Allahabad High Court
Pramod Kumar vs State Of U.P. on 18 April, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:21863
Reserved Judgment
Reserved on :21.10.2024
Delivered On: 18.04.2025
Court No. - 12
Case :- CRIMINAL APPEAL No. - 147 of 1998
Appellant :- Pramod Kumar
Respondent :- State of U.P.
Counsel for Appellant :- Shishir Pradhan
Counsel for Respondent :- Govt. Advocate
With
Case :- CRIMINAL APPEAL No. - 122 of 1998
Appellant :- Rameshwar Prasad
Respondent :- State of U.P.
Counsel for Appellant :- S.Pradhan
Counsel for Respondent :- Govt. Advocate
Hon'ble Saurabh Lavania,J.
1. Heard Sri Shishir Pradhan, learned counsel for the appellant(s) and Sri Ajay Srivastava, learned AGA for the State of U.P. and perused the record.
2. The appeal(s), indicated above, have been filed under Section 374 CrPC challenging the judgment dated 19.02.1998 passed by the IIIrd Additional Sessions Judge, Raebareli (in short "trial Court") in S.T. No. 456 of 1995.
3. Appellant namely Pramod Kumar (husband of the deceased) in Criminal Appeal No.147 of 1998, has been sentenced to undergo rigorous imprisonment for 10 years for the offence under Section 306 I.P.C. and three years rigorous imprisonment for the offence under Section 498-A I.P.C.
4. Appellants namely Rameshwar Prasad Mishra and Prema Devi (in Criminal Appeal No. 122 of 1998) (father-in-law and mother-in-law respectively, of the deceased) have been sentenced to undergo simple imprisonment of seven years for the offence under Section 306 I.P.C. and simple imprisonment for two years for the offence under Section 498-A I.P.C. The trial Court has provided that the sentence would run concurrently.
5. The basis of the case of the prosecution i.e. an FIR (Ext. Ka-1), registered as Case Crime No.124 of 1995, under Section 408-A, 304-B IPC and Section 3/4 of D.P. Act, P.S.-Salon, District-Raebareli, lodged on 04.09.1995 at about 05:00 hours and the same are extracted herein under :-
"(i) udy rgjhj fgUnh oknh
lsok esa dksroky lkgc Fkkuk सलोन jk;cjsyh egksn; fuosnu gS fd izkFkhZ Jh lqjsUnz ukjk;.k feJ S/o pUnz'ks[kj feJ निवासी uw:n~nhuiqj Fkkuk lyksu dk jgus okyk gWWwA izkFkhZ us viuh yM+dh f'ko dqekjh dh lknh o"kZ 1990 esa xzke - iwjs jkYgh etjs uw:n~nhu में izeksn dqekj feJ ds lkFk की थी शादी ds ckn ls gh esjk nkekn izeksn dqekj o muds पिता jkes'oj izlkn rFkk izeksn dh मां eksVj lkbfdy dh ekax ngst esa djus yxs ge yksxks us eksVj lkbfdy nsus esa etcwjh tkfgj fd;k bl ij mijksDr yksx esjh yM+dh dks vk; fnu ijs'kku djus yxs esjh yM+dh bl ckr dks ge yksxksa ls dgrh Fkh vkt fnukad 4-9-95 dks xzke iwjs jkYgh ls ,d तेलिनle; djhc ,d cts fnu esa vkdj esjh yM+dh jktdqekjh ls crk;k dh rqEgkjh cfgu dh rfc;r dkQh [kjkc है इसपरeSa o esjh yM+dh jktdqekjh o esjh cgwW lq'khyk xzke jkYgh x, tkdj ns[kk fd f'kodqekjh dh gkyr dkQh [kjkc gS उससे iwNrkN dh rks f'ko dqekjh us crk;k fd eq>s izeksn o esjh सास o llqj us ngst esa eksVj lkbfdy u feyus ds dkj.k lHkh yksxks us feydj eq>s tgj ns fn;k gSA ftlds dkj.k esjh ;g gkyr gks x;h gS mlds ikl ,d IykfLVd dh 'kh'kh ftlesa ikmMj tSlk gSA esjs cgwW us mBk fy;k ftldks ysus ds fy, esjh yM+dh dh lkl us dkQh iz;kl fd;k ysfdu ge yksxks us bls ugh fn;k vkSj viuh yM+dh dks bykt gsrq ysdj ljdkjh vLirky lyksu आया जिसकीं e`R;q gks x;h gSa ngst esa eksVj lkbfdy dh ckr dks esjs गांव ds jkts'k izlkn feJ S/o Jh ftrsUnz ukjk;.k feJ o ist QVk yky JhokLro S/o मन्नी yky JhokLro vkfn yksx tkurs हैं lkjh ckr vius yM+ds ls fy[kok dj ns jgk gwW d`i;k कार्यवाही की जाए izkFkhZ lqjsUnz ukjk;u] lqjsUnz ukjk;.k feJk S/o pUnz चन्द्रशेखरfuoklh uw:n~nhu Fkkuk lyksu jk;cjsyh दिनांक 4.9.95 लेखक /keZjkt मिश्र S/o Jh lqjsUn ukjk;.k feJ fuoklh uw:n~nhuपुर
(ii) According to the FIR, the basis of judgment of conviction in issue dated 19.02.1998, the marriage between the deceased Shiv Kumari and Promod Kumar (Appellant in Criminal Appeal No.147 of 1998), son of Rameshwar Prasad Mishra and Smt. Prema Devi @ Premawati [(Appellant No(s). 1 and 2 in Criminal Appeal No. 122 of 1998] was solemnized in the year 1990 at Village-Pure Ralhi, Majre-Nurudeenpur, P.S.-Salon, District-Raebareli.
(iii) The FIR further indicates that on account of non-fulfillment of demand of motorcycle in dowry the deceased was subjected to cruelty by the appellants.
(iv) The FIR further indicates that 04.09.1995, the informant-Surendra Naraian Mishra (father of deceased) was informed by one Telin (तेलिन ), the resident of Village-Pure Ralhi, Majre-Nurudeenpur, P.S.-Salon, District-Raebareli (matrimonial home of deceased Shiv Kumari), at about 01:00 noon regarding condition of his daughter namely Shiv Kumari (deceased). Thereafter, the informant alongwith his daughter namely Raj Kumari and daughter-in-law namely Sushila Mishra, reached the matrimonial home of the deceased/Shiv Kumari situate at Village-Pure Ralhi, Majre- Nurudeenpur, P.S.-Salon, District-Raebareli, where they found that the deceased was seriously ill.
(v). The FIR also indicates that on being asked, the deceased Shiv Kumari informed the informant/Surendra Narain and others, who were present there, that on account of non- fulfillment of demand of dowry i.e. Motor Cycle, the appellants administered poison. The bottle of the poison present at the place of crime was taken into custody by the daughter-in-law of the informant.
6. The recovery memo (Ext. Ka-2), with regard to bottle of poison, was prepared.
7. According to inquest report (Ext. Ka-5) dated 04.09.1995, the cause of death was on account of consumption of poisonous substance.
8. Thereafter, the body of the deceased/Shiv Kumari was sent for postmortem on 05.09.1995. The postmortem report (Ext. Ka-3) on record indicates that to ascertain the cause of death Viscera was preserved. The FSL report dated 06.09.1995 (Ext. Ka-4) indicates that aluminum phosphate was found in the bottle so recovered from the place of incident.
9. The Investigating Officer (in short "I.O."), upon completion of investigation, submitted the charge sheet No.100 dated 10.10.1995 against the appellants.
10. The case, thereafter, was committed to the Session Court, where it was registered as Session Trial No. 456 of 1995 (State vs. Pramod Kumar and Others).
11. Before the trial Court, the charges were framed against the appellants on 07.02.1996 under Section 304-B, 498-A and Section 3/4 of D.P. Act. The charges were read-over to accused-appellants, who denied the same and requested for trial, and therefore, the trial ourt proceeded in the matter.
