Ashok Kumar vs State
2022 Latest Caselaw 6431 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 220/1994

Ashok Kumar

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Nishant Bora For Respondent(s) : Mr. S.S. Rajpurohit, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved On: 28/04/2022 Pronounced On: 04/05/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. This Criminal Appeal under Section 374 Cr.P.C. has been

preferred with the following prayer:-

"It is, therefore, most humbly and respectfully prayed that this appeal filed by the accused appellant may kindly be allowed and the judgment dated 28.4.94 passed by the learned Additional District & Sessions Judge No. 1, Sri Ganganagar, may be set aside and the accused appellant may kindly be acquitted of the charge of section 306 I.P.C."

3. Brief facts of the case as noticed by this Court are that the

accused-appellant, Ashok Kumar, lodged a verbal report on

08.09.1991 at about 12:40 p.m. before the Police Station

Padampur under Section 174 Cr.P.C. as an inquest, wherein he

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stated that he had been married to Rukmani, D/o Mangal Ram,

about 2 years ago and that, he had left the house at about 7 a.m.

for work, and when he returned, he found a crowd of people

outside his house, from which one Ram Krishan Arora and one

Mr.Baazigar informed him that his wife caught fire. And that, he

then rushed into house, broke open the door and found that she

passed away, by committing suicide while alighting herself on fire.

Subsequent to this, the police conducted an investigation under

Section 174 Cr.P.C. and after due investigation, on the basis of the

testimony of the father of the deceased victim, i.e. wife of the

accused-appellant, concluded that demands for dowry were made

by the accused-appellant and his family members, with the further

conclusion that they wanted to start a 'chakki' business, and that

the deceased victim had conveyed the same to him during her

visit to her parents' house during the festival of Rakhi (Raksha

Bandhan); thereafter, the learned Court below took cognizance

against the accused-appellant and his family members, and after

trial acquitted the accused-appellant and his family members of

the offences under Section 304B, 498A I.P.C. but convicted the

accused-appellant, vide impugned judgment dated 28.04.1994,

for the offence under Section 306 I.P.C. and sentenced him to 4

years R.I. along with a fine of Rs. 500/- in default of payment of

which, he was to further undergo 3 months S.I.

4. Learned counsel for the appellant made his submissions on

the five issues, namely, non production of material witnesses;

misreading of evidence, specific witnesses' testimonies; and a lack

of evidence to prove the offence under Section 306 I.P.C. and that

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no charge for offence Section 306 I.P.C. either expressly or in

substance is made out against the accused-appellant.

4.1 Learned counsel submitted that Mangalram, the father of the

deceased and the first informant, a material witness to the case of

prosecution was not produced in evidence. And that as per the

F.I.R. the witness Darshan Lal Master went with Mangalram to

negotiate with the accused persons regarding the alleged

harassment committed by them against his daughter. But that,

Darshan Lal Master was not produced before the learned Court

below as a prosecution witness but as a defence witness, who

stated that no conversation regarding dowry ever took place

before him or Mangalram.

4.2 Learned counsel further submitted that the learned Court

below heavily relied upon the testimonies of P.W. 3 Shobharam,

P.W. 4 Dharamchand, and P.W. 10 Ishwari Devi and after finding

that there were several discrepancies and contradictions in their

testimonies, and that the alleged demand for dowry was not

proved, acquitted the accused persons for the offences under

Sections 304B and 498A I.P.C. but convicted the accused-

appellant for the offence under Section 306 I.P.C. on the basis of

the said testimonies.

4.3 Learned counsel also submitted that the conviction so made

against the accused-appellant was made on a mere presumption,

which lacks evidence. And that, the learned Court below had not

applied its mind, and had erred in believing that since the

deceased wanted to live with her husband separately from her in-

laws, to which her husband (accused-appellant) did not agree,

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therefore, she committed suicide, under such instigation. And

that, the essential ingredient for a conviction under Section 306

i.e. of abetment as explained under Section 107 I.P.C., is clearly

absent in the present case.

