Jammu & Kashmir High Court
State Of J&K; vs Jagdev Singh And Anr. on 28 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Acq. Appeal No. 44/2009
Date of decision: 28.10.2017
State Vs. Jagdev Singh & Anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For the Appellant(s) : Mr. Amit Chopra, GA.
For the Respondents(s) : Mr. Sanjay Sharma, Advocate.
________________________________________________________________ i/ Whether to be reported in : Yes/No Press/Media ii/ Whether to be reported in : Yes/No Digest/Journal
1. The State has preferred this Criminal Acquittal Appeal against judgment dated 11.07.2009 passed by learned Additional Sessions Judge, Rajouri in case FIR No.84/1997 of Police Station Budhal, whereby respondents herein stand acquitted of the charges for the offences under Sections 306, 498-A RPC.
2. The case of the prosecution is based on occurrence dated 19.10.1997 when P/S Budhal received information from reliable source that Mst. Shakuntala Devi D/o Vijay Singh, R/o Sakri, who was married with Jagdev Singh S/o Bachittar Singh caste Rajput, R/o Siari, Budhal around three years back. After marriage she was being ill-treated by her husband Jagdev Singh, brother in law Karnail Singh, sister in law Lajo Devi and Chatto Devi, all R/o Siari, they used to taunt and torture her, because of their persistent harassment and torture she was driven to commit suicide on 18.10.1997 by pouring Kerosene oil over herself and thereafter setting herself on fire and because of burning she died.
Cr. Acq. Appeal No.44/2009 Page 1 of 19 23. On the basis of this reliable report, case FIR No. 84/97 under section 306 RPC came to be registered and its investigation entrusted to Rashpal Singh IHC who proceeded on spot seized body of the deceased and got post mortem conducted. On scrutiny of place of occurrence he seized one empty K. oil bottle (Plastic Bottle), one match box and burnt clothes of the deceased. Thereafter examining eye-witnesses it transpires before him that deceased Shakuntala Devi had been married with Jagdev Singh around three and half years back who used to taunt her for having brought less dowry. Accused Karnail Singh, Chatto Devi alongwith husband of deceased would often taunt and because of their harassment and taunting deceased Shakuntala Devi had earlier left her matrimonial house and gone to her parental house at Dhar Sakri. While she was on way her husband brought back home. That on the day of occurrence she was alone in her house and being fed up with persistent torture and taunting meeted to her by the accused she ended her life by burning herself. In burning condition she raised an alarm when some people of the locality heard her alarm who came to save her, however, she died at 4 PM. Accordingly on the basis of investigation case u/s 498-A, 306 RPC was found to be made out against the accused Jagdev Singh, Karnail Singh and Chatto Devi. Challan came to be produced before JMIC, Budhal who upon finding case of exclusively Sessions trial, committed the case for trial to Session Judge Rajouri. Charge u/s 498-A, 306 RPC came to be framed against the accused on 10.9.1998, who pleaded not guilty and in order to prove its case prosecution was directed to produce evidence. During trial accused Chatto Devi expired as a result proceedings against her came to be dropped.
4. Prosecution in order to prove its case, prosecution examined PW 1 Leelo Devi, PW 2 Sheeklo Devi, PW 4 Sher Singh, PW 5 Dharam Singh, PW 6 Cr. Acq. Appeal No.44/2009 Page 2 of 19 3 Vidya Devi, PW 7 Soma Devi, PW 8 Vijay Singh, PW 9 Shiv Dai, PW 10 Kako Devi, PW 11 Kashmiro Devi, PW 12 Bullo Begum, PW 13 Mohd. Bashir, PW 14 Mohd. Yakoob, PW 15 Kashmir Singh, PW 16 Mohd. Shafi, PW 17 Falail Singh, PW 18 Kamal Singh, PW 19 Prem Singh, PW 20 Zahoor Ahmed Shah BMO. However, PW 24 Rashpal Singh IO was not produced by the prosecution. After closure of evidence, accused Jagdev Singh, Karnail Singh and Chatto Devi were examined u/s 342 Cr.P.C. whereby they took the defence that prosecution case is false and based on no evidence. Witnesses are having enmity with them. Accused though did enter in defence but failed to bring any defence evidence. Court below after hearing the APP and counsel for defense acquitted the accused persons on the grounds that prosecution has failed to prove reliable and convincing evidence.
