Mohd. Yamin, J.
1. Appellant Mohd. Haroon was tried for offences under Sections 306 and 498-A. IPC along with Abdul Hakim, Smt. Kaniza and Abdul Manan by learned Additional Sessions Judge No. 3, Jodhpur who convicted appellant for both the offences and sentenced him to six years' rigorous imprisonment with a fine of Rs. 1,000/- and in default to undergo six months' rigorous imprisonment for offence under Section 306. IPC and two years' rigorous imprisonment with a fine of Rs. 500/- and in default to undergo three months' rigorous imprisonment for offence under Section 498-A. IPC. Other co-accused persons were acquitted. Appellant preferred this appeal against his conviction and sentences passed by learned Additional Sessions Judge.
2. In short, the case of the prosecution is that on 6-1-1998 Smt. Ruklisana lodged a report at police station Pralap Nagar, Jodhpur that her daughter Rehana was married to appellant and her 'muklawa' was performed a year ago. Ever since then she was being harassed for dowry and very often she was given beating for the same. On 2-1-1998 she was thrown out of the house of the husband and was asked to bring a sum of Rs. 20,000/-. She was told that she would be allowed to come back only with the sum demanded. The unfortunate mother took her on 3-1-1998 to the parents of the appellant and beseeched them that they should behave properly with her. On 6-1-1998 the mother received telephonic message that a quarrel was taking place with her daughter in her in-laws' house and she should reach there immediately. By the time she reached there, she was informed that Rehana was burnt and was no more alive. A case under Section 304-B and 498-A. IPC was registered. Post-mortem of Rehana was performed by a board of doctors of Mahatma Gandhi Hospital, Jodhpur on 6-1 -1998. The board opined that Rehana died due to shock because of extensive burns. Challan was submitted for offences under Sections 498-A and 304-B. IPC. The case came up to be tried by the learned Additional Sessions Judge who framed charges under Section 304-B. IPC and in the alternative under Sections 306 and 498-A. IPC against the appellant on 12-5-1998. Appellant denied his indictment. Prosecution examined as many as 11 witnesses on its behalf. Then the appellant was examined under Section 313, Cr. P.C. His defence was that Rehana had a suspicion that the appellant had illicit relations with a lady named Ramzano and, therefore, she might have burnt herself. He also stated that he did not have any illicit relations with Smt. Ramzano. However, he did not examine any witness in defence. Learned Additional Sessions Judge, after hearing both the parties, convicted and sentenced the appellant as stated above.
3. I have heard the learned counsel for the appellant as well as learned Public Prosecutor at length and have gone through the record.
4. Learned counsel for the appellant submitted that on the basis of same evidence other co-accused persons have been acquitted while the accused-appellant has been convicted. According to him it could not have been done. He also submitted that no witness has stated about abetment caused by the appellant and no presumption can be made against the appellant under Section 113-A of Evidence Act. He also submitted that the death of Rehana might be accidental. He has, therefore, submitted that the appellant deserves acquittal.
5. On the other hand, learned Public Prosecutor has tried to support the judgment of the learned trial Court.
6. First of all it is to be seen as to how death of Rehana occurred? Site plan Ex. P/30 shows place 'A' in the index is kitchen and it is alleged that Rehana burnt herself in the Kitchen attached with which is a bathroom. This room opens in the bed room. It further shows that the dead body of Rehana was found at place 'F' in room when the police officers reached there. Thus, it is found that the room 'A' where kitchen is situated is attached to room 'B' and a door in between room 'B' and 'A' opens at place 'D'. There was a door 'C' which was found broken when the police inspected the site. Investigating Officer PW-9 Murlidhar Kiradu reached there immediately after recording FIR and prepared site plan Ex. P/30 and the memo Ex. P/3 and has stated that the doors at gate 'C' were lying broken open inside the room. There is evidence that mohallawalas broke open the door. When the occurrence took place, the room was bolted from inside and mohallawalas had broken open the doors. The witness has further stated that the dead body was removed from place 'A' to place 'F' by them.
