Vijay Singh vs State Of U.P.
2019 Latest Caselaw 4528 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 80
 
Case :- CRIMINAL APPEAL No. - 341 of 2019
 
Appellant :- Vijay Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Anadi Krishna Narayana,Neeharika Sinha Narayana
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pradeep Kumar Srivastava,J.

1. At the very outset, the learned counsel for the accused-appellant has submitted that instead of arguing the bail application, he will argue the appeal on merit to which the learned AGA has agreed.

2. Heard Shri Anadi Krishna Narayana, learned counsel for the appellant, Shri L.D. Rajbhar and Shri Sunil Singh, learned AGA for the State and perused the record.

3. The prosecution has come up with the case that an FIR was lodged by one Lala @ Anil, that his sister has been killed by her husband Vijay Singh and his family members. On account of demand of dowry, the accused persons were regularly harassing the deceased and when they could not get the required dowry, they killed her and they tried to show it to be a case of suicidal death. After investigation, the charge-sheet was submitted and the accused was tried for the offence under section 306 IPC.

4. The prosecution examined as many as 7 witnesses in support. PW-1 Jai Deep Singh, (neighbour) has proved Inquest Report Ext. Ka-1, PW-2 J.P. Pandey, (Tahsildar) has proved Sample Seal Ext. Ka-2, Challan Memo Ext. Ka-3, Photo dead body Ext. Ka-4, Letter to RI Ext. Ka-5 and Letter to CMO Ext. Ka-6, PW-3 Durga Prasad Singh, (Retd. SI) has proved Charge-Sheet Ext. Ka-7, PW-4 (Retd. DSP) Daya Shankar Singh has proved Site-Plan Ext. Ka- 8, PW-5 Dr. Karan Singh has proved post-mortem report Ext. Ka-9, PW-6 SI Ramesh Kumar has proved Chick FIR Ext. Ka-10, GD Ext. Ka-11 and certificate regarding GD Ext. Ka-12. PW-7 Anil @ Lala (complainant/ informant has been examined as fact witness who has proved Ext. Ka-13.

5. In his statement under section 313 of the Code of Criminal Procedure, the accused-appellant denied the statement given by the witnesses and stated that he has been falsely implicated. He however did not give any evidence in defence.

6. The learned trial court after scrutinizing evidence on record, convicted the accused-appellant for the offence under section 306 IPC.

7. Aggrieved by the impugned judgement, the accused-appellant has filed this appeal challenging the said judgement on the ground that the same is against law and facts and without any evidence on record. The fact witness examined by the prosecution turned hostile and did not support prosecution case. Only on the basis of presumption, the accused has been held guilty. Therefore, the impugned judgement is not sustainable under law and is liable to be set aside and the accused-appellant is entitled to be acquitted.

8. Therefore, the only question which needs to be answered is whether there was any evidence on record on the basis of which the accused should be held guilty for the offence under section 306 IPC.

9. Section 306 incorporates the offence of abetment of suicide and the main ingredients of the offence is the suicidal death and abetment thereof. The suicide is an intentional killing of oneself. Section113-A of the Evidence Act provides presumption as to abetment of suicide by a married woman as below:

"Abetment of suicide by a married woman: When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation- For the purpose of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860)."

10. Explanation to section 498-A IPC defines cruelty caused on wife by husband or his relatives as follows:

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

11. The proof of cruel treatment or harassment of wife by husband or his relative to force her to fulfil demand of dowry is a necessary condition to invoke the presumption under section 113-A of the Evidence Act. In Pinakin Mahipatray Rawal Vs State of Gujarat, 2014 (84) ACC 348 (SC), it has been held that a presumption u/s 113-A, Evidence Act as to offence of abetment of suicide u/s 306 IPC can be drawn when it is established that the person has committed suicide and the suicide was abetted by the accused. Where woman committed suicide within 7 years of her marriage and her husband or his near relative subjected her to cruelty in term of Section 498-A of IPC, the Court may presume that such suicide was abetted by the husband or such person. In this case, there is no role of 113-A of the Evidence Act as, admittedly, marriage of the deceased with the accused took place much before the required period of 7 years and almost after 18 years from the date of her death.

12. As many as seven witnesses were examined in this case before the trial court. PW-2 J.P. Pandey has prepared inquest report. PW-3 Durga Prasad Singh Retd. SI has investigated and submitted the charge-sheet. PW-4 Retd. DSP Daya Shankar Singh had also investigated the case and prepared the site-map. PW-5 Dr. Karan Singh deposed before the court that he conducted the post-mortem of deceased and the cause of death was found to be asphyxia. PW-6 SI Ramesh Kumar has proved GD and chik FIR. Thus, all these five witnesses are formal in nature and their statement could not be material for the determination of guilt for the offence of abetment of suicide.

