MADAN RAJ BHANDARI versus STATE OF RAJASTHAN

MADA1" RAJ BHANDARI

STATE OF RAJASfHAN

Ju[1]y 29, 1969

[S. M. SI.KR!, G. K. MITTER AND K. S. HEGDE, JJ.J

Criminal trial-Accused charged with ahettne111-Principtll o{lender acquitted-Accused convicted of having abeaed anothl!r pc,son-.'\[1]o such charge-Legality of conviction.

The appellant was charged with having abetted one R in causing mis· carriage to woman who died in the attempt R was acquitted but the appellant was convicted of the offence of abetting the Ueccascd woman ~n the commission of the offence. The High Court confirmed the conviction.

In appeal to this CX>urt,

HELD : The facts of the present case fell within the rule that charge of abctmeot fails ordinarily when the substantive offence is not established against the principal offender. The High Court erred in holding that the rule laid down in Ga/111 Sah v. The State of Bihar, [19591 S.C.R. 861, applied to the facts of the cao;e. That \\·as an exceptional case. [693 B-Dl

Faguna Kanta Nath v. State of Assam, followed.

[1959] Supp. 2 S.C.R. 1,

llmad~i Da·d v. E1nperor, 1.1..R. 52 Cal. 112, approved.

Further, the appellant cross-examined the prosecution witnesses on1y to ~how that be had nothing to do with his co-accused R, as he was not aware of the facl thal he would be required to show that he did not in any manner abet the deceased. Therefore, he was prejudiced by the absence of the charge of abetting the deceased woman and hence, \Vas entitled lo an acquittal. [693 A·Bl

Willie Slaney v. The State of M.P., [1955] 2 S.C.R. 1140, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Ne-. 82 of 1967.

Appeal by special leave from the judgment and order dated March 15. 1967 of the Rajaslhan High Court in Criminal Appeal No. 219 ot 1965.

Sobhag Mal Jain and V. S. Dave, for the appellant.

K. B. Mehta, for the respondent.

The Judgment of the Court was delivered by

Jlegde, J. The appellant's conviction by the learned Addi-tional Sessions Judge, Jodhpur under s. 314 read with .s. 109, Indian Penal Code, having been affirmed by the High Court of Rajasthan, he appeals to this Court after obtaining special leave. The charge on the basis of which be was tried was that some

days prior to May 1, 1963, he abetted one Mst. Radha at Jodh-pur to cause the miscarriage of one Miss Atoshi: Dass alias Amola, who as result of administration of tablets and introduction of "laminaria dento" by the said Mst. Radha, died on May 1, 1963. The case for the prosecution is that in about the years 1962-63, . the appeHant was the President of Gramotthan Pratishthan at Jal ore. Miss Atoshi Dass was teacher working in Indra Bal Mandir, Tikhi, an institution under the management of the ap-pellant. . She was young and unmarried. Illicit relationship de-veloped between the aforementioned Atoshi Dass and the appel-lant as result of which Miss Atoshi Dass became pregnant. With view tn cause abortion of the child in her womb, the appellant took Miss Dass to Jodhpur and there attempted to cause the mis-c carriage mentioned above through one Mst. Radha. The attempt was not successful. The insertion of "laminaria dento" in the private parts of Miss Dass caused septicaem as result of which she died in the hospital on May 1, 1963.

The appeJlant's case is that he had no illicit relation with Miss Atoshi .Dass nor did he abet the ·aueged abortion. He denies that Miss Atoshi Dass died as result of any attempt at abortion.

As seen earlier the appeJlant was charged and tried for the offence of abetting Mst. Radha to cauS!' the miscarriage in ques-tion but he was ultimately convicted of the offence of abetting Miss Dass in the commission of the said offence.

It may be stated a~ ibis stage that one Mst. Radha was tried alongwith the appellant in the trial court but she was acquitted on the ground that there }Vas no evidence to show that she had any-thing to do with the abortion complained of.

Despite the con,tentions of the appellant to the contrary, we think there ls satisf~tory evidence to show that the death of Miss Dass was due t(1 septicaem resulting from the introduction of "laminaria <lento", Linto her private parts. On this point we have the unimpeachat~e evidence of Dr. A. J. Abraham, P.W. 4.

