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2019 DIGILAW 108 (JK)

State of Jammu and Kashmir v. Sheelo Devi

2019-03-01

SANJAY KUMAR GUPTA

body2019
JUDGMENT : 1. This criminal acquittal appeal has been filed by the appellant-State against the judgment dated 21.10.2016 passed by the learned Additional Sessions Judge, Jammu in case titled State vs. Puran Chand and another for offences under Sections 498-A/306 RPC in FIR No. 250/2013, registered with Police Station, Satwari, Jammu. 2. The brief facts of the case are that on 25.12.2012 Police of Police Station, Satwari received information through reliable sources that one Mst. Bandana Devi tried to immolate herself and had been admitted in the Hospital. On this, an FIR No.250/2013 for commission of offences under Section 309 RPC was registered. During the investigation, Investigating Officer got the statement of the injured recorded and that of material prosecution witnesses under Section 161 Cr.P.C were also recorded. The Investigating agency prepared the site plan, seized plastic bottle from the place of occurrence and after resealing sent the same for chemical analysis to FSL Jammu. On 15.01.2013, the victim succumbed to the burn injuries sustained by her and as such offences under Section 498- A/306 RPC were introduced by the Investigating Officer. After completion of the investigation, challan was produced before the competent Court of law against the two accused i.e., husband-Puran Chand and mother-in-law Sheelo Devi of the deceased-Mst. Bandana Devi. On 15.05.2013, accused were charge sheeted by the court below for offences under Sections 498-A/306 RPC, whereby they pleaded innocence and claimed trial. Prosecution was directed to lead evidence. 3. From the perusal of the challan, it reveals that prosecution has cited as many as 17 witnesses but during the trial, prosecution recorded only 14 witnesses. Investigating Officer and doctor in the case have not been examined. It is worthwhile to mention here that during the course of investigation, accused -Puran Chand died. 4. Court below after conclusion of trial, acquitted the accused shello Devi -respondent herein only on the ground of insufficiency of evidence. 5. Law with regard to acquittal appeal has been enumerated recently in Mohd. Akhtar @ Kari & Ors. Vs. State of Bihar & ANR., reported in 2018 0 Supreme (SC) 1211 decided on 04.12.2018, wherein it has been held as under;- "8. The question that falls for determination in this case is whether the High Court was right in setting aside the acquittal of the Appellants and convicting them for an offence of murder. Vs. State of Bihar & ANR., reported in 2018 0 Supreme (SC) 1211 decided on 04.12.2018, wherein it has been held as under;- "8. The question that falls for determination in this case is whether the High Court was right in setting aside the acquittal of the Appellants and convicting them for an offence of murder. While holding that there is no limitation placed on the power to review the evidence in an appeal against acquittal, Lord Russell in Sheo Swarup v. King-Emperor (1934) 36 BOM LR 1185 held: "9 the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." 9. The approach of the High Court in an appeal against acquittals was explained by this Court in Surajpal Singh & Ors. v. The State (1952) 3 SCR 193 as follows: "It is well-established that in an appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." 10. This Court in Muralidhar @ Gidda & Anr. This Court in Muralidhar @ Gidda & Anr. v. State of Karnataka (2014) 5 SCC 730 referred to several earlier judgments dealing with appeals against acquittals and observed that the appellate court must bear in mind the following : "12 (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favor by the trial court; (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal; (iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court." 11. It is relevant to refer to another judgment of this Court in Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450 in which the principles to be followed by the appellate courts to overrule or otherwise disturb the trial court's acquittal were crystallised as under: "70 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused." 12. Interference with the judgment of the trial court in this case by the High Court is on a re-appreciation of evidence which is undoubtedly permissible. Though the High Court was aware of the well-settled principles of law in matters relating to appeals against acquittals, it failed to apply the same in their proper perspective. Interference with an order of acquittal is not permissible on the ground that a different view is possible. If the acquittal is justified on a probable view taken by the trial court, it should not be interfered with. The reasons given by the trial court for acquittal mainly pertain to the delay in lodging the FIR, untrustworthy eye witnesses, improbability of identification of the accused, non- examination of independent witnesses, previous enmity between the accused and the witnesses, non-production of important prosecution witnesses and improper investigation of the case. On a thorough examination of the entire evidence on