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2023 DIGILAW 231 (JK)

State (Now UT) of J&K v. Rakesh Kumar

2023-06-06

MOHD.AKRAM CHOWDHARY

body2023
JUDGMENT : MOHD. AKRAM CHOWDHARY, J. 1. This criminal acquittal appeal has been preferred by Appellant-State against judgment dated 08.09.2009 (“impugned judgment”) passed by learned 3rd Additional Sessions Judge, Jammu ('Trial Court') in Sessions Case No. 54/2002 titled State vs. Rakesh Kumar & Anr. whereby the accused Rakesh Kumar and Bholi Devi (hereinafter called respondents) were acquitted from the charge of commission of offences punishable U/Ss 306/498-A RPC, Arising Out of FIR No. 71/2002 U/Ss 498-A/306 RPC registered at Police Station Kana Chak, Jammu. 2. Having been aggrieved of the acquittal, the appellant-State after obtaining sanction to file appeal vide Govt. Order No. 2440-LD(ACQ) of 2009, dated 16.11.2009 preferred this appeal, assailing the impugned judgment on the following grounds: (a) That order/judgment impugned in appeal is against the law and facts of the case, as such, is required to be set aside. (b) That the learned Trial Judge has mis-appreciated the evidence and misconstrued the law attracted to the facts of the present case, as such the judgment impugned is liable to be set aside on this score also. (c) That the learned Trial Judge by ordering acquittal of the accused (Respondents) have committed grave error in law, which has resulted in passing of the impugned judgment. (d) That the prosecution has successfully proved the allegations leveled against the accused/respondents but even then the learned Judge has ordered their acquittal. 3. Learned counsel for the appellant/accused argued that the trial court has passed not only an erroneous but illegal judgment, while mis-appreciating the evidence brought on record, though the appellant while prosecuting the respondents had brought on record sufficient oral and documentary evidence which established the commission of the alleged offences by the respondents/accused and prayed that the impugned judgment being not sustainable, be set-aside by allowing the appeal and the respondents be convicted and sentenced for the commission of offences punishable u/s 306, 498-A RPC, in the interest of justice. 4. Learned counsel for the respondents, on the other hand, argued that there was no credible evidence against the respondents to bring home the charge against them, as such, the trial court has rightly recorded the acquittal of both the respondents, by a reasoned judgment and prayed that appeal be dismissed. 5. Heard, perused the record and considered. 6. Shorn of minute details, the factual matrix of the case is that one Seema Devi, wife of respondent no. 5. Heard, perused the record and considered. 6. Shorn of minute details, the factual matrix of the case is that one Seema Devi, wife of respondent no. 1 died on 08.06.2002, only after 13 months of her marriage, by committing suicide by drowning in Ranbir Canal; that on 09.06.2002, an application was filed by Jagdish Raj Sharma, Panch of Gurah Singhu in Police Station, Kana Chak stating therein that the deceased and her relative Kamli Devi had gone out of the house for evening walk on 08.06.2002 at 7 P.M. and that Seema Devi told Kamli Devi to go back as she would come later; however the deceased did not return, and when husband of the deceased found the deceased absent in the house on his return, he started searching her everywhere, but despite search he could not trace her; that later her family members found a pair of Nylon Chappels on the last step of the bathing ghat of Ranbir Canal; that on 24.06.2002 Police Station received a docket that a body of an unidentified woman has been fished out from the Ranbir Canal at Muthi near K.C. Road; that thereafter proceedings u/s 174 Cr.P.C. were initiated and the dead body was identified to be that of the deceased and the statements of the witnesses u/s 161 Cr.P.C. were recorded. 7. As per the investigation, it came out that Seema Devi was married to accused Rakesh Kumar just 13 months ago and after some time, both the respondents/accused persons Rakesh Kumar and Bholi Devi (bhabhi of Rakesh Kumar) started harassing the deceased by demanding dowry as well as casting derogatory remarks to the deceased being dark complexioned woman, they also used to beat her for not bringing adequate dowry articles from her parents; and she, having got fed up with the said treatment, committed suicide. Accordingly, a case was registered at Police Station Kana Chak vide FIR No. 71/2002 against the accused persons for commission of offences punishable under sections 306, 498-A RPC and chargesheet was presented before the Court of learned Chief Judicial Magistrate, Jammu on 09.08.2002. 