State Of J&K vs Mohd. Hussain
2023 Latest Caselaw 703 j&K

                                                                   Sr. No. 47
       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU
                                              CRAA No. 51/2009

State of J&K                                        .....Appellant(s)/Petitioner(s)
                      Through: Mr. Bhanu Jasrotia, GA.
                Vs

Mohd. Hussain                                                  ..... Respondent(s)
                     Through: Mr. R. P. Sharma, Advocate.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                               ORDER (ORAL)

1. The present appeal is directed against the judgment of acquittal dated

11.09.2009 passed by the court of learned Principal Sessions Judge,

Rajouri (hereinafter to be referred as the trial court) in file No. 6-Sessions

titled "State of J&K Vs. Mohd. Hussain" arising out of FIR No. 115/2000

registered with Police Station, Thanamandi for commission of offences

under Sections 306/376 RPC.

2. The judgment has been impugned primarily on the ground that the learned

trial court has not appreciated the evidence in its right perspective and

despite the fact that there was ample evidence on record, has acquitted the

respondent erroneously.

3. Mr. Bhanu Jasrotia, learned counsel for the appellant submits that the

learned trial court has not considered the Prosecution evidence while

passing the judgment impugned and has passed the same only on the basis

of surmises.

4. Mr. R. P. Sharma, learned counsel for the respondent submits that there is

no proximity between the death of the deceased and the alleged act of the

accused person /respondent, therefore, the learned trial court has rightly

acquitted the respondent for commission of offence under Sections 306

RPC. He further submits that there is no evidence on record to connect the

respondent with the commission of offence under Section 376 RPC.

5. Heard and perused the record.

6. From the record it transpires that the deceased committed suicide by

consuming poisonous substance in the evening of 25.09.2000 and

thereafter inquest proceedings were initiated and it was found by the

Investigating Officer that the deceased was married with one Sikinder

Hayat. Pursuant to the marriage, she resided with her husband for one

month only and thereafter, respondent who happened to be father-in-law

of the deceased took her to a separate house, where he used to have

forcible sexual intercourse with her. The deceased was fed up with the

wrong acts of the respondent and she informed that to her family as well

and finally on 25.09.2000 she consumed poisonous substance and ended

her life forever. After conclusion of inquest proceedings, FIR bearing No.

115/2000 was registered on 21.10.2000 for commission of offences under

Sections 306/376 RPC against the respondent. Investigation was

commenced and the Investigating Officer established offences under

Sections 306/376 RPC against the accused/respondent. The Investigating

Officer laid the charge-sheet before the court of Judicial Magistrate 1st

Class, Thanamandi and the same was committed to the learned trial court.

The learned trial court framed the charge against the accused/respondent

under Sections 306/376 RPC vide order dated 30.05.2001. As the

respondent did not plead guilty, so the prosecution was directed to lead

evidence. Out of 12 witnesses, the prosecution examined 9 witnesses. No

evidence was led by the respondent in his defence.

7. Since this is an acquittal appeal, so the only issue that is required to be

considered by this Court is as to whether the opinion formed by the

learned trial court while acquitting the respondent is possible/plausible on

the basis of evidence led by the parties and it can be done only when this

Court considers the relevant portion of the evidence led by the parties.

8. PW Majedha Begum (Mother of the deceased) stated that the deceased

was her daughter and last year on 11th of Baisakh she had solemnized

marriage of her daughter with son of the respondent. She came three to

four times within first five months to her residence and during those visits

she was happy, however, when she came after one month, she was found

to be perturbed and on insistence she posed a question to her as to whether

she was married to son or to his father. She also asked them not to talk to

anybody in that regard. Nothing was told except this by the deceased to

her. During cross-examination, she deposed that she did not disclose what

was narrated by her daughter to anyone and even not to her husband.

After a month she left their house, she died.

