State Of J&K vs Rajesh Kumar

Court: Jammu & Kashmir High Court

Bench: Justice Rajnesh Oswal

State Of J&K vs Rajesh Kumar on 20 April, 2023

Law Point: In order to convict person for commission of offence under section 306, RPC Prosecution must prove that deceased committed suicide and accused abetted commission of same

JUDGEMENT

1. This appeal has been preferred against the judgment of acquittal dated 31.05.2012 recorded by the learned Additional Sessions Judge, Jammu (hereinafter to be referred as ‘the trial court’) whereby the respondent has been acquitted of the charges for commission of offences under sections 306 and 498-A RPC.

2. The judgment has been impugned on the ground that the learned trial court has not rightly appreciated the evidence and has acquitted the respondent erroneously.

3. Mr. Pawan Dev Singh, learned Dy.AG appearing for the appellant vehemently argued that the learned trial court has not appreciated the evidence in its right perspective and brother, sister and sister in law of the deceased have clearly proved the prosecution case.

4. Percontra, Ms. Radha Sharma, learned legal aid counsel appearing for the respondent vehemently argued that the learned trial court has rightly passed the judgment as the prosecution has miserably failed to prove the case and further all the independent witnesses examined by the prosecution have not supported the prosecution.

5. Heard and perused the record.

6. The brief facts relevant for the disposal of this appeal are that on 03.09.2002, Sandiya W/o Rajesh Kumar, respondent herein R/o Talli Morh, Jammu was admitted in unconscious condition in Government Medical College, Jammu as she had consumed some poisonous substance. She died in the hospital and on receipt of the information by the Police, inquest proceedings were initiated and the statements of the witnesses were recorded under section 175 Cr.P.C. After completion of the inquest proceedings, FIR bearing No. 118/2002 dated 20.09.2002 was registered against the respondent and his mother at Police Station Bakshi Nagar. After the conclusion of the investigation, the charge-sheet for commission of offences under sections 306 and 498-A RPC was laid against the respondent and his mother on 16.11.2002, which was assigned to learned Municipal Magistrate Jammu. The charge-sheet was committed to learned Sessions Court Jammu and finally the charge-sheet was transferred to the learned trial court on 22.11.2002. The allegation against the respondent is that his marriage was solemnized in the year, 1994 with Sandiya (deceased) and they were blessed with one daughter, who at the time of occurrence was 6-7 years of age. After three-four months of the marriage, the mother- in-law of the deceased, namely, Kunti Devi started harassing and taunting her that gold chain was not given at the time of marriage. Because of her harassment and beating at the hands of both the respondent and his mother, she many times came to her paternal home, but after counselling, she was sent back. On 03.09.2002, the brother of the deceased came back from his home, he came to know that both the accused and his mother had mercilessly beaten his sister. He immediately went there and his wife had already arrived there. He found that his sister was lying in an unconscious condition. He also came to know that his sister had consumed some poisonous substance and was vomiting. The vomit lying on the floor was washed by her mother-in-law Kunti Devi. He took his sister to the hospital, where she died.

7. The charge against the respondent was framed for commission of offences under sections 306 and 498-A RPC by the vide order dated 20.12.2002. The prosecution was directed to lead evidence and out of 17 witnesses cited by the prosecution, 15 witnesses were examined by the prosecution. One witness was examined by the respondent in defence.

8. As this Court is dealing with an appeal against the judgment of acquittal, so this Court is required to consider as to whether the opinion formed by the trial court while acquitting the respondent on the basis of evidence brought on record by the parties is possible and if it is so, then no interference is warranted notwithstanding the fact that on the basis of same set of evidence, the other opinion is also possible. In order to find out as to whether the opinion formed by the prosecution is possible or plausible, this Court would examine relevant portions of the evidence led by the parties.

