HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 126/2011

Parasmal S/o Shri Ramlal b/c Teli, aged 32 years, r/o Bajundra
Road, Asind, District Bhilwara.

(At present lodged at Central Jail, Ajmer)

—-Appellant
Versus
State of Rajasthan

—-Respondent

For Appellant(s) : Mr.Suresh Kumbhat, Adv.

For Respondent(s) : Mr.Anees Bhurat, PP

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Order

04/07/2019

The instant criminal revision petition has been filed under

Section 374(ii) Cr.P.c. against the judgment dated 11.02.2011

passed by the learned Additional Sessions Judge, Women

Atrocities and Dowry Cases, Bhilwara in Sessions Case No.1/2008,

by which, the trial court convicted the present appellant for

offence under Section 498-A and Section306 IPC. The appellant was

sentenced for the alleged offence as under:-

S.No. Section Sentence Fine Default
sentence

1. 498A SectionIPC 3 years R.I. Rs.2000/- 3 months S.I.

2. 306 IPC 5 years R.I. Rs.8000/- 6 months S.I.

Both the sentences were ordered to run concurrently. The

trial court also directed that after realization of fine of

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Rs.10,000/-, the same may be tendered to Gokul Lal, father of

deceased as compensation.

Brief facts of the prosecution case are that a written report

was filed by PW-1 Gokul Lal before the Police Station Asind stating

therein that his daughter Meera was married with Parasmal in the

month of April, 2001. After the marriage, her husband started

beating her. Whenever his daughter used to visit his house, she

narrated the incident of beating by her husband. She also

informed that her husband was demanding one lac rupees and has

threatened his daughter to kill her. The complainant further stated

that on the day of incident i.e. 29.09.2007, when the accused

started beating his daughter, at that time she made a call to him

on land-line phone from her mobile. The mobile phone was

snatched by her husband but was not switched off or disconnected

so he heard the noise for about half an hour of beating given to

his daughter. The complainant immediately rushed to Asind where

neighbourers told them that his daughter has died. He was

informed that all the five accused poured kerosene oil on the body

of his daughter and killed her. It was also mentioned in the

complaint that out of the said wedlock, one daughter and one son

was born. On this report, the police registered the FIR for offence

under Section 302, Section323, Section143 IPC and started usual investigation.

After completion of the investigation, a challan was filled for

offence under Section 304-B, Section323, Section498-A IPC before the court of

Judicial Magistrate, First Class, Asind, District Bhilwara against the

appellant. Thereafter, the case was transferred to the court of

Additional Sessions Judge, Women Atrocities and Dowry Cases,

Bhilwara, where the charges were framed against the appellant.

He denied the charges and claimed trial.

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The prosecution examined as many as 21 witnesses in all

and so many documents were exhibited. Thereafter, the statement

of the accused under Section 313 Cr.P.C. was recorded. On the

defence side, the statements of DW-1 to DW-4 were recorded.

After conclusion of the trial, the learned Additional Sessions Judge,

Women Atrocities and Dowry Cases, Bhilwara acquitted the

accused-appellant from the offence under Sections 304-B and Section323

IPC but convicted him for the offence under Section 306 and Section498-

A IPC and awarded the sentenced as stated above. Hence, this

appeal.

Learned counsel for the appellant vehemently argued that

there is no evidence with respect to the demand of dowry and that

on the day of the incident, the appellant was not even present in

the house. The marriage took place between the parties on the

exchange principle of atta-satta and the learned trial court also

disbelieved the story of demand of Rs.1,00,000/- as well as

harassment. He further argued that the evidence of PW-1 Gokul

Lal with respect to the hearing of noise of beating the deceased

about half and hour, on the day of incident when the mobile was

not switched off or disconnected, was also disbelieved by the trial

court. It is also argued that there are material contradictions,

omissions and improvement in the statements of the prosecution

witnesses. The mother of the deceased PW-3 Smt. Nosar did not

support the prosecution story and was declared hostile. The

independent witnesses also corroborated the story of defence.

This fact was corroborated by the defence witnesses that at the

time of incident, no one was present in the house and the

deceased was talking to Maadhu Lal and all of a sudden, she went

inside the house and committed suicide. In these circumstances,

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no offence under Section 306 and Section498-A IPC is made out against

the appellant. That the learned trial court fell into error in

convicting the appellant for the offence punishable under Section

306 and Section498-A IPC. He prays that the impugned judgment passed

by the trial court may be set aside.

Learned counsel for the petitioner in support of his

contentions has placed reliance upon the judgments rendered in

the cases of (i) Mayuresh Sain Vs. State of Rajasthan through PP,

reported in 2019(2) R.Cr.D. 137 (Raj.), (ii) Assoo Vs. State of M.P.,

reported in 2012(2) CJ(Cri.)(SC) 378, (iii) The State of Rajasthan

Vs. Jetha Ram Ors., reported in 2012(1)R.Cr.D., (iv) Sagar

Dinanath Jadhav Vs. State of Maharashtra, reported in 2018

Cri.L.J. 4271, and (v) Heera Lal and Anr. Vs. State of Rajasthan,

reported in AIR 2017 Supreme Court 2425.

