Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 707 of 2001 Old Number Criminal Appeal No. 1416 of 1995 Amar Singh and another. …..Appellants. Versus State of U.P. …….Respondent. Present: Mr. Rajesh Sharma, Advocate holding brief of Mr. Rakesh Thapliyal, learned counsel for the appellants. Mrs. Mamta Bisht, learned AGA for the State /respondent. Hon’ble Nirmal Yadav, J. This appeal is directed against the conviction of accused Amar Singh, husband and Hansa Devi, mother- in-law of deceased Sunita Devi for charges under section 306 and 498A IPC. They have been sentenced to undergo three years rigorous imprisonment under section 498A IPC and further sentenced to undergo three years rigorous imprisonment under section 306 IPC. Both the sentences have been directed to run concurrently. Brief facts as per the prosecution are that Sunita Devi (deceased) daughter of Narayan Singh was married with accused Amar Singh in the month of Baisakh, 1990 according to Hindu rites and custom. At that time Amar Singh was employed at Karnal, however, he left the job after six months of his marriage. Amar Singh along with Hansa Devi had been harassing and torturing Sunita Devi on account of demand of dowry. Sunita Devi came back to her parental home and disclosed all the facts to her 2 parents but the complainant would always pacify her and send her back to matrimonial home. On 18th day of Baisakh in the year 1991 i.e. about one year after the marriage of Sunita Devi was sent back with Teka Singh, co-villager to her matrimonial home. On the next morning both the accused told her to give Rs. 50,000/- as dowry, otherwise Sunita Devi will not be allowed to live in the matrimonial home on the plea that they did not have any source of income as Amar Singh had left the job and they did not have any land. It was made clear that in case demand was not met, consequence would be known to her parents within 15 -20 days. On 26th May 1991 at about 6.00 a.m. Veer Singh resident of village Khastal along with a person informed the complainant that his daughter had died. The dead body was removed to Tehri where the complainant also reached along with 2-3 persons of his villages. While he was going to Tehri complainant made inquiries and came to know that on 24.05.1991 Sunita Devi was coming towards Pendela but accused Amar Singh caught her, gave beatings and took her back to matrimonial home. During the night both the accused conspired and committed murder of Sunita Devi. With a view to destroy the evidence of the crime, they hanged Sunita Devi from the tree and then snapped the rope tied to her neck and placed her on the ground after removing her ornaments. Narayan Singh moved the complaint in the court on 27.05.1991 wherein he also mentioned that the accused are proclaiming that Sunita Devi had committed suicide whereas there are ante-mortem injuries on her person as her back had turned bluish in colour. He suspected that 3 the accused had committed murder of Sunita Devi for not satisfying the demand of dowry. On the basis of the complainant, chik FIR (exhibit Ka 3) was registered on the same day at 5.00 p.m. in the police station – Garakot Patti, Lamridhar. PW7 Sohan Lal, Patwari initiated the investigation and recorded the statements of the complainant and Teka Singh on 27.05.1991 itself. He had however already visited the scene of crime on 25.05.1991 on the oral report made by PW1 Kamal Singh uncle of accused Amar Singh. He inspected the spot on 26.05.1991 and prepared site plan (exhibit Ka5). He also prepared inquest report (exhibit Ka7) and sketch of dead body (exhibit Ka9). Body was sent to mortuary at Tehri for postmortem examination. After initial investigation, further investigation was entrusted to PW6 Naib Tehsildar Balkrishna Badoni on 28.05.1991. The postmortem was conducted on the dead body of Sunita Devi by Dr. Narender Jha (PW2) on 27.05.1991 at about 1.30 p.m. According to doctor, the dead body was two – three days old at that time. The entire body was swollen and blistered. Decomposition had already been started. Skin was peeled off at several places. Tongue was protruded and swollen. Eyes were closed and serosanguinous discharge was coming out from mouth. The doctor found following ante-mortem injuries on the person of the victim: i. Ligature mark above the thyroid cartilages between larynx and chest, directed obliquely upwards following 4 the line of lower jaw. On exploration of mark the base was found pale, hard, leathery, and parchment like. ii. Corners (both) of hyoid bones fractured. iii. Postmortem staining present over back part of front chest and face and at places of both limbs. iv. Abrasions mentioned in the inquest report were not ante-mortem as confirmed by exploration of the part. v. On internal examination of the dead body, congestion of membranes, brain, pleura, larynx, trachea, lungs, pericardium, buccal cavity, oesophagus, stomach, intestines, liver, gall-bladder, pancreas, spleen and kidneys was found. Lungs were found gorged with dark blood and blood vessels too were found filled with dark blood. Stomach was empty while small intestine contained semi digested food material and large intestine contained gaseous and faecal matter. Uterus was non gravid. As per the opinion of the doctor, death was caused due to asphyxia resulting from hanging. Naib Tehsildar Balkrishna Badoni recorded the statements of Matbal Singh and Dr. Narendra Jha on 17.06.1991 and 20.06.1991 respectively. On conclusion of the investigation, challan was presented and the court charged the accused under section 306 and 498A IPC, to which they pleaded not guilty and claimed to be tried. Prosecution in order to prove it’s case produced seven witnesses as