Bal Krishan Joshi vs State of Uttarakhand and others

U.C. Dhyani, J.—Present criminal revision has been preferred against the judgment and order dated 16.07.2003, whereby accused Narayan Dutt Pandey was acquitted of the charge u/s 306 IPC framed against him by learned Additional Sessions Judge / 1st FTC, Udham Singh Nagar, Rudrapur. On 14.12.2001 a report was given by the informant Bal Krishan Joshi to Circle Officer, Khatima. Bal Krishan Joshi''s daughter Devki Devi was married to accused Narayan Dutt in the year 1983. Devki Devi was harassed and tortured by her mother-in-law Saraswati Devi, sister-in-law Nirmal Punetha and husband Narayan Dutt Pandey, as Devki Devi could not bear a child. She was issueless. An information was given to S.D.M., Khatima and P.S. Khatima on 22.02.1999 regarding threat to life of Devki Devi. On 09.02.2001 accused Narayan Dutt Pandey solemnized second marriage. Devki Devi was assaulted. She was ousted from her matrimonial home on 28.03.2001. An application u/s 125 Cr.P.C. was filed by Devki Devi in the court of Magistrate at Khatima in which both the parties entered into compromise subsequently. On 13.12.2001 accused Narayan Dutt Pandey informed informant Bal Krishan Joshi that Devki Devi was not well. On hearing this, informant sent his nephews Tulsanand Joshi and Kailash Chand Joshi to the residence of accused Narayan Dutt Pandey. The condition of Devki Devi was critical. Her in-laws had killed her. An application u/s 156(3) Cr.P.C. was filed in the court of Judicial Magistrate, Khatima on 24.12.2001 alleging the above. On 13.12.2001 Devki Devi consumed poison. The nephews of informant got Devki admitted in Tapan Hospital, Khatima. Doctors referred the matter to Higher Center (Piliphit). When she was being taken to Pilibhit, Devki regained consciousness for a while and alleged that her in-laws assaulted and administered poison to her. Devki Devi died on way to Pilibhit. When informant went to Devki''s matrimonial home, the neighbours told informant that Narayan Dutt Pandey was giving brown-sugar to Devki.

The Judicial Magistrate at Khatima allowed the application moved u/s 156(3) Cr.P.C. and directed the police to register and investigate the case. After the investigation was completed, charge sheet was submitted against accused Narayan Dutt Pandey u/s 306 IPC. Learned trial court framed charge for the offence punishable u/s 306 IPC against the accused, who pleaded not guilty and claimed to be tried. As many as five prosecution witnesses were produced before the trial court. Statement of accused u/s 313 Cr.P.C. was recorded. Accused did not produce any evidence in defence.

P.W.1 Kailash Chand Joshi was the cousin of victim. P.W.2 Dr. Rajesh Palini gave first aid to victim on 13.12.2001. P.W.3 Bal Krishan was the unfortunate father of the victim who lodged FIR. Accused Narayan Dutt was married to victim some 18-19 years ago. She was issueless. P.W.4 Dr. Saubhagya Prakash conducted post mortem on the dead body of Devki Devi and proved his report Ext.Ka-2. P.W.5 SI D.L. Verma was the Investigating Officer of the case. Ext.Ka-13 was the report of Forensic Science Laboratory, Agra. Aluminum phosphate (poison) was found present in the viscera of deceased.

P.W.1 Kailash Chand Joshi stated in his examination-in-chief before the learned trial court that on 13.12.2001 at 6:30 p.m. his uncle Bal Kishan Joshi send him to accused Narayan Dutt Pandey because Narayan Dutt Pandey made a phone call to Bal Kishan Joshi. When P.W.1 Kailash Chand Joshi reached Narayan Dutt Pandey''s residence he found that Devki Devi was critical. She had sustained head injury. When P.W.1 Kailash Chand Joshi enquired from accused Narayan Dutt Pandey about the same, he explained that Devki Devi has slipped in the bathroom. The cousin (P.W.1 Kailash Chand Joshi) was not allowed to talk to victim and was asked to bring vehicle. Cousin brought vehicle and took the victim to hospital. Doctor told him that either the victim has consumed poison or she has suffered brain hemorrhage. She was rubbing her chest. In the meantime P.W.3 Bal Kishan Joshi arrived. The victim was taken to the Higher Center (Pilibhit). On way to higher center victim told her cousin that her husband, mother-in-law, father-in-law, sister-in-law and second wife of accused have beaten her. She also told that a white powder was given to her. She breathed her last before reaching Pilibhit. In Khatima and cousin. Accused married for the second time in the year 2001.

