State Of U.P. vs Irfan
2018 Latest Caselaw 3605 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 41
 
Case :- GOVERNMENT APPEAL No. - 777 of 2018
 
Appellant :- State Of U.P.
 
Respondent :- Irfan
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Harsh Kumar,J.

1. This Government Appeal has been filed with application for leave to file appeal under section 378(3) Cr.P.C. against the impugned judgement and order dated 30.07.2018 passed by Additional Sessions Judge, Court No.-7, Saharanpur in Sessions Trial No. 294 of 2015 (State Vs. Irfan), arising out of Case Crime No. 243 of 2014, under section 306 I.P.C., P.S. Gangoh, District Saharanpur acquitting accused-respondent from the charges under section 306 I.P.C.

2. The brief facts relating to the case are that Asif lodged a F.I.R. on 16.05.2014 at Case Crime No. 243 of 2014 stating therein that his sister Smt. Afroz was married to accused Irfan about 11-12 years back and was blessed with four children and they were living in a rented accommodation in the township of Gangoh; that there was some dispute between husband and wife since last two months as Irfan had developed illicit relationship with one Sazida due to which he used to commit marpeet with his sister and she left for her Mayaka in village Jahanpura, P.S. Kairana, District Shamli; that since last 15 days Smt. Afroz was living with Irfan along with her children following a mutual compromise and in the evening of 15.05.2014 again there arose some dispute and marpeet between the husband and wife following which Irfan and Sazida have somehow caused death of Smt. Afroz and after death in order to make the evidence of offence disappear, they took away her dead body to Irfan's native village Alampur; that some one from village Alampur informed first informant about the incident so he is lodging F.I.R. for necessary action against Irfan and Sazida.

3. Heard Shri L.D. Rajbhar, learned AGA for the State and perused the record.

4. The learned AGA submitted that impugned judgement & order is wrong on facts of law; that the learned trial court failed to properly appreciate the evidence on record and decided the case on surmises and conjectures; that it was proved from the evidence on record that due to illicit relationship with Sazida accused-respondent used to torture his wife; that the learned trial court has wrongly observed material contradictions in the statements of prosecution witnesses; that the learned trial court has given undue weightage to the defence evidence and acted wrongly in disbelieving the prosecution case; that the prosecution case was fully proved from the evidence on record and it was also proved that the accused-respondent caused abetment to the deceased for committing suicide; that the impugned order is liable to be set aside and after leave to appeal, the state has every hope of success in appeal.

5. Upon hearing learned AGA and perusal of record, I find that prosecution has come with specific case in F.I.R. that marriage of accused-respondent was solemnized with deceased about 11-12 years back and they were blessed with 4 daughters and were living in rented accommodation in the township of Gangoh. It is also contended that accused-respondent had developed illicit relationship with Sazida since last two months due to which there was some dispute and accused respondent used to commit marpeet because of which deceased had come to her Mayaka in village Jahanpura, P.S. Kairana, District Shamli and after mutual settlement, since last 15 days she was living with respondent in above rented accommodation. It is also stated that on 15.05.2014 after quarrel and marpeet between husband and wife, accused-respondent and Sazida caused death of his wife whereafter they took her body to village Alampur for disposal and some one from Alampur informed the first informant about the incident. The evidence on record shows that first informant has stated that prior to the incident in question no complaint was ever made regarding the alleged illicit relationship between the respondent and Sazida or marpeet.

6. The prosecution produced as many as 9 witnesses to prove the charges viz Yaqoob as P.W.-1, Asif as P.W.-2, Dr. Anil Kumar as P.W.-3, Constable Harendra Singh as P.W.-4, Constable Pravesh Kumar as P.W.-5, Gayur as P.W.-6, Inspector Shailendra Kumar as P.W.-7, Sub Inspector Ajay Kumar Gupta as P.W.-8 and Dr. Anwar Ansari as P.W.-9 and closed.

7. Before discussing evidence on record, I find that legal position with regard to abetment and offence under section 306 I.P.C. may be considered. Firstly the provisions of section 107 I.P.C. relating to abetment are necessary to be reproduced, which are as under:-

Section 107 "Abetment of a thing.--A person abets the doing of a thing, who

(First)-Instigates any person to do that thing; or

(Secondly) Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

(Thirdly) Intentionally aids, by any act or illegal omission, the doing of that thing."

8. In the case of Swami Prahalad Das Vs. State of M.P., (1995) Supplementary 3 SCC 438 Sushila Bai respondent a married women was allegedly had two paramours, one was deceased & the other was appellant. It was alleged that there was sexual jealousy between the two. The deceased was a married man and Sushila Bai had completely bewitched him but her heart was with appellant and on 13.06.1992 during quarrel on morning tea accused-appellant allegedly remarked for the deceased to go and die. Thereafter the deceased left the home and committed suicide. The Apex Court held that suicide was not direct result of the words uttered by the appellant and quashed the proceedings against accused-appellant.

