JUDGMENT 1. - In challenge is the judgment and order dated 23.3.1989 passed by the learned Sessions Judge, Sikar in Sessions Case No. 13/1987 convicting the appellants under Section 306 and 498-A IPC and sentencing them to suffer rigorous imprisonment for six years and to pay a fine of Rs. 500 each, in default, to undergo simple imprisonment for six months for their conviction under Section 306 IPC. Thereby, they were further sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 200 each, in default, to undergo simple imprisonment for one month for their conviction under Section 498-A IPC. Both sentences were directed to run concurrently. 2. I have heard Mr. V.P. Vishnoi, learned counsel for the appellants and Ms.Alka Bhatnagar, learned Public Prosecutor, Rajasthan. 3. The genesis of the prosecution case is traceable to the written information lodged on 20.9.1986 with the Police Station, Kotwali, Sikar by one Onkar Mal, the father of deceased Smt.Sua alleging assault and torture on her by the appellants and her father-in-law since after her marriage to the appellant No. 3-Om Prakash about eight years back. It was also alleged that the deceased was even denied food. The report disclosed that on 19.9.1986 at about 8:00 a.m. one Pyarelal, Mushtak and appellant-Om Prakash visited the house of the informant at Village Ranoli and informed him about the sudden disappearance of deceased Smt.Sua from her matrimonial home. According to the informant, on receiving such information, he alongwith Nand Ram, Uda Ram, Laxmanram, proceeded to the house of the appellants, but on reaching there, did not secure any satisfactory clue about the whereabouts of Smt.Sua. After a futile search for the whole day at about 11:00 a.m. on 20.9.1986, when the informant went to the police station to lodge the report, he was told by an unknown person that some clothes and chappals of a lady had been noticed lying near Vyasji's well, and that, some human like substance was also visible inside the same. Hearing this, the informant, along with others, accompanied by the police, went to the place where the well was located and inside the same, Smt.Sua's dead body was found floating along with the body of her recently born child aged about 17 days. Hearing this, the informant, along with others, accompanied by the police, went to the place where the well was located and inside the same, Smt.Sua's dead body was found floating along with the body of her recently born child aged about 17 days. The informant alleged in the report that Smt.Sua had, by the unbearable torture unleashed on her by her in-laws, been compelled to commit suicide. The police, on the basis of this report, registered an FIR, Ex.P-8 at 3:15 p.m. Meanwhile, at about 10:45 a.m. acting on the report submitted by the informant as above, the police did visit the well, and in course of the investigation, recorded the statement of informant Onkar Mal to the effect that the death of Smt.Sua had occurred due to her fall in the well. 4. Be that as it may, an investigation followed on the culmination whereof, a charge-sheet was submitted against the appellants and the father-in-law of the deceased, Birdi Chand under Sections 306 & 498-A IPC. The accused persons having denied the charge, the trial followed in course whereof, the prosecution examined Onkar Mal PW-1, Rukma (sister of the deceased) PW-4 and Dr.Vijay Kumar Sabu PW-5, who had conducted the postmortem examination on the dead body of the deceased. The investigating officer however, was not examined by the prosecution. The appellants in their statements under Section 313 Cr.P.C. denied the charge. The learned trial court, on a consideration of the materials on record, by the impugned judgment and order, convicted and sentenced them as above. The father in law of the deceased, Birdi Chand was however acquitted. 5. The learned counsel for the appellant has argued that even if the evidence adduced by the prosecution is accepted on its face value, no offence under Section 306 IPC is made out against the appellants, and therefore, the impugned judgment and order, to that extent, is liable to be set aside. Referring to the evidence of PW-4, Rukma, who had been examined by the prosecution to prove the atrocities committed on the deceased by her in-laws stemming from the demand for dowry, and even otherwise, the learned counsel has urged that absence of any indication thereof in the FIR renders the prosecution version wholly incredible. Mr.Vishnoi argued that the postmortem report clearly indicated absence of any ante mortem injury ruling out any possibility of her murder. Mr.Vishnoi argued that the postmortem report clearly indicated absence of any ante mortem injury ruling out any possibility of her murder. As the injuries had apparently been sustained by the deceased as a result of her voluntary fall in the well, the appellants by no means, could have been convicted under Section 306 IPC, he urged. Learned counsel has however, fairly conceded that he had no issue vis-a-vis the evidence on record bearing on Section 498-A IPC. He however, in categorical terms, emphatically urged that the charge under Section 306 IPC against the appellants had not been proved, and thus, the conviction of the appellants under the said provision of law is patently illegal. He relied on the decisions of the Apex Court in Mahendra Singh & Anr. v. Gayatribai, 1995 Supp(3) SCC 731 ; Sohan Raj Sharma v. State of Haryana, AIR 2008 SC 2108 ; Kishangiri Mangalgiri Goswami v. State of Gujarat, AIR 2009 SC 1808 and of the Andhra Pradesh High Court in Sanagala Yagna Sree v. State of Andhra Pradesh, 1996 CRI.L.J.1249. 