(1) HIGH COURT OF M. P. BENCH AT INDORE CRIMINAL APPEAL NO.767 of 1996 Balkishan and another. Versus. State of M.P. For appellants : Shri Vivek Singh, Advocate. For respondent : Shri Deepak Rawal, G.A. JUDGMENT (Oral) (Passed on 30.11.2011.) U.C. MAHESHWARI J. 1. The appellants/accused have preferred this appeal under Section 374 of Cr.P.C. being aggrieved by the judgment dated 20.9.1996 passed by Additional Sessions Judge Sardarpur, District Dhar in Sessions Trial No. 180/93, convicting and sentencing each of the appellants for the offence under Section 306 of I.P.C. for RI four years with fine of Rs.1000/- in default of depositing the fine amount, further six months SI. 2. It is apparent from the record that in pendency of this appeal, the appellant no.2 Koshaliya, had passed away on which, in compliance of order dated 11.10.2000, her name was deleted from the array of appeal memo on dated 18.10.2000. 3. The facts giving rise to this appeal in short are that on dated 24.7.1991 at about 12.30 in the noon, one Mangilal Jaiswal, informed to Police Station Sardarpur that while going to Rajgarh from his village, on the way he visited the house of his in-laws family at village Piparani, where his mother-in-law Koushailya (the deceased appellant) apprised him that her daughter-in-law Komal Bai went to give answer the call of nature before half an hour but she has not come back. She also expressed his doubt saying that perhaps the Komalbai has left the village by some bus on which, he went to trace her out (2) at Rajgarh bus-stand where she was not found. While he was returning from the bus-stand, on the way he saw the tumbler (lota) of deceased Komal Bai near outside of some well and some of the villagers were trying to take out her dead body from such well. Such information being related to unnatural death of human being, a merg intimation was registered at such Police Station. In the course of it's inquiry, the parents of the deceased as well as neighbor of her matrimonial home were interrogated on which it was revealed that subsequent to marriage, the deceased was subjected to cruelty and beating by the appellants for which, she had informed her parents also and due to such acts of the appellants, Komalbai was instigated and jumping in the well and committed suicide. On which, a Crime No. 343/91, was registered against the appellants (including the said deceased-appellant) for the offence of Section 306 of I.P.C. On completion of the investigation, the appellants were charge- sheeted for the same. After framing the charge, the trial was held on appreciation by holding guilty to the appellants for the aforesaid offence of Section 306 of I.P.C., each of them were punished with the sentence mentioned above. On which, the appellants have come to this Court with this appeal. 4. Shri Vivek Singh, learned appearing counsel of the appellant after taking me through the evidence led by the prosecution along with the exhibited papers of the charge-sheet, so also the impugned judgment, argued that on taking into consideration the evidence led by the prosecution as accepted in it's entirety even then, the offence under Section 306 of I.P.C. is not made out against any of the appellants in any manner. In alternative, he argued that in case the Court comes to conclusion that some act of cruelty/harassment was committed by the appellants with the deceased then, this offence could not be deemed to be more than the offence of Section 498-A of I.P.C. for which, the specific charge was not framed by the trial Court. So, in the lack of such (3) charge, no conviction could be held against the appellants under such Section. In this regard he further said that in case looking to the language of the charge framed by the trial Court, if the Court holds the guilty to the appellants under Section 498-A of IP.C. then, considering the circumstance that the alleged incident was happened in the year 1991 and thereafter in last more than 20 years, no criminal antecedents has been reported against any of the appellants by adopting a lenient view they may be punished with the jail sentence for which they have already undergone for 24 days and 67 days respectively and also suffered the jail for two months and twenty days between 20.9.1995 the date of impugned judgment till passing the order for suspension of their remaining jail sentence by this Court vide order dated 10.12.1996 and prayed to allowing this appeal accordingly. 5. On the other hand, by justifying the impugned judgment as well as conviction and sentence of the appellants Shri Rawal, learned Govt. Adv. has said that there is sufficient evidence in the record showing that subsequent to marriage and before death, the deceased was subjected to cruelty and beating by the appellants and deceased appellant-Koshaliyabai and the findings of the impugned judgment are also in consonance of such evidence. In such premises, there is no scope for extending the acquittal to the appellants. In continuation he said that, in case, on reappreciation of evidence if the Court comes to the conclusion that the offence of Section 306 of I.P.C. is not made out then, there is sufficient evidence that offence of cruelty defined under Section 498-A of I.P.C. has been proved and for that purpose sufficient averments were also stated by the trial Court in the charge framed. Mere non- mentioning of the Section 498-A of I.P.C., in the charge framed could not be a ground to hold that such charge was not framed by the trial Court. According to him, the case was defended by the appellants with all understanding keeping in view the averments stated in the charge framed in which the allegations of (4) cruelty and beating of the deceased by the appellants had also been stated, thus the the arguments raised by the appellants' counsel that in the lack of specific charge of Section 498-A of I.P.C., the appellants could not be convicted for such offence could not be said to be correct and prayed for dismissal of this appeal. 