referred to above and submitted 5 documentary evidence. Accused were examined under section 313 Cr.P.C. and all the incriminating evidences were put them. Both the accused denied the entire evidence and pleaded false implication. In the present case, it is stated by the father and brother-in-law of Sunita Devi that she has been murdered by accused Amar Singh and his mother Hansa Devi, however, there is no ocular witness in this regard. It is Kamal Singh, who had orally informed Sohan Lal, Patwari with regard to the occurrence on 25.05.1991, who visited the spot on the next day i.e. on 26.05.1991. However, the investigation was initiated only after the complaint was submitted by Narayan Singh, father of Sunita Devi on 27.05.1991. As per the statement of Kamal Singh, on 25.05.1991 at about 8.30 – 9.00 p.m. he was returning home from his field when he found Amar Singh and his mother Hansa Devi crying and Amar Singh was holding Sunita Devi in his lap. He did not see Sunita Devi hanging from the tree. He did not find any rope hanging from tree. As per statement of Sohan Lal, who visited the spot, he had taken in his possession two ropes measuring about 4 feet 5 inches and 5 feet 4 inches, which were having cut marks. The incriminating evidence against the accused is the statements of PW5 Narayan Singh, father of the deceased, PW 4 Matbal Singh, brother-in-law of deceased and PW3 Teka Singh, a co-villager. According to Narayan Singh, behaviour of the accused was good upto six months from the date of marriage but thereafter, they started misbehaving with Sunita Devi. Sunita Devi had been complaining against 6 her mother-in-law Hansa Devi, who used to claim that Amar Singh was totally in her grip. Hansa Devi had been asking to bring Rs. 50,000/- as dowry from her father so that accused could construct a house and some land could be purchased. Narayan Singh told them that he could not afford to pay the amount. She was sent back along with Teka Singh to her matrimonial home. When Teka Singh returning home, Hansa Devi was making a demand of Rs. 50,000/- and threatened that in case parents of Sunita Devi could not meet the demand, they would see the consequences. According to him, Sunita Devi was given beatings when she was coming to her parents house on 18th day of Baisakh 1991. But thereafter, he was informed by Veer Singh that Sunita Devi had died and she was hanging on tree. On cross examination this witness categorically admitted that at the time of marriage, no demand of dowry was made. Amar Singh remained employed upto six months after the marriage but thereafter, he left the job. He also stated that six months after the marriage, Hansa Devi started making demand of dowry. Sunita Devi came back to their house and stayed there for 20 days. At that time she was sent back along with her brother Attar Singh. She again visited her parent’s house and stayed for 5 – 7 days. At that time also Sunita Devi disclosed that she was being harassed for a demand of Rs. 50,000/- as accused wanted to construct the house and buy some land out of the said amount. This witness, however, admitted that he did not report the matter with regard to harassment to anyone. 7 Matbal Singh, brother-in-law of Sunita Devi stated that on 18th day of Baisakh, 1991 Hansa Devi mother-in- law met him in the fair at Juniyadhar. She told him if Sunita Devi’s father did not give Rs. 50,000/- then Sunita Devi would be thrown out of the matrimonial home or she would be killed. They wanted Rs. 50,000/- for starting some business. According to Matbal Singh, he tried to advise Hansa Devi but she did not agree to any of his advice. He stated that after 15–20 days Sunita Devi was killed by hanging by her in-laws as their demand of Rs. 50,000/- was not satisfied by his father-in-law Narayan Singh. The witness also stated that his sister-in-law met him twice at her parental house, however, he could not disclose the exact date and month of his meeting. This witness, however, admitted that his wife did not write any letter in this regard to his father-in-law, but he had told his father-in-law about demand of Rs. 50,000/- after Hansa Devi had disclosed the same to him. His father-in- law told him that Sunita Devi had also disclosed to him about the demand but he was unable to meet the same. PW 3 Teka Singh deposed that Sunita Devi was his niece. She was married in the month of Baisakh of year 1990. He accompanied Sunita Devi to drop her to matrimonial home on the 18th day of Baisakh of year 1991. On the next day, her mother-in-law Hansa Devi asked him to tell father of Sunita Devi to send Rs. 50,000/- as her son was unemployed and they did not have any house or land for their survival. In case, their demand was not met Sunita Devi would be thrown out or she would be killed. According to him, he had told Narayan Singh about the demand made by Hansa Devi but however, 8 after 15 – 20 days he came to know about the death of Sunita Devi. This witness also admitted in the cross examination that at the time of marriage no dowry demand was made by accused or by any member of family. He further stated that after marriage he went to Delhi and came back only one year thereafter. He, however, admitted that Amar Singh never made any demand of dowry. On careful perusal of the statements of the witnesses, it is clear that none of the witnesses had seen the occurrence. However, they have disclosed about the demand of Rs. 50,000/- having been made by Hansa Devi after six months of the marriage. At the same time, all the three witnesses admitted that there was no demand of dowry at the time of marriage and upto six months thereafter. The only evidence on record is that Sunita Devi had been informing her