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2021 DIGILAW 97 (JK)

State of J&K v. Mohd. Mushtak

2021-03-19

TASHI RABSTAN, VINOD CHATTERJI KOUL

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JUDGMENT : Tashi Rabstan, J. 1. The present criminal acquittal appeal arises out of the impugned judgment dated 20.02.2013 passed by the learned Sessions Judge, Udhampur in File No. 23/Sessions whereby the learned Judge has acquitted the respondents of the charges framed under Sections 306,498-A RPC. 2. The facts briefly stated are as under :- The respondent No. 1 is the son of respondent No. 2. Deceased Sakina Begum was married to respondent No. 1 since 2005. On 01.04.2007, information was conveyed telephonically by PW-1 to Police Station, Majalta regarding the missing of deceased person from her home since 31.03.2007. On 01.04.2007, her body was found hanging from a tree around 09:30 am and subsequently, the inquest proceedings were initiated under Section 174 Cr.P.C. to ascertain the cause of death. The postmortem report revealed that the deceased has died due to asphyxia because of hanging. The couple had no child. For about one year after the marriage their relation remained cordial, whereafter it became strained when the deceased got suspicious about the illicit relations of her husband (respondent No. 1, herein/accused No. 1) with his brother's wife. They were counseled by the relatives and elders to settle their disputes but nothing fruitful came out. The deceased being fed up with the attitude of her husband and mother-in-law committed suicide on 31.07.2007. When these facts came to the fore, an FIR No. 21/2007 under Section 306/498-A RPC was registered in Police Station, Majalta. 3. After completion of the investigation, challan was presented. The accused persons pleaded not guilty and claimed to be tried. To drive home the charge, the prosecution examined 14 witnesses and the accused have also examined one witness in their defence. They also denied their involvement in the incident, in their statement under Section 342 Cr.P.C. The Trial Court after considering the evidence, acquitted both the accused which is impugned this appeal. 4. The ground taken by the appellant in the memo of appeal is that the learned Trial Court has not only failed to appreciate the entire evidence including the statements of prosecution witnesses in its true and proper perspective but has also not considered the record as well as the facts of the case in their totality. 5. We have heard learned counsel for the appellant and carefully perused the record. 6. 5. We have heard learned counsel for the appellant and carefully perused the record. 6. On going through the prosecution evidence, it emerges that only few witnesses have, to some extent, supported the prosecution case and rest of the witnesses have given a very hazy picture of the alleged incident. Some witnesses have partly supported the prosecution version but that too is a hearsay version. PW Manzoor who is the brother of the deceased is also the complainant, who telephonically informed the police about the incident. On going through his evidence, we find that he has no personal knowledge about the illicit relations between the accused No. 1 and his brother's wife. Also, the accused No. 1 never ill-treated the deceased in his presence. The prosecution case is based on two counts. First, the accused No. 1 was having illicit relation with his brother's wife and the second is the accused persons were ill-treating the deceased, but PW Manzoor being a star witness does not have any personal knowledge about both these aspects, nor PW Syeda Bibi who is the sister of the deceased have any personal knowledge about the illicit affairs of the accused No. 1, but she had heard it from the deceased. This being the hearsay evidence cannot be taken conclusive to form an opinion of guilt against the accused. 7. PW Sadiq is also the brother of the deceased. He too has given an unclear statement. In his examination in chief he stated that the accused No. 1 was having a illicit relationship with his brother's wife which became the reason of strained matrimonial relationship and the deceased for one year after the marriage they lived happily but thereafter they started quarreling because the accused used to treat her with cruelty and assault her physically. A Panchayat was also held in this regard and it was decided that the accused No. 1 and the deceased would live separately from the rest of the family, but after 1½ month the deceased committed suicide. In his cross-examination, he stated that he never saw the accused assaulting the deceased but the entire story was narrated to her by the deceased. This being also the hearsay evidence, cannot be taken as a credible evidence to bring home the guilt of the accused. In his cross-examination, he stated that he never saw the accused assaulting the deceased but the entire story was narrated to her by the deceased. This being also the hearsay evidence, cannot be taken as a credible evidence to bring home the guilt of the accused. Also, his silence for one month after the occurrence regarding indifferent attitude of the accused towards the deceased creates suspicion as it is only after one month he deposed before the police. This disputes the truthfulness of his version. 