6. It is apparent fact on record that the story put forth by the prosecution with respect of beating, abatement and instigation to the deceased by the appellants for committing the suicide has not been supported by any independent witness or the person, who were residing near by the residence of deceased and the appellants. Although, during the trial, one Dhuli Bai (PW-4) and Shaymalal (PW-5) the resident of the same locality have been examined by the prosecution, but they did not state anything implicating any of the appellants with the aforesaid offence. On the contrary, they turned hostile. So in such premises, this Court has to decide this matter only on the basis of depositions of parents and brother of the deceased namely; Ramanand (PW-1), Raju Bai (PW-2) and Om Prakash (PW-3) and also taking into consideration the two post cards Ex. P/2 and Ex.P/3, as alleged written by the deceased in her life time and sent to her father Ramanand. 7. After going through the evidence led by the prosecution, I have not found the deposition of any witness, who examined the handwriting of the aforesaid post cards Ex.P.2 and Ex.P.3 with any standard handwriting of the deceased written by her in life time. Even, no such report of any handwriting expert has either placed or proved by the prosecution. In the lack of such material evidence, I am of the considered view that such post cards could not be considered against the appellants to hold conviction under any of the offence. It is settled proposition of law that unless the document is proved beyond reasonable doubt, the same could not be a foundation to draw any inference against the accused in the matter. So, in such premises, the aforesaid post (5) cards is not helping to the prosecution to support their case. In such premises, this Court has to decide the case only on the basis of depositions of the parents and brother of the deceased and also the other available circumstances of the case. 8. Ramanand (PW-1), the father of the deceased on recording his deposition has categorically stated that her daughter Komalbai got married with the appellant no.1 Bal Kishan in the year 1982 and subsequent to marriage for some time she was comfortable in the matrimonial home, but thereafter her mother-in-law Koshaliya and appellant no.3 Shantabai, started the activities of harassment and cruelty with her while, the appellant no.1, the husband of the deceased was used to remain outside in connection of his work of livelihood. He also stated that Koshaliya (deceased) and appellant no.3 were involved in the business of illicit liquor and also used to drink the same and under the influence of such liquor, they used to quarrel and also give the beating to the deceased. In para 2 of his deposition, he categorically stated that the appellant no.1 the husband of the deceased, being under pressure of his sister Shanta Bai, was not in a position to oppose such activities of Shanta Bai towards the Komalbai. Accordingly, no material allegations has been stated by this witness against the appellant no.1 Balkrishna except that he always omitted to protect his wife from appellants no.2 and 3. It appears from the depositions of this witness that one side he has stated that appellant no.1 used to remain outside of the village in connection of livelihood and in his absence the alleged quarrel and beating were carried out by the appellants No.2 and 3 and on the other part of his deposition he said that the appellant no.1 omitted to protect his wife Komal Bai from harassment and cruelty of the appellant no.3 being contrary to each other, does not appear to be reliable. 9. On recording the deposition of Raju Bai (PW-2), the mother of the deceased, she also stated same thing as stated by the aforesaid witness (6) Ramnand, but in some different language. So, the deposition of Raju Bai, is also same as deposed by Ramanand. The brother of the deceased Omprakash (PW-3), beside the aforesaid thing has also stated one more fact that whenever he visited the matrimonial home of his sister Komal Bai, she was used to tell him regarding the acts of cruelty, harassment and her beating carried out by the appellants No.2 and 3. But it is apparent from his deposition that no specific particulars of the incident like date and time has been mentioned by this witness. It is apparent that the aforesaid witnesses have exaggerated some position on recording their deposition in comparison of interrogatory statements for which they were cross-examined. In view of the aforesaid depositions and also other available evidence, no allegations either committing any offence has been proved by the prosecution against the appellant no.1 Bal Kishan. So on proper appreciation, the appellant no. 1 Bal Kishan ought to have been acquitted by the trial Court, but contrary to such evidence, the appellant no.1 has been convicted and sentenced under Section 306 of I.P.C., therefore, his conviction and sentence deserves to be set aside. 10. Coming to consider the case of appellant no.3 Shanta Bai, is concerned. After going through the depositions of abovementioned examined witnesses from the parental family of the deceased, it has been proved that whenever the deceased was residing in the matrimonial home, she was always subjected to beating and quarrel by the appellants no.3 and deceased appellant no.2, under the influence of liquor. As per deposition, such complaint was made by the deceased to her parents and brother on various occasions. On going through the cross-examination of all the aforesaid witnesses, I have not found any sufficient factual matrix showing that such version in-chief of the witnesses have been destroyed in any manner. So in such premises, it is held that the prosecution has successfully proved that the deceased was subjected to harassment and cruelty by the appellant No.3 Shanta Bai and deceased- (7) appellant no.2 Koushailya. 