Jammu & Kashmir High Court

State Of J&K vs Balwant Singh And Others on 29 September, 2021

HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                 AT JAMMU

                                           Reserved on :       13.09.2021
                                           Pronounced on:      29.09.2021

                                                      CRAA No. 18/2007



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


                    Through:    Mr. Aseem Sawhney, AAG


               Vs
Balwant Singh and others                                  ..... Respondent(s)
                    Through: Mr. D. S. Saini, Advocate


Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                               JUDGMENT

1. The present acquittal appeal has been filed by the appellant-the then

State against the judgment dated 31.01.2007 passed by the learned

1st Additional Sessions Judge, Jammu (hereinafter to be referred as

the trial court), by virtue of which the respondents have been

acquitted of the charges for commission of offence under section

306 RPC.

2. The judgment impugned has been challenged only on the ground

that the trial court has mis-appreciated the evidence as the

prosecution has successfully proved the allegations against the

respondents. During the pendency of the present appeal,

respondent No. 2, who is the mother of respondent No. 1 died, as

such she was deleted from array of the respondents vide order dated

20.12.2018.

3. Mr. Aseem Sawhney, learned AAG argued that the parents and the

brother of the deceased have successfully proved the prosecution

case and as such the trial court has erred in acquitting the

respondents.

4. Mr. D S Saini, learned counsel for the respondents has vehemently

argued that the instant case is in fact a case of no evidence and the

learned trial court has rightly acquitted the respondents.

5. The brief facts necessary for disposal of the present appeal are that

FIR bearing No. 271/1993 under section 306 RPC was registered by

the Police Station, R. S. Pura on the written application made by

Gurcharan Singh S/o Madan Singh in Urdu, in which it was stated

that his sister, namely, Surinder Kour was married with Balwant

Singh S/o Shri Ram Singh 9/10 years back. Out of the wedlock, two

male children were born. After the marriage, Balwant Singh,

respondent No. 1, Leela Wanti- mother-in law, respondent No. 2

and Mohinder Kour-respondent No. 3 used to harass her by

different modes that his sister was not beautiful and also respondent

No. 1 did not give expenses to her despite the fact that respondent

No. 1 was serving in the Army. Earlier also, the respondents turned

her sister from their house after beating her. A meeting of the

committee was organized and in laws of his sister were advised not

to harass his sister but they did not mend their way. Whenever his

sister used to come to his home, she used to say that the respondents

were harassing and maltreating her. It was further stated that on

03.10.1993, he came to know that last night his sister being fed up

with harassment meted to her by the respondents had committed

suicide by burning herself by pouring kerosene oil. She was taken

to hospital, where she died. Pursuant to this, FIR bearing No.

271/1993 was registered on 03.10.1993. After registration of the

FIR, Investigating Officer during the investigation, seized a plastic

gallon, match box and also prepared the site plan. The postmortem

of the deceased was also conducted and after recording the

statement of the witnesses, the Investigating Officer, proved the

offence under section 306 RPC against the respondents and filed the

challan for commission of offence under section 306 RPC against

the respondents before the Judicial Magistrate 1st Class, R. S. Pura

on 02.04.1994, which was committed to the Court of Principal

Sessions Judge, Jammu. In turn, the Principal Sessions Judge vide

order dated 03.05.1994 transferred the said case to the Additional

Sessions Judge, Jammu for disposal under law and later on, by

virtue of order dated 4th May, 2006 pursuant of the directions of

this Court, the challan was transferred to the trial court.

6. The charges against the respondents were framed for commission of

offence under section 306 RPC on 23.05.1995 and as the

respondents did not plead guilty, the prosecution was directed to

lead its evidence. Out of total 20 witnesses cited by the prosecution,

the prosecution examined only 10 witnesses, namely, PW-1

Gurcharan Singh, PW-2 Raghbir Singh, PW-3 Sarabjeet Singh,

PW-4 Harbajan Singh, PW 5, Satwant Kour, PW-6 Ajit Kour, PW-

9 Gurpreet Singh, PW-10 Madan Singh, PW-11 Ashok Kumar,

PW-13 S. D. Thakur, whereas PW 7 was given up by the

prosecution. After recording of the statements of the accused under

section 342 Cr.P.C. the respondents produced two defence

witnesses, namely, Harbans Singh and Narinderpal Singh. Before

appreciating the contentions raised by the appellant, it is necessary

to have a brief resume of the evidence led by the parties.

