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2016 DIGILAW 2183 (HP)

Ajay Kumar v. State of H. P.

2016-10-06

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. Accused Ajay Kumar, his father accused Gian Chand, brother accused Madan Lal, sister-in-law accused Sushma Kumari and relative Biasan Devi, were charged for having committed offences, punishable under the provisions of Sections 306 & 498-A, both read with Section 34 of the Indian Penal Code. 2. Vide judgment dated 30.11.2005, passed by Sessions Judge, Hamirpur, Himachal Pradesh, in Sessions Trial No.15 of 2005, titled as State v. Ajay Kumar & others, trial Court convicted only accused Ajay Kumar and sentenced him as under: Offence Sentence 306 IPC Rigorous imprisonment for a period of five years and fine of Rs.1,000/-, and in default thereof to further undergo simple imprisonment for a period of three months. 498-A IPC Rigorous imprisonment for a period of one year and fine of Rs.1,000/-, and in default thereof to further undergo simple imprisonment for a period of three months. The sentences have been ordered to run concurrently. Hence, the present appeal by accused Ajay Kumar. 3. Against the acquittal of accused Gian Chand, Madan Lal, Sushma Kumari and Biasan Devi, in relation to all the charged offences, no appeal stands filed by the State. 4. In short, it is the case of prosecution that accused Ajay Kumar was married to deceased Neena in July 1998. During the subsistence of marriage, deceased gave birth to two children. Though initially relationship between the two was cordial, but however, later accused Ajay Kumar developed illicit relationship with his sister-in-law, i.e. accused Sushma Kumari, which act was unacceptable and objected to by the deceased. Despite the same, not only did the accused perpetuate such acts, but also physically assaulted the deceased. Repeated protests on the part of the deceased only got her physical assaults in return. Information of such act came to be received by her parents, and on 3.3.2004, Suhlan Devi (PW-2), mother of the deceased, visited the matrimonial house to confront the accused. Since accused Ajay Kumar and Gian Chand were not available, she returned assuring her daughter of visiting the following day. But unfortunately, on 4.3.2004, deceased consumed poison. Parents of the deceased were telephonically informed that their daughter was lying unconscious and upon visiting the matrimonial house, and found her dead. 5. Matter came to be investigated by Inspector Ramesh Chand (PW-11), who got conducted the postmortem from Dr. But unfortunately, on 4.3.2004, deceased consumed poison. Parents of the deceased were telephonically informed that their daughter was lying unconscious and upon visiting the matrimonial house, and found her dead. 5. Matter came to be investigated by Inspector Ramesh Chand (PW-11), who got conducted the postmortem from Dr. R.S. Dhatwalia, and on the basis of the statement made by Kishori Lal (PW-1), registered FIR No.74/04, dated 4.3.2004 (Ex.PW-11/C), for commission of offence under Section 306 of the Indian Penal Code, at Police Station, Sadar (Hamirpur), Himachal Pradesh. 6. Finding no iota of evidence against accused Gian Chand, Madan Lal, Sushma Kumari and Biasan Devi, trial Court acquitted them of all the charges. 7. Having heard learned counsel or the parties as also perused the record, one finds that the judgment is not based on correct and complete appreciation of testimonies of the witnesses and the material on record and more particularly the testimonies of the relatives of the deceased. 8. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603 , has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to an accused. 9. That death took place within seven years of marriage is not in dispute. It is equally true, as stands established on record through the testimonies of the witnesses that initially relationship between accused Ajay Kumar and the deceased was cordial. Also, deceased mothered two children through the loins of accused Ajay Kumar. It is also a matter of record that there was no dowry demand made by the accused. It is not that the accused would not take care or look after the deceased or the children. Deceased died on 4.3.2004, as a result of consumption of organo insecticide is also not in dispute. 10. For establishing charge of cruelty and abetment to suicide, prosecution seeks reliance upon testimonies of the relatives of the deceased, i.e. father Kishori Lal (PW-1), mother Suhlan Devi (PW-2), Aunt Kunta Devi (PW-6) and neighbours Bhagi Rath (PW-4), Madan Lal (PW-7) and a local resident Satya Galodha (PW-8). 11. 10. For establishing charge of cruelty and abetment to suicide, prosecution seeks reliance upon testimonies of the relatives of the deceased, i.e. father Kishori Lal (PW-1), mother Suhlan Devi (PW-2), Aunt Kunta Devi (PW-6) and neighbours Bhagi Rath (PW-4), Madan Lal (PW-7) and a local resident Satya Galodha (PW-8). 11. Conjoint reading of the testimonies of these witnesses reveals that the only reason of discord between accused Ajay Kumar and the deceased was the alleged illicit relationship, which the said accused had developed with Sushma Kumari. 12. For establishing that charge, one finds that there is no documentary evidence. No complaint ever came to be lodged, in writing, with anyone. Also, no grievance was ever aired about such fact with anyone, save and except Smt. Satya Galodha, with whose statement I shall deal herein later. 13. Kishori Lal admits that accused Sushma Kumari is daughter of his sister and it has also come on record through the testimony of Suhlan Devi that relations between the two brothers are not good. Kishori Lal further admits that accused Sushma Kumari already stood married ten years prior to the marriage of his daughter and at that time, accused-convict Ajay Kumar was studying in class 8th. It is not the case of the parties that relations between accused Sushma and her husband were strained or that she was of loose character. Significantly, Kishori Lal admits having known the family from before and only thereafter married their daughter, that too after satisfying themselves of all aspects. 