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2023 DIGILAW 243 (JK)

State (Now UT) of J. &K v. Momin Sarwar

2023-06-12

MOHD.AKRAM CHOWDHARY

body2023
JUDGMENT : (Mohd. Akram Chowdhary, J.) : 1. Respondent-Momin Sarwar was chargesheeted by the Court of Additional Sessions Judge, Doda ('Trial Court') for the commission of offence punishable U/S 306 RPC, in a case arising out of FIR No. 116/2006, registered at P/S Doda with the accusation that he had abetted commission of suicide by his wife, Wazira Begum on 05.08.2006 at their rented accommodation in Gattu Mohalla Doda, as a result of which she died. 2. The Trial Court, after conducting trial, vide judgment dated 30.12.2015 ('impugned judgment') acquitted him, on the benefit of doubt, from the charge of commission of offence punishable under section 306 RPC. 3. Aggrieved of the impugned judgment passed by the Trial Court in Sessions Trial Case No. 71 of 2006, through the instant criminal acquittal appeal, the appellant assails the same on the following grounds: "(a) That the judgment is against the law and facts of the case, hence liable to be set-aside; (b) That the learned trial court has mis-appreciated the law and evidence on record and has not appreciated the statements of prosecution witnesses in their totality; and (c) That there is enough evidence on record which warrants the conviction and sentence of the respondent/accused for the commission of offence under section 306 RPC". 4. Mr. Bhagat, learned GA for the appellant argued that the respondent Momin Sarwar, who had converted to Islam and married one Wazira Begum and that both of them had been residing at Gattu Mohalla, Doda in a rented accommodation and on the fateful night on 05.08.2006, his wife went to the kitchen when he was in his home and she poured kerosene oil over her body and putting herself to fire, attempted to commit suicide, having been harassed by her husband as he had scolded her before that as to why she had come late from the house of her parents and that she should not leave for any place without his permission. He further argued that the wife of the respondent, in an injured condition and as a burn case, was admitted in District Hospital Doda, wherefrom she was, next day, referred to SKIMS Hospital, Srinagar for further treatment where she succumbed to her injuries. He further argued that the wife of the respondent, in an injured condition and as a burn case, was admitted in District Hospital Doda, wherefrom she was, next day, referred to SKIMS Hospital, Srinagar for further treatment where she succumbed to her injuries. He further argued that the case was registered vide FIR No.116/2006 under sections 306/109 RPC at P/S Doda and during investigation, particularly based on the dying declaration of the deceased recorded at District Hospital Doda, Police came to the conclusion that she had attempted suicide due to the harassment by her husband and, after her demise, a charge sheet was laid against the respondent before the Trial Court for the commission of offence punishable U/S 306 RPC. 5. Mr. Bhagat, learned counsel further argued that during trial, the prosecution had succeeded to lead sufficient and cogent evidence to connect the accused with the commission of the offence, however, he has wrongly been acquitted by the Trial Court vide impugned judgment, which is not sustainable. He, in particular, made a mention of the dying declaration recorded by the police officer in presence of doctor when the deceased was in a fit state of mind, to make statement and that she had made incriminating statement against the respondent to have harassed her leading her to commit suicide. It was prayed to set aside the impugned judgment and convict the respondent with exemplary and deterrent punishment. 6. Mr. Raina, learned senior counsel appearing for the respondent, ex adverso, argued that the trial court has, by passing a very comprehensive and lucid judgment considering all aspects of the case, reached to a just conclusion that the prosecution had failed to prove its case to bring home the charge against the respondent on the basis of evidence led before the court; and that there is no illegality in the impugned judgment, so as to take a different view than the view that has been taken by the trial court. He has further argued that in view of acquittal recorded by the trial court, the respondent, who is otherwise, deemed to be an innocent as per the criminal jurisprudence gets an edge over his innocence. Lastly, he prayed that the criminal acquittal appeal filed by the appellant, being without any merit and substance, be rejected and the impugned judgment be upheld. 7. Heard, perused the record and considered. 8. Lastly, he prayed that the criminal acquittal appeal filed by the appellant, being without any merit and substance, be rejected and the impugned judgment be upheld. 7. Heard, perused the record and considered. 8. Before adverting to the rival submissions made by the learned counsel for both the sides, it is beneficial to refer the facts of the case. Respondent had been living with his wife deceased Wazira Begum after their marriage in a rented accommodation in Gattu Mohalla, Doda for almost six months. On 05.08.2006, the deceased had gone to her parental house at Dak Mohalla and returned at 7 PM. Her husband i.e. respondent asked her as to why she had come late and also warned her not to go anywhere on her own in future and, on this, both of them were stated to have entered into some arguments/altercations. She asked her husband to have dinner, however, he refused and they watched TV till 12.30 AM, thereafter, she went to the kitchen to prepare Omelette, where she allegedly sprinkled kerosene oil on herself and lit the gas, which caught fire, by which her clothes caught fire and she received serious burn injuries. The wife of the respondent was stated to have attempted to commit suicide due to regular disputes with her husband. Her statement was recorded, while she was hospitalised at Doda and based on her statement, a case was registered vide FIR No.116/2006 for the commission of offences punishable U/Ss 306/109 RPC. Next day, after the occurrence, deceased Wazira Begum was referred to SKIMS Hospital, Srinagar for further treatment, where she succumbed to her injuries. On bringing back her dead body, post-mortem was conducted at District Hospital Doda on 09.08.2006. After investigation, the prosecution laid chargesheet against the accused for the commission of offences punishable U/Ss 306 read with 34 RPC. 9. The respondent was charge sheeted on 18.11.2006 for the commission of offence punishable U/S 306 RPC by the Trial Court, who pleading innocence, denied the charge and claimed trial. 