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PETITIONER: MADAN RAJ BHANDARI

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT: 29/07/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. MITTER, G.K.

CITATION:  1970 AIR  436            1970 SCR  (1) 688  1969 SCC  (2) 385  CITATOR INFO :  F          1990 SC1210  (5,8,9)

ACT:     Criminaltrial--Accused charged with  abetment--Principal offender  acquitted--Accused  convicted  of  having  abetted another person---No such charge--Legality of conviction.

HEADNOTE:     The  appellant was charged with having abetted one R  in causing miscarriage to a woman who died in the. attempt.   R was acquitted but the appellant was convicted of the offence of  abetting  the deceased woman in the  commission  of  the offence.  The High Court confirmed the conviction.     In appeal to this Court,     HELD:   The facts of the present case fell   within  the rule  that  a charge of abetment 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 Gallu Sah v. The State of Bihar, [1959]  S.C.R. 861,  applied  to  the  facts of  the  case.   That  was  an exceptional  case; [693 B--D]     Faguna  Kanta Nath v. State of Assam,   [1959]  Supp.  2 S.C.R. 1, followed.     Umadasi Dasi v. Emperor, I.L.R. 52 Cal. 112. approved.     Further,  the appellant cross-examined’ the  prosecution witnesses  only 10 show that he had nothing to do  with  his co-accused R, as he was not aware of .the fact that 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,  was entitled to an acquittal. [693 A-B]     Willie  Slaney  v. The State of M.P.,  [1955]  2  S.C.R. 1140, referred to.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  82 of 1967.     Appeal  by  special leave from the  judgment  and  order

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dated March 15. 1967 of the Rajasthan High Court in Criminal Appeal No. 219 of 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     Hegde,  J.   The appellant’s conviction by  the  learned Additional 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 he was tried was that some 689 days  prior  to May 1, 1963, he abetted one  Mst.  Radha  at Jodhpur  to  cause the miscarriage of one Miss  Atoshi  Dass alias  Amola, who as a 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  appellant  was  the 13resident  of  Gramotthan  Pratishthan   at  Jalore.   Miss Atoshi  Dass  was  a teacher working in  Indra  Bal  Mandir, Tikhi, an institution under the management of the appellant. She was young and unmarried.  Illicit relationship developed between the aforementioned Atoshi Dass and the appellant  as a  result of which Miss Atoshi Dass became pregnant. With  a view  to  cause  abortion  of the child  in  her  womb,  the appellant  took Miss Dass to Jodhpur and there attempted  to cause  the  miscarriage  mentioned above  through  one  Mst. Radha.   The attempt was not successful.  The  insertion  of "laminaria  dento" in the private pacts of Miss Dass  caused septicaem  as a result of which she died in the hospital  on May 1, 1963.     The appellant’s case is that he had no illicit  relation with Miss Atoshi Dass nor did he abet the alleged  abortion. He  denies  that Miss Atoshi Dass died as a  result  of  any attempt at abortion.     As seen earlier the appellant was charged and tried  for the offence of abetting Mst. Radha to cause the  miscarriage in  question but he was ultimately convicted of the  offence of abetting Miss Dass in the commission of the said offence.     It  may be stated at this stage that one Mst. Radha  was tried  along with the appellant in the trial court  but  she was  acquitted on the ground that there was no  evidence  to show  that  she  had  anything  to  do  with  the   abortion complained of.     Despite   the  contentions  of  the  appellant  to   the contrary,  we think there is satisfactory evidence  to  show that the death of Miss. Dass was due to septicaem  resulting from the introduction of "laminaria  dento" into her private parts.  On this point we have the unimpeachable evidence  of Dr. A.J. Abraham. P.W. 4.     There  is  also satisfactory evidence to show  that  the appellant  was in terms of illicit intimacy with Miss  Dass. It is true that the principal witness on this point is  Miss Chhayadass,  P.W. 6, the sister of the deceased,  a  witness who  has given false evidence in several respects.   But  as regards  the illicit relationship between the appellant  and Miss   Atoshi   Dass,   her   evidence   receives   material corroboration from the evidence of P.W. 7, M.B. Sen and P.W. 5.   Misri   Lal.   Further  it  also   accords   with   the probabilities. of the case.  It is not necessary to go  into that  question at length as we have come to  the  conclusion that  the  appellant  is entitled to an  acquittal  for  the reasons to be stated presently. 690     While we are of opinion that there was illicit  intimacy