12. The prosecution to establish its case, examined (PW-1) Surendra Narain/informant (father of the deceased), (PW-2) Smt. Sushila Mishra (Bhabhi/sister-in-law of the deceased), (PW-3) Doctor K.M. Dixit, (PW-4) Vinod Kumar Sharma, Scientist of Forensic Science Laboratory, Lucknow, (PW-5) Parasnath Pal, Tehsildar, Tehsil-Salon, District - Rarebareli and Dinesh Kumar Kulshrestha, Deputy S.P. (Retd.) (PW-6).
13. The defence witness Smt. Kamla Devi (DW-1) was also examined before the trial Court.
14. According to informant/Surendra Narain (PW-1), witness of fact, the demand of motorcycle/dowry was of Promod Kumar and not of mother-in-law and father-in-law of deceased. The statement of PW-1 is extracted as under :-
"न्यायालय चतुर्थ अतिरिक्त जिला एवं सत्र न्यायाधीश रायबरेली
S.T -456/95
सरकार बनाम प्रमोद कुमार
U/S- 498A/304B
PS- सलोन
साक्षी- सुरेन्द्र नरायन S/O चन्द्रशेखर उम्र 60 वर्ष पेशा खेती निवासी ग्राम नूरूद्दीनपुर थाना सलोन जिला रायबरेली ने सशपथ ब्यान किया कि-
हाजिर अदालत मुल्जिमान प्रमोद कुमार व रामेश्वर प्रसाद को जानता व पहचानता हूं। श्रीमती प्रेमादेवी उर्फ प्रेमवती पत्नी रामेश्वर प्रसाद को भी जानता व पहचानता हूं।
शिवकुमारी (मृतका) हमारी लडकी थी। शिवकुमारी की शादी मैंने प्रमोद कुमार मुल्जिम के साथ की थी। मुल्जिमान पूरे राल्हो मैजा नूरूद्दीनपुर थाना सलोन जनपद रायबरेली में रहते है। घटना हुएे करीब एक साल से ज्यादा हुआ। घटना से करीब 3-4 साल पहले मेरी लडकी शिवकुमारी की शादी प्रमोद कुमार से हुई थी। रामेश्वर प्रसाद मेरी लडकी के ससुर लगते थे। प्रेमादेवी उर्फ प्रेमवती मेरी लडकी की सास है। शादी के बाद मेरी लडकी शिवकुमारी मेरे घर आती जाती थी। मेरी लडकी बतायी थी कि मेरे शौहर प्रमोद कुमार मोटर साईकिल मांगते हैं । मोटर साइकिल मांगने की बात केवल पति द्वारा किए जाने की बाबत ही बताती थी। अपने सास व ससुर द्वारा मांगने की बात नहीं बतायी थी। मोटर साईकिल दहेज में देने में मैं असमर्थ रहा। मोटर न दिये जाने पर मेरी लडकी बताती थी कि मुझे ससुराल के लोग तंग करते हैं ।
इस घटना की खबर मुझे मेरे गांव के एक तेलिन द्वारा गांव में ही मिली थी। वह तेलिन मेरे यहां गयी थी।
तेलिन द्वारा यह खबर मिली थी कि मेरी लडकी शिवकुमारी की तबियत बहुत खराब है। हम लोग अपनी लडकी शिवकुमारी को देखने उसकी ससुराल गये। शिवकुमारी से मेरी बहू सुशीला ने उसकी हालत के बारे में पूछा कि यह हालत तुम्हारी कैसे हो गयी। मेरी लडकी शिवकुमारी ने बताया था कि दवा कि जगह मुझे कोई प्वाइजन दे दिया गया है। मेरी हालत बिगडती चली जा रही है।
Continued on the application of prosecution
सुनकर तस्दीक किया
ह० अपठनीय
IV ASJ
2.1.97
साक्षी- सुरेन्द्र नरायन S/O चन्द्रशेखर उम्र 60 वर्ष पेशा खेती नूरूद्दीनपुर थाना सलोन जिला रायबरेली ने सशपथ ब्यान किया कि -
मेरी लडकी शिवकुमारी ने बताया था कि मेरी हालत बिगडती जा रही है। मुझे जहर दिया गया है। शिवकुमारी की चारपाई के नीच एक प्लास्टिक की शीशी पडी थी उसको मेरी बहू ने उठा लिया। मेरी लडकी की सास प्रेमावती ने वह शीशी मेरी बहू के हाथ से लेने की कोशिश की लेकिन मेरी बहू ने नहीं दिया। इसके बाद मैं अपनी लडकी को लेकर सलोन अस्पताल गया। अस्पताल के डाक्टर साहब ने मेरी लडकी को देखा और कहा कि यह मर चुकी है। गवाह को कागज संख्या 18क/2 दिखाया गया तो उसे देखकर कहा इस पर मेरे दस्तखत है मैंने इसको अपने लडके धर्मराज से लिखवा कर थाने में दिया था। इस पर प्रदर्श क -1 डाला गया। जो प्लास्टिक की शीशी जो मेरी बहू को मिली थी उसे मैंने थाने में दे दिया था। शीशी थाने में सील मोहर की गयी थी। दरोगा जी ने शीशी की लिखापढी की थी। गवाह को कागज संख्या 7 क दिखाई गयी तो कहा कि इस पर मेरे हस्ताक्षर है। इस पर प्रदर्श क-2 डाला गया। दहेज में मोटर साइकिल न देने के कारण मेरी लडकी को नहीं देकर प्रमोद कुमार सास व ससुर ने मार डाला। दहेज में मैं मोटर साइकिल स्थित ठीक न होने के कारण नहीं दे सका था। "
15. According to the statement of Smt. Sushila Mishra (PW-2), witness of fact, all the appellants were demanding motorcycle and on account of non fulfillment of the said demand the deceased was subjected to cruelty. The relevant part of statement of PW 2 is extracted herein below :-
"P.W.-2
29.3.97
न्यायालय चतुर्थ अपर सत्र न्यायाधीश रायबरेली
S.T -456/95
सरकार बनाम प्रमोद कुमार
U/S- 498A/304B IPC 3/4DP ACT
थाना- सलोन
नाम- श्रीमती सुशीला मिश्रा पति का नाम श्री बिन्देश्वरी प्रसाद मिश्रा उम्र -29 वर्ष पेशा गृहणी निवासी नुरूद्दीनपुर थाना सलोन जिला रायबरेली।
सशपथ बयान किया कि हाजिर अदालत मुल्जिम रामेश्वर प्रसाद को मैं जानती पहचानती हूं । ये हमारी नन्द शिवकुमारी (मृतिका) के ससुर है। मेरी नंद शिवकुमारी की शादी अभियुक्त प्रमोद कुमार के साथ हुई थी। मैं प्रमोद कुमार को जानती पहचानती हूं। शिवकुमारी की सास प्रेमादेवी को भी मैं जानती पहचानती हूं। शिवकुमारी के साथ आज से डेढ साल पहले घटना हुई थी । शिवकुमारी के पति सास ससुर मोटर साईकिल दहेज में लेने के लिये शिवकुमारी को प्रताडित करते थे । शिवकुमारी की शादी प्रमोद कुमार के साथ सन् 1990 में हुई थी शादी के बाद शिवकुमारी का गोना सन् 1993 में हुआ था। शादी के बाद शिवकुमारी ससुराल से मैके आती जाती थी। शिवकुमारी जब मैके आती थी तो हम लोगो को बताती थी कि उसके पती सास ससुर उससे कहते थे कि मोटर साईकिल अपने मां-बाप से मंगाकर दो। हम लोगो की आर्थिक स्थित मोटर साईकिल दहेज में देने की नहीं थी। इसलिये मोटर साईकिल नहीं दिया।
शिवकुमारी की ससुराल से एक तेलिन औरत आई थी जिसने मुझे मेरे सास ससुर बगैरह को बताया कि शिवकुमारी की तबियत खराब है आप सब लोग वहां चलिये। हम सास ससुर व मेरी बडी नन्द शिवकुमारी की ससुराल ग्राम पूरे राल्ली गये तो शिवकुमारी ने हम लोगो को बताया कि उसके सास ससुर व पति ने उसे जहर खिला दिया है। मोटर साईकिल की मांग न पूरी होने पर शिवकुमारी को जहर खिलाया गया था। शिवकुमारी जिस तख्त पर लेटी थी उसके नीचे हम लोगो को एक जहर की शीशी मिली थी उस जहर की शीशी को शिवकुमारी की सास ने मुझसे छीनना चाहा तो मैंने उस शीशी को अपने पास खडे अपने ससुर सुरेन्द्र नरायन को दे दिया। उस शीशी में टिकिया के रूप में जहर मौजूद था। हम लोग शिवकुमारी को उसकी ससुराल के दरवाजे से उठाकर सलोन प्राथमिक स्वास्थ केन्द्र ले जा रहे थे किन्तु शिवकुमारी की मृत्यु उसकी ससुराल के दरवाजे पर ही हो गई थी। शीशी को मेरे ससुर ने थाने में दे दिया था मैं भी अपने ससुर के साथ थाने में गई थी। प्रमोद कुमार मुल्जिम हाजिर अदालत है मैं उसे जानती हूं।"
16. As per statement of Dr. K.M. Dixit (PW 3), the deceased died on account of consumption of poisonous substance. Vinod Kumar Sharma , Scientist, Forensic Science Laboratory (FSL), Lucknow (PW-4), before the trial court proved the fact that in the bottle recovered from the place of crime, poisonous substance i.e. Aluminium Phosphate was found. Parasnath Pal, Tehsildar, Tehsil-Salon, District - Raebareli (PW-5) proved other documents. Dinesh Kumar Kulshrestha, Deputy S.P. (retired) (PW-6) also proved other documents on record.