13. PW-1 Jai Deep Singh is the neighbour of accused and is a witness of inquest report, he has stated that the dead body was in the room which was locked from the inside and the door were broken and the deceased was found hanging in a hook fixed with ceiling. In the cross-examination, he has stated that the accused did not take wine. Before death or earlier, he did not quarrel with his wife. The witness has disowned the statement given to IO. Thus, even though this witness was not declared hostile, he has not supported the prosecution story. It is pertinent to mention that the accused was charge-sheeted on the basis of statement of PW-1 who had stated before the IO that the accused used to harass the deceased out of drunkenness and a day before the date of incident, he did so and thereafter, the deceased committed suicide. It is also important to note that the statement of PW-1 was totally different from FIR version and it also creates doubt on Prosecution version.

14. PW-7 Anil @ Lala is complainant in the case who lodged the FIR and he is witness of fact who has been examined by the prosecution. He has stated in his examination-in-chief that he is just literate. He is brother of the deceased Kamalia alias Kalpana who was married with the accused 25-26 years before and they lived in Banda city and other family members of the accused lived in their village. After two years of her marriage, she got Tuberculosis for which she was provided treatment by her husband. Whenever she came to her house (parents house), she used to tell about her ailment. She also used to tell that she is now fed up with the life because of her ailment and she feels that she should not live further and commit suicide. Seven to eight years before from today, deceased committed suicide and he was informed by accused Vijay. He also informed the police. PW-7 and other family members participated in the funeral of the deceased. At the time of incident she was mother of two sons and two daughters. She committed suicide because of being fed up by her ailment, she never told any thing to her family regarding dowry demand and harassment by her husband and relatives. He has stated that after 7 days from the date of her death, a neighbour of the accused informed that SHO has called him. He went there. An application was already prepared which was type written by that neighbour and he said that the paper has to be given to the SP after signing it. He knew nothing what was written in it. PW-7 has identified his signature on the written report which is Ext. Ka-13. The witness was declared hostile. He was cross-examined by prosecution, but nothing came in support of prosecution. Thus, neither in his examination-in-chief nor in cross-examination he has stated any thing by which the prosecution case may be supported. Moreover, the FIR has been lodged on the ground of dowry demand and dowry harassment whereas the charge-sheet has been filed on the ground of harassment by accused out of drunkenness and non of the has been proved by prosecution. Therefore, the benefit must go to the accused.

15. On the point of appreciation of the evidence of hostile witness, it needs to be mentioned that there may be various reasons for hostility and while appreciating the evidentiary value of a hostile witness, the trial courts should not be mechanical and should consider the evidence in the light of factual matrix in each case. In case the witness has turned hostile during cross-examination, the statement in examination-in-chief may be taken in support of other reliable and trustworthy evidence available on record. It should be always kept in mind that right of cross-examination is available to the accused as part of his right to fair trial and unless there is evidence of threat, fear or pressure or the like to procure hostility, the trial courts should be very cautious in placing reliance on it, otherwise, the valuable right of the accused of cross-examination and fair trial will become futile and nugatory.

16. The principle of law as laid down by different judgements of the Supreme Court that the testimony of hostile witnesses shall not be completely discarded and the part of the statement which supports the prosecution version can always be taken into consideration cannot be disputed, but there was no occasion for the learned trial court to invoke or refer the judgements on the point as no support was available to the prosecution in the testimony of PW-7. The way it has been applied in the facts and circumstances of this case, that was totally uncalled for and unwarranted. It has been held in Ram Swaroop v. State of Rajasthan, AIR 2004 SC 2243; 2005 SCC (Cri) 61, that the credibility of a hostile witness cannot be discarded altogether. But this puts the court on guard and cautions the court against acceptance of such evidence without satisfactory corroboration. In the instant case, there was no evidence on record.

17. The learned trial court made following observations in the impugned judgement :

"Complainant sister was married to accused in the year 1990/92 and was mother of four kids. The youngest was approximately 2 years and the eldest child was of 14 years. Deceased was the wife of accused and died inside the house of accused. In such situation a great burden lies on the accused to explain the cause of her death even in absence of any strong evidence against him. The circumstances are creating a burden of proof on him to explain the situation under which she committed suicide."