9. PW No. 1 Satya Bhan Sharma (Brother of the deceased) stated that the deceased was his sister, who was married with the respondent in the year, 1994. The deceased was having a daughter of seven years of age. After six months of the marriage, the accused used to torture the deceased and demand dowry. He went to the parents of the accused and requested them to advise the accused not to torture her sister. They assured him that there would be no complaint in future. In the year, 1997, the accused had beaten the deceased and marks of the torture were apparent on her body. An application was given to Women Cell. However, the Women Cell settled the matter. After some time, he again heard that the accused had beaten the deceased. He objected the same before the brother of the accused and requested him to advise the accused not to beat the deceased. Brother of the accused however, assured that they would try to convince him. After that, the accused again beat the deceased in the shop and inside the house. The accused Kunti Devi also used to abuse deceased on dowry items. The deceased then returned to the house and remained there for eight days. He again went to the house of the accused and he told that accused No. 2 was responsible. He again met accused No. 2 and she told him to take back her sister as they did not want to keep her. The accused after that came to their house for taking back the deceased and he told the accused-Rajesh to give a written assurance, however, the accused did not give the same and told him to believe him. Thereafter, his sister came to his house and she requested him to send the deceased to their house and there would be no complaint. He sent the deceased back to her in-law’s house, however, again the accused maltreated her. On 03.09.2002 he received an information that Sandiya was not well and she had been killed. He went to the house of deceased. The accused were cleaning their compound and upon enquiry from accused Rajesh, he told him that Sandiya was not well and she took some medicine. The deceased was in the bathroom. When she came out, she saw that she was in a deteriorating condition. He told accused Rajesh that Sandiya was dying and what he had done with him. Accused told him that she had taken some medicine. He then talked to Sandiya, but she was not in a position to speak. Her mouth was injured. He asked the accused to take the deceased to hospital, accused refused. He himself took Sandiya to hospital. The accused also came there. The statement of Sandiya was not recorded in his presence. Sandiya died in the hospital at 4 in the evening. Shakuntla Devi, who is his sister- in- law had already reached to the house of deceased Sandiya. His statement was recorded by the Police on 20.09.2002 (ExtPW-SB). During cross examination, he stated that he had three brothers and three sisters. His elder brother was residing at Tirthi. His elder sister Chanchala, second sister Kamini are settled in their respective homes. His elder sister gave the statement in the case. His other brothers and sisters had no knowledge about the same and he had gone to the house of his elder brother and sister to narrate about the treatment meted to Sandiya. However, they did not pay any attention and did not make any statement to the Police. His statement was not recorded by the police as Police used to say that he had no knowledge about the occurrence. Sandiya complained against the accused before him many times. His elder brother was working in PHE department and his second brother is a pujari. On 04.09.2002, he informed the Police but Police did not record his statement and they used to say that his statement would be recorded later. On the day of occurrence, he reached to his house at 3. He received a telephone call from his sister-in-law that Sandiya was unconscious. Kulbushan is the elder brother of Rajesh. He does not know the name of other brothers. Chanchala is sister of Rajesh who was married and living separately. On 03.09.2002 he went to Sandiya’s house and she did not tell him anything but she was trying to say something and was pointing with signs. He did not narrate the same to any resident of Mohalla that Sandiya was unconscious. The daughter of deceased was residing with elder brother of the accused but at that time the accused was under arrest.

