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2023 DIGILAW 225 (JK)

State of Jammu and Kashmir v. Sanjay Kumar

2023-06-05

MOHAN LAL

body2023
JUDGMENT : Mohan Lal, J. 1. Instant Criminal Acquittal Appeal is directed against the judgment dated 01.03.2013 rendered by the court of Ld. Sessions Judge Udhampur in File No. 13/ Sessions titled State v. Sanjay Kumar & Ors., whereby, respondents/accused have been acquitted of the charges for commission of offences u/ss 498-A/306 RPC in FIR No. 60/ 2009 Police Station Rehmbal (Udhampur). 2. Aggrieved of and dissatisfied with the impugned judgment, appellant/state has questioned it's legality, propriety and correctness on the following grounds:- (i) that the impugned judgment is against law and the facts of the case, and the trial court has also failed to appreciate the prosecution evidence in true and proper perspective and has reached to the conclusions which are contrary to the weight of evidence; (ii) that it is settled position of law that the paramount consideration of the court should be to ensure that miscarriage of justice is prevented, law is no longer res-integra that in a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where accused has been acquitted for the purpose of ascertaining as to whether accused really committed any offence or not; (iii) that in the instant case the admissible evidence of the prosecution witnesses has not been appreciated in right perspective resulting in miscarriage of justice, the impugned judgment is clearly unreasonable as the trial court's decision is based on erroneous view of law, the entire approach of Ld. Trial Court in dealing with the evidence is patently illegal as it has not only ignored the evidence but misread the same. 3. Sh. Sumit Bhatia Ld. GA while making foundation of his arguments from the edifice of memo of appeal, has vehemently sought the setting aside/quashing of impugned judgment dated 01.03.2013 by canvassing arguments, that during the course of trial appellant/prosecution examined as many as 18 witnesses who led cogent and reliable evidence against respondents/accused which was sufficient to convict them, but the trial court has rendered impugned judgment against the law and facts of the case and has failed to appreciate the prosecution evidence in it's true and proper perspective and reached to conclusion contrary to the weight of evidence leading to the acquittal of respondents, thereby, causing huge miscarriage of justice. 4. Sh. Anil Khajuria Ld. 4. Sh. Anil Khajuria Ld. Counsel for respondent/accused has strenuously supported the impugned judgment and has sought it's affirmation by vociferously portraying arguments, that 4 prosecution witnesses the close relatives of deceased (Smt. Beena Devi) viz.; PWs-Rakesh Kumar & Rajesh Kumar (brothers of deceased), PW-Bodh Raj (F/o deceased) & PW-Bimla Devi (M/o deceased) being the star witnesses of the prosecution were required to prove the factum of abetment of suicide committed by the deceased against the accused persons, but in their depositions before the trial court, they have made only generalized statements that accused used to ill-treat the deceased, as none of the aforesaid star witnesses have stated in their depositions regarding dates, months or year when the deceased was stated to have been beaten/ill-treated/harassed/ tortured by the accused with cruelty. It is argued, that as the factum of cruelty has not been established by the prosecution witnesses against the accused, the abetment of suicide cannot be said to have been proved against the accused persons, prayer has been made for the confirmation of the acquittal judgment. 5. I have heard Sh. Sumit Bhatia Ld. GA for appellant and Sh. Anil Khajuria Ld. Counsel for respondents, and have also perused the impugned judgment. To prove the case against respondents/accused, prosecution has examined as many as 18 witnesses. 6. Before coming to the conclusion, whether prosecution has successfully substantiated charges against respondents beyond hilt, I find it pertinent to give a brief resume of the evidence tendered by the prosecution witnesses before the trial court. Relevant portions of the testimonies of the prosecution witnesses can be summarized as under:- PW Lal Singh has stated that on 24.04.09 he went to the place of occurrence on the direction of SHO concerned and took photographs mark L1 to L11 and handed over the developed photographs to police. PW Madan Lal has stated that he was summoned to police station Tikri alongwith Subash Chander where mother of deceased handed over a purse to police. It was found to contain eight currency notes of Rs. 100/- denomination each a pair of anklets, a ring, a mangal sutra etc. which were seized by police through a seizure memo Ext P-14. PW Krishan Lal has stated, that