The ingredients of Section 498A IPC
"Section 498A: 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 willful 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."
Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498A IPC.
Cruelty has been defined in the Explanation for the purpose of Section 498A. As per settled law the provisions of Sections 304B and 498A, IPC are not mutually inclusive. These provisions deal with two distinct offences. Cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of 'cruelty'.
In Section 304B there is no such explanation about the meaning of 'cruelty'. But having regard to common background to these offences, meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498A under which 'cruelty' by itself amounts to an offence.
Essential ingredients of Section 304B IPC
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
The harassment has to be in connection with demand of dowry.
In Appasaheb v. State of Maharashtra, 2007 (1) Crimes 110 Hon'ble Supreme Court observed that:
"A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B, I.P.C. viz. demand for dowry is not established, the conviction of the appellants cannot be sustained."
As per the definition of "dowry death" in Section 304B IPC and the wording of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been subjected to cruelty or harassment "soon before her death" and that too "for or in connection with the demand for dowry".
The legal position is well settled that on a joint reading of Section 113B of the Evidence Act and Section 304B IPC it would reveal that there must be cogent material to show that soon before her death the victim was subjected to cruelty or harassment, and that too in connection with any demand for dowry. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances".
The expression "soon before" is very relevant where presumption u/s 113B of the Evidence Act and Section 304B IPC are pressed into service.
In the case reported as 2014 (9) SCC 645 titled as Manohar Lal Vs State of Haryana Hon'ble Supreme Court has observed that prosecution is obliged to prove that soon before the occurrence there was cruelty or harassment; and only thereafter, the presumption under section 113B of Evidence Act would operate. Evidence in this regard has to be led in by the prosecution and established beyond doubt.
In a case reported as Sunil Bajaj vs. State of M.P. 2001 CrLJ (SC) 4700, Hon'ble Supreme Court observed that the allegations of dowry death have to be carefully scrutinized keeping in view of the gravity of punishment.
In regard to the the term "Soon before" in the case of Hira Lal & Others v. State (Govt. of NCT), Delhi, (2003) 8 SCC 80. the Hon'ble Supreme Court has made the following observations:
"The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304 B Indian Penal Code are pressed into service. 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 prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304 B Indian Penal Code and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. 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 concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."
In the case of Vipin Jaiswal v. State of A.P., (2013) 3 SCC 684 the Hon'ble Supreme Court has observed that the allegations of cruelty have to be specific. The relevant para of this judgment reads as under:
"In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, Indian Penal Code, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased."
Hon'ble Supreme Court has taken the same view in the case of 2014 (9) SCC 645 titled as Manohar Lal Vs State of Haryana.
In the recent case reported as Monju Roy & ors. Vs State of West Bengal 2015 (3) Recent Apex Judgments (R.A.J.) 472 the Hon'ble Supreme Court has observed that for proving the offence under section 304B the harassment has to be proved alongwith demand. It is also held that prosecution is to also establish that all family members caused harassment.
Legal Position in Regard to the Provisions of Section 306 & 107 IPC
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.
Section: 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 concealment 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 facilitates the commission thereof, is said to aid the doing of that act."
Definition of Abetment
In the case of M. Mohan v. State Tr. Dy. Supdt. of Police, 2011(2) Recent Apex Judgments 161 (SC), the Hon'ble Supreme Court of India, has defined the abetment as under:
"45. 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.
How Abetment is Done
In Brijlal and Anr. v. State (Delhi Administration) 1984 (2) Crimes 987, the Hon'ble Delhi High Court has explained as to when a person can be held liable for abetting the suicide. The relevant para no.8 of this case reads as under:
Halsbury notices some of the recent English decisions in the matter of classification of offence and complicity in crime. Thus, a person who "assists the perpetrator at the time of its commission, or if he assists or encourages the perpetrator before its commission, was held liable". According to R.V. Gregoryany person who aids, counsel or procures the commission of an offence, whether an offence at common law or by statute, and whether indictable or summary, is liable to be tried and punished as a principal offender. Mere presence at the commission of the crime is not enough to create criminal liability, nor is it enough that a person is present with a secret intention to assist the principal should assistance be required. Some encouragement or assistance must have been given to the principal either before or at the time of the commission of the crime with the intention of furthering its commission. Presence without more may, however, afford some evidence of aid and encouragement. It is an indictable offence at common law for a person to incite or solicit another to commit an offence. For an incitement to be complete, there must be some form of actual communication with a person whom it is intended to incite, where, however, a communication is sent with a view to incite, but does not read the intended recipient the sender may be guilty of an attempt to incite. Incitement is complete though the mind of the person incited is unaffected and not withstanding that person incited intends to inform on the inciter; but there can be no incitement unless one person seeks to persuade or encourage another.
Instigation
In the case reported as Ramesh Kumar Vs State of Chattisgarh, (2001) 9 SCC 618 the Hon'ble Supreme Court has defined the term Instigation as under:
Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
Mens Rea & Intentional Aid
In the case of M. Mohan v. State Tr. Dy. Supdt. of Police, the Hon'ble Supreme Court has held that there has to be mens rea to commit the offence under section 306 IPC. The relevant para reads as under:
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.
Intentional Aid With Harassment Has To Be There; Only Harassment Is Not Sufficient
In the case of Randhir Singh & Anr. v. State of Punjab, (2004) 13 SCC 129, the Hon'ble Supreme Court has held that abetment involves a mental process of instigating a person or intentionally aiding a person in the doing of a thing. It is held that a positive act on the part of the accused to instigate or aid in committing suicide, the conviction under Section 306 IPC cannot be sustained.
Beating No Abetment
In Han Singh v. State, 1983 CLR 123, the wife had committed suicide by taking poison and the accused absconded soon after the incident. The prosecution version was that the accused gave beating to his wife and said to have spoken in anger that 'She could die by taking poison if she liked'. It was held that this fact by itself could not amount to culpable instigation or commission of suicide, beating alleged to have been given also did not amount to abetment to commit suicide.
Thus, in view of the settled law for proving the abetment of suicide, the prosecution is required to establish the following essential elements:
1. the deceased committed suicide;
2. the accused abetted and played positive role with the intention that it results in suicide;
3. the suicide is the direct result of the instigation.