10. PW-2 Tripta Devi stated that the deceased was her sister-in-law, who was married to Rajesh Kumar ten years ago. Up to two-three months of the marriage, the relations between them were normal and after that they used to quarrel. The accused No. 1 used to beat the deceased. The accused used to beat deceased at the instigation of accused No. 2. The deceased used to come to her house and complain against the accused. She used to weep because of the beating by the accused. The accused used to come to their house occasionally with an excuse and on that assurance, the deceased used to be sent to his house. Two and half years back, the deceased came to their house and stayed there for 15 days, as the accused had beaten her. Then again accused No. 1 came to their house for taking the deceased back and they told him to give in writing then only the deceased would be sent back. The accused assured that he would not beat her. Thereafter, when the sister of accused came, the deceased was sent back. On 03.09.2002, the deceased was on fast and accused No. 1 administered beatings to her and she left the house and the accused alongwith his mother dragged her inside house and closed the gate so that she could not leave her in laws’ house. Thereafter, the deceased phoned her sister-in-law that accused was beating her, so she should come there. She had no personal knowledge about the same. Her sister-in-law phoned her husband (witness’s husband) to go to the in laws house of deceased. When she and her sister- in-law (jethani) went to her in laws house, the deceased had taken some poisonous substance. She did not know whether deceased had taken the poisonous substance on her own or someone had administered her the same. When they reached there, the deceased was unconscious and was profusely vomiting. The deceased did not talk as she was unconscious and her husband and her sister-in-law took the deceased to hospital. The accused/respondent used to say that she was alright and he restrained them from taking her to the hospital. Her husband and sister- in-law had come to her house to inform them about the same. She went to the hospital along with the deceased but the deceased was unconscious in the hospital and she died at 2:30. During cross- examination, she stated that the accused and the deceased used to come to their house occasionally. At the time of performing last rites of the deceased, they had gone to her house and last rites were performed jointly. On the day of occurrence at 11 AM, she came to know that Sandiya was admitted in hospital. Whatever she has stated above, she has no personal knowledge of the same and she has heard the same. She did not give any statement to Police on that day that accused used to torture Sandiya. Till kriya, she did not go to Police Station. After kriya, she, her husband, brother-in-law and sister-in-law after deliberations made statements to Police against the accused and thereafter the Police took action. She told the Police that when they used to visit in law’s house of the deceased, the deceased was living there under threats but the same was not recorded by the Police in her statement under section 161 Cr.P.C.

11. PW-4 Shakuntla Devi stated that the deceased was her sister-in-law. After the marriage, the accused used to torture and abuse Sandiya and demand dowry. The dowry was given as per the capacity. The deceased used to come to her house and narrate the whole story of maltreatment. They tried to advise the accused but accused Rajesh used to abuse the deceased. The accused never permitted the deceased to come to her house and whenever the deceased came to her house, the accused accompanied her. The accused used to beat her and accused No. 2 instigated him. A report was lodged at Women Cell. The accused admitted their guilt before Police and assured that in future the deceased would be treated rightly, however, accused again maltreated her. After that, sister-in-law of the accused phoned them that accused were beating the deceased and they should come there. She went there. The deceased was unconscious and was vomiting profusely. She phoned her brother-in-law and they inquired about the ailment of Sandiya and her deteriorating condition. The mother of the accused replied that something wrong had happened to her and she be taken to her house. They told her to take Sandiya to hospital. However, accused told her that she would be all right at the house and not at a hospital. She and her devar (brother-in-law) carried Sandiya to hospital in an Auto. Accused also came to hospital. Sandiya was unconscious and was not in a position to speak anything. In the hospital, doctor asked her name and she only told the doctor about her name and became unconscious and died at 4 in the morning. During cross-examination, she stated that Sandiya had three brothers. One brother is a baba, second is Satya Bhan and the third is her husband- Chander Bhan Sharma. Her statement was recorded but her husband’s statement was not recorded by the Police. Chanchala Kumari did not come to hospital because she had no information and subsequently stated that she had no information of carrying of the deceased to the hospital. The in-laws of the deceased performed her last rites. Her husband, her devar and Chanchala Devi were also present at the time performance of her last rites. Police came to their house and recorded the statement of Chanchala Devi and her statement. After the marriage, the accused used to taunt the deceased over a gold chain. In her statement recorded by the Police, she had stated that the accused was advised not to maltreat the deceased but Rajesh Kumar used to abuse and threaten them. This statement has not been recorded by the Police. It was not mentioned in her statement under section 161 CrPC that accused No. 2 used to incite accused No. 1 and accused No. 1 used to beat the deceased. In her statement under section 161 Cr.P.C, it was also not found that bhabhi of the accused phoned them that accused were beating Sandiya.

