State Of J&K vs Mohd. Mushtak And Another
2021 Latest Caselaw 340 j&K

               HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU

                                                    Reserved on : 10.03.2021
                                                  Pronounced on : 19.03.2021

                                                    CRAA No. 120/2013


State of J&K                                      .....Appellant(s)/Petitioner(s)

               Through :- Mr. Vishal Bharti, Dy. AG

                         V/s

Mohd. Mushtak and another                                    .....Respondent(s)

               Through :- None


CORAM :

        HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
        HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                 JUDGMENT

Tashi Rabstan-J

1. The present criminal acquittal appeal arises out of the impugned

judgment dated 20.02.2013 passed by the learned Sessions Judge,

Udhampur in file No. 23/Sessions whereby the learned Judge has

acquitted the respondents of the charges framed under Sections 306,

498-A RPC.

2. The facts briefly stated are as under:-

The respondent No. 1 is the son of respondent No. 2. Deceased Sakina

Begum was married to respondent No. 1 since 2005. On 01.04.2007,

information was conveyed telephonically by PW-1 to Police Station,

Majalta regarding the missing of deceased person from her home since

31.03.2007. On 01.04.2007, her body was found hanging from a tree

around 09:30 am and subsequently, the inquest proceedings were

initiated under Section 174 Cr.P.C. to ascertain the cause of death.

The postmortem report revealed that the deceased has died due to

asphyxia because of hanging. The couple had no child. For about one

year after the marriage their relation remained cordial, whereafter it

became strained when the deceased got suspicious about the illicit

relations of her husband (respondent No. 1, herein/accused No. 1)

with his brother's wife. They were counseled by the relatives and

elders to settle their disputes but nothing fruitful came out. The

deceased being fed up with the attitude of her husband and mother-in-

law committed suicide on 31.07.2007. When these facts came to the

fore, an FIR No. 21/2007 under Section 306/498-A RPC was

registered in Police Station, Majalta.

3. After completion of the investigation, challan was presented. The

accused persons pleaded not guilty and claimed to be tried. To drive

home the charge, the prosecution examined 14 witnesses and the

accused have also examined one witness in their defence. They also

denied their involvement in the incident, in their statement under

Section 342 Cr.P.C. The trial Court after considering the evidence,

acquitted both the accused which is impugned this appeal.

4. The ground taken by the appellant in the memo of appeal is that the

learned trial Court has not only failed to appreciate the entire evidence

including the statements of prosecution witnesses in its true and

proper perspective but has also not considered the record as well as

the facts of the case in their totality .

5. We have heard learned counsel for the appellant and carefully perused

the record.

6. On going through the prosecution evidence, it emerges that only few

witnesses have, to some extent, supported the prosecution case and

rest of the witnesses have given a very hazy picture of the alleged

incident. Some witnesses have partly supported the prosecution

version but that too is a hearsay version. PW Manzoor who is the

brother of the deceased is also the complainant, who telephonically

informed the police about the incident. On going through his evidence,

we find that he has no personal knowledge about the illicit relations

between the accused No. 1 and his brother's wife. Also, the accused

No. 1 never ill-treated the deceased in his presence. The prosecution

case is based on two counts. First, the accused No. 1 was having illicit

relation with his brother's wife and the second is the accused persons

were ill-treating the deceased, but PW Manzoor being a star witness

does not have any personal knowledge about both these aspects, nor

PW Syeda Bibi who is the sister of the deceased have any personal

knowledge about the illicit affairs of the accused No. 1, but she had

heard it from the deceased. This being the hearsay evidence cannot be

taken conclusive to form an opinion of guilt against the accused.

7. PW Sadiq is also the brother of the deceased. He too has given an

unclear statement. In his examination in chief he stated that the

accused No. 1 was having a illicit relationship with his brother's wife

which became the reason of strained matrimonial relationship and the

deceased for one year after the marriage they lived happily but

thereafter they started quarreling because the accused used to treat her

with cruelty and assault her physically. A panchayat was also held in

this regard and it was decided that the accused No. 1 and the deceased

would live separately from the rest of the family, but after 1½ month

the deceased committed suicide. In his cross-examination, he stated

that he never saw the accused assaulting the deceased but the entire

story was narrated to her by the deceased. This being also the hearsay

evidence, cannot be taken as a credible evidence to bring home the

guilt of the accused. Also, his silence for one month after the

occurrence regarding indifferent attitude of the accused towards the

deceased creates suspicion as it is only after one month he deposed

before the police. This disputes the truthfulness of his version.

8. There are so many prosecution witnesses who have not stated a clear

version and/or have otherwise supported the defence. A whole new

story emerged from the evidence of PW Krishan Singh, who as a

Panch of the Village tried to settle the dispute between the parties and

it was found by the Panchayat that the accused was not at fault. In

fact, the cause of wedge between them was that the deceased wanted

the accused to shift the residence to Samba so that she could live near

her parents but the accused No. 1 was reluctant in doing so which led

the deceased to frustration and ultimately she committed suicide.

