(1.) THIS appeal has been directed against the judgment passed by Additional sessions Judge, Khurai, in Sessions Trial No. 233/89 on 6th February, 1990, convicting the appellant for offence under Section 306 of the IPC and sentencing him for three years R. I. and fine of Rs. 2000/-, in default further six months R. I.

(2.) THE prosecution story in brief may be mentioned :-The appellant married to Atlabai who was daughter of Gyan singh (P. W. 4) and Kamlarani (P. W. 16). The appellant was having illicit relationship with one Rawat Tribal Lady Guddibai (P. W. 14), because of this illicit relationship the appellant used to beat his wife Atlabai and was intending to turn out his wife from his house and to marry with Guddibai. On 11-9-89 also the appellant beat his wife Atlabai and therefore, Atlabai committed suicide by consuming sulfas tablets.

(3.) THE appellant pleaded not guilty. He denied of having illicit relationship with Guddibai.

(4.) BEFORE the Trial Court in order to prove the charge, the prosecution examined Dr. K. K. Sohit (P. W. 1), Pyarelal (P. W. 2), Premsingh (P. W. 3), Gyan Singh (P. W. 4), Kaliram (P. W. 5), Hardeosingh (P. W. 6), Ravi Raja rajpoot (P. W. 7), Premsingh (P. W. 8), Krishna Kumar (P. W. 9), Dr. Munnalal soni (P. W: 10), Gopalsingh (P. W. 11), P. R. Shivram (P. W. 12), Premprakash gautam (P. W. 13), Guddibai (P. W. 14), K. D. Parashar (P. W. 15), Kamlarani (P. W. 16), Beersingh (P. W. 17). In defence the appellant choose not to lead any evidence.

(5.) DURING trial Pyarelal (P. W. 2), Kaliram (P. W. 5), Hardeosingh (P. W. 6) and Guddibai (P. W. 14) turned hostile. The Trial Court while considering the prosecution case dealt with the evidence so as to ascertain the fact that whether there is evidence about the appellants having illicit relationship with Guddibai (P. W. 14) and because of which he used to beat his wife atlabai (deceased), and the appellant assaulted his wife on the date of incident. The Trial Court on the basis of statement of Kaliram (P. W. 5), Hardeosingh (P. W. 6) as also considering the statement of Dr. K. K. Sohit (P. W. 1) held that it is not proved that appellant used to beat his wife and also it is not proved that there was any assault by the appellant on the deceased prior to her death. There was no external or internal injury found by Dr. K. K. Sohit (P. W. 1) in the post-mortem as per report (Ex. P-2). The Trial Court found the prosecution story not proved about the fact that on the date of incident appellant assaulted his wife.

(6.) WITH regard to the illicit relationship of appellant with Guddibai (P. W. 14) prosecution examined Pyarelal (P. W. 2), Gyan Singh (P. W. 4) father of the deceased, Guddibai (P. W. 14), Kamlarani (P. W. 16) mother of the deceased, Beersingh (P. W. 17) maternal uncle of the deceased. After considering the statement of above witnesses the Trial Court disbelieve the statement of Pyarelal (P. W. 2), Premsingh (P. W. 3), Rao Raja Rajpoot (P. W. 7). The trial Court on the basis of the statement of Kamlarani (P. W. 16), Gyan Singh (P. W. 4), Beersingh (P. W. 17), found it proved that the appellant had illicit relationship with Guddibai (P. W. 14) and once he had gone to perform the agreement "raji Baji" about marriage with Guddibai (P. W. 14) at Khurai however the same was not materialised. The Trial Court on the basis of statement of aforesaid witnesses and also on the basis of reports lodged by the guddibai (Exs. P-12 and P-13) held that the appellant was having illicit relationship with Guddibai (P. W. 14) and further held that because of these illicit relationship of appellant with Guddibai (P. W. 14), the wife of the appellant Atlabai committed suicide. Trial Court has held that this relationship since last four years may be a cause to commit suicide by Atlabai. The Trial court also held that since the appellant intended to marry Guddibai, the appellant caused mental cruelty to his wife Atlabai resultantly she committed suicide and as such convicted the appellant as aforesaid, holding him guilty of offence under Section 306, IPC.

(7.) HEARD Shri Manish Datt, learned Counsel for the appellant and shri R. K. Verma, learned Counsel for the State. Perused the record.

(8.) SHRI Datt, learned Counsel for the appellant has contended that from the evidence on record it is not proved that the appellant was having illicit relationship with Guddibai (P. W. 14) and it is also not proved that the appellant is guilty of offence under Section 306 of the IPC. On the other hand, shri R. K. Verma, learned Counsel for the State submitted that the judgment of the Trial Court is based on correct appreciation of facts and has submitted that from the evidence on record it is fully proved that the appellant was having illicit relationship with Guddibai (P. W. 14) and thereby abated his wife Atlabai to commit suicide.

