STATE v. DAVINDER PAUL AND ANR.

investigation of the case the investigating agency came to the conclusion that the deceased had committed suicide on being subjected to mental cruelty by both the respondents as they had illicit relations which became an eye sore for the deceased as she could not tolerate the same and thus she committed suicide, having been abetted due to their cruelty and laid charge sheet before the court of law.

3. The case having been committed by the learned Judicial Magistrate at Nowshera to Sessions Court at Rajouri, the accused/respondents were chargesheeted for the commission of offence punishable u/s 306 RPC vide order dated 28.08.1999, who pleading innocence, denied the charge and claimed trial. The prosecution in order to bring home the charge against the accused/respondents examined prosecution witnesses and the trial court on conclusion of the trial vide impugned judgment acquitted both the accused/respondents of the charge.

4. Having been aggrieved of the acquittal, the appellant after obtaining sanction to file appeal vide Govt. Order No.2833-LD(ACQ) of 2007 dated 17.10.2007 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 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.

2

c) That the learned Judge by ordering acquittal of the accused (Respondents) have committed grave error, which has resulted in passing of the impugned judgment.

d) That the prosecution has successfully proved the allegations leveled against the respondents and the oral and documentary evidence produced during the trial has undoubtedly established the commission of alleged offences by the respondents but even then the learned Judge has ordered their acquittal.

5. Learned counsel for the appellant 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 offence against the respondents and prayed that the judgment being not sustainable be set-aside by allowing the appeal and the respondents be convicted and sentenced for the commission of offence punishable u/s 306 RPC.

6. 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. He further argued that PW-1 Angrez Lal who is complainant in the case was just a hearsay witness who had reported the matter to police only and had no personal knowledge of any fact; that PW-Mukesh Kumar who is one of the brothers of the deceased had stated that respondent had left for Punjab in connection with some labour work; PW Madan who was another brother of deceased also stated that the deceased had died within six months of her

3

marriage after having some poisonous substance due to illicit relations of her husband respondent no.1 with respondent no.2 and that deceased had told him that she had been subjected to torture also by the respondents and that deceased had not only died of poisoning but had been killed by the respondents. He further argued that as against the statements of PWs Mukesh Kumar and Madan brothers of the deceased with regard to illicit relations between the respondents, PW Baldev Raj who is father of the deceased added another angle as against the prosecution story, by stating that the deceased had been subjected to demand of dowry by her husband respondent no.1 and that he had paid an amount of ₹10,000/- as was demanded. Learned counsel for the respondents would argue that in the FIR, the reason for committing suicide was the 'illicit relations' between the respondents whereas the father of the deceased stated that it was due to 'demand of dowry' and submitted that there was no allegation of dowry or torture during investigation and all the witnesses including father of the deceased had improved their statements during trial so as to fix the accused/respondents by hook or crook. He finally argued that the appeal being without any merit and substance is required to be rejected and prayed that the impugned judgment be upheld.

7. Heard and considered.

8. The respondents had been charge sheeted for commission of offence punishable u/s 306 RPC on 28.08.1999, with the accusation that the deceased committed suicide on 24.06.1999 by having some poisonous substance, due to their illicit relations. Therefore, both the respondents were charged to have abetted the commission of suicide by deceased Babli Devi due to their illicit relations and there was no charge with regard to dowry or any other cruelty.

4

9. PW-1 Angrez Lal who had lodged FIR stated that the deceased who was from his community had committed suicide on 24.06.1999 at her matrimonial house; that when he visited their house he found that the deceased had died by consuming some poisonous substance and that there was rumour that the husband of the deceased had illicit relations with his sister-in-law Nimbo Devi, as such, he reported the matter at P/S Nowshera vide report (Ext.PW-1/1). On his cross examination he stated that he had lodged FIR on hearsay and denied to a suggestion that one Ram Chand to whom deceased wanted to marry had died by committing suicide after 5/6 days of her marriage which was followed by the deceased; he further stated that the deceased was his paternal cousin aged about 35 years and married, at the time of his death.

10. PW-3, Tirath Ram was a formal witness to the custody memo (Ext.PW-3/1) of the dead body of deceased, seizure memo (Ext.PW-3/2) with regard to a bottle, seizure memo (Ext.PW-3/3) with regard to seized clothes, receipt (Ext.PW-3/4) of the dead body and search and recovery memo (Ext.PW- 3/5) of the respondent no.1 and search memo (Ext.PW-3/8) of respondent no.2. He was therefore only a formal witness to the memos prepared during investigation. PW-Mukesh Kumar who is a brother of the deceased had stated that the deceased Babli Devi could not tolerate the illicit relations between the respondents and committed suicide within six months of her marriage as the deceased about 15 days back had told them at their home that she cannot bear it any further and before they could intervene the deceased committed suicide. The respondent no.1 husband of the deceased was not present at his home on that day. The deceased had told them that her husband did not wish to take meals prepared by her and had not stated anything beyond that. The respondent no.2

5

who happens to be sister-in-law (bhabhi) of respondent no.1 and mother of two sons and two daughters and was aged about 40 years whereas respondent no.1 was aged about 30 years. His cousin Ram Chand had committed suicide after 2/3 months of the marriage of deceased Babli Devi. He denied that the deceased Ram Chand and Babli Devi had love affair and the said Ram Chand had committed suicide due to marriage of Babli Devi as among Hindus marriage was illegal between cousins.