12. PW-4 Chanchala Devi stated that the deceased was her sister and she was married with accused No. 1 nine years ago and a girl child was born to the deceased. The accused used to demand dowry from the deceased and physically and mentally torture her. The physical and mental torture led to the death of her sister. They requested the accused not to torture the deceased as the dowry as per their capacity had been given to them. She requested the accused that if they did not want to keep her sister, divorce her, but they refused. A report was lodged at Women Cell against the accused, where the accused accepted their mistake. On 03.09.2002, the accused had beaten the deceased. She had gone to perform pooja and when she returned at 1.30 PM, elder sister-in- law of the accused phoned her sister-in-law-Shakuntla to come there as the accused were beating the deceased. She told her sister-in-law to go to the house of deceased and also informed her younger brother. Her sister-in-law gave information to her brother-in-law and her sister-in-law rushed to the house of the deceased along with her brother (brother of the witness). She could not go to the hospital. During the cross examination, she stated that the father of the accused was residing with his elder son. The daughter of the accused was also residing with her grandfather. She used to visit the house of accused once in six months and accused did not like visit to their house. The accused was not in good terms with her. The accused did not like her other relatives.

13. PW-5 Bal Krishan stated that in the month of September, 2002, he returned from performing his duties at 2 PM and found that the accused and deceased were quarrelling. He requested the accused not to quarrel. He returned to his shop after having his lunch. He came back to his house at 8/9 PM in the evening. He heard that the deceased had been admitted in the hospital. Next day, the deceased died. He had heard that the deceased had consumed poison as a result of which, she died. He was not present during the performance of the last rites of the deceased. During cross examination, he stated that he never visited the residence of the accused after the day of occurrence. He visited the house of the accused only at the time of marriage. He went to the hospital to see the deceased. He did not state before Police that accused used to beat the deceased. He never visited Police Station regarding the case. He had no knowledge as to why the accused and the deceased used to quarrel occasionally. He never interfered in their family matters and also he did not know the reasons for taking poison by the deceased.

14. PW-6 Vijay Sharma (neighbour of the accused) did not support the prosecution and despite cross-examination, no incriminating material has been extracted from his testimony.

15. PW-7 Tanmeet Singh, PW-13 Sanjay Gupta and PW-14 Vijay Gupta have not supported the prosecution and despite cross-examination, no incriminating material could be extracted from their testimonies.

16. PW-8 Shashi Paul stated that the deceased was known to him. The accused was resident of his mohalla. He visited the house of the accused. He never saw the accused quarrelling with the deceased. He never heard about the dispute between the accused and the deceased. He had gone to Udhampur and when he returned at 10 PM in the evening, he heard that wife of the accused was admitted in the hospital. Next day, he went to hospital but before he reached hospital, the deceased had already died. He did not enquire about the cause of death of deceased from anyone. He expressed ignorance as to how the deceased died. He proved the contents of the seizure memo, receipt of the dead body and seizure of under garments (ExtPW SP1 and ExtPW SP2). During cross-examination, he stated that last rites of the deceased were performed by the family members of the deceased. In last rites, family members of the accused were also there. After the death of the deceased, he used to visit the house of deceased continuously for ten to twelve days. In-laws of the accused used to come there daily. The parental side of the deceased never complained against the accused about any physical or mental torture to the deceased.

17. PW-9 Kulbushan Sharma stated that the accused were his real brother and mother respectively. The deceased was his sister-in-law. The deceased died in the year, 2002. He went to the hospital at the time of death. He proved the receipt of the dead body. He proved the custody memo of the dead body. He proved the seizure memo of the trouser and shirt as well. He expressed ignorance about the cause of death of the deceased, but the doctor told him that the deceased died due to consumption of poisonous substance. The accused never tortured the deceased and the accused and the deceased were having good relationship. During cross-examination, he stated that the last rites of the deceased were performed by the parents of the deceased with her in laws jointly. No one from the paternal side of the deceased had complained against the accused about the torture of the deceased. The family members of the deceased remained with them for 10 to 15 days.