5. I have heard learned counsel for appellant-State and respondents. I have also scanned the trial court file and evidence on record.
6. Learned counsel for respondents has argued that this court cannot interfere into acquittal judgment and re appreciate the whole evidence.
7. I do not agree with the submissions of the learned counsel for respondents. Now it is settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction Cr. Acq. Appeal No.44/2009 Page 3 of 19 4 limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. In Harijana Thirupala v. Public Prosecutor, High Court of A.P., Hyderabad, (2002) 6 SCC 470, the Court said; "Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of inn decree in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial court would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity".
8. On the basis of above law, before re-appreciating the evidence on record , the brief resume of statements of witnesses recorded during trial reads as under:-
PW Leelo Devi described that on the day of occurrence she was sitting at her house roof top when she heard cries emanating from the house of the accused she ran towards their house and found that someone had thrown blanket over deceased. Witness got water and offered that to the Cr. Acq. Appeal No.44/2009 Page 4 of 19 5 deceased. Witness enquired from her as to cause of burn deceased replied that she on her own has set herself on fire. None of the accused was present. That deceased never told her of being harassed or taunted by accused. In cross-examination she says that deceased was having good relations with the accused.
PW2 Sheeklo Devi described that deceased had set herself on fire thereafter she shouted Bachaio-Bachaio as a result witness ran towards her found deceased engulfed with fire. When witness reached on spot her clothes had got burnt, witness threw blanket on deceased thereafter took her inside. A number of people gathered, police also reached on spot. On cross-examination described that occurrence took place at 10 AM, at that time she (witness) set her cattles for grazing into near by fields. Deceased was alone in her house though family of deceased consisted of five members. That deceased got married with accused some 2 / 3 years back and out of wed lock there is only one child who is being looked after by accused Jagdev Singh. Witness did not notice any strained relation or fight between deceased and her husband. She (witness) used to visit the house of deceased and found they were living cordial relations.
PW 4 Sher Singh described that he was engaged in grass cutting, when he heard that deceased had burnt herself to death he went to the house of deceased who had been taken inside her house. He did enquire from her as to why she burnt herself, to which deceased replied that she has committed suicide, though she never complained of any ill treatment. In the meanwhile police also arrived. On cross-examination described that while he was enquiring from deceased as to cause of her burning, a number of people were present inside her house, he also resides in the same village of deceased but did not notice strained relations.Cr. Acq. Appeal No.44/2009 Page 5 of 19 6
PW Dharam Singh described that deceased committed suicide by pouring K. oil over her. This he was told by the people who were present in the house of deceased. She had set herself on fire at around 10 AM whereas witness arrived in her house at about 12 AM. On that very day at 4 PM she died. That police had been to the house of deceased who recorded statement of deceased in presence of witness. Police man enquired from deceased as to why she got burnt to which deceased replied that she herself set her on fire and did not complain against anybody. On cross-examination says to be neighbourer of accused and found relation of deceased and accused party cordial. Accused Jagdev Singh was not present in his house.
PW Vidya Devi described that deceased had on her own set herself on fire and got burnt, upon hearing noise she alongwith her husband PW Dharam Singh went to the house of deceased. All the accused were away from home that deceased was having good relations with the accused party. On cross-examination says that accused Jagdev Singh was having cordial relations with deceased. That she resides half-kilometer away from the house of deceased.
PW Vijay Singh (father of deceased) described that deceased got married with accused around 3 / 4 years back and after marriage accused Jagdev Singh started beating her within next one year of marriage, he alongwith other accused started harassing deceased for having brought less dowry. On different occasions deceased would come to him and narrate that she is being beaten by accused. He arranged meeting of Panchyat thereafter deceased was sent back to the house of accused. Two days prior to the occurrence he had been to the house of deceased. On seeing him deceased became happy and offered tea. After taking tea he met in-laws of deceased. After meeting them deceased took him inside another room and told him that father-in-law is abusing her. Witness told her that her father-
Cr. Acq. Appeal No.44/2009 Page 6 of 19 7in-law is aged man. Witness gave her ten rupees and invited her to come to her parental house for the purpose of crop harvesting. Thereafter he went back home, next day he was informed that accused after beating deceased has been set on fire as a result she died. That after occurrence all the accused fled away, police got the body of deceased and conducted its post mortem, thereafter handed over her dead body to the witness for effecting last rites. This is a case of dowry death. On cross-examination described that it was Ram Singh, S/o Nihal Chand, R/o Sakri who told him about the occurrence. That deceased had one child. That no body did tell him that two days prior to her death deceased was given beating. Though PW Kako Devi informed him about death of deceased. Kako Devi is his daughter who lives half kilometre away from the house of deceased. That in those three years he met deceased 20/22 times and on all occasions deceased would tell him her woes but he did not referred the matter to village Panchyat. That he invited both deceased and her husband to participate in his crop-harvest.