record and the judgment of the trial court, we are of the considered view that the judgment of acquittal by the trial court is justified which ought not to have been interfered with by the High Court. On a thorough examination of the entire evidence on record and the judgment of the trial court, we are of the considered view that the judgment of acquittal by the trial court is justified which ought not to have been interfered with by the High Court. The High Court could not have reversed a judgment of acquittal merely because another view is possible. The High Court brushed aside the findings recorded by the trial court relating to certain omissions as being minor and held the omissions should not have been the basis on which the Appellants have been acquitted. The High Court ignored the fact that the presumption of innocence in favour of the Appellants is further strengthened by an order of acquittal. No perversity in the judgment of the trial court in acquitting the Appellants has been demonstrated by the High Court for interfering with the judgment of the trial court. 13. For the aforementioned reasons, the Appeals are allowed. The judgment of the High Court is set aside and the judgment of the trial court is restored. The Appellant No.3 was released on bail on 30.01.2017. His bail bonds are discharged." 6. In criminal cases degree of proof is higher and charge framed must be proved by prosecution beyond reasonable doubts, because personal liberty of person is involved. 7. In present case, accused has been tried u/s 306/498-A RPC for abetment of suicide and cruelty. Section 306 RPC reads as under: - "306. Abetment of suicide: - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 8. Abetment has been defined under section 107 of RPC. Section 107 RPC reads as under:- "107.Abetment of a thing; A person abets the doing a thing, who- Firstly- Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Internationally aids, by any act or illegal omission, the doing of that thing." 9. From conjoint reading of above two sections, it comes that, accused should have done some active suggestion or support to the commission of offence. The word instigates literally means to urge forward, provoke, incite or encourage to do an act and a person is said to instigate another, when he actively suggest or stimulate him to act by any means. Legality of Section 306 RPC is dependent upon the act of abetment for commission of the suicide. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. In case of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to commission of suicide.. 10. In cases like, abetment to suicide founded on the grounds of demand of dowry, cruelty or mental torture, evidence of systematic demand of dowry, cruelty or mental torture or physical assault are required to be proved by prosecution. 11. Section 114-C of Evidence Act is also relevant in abetment of suicide by a married woman. Section 114-C reads as under: - "114-C. Presumption as to abetment of suicide by a married woman; When the question is whether the commission of suicide by a woman has been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation - For the purpose of this section "cruelty" shall have same meaning as in section 498-A of the State Ranbir Penal Code, Samvat 1989)." 12. As per wording in presumptive provision of Section 114-C of Evidence Act, one of essential ingredients is that woman must have been soon before her death subjected to cruelty or harassment, which forced her to commit suicide. 13. From the perusal of the evidence recorded, it appears that except parents of deceased, all other witnesses have stated nothing substantial against the accused Sheelo Devi. 14. 13. From the perusal of the evidence recorded, it appears that except parents of deceased, all other witnesses have stated nothing substantial against the accused Sheelo Devi. 14. PW-1 Faquir Chand has stated that in the winters of 2013 he was sleeping in his house, at about 9.30 pm he heard noise and he went out and saw deceased in flames in the house of Om Parkash. A boy who lives in the same house threw water on the deceased and accused No.1 (dead) put a blanket on the deceased and thereafter police came on spot and took the accused No. 1(dead) and deceased to the hospital. In the cross-examination he has also stated that accused no. 1 (dead) was arrested after four months of the occurrence and he had never heard about any quarrel between accused No.1 and the deceased. PW-2 Om Parkash has stated that he resides 4/5 houses away from the house of accused. On 25.12.2012 at about 9.00 pm he was inside his house, he heard noise, he came out and saw deceased Bandana in flames. People came there and someone poured water and some of them put blanket on the deceased inside the house from where she was taken to hospital. PW-3 Yash Paul has deposed that 1 years ago when he was sitting at his residence situated at Chatha mill, he heard noise which was coming from the house of Om Parkash that Bandana Devi had received burn injuries. He went to the place of occurrence. Police came on spot and they shifted Bandana Devi to hospital where she died after 21/22 days. He has admitted the contents of seizure memo of clothes and a bottle and identified his signatures on it, which is marked as EXT.P-3. PW-4 Danny Bali has deposed that on 26.12.2012 he alongwith I.O. had gone to the house of accused Puran Chand at Chatha from where I.O. seized one red colored cloth and a bottle containing 50 grams oil and prepared seizure memo. He is witness to seizure memo EXTP-3. 