JUDGMENT 1. - Challenge in this appeal is to the judgment dated July 30, 2002 of 1 the learned Additional Sessions Judge Fast Track Tonk whereby the appellants, eight in number, were convicted and sentenced as under : Soojya @ Suraj, Badri, Panchu, Suresh, Kedar, Ramu, Hanuman and Prabhu : U/s. 302 read with 149 & 120B IPC : Each to suffer imprisonment for life and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months. U/s. 147 IPC : Each to suffer rigorous imprisonment for two years. U/s. 342 IPC : Each to suffer rigorous imprisonment for one year. U/s. 323 read with 149 IPC : Each to suffer rigorous imprisonment for one year. Substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on June 21, 2001 informant Surgyan (Pw.5) submitted a written report (Ex.P- 10) at Police Station Shivdaspura Jaipur to the effect that the informant lived in village Dayalpura with his mother, sisters and brothers. His father, who was alcoholic, lived separately from them. In order to extract money, his father used to visit his mother and indulge in physical abuse in the event of money not given to him when demanded. His sister Moti aged 18 years had come back from her matrimonial home for a short stay and was residing with them for the last about two months. She was to return her matrimonial home shortly. On June 18 around 11.30 PM about ten persons namely Surja, Suwa Lal, Panchu, Suresh, Badri, Kedar, Ramu, Hanuman, Mangal Ram and Prabhu Narayan (father of informant) came to his house, gave beating to his mother and took Moti with them in a jeep and burnt her to death at Akodia, her husband's house. On that report a case was registered under sections 143, 323, 365, 302, 201 and 120B IPC and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Fast Track Tank. Charges under sections 147, 365, 323, 302/149 and 120B IPC were framed against the 35 appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 31 witnesses. In due course the case came up for trial before the learned Additional Sessions Judge Fast Track Tank. Charges under sections 147, 365, 323, 302/149 and 120B IPC were framed against the 35 appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 31 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. learned counsel for the appellants while assailing the impugned judgment took us through the material on record. 4. It could not however be established beyond reasonable doubt that death of Moti was homicidal in nature. As per Post Mortem report (Ex.P-23) all the muscles of upper & lower limbs were charred completely but muscles of left thigh were not charred. Muscles of face, neck and back were charred. Nasal Bones, Jaw bones, both hand's bones Rt. forearm bones, both legs bones and all bones of feet were charred including their joint. In the opinion of Dr. Krishna Kant Vijay (Pw.19) the cause of death was shock due to 100% burns. No smell of kerosene or petrol was found on the dead body. Dr. Vijay in his cross examination categorically deposed thus : " blds 'kjhj ij bl izdkj dh tyus ls fLFkfr fdlh NIij iks'k edku esa vkx yx tkus ls bl izdkj ls vkSjr ty ldrh gSA " 5. It also appears from the material on record that telephonic information was received by Ashok Butoliya (Pw.27) SHO PS Niwai at 5-15 AM on June 19, 2001 that fire broke out in the house of Suresh Balai of village Akodia as a result of which a woman got burnt and died. SHO recorded the message in Rojnamcha (Ex.P-42) and proceeded to the spot where he found three chappars (temporary shade of the house made of sticks and grass) gutted with fire. All the house hold goods were also burnt. Dead body of Moti badly burnt was lying in a room. Prabhu, father of Moti, and her husband Surja were present at the spot. The SHO informed Sub Divisional Magistrate. Child, aged five months, who was saved, was sent to the Hospital for treatment. All the house hold goods were also burnt. Dead body of Moti badly burnt was lying in a room. Prabhu, father of Moti, and her husband Surja were present at the spot. The SHO informed Sub Divisional Magistrate. Child, aged five months, who was saved, was sent to the Hospital for treatment. Thereafter Prabhu (Father of deceased Moti) handedover a written report (Ex.P-24) to the SHO PS Niwai on June 19, 2001 at 7 AM with the averments that he took Moti to her Sasural (Akodia) on June 18, 2001. His son-in-law was also with him around 1 AM while Moti was sleeping with her child, fire broke out suddenly. The child was somehow saved but Moti was badly burnt and died. Police Station Niwai registered Mrig FIR No. 14/2001 under section 174 Cr.P.C. and forwarded it to Ramavtar Meena (Pw.30) who gave report (Ex.P-29) to the effect that Moti died under abnormal circumstances. 