JUDGMENT 1. - Through this appeal Suresh Kumar, calls in question the judgment dated 7.8.1999 of the learned Addl. Sessions Judge, Parbatsar, whereby the appellant was convicted under section 306 & 498-A, IPC, sentenced to undergo five years S.I. and pay a fine of Rs. 10,000/-, in default 10 months S.I. under the first count and one year S.I. and a fine of Rs. 2,000/-, in default 4 months S.I. under the second count. 2. The prosecution case, as set out in the FIR Ex. P/1 lodged by Kesri Chand (PW 1), was that Kaushalya was married to Suresh Kumar (appellant) some times in 1987 and there was no issue out of the wedlock, and that Suresh Kumar used to harass Kaushalya for procuring money from her parents house and for that purpose he even used to beat her. It was stated that a sum of Rs. 5,000/- was paid to Kaushalya once. It was further stated that Om Prakash Sharma had informed him (Kesri Chand) that Suresh had thrown away the body of Kaushalya in a well after killing her. On this report, a case under sections 306 & 498-A, IPC was registered. The police after completion of usual investigation, filed a challan. 3. The learned Addl. Sessions Judge, vide order dated 9.3.1999 framed charges under sections 498-A & 306 IPC against appellant-Suresh Kumar who pleaded not guilty. The prosecution examined PW 1 Kesri Chand, PW 2 Smt. Devki, PW 3 Sampati Devi, PW 4 Om Prakash, PW 5 Jetha Ram, PW 6 Shailendra Kumar, PW 7 Govind Prasad, PW 8 Indra, PW 9 Motilal, PW 10 Bhagwana Rain, PW 11 Shankerlal, PW 12 Prem Singh, PW 13 Dr. Rajendra Kumar & PW 14 Narayan Singh. Accused-appellant in his statement under section 313, Cr.P.C. denied accusation. He denied to have ever given beatings to his deceased wife. He did not examine any witness in defence. After hearing the learned counsel for the parties, the learned Addl. Sessions Judge held that the prosecution has successfully brought home the charges against the appellant. He, therefore, convicted and sentenced him as stated above. 4. Mr. Punia, learned counsel for the appellant, contended that ingredients of offence of abetment of commit suicide are not established by the prosecution evidence and the trial Court has erred in convicting the appellant under section 306 IPC. He, therefore, convicted and sentenced him as stated above. 4. Mr. Punia, learned counsel for the appellant, contended that ingredients of offence of abetment of commit suicide are not established by the prosecution evidence and the trial Court has erred in convicting the appellant under section 306 IPC. For the offence under section 498-A IPC, he contended that the evidence regarding causing cruelty has been given by the interested witnesses and the evidence ought not to have been believed by the trial Court. His further contention was that the FIR was lodged many days after the alleged occurrence. He relied on the cases of Chanchal Kumari v. Union Territory, 1999 Cr.L.R. (SC) 152 , Swami Prahladdas v. State of M.P., Cr.L.R. (SC) 141 , Mst. Jeet Kaur v. State of Raj., 1978 WLN (UC) 453 , Dalip v. State of Raj., 1995 RCC 214 , Manish v. State of Rajasthan,1994 Cr.L.R. (Raj.) 249 and Dhanna Ram v. State of Rajasthan, 1995 Cr.L.R. (Raj.) 190 . 5. The learned Public Prosecutor, on the other hand, tried to support the judgment. His contention was that the testimony of the witnesses should not be discarded on the mere ground that they are relatives. He emphasised that by the evidence of the witnesses it is established that the accused-appellant used to ill-treat his wife. 6. I have given the matter my thoughtful consideration. First, it is to be seen whether the prosecution has been able to establish the charge under section 306 IPC. Section 306 IPC reads as follows : 306. Abetment of suicide. - If any person commits suicide, whoever 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. 7. The abetment has been defined in Section 107 of the 1PC, which reads as under:- 107. Abetment of a thing. - A person abets the doing of a thing, 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 or illegal omission, the doing of that thing. 8. 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 or illegal omission, the doing of that thing. 