7. PW-1, Gurcharan Singh is the brother of the victim stated that the

marriage of his sister with the respondent No. 1 was solemnized in

the year 1983 and her relations with accused remained cordial for

one year. Later on, her in-laws started harassing and subjecting her

to maltreatment. Respondent No. 1 had illicit relation with

respondent No. 3 and respondent No. 3 wanted to get her sister

married with respondent No. 1. The respondents were taunting and

teasing her that she was not beautiful and had not brought sufficient

dowry. Once his sister was beaten and turned out of her house as a

result of which she remained at her parental house for one and a

half year. Later on, the respondents came to his residence and on

their assurance, his sister was sent back. On 2.10.1993, respondent-

Balwant Singh had come to his house. He subjected his sister to

beating as a result of which she became unconscious and later on,

after pouring kerosene oil on her, he burnt her. He came to know

about the incident only on the next day. He proved the contents of

application i.e marked as EXPWGS. He further stated that

respondent No. 1 had come to his house secretly and after burning

his wife had reported back for his duty. He has proved the contents

of FIR i.e. marked as EXPWGS/1. He further stated that he wanted

the FIR to be registered under section 302 RPC. After the

postmortem of the deceased, he received the dead body. He has

proved the contents of recovery of dead body and receipt of dead

body, which are marked as EXPWGS/2 and EXPWGS/3

recpectively. In cross-examination, the witness deposed that

deceased resided at Gauhati with her husband and children and later

on his sister was putting up with her husband at Pathankot.

Deceased had an account in S.B.I and her sister or he used to

deposit money in the account that was being sent in her name by

her husband. Respondent No. 1 had illicit relationship with

respondent No. 3 and he had mentioned the same in EXPWGS,

however the same was not mentioned in the statement recorded

under section 161 Cr.PC as well as in the FIR. The Police had

written the FIR three times and tore the same each time. The Police

had not prepared the FIR as per his choice. He had mentioned in the

report that respondent No. 1 had secretly come to his house and

after murdering his wife left his house but the same was not

mentioned in it. Mohinder Kour-respondent No. 3 was separated by

her mother-in-law and after separation of respondent No. 3,

normalcy returned in the house of the in-laws of his sister. The

respondent No. 1 had burnt his sister at verandha. He had not

enquired about the occurrence from the neighbours of the accused.

However, son of the accused revealed that respondent No. 1 had

administered beating to the victim and later on poured kerosene oil

on her and burnt her. The victim had head injury and he had

revealed the same to the Police, but same was not mentioned in his

statement recorded under section 161 Cr.P.C. as well as in the FIR.

The Police had taken his signatures on blank papers and told him

that they would draft themselves. He had approached the higher

officers and requested them that the investigation was not being

conducted in proper manner and he had even taken the deputation

before the Officers. The dowry that was given to his sister was

returned.

8. PW-2, Raghbir Singh deposed that in the year 1992, the respondent

No. 1 and victim had a quarrel and the victim had told him about

the same. Later on, there was a bradari/meeting in the Gurdwara

and he too was present in the meeting. Respondent No. 1 had

assured that he would not quarrel with the victim. On this assurance

the victim was sent back to her in-laws. On 02.10.1993, he received

the message that respondent No. 1 had beaten his wife who was

admitted in the hospital. He along with other reached the hospital

and found that the deceased had already expired. After the marriage

between the respondent No. 1 and victim, their relations remained

cordial for sometimes and sometimes they were quarrelling with

each others. In cross-examination, he stated that respondent No. 1

was keeping the victim happy and was providing her expenses for

running the domestic affairs. The victim used to accompany her

husband wherever he was posted. In his presence, no quarrel took

place between the respondent No. 1 and victim. In the meeting at

the Gurdwara, it was resolved that they would live happily as minor

problems do arise in day today affairs. When he visited the hospital,

the respondent No. 1 was not there but other respondents were

there.

9. PW-3 Sarabjeet Singh and PW-4 Harbhajan Singh were declared

hostile and during cross-examination, nothing incriminating, against

the respondents, could be elicited even after cross-examination by

APP.

10. PW-4 Satwant Kour stated that the deceased was married to

respondent No. 1 in the year 1984 and after the marriage respondent

No. 1 used to quarrel with the deceased and also the respondent No.

1 had illicit relations with his sister-in-law, that was revealed to the

deceased after six months of the marriage. Once the deceased was

sent to her parental house along with children and thereafter

maintenance case was filed against respondent No.1. The officers of

respondent No. 1 had pressurized him to provide maintenance to his

wife and kids. On another occasion also, after three years of

marriage, the deceased had come to her parental house and was sent

to her in-laws on the assurance of his father and uncle. Respondent

No. 1 used to visit the house of his sister-in-law whenever he come

on leave. The deceased used to tell her that respondent No. 1 beat

her and whenever he came on leave he used to visit the house of his

brother. On 02.10.1993, the victim was burnt and killed by the

respondent No. 1. They were informed about the incident. The

respondent No. 1 returned to his posting after burning the deceased.

