Rajasthan High Court - Jaipur
Bhanwar Lal And Ors. vs State Of Rajasthan on 29 September, 1988
Equivalent citations: 1988(2)WLN641
JUDGMENT V.S. Dave, J.
1. All the three accused-appellants, aggrieved by their conviction for offence under Section 306 I.P.C. simpliciter and sentence often years rigorous imprisonment to each with fine of Rs. 500/- each, in default of payment of fine to further undergo one year's rigorous imprisonment by Additional Sessions Judge No. 1, Ajmer have preferred this appeal.
2. Brief facts giving rise to the case are that one Bajranglal Sharma, father of the deceased Smt. Shakuntala Devi, lodged written report Ex. P 12 at Police Station Kekri on 21st November, 1983 wherein it was mentioned that he married his daughter, Shakuntala on 8-12-1978 to one Gopi Kishan son of Bhanwarlal, the appellant No. 1, who was then Lecturer. His daughter who had been staying all the period in her-in laws house wrote a letter to him on 19th November, 1983 wherein she mentioned that Bhanwarlal's family was not treating her properly, so he went to Kekri and learnt from the girl that her brother-in-law, father-in-law and mother-in-law were not properly behaving with her and her brother-in-law, Gopal, bad threatened her with death. He, however could not contact Bhanwar Lal and he returned to Malpura on 20th November, 1983 where his son-in-law came to see him off. Soon thereafter, when he reached Malpura, he received a wireless message about the death of his daughter, hearing which he aggrieved at Kekri and learnt that she has committed suicide. He suspected that it is a case of murder committed by her brother-in-law, Gopal and other in-laws. On the basis of this report a case under Section 306 I.P.C. was registered against the accused appellants, They were arrested on 8th February, 1984. After completing the investigation, the police filed charge-sheet against all the three accused-appellants for offence under Section 306 I.P.C. in the court of Munsif and Judicial Magistrate, Kekri who committed the case to the Sessions Court Ajmer The learned Sessions Judge transferred the case to the Additional Sessions Judge No. 1, Ajmer.
3. Prosecution examined 11 witnesses in support of its case. Accused, in their statements recorded under Section 313 Cr. P.C. denied to have committed any offence and examined nine witnesses in defence. The learned Additional Sessions Judge found each of the accused guilty for offence under Section 306 I.P.C. and sentenced as mentioned above. Aggrieved by the conviction and sentence, the appellants preferred this appeal.
4. Shri S.P. Sharma appearing with Mr. Jagdeep Dhankar submitted that there is no cogent and reliable evidence to connect any of the accused individually or collectively with the commission of crime of aiding or abating the commission of suicide by deceased Shakuntala. It is submitted that accused appellants have been convicted mainly on the statements of highly interested witnesses and holding that Exhibits P. 3, P. 9, P. 10 and P. 11 which are self explanatory and clearly indicate that she had been harassed and tortured and her mental condition became such that she could not resist the idea of putting end to her life. It is submitted that on 19th November, 1983 she addressed a letter and soon after that she committed suicide. It is further contended that a perusal of the first Information Report Ex. P. 12 which is a report in writing given by the father of the deceased after 24 hours of the death does not have even a remote hint that at any stage appellant had demanded dowry from them. It is submitted that it was not a case where demand of dowry is alleged as soon as she had been brought to in-laws house. It is after five years of the marriage that demand of dowry is attributed to the appellants. It is submitted that typical feature of the case is that all of them had lived together upto July, 1983 and no dispute had been complained of by her prior to that date hence it is difficult to conceive of that the demand of dowry would start after they decided to live separately. In fact, argument is that the prosecution has either suppressed or not, investigated the case properly as to the motive of murder or cause of committing suicide. It is further submitted that it is borne out from the record that the expenses of Shakuntala while she was in training at the STC Training College, were borne by her father in law and there was no question of such a person demanding dowry. It is further submitted that conviction of the appellants is not warranted in a case like the present. It is also submitted that the medical evidence is not in consonance with the theory propounded by the prosecution. He placed reliance on Malkiat Singh v. The State of Punjab, 1985 (1) Crimes 249, Brij Lal and Anr. v. State (Delhi Administration), 1984 (2) Crimes 987 Shri Ram v. The State of U. P. and Chanchal Kumari and Ors. v. Union Territory, Chandigarh 1986 Cr. LJ 816.