18. Thereafter, learned trial court invoked section 106 of the Evidence Act and shifted the burden and because the accused-appellant was unable to give any explanation for the death of the deceased, by making presumption, he was convicted by the learned trial court for the offence under section 306 IPC. From the above discussion, it is clear that PW-1 did not support the prosecution case in his examination-in-chief and turned hostile. No other fact witness was examined. It appears that the learned trial court with the support of Section 106 of Indian Evidence Act, has made adverse inference against accused-appellant and has given finding that said section requires accused-appellant to give explanation as the incident had taken place in the house of accused himself, and because he did not give any explanation, therefore, he is guilty of the offence under section 306 IPC.

19. To my mind, this appears to be unique approach adopted by the learned trial court as the only fact witness examined by the prosecution did not support the prosecution version and was declared hostile. Section 106 of Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 106 of the Evidence Act reads as follows:

"Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

20. Section 106 is applied to burden of proof of facts especially within knowledge of accused which is impossible for the prosecution to prove. But, it does not shift the initial burden of proving guilt which always lies on prosecution. It has been held in Vikramjit Singh alias Vicky vs State of Punjab, 2007 (1) ACR 904 (SC) that section 106 of the Evidence Act does not relieve prosecution from the responsibility to prove its case beyond all reasonable doubt. In the case in hand, the learned trial court wrongly shifted the whole burden on the accused in absence of any evidence against him.

21. The learned trial court appears to have relied upon the settled proposition of law that the testimony of the hostile witness cannot be rejected totally as his evidence is not washed off from the record and the parties can take support of such evidence to the extent it is favourable to them. But, it does not apply to the facts of present case as there was no support to the prosecution in the statement of PW-7 and he narrated a very different story in his examination-in-chief in contradiction with the prosecution version and was declared hostile. PW-1, the only witness on the basis of whose statement, IO submitted charge-sheet, has rendered no support to prosecution case. The learned trial court referred more than a dozen judgements of the supreme court and after quoting some passage of one judgement and some of other, some on hostile witness and some on 106 of the Evidence Act, and fitting them to suit the hypothesis evolved by the trial court itself, beyond the prosecution version and beyond any evidence on record, and proclaiming that the husband is under responsibility to take care of his wife, presumed that the accused was regularly torturing and harassing his wife and she had no option except to commit suicide. This court is constrained to observe that the referred judgements were misunderstood and wrongly applied by the learned trial court and the finding of guilt is based on no evidence which cannot be justified on the basis of the referred judgements.

22. It appears that the learned trial court took the support of section 106 Evidence Act and shifted the burden of proof on the accused appellant. Section 106 of the Evidence Act speaks that the facts which are specially within the knowledge, that needs to be proved by the person, it does not shift the initial burden of establishing the guilt beyond shadow of any doubt. The unique aspect of the case is that the death has occurred after 18 years of marriage and the learned trial court had himself found it to be suicidal death. Therefore, it was necessary to give finding that the deceased was in any way abetted by the accused-appellant to commit suicide. There is no evidence as such on record.

23. In Ghulam Mustafa vs State of Uttarakhand, AIR 2015 SC 3101, the Court held that a casual remark or something said in a routine way or in usual conversation should not be construed or misunderstood to mean 'abetment.' A conviction on mere allegation of harassment without any positive action in proximity to the time of occurrence on the part of accused that led a person to commit suicide is not sustainable under section 306 IPC. Again, in Gurucharan vs State of Punjab, AIR 2017 SC 74, it has been held that to constitute the offence under section 306 IPC, there should be a live link between abetment and suicide and the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. So far as the grievance of dowry demand and consequential harassment is concerned, it should not be general in nature and there should be some specific incident and should have provocative capability to drive the deceased to such distressed state, mental and physical that she could elect to end her life. In this case, no abetment to commit suicide appears to have been established against accused in view of aforesaid judgements of the supreme court.

24. In view of above discussions, I find that the finding of the learned trial court is based on no evidence and therefore, perverse and illegal and the impugned judgement is not sustainable under law.

25. Hence, the appeal is allowed. The impugned judgement and order dated 14.12.2018 passed by Additional Sessions Judge/Fast Track Court-II, Banda in Sessions Trial No. 27 of 2011 (State of U.P. Vs. Vijay Singh), arising out of Case Crime No. 925 of 2010, P.S. Kotwali Nagar, District Banda is set aside and the accused-appellant Vijay Singh is acquitted from the said charge under section 306 IPC.

26. Office is directed to transmit the lower court record along with copy of this judgment to the learned court below for information and necessary compliance.

Order Date :- 15.05.2019

Bhanu

(Hon'ble Pradeep Kumar Srivastava, J.)