IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.1745 of 2001 (Old No.298 of 1994) 1. Anwar Khan S/o Raj Khan, 2. Smt. Hasina W/o Anwar Khan Both are R/o Village Ali Nagar, P.S. Kichha …….….…. Appellants Versus The State …….….… Respondent Dated: December 11, 2008 Sri Lalit Sharma, Advocate for the appellants Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 24.02.1994 passed by Special Judge (Additional Sessions Judge), Nainital in Sessions Trial No.287 of 1989, State Vs. Anwar Khan and Smt. Hasina, whereby the learned Special Judge (Additional Sessions Judge) has convicted the appellants/accused Anwar Khan and Smt. Hasina under Section 306 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to seven years’ rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine, further three months’ R.I. was awarded to each of them. 2. Chief Judicial Magistrate, U.S. Nagar vide his report dated 1.12.2008 has informed that appellant No.2-Smt. Hasina had died on 28.9.2004. As such, the 2 appeal filed by appellant no.2-Smt.Hasina stands abated. 3. I have heard Sri Lalit Sharma, learned counsel for the appellant and Sri M.A. Khan, learned Brief Holder for the State and perused the entire material available on record. 4. In brief, the prosecution case is that Nabi Sher Khan (P.W.1) lodged an FIR at P.S. Kichha with the averments that appellant/accused Anwar Khan was married with Ishrat Jahan (deceased) before 5-6 years of the said incident and father of deceased Ishrat Jahan namely Jabar Khan (P.W.3) is resident of Village Ali Nagar, Bhojipura, Distt. Bareilly. From the aforesaid wedlock, a son was also born. Appellant/accused Anwar Khan was having illicit relations with one Hasina and before one year of the said incident, appellant/accused Anwar took Hasina along with him in his house. Appellant/accused Haseena (now deceased) was a lady of loose character and she had been already married many times in the past. After arrival of Hasina in the house of appellant/accused Anwar, he started harassing his wife Ishrat Jahan (deceased) physically and mentally. It was further stated that in the intervening night of 29/30.4.1989 at about 1:00 A.M., complainant Nabi Sher Khan went to the houses of Asgar Khan and Nanhey Khan (P.W.2) to engage and bring them for harvesting his wheat crop. When the complainant along with the aforesaid persons was coming back, then he heard shrieks from the house of appellant/accused Anwar Khan. Then the complainant Nabi Sher Khan knocked the door and after some time, appellant/accused Anwar Khan opened the door and 3 tried to run but he was stopped by the complainant and his associates. Appellant/accused Haseena was also present there and the dead body of Ishrat Jahan was lying on the cot and ligature marks were also present on the neck of Ishrat Jahan. Appellants/accused Anwar and Hasina (now deceased) confessed their guilt before them. Meanwhile, the villagers also arrived at the place of occurrence and before the villagers also, appellants/accused Anwar Khan and Hasina (now deceased) confessed their guilt. In the morning, complainant (P.W.1) Nabi Sher Khan with the help of P.W.2 Nanhey and Asgar Khan brought the appellants/accused in the police station and lodged the report Ex.Ka-1 on 30.4.1989 at 7:35 A.M. On the basis of this report Ex.Ka-1, CHIK FIR was prepared by Head Moharrir Gajraj Sharma, i.e. Ex.Ka-13. The necessary entry was also made in the G.D. by him, the carbon copy of which is Ex.Ka-14. Special Report of the case was prepared by Constable Clerk A.A. Khan, the carbon copy of which is Ex.Ka-15. The investigation of this case was entrusted to S.I. Surendra Singh (P.W.7). The inquest of dead body of Smt. Ishrat Jahan was prepared on 30.4.1989, i.e. Ex.Ka-2. Along with the inquest report, specimen of seal Ex.Ka-3, Police Form No.33 Ex.Ka-4, letter to the M.O. I/C Civil Hospital, Haldwani for conducting the post-mortem (Ex.Ka.5), sketch of dead body (Ex.Ka-6) and Police Form No.13 (Ex.Ka-7) were also prepared. After that the dead body was sent for post-mortem and the post-mortem on the dead body of Smt. Ishrat Jahan was conducted by P.W.8 Dr. Gurnam Singh, the post-mortem report is Ex.Ka-12. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan, i.e. 4 Ex.Ka-8. The I.O. also recovered a DIBIA which was lightning on the place of occurrence at the time of incident and prepared a Fard, i.e. Ex.Ka-9. The said DIBIA was given in the Supurdgi of Smt. Nanhi. The I.O. during the course of investigation also recovered the rope and the pieces of bangles from the place of occurrence and prepared a Fard, i.e. Ex.Ka-10. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellants/accused, i.e. Ex.Ka-11. 