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2015 DIGILAW 65 (JK)

State of J and K v. Subash Chander

2015-03-02

B.S.WALIA, MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Per-Yaqoob, J. 1. Instant appeal is directed against the judgment dated 12.06.2014 passed by the Court of Sessions Judge, Rajouri, where-under respondent has been acquitted. The appeal is instituted after the prescribed period of limitation and being against the acquittal, two applications, one for condonation of delay and another for leave to appeal have been filed. 2. We have heard the learned Additional Advocate General so as to ascertain as to whether grant of leave would serve any purpose. Learned AAG while making submission was fair enough to state that there are bleak chances of success of the appeal. 3. The case has been pending before the trial court, trial has been concluded in nine years. To simply entertain an appeal after grant of leave and after condoning the delay would not be proper. 4. On thoughtful consideration, what would emerge from the judgment impugned is that the case of the prosecution rests on circumstantial evidence. Hon’ble Apex Court, has carved out cardinal principles based on which circumstantial evidence to the advantage or disadvantage of the prosecution or the accused is to be relied upon. In the judgment captioned Jagroop Singh v. State of Punjab, AIR 2012 SC 2600 , it has been held that when all links in chain of events are established beyond reasonable doubts and are found to be consistent with quilt of the accused, then conviction can be recorded. Whether the chain of circumstances is complete or not would depend upon the facts of each case as may emerge from the evidence led by the prosecution. 5. Admittedly, in the present case, there is no eye-witness to the occurrence nor any of the witnesses has stated that they have seen the occurrence. 6. Mst. Kuka Devi, mother of the deceased (Prosecution Witness) has stated that after the marriage, accused started quarrelling and mal-treating the deceased and used to tell her that she looks like a witch, therefore, will contract a second marriage. The deceased committed suicide due to unbearable torture. But in the cross-examination, the said witness, mother of the deceased, has made it clear that it is the accused who informed her about the occurrence and it is the accused himself who took the mortal remains of the deceased (Asthiyan) to Haridwar where he performed all necessary religious rites of the deceased. But in the cross-examination, the said witness, mother of the deceased, has made it clear that it is the accused who informed her about the occurrence and it is the accused himself who took the mortal remains of the deceased (Asthiyan) to Haridwar where he performed all necessary religious rites of the deceased. Accused did not make any demand about the expenditure spent over these rites from them. 7. PW-Ved Prakash, brother of the deceased has made it clear that marriage of the deceased with the accused was solemnized about 14/15 years back. The behaviour of the accused and relationship with the deceased was cordial for 3/4 years. Thereafter, accused started taunting her and would quarrel with her. In cross-examination has qualified that accused performed last rites of the deceased. He also performed religious rites of the deceased at Haridwar by taking mortal remains (Asthiyan) of the deceased. 8. PW-Jyoti Devi has stated that accused is her Jaith (Brother-in-law). Deceased was the wife of the accused. On the day of occurrence she alongwith children was at home. After breaking upon the door, she found the deceased lying in burning condition. The deceased had set herself on fire after pouring kerosene-oil. She remained alive for 10/15 minutes, thereafter succumbed to burn injuries. In the cross-examination, she has stated that deceased had become mental prior to 5/6 months of her death. She was treated from sorcerer, by pundits as well in the hospital. The deceased used to pelt stones, and also used to run over the people in insanity. She set herself on fire after sprinkling kerosene-oil over her body because of insanity. Further made clear that the relationships between the accused and deceased were cordial. 9. PW-Rafia Begum, neighbour of the deceased, has stated that the relations between the accused and deceased were cordial. 5/6 months prior to the occurrence, the deceased had become insane. She set herself on fire because of insanity. 10. PW- Mst. Kali, neighbour of the deceased, has stated that relationship of the accused with deceased was cordial. 11. PW-Bansi Lal has stated that relations between accused and deceased were cordial. They never quarreled. Prior to death, deceased was suffering from some mental disease and it is the accused who got her treated at hospital, Jammu after spending lot of money. 12. Kali, neighbour of the deceased, has stated that relationship of the accused with deceased was cordial. 11. PW-Bansi Lal has stated that relations between accused and deceased were cordial. They never quarreled. Prior to death, deceased was suffering from some mental disease and it is the accused who got her treated at hospital, Jammu after spending lot of money. 12. PW-Mulkh Raj has also stated that the relationship between deceased and the accused were cordial up to 5/6 years of the marriage. Thereafter, accused started beating the deceased. 13. PW-Kala Ram, father of the accused has stated that the mental condition of the deceased was not good. Whenever she was mentally distressed, she used to collect straw of the grass. 