PW Shiv Dai (mother) of deceased described that because of persistent harassment given to the deceased she done herself to death. That they used to beat her for having brought less dowry. Accused has got re- married and from the earlier marriage he is having son. On cross- examination described that 20 days prior to her death deceased and accused Jagdev Singh had been to parental house of the deceased and stayed there for eight days. That she found body of deceased in the police station, at that time she was accompanied with Vijay Singh and Kashmiro Devi. That PW Dharam Singh resides near the house of deceased. Admitted that prior to her death father of deceased did invite deceased and her husband to attend crop harvesting.
PW Kako Devi (sister) described that accused used to beat her and have been demanded dowry. The other accused would also beat her and Cr. Acq. Appeal No.44/2009 Page 7 of 19 8 because of their harassment and beating deceased went to her parental house at village Sakri thereafter Panchyat meeting took place in presence of accused whereby it was resolved that accused should take back deceased. On the day of occurrence while deceases was an her way to the house of her parents for the purpose of crop harvesting when accused caught hold beat her in mid way and did not allow deceased to go to her parental house, at that time witness was present. She herself proceeded to her parental house whereas deceased was taken back by the accused, at 5 PM she (witness) was informed that deceased has been burnt to death, that she resides in the village of accused and it is she to arrange marriage of deceased with the accused. At the time of marriage accused did not made demand of dowry though her father gave dowry as per custom. After marriage accused demanded T.V and other valuable items. That electricity has been made avallable to her village just a year back. That she herself went to parental house for crop-harvesting but her husband did not accompany her. The occurrence took place on the day when her father had arranged for crop harvesting. It was Champa Devi her daughter who informed them about the occurrence.
PW Kashmiro Devi narrated before the court that deceased was being beaten by accused who were demanding her to bring dowry from her parents. On one occasion deceased ran back to her parental house and narrated her woes. On 16.10.1998 father of deceased did go to her house, on that very day deceased had come back from her parental house. That father of deceased went there for inviting deceased and her husband to come and attend crop harvesting and next day when deceased accepting the invitation of her father was on way to the village of her father that in mid-way accused Jagdev Singh caught her after given beating he took her back and on that very day she poured K.oil and set herself ablaze. All the accused went underground, the dead body of deceased was given to her Cr. Acq. Appeal No.44/2009 Page 8 of 19 9 father for last rites. That she resides at Dhar Siari whereas Siari where deceased resides is 20 Kilometers away. lt was the father of deceased who had been to her house for extending invitation for attending crop harvest. That upon hearing noise of death of deceased she alongwith parents of the deceased went to Budhal Police Station found body of deceased lying there. That deceased was her niece who is survived by two years old child who now resides with his father.
PW Billu Begum described that upon hearing noise emanating from the house of deceased she ran towards her house and noticed deceased having got burnt, police immediately reached there. When the witness asked regarding the relation between the deceased and accused party replied that she did not hear of strained relations between accused and deceased. Deceased on her own had put herself on fire.
PW Mohd. Bashir stated that he alongwith Mohd. Shafi and Th. Puran Singh were on way for crop harvesting when around 10/12AM wife of accused was shouting her body had been on fire in that very condition, she jumped from compound on the main land he ran towards her. Other people in the meanwhile had also gathered who had taken her inside room; none of the accused were present. Accused Jagdev Singh had already left for crop-harvesting. Deceased at that time was alone, he and Mohd. Shafi did enquire from her as to cause of her burning on which she told them that she on her own has set herself on fire. He did not found strained relation between the parties rather deceased was having cordial relations with her husband. On cross-examination described that deceased never complained of she committed suicide because of un-ruling conduct of accused. That she did not tell the police that she burnt herself because she was fed up from the behavior of accused. She did not complain of accused telling her to have brought fewer dowries nor had she told that accused are given her taunts. All these suggestions are false.