14. Kishori Lal and Suhlan Devi want the Court to believe that only after one year of marriage did accused Ajay Kumar develop such intimate relationship with Sushma Kumari, but then except for bald statement so made by these witnesses, there is nothing on record to establish such fact. Their ocular version is vague and unspecific as to date, time and place. Trial Court, while forming this opinion, has been too presumptuous. After all, parties were closely related to each other. Though relations were somewhat strained but not on this account. Significantly, deceased had given birth to two children during the subsistence of such alleged debauchery. She never made grievance to anyone. These witnesses also do not state in whose presence they had counseled accused Ajay Kumar, asking him to improve his conduct. 15. Smt. Satya Galodha (PW-8) is running an NGO. Significantly, deceased had given birth to two children during the subsistence of such alleged debauchery. She never made grievance to anyone. These witnesses also do not state in whose presence they had counseled accused Ajay Kumar, asking him to improve his conduct. 15. Smt. Satya Galodha (PW-8) is running an NGO. According to her, 1½ months prior to the death of the deceased, Suhlan Devi had complained against the accused. Significantly, according to this witness, nature of the complaint being “ it was stated that the accused persons had been treating the daughter of PW.2 with cruelty”. Now, even to this witness, nature of cruelty never came to be disclosed. In any case, her version of Suhlan Devi having contacted her is not corroborated by the said witness. Significantly, even this witness admits that no complaint ever came to be lodged by Suhlan Devi. Also, her version of having narrated the acts of cruelty does not find mention in her previous statement recorded by the police. In fact, this witness admits of having started an agitation for impleading all the members of the family of the accused in the crime, “ as it appeared to be a murder to her”. Also, police had booked her and Suhlan Devi for having committed an offence under Section 341/147 of the Indian Penal Code, pending trial before the appropriate Court. 16. Law with regard to cruelty as defined under Section 498-A of the Indian Penal Code and abetment to commit suicide, so as to fall within the scope of Section 306 of the Indian Penal Code is now well settled. 17. It is a settled position of law that there should be reasonable nexus between cruelty and suicide. It has to be substantiated, established and proved on record. Cruelty by itself would not amount to having committed an offence punishable under Section 498-A IPC. A reasonable nexus has to be established between cruelty and the suicide in order to make good the offence of cruelty under the penal laws. Cruelty has to be of such a gravity as is likely to drive a woman to commit suicide. Suicide alone would not establish that it was occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide. Cruelty has to be of such a gravity as is likely to drive a woman to commit suicide. Suicide alone would not establish that it was occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide. Mere assumption or demand of dowry by itself in given circumstances may not amount to cruelty. The harassment has to be with a definite object i.e. to meet any unlawful demand. Every act of cruelty is not punishable. There must be evidence to show that soon before the death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of natural or accidental death so as to prove that the death had occurred otherwise than in normal circumstances. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 18. In Girdhar Shankar Tawade vs. State of Maharashtra, (2002) 5 SCC 177 , the Apex Court has held that “the basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto. In order to ascribe a meaning to the word 'cruelty' as is expressed by the Legislatures: Whereas explanation (a) involves three specific situations viz, (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the Legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of section 498 (A).” …. …. …. …. …. “Section 498-A is attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman Admittedly, the finding of the trial court as regards the death negated suicide with a positive finding of accidental death. If suicide is left out, then in that event question of applicability of explanation (a) would not arise - neither the second limb to cause injury and danger to life or limb or health would be attracted in any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under section 498 (A) and not de-hors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under section 498-A. Explanation (b) of Section 498-A in no uncertain terms records harassment of the woman and the statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand - there is total absence of any of the requirements of the statute in terms of section 498 (A).” ….. ….. ….. … … “Charges under sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other.” “To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under section 498-A The legislative intent is clear enough to indicate in particular reference to explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of explanation (b) The letters by itself though may depict a reprehensible conduct, would not however, bring home the charge of section 498-A against the accused Acquittal of a charge under section 306, as noticed hereinbefore, though not by itself a ground for acquittal under section 498-A, but some cogent evidence is required to bring home the charge of section 498-A as well, without which the charge cannot be said to be maintained.” 