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between  the  appellant and the deceased, we are  unable  to accept  the assertion of Miss Chhayadass that the  appellant was  her only paramour.  Exh. D. 3 conclusively proves  that the  deceased  had  illicit relationship with  one  Sood  at Delhi.  In the committal court Miss Chhayadass admitted that the  address  on  Exh.  D-3 is in  the  handwriting  of  the deceased.   In that court she was positive about it; 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  are  unable  to. accept  her  statement in the trial court that  the  address found  on  Exh.  D-3,  an  inland  letter  is  not  in   the handwriting  of  the deceased.  Exh. D-3, appears  to  be  a self-addressed letter sent by the deceased to one Sood.  The fact  that the deceased had more than one paramour is not  a material  circumstance  though  it  may  indicate  that  the appellant  could not have had any compelling motive to  abet the  abortion complained of.  The .fact that  the  appellant was  on  terms  of illicit intimacy with  the  deceased,  an unmarried  girl and that she later became  pregnant  through him is without more, not sufficient 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 is also clear that the deceased had some  work to attend to at Jodhpur. It is also clear from the  evidence of Miss Chhayadass that the deceased and the appellant  were going  together to 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 the circumstance 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 abetment.   On  this aspect of the case  the  only  evidence brought to our notice is the evidence of Miss Chhayadass and the  letter Ex. P.4.  Miss Chhayadass deposed in  the  trial court  that  when  the  pregnancy  of  the  deceased  became noticeable, 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 a  highly  unreliable  witness.  She  had  admitted  in  the committal  court that she had been tutored by the police  to give evidence.  In fact she pointed out a 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 question of the abetment referred  to earlier,   this  is  what  she  stated  during   her   cross examination in the committing court: 691                  "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 Jalore 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

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intention  to  cause miscarriage only after her  death.   No reliance can be placed on the evidence of such a witness.     Now  coming to Exh. P.4, this is a letter said  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 same is admissible under s. 32 (1 ) of the Evidence Act and whether it could be brought within the rule laid down by the Judicial Committee in Pakala Narayana Swami v. Emperor(1).  We have not thought it necessary to go  into that  question  as in our opinion the contents of  the  said letter  do  not in any manner support the  prosecution  case that   the  appellant  instigated  the  deceased  to   cause miscarriage.  The letter in question reads thus:                   "Santi Bhawan 28-4--63.                    I  went with your letter to. the  father.               Since  I  could  not get  money  from  him,  I               dropped  you a letter.  I went to  Mst.  Radha               and asked her to give me medicine.  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  tablet  is causing 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.  He  and  particularly               neighbouring  doctor would have come  to  know               everything  by  my  condition,  which  is  too               serious.   (Meri is halat se  unaki  vishesker               pas  me  Daktarji ko sub kuch pata  chal  jati               powon tak ulati ho jati).  Firstly I  intended               to  proceed  to Jalore but  on  reaching   the               Station  I could not dare to proceed.  I  feel               that  you  are  experiencing  uneasiness   and               trouble  for  me.  I am causing   monetary  as               well  as mental worries to you.  I  have  been               feeling.   this  for  a  considerable   longer               period.  Please do not be annoyed.               It  has become very difficult for me  to  stay               alone for the last several days. (1) A.I.R. [1939] P.C. 47. 692                     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 experiencing.  Had  you  been               with  me  I would not have felt  it  so  such.               Please do not be annoyed.  Perhaps no one  has               given you so  much trouble.                    I  will  write  all these  facts   to  my               mother I  will also write about our marriage.                28-4-63                     Today is Sunday.  I cannot book a  trunk               call  you  the court.  Today I  tried  on  the               Phone number of Hazarimal  but it was engaged,               and latter on it cancelled.  My Pranam.                                      Yours Ritu.       Today I have taken injection and have come from Shanti Bhawan."      portion of that letter indicates that the appellant was in  any  manner  responsible  for the  steps  taken  by  the deceased  for  causing miscarriage.  No other  evidence  has been  relied upon either by the trial court or by  the  High

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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  is  no legal basis for the  conviction  of  the appellant.     The  learned  Counsel for the appellant  challenged  the conviction  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 abetment  was that of Mst.  Radha,  it  could have been  only  by  instigation  or conspiracy  but  if it was an abetment of the  deceased,  it could  either  be  by instigation or  by  conspiracy  or  by intentional aid  Throughout the trial the accused was  asked to defend himself 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 cause miscarriage. It  is  now well settled that the absence of  charge  or  an error  or  omission  in it is not fatal to  a  trial  unless prejudice  is  caused--see Willie (William)  Slaney  v.  The State  of   Madhya  Pradesh(1).   Therefore   the  essential question is whether there is any reasonable likelihood 693 of the accused having been prejudiced in view of the  charge flamed against him. From what has been stated above one  can reasonably  come  to  the conclusion that  the  accused  was likely to have been prejudiced by the charge on the basis of which  he  was  tried. From  the  cross-examination  of  the prosecution witnesses, it is seen that the principal attempt made  on  behalf of the appellant was to show  that  he  had nothing  to do with the co-accused,  Mst. Radha.   He  could not have been aware of the fact that he would be required to show  that  he did not in any manner abet  the  deceased  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   Bihar(2) relied by the High Court  is  distinguishable. Therein Gallu Sah was a member of an unlawful assembly.   He was  said to have abetted Budi to set fire to a house.   One of the members of the unlawful assembly had set fire to  the house in question though it was not proved that Budi had set fire to the house. Under those circumstances this Court held that  the offence with which Gallu Sah was charged was  made out.  As observed by Calcutta High Court in Umadasi Dasi  v. Emperor(a)  that  as a general rule, a  charge  of  abetment fails  when  the  substantive  offence  is  not  established against  the principal but there may be exceptions.  Gallu’s case was one such exception.     For the reasons mentioned above we allow the appeal  and acquit  the appellant. He is on bail. His bail  bonds  stand cancelled. V.P.S.                            Appeal allowed. (1) [1959] 2 Supp. S.C.R. 1 (2) [1959] S.C.R. 861 (3) I.L.R. 52 Cal. 112.. 694