Nagwant Prasad Gupta Son Of Suresh ... vs The State Of Jharkhand
2023 Latest Caselaw 4169 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Criminal Appellate Jurisdiction)
                       Acquittal Appeal No. 21 of 2016
(Against the judgment of acquittal dated 27th May 2016 passed by the learned
District and Additional Sessions Judge-VI, Gumla in S.T .Case No. 222 of 2012)


Nagwant Prasad Gupta son of Suresh Prasad, r/o Sanna, PO & PS-Sanna,
Tahsil-Bagicha, District-Jaspur (Chhattisgarh State)   ...... Appellant
                                    -Versus-
1. The State of Jharkhand
2. Shashi Prasad son of Nilkanth Prasad Gupta, r/o Village-Batgaon, PO &
PS-Sisai, District-Gumla (Jharkhand)                     ....Respondents
                               ---------------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Appellant         : Ms. Vipul Divya, Advocate
For the State             : Mrs. Priya Shreshtha, Spl. PP
For the Resp. No.2        : Mr. Jai Shankar Tripathi, Advocate
                               ---------------

                           JUDGMENT

CAV on 10th August 2023 Pronounced on 7th November 2023 Per, Anubha Rawat Choudhary, J.

Shashi Prasad, the husband of the victim, was put on trial in ST Case No.222 of 2012 on the charge under Section 306 of the Indian Penal Code and has been acquitted of the aforesaid criminal charge by the impugned judgment dated 27th May 2016 rendered by the District & Additional Sessions Judge-VI at Gumla.

2. Nagwant Prasad Gupta who is the informant of Sisai P.S. Case No.30 of 2012 being aggrieved by the judgment dated 27th May 2016 passed in ST Case No.222 of 2012 has filed the present acquittal appeal by virtue of the proviso to section 372 of the Code of Criminal Procedure, 1973. Findings of the trial Court in the impugned judgment:

3. The trial Judge disbelieved the prosecution case of abetment of suicide to the victim by the accused and the testimony of the related witnesses and held as under:

"33. Upon careful analysis of the prosecution witnesses and documentary evidences available on record, I come to find that the factum of death of deceased Purnima Devi, the younger sister of informant Nagwant Prasad PW-11 is duly supported by informant as 2 Acquittal Appeal No. 21 of 2016

well as by PW-1 Dinesh Prasad Gupta, PW-2 Hemant Prasad Gupta, PW-4 Bhola Oraon, PW-5 Ram Kumar Sahu, PW-6 Tarkeshwar Sahu, PW-7 Basant Oraon, PW-8 Shakuntla Ram, PW-9 Ram Prasad Gupta, PW-12 I/0 Sushil Kumar Singh, PW-15 Makardhwaj Sao and PW-16 Officer Incharge Birendra Toppo. This factum has also been corroborated by testimony of PW-10 Dr. Shambhu Nath Choudhary, which in turn is also corroborated by the post mortem report (Ext.-3), inquest report (Ext.-2/2) as well as written report Ext.4. The factum of death of deceased Purnima Devi by hanging from bamboo-beam with the help of rope is also proved by aforesaid witnesses which in turn is also corroborated by post mortem report (Ext.-3) and testimony of PW-10 Dr. Shambhu Nath Chowdhary who has stated in his examination in chief at para-4, interalia, that there was no evidence of external violence on the body except ligature mark at neck, about which he again states at para-10 that the ligature mark was ante mortem in nature. Further at para-8 he has opined that death is due to asphyxia due to hanging and asphyxiating force being weight of the body. In this regard in his cross-examination at para-14 and 15 he states interlia that there was no mark of violence on her body and internal injury found were all due to hanging.

The aforesaid testimony of PW-10 is also duly corroborated by Ext.-3 the Post Mortem Report which this PW has proved at para-

11. In this regard, PW-12 Sunil Kumar Singh, the I.O of this case has also stated at para-20 that while preparing the inquest report and talking to the witnesses it appeared to him to be a case of suicide. Furthermore, neither the factum of death of deceased Purnima by hanging nor the date, time or place of occurrence has been disputed by Ld. Advocate for defence. Thus, from the above oral and documentary evidences on record one of the two basic constituents of the offence under Section 306 IPC i.e. suicidal death stands duly proved by prosecution in this case.

In this connection, it is also worth mention that although the informant PW-11 has stated in his testimony at para-2 that it appeared that she has been murdered after marpit and his sister's head as well as leg were swollen and there were black mark on her cheek and hands, this factum has also been reiterated by PW's-1 & 2 in their respective examination in chief, but the same has not been corroborated either by the Doctor (PW-10) Shambhu Nath Chowdhary, or post mortem report (Ext.-3) or even written report of the informant (Ext.-4).

Therefore, it is neither the case of prosecution nor prosecution has been able to prove the fact of murder of deceased Purnima Devi by accused Shashi Prasad or his father Nilkanth Prasad and brother Dhiraj Sahu.

Under these circumstances it is an infallible inference that prosecution has been able to prove one of the two basic ingredients of offence punishable under Section 306 of the IPC i.e. suicidal death of the deceased.

34. So far as the proof of 2nd ingredient of Section 306 IPC i.e. abetment by accused in which there is such active or direct act of the accused Shashi Prashad which lead the deceased to commit suicide seeing no option and such act must also have been intended by the accused to push the deceased into such a position that she committed 3 Acquittal Appeal No. 21 of 2016

Suicide and necessary mens rea/intention of the accused to aid or instigate or abet the deceased to commit suicide is concerned, in this regard scrutiny of oral and documentary evidences available on record, shows that although the factum of torture meted out upon deceased Purnima by doing marpit with her for the sake of dowry demand has been stated by informant (PW-11), the uncle of deceased PW-1, cousin /brother of deceased PW-2 as well as by PW-9 Ram prasad Gupta ,the chacha of deceased Purnima Devi but the same has not stood test of cross-examination by defence in so far as they have categorically and candidly admitted that there was no complaint lodged before the police in respect of any such torture meted out upon the deceased for the sake of dowry demand.