5. Learned CJM, Nainital has committed the case to the court of Sessions on 21.08.1989 after giving necessary copies to the appellants/accused as required under Section 207 Cr.P.C. 6. The case was transferred to Special Judge (Additional Sessions Judge), Nainital by Sessions Judge, Nainital for disposal according to law. 7. On 25.09.1989, learned I Additional Sessions Judge, Nainital framed the charge against the appellants/accused Anwar Khan and Smt. Hasina (now deceased) under Section 302 IPC. The charge was read over and explained to each of the appellants/accused and each of them pleaded not guilty and claimed to be tried. 8. To prove its case, the prosecution has examined P.W.1 Nabi Sher Khan, complainant, P.W.2 Nanhey Khan, P.W.3 Jabar Khan, father of victim, P.W.4 Anwar Khan S/o Ismail, P.W.5 Constable Mahendra Singh who took the dead body for post-mortem, P.W.6 Mohd. Yaar, P.W.7 S.S.I. 5 Surendra Singh, I.O. of the case, P.W.8 Dr. Gurnam Singh, who has conducted post-mortem and P.W.9 Constable Viresh Tripathi, who proved the CHIK FIR and necessary entry made in the G.D. 9. Thereafter, the statements of the appellants/ accused Anwar Khan and Smt. Hasina (now deceased) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form. Each of the appellant/accused denied the allegations made against them. However, in defence, they had not produced any oral or documentary evidence. 10. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Special Judge (Additional Sessions Judge), Nainital vide his judgment and order dated 24.02.1994 convicted and sentenced the appellants/accused as discussed above. Feeling aggrieved with the aforesaid judgment and order, the appellants/accused have preferred the present appeal. 11. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the person of deceased Smt. Israt Jahan which were recorded in post-mortem report (Ex.Ka-12), which reads as under:- 1. Ligature mark around the neck obliquely situated, knot mark on the left side mastoid region. Length of the ligature mark is 35 cm x 1 cm. 2. Ligature mark runs above the thyroid cartilage in front of and in nape of neck posteriorly 3. Dried saliva mark on the right angle of mouth 6 12. To prove the aforesaid post-mortem report, the prosecution has examined P.W.8 Dr. Gurnam Singh who has stated that on 30.4.1989, he was posted as Surgeon at Civil Hospital, Haldwani. On that day at 4:00 P.M., he conducted the post-mortem on the dead body of Smt. Ishrat Jahan. He has opined that the deceased had died due to suffocation and shock caused by hanging. He further opined that the death of deceased could possibly be caused in the night of 29/30.4.1989 at about 1:00 A.M. due to the aforesaid injuries. He also proved the post-mortem report prepared by him, i.e. Ex.Ka-12. 13. To further prove its case, the prosecution examined P.W.1 Nabi Sher Khan who has stated that appellant/accused Anwar was married with deceased Ishrat Jahan before 5-6 years of the said incident and from their wedlock, a son was also born namely Momin, who was two years old at the time of incident. In the lifetime of Ishrat Jahan, appellant/accused Anwar brought Hasina in his house. Hasina was not a lady of good character and she had already been married several times. Hasina used to quarrel with the deceased Ishrat Jahan and likewise appellant/ accused Anwar also used to quarrel with the deceased before the said incident. He further stated that in the night of 30.4.1989 at about 1:00 A.M., he was going in his field for harvesting the crop along with Asgar and Nanhe Khan (P.W.2). When they were passing in front of the door of house of appellant/accused Anwar, then they heard a shriek. Then they called the appellant/accused Anwar. When Anwar did not reply then they knocked the door. Then the appellant/accused Anwar came out from the house and tried to run away, however he was caught 7 hold by him (Nabi Sher Khan) and his associates. Inside the house, appellant/accused Haseena (now decesaed) was standing and Ishrat Jahan was lying dead on the cot and there was also a ligature mark on her neck. Appellants/accused Anwar and Haseena confessed their guilt before him. Meanwhile, people of the village also came on the place of occurrence. Then he with the help of Asgar and Nanhe (P.W.2) took the appellants/accused Anwar and Haseena at the police station and lodged the report, i.e. Ex.Ka-1. In cross-examination, he has stated that in the night at about 12:30 A.M., he started from his house towards the field for the harvesting of crop. He had a torch with him and on that day, night was dark. He further stated that he reached in the police station at about 7-8 A.M. and the police station is at about a distance of 12-13 Kms. from the village. He further stated that before the said incident, he had quarreled with the appellant/accused Anwar. He also stated that he does not know whether the appellant/accused Anwar has lodged the report against him, but he (Nabi Sher Khan) had lodged the report against the appellant/accused Anwar before the said incident. He further stated that there was also a quarrel between Nanhe (P.W.2) and the father of appellant/accused Anwar before the said case and for that, a case u/s 324 IPC was pending. The said incident was also happened before the present incident. He further stated that he himself had written the report Ex.Ka-1 in the police station. 