8. A reading of Section 107 IPC shows that the abetment implies a certain degree of activity on the part of the abettor, either prior to or at the time of actual commission of offence. The offence of abetment is committed either by instigating a person to commit suicide to do a thing or by engaging in conspiracy to commit an offence or intentionally aiding by any act or illegal omission. Explanation 2 comes into play where the accused facilitates the commission of an act. 9. Now, it is to be seen whether the act of the accused falls in any of the categories of abetment. 10. There is no evidence to this effect that the accused- appellant ever told the deceased to die or that he had facilitated the commission of suicide. It is also not on record that the accused-appellant gave threatening to the deceased of serious nature. What has been deposed by the witnesses is that the accused sometimes beat his wife. The evidence can be classified in two categories. One, evidence of beating on the date of occurrence. Two, evidence of beating prior to the date of occurrence. 11. The first type of evidence has been given by Shailendra (PW 6), who deposes that some eight months prior to his statement was recorded in Court, he had gone to village Khedi Khinwsi to pay condolence visit and when he was passing through the house of Suresh he heard some cries and as he went inside the house, he saw Kaushalya lying on the ground and Suresh beating her by fists and the kicks. He says that on his asking, Kaushalya told him that Suresh was telling her to fetch money from her brothers. Shailendra then says that after his intervention in the occurrence, he went away to Ladnu and he came to know afterwards that Kaushalya had died on the day he had seen the occurrence of beating.Admittedly, Shailendra is not the resident of Khedi Khinwsi. Shailendra does not say that he was in any way related to Kaushalya or Suresh. Shailendra then says that after his intervention in the occurrence, he went away to Ladnu and he came to know afterwards that Kaushalya had died on the day he had seen the occurrence of beating.Admittedly, Shailendra is not the resident of Khedi Khinwsi. Shailendra does not say that he was in any way related to Kaushalya or Suresh. It is significant to point out that Shankerlal (PW 11), who is father of Shailendra, deposes in categorical terms that Kaushalya was not related to her. When Kaushalya was not related to Shankar Lal there could not be any occasion for Shailendra, to have gone in the house of Suresh to hear the complaint of Kaushalya and witness the occurrence. It is obvious that Shailendra has given false evidence that he had seen the occurrence of beating. It is relevant to state that Shailendra had not stated in his statement Ex. D/2 that he had seen the accused causing fists and kicks blows to Kaushalya when she was lying on the ground. It is further important to note that Shailendra did not inform about the occurrence to his father when he returned to his village. Shailendra has given clear statement in this regard. Though Shankerlal (PW 11), his father in order to help the prosecution, deposes that his son had informed on 3.10.1998 about the occurrence of beating to Kaushalya. That version of Shankerlal can not be believed in the presence of categorical statement of Shailendra, more so when Kaushalya was not related to them. It is significant to point out that according to Shailendra when he had seen the occurrence, 2-4 persons belonging to the same Mohalla were also standing inside the house. The prosecution has not examined any witnesses of the Mohalla. Keeping in view the improvements made by Shailendra and his unnatural conduct, and the fact that he was a chance witness, no reliance can be placed on the testimony of Shailendra that he had seen the accused giving beatings to Kaushalya on 3.10.1998.It is relevant to point out that the medical officer, who had conducted the post-mortem of Kaushalya on 4.10.1998, did not find a single external injury on her person. The postmortem report Ex. P/5, falsifies the statement of Shailendra. 12. The postmortem report Ex. P/5, falsifies the statement of Shailendra. 