on 29 04 09 three packets were brought to him by police for resealing. It was found to contain eight currency notes of Rs. 100/- denomination each a pair of anklets, a ring, a mangal sutra etc. which were seized by police through a seizure memo Ext P-14. PW Krishan Lal has stated, that on 29 04 09 three packets were brought to him by police for resealing. He resealed the packets and sent a letter of authority to Director FSL (note the said letter was not found on record and so the statement of witness was deferred to trace the letter). The witness has deposed again on 27.07.10 and has admitted that the contents of authority letter Ext P-17 are correct. PW Rakesh Kumar (B/o deceased) has deposed, that the deceased was his sister who was married to Accused No. 1. She died on 24.04.09. Accused No. 1 told him on telephone at 9:47 a.m. that deceased had a quarrel with her mother-in-law and sister-in-law and so she had left for her parental home. On hearing this he enquired from the relatives but no clue was found about the deceased and at quarter to one Accused No. 1 came to his home. He had tea etc. and thereafter left saying that deceased would be some where around at Udhampur. Some time after he got telephonic message that a dead body of women is lying under a bridge. He rushed to the place of incident and found the dead body of deceased lying there the deceased had a deep wound on her face and both of her arms were fractured. Police took the photographs of dead body, seized the sandals, handkerchief etc. of deceased through seizure memo Ext.P.1. The samples of stained soil and unstained soil were taken. Seizure of Dupata of deceased was also prepared. The dead body was seized by police. The deceased died because the accused were demanding dowry from her and were ill treating her. The deceased used to complain before him but some time after she stopped doing so. The accused had not demanded any dowry at the time of the marriage but thereafter they started demanding a car, that in fact led the deceased to commit suicide. In cross-examination deposes, that at the time of marriage accused had refused to take dowry. Accused No. 1 and Accused No. 2 had their own vehicles and they would usually remain out of their home. In cross-examination deposes, that at the time of marriage accused had refused to take dowry. Accused No. 1 and Accused No. 2 had their own vehicles and they would usually remain out of their home. The sister-in-law of deceased (Accused No. 5) was married. He had told accused two years before that they should stop ill-treating the deceased but he did not report the matter to police. Accused No. 1 told him on phone that there was a quarrel in the home so the deceased had run away. He disclosed this fact even in his statement u/s 164-A of Cr.P.C. but there is a no mention of this fact in his statement u/s 164-A Cr.P.C. PW Rajni has stated that she was a teacher in Govt. Middle School Sundrani. On 24.04.09 she boarded the bus at bus stand and near Town Hall Udhampur the deceased also boarded the same bus. The deceased paid her bus fair also and got down at Lehno and on the same day it was heard that deceased had died. In cross-examination deposes, that she had a good relationship with deceased and the later never complained about her in-law. She looked to be a bit depressed. PW Anita has stated that on 24.04.09 at about 9 a.m. she was going back to her home after leaving her children in school. Deceased met her in the lane. She gave her an envelope and told her that to keep it with herself because she was going to her parental home. She opened the envelop and found a purse in it. The deceased was a bit depressed and sad and on the same day at 4 p.m. she came to know that deceased had died after jumping down the bridge. 3/4 days after she handed over the purse to her mother and sister of the deceased. The deceased never complained against her in-laws. PW Rajesh Kumar (B/o deceased) has deposed, that deceased was his sister who was married to Accused No. 1 since last seven years. The couple was blessed with a child. In the beginning the relationship between Accused No. 1 and deceased was fine but thereafter they started quarreling with each other on trivial issues. Deceased told him number of times that accused were demanding Bed and TV as dowry. The couple was blessed with a child. In the beginning the relationship between Accused No. 1 and deceased was fine but thereafter they started quarreling with each other on trivial issues. Deceased told him number of times that accused were demanding Bed and TV as dowry. 