15. PW-5 Ms. Nisha Devi has deposed that about one year ago in the night she heard noise, which came from the house of Om Parkash. People made hue and cry that Bandana Devi had received burn injuries. She does not know how Bandana Devi received burn injuries. She also went on spot and saw Bandana Devi in flames. 15. PW-5 Ms. Nisha Devi has deposed that about one year ago in the night she heard noise, which came from the house of Om Parkash. People made hue and cry that Bandana Devi had received burn injuries. She does not know how Bandana Devi received burn injuries. She also went on spot and saw Bandana Devi in flames. PW-6 Sampuran Kumar on chief examination deposed that accused is his mother. Accused late Puran Chand was his younger brother. Name of the deceased was Bandana Devi. He is putting up in a separate accommodation 2/3 houses away from the house of accused. Deceased died due to burn injuries. He has no knowledge about the occurrence. He is witness to seizure memos of dead body and identification EXT P-11 & EXT. P8 respectively and identifies his signatures. PW-9 Veena Devi has deposed that three years ago on 25th December she was told by somebody that her sister-in-law Bandana Devi had received burn injuries and she was asked to go to the hospital. She went to Bakshi Nagar hospital where she found her sister-in-law in injured condition. Husband of deceased Puran Chand was also present there. The deceased died after 25/26 days of the occurrence. She has no knowledge as to how deceased received burn injuries. PW-10 Sunil Kumar has deposed that 3/4 years ago on 25th December he received phone call that his sister Bandhna is sick. When he reached Bakshi Nagar hospital he saw his sister had received burn injuries. His brother-in-law used to consume alcohol. His sister used to dissuade him which led to quarrel between them. His brother-in-law after pouring kerosene set her sister on fire. PW- 11 Bans Ram has deposed that two years ago at about 8.00 pm, he was sitting in the house of his neighbour. One child from the locality informed that Bandhu had received burn injuries. He went to the spot. People had assembled on spot. Son of the deceased, who was 1 years old was saying that accused Puran Chand had set the deceased on fire with a paper. Bandhu was half burnt. They shifted deceased to the hospital. Puran Chand and police personnel also accompanied them. Bandhu died in the hospital after 22 days. His wife Darshna Devi also accompanied them to the hospital. Dead body of the deceased was handed over to the legal heirs of the deceased. Bandhu was half burnt. They shifted deceased to the hospital. Puran Chand and police personnel also accompanied them. Bandhu died in the hospital after 22 days. His wife Darshna Devi also accompanied them to the hospital. Dead body of the deceased was handed over to the legal heirs of the deceased. He is witness to seizure memo EXT.P-11, EXT P-8/1 and EXT.P8 (identification memo). Deceased and accused used to quarrel. He had heard that accused used to call the deceased a "Mahashi (a low caste). He got accused and the deceased engaged. Deceased was also beaten when she was pregnant. She was taken to hospital as well as in Police Post Chatha. She had no knowledge that why she was beaten then. He was not present on the spot. His statement was not recorded by the police. However, police recorded his statement regarding above memos. PW-14 Sunny Kumar has deposed that accused Puran Chand (now dead) was known to him. Puran Chand was married and was having one child. He had heard that deceased had committed suicide by setting herself ablaze. However, he had not seen the occurrence. He has no knowledge as to how and why deceased committed suicide. PW-13 Darshna Devi who is independent witness has deposed that about 1 years ago she was cooking in her house at 7.00/8.00 pm. One child came and told that Bandhu had received burn injuries. She went to the house of deceased where police had reached. Many people had assembled there. When she reached the spot, the deceased was already burnt, and was saying "BACHAO BACHAO". Husband of the deceased, namely, Puran Chand was asking the people to go outside. The police was also asking people to go outside and told accused Puran Chand to ask some women to change burnt clothes of the deceased. They asked husband of the deceased to shift the deceased to hospital and accused Puran Chand took the deceased in vehicle to hospital. She accompanied the deceased to hospital. Doctor asked accused Puran Chand, husband of the deceased to bring medicines from the market but Puran Chand did not go to market as he was under the influence of liquor. Somebody brought medicines from the market and treatment of the deceased was started. After 15/20 days Bandhu died in the hospital. The families of deceased and accused used to