Cr. Acq. Appeal No.44/2009 Page 9 of 19 10PW Mst. Soma Devi described that deceased is known to her, she was on her way towards Gangota to meet doctor when at 4 PM on reaching at Siari village she found deceased in burnt condition but does not know how she got burnt though she did enquire from deceased as to cause of burning to which deceased is stated to have replied to have got burnt on her own. Deceased did not complain of accused harassing or taunting her.
PW Mohd. Yaqoob came to be declared hostile.
PW Kashmir Singh described that he heard noise emanating from the house of accused Jagdev singh. He ran towards his house, on reaching there found deceased engulfed with fire then added that she got completely burnt and had been kept on cot. PW Shiko Devi and PW Leelo Devi both were present none of the accused were present there. He noticed one oil bottle, one match box and one burnt stool. She was not in a position to speak. On that very day she died.
PW Mohd. Shafi described that he resides in the vicinity of accused and on hearing noise about deceased he went to the house of accused and found deceased lying in burnt condition inside her room; accused Jagdev Singh was present whereas the other accused were absent. Thereafter witness proceeded on his own engagement. On that very day at 4 PM deceased died. That deceased was R/o Sakri and her father used to visit her but he never complained of anything with the witness. On cross- examination described he did not hear about parties were having strained relations.
PW Fallal Singh too, was declared hostile. On cross-examination by ld. PP denied that deceased was being harassed by accused on the pretext of dowry and on that very day he was on way towards Budhal but did not meet deceased or Jagdev Singh nor did he notice them fighting with one and other. Denied the suggestion that deceased wanted to go in at her Cr. Acq. Appeal No.44/2009 Page 10 of 19 11 parental house to which she was not allowed. That after marriage deceased was having cordial relation with her husband.
PW Prem Singh described that police obtained his signature on EXPW- PS1 and seized burnt clothes of deceased. That he is witness to the seizure memo of dead body which is EXPW-PSII. All these documents were not prepared in his presence only his signatures were obtained. On this PP got the witness declared hostile. On being cross-examined at his instance the witness deposed that police did not obtain his signature on the seizure papers after putting him in fear and threat. That he is responsible person of the village and usually does not put in his signature on any paper without ascertaining its contents. Denied that accused and deceased having strained relation. On cross-examination by ld. defence counsel described that he was away from home on the day when occurrence took place. After 4/5 days when he came back home he got knowledge about the occurrence. Thereafter when police came who told him to sign the documents.
PW Dr. Zahoor Ahmed (MO) District Hospital Rajouri described that he conducted post mortem on the body of deceased and observed that deceased has suffered 99% burns all over her body and because of the burn whole thickness of skin had got destroyed, she died because of shock resulting from the 99% burns. EXPW-ZA bears his signature. On cross-examination stated that there was no chemical smell emanating from the body of deceased. Marks of violence or anti-mortem injuries were not present.
This is the evidence of prosecution. Court below after appreciating the evidence has acquitted the accused.
9. Accused have been tried u/s 306/498-A RPC for abetment of suicide and cruelty. Section 306 RPC reads as under: -
Cr. Acq. Appeal No.44/2009 Page 11 of 19 12"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."
10. Abetment has been defined under section 107 of RPC. Section 107 RPC reads as under:-
"107. Abetment of a thing;
A person abets the doing a thing, who-
Firstly- Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Internationally aids, by any act or illegal omission, the doing of that thing."
11. On conjoint reading of both sections, it comes that accused should have done some active suggestion or support to the commission of offence. The word instigates literally means to urge forward, provoke, incite or encourage doing an act and a person is said to instigate another, when he actively suggest or stimulate him to act by any means. Legality of Section 306 RPC is dependent upon the act of abetment for commission of the suicide. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. In case of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to commission of suicide. In cases like, abetment to suicide founded on the grounds of demand of dowry, cruelty or mental torture, evidence of systematic demand of dowry, cruelty or mental torture or physical assault are required to be proved by prosecution.
12. Section 114-C of Evidence Act is also relevant in abetment of suicide by a married woman. Section 114-C reads as under: -
Cr. Acq. Appeal No.44/2009 Page 12 of 19 13"114-C. Presumption as to abetment of suicide by a married woman;
When the question is whether the commission of suicide by a woman has 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 purpose of this section "cruelty" shall have same meaning as in section 498-A of the State Ranbir Penal Code, Samvat 1989).