Furthermore, so far as the mark of injury upon the dead body of deceased like swelling of her head and leg and black mark on her cheek and hands are concerned, they have not been corroborated either by PW-11 Dr. Shambhu Nath Chowdhary or post mortem report (Ext.-3) prepared by him. Instead, the PW-10 Dr. S.N. Chowdhary has categorically stated in his examination in chief at para-4 that there was no evidence of internal violence on the body except a ligature mark at neck. At para-10 he has further clarified that the ligature was ante mortem in nature. At para-14 and 15 he states that there was no mark of violence on her body and internal injury found were all due to hanging. These verbal account of PW- 10 finds due corroboration by documentary evidence (Ext.-3) i.e. Post Mortem Report prepared by him.

Further in this regard PW-8 Shakuntla Oraon has stated in her cross examination that she used to visit the house of deceased at times but she never heard any serious wrangle between the husband and wife. Similarly, PW-15 Makardhwaj Sao, who used to visit their house to deliver milk has stated at para-3 that at times he used to visit the house of daughter in law of Nilkanth to deliver milk when she used to come at with utensils for taking milk but he had never seen a scuffle between Shashi Prasad and his wife.

35. This goes on to show that prosecution has not been able to prove beyond all shadow of reasonable doubts, the abetment of suicide by the accused herein.

36. Further in this regard it may also be stated that none of the prosecution witnesses have deposed anything before this Court which may point out towards the intention of the accused on the basis of which it could be inferred that he added, instigated or abetted the deceased to commit suicide.

The prosecution has also not been able to bring on record any evidence either oral or documentary which could show any active act or any direct act on the part of the accused which lead deceased to commit suicide seeing no option or any such act on part of the accused which he would have intended to push the deceased into such a position that she committed suicide.

In Nutshell, it can be stated that the prosecution has not been able to bring on record any oral or documentary evidence against the accused herein much less proof beyond reasonable doubts of clear mens rea on part of the accused to commit the offence of abetment of suicide punishable under Section 306 of the IPC.

37. In this regard, it has also been vociferously argued by Ld. Advocate for defence that the instant case ought to fail merely on the 4 Acquittal Appeal No. 21 of 2016

sole ground that the investigation in this case is faulty in so far as the investigation started at 2.30 P.M itself whereas written report in this case has been furnished at the police station at about 8 P.M. In support of the same learned advocate for defence has also filed one judgement of Hon'ble Supreme Court namely Subramaniam Vs State of Tamil Nadu and others reported in 2009 (3) Eastern Cr. Cases 355 (SC).

In this regard I am of the considered opinion that it is a settled principle of law that ordinarily an investigation cannot be started without recording the FIR which has been also upheld by in the aforesaid judgement of the Hon'ble Supreme Court at para-25. From perusal of the aforesaid judgement of the Hon'ble Supreme Court itself it is very much clear that lodging of FIR before investigation is a general rule which must be respected.

But in the instant case, the same has been given a complete go by in so far as PW-12 Sunil Kumar Singh the IO of this case has himself admitted at para 19 that he prepared inquest report (Ext.2/3) and inspected the P.O. before lodging of FIR. Further from the testimony of PW-11 and other prosecution witnesses as well as from perusal of formal FIR it is evident that the written report was furnished by informant PW-11 at the PS at 20 hrs or 8 pm but at para 28 PW-12 the IO has himself admitted to have recorded the statement of informant Nagwant Prasad Gupta, Dinesh Pd. Gupta, Ram Pravesh Gupta, Hemant Pd. Gupta before reaching the P.S i.e. before lodging of FIR. This clearly is a huge lapse on the part of the I.O. which gives a heavy blow to the already limping prosecution case

38. In this regard it is also worth mention that the learned Advocate for defence has although strongly argued that the reason behind the commission of suicide by deceased Purnima Devi was minor altercation between her husband (accused) herein with her over her objection to her husband who was a non-vegetarian whereas she was a vegetarian. But this factum has neither been supported by lone defence witness Dinesh Sahu nor the defence could extract anything in this regard from prosecution witnesses in their respective cross-examination.

It is also apt to mention here that unlike the aforementioned case of the Hon'ble S.C the other cases cited by Ld. Advocate for defence is neither helpful to the defence case nor applicable in the peculiar facts and circumstances of this case.

39. However, on the basis of the aforesaid analysis I come to find and hold that the prosecution has miserably failed in bringing home the charge labelled against the accused herein under Section 306 of the IPC beyond all reasonable doubts.

40. In the result, the accused Shashi Prasad is hereby acquitted of the charge under Section 306 of the IPC. Since, he is in the Judicial custody, the Office Clerk is directed to issue release order at once. The Jail Authority is directed to release him from jail custody forthwith, if he is not wanted or in custody in any other case."

Arguments of the appellant(informant):

4. Ms. Vipul Divya, the learned counsel for the appellant has submitted that the evidence on record such as the ligature mark of the victim 5 Acquittal Appeal No. 21 of 2016

clearly indicated that the case was of murder and therefore the accused ought to have been convicted in the case. The ligature mark did not indicate that the victim died of hanging. She has also submitted that the postmortem report also indicated that the body was hanging for six hours.

5. The learned counsel for the appellant has also submitted that the evidence of the witnesses has not been properly considered by the learned Court below. The Investigating Officer (PW12) since the beginning started the investigation from the angle of suicide and did not take up the investigation from the angle of the murder even though he himself had seen marks of beating on the body of the victim and included the statement in the inquest report as a prosecution witness. The Investigating Officer has also overlooked the written report of the informant (PW11) and the statements of PW1, PW2, and PW9. The learned Court also failed to consider whether the sutli could hold the weight of the victim or that the total height of the bed, chair, and the victim exceeded the height of the rod from which the victim allegedly committed suicide. It has also been submitted that the doctor who conducted the postmortem and has recorded that the time elapsed since death was within 12 to 24 hours and has also recorded that the body was in hanging position for at least six hours, tried to draw an inference that the body was hanging since prior to 6:00 AM in the morning. In support of her contention, the learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in "State of Uttarakhand v. Darshan Singh" (2020)12 SCC 605, the judgment of this Court in Cr. Appeal (DB) No.861 of 2013 title "Sushen Modak v. State of Jharkhand" and the judgment of Gujarat High Court passed in Criminal Appeal No. 1156/2009 title "Mavjibhai Ramjibhai Taviyad v. State of Gujarat".

