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2022 DIGILAW 649 (JK)

State of Jammu & Kashmir v. Vijay Kumar

2022-11-21

MOHD.AKRAM CHOWDHARY

body2022
JUDGMENT Mohd. Akram Chowdhary, J. - This Criminal Acquittal Appeal has been preferred by the appellant-State, against the judgment dated 05.06.2018 (hereinafter called 'impugned judgment' for short) passed by learned 2nd Additional Sessions Judge Jammu (hereinafter called 'trial court' for short) in file no. 122/Challan/25/35/Sessions titled State vs. Vijay Kumar, whereby respondent/accused had been acquitted of the charge of the commission of offences punishable under Sections 306/498-A RPC, in a case registered vide FIR No. 114/2008 at Police Station Nagrota, Jammu. 2. The impugned judgment has been assailed on the ground that the same is contrary to law and against the facts of the case, passed in a mechanical manner without appreciating the evidence including circumstantial available on record; that the trial court has failed to appreciate the prosecution evidence drawing wrong conclusion against the evidence; that there was sufficient material on record to convict the respondent, however, the case has resulted into acquittal for misappreciation, of the evidence. 3. Learned counsel for the appellant argued that deceased-Makhna Devi wife of the respondent, was harassed with the demands of dowry and on domestic issues subjecting her to cruelty; that within 7 years of her marriage, the deceased on 13.05.2008 took an extreme step to end her life by consuming some poisonous substance and that she committed suicide having been abetted by the respondent/accused. He further argued that a case was registered vide FIR No. 122/2008 at the local Police Station, Nagrota and after investigation, the charge-sheet for the commission of offences punishable under Sections 498-A/306 RPC was laid against the respondent/accused in the Court of law. The trial court after hearing prosecution and defense, charge-sheeted the accused for the commission of the aforementioned offences who pleaded innocence and denied the charge. He further argued that, during trial, statements of prosecution witnesses were recorded, however, respondent did not lead any evidence in rebuttal and the trial court by its judgment dated 05.06.2018 acquitted the accused of the charges; that the appellant after the grant of sanction to file the appeal from the State Government filed this appeal. He further argued that, during trial, statements of prosecution witnesses were recorded, however, respondent did not lead any evidence in rebuttal and the trial court by its judgment dated 05.06.2018 acquitted the accused of the charges; that the appellant after the grant of sanction to file the appeal from the State Government filed this appeal. He further argued that the trial court has committed grave error in appreciating the evidence though there was sufficient evidence particularly the statements of PW Sanjay Kumar and PW Ashwani Kumar, brothers of the deceased who had clearly stated that the respondent/accused used to quarrel with the deceased and also used to beat her with the demands of dowry. Therefore, there was sufficient evidence besides having the presumption of abetment of suicide of the wife by the husband within seven years of their marriage and the Trial Court should have convicted the respondent/accused but instead he was acquitted of both the charges for the commission of offences punishable under Sections 498-A/306 RPC. He further submitted that since the trial court has committed illegality by not passing a judgment of conviction and prayed that the appeal be allowed and the impugned judgment passed by the trial court be set-aside and the respondent be convicted for the commission of offences of which he was charged, in the interest of justice. 4. Learned counsel for the respondent/accused, ex adverso, while supporting the impugned judgment passed by the trial court argued that there is no incriminating evidence so as to constitute the offences of which the respondent/accused had been charge-sheeted while making a reference to the statements of two of the witnesses PW Sanjay Kumar and PW Ashwani Kumar, both brothers of deceased that though they had deposed that the accused used to quarrel with the deceased. However, to constitute an offence of abetment to suicide, there must be instigation, that too clear and specific and the same cannot be presumed as argued by the learned counsel for the appellant. He has further argued that the appeal against the well-reasoned judgment passed by the trial court is misconceived and, prayed for its dismissal, upholding the impugned judgment. 5. Heard, perused the record and considered. 6. The respondent/accused vide order dated 21.09.2010 had been charge-sheeted for the commission of offences punishable under Sections 498-A and 306 RPC by the trial court, who pleading innocence, denied the charge. 5. Heard, perused the record and considered. 6. The respondent/accused vide order dated 21.09.2010 had been charge-sheeted for the commission of offences punishable under Sections 498-A and 306 RPC by the trial court, who pleading innocence, denied the charge. The charge against the respondent/accused was that, his wife-Makhna Devi having been abetted on being harassed on domestic issues and demand of dowry by her husband-respondent/accused, consumed some poisonous substance on 13.05.2008 and died. A case in this behalf was registered vide FIR No. 114/2008 at Police Station Nagrota and after investigation of the case, the charge was laid before the court. 