14. P.W.2 is Nanhe Khan who has stated that appellant/accused Anwar was married with the deceased Smt. Israt Jahan and she remained happily with the appellant/accused for about 5-6 years. Before the said 8 incident, appellant/accused Anwar had taken appellant/ accused Hasina at his house and had kept him as his wife. He further stated that on the date of incident at about 1:00 A.M. in the night, he along with Nabi Sher (P.W.1) and Asgar were going to harvest the crop. When they reached in front of door of appellant/accused Anwar, then they heard shriek. They knocked the door of appellant/accused Anwar which was opened by appellant/accused Anwar. Inside the house, appellant/ accused Haseena was present there and dead body of Ishrat Jahan was lying in a cot. Appellants/accused Anwar and Haseena (now deceased) were then detained by him and his companions. Appellants/accused Anwar and Haseena confessed their guilt before them. Meanwhile, people of the village also came on the place of occurrence and appellants/accused also confessed their guilt before the villagers. He further stated that the police had come along with Nabi Sher and they have arrested the appellants/accused. In cross-examination, he has stated that Nabi Sher (P.W.1) had gone from the village at about 4:00 A.M. and the police had reached on the place of occurrence at about 8-9 A.M. He further stated that adjoining to the house of appellant/accused Anwar, there are houses of Ali Hussain, Khalifa and Usman Khan. He further stated that Ali Hussain, Khalifa and Usman had come on the place of occurrence after a long time. 15. P.W.3 is Jabar Khan who has stated that deceased Ishrat Jahan was his daughter and she was married with the appellant/accused Anwar Khan. Before one year of the said incident, appellant/accused Hasina (now deceased) had come in the house of appellant/ accused Anwar due to which some quarrel was started 9 between the appellant/accused Anwar and deceased Ishrat Jahan. He further stated that witness Nanhe (P.W.2) is known to him and in-laws of Nanhe resides in his village. 16. P.W.4 is Anwar Khan S/o Ismail who has not supported the prosecution case and was declared hostile. 17. P.W.5 is Constable Mahendra Singh who has stated that on 30.4.1989 he was posted as Constable at P.S. Kichha. He along with Constable Sunder Singh had taken the dead body of deceased Ishrat Jahan for post- mortem examination. Till when the dead body was remained in their possession, nobody was allowed to see or touch it. 18. P.W.6 is Mohd. Yaar who has not supported the prosecution case and was declared hostile. 19. P.W.7 is S.S.I. Surendra Singh who has stated that on 30.4.1989 he was posted at P.S. Kichha. During the course of investigation, he recorded the statements of witnesses and prepared the inquest report, i.e. Ex.Ka.2. Specimen of Seal, Form No.33, letter, sketch of dead body and Challan Lash were also prepared by him which were exhibited as Ex.Ka-3 to Ex.Ka-6. Police Form No.13 is Ex.Ka.7. He also inspected the place of occurrence and prepared a site plan, i.e. Ex.Ka-8. He also recovered the DIBIA from the place of occurrence and prepared a Fard, i.e. Ex.Ka-9. He also prepared a Fard for recovering the rope and pieces of bangles, i.e. Ex.Ka-10. Rope is Ex.1 and pieces of bangles is Ex.2. After completing the investigation, he filed the charge sheet against the appellants/accused, i.e. Ex.Ka-11. 20. P.W.9 is Constable Viresh Tripathi who has stated that Chik FIR of this case was prepared by Head 10 Moharrir Gajraj Sharma, i.e. Ex.Ka-13. The necessary entry was also made by him in the G.D., the carbon copy of G.D. is Ex.Ka.14. Special report prepared by Constable Clerk A.A. Khan is Ex.Ka-15. He further stated that Head Moharrir Gajraj Sharma has died in an accident. 21. Thereafter, the statements of the appellants/ accused Anwar Khan and Smt. Hasina (now deceased) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form. Each of the appellant/accused denied the allegations made against them and stated that they have falsely been implicated. However, in defence, they had not produced any oral or documentary evidence. 