Arguments of the respondent no.2 (accused):

6. Mr. Jai Shankar Tripathi, the learned counsel for the accused relied upon the judgment passed by the Hon'ble Supreme Court in "Kashibai & Ors. v. State of Karnataka" 2023 SCC OnLine SC 575 and submitted that the Hon'ble Supreme Court has considered the provisions of section 113-A of the Evidence Act and it has been held that mere fact of commission of suicide by itself would not be sufficient for the Court to raise a presumption under section 113-A of the Evidence Act to hold the accused guilty under section 306 IPC and the prosecution is required to adduce 6 Acquittal Appeal No. 21 of 2016

clinching evidence to enable the Court to conclude that the accused had abetted the victim to commit suicide. He further submitted that even in the light of section 113-A of the Evidence Act, the prosecution has not been able to prove the case of abetment to hold the accused guilty under section 306 IPC.

Scope of interference in the matter of appeal against acquittal:

7. Before considering the merits of the case, it would be useful to consider the judgment passed by the Hon'ble Supreme Court laying down the scope of interference in the matter of appeal against acquittal. In "Chandrappa v. State of Karnataka" (2007) 4 SCC 415, the Hon'ble Supreme Court held that the appellate Court should not ordinarily interfere with a judgment of acquittal in a case where two views are possible even though the trial Court's view may not appear 'more probable one'.

8. In "Chandrappa" (supra) the Hon'ble Supreme Court has held as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

9. In the judgment passed by the Hon'ble Supreme Court in "Mrinal Das v. State of Tripura" (2011) 9 SCC 479, the Hon'ble Supreme Court has held that the appellate Court being the final Court of facts is fully competent to re-appreciate, reconsider and review the evidence and take its 7 Acquittal Appeal No. 21 of 2016

own decision keeping in mind that the acquittal provides for a presumption in favour of the accused and also that if two reasonable views are possible on the basis of the evidence on record the appellate Court should not disturb the findings of the trial Court. The appellate Court can also review the conclusions arrived at by the trial Court both on questions of fact and law and it is the duty of the appellate Court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. Paragraph no. 8 of the aforesaid judgment is quoted hereunder for ready reference:

"8. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."

10. The aforesaid view of the Hon'ble Supreme Court has been reiterated in numerous judgments passed by the Hon'ble Supreme Court including in "Ravi Sharma v. State (NCT of Delhi)" (2022) 8 SCC 536.

11. This case has to be decided keeping the aforesaid principles in mind.

Findings of this Court:

12. A First Information Report was lodged on 12th March 2012 at 20 hours. under section 302 read with Section 34 of the Indian Penal Code against Shashi Prasad, Dhiraj Prasad, and Nilkanth Prasad. The time of 8 Acquittal Appeal No. 21 of 2016

information received at the police station has been recorded as 14:30 hours. In the written report given to the officer-in-charge of Sisai PS, the informant stated that his younger sister, namely, Purnima Gupta was married to Shashi Prasad son of Nilkanth Prasad in the month of April 2007. It was alleged that Shashi Prasad called the informant on 9th March 2012 at about 4:00 PM and informed him that some altercation was going on between him and his wife and asked the informant to take back his sister. When the informant called the father of Shashi Prasad, he said that it was a trivial domestic matter. The informant again called the father of Shashi Prasad on 10th March 2012 at 9:00 AM and told him that he was coming to take back his sister, but the father of Shashi Prasad asked him not to come and told the informant not to worry. The father of Shashi Prasad also disclosed the reason for the altercation by stating that Shashi Prasad had asked for some cream from the sister of the informant which was given by her from some distance and upon that, Shashi Prasad had severely beaten the informant's sister. The informant alleged that all this happened because there was some illegal demand for money and some articles by the in-laws of his sister as disclosed by his sister. On 12th March 2012, Shashi Prasad called the informant at 1:30 PM and asked the informant to come as his younger sister had committed suicide by hanging. The informant asked him not to touch the dead body of his sister. The informant further stated in the written report that in the morning of the date of occurrence, the victim had talked to her elder sister over phone and had told the elder sister that nobody was eating the food prepared by her and nobody was talking to her. The informant went to the in-laws' house of the victim and saw her dead body lying on the bed. It was alleged that Shashi Prasad, Nilkanth Prasad and Dhiraj had killed his sister.

13. After the investigation a chargesheet was laid only against Shashi Prasad, respondent no.2 (hereinafter referred to as accused) vide Chargesheet No.37 of 2012 dated 30th May 2012 under section 306 IPC keeping the investigation pending against Nilkanth Prasad and Dhiraj Prasad and the accused was sent up for trial. The learned Additional Chief Judicial Magistrate took cognizance of the offence under section 306 IPC by order dated 13th June 2012 passed in G.R No.211 of 2012 and directed the office to open a split-up case record for the accused persons against whom 9 Acquittal Appeal No. 21 of 2016

investigation was going on and by order dated 2 nd August 2012 committed the case of the accused to the Court of Sessions for trial. As the trial proceedings would reveal, the records of the accused were received in the Court of Sessions on 14th August 2012 and made over to the Court of Additional Sessions Judge-I for framing of charge. On 3rd December 2013 charge on one count viz. under section 306 IPC was framed and the content of the charge was read over and explained in Hindi to the accused, who pleaded not guilty and claimed trial.

14. During the trial altogether 16 witnesses were produced by the prosecution and the prosecution evidence was closed on 19th November 2015 and the statement of the accused was recorded on 3rd December 2015. The defence set by the accused was that the allegations were completely false and he was innocent and he proposed to produce evidence. The defence was in complete denial of the allegations. The accused produced one witness in his defence. The defence evidence was closed on 10th December 2015. On 29th April 2016, the case record was transferred to the Court of Additional Sessions Judge-VI which was received in the Court of Additional Sessions Judge-VI on 2nd May 2016 who after hearing the arguments, delivered the judgment of acquittal of the accused.

