N Criminal Appeal No 168of 1991
From the Judgment and Order dated 2671989 of the Madya Pradesh High Court in Crl
A No 102 of 1984
GL Sanghi and AK Sanghi for the Appellants
The facts are few and simple
The first appellant Rajendra on 30th June 1982 while running a shop under the name and style of Ms Kumarvad Bros in Khargaon Municipal ity was found exhibiting and offering for sale tea dust the quantity of which was about 112 kgs
DP Nath PW 1 the Food Inspector for Khargaon purchased tea dust in the requisite quantity for test
The purchased tea was dealt with in the prescribed manner as per rules on the subject
The purchase and other attendant documents were witnessed by Madan P W  2 and another
The Public Analyst Bhopal to whom one of the three samples was sent for analysis opined that the food article fell below the prescribed standard as its contents were present in quantities not within the prescribed limits of variabili ty
The report of the Public Analyst was communicated to the first appellant as well as to his two brothers the second and third appellants because it appears that at the time of 99 the sale of the tea to the Food Inspector he was told by the first appellants that the court s intervention could be sought to have one of three brothers
The accompanying covering letter suggested to the appellants that the court s intervention could be sought to have one of the samples kept by the Local Health Authority examined one more time
The appellants did not avail of the opportunity and faced the prosecution launched under section 7 read with section 16 of the before the Chief Judicial Magistrate Khargaon
Before the Trial Magistrate the facts as alleged by the prosecution regarding sale by the first appellant to the Food Inspector and of the article of food being adulterated as per report of the Public Analyst were not disputed
Shelter however was taken behind the provisions of Rules 73 and 9 A of the Prevention of Food Adulteration Rules 1955 as then standing whereunder the Public Analyst was required to send his report to the Local Health Authority within 45 days which he had not done and the Local Health Authority was required to immediately  after the institu tion of prosecution forward a copy of the report of the result of the analysis to the appellants
Since there was a delay of nearly a month on that count the Trial Magistrate viewed this lapse as total to the prosecution
Furthermore the Trial Magistrate took the view that in the covering letter while sending the report nowhere had the appellants been told that they had a right to have the second sample with the Local Health Authority analysed by the Central Food Laboratory in terms of section 132 of the Act
The Trial Magistrate perhaps had in mind that had this been mentioned the appellants may have chosen to avail of the opportunity of the analysis by the Central Food Laboratory and such report would have superseded the report of the Public Ana lyst whether for or against the appellants
On these two grounds the learned Trial Magistrate recorded acquittal of the appellants
The High Court on appeal by the State of Madhya Pradesh reversed the Order of acquittal and recorded conviction of the appellants add sentenced each one of them to six months  rigorous imprisonment and to pay a fine of Rs5000 each
This has occasioned the appeal before us
Our attention was brought to the aforesaid rules and section 132 of the Act and the case law on the subject
Rule 73 requires that the Public Analyst shall within a period of 45 days of the receipt of any sample for analysis deliver to the Local Health Authority a report of the result of such analysis in Form III
The Trial Magistrate found that this duty was not discharged by the Public Ana lyst within 100 the prescribed period of 45 days
The High Court however recomputed the period and came to the conclusion that such duty was performed within the prescribed period
That find ing is one of fact and nothing has been addressed to us in that regard
So far as the Local Health Authority being required to immediately  after the institution of prosecu tion send a copy of the report of the result of the analysis in Form III its failure to do so instantly was held to be of no consequence relying on a judgment of this Court in Tulsiram vs State of Madhya Pradesh  where in the word immediately  was interpreted to convey reason able despatch and promptitude  intending to convey a sense of continuity rather than urgency
This Court then ruled at page 497 as follows The real question is was the Public Ana lyst s report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the court to send one of the samples to the Central Food Laboratory for analysis
If after receiving the Public Analyst s report he never sought to apply to the court to have the sample sent to the Central food Laborato ry as in the present case he may not be heard to complain of the delay in the receipt of the report by him unless of course he is able to establish some other prejudice
Our conclusions on this question are The expres sion immediately  in Rule 9 A is intended to convey a sense of continuity rather than urgency
What must be done is to forward the report at the earliest opportunity so as to facilitate the exercise of the statutory right under section 132 in good and sufficient time before the prosecution commences leading evidence
Non compliance with Rule 9 A is not fatal
It is a question of prejudice
 Tulsirarn s case was thus a complete answer to the conten tion to contrary
The next question which requires consideration is wheth er all the appellants are guilty of the crime
From the material available on the record we find no basis to sus tain the conviction of the second and third appellants Om Prakash and Subhash
There is no evidence worth the name to conclusively prove their complicity beyond reasonable doubt
The first appellant is alleged to have told the Food Inspec tor on the date of sale of tea dust that the shop was being run in partnership by him with his two brothers
This was the only case set up by 101 the prosecution at the trial
No evidence was gathered or tendered to prove the partnership
On the facts which are eloquent the first appellant alone made the sale of tea dust to the Food Inspector and not all
Burden was on the prosecution to prove the existence of the partnership
We do not propose to indulge in the refinery of civil law but have to adopt the cautious approach to adjudge criminality of the accused appellants