Per contra, learned Public Prosecutor has supported the

impugned judgment passed by the trial court and argued that the

finding of the trial court is based on the correct appreciation of

evidence available on record. Therefore, no interference is called

for.

I have considered the arguments advanced before me as well

as carefully gone through the record.

PW-1 Gokul Lal (complainant) stated in his statement that

accused was demanding Rs.1,00,000/- but in his cross-

examination, he admits that the deceased used to visit his house

as and when she wished and she never complained against her

husband. He further admits that the deceased was saturnine in

temperament and was having stubborn nature. He admits that

during 2001-2007, both the deceased and accused resided

happily. PW-1 also admits that he submitted the report upon

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asking of the police. PW-3 Smt.Nosar, who is the wife of the

complainant, was declared hostile. She clearly mentioned that

both husband and wife resided happily and no complaint was ever

made by the deceased. PW-5 Surendra Kumar, who is brother of

the deceased, stated that the deceased complained to his/her

father but he never told anyone about the complaint made by the

deceased. In his cross-examination, he admits that both husband

and wife resided happily and no complaint was made to him. PW-6

Kanhaiya Lal, who is also brother of the deceased admits that both

resided happily and no complaint was made by the deceased to

him before the incident. PW-7 Lad Devi, who is neighbourer of the

deceased, mentioned in her statement that she went to the house

of the deceased. At that time, the deceased was talking to Maadhu

Lal on telephone. Thereafter, she went inside the room and

committed suicide. This witness was declared hostile. PW-8 Smt.

Kanchan Devi, who is wife of the brother of the deceased made an

allegation that whenever the deceased visited their house she

narrated that accused demanded dowry and harassed her but in

her cross-examination, she admits that deceased happily visited

their house whenever she wanted. The fact of demanding one lac

rupees and harassment had not been mentioned in her police

statement Exhibit-D-1. Thus, it is evident that she improved her

version in her court statement. PW-9 Hemraj stated in his

statement that accused demanded one lac rupees from his sister

but in his cross-examination he admits that in police statement

Exhibit-D/2, the fact regarding the demand of money and

harassment has not been mentioned. Thus, he also improved his

version in the court for the first time. PW-11 Alam, who is an

independent witness, stated that upon hearing the cries of Rekha,

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who is neighbourer of the deceased, he rushed to the house of

deceased. Other persons also reached there. They broke the door

and took the body of the deceased outside. In cross-examination,

he admits that the door of the room was closed from inside and

they had broken the door. He also stated that at that time, Rekha

was present in the house of deceased and she informed that the

deceased was talking to one Maadhu Lal and thereafter, she went

inside and committed suicide. PW-12 Dinesh Singh Chouhan also

stated that he heard the noise of Rekha and came out of his

house. Upon asking, she told him that Meera committed suicide by

pouring kerosene and that before the incident, she talked to

Maadhu Lal. They entered the house and took the deceased out

after breaking the door. PW-13 Ratan Lal stated that accused

never demanded dowry nor harassed the deceased. She resided

happily with the accused. PW-14 Modi Ram also stated that both

the husband and wife resided happily. The said witness was

declared hostile. PW-15 Suresh Mali also gave similar statement to

that of PW-13. In his cross-examination, he mentioned that Rekha

informed him that the deceased was talking to Madhav on mobile

and thereafter, she entered the room and committed suicide. PW-

16 Nanu Ram Kumawat also stated that the deceased and her

husband were residing happily and she never heard regarding the

harassment of the deceased at the hands of the accused.

Hon’ble Supreme Court in the case of Assoo (supra) while

acquitting the appellant therein for offence under Section 306 IPC

held that every quarrel between husband and wife which results in

a suicide cannot be taken as an abetment of suicide by husband.

The standard of a reasonable and practical woman as compared to

a headstrong and over sensitive one has to be applied.

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Hon’ble Supreme Court in the case of Heera Lal (supra)

observed that mere finding of harassment would not lead to

conclusion of abetment of suicide. In the absence of evidence as

to intention of in-laws to assist deceased to commit suicide, the

presumption under Section 113-A cannot be raised. The Apex

Court while holding the conviction of the accused-persons

improper came to the conclusion that offence under Section 498-A

and Section306 IPC is not made out against the appellant therein. Para 8

and 9 of the said judgment reads as under:-

“8. We find that having absolved the appellants of the
charge of cruelty, which is the most basic ingredient for
the offence made out under Section 498A, the third
ingredient for application of Section 113A is missing,
namely, that the relatives i.e., the mother-in-law and
father-in-law who are charged under Section 306 had
subjected the victim to cruelty. No doubt, in the facts of
this case, it has been concurrently found that the inlaws
did harass her, but harassment is something of a lesser
degree than cruelty. Also, we find on the facts, taken as
a whole, that assuming the presumption under Section
113A would apply, it has been fully rebutted, for the
reason that there is no link or intention on the part of
the in-laws to assist the victim to commit suicide.