9. PW Hassan Mohd (Father of the deceased) stated that the deceased

Razia Begum was his daughter and was married to one Sikinder Hayat on

11th day of month of Baisakh. She resided with her husband for five

months and thereafter she died in his house. Before marriage, the

deceased came to their residence three times and was found to be happy

during all these three visits. However during her fourth visit, she was

found to be perturbed and she told her mother that her husband was not

putting up at his residence and further that the respondent had developed

illicit relations with her. After a month she died. He expressed ignorance

as to how she died. It was told by the Police that the deceased had died

because of consuming medicine. During cross-examination, he stated that

whatever was narrated by the deceased to her mother, she told the same to

him on the next day. He was, however, not present when the deceased

narrated the wrong doings of the respondent to her mother. He had not

reported in this regard either to Police or to the Village Panchayat.

10. PW Shanida Akhter (Sister-in-law of the deceased) stated that Razia

Begum was married to Sikinder Hayat in the month of April, 2000. About

one month prior to her death she was very upset and perturbed when she

came to her residence at Rajouri. On being questioned, she started

weeping and told that her husband was putting up in a separate house and

her father in law had developed illicit relations with her. She asked the

deceased to go back to her matrimonial house. Thereafter, she narrated in

that regard to her husband. Her father-in-law also got that information. He

went to the residence of the accused/respondent and talked to wife of the

accused/respondent. Mother-in-law of the deceased i.e. wife of the

accused/respondent assured father-in-law of the witness that she would

look into the matter and thereafter they got information that the deceased

had consumed Nuvan on the night of 25th. The deceased had told her that

in such circumstances, it was difficult for her to remain alive. During

cross-examination, she stated that they had not initiated any legal

proceedings against the respondent/accused. After the death of the

deceased they did not initiate any proceedings against the accused, but it

was the accused who informed the Police regarding the occurrence. Her

statement was recorded after one month of the occurrence.

11. PW Mohd. Rafiq (Brother of the deceased) stated that the deceased was

married on 23.04.2000 to one Sikinder Hayat. On 30.08.2000 the

deceased had come along with her husband to his residence at Rajouri. He

went to the room of her sister after hearing her cries and on enquiry

nothing was told by the deceased. He asked his wife to enquire from the

deceased. Thereafter, he was told by his wife that whatever was narrated

by the deceased was not worth narrating to him. When he compelled, she

narrated that the husband of the deceased was putting up with her mother

at Village Dodasan Bala, whereas she was kept with her father-in-law in

another house at Village Nerojal. It was further disclosed by her that the

accused used to commit forcible sexual intercourse with her during night

and the deceased had also told that she was unable to survive, as the act of

the accused/respondent was so grievous. Thereafter he went to his mother

at village Sangote and his mother also narrated the same to him and he

was told by his mother that she was already aware of these incidents. His

mother talked to his father and his father discussed the matter with the

wife of the accused/respondent. He requested the accused/respondent not

to treat the deceased in such a manner, but to no effect. On 25.09.2000

information was received that the deceased committed suicide by

consuming Nuvan. During cross-examination, he stated that husband of

the deceased was accompanying her when she narrated the occurrence to

his wife. He told the husband of the deceased regarding the wrong doings

of the respondent/accused and he said that he would enquire into the

matter from his father. Husband of the deceased got angry when the

occurrence was narrated to him. He asked his father to allow the deceased

to co-habit with him. He did not initiate any proceedings against the

accused by taking into consideration the sensitivities of their relations.

The deceased resided along with the accused/respondent for one month

and during that period nothing was narrated by the deceased either to him

or to his wife.

12. PW Mohd. Zaman proved the seizure memo of dead body (EXPW-

6/MZ), seizure memo of clothes of the deceased (EXPW-6/MZ/I). He also

proved the receipt of the dead body by the relatives for burial (EXPW-

6/MZ/II). During cross-examination, he stated that seizure memo of the

bottle of Nuvan though carries his name, but the signatures on the said

memo are not his signatures.

13. PW Mohd. Ashraf stated that he knew the accused/respondent present in

court. The deceased was respondent's daughter-in-law. He went on spot

where many persons had gathered. Daughter-in-law of the

accused/respondent had already died. He lodged the report with the

Police. He proved the same EXPW-5/MH.