18. PW-10 Muzaffar Hussain Shah stated that on 04.09.2002 a report was received from Medical College that one Sandhya had consumed some poisonous substance. ASI Omkar Singh was deputed there. When he returned, he told that doctors had declared that Sandiya was not fit to make the statement. In the morning, a message was received that the deceased had died. He proved the seizure memo prepared at Police Post (ExtPW- MH) and he signed the same.

19. PW-12 Shakoor Hussain stated that in the year, 2002, he was posted as Investigating Officer in Police Post, Sarwal. On 04.09.2002, he received a report No. 30 about the suspicious death of deceased Sandiya Devi for proceeding under section 174 CrPC. He went to Police Station and seized the corpse of deceased for conducting post-mortem. He took the custody of the dead body of the deceased. After the post-mortem of the deceased, the dead body was handed over to legal representatives of the deceased. He admitted the receipt of the dead body and also the contents of the seizure memo of the clothes. He recorded the statement of the complainant. As per his investigation conducted under section 174 CrPC, offences under sections 306 and 498-A RPC were proved against the accused and further investigation was conducted by Kamal Sangra, IO. During cross examination, he stated that proceedings under section 174 Cr.P.C. were conducted at Police Post. Sanction was not taken from DM in this behalf. After completing the proceedings under section 174 Cr.P.C, report was not submitted to District Magistrate. On 04.09.2002, he investigated Satya Bhan and recorded his statement on 20.09.2002. The last rites of deceased were performed on 04.09.2002. It has not come in his investigation that who took the deceased to the hospital. However, the brother and sister- in- law of the deceased were at hospital and the deceased was already admitted in the hospital.

20. PW-15 Sanjay Bhat stated that on 04.09.2002 he was posted as Medical Officer, GMC Jammu. He conducted the post-mortem of the deceased. The dead body was identified by Kulbushan and Satya Bhan. The details of the post-mortem have already been given in the certificate attached with the file. The cause of death was reserved for want of chemical analysis report. The FSL report was neither shown to him nor thereafter his opinion was sought. The certificate bears his signature (ExtPW-SB). During cross examination, he stated that the injuries mentioned in the certificate could be possible due to fall and by way of slip. The alleged cause of death is based on the alleged history by the attendants as well as from the medical report of the hospital for which the patient was treated. He was again re-examined by the prosecution and he stated that in his opinion, after going through the findings of the post mortem and FSL report, the cause of death was due to Malathion. During cross examination, he stated that as per post-mortem, the deceased was treated for aluminium phosphide in the hospital.

21. PW-16 Kamal Sangra stated that he investigated the matter. After registration of FIR for commission of offences under sections 306 and 498- A RPC, he commenced the investigation. He proved the site plan, receipt and seizure memo which are placed on record. During cross-examination, he stated that statement of Satya Bhan and Shashi Paul were recorded under section 161 Cr.P.C. on 20.09.2002. He denied that the locals stated before him that no quarrel was going on between the accused and the deceased. It has also come in his investigation, that locals used to visit in laws house for 13 days along with paternal relatives of the deceased.

22. DW Jash Pal Singh stated that he was resident of the same mohalla has that of the accused. He deposed about the transaction between Bal Krishan and Rajesh Kumar (respondent). He stated that Bal Krishan did not use to talk to the accused and also never used to visit his house. During cross examination, he stated that Bal Krishan used to take stationery items from the shop of the accused. His family member also used to come to his shop. There was balance of four months with the accused. The accused brought a book that contained the accounts and there was outstanding amount. Bal Krishan had to pay the accused but he had refused to make the payment of the outstanding amount to the accused.