Even it the Food Inspector is believed that the first appellant told him that the business on the shop was being run in partnership that per he was not enough to inculpate the remaining two appellants without further evidence 
We find an area of doubt in this sphere and extending the same to the second and third appellants order their acquittal
They be discharged from their bail bonds
Fine if paid be refunded to them
The case of the first appellant stands singled out
His conviction was well deserved which is hereby maintained confirming the sentence of imprisonment but reducing the fine to Rs 1000 in default of payment of which further rigorous imprisonment for one month is ordered
He shall surrender to his bail bonds
The excess fine if paid be refunded to the first appellant
As a result the appeal of appellants 2  3 is allowed and that of appellant No 1 dismissed subject however to the reduction of sentence
RP Appeal dis posed of


Summary:
Respondent No 1 s wife setting herself and her three children ablaze died at her husband s house on 761983
The marriage had taken place seven or eight years before the incident
The deceased wife was working as a teacher while her husband was a clerk
Soon after the marriage there were disputes between them on the question of dowry
The demand for extra dowry strained the relations between them them and the husband began to ill treat the deceased wife
The deceased had written a letter to the Deputy Superintendent of Police on 12101977 complaining about the ill treatment meted out to her and apprehending danger to her life and the lives of her children
When the police came to inquire into the matter there was some understanding as a result of which she had informed the police that no further action be taken for the present but her application may be kept pending
Later a divorce deed was executed but not acted upon
The situation did not improved
On 761983 the very morning of incident the deceased wife wrote a letter addressed to Deputy Commissioner of Police wherein she narrated how she and her children were ill treated by her husband narrated how she and and her children were ill treated by her husband mother in law and sister in law for dowry and why she took the decision to put an end to her life and the lives of her children
Another letter 791 of even date was addressed to her mother stating the reasons for her such act
A First Information Report was lodged against the Respondent No 1 by the mother of the deceased
After investigation the Respondent No 1 his mother and sister were put up for trial
The Trial Court on an examination of the prosecution evidence convicted all the three accused persons under Section 306 IPC and sentenced the husband to rigorous imprisonment for seven years and a fine of Rs5000 in default rigorous imprisonment for one year and sentenced the two others to rigorous imprisonment for three years and a fine of Rs1000 each in default rigorous imprisonment for three months against which order accused persons preferred an appeal before the High Court
The High Court on a reappreciation of the evidence and having regard to the language of Section 306 IPC came to the conclusion that there was no evidence to show that any of the accused was guilty of abetment and allowed the appeal
The State has therefore approached this Court by way of special leave
In the meantime the Respondent No 1 s mother had passed away
The appeal was therefore limited to the Respondent No 1 and his sister
Allowing the appeal this Court HELD 1 Abetment  as defined by Section 107 comprises i instigation to do that thing which is an offence ii engaging in any conspiracy for the doing of that thing and iii intentionally aiding by any act or illegal omission the doing of that thing
An abettor is a person who abets an offence or who abets either the commission of an offence of the commission of an act which would be an offence
798C D 2
The word instigate  in the literary sense means to incite set or urge on stir up goad foment stimulate provoke etc
The dictionary meaning of the word aid is to give assistance help tec
798D E 3
Where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruelty or harassment by her husband or any of his relative for or in connection with any demand for dowry such death is described as dowry under Section 304 B for which the 792 punishment extends to imprisonment for life but not less than imprisonment for seven years
By Section 113B Evidence Act the court has to raise a presumption of dowry death if the same has taken place within seven years of marriage and there is evidence of the women having been subjected to cruelty andor harassment
800A C 4
The legislative intent is clearly to curb the menance of dowry deaths etc with a firm hand
Court must keep in mind this legislative intent
It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy independent and direct evidence is not easy to get
That is why the legislature has by introducing sections 113A and 113B in the Evidence Act tried to strengthen the prosecution s hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage
This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life
800D E 5
If a married woman is subjected to cruelty of harassment by her husband or his family members section 498 A IPC would be attracted
If such cruelty or harassment was inflicted by the husband or his relative for or in connection with any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage such husband or relative is deemed to have caused her death and is liable to be punished under section 304B IPC
800E F 6
When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty andor harassment for or in connection with any demand for dowry section 113B Evidence Act provides that the Court shall presume that such person had caused the dowry death
800F G 7
In the present case section 113A or 113B Evidence Act cannot be invoked as the prosecution has not brought the exact date of marriage on record
Yet where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so the case would squarely fall within the ambit of section 306 IPC
In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate act
In this case it would seem from past events that it was a carefully chalked out strategy to provoke the woman into killing herself
800H 801A 801E 793 8
In the peculiar facts and circumstances of the case the trial court had rightly convicted the husband under section 306 IPC
The High Court committed an error in reversing the conviction
The plea for reduction of his sentence cannot be countenanced
801F G