12. The second category of evidence, is contained in the statements of PW Keshri Chand, PW 2 Smt. Devaki, PW 3 Sampati Devi, PW 4 Om Prakash, PW 7 Govind Prasad, PW 8 Indira and PW 9 Motilal.PW 1 Keshri Chand who is cousin of the deceased deposes that Kaushalya used to tell him that her husband gave beatings to her. PW 2 Devki, deposes that some five days, before the death, her sister Kaushalya had gone to her and complained that her husband had given beating to her. PW 3 Sampati Devi deposes that in the previous night, Kaushalya had told her that her husband used to beat her. PW 4 Om Prakash, deposes that Kaushalya used to tell that her husband did not earn and beat her. To the same effect are the statements of Govind Prasad, and PW 8 Indira, PW 9 Motilal deposes that he was informed by his brothers that Suresh used to beat Kaushalya and he demanded money and Kaushalya had once demanded money from him and he had given five thousand rupees to her. He further says that three months before the death of Kaushalya, he had gone to village Khedi Khinvsi and when he met Kaushalya she was sad and on his asking she told that she had quarrel with her husband. PW 10 Bhagwana Ram deposes that once Kaushalya had taken a sum of Rs. 5,000/- from him to purchase necessaries as her husband did not earn money but after some time she had returned the amount. PW 11 Shanker Lal deposes that on 19.9.1998 Kaushalya had complained to him that her husband gave beatings to her and told that she should bring money from her parents house. 13. The question for consideration is whether on the aforesaid evidence a charge under section 306 IPC can be said to have been established. In my opinion, even on accepting the evidence as such it is difficult to hold the charge under section 306 IPC proved. The evidence may be believed to the extent that at times the accused gave beatings to his wife for which she complained to her sisters and brothers, but the said beatings cannot be said to be with intent to abet Kaushalya to commit suicide. 14. The evidence may be believed to the extent that at times the accused gave beatings to his wife for which she complained to her sisters and brothers, but the said beatings cannot be said to be with intent to abet Kaushalya to commit suicide. 14. It is significant to point out that married life of Kaushalya and the accused had continued for 11 years. Not a single report was lodged either to the police station or even to the community representatives about the beatings. This shows that it was a case of ordinary quarrel which some times takes place between husband and wife and the beating was never of such magnitude as can be considered to have effect of instigating the deceased to commit suicide. 15. It is pertinent to note that the presumption provided under section 113-A of the Evidence Act can not be raised in this case because the death has not occurred within seven years of marriage. In other words, for recording conviction under section 306 IPC there should be definite evidence suggesting that the accused-appellant had either instigated Kaushalya to commit suicide or he had committed any act intentionally to drive her to commit suicide. On the evidence produced by the prosecution it cannot be safe to maintain the conviction of the appellant under section 306 IPC. 16. As already stated, various witnesses depose that at times the deceased had complained against the appellant that he had given beatings to Kaushalya. It is also in evidence that the appellant was not earning money and at times he asked his wife to get money from her brothers and sisters. There is no cause to disbelieve the witnesses on this point. It is fully established on record that the accused had subjected Kaushalya to cruelty which offence is punishable under section 498-A 1PC. The trial Court has not erred when it convicted the appellant under section 498-A IPC. His conviction for that offence is, therefore, maintained. 17. Coming to the sentence, it is noticed that the appellant has undergone almost full sentence of imprisonment for the offence under section 498-A IPC awarded by the trial Court. The sentence of fine deserves to be reduced. 18. Consequently, the appeal is partly allowed. While maintaining the conviction of the appellant under section 498-A IPC, he is acquitted under section 306 IPC. The sentence of fine deserves to be reduced. 18. Consequently, the appeal is partly allowed. While maintaining the conviction of the appellant under section 498-A IPC, he is acquitted under section 306 IPC. His sentence under section 498-A IPC is reduced to the period of imprisonment already undergone by him and a fine of Rs. 50/-. In default of payment of fine, he shall undergo 7 days S.I. The appellant is in custody, he shall be released forthwith, if the amount of fine is deposited and he is not required in any other case.Appeal partly allowed. *******