Rajasthan High Court - Jodhpur

State vs Durgesh And Anr on 19 May, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 680/2015

State

----Appellant Versus Durgesh And Anr.

                                                                    ----Respondent


For Appellant(s)           :     Mr. A.R. Choudhary PP
For Respondent(s)          :     Mr. Naresh Khatri
                                 Ms. Khushboo Vyas

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

19/05/2022

1. This criminal appeal has been preferred by the appellant-

State against the judgment dated 15.07.2014 passed by the

learned Additional Sessions Judge (Women Atrocities Cases),

Udaipur ('trial court') in Sessions Case No.25/2013, whereby the

accused-respondents were acquitted by the learned trial court of

the offences under Sections 498-A and 306 IPC.

2. Learned Public Prosecutor appearing on behalf of the

appellant-State submits that a written report dated 03.02.2011 at

about 06:45 p.m. was lodged by one Smt. Leela Devi

(complainant) widow of Rajendra Kumar Nagarachi before the

Police Station, Dabok, alleging therein that about four years prior

to lodging of the said report, they got her daughter, namely,

Meena Kumari (deceased-victim) married to one Devi Lal s/o

Mangilal Nagarachi.

                                            (2 of 11)                    [CRLA-680/2015]



2.1     Learned Public Prosecutor further submits that on the date of

lodging of the report, the parents of the deceased-victim got an

information that her in-laws (Mangilal Nagarachi - father-in-law;

Smt. Kailash Devi (accused-respondent No.2) - mother-in-law;

Kala Devi - sister-in-law (Nanad) and; Durgesh (accused-

respondent No.1) - brother-in-law (Devar), after pouring kerosene

on her, set the deceased-victim on fire, who thereafter, was

admitted in the Burn Ward in M.B. Hospital, Udaipur; at the

relevant time, age of the deceased-victim was 22 years.

2.1.1 As per the learned Public Prosecutor, when parents of

the deceased-victim reached the hospital to see her, her whole

body was burnt and she was unconscious, as a result of which,

she was unable to speak and see properly.

2.2 Learned Public Prosecutor also submits that written report

further discloses that immediately, since the next date of the

marriage, the in-laws (above-named) of the deceased-victim

started subjected her to immense cruelty, harassment and

beatings, in connection with the demand of dowry; however, as

per the complainant husband (Devi Lal) of the deceased victim, at

no point of time, tortured or harassed her.

2.2.1 Learned Public Prosecutor also submits that the

deceased-victim was also sent to her parents house by her above-

named in-laws for fulfillment of the demand of dowry; even after

all this, the complainant sent her daughter (deceased-victim) to

her matrimonial home, under the assurance that the same cruel

acts would not be repeated; but despite that, the cruelty,

harassment and beatings on the part of the in-laws (above-

named) never stopped.

(3 of 11) [CRLA-680/2015]

2.3 Learned Public Prosecutor further submits that the complaint

further discloses that during the course of the aforementioned

cruel acts, belongings of the deceased-victim i.e. the articles

given by her parents, at the time of marriage, were also damaged

by her above-named in-laws.

2.4 Learned Public Prosecutor also submits that on the basis of

the aforementioned report, the police registered an FIR bearing

No.37/2011 for the offences under Sections 498-A, 323 and 307

IPC, and thereafter, the investigation commenced. Learned Public

Prosecutor however, submits that Meena Kumari (deceased-

victim), during the course of her treatment, succumbed to her

burn injuries and died, after 4-5 days i.e. on 07.02.2011.

2.5 Learned Public Prosecutor further submits that thus, after

investigation, a charge-sheet was filed for the offences under

Sections 498-A and 306 IPC against the present accused-

respondents. Upon the charges being denied by the accused-

respondents, they were made to stand the trial, and the trial

accordingly commenced.

2.6 Learned Public Prosecutor also submits that during the

course of trial, the learned trial court framed an issue for

consideration, whether the accused-respondents, owing to their

cruel, harassing and beating acts, in connection with the demand

of dowry, caused severe mental and physical agony to the

deceased-victim, to a great extent, which compelled her to

commit suicide by pouring kerosene on herself and setting herself

on fire on 07.02.2011, thereby, the accused-respondent

instigated/abetted such an act of suicide by the deceased-victim.