17. Upon completion of evidence of prosecution, the questions were put to accused-appellants in terms of Section 313 Cr.P.C., wherein, they denied the allegations levelled against them. In relation to question No. 1, the accused-appellants stated that marriage between Pramod Kumar and deceased Shiv Kumari was solemnized in the year 1984 and the 'Gauna' was held in the year 1990.
18. In relation to question No. 14, the accused/appellants specifically stated that there was no demand of dowry nor the deceased was subjected to cruelty on account of demand of dowry.
19. The trial court, after hearing the learned counsel for the parties and taking note of evidence on record, passed the judgment of conviction, under appeal, dated 19.02.1998, whereby, convicted and sentenced the appellant, as indicated above.
20. The trial court, after considering the submissions advanced by the learned counsel for the parties and also the evidence on record including the statement of witnesses, found that the marriage between appellant/Pramod Kumar and deceased/Shiv Kumari was solemnized in the year 1990. For coming to the conclusion in this regard, the trial Court duly considered the statement of Smt. Kamla Devi (DW-1), which was recorded on 05.02.1998, according to which, the marriage between appellant/Pramod Kumar and deceased/Shiv Kumari was solemnized about 5-6 years back and also the medical prescriptions of deceased of the year 1990-1991.
21. In view of aforesaid, the trial Court came to the conclusion that the deceased expired within seven years of marriage.
22. In so far as the allegations to attract the offences as indicated under Section(s) 304-B and 498-A IPC are concerned, the trial court, taking note of the date of marriage and the date of death and also Section 113-A of Indian Evidence Act, 1872 (in short "Act of 1872") and established case of prosecution that the deceased/Shiv Kumari died on account of consumption of poisonous substance i.e. 'Aluminium Phosphate', convicted the appellants, as indicated above, vide judgment, under appeal, dated 19.02.1998. The relevant portion of the judgment and order, under appeal, dated 19.02.1998 is extracted hereunder:-
"19. यह स्पष्ट है कि अभियोजन पक्ष ने मृत्यु पूर्व श्रीपती शिव कुमारी की मृत्यु कारण सम्बन्धी घोषणा धारा 32 सा० अधि० के अतिरिक्त अन्य कोई स्पष्टीकरण साक्य इस आशय का प्रस्तुत नहीं किया है कि उपरोक्त अल्यूमीनियम फास्पाइड कीटनाशक दवा सल्फास विष शिवकुमारी की मृत्यु के पूर्व अभियुक्तगण द्वारा ही दिया गया अथवा उसने स्वयं अभियुक्तगण द्वारा उत्पीडित किए जाने के कारण खा लिया है। बचाव पक्ष द्वारा इस सम्बन्ध में कोई भी खण्डन के आशय से साक्ष्य प्रस्तुत नहीं किया गया है, अतः ऐसी स्थिति में केवल धारा 113 ए भा.सा. अधि. के अधीन अवधारणा का आधार लिया जा सकता है, जिसके लिए विचारण किया जाना है कि क्या मृत्यु के लीक पूर्व मृतका शिवकुमारी को अभियुक्तगण द्वारा उत्पीडित किया गया था अथया उससे निर्देयता का व्यवहार करते हुये उसे परेशान किया गया था। इस सम्बन्ध में धारा 32 भा.सा. अधि. के अधीन ग्रहण किए गए श्रीमती शिवकुमारी के मृत्यु पूर्व क्यान के अतिरिक्त पी.डब्लू. सुरेगा नरायन मिश्र एवं पी. डब्लू, 2 श्रीमती सुशीला मिश्रा ने यह स्पष्ट रूप से साबित किया है कि श्रीमती शिवकुमारी जब भी ससुराल से अपने मायके जाती थी तो बताती थी कि मोटर सायकिल की मांग पूरी न होने के कारण उसके पति प्रमोद कुमार, सास श्रीमती प्रेमाचेची उर्फ प्रेमावती तथा बसुर रामेबर उसे परेशान करते है। बचाव पक्ष के विद्वान अधिवक्ता का तर्क है कि उपरोक्त साक्षीगण पी. डब्लू 1 व पी.डब्लू. 2 ने स्पष्ट रूप से अपनी जिरह में स्वीकार किया है कि शिवकुमारी ने कभी भी उन्हें यह नहीं बताया है कि उनकी ससुराल बालों द्वारा अथवा उसके पति द्वारा उसे कभी मारा पीटा गया था। इस सम्बन्ध में अभियोजन पक्ष के विद्वान अधिवक्ता का तर्क है कि धारा 498 ए भा.दं.सं. में प्रयुक्त शब्द कुएल्टी (उत्पीडन) में उसके नीचे स्पष्टीकरण एव बी में स्पष्ट किया गया है, जिसमें यह स्पष्ट रूप से अभिभाषित किया गया है कि जानबूझकर किया गया ऐसा कोई कार्य या आचरण जिससे कि स्त्री आत्महत्या कर सके या कोई गम्भीर चोट या खतरा उसके जीवन को, हाथ पैर, स्वास्थ्य, मानसिक अथवा शारीरिक उत्पीडन हो सके, उत्पीड़न की श्रेणी में आता है, साथ ही स्पष्टीकरण "बी" में भी यह स्पष्ट किया गया है कि यदि किसी दशा में उपरोक्त परेशान करने का आचरण (harassment) इस आशय से किया गया है कि उसे दबाव दिया जाये कि अवैधानिक रूप से मांगी गई सम्पत्ति या मूल्यवान प्रतिभू वह अभियुक्तगण को प्रदान कराये या उसकी मांग को पूरी करने में असफल हो। अभियोजन पक्ष के कथन के सम्बन्ध में धारा 498 ए भा.दं.सं. प्रयुक्त शब्द उत्पीडन' की परिभाषा के परिशीलन से स्पष्ट है कि महिला की शारीरिक उत्पीडन का साक्ष्य होना आवश्यक नहीं है और उसे अभियुक्तगण द्वारा बातचीत, हाव-भाव व अन्य प्रकार से परेशान आचरण भी भी क कुएल्टी की श्रेणी में आता है। तदनुसार यह अवधारित किया जाता है कि अभियोजन पक्ष में शंका से परे यह सिद्ध किया है कि मृत्यू से तीक पूर्व मृतका शिवकुमारी का उसके पति प्रमोद कुमार, सास प्रेमादेवी उर्फ प्रेमायती तथा श्रसूर रामेश्वर अभियुक्तगण द्वारा उत्पीडन किया गया था और इस बात की पुष्टि उसके द्वारा धारा 32 भा. सा.अधि. के अधीन की गई मृत्यु पूर्व घोषणा से सिद्ध है।
