Criminal Appeal (SJ) No.173 of 1999 Against the judgment and order of conviction and sentence dated 23. 06. 1999, passed by Shri Dharnidhar Jha, 3rd Additional Sessions Judge, Saharsa, in Sessions Case No. 31 of 1994. Subhadra Devi @ Subhadra Verma, wife of Jai Prakash Verma Resident of Village- Maina, P.S. Sonbarsa, District- Saharsa. .... .... Appellant. Versus The State of Bihar .... .... Respondent. WITH Criminal Appeal (SJ) No. 176 of 1999 Against the judgment and order of conviction and sentence dated 23. 06. 1999, passed by Shri Dharnidhar Jha, 3rd Additional Sessions Judge, Saharsa, in Sessions Case No. 31 of 1994. Om Prakash Verma, son of Gajendra Lal Das, resident of Village- Maina, P.S. Sonbarsa, District- Saharsa. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellants : Mr. Krishna Pd. Singh, Sr. Advocate. Mr. J. Upadhyay, Advocate. Ms. Meena Singh, Advocate. Mr. Bhaskar Shankar, Advocate. Mr. Saket Kumar, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2 2. Two appeals are heard together and being disposed of by common order as both arises out the judgment and order passed by Shri Dharnidhar Jha, 3rd Additional Sessions Judge, Saharsa, in Sessions Case No. 31 of 1994. 3. The appellants have been convicted for offence under Sections 306 and 498 A I.P.C. and sentenced to undergo rigorous imprisonment for six years and further convicted for offence under Section 306 I,P.C. and pay fine of Rs. 3,000/- each and in case of failure to pay fine then to undergo rigorous imprisonment for six months. Further they have been convicted for offence under Section 498 A and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 2000/- each and in default to pay fine further undergo imprisonment for two months each. However, both the sentences shall run concurrently. 4. The prosecution case as alleged by the informant that he got information from Udit Narain Lal Das on 02. 02. 1993, at 4 P.M. on telephone that his brother-in-law, his two sisters and Bhabhi has done to death the sister of the informant by burn injury. The 3 motive of the occurrence as alleged that his brother-in-law used to demand motorcycle, almirah, furniture and used to threat and assault for non-fulfillment of demand and sister of the informant used to informed him about demand and subjecting cruelty. It has further been alleged that brother-in-law of the informant had illicit relation with his Bhabhi which was opposed by the sister of the informant and for which she was subjected to cruelty and for this reason brother-in-law of the informant has left the residence and is living separately. 5. The written report was given by the informant on 03. 02. 1993 at 3 P.M. On the basis of which F.I.R. lodged. After investigation charge sheet submitted. After submission of the charge sheet, cognizance was taken, case was committed to the Court of Sessions where charge was framed for offence under Section 304B and 201 of Penal Code as well as under Section 498A. During trial seven witnesses were examined to support the prosecution case. 6. The trial court taking into consideration the evidence of P.W. 7 who recorded the statement of victim Pratibha Devi on being deputed to verify on the O.D. slip 4 issued by the hospital. The said statement recorded by P.W.7 of the victim has been marked as Ext.A. In the said statement the victim has stated that occurrence took place due to fall of Dibiya accidentally by which extensive burn injury has been caused and defence case that occurrence took place due to accidental fire. However, seven witnesses were examined on behalf of the prosecution. 7. P.W.1 is father-in-law of the P.W. 2 the informant. P.W. 3 is doctor who conducted the autopsy. P.W. 4 is neighbour. P.W. 5 is tender. P.W. 6 is formal witness who has formally proved Ext. 4 and 4/1. P.W. 7 is the I.O. One witness adduced by the defence is D.W. 1 who has supported the case of the defence that death was due to accidental fire. 8. The trial court taking into consideration the evidence convicted the appellant for offence under Section 306 and 498 A of Penal Code and disbelieved Ext. A holding that victim was subjected to cruelty as was devoid of marital relation as husband was engaged in illicit relation with his Bhabhi which drive her to commit suicide. However acquitted the appellants for charge under Section 304 B on the ground that evidence 5 regarding the demand of motorcycle, almirah etc. and subjecting cruelty by assault not giving food, though, found in oral evidence of informant, but found missing in the letter of the victim proved as ext. 1 and hence it is not find corroborated in the letter of the victim and hence it is not proper to rely on the oral evidence of P.W.2, the informant. Hence two ingredients of Section 304B I.P.C. that there was demand of dowry and subjecting cruelty for non-fulfillment of demand is missing. 