2/3 days before he talked to deceased on telephone and from her conversation it appeared that she was depressed and sad. On 24.04.09 he received a message in Katra that deceased had passed away. He rushed to Tikri hospital where he came to know that deceased had jumped from a bridge. In cross-examination he says that Accused No. 1 and Accused No. 2 had their own vehicles and they would usually remain out of their home. He cannot say as to when did deceased have a quarrel with accused. No report was ever lodged in police. These facts were divulged before police after the death of the deceased. None from the neighbour hood of the deceased ever complained against the accused. PW Bimla Devi has stated that on 24.04.09 deceased met her while she was going back to her home. Deceased told her that she was proceeding to her parental home and at 5 p.m. it was heard that deceased had died after jumping from a bridge. PW Rameshwar Sharma has stated, that on 24.04.09 Accused No. 1 came to him at 9 a.m. and told him that his wife has gone missing so he should accompany him to search her. He alongwith Accused No. 1 reached bus stand Udhampur where the deceased was found standing he told deceased that she should go back to her home. But the deceased told him that she was going to her parental home. Since there was a crowd around in the bus stand so he did not press the deceased hard to return back to her in-laws house. He alongwith Accused No. 1 came back and proceeded to the parental home of the deceased but the deceased was not found there also. At about 1:30 p.m. they came back and PW Mohinder Kumar told them that the dead body of a women was lying under railway bridge. They rushed to the railway bridge and found that deceased had jumped from the railway bridge and was dead. The deceased and Accused No. 1 were living separate from the rest of the family. At about 1:30 p.m. they came back and PW Mohinder Kumar told them that the dead body of a women was lying under railway bridge. They rushed to the railway bridge and found that deceased had jumped from the railway bridge and was dead. The deceased and Accused No. 1 were living separate from the rest of the family. Accused No. 1 and his brother were drivers and they would usually remain out of their home. Accused No.5 was married and she was living in her husband's house. Since she had gone for love marriage and so she was not enjoying good relationship with parents and brothers. PW Nima Sharma has stated, that on 24.04.09 she boarded a bus near town hall Udhampur at 9 a.m. Madam Rajni was also sitting in the same bus alongwith the deceased and next day she heard about her death. PW Bodh Raj (F/o deceased) has deposed, that deceased was his daughter. Police handed over the dead body of deceased to him. On 23rd i.e. a day before the occurrence, deceased had talked to her mother on telephone that she was visiting her parental home next and also told her that she was all right. Next day Accused No. 1 inquired from them on phone at to whether deceased had reached there or not. Deceased had a quarrel with her mother-in-law and sister-in-law. Thereafter Accused No. 1 alongwith his cousin and another person came to his home to enquire about the deceased. They had meals and at 3 p.m. they left back. The deceased was complaining that accused were demanding a scooter and a Car from her. Deceased was living separate from the rest of the family. Deceased used to complain that accused were ill treating her and he believes that accused had killed her. In cross-examination deposes, that he does not know as to when accused had physically assaulted the deceased. Accused No. 1 loved her too much. Accused 1 and 2 were drivers and they were usually found out of their home. No report was ever lodged against accused. Accused never demanded any dowry from him. The sister-in-law of deceased had gone for a court marriage and so she was not having cordial relationship with her parents. PW Dr. Accused No. 1 loved her too much. Accused 1 and 2 were drivers and they were usually found out of their home. No report was ever lodged against accused. Accused never demanded any dowry from him. The sister-in-law of deceased had gone for a court marriage and so she was not having cordial relationship with her parents. PW Dr. Sandeep Raina has deposed, that on 24.04.09 he conducted the postmortem of deceased and following injuries were noticed on her person- (i) Multiple fractures of scalp Bones. (ii) Fracture Mandible, Nasal Bone, supra orbital Ridge. (iii) Multiple compound fractures of both bones of both upper limbs (distal ends of ulna and radius). (iv) Fracture cervical vertebra. (v) Abrasions of upper chest and upper abdomen. In his opinion the cause of death was due to hypovolemic shock resulting form multiple fractures due to fall from a height. The postmortems report Ext.P-18 was correct. PW Bimla Devi (M/o Deceased) has deposed that deceased was her daughter who was married to Accused No. 1 since last 7 years. Accused No. 1 was having