20. उपरोक्त विष सम्बन्धी अवधारणा के सम्बन्ध में बचाव पक्ष के विद्वान अधिवक्ता के तर्क से यह स्पष्ट है कि शिवकुमारी की मृत्यु का हेतुक मोटर सायकिल मांगना दहेज की श्रेणी में न आने के कारण धारा 304 बी भा.द.सं. अपराध में शामिल नहीं होता है और ऐसी स्थिति में उपरोक्त अभियुक्तगण द्वारा श्रीमती शिवकुमारी को उत्पीडित करने का कृत्य तथा तसे जहर देने अथया लेने हेतु दुष्प्रेरित करने और ऐसी परिस्थितियां पैदा करने का कृत्य धारा 107 भा.द.सं. में परिभाषित दुष्प्रेरणा (अबेटमेंट) की श्रेणी में आता है, अतः अवधारित किया जाता है कि धारा 107 भा.द.सं के सापेक्ष उपरोक्त अपराधजनिक घटना के अधीन धारा 306 भादसे के अधीन श्रीमती शिवकुमारी को आत्महत्या हेतु दुभप्रेरित करने की घटना को सिद्ध करता है परन्तु इस परीक्षण में अभियुक्तगण के विरुद्ध सामान्य रूप से धारा 306 भादंस के अधीन कोई आरोप सुजित नहीं किया गया है, लेकिन धारा 306 पादस के अधीन अधिकतम सजा 10 वर्ष काराधास होने के कारण व धारा 304 बी भादंस के अधीन दिए जाने वाली अधिकतम सजा आजीवन कारावास व न्यूनतम वर्ष के सश्रम कारावास की सजा से कम होने के कारण तथा दोनो आरोपी की घटना से तथ्य सम्बन्धी घटक लगभग एक समान होने के कारण इस सम्बन्ध में धारा 306 भा.दं.सं. के अधीन अभियुगण के विरूद्ध औपचारिक रूप से आरोप सृजित न किए जाने से अभियुक्त के हितों को कोई हानि नहीं हुई है और उपरोक्त धारा 306 भा. द. से के अधीन अपराध की घटनाओं सम्बन्धी घटक को अभियोजन पक्ष द्वारा सिद्ध किया गया है तथा उसके सम्बन्ध में बधाय का समुचित अवसर अभियुक्तगण को प्रदान किया गया है। तदनुसार यह अवधारित किया जाता है कि अभियुऊगण द्वारा धारा 304 बी भा.दं.सं. के बजाये धारा 306 भा.दं.सं. के अधीन अपराध कारित किया जाना अभियोजन पक्ष द्वारा अनन्य रूप से शंका से परे सिद्ध किया गया है। तदनुसार धारा 306 भा.द.सं. के अधीन सभी अभियुक्तगण को दोषी करार दिया जाता है।
21. उपरोक्त तथ्य एवं विधि सम्बन्धी अवधारणा व निष्कर्ष से यह स्पष्ट है कि घटना से पूर्व अभियुक्तगण ने मृतका श्रीमती शिवकुमारी से मोटर सायकिल की अवैधानिक मांग पूरी करने हेतु बाध्य करने के लिए उत्पीडित किया था और उक्त मांग के पूरी होने में असफल होने के कारण उसे मानसिक रूप से उत्पीडित किया था तथा उक्त घटनाक्रम में मोटर सायकिल देने की मांग पूरी न होने की दशा में जहर लेने की स्थिति उत्पन्न कर उत्पीडित किया है। तदनुसार यह अवधारित किया जाता है कि अभियोजन पक्ष ने धारा 498ए भा.दं.सं. के अधीन अभियुक्तगण द्वारा अपराध कारित किए जाने के अपने कथन को अपनी साक्य द्वारा अनन्य रूप से शंका से परे सिद्ध किया है।
22. उपरोक्त विधि एवं तथ्यों के निष्कर्ष से यह स्पष्ट है कि धारा-2 दहेज निषेध अधि. 1961 के अधीन अभियोजन पक्ष द्वारा सिद्ध की गई मोटर सायकिल की मांग दहेज की श्रेणी में न आने के कारण, धारा- दहेज निषेध अधि, के अधीन अपराध कारित नहीं है तथा यह भी स्पष्ट है कि धारा-3 दहेज निषेध अधि के अधीन अपराध कारित किए जाने का कोई साख्य अभियोजन पक्ष द्वारा प्रस्तुत नहीं किया गया है। तदनुसार यह अवधारित किया जाता है कि अभियोजन पक्ष विधिमान्य रूप से अभियुक्तगण के विरुद्ध 3/4 दहेज निषेध अधि के अधीन अभियुक्तगण द्वारा अपराध अरित किए जाने के काम को पूर्णरूप से सिद्ध करने में असफल रहा है। तदनुसार यह अधारित किया जाता है कि अभियुक्तगण धारा 3/4 दहेज निषेध अधि के अधीन दोषयुक्त किए जाने योग्य है। उपरोक्तानुसार सभी अभियुकपण थापा 3/4 दहेज निषेध अधि. के अधीन दोषमुक्त किए जाते हैं तथा चारा 498ए व 306 भा.द.स. के अधीन दोषी करार दिए जाते हैं।"
23. In the aforesaid background of the case, the instant appeal(s) have been filed before this Court challenging the judgment and order dated 19.02.1998.
24. While impeaching the judgment, under appeal, dated 19.02.1998, Sri Shishir Pradhan, learned counsel for the appellants has submitted as under:-
(i) The trial Court in convicting the appellants under Section 306 IPC read with Section 107 IPC erred in law and fact both. It is for the reason that the prosecution measurably failed to establish/prove its case regarding demand of dowry and committing cruelty account non-fulfillment of demand of dowry.
(ii) There is no evidence on record so as to attract the offence as indicated under Section 306 IPC read with Section 107 IPC.
(iii) Despite there being a provision i.e. Section 113-A of the Act of 1872, in the cases of suicide, it is the duty of prosecution to establish/prove its case beyond doubt in terms of Section 306 IPC read with Section 107 IPC.
(iv) The death of deceased, as per the judgment of conviction, under appeal, dated 19.02.1998, is an unnatural death and as per the findings of the trial Court, the same was within seven years of date of marriage, as the marriage between appellant/Pramod Kumar and deceased/Shiv Kumari was solemnized in the year 1990, and the deceased undisputedly expired on 04.09.1995 and her cause of death is due to consumption of poisonous substance Le. Aluminum Phosphate, but the same was consumed by the deceased for the reasons best known to her and not administered by the appellants on account of non-fulfillment of demand of dowry i.e. demand of a motorcycle.
25. Sri Ajay Kumar Srivastava, learned AGA, on the contrary, supporting the judgment of conviction, under appeal, dated 19.02.1998 has submitted as under:-
(i) The prosecution proved its case so far as the cause of death of deceased is concerned, which was on account of consumption of poisonous substance i.e. Aluminum Phosphate and her death was within seven years of date of marriage has also been established/proved by the prosecution, as such, Section 113-A of the Act of 1872 would be attracted in the instant case.
(ii) The trial Court, after considering the statement(s) of witnesses of fact namely informant/Surendra Narain (PW-1), father of deceased, and Smt. Sushila Mishra (PW-2), sister-in-law of deceased, and also the statements of Dr. K.M. Dixit (PW-3) and Vinod Kumar Sharma, Scientist, FSL, Lucknow (PW-4) and taking note of Section 32 of the Act of 1872, passed the judgment of conviction, under appeal, dated 19.02.1998.
26. Considered the aforesaid and perused the record.
27. In order to coming to the conclusion this Court finds it appropriate to take note of some pronouncements of the Hon'ble Apex Court, which are as under :-
(a) In cases of Geeta Mehrotra Vs. State of U.P. reported in (2012) 10 SCC 741, Preeti Gupta Vs. State of Jharkhand, reported in (2010) 7SCC 667, the Hon'ble Apex Court observed that there should be specific and clear allegations against the relatives of the husband. There is an increasing tendency in the society to over implicate the near and dear relatives of the husband so as to pressurize the husband.