14. PW Noor Mohd (ASI): He conducted the inquest proceedings in terms of

Section 174 Cr. P.C. He prepared the site plan of the place of occurrence

EXPW-10. He prepared the seizure memo of the dead body, receipt of

dead body and also the seizure memo of plastic bottle containing the

poisonous substance-Nuvan. He also stated that he prepared the seizure

memo of the clothes of the deceased and also Supurdnama of the seal

EXPW-10/B. He proved the contents of inquest proceedings to be true.

After conducting proceedings in terms of Section 174 Cr.P.C, FIR No.

115/2000 was registered for commission of offences under Section

306/376 RPC and statements of some of the witnesses were recorded.

After his transfer, investigation was handed over to Mohd. Rafiq-Sub-

Inspector. During cross-examination, he stated that he had not enquired as

to whether the deceased had lodged any FIR or otherwise narrated the

occurrence regarding committing of sexual intercourse by the respondent

with her. None of the witnesses had deposed during the period of 25 days

that the accused used to perform sexual intercourse with the deceased.

Nobody from the neighbourhood had deposed in this regard to him.

15. PW Dr. Seema Abrol: She conducted the post mortem of the deceased

and proved the post mortem report EXPW-9/SA. After post mortem she

issued a certificate and proved the same EXPW-9/SA/1. In her opinion the

cause of death of the deceased was consumption of Organo-phosphorous

substance.

16. PW Mohd. Rafiq stated that he presented the charge-sheet against the

accused after he proved the offence under Sections 306/376 RPC.

17. From the record, it is evident that the deceased committed suicide on

25.09.2000 and cause of death was consumption of poisonous substance.

The story projected by the prosecution with regard to the commission of

suicide by the deceased is that the respondent/accused had indulged in

forcible sexual intercourse with her and being fed up with her life because

of the said act of the respondent/accused, she committed suicide. In order

to prove the allegations, the prosecution has relied upon the testimonies of

parents of the deceased i.e. Majedha Begum and Hassan Mohd, brother of

the deceased-Mohd. Rafiq and sister-in-law of the deceased-Shanida

Akhter. Though, it has come into evidence that the deceased came to her

parental home one month prior to her death and she disclosed that for the

last one month she had been residing with the respondent/accused and

respondent was sexually abusing her. There is also evidence on record

that in her earlier three visits, the deceased was happy and it was only on

her fourth visit that she was perturbed. It needs to be mentioned that the

deceased committed suicide on 25.09.2000 and PW-Noor Mohd who

initially conducted the investigation has categorically stated that none of

the witnesses during the period of 25 days stated/deposed that the

accused/respondent used to commit sexual intercourse with the deceased.

18. In the present case the prosecution has relied upon the statement of

parents, brother and sister-in-law of the deceased, as such, their

depositions are required to be examined with due care and caution. Once

these witnesses did not depose anything against the respondent/accused

for 25 days, as narrated by the PW Noor Mohd, who not only conducted

and completed the inquest proceedings but also conducted the

investigation of FIR No. 115/2000 in part, creates doubt about the

prosecution, more particularly when no neighbor has been associated with

the investigation by the Investigating Officer. Though, the prosecution

witnesses have raised needle of suspicion towards the respondent/accused

for forcing the deceased to commit suicide, but there is nothing on record

as to what happened on the day when the deceased committed suicide. It

assumes relevance particularly in view of the fact that the prosecution

witnesses are categoric in their depositions that the deceased had come to

her parental house one month prior to her death. Learned trial court has

come to the right conclusion so far as acquittal of the respondent is

concerned. Though, the learned trial court has placed much reliance upon

the Section 32 of Evidence Act and this Court after perusing the judgment

passed by the learned trial court is of the opinion that there is infact no

wrong appreciation of evidence by the learned trial court.

19. It is settled law that in an appeal against the acquittal if the learned trial

court has acquitted the accused after appreciation of the evidence, then the

order of acquittal is not required to be interfered, merely because of the

reason that on the basis of same set of evidence other view is also

possible.

20. Viewed thus, there is no merit in the present appeal and the same is

accordingly dismissed.

(RAJNESH OSWAL) JUDGE

Jammu 13.04.2023 Sahil Padha Whether the order is speaking: Yes/No.

Whether the order is reportable: Yes/No.