8. Accordingly, a case was registered at Police Station Kana Chak vide FIR No. 71/2002 against the accused persons for commission of offences punishable under sections 306, 498-A RPC and chargesheet was presented before the Court of learned Chief Judicial Magistrate, Jammu on 09.08.2002. 8. The respondents had been chargesheeted by the Trial Court vide order dated 12.11.2002 for the commission of offences punishable under sections 498-A/306 RPC, with the accusation that since the marriage of the deceased Seema Devi with respondent Rakesh Kumar she was being used to be taunted with regard to her appearance and also was being subjected to cruelty on dowry demands, and that having been fed up with the treatment meted out to her, by the accused, she committed suicide on 08.06.2002 by drowning herself in the Ranbir Canal, who pleading innocence, denied the charge and claimed trial. 9. Indisputably, deceased Seema Devi had expired due to drowning in the canal. On the touchstone of the evidence led by the prosecution, it has to be considered as to whether she had committed suicide due to cruelty and having been abetted for commission of suicide. 10. PWs Subash Chand, Joginder Lal, Kartar Chand, Vijay Kumar and Ganesh Dass have deposed that immediately prior to the occurrence, they were told by deceased Seema Devi that the accused used to beat her with dowry demands, however, they have failed to show as to why they had not filed any complaint in this behalf at the police station, women cell, court or to any representative in the village. They have further stated that from the date of disappearance of the deceased till the date of finding of her body they did not inform the police of the cruel treatment meted out to the deceased by the accused. The inaction of the witnesses, who were from the family of the deceased, in reporting the cruel treatment of the deceased by the accused to the police, court or any representative in the village for mediation, casts a doubt on the genuineness of the prosecution case. It seems that it is only when the dead body of the deceased was recovered, all these witnesses who are related to the deceased and belonging to her village started making accusations against the accused and not prior to that date. It seems that it is only when the dead body of the deceased was recovered, all these witnesses who are related to the deceased and belonging to her village started making accusations against the accused and not prior to that date. Despite being in touch with the investigating agency they maintained silence on the cruel treatment to the deceased. This unnatural conduct of these prosecution witnesses casts a doubt on the truthfulness of their testimony against the accused. It is strange and surprising that these witnesses, who are in close relation of the deceased, waited for such a long time and did not disclose the name of the accused at the very next day to the police. This muteness on their part, when they had opportunity to complain diminishes the value of their subsequent version. In the normal course of human conduct, the witnesses ought to have complained to the concerned police, if really, there had been harassment and demand of dowry and cruelty to the deceased on the hands of the accused, and no reason has been advanced by these witnesses for their silence and these factors cast doubts on the genuineness of the prosecution case itself. 11. The independent witnesses namely PW-3 Ravinder Kumar and PW-7 Jagdish Raj, on the other hand, while appearing in the court did not say anything with regard to cruelty, harassment or demand of dowry from the deceased by the accused. 12. There was delay in recording of the statements of the prosecution witnesses which too casts a doubt on the genuineness of the prosecution case against the accused. In this respect, I.O. Maqsood Hussain Shah who had conducted the investigation is relevant who stated that during investigation, after the disappearance of the deceased, the brothers of the deceased namely PWs Kartar Chand, Subash Chand and Ganesh Dass had not come to him and he had recorded the statements of Ganesh Dass, Kartar Chand, Vijay Kumar, Ravinder Kumar and Jagdish Kumar on 08.07.2002, and of PW Subash Chand on 10.07.2002. So from 09.06.2002 till 08.07.2002, these witnesses had not appeared before the I.O. in connection with this case. 13. The mother of the deceased and brothers of the deceased had been contacted during this period but their statements had not been recorded. So from 09.06.2002 till 08.07.2002, these witnesses had not appeared before the I.O. in connection with this case. 13. The mother of the deceased and brothers of the deceased had been contacted during this period but their statements had not been recorded. Therefore, there is no just explanation for the inordinate delay in recording the statements of prosecution witnesses after 08.06.2002 and the same casts heavy doubt on the truthfulness of the prosecution case and its witnesses. In this backdrop of the matter the contradictions and omissions in the testimony of the witnesses recorded by the trial court assumed importance when seen in conjunction with the contentions of the defence that the statements of related and interested witnesses have been recorded by the I.O. after a long delay with no reason for such delay. 