(b) In the case of Kans Raj v. State of Punjab, reported in (2000) 5 SCC 207, the Hon'ble Apex Court has held as under :
"In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that Respondents 3 to 5 were roped in the case only on the ground of being close relations of Respondent 2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
(c) In the case of Monju Roy v. State of W.B., (2015) 13 SCC 693 the Hon'ble Apex Court has held as under :-
8. While we do not find any ground to interfere with the view taken by the courts below that the deceased was subjected to harassment on account of non-fulfilment of dowry demand, we do find merit in the submission that possibility of naming all the family members by way of exaggeration is not ruled out. In Kans Raj [(2000) 5 SCC 207: 2000 SCC (Cri) 935], this Court observed: (SCC р. 215, para 5)
"5.... A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their overenthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
The court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in the absence of any specific role and material to support such role.
9. In Raja Lal Singh v. State of Jharkhand [(2007) 15 SCC 415 : (2010) 3 SCC (Cri) 539] it was observed: (SCC p. 419, para 14)
"14. No doubt, some of the witnesses e.g. PW 5 Dashrath Singh, who is the father of the deceased Gayatri, and PW 3 Santosh Kr. Singh, brother of the deceased, have stated that the deceased Gayatri told them that dowry was demanded by not only Raja Lal Singh, but also the appellants Pradip Singh and his wife Sanjana Devi, but we are of the opinion that it is possible that the names of Pradip Singh and Sanjana Devi have been introduced only to spread the net wide as often happens in cases like under Sections 498-A and 394 IPC, as has been observed in several decisions of this Court e.g. in Kamesh Panjiyar v. State of Bihar [(2005) 2 SCC 388 2005 SCC (Cri) 511], etc. Hence, we allow the appeal of Pradip Singh and Sanjana Devi and set aside the impugned judgments of the High Court and the trial court insofar as it relates to them and we direct that they be released forthwith unless required in connection with some other case."
* * * * * *
11. The court has to adopt a pragmatic view and when a girl dies an unnatural death, allegation of demand of dowry or harassment which follows cannot be weighed in golden scales. At the same time, omnibus allegation against all family members particularly against the brothers and sisters and other relatives do not stand on the same footing as husband and parents. In such case, apart from general allegation of demand of dowry, the court has to be satisfied that harassment was also caused by all the named members."
(d). In the case of Chandralekha & Ors. v. State of Rajasthan & Anr., reported in (2013) 14 SCC 374 following observations have been made :-
"8. We must, at the outset, state that the High Court's view on jurisdiction meets with our approval and we confirm the view However, after a careful perusal of the FIR and after taking into consideration the attendant circumstances, we are of the opinion that the FIR lodged by respondent 2 insofar as it relates to appellants 1, 2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9/7/2002 and respondent 2 left her matrimonial home on 15/2/2003 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. Six years after she left the house, the present FIR is lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this FIR is an abuse of process of law. In the interest of justice, therefore, the FIR deserves to be quashed insofar as it relates to appellants 1, 2 and 3."
(e) In the case of Rupali Devi v. State of U.P., reported in (2019) 5 SCC 384 the Hon'ble Apex Court has held as under:-
"14. "Cruelty" which is the crux of the offence under Section 498-A IPC is defined in Black's Law Dictionary to mean "the intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage (abuse, inhuman treatment, indignity)". Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill-treated are aspects that cannot be ignored while understanding the meaning of the expression "cruelty" appearing in Section 498-A of the Penal Code. The emotional distress or psychological effect on the wife, if not the physical injury, is bound to continue to traumatise the wife even after she leaves the matrimonial home and takes shelter at the parental home. Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress caused by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place."
(f) In the case of Naresh Kumar Vs. State of Haryana [Criminal Appeal No.1722 of 2010, arising out of Special Leave Petition (Criminal) No. 8873 of 2008], the Hon'ble Apex Court has observed as under :-
"10.We have looked into the evidence of PW-4 i.e., the brother of the deceased and also the evidence of PW-5 i.e., the father of the deceased. Both these witnesses have only stated that after the marriage, there was a demand of some money by the convict, as he wanted to start a ration shop. It appears from the evidence of both these witnesses that on account of such demand, the deceased used to remain tense.
11. What ultimately led the deceased to take such a drastic step of committing suicide is not clear. To put it in other words, the plain reading of the oral evidence of both these witnesses does not disclose any form of incessant cruelty or harassment on the part of the husband which would in ordinary circumstances drag the wife to commit suicide as if she was left with no other alternative. Mere demand of money from the wife or her parents for running a business without anything more would not constitute cruelty or harassment.
12. Section 306 of the IPC reads as under :-
"306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
13. Thus, the basic ingredients to constitute an offence under Section 306 of the IPC are suicidal death and abetment thereof. Abetment of a thing is defined under Section 107 IPC as under:-
"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.
Explanation 1. - A person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
14. This Court in Geo Varghese v. State of Rajasthan and another, (2021) 19 SCC 144, has considered the provisions of Section 306 IPC along with the definition of abetment under Section 107 IPC observed as under:-
"14. Section 306 of IPC makes abetment of suicide a criminal offence and prescribes punishment for the same.
. . .
15. The ordinary dictionary meaning of the word 'instigate' is to bring about or initiate, incite someone to do something. This Court in Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618, has defined the word 'instigate' as under:-
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act"."
16. The scope and ambit of Section 107 IPC and its co-relation with Section 306 IPC has been discussed repeatedly by this Court. In the case of S.S. Cheena Vs. Vijay Kumar Mahajan and Anr (2010) 12 SCC 190, it was observed as under:-
"25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
15. This Court in M. Arjunan v. State, represented by its Inspector of Police, (2019) 3 SCC 315, while explaining the necessary ingredients of Section 306 IPC in detail, observed as under:-
"7. The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 IPC."
16. This Court in Ude Singh & Others v. State of Haryana, (2019) 17 SCC 301, held that in order to convict an accused under Section 306 IPC, the state of mind to commit a particular crime must be visible with regard to determining the culpability. It was observed as under:-
"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act (s) of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behavior and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act(s) of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1 For the purpose of finding out if a person has abetted commission of suicide by another; the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased."
17. This Court in Mariano Anto Bruno & another v. The Inspector of Police, 2022 SCC OnLine SC 1387, Criminal Appeal No. 1628 of 2022 decided on 12th October, 2022, after referring to the above referred decisions rendered in context of culpability under Section 306 IPC observed as under:-
"44. . . . It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."
18. This Court in Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200, observed that whenever a person instigates or intentionally aids by any act or illegal omission, the doing of a thing, a person can be said to have abetted in doing that thing. To prove the offence of abetment, as specified under Section 107 IPC, the state of mind to commit a particular crime must be visible, to determine the culpability.
19. This Court in Kashibai & Others v. The State of Karnataka, 2023 SCC Online SC 575, Criminal Appeal No. 627 of 2023 (arising out of SLP (Crl.) No. 8584/2022) decided on 28th February, 2023, observed that to bring the case within the purview of 'Abetment' under Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused and for the purpose proving the charge under Section 306 IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide.
20. Had there been any clinching evidence of incessant harassment on account of which the wife was left with no other option but to put an end to her life, it could have been said that the accused intended the consequences of his act, namely, suicide. A person intends a consequence when he (1) foresees that it will happen if the given series of acts or omissions continue, and (2) desires it to happen. The most serious level of culpability, justifying the most serious levels of punishment, is achieved when both these components are actually present in the accused's mind (a "subjective" test).
21. For intention in English law, Section 8 of the Criminal Justice Act, 1967 provides the frame in which the mens rea is assessed. It states:
"A court or jury, in determining whether a person has committed an offence,
(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances." Under Section 8 (b), therefore, the jury is allowed a wide latitude in applying a hybrid test to impute intent or foresight on the basis of all the evidence.
22. It is now well settled that in order to convict a person under Section 306 of the IPC there has to be a clear mens rea to commit the offence. Mere harassment is not sufficient to hold an accused guilty of abetting the commission of suicide. It also requires an active act or direct act which led the deceased to commit suicide. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous.
23. We take notice of the fact that the High Court has laid much emphasis on Section 113A of the Evidence Act.
24. Section 113A of the Evidence Act reads thus:-
"113A. Presumption as to 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 purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)."