5. Shri Devendra Mathur appearing on behalf of the State submitted that the trial Court has rightly relied-upon Exs P. 3, P. 9, P. 10 and P. 11. It is submitted that Ex. P. 11 categorically mentions about appellant Bhanwar Lal's conduct and which is immediate cause of her committing suicide. It is further submitted that she has been tortured, humiliated and harassed to the extent that she lost her courage and compelled her to take a decision of committing suicide He states that the statements of Birdhi Chand PW 1, Shanker Lal PW 3, Dr. Bhargava PW 2, Bajrang Lal PW 7 Shanti Devi PW 6 and Kamla PW 5 are all reliable. It is further submitted that conduct of the father-in-law, mother-in-law and brother-in-law has been proved to be such that the case falls within the purview of Section 306 I.P.C. It was therefore prayed that the appeal should be dismissed.
6. I have given my thoughtful consideration to the rival submissions and have perused the entire record.
7. Before I discuss the facts and law in this case I may make it clear that the incident had taken place prior to bringing into provisions of Section 113A of the Indian Evidence Act which is regarding presumption as to manner of suicide by a married woman and therefore the case has to be decided on the law then existing where no presumption could be drawn about abetment and the entire burden of proof lies on the prosecution and according to the settled law it leaves no room for any doubtful evidence or missing link. The general Saw laid down by their Lordships of the Supreme Court in Sarvan Singh v. State of Punjab their Lordships held as under:
It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole the prosecution story may be true but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
Hence, in this background it will be relevant first to consider the parameters within which a case under Section 306 I.P.C. ought to be proved by the prosecution. Section 306 I.P.C. reads as under:
306. Abetment of suicide-If any person commits suicide, who ever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The word 'abets' used in Section 306 I.P.C. will have to be considered in reference to Chapter V of the Indian Penal Code. This is a chapter on abetment. Section 107 I.P.C. defines 'abetment' as under:
107. Abetment of a thing -A person abets the doing of a thing, who:
First-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-Intentionally aids, by any act of illegal, omission, the doing of that thing Abettor' is defined in Section 108 I.P.C. which reads as under:
108. Abettor-A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be offence, if committed by a person capable by law or committing an offence with the same intention or knowledge as that of the abettor.
The punishment is provided with the aid of Section 109 I.P.C. The rest of the provisions are not relevant for the purposes of this case. According to the aforesaid definition, there should be either instigation or some conspiracy or intentionally aiding or illegal omission. 'To instigate' means to urge on, incite; to foment which in other words means a positive action on the part of the instigator, as unless some thoughts are modified or put into action, there cannot be instigation. It requires stimulation as well as rousing while in intentional aiding it can be both by illegal omission as well as doing of the thing and that is why the legislature separately defines the word abettor wherein explanations 2 and 3 are relevant. Thus, the case has to be brought within the purview of one or the other explanation of Section 107 or 108 I.P.C. The act of suicide is one of the modes of death and out of the four modes of death viz. 'natural accidental suicidal and homicidal', the last mode may be categorised as 'violent deaths' and in suicide the violence is used on the self and it is intentionally taking of one's life. The Court, while to deal with the cases of suicide, has to consider that this mode of death is behavioural lifestyle and there are several causes for such behaviour. There has to be psychological departure or aggressive impulse or engendered by frustration or environmental condition and most of the cases analysed by psycho-Analyst the persons who commit suicide, they are bound to have a history of psychiatric disturbances particularly,, depression and schizophrenia. Therefore, the evidence has to be scanned thoroughly to arrive at the conclusion whether the cause of suicide was sociological, psychological, biochemical or enviromental. Unless that is done, it would be difficult to arrive at an inference about the cause of self destruction and it is for this that in Brijlal and Anr. v. State (Delhi Administration) (supra) Justice Anand of the Delhi High Court underwent all the exercises of tracing the history of suicidal cases and then derived his own conclusion. He considered the scope of Sections 107 and 108 I.P.C. and after extensively quoting more than a dozen Indian and English cases, summarised as under:
Halsbury notices some of the recent English decisions in the matter of classification of offence and complicity in crime. Thus, a person who "assists the perpetrator at the time of its commission, or if he assists or encourages the perpetrator before its commission, was held liable". According to R.V. Gregory-any person who aids, counsel or procures the commission of an offence, whether an offence at common law or by statute, and whether indictable or summary, is liable to be tried and punished as a principal offender. Mere presence at the commission of the crime is not enough to create criminal liability, nor is it enough that a person is present with a secret intention to assist the principal should assistance be required. Some encouragement or assistance must have been given to the principal either before or at the time of the commission of the crime with the intention of furthering its commission. Presence without more may, how ever, afford some evidence of aid and encouragement. It is an indictable offence at common law for a person to incite or solicit another to commit an offence. For an incitement to be complete, there must be some form of actual communication with a person whom it is intended to incite, where, how ever, a communication is sent with a view to incite, but does not read the intended recipient the sender may be guilty of an attempt to incite. Incitement is complete though the mind of the person incited is un-affected and not with standing that person incited intends to inform on the inciter; but there can be no incitement unless one person seeks to persuade or encourage another.