parents on her visit to her parental house that her mother-in-law was making demand of Rs. 50,000/-. There appears to be variance on record with regard to the date and month, when the demand was made. According to Teka Singh, he visited the house of accused on 18th day of Baisakh and on the next date, Hansa Devi made demand of Rs. 50,000/- whereas Matbal Singh, brother-in-law stated that he also met Hansa Devi on 18th day of Baisakh at about 4.00 p.m. in the fair at Juniyadhar. It does not appear to be plausible that on 18th day of Baisakh, Hansa Devi was in the fair at Juniyadhar and she was also at her house when Teka Singh came along with Sunita Devi to drop her at the matrimonial 9 home. The findings of trial court with regard to the demand of dowry by accused has been arrived at by placing reliance on the general allegations in the evidence of Teka Singh, Matbal Singh and Narayan Singh. From the reading of entire evidence, it appears that it is one of the case of marital mal-adjustment between Sunita Devi and accused Amar Singh. Accused Amar Singh was unemployed from six months after his marriage. Admittedly, there was no demand of dowry at the time of marriage and there was also no demand of dowry upto six months after marriage. The demand of dowry allegedly started only after six months of marriage. The deceased appears to be not comfortable in the matrimonial home as accused did not have any house or land or his living was not very comfortable, therefore, out of frustration, she might have committed suicide. There is no independent witness that Sunita Devi was given beatings by accused or she was instigated to commit suicide for her father’s failure to satisfy the demand of dowry of accused appellants. Her father Narayan Singh admitted during the deposition before the court that he never made any complaint about maltreatment or demand of dowry to anyone. However, all the three witnesses i.e. father, brother-in-law and Teka Singh have categorically admitted that Amar Singh never made any demand of dowry. So far as offence under section 306 IPC is concerned, I am of the opinion that Trial court has committed gross error of law in holding that accused appellants are guilty for the offence punishable under section 306 IPC. Section 10 306 IPC provides that if any person commits suicide, whoever abets commission of such suicide, shall be liable to be punished. The ingredients of abetments are defined under section 107 of 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.” In the present case, there is no direct evidence adduced by the prosecution to the fact that accused appellants having abetted Sunita Devi to commit suicide. This court does not find present case falling in the clause secondly and thirdly of section 107 IPC. However, evidence available on record do not establish in any manner that accused appellants abetted by instigating Sunita Devi to commit suicide. From the medical evidence on record it is well proved that Sunita Devi committed suicide. As per the opinion of doctor, death was caused due to asphyxia resulting from hanging. There is no evidence that deceased was made to hang on tree by some other person forcibly. 11 From the position and condition of the organs, it is proved that it was case of suicide by hanging. There is no evidence that Sunita Devi and accused appellants had any quarrel prior to the occurrence or the accused had in any way instigated her. The mere allegation of harassment or beating given by the accused about a few days prior to the occurrence, does not attract the ingredients of abetment as per provisions of section 107 IPC. Instigation means to goad, urge forward, provoke, incite or encourage to do act. To satisfy the requirement of 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 reasonable certainty to incite the consequence must be capable of being spelt out. Present one, is not a case where accused by their acts or omission created such circumstances that Sunita Devi was left with no other option except to commit suicide. It appears that Sunita Devi had not adjusted in the matrimonial home on account of their financial status as accused Amar Singh was unemployed. The instance as narrated by Narayan Singh about the beatings given to Sunita Devi while she was coming to Pendela is not substantiated by any substantive or independent evidence, it is only on the basis of some hearsay evidence that Sunita Devi was given beatings while she was coming towards Pendela. He has not even indicated the date and time of the said occurrence. In view of the aforesaid circumstances, this court is of the view that ingredients of abetment are totally absent 12 in the instant case to bring home the guilt of the accused under section 306 IPC. As regards to the charges under section 498A IPC, Narayan Singh as well as two other witnesses have stated that only Hansa Devi had made a demand of Rs. 50,000/- as dowry, however, all of them have stated in equivocal terms that no demand was made at the time of marriage and upto six months after marriage. There is no allegation against accused Amar Singh with regard to demand of dowry made even upto the time of death of Sunita Devi. The testimony of all the three witnesses namely Narayan Singh, Matbal Singh and Teka Singh are at variance on the material facts. There are also glaring improvements and contradictions in their statements. Therefore, their testimony do not inspire confidence, thus, it is not safe to convict the accused on the basis of their statements. For the reasons stated above, the appeal succeeds and the same is allowed. Judgment and order dated 29.07.1995 is set aside, acquitting the accused appellants. (Nirmal Yadav, J) 26.03.2010 SKS