1. Aggrieved by acquittal of respondent-accused vide judgment dated 23.04.2015, passed by the learned Additional Sessions Judge (1), Mandi District Mandi, H.P. Camp at Sunder Nagar in Sessions Trial No. 07 of 2012 in case FIR No. 64/2011 dated 13.05.2011, registered under Sections 498-A and 306 of the Indian Penal Code in Police Station Sundar Nagar Mandi, H.P., the State has preferred present appeal with prayer to set aside impugned judgment and to convict respondent-accused under aforesaid sections.
2. On 13.05.2011 at about 12.20 AM, police machinery was set in motion by PW-2 Lal Singh and PW Bansi Ram (not examined) through telephonic message to Police Station, Sunder Nagar, District Mandi informing that Meera Devi (deceased) wife of accused had expired in suspicious circumstances. The said information was recorded as rapat No. 5/A dated 13.05.2011 Ex.PW-6/A and PW-10 Inspector Amar Chand alongwith Police officials including PW-9 ASI Tarlok Chand rushed to the spot where PW-1 Lalman, brother of deceased, made a statement Ex. PW-1/A under Section 154 Cr.PC stating therein that his sister deceased Meera Devi was married to accused about 20 years back and accused had been maltreating his sister for not delivering a child and dowry. However, after about 18 years of marriage, deceased delivered a son but despite that accused continued beating his sister under influence of liquor and for want of gifts from parents of deceased and as and when, after interval of 6-8 months, deceased visited her parental house, she had disclosed to him that accused was not desisting from beating her. About 8-9 months ago, on knowing that accused had beaten deceased very badly, he had rushed to their house alongwith his relatives. On 12.05.2011, at about 11.19 PM, he was telephonically informed by Jeet Ram about death of deceased whereupon he alongwith his brother accompanying relatives reached village Challoni in a Jeep and found dead body of deceased lying in the courtyard. On inquiring about it, accused told him that deceased hanged herself with rope on door of newly under construction house and he had brought deceased from the spot to the courtyard. It is alleged by PW-1 Lalman in his statement that his sister was subjected to beating and harassment by accused after marriage and accused compelled deceased to die and she committed suicide because of harassment and beatings in the hands of accused.
3. Aforesaid statement Ex. PW-1/A was sent to Police Station as ''Ruka'' and on receiving said ruka, PW-7 SI Madan Lal lodged FIR Ex. PW-7/A and recorded endorsement Ex. PW-7/B in this regard on the ruka Ex. PW-1/A. Dead Body of deceased was sent for postmortem to Government Hospital, Sunder Nagar. PW-4 Dr. Rafia Banu conducted postmortem of deceased and Viscera was also sent to State FSL, Junga. As per report from State FSL no alcohol/poison was detected in liver, spleen, stomach, kidney and large intestine of the deceased. As per postmortem report Ex. PW- 4/A deceased died due to asphyxia as a result of hanging leading to cardio respiratory failure and death.
4. PW-9 ASI Trilok Chand recorded statements of some of witnesses, whereas, PW-10 Inspector Amar Chand conducted and completed rest of investigation.
5. On completion of investigation challan was presented in Court and the accused was charge-sheeted under Sections 498-A and 306 IPC. On completion of trial, accused stands acquitted.
6. We have heard learned counsel for parties and have also gone through the record.
7. Prosecution has examined 10 witnesses to prove its case. Out of them PW-1 Lalman brother of deceased, PW-2 Lal Singh Pradhan Gram Panchayat, PW-3 Banita Kumari, niece of the deceased and accused, PW-8 Gulaba Ram maternal uncle of deceased have been examined to prove harassment to deceased by accused leading her to commit suicide. Rest of witnesses is Doctor and police officials who remained associated in investigation to perform their respective formal duties.