10. Prosecution, in order to prove its case, examined 14 out of 16 prosecution witnesses. The respondent/accused was examined in terms of Section 343 CrPC on 21.04.2015, wherein he again denied the commission of offences refuting the prosecution evidence. On conclusion of trial, the trial court vide impugned judgment acquitted the respondent/accused of the offence of which he was charge sheeted. 11. PW-1 Dr. The respondent/accused was examined in terms of Section 343 CrPC on 21.04.2015, wherein he again denied the commission of offences refuting the prosecution evidence. On conclusion of trial, the trial court vide impugned judgment acquitted the respondent/accused of the offence of which he was charge sheeted. 11. PW-1 Dr. Mahajabeen, who had attended the deceased at District Hospital Doda, stated that deceased Wazira Begum with burn injuries had been admitted in the hospital and the police had recorded her statement in her presence and that she had attested that statement as a witness. On her cross-examination, she stated that the deceased in her statement had told that she was preparing Omelette, however, while lighting the gas a gallon of kerosene oil fell down and caught fire, as a result of which, her clothes also got engulfed in fire; that her husband had tried his best to save her from fire and in this endeavour, to save her, both of his hands and arms also got burnt, that the deceased had been brought to the hospital by the respondent. She further deposed that police had prepared a rough note and thereafter preparing its fair had obtained her signatures and when she had signed the statement, there was no thumb impression of the deceased on that statement. She denied that the deceased has given such a statement that after sprinkling kerosene oil upon her she voluntarily set herself ablaze and that there were 10/12 persons present when statement of the deceased was being recorded. 12. PW ASI Abdul Rashid stated that he had recorded statement of the deceased at District Hospital Doda and admitted the contents of the statement marked as EXPW-MB whereon thumb impression of the deceased Wazira Begum has been affixed and the statement had been attested by the doctor. On his cross-examination, he stated that many people including ladies and relatives of the deceased were present. However, he did not remember the name of that male doctor, who had attested the statement. 13. PW Abdul Hamid is a witness to the seizure memo (EXPW-AM) of a plastic gallon. PW Mohd. Ishaq Gattu denied having any knowledge about the case and, despite being declared as hostile, nothing incriminating could be extracted by the prosecution except to have admitted the contents of seizure memo (EXPW-AM) with regard to some articles. 14. 13. PW Abdul Hamid is a witness to the seizure memo (EXPW-AM) of a plastic gallon. PW Mohd. Ishaq Gattu denied having any knowledge about the case and, despite being declared as hostile, nothing incriminating could be extracted by the prosecution except to have admitted the contents of seizure memo (EXPW-AM) with regard to some articles. 14. PW Zahirullah stated that he was posted at Police Post in District Hospital Doda and during midnight of 4th and 5th August, deceased had been brought to the emergency ward as a burn case and the police had seized her clothes vide seizure memo (EXP-ZU). PW Uttam Singh, also a police official, stated that deceased had been brought to District Hospital, Doda on 5th August during night and admitted contents of seizure (EXPW-ZU). PW Zaffarullah stated that deceased, wife of the respondent, had been admitted having got burn injuries at District Hospital, Doda and admitted the contents of seizure memo (EXPW-ZU) and receipt of dead body of the deceased as marked as EXPW-BA. 15. PW Shoukat Ali uncle of the deceased stated that he was called to hospital at about 1.30 AM, where he found deceased having been burnt but denied having knowledge as to whether she had herself got burnt or was burnt by the accused; that deceased had married the respondent about six months back. He denied having knowledge about the relationship between the couple. PW Basharat Ali, father of the deceased, stated that after five months of the marriage, deceased wife of the respondent had got burn injuries, however, he denied any knowledge as to how she had got those injuries. He further stated that the accused used to harass the deceased for some time and would object to, when she used to come to her parental house. He also stated that after three months of marriage, respondent had started quarrelling with the deceased. 16. PW Asif Jahan Gattoo, stated that the respondent along with his wife had been residing on rent in 3rd storey of the house of his uncle situated opposite to his house. He also stated that after three months of marriage, respondent had started quarrelling with the deceased. 16. PW Asif Jahan Gattoo, stated that the respondent along with his wife had been residing on rent in 3rd storey of the house of his uncle situated opposite to his house. On the date of occurrence, he had heard the cries from the room opposite to his room, where the accused and the deceased were staying and on opening the room, he saw fire, he tried to call fire brigade and on getting no response, he himself went to the office of fire brigade over scooter and after reporting the matter came back and found the deceased burning and crying, and the people from the vicinity were gathered and were trying to douse the fire. 17. PWs Dr. Rehana Khursheed, Dr. Anayat Lone and Dr. B.A. Butt stated that they had conducted autopsy on the dead body of the deceased as a members of the medical board and, as per the findings of the board of doctors, the cause of death of the deceased was cardiac respiratory arrest, as a result of deep burn and admitted the contents of their post mortem report (EXPW-AL) as correct. PW Pawan Abrol, FSL expert stated that he had received two sealed packets forwarded by Dy. SP Doda, through constable Kuldeep Raj, in connection with the case on hand and on subjecting to various chemical tests and fractional distillation, kerosene oil and traces thereof were found present in the exhibits. He admitted the contents of his report (EXPW-PA). 