11. It is apparent fact as held by the trial Court that the alleged marriage took place with the appellant no.1 in the year 1982 and the alleged incident took place in the year 1991 beyond 7 years from the date of marriage and, therefore, the provision of presumption enumerated under Section 113-A of the Evidence Act, is not applicable. So. Court has to consider keeping in view such aspect whether the alleged act of the appellant No.3, Shanta Bai could be treated to be an abetment or to be an offence defined under Section 498-A of I.P.C. 12. It is apparent that in Section 306 of I.P.C., the word of abetment has not been defined. . So, whenever the interpretation of such word is required then as per settled proposition of law, Section 107 of I.P.C. is always taken into consideration in which the abetment of thing has been defined. According to such Section out of three ingredients, if any one is present in the available factual matrix of the case then, it could be said that such thing could be abeted by the accused. These three things are defined as under:- “A person abets the doing of a thing” - (a) Instigates any person to do that thing; or (b) 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 (c ) Intentionally aids, by any act or illegal omission, the doing of that thing.” 13. In view of the aforesaid ingredients, on examining the above mentioned witnesses of the parental family then, it is apparent that at any point of time, the deceased was not either instigated or abeted by the appellant No.3 or deceased appellant no.2 for committing the suicide. Even as per available circumstances, in the lack of sufficient particulars, it could not be assumed that (8) on some day or any point of time, the deceased was instigated by these appellants Koshaliya and Shanta Bai to commit suicide. It is apparent fact that before death of Komal Bai, no complaint was made to the public authority either by the deceased herself or by parents and brother. So, in such circumstances, in the lack of any positive evidence showing that the deceased was abeted by the appellant no.3, the impugned conviction under Section 306 of I.P.C. could not be sustained and deserves to be set aside. 14. In view of the aforesaid discussions and as per available evidence, the ingredient of offence defined under Section 498-A of I.P.C. cruelty with married women have been proved against the appellant No.3 and deceased Koshalya Bai. So in such premises, the appellant no.3 Shanta Bai is held guilty for the offence under Section 498-A of I.P.C. 15. Now, the question comes whether in the lack of charge of Section 498-A of I.P.C., on the basis of only charge under Section 306 of I.P.C., the appellant no.3 Shanta Bai, could be convicted under such Section or not. 16. It is noted that I have not been apprised by any of the appearing counsel regarding any legal position showing that Section 498-A of I.P.C. could be treated to be a minor Section of Section 306 of I.P.C. On perusing the charge as framed by the trial Court for the offence under Section 306 of I.P.C., the ingredient of harassment and cruelty committed with the deceased by the appellants are specifically stated in the charge. Although, at the place of mentioning Section in the prescribed form only Section 306 of I.P.C. is mentioned and Section 498-A of I.P.C. was not specifically mentioned. 17. Keeping in view the aforesaid thing and the language of the charge framed by the trial court on examining the case in the light of Section 222 of Cr.P.C, I am of the considered view that mere omission or non-mentioning the section of the offence i.e 498-A of I.P.C by the trial Court in the charge, it could not be said that trial was not proceeded against the appellants for such charge. (9) It is apparent fact on record that in view of charge framed, in which the allegations of cruelty and harassment are specifically stated with full understanding, the trial was proceeded and with same understanding, the case was defended by the appellants. Therefore, by virtue of Section 222 of Cr.P.C I am of the considered view that even after acquitting the appellant No.3 for the offence of section 306 of IPC, she can be held guilty for the offence under Section 498-A of I.P.C. and, no prejudice to any right of the appellant No.3 to defend the case is caused. In such premises, it is held that in view of language of the charge on which with full understanding the trial was held, the appellant No.3 Shanta Bai is convicted in the present matter for the offence of Section 498-A of I.P.C. 18. Therefore, by allowing this appeal in part, the appellant no.1 Balkrishan and appellant No.3 Shanta Bai are hereby acquitted from the charge of Section 306 of I.P.C., and as per aforesaid discussions, the appellant no.3 Shanta Bai is held guilty for the offence under Section 498-A of I.P.C. and taking into consideration that the alleged incident took place in the year 1991 and in last more than 20 years, no criminal antecedents has been reported against her, instead to send her jail again by imposing any higher sentence, I deem fit to punish her with the jail sentence of 4 months and 27 days, which has already suffered by her either during pendency of trial or subsequent to judgment of trial court till passing the order of suspension of her remaining jail sentence by this Court by imposition of some fine. Pursuant to it, the appellant no.3, is punished under Section 498-A of I.P.C for the aforesaid period for which she has already undergone with fine of Rs.2000/-. 19. It is made clear that fine deposited in connection of Section 306 of IPC shall be adjusted in the aforesaid imposed fine. The remaining sum of fine is to be deposited by the appellant no.3 Shanta Bai, within 45 days from today, failing which, she has to suffer further six months RI. (10) 20. In view of the acquittal of the appellant no.1 Balkishan, it is directed that the amount of fine, if deposited by this appellant then it be refunded to him after proper verification. The bail bonds of the appellants are hereby discharged. 21. Appeal is allowed in part, as indicated above (U.C.MAHESHWARI) JUDGE pb