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25. The next question which is of great importance is whether the presumption as to abetment to suicide under the newly inserted Section 113A. of the Indian Evidence Act can be pressed into service in this case. Section 113A was inserted in the Evidence Act with effect from 25.12.83 by Criminal Law (Second Amendment) Act, 1983. It reads as follows :

"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 7 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.

26. The occurrence took place on 15.6.83 long before Section 113A came into force. Now, the question is whether Section 113A of the Evidence Act has retrospective operation and applies to the present case. Mr. Ghosh, learned Advocate appearing for the appellants has contended that this provision though inserted in the Evidence Act has a substantive character and in effect changes the ingredient of abetment as defined in Section 107 and consequently the offence under Section 306, Indian Penal Code and it might as well have been inserted as Explanation to Section 306, Indian Penal Code. He has alternatively contended that the provision of Section 113A, even if be regarded as a mere change in the rule of evidence, it should not be given retrospective effect inasmuch as the change of the rule is for the purpose of conviction which operates harshly and in equitably on the accused. The learned Advocate appearing for the State has contended that this being a change in the mere procedural law has retrospective operation and is applicable to the present case.

28. The 4th and the last item referring to laws changing the legal rules of evidence is relevant for our present purpose. The new rule of evidence as incorporated in Section 113A squarely comes within the purview of the 4th item referred to above. As seen earlier, the mere proof of cruelty, without anything more, would have been insufficient to prove the offence of abetment to suicide under Section 306, Indian Penal Code in accordance with the definition of abetment in Section 107, Indian Penal Code and the appellants could not, therefore, be convicted under the existing law regarding the rules of evidence without pressing into service the presumption under Section 113A. The effect of the Amendment is that the prosecution is relieved of the onus to prove the ingredients of abetment to suicide beyond reasonable doubt under the amended law, in case of a suicide by a married woman within 7 years of marriage, mere proof of cruelty within the meaning of Section 498A, Indian Penal Code which was also simultaneously inserted, to a married woman by the husband or any relative of the husband would entitle the prosecution to the presumption that such suicide had been abetted by her husband or by such relative of her husband and the onus would then shift to the accused to prove that he did not abet the said suicide. Section 113A clearly provides for a less or different testimony than the law required at the time of the offence in order to convict the offender causing hardship to the accused. In our opinion, Section 113A must, therefore, be regarded as ex post facto law having no retrospective operation.

29. The learned Advocate for the State has referred to a Single Bench decision of the Punjab and Haryana High Court in Ramesh Kumar v. State of Punjab, 1986 Cri. LJ 2087, wherein the learned Judge has held that Section 113A of the Evidence Act is applicable to the crime committed before insertion of the section in the Act on the ground that being part of the Law of Procedure, changes in the rules of evidence like changes in other rules of procedure are retrospective in nature. The learned Judge has not considered the exception in the case of change of the rules of evidence for the purpose of conviction in a criminal trial as referred to above. We respectfully differ from him and hold that Section 113A of the Evidence Act is not applicable to a case of suicide by a married woman committed before it came into force, i.e., 25.12.83. We need not, therefore, consider whether Section 113A has in effect altered substantive law.