7. Prosecution in order to bring home the charge against the accused, out of 12 cited witnesses examined PW-2 Kuldeep Kumar, PW-3 Ashwani Kumar, PW-4 Sanjay Sharma, PW-5 Mohan Lal, PW-6 Rajiv Sharma, PW-7 HC Dalbir Singh and PW-8 Dr. Sangeeta Choudhary. Out of the witnesses examined by the prosecution, 2 are brothers of the deceased, whereas one is brother of the accused, besides medical expert Dr. Sangeeta Choudhary and PWs Mohan Lal and PW-7 HC Dalbir Singh witnesses to the seizure and photography of the dead body. 8. PW-3 Ashwani Kumar, brother of the deceased had stated while being examined by the prosecution that the accused would beat the deceased with the demand of money due to which the deceased committed suicide. However, in his cross-examination, he stated that the deceased would often come to their house happily and, they also used to go to the House of the in-laws of the deceased who would treat them properly and no quarrel ever took place in his presence. He also deposed that the parents of the accused are gentle and they never quarreled or made any dowry demand. PW-4 Sanjay Sharma, another brother of the deceased also in his examination deposed that accused would harass his sister but she never narrated it to him and, even on the date of occurrence, the deceased had stayed with him and his mother for about half an hour at Bajalta. He further deposed that next morning, he came to know that the deceased has consumed some poisonous substance and may be on the harassment of the accused. However, in his cross-examination, he stated that he and his brother would often meet deceased at her in-laws house and, she along with her husband would also visit to their house, however, they never quarreled. However, in his cross-examination, he stated that he and his brother would often meet deceased at her in-laws house and, she along with her husband would also visit to their house, however, they never quarreled. He further deposed that the reference with regard to quarrel one week prior to the occurrence has been made but why the quarrel had taken place, had not been stated and he also showed his inability to explain as to why the accused would maltreat his sister. PW-6 Rajiv Sharma has not made any incriminating statement against the accused and also denied having knowledge as to why the deceased had committed suicide and denied that the accused and the deceased used to quarrel between themselves. PW-5 Mohal Lal stated that he had found deceased in the fields lying unconscious, wherefrom, she was taken to GMC Hospital Jammu, where she had died. PW-8 Dr. Sangeeta Choudhary who had conducted post-mortem of the dead body of deceased, stated that in absence of any FSL report, she cannot make any statement, conclusively, that the deceased had died of consumption of poison. 9. On consideration of the prosecution evidence, particularly the statements of the two witnesses who are brothers of the deceased who have very clearly stated that the couple had no serious issues of quarrelling or cruelty after making initial remarks that they used to quarrel. The real brothers of the deceased would not make false statements or withhold the evidence within their knowledge, so as to, screen the accused from the charge of cruelty and abetment of suicide by the accused of their sister. 10. On the basis of the evidence led by the prosecution, the conviction, as projected by the appellant, cannot be recorded as the evidence led by the prosecution is not conclusive to constitute the offences punishable under Sections 498-A and 306 RPC, for which respondent had been charged. 11. The trial court has while deciding the case passed a very reasoned judgment, discussing all aspects of the case. The offence under Section 498-A RPC cannot be stated to have been constituted for the reason that none of the witnesses including the brothers of the deceased have stated that the deceased was subjected to any cruelty for dowry demand. The death of the deceased as submitted by the learned counsel for the appellant occurred within seven years from the date of the marriage. The death of the deceased as submitted by the learned counsel for the appellant occurred within seven years from the date of the marriage. However, presumption under Section 114-C of Evidence Act cannot be of any help, as to invoke the said provision, the prosecution at the first instance has to establish cruelty. Presumption under Section 114-C of the Evidence Act cannot be drawn merely because the death had taken place within seven years of marriage of the deceased. To invoke this provision for drawing such presumption, the prosecution has not only to prove that the death had taken place within seven years from the date of the marriage but also that the husband or such relative of the husband had subjected the deceased to cruelty. 12. In the absence of evidence, in regard to the husband or his relations subjecting the deceased to cruelty, presumption cannot be drawn. As this presumption has to be drawn having regard to all other circumstances of the case as well. So far as the offence under Section 306 RPC is concerned, in order to prove this offence, the prosecution is required to prove all the ingredients of Section 107 RPC against the offender. In the absence of any such proof, charge under Section 306 RPC cannot be sustained. The word "abetment" has been defined in Section 107 RPC, firstly as "instigating any person to do certain thing, secondly to engage with one or more other person or persons in any conspiracy for doing of that thing and, thirdly, intentionally aids by any act or illegal omission the doing of that thing. More active role has to be described as instigating or aiding the doing of a thing is required before a person can be, to be abetting the commission of offences under Section 306 RPC. Mere harassment of wife by husband due to differences, per se, does not invite Section 306 read with section 107 RPC, if the wife commits suicide, for want of mens rea. 13. The trial court has passed the impugned judgment keeping in view all aspects of the case and ingredients of the offences of which the respondent was charged and has rightly acquitted him of both the charges, as none of these offences are made out against him, based on the evidence led by the prosecution. 14. 13. The trial court has passed the impugned judgment keeping in view all aspects of the case and ingredients of the offences of which the respondent was charged and has rightly acquitted him of both the charges, as none of these offences are made out against him, based on the evidence led by the prosecution. 14. For the foregoing reasons and observations made hereinabove, the appeal filed by the appellant is found to be devoid of any merit and substance and is liable to be rejected. As a sequel, the appeal is dismissed. The bail of personal bonds of the respondent/accused are discharged. 15. Zerox copy of the trial court record be sent back along with a copy of this judgment.