9. Learned counsel for the appellants however contends that there is no finding regarding subjecting cruelty of nature as such to compel the victim to commit suicide and further Ext. A is statement recorded by the Police Officer on requisition by O.D. slip and direction issued to the office to proceed for verification. P.W. 7 deposed that he recorded the statement of the victim and said statement has been proved as Ext. A and hence submitted that defence taken by the appellants that death was accidental death. 10. Learned counsel for the State however contends that there is evidence of P.W. 2 as well as letters written by the victim which marked as exhibit that there 6 was illicit relation between Bhabhi, appellant no. 1 and husband of the victim and hence it may have force driven her to commit suicide. 11. However, I proceed to consider the evidence in the light of respective submissions of the parties. P.W. 1 is Udit Narain Lal Das, who is father-in-law of the informant. He has stated that he learnt about setting fire and came there and was found the victim died and he informed his son-in-law the informant. P.W. 2, the informant in his evidence has stated that marriage of the victim was solemnised with Om Prakash Verma in the year 1992 and he used to demand motorcycle from his sister and he could not satisfy the demand and his sister disclosed this fact. He has also stated that he learnt from his sister that Om Prakash Verma had illicit relation with his Bhabhi and his sister used to protest. For this reason brother-in-law of the informant left the house and start living separately. The appellant used to assault and subject her to cruelty. Letters of the victim proved as Ext. 1 series with Ext. 1/1, 1/2, 1/3, 1/4, 1/5, 1/6 and 1/7. However, this witness in his evidence in para 17 stated that marriage was solemnised in happy atmosphere. In 7 para 18, he has stated that letters which has been marked exhibit in those letters it has not been mentioned that Sasural people demand motorcycle or almirah nor there is mentioned in those letters that Sasural people of his sister used to subject her to cruelty for non-fulfillment of demand. He has further stated that he never gave in writing at any place that Sasural people used to subject her to cruelty. 12. Hence from the letters it is apparent that there is no statement about demand of dowry or victim was subjected to cruelty by assault or demand of dowry what transpires is only that husband of the victim had illicit relation with his Bhabhi. 13. P.W. 3 is doctor, who found the victim died by burn injury. P.W. 4 has stated that she heard sound of weeping on 02. 02. 1993 at about 5.30 A.M. then she went to her roof and found a person was in burnt state and she learnt that wife of Ladduji @ Om Prakash has been burnt. P.W. 5 is tender, P.W. 6 is formal and P.W. 7 is the I.O. P.W. 7 has proved Ext. A, Fardbeyan recorded by him of the victim at the hospital on O.D. slip issued the hospital. 8 14. Hence there is evidence that the marriage solemnised within seven years and victim died out of burn injury. The prosecution case that victim was subjecting to cruelty by assault and not giving food for non-fulfillment of demand as well as the husband had illicit relation with his Bhabhi the appellant no. 1 which drive her to commit suicide. However the only evidence about subjecting cruelty is evidence of P.W. 2. The Ext. 1 series the letters of the victim does not mention about either subjecting cruelty by assault or not giving food nor mention about demand of motorcycle or furniture. Hence it is not safe to rely on the evidence of P.W. 2 regarding subjecting cruelty for non-fulfillment of demand and the trial court also took this view to acquit the appellant for offence under Section 304 B. 15. The next part for consideration is about subjecting cruelty is that the husband had illicit relation with this appellant no. 2, his Bhabhi that driven her to commit suicide. The only material and evidence is the letters of the victim Ext. 1 series. The letters only indicate that the husband was having illicit relation with Subhadra. So the deceased was not happy with her martial life as the 9 husband used to sleep with appellant no. 2. However, there is no specific overt act, There is no specific act alleged to draw inference about the illicit relation, it is alleged that husband of Subhadra left the house but husband of Subhadra not examined. The only evidence is that the Subhadra had illicit relation with husband and hence can only be said the victim has suspicion about the character of her husband. 