13. As per wording in presumptive provision of Section 114-C of Evidence Act, one of essential ingredients is that woman must have been soon before her death subjected to cruelty or harassment, which forced her to commit suicide.
14. In the present case, prosecution case is that due to demand of dowry, deceased committed suicide. There are three occasioned related to dowry,
(i) before the marriage (ii) at the time after the marriage and (iii) may appear to be on unending period.
15. Terms cruelty has been defined under Section 498-A RPC. Firstly prosecution has to prove the essential ingredients of Section 498-A RPC and only thereafter Section 306 of RPC is applicable. Section 498-A RPC is reproduced 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.Cr. Acq. Appeal No.44/2009 Page 13 of 19 14
Explanation - For the purpose of this section "cruelty" means -
(a) any willful conduct which is of such 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."
16. In present case, as per prosecution case marriage between deceased Shakuntla Devi and accused Jagdev Singh was solemnized 3-1/2 years prior to occurrence. Bare perusal of statements of witnesses, it is evident that except father, mother and sister, all other witnesses have stated nothing against the accused persons. Even they have stated that the relationship between deceased and accused were cordial; and deceased never made any complaint.
17. Court below has held that there were two set of versions. One version of one set of witnesses i.e. PWs Shakeelo Devi, Deelo Devi, Dharam Singh, Billu Begum, Sher Singh, Mohd. Bashir, Mohd. Yaqoob etc. from their testimony the version of the occurrence has been described in the way that deceased burnt herself to death on her own so much so she had very cordial relation with the accused and on no occasion these witnesses did hear or see accused harassing and beating deceased. None of these witnesses described that deceased did tell about her woes to the witness. Even PW Dharam Singh deceased prior to her death makes statement before the police that she is dying on her own and has got no grievance against anybody. Whereas from the testimony of PW Vijay Singh (father), PW Shiv Dai (mother), PW Kako Devi (sister) and PW Kashmiro Devi the version put forth about the death of deceased is that she burnt herself to death because of cruel conduct of accused. But Cr. Acq. Appeal No.44/2009 Page 14 of 19 15 perusal of statements of these witnesses, it is evident that they have not stated, as to what type of dowry accused used to demand from the deceased. Even father of deceased PW Vijay Singh did not say that accused had made direct demand of dowry to him, neither he says that deceased specified him as to what type of dowry is required. This witness has only stated that deceased only used to tell him that she is being maltreated by the accused persons. Even this witness has not stated any specific instance of maltreatment of deceased from the hands of accused in order to coerce her to bring dowry.
18. Similarly, PW Shiv Dai mother and Kashmiro Devi have stated general allegations of ill-treatment without any specification. There is, thus, no evidence of systematic demand of dowry, cruelty or mental torture or physical assault, which is essential for proving offence of abetment of suicide based on demand dowry and physical assault.
19. Although PW Kako Devi (sister) has stated that accused used to beat deceased on demand of dowry; because of their harassment and beating deceased went to her parental house at village Sakri thereafter Panchyat meeting took place in presence of accused whereby it was resolved that accused should take back deceased. On the day of occurrence while deceased was an her way to the house of her parents for the purpose of crop harvesting when accused caught hold beat her in mid way and did not allow deceased to go to her parental house, at that time witness was present. She herself proceeded to her parental house whereas deceased was taken aback by the accused, at 5 PM she (witness) was informed that deceased has been burnt to death, that she resides in the village of accused and it is she to arrange marriage of deceased with the accused. At the time of marriage accused did not made demand of dowry though her father gave dowry as per custom. After marriage accused demanded T.V Cr. Acq. Appeal No.44/2009 Page 15 of 19 16 and other valuable items. That electricity has been made available to her village just a year back.
20. Bare perusal of this statement, it is evident that she has stated general types of allegation without date, time, month and year of incident. She was not on spot on the day of occurrence. When her statement is compared with witnesses who were present on spot and of same vicinity, her version become belied. Further, she has not stated facts of demand of T.V and other valuable items in her statement recorded u/s 161 Cr.P.C., so she has made material improvement.
21. For proving the cruelty as defined in Section 498-A RPC, the prosecution should have brought on record to show that there has been any act of omission or commission on part of accused before the death of deceased to demonstrate that accused was responsible for committing suicide by deceased.