quarrel when deceased was pregnant. Somebody brought medicines from the market and treatment of the deceased was started. After 15/20 days Bandhu died in the hospital. The families of deceased and accused used to quarrel when deceased was pregnant. At that time husband of the deceased, namely, Puran Chand (dead), accused Sheelo Devi, brother-in-law of the deceased (Jeth) and other family members gave beating to deceased. One day deceased came weeping in her house and she was taken to hospital by her husband Puran Chand. That day she was not beaten by accused Puran Chand, but she had been beaten by her in-laws. Accused Puran Chand would not drink when deceased was engaged with him. He started consuming alcohol when altercations/quarrels started between them, Accused Puran Chand (dead) had married the deceased without dowry. However, after marriage her mother-in- law used to taunt deceased Bandhu regarding dowry. May be this was the reason behind the quarrels between the deceased and her in- laws. Compromise was effected between accused and deceased by the panchayat and a wall was raised in the house, thereafter accused Puran Chand & deceased started living separately from accused Sheelo Devi and other family members of the in-laws of the deceased. However, Sheelo Dovi would quarrel with the deceased while sitting on the roof. Police got her statement recorded in the Court. At this statement of the witness was deferred at the request of ld.APP, because statement under section 164-A Cr.P.C was not part of the challan. The witness was never produced afterwards and has not been subject to cross examination). The incriminating facts spoken by this witness cannot be relied as this witness was not cross examined. The law with regard to appreciation of evidence is quite clear that without cross examination the examination in chief cannot be read. 16. PW-7 Mst. Raj Kumari, the mother of deceased, has deposed that accused Puran Chand is her son-in-law and the other accused is mother of accused Puran Chand. Bandhana was her daughter. In the eleventh month of the calendar year deceased was married with accused and the couple had a child, who is under her supervision. Deceased and accused had cordial relations for two years. At the time of marriage accused no.1 used to live with accused no.2 near Chatha mill Satwari. Bandhana was her daughter. In the eleventh month of the calendar year deceased was married with accused and the couple had a child, who is under her supervision. Deceased and accused had cordial relations for two years. At the time of marriage accused no.1 used to live with accused no.2 near Chatha mill Satwari. Accused no.2, his other son and some family members beat the deceased in the year 2009 when she was carrying pregnancy of seven months. However, accused no.1 had not beaten the deceased. Thereafter, a panchayat was conducted and accused no.1 and deceased started living separately. Accused no.2 used to quarrel with deceased and taunt for dowry. However, accused No.1 said that he had married of his own with the deceased without dowry. Thereafter, accused No.1 started consuming liquor and used to quarrel with deceased. After the quarrel accused no. 1 said that he will leave the company of deceased. In the year 2009 accused no.1 and deceased came to her residence where she asked accused no.1 not to consume liquor. Thereafter, quarrel started between deceased and his mother-in-law. Accused no.1 again started consuming liquor and on being asked by deceased not to consume liquor accused no.1 said to deceased go and die and he was fed up. On this accused no. 1 or deceased herself poured kerosene and she was set ablaze with a paper. At about 8.45 pm she received phone call from Darshna madam that deceased was unwell and asked her to immediately rush to the Bakshi Nagar hospital. Her husband and son went to hospital in an auto where they saw deceased in burnt condition. Deceased said that her mother-in-law had quarreled with her and other family members had harassed her. She was earlier harassed by her mother-in-law but she never disclosed it to anyone. On the day of occurrence accused no.2 said to the deceased that she was black colored, mahashi (a lower caste) and had not brought ear rings. Deceased had poured kerosene on her after being fed up from her husband and mother-in-law. Deceased thought that her husband could save her but her husband lit the fire with a piece of paper. Deceased remained admitted in the hospital for 22 days and accused no.1 spent money on her treatment. Accused no. 2 had not visited the hospital. When deceased died, accused no.1 fled from the hospital. Deceased thought that her husband could save her but her husband lit the fire with a piece of paper. Deceased remained admitted in the hospital for 22 days and accused no.1 spent money on her treatment. Accused no. 2 had not visited the hospital. When deceased died, accused no.1 fled from the hospital. Dead body was handed to her. Deceased's son is in her custody as there is no one to look after her son. On 29th she made statement to police. On cross examination she deposed that accused persons never demanded dowry from her. However, his daughter (the