15. The defence was in complete denial and claimed innocence of the accused. It was asserted that the family of the informant and the victim were vegetarian whereas the accused and his family members were non- vegetarian which was strongly disliked by the victim which gave rise to an altercation between them. It was further case that no external injury on the person of the victim was found except hanging. The prosecution case was supported by several relatives of the victim who are residents of Jaspur situated about 140 K.M. away from the place of occurrence; none of the villagers of Sisai and not even the resident of the same building in which the occurrence took place supported the prosecution case and further that the investigation was started without lodging the First Information Report. The case suffers from faulty investigation as the investigation started at 2:30 PM on 12th March 2012 whereas the First Information Report was lodged at around 8:00 PM only. The defence had examined only one witness.

16. All the charge-sheeted witnesses were examined in the case. PW1 Dinesh Prasad Gupta is the uncle of the victim, PW2 Hemant Kumar 10 Acquittal Appeal No. 21 of 2016

Gupta is the cousin brother of the victim, PW3 is Chandreshwar Sahu, PW4 is Bhola Oraon, PW5 is Ram Kumar Sahu, PW6 is Tarkeshwar Sahu, PW7 is Basant Oraon, PW8 is Shakuntala Oraon, PW9 Ram Prasad Gupta is uncle of the victim, PW10 Dr. Shambhu Nath Choudhary is the doctor who has conducted the postmortem over the dead body, PW11 Nagwant Prasad Gupta is the informant, PW12 Sunil Kumar Singh is the first Investigating Officer, PW13 is Surendra Sahu, PW14 is Ashok Gope, PW15 is Makardhwaj Sao and PW16 Birendra Toppo is the then officer-in-charge of the police station who subsequently taken up the investigation upon transfer of the first Investigating Officer.

17. Besides the oral evidence, the prosecution also adduced some documentary evidence which are extracted below:

Ext. 1- Signature of Hemant Kumar Gupta on written application Ext.1/1- Signature of Ram Prasad Gupta on written application, Ext.1/2- Endorsement on written application Ext.2- Signature of Basant Oraon on inquest report (carbon copy) Ext. 2/1- Signature of Shakuntla Oraon Ext. 2/2- Carbon copy of inquest report Ext. 3- P.M. Report of Purnima Devi, and Ext. 4- Written application.

18. PW10 is the doctor who conducted postmortem over the dead body and found the following injuries:

"1. External Examination:

There was no evidence on external violence on the body except a ligature mark at neck whose details are as follows:

(a) The circularly placed area of ecchymosis measuring 1 inch in width and running across the neck, above the thyroid cartilage, running anteriorily across the mastroid process on both sides with a knot mark on the right occiput but deficient on left side with dribbling of saliva from angle of right side of the mouth.

2. Internal Examination:

Head and neck on dissection of neck: there is hemorrhage with dark black colour blood in all the layers of anterior part of the neck with fracture of tracheal cartilage and tear in the esophagus. The thyroid cartilage is compressed and fractured antero-posteriorly with fracture of hyoid bone. Upon dissection he found the thorax of lung congested, both chambers of heart filled with dark blackish blood.

Opinion: The death is due to asphyxia due to hanging and 11 Acquittal Appeal No. 21 of 2016

asphyxiating force being the weight of the body. Time elapsed since death: within 12-24 hours and ligature was ante-mortem in nature."

PW 10 has deposed that on 13th March 2012 he was posted at Sadar Hospital, Gumla as Surgeon and he had examined the dead-body of the deceased - 23 years-old female, wife of the accused of village Bargaon PS Sisai, District Gumla. He has deposed that rigor mortis was present in all four limbs. Post-mortem staining was found on both lower limbs at ankles and both palms. He has deposed that time elapsed since death was within 12 to 24 hours. The post-mortem examination was done at 12:00 Noon and completed at 12:50 PM. Upon a Court query, he has stated that the post- mortem stain found on the body suggested that the body was in hanging position for at least six hours, if not less. This witness has also deposed that there was no mark of violence on the body and her clothes were also found intact. The internal injuries as found, were all due to hanging.

19. PW1, the uncle of the victim has fully supported the prosecution case. PW1 is a resident of Sanna, district Jaspur in Chhattisgarh. He deposed that the marriage of the victim with the accused had taken place in April 2007 and after the marriage, everything was OK for some time but later on, the victim was being tortured for dowry. The victim disclosed this fact whenever she came to Sanna. The matter was taken up with the accused and his father but in response, they said that everything was all right. PW1 further deposed that on the date of occurrence i.e. on 12th March 2012, the informant had talked to the father of the accused just two hours before the incident and the father of the accused had stated that it was a family matter. After two hours from such conversation, the accused informed the informant over the phone that the victim had hanged herself. The accused was asked not to touch the dead body. However, upon reaching the place of occurrence, he found that the dead body of the victim was lying on the bed and upon looking at the dead body it was apparent that the victim was assaulted and was murdered but was given the colour of suicide.

This witness has been thoroughly cross-examined. During cross-examination, PW1 has stated that everything was O.K. for two years. The accused used to torture the victim for dowry and this fact was also disclosed in the written report and also in the statement before police. The victim gave birth to two children out of them one died. PW1 admitted that 12 Acquittal Appeal No. 21 of 2016

there was no Panchayati or complaint in police in connection with torture regarding dowry. PW1 has stated that there were quarrel in the family on account of the fact that the victim was vegetarian and the family members of the accused were non-vegetarian; there was Holi festival about 4 to 5 days before the incident and the victim was residing in a rented house with the accused who used to run a betel and tobacco shop. He denied the suggestion of the defence that the victim committed suicide due to a quarrel on the issue of vegetarian and non-vegetarian food.