25. This Section was introduced by the Criminal Law (Second Amendment) Act 46 of 1983. The Indian Penal Code, the Code of Criminal Procedure, 1973 and the Evidence Act were amended keeping in view the dowry death problems in India.
26. The Section requires proof (1) that her husband or relatives subjected her to cruelty and (2) that the married woman committed suicide within a period of seven years from the date of her marriage.
27. Although, it is not necessary for us to refer to Section 11B of the Evidence Act which raises presumption as to dowry death yet with a view to indicate the fine distinction between the two presumptions we are referring to Section 113B. In Section 113A the legislature has used the word 'may', whereas in Section 113B the word used is 'shall'.
28. In this appeal, we are concerned with Section 113A of the Evidence Act. The mere fact that the deceased committed suicide within a period of seven years of her marriage, the presumption under Section 113A of the Evidence Act would not automatically apply. The legislative mandate is that where 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, the presumption under Section 113A of the Evidence Act may be raised, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
29. What is important to note is that the term 'the Court may presume having regard to all other circumstances of the case that such suicide had been abetted by her husband' would indicate that the presumption is discretionary, unlike the presumption under Section 113B of the Evidence Act, which is mandatory. Therefore, before the presumption under Section 113A is raised, the prosecution must show evidence of cruelty or incessant harassment in that regard.
30. The court should be extremely careful in assessing evidence under section 113A for finding out if cruelty was meted out. If it transpires that a victim committing suicide was hyper sensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court would not be satisfied for holding that the accused charged of abetting the offence of suicide was guilty.
31. Section 113A has been interpreted by this Court in Lakhjit Singh v. State of Punjab, 1994 Suppl (1) SCC 173, Pawan Kumar v. State of Haryana, 1998(3) SCC 309, and Smt. Shanti v. State of Haryana, 1991 (1) SCC 371.
32. This Court has held that from the mere fact of suicide within seven years of marriage, one should not jump to the conclusion of abetment unless cruelty was proved. The court has the discretion to raise or not to raise the presumption, because of the words 'may presume'. It must take into account all the circumstances of the case which is an additional safeguard.
33. In the absence of any cogent evidence of harassment or cruelty, an accused cannot be held guilty for the offence under Section 306 of IPC by raising presumption under Section 113A.
34. Before we part with this matter, we may only observe that the criminal justice system of ours can itself be a punishment. It is exactly what has happened in this case. It did not take more than 10 minutes for this Court to reach to an inevitable conclusion that the conviction of the appellant convict for the offence punishable under Section 306 of the IPC is not sustainable in law. The ordeal for the appellant started some time in 1993 and is coming to the end in 2024, i.e. almost after a period of 30 years of suffering. At the same time, we are also mindful of the fact that a young woman died leaving behind her 6 months old infant. No crime should go unpunished. But at the same time, the guilt of the accused has to be determined in accordance with law. To put it in other words, the guilt of the accused has to be determined on the basis of legal evidence on record. The question is : On what and where did the two courts falter? In our opinion, the two courts faltered as they failed to apply the correct principles of law to the evidence on record on the subject of abetment of suicide. The two courts got enamoured by just three things, (i) the deceased committed suicide within seven years of marriage, (ii) the accused was demanding money from the parents of the deceased for starting some business, and (iii) the deceased used to remain tense. We do not say that these are irrelevant consideration. All the three aspects are relevant. But there are settled principles of law to be made applicable to the matters of the present type. In the case of accusation for abetment of suicide, the court should look for cogent and convincing proof of the act of incitement to the commission of suicide and such an offending action should be proximate to the time of occurrence. Appreciation of evidence in criminal matters is a tough task and when it comes to appreciating the evidence in cases of abetment of suicide punishable under Section 306 of the IPC, it is more arduous. The court must remain very careful and vigilant in applying the correct principles of law governing the subject of abetment of suicide while appreciating the evidence on record. Otherwise it may give an impression that the conviction is not legal but rather moral."
(g) In the case of Praveen Kumar Vs. State of Himachal Pradesh 2024 SCC OnLine SC 2935, the cause of death was consumption of tablets of aluminium phosphide and the conviction order, after taking note of the various aspects of the case was upheld by the Apex Court. The relevant paragraphs are extracted hereunder :-
"7. For better appreciation of the submissions made by the learned counsel for the parties it would be beneficial to reproduce the provisions contained in Section 498-A and 306 IPC as also Section 113A of the Indian Evidence Act. The said provisions read as under:
"498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. - For the purposes of this section, "cruelty" means - (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.
306. Abetment of suicide. - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
113A. Presumption as to 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 purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Penal Code, 1860."
8. From the explanation to Section 498-A IPC, it is discernible that the word 'Cruelty' means, (i) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide (ii) any wilful conduct which is of such a nature as is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (iii) harassment of the woman 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. So far as the instant case is concerned, as per the case of the prosecution the appellant had subjected the deceased to Cruelty i.e. had committed wilful conduct which was of such a nature, that drove her to commit suicide. Undoubtedly, the allegations of Cruelty as contemplated under Section 498A have to be established beyond reasonable doubt. Similarly, the charge under Section 306 also has to be proved by the Prosecution beyond reasonable doubt by leading cogent evidence that the appellant abetted the deceased to commit suicide as contemplated in Section 107 of IPC. Of course, Section 113A of the Evidence Act permits the Court to raise a presumption as to abetment of suicide, if the Suicide was committed within seven years of the marriage and if it is proved that she was subjected to the "Cruelty" as explained in Section 498A by her husband or the relative of the husband. However, for the purpose of raising the presumption by the Court under Section 113A of the Evidence Act, the basic facts as contemplated in the said provision, need to be proved by the Prosecution.
9. In the light of the above legal position, if the facts of the present case are appreciated, it appears that there are certain facts which have not been disputed, rather have been duly proved by the prosecution. Apart from the fact of the appellant had married the deceased on 10.10.1992, and the deceased had given birth to a male child from the loins of the appellant on 18.12.1993, the filing of three cases by the deceased during her life time against the appellant, i.e. (i) FIR No. 59/1993 dated 12.07.1993 under Section 498-A and 506 IPC; (ii) complaint/Kalendra under Section 107/151 of Cr.P.C dated 01.07.1993 and (iii) case under Section 125 Cr.P.C. in May, 1994 seeking maintenance for herself and her child, is also not disputed. The fact of the deceased having committed suicide by consuming tablets of aluminum phosphide, which is supposed to be an insecticide, is also duly proved by the prosecution. It is also pertinent to note that the trial Court and the High Court have concurrently held the appellant guilty of the offence under Section 498-AIPC by holding that the appellant had subjected the deceased to cruelty.
10. Though it was sought to be submitted on behalf of the appellant that as per the suicide note Exhibit DF, the suicide was committed by the deceased on account of her intolerable pain and illness and not due to the Cruelty of the Appellant, the said contention deserves to be considered for rejection only. Apart from the fact that the said suicidal note does not appear to have been duly exhibited for being admitted in evidence, the fact that the appellant had not even bothered to inform the parents of the deceased immediately after the incident smacked of his guilt. The two defense witnesses claiming to be the neighbours of the appellant were examined to prove that the relationship between the appellant and his wife was cordial and not discordant, however they also do not inspire any confidence, in view of the undisputed and proved facts that the deceased had filed three cases against the appellant during her lifetime in respect of harassment and cruelty subjected to her by the Appellant.
11. In that view of the matter, the High Court has rightly raised the presumption under Section 113A of the Evidence Act to hold that the suicide was abetted by the Appellant. There cannot be any disagreement to the proposition laid down by this Court in case of Hans Raj v. State of Haryana (supra) and Naresh Kumar v. State of Haryana (supra) relied upon by the learned Counsel for the Appellant, to submit that unlike Section 113B of the Evidence Act, a statutory presumption does not arise in Section 113A by operation of law merely on the proof of the circumstances enumerated in the said provision, and that Section 113A gives a discretion to the Court to raise a presumption. As discussed hereinabove the prosecution by leading cogent evidence had established that the deceased had committed suicide within a period of seven years from the date of her marriage and that the Appellant that is her husband had subjected her to cruelty as contemplated in Section 498-A of IPC. We therefore, do not find any illegality or infirmity in the impugned order passed by the High Court convicting the Appellant for the offences under Section 498-A r/w Section 306 of IPC.