The respondent Nos. 2 & 3 were responsible for the murder of the

deceased. In cross-examination, she stated that his son had lodged

the FIR. She had told the Police that respondent No. 1 had illicit

relations with his sister-in-law and same was the cause of quarrel

but it was not mentioned by the Police. Her daughter had lived with

the respondent No. 1 at the place of his postings i.e. at Assam and

Pathankot. It is wrong that the respondent No. 1 used to deposit

money in the bank account of the deceased. It was the illicit

relationship between the respondent No. 1 and respondent No. 3

that led to death of the deceased. She had told the Police that the

respondent No. 1 had poured the kerosene oil on the deceased and

burnt her. The respondent No. 1 had hit her on head with something

that caused injury in her head. She had herself seen injury on the

head of the victim and told about the same to the Police.

11. PW-6 Ajit Kour stated that the deceased was married with the

respondent No 1 in the year, 1983 and initially their relations were

cordial but later on they started quarreling. Whenever the deceased

used to come her parental house, she would reveal that the

respondents were telling her that she was not beautiful. She also

revealed that the respondent No. 1 had illicit relations with his

sister-in-law, Mohinder Kour. Ten to fifteen days prior to her death,

the deceased had come to her parental house and revealed that the

respondents were harassing and beating her. They were informed

next day about her death. In cross-examination, she deposed that the

deceased used to live with her husband and was happy with him.

The respondent No. 1 was giving her the expenses. She told the

Police that the deceased told her about the illicit relationship

between respondent No. 1 and respondent No. 3 but the same is not

mentioned in the statement recorded under section 161 Cr. P.C. She

has stated that she has no knowledge in what circumstances the

deceased died.

12. PW-9 Gurpreet Singh is the son of the deceased and was declared

hostile. During cross-examination, nothing incriminating against the

respondents, could be elicited from the evidence of this witness.

13. PW-10, Madan Singh has stated that respondent No. 1 is his son-in-

law and the deceased was his daughter. Their marriage was

solemnized in the year 1983. Only after six months of their

marriage, respondent No. 1 started quarrelling with the deceased.

Respondent No. 1 had illicit relationship with his sister-in-law.

Even his mother had advised him but all in vain. The respondent

No. 1 used to administer beatings to the deceased and turned her

out. She lived in her parental house for one year and thereafter

pursuant to the compromise, the deceased was sent back to her in-

laws house. The respondent No. 1 used to beat the victim even at

the place of his posting whenever she was with him. The deceased

had again come to her parental house and he kept her for two years.

On the assurance of one Amar Singh, common relative, the

deceased was sent back to her in-laws house. Later on, they were

informed that she had been killed on 03.10.1993. Thereafter, they

went to the hospital. None of the respondents was present in the

hospital. He went to Pathankot and met the Commanding Officer of

the respondent No. 1 and told him that respondent No. 1 had killed

his wife. At Pathankot, he was informed that respondent No. 1's

both hands were burnt and was under treatment. Later on, he

returned to his house at about nine in the evening. On the third day,

he went to the hospital and brought the dead body of the deceased.

At that time, mother-in-law of the deceased was present, where as

respondent No. 1 was admitted in the Military Hospital. Cremation

of the deceased was conducted in the village of the respondents. He

cannot say as to what was the cause of her death but she had died

after burning. In cross-examination, the witness has deposed that

respondent No. 1 was taking care of his children and the deceased.

He cannot say whether the respondent No. 1 had opened an account

in the name of the deceased in which he was depositing money. He

had told the Police in the statement recorded under section 161

Cr.P.C. about the illicit relations of respondent No. 1 with his elder

sister-in-law. He has no knowledge that respondent No. 1 had burnt

his hands while saving the deceased. He has no knowledge what

was the cause of quarrel of the deceased with her in-laws. He has

not enquired from the neighbours of the respondents about the

cause of death of the deceased.

14. PW-11, Ashok Kumar has taken the photographs of the deceased in

the Government Medical College, Jammu.

15. PW- S. D. Thakur has deposed that deceased had 95% burns over

her body and cause of death was due to shock as a result of

extensive burns.

16. After closure of the evidence by the prosecution, the statements of

the respondents under section 342 Cr. P.C. were recorded.

