Sudhakar Pathak vs State Of U.P.
2019 Latest Caselaw 5203 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 80							Reserved
 

 
Case :- CRIMINAL APPEAL No. - 2120 of 2018
 

 
Appellant :- Sudhakar Pathak
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ashutosh Upadhyay,Ajay Kumar Vashistha,Satya Pratap Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pradeep Kumar Srivastava,J.

1. Heard learned counsel for the appellant and learned AGA for the State. Perused the record.

2. This criminal appeal has been filed against the judgment dated 08.12.2017 passed by learned Additional Sessions Judge/F.T.C. Chandausi, District Moradabad in Sessions Trial No. 706 of 2012 (State Vs. Sudhakar Pathak), arising out of Case Crime No. 60 of 2011, under Section 306 IPC, P.S. Chandausi, District Moradabad ( now Sambhal) by which, learned trial court has convicted the accused-appellant for the offence under section 306 IPC and sentenced him for ten years rigorous imprisonment and fine of Rs.1,00,000/- and in default, three years additional imprisonment.

3. The prosecution version is that the informant by giving a written report in the police station Chandausi, District Moradabad (now Sambhal) lodged an FIR stating that his elder sister Rajni Sharma was married in the year 1995 with accused Sudhakar Pathak, R/O Village-Navavpura, P.S. Faijganj Behta, District Budaun. Since 2002, accused Sudhakar Pathak was living with his sister and children in a house Mohalla Hanuman Nagar Gadhi which was purchased by him. There are four sons of his sister, eldest one is studying in class IX. The accused Sudhakar Pathak is habitual of drinking wine and for the last five years whatever he earns, he spends all in his drinking. Due to this, his relations with other relatives are not good. Because of financial crisis, problem in providing food to the children and harassment by her husband, his sister had gone mentally ill. On 01.3.2011, accused came heavily drunk and when the deceased complained him that on festival of 'Shivrattri' there is no arrangement of food for the children, he at about 10.30 pm started abusing and harassing her and consequent to that she committed suicide by burning herself. The people of locality any how throwing water controlled the fire and informed the informant on phone. He reached to the house of his sister and saw the dead body of his sister lying on the bed. After investigation, the Investigating Officer submitted charge sheet. The charge was framed against accused under section 306 IPC and he was tried for that charge.

5. The prosecution examined eight witnesses. PW-1 Vishwajeet Sharma has given statement about the incident and has proved the written report Ext. Ka-1. PW-2 Avinesh Kumar Sharma, PW-3 Satya Prakash Sharma son of Devki Nandan and PW-4 Satya Prakash Sharma son of Shiv Shankar Sharma, have been examined as fact witnesses. PW-5 Malkhan Singh (Head Constable) has proved chick FIR, Ext. Ka-3 and GD Report Ext. Ka-4. PW-6Dr. Ram Veer Singh has proved the postmortem report Ext. Ka-5. PW-7 IO Dinesh Chand has proved the site map Ext. Ka-7 and charge sheet Ext. Ka-6. PW- 8 SI Vijai Singh Rana has proved the inquest report Ext. Ka-2, recovery memo of plastic can Ext. Ka-8, copy of GD Ext. Ka-9, letter to RI, Ext. Ka-10, Police Form No. 13 Ext. Ka-11, letter to CMO Ext. Ka-12, Photo dead body Ext. Ka-13, sample seal Ext. Ka-14. The statement of accused Sudhakar Pathak was recorded under section 313 Cr.P.C. in which he has stated that witnesses have given evidence against him on account of enmity. He has also examined DW-1 Krishna in his support.

6. After hearing the learned counsel for the parties, the learned trial court convicted and sentenced the accused Sudhakar Pathak by the impugned judgement.

7. Aggrieved by the impugned judgment, accused-appellant has filed this appeal and has challenged the same on the ground that same is based on no evidence, he was falsely implicated and the judgment of the trial court is based on surmises and conjectures. The evidence was misinterpreted and the prosecution was not able to prove the charge leveled against him, therefore, accused-appellant is entitled for acquittal.