9. Another story came out from the evidence of PW Mohd. Bashir. He

stated that the accused No. 1 wanted to attend a marriage ceremony

but the deceased did not allow him which led to quarrel between them.

On going through the evidence of the defence witness it emerges that

DW Swar Din, with whose wife it was alleged that the accused was

having extra marital relationship, has refuted the allegation that the

accused No. 1 was having any extra marital intimacy with his wife.

10. It is apparent from the above discussion that this case has too many

versions presented by the prosecution witnesses. Only the close

relatives of the deceased have supported the prosecution version to

some extent but their conjoint reading reveals that they have narrated

mostly the hearsay version and none among them have personal

knowledge of the fact. It would be not safe to rely on their testimonies

to shift the guilt on the respondents. One more important aspect of this

case relates to the testimony of the defence witness DW Swar Din

because it is his wife with whom the accused No. 1 was alleged to

have the illicit affairs but DW Swar Din has specifically denied the

allegation regarding the extra marital intimacy of his wife with anyone

and also there is a corroboration by this defence witness, of the fact

that the accused No. 1 was not willing to live at a place near the

parental home of the deceased as presented by the prosecution

witnesses.

11. In the circumstances, as noted earlier, the evidence is fraught with lot

of inconsistencies, contradictions and omissions.

12. On conjoint reading of both the sections under which the accused are

charged i.e. 306, 498A RPC, it emerges that accused should have done

some active suggestion or support to the commission of offence. The

word 'instigates' literally means to urge forward, provoke, incite or

encourage doing an act and a person is said to instigate another, when

he actively suggest or stimulate him to act by any means. Legality of

Section 306 RPC is dependent upon the act of abetment for

commission of the suicide. Abetment involves a mental process of

instigating a person or intentionally aiding a person in doing of a

thing. In case of alleged abetment of suicide there must be proof of

direct or indirect acts of incitement to commission of suicide. In cases

like, abetment to suicide founded on the grounds of demand of dowry,

cruelty or mental torture, the evidence of systematic demand of

dowry, cruelty or mental torture or physical assault are required to be

proved by prosecution which it has miserably failed to prove in the

present case.

13. Even if a person would commit suicide because of the torments of an

accused, the accused cannot be said to have abetted the commission of

suicide by the deceased, unless the accused would intend, while

causing torments to the victim/deceased, that he/she should commit

suicide. Even if the rigour of this proposition is diluted, still, the least

that would be required is, that it should be shown that the accused

could reasonably foresee that because of his conduct, the victim was

almost certain or at least quite likely to commit suicide and without

that a person cannot be charged of having abetted the commission of

suicide, even if the suicide has been committed as a result of some of

the acts committed by the accused.

14. In V.N. Ratheesh v. State of Kerala AIR 2006 SC 2667, the Supreme

Court held that there is no embargo on the Appellate Court reviewing

the evidence upon which an order of acquittal is based. Generally, the

order of acquittal shall not be interfered with because the presumption

of innocence of the accused is further strengthened by acquittal. The

Supreme Court said that the golden thread which runs through the web

of administration of justice in criminal cases is that if two views are

possible on the evidence adduced in the case, one pointing to the guilt

of the accused and other to his innocence, the view which is

favourable to the accused should be adopted. The Supreme Court

further said that the paramount consideration of the Court is to ensure

that miscarriage of justice is prevented. A miscarriage of justice which

may arise from acquittal of the guilt is no less than from the

conviction of an innocent. In a case where admissible evidence is

ignored, a duty is cast upon the Appellate Court to re-appreciate the

evidence where the accused has been acquitted, for the purpose of

ascertaining as to whether any of the accused really committed any

offence or not. It was further held that the principle to be followed by

Appellate Court considering the appeal against the judgment of

acquittal is to interfere only when there are compelling and substantial

reasons for doing so. If the impugned judgment is clearly

unreasonable and relevant and convincing materials have been

unjustifiably eliminated in the process, it is a compelling reason for

interference.

15. In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, the

Supreme Court" said that "While sitting in judgment over an acquittal

the appellate court is first required to seek an answer to the question

whether the findings of the trial court are palpably wrong, manifestly

erroneous or demonstrably unsustainable. If the appellate court

answers the above question in the negative, the order of acquittal is

not to be disturbed."

16. We have gone through the entire evidence on record with a view to

find out as to whether the views of the learned Sessions Judge were

perverse or otherwise unsustainable. After going through the same, we

do not find any compelling and substantial reasons to interfere with

the judgment of learned trial Court. It is not a case in which the

judgment may be said to be unreasonable or a case in which relevant

and convincing materials have been eliminated in the process of

appreciation.

17. For the foregoing reasons, we do not find any substance in the appeal.

The appeal filed by the State, therefore, is liable to be dismissed and is

hereby dismissed.

                                              (Vinod Chatterji Koul)             (Tashi Rabstan)
                                                      Judge                          Judge
            JAMMU
            19.03.2021
            Pawan Angotra

                                                        Whether the order is speaking? : Yes
                                                        Whether the order is reportable? : Yes




PAWAN ANGOTRA
2021.03.19 16:44
I attest to the accuracy and
integrity of this document