19. In Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618 , the Apex Court has also held that Sections 498-A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under section 498- A and may also, if a course of conduct, amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under section 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. 20. In Sushil Kumar Sharma. Vs. Union of India & Ors., (2005) 6 SCC 281 , the Apex Court has held as under: “10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short "CrPC") and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty. 11. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two sections i.e. Section 306 and Section 498-A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the woman concerned to commit suicide, while under the former provision suicide is abetted and intended. 19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin's weapon. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin's weapon. If the cry of "wolf is made too often as a prank, assistance and protection may not be available when the actual "wolf appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalised a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.” 21. In State of West Bengal Vs. Orilal Jaiswal, (1994) 1 SCC 73 , the Apex Court has held as under: “In a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of S. 498A, I.P.C and S. 113A of Indian Evidence Act. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of S. 498A, I.P.C and S. 113A of Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. The doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.” (Emphasis supplied) 22. In the very same decision the Apex Court further cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. In the very same decision the Apex Court further cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a 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 conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. 23. In Arun Vyas & anr. Vs. Anita Vyas (1999) 4 SCC 690 , the Apex Court has held that the essence of offence in Section 498-A is cruelty. It is a continuing offence and on each occasion on which the wife is subjected to cruelty, she would have a new starting point of limitation. 24. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not. [Mohd. Hoshan A.P. & Anrs. Vs. State of A.P., (2002) 7 SCC 414 ]. 25. In State of A.P. Vs. M. Madhusudhan Rao, (2008) 15 SCC 582 , the Apex Court has held as under: “It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State, is attracted in the instant case, every harassment does not amount to "cruelty" within the meaning of Section 498-A I.P.C. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498-A I.P.C. harassment simpliciter is not "cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to "cruelty" punishable under Section 498-A I.P.C.” 26. In Balram Prasad Agrawal Vs. State of Bihar & Ors., (1997) 9 SCC 338 , the Apex Court has held cruelty to mean torture to be so unbearable in the common course of human conduct that a young lady having commitments to life could take a drastic steps to end her life leaving behind her infant children in the lurch and at the mercy of the accused husband who was found to be in contemplation of remarrying. 27. In Arvind Singh Vs. State of Bihar, (2001) 6 SCC 407 , the Apex Court has held as under:- 28. “The word 'cruelty' in common English acceptation denotes a state of conduct which is painful and distressing to another. The legislative intent in Section 498-A is clear enough to indicate that in the event of there being a state of conduct by the husband to the wife or by any relative of the husband which can be attributed to be painful or distressing. The same would be within the meaning of the section. Torture is a question of fact. There must be a proper effort to prove it.” 29. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The accused must by his acts or omission or by a continued course of conduct create such circumstances that the deceased is left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. [Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618 ]. 30. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. [Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618 ]. 30. The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. [Gananath Patnaik vs. State of Orissa, (2002) 2 SCC 619 ]. (Also: Atmaram v. State of Maharashtra, (2013) 12 SCC 286 ; and Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 ) 31. Prosecution evidence has to be appreciated in the backdrop of the aforesaid legal position. 32. For establishing the act of abetment and cruelty soon before death, again attention is drawn to the testimonies of the relatives of the deceased. 33. Kishori Lal states that on 2.3.2004, deceased telephonically informed that she had been treated with cruelty. Accused had made her life miserable and she had been “belaboured” by the accused. Resultantly, on 3.3.2004, his wife (Suhlan Devi) visited the deceased, who complained against the accused persons. On physical examination, marks of violence, of blue colour, were noticed on the body of the deceased. Accused Ajay Kumar and Gian Chand were not available. Though she waited till late evening, but when they did not come from the market, she returned home only to visit the following day. However, on 4.3.2004 at about 5 am, on telephone, they were informed that deceased was lying motionless in the matrimonial house. Immediately, they rushed to see her daughter, but reaching the matrimonial house found that she had died. At that time, police was also present. 34. Version of Suhlan Devi is also to similar effect. She further states that the deceased wanted to return to her parental house, but only on her advice, stayed at the matrimonial house, only on the assurance that she would visit next day. Now significantly, what was the cause of trouble on 2.3.2004 is nowhere disclosed by any one of the witnesses. Also, Suhlan Devi did not report the incident to anyone. 35. Now significantly, what was the cause of trouble on 2.3.2004 is nowhere disclosed by any one of the witnesses. Also, Suhlan Devi did not report the incident to anyone. 