He also considered one of the famous case of Parimal Chatterjee and Ors. v. State AIR 1932 Cal. 760 and ultimately held that evidence as to the course of conduct or the nature of the relationship between the victim and the other members of the family or the conduct of the couple are necessary events which should be considered. The learned Judge has also considered the various aspects and modern trend and has considered that it is essential for the Court to consider whether there were economical conflicts or clash of personalities, temperamental difference, and conflicting egoes, as these are essentially problems of harmony between conflicting pulls, loyalties and interests. It would be worth while to go through some of the cases where the scope of Section 107 I.P.C. has been considered. The Delhi High Court in a criminal appeal No. 997/64 decided on 1st February, 1965 Rajendrapal and Anr. v. State held that if there is nothing on record to show that any of the appellants did any thing positive to help the deceased in committing suicide within the meaning of explanation (2) of Section 107 I.P.C. then till then it cannot be held that there was instigation. It was said that if some one son or daughter fails in examination and his/her parents scold him/her by saying that he or she should better drown himself or herself rather than fail or taunt him/her by saying that he/she should better die rather than live and if such boy or the girl really puts an end to the life, person taunting or saying cannot be held responsible for abetment of the commission of offence. The Supreme Court has observed in Shri Ram and Anr. 1975 (2) SCR 622 that in order to constitute abetment, the abettor must be shown to have 'intentionally' aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of they alleged abettor is no enough compliance with the requirements of Section 107 I.P.C. In; Han Singh v. State 1983 CLR 123 the wife had committed suicide by taking poison and the accused absconded soon after the incident. The prosecution version was that the accused gave beating to his wife and said to have spoken in anger that 'She could die by taking poison if she liked'. It was held that this fact by itself could not amount to culpable instigation or commission of suicide, beating alleged to have been given also did not amount to abetment to commit suicide. The Punjab and Haryana High Court in Raj Kumar v. State of Punjab, 1983 Cr. L J 706, held that where the accused was charged with abetting suicide of wife, failed to dissuade the lady from committing suicide when she threatened to commit suicide and actually committed suicide by setting fire to her clothes after sprinkling kerosene on them. The Court held that the accused could not be said to be guilty of illegal omission, as Section 107 I.P.C. envisages not a simple omission but an illegal omission. The omission would be illegal only if what has been omitted to be done by the accused was required under the law to be done by him.
8. From a careful study of the aforesaid cases analogical deduction comes to that moral aspect of the case has to be separated from the legal aspect and that every ill-treatment including humiliation etc. would not fall within the purview of instigation or illegal omission again because every omission is not illegal Besides this, to bring the case within the ambit of Section 107 I.P.C., some active steps must be taken by word or action with intend to instigate the principal or principals and that encouragement does not of necessity, amount to aiding or abetting. It may be intentional or unintentional. I may make it clear that while drawing the aforesaid deduction, I have kept in my mind that any thing being considered in this case according to law which existed on the day of the commission of the crime and would not govern the cases which come after incorporation of Section 113A and 113B of the Indian Evidence Act, I have kept the consideration of these sections out of consideration because they were not on statute on the day offence was committed in this case. Thus, the evidence will have to be scrutinized within the parameters mentioned above.