4.3.1 Learned counsel placed reliance on the judgment rendered

by the Hon'ble Apex Court in Gurjit Singh Vs. State of Punjab

(2020) 14 SCC 264 and Ramesh Kumar Vs. State of

Chattisgarh, (2020) 9 SCC 618, wherein the ingredients of

Section 306 I.P.C. and Section 113-A of the Indian Evidence Act,

on the basis of which an accused person may be convicted have

been discussed and explained, whereby the Hon'ble Court has held

that the prosecution has to prove its case beyond reasonable

doubt that accused instigated the deceased to commit suicide,

which is not the case in the present appeal.

Relevant portion of the abovementioned cases read as

follows:-

In Gurjit Singh (supra)

" It could thus be seen, that this Court has observed that to attract the applicability of Section 113-A of the Indian Evidence Act, the following conditions are required to be satisfied:

(i) The woman has committed suicide,

(ii) Such suicide has been committed within a period of seven years from the date of her marriage,

(iii) The husband or his relatives, who are charged had subjected her to cruelty.

This Court further observed that on the existence and availability of the aforesaid circumstances, the court may presume that such suicide had been abetted by her husband

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or by such relatives of her husband. It has been held that the presumption is not mandatory; but only permissive as the words "may presume" suggests. It has further been held that the existence and availability of the aforesaid three circumstances shall not, like a formula, enable the presumption being drawn. It has been held that before a presumption being drawn, the court shall have regard to all other circumstances of the case. It has been held, that the consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. It thus observed that the expression "the other circumstances of the case" used in Section 113-A of the Indian Evidence Act suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption.

...However, it has been observed that a reasonable certainty to incite the consequence must be capable of being spelt out. Relying on the judgment of this Court in the case of State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73, it is observed that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide.It has further been held that Section 498-A and Section 306 of the Indian Penal Code are independent and constitute different offences. It has been observed, that depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence Under Section 498-A of the Indian Penal Code. It has further been observed, that if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, it may also amount to abetment to commit suicide. It is further observed, that, however, merely because Accused had been held liable to be punished Under Section 498-A of the Indian Penal Code, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned.

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Another three-Judge bench of this Court in the case of K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and Ors. (2003) 1 SCC 217 had an occasion to consider the question as to whether in the circumstances of framing charge only Under Section 304-B of the Indian Penal Code and not framing the one Under Section 306 of the Indian Penal Code, could the conviction Under Section 306 of the Indian Penal Code read with Section 113-A of the Indian Evidence Act be tenable? In the said case, the Court found that the charge specifically mentioned as under.

That on or about the 22nd day of October, 1989, at your house at Tunikipadu of Gampalagudem Mandal, Yedla Krishna Kumari, wife of A-1 among you and daughter-in- law of A-2 and A-3 among you, committed suicide by consuming poison, and that you all subjected her to such cruelty and harassment as did drive her to commit suicide, with the object of extracting ac. 5.00 of land as dowry to A-1 and thereby committed an offence punishable Under Section 304B of the Indian Penal Code, 1860 and within the cognizance of this Court.

Or alternatively That, prior to the 22nd day of October, 1989, at your house at Tunikipadu, you subjected Yedla Krishna Kumari, wife of A-1 among you and daughter-in-law of A-2 and A- 3 among you, to such cruelty and harassment as did drive the said Krishna Kumari to commit suicide, and thereby committed an offence punishable Under Section 498-A of the Indian Penal Code, 1860 and within the cognizance of this Court.

The court, therefore, held that the ingredients to constitute an offence Under Section 306 of the Indian Penal Code were already found in the charge and as such no prejudice was caused to the Accused therein, though no separate charge was framed Under Section 306 of the Indian Penal Code. Apart from that, the evidence on record established that when the letters concealed by the husband were discovered by the wife and handed over to the father and she was driven out of the house, this cruel conduct of the husband led the wife to commit suicide. It could thus be seen, that in the facts of the said case, the Court found that the conviction Under Section 306 of the Indian Penal Code could be recorded. It was found that, apart from the earlier acts of harassment for parting with the land which she had received in marriage as stridhana, there was an act of driving the deceased out of the house which had direct nexus with the deceased committing suicide.