20. PW2, is the cousin brother of the victim and is a resident of Sanna, district Jaspur in Chhattisgarh. This witness has also supported the prosecution case. He has stated that everything was O.K. for three years of the marriage and thereafter the accused started demanding money and used to beat the victim for the last two years due to non-payment of money. This fact was disclosed by the victim when the victim came home. He has also stated that on 12th March 2012 the accused made a phone call to the informant that his sister had hanged herself and PW2 came to know about this fact when the informant informed the brother of PW2 over the phone. This witness reached the place of occurrence in the evening at 6:30 PM. He had seen the dead body with signs of beating and upon seeing the dead body it appeared that the victim was murdered. This witness had put his signature on the written report which was marked as Exhibit-1.

PW2 has been thoroughly cross-examined. In paragraph nos.5 and 6 of his cross-examination, he stated that whatever he has stated in the examination-in-chief was also stated to the police. He has stated that there were marks of assault on the cheeks and back of the dead body and the cheeks were swollen but he could not say as to whether the assault was by a danda or any other weapon. He has stated that the victim had come to his house in the month of December 2011 and the informant had come to take her back; no action was taken with respect to the torture of the victim and the victim had stayed for 10 to 12 days. He has stated that the victim was vegetarian but the accused and his family were non-vegetarian; the victim had told him that she did not object to the accused from having meat. He denied the suggestion of the defence that the victim used to abuse the accused for eating meat and there was a quarrel on this point.

21. PW9 is the uncle of the victim a resident of Sanna, district 13 Acquittal Appeal No. 21 of 2016

Jaspur in Chhattisgarh. He has fully supported the prosecution case. This witness has also supported the prosecution case. He has stated that the marriage had taken place in the month of April 2007 and for about 2 years everything was all right and thereafter the quarrel had started and they always demanded one or the other thing. He has stated that on 9th March 2012, the victim had called her brother and told that a fight was going on. His brother stated that he was coming to take her but the father of the accused said that he would resolve the dispute by talking to his son (accused). On 12th March 2012, the accused called the brother of the victim that his sister had hanged herself. This fact was informed to PW9 by the brother of the victim and then 4 persons came to Sisai where the accused was living in a rented house. They saw the victim lying on a "Chowki" (bed) and the police personnel were also present; they told everything to the police; the police had taken the statement of the brother (PW11) of the victim and this witness had also put his signature on it which was exhibited as Exhibit-1/1.

PW9 has been thoroughly cross-examined. He has stated that after putting his signature on his statement, he did not meet the police again. He has stated that the brother of the victim had a Bolero which he used as 'taxi' and he used to go to Ranchi for his work. The brother of the victim had not informed this witness that Sisai was on the way to Ranchi and while on the way he halted or not in his sister's house. He has also stated that after marriage, he had come to the house of the accused for the first time. The victim had a son and PW9 made no effort to meet him. He had no conversation with the victim over phone. He had deposed before the Court on the basis of information received from the brother of the deceased, PW 11. He has deposed that on the cheeks, back and legs of the victim, blood marks could be seen which was on account of clotting of blood and has denied that he was giving any incorrect statement regarding black marks on the dead body. He has also stated that his family is vegetarian but the victim did not object to consumption of non-vegetarian food by her husband (accused) and this fact was disclosed by the victim to him when she visited Sanna. He has stated that he was not aware as to whether the victim had a mobile phone, but brother and sister always used to talk to each other. He has denied the suggestion that he had given false evidence and had been 14 Acquittal Appeal No. 21 of 2016

tutored by the brother of the victim (PW11).

22. PW11 is the own brother of the victim and is also a resident of Sanna, district Jaspur in Chhattisgarh. He is the informant of the case. He has fully supported the prosecution case. He has mentioned the fact that marriage took place in April, 2007 and everything was fine for two years, but thereafter trouble started. On 9th March 2012 at about 4:00 PM the accused made a call on his mobile phone and stated that a quarrel was going on and asked him to take away his sister whereafter the informant made a phone call to the father of the accused and asked him to look into the matter. On the next day when he again made a phone call, the father of the accused said that he had pacified them and asked the informant not to come to take his sister. He further stated that on 11th he talked to his sister who told him about abuse, maarpit and demand of money and on 12th when the informant talked to the father of the accused, he was informed by the father of the accused that he had made them understand and upon this the informant felt satisfied, but on the very same day at about 1:30 PM the accused called him and told him that his sister has hanged herself. He asked the accused not to touch the dead body of the victim but when they reached the place of occurrence, they found the dead body on a "Chowki" (bed). They saw that the head and legs of his sister were swollen, there were black marks on her cheeks and hands and it appeared that she had been murdered by beating. He identified the written report which was in his own handwriting and signature as Exhibit-4. He has further stated that before this occurrence in the month of December the victim had come to her maike and had told about maarpit with her and at that time also they had seen the signs of maarpit on her body.

PW11 has been thoroughly cross-examined. During his cross- examination, he stated that he told the police that on 11 th when he had talked with the victim, she had informed him about the abuse and assault made to her for the demand of money. He admitted that he had not stated in his written report that the head and legs of her sister were swollen and there were black marks on her cheeks and hands. He stated that the police had enquired from him after lodging the First Information Report. He stated that the police had not enquired from him after the institution of the First Information Report and after burning the dead body rather he had himself 15 Acquittal Appeal No. 21 of 2016

gone to the police station to enquire about the proceeding. He admitted that he had not mentioned in the First Information Report that earlier the victim had come to her parental house in December and informed him about the assault made to her and that he had seen the marks of assault on her body. He stated that the victim had earlier been to her parental house after 10th December 2011 and the victim told her that she was assaulted and he had seen marks of assault on her body. He denied the suggestion of the defence that he had concocted a story before the Court about swelling of the head and legs and black marks on the cheeks and hands of his sister for making the case serious and to punish the accused.

During cross-examination, PW11 also stated that when they reached the place of occurrence the accused, his family members, villagers, and the police were waiting for them. He had seen the place where the victim was hanged and it was a tiled roof having a height of about 7-8 feet, but he had not seen the rope by which the victim was hanged. He could not get information as to who had brought the dead body down. He could not say as to whether the accused was in his house or at his shop at the time of hanging. He denied the suggestion that he knew that the accused was at his shop at the time of hanging and he was concealing this information. He further stated that he received information that the victim had died and a ligature mark was present on her neck and he had seen the dead body in the presence of the police. He denied the suggestion that he had lodged a false case against the accused and his family members with a prejudiced mind. He denied the suggestion that he had lodged the case against the accused in a planned manner and has accordingly deposed in the case.