9 Prosecution has relied on verbal evidence as well as documentary evidence. In verbal evidence different circumstances have sought to be placed on record. No body was present at the time of the occurrence nor there is any material left by her to infer the immediate cause of her committing suicide but suffice it to say that immediate past and immediate future conduct if comes on record qua the deceased and the accused persons that may be relevant for the purpose of assessing the value of the evidence:
10. PW 3 is Shanker Lal who happens to be the maternal uncle in relations of deceased Shakuntala and, staying in Kekri. He has stated that on 20-11-1983 i.e. previous day of her committing suicide Shakuntala had gone to his residence and complained of the ill-treatment of her father-in-law and brother-in-law and she gave the cause that it was because of not giving dowry. She is alleged to have stated that her living has become miserable. They wanted to turn her out of the house but she was not willing to stay separately. It is also borne out from the statement of this witness that Shakuntala was being asked to beg the breads which she did not like. There had been lengthy cross-examination of the witness and he has admitted in cross-examination that she used to meet him very frequently but earlier to her meeting on 20-11-1983 she had never complained of demand of dowry. He also admits that no letter was given to him for being sent to the father. He has been confronted on various points about his improving statements over the police statements and he has denied to have given those statement. Even the statement about making the life miserable has also not been stated by him in his police statement. In fact, from his statement, nothing is borne out that there were such strained relations so as to instigate her for commission of suicide. On the contrary, from the trend of the cross-examination it appears that she was studying and was continuing her study and her husband was in search of a separate house where husband and wife could stay.
11. Kamla PW 5 is the sister of Shakuntala's mother. She states that Shakuntala used to come for begging bread in her locality. Shakuntala had written a letter for her father and gave it to her son which letter was given to her father. After reading the letter Bajrang Lal, i.e. the father for the deceased, came to Kekri and stayed at her residence. Bajranglal went to Shakuntala's place but did not return for quite some time and, therefore, being worried, she herself went to Shakuntala's place. When she reached there, she inquired about Bajranglal but the mother-in-law did not speak just then Shakuntala's husband, Gopi Kishan, came and pushed the door but it did not open. It was broken open and Shakuntala was seen hanging. She stated that she used to be ill-treated by her mother-in-law, father-in-law and brother-in-law and one of the main dispute was that they used to live on begging which she did not like. In cross examination, she has stated that the appellant, Gopal her brother-in-law used to humiliate Shakuntala and when the witness asked her not to do like that, he insisted that he will still create more problems. She has stated that she cannot give the reason as to why the fact of demand of dowry has not been mentioned in her police statements. She has admitted that about the demand of dowry, Shakuntala stated only 2 or 3 days' prior to her death and she did not complain of it earlier. She has been confronted about this aspect of the case in her cross-examination and she could not give any satisfactory answer. Her statement also does not inspire confidence to connect the accused with the crime of instigation or illegal omission.
12. PW 6 is Shanti Devi w/o Bajrang Lal, mother of the deceased. She is the most material witness in this case. She has stated that she had only one daughter who was Shakuntala. She gave number of things to her in her marriage and narrated the list She stated that Shakuntala was being harassed by her father in-law, and brother-in-law for not bringing dowry. She stated that on 17-11-1983 she had gone to Shakuntala's place. At that time she was pregnant. She used to write letters about her being harassed. On 17-11-1983 when she reached her daughter's place, her mother-in-law and father-in-law were harassing her and have compelled her to die. She has stated that Shakuntala used to write daily diary which she read to her and she also recorded in the diary that her father-in-law and brother-in-law used to harass her. She also stated that this was also recorded in her diary that she was being beaten everyday and that she is not being given meals and her clothes have been snatched. She also complained that she has been compelled to beg and this is wanted five tolas of gold more. She further submits that in her presence, her father-in-law told Shakuntala that she will have to die and remove herself from the way for another marriage of his son. She does not have in possession any letter where Shakuntala might have complained about demand of dowry. She stated that she has told her husband much before about the demand of dowry. She was confronted with her police statement but she could not explain why the motive of demand of dowry has no reference in her police statement. She stated that she had made a protest to Shakuntala's husband as well as other members of the family. She has denied the suggestion that she wanted to live separately.