8. PW-2 Lal Singh Pradhan, Gram Panchayat and PW-3 Banita Kumari were declared hostile for resiling from their earlier statements recorded under Section 161 Cr.PC and were subjected to cross-examination by learned Public Prosecutor. It is settled that statement of hostile witnesses is not to be brushed aside in toto and Court can consider evidence of hostile witness to corroborate other evidence on record. It is also clearly well settled that mere fact that a witness is declared hostile does not make him unreliable witness so as to exclude his evidence from consideration altogether but the said evidence remains admissible in the trial and there is no legal bar to base conviction or acquittal upon testimony of hostile witness if corroborated by other reliable evidence. The Hon''ble Supreme Court in case Raja and others Vs. State of Karnataka (2016) 10 SCC 506 has held as under:-
"32. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii vs. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai vs. State of Gujarat (1999) 8 SCC 624. It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record."
9. In examination-in-chief, PW-2 corroborated incident of suicide by deceased, telephonic information to police by him, investigation by police on the spot and taking rope in possession in his presence. Thereafter, he resiled from his statement recorded by police and during his crossexamination by Public Prosecutor he denied to have given any statement to the police stating therein that accused used to beat his wife after consuming liquor. Nothing with regard to harassing and beating deceased by accused could be extracted in his cross-examination.
10. PW-3 Banita Kumari in her cross-examination by Public Prosecutor, admitted making statement to police with regard to witnessing hanging body of the deceased with door of newly under construction house, lifting of dead body of deceased by accused. However she denied to have made statement regarding quarrel taken place between deceased and accused. She further stated that when they were staying with deceased and accused, no quarrel had taken place in their presence between couple and both of them used to live peacefully.
11. PW-1, Lalman in his deposition in Court, stated that accused used to beat his sister after consuming liquor and he was in habit of scolding her for dowry and whenever his sister used to visit his house after intervals of 6-8 months, she used to tell him that accused did not mend his ways and was in habit of beating her. He further stated that about 6 months prior to death of deceased, on receiving information that accused had beaten his sister, he and his brother alongwith his relatives went to accused''s house to advise him whereupon accused admitted his fault of beating deceased under influence of liquor.
12. PW-8 Gulaba Ram who is maternal uncle of deceased, stated that both i.e. his niece (deceased) and accused usually quarrelled on the issue of dowry and accused was in habit of beating deceased and deceased committed suicide on suffering maltreatment and harassment by accused.
13. On the basis of statements on record under Section 161 Cr.PC accused was charged under Sections 498-A and 306 IPC which reads as under:
"498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.Explanation.-For the purpose of this section, "cruelty" means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, 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."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".
14. Section 306 IPC provides punishment /abetment to commit suicide. The abetment is defined under Section 107 IPC which reads as under:-
107. Abetment of a thing.-A person abets the doing of a thing, who-(First) - 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. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.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 facilitate the commission thereof, is said to aid the doing of that act."
15. To prove guilt under Section 498-A IPC, prosecution has to establish ''cruelty'' on the part of accused for which deceased was subjected to, as defined in explanation (a) and (b) appended to this section, according to which there must be a willful conduct of accused of such a nature so as likely to drive the woman to commit suicide or to cause grave injury or endanger life or limb or health (whether mental or physical) of the woman and/or there must be harassment of woman for any unlawful demand from woman or any person related to her or on account of failure to meet such demand. General allegations of cruelty or harassment may not be sufficient to convict accused for want of specific particulars of such cruelty and harassment.
16. The Hon''ble Supreme Court in case Vipin Jaiswal Versus State of Andhra Pradesh, reported in (2013) 3 SCC 684 has held as under:
"11. In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, IPC, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased".
17. For conviction of accused under Section 306 IPC, it is to be established on record that accused instigated deceased to commit suicide or conspired by engaging with some one else for that purpose or intentionally aided deceased by illegal omission or commission to do that. To convict accused for abetment of suicide ingredients of Section 107 IPC are must to be proved against accused.