deceased) used to say that his mother-in-law demanded dowry. She has admitted that accused used to visit each others houses. However, there is common veranda but separate Kitchens. She has denied that she made statement to the police that mother-in-law of the deceased used to torture her. She is not an eyewitness. She has admitted that she did not disclose to police that the deceased had told her as to who set her on fire. Accused stayed day and night during the period deceased remain admitted in the hospital. Accused no.1 had also received burn injuries on his hands. On the day of occurrence deceased told her that she herself doused kerosene on her. When accused no.1 fled from the hospital, she thought that accused no.1might have set the deceased on fire. When she enquired from accused no.1about the occurrence, he told that he had no knowledge as he was under the influence of liquor. Deceased became unconscious on the second day of occurrence. Deceased used to call accused no.1 but he never came to her. PW-8 Roshan Lal has deposed that accused no.1 is his son-in-law and accused no.2 is the mother of accused no.1. His daughter was married to the accused in the year 2008 and out of the wedlock a male baby was born, who is presently under his care. His daughter used to dissuade accused from consuming alcohol. Accused no.2 used to quarrel with his daughter, as such accused no.1 separated from accused no.2. The relations between the deceased and accused remained cordial for 2/3years.Thereafter, accused no.1 again started consuming alcohol and would torture the deceased. On 25.12.2012 accused no.1after consuming liquor quarreled with deceased, and deceased had said to accused no. 1 that should he not quit consuming alcohol, she would set herself on fire. The relations between the deceased and accused remained cordial for 2/3years.Thereafter, accused no.1 again started consuming alcohol and would torture the deceased. On 25.12.2012 accused no.1after consuming liquor quarreled with deceased, and deceased had said to accused no. 1 that should he not quit consuming alcohol, she would set herself on fire. At this accused no.1 said go and set yourself on fire. On this deceased doused Kerosene upon herself and set her ablaze. Accused did not save the deceased. Thereafter, deceased while in flames went to the house of someone, who put off the flames and she was brought back to her house from where she was taken to hospital. Police came at their residence. Thereafter, sister-in-law of accused no.1, namely, Darshna Devi conveyed him that deceased had sustained injury and asked him to come to hospital. He, his wife and son went to the hospital where they saw that their daughter had received burn injuries. Deceased was not in a position to talk and died on 15.01.2013. He is also witness to identification memo of the dead body marked as EXT P/8 and receipt memo marked EXT P 8/1. On cross examination he has deposed that at the time of occurrence accused no.2 was living in separate accommodation from accused no.1.Accused no. 1 remained in hospital during the treatment of the deceased and during admission of deceased in the hospital he and accused used to share the meals. Accused no.2 is living separately from accused no.1 for the last three years. Accused no.2 was not present, at home when the occurrence took place. 17. From bare perusal of the relevant parts of statements of these witnesses, it is evident that they have not stated any substantial evidence against Sheelo Devi from which it can be inferred that respondent urged any words which provoked, incited or encouraged the deceased to commit suicide on relevant day and time. There is nothing from which it can be inferred that she abetted commission of offence under section 306 RPC. There is nothing from which it can be inferred that she abetted commission of offence under section 306 RPC. Even court below has held that after going through the statements of PWs Raj Kumari and Roshan Lal, it is evident that these witness have categorically stated in cross examination that accused never demanded dowry; and late accused Puran chand has solemnized marriage without dowry; court below has also held that there may be various instances of family discord and property dispute amongst family and normal circumstances of wear and tear, which does not constitute abetment as defined under section 107 RPC. These findings of court below are not perverse in nature; the court below has relied upon various judgments of apex court, which I have also gone through carefully; these are quite applicable in present case. 18. The husband of deceased (accused no.1 in main challan) has already died and there is also evidence that respondent-the mother in law of deceased (respondent herein) was residing separately from her son and deceased. PW-8 Roshan Lal on cross examination has deposed that at the time of occurrence accused no.2 was living in separate accommodation from accused no.1 for the last three years. Accused no.2 was not present, at home when the occurrence took place. 19. In view of above, I am of the considered onion that, there is no infirmity of law and facts in the judgment impugned. This appeal is dismissed.