During cross-examination, PW11 also stated that the victim had her own mobile with which she used to talk to him and 2-3 other phone numbers were also used by her. He stated that lastly, he had talked with the victim on 11th morning and again stated that he had talked with her on 10 th morning at 8:00 to 9:00 AM and the call had gone from his side. He admitted that he had not informed the police about the quarrel which he stated before the Court.

During cross-examination at paragraph no. 6, PW11 has stated that he told the police that on 11th when he had talked with the victim, she had informed him about the abuse and assault made to her for the demand of 16 Acquittal Appeal No. 21 of 2016

money. At paragraph no. 24, he has stated that the victim used to talk to them on mobile and she had her own mobile. She used to talk through two to three mobile numbers also. In paragraph no. 25, he has stated that lastly he had talked to the victim on 11th and in the same paragraph, he has again stated that he had talked on 10th or 11th at 8 to 9 O'clock in the morning. In paragraph no. 26, he has stated that the phone call was made from their side to the victim and in paragraph no. 27, he stated that he does not remember as to when the victim had called him last. With regard to his visits to the house of the victim, he has stated that he had a Bolero vehicle and a motorcycle and at times he used to go to Ranchi by the said Bolero on rent and sometimes he used to go to Ranchi for treatment. Sisai was on the way from Sanna to Ranchi and on the way, they used to go to the house of the victim and used to have food there. On one occasion, they had gone in his Nano car alongwith his wife for treatment at Ranchi and in order to help them, the father of the accused had also accompanied them to Ranchi. While going back also, they had stayed in the house of the accused.

He has also stated that after marriage they had gone to the house of the victim for 12 to 15 times. So far as visit of the victim to the house of the informant is concerned, it has been mentioned that she used to visit Sanna one or two times a year and whenever there was any function she was invited and she used to visit whenever she was permitted by her in-laws. He has also stated that lastly the victim had visited his house in the month of December and he has further stated that on such visit, she had informed him about the assault being made to her and had shown marks on her body. He has stated in paragraph no. 28 of his deposition that he had not stated about the quarrel to the police. He has stated that the accused and his family used to eat non-vegetarian food occasionally and he had a conversation about this fact with the victim, but the victim never used to oppose consumption of non-vegetarian food. He was also cross-examined on the point that just a few days prior to the occurrence in the concerned year, Holi was celebrated on 8th and 9th of March. This witness has stated in paragraph no. 7 of the cross-examination that he had not stated in the First Information Report that there were swellings and the signs of assault on the body of the victim and he had also not stated in the First Information Report that the victim had visited Sanna in the month of December and had 17 Acquittal Appeal No. 21 of 2016

disclosed about assault and he had seen marks of assault on her body.

23. PW15 is the milkman who used to supply the milk to the family and he has stated that he had never seen any scuffle between the accused and the victim.

24. PW7 is the Mukhiya of the village Bargaon. He has stated that he came to know about the occurrence when Nilkanth Sahu told him over phone that his daughter-in-law was dead and he along with PW6 went to Sisai at the place of occurrence and saw that the dead body of the victim was lying on a "Chowki" (bed) and the accused and his son were crying. He is a witness to the inquest report. In his cross-examination, he has stated that when he reached the place of occurrence there was none except the accused in the house and thereafter the police reached after one and half hours. This witness has denied having any knowledge of a scuffle between the victim and the accused.

25. PW8 is the Mukhiya of Gram Panchayat, Sisai. She has deposed that she received information from PW7 about the occurrence. She is also a witness to the inquest report. She has stated that she used to visit the house of the accused at times but never heard about any serious scuffle between them. She has also stated that when the victim committed suicide there was none present in the house.

26. PW12 is the first Investigating Officer of the case who has initially taken up the investigation on 12th March 2012. He stated that at about 14:30 hours, he received information about the occurrence and after verification of the same he rushed to the place of occurrence. The distance between the police station and the place of occurrence is 1 K.M. He saw that the victim was lying on a "Chowki" (bed). He has described the place of occurrence. The house is in two parts, one was occupied by the victim and the accused and the other part was occupied by Bhola Master on rent; the house is constructed in the east-west direction and there is a room towards the southern direction and the exit from the house is also from the south. He had prepared the inquest report in his writing and its carbon copy was marked as Exhibit-2/2. He has stated that the informant handed over the written report to him and he marked his endorsement and the signature of the Officer-in-Charge (PW16) as Exihibit-1. He has stated that he has recorded the statements of other witnesses who have supported the 18 Acquittal Appeal No. 21 of 2016

prosecution case. He stated that on 7th May 2012 he was transferred and handed over the investigation to PW16 who submitted the charge-sheet on 30th May 2012.

In his cross-examination, PW12 stated that before proceeding to the place of occurrence he had made station-dairy entry but in his cross- examination at paragraph no.19 he has admitted that before lodging the First Information Report he had prepared inquest-report and inspected the place of occurrence and while preparing inquest-report and after having talked to the witnesses it appeared that it was a case of suicide. He has stated in paragraph no.31 of his cross-examination that the witnesses had not stated before him that everything was OK till three years of marriage and thereafter the accused started demanding money and on account of not giving the same the accused started beating the victim. At paragraph no.34 of the cross-examination this witness has stated that the informant has not stated in his statement that on 11th he talked with his sister she told him about abuse and maarpit and that the accused was asking for money.

27. PW4 though is a hostile witness but in his cross-examination, he has stated that he resided in a part of the house.

28. PW16 is the second Investigating Officer who took up the charge of investigation after transfer of PW12 and after investigation he submitted a charge-sheet.

29. The sole defence witness is a co-resident of the same village and his house is situated just 6-7 house away from the house of the accused. He has stated that the accused was not present at the time of occurrence and that he had reached the place of occurrence after 10 minutes.