22. Sri Lalit Sharma, learned counsel for the appellant/accused argued that as per the evidence discussed above, the presence of P.W.1 Nabi Sher Khan and P.W.2 Nanhe Khan on the place of occurrence is doubtful. I find substance in the argument advanced by counsel for the appellant/accused for the following reasons: - A. The conduct of P.W.1 Nabi Sher Khan and P.W.2 Nanhe Khan that in the intervening night of 29/30.4.1989 at about 1:00 A.M., they were going to harvest the wheat crop, is not a natural conduct of a person as usually people do not chose to harvest the crop in the night and normally the people prefer the harvest the crop in the day hours. This conduct of both these witnesses is abnormal which creates a doubt about their presence on the place of occurrence. 11 B. P.W.1 Nabi Sher Khan has stated in his cross- examination that some quarrel also took place between him and appellant/accused Anwar before the said incident and he also lodged an FIR against the appellant/accused Anwar Khan. This fact shows that appellant/accused Anwar Khan and P.W.1 Nabi Sher Khan were having inimical terms before the said incident. In the same way, this witness has stated in his cross- examination that Nanhe (P.W.2) has also some quarrel with the father of appellant/accused Anwar Khan before the said incident and due to this reason, a case was also registered u/s 324 IPC. The aforesaid facts show that both these witnesses viz. P.W.1 Nabi Sher Khan and P.W.2 Nanhe had inimical terms with the appellant/ accused Anwar Khan before the said incident. In view of this scenario, it is not natural that the appellant/accused would confess their guilt before those persons who had inimical terms with them before the said incident. As such, this statement that the appellant/accused Anwar Khan has confessed his guilt before P.W.1 Nabi Sher Khan and P.W.2 Nanhe Khan is not a reliable statement which creates a doubt in the evidence of those persons and their presence on the place of occurrence is also doubtful. C. P.W.1 Nabi Sher Khan has also stated in his cross-examination that on the date of incident, the night was dark and he was only a torch and except the torch, no other source of light was there, as such except torch, there was no source of light for harvesting the crop which also casts a 12 doubt about the presence of P.W.1 Nabi Sher Khan and P.W.2 Nanhe Khan on the place of occurrence in the night hours at about 1:00 A.M. in the intervening night of 29/30.4.1989 and their presence seems to be doubtful due to the reasons as mentioned above. 23. Due to the reasons as recorded above, the presence of P.W.1 Nabi Sher Khan and P.W.2 Nanhe Khan on the date and place of occurrence is doubtful and their evidences are not reliable, believable and trustworthy. As such, on the basis of evidence of these two witnesses, prosecution story becomes doubtful and it is not safe to convict the appellant/accused on the basis of evidence of the aforesaid two witnesses. Besides this, P.W.4 Anwar Khan S/o Ismail and P.W.6 Mohd. Yaar have not supported the prosecution case and they were declared hostile. P.W.3 Jabar Khan, who is the father of deceased Ishrat Jahan, has also not stated anything in his evidence which may prove that the appellant/accused Anwar had abetted the deceased Ishrat Jahan to commit suicide. Section 306 deals with the abetment of suicide, which is as follows: - 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. 24. 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 13 described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence under Section 306 of IPC. Section 107 of IPC defines abetting 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 ommission, the doing of that thing. These things are essential to complete abetment as a crime. The word “instigate” literally means to provoke, 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 of IPC. 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 of IPC 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. 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. 25. From the facts and circumstances as discussed above, the prosecution has not proved beyond reasonable doubt that the appellant/accused Anwar Khan had abetted deceased Ishrat Jahan to commit suicide. Hence, the offence punishable u/s 306 IPC is not 14 proved against the appellant/accused Anwar Khan beyond reasonable doubt and I do not concur with the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above. 26. For the reasons as recorded above, the appeal is allowed. The judgment and order dated 24.02.1994 passed by Special Judge (Addl. Sessions Judge, Nainital) in S.T. No.287/1989, State Vs. Anwar Khan and another, is hereby set aside. The conviction and sentence of the appellant/accused Anwar Khan u/s 306 IPC for seven years’ R.I. with fine of Rs.5,000/- and in default of payment of fine, three months’ further rigorous imprisonment, is hereby set aside. The appellant Anwar Khan is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. 27. Appellant No.2-Smt. Hasina has reported to be died, hence the appeal filed by appellant no.2-Smt. Hasina stands abated against her. (Dharam Veer, J.) December 11, 2008 Rajeev Dang