12. The Appeals being devoid of merits are dismissed. Dismissed accordingly."
(h) In the case of Kashibai & ors. Vs. The State of Karnataka, (2023) 15 SCC 751, the cause of death was asphyxia due to drowning and taking note of the various aspects of the case, the Apex Court acquitted the appellant including the husband for the offence under Section 306 I.P.C. The relevant paragraphs of the judgment are extracted hereunder :-
"4. After having heard the learned counsels for the parties and thoroughly gone through the record of the case, it appears that the prosecution to bring home the charges levelled against the appellants-accused had examined 21 witnesses and also adduced the documentary evidence. However out of the 21 witnesses, PW-10, PW-11, PW-12 and PW-14 had turned hostile and not supported the case of the prosecution. The case of the prosecution as such mainly depended upon the PW-1 and PW-4 who happened to be the parents of the deceased and PW-6 who happened to be the uncle of the deceased. They all had deposed inter alia about the demand of the dowry in the form of cash and gold, and about the harassment meted out by them to the deceased mentally and physically. PW-5 who happened to be the person known to both the sides and who was instrumental in arranging the marriage between the deceased and the appellant no. 3 also had deposed that there was a demand for additional gold and cash made by the appellants-accused and that there was harassment caused by the appellants to the deceased Jayashree. The neighbours, PW-7 and PW-9 also had supported the case of the prosecution by deposing inter alia that the deceased was subjected to mental and physical harassment by the appellants-accused.
5. Having regard to the said evidence, which has been also appreciated by the Sessions Court and High Court, there remains no shadow of doubt that the deceased was subjected to the harassment at the instance of the appellants-accused and that the prosecution had successfully brought home the charges levelled against them so far as the offence under Section 498-A read with Section 34 of IPC was concerned. However, the next question that falls for consideration before this Court is whether the prosecution had proved beyond reasonable doubt the charge levelled against the appellant with regard to the offence punishable under Section 306 read with Section 34 of IPC.
6. At this juncture, it would be beneficial to reproduce the relevant provision contained in Section 306 IPC pertaining to Abetment of suicide.
"306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
7. What is "Abetment of a thing" has been described in Section 107 which reads as under : -
"107. 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.
Explanation 1. --A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."
8. From the bare reading of the said provisions, it clearly transpires that in order to convict a person for the offences under Section 306 IPC, the basic constituents of the offence namely where the death was suicidal and whether there was an abetment on the part of the accused as contemplated in Section 107 IPC have to be established.
9. In M. Mohan Vs. State Represented by the Deputy Superintendent of Police, this Court has elaborately dealt with the provisions contained in Section 306 read with Section 107 IPC, and after discussing various earlier decisions has observed as under: -
"41. This Court in SCC para 20 of Ramesh Kumar [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] has examined different shades of the meaning of "instigation". Para 20 reads as under : (SCC p. 629) "20. Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation." In the said case this Court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the appellant-accused having abetted commission of suicide by Seema (the appellant's 1 (2011) 3 SCC 626 wife therein) may necessarily be drawn.
42. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994 SCC (Cri) 107] this Court has cautioned that (SCC p. 90, para 17) the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
43. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self-esteem and self- respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide."
10. In view of the above, it is quite clear that in order to bring the case within the purview of 'Abetment' under Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused. For the purpose proving the charge under Section 306 IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide.
11. So far as facts of the present case are concerned, the prosecution had sought to lead the evidence by examining the witnesses to prove that the deceased had committed suicide because of the mental and physical harassment of the appellants-accused. The PW-21 Dr. Jayashree Masali, who had carried out the post-mortem of the deceased, had narrated in her deposition the injuries found on the body of the deceased as mentioned in the post-mortem report (Exhibit-14). As per her final opinion, the cause of death was "due to drowning as a result of Asphyxia". It may be noted that nothing comes out from her evidence as to whether the death was suicidal or not. The PW-1 Annapurna Limbikai, who happened to be the mother though had alleged in her examination-in-chief that her daughter was murdered by the accused by throwing her in the well, she had admitted that when she reached at the spot, she had not seen the dead body of her daughter in the well. She had also admitted that she had not stated in her complaint that her daughter had committed suicide by jumping into the well on account of the mental and physical harassment caused by the accused. At this juncture she was declared hostile, and the public prosecutor was permitted to cross examine her. In the cross-examination she had stated that she did not remember the incident as it had occurred long back. In the further cross-examination by the learned advocate for the accused she had admitted that the accused no. 3 had informed her on telephone that her daughter-Jayashree had accidentally slipped, and as a result thereof she fell down in the well at about 12.00 O'clock. She also stated that when she, her husband, other relatives and the neighbours went to the place of occurrence at about 4.30 p.m., they had not seen the dead body floating in the well.
12. PW-4 Sadashiv Limbikai, the father of the deceased also had stated in his evidence before the Court that he did not know whether her daughter- Jayashree had committed suicide, or the accused had thrown her body into the well. PW-5 Rudrangouda Patil who was instrumental in arranging the marriage of the deceased with accused no. 3, had stated that he did not know how Jayashree had fallen down into the well. PW-6 Gangappa Limibikai, who happened to be the uncle of the deceased also had no knowledge as to how the deceased fell down in the well. In the cross-examination, he had admitted that when the dead body was taken out from the well, all the four accused were present near the well. In short, none of the witnesses examined by the prosecution had any knowledge as to whether the deceased had jumped into the well or she had accidently slipped into the well.
13. The PW-21 Dr. Jayashree Masali though had opined that the death of the deceased was due to the drowning as a result of Asphyxia, there was no opinion given by her nor any opinion was sought from her as to whether it was a suicide committed by the deceased or it was an accident by which she fell down in the well. Even if it is presumed that the deceased had committed suicide, there was no evidence whatsoever adduced by the prosecution that there was an abetment on the part of any of the accused which had driven her to commit suicide. There is no evidence worth the name to show that any of the appellants- accused had either instigated or intentionally aided or abetted the deceased to commit suicide or had caused any abetment as contemplated under Section 107 of the IPC.
14. Though it is true that as per Section 113A of the Evidence Act, when the question arises as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband, and when 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 can presume, having regard to the other circumstances, that such suicide has been abetted by her husband or such relative of her husband. However, mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.
15. In Mangat Ram Vs. State of Haryana, this Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under: -
"30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act.
31. In this connection, we may refer to the judgment of this Court in Hans Raj v. State of Haryana [(2004) 12 SCC 257 : 2004 SCC (Cri) 217] , wherein this Court has examined the scope of Section 113-A of the Evidence Act and Sections 306, 107, 498-A, etc. and held that, unlike Section 113-B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113-A of the Evidence Act. This Court held that, under Section 113-A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, gives discretion to the court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC."
16. So far as the evidence adduced by the prosecution in the instant case is concerned, in our opinion the prosecution had failed to adduce any clinching evidence to enable the Court to conclude that the appellants- accused had abetted the deceased to commit suicide. In absence of any satisfactory evidence having been brought on record, in our opinion both the Courts below had committed grave error in holding the appellants guilty of the offence under Section 306 of IPC.
17. In that view of the matter while upholding the conviction of the appellants under Section 498A, we acquit the appellants from the charges levelled against them under Section 306 of IPC by giving them benefit of doubt. Since the appellants have already undergone the imprisonment for a period of two years for the offence under Section 498A read with Section 34 of IPC, as directed by the courts below, it is hereby directed to set free the appellants forthwith.