18. This is sum and substance of the evidence led by the prosecution. On examination of the accused, he refuted the incriminating evidence, however, did not lead any defence evidence. 19. The most important evidence led by the prosecution is with regard to the dying declaration. The author of the dying declaration PW ASI Abdul Rashid has stated that he had recorded the statement in presence of a male doctor, whose name was not even known to him, and that the deceased had made a statement that she had been harassed to such an extent by her husband that she had attempted suicide. The author of the dying declaration PW ASI Abdul Rashid has stated that he had recorded the statement in presence of a male doctor, whose name was not even known to him, and that the deceased had made a statement that she had been harassed to such an extent by her husband that she had attempted suicide. If the dying declaration is admitted as a genuine piece of evidence, the same is very important for the disposal of the case as the dying declaration has much evidentiary value for the reason that a person while seeing death in front of his/her eyes does not tell a lie and is normally to be believed as an important piece of evidence. However, its genuineness is required to be seen. PW Dr. Mahajabeen who had attended the deceased as a doctor at DH Doda, when the deceased had been taken there immediately after receiving burn injuries, stated that the deceased had told in her presence that she had caught fire accidentally, therefore, there was no element of abetment of commission of suicide, by the respondent-husband of the deceased. She further stated that the statement of the deceased had been recorded in her presence on a rough page and after getting it fair, her signatures had been obtained thereon. She also stated that, while recording statement, the signatures of the deceased had been taken, however, the trial court found that the dying declaration placed on file was not having either signatures or thumb impression of the deceased and the author of the statement stated that it was attested by a doctor who was male, but his name was not known to him, whereas fact of the matter is that trial court has noticed that signatures were of Dr. Mahajabeen. Therefore, it appears that the dying declaration placed on record was not the same as recorded in presence of Dr. Mahajabeen or if recorded in presence of some other doctor who is unknown, therefore, the dying declaration has rightly been rejected as a piece of evidence by the trial court. 20. The other witness including the father and the uncle of the deceased have not stated anything incriminating so as to connect the accused with the commission of the offences of which the accused has been charged. 20. The other witness including the father and the uncle of the deceased have not stated anything incriminating so as to connect the accused with the commission of the offences of which the accused has been charged. Other witnesses are either formal witnesses to the memos prepared during investigation or the experts, therefore, there was no oral evidence and also, there was absence of any corroborative expert evidence, so as to collectively and conclusively prove that the offence punishable under section 306 RPC had been committed by the respondent having abetted the commission of the suicide by the deceased. 21. Abetment as defined in Section 107 IPC which clearly says that there must be some instigation or some positive act by the abettor, which may have prompted the person committing suicide. The presumption with regard to abetment of suicide within seven years of marriage, as provided under the Evidence Act, is also available only when there is some evidence to connect the accused with the commission of the offence, that such a presumption can be drawn. Under criminal jurisprudence there is a presumption of innocence in favour of the accused and such a presumption is certainly a human right. Such presumption gets stronger, when a judgment of acquittal is passed. 22. The Apex Court has held that the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal as the presumption in favour of the accused gets strengthened and enures in favour of the accused. 23. On a keen and careful perusal of the impugned judgment it is found that the trial court has laboured hard by appreciating the facts of the case in the context of the evidence brought on record with application of the relevant law and reached to a just conclusion. 24. For the foregoing reasons and the observations made hereinabove, it is held that prosecution had failed to prove its case beyond reasonable doubt to bring home the charge against the accused for the commission of the offence of which the accused had been charged. The impugned judgment, being reasoned on sound legal grounds, does not require any interference by this court while deciding the matter invoking the appellate jurisdiction. The trial court has accepted the view which could be taken on the basis of the evidence led by the prosecution. The impugned judgment is, thus, upheld. The impugned judgment, being reasoned on sound legal grounds, does not require any interference by this court while deciding the matter invoking the appellate jurisdiction. The trial court has accepted the view which could be taken on the basis of the evidence led by the prosecution. The impugned judgment is, thus, upheld. As a result, the acquittal appeal is dismissed. Bail/personal bonds of the respondent are thus discharged. 25. Trial court record, alongwith copy of this judgment, shall be sent down for information.