great affection for deceased and he would tell her that he would not survive if she would not agree to marry him. One month after the marriage the accused started taunting the deceased. Deceased started living separately alongwith husband. The mother and sister of Accused No. 1 were persuading the Accused No. 1 to throw the deceased out of his home. Accused were demanding a Car and a bed from deceased. Deceased died due to ill treatment of accused. Accused No. 1 would fulfill every wish of the deceased as he had a lot of love for her. Deceased was telling her on her own that she should manage a car from her relatives. Accused never demanded any dowry from her. Accused 1 to 3 were drivers and they would seldom go to their home. Accused No. 1 and deceased were living separately. No complaint was ever made against the accused. PW Mohinder Sharma has deposed, that deceased was married to Accused No. 1 since 2000. Only 2/3 months, after the marriage accused started demanding TV and furniture etc. from her. The deceased complained about it in her parental home and would even show the marks of violence on her body. Deceased was living in a separate room. Accused were providing her very meager meals. Only 2/3 months, after the marriage accused started demanding TV and furniture etc. from her. The deceased complained about it in her parental home and would even show the marks of violence on her body. Deceased was living in a separate room. Accused were providing her very meager meals. On 24.04.09 at 9:00 a.m. Accused No. 1 rang him and told him that whether deceased had gone to his home and he replied in negative. 15 minutes after, Accused No. 1 again rang him and told him that deceased was in bus stand Udhampur and was reluctant to go to her home. He tried to establish contact with her but he could not. Accused No. 1 told him that deceased had boarded the matador. At 4:30 p.m. he was informed that the dead body of a women was lying under railway bridge and later on it was confirmed that it was the dead body of deceased only. Accused were ill treating her so she committed suicide. In cross-examination deposes, that in 2008 deceased never came to her parental home in his presence nor did he see any marks of Violence on her body, but she had told about it to his wife. Accused No. 1 was a driver and so he would usually be out of his home. He complained about the torture which the accused were perpetrating against the deceased to police for the first time after the occurrence. It is a fact that since deceased was his sister-in-law so he was giving the statement against accused. Accused No. 1 was having affection for his wife. It is a fact that only after they held a demonstration accused were arrested. PW Subash Chander has stated, that on 05.05.09 he was summoned to the parental house of deceased. In his presence a purse was handed over by the mother of the deceased to police. The purse contained Rs. 800 cash, an artificial Mangal Sutra, a ring, anklets etc. Same were seized through seizure memo Ext.P-14. His statement was not recorded by police. PW Kulbir Singh has deposed, that the relationship between deceased and accused was fair enough. The witness has been declared by prosecution. PW Amar Chand Bhagat (I/O) has deposed that on 24.04.09 a source information was received that the dead body of a women was lying under the railway bridge. Inquest proceedings were started. PW Kulbir Singh has deposed, that the relationship between deceased and accused was fair enough. The witness has been declared by prosecution. PW Amar Chand Bhagat (I/O) has deposed that on 24.04.09 a source information was received that the dead body of a women was lying under the railway bridge. Inquest proceedings were started. The dead body was taken over. A handkerchief, a pair of chappals, a dupatta were seized from the place of occurrence. Nine blood stained stones, un stained soil and blood stained soil were collected from the place of occurrence. The dead body was shifted for postmortem and after postmortem the wearing apparels of deceased were seized and PW Rakesh Kumar lodged a written report Ext. P-1-VII wherein he alleged that deceased was being ill treated by the accused for her failure to meet the dowry demand of accused and so deceased had either committed suicide or she was killed by accused. The proceedings u/s 174 Cr.P.C. were truncated and a case was registered u/s 306/498-A RPC. Thereafter investigation was handed over to him. He collected the viscera of the deceased and obtained the expert opinion. Collected the postmortem report also and the complicity of accused in commission of offence u/s 306/498-A RPC was established. PW Shiv Kumar has deposed, that in April 2009 he was working in R.K. Company as Supervisor. On 24.04.09 he was unloading cement and an employee told him that either a sack of cement had fallen down from the bridge or there is some dead body lying down the bridge. He went near and found that the dead body of a woman was lying there. Information as passed on to police immediately. 