16. Abatement means to instigate a person to do a thing other mode are conspiring and intentional aid. Instigation means to good or urge, to provoke encourage to do act. The attempt to commit suicide and abatement are to different thing. Moreover in all cases of abatement there must be an intention with a positive act on the part of accused to instigate or act to commit suicide. Hence under the fact and circumstance the prosecution case about subjecting cruelty for the non-fulfillment of demand by not giving food and assault having been disbelieved, the evidence regarding intention is not established except that the husband had illicit relation with Subhadra. However the trial court drawn an analogy of subjecting cruelty from a divorce case in which cruelty means as to 10 impact of such treatment on the mind of spouse that it is harmful and injuries and hence it was held that where the conduct is bad enough as to unlawful or illegal. However, to attract the offence under Section 498A I.P.C. the cruelty as define must be as such to drive the victim to commit suicide and the same impact may be brought for offence under Section 306 I.P.C. Hence there is difference in degree. 17. However the case of the defence that burn of the victim was an accidental by falling of Dibiya for which Ext. A has proved. The case of the defence supported by P.W. 7 that he recorded the statement of the victim when he went to hospital on O.D. slip issued by doctor and he was directed to verify O.D. slip and recorded the statement of the victim. However, this part of evidence has not been challenged by the prosecution. However, it is true that doctor who issued O.D. slip or the doctor before whom the victim was examined has not been brought in evidence nor the doctor who examined and treated the victim in hospital has not been examined. 18. However, P.W. 7 has come to state that he recorded the statement of the victim and proved the same 11 marked as Ext. A and there is no reason to disbelieve. However, defence set up by the appellants regarding declaration of the victim treated to be a dying declaration has been proved by the evidence of P.W. 7 who has recorded the statement of the victim and has proved the same to have been recorded at the instance of the victim may not be brush aside. However, it is pertinent to mention that defence is not require to prove beyond reasonable doubt. 19. However the said dying declaration of the victim and evidence of P.W. 7 which has not been challenged by the prosecution and hence what emerge of the evidence of Ext. A. However, to prove the case under Section 306 I.P.C. there is requirement to prove that victim was subjected to cruelty and cruelty as such to drive her to commit suicide. Letters does not speak out about demand or subjecting cruelty and hence evidence of P.W. 2 regarding demand and subjecting cruelty is not supported by any corroboration nor the victim. P.W. 2 has stated himself that he does not mention about subjecting cruelty or even to his father-in-law from whom he learnt and further evidence of Ext. A declaration of the about 12 accidental death and hence by that circumstance which creates a doubt that the appellants are entitled for benefit of doubt under the facts and circumstance of the case. 20. Hence I find and hold that appellants are entitled for benefit of doubt as the prosecution has not been able to prove the prosecution by cogent, reliable and impeachable evidence about subjecting cruelty to that extent of driven her to commit suicide. Further Ext. A recorded by P.W. 7 gaining status of dying declaration of the victim by which she has stated the occurrence took place by an accidental fire. 21. However, the trial court convicted the appellants holding that victim was devoid of martial relation which is devoiding the victim of her martial right rather which caused frustration in her mind toward her life as apparent from letters. However, the fact of devoiding the victim of her martial life, but there is no reasonable and cogent evidence of having illicit relation of husband with Bhabhi by the witnesses and mere apprehension of the victim lead to conviction under Section 306 I.P.C. is not sustainable as the conviction based on conjecture and surmises. 13 22. Hence I find and hold that prosecution has not been able to prove the prosecution case beyond all reasonable doubt. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court. The 21st December, 2011. NAFR/m.p. ( Gopal Prasad, J.)