14. FIR has been recorded on 01.03.2005 i.e. after six months of the occurrence. Delay has not been explained. It was for the IO to explain the delay but he too has not been produced. 15. There are two sets of evidence; one set reveals that relationships between the deceased and the accused were cordial whereas another says after 3/4 years of marriage, accused and deceased were quarrelling. Learned trial court while placing reliance on the judgment reported in 2012 CRI.L.J. 658 (Supreme Court), has observed that quarrel between husband and wife sometimes takes place which is routine affair. In the instant case, quarrel between the two of magnitude has not been established so as to hold that any such quarrel would have prompted the deceased to commit suicide. 16. The observation of the learned trial court gets further strengthened by the fact that the deceased and the accused were married to each other 14 years back and as such have been living for 14 years. When a couple had been living together for 14 years and have children, is it possible that after 14 years of marriage, the deceased would have reached to extreme point of committing suicide? Same is very difficult to be believed. More so because some of the prosecution witnesses such as Rafia Begum, Mst. Kali, PW-Bansi Lal, neighbours, PW-Kalaram, father of the accused, have stated that six months prior to occurrence, deceased had some mental disorder and used to pelt stones and to jump over in insanity. 17. Same is very difficult to be believed. More so because some of the prosecution witnesses such as Rafia Begum, Mst. Kali, PW-Bansi Lal, neighbours, PW-Kalaram, father of the accused, have stated that six months prior to occurrence, deceased had some mental disorder and used to pelt stones and to jump over in insanity. 17. It has also come in the evidence of Kuka Devi, mother of the deceased that it is the accused who performed all rites and had also taken the mortal remains of the deceased to Haridwar where he performed all religious rites. Same is also supported by PW-Ved Prakash, brother of the deceased. 18. Some of the witnesses have stated that relation between deceased and the accused were cordial. Some witnesses have said that the deceased six months prior to the occurrence was suffering from mental disorder. Some of the witnesses have also stated that last rites were performed by the accused. It has also come in evidence that the deceased and the accused remained married for 14 years when on the other hand, mother, brother and one more witness of the deceased have stated that after 4 years of marriage, accused used to beat the deceased, taunt her, nickname her and used to threaten her that he will contract second marriage. Cumulative effect of all such circumstances is not such which tend to show that the accused was responsible for the death of the deceased. 19. Deposition of the mother, brother and other two witnesses that the accused was maltreating the deceased and was nicknaming her which forced her to commit suicide is not acceptable in absence of any corroboration. It is true that they are the persons who would know and to whom deceased would tell as to how she is feeling in the laws house with her husband. After 14 years long association of deceased with accused and no report lodged for 14 years against any ill-treatment belies the theory of ill-treatment. The fact of the deceased having been suffering from some mental disorder, six months prior to occurrence also belies the theory of the said four witnesses i.e. father, mother and brother of the deceased. 20. After 14 years long association of deceased with accused and no report lodged for 14 years against any ill-treatment belies the theory of ill-treatment. The fact of the deceased having been suffering from some mental disorder, six months prior to occurrence also belies the theory of the said four witnesses i.e. father, mother and brother of the deceased. 20. If the husband would have been maltreating her, then parents of the deceased or brother of the deceased would have lodged any report and would not have permitted the accused to perform the rites and then to carry the mortal remains of the deceased to Haridwar and thereto perform the religious rites. Under such circumstances, theory of maltreatment becomes doubtful. 21. Delay in lodging FIR is also an important circumstance which tends to show that the case has been registered against the accused only after consultations and deliberations. Six months long delay in registering the case and in absence of any explanation has adverse effect on the case of the prosecution. Delay is not always fatal but delay of six months when not explained coupled with the fact of inconsistent depositions of the witnesses and the fact that no one had seen the actual occurrence with his own eyes, by no standard would warrant recording of conviction. Learned trial court has rightly observed that the case is full of doubts, benefit of which shall go to the accused. 22. On the strength of inconsistent depositions of the witnesses coupled with the fact of six months delay in lodging the report and registering the case and thereafter no witness to the actual occurrence, a fair submission as was made at the outset by the learned AAG is supported. 23. In the upshot what appears is that there is no possibility of success of the appeal, to grant leave to file appeal and to condone the delay, shall be an idle formality when the result of the appeal is obviously known to be a failure. Accordingly, applications seeking leave and condonation of delay are dismissed, as a result whereof, criminal appeal shall stand dismissed. 22. Copy of judgment be certified to the trial court for information.