State vs Rakesh Kumar
2023 Latest Caselaw 2345 j&K

                                                                                    16
      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                        CRAA No. 174/2014


State                                               .....Appellant(s)/Petitioner(s)

q
                       Through: Mr. P D Singh, Dy. AG.
                  vs
Rakesh Kumar                                                  ..... Respondent(s)
                       Through: Mr. Karan Sharma, Advocate
Coram: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                                  JUDGMENT

19.10.2023

(ORAL)

01. This appeal has been directed against judgement dated 31.12.2013 passed by

learned Principal Sessions Judge, Jammu ('trial court' for short) vide which

respondent has been acquitted of the charges for offences under Sections 306/498-A

RPC.

02. Before a closer look at the grounds urged in the memo of appeal, it would be

apt to have an overview of the backgrounds facts.

03. As the prosecution story would unfurl, complainant Sudesh Kumari (PW-1)

made a statement in the Police Station alleging inter alia that on 05.06.2006, at about

8:00 p.m., her son-in-law Rakesh Kumar, respondent herein, came drunk to her

house. He started abusing her and deceased Pinky Devi (wife of the respondent).

When she tried to intervene, she was abused by him and when deceased tried to

intervene, she was beaten by him. Accused hit the deceased on her belly, as a result

whereof, she felt unconscious and when she regained her consciousness, she found

the deceased lying in the room with severe burn injuries. On her raising alarm, the

neighbourers came to the spot.

Page |2 CRAA No. 174/2014

04. It was on the basis of this statement of the complainant that FIR No. 90/2006

for aforesaid offences came to be registered against the respondent. The investigating

agency completed rituals of investigation and it culminated into filing of final report

in terms of Section 173 CrPC. Accused was charged for the aforesaid offences,

whereby he pleaded innocence and claimed trial, prompting the trial court to ask for

the prosecution evidence. The prosecution has examined eight witnesses out of 25

cited in the case. Respondent denied the incriminating imputations arrogated to him

in his statement under Section 342 CrPC and opted not to enter the defence.

05. Learned trial court has marshalled and appreciated the prosecution evidence

to conclude that prosecution case is bad for want of substantive independent

evidence and prosecution has also failed to prove the abetment on the part of the

respondent. Learned trial court has observed that it is not a case of suicide and

therefore, respondent was acquitted of the charges.

06. The appellant-State has questioned the impugned judgment inter alia on the

grounds that learned trial court has failed to appreciate prosecution evidence in the

right perspective as there was sufficient documentary and oral evidence on record to

sustain conviction of respondent.

07. Having heard the rival contentions and perused the impugned judgment, I

concur with the findings recorded therein for the following reasons.

08. For the sake of brevity, instead of giving a detailed resume of the

prosecution evidence, the relevant excerpts of the testimonies of the prosecution

witnesses shall be referred as, when and where required.

09. Respondent has been charged, inter alia, with the alleged commission of

offence under Section 306 i.e. abetment to suicide. It reads thus:-

                                     Page |3                                          CRAA No. 174/2014




           "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."

10. It is evident from a bare perusal of afore-quoted provision that Section 306

RPC conceives abetment to suicide in the terms and meaning of abetment as

understood in Section 107 RPC, which reads as below:-

"Abetment of a thing

A person abets the doing a thing, who-

Firstly-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.

....................

...................."

11. From a plain reading of Section 107 RPC, it is manifest that a person who

instigates any person to do a particular thing or engages with one or more other

person or persons in any conspiracy for the doing of that thing and if an act or

illegal omission takes place in pursuance of that conspiracy and in order to doing

of that thing, he intentionally aids, by any act or illegal omission, the doing of that

thing, he shall be liable for abetment of that thing. It is evident therefore, that to

constitute the abetment of an offence, intentional aid and active participation of the

abettor must be established. Therefore, question which arises for consideration, in

the present case, is whether respondent is guilty of instigating or engaging with

anybody in any conspiracy or intentionally aiding by any act or illegal omission,

the victim to commit suicide.

12. In a case of abetment to suicide, the entire matter would be clothed in Page |4 CRAA No. 174/2014

secrecy and it would be very difficult to collect direct evidence in this respect.

However, at times, circumstances attending the case, would be more significant

then direct evidence by establishing culpability of the accused. Reverting to the

case on hand, it is the prosecution case that deceased was tired of her continuous ill

treatment at the hands of the respondent, which instigated her to douse kerosene oil

upon herself and set herself ablaze. In order to substantiate the charge, as already

stated, prosecution has examined eight witnesses out of 25 cited. Out of the said

eight witnesses, PW-3 and PW-8 have turned hostile. Out of remaining six

witnesses, PW-4 is witness to the seizure memos and PW-8 is the FSL expert.

Therefore, the entire prosecution case hinges on the testimonial potency of

remaining four witnesses i.e. complainant PW-1, PW-3, PW-5 and PW7.