13. PW 7 is Bajrang Lal who only stated about her execution in examination in chief. He states in his statements that Shakuntala wrote him three letters which are Exs. P 9, P. 10 and P. 11 and that she committed suicide because her father-in-law and mother-in-law and brother-in-law used to harass her. He has stated that there was a demand of five tolas of gold. He states that On 19-11-1983 Nand Kishore had given all information about ill-treatment with Shakuntala and that his wife had gone on 17-11-1983 because Shakuntala was pregnant. He has stated that he had seen dead body of his daughter, who had marked on her buttocks and ligature mark on the neck. He admits in cross-examination that his daughter, had been living in her-in law's house continuously since August, 1982 and used to visit his house. She used to say that her in-laws' behaviour with her is quite cold and they do not give love as should be given to a dauguter-in-law. She told on 24-6-1982 about the ill-treatment and he asked her to find out the cause which she replied was demand of dowry. He stated that after 24 6-1982 she had been continuously writing in letters about demand of dowry and when asked her father-in-law stated that their desire must be fulfilled. He then stated that ill-treatment with his daughter started after she passed her the STC Training. He states that ill-treatment was such that either she should run away or she will be compelled to die. He also stated that he had seen the marks of violence and beating on his daughter's person and this he had seen on the day of Rakshabandhan. He had seen the injuries on the back but he did not report the matter to police. He said that he did not take any action of giving notice also regarding such beating. He stated that he had shown the injuries on his daughter's back to his neighbours. He states that when he went to her in-law's place in response to her letter, he was told by all the neighbours that she is being beaten. Regarding the dowry business, there is complete omission in FIR as well as in police statement. He was thoroughly cross-examined on the point and he could not give any satisfactory answer. This witness has faultered at various places and his statements appears to be full of exaggeration.
14. This is the total evidence against the accused involving them in the offence so far as the oral evidence is concerned. This evidence either read individually or collectively, is not enough to bring out a case of instigation, aiding or illegal omission.
15. Now. coming to the documentary evidence there are three letters produced on record by the prosecution. They are addressed by Shakuntala to her father. In Ex. P 9 she has written that the atmosphere in her house is so bad that she has to write again this letter. The atmosphere remains the same which started on 15-6-1982 and she has to hear taunts. Gopal (brother-in-law) and his mother (mother-in law) do not want to see the face of both of us and want to turn out from the house. She wrote that they too have decided not to stay in the house and, therefore, she called her father as also father-in-law also wanted him. Her father-in-law is alleged to have prepared a list of articles to be given to them and, therefore, she asked her father to bring the list of articles which is with him. She had said that it is difficult to spend even a couple of days in that house. In second letter written on 20-9-1983 she has stated that her father-in-law says that they will return the articles no sooner they vacate the house but she had decided not to leave the house. Minor troubles are almost coming up every day like putting off the light, throwing the clothes on ground floor stopping the water tap etc. She further mentioned that they are interested that we should leave the house at once but she has now made up her mind to fight with equal strength. She writes in the letter, "you must reply tit for tat". She also mentioned that she has written to her maternal uncle for some service. She wants the letter to be sent to her husband's address on his shop and not at the residence.
16. Ex. P 11 is the letter which had been written only a day prior to her committing suicide in which she has stated that after leaving her mother for Malpura these people (in-laws) are still more angry. They do not talk at all. Her brother-in-law used to have abusive language but now her father-in-law has also used dirty language, hence she called her father forth with.
17. On the strength of the aforesaid three letters, prosecution wants to infer that there was lot of cruelty on her which compelled her to commit suicide. The learned trial Court has also drawn an inference from these letters along with Ex. P.3. Ex. P.3 is a letter which has been written by her brother-in-law where in he has stated that they are sorry to learn about the atmosphere in her house but he advised that the life itself is a struggle and she should continue her struggle, as after darkness there is always light. It was further advised that if her father-in-law returns the goods and articles she should take them but still not vacate the house.
18. I am unable to infer from any of the documents (letters) that at any stage there was a quarrel for demand of dowry. On the contrary, it appears that she alone did not have strained relations with father-in-law, mother-in-law and brother-in-law but her husband had also not good relations with them. They wanted both the brothers to stay separately and it appears that parents wanted to reside with the other one viz., Gopal. They wanted them to vacate the house and stay in some other house on which she was resisting and it appears ill advised by her own brother and other advisors. It is brone out from these letters, if closely read that her father-in-law was always ready and willing to give all goods which she had brought with her in her marriage and it was for that as she was apprehensive of honesty of her father-in-law. She wanted her father to bring its list also so that it could be tallied. This leads me to infer that the foundation was distrust among each other rather than demand of dowry. It is also borne out from the reading of the rest of the evidence that her husband, was only running a little shop and she was continuing her study in as much as she completed her S.T.C. training. It is also borne out from the letter which have been produced in defence that Bhanwarlal Sharma, accused, who happens to be the Education Extension Officer was interested in educating her and was sending her money when she was undertaking the S.T.C. Training. There is no mention of the dowry demand in the FIR or in police statement. Therefore, it can safely be said that it is a subsequently made up story in order to show the gravity of the offence and thus, the real cause of dispute between in-laws and her has not been brought on record. A very close screening of the entire record has convinced me that there were not appropriate environment for the healthy growth & development of Shakuntala despite the fact that her father-in-law intended to educate her. It is for this reason that there was mal-treatment by the mother-in-law and brother-in-law which was damaging if not as physically evident, it certainly included mental cruelty, failure to provide adequate assistance and victimisation. I am, therefore morally convinced that she was mal-treated by her mother-in-law and brother-in-law but it could not be enough to bring the case within the ambit of Section 107 I.P.C.