11. PW Angrez Lal a distant cousin of the deceased stated that he had heard that the husband of the deceased had illicit relations with her sister-in-law accused no.2 Nimbo Devi. PW Mukesh Kumar who is real brother of the deceased Babli Devi stated that his sister had told him about the illicit relations between the respondents and that due to this mental cruelty the deceased was driven to commit suicide by consuming poison; PW Madan who is also brother of the deceased Babli Devi also made the similar statement as was made by PW Mukesh Kumar that due to illicit relations between the respondents the deceased had committed suicide, whereas PW Baldev Raj father of the deceased has given an altogether different story with regard to the reason of the suicide stating that the respondent no.1 Devinder Paul was demanding more dowry from his daughter and that he had paid an amount of Rs.10,000/- as dowry. PW Pritam Das, Girdhar Kumar and Raj Kumar are formal witnesses to the memos prepared during investigation. PW Dr. Khem Raj who had conducted post-mortem on the dead body of the deceased stated that he had found no external injury on the dead body; that the viscera of the deceased had been sent to FSL, Jammu and as per laboratory report, the cause of death of the deceased was due to 'organo

6

phosphorous poison'; he admitted the contents of his certificate (Ext.PW KR) as correct.

12. The trial court vide impugned judgment recorded acquittal of both the accused from the charge of having abetted the deceased to commit suicide punishable under section 306 RPC. The entire evidence relied upon by the prosecution was that the husband of the deceased was having 'illicit relation' with his sister-in-law Nimbo Devi, which the deceased could not tolerate and committed suicide.

13. The contentions of the learned counsel for the appellant is that since the deceased had committed suicide within seven years of her marriage, there is provision of drawing presumption that the husband or such relatives of the husband had subjected the deceased to cruelty, however, this court in a case titled 'Gopal Das v. State of J&K' reported as 2008 (2) Sri. Law Journal 724

had held that in the absence of sufficient proof, presumption under Section 114- C of the Evidence Act cannot be drawn and that even on proof of the fact that the husband or any of his relatives had treated the deceased with cruelty, the presumption under Section 114-C of the Evidence Act may not be drawn as a matter of course, as it has to be drawn, having regard to all other circumstances of the case. As in the case on hand, different versions have come up, one is with regard to illicit relations between the respondents which could not be tolerated by the deceased-wife of the respondent no.1 and secondly, the father of the deceased stated that she had been subjected to cruelty on demand of dowry.

14. On presumption, the Apex Court in the judgment supra has held as follows in para 25 which is also extracted:

7

"25. Section 113A only deals with a presumption which the Court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the Section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498A IPC, the Court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498A IPC is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extra marital affair was of such a degree which was likely to drive the wife to commit suicide."

15. In view of divergence of the statements in the prosecution witnesses projecting contradictory versions about the relations of the couple and the motives of 'demand of dowry' or the 'illicit relations' assumed great significance in the absence of any convincing evidence and major contradiction appearing in prosecution version and the statements of the prosecution witnesses as to their relations had actually become strained because of which the deceased is stated to have committed suicide, it cannot be said that the prosecution had succeeded to prove that the respondent no.1 had treated the deceased with cruelty on her refusal to fulfill the demand for payment of Rs.10,000/- which the father of the deceased stated to have paid, the demand of dowry was not his allegation during

8

the investigation of the case and was, for the first time, introduced by the father of the deceased during trial while being examined as a witness, therefore, there was a marked major contradiction which results into no presumption under section 114-C of the Evidence Act against the respondents to presume that because the death had taken place within seven years of marriage so the respondent no.1 had to be presumed to have abetted the suicide of his wife.

16. In order to succeed in a prosecution for commission of offence punishable under section 306 RPC, the prosecution is required to prove incidents, events, factors and the like, by evidence, be it circumstantial or otherwise, to prove the ingredients of section 107 RPC to seek conviction under section 306 RPC. This court in a case titled 'State v. Talib Hussain' reported as

2011 Cri. Law Journal 935 held that in a case where whole of the prosecution had proceeded on the premise that as the respondent was allegedly having illicit relationship with someone, so fed up thereof, the deceased had committed suicide, such allegation would not attract provisions of section 306 RPC in the absence of any overt act leading to the proof of the ingredients of section107

RPC.

17. Hon'ble Apex Court in a case tilted Pinakin Mahipatray Rawal v. State Of Gujarat . reported as (2013) 10 SCC 4 held in para 22 which is profitable to be extracted:

"22. We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to cruelty, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. Harassment, of course, need not be in the form of physical

9

assault and even mental harassment also would come within the purview of Section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree 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. We, on facts, found that the alleged extra marital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide."

18. The prosecution has failed to lead the evidence of such a sterling nature showing incidents whereby the deceased could have been driven to an inescapable desire of not living with her husband in view of his illicit relations with another woman. This court is of the considered view that relationship of respondent no.1 husband of the deceased with respondent no.2 who is his sister- in-law (bhabhi) was not of such a nature, which under normal circumstances, would drive one to commit suicide or that the respondents by their conduct or otherwise, even abetted or intended to abet the deceased to commit suicide. Since the extramarital relation can be subjective and cannot be said to be a mental cruelty as defined under section 498-A RPC, as such, the question of abetment does not arise.

19. Having regard to the aforesaid discussion, and the observations made hereinabove, the conclusion reached by the trial court in finding the respondents not guilty of offence punishable under section 306 RPC for lack of requisite, admissible and legal evidence in the case, thus cannot be faulted. Finding no merit in the contentions raised by the appellant, the acquittal appeal fails and is

10

dismissed. Personal and bail bonds executed by the respondents, are hereby discharged.

20. Trial court record alongwith a copy of this judgment shall be sent down for information to the Sessions Court.

Jammu:

30.05.2023.

Raj Kumar

) (MA CHOWDHARY)

JUDGE

Whether the order is speaking: Yes Whether the order is reportable: Yes

11