7. The facts unfolded in the charge sheet laid by the investigating agency before the trial court are, that on 24.04.2009 information was received in police post Tikri that the dead body of a woman is lying under the Railway Bridge at Lainho Udhampur. The information so received was recorded and inquest proceedings in terms of Section 174 Cr.P.C. were initiated to ascertain the cause of death of deceased. The police party rushed to the place of incident and the dead body was received there from was that of Beena Devi wife of Accused No. 1. A pair of sandals, a handkerchief and a dupatta was found scattered around the dead body. The dead body was taken over by police. The police party rushed to the place of incident and the dead body was received there from was that of Beena Devi wife of Accused No. 1. A pair of sandals, a handkerchief and a dupatta was found scattered around the dead body. The dead body was taken over by police. The samples of unstained and blood stained soil were collected alongwith nine blood stained stones from the place of occurrence. The dead body was shifted for postmortem. After postmortem the wearing apparels of the deceased were also seized and the dead body was handed over to the father of deceased. At the same time a written report Ex-P-1-VIII was lodged by the brother of the deceased wherein it was alleged, "that the deceased was married to Accused No. 1 since 5/6 years, only two months after the marriage the accused stated ill-treating her and a dowry demand was also made from her, having failed to meet the demand of accused the deceased would face physical assaults and she would usually complain against the accused in her parental home, many a times accused were asked to desist from ill-treating the deceased but they did not mend their ways and ultimately on 24.04.2009 at about 8:30 a.m. the accused assaulted the deceased brutally and at about 9:45 a.m. Accused No. 1 informed him telephonically that deceased had left her home, soon after he got a telephonic call from a person that dead body of a woman was lying under the bridge, he immediately rushed to the stated place and found the dead body of the deceased lying there, the deceased has committed suicide by jumping down the bridge after she was forced to do so due to the ill-treatment of accused". On receiving this report, the inquest proceedings were closed and a case u/s 498-A/306 RPC was registered and after completing necessary formalities the evidence was collected and on conclusion of investigation it was found that on the fateful day Accused No. 1 and his mother had a quarrel with deceased and the deceased could not tolerate it and so she jumped down the bridge and thus committed suicide. It is also came to the fore that accused were demanding dowry from the deceased. Having found so the investigating officer concluded that accused had committed aforementioned offences and so the charge sheet was laid in the court for judicial determination. 8. It is also came to the fore that accused were demanding dowry from the deceased. Having found so the investigating officer concluded that accused had committed aforementioned offences and so the charge sheet was laid in the court for judicial determination. 8. It is apt to reiterate here, that PWs Rakesh Kumar & Rajesh Kumar (brothers of deceased), PW-Bodh Raj (F/o deceased) & PW-Bimla Devi (M/o deceased) being the close relatives of the deceased are the star witnesses of the prosecution to prove the factum of cruelty committed by respondents accused upon the deceased which compelled the deceased to commit suicide, but in their depositions before the trial court they have made generalized statements that the deceased used to be ill-treated by the accused persons. In their evidence, none of the aforesaid star witnesses have stated the dates, month or year when the deceased was stated to have been beaten/harassed or treated with cruelty and tortured by the accused. Mere statements/deposition before the court that all the accused had treated the deceased with cruelty is not sufficient enough to prove the offence of abetment of suicide. The specific act or omission attributed against each accused must be clearly spell out in the evidence and the mental and physical cruelty must be of such a nature which would compel the deceased to commit suicide, as no option could be left with the deceased. It is apt to reiterate here, that not reporting of matter to the police regarding the alleged cruelty is a circumstance against the complainant party, which clearly spells