There .is also .. ~atis. ;.'f.'' actory evidence to show that the appellant was in terms of•iYi~tt> intimacy with Miss Dass. It is true that the prinCipal wi\i1es& I'm this point is Miss Chhayadass, P.W. 6, the sister of the (lecei\$ed, witness who has given false evidence in several respect§: :i:lut as regards the illicit relationship between the appellant and Mi$~ Atoshi Dass, her evidence receives material corroboration from the evidence of P.W. 7, M. B. Sen and P.W. 5, Misri Lal. Furthi;f it also accords with the probabilities of the case. It is not neces8ary to go into that question at length as we have. come to the coµclusion that the appellant is entitled to an acquittal for the reasons to be stated presently.

While we are of opinion that there was illicit intimacy between the appellant and the deceased, we arc unable to accept the as-sertion of Miss Chhayadas.s thal tl1c appe:1:1111 was her only p~ram­our. Exh. D.3 cooclusively proves that the deceased had illicit re-lationship with one Sood al Delhi. In the comminal court Miss Chhayada\< admilted that the address on Exh. D-3 is in the hand-writing of lhe deceased. In that cour< she was posilive about i1: but in the trial court she went back on that admission. In many other respects also she had deviated from the evidence given by her in the committal court. Hence we arc unable to accept her statement in lhe trial court that the addrc" found on Exh. D-3, an inland letter is not in the handwriting of the deceased. Exh. D-3, appears to be self-addressed letter sent by the deceased to one Sood. The fact that the deceased had more than one parnmo:1r is not material circumstance though it may indicate that the ap-pcllu~t could n?t have had uny compelling motive to abet the aboruon complained of, The fact that the appellant was on ter1115 of illicit intiU1acy with the deceased, •m u~m•trricd girl and that she later became pregnant through him is without more, not suffi-cient to connect the appellant with the crime.From the evidence of Misrilal and Sengupta, it is clear that the appellant and the deceased had gone together to Jodhpur on April 24, 1963. But from the evidence of Sengupta, it 1s also clear that the deceased .had some work to attend to at Jodhpur. It is also clear from the evidence of Miss Chhayadass that th~ deceased and the appellant were going together Ill Jodhpur and other places off and on. It may be noted that while returning from Jodhpur to his native place, the appellant left the deceased with Mr. and Mrs. Sengupta. Hence th" circu.nstance that the appellant and the deceased went together to Jodhpur on April 24, 1963, cannot be held to be an incriminating circumstance. This leaves us with the evidence relating to the actual abet-ment. On this aspect of the case the only evidence brought Ill our notice is the evidence of Miss Chhayadass an<! the letter Ex. P.4. Miss Chhayadass deposed in the trial court that when the pregnancy of the deceased became notice:ible, the appellant told the deceased in the presence of that witness that he would get the the child aborted through Mst. Radha. As mentioned earlier Miss Chhayadass is highly unreliable witness. She had admitted in the committal court that she had been tutored by the police to give evidence. In fact 'he pointed out police officer who was in the court as the person who had tutored her. In the trial court she denied that fact. There is no gainsaying the fact that she was completely under the thumb of the police. She deviated from most of the important admissions made by her during her cross-examination in the committal court. Coming to the ques-tion of the abetment refrrred to earlier, this is what she stated during her cross examination in the committing court :

"My sister did not tell Madan Raj about her illness (arising from her pregnancy) in my presence. On being enquired by me about my sister at Jalor" I was informed that my sister had gone to Mst. Radha Nayan in the hospital for treatment. No talks about it were held before me prior to my talk at Jalore (talks between Madanraj and my sister about treatment)." According to the admissions made by her in the committal court she came to know for the first time about her sister's in-tention to cause miscarriage only after her death. No reliance can be placed on the evidence of such witness. Now coming to Exh. P .4, this is letter saiCI to have been written by the deceased sometime before her death intending to send the same to the appellant which in fact was not sent. It was found in her personal belongings after her death. There was some controversy before the courts below whether the ~ame is admissible under s. 32 ( l) of the Evidence Act and whether it could be brought within the rule laid down by the Judicial Com-D mittee in Paka/a Narayana Swami v. Emptror([1]). We have not thought it necessai'y to i!O into that question as in our opinion the contents of the said letter do not in any manner support the pro-secution case that the appellant instigated the deceased to cause miscarriage. The letter in question reads thus :

"Santi Bhawan 28-4-63.