6. Ms.Bhatnagar per contra has argued that the prosecution having been able to prove the ingredients of both the offences, the appellants had been rightly convicted therefor, and thus, no interference with the impugned judgment and order is called for. Adverting to the testimony of PW-1, the father of the deceased and PW-4, her sister in details, the learned Public Prosecutor has insisted that the deceased was, by the unbearable torture meted out to her, compelled to commit suicide, and thus, the charges levelled against the appellants had been duly proved. Dismissing the so-called omissions in the FIR to be wholly inconsequential, she has urged that the evidence of two witnesses, PW-1 and PW-4, who are visibly truthful, does amply demonstrate that the cruel acts of the husband and in-laws of the deceased, and the continuous ill-treatment meted out to her, were not only relatable to the demands for dowry, but also, on other domestic issues having a painful and torturous bearing on the mental state compelling her to commit suicide. The learned Public Prosecutor referred to the evidence of PW-4, in particular, to contend that assaults and denial of food to Smt.Sua on the previous night of her death was barbaric and inhuman. The learned Public Prosecutor referred to the evidence of PW-4, in particular, to contend that assaults and denial of food to Smt.Sua on the previous night of her death was barbaric and inhuman. She then being a nursing mother of a child aged 18 days, having regard to the degree of cruelty exhibited by the appellants and the tragic consequences, the impugned judgment and order furthers the ends of justice, and thus, no interference therewith is called for, she maintained. 7. That, at the time of the death of Smt.Sua was the wife of appellant-Om Prakash, and that, she had died an unnatural death, is not in dispute. That when her body was recovered from the well in question, she was in the company of her infant child, is also a matter of record. It is in this background, that the evidence of the relevant prosecution witness(es) would have to be analyzed. 8. PW-1 Onkar Mal stated on oath that both his daughters, Smt.Sua (deceased) and Rukma (PW-4) were given in marriage in the same family. He alleged that since after the marriage, both his daughters were subjected to cruelty by their in-laws as well as their husbands. They used to assault them demanding dowry. He stated that being disgusted with such continuous atrocities, he brought back both his daughters to his place. Eventually however, on the assurance of the appellants and other elders of his son-in-laws, he permitted his daughters to return to their nuptial home. The witness deposed that about ten months back, appellant-Om Prakash alongwith two others, had come to his house enquiring about Smt.Sua and informed him that since the previous night, she was missing from the house alongwith her infant child. The witness thereafter, along with others, went to the house of Smt.Sua's in-laws and there he having enquired about her other daughter Rukma, no one could state about her availability. The witness stated that thereafter, his son Laxmanram and one Ramnath went to the paddy field of the appellants and found Rukma there, who disclosed to them in details about the brutalities committed on the deceased. PW-1 further stated that the next day when he alongwith others went to the police station to lodge a report, someone informed him that he had seen the clothes of a woman and her chappals near Vyasji's well. PW-1 further stated that the next day when he alongwith others went to the police station to lodge a report, someone informed him that he had seen the clothes of a woman and her chappals near Vyasji's well. According to this witness, the fatherin- law of the deceased, Birdi Chand having identified her chappals, he submitted a report where after, the police started the investigation and retrieved the dead bodies from the well. In cross-examination, this witness admitted of not having stated in the FIR about the disclosures made by Rukma to Laxmanram and Ramnath. He also could not recall as to the time at which the report was lodged by him with the police. 9. PW-2 Laxmanram, the brother of the deceased deposed that his sisters since after the marriage, had been complaining of ill-treatment by their in-laws demanding enhanced dowry. He confirmed about accompanying his father, Onkarmal alongwith others to the house of inlaws of the deceased and also the disclosures made by his sister Rukma to them about the incidents of assaults on them by their in-laws. This witness stated that Rukma had told him that the appellants had assaulted the deceased the previous night, and that, she (Rukma) was kept confined in a room. The witness reiterated the version of his father PW-1 about the incidents thereafter, leading to the discovery of the dead body of his sister and the child from Vyasji's well. 10. PW-4, Smt.Rukma, the sister of the deceased, apart from corroborating the versions of PW-1 and PW-3, also deposed about extramarital relationship between the appellant-Om Prakash and one lady, named Chanda, who used to come to their house and reside there. She also stated that when Smt.Sua objected to this, appellant-Om Prakash was annoyed. She reiterated that in the previous night of the incident, the deceased was denied food and was assaulted by her husband and her in-laws. The witness however, did not implicate her father-in-law, Birdi Chand. She stated that when she tried to intervene, she was confined in a room after being assaulted and in the early morning, she was taken to the paddy field. According to the witness, there also, she was locked in a room. She however, affirmed to have conversed with her brother Laxmanram in course whereof, she furnished the details of the happenings of the previous night with the deceased. 11. According to the witness, there also, she was locked in a room. She however, affirmed to have conversed with her brother Laxmanram in course whereof, she furnished the details of the happenings of the previous night with the deceased. 