2.7 Learned Public Prosecutor further submits that from the

testimonies of PW-3 Smt. Leela Devi (mother of deceased-victim),

(4 of 11) [CRLA-680/2015]

PW-14 Ghanshyamlal (grandfather of the deceased-victim), PW-6

Ashok (uncle of the deceased-victim), PW-5 Banshi Lal (maternal

uncle of the deceased-victim) and PW-13 Suresh Chandra, the

aforementioned cruel and gruesome acts of the deceased-victim's

in-laws (accused-respondents) were proved beyond all reasonable

doubts; the same is further substantiated by the testimonies of

PW-15 Dr. Anees Ahmed and PW-11 Dr. Paramjeet Singh, the then

Assistant Director (Chemical), Regional Forensic Science

Laboratory, Udaipur; such medical expert opinion cannot be

doubted.

2.8 Learned Public Prosecutor further submits that the suicide

committed by the deceased-victim, obviously under the immense

instigation/abetment on the part of the accused-respondents (in-

laws), clearly falls within the time-frame of seven years of her

marriage; thus, in relation to the suicide in question, which was

committed owing to the immense cruel and gruesome acts of the

accused-respondents, a presumption under Section 113 of the

Indian Evidence Act, ought to be drawn, thereby, the accused-

respondents, as per the law, were required to be convicted and

sentenced appropriately.

2.9 Learned Public Prosecutor thus submits that from the

aforementioned factual backdrop, it is clear that the learned trial

court, before passing the impugned judgment of acquittal dated

15.07.2014 in favour of the accused-respondents, has not taken

into due consideration the overall facts and circumstances of the

case, more particularly, the fact that the death in question was

caused under quite suspicious circumstances; the learned trial

court, while passing the impugned judgment has also not duly

appreciated the evidence - oral as well as documentary - placed

(5 of 11) [CRLA-680/2015]

before it, by the prosecution; this is more so, when the

prosecution has proved its case against the accused-respondents

beyond all reasonable doubts, which is apparent on the face of the

record; further, there was nothing on record, which can be said to

be detrimental to the prosecution case.

3. On the other hand, learned counsel for the accused-

respondents submits that though, as per learned Public

Prosecutor, some of the witnesses, as mentioned above, have

supported the prosecution story, but it is also a matter of record

that several prosecution witnesses, namely, PW-8 Mahendra

Kumar, PW-9 Dhoolchand, PW-10 Ramlal have clearly turned

hostile, and thus, in no manner, supported the prosecution story.

3.1 Learned counsel further submits that as is further apparent

on the face of record, that a case of unfortunate accident of burn

has been given a colour of suicide under instigation/abetment,

owing to a false allegation of cruel and gruesome acts, in

connection with the demand of dowry, on the part of the accused-

respondents herein; this is more so when, as per the testimony of

PW-3 Smt. Leela Devi (mother of the deceased-victim), after

marriage, her daughter was residing together with her husband in

a room, in the outer part of her matrimonial home; further as per

the testimony of the said witness and the averment made in the

complaint itself, there was a continuous harmonious relationship of

the deceased-victim with her husband.

3.1.1 As per learned counsel, the factum of the death in

question having been caused by an accident is also substantiated

by the attending circumstances, as revealed during the

investigation, which clearly shows that at the relevant time, the

deceased-victim was cooking food over the stove, and

(6 of 11) [CRLA-680/2015]

accidentally, she was set on fire, which is further fortified by the

fact that only the portion of his front body got burnt; as per

learned counsel in case, the victim was deliberately set on fire by

the accused-respondents (in-laws) her whole body must have

burnt. Thus, learned counsel submits that the presumption under

Section 113 of the Indian Evidence Act, as claimed by the

prosecution, cannot be drawn, in the attendant facts and

circumstances of the case.

3.2 Learned counsel further submits that the record of the case

clearly reveals that in connection with the alleged demand of

dowry and alleged cruel and gruesome acts of the accused-

respondents, no complaint prior to the date of the alleged incident

was ever lodged against the present accused-respondents, which

also strikes at the very substratum of the prosecution case, and

thus, is also sufficient to dismantle the entire case of the

prosecution.

3.3 Learned counsel also submits that as per the testimony of

PW-7 Chandraprakash, who took the deceased-victim to the

hospital, immediately after the alleged incident, amply shows that

he did not heard anything about any quarrel between the

deceased-victim and her in-laws (accused-respondents); neither,

as per his testimony, the in-laws of the deceased-victim have ever

subjected her to cruelty in connection with the demand of dowry,

and nor the deceased-victim has ever complained about the same

to her neighbours; such testimony, amongst others, is clearly

detrimental to the case of the prosecution.