13. The appellant-State seeks conviction of the respondent on the predominant

premise that since deceased was fed up with continuous ill treatment at the hands of

the respondent it instigated her to resort to the extreme step of taking her own life.

PW-1 Sudesh Kumari, the complainant who happens to be mother of the deceased

has deposed that she was told by her daughter that accused used to beat her and

demanded dowry, however, the said factum has not been reflected in her statement

recorded under Section 161 CrPC. PW-7 Mamta Sharma is another witness who in

her chief-examination has stated that respondent after marriage started beating his

wife and demanded dowry. PW-7 Mamta Sharma is cousin sister of the deceased. It

is strange that deceased preferred to narrate the incidents regarding dowry demands

of the respondent to her cousin sister instead of reposing in her mother, who

categorically stated that she was told by the deceased only that respondent demanded

dowry.

Page |5 CRAA No. 174/2014

14. Be it noted that complainant, PW-1 Sudesh Kumari, did not make any such

statement under Section 161 CrPC that deceased made a dowry demand. PW-5

Vinod Kumar Verma is neighbourer of the complainant. Though he testified that fire

emanated from the house of the accused and his wife had caught fire, however, he

categorically stated that accused was not there and he also denied in his cross-

examination that accused used to fight with the deceased. As such, the statements of

the mother and cousin sister of the deceased are belied by the independent witness

PW Vinod Kumar Sharma that deceased was instigated by the respondent or any

demand of dowry was made by him.

15. Significantly mother of the prosecutrix, PW 1 who happens to be complainant

in the present case and on whose statement the investigating agency was set into

motion turns out to be a hearsay witness about the dowry demand, as she testified

that she was told by the deceased that respondent used to demand dowry. It is also

worthwhile to mention that the complainant, in her statement has categorically stated

that she felt unconscious and on regaining conscious she found the deceased with

burn injuries. Therefore, she is not even witness to the occurrence.

16. Therefore, on careful scrutiny and critical examination of the facts and

circumstances of the present case, in the light of legal position of law, there is no

evidence or material on record wherefrom an inference of respondent having abetted

the commission of offence of committing suicide by the deceased may be drawn.

There is nothing on record to suggest that respondent ever intended or actively

participated to abet the commission of suicide by the deceased, therefore, offence

under section 306 IPC is not made out and observation of learned trial court in this

regard cannot be faulted with.

Page |6 CRAA No. 174/2014

17. Respondent has also been charged with the commission of offence under

Section 498-A RPC, which reads as under:-

"A. 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 purpose 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, limbor 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".

18. From a perusal of the aforesaid provision, it is manifest that consequence of

cruelty, which are likely to drive a woman to commit suicide or to cause grave

injury or danger to life, limb or health, whether mental or physical of the woman,

are required to be established in order to bring home application of the aforesaid

provision.

19. It no longer remains res integra now that mere harassment or mere

demand for dowry by itself is not cruelty. The definition of cruelty contained in

explanation to section 498-A, consists of two parts. Clause (a) relates to wilful

conduct, which is of such a nature as to drive the woman to commit suicide. The

second part contained in Clause (b) relates to harassment of women with a view to

coercing her to meet an unlawful demand for any property etc. Therefore,

reasonable nexus has to be established between the cruelty within the meaning of

explanation (a) of Section 498-A and the suicide within the meaning of Section 306

RPC. However, prosecution has failed to establish any such nexus. As already

discussed, the independent witnesses examined by the prosecution have testified in Page |7 CRAA No. 174/2014

clear terms that relations between the couple viz; the respondent and deceased were

cordial. Even mother of the victim has not stated in clear terms that deceased was

subjected to cruelty at the hands of the respondent which was of such a nature, as

was likely to drive the deceased to commit suicide within the meaning of

explanation (a) of 498-A RPC

20. What comes to the fore, from the conspectus of the prosecution case is that

deceased was hyper sensitive to ordinary petulance of life. Mere harassment of a

wife by her husband or in-laws or dowry demand per se does not attract Section

306 RPC. The courts in such circumstances are expected to assess facts and

circumstance of the case as also evidence adduced by the prosecution during the

trial with care and circumspection in order to determine whether cruelty alleged to

have been meted out to the wife in fact induced her to end her life by committing

suicide. If the present case is approached with this principal in mind, there is

nothing in the prosecution evidence to suggest that respondent ever intended or

participated to abet commission of suicide by the deceased.

21. Having regard to what has been observed and discussed above, I do not find

any illegality much less perversity in the impugned judgment of acquittal which is

well reasoned and lucid. Consequently, the present appeal is dismissed and

impugned judgment is upheld.

22. Respondent is relieved of his bail bonds.

(Rajesh Sekhri) Judge

Jammu 19.10.2023 Abinash Whether the order is speaking Yes

Whether the order is reportable Yes Page |8 CRAA No. 174/2014