35. We find the version of marks of violence noticed on the body of the deceased to have been materially contradicted from the medical record, for according to Dr. R.S. Dhatwalia, no marks of struggle or injury were found on the body, at the time of conduct of postmortem, which was so done promptly on 4.3.2004 itself. Also, Suhlan Devi admits not to have told anyone, save and except her husband, as to what transpired between her and the deceased on 3.3.2004. 36. Hence, keeping in view the principle of law discussed above, it cannot be said that the prosecution has been able to establish, beyond reasonable doubt, that the accused abetted the deceased to commit suicide or that she had been subjected to cruelty, immediately before her death or prior thereto by anyone. 37. It is a common case of the parties, as is so admitted by Kishori Lal that he does not have a telephone in his house. Then the question is on whose telephone did the deceased call up her mother, narrating the incident of 2.3.2004. Kishori Lal and Suhlan Devi want the Court to believe that the telephone call was received at the house of Madan Lal son of Bhagirath, but then Bhagirath (PW-4) does not state such fact and Madan Lal (PW-7), who is not a son of Bhagrath but Anant Ram, does not even refer to the conversation, which took place on 2.3.2004. He only states that on 4.3.2004, he received a call from village Harned to the effect that daughter of Kishori Lal was serious and lying in a motionless state, which information he passed on to the family of the deceased. Hence, version of Kishori Lal and Suhlan Devi, with regard to the incident of 2.3.2004, is further rendered doubtful. 38. On this issue, one may also notice the version of Bhagirath, according to whom on 3.3.2004 itself, in the evening, Kishori Lal informed him that “without any rhyme and reason accused persons had been treating his daughter Smt. Neena with cruelty”, and requested him to accompany to the house of the accused for settlement of the matrimonial dispute between the parties. But, then Court does not find such version to be inspiring in confidence, for it to have been narrated for the first time in Court, and not to have been disclosed to the police during the course of investigation. This witness is categorical that he never informed the police of having received any telephone call. 39. Kunta Devi (PW-6), Aunt of the deceased, states that deceased had been complaining about illicit relationship and misconduct of the accused, but then such version cannot be said to be inspiring in confidence. Police did not promptly record her statement and also her husband had been regularly visiting the house of the accused for treatment of their live stock. Significantly, it is not her case that the deceased ever made any grievance to this person nor did she ever disclose such fact to her husband, either for verification or improving the relationship between the parties. In fact, she admits it be true that she had “ started an agitation for implicating all the members of the family of accused persons No.1”. 40. This brings the Court to one more relevant fact and that being, in close vicinity, as is evident from the testimony of Ramesh Chand (PW-11), there were independent witnesses, namely Amin Chand, Rattan Chand and Kamlesh, from whom police made inquiries. In fact, they were the best persons to have disclosed the real cause of discord, if any, inter se the parties or the reason for the deceased to have consumed poison. What is significant is the admission of the police official that at no point in time, complainant made any grievance against accused Gian Chand, Madan Lal, Sushma Kumari and Biasan Devi, yet despite that, surprisingly he filed challan against them. 41. How did the trial Court come to the conclusion that the deceased was interested in carrying on the marriage; by the very nature of the act illicit relationship is carried out in isolation and secrecy; accused had “belaboured” the deceased; deceased was subjected to emotional torture, on account of infidelity, is not clear from the record. In fact, such findings are not borne out from the record. 42. It is true that the Court is required to judge the evidence by yardstick of probabilities, its intrinsic worth and the animus of the witnesses, but then mere suspicion alone cannot be a ground for convicting the accused. In fact, such findings are not borne out from the record. 42. It is true that the Court is required to judge the evidence by yardstick of probabilities, its intrinsic worth and the animus of the witnesses, but then mere suspicion alone cannot be a ground for convicting the accused. Prosecution is required to establish the case beyond reasonable doubt and when this Court adopts rational approach in evaluating the evidence, one finds that keeping in view the difference in age, the time when accused Ajay Kumar and Sushma Kumari were married to their respective spouses; Sushma Kumari being a family member of the complainant party; no previous complaint having been filed with anyone; no endeavour made by the parties to have the matter amicably resolved; no marks of violence found on the body of the deceased; and an attempt to falsely implicate all the family members, are reasons sufficient enough, rendering the testimonies of the prosecution witnesses to be extremely doubtful, uninspiring in confidence and the witnesses to be unbelievable. 43. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. 44. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 30.11.2005, passed by Sessions Judge, Hamirpur, Himachal Pradesh, in Sessions Trial No.15 of 2005, titled as State v. Ajay Kumar & others is set aside and the accused is acquitted of the charged offences. He is already on bail in this case. Bail bonds furnished by him are discharged. Amount of fine, if deposited by the accused, be refunded to him accordingly. Appeal stands disposed of, so also pending applications, if any.