Thereafter, they produced two defence witnesses, namely, DW-

Harbans Singh and DW-Narinderpal Singh. The brief resume of

their testimonies is as under:

17. DW-Harbans Singh has deposed that respondent No. 1 was not

present at the time of occurrence. He extinguished the fire and

shifted the victim to hospital, where she died. He further deposed

that the deceased had cordial relations with the respondents. In

cross-examination, he deposed that he had been told by the victim

that leakage in the stove had led to her burning. He had himself not

seen the same.

18. DW-Narinderpal Singh stated that the respondent No. 1 and the

deceased had cordial relations between them. She used to live

happily with her husband. He stated that on 02.10.1993, there was

sharad ceremony of his grandfather, he had gone to the house of the

respondents for inviting them for meals. At that time the

respondents were not there. While as the deceased had lighted a

stove in the kitchen in his presence. The stove leaked and the

leakage fell on the face of the deceased, who caught fire. He

extinguished it. Some other people also reached on spot. In cross-

examination, she has stated that he had been to the house of the

accused at about 7 to 8 in the evening. Elder son of the deceased

was also present there. However, other members of the family were

not there. He and other people present on spot tried to extinguish

the fire.

19. The trial court after hearing the leaned counsel for the parties and

appreciating the evidence on record acquitted the respondents vide

judgment dated 31.01.2007.

20. Before appreciating the contentions raised by either of the parties, it

would be apt to take note of essential requirements for convicting a

accused under section 306 RPC. In Amalendu Pal v. State of

W.B., (2010) 1 SCC 707, the Apex Court has held as under:

"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the

cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. 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 there 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."

21. Now coming to the facts of the present case, this is admitted fact

that the deceased died of burns. The prosecution story is that

because of harassment meted out to her by the respondents she

poured kerosene on herself and burnt herself. The perusal of the

statements of the parents and brother of the deceased namely

Madan Singh, Satwant kour and Gurcharan Singh reveal that they

during the trial have tried to convert the present case of abetment to

be made into murder case by deposing that the deceased was killed

by the respondent No. 1 that has never been the prosecution case.

Even the ExPWGS, pursuant to which FIR was registered belies the

testimonies of the abovementioned witnesses. Now it is to be seen

as to whether the prosecution has been able to prove that the

deceased was harassed and maltreated to such an extent, that she

was left with no other option but to commit suicide. The statement

of the parents and the brother of the deceased reveal that the

relations between the victim and her husband were not cordial and

twice she had come back to her paternal home also and later on was

sent back. There is no evidence on record that the respondent No. 1

had illicit relationship with is sister in law. There is only hearsay

evidence of the parents and brother of the victim, that hardly can be

relied upon for conviction. Even PW Raghbir Singh stated that the

relations between the deceased and the respondent No. 1 were

sometimes cordial and sometimes normal. PW Ajit Kour, who is the

daughter in law of the parents of the deceased has demolished the

prosecution story by deposing that the deceased and accused were

living happily. The son of the deceased namely Gurpreet Singh and

the maternal brother of the deceased Harbhajan Singh have not

supported the prosecution. No witness has been examined by the

prosecution that the deceased was tortured and harassed by the

respondents to such an extent that she committed suicide. The

evidence of the prosecution is not trustworthy and the parents as

well as brother of the deceased have tried to convert the present

case of abetment to suicide to murder case during trial whereas the

fact remains that in ExP WGS it has been clearly mentioned that the

deceased poured kerosene oil on herself and burnt herself. The

statements made by the PWs Madan Singh, Satwant kour and

Gurcharan Singh are not trust worthy and as such cannot be relied

upon. More so there is no evidence on record that the deceased was

treated in a cruel manner or harassed by the respondents and that

act/conduct of the respondents were the proximate cause for

committing suicide.

22. In Ghusabhai Raisangbhai Chorasiya v. State of Gujarat, (2015)

11 SCC 753, the Apex Court has held as under:

"21. Coming to the facts of the present case, it is seen that the factum of divorce has not been believed by the learned trial Judge and the High Court. But the fact remains is that the husband and the wife had started living separately in the same house and the deceased had told her sister that there was severance of status and she would be going to her parental home after the "Holi" festival. True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal , but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted."

23. Learned counsel for the appellant has not been able to convince this

Court that the opinion formed by the learned trial court is perverse

and contrary to the facts led by the prosecution. No doubt the

powers of the appellate court in appeal against acquittal are no less

than in an appeal against conviction. But where on the basis of

evidence on record two views are reasonably possible, the appellate

court cannot substitute its view in the place of that of the trial court.

It is only when the approach of the trial court in acquitting an

accused is found to be clearly erroneous in its consideration of

evidence on record and in deducing conclusion there from the

appellate court can interfere with the order of acquittal.

24. For all what has been discussed above, the trial court has rightly