30. There is consistent evidence on record that the marriage between the victim and the accused was solemnized in the month of April 2007 and the victim was found dead by hanging in the matrimonial home on 12th March 2012 where the victim used to reside with the accused in a rented house. There is no eyewitness to the occurrence. The information regarding death of the victim was given to the informant of the case by the accused at around 1:30 PM on 12th March 2012 and the First Information Report was instituted under section 302 read with section 34 IPC at 8:00 PM on 12 th March 2012 disclosing the time of information received at the police station as 2:30 PM. The informant (PW11) and his other family members, that is, 19 Acquittal Appeal No. 21 of 2016

PW1, PW2 and PW9 all residents of Sanna District Jashpur, Chattisgarh, arrived at the place of occurrence at around 6:30 PM and found the dead body of the victim lying on a "Chowki" (bed).

On the point as to whether it was a case of suicide or murder:

31. The informant (PW11) has stated in his evidence that he found swelling on the head of the victim and black marks on her cheeks and hand and it appeared that the victim was put to death by assault. He has admitted in his cross-examination that he had not mentioned the fact about marks of assault in the First Information Report. PW2 had also put his signature on the written report submitted by the informant (PW11) and has stated that marks of assault were found on the body of the victim and upon seeing the dead body it appeared that it was a case of murder. The other witnesses who had seen the dead body of the victim have not stated anything about marks of any assault on the body of the victim. The doctor who conducted the post- mortem on 13th March 2012 has deposed that death was on account of asphyxia due to hanging and the force was the body weight; there were no marks of violence on the body of the victim and her clothes were found intact and all the internal injuries were due to hanging. There was no evidence of external violence on the body except a ligature mark at the neck, the details of which have been duly extracted above while dealing with the evidence of PW10. The ligature was found to be ante-mortem in nature. The post-mortem was said to have been conducted after 12 to 24 hours of death and the post-mortem was conducted from 12:00 Noon to 12:50 PM on 13 th March 2012. The doctor found post-mortem staining on the body of the victim on the lower limbs, at ankles and both palms and has explained the same by stating that the post-mortem staining on the body suggested that the body was in hanging position for at least 6 hours, if not less. Upon going through the totality of evidence on the point of the cause of death, it is apparent that the family members of the victim i.e. PW1, PW2, PW 9 and PW11 had not mentioned any injury on the dead body in the written report or even during the investigation but have mentioned the same for the first time in the Court; the other independent witness who had seen the dead body has not stated anything about any injury on the dead body and the doctor has clearly stated that there was no ante-mortem injury on the body except the ligature mark due to hanging which was the cause of death of the 20 Acquittal Appeal No. 21 of 2016

victim. This Court is of the considered view that merely because the body remained in hanging position for at least 6 hours as per the opinion of the doctor, the same by itself cannot lead to any finding of murder. Upon consideration of the evidence on record, this Court finds that the ingredients of the offence under section 302 IPC are totally absent and the evidence on record goes to show that it was a case of suicide and not of murder. The learned Court below has also considered the evidence on record and gave a finding at paragraph no.33 of the impugned judgement as quoted above that the oral and documentary evidence on record show that one of the two basic constituents of the offence under section 306 IPC i.e. suicidal death was duly proved by the prosecution. Considering the aforesaid scope of interference in the matter of acquittal, this Court finds no reason to differ with the findings of the learned Court below based on appreciation of materials on record that the death was due to suicide and not murder and that the 1st ingredient of the offence under section 306 IPC, that is death by suicide was proved by the prosecution.

On the point of abetment of victim by the accused to commit suicide:

32. In the present case, the marriage of the victim with the accused took place in the month of April 2007 and the incident happened on 9 th March 2012 which led to the death of the victim. Thus, the death of the victim is within seven years of marriage and in such circumstances, the provisions of section 306 IPC are to be read with the provisions of section 113-A of the Evidence Act and also section 107 IPC. The aforesaid three provisions i.e. section 306 IPC, section 107 IPC and section 113-A of the Evidence Act are quoted 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.

107. Abetment of a thing.-A person abets the doing of a thing, who- PWst.-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.

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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 facilitates the commission thereof, is said to aid the doing of that act."

113-A. 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."

33. Upon perusal of the provisions of section 113-A of the Evidence Act the same deals with presumption as to abetment or suicide by a married woman and there are three foundational facts which are required to be established (i) woman had committed suicide (ii) suicide has been committed within a period of seven years of marriage and (iii) the husband or the relatives who are charged had subjected her to cruelty. So far as cruelty is concerned, the same has been given the same meaning as has been defined under section 498-A IPC which is quoted as under:

"498-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 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."

34. It is also important to note that section 113-A of the Evidence Act clearly provides that the Court may presume as to the abetment having regard to all other circumstances of the case that such suicide has been abetted by her husband or by the relatives of her husband. Thus, the expression "may presume" has been supplemented and qualified by the expression "having regard to all other circumstances of the case" and thus the Court has to take into consideration all the circumstances while drawing presumption under section 113-A of the Evidence Act. In the judgment passed by the Hon'ble Supreme Court in "Ramesh Kumar v. State of 22 Acquittal Appeal No. 21 of 2016

Chattisgarh" (2001) 9 SCC 618 it has been observed that the totality of circumstances is to be considered while drawing a presumption under section 113-A of the Evidence Act and there has to be some evidence available on record and therefore the inference that the accused had abetted the commission of suicide by his wife may necessarily be drawn. It has been held in paragraph nos.20, 21 and 22 of the said judgment that section 498-A IPC and section 306 IPC are independent and constitute different offences depending upon the facts and circumstances of the individual case, subjecting a woman to cruelty may amount to an offence under section 498-A IPC and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amounts to abetment to commit suicide. It has been held that merely because an accused is held liable for punishment under section 498-A IPC it does not follow that on the same evidence he must also necessarily be guilty of having abetted the commission of suicide by the woman concerned. Section 498-A IPC defines the term cruelty which is in two parts; (a) any willful 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, and (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.