14.The trial court while relying on the law laid by Apex Court in Ganesh Bhaven Patel vs. State of Maharashtra, AIR 1979 SC 135 with regard to delay in recording the statement of witnesses and this court judgment in Prem Singh vs. State of J&K, 2003 (2) JKJ 506 [HC] that when the statement of a witness is recorded after a period of one month 20 days after the occurrence though the witness was available and his statement could have been recorded and no reason for not recording such statement was also explained, it loses its legal significance and credibility. The trial court has rightly relied upon these judgments and observed that the facts and circumstances of the case and the delay in recording the statement of witnesses, do give credence to the arguments of the defence, that the investigating agency had introduced the witnesses just to give the case a shape. Though the I.O. had made an effort to explain the delay in recording the statement of witnesses by stating that they had not come to him, however, this explanation is not acceptable and rightly so by the trial court because as per the prosecution witnesses, they were in constant touch with the police. 15. Another important factor in the case is that the I.O. had not examined the neighbourers where the deceased was living to prove that the accused had subjected her with cruelty. 15. Another important factor in the case is that the I.O. had not examined the neighbourers where the deceased was living to prove that the accused had subjected her with cruelty. I.O. had admitted in his statement that he had not enquired from the neighbourers of the deceased about the occurrence and as to in what circumstances deceased had died making the case of prosecution highly unreliable. Though the deceased was stated to have died within 13 months of her marriage by committing suicide, as such, there can be a suspicion with regard to her death, however, the suspicion cannot take the place of proof as has been held by Hon'ble Apex Court in a case reported as Ashish Batham vs. State of M.P. AIR 2002 SC 3206 that “Mere suspicion, however, strong or probable it may be, is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge greater should be the standard of proof required.” 16. On a consideration of the trial court record and rival submissions made by learned counsel for both the sides, it is found that the trial court has rightly decided the case for the sound reasons as the prosecution had failed to substantiate its charges against the accused beyond any shadow of doubt. The prosecution evidence in the case is unreliable and unconvincing and does not establish involvement of the accused with the commission of the offences that the accused had treated the deceased with cruelty on dowry demands from her and, as a result, abetted the commission of suicide by her. The witnesses who included brothers of the deceased have made a general statement that accused had demanded dowry from the deceased but none of them had given the details of the dowry items allegedly demanded by the accused and the trial court has rightly rejected this plea saying that prosecution evidence itself shows the falsity and vagueness of the charge of demand of dowry against the accused. The prosecution had, thus, failed to prove that the death of the deceased was suicidal having been abetted by the accused/respondents. 17. It is trite in law that the obligation of the prosecution is to prove the guilt of the accused beyond reasonable doubt by cogent and clear evidence. The prosecution had, thus, failed to prove that the death of the deceased was suicidal having been abetted by the accused/respondents. 17. It is trite in law that the obligation of the prosecution is to prove the guilt of the accused beyond reasonable doubt by cogent and clear evidence. The Trial Court has rightly given the benefit of doubt to the accused in the case and acquitted them of the charge. 18. For the foregoing reasons and observations made hereinabove, the acquittal appeal fails as the impugned judgment has been passed in consonance with law by the trial court and does not warrant any interference by this court while exercising the appellate jurisdiction. The impugned judgment is upheld. As a result, the appeal fails and is dismissed. 19. The Trial Court record alongwith copy of this judgment shall be sent down to the trial court, for information.