19. I, therefore, conclude that the prosecution has failed to bring out a case of abetment to commit suicide & bringing the case within the ambit of Section 306, I.P.C.
20. I have already mentioned above that this is a case prior to amendment in the Indian Evidence Act and, therefore, provisions of Section 113A cannot be invoked. This could have been a fit case for convicting the accused under Section 498A, I.P.C. but there is no charge led over to the accused for that offence and offence under Section 498A, I.P.C. in no manner can be said to be a minor offence than Section 306, I.P.C.
21. In view of the aforesaid findings there is no need of discussing any other evidence or the aspect of the case but still, I would be failing in my duty if I do not give express view to that I thought about the investigation in this case. The earliest report in the case was given by the father-in-law Bhanwarlal Sharma where in the only information given was that his son's wife has committed suicide by hanging. It was on this report that proceeding started under Section 174, Cr. P.C. which later on converted into a investigation of the case under Section 306 I.P.C. registered on the next day on a report by Shakuntala's father. Shakuntala's post mortem was conducted on 21st November, 1983 by Dr. L.K. Bhargava PW 2. He found the following injuries on the person of the deceased:
1. On the right buttock, multiple abrasions of size 1/2" x 0.4" to 1" x 0.5" present on the right buttock. It appeared to me insect bite;
2. On the left thigh, multiple abrasions of size 1-1/2" x 0.3" to 1/3rd x 0.5" present on the right on the medial side. It appeared to be insect bite.
In this report the significant aspect is multiple abrasions on the right buttock and on thigh. Doctor has opined that they appear to be insect bites. He has not mentioned about any internal injury corresponding to the ligature mark on both side of thigh. He has neither mentioned the condition the injury nor about the other cartilages or haemorrhage which might have been damaged because of hanging. While doing the autopsy, it is essential for the Doctor to mention the nature of the noose, if still present and it should be fully described. The point on which the ligature mark lives, the scill should be recorded. The report should also indicate whether the rope passed up the back of neck or behind either ear. In most of the cases of hanging the pressure is exerted against the back of the neck. The evidence should be such where the court may come to the conclusion as to whether the death, though caused by hanging, it was suicidal or homicide particularly when there are other injuries on buttocks and thighs which has been convenieniently ruled out by calling them as insect bites. There is one more aspect of the matter why it required a detailed medical examination was that at the time when Panchnama was prepared she was bleeding from her genital organs. Even her pettycoat was found to be blood stained. Birdhi Chand PW 1 in whose presence the Panchnama was prepared has stated in his examination in chief also that there were several scratches on her body and one mark of injury on her buttock and she was bleeding from her genital organs. Doctor has mentioned that her uterus was enlarged and there was a faetus present. He also mentioned about stains of blood on the petticoat but does not mention about bleeding from the uterus Doctor, how ever, had reserved his opinion about rape till the result of the chemical examination was received which has not seen the light of the day. This conduct of the Doctor and the Investigating Officer puts a big question mark on the method of conducting post-mortem and investigation in cases like the present one. It was at least expected of the Doctor that he should have studied the books before he gave his opinion. In view of the fact that he has not been cross-examined on many aspects of the matter and he is not before me nor there is any utility in calling him because the prosecution has brought a positive case of abetment committing suicide and for which the evidence fell short. I refrain to say any thing more except that the conduct of the investigation in this case has not left any happy impression on my mind and lesser said the better.
22. I have already held above that in this case there is overwhelming evidence of mal-treatment with the daughter-in-law and the case morally convinces about mental cruelty to the deceased but at the same time evidence falls short of proof required for maintaining conviction. I would have sent the case for trial under Section 498A, I.P.C. but no purpose would be served since the accused have already served out more than half the sentence which is maximum prescribed under Section 498A, I.P.C.
23. For the reasons mentioned above, I allow this appeal, set aside the conviction and sentence of the accused appellants and acquit them. Accused Smt. Santosh and Gopal are in jail, they shall be released forthwith, if not required in any other case. Accused Bhanwarlal is on bail and he need not surrender to his bail bonds.