9. In the case of Mahendra Singh and another Vs. State of M.P. (1995) Supp 3 SCC 731, the Apex Court held that dying declaration of deceased wife alone is not sufficient to bring the acts of appellant-husband, mother-in-law and sister-in-law of the deceased within section 306 I.P.C. while the accused were not charged under section 498 I.P.C.

10. Considering the issue as to "whether husband abetted suicide of wife instigating her to do so" the 3 Judges Bench of the Apex Court in the case of Ramesh Kumar vs. State of Chattisgarh (2001) 9 SCC 618, considered the provisions of section 107 and 306 I.P.C. and held that upon appreciation of evidence, there must be a reasonable certainty to incite the consequence, so as to hold a person responsible for instigation" and even if accused is found guilty under section 498A, he should not necessarily be held guilty under section 306 I.P.C. on the basis of same evidence.

11. P.W.-1 Yaqoob who is also witness of inquest report has stated that he heard that Smt. Afroz has committed suicide. He further stated that deceased disliked joint family and insisted for separate living because of which since last 6-7 years Irfan taken her to township of Gangoh where they were living separately in rented accommodation and she committed suicide there at Gangoh. He further stated that after postmortem of body of deceased, persons belonging to her Mayaka taken her body to their village for cremation where Irfan and his family members also participated.

12. P.W.-2 the first informant Asif has stated that due to illicit relationship between Irfan and Sazida, they caused her death but prior to the incident in question he did not make any complaint either about alleged illicit relationship between his brother-in-law Irfan and Sazida or regarding the alleged marpeet committed by him with his sister and he may neither provide any date, time or period of alleged marpeet nor copy of compromise allegedly arrived at between them. He has denied the suggestions that accused-respondent had got admitted his sister, the deceased in hospital for treatment and himself informed him at mobile no. 9756404366.

13. P.W.-3 is a formal witness who has proved the post-mortem report of the deceased while P.W.-4 and P.W.-5 Constable Harendra Singh & Constable Pravesh Kumar are also formal witnesses, who have proved the inquest report and chik F.I.R. etc. P.W.-6 Gayur is witness of fact & brother of first informant as well as deceased, who has repeated the same version as was given by his brother P.W.-2. P.W.-7 is investigating Officer and P.W.-8 is Sub-inspector who have proved the documentary evidence of prosecution and P.W.-9 Dr. Anwar Ansari has stated that the deceased was brought to him in CHC Gangoh and after a period of around 20 minutes, due to her serious condition, she was referred to Saharanpur. He has also stated that there was no external injury on the body of Smt. Afroz.

14. It is pertinent to mention that P.W.-2 and P.W.-6 both the brothers of deceased have stated to have received a call from village Alampur regarding death of their sister Smt. Afroz but none of them has disclosed the name of the person or mobile number by which they received call, as against which the accused-respondent claims to have himself informed his in laws on their mobile number regarding committal of suicide by his wife.

15. P.W.-7 is the Investigating Officer who has proved various documents of prosecution has stated that deceased was admitted to hospital by accused-respondent Irfan at CHC Gangoh Hospital from where she was referred to Saharanpur. He has also stated that during investigation he was reported that the deceased confined herself inside the bath room and when despite repeated calls she did not respond, she was taken out after breaking the door and Irfan taken her to CHC hospital Gangoh byरेहड़ी (manually operated 3 or 4 wheeler -Thela) and he had seen the broken kunda of bathroom door.

16. P.W.-8 S.I. Ajay Kumar Gupta has proved various papers as well as inquest report and P.W.-9 Dr. Anwar Ansari has stated that he was Medical Officer at Community Health Centre, Gangoh on 15.05.2014 and at about 9:15 p.m. Smt. Afroz was brought before him by her husband Irfan who had consumed some poisonous substance and was in serious condition, so after providing her first aid, she was referred to District Saharanpur vide reference sheet Ext.-A-13.

17. Upon postmortem of body of Smt. Afroz, the cause of death could not be ascertained & viscera was preserved & sent for chemical analysis to Forensic Lab. The Forensic examination report of viscera of deceased on record states that organo choloro insecticide poison was found in parts of her viscera.

18. Apart from denial of prosecution case in his statement under section 313 Cr.P.C. the accused-respondent has also produced three witnesses in defence viz Muskan the daughter of accused and deceased as D.W.-1, Smt. Sazida as D.W.-2 and Ayub as D.W.-3.