9. In the absence of this vital link, the mere fact that
there is a finding of harassment would not lead to the
conclusion that there is “abetment of suicide.”

In the case of Mayuresh Sain (supra), this Court at Jaipur

Bench in the similar circumstances set aside the order framing

charges against the petitioner therein for offence under Section

306 IPC since there was no evidence that deceased committed

suicide because of instigation of petitioner.

This Court in the case of Jetha Ram (supra) observed that

mere allegation of harassment is insufficient to prove abetment

under Section 107 IPC and in para 18 held as under:-

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“18. The offence of abetment will constitute when a
person abets the doing of a thing when (i) Instigated any
person to do that thing; or, (ii) Engaged 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 doing of
that thing and (iii) Intentionally aids, by any act or illegal
omission, the doing of that thing. Hence either of these
things are essential to complete abetment as a crime and
the word “instigate” literally means to provoke, incite or
persuade any person to do any thing and hence to
convict a person under Sec. 306 SectionIPC, it is necessary that
there should be evidence of instigation or intentionally
aiding as provided under three clauses of Section 107.”

In the present case, the story of the defence was

corroborated by the statement of the appellant under Section 313

Cr.P.C. He clearly mentioned that the deceased was having illicit

relationship with Maadhu Jat and this fact of illicit relation of his

wife with Maadhu Lal got revealed. She wanted to run away with

Maadhu Jat but he did not come to take her so she committed

suicide. There is no demand of dowry as well as he never harassed

the deceased. On the contrary, he deposited some money in the

RD account when his wife told him that he should deposit some

amount in the children accounts. The story of the defence was

corroborated by DW-1 Smt. Rekha who was an eyewitness. She

clearly stated in her statement that she and the deceased both

were in the house at the time of incident. The deceased was

talking with Maadhu Lal and after that she entered the house and

lit the fire. In cross-examination which was done by the Public

Prosecutor, she mentioned that Madhav earlier visited her house

twice. He was neighbourer of Meera’s paternal house. Whenever

the deceased husband was not in the house, Madhav visited the

house of deceased. The deceased told Rekha that she does not

want to live at this place and wanted to run away with Maadhu

Lal. Likewise, DW-2 Sukh Lal also corroborated the said story. The

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finding of the trial court, in which the present appellant was

convicted for the offence under Section 306 and Section498-A IPC is

cryptic and hypothetical. It is evident from the record that at the

time of occurrence, the appellant was not even present in the

house so there is no question of instigation by the appellant to the

deceased for abetment to commit suicide.

In the case of Sagar Dinanath Jadhav (supra), Hon’ble

Supreme Court while observing that evidence of defence witness

is to be given same value and importance as prosecution witness

held as under:-

“17. A proper analysis of the evidence of the said defence
witnesses would show that the defence raised by the
appellant appears to be probable. As per settled law, the
evidence of defence witnesses is required to be given the
same value and importance as the prosecution witnesses.
In the case of SectionMunishi Prasad v. State of Bihar (2002) 1
Supreme Court Cases 351, the Hon’ble Supreme Court
has held in paragraph 3 as follows:-

‘3. ……. Before drawing the curtain on this score,
however, we wish to clarify that the evidence
tendered by the defence witnesses cannot be always
be termed to be tainted one by reason of the factum
of the witnesses being examined by the defence. The
defence witnesses are entitled to equal respect and
treatment as that of the prosecution. The issue of
credibility and trustworthiness ought also to be
attributed to the defence witnesses on a par with
that of the prosecution- a lapse on the part of the
defence witnesses cannot be differentiated and be
treated differently than that of the prosecutors’
witnesses.’

Thus, the evidence of the defence witnesses in the
present case has to be given appropriate importance in
examining as to whether the appellant was able to rebut
the presumption under Section 29 of the POCSO Act on
preponderance of probabilities.”

In view of the aforesaid discussion, the finding given by the

trial court for the offence under Section 306 IPC is illegal which

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deserves to be set aside. In the circumstances, when it has come

on record that at the time of incident, the deceased talked with

Maadhu Lal, with whom she was having some illicit relation and

thereafter, she went inside the room and commit suicide, no

offence under Section 306 and Section498-A IPC is said to be made out

against the petitioner.

Accordingly, the criminal appeal is allowed and the judgment

dated 11.02.2011 passed by the learned Additional Sessions

Judge, Women Atrocities Dowry Cases, Bhilwara convicting the

appellant for offence under Section 498-A Section306 IPC is set aside.

The appellant is discharged from the said offences. He was on bail.

He need not be surrendered. His bail bonds are cancelled.

(MANOJ KUMAR GARG),J

w4/NK

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