out that the physical or mental cruelty attributed to the accused persons was not of such high degree which could have compelled the deceased to commit suicide. For the ill-treatment meted out to the deceased, her father, mother and brothers namely, Bodh Raj, Bimla Devi, Rakesh Kumar & Rajesh Kumar respectively could have taken recourse to the legal proceedings against the accused persons, and there could be no legal justification for the deceased to go for such extreme step by committing suicide. In AIR 2002 SC 2078 (Gurnaib Singh v. State of Punjab) Hon'ble Supreme Court, while analyzing the attributes of "cruelty", has opined, that Clause A of explanation to Section 498-A IPC defines cruelty to mean "any willfully conduct which is of such a nature as is likely to drive the woman to commit suicide". In AIR 2002 SC 2078 (Gurnaib Singh v. State of Punjab) Hon'ble Supreme Court, while analyzing the attributes of "cruelty", has opined, that Clause A of explanation to Section 498-A IPC defines cruelty to mean "any willfully conduct which is of such a nature as is likely to drive the woman to commit suicide". If the evidence in the case in hand is properly appreciated, the deceased even if was pained and disturbed on account of her ill-treatment by the accused persons who use to quarrel with her and demand dowry, such a situation would not amount to cruelty, as the deceased and her parents would have taken recourse to legal proceedings against the accused to prevent such cruelty. The cruelty must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A, RPC. Harassment, of course need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-A RPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and decree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. In the case in hand, it needs to be recorded with due emphasis, that none of the prosecution witnesses have proved the specific allegation for demand of dowry and harassment meted out to the deceased. At the same time with all the attendant factors surfacing on the record of the case, make it somewhat difficult to swallow the prosecution version, that the accused persons had demanded dowry and ill-treated the deceased. None of the PWs have given specific evidence that the relation of deceased with Accused No. 1 was not cordial. In this backdrop, the evidence of PW-Bodh Raj & PW Bimla Devi (father & mother of deceased) assume great significance as both of them have deposed before the trial court that A-1 (husband of deceased) was having great love and affection for deceased and would fulfill her every wish. 9. In this backdrop, the evidence of PW-Bodh Raj & PW Bimla Devi (father & mother of deceased) assume great significance as both of them have deposed before the trial court that A-1 (husband of deceased) was having great love and affection for deceased and would fulfill her every wish. 9. On the facts, I, find that the alleged allegations of cruelty against the accused persons were not of such a nature which could have driven deceased Beena Devi to commit suicide or that accused persons have never intended or acted in such a manner which under normal circumstances would drive deceased to commit suicide. The act of accused persons could not establish such high degree of mental cruelty which could have driven the deceased to commit suicide. The evidence brought on record against the accused persons with regard to cruelty is absolutely sketchy and not convincing. On the basis of evidence led by the prosecution, it is difficult to hold the accused persons guilt of offences u/ss 306/498-A, RPC. 10. The evidence put forth by the prosecution witnesses is therefore, qualitatively and quantitatively insufficient to bring nexus between the accused and the commission of offences attributed against them. This renders the entire story of prosecution incredible and un-believable in the manner projected. On proper assessment, evaluation of the evidence put forth by the prosecution, it is lacking in credibility and does not prove the offences charged against the accused persons, whereby, the case of prosecution becomes doubtful. For the foregoing reasons and discussion, prosecution has miserably failed to prove that the accused persons are responsible for commission of offences u/ss 306/498-A RPC. Challan against accused persons, therefore, miserably fails, same is disallowed, rejected and dismissed. Accused persons namely, (i) Sanjay Kumar, (ii) Sanjeev Kumar sons of Om Parkash, (iii) Mst. Chanchala Devi W/o Om Parkash, residents of Gaidan Talab Udhampur, (iv) Mst. Radha Rani @ Binu Devi W/o Ravi Kumar, resident of Ward No. 8 Udhampur, are therefore, acquitted of the charges leveled against them. Criminal Acquittal Appeal is therefore, disallowed, rejected & dismissed. 11. Disposed off accordingly.