# MADA1" RAJ BHANDARI v. STATE OF RAJASfHAN Ju 1y 29, 1969

- **Citation:** [1970] 1 S.C.R. 688
- **Court:** Supreme Court of India
- **Decided:** 1970
- **Bench:** S. M. Si.Kr!, G. K. Mitter, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mada1-raj-bhandari-v-state-of-rajasfhan-ju-1y-29-1969-4681
- **Pages:** 6

## Headnote

Criminal trial-Accused charged with
ahettne111-Principtll
o{lender
acquitted-Accused convicted of having abeaed anothl!r pc,son-.'\1o such
charge-Legality of conviction.
The appellant was charged with having abetted one R in causing mis·
carriage to a 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,
A
B
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HELD :
The facts of the present case fell
within the rule that a
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.
D
861, applied to the facts of the cao;e.
That \\·as an exceptional
case.
[693 B-Dl
Faguna Kanta Nath v. State of Assam,
[1959] Supp. 2 S.C.R. 1,
followed.
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.

## Text

MADA1" RAJ BHANDARI
v.
STATE OF RAJASfHAN
Ju 1y 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-.'\1o such
charge-Legality of conviction.
The appellant was charged with having abetted one R in causing mis·
carriage to a 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,
A
B
c
HELD :
The facts of the present case fell
within the rule that a
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.
D
861, applied to the facts of the cao;e.
That \\·as an exceptional
case.
[693 B-Dl
Faguna Kanta Nath v. State of Assam,
[1959] Supp. 2 S.C.R. 1,
followed.
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
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 be was tried was that some
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MADAN RAJ v. RAJASTHAN (Hegde, J.)
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 appeHant was the President of Gramotthan Pratishthan
at
Jal ore.
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 tn 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 parts of Miss Dass caused septicaem as a 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 a 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 question 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 anything 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, a 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.
690
SUPREME COURT REPORTS
[1970) l S.C.R
While we are of opinion that there was illicit intimacy between
the appellant and the deceased, we arc unable to accept the assertion of Miss Chhayadas.s thal tl1c appe:1:1111 was her only p~ram
our. Exh. D.3 cooclusively proves that the deceased had illicit relationship with one Sood al Delhi.
In the comminal court Miss
Chhayada\< admilted that the address on Exh. D-3 is in the handwriting 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 a self-addressed letter sent by the deceased to one
Sood.
The fact that the deceased had more than one parnmo:1r
is not a material circumstance though it may indicate that the appcllu~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 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 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 abetment.
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 a 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 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 refrrred to earlier, this is what she stated
during her cross examination in the committing court :
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MADAN RAJ v. RAJASTHAN (Hegde, !. )
6 91
"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 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 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 Committee 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 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' vour Jetter to the father. Since I could
not get money ·from him, I dropped you a Jetter.
I
went to Mst. Radha and asked her to give me =<licine. 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 proceed.
J feel that you are experiencing uneasiness and
trouble for me. I am causing monetary as well as mental worrie~ t<\~ you. I have been feeling this for a considerable tonger period.
Please do not be annoyed.
Jt has become' very difficult for me to stay alone for
the last ~eyeral days.
(1) A.T.R. [1939] P.C. 47.
692
SUPREME COURT REPORTS
[ 19 70] l S.C.R.
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 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.
I will
aJ;,1 write about our marriage.
28-4-63.
Today is Sunday.
I cannot book a 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 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 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 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 canse 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 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.
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MADAN RAJ v. RAJASTHAN (Hegde, /.)
69~
'
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A -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·
B
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 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
Bihai-(2) relied by the High Court is distinguishable,
Therein
C
Gal!u 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 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
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High Court in Umadasi Dasi v. Emperor(") 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.
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~
V.P.S.
Appeal allowed.
(I) [1959] 2 Supp. S.C.R. l.
(i} [1959] S.C.R. ~~I.
(3) I.L.R. 52.Csl. 112.