4. Heard learned counsel for both parties as well as perused the

record of the case.

(7 of 11) [CRLA-680/2015]

5. This Court observes that as is reflected from the record, PW-

8 Mahendra Kumar, PW-9 Dhoolchand, PW-10 Ramlal have turned

hostile and have not supported the prosecution story, and thus, in

these circumstances, the testimony of PW-3 Smt. Leela Devi

(mother of the deceased-victim) cannot be believed; this is more

so, when she herself, in her testimony and the complaint, clearly

admitted the harminous matrimonial relationship between the

deceased-victim and her husband.

6. This Court also observes that as per the record and the

testimony of the relevant prosecution witnesses, prior to the

alleged incident, neither the deceased-victim nor her parents ever

lodged any complaint in regard to cruel and gruesome acts, in

connection, amongst others, with the demand of dowry by the

accused-respondents (in-laws); nor the deceased-victim ever

informed any of her neighbours, near matrimonial home, about

any such acts being committed by the accused-respondents; the

same is clearly detrimental to the prosecution case.

7. This Court also observes that although the victim-wife died

unfortunately, but absence of any witness testimony to

substantially corroborate such allegations, as levelled, does not

prove the same against the accused, and therefore, does not

prove the version of the prosecution, beyond all reasonable

doubts.

8. The proof available on record in the form of cogent evidence,

makes it amply clear that the incident in question, was not such,

which may show any instigation/abetment on the part of the

accused-respondents; this is more so when there is nothing on

(8 of 11) [CRLA-680/2015]

record to show that the accused-respondents have subjected the

deceased-victim to cruelty and gruesome acts, to such an extent,

which may have compelled her to commit the suicide, more

particularly, under any instigation/abetment; the absence of such

an evidence also casts a serious doubt upon the prosecution story.

9. This Court is conscious of the judgment rendered by the

Hon'ble Supreme Court in Shabbir Hussain Vs. The State of

Madhya Pradesh & Ors. (Special Leave to Appeal Crl.

No.7284/2017) on 26.07.2021, relevant portion of which reads

as under :-

"In order to bring a case within the provision of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide."

10. This Court is also conscious of the judgment rendered by

Hon'ble Supreme Court in Amalendu Pal @ Jhantu Vs. State of

West Bengal; reported in (2010) 1 Supreme Court 707, relevant

portion of which reads as under :-

"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of

(9 of 11) [CRLA-680/2015]

suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.

13. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.

25. We now intend to proceed to find out whether a case under Section 498A IPC is made out against the appellant or not. In the case of Girdhar Shankar Tawade v. State of Maharashtra (2002) 5 SCC 177, this Court gave a succinct enumeration of the object and ingredients of Section 498A IPC, when it observed as follows in paras 3 and 17:

"3. The basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislatures: whereas Explanation

(a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or

(10 of 11) [CRLA-680/2015]

atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498-A. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

17. As regards the core issue as to whether charges under Sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary neither are we inclined to do so, but in order to justify a conviction under the later provision there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereon -- the documentary evidence (namely, those three letters), in our view, falls short of the requirement of the statute: even on an assumption of the fact that there is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl's in-laws' place and requests the husband to treat her well -- at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498-A. Demand for dowry has not seen the light of day."

27. Accordingly, the present appeal is hereby partly allowed. We hereby set aside the conviction of the appellant under Section 306 but uphold the conviction of the appellant under section 498A. As the appellant is

(11 of 11) [CRLA-680/2015]

on bail, his bail bonds stand cancelled. The appellant is directed to surrender himself before the jail authorities within 15 days from today to serve out the remaining sentence under Section 498A, failing which the concerned authority shall proceed against the appellant in accordance with law. "

11. This Court, in light of the aforementioned precedent laws and

the observations made hereinabove, finds that the learned trial

court has made a threadbare analysis of the overall facts and

circumstances of the case, coupled with the equal analysis of the

evidence as placed on record before it, prior to passing the

impugned judgment of acquittal dated 15.07.2014; thus, in the

opinion of this Court, such a well reasoned speaking judgment of

acquittal, passed by the learned trial court, does not warrant any

interference by this Court.

12. Consequently, the present appeal is dismissed. All pending

applications also stand disposed of. Record of the learned court

below be sent back forthwith.