19. D.W.-1 Muskan the child witness has stated that she was 10 years old at the time of death of her mother and on the fateful day about 4 ½ years back at 7:30 a.m. when her father was ready for leaving to his shop, her Mama Asif (the first informant) arrived. She further stated that her father Irfan (accused) who had lent Rs. 50,000/- to her Mama, demanded money from him upon which Mama Asif stated that he does not have money and will pay it, as and when he will be able. She has stated that then her father left for the shop and a quarrel did take place between her Mama Asif and mother Smt. Afroz (first informant and the deceased). She has further stated that after quarrel with Mama Asif her mother locked herself inside the bath room and when she did not respond for a considerable time, her Mama, Sazida and others broken the door of bathroom and taken her mother out of bath room and also informed her father, who came back from shop & taken her mother to Gangoh Hospital and then to Saharanpur. She has also stated that her father did not admonish or threaten her mother and after death the body of her mother was taken to the place of her Mama, Nani for cremation.

20. D.W.-2 Sazida is the same lady with whom the accused-respondent allegedly developed illicit relationship and who allegedly helped the first informant Asif in taking her sister out of bathroom. She has supported & corroborated the statement given by D.W.-1 and has stated that deceased was a short tempered lady and she was tenant in another portion of the same house.

21. D.W.-3 Ayub has stated that he is landlord of the house in which Irfan and Sazida are tenants of different portions. He has corroborated the statements given by D.W.-1 and D.W.-2 and has also stated that deceased was a short tempered lady and several times told before him that her brother has defamed and put her down by borrowing money from her husband and not returning the same.

22. The viscera report of deceased states that Organo Choloro Insecticide poison was found in parts of viscera which shows her death by consuming poison. Now it is to be seen as to whether the poison was administered to her by accused-respondent as mentioned in F.I.R. or the accused-respondent caused abetment or instigated her to commit suicide by consuming poison.

23. For holding an accused guilty for the offence under section 306 I.P.C., there must be some cogent evidence on record regarding abetment caused by him to the deceased for committing suicide. It is not the case of prosecution that before death of Smt. Afroz any quarrel did take place between husband and wife in which accused-respondent uttered some provocative words, so as to provoke her to commit suicide.

24. The F.I.R. clearly states that murder of deceased was committed by Irfan and Sazida, on account of illicit relationship between them. The perusal of evidence on record shows that there is no iota of evidence with regard to alleged illicit relationship between the two and there can be no presumption of any such relationship. It is pertinent to mention that the accused dared to produce co-tenant Sazida who was an eye witness of the quarrel which took place between the deceased and the first informant in morning before the incident when accused-respondent left for his shop. She has also stated that after leaving of accused, the deceased locked herself inside bathroom, and was taken out by her, the first informant Asif and daughter of deceased after breaking bathroom door. The prosecution could not dare to suggest her that she was not at the spot & did not participate in taking deceased out of bathroom. D.W.-2 Sazida is the lady with whom, accused had allegedly developed illicit relationship but prosecution could not dare to ask her any question or put any suggestion about her alleged illicit relationship with accused Irfan. It is also pertinent to mention that the Ayub/landlord of the accommodation in question D.W.-3, Muskan daughter of deceased D.W.-1 have also been produced by accused, but neither any question nor any suggestion was put to any of them, regarding alleged illicit relationship between accused & Sazida.

25. In view of above material on record there is nothing to suggest that either there was strained relationship between husband and wife i.e. accused and deceased due to alleged illicit relationship of accused with Sazida or any incident of marpeet did take place between them or she was ever ousted from her matrimonial house or was taken back under any alleged settlement. Similarly there is no evidence on record to indicate that she was either abeted or compelled to commit suicide or was instigated by accused-respondent for the same in any manner whatsoever.

26. To be precise the perusal of record shows that there is no iota of evidence to support the contention that the accused-respondent (i) instigated or abeted the deceased for committing suicide, (ii) engaged with any one in any conspiracy for doing or omitting any thing or (iii) intentionally aided by any act or omission for ascertaining suicide by her wife the deceased. In absence of any such evidence there can be no reason to hold that accused-respondent caused any abetment to the deceased for committing suicide.

27. In view of the material contradictions in prosecution evidence, I find that the reasoning given by the learned trial court is cogent and there is no manifest error of fact or law or any perversity, which may require interference by this Court. It is not the case of applicant that the learned trial court failed to consider any evidence, which was there on record.

28. Perusal of record shows that the impugned judgment rendered by the trial court is absolutely flawless since trial court has analyzed the evidence in great detail and appreciated them in correct perspective. The trial court has ascribed cogent reasons for not placing reliance on the untruthful testimony of complainant and her witnesses. In such a fact situation, High Court is not advised under law to interfere with the judgment of acquittal.

29. It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified".

30. In view of discussions made above, I have come to the conclusion that the learned AGA for the State has failed to show any legal infirmity, incorrectness or perversity in the findings given in the impugned judgement and order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application for leave to file appeal has no force and is liable to be dismissed.

31. The application for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.

Order Date :- 13.11.2018

Bhanu