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The bench of two Judges of this Court had an occasion to consider a similar issue in the case of Hans Raj v. State of Haryana (2004) 12 SCC 257. It will be relevant to refer to following paragraphs:

The question then arises as to whether in the facts and circumstances of the case the Appellant can be convicted of the offence Under Section 306 Indian Penal Code with the aid of the presumption Under Section 113-A of the Indian Evidence Act. Any person who abets the commission of suicide is liable to be punished Under Section 306 Indian Penal Code. Section 107 Indian Penal Code lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. In the instant case there is no direct evidence to establish that the Appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon Section 113-A of the Indian Evidence Act under which the court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the Accused. The explanation to Section 113-A further clarifies that cruelty shall have the same meaning as in Section 498-A of the Indian Penal Code......

Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances

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of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A Indian Penal Code. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman......

The court found that in the case there was no direct evidence to establish that the Appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. It has been held that when the allegation is of cruelty, it must consider the nature of cruelty to which the woman was subjected having regard to the meaning of the word "cruelty" in Section 498-A of Indian Penal Code. It has been held that one of the circumstances which has to be taken into consideration by the court is whether the alleged cruelty was of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman.

This Court in the case of Hans Raj (supra) has also referred to the judgment of this Court in the case of State of West Bengal v. Orilal Jaiswal (supra), wherein it is observed that the requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A of the Indian Penal Code and Section 113-A of the Indian Evidence Act.

It will be relevant to refer to the following observations of this Court in the case of Pinakin Mahipatray Rawal v. State of Gujarat (2013) 10 SCC 48:

Section 113-A only deals with a presumption which the court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that

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provision are established. Criminal law amendment and the Rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the Section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A Indian Penal Code, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the Accused Under Section 498-A Indian Penal Code is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extramarital affair was of such a degree which was likely to drive the wife to commit suicide.

Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence Under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the Accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the Accused abetted the commission of suicide. But for the alleged extramarital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the Accused had provoked, incited or induced the wife to commit suicide.

It has thus been observed that though presumption could be drawn, the burden of proof of showing that such an offence has been committed by the Accused is on the prosecution. The prosecution has to establish beyond reasonable doubt that the

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Accused had instigated, conspired or intentionally aided so as to drive the wife to commit suicide.

After observing the aforesaid, this Court, relying on the judgment of this Court in the case of Hans Raj (supra), observed that even if it is established that the woman concerned had committed suicide within a period of seven years from the date of marriage and that her husband has subjected her to cruelty, the court is not bound to presume that suicide has been abetted by her husband. It is required to take into consideration all other circumstances of the case.

It could thus be seen, that the view taken by the three-Judge Bench of this Court in the case of Ramesh Kumar (supra) that when a case does not fall under Clause secondly or thirdly, it has to be decided with reference to the first clause, i.e., whether the Accused has abetted the commission of suicide by intentionally instigating her to do so; has been consistently followed. As such, we are of the view that merely because an Accused is found guilty of an offence punishable Under Section 498-A of the Indian Penal Code and the death has occurred within a period of seven years of the marriage, the Accused cannot be automatically held guilty for the offence punishable Under Section 306 of the Indian Penal Code by employing the presumption Under Section 113A of the Evidence Act. Unless the prosecution establishes that some act or illegal omission by the Accused has driven the deceased to commit the suicide, the conviction Under Section 306 would not be tenable.

... It would thus be seen, that the charge does not state that the deceased was driven to commit suicide on account of the harassment meted out to the deceased. It also does not mention that the Accused had abetted in commission of suicide by the deceased. In that view of the matter, we are of the considered view that the cases wherein conversion is held to be permissible are clearly distinguishable.

In Ramesh Kumar (supra)

"Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of

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instigation though it is not necessary that actual words must be used to that effect. or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.

In State of West Bangal vs. Orilal Jaiswal and Anr.- 1994CriLJ2104 , this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstances individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

Sections 498A and 396 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned.