8. PW-1Vishwajeet Sharma (informant) has stated before the court that his sister Rajni Sharma was married in the year 1995 and both she and accused Sudhakar Pathak were living in Hanuman Nagar Gadhi since 2002 along with their children. The accused was in bad habit of taking wine due to which there was always financial crisis in the family. In drunken state, the accused used to beat the deceased and harassed her and because of that she had become mentally sick and derailed. On the date of incident 1.3.2011, the accused appellant came drunk and when the deceased complained him that on festival of 'Shivrattri' there is no arrangement of food for children, he abused and harassed her. Consequently, she burnt herself and died. The people of locality any how controlled over the fire and on their information, he reached at the place of occurrence and lodged the FIR in police station. During cross-examination, PW-1 Vishwajeet Sharma stated that on the saying of people of locality, he lodged the FIR and he has no personal knowledge of the incident. Prior to this incident, he or his sister never made any complaint to the police or any authority. He has stated that his sister was mentally sick.

9. PW-2 Avinesh Kumar Sharma has also given similar statement that accused-appellant in drunken state used to beat the deceased and harass her. On the date of incident, Vishwajeet was informed by the people of locality that she has committed suicide by burning herself. They went at the place of occurrence and saw that she was died by burn in her room. Inquest report was prepared and he was witness of inquest report Ext. Ka-2. PW-2 Avinesh Kumar Sharma has also stated in his cross-examination that he was informed by Vishwajeet Sharma about the incident stating that Rajni Sharma committed suicide by burning herself.

10. PW-3 Satya Prakash Sharma has stated that on 1.3.2011 at about 10.00 pm he received the phone of Vishwajeet Sharma that his sister Rajni Sharma has been killed by accused Sudhakar Pathak by burning her. He also went at the place where dead body of deceased was lying and before him inquest report was prepared and he also signed on it. Though he is a witness of inquest report, in his cross-examination, he has stated that the accused was in the habit of drinking and whenever deceased used to complain about the fooding of children, he used to beat her in his drunkenness.

11. PW-4 Satya Prakash Sharma also reiterated the same thing and has stated that due to bad habit of drinking, accused-appellant had no earning. He used to beat her on coming to house in drunken condition. Due to this, she became mentally sick and derailed and on being harassed by him, Rajni Sharma committed suicide by pouring kerosene oil and burning herself. Inquest report was prepared by the police before him and he also signed on it.

12. The other witnesses are formal witnesses. PW-6 Dr. Ram Veer Singh has stated that deceased died because of burning. PW-7 IO Dinesh Chand has stated that accused was absconding and after attachment he could be arrested.

13. Following facts which comes out from the prosecution evidence which needs to be and which ought to have been taken into consideration by the learned trial court while giving finding on the guilt:

I. The incident occurred on 1.3.2011 at 10.30 PM and FIR was lodged on the same day at 11.45 PM on the basis of written report of PW-1 who is brother of the deceased. The FIR and the statement of PW-1 shows that both deceased and accused were married in 1995. In the year 2002, the accused purchased a house and both started living together. They have four children and the eldest one was studying in IX class at the time of incident. DW-1 Krishna Narain Pathak is second son as he has stated that he was in school and was informed by his elder brother that mother has died by burning herself. He has further said that at that time he was living in hostel and used to come on every four months. He has said that at that time only the youngest brother was living with parents. At the time of statement (recorded in court on 17.11.2017), he was 19 years in age which means that at the time of incident he must have been of about 13 years in age. His deceased mother was a non earning wife. Therefore, natural inference will be that the expenses of study and hostel expenses must have been borne by the accused-appellant. It also shows that he was earning at least that much that he could afford his study by keeping him in hostel and that he was not spending all his earning on drinking. Moreover, he after seven years of marriage, purchased a house where he, deceased and children were living and it also shows that his financial position was not so bad.

II. The fact that by their wedlock four children born to them shows that their married life was not so bad and it was normal.

III. It was no where said in FIR that the accused ever did mar-peet with deceased. Only allegations of abusing and harassing has been stated in drunken state. This has not been said to IO even. In last five years, he has started heavy drinking and whatever he earned, spent the same on drinking. The fact of beating has been improved in the examination-in-chief and even on the date of incident, only abuse and harassment has been stated by him in his statement and written report.

IV. None of the prosecution witness has stated that they ever saw the accused abusing, harassing and doing mar-peet with his wife.

V. There is no evidence to show that on the date of incident, the accused was present and abused, caused harassment and committed mar-peet with deceased, as none of the witnesses examined by prosecution were present there and they were informed by some person about her death by burning. This 'some person' has not seen the light of the day as none of the witnesses has named who was he nor he has been examined by the prosecution.