7. By the time PW-1 Rukhsana who is the mother of deceased reached, the police had already arrived. She would not be in a position to say if the death of Rehana was accidental. PW-2 Syed Mohd. is the real brother of deceased and when he reached after the incident, he found that the police had already reached. He is not in a position to say whether she committed suicide or she died accidentally. PW-4 Ayub, who says that Rehana was his sister, stated that when he reached at the site he found that the dead body of Rehana was lying outside the house and accused-appellant-Haroon was arrested before him. PW-8 Nandlal, Photographer, has stated that when he snapped the dead body of Rehana he did not find the dead body in kitchen but outside and Rehana was covered with a quilt which was removed by policemen. PW-9 Murlidhar Kiradu, who was SHO of Pratap Nagar, received information on telephone and at about 10-00 a.m. he reached at the site where a photographer was brought. He is not able to say as to how the dead body of Rehana was taken from place 'A' to place 'F' but he admitted that the door at place 'C' in site plan was broken inside the room. PW-11 Gurdeep Singh, Circle Officer of Pratap Nagar, received a wireless message from the SHO and reached at the site. According to him the site was inspected by the Investigating Officer before him under his supervision. As per investigation Smt. Rehana was all alone in the room at the time of incident and the doors were closed from inside. It transpired during investigation that when she burnt, she cried and the mohallawalas broke open the door. According to him it also deciphered in investigation that Rehana was burnt in the kitchen and when the neighbours entered into the house after breaking open the door they threw water on her and then they wanted to take her to hospital. But by the time she was brought to place 'F', she died. Thus, during the investigation it was clarified as to how the dead body was brought at place 'F' in burnt condition from the kitchen.
8. PW-10 Dr. M.P. Joshi is an important witness. He has stated that when the dead body of Rehana was brought in the hospital, her body and hair smelled of kerosene oil. He performed the post-mortem of dead body and according to him she died due to excessive burns. Learned counsel for the appellant submitted that Rehana might have burnt because of accident but this circumstance of this case negatives the possibility of accident. Dr. M.P. Joshi has stated that there was smell of kerosene oil coming from the body and hair of the deceased. Counsel for the appellant is not in a position to tell as to how kerosene oil would reach in the hair of the deceased unless she would herself sprinkle it on her. None else was present in the house and Rehana was the only occupant. She might have poured kerosene oil on her hair and on her body and then burnt herself. Secondly, photograph Ex. P/24 shows a stove in the kitchen as well as a container on its left side. Their condition suggests that it was not a case of accident. The stove is lying on the floor and is in proper condition. Had there been an accident, its condition would have changed. All the circumstances suggest that Smt. Rehana committed suicide. Learned trial Judge came to the conclusion that Rehana committed suicide and the death was not accidental and I concur with it.
9. The next question arises as to whether the accused-appellant abetted? Learned counsel for the appellant submitted that on the same set of evidence rest of the accused persons were acquitted while the appellant has been convicted and it is not legal and proper. He submitted that the accused-appellant was not present at the site and that there was no abetment on his part. According to him presumption under Section 113-A of Evidence Act is not absolute. On the other hand learned PP carried me through the evidence and submitted that the appellant was having illicit relations with Mst. Ramzano and this may be a cause why Smt. Rehana committed suicide. According to him by having illicit relations with Ramzano the accused- appellant has abetted the offence and hence he is liable for offence punishable under Section 306. IPC.
10. The admitted fact is that the accused-appellant was not present at the place of occurrence when the occurrence took place. The allegation against the appellant was that he was having illicit relations with Smt. Ramzano and this might have been the cause of suicide of Smt. Rehana. Therefore, the learned PP has submitted that the case of the present appellant is based on different set of evidence than the evidence on which other co-accused persons have been acquitted. I have tried to appreciate the evidence as it has come before the trial Court.