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Evidential value of the two writings contained in diary Article A is that of dying declaration. On the principle underlying admissibility of dying declaration in evidence that truth sits on the tips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on page 11 of diary (Article A) clearly states that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares-none to be held responsible or harassed for her committing suicide. The writing on page 12 of diary (Article A) clearly suggests that some time earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise former that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished an wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Exbt. P/10 corroborates the inference flowing from the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his wife to hospital also improvableness the theory of his having abetted suicide.

In our opinion there is no evidence and material available on record wherefrom an inference of the accused- appellant having abetted the commission of suicide by Seema may necessarily be drawn. The totality of the circumstances discussed hereinabove, especially the dying-declaration and the suicide notes left by the deceased herself, which fall for consideration within the expression "all the other circumstances of the case" employed in Section 113A of Evidence Act, do not permit the presumption thereunder being raised against the accused. The accused-appellant therefore,

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deserves to be acquitted of the charge under Section 306 IPC."

4.4 Learned counsel further submitted that for a presumption

against the accused, under Section 113A of the Indian Evidence

Act, may only be made out after all the ingredients have been

proved against the accused, which is absent in the present case

and that the learned Trial Court has proceeded against the

accused on mere conjectures.

4.5 Learned counsel also submitted that no charge against the

accused for the offence under Section 306 I.P.C. was concluded to

be made out, on the ground that he instigated the deceased

victim to commit suicide, which is an erroneous conclusion and

cannot be sustained in the eye of law; and thus, in absence of the

same, the conviction under Section 306 IPC against the appellant

deserves to be set aside.

4.6 Learned counsel lastly submitted that the sentence awarded

to the accused-appellant had already been suspended by this

Hon'ble Court vide order dated 03.05.1994 passed in S.B. Cr.Misc.

Bail (Suspension of Sentence) No.237/1994, and thus, he is on

bail.

5. On the other hand, learned Public Prosecutor opposes the

appeal and submitted that looking to the overall facts and

circumstances of the case, and the evidences placed on record

before the Court, the learned Court below has passed a well

reasoned and speaking judgment, and has rightly convicted the

accused-appellant for the offence under Section 306 I.P.C.

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6. Learned Public Prosecutor further submitted that the learned

Court below has rightly made out the charge only under Section

306 I.P.C. against the accused as the evidence was insufficient to

prove the offence under Section 304B and 498A I.P.C. And that in

fact, this shows that the learned Court below has rightly

appreciated the evidence on record before it.

7. Heard learned counsel for the parties and, perused the

record of the case and the judgments cited at the Bar.

8. This Court finds that for a conviction under Section 306 I.P.C.

the prosecution has to prove its case beyond reasonable doubt,

and the same has also been unequivocally laid down by the

Hon'ble Apex Court in the above mentioned precedent laws.

9. This Court, after a thorough perusal of the record, finds that

the testimonies of the witnesses are chock full of discrepancies

and contradictions, and that while the learned Court below, vide

the impugned judgment, acquitted the appellant for the offences

under Sections 304B and 498A IPC, but convicted the accused-

appellant under Section 306 IPC, on the basis of the very same

witnesses.

10. Furthermore, the prosecution has also failed to establish a

chain of evidence linking the suicide of the deceased victim to the

accused appellant, and doubt further creeps into the version of the

prosecution due to non-examination of a key witness, namely

Mangalram, the father of the deceased.

11. In arriving at the conclusion that the accused-appellant is

guilty for the offence under Section 306 I.P.C., the learned Court

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below has proceeded against the accused on a mere suspicion

which was unsubstantiated by evidence.

12. This Court, therefore, finds that the impugned judgment

passed by the learned Court below suffers from a legal infirmity of

misreading of evidence, specifically the testimonies of the

witnesses, as discussed above.

13. Resultantly, the present appeal is allowed. Accordingly, the

conviction of the appellant as recorded vide the impugned

judgment dated 28.04.1994 passed by the learned Additional

District & Sessions Judge No.1, Sriganganagar in Sessions Case

No.1/92 is quashed and set aside. The appellant is acquitted of

the charge levelled against him. The appellant is on bail; he need

not surrender. His bail bonds stand discharged accordingly. All

pending applications also stand disposed of. Record of the learned

court below be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

skant/-

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