   the   accused.   The

burden shifted on the Appellant to prove his defence. In this

context it is necessary to consider section 113­A of the Indian

Evidence Act, which reads thus;

“113­A – 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.”

24. In this case it is true that the deceased Kavita had

committed suicide within six months of marriage. But the crucial

question remains as to whether the prosecution has been able to

discharge its initial burden of showing that her husband had

subjected her to cruelty. For the purpose of this section again

reference is made to the explanation to section 498­A of IPC

where 'cruelty' is explained. As discussed hereinabove, I have

already   reached   the   conclusion   that   the   prosecution   has   not

been able to prove that the Appellant had treated the deceased

with cruelty within the meaning of section 498­A of IPC. In my

opinion, therefore section 113­A is not attracted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.305 OF 2002

Ananta Laxman Pansare Vs The State of Maharashtra

CORAM :  SARANG V. KOTWAL, J.

DATE :  07th MAY, 2018.

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