I went with' vour Jetter to the father. Since I could not get money ·from him, I dropped you Jetter. I went to Mst. Radha and asked her to give me =<li-cine. I further said that the money would be received. She gave me a, tablet and told me that injection would be given on receipt of full payment. This tabtet Is caus; ing unbearable pain and bleeding but the main trouble will not be removed without the injection. How can I explain but the pain is untolerable. I have left Sen's residence. H~ and particularly neighbouring doctor would have come to know everything by my condition, which is too serious. (Meri is ha/at se unaki vishesker pas, me f)aktarji ko sub kuch pata cha/ jati powon tak ulati ho jati). Firstly I intended to proceed to Jalore but on reaching the Station I could not dare to pro-ceed. J feel that you are experiencing uneasiness and trouble for me. I am causing monetary as well as men-tal worrie~ t<\~ you. I have been feeling this for con-siderable tonger period. Please do not be annoyed.

Jt has become' very difficult for me to stay alone for the last ~eyeral days.

Had you accepted me as your better half you would have not left me alone in my such serious condition. You cannot know what sort of trouble I am experienc-ing. Had you been with me I would not have fel: it so ruuch. Please do not be annoyed. Perhaps no on~ has given you so much trouble.

I will write all these facts to my mother. aJ;,1 write about our marriage.

I will

28-4-63.

Today is Sunday. I cannot book trunk call to you in the court. Today I tried on the Phone number of Hazarimal but it was engaged. and later on it was cancelled. My Pranam.

Yours Ritu.

Today I have taken injection and have come from Shanti Bhawan."

No portion of that letter indicates that the appellant was in any manner responsible for the steps taken by the deceased for causing miscarriage. Nci other evidence has been relied upon either by the trial court or by the High Court in support of the finding that the appellant was guilty of the offence of abetting the deceased to cause miscarriage.

For the reasons mentioned above we are of the opinion that there i; no legal basis for the conviction of the appellant.

The learned Counsel for the appellant challenged the convic-tion of the appellant on yet another ground. As mentioned earlier he was charged and tried for the offence of abetting Mst. Radha to cause abortion of the child in the womb of the deceased but curiously enough he was convicted for abetting the deceased to cause miscarriage. Abetment as defined in s. 107 of the I.P .C., can be by instigation, conspiracy or intentional aid. If the abet-ment was that of Mst. Radha, it could have been only by instL gation or conspiracy but if it was an abetment' of the deceased, it could either be by instigation or by conspiracy or 6y intentional aid: Throu)?hout the trial the accused was asked to defend him-self against the charge on which he was tried. At no. stage he was notified that he would be tried for the offence of having abetted the deceased to canse miscarriage. It is now well settled that the absence of charge or an error or omission in it is not fatal to trial unless prejudice is caused-see Wil/ie (William) Slaney v. The State of Madhya Pradesh('). Therefore the essential question is whether there Is any reasonable likelihood

rt) [195l] 2 S.C.R. 1140.

' ----. -D.! tWi aci;~h'!yyi~ Been p{ejudfoed in_ view ,of the charge frmped ·· ·· ":!igljil!St'hln6From,what h;is bi:eq stated ·ajx>ve one can reasonab~y dome, to the conclusion that the ~ccused was likely· to have been prejudiced by the . r,haq~e on the . basis of wbich he was -tried. F~om,ihe ~os~-eXl'.minauon of the prosecutio,n witnesses, it is seen that ·~e prmc1pa! attempt m!lde qn behalf of the appellant was· to Bhow that he had nothing to do with the co-accused, Mst Radha. He could not have been aware of the fact that he would Pe required to show that he did not· iu any manner abet the de-ceased: to cause miscarriage. The facts of this case come. within 'the .rule laid down by this Court in Faguna Kanta Nath v, The State· of Assam([1]). The case, of Gallu Sah v. The State of Bihai-(2) relied by the High Court is distinguishable, Therein Gal!u Sah was member of an unlawful assembly. He was said · to have abetted Budi to set fire to house. One of the members of the unlawful assembly had set fire to the house iri question though 1t was not PFOVed that Budi had set fire to the house. Under those circumstances this Court held that the offence with which .Galin Sah was 'charged was made out. As observed by Calcutta High Court in Umadasi Dasi v. Emperor(") that as general· rule, charge of abetment fails· when the substantive offence is. not established against the principal but there may be exceptions. Ga/lu's case .was one such exception.

For the reasons mentioned above we allow' the· appeal ·and acquit tpe appellant. He is on b'!il. His ·bail bonds ·Stand cancelled~

Appeal allowed.

(I) [1959] 2 Supp. S.C.R. l.

(i} [1959] S.C.R. ~~I.