22. In AIR 2008 SUPREME COURT 2108, in case titled Sohan Raj Sharma Vs. State of Harayana,it is held "9. In State of West Bengal Vs. Orilal Jaiswal (AIR 1994 SC 1418) this Court has observed that the courts 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. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced 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.
10. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate"
Cr. Acq. Appeal No.44/2009 Page 16 of 19 17literally means to provide, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.
11. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. [See Mahinder Singh Vs. State of M.P. (1955 AIR SCW 4570)]."
23. In AIR 2006 SUPREME COURT 680 in case titled Harjit Singh Vs. State of Punjab, it is held as under:-
"26. Before invoking the provisions of Section 306 IPC, it is necessary to establish that : (1) the deceased committed suicide, and (ii) she had been subjected to cruelty within the meaning of Section 498 A IPC.
27. Only in the event those facts are established, a presumption in terms of Section 113 A of the Indian Evidence Act could be raised. In the instant case, the prosecution has not been able to prove that the deceased was subjected to cruelty within the meaning of Section 498 A, IPC. No case that the deceased committed suicide was also made out."
24. In AIR 1996 SUPREME COURT 67 in case State of Himachal Pradesh Vs. Nikku Ram and others, it is held as under:-
"15. As to the offence under Section 306, IPC, trial Court has first observed that none of the respondents could really be said to have abetted suicide, as per the definition of "abetment" in Section 1078, IPC. This was the accepted position. The stand of the prosecution rather was that abetment stood established because of what has been provided in Section 113-A of the Evidence Act. That section reads as below: -
"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 a relative of her husband had subjected Cr. Acq. Appeal No.44/2009 Page 17 of 19 18 her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such a suicide had been abetted by her husband or by such a relative of her husband.
Explanation - For the purpose of this section, "cruelty" shall have the same meaning as in Section 498-A of the Indian Penal Code (46 of 1860)."
16. This shows that if the woman had been subjected to cruelty, as defined in Section 498-A, IPC the Court may presume, having regard to all the circumstances of the case, that the suicide had been abetted by her husband or any of his relative. So, let it be seen whether Roshani was subjected to cruelty. A reference to Explanation (b) of Section 498-A shows that if thee be harassment of the woman with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security, the same would amount to cruelty. The case of the prosecution being that the accused party had demanded television, electric fan etc., let us see whether there is reliable evidence to establish the same. The learned trial Court has dealt with this matter in para 25 of the judgment and it has been observed that neither P.W. 5 nor P.W.8 has stated about any of the alleged demands and though P.W. 1 deposed that Batholi and Kamala had made illegal demands of electric fan and television etc. from P.W.4 Sant Ram, the father of Roshani, the latter did not say anything about the same. The Court, therefore, rightly disbelieved this part of the prosecution case. There is thus no reliable evidence to hold that Roshani was being harassed within the meaning of explanation (b) of Section 498-A."
25. Further the case of prosecution is that on 19.10.1997 P/S Budhal received information from reliable source that Mst. Shakuntala Devi, D/o Vijay Singh, R/o Sakri who was married with Jagdev Singh, S/o Bachittar Singh caste Rajput, R/o Siari, Budhal around three years back. After marriage she was being ill-treated by her husband Jagdev Singh, brother in law Karnail Singh, sister in law Lajo Devi and Chatto Devi all R/o Siari, they used to taunt and torture her, because of their persistent harassment and torture she was driven to commit suicide on 18.10.1997 by pouring Kerosene oil over herself and thereafter setting herself on fire and because of burning she died. But in file, there is no such evidence that how police came to know that in-laws of deceased used to taunt and Cr. Acq. Appeal No.44/2009 Page 18 of 19 19 torture her; the statements of PW Vijay Singh (father), PW Shiv Dai (mother), PW Kako Devi (sister) and PW Kashmiro Devi have been recorded on 25.10.1997 after more than six days of occurrence. I/O in the case has not been examined, the delay in recording the statements of material witnesses have not been proved. In criminal cases degree of proofs is higher and charge framed must be proved beyond reasonable doubts.
26. In view of above discussion, I don't find any infirmity of law and facts in acquittal judgment of court below. Hence present appeal is dismissed.
(Sanjay Kumar Gupta) Judge Jammu, 28.10.2017 Pawan Cr. Acq. Appeal No.44/2009 Page 19 of 19