18. The appeal stands partly allowed accordingly."
(i) In the case of Paranagouda and another Vs. State of Karnataka and another, 2023 SCC OnLine SC 1369, the conviction was modified by acquitting the appellants therein for the offence under Section 304-B I.P.C. and Section 3 and 4 of the D.P. Act and convicting them for the offence under Section 306 and 498A read with Section 34 IPC and sentencing them to imprisonment for the period already undergone with fine of Rs.5,000/- each. The relevant paragraphs 37 and 38 of the judgment are extracted hereunder :-
"37. In the aforesaid background and the evidence on record as already noticed by us hereinabove, it can be safely noted that High Court ought to have examined as to whether accused could have been convicted for an offence for which no charge was framed and not undertaking of such an exercise would result in failure of justice? Thus, it will have to be seen from the facts unfolded in the present case as to whether the accused was aware of the basic ingredients of the offence for which they are being tried and whether the main facts sought to be established against them were explained to them clearly and whether they got a fair chance to defend themselves. If the answer is in the affirmative, then necessarily this Court will have to proceed further and examine as to whether accused can be convicted for the offence not charged and if the answer is in the negative it would result in acquittal of the accused for said offence. In the instant case the dying declaration of the deceased would clearly indicate that deceased was mentally traumatized and she was unable to tolerate the torture and harassment meted out by the accused person on account of which she committed suicide. It is this taunting or mental torture which she could not withstand and forced her to commit suicide by self- immolation. In that view of the matter, we are of the considered opinion that accused persons are liable to be convicted for the offence punishable under Section 306 IPC though charge was not framed. The accused (appellant Nos.1 and 2) are now aged about 66 and 61 years respectively. They have already spent one year, one month and 27 days in prison. They do not have any past history of criminal record. Hence, a lenient view has to be taken while imposing the sentence.
38. For the reasons afore-stated the appeal is allowed in part. The judgment and order of conviction passed by the Sessions Court in SC No.35 of 2011 dated 14.09.2012 as affirmed in Criminal Appeal No.2847 of 2012 by judgment dated 20.07.2022 is hereby modified. The appellants are acquitted for the offences punishable under Section 304B IPC and Section 3 and 4 of Dowry Prohibition Act and convicted for the offence punishable under Section 306 and Section 498A read with Section 34 IPC and sentenced to imprisonment for the period already undergone with fine of Rs.5000/- each and in default to pay the fine to undergo one month simple imprisonment for each of the offence."
28. Now reverting to the issue (s) involved in the case, which are as under :-
(i) Whether the conviction of the appellant namely Pramod Kumar (husband of the deceased) in Criminal Appeal No. 147 of 1998, for the offence under Section 306 I.P.C. and Section 498-A I.P.C. is justified?
(ii) Whether the conviction of the appellants namely Rameshwar Prasad Mishra and Prema Devi (father-in-law and mother-in-law respectively, of the deceased) in Criminal Appeal No. 122 of 1998 for the offence under Section 306 I.P.C. and Section 498-A I.P.C?
29. For coming to the conclusion on the aforesaid issue(s), this Court considered the testimony of the main witnesses of the fact namely Surendra Narain/informant (father of the deceased), who was examined as PW-1, and Smt. Sushila Mishra (Bhabhi/sister-in-law of the deceased) who was examined as PW-2, as also statement of Dr. K.M. Dixit, who was examined as PW-3, and Vinod Kumar Sharma (Scientist of Forensic Science Laboratory), who was examined as PW-4, and also considered the Post Mortem report (Ext. Ka-3) and F.S.L. report (Ext.Ka-4)
30. Upon due consideration of aforesaid, this Court finds that conviction of the appellant Pramod Kumar in Criminal Appeal No. 147 of 1998 for the offence under Section 306 I.P.C. and 498-A I.P.C. is justified and and the conviction of the appellants namely Rameshwar Prasad Mishra and Prema Devi (father-in-law and mother-in-law respectively, of the deceased) in Criminal Appeal No. 122 of 1998 for the offence under Section 306 I.P.C. and Section 498-A I.P.C. is not justified. It is for the following reason (s) :-
(i) Upon a conjoint reading of the contents of the F.I.R. and the statement of PW-1/Surendra Narain (informant-father of the deceased) and statement of the PW 2/Smt. Sushila Mishra (Bhabhi-sister-in-law of the deceased) this Court is of the view that the allegations of demand of motorcycle and harassment are against the appellant Pramod Kumar as Surendra Narain (PW-1) levelled specific allegation against the appellant Pramod Kumar and Smt. Sushila Mishra (PW-2) levelled general allegation against all the appellants.
(ii) In support of aforesaid, it would be apt to refer, at this stage, the relevant portion of the statement of PW-1/Surendra Narain (informant), who specifically stated that "शादी के बाद मेरी लडकी शिवकुमारी मेरे घर आती जाती थी। मेरी लडकी बतायी थी कि मेरे शौहर प्रमोद कुमार मोटर साईकिल मांगते हैं । मोटर साइकिल मांगने की बात केवल पति द्वारा किए जाने की बाबत ही बताती थी। अपने सास व ससुर द्वारा मांगने की बात नहीं बतायी थी।" and the general allegation leveled by PW-2/Smt. Sushila Mishra, who stated that "शादी के बाद शिवकुमारी ससुराल से मैके आती जाती थी। शिवकुमारी जब मैके आती थी तो हम लोगो को बताती थी कि उसके पती सास ससुर उससे कहते थे कि मोटर साईकिल अपने मां-बाप से मंगाकर दो। "
(iii) The witness PW-2 Smt. Sushila Mishra in its true spirit has not supported the prosecution story as according to the F.I.R. upon receiving the information of the incident, the informant Surendra Narain (PW-1) along with his daughter Raj Kumari and daughter-in-law Smt. Sushila Mishra (PW-2-Bhabhi of the deceased) rushed to the matrimonial home of the deceased and according to the statement of Smt. Sushila Mishra (PW-2), father-in-law (PW-1, informant), mother-in-law, Shiv Kumari (sister-in-law) and PW-2 Smt. Sushila herself, had rushed to the spot and further, according to PW-1/Surendra Narain the doctor declared the death and according to PW-2/Smt. Sushila Mishra the deceased died at the door of her maternal home.
(iv) Indisputably the deceased died within seven years of marriage and the cause of death is on account of consumption of aluminum phosphate.
(v) On a conjoint reading of the statement of the Dr. K.M. Dixit (PW-3) and Surendra Kumar Sharma (PW-4), also referred in paragraph 14 of the judgment of the trial court, indicates that the deceased died within few hours of consuming of aluminum phosphate. According to the F.I.R., the informant and other family members received the information relating to the condition of the deceased at about 1.00 P.M. (13.00 hours) on 04.05.1995. The F.I.R. of the incident was lodged at about 17.00 hours (5.00 P.M.). As per PW-2/Smt. Sushil Mishra, the deceased was taken to the hospital by PW-1/Surendra Narain, PW-2/Smt. Sushila Mishra, and Raj Kumari (sister of the deceased). As per F.I.R. and statement of PW-1/Surendra Narain the deceased was taken to hospital by PW-1/Surendra Narain, where she was found dead. However, no one out of these persons is witness of inquest report.
(vi) All the aforesaid facts create doubt on the story of the prosecution so far it relates to the fact that the deceased informed the informant/Surendra Narain (PW-1) and Smt. Sushila (PW-2) and Raj Kumari that she was administered poisonous substance.
31. For the reasons aforesaid, the conviction of the appellant Pramod Kumar in Criminal Appeal No.147 of 1998, for the offence under Section 306 I.P.C. and Section 498-A I.P.C. is affirmed. However, the sentence awarded to the appellant Pramod Kumar, who at present is about 57 years, taking lenient view, is modified to the period already undergone for the reason that (i) the appellant remained in jail for nearly two and half years, and (ii) no criminal history of the appellant has been reported. Accordingly, the Criminal Appeal No. 147 of 1998 filed by Pramod Kumar is partly allowed in terms of the aforesaid.
32. The Criminal Appeal No. 122 of 1998 filed by appellants Rameshwar Prasad Mishra and Prema Devi against the judgment of conviction for the offence under Section 306 I.P.C. and Section 498-A I.P.C. is allowed. Their conviction and sentence awarded by the trial court is set aside. Both the appellants namely Rameshwar Prasad Mishra and Prema Devi are acquitted from the charge for offence under Section 306 I.P.C. and Section 498-A I.P.C. Their bail bonds are cancelled and sureties are discharged.
33. Let a copy of this judgment along with the trial court record be transmitted to the trial court concerned for information and necessary compliance.
Order Date :- 18.4.2025
Vinay/ML