(9.) IN order to hold guilty to the appellant for the offence under section 306, IPC it has to be seen whether the prosecution has proved that the appellant has abated the commission of suicide, the prosecution evidence has to be scrutinised keeping in view Section 306 of the IPC and Section 107 of the IPC. Dr. K. K. Sohit (P. W. 1) who has done post-mortem he in his statement stated that no firm opinion can be given regarding the cause of death of the deceased Atlabai. He has also deposed that there was no external or internal injury on the body of the deceased. The Trial Court on the basis of evidence of Premsingh s/o Bhogiram (P. W. 8), Gyan Singh (P. W. 4) held that the death of the Atlabai was because she consumed sulfas tablets. On the basis of evidence it has been established that the body of Atlabai was found lying in her house and there was a bottle containing two tablets of sulfas found near her body. During the trial also there is no challenge to the cause of the death, on the other hand the appellant has admitted that the cause of the death was because Atlabai committed suicide by consuming sulfas. Thus the fact that atlabai committed suicide by consuming sulfas tablet is held to be proved.

(10.) IN the Trial Court Gyan Singh (P. W. 4) who is father of the deceased Atlabai has supported the prosecution case regarding the allegation about the illicit relationship of appellant with Guddibai (P. W. 14). However, this witness in Para 4 has stated that he came to know that his daughter has committed suicide by consuming sulfas tablets, but he stated that he can not say why she has consumed sulfas tablets. The statement of Beersingh (P. W. 17) which has been relied upon by the Trial Court for conviction does not lead to draw any conclusion about alleged illicit relationship. In his cross-examination he retracted from his police statement. The statement of Kamlarani (P. W. 16) is that her daughter Atlabai married to appellant 8 years back and about four years ago Atlabai told her that her husband has developed illicit relationship with daughter of Rawat Tribal lady and because of this appellant used to beat her, thereafter also Atlabai used to say that the appellant has relationship with other woman and therefore, she will die. Guddibai (P. W. 14) in her statement denied any illicit relationship with the appellant. She also denied of lodging of any report Ex. P-12 and Ex. P-13.

(11.) WHILE reassessing the evidence on record it is found that the allegation of the illicit relationship of the appellant with Guddibai (P. W. 14)can not be said to be proved. Pyarelal (P. W. 2) neighbour of Guddibai turned hostile. Gyan Singh (P. W. 4) has denied his police statement (Ex. D-l) and has not stated anything which lead to prove that there was illicit relationship between the appellant and Guddibai (P. W. 14). Kaliram (P. W. 5) has also turned hostile. Hardeosingh (P. W. 6) who is brother of deceased Atlabai has also not supported the prosecution case and has turned hostile. Rao Raja rajpoot (P. W. 7) who is uncle of the appellant and as per the prosecution story vide Ex. P-12 this witness on the earlier occasion has scolded Guddibai for keeping illicit relationship with his nephew, in his statement recorded in the court has not stated anything about previous incident and scolding to guddibai about having illicit relationship with the appellant. Kamlarani (P. W. 16) has stated only that about four years back her daughter (deceased) told her that the appellant is having illicit relationship with one Rawats daughter and thereafter also she used to tell her she will die. Beersingh (P. W. 17) has also not stated anything which leads to the proving of the fact that the appellant was having illicit relationship with Guddibai. Thus from the evidence on record, the allegation of the illicit relationship can not be said to be proved against the appellant.

(12.) THE Trial Court has relied Ex. P-12 and Ex. P-13. The documents (Ex. P-12 and Ex. P-13) are the reports lodged by Guddibai on earlier occasions. These reports are not conclusive proof and can not be used as an evidence to prove the allegation of the illicit relationship. Even considering ex. P-12 and Ex. P-13, it is held that they are not such documents so as to lead to prove the fact of illicit relationship. They are not the documents of admission of illicit relationship by Guddibai with appellant as has been treated by the trial Court. The story of prosecution about illicit relationship is not found to be proved on the basis of evidence on record. Rao Raja (P. W. 7) though examined by the prosecution but is silent about any such incident as contained in Ex. P-12 and Ex. P-13.

(13.) THUS, I find that there is no evidence that the appellant has abated his wife for commission of suicide. There is no evidence about any physical cruelty by the appellant to the deceased. In order to bring home the charge under Section 306 there should be an abatement to commit suicide. Even assuming that the prosecution has proved the fact of illicit relationship but that itself is not sufficient to hold the appellant to be guilty of the offence punishable under Section 306 of the IPC. This relationship as per prosecution was going on since last four years. The illicit relationship though not proved may be a reason for suicide, but can not be said to be abatement which requires a positive step to be taken by persons to induce the commission of the offence. From the evidence on record, it can not be said that the appellant abated his wife for commission of the suicide.

(14.) IN the result, I find that the judgment of the Sessions Court convicting the appellant is not tenable, the same is not based on correct appreciation of facts and law. From the evidence on record, it can not be said to be proved that the appellant has committed offence under Section 306 of the IPC. Thus, the judgment of the Trial Court is set aside. The appellant is acquitted of the charge under Section 306 of the IPC. The appellant is already on bail his bail bond shall stand discharged. Criminal Appeal allowed.