11. PW-1 Smt. Rukhsana is the mother of deceased. She has admitted in the cross-examination that she did not know if Smt. Ramzano is a beloved of appellant. She denied that either she or her daughter Rehana had any suspicion about the character of the appellant asmuch as to his relationship with Ramzano. She also denied that when Rehana was living with her, accused appellant came to meet her and then Smt. Rehana had a quarrel with her husband in relation to his relationship with Mst. Ramzano. Syed Mohd., who is the real brother of deceased, does not tell anything about illicit relationship of appellant with Ramzano. Rather he admits that he did not know if his sister had a suspicion about character of her husband. It clearly means that Rehana never told these two witnesses that she was having suspicion about character of appellant that he was having illicit relations with Ramzano. The case of the defence is that the appellant had no illicit relations with Ramzano. He stated in his statement under Section 313, Cr. P.C. that it may be possible that Rehana had a suspicion about his relationship with that lady and, therefore, she burnt herself. He said that he had no illicit relations with Ramzano. Had it been so, Rehana might have told at least her mother and his brother should have also known about it. But as stated earlier, they have pleaded ignorance about this fact and hence it cannot be admitted that Rehana committed suicide because she had suspicion about character of her husband as he was having illicit relations with Ramzano.
12. Kalu Khan, PW-3, who is a near relation of deceased, has also not stated anything about it. He went to the place of occurrence when he came to know that Rehana was dead. But he does not tell anything about the occurrence. PW-4 Ayub went at the place of occurrence and found that the dead body of Rehana was lying out of the room and the appellant was arrested then and there. Smt. Rashida PW-5 has given a different story by saying that when she along with other relations of Rehana reached, she came to know that Rehana was given beatings for whole of night and was burnt in the morning. She is a neighbour of Smt. Rukhsana and used to visit Rehana at the house of Rukhsana. She does not tell that Rehana had ever told that the appellant was having illicit relations with Ramzano.
13. In order to prove an offence under Section 306. IPC, prosecution has first to establish that an accused has abetted the offence. The word 'abetment' is significant and its ingredients are to be proved before an accused is convicted for abetment. The word 'abetment' as used in Section 107,IPC means that a person abets the doing of a thing who firstly instigates any person to do that thing or secondly 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 thirdly by any act or illegal omission, the doing of that thing. In the case in hand, none of these ingredients is proved against the appellant. Counsel relied on, AIR 1986 SC 752 : 1986 Cri LJ 816, Chanchal Kumari v. Union Territory, Chandigarh, in which it was held that no dependable evidence in regard to actual abetment was found, accused is entitled to be acquitted. In 1996 Cri LJ 894 : 1995 AIR SCW 4570, Mahendra Singh v. State of Madhya Pradesh, relied on by the learned counsel for the appellant, the deceased-wife had made a dying declaration in following words:--
My mother-in-law and husband and sister-in-law husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.
14. Besides this dying declaration, there was no evidence and this dying declaration was not found sufficient to involve accused for offence under Section 306. IPC as there was no abetment and merely on the allegation of harassment conviction under Section 306. IPC is not sustainable. In the case in hand there is not even a dying declaration of the deceased. Rather the prosecution witnesses have refused that Rehana had a suspicion over the character of her husband. The evidence of harassment as brought by the prosecution will not be sufficient to punish the appellant for offence under Section 306. IPC. Dalip v. State of Rajasthan 1995 Raj Cri C 214, was also relied on by the counsel for the appellant in which it was found that there was no evidence to prove that the accused intentionally abetted the commission of suicide. Resultantly he was acquitted of the charge of Section 306. IPC. Presumption under Section 113-A of Evidence Act cannot be raised in such a case.
15. In view of above discussion. I hold that accused-appellant Mohd. Haroon shouldnothave been convicted under Section 306. IPC.
16. So far as offence under Section 498-A. IPC is concerned, learned counsel for the appellant submitted that there is no evidence that the accused-appellant treated Smt. Rehana with cruelty. He submitted that on the same set of evidence the co-accused persons have been acquitted and the appellant also deserves acquittal from this charge.
