The State Of Rajasthan, Through P.p vs Mr. Vishwas Saini

: Mr. M.S. Raghav with Mr. Vishwas Saini For Respondent(s) : Mr. Devi Singh, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 23/07/2025 Order

1. The instant application for suspension of sentence is preferred by appellant - Mukesh Nitharwal S/o Late Shri Sujaram Nitharwal in pending appeal filed aggrieved from order of conviction and sentence dated 09.04.2025 in Sessions Case No.100/2023 passed by learned Sessions Judge (Women Atrocities Cases) Jaipur Metro-II whereby appellant was convicted for offence under Section 306 IPC and sentenced accordingly.

2. Learned counsel for the appellant while relying upon grounds of appeal submitted that appellant is in custody for last 2 years and maximum sentence awarded under Section 306 IPC is 10 [2025:RJ-JP:27904] (2 of 5) [SOSA-1198/2025] years. He further submitted that initially this appellant was charged for offence under Sections 302 and 304 IPC but there is no evidence to show that appellant has committed murder of deceased and demanded dowry from parents of deceased. He also submitted that the charge under Section 306 IPC is not framed by the trial court and there is no evidence to prove that appellant has ever abated the suicide by deceased. He further referred the evidence and submitted that even at the time of incident, this appellant was not at home. He further drawn attention of the court about proximity of time and submitted that without ascertaining the truth, the trial court has drawn a conclusion that the appellant is responsible for abatement which led to committal of suicide by deceased. He further submitted that the trial court has ignored the material contradictions and discrepancies in the statement of witnesses particularly the relatives of deceased. He further referred forensic examination of crime scene and submitted that the door of room was broken to enter into the room which clearly shows that the deceased has locked the door from inside before committing suicide and there is no scope or chance to enter in the room from anywhere.

3. Learned counsel for appellant has further referred judgment in case of Rakesh Kumar Vs. State of Haryana (2009) 11 SCC 81 and Naresh Kumar Versus State 2024 INSC 149 and submitted that it is necessary for the prosecution to prove that due to cruelty or harassment on part of husband in ordinary circumstance forced wife to commit suicide, and she has left with no alternative. He further referred Section 107 and 306 IPC and submitted that abetment involves mental pressure, instigation or [2025:RJ-JP:27904] (3 of 5) [SOSA-1198/2025] intentional adding the person in doing a thing but herein there is no evidence to show that appellant has ever abeted the crime and created such circumstances which led to suicide by deceased. He further referred the judgment in case of Patel Babu Bhai Manohar Das and Ors. Vs. State of Gujarat 2025 INSC 322 and submitted that to convict a person under Section 306 IPC, it is necessary that the prosecution is able to establish proximate act of incitement or intentional aid by accused which directly led to suicide by victim. He further submitted that in the instant case, prosecution has failed to establish direct or proximate act of appellant, sufficient to convict appellant under Section 306 IPC. At last, he submitted that from 2021, no incident of cruelty was referred in evidence and deceased was happily living with appellant.

4. Aforesaid contentions were opposed by learned Public Prosecutor and he submitted that in the instant case, two persons (mother and daughter) have committed suicide and there is enough evidence against appellant. He submitted custody certificate along with report received from concerned police station and same are taken on record.

5. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record.

6. On 05.07.2023, PW-1 Kanaram has lodged a report Ex.P-1 about cruelty and death of his daughter Sunita by her husband, whose marriage solemnized on 18.04.2018, and FIR No. 350/2023 was registered under Sections 302 and 304 IPC at P.S. Kalawar, Dist. Jaipur. After investigation, police has filed charge-sheet against appellant under Section 304B IPC. The trial court has [2025:RJ-JP:27904] (4 of 5) [SOSA-1198/2025] framed charge under Section 304B IPC alternatively Section 302 IPC. The prosecution has examined 16 witnesses and exhibited 32 documents. The accused was examined under Section 313 Cr.P.C. but he has not submitted any defence evidence though exhibited 15 documents.

7. The evidence suggest that all relatives of deceased have deposed against the appellant and they have specifically stated that appellant has committed cruelty to deceased Sunita. The evidence also suggest that deceased was blessed with two daughters, first born on 14.02.2019 and second born on

10.03.2020. One of the daughter has also expired in the incident and her post-mortem report is exhibited as Ex.P-29. The post- mortem report of deceased Sunita was exhibited as Ex.P-30 and the reasons of death clearly indicated asphyxia due to hanging. Learned counsel for appellant has submitted that since 2021, deceased was living with appellant happily and no incident of cruelty was ever reported during this period. We have considered Ex.P-6 to Ex.P-9, and these documents relating to Mahila Suraksha and Salah Kendra indicated that deceased has made complaint about ill treatment by her husband. It is not possible for us to express any opinion on merits of the case.

8. In case of Rakesh Kumar Vs. State (supra), Naresh Versus State (supra) and Patel Babu Bhai Manohar Das and Ors. Vs. State of Gujarat (supra) Hon’ble Supreme Court has held that mere allegation of harassment without a proximate act to compel victim to commit suicide are not sufficient to sustain conviction for abetment under Section 306 IPC. Hon’ble Supreme Court has held that there must be direct or indirect act of [2025:RJ-JP:27904] (5 of 5) [SOSA-1198/2025] incitement and same is proximate to the suicide and common marital discord cannot amount to abetment to suicide.

9. As regard to proximate or direct incitement or intention and mens rea is concerned, the trial court after considering the evidence of prosecution has convicted appellant under Section 306 IPC though charge is not framed under Section 306 IPC. Section 107 IPC provides for abetment which includes instigating, conspirating or intentionally aiding commission of offence but it is also equally true that in absence of any cogent evidence or harassment or cruelty intended and sufficient to judge the intention of any accused, any person can be convicted under Section 306 IPC.

10. Herein this case, looking to entire material on record and evidence, I am of considered view that this is not a fit case to extend benefit of bail to the appellant. The appellant has undergone more than 1 year 11 months and 19 days against sentence of 10 years.

11. Accordingly, SOS application preferred by appellant Mukesh Nitharwal S/o Late Shri Sujaram Nitharwal is hereby dismissed.

12. List appeal for hearing in month of November, 2025. PREETI VALECHA /94 (ASHOK KUMAR JAIN),J