6. Narayani (Pw.6) in her deposition stated that her daughter Moti was married some five years earlier to the incident. In the month of Jeth her daughter was called from the house of her in-laws, thereafter when her husband came to take her she (Narayani) sought some more time in sending her daughter. On the next day Panchu, Suresh and Prabhu (her husband) came and persuaded Moti to go to house of her in-laws. Moti then asked her father Prabhu to arrange for some clothes. After about eight days when Suwa Lal and Mangla came she told them that Moti may be sent afterwards but on the same night around 11 PM Panchu, Suresh, Kedar, Ramu, Hanuman, act Sheoji, Badri and Prabhu (her husband) came and forcibly lifted Moti and took her with them in a jeep. She then came to know that Moti was burnt to death. In her cross examination she stated that the report was lodged after three days of the incident. She also deposed that her husband was a crack person and their relations were not good. She then came to know that Moti was burnt to death. In her cross examination she stated that the report was lodged after three days of the incident. She also deposed that her husband was a crack person and their relations were not good. Sanwra (Pw.7), brother of the deceased, in his cross examination deposed thus : " ;g lgh gS fd lekt okys yksx ;g dgrs Fks fd esjh eka dk pyu [kjkc gSA ;g lgh gS fd esjk cki Hkh esjh eka ls dgrk Fkk fd cgu vkSj csVh dks fcxkM+sxh vkSj blh ckr dk vkil esa >xM+k FkkA ;g Hkh lgh gS fd blfy, esjh cgu dh llqjky okys Hkh esjh cgu dks gekjs j[kus ds i{k esa ugh FksA " Informant Surgyan (Pw.5) narrated the incident repeating the contents of the written report (Ex.P-10). 7. Factual situation emerges from the evidence adduced at the trial may be summarised thus : (i) FIR (Ex.P-10) was lodged after three days of the incident. (ii) Narayani (mother of deceased), as per her own son Sanwara, was a woman of bad character or at least had the reputation of being so in the community and the husband, in-laws, and even father of deceased were keen to save her from the company of her mother. (iii) While deceased Moti was residing with her mother, she was forcibly taken by her husband, in-laws and her father to her Sasural. (iv) Moti did not like the force used in taking her back to her Sasural and she got herself ablazed. 8. A bare look at the evidence on record shows that the appellants treated Moti cruelly as a result of such cruel treatment Moti was driven to meet the suicidal death. Thus offence of abetment of committing suicide punishable under section 306 read with 149 IPC is clearly made out against appellants and for that purpose presumption under section 113-A of the Evidence Act can be raised against them. Sections 306 IPC and Section 113-A Evidence Act read thus : "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 file." "113-A. Presumption as to abetment of suicide by a married woman. 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 file." "113-A. Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation. For the purposes of this section cruelty shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)." 9. It is established beyond reasonable doubt that appellants used force in removing Moti from the house of her mother. This cruel treatment was not liked by her and she got herself ablazed within five years of her marriage. On such evidence the presumption which arises under section 113-A of the Evidence Act is that the appellants abetted the suicide. The word 'cruelty' as mentioned in the Explanation below Section 113-A of the Evidence Act has been given the same meaning contained in the Explanation below Section 498A IPC. On the facts established, the willful conduct of husband and other relatives in harassing the deceased was so cruel that she was driven to commit suicide and the offence of abetment of committing suicide, punishable under section 306 read with 149 IPC is proved against appellants. 10. Although charge under section 306 read with 149 IPC was not framed against appellants but omission to frame charge under the said section has not resulted in any failure of justice. In Hira Lal v. State (Govt. of NCT) Delhi, 2003(2) WLC (SC) Cri. 216 : (2003) 8 SCC 80 , their Lordships of s Supreme in a similar situation observed as under : "Though no charge was framed under section 306 IPC, that is inconsequential. In Hira Lal v. State (Govt. of NCT) Delhi, 2003(2) WLC (SC) Cri. 216 : (2003) 8 SCC 80 , their Lordships of s Supreme in a similar situation observed as under : "Though no charge was framed under section 306 IPC, that is inconsequential. On the facts of the case, even though it is difficult to sustain the conviction under section 304-B IPC, there is sufficient material to convict the accused-appellants in terms of Section 306 IPC along with Section 498A IPC." 11. For these reasons, we partly allow the appeal and instead of section 302 read with 149 IPC, we convict the appellants under section 306 read with 149 IPC and looking to the fact that the appellants have already undergone confinement for a period more than six years, the ends of justice Is would be met in sentencing them to the period already undergone by them in confinement. We however acquit the appellants under sections 147, 341, 323 read with 149 and 120B of the Indian Penal Code. Appellants Soojya @ Suraj, Badri, Panchu, Suresh, Kedar, Ramu, Hanuman and Prabhu, who are in jail, shall be set at liberty forthwith, if they are not required to be detained 20 in any other case.The impugned judgment of learned trial stands modified as indicated hereinabove.Appeal Partly Allowed As Above. *******