35. In the judgment passed by the Hon'ble Supreme Court relied upon by the learned counsel for the accused in "Kashibai"(supra) the trial Court had convicted the accused for the offence under sections 498-A, 306 IPC read with section 34 IPC. The witness had deposed about the demand of dowry and about the harassment meted out by the accused to the victim mentally and physically. The question for consideration before the Hon'ble Supreme Court was whether the prosecution has proved beyond reasonable doubt the charge levelled against the accused under section 306 IPC and section 34 IPC. The Hon'ble Supreme Court has considered the provisions of sections 306 and 107 IPC and held in paragraph no.10 that in order to bring the case within the purview of abetment under section 107 IPC, there has to be evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused and in order to bring the charge under 23 Acquittal Appeal No. 21 of 2016

section 306 IPC, 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. The Hon'ble Supreme Court also considered the impact of section 113-A of the Evidence Act in paragraph no.14 of the said judgment by observing that when a question arises as to whether the commission of suicide by a woman has 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 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 the commission of suicide by itself would not be sufficient for the Court to raise the presumption under section 113-A of the Evidence Act, and to hold the accused guilty of section 306 IPC. The Hon'ble Supreme Court further considered the judgment passed in the case of "Mangat Ram v. State of Haryana" (2014) 12 SCC 595 wherein it has been held that mere commission of suicide within seven years does not automatically attract section 113-A of the Evidence Act. Only where it is shown that her husband or relative subjected her to cruelty, the presumption as defined under section 498-A IPC may attract having regard to other circumstances of the case. The Court "may presume" has to be considered having regard to the other circumstances and accordingly the presumption is discretionary. In the said judgment it has also been held that 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 she was subjected to cruelty. Even though those facts are established the Court is not bound to presume that suicide has been abetted by her husband and section 113-A 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. In the said judgment the Hon'ble Supreme Court found that the prosecution failed to adduce any clinching evidence to enable the Court to conclude that the accused had abetted the victim to commit suicide. The conviction under section 498-A was upheld but the benefit of the doubt was given under section 306 IPC.

24 Acquittal Appeal No. 21 of 2016

36. In the light of the aforesaid judgments this Court finds that in the present case, the learned Court below although recorded that the case was of suicide and admittedly the marriage took place within seven years of death but the learned Court below has not raised any presumption against the accused in the light of the provisions of section 113-A of the Evidence Act. In view of the aforesaid judgments passed by the Hon'ble Supreme Court, in order to raise any presumption under section 113-A of the Evidence Act the condition precedent is that 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 she was subjected to cruelty and even though such facts are established the Court is not bound to presume that suicide has been abetted by her husband /relatives of husband . It has also been held that section 113-A of the Evidence Act gives a 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. In the aforesaid judgment of "Kashibai" (supra) the Hon'ble Supreme Court found that the prosecution had failed to adduce any clinching evidence to enable the Court to conclude that the accused had abetted the victim to commit suicide and under such circumstances, the conviction under section 498-A IPC was upheld but the benefit of doubt was given under section 306 IPC. Thus, all torture of dowry demands do not necessarily lead to conviction under section 306 IPC even if aid of section 113-A of the Evidence Act is taken unless there is some material to show cause and effect relationship between cruelty in terms of section 498-A IPC and suicide of the woman in order to bring home the presumption of abetment to commit suicide under section 113-A of the Evidence Act and such presumption is discretionary depending upon the facts and circumstances of each case. The learned Court below has recorded that none of the prosecution witnesses have deposed anything before this Court which could point out towards the intention of the accused on the basis of which it could be inferred that he added, instigated or abetted the victim to commit suicide; The prosecution has also not been able to bring on record any evidence either oral or documentary which could show any active act or any 25 Acquittal Appeal No. 21 of 2016

direct act on the part of the accused which led the victim to commit suicide seeing no option or any such act on part of the accused which he would have intended to push the victim into such a position that she committed suicide. It has been concluded by the learned Court below that the prosecution has not been able to bring on record any oral or documentary evidence against the accused herein much less proof beyond reasonable doubts of clear mens rea on the part of the accused to commit the offence of abetment of suicide punishable under section 306 IPC.

37. This Court also finds that the prosecution has not brought on record enough material to trigger any presumption by the Court in terms of section 113-A of the Evidence Act. The informant (PW11) in his evidence has mentioned about assault and demand even on 11 th March 2012 as communicated by the victim but no such disclosure has been made in the written report and during cross-examination PW11 reiterated that he had mentioned everything in the written report. The investigating officer (PW12) has clearly stated in his cross-examination that the informant did not disclose any conversation with the victim on 11 th March 2012 much less any conversation regarding assault and demand. In the written report the informant had made a vague and general statement alleging the demand of dowry which neither contained the date of demand nor contained any particulars of the demand. PW1, PW2 and PW9 who are close relatives of the victim have stated that the victim had come to her parent's house in the month of December 2011 and had complained about demand and torture but the investigating officer of the case has denied in his cross-examination regarding any such allegation of torture and demand was made by these witnesses. Further, even if such allegation of demand and torture is taken into consideration, such allegations are completely vague and neither disclose the date of demand nor give any particulars of the demand. Neither any charge was framed under section 498-A IPC nor there is any such material on record to come to a conclusion regarding the demand of dowry and torture of the victim on account of not adhering to such demand. Thus, there is no material on record to resort to the presumption under section 113-A of the Evidence Act to hold that the accused had abated the victim to commit suicide or even to hold the accused guilty of an offence under section 498-A IPC. This Court is of the considered view that the 26 Acquittal Appeal No. 21 of 2016

learned Court below has not committed any error in law by not drawing any presumption in terms of section 113-A of the Evidence Act while holding that the second ingredient of section 306 IPC, that is, abetment by the accused -husband to the victim to commit suicide, was not proved and thereby acquitting the accused of an offence under section 306 IPC.

38. In view of the aforesaid findings and considering the facts and circumstances of this case in totality, this Court finds no reason to interfere with the impugned judgment of acquittal of the accused.

39. Accordingly, this acquittal appeal is dismissed.

(Shree Chandrashekhar, J.) I agree (Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.)

Jharkhand High Court, Ranchi Dated: 7th November 2023 Sudhir/A.F.R.