18. The Hon''ble Supreme Court in case Gurcharan Singh Versus State of Punjab, reported in (2017) 1 SCC 433 has held as under:
27. The pith and purport of Section 306 IPC has since been enunciated by this Court in Randhir Singh vs. State of Punjab (2004)13 SCC 129, and the relevant excerpts therefrom are set out hereunder."12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.13. In State of W.B. Vs. Orilal Jaiswal (1994) 1 SCC 73, 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 the 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."28. Significantly, this Court underlined by referring to its earlier pronouncement in Orilal Jaiswal (supra) that courts have to be extremely careful in assessing the facts and circumstances of each case to ascertain as to whether cruelty had been meted out to the victim and that the same had induced the person to end his/her life by committing suicide, with the caveat that if the victim committing suicide appears to be hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which he or she belonged and such factors were not expected to induce a similarly circumstanced individual to resort to such step, the accused charged with abetment could not be held guilty. The above view was reiterated in Amalendu Pal @ Jhantu vs. State of West Bengal (2010) 1 SCC 707.29. That the intention of the legislature is that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option, had been propounded by this Court in S.S. Chheena vs. Vijay Kumar Mahajan (2010) 12 SCC 190.30. In Pinakin Mahipatray Rawal vs. State of Gujarat (2013) 10 SCC 48, this Court, with reference to Section 113A of the Indian Evidence Act, 1872, while observing that the criminal law amendment bringing forth this provision was necessitated 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, it was underlined that the burden of proving the preconditions permitting the presumption as ingrained therein, squarely and singularly lay on the prosecution. That the prosecution as well has to establish beyond reasonable doubt that the deceased had committed suicide on being abetted by the person charged under Section 306 IPC, was emphasized".
19. In present case PW-2 and PW-3 desisted from supporting prosecution case and nothing incriminatory could be extracted in their evidence despite their cross examination by learned Public Prosecutor. Now statements of two witnesses i.e. PW-1 and PW-8 remains for consideration. Even if they are taken to be the gospel truth, there is only casual reference about beating of deceased and demand of dowry. They are not specific with respect to time, place and manner of harassment and demand of dowry by the accused. In their statement, there is no reference of willful conduct on the part of accused to drive deceased to commit suicide and also that of harassment for any unlawful demand or failure to fulfill such demand. There are only bald statements of PW-1 and PW-8 with regard to beatings and demand of dowry which are not sufficient to hold accused guilty for committing the offence under Sections 498-A and 306 IPC. There is nothing on record to say that accused instigated deceased to commit suicide or engaged with some one else for the said purpose or intentionally aided deceased to end her life.
20. It also emerges from statements of prosecution witnesses that marriage of deceased and accused had taken place about 23-24 years back and after 18 years of marriage, couple had begotten a son who was about 4 years old at the time of incident and the couple had celebrated birth of son which was also attended by PW-1 and PW-8 alongwith others. PW-1 alleged that accused was a contractor of apple orchard since last 20 years and he and accused were working together but on his refusal to work together, accused threatened to see him and that on account of behaviour of accused, deceased committed suicide. However, PW-8 also admitted that all expenses of hospital, during birth of child, were borne by accused. All these circumstances run counter to the allegations of harassment of deceased for want of dowry and render version of PW-1 and PW-8 doubtful.
21. On overall assessment of evidence on record, we are of considered opinion that prosecution has failed to prove essential ingredients for establishing guilt of accused under Sections 498-A as well as 306 IPC beyond reasonable doubt by leading a cogent, reliable and convincing evidence on record. It cannot be said that the learned trial court has not appreciated the evidence correctly and completely and acquittal of accused has resulted into travesty of justice or has caused mis-carriage of justice.
22. It is a settled principle of law that acquittal strengthens to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Accused has advantage of being acquitted by the trial Court and appellant has not been able to make out a case for interference in acquittal of accused in present appeal.
23. In view of above discussion, the present appeal, being devoid of any merit, is dismissed, as also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be sent back immediately.