11. Dr.Vijay Kumar Sabu PW-5 proved the postmortem report and opined that the death of Smt.Sua had occurred out of laceration in the brain resulting in loss of blood. This witness clarified that the injuries sustained by Smt.Sua could have been incurred by her fall in the well and dashing of her head against the wall thereof. In cross-examination, the witness certified that the body of the deceased was well-built and well nourished, which indicated that she used to take regular food. He opined further that the deceased had taken her last meal about 10 hours before her death. He disclosed that the injuries suffered by her on the right side of her body. 12. Having regard to the progression of events, from the time when the informant came to learn that whereabouts of Smt.Sua were not known till the recovery of her body from Vyasji's well as is surfaced from the evidence of PW-1 and PW-2, I am not inclined to disbelieve the case of the prosecution on the ground of any doubt with regard to the time of lodging of FIR about the incident. Exhibits P.8 and P.9 reveal a chain which indicates that before a report was lodged with the police by Onkarmal, he was informed by some other person about the existence of a dead body in the well. Having mentioned about the same in his report, the police visited the spot and retrieved the body and thereafter, a formal report of the whole episode was registered. In my view, as the death of Smt.Sua and her infant child is not in dispute, the prosecution case on this count per se ought not to be rejected. 13. The evidence of PW-1, PW-2 & PW-4 read as a whole, without any element of doubt, does prove that Smt.Sua had been subjected to continuous torture and cruelty by the appellants both on the count of dowry and otherwise. That the ill-treatment had continued over the years, is amply demonstrated. That the existence of another lady, named Chanda with whom, according to PW-4, appellant-Om Prakash had illicit relationship, is also a matter of record. That the ill-treatment had continued over the years, is amply demonstrated. That the existence of another lady, named Chanda with whom, according to PW-4, appellant-Om Prakash had illicit relationship, is also a matter of record. The evidence about the exact nature of the relationship between appellant-Om Prakash and the lady is however, inadequate. The appellants are therefore, entitled to the benefit of doubt to this extent. PW-4 Rukma, in categorical terms, had stated that during the night prior to the date on and from which Smt.Sua had gone missing, she was assaulted by her in-laws and was even denied food. That the deceased, then was a nursing mother with a newly born child and was thus, in need of extra care, cannot be doubted. It is in evidence that Smt.Sua had been in marriage with appellant-Om Prakash for eight years before the incident. The evidence on record however, does not indicate that the deceased, due to the cruel behaviour and treatment meted out to her by her in-laws, had been driven to a mental state to commit suicide so as to satisfy the requirements of Section 306 IPC. 14. The Hon'ble Apex Court in Sohan Raj Sharma (supra) and Kishangiri Mangalgiri Goswami (supra), while dwelling on the concept of abetment, analyzed the ingredients of Section 107 IPC. Their Lordships held that a person abets the doing of a thing when, (i) he instigates any person to do that thing; or (ii) engages with one or more other persons in any conspiracy for the doing of that thing; or (iii) intentionally aids by act or illegal omission. It was enunciated that that the word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. In State of West Bengal v. Orilal Jaiswal, AIR 1994 SC 1418 , the Hon'ble Apex Court sounded a caveat observing that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for ascertaining whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. In case it occurs to the Court that the victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the charge of abetment would not succeed. 15. In Sanagala Yagna Sree (supra), the Andhra Pradesh High Court even in a fact situation where the deceased was continuously ill-treated & tortured and was beaten on the previous day of suicide, held that though the same would amount to cruel treatment, as contemplated under Section 498-A IPC, the accused could not be presumed to have abetted the deceased to commit suicide in absence of any evidence of he having instigated her to commit the said act. 16. There thus, exists a subtle divide between cruelty, as contemplated in Section 498-A IPC and abetment, comprehended under Section 306 IPC so much so that though pursuant to the cruelty in the former provision, the person subjected thereto may commit suicide, the same would not per se prove abetment thereof by the accused to hold him guilty of the offence under Section 306 IPC. The quality, content and degree of the evidence to prove a charge of abetment under Section 306 IPC against the accused though found guilty of offence under Section 498-A IPC, would have to be more clinching and consummate. Inference of abetment, as contemplated under Section 306 IPC, even if evidence to prove the ingredients of the one under Section 498-A IPC is present, would be impermissible. 17. The evidence on record, as discussed herein above, does prove the charge under Section 498-A IPC vis-a-vis the appellants, but fall short to establish abetment, as conceived of under Section 306 IPC. The materials on record do not unimpeachably demonstrate that the appellants, by their acts, had either instigated or aided the deceased to commit suicide. Noticeably, there is no evidence on record to even suggest that Smt.Sua had been murdered, and that, the injuries found on her body are ante mortem in nature. 18. On a cumulative consideration of all above, I am of the considered opinion that the charge against the appellants under Section 498-A IPC is established. The sentence awarded by the learned trial court on this count is thus sustained. 18. On a cumulative consideration of all above, I am of the considered opinion that the charge against the appellants under Section 498-A IPC is established. The sentence awarded by the learned trial court on this count is thus sustained. They are however, acquitted of the charge under Section 306 IPC. 19. The appeal is partly allowed. The office would send down the record immediately to the learned trial court, which would take appropriate steps on the receipt thereof to ensure that the accused appellants serve out the sentence sustained in the present appeal.Appeal partly allowed. *******