VI. Three witnesses PW-2, PW-3 and PW-4 are only witnesses of inquest report which is clear from the charge-sheet in which they have been shown as such. They are witness in inquest report Ext. Ka-2 and the same may be supported by there statement given to IO. Clearly, this improvement has been made subsequently.

VII. It is clear that no witness of the neighbourhood have been examined who could state before the court that any quarrel took place between the accused and deceased on the date of incident before she committed suicide. Even his presence in the house on that day is also not proved as he was admittedly not in house from the last ten days. He was not found there after the incident. The FIR version that after the incident accused ran away from there shouting, has not been proved by any witness who might have seen him shouting and running away from the place. On the contrary, DW-1 Krishna has stated that on the date of incident accused was in his village and deceased was in Chandousi. On this aspect, DW-1 has not been put any question by prosecution in the cross-examination.

VIII. PW-1 and PW-4 have admitted that the deceased was mentally sick and dis-balanced since last few years and therefore, her committing suicide might have been outcome of that mental sickness. It has been stated by DW-1 Krishna that out of mental illness, his mother committed suicide. He has also stated that she was under treatment for her mental illness and out of that she committed suicide.

14. Unfortunately, all the above material facts and circumstances necessary for the determination of guilt have been ignored and have not been considered by the learned trial court and merely on hypothetical grounds, the conclusion on guilt has been arrived at.

15. In Nachhatter Singh vs State of Punjab, (2011) II Cri. LJ 2292 (SC), the court remarked that in case of abetment of suicide by married woman, the cruelty and harassment meted out must be of nature to drive a person of common prudence to commit suicide. Every quarrel between husband and wife which results in suicide cannot be taken to abetment by husband. For abetment, standard of reasonable or practical woman as compared to headstrong and over sensitive one is to be applied. In Mangat Ram vs State of Haryana, AIR 2014 SC 1782, it was laid down that a woman can commit suicide for various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. Therefore, reasoning that no prudent woman will commit suicide unless abetted by someone is perverse and not sustainable under law. 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.

16. Though, Gurucharan (supra) was a case based on dowry harassment, the last four lines mentioned in bold letters are still relevant and they require specific incident, and not general allegations, having provocative capability to drive the deceased to such distressed state, mental and physical that she could elect to end her life. Routine behaviour, remark or quarrel by husband in matrimonial life in a drunken state cannot be taken to be sufficient to the extent to constitute abetment unless something extra-ordinary, more than normal wear and tear of married life, is shown on or just before the date of incident. In this instant case where admittedly the deceased was suffering from mental illness or disease, the burden of proving close link, in proximity of time between abetment and suicide, heavily lies on prosecution and the prosecution has utterly failed in discharging this burden.

17. This is no principle of law that wherever wife commits suicide, the husband will bear the responsibility and will be held liable. No doubt that in such cases, if the prosecution has discharged its initial burden of proof of guilt and has proved the relationship between abetment by husband and suicide by wife, the accused may be required in view of section 106 of the Evidence Act to explain the circumstances in which the wife committed suicide. But when mental illness of the wife is admitted much before in time from the date of death and the husband is habitual drunkard since marriage and in the habit of causing harassment in drunken state and both have passed more than 15 years of marriage as such giving birth to four children, general allegation of harassment cannot be sufficient to hold him guilty for the offence of abetment of suicide, particularly when the presence of husband in the house around the incident is not established.

18. On the basis of above discussion, I find that by convicting accused-appellant, the learned trial Court has committed illegality and the finding of conviction on the basis of no reliable evidence on record is apparently perverse. Consequently, the impugned judgment is illegal and is not sustainable under law and is liable to be set aside and consequently the accused-appellant is entitled to be acquitted from the said charges.

19. Accordingly, the appeal is allowed. The impugned judgment and sentence dated 8.12.17, in ST No. 706/2012 U/S 306 IPC, Crime no. 60/2011, passed by Addl. Sessions Judge/ FTC Court No. 1, Moradabad is set aside and consequently the accused-appellant is acquitted from the said charges.

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

Order Date :- 30.05.2019

RCT/-

(Hon'ble Pradeep Kumar Srivastava,J.)