23. The accused were charged for commission of offences under sections 306 and 498-A RPC. Accused No.1 has already died. In order to convict a person for commission of offence under section 306 RPC, the prosecution must prove that the deceased committed suicide and that accused abetted the commission of the same. The evidence brought on record reveals that there are two sets of witnesses. PW Tripta Devi, PW Satya Bhan, PW Chanchala Devi and PW Shakuntla Devi are the relatives of the deceased whereas the other witnesses except official witnesses are residents of the same mohallah. None of the independent witnesses has deposed anything incriminating against the accused. So far as Bal Krishan is concerned, his statement too is of not much significance particularly in view of the fact that in the month of September, he found that the accused and the deceased were quarrelling and he requested them not to quarrel. At the same time during cross-examination, he stated that he only visited the house of the accused at the time of marriage and he never stated before the police about the beating of the deceased by the accused. His statement does not prove that the accused instigated the deceased to commit suicide. If the statement of this witness is read as a whole, the said witness is not reliable and no reliance can be placed upon his statement.

24. So far as PW Satya Bhan is concerned, as per prosecution story, PW Satya Bhan went to the house of the deceased on 03.09.2002 and his wife Tripta was already there. When Satya Bhan was examined in the court, he stated that his sister- in-law Skhuntla Devi had already reached to the house of the deceased. Both the two versions are material contradictions, which cannot be ignored. PW Shakuntla Devi stated that bhabhi of the accused phoned them that the accused was beating Sandiya. She went there and found that Sandiya was unconscious. She phoned her brother-in-law Satya Bhan Sharma who came on spot and thereafter, she and her devar Satya Bhan carried Sandiya to the hospital. PW Satya Bhan has stated that he himself took Sandiya to Hospital. He further stated that deceased was unconscious and was not able to speak whereas PW Shakuntla Devi has stated that the deceased on arrival at the hospital, told her name to the doctor and thereafter, she became unconscious. PW Chanchala Devi never went to the house of the accused on the day of occurrence. PW Chanchala Devi has specifically stated that she neither went to the hospital nor to the house of the deceased on the day of occurrence. PW Tripta Devi, wife of the complainant has admitted that the statement made by her with regard to the occurrence on 03.09.2002, was on the basis of hearsay and she was having no personal knowledge. Though the prosecution has been able to establish that the deceased died an unnatural death i.e. due to consumption of poisonous substance but the evidence with regard to the abetting of the commission of suicide by the deceased is lacking. The elder sister-in-law of the accused, who as per the witness PW Shakuntala Devi, phoned them has not been examined. What happened on 03.09.2002 that prompted the deceased to consume poisonous substance remains an unsolved mystery. It needs to be noted that the deceased died on 04.09.2002 and the relatives of the deceased on the paternal side participated in all the last rites ceremonies for 10-12 days and further the statement made by PW Tripta Devi that after due deliberations, they made statements to the Police against the accused and thereafter Police took action against the accused, raises a serious doubt about the prosecution story. The related prosecution witnesses examined by the prosecution have levelled general allegations with regard to the harassment without any specific reference to the instances of maltreatment meted to the deceased. Though the prosecution projected the story of demand of dowry as a motive for causing harassment to the deceased but the prosecution has miserably failed to prove the same. The evidence led by the prosecution may raise suspicion against the accused but suspicion however strong may be, cannot replace the proof. The independent witnesses, who are the residents of the same Mohalla as that of the accused have not supported the prosecution case and have rather stated that the relations between the accused and the deceased were good.

25. I have examined the judgment passed by the learned trial court and the learned trial court while acquitting the accused, has taken note of the various inconsistencies and infirmities in the prosecution case.

26. In view of all what has been discussed above, it cannot be said that the judgment passed by the learned trial court is perverse being contrary to the evidence brought on record, as such, the present appeal has no merit and is dismissed.

27. Record of the trial court be sent back forthwith.

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