8. There are so many prosecution witnesses who have not stated a clear version and/or have otherwise supported the defence. A whole new story emerged from the evidence of PW Krishan Singh, who as a Panch of the Village tried to settle the dispute between the parties and it was found by the Panchayat that the accused was not at fault. In fact, the cause of wedge between them was that the deceased wanted the accused to shift the residence to Samba so that she could live near her parents but the accused No. 1 was reluctant in doing so which led the deceased to frustration and ultimately she committed suicide. 9. Another story came out from the evidence of PW Mohd. Bashir. He stated that the accused No. 1 wanted to attend a marriage ceremony but the deceased did not allow him which led to quarrel between them. On going through the evidence of the defence witness it emerges that DW Swar Din, with whose wife it was alleged that the accused was having extra marital relationship, has refuted the allegation that the accused No. 1 was having any extra marital intimacy with his wife. 10. It is apparent from the above discussion that this case has too many versions presented by the prosecution witnesses. Only the close relatives of the deceased have supported the prosecution version to some extent but their conjoint reading reveals that they have narrated mostly the hearsay version and none among them have personal knowledge of the fact. It would be not safe to rely on their testimonies to shift the guilt on the respondents. Only the close relatives of the deceased have supported the prosecution version to some extent but their conjoint reading reveals that they have narrated mostly the hearsay version and none among them have personal knowledge of the fact. It would be not safe to rely on their testimonies to shift the guilt on the respondents. One more important aspect of this case relates to the testimony of the defence witness DW Swar Din because it is his wife with whom the accused No. 1 was alleged to have the illicit affairs but DW Swar Din has specifically denied the allegation regarding the extra marital intimacy of his wife with anyone and also there is a corroboration by this defence witness, of the fact that the accused No. 1 was not willing to live at a place near the parental home of the deceased as presented by the prosecution witnesses. 11. In the circumstances, as noted earlier, the evidence is fraught with lot of inconsistencies, contradictions and omissions. 12. On conjoint reading of both the sections under which the accused are charged i.e. 306, 498A RPC, it emerges 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 doing 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. In cases like, abetment to suicide founded on the grounds of demand of dowry, cruelty or mental torture, the evidence of systematic demand of dowry, cruelty or mental torture or physical assault are required to be proved by prosecution which it has miserably failed to prove in the present case. 13. Even if a person would commit suicide because of the torments of an accused, the accused cannot be said to have abetted the commission of suicide by the deceased, unless the accused would intend, while causing torments to the victim/deceased, that he/she should commit suicide. 13. Even if a person would commit suicide because of the torments of an accused, the accused cannot be said to have abetted the commission of suicide by the deceased, unless the accused would intend, while causing torments to the victim/deceased, that he/she should commit suicide. Even if the rigour of this proposition is diluted, still, the least that would be required is, that it should be shown that the accused could reasonably foresee that because of his conduct, the victim was almost certain or at least quite likely to commit suicide and without that a person cannot be charged of having abetted the commission of suicide, even if the suicide has been committed as a result of some of the acts committed by the accused. 14. In V.N. Ratheesh v. State of Kerala AIR 2006 SC 2667 , the Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The Supreme Court further said that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. It was further held that the principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 15. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 15. In “Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 , the Supreme Court" said that "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative, the order of acquittal is not to be disturbed.” 16. We have gone through the entire evidence on record with a view to find out as to whether the views of the learned Sessions Judge were perverse or otherwise unsustainable. After going through the same, we do not find any compelling and substantial reasons to interfere with the judgment of learned Trial Court. It is not a case in which the judgment may be said to be unreasonable or a case in which relevant and convincing materials have been eliminated in the process of appreciation. 17. For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the State, therefore, is liable to be dismissed and is hereby dismissed.