17. I have carefully read the evidence of all material witnesses. PW-1 Rukhsana, who is the mother of deceased, has stated that on 2-1-1998 Rehana was turned out and she came to her house and named the appellant as well as other relations. She has further Stated that Rehana told her that they demanded money. She then called Smt. Rashida who persuaded Rehana to go back to her husband's house by saying that petty things should be ignored. Thereafter Rukhsana and Rashida look Rehana to her husband's house. Then three brothers of Rehana went to meet her. They are Ayub, Kalu and Syed. Rehana met them and started weeping. She has maintained in her cross-examination that Rehana had told that behaviour of the appellant was not proper. It is proved from her statement that Rehana was turned out of the house on 2-1-1998. She has further stated that when Rehana came on 2-1 -1998 she did not have any visible injury but she told that her plait was caught hold and she was given beating. Counsel for the appellant submitted that this fact is not mentioned in the FIR Ex. P/l nor in the statement of the witness Ex.D/1. Needless to say that in the FIR all facts cannot be mentioned. It was a minor omission. It may be regarded as a minor omission in Ex. D/l. There appears to be no reason why Rehana would come back on 2-1-1998 to her mother unless the accused-appellant had treated her with cruelty.' No eye-witness of cruelty in such circumstances would be available because Rehana was living with her husband. Her in-laws or the brothers of the accused would not say anything against the appellant. It was very natural, therefore, the things can be gathered from the circumstances only.
18. PW-2 Syed Mohd. who is the real brother of Smt. Rehana, has supported PW-1 Rukhsana by saying that she had come back weeping to her mother and complained about cruelty committed to her. She was sent back and then this witness went to meet her on 3-1-1998 in the evening and found that she was weeping. He has maintained that when Rehana had come on 2-1-1998 at about 3-00 p.m. he along with his younger brother and Smt. Rashida were present before whom Rehana had made a complaint. Smt. Rashida PW-5 has supported this version. Ayub PW-4, who is a cousin brother of Rehana, has also supported this version. He has, in addition, stated that Rehana invited him and asked him to take her back to her mother a day before the incident. It further proves that she was undergone a mental tension a day before the occurrence. There is evidence that appellant Mohd. Haroon not only treated her with cruelty but also omitted to neglect when she was being treated with cruelty by his relations. For the purpose of Section 498-A. IPC cruelty means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman and where, such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand. It is proved from the evidence of PW-1 Smt. Rukhsana that Rehana came W her on 2-1 -1998 and told that a demand of Rs. 20,000/- was made. Syed Mohd. PW-2 has also stated that demand of Rs. 20,000/- was made as told by Rehana. PW-3 Kalu Khan has stated that he along with other brothers of Rehana went to Rehana's house after ademand of Rs. 20,000/- was sent through Rehana and Rehana was sent back with assurance that arrangement would be made by her mother. Ayub PW-4 has corroborated and PW-5 Smt. Rashida before whom Rehana had arrived in the house of Rukhsana on 2-1-1998 has also stated that Rehana had told about demand of Rs. 20,000/-. Learned trial Judge has, in my view, rightly convicted the accused-appellant for offence under Section 498-A. IPC.
19. The result is that the appellant should be acquitted from the charge of Section 306. IPC but his conviction under Section 498-A. IPC should be maintained. Counsel for the appellant submitted that in case conviction of accused appellant under Section 498-A. IPC is maintained, he may be sentenced to the period already undergone. I have considered this argument and I feel that the sentence of the appellant should be reduced to the period already undergone.
20. Consequently, the appeal is partly allowed. Appellant Mohd. Maroon is acquitted from the charge of Section 306, I.P.C. His conviction under Section 498-A. I PC is maintained and he is sentenced to the period already undergone which is more than 1 1/2 months. Sentence of fine is maintained. He is in custody and shall be released on payment of fine, if not required in any other case.