1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Gyan Chand & Another Vs. State of Rajasthan (D.B. Criminal Appeal No.676/2005) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 16-6-2005 in Sessions Case No.28/2003 passed by Shri Shiv Singh Chauhan, RHJS, Special Judge (Fake Currency Cases) Jaipur City Jaipur. Date of Judgment: September 09, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Anil Upman, for the appellants. Mr. Ashvini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Gyan Chand and Phool Chand, appellants herein were indicted before learned trial Judge for having committed murder of their wives' brother Manish. Learned Judge vide judgment dated June 16, 2005 convicted and sentenced each of them under Section 302/34 IPC to suffer imprisonment for life and fine of Rs.500/-, in default to further suffer simple imprisonment for one month. 2. As per the prosecution story, Meena and Seema sisters of Manish married to the appellants, who are real brothers, on May 14, 2000. Manish visited the house of appellants on August 18, 2002 at around 8.30 PM and remained there. In the intervening night of August 18 and 19 around 2.30 AM, the appellants informed Gyarsi Lal (father of Manish) about illness of 2 Manish. Gyarsi Lal rushed to the house of appellants, where he found Manish dead. Dead body was taken to S.M.S. Hospital Jaipur at 9.15 AM on August 19, 2002. It was kept in mortuary and Police Station Malviya Nagar Jaipur was informed, where Mrig report No.38/2002 under Section 174 CrPC was registered. Dead body was subjected to autopsy. Thereafter Gyarsilal filed a complaint against appellants under section 120-B, 302 and 302/34 IPC in the court of Judicial Magistrate on September 16, 2002 which was forwarded under section 156 (3) CrPC to Police Station Malviya Nagar, where a case under sections 302, 34 and 120B IPC was registered against the appellants and investigation commenced. Statements of witnesses were recorded, appellants were arrested and after completion of investigation charge sheet was filed. In due course the case came up for trial before the court of learned Special Judge (Fake Currency Cases) Jaipur City, Jaipur. Charges under sections 302 and 302/34 IPC were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under Sec.313 CrPC, the appellant claimed innocence. One witness in support defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. As per post mortem report (Ex.P-14) drawn by Dr. Sumant Dutta (PW.21) following antimortem injuries were found on the dead body:- 3 1. Abrasion 1 x 1cm left shoulder reddish colour 2. Abrasion ½ x ½ left elbow reddish Cause of death of Manish was cardio respiratory failure due to ante mortem injuries. Viscera preserved after autopsy was sent for chemical examination to FSL. Report of FSL (Ex.P-11) reads as under:- “On chemical examination, portion of viscera (1-5) and Blood sample (6) from three packets marked nil gave positive tests for the presence of Organo phosphorous insecticide and gave negative tests for metallic poisons, ethyle and methule alcohol, cyanide, alkaloids, barbiturates and tranquillizers.” 4. We have given our thoughtful consideration to the contentions advanced before us. 5. The facts which are not in dispute may be summarized thus:- (i) Manish had gone to Sasural of his sisters on August 18, 2002 at 8.30 PM and remained there. (ii) Manish died under abnormal circumstances in the house of appellants. (iii) When Manish was vomiting and his physical condition became deteriorated no medical help was provided by the appellants to him. (iv) As per FSL report Manish consumed organo phosphorous insecticide. 4 (v) In the complaint filed by Gyarsi Lal after 28 days of the incident it was stated that the police came to the conclusion that Manish committed suicide by consuming poison. (vi) Although Meena (PW.2), who got married to appellant Gyan Chand, deposed that Manish consumed liquor in her house, liquor was not found present in the dead body. Meena also stated that Manish went up and after consuming liquor he started vomiting. (vii) Relations between appellants and Manish were not cordial, since appellants used to harass his sisters. (viii) Two ante mortem abrasions were found on the left shoulder and left elbow of deceased. 6. It is well settled that where an offence is committed in secrecy inside the house the initial burden to establish the case would undoubtedly be upon the prosecution, but the burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on inmates of the house to give a cogent reason as to how the incident occurred. In the facts and circumstances of the case, this possibility cannot be ruled out that Manish was given beating by the appellants and he became so depressed that he gulped insecticide and committed suicide. The fact that Manish was given beating prior to his death gets corroboration from post mortem report. 5 7. Since liquor was not found present in the dead body the explanation offered by the appellants does not appear us to be true. The appellants failed to give a cogent burden as to how incident occurred. From the evidence adduced by the prosecution, it is established beyond reasonable doubt that the appellants created such a situation by giving beating to Manish that drove him to commit suicide. The appellants thus are found guilty under section 306 IPC. This section creates a special offence applicable only to the abetment of suicide when the suicide is committed. Section 306 IPC is enacted to punish a person for abetment when the principal offender had placed himself beyond the reach of law. The offence of abetment must naturally confirm to the definition of that term as given in section 107 IPC.- that is to say, there must be instigation, co-operation or intentional assistance given to the would be suicide. It is not necessary, nor indeed is it a part of the definition, that the suicide should have been committed in consequence of the abetment. But in order to render a person liable as abettor, it is, of course, necessary as indeed it is in the case of abetment of any other offence that the abettor should be something more that a mute spectator- “Spectator hand particeps'. It is conceivable that such presence may encourage a person to do a deed, which he might otherwise refrain from. 8. Although no charge under section 306 IPC was framed against the appellants still they can be convicted under said section, since 6 omission to frame charge under section 306 IPC has not resulted in any failure of justice. In the instant case we find sufficient material to convict appellants under section 306 IPC. In Hira Lal Vs. State (Govt.of NCT) Delhi (2003)8 SCC 80, their Lordships of Supreme Court in a similar situation observed as under:- “Though no charge was framed under section 306 IPC, that is inconsequential. On the facts of the case, even though it is difficult to sustain the conviction under section 304-B IPC, there is sufficient material to convict the accused- appellants in terms of Section 306 IPC along with Section 498A IPC” 9. For these reasons, we partly allow the appeal and instead of section 302 IPC we convict the appellants Gyan Chand and Phool Chand under section 306 IPC. Looking to the fact that both the appellants have already undergone confinement for a period of more than five years and eight months, the ends of justice would be served in sentencing them to the period already undergone by them in confinement. Appellant Gyan Chand and Phool Chand, who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other case. The impugned judgment of learned trial court stands modified as indicated above. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/