P.W.2 Dr. Rajesh Palini provided first aid to the victim on 13.12.2001. Dr. Palini said that the victim was suffering from diarrhea and vomiting. She was semi-conscious. P.W.2 Dr. Palini referred the patient to Higher Center at Pilibhit. Accused and P.W.1 Kailash brought her to Dr. Palini. She was suffering from acute diarrhea. She did not utter a word to doctor (regarding her ailment or otherwise).

P.W.3 Bal Kishan Joshi said that victim was married to the accused some 18-19 years ago. She had no child. She was harassed by her in-laws. An information to this effect was given on 22.02.1999. On 09.02.2001, Narayan Dutt entered into bigamous marriage with one Geeta and ousted Devki from his house. Devki and Narayan Dutt reached an agreement subsequently and Narayan Dutt agreed to keep Devki in his house. Accused told P.W.3 Bal Kishan Joshi that his daughter has consumed poison. Kailash and Tulsanand took victim to hospital whereupon doctors said that there was poison in her body. She was taken to Higher Center at Pilibhit. Devki told on way to Pilibhit that she has been administered poison.

Devki passed high school. She did not give anything in writing. When Kailash met Devki she did not speak anything to him. She was recognizing persons when admitted in Tapan Hospital, Khatima. The villagers told P.W.3 Bal Kishan Joshi that her in-laws used to administer brown-sugar to Devki. Doctor found contusion 2cm x 2cm on left side of forehead and abrasion 0.2cm x 0.2cm in left nostril.

Since the death of victim did not occur within 7 years of marriage, therefore, Section 113A of the Evidence Act will not come to the aid of prosecution, the death of victim in unnatural circumstances notwithstanding.

The basic constituents of an offence u/s 306 IPC are suicidal death and abetment thereof. To attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary. According to Concise Oxford Dictionary ''suicide'' is stated to mean as the intentional killing of oneself. A finding of suicide must be on evidence of intention. Every act of self-destruction is, in common language described by the word ''suicide'' provided that it is an intentional act of a party knowing the probable consequence of what it is about. Suicide is never to be presumed. Intention is the essential legal ingredient.

When marriage took place more than 7 years prior to incident, no presumption can be drawn u/s 113A of the Indian Evidence Act. Even without the aid of S.113A of the Evidence Act, the husband can be held guilty of abetting the commission of suicide by his wife if he has constantly ill-treated, tortured and physically assaulted her. His cruel behaviour for a long time would be covered by the words intentionally aids in S. 107 IPC.

In order to have recourse to S. 113A of the Evidence Act, it must be shown that the deceased wife was subjected to cruelty by the husband and his relatives. Cruelty has to be same as in S.498A IPC. In absence of such proof presumption cannot be raised.

In view of S.113A Evidence Act as added by amendment, onus is shifted on the persons charged, if it is proved by the prosecution that the lady committed suicide within period of seven years from date of her marriage. Onus lies heavily on the accused / appellants to prove that death was not because of that cruelty or torture or suicide was not direct result of their wrongful acts. In the instant case since the incident took place after 7 years of marriage, there is no question of presumption.

Where the bride commits suicide seven years after her marriage, the presumption under S.113A, Evidence Act is not available. It is for prosecution to prove actual harassment. In the absence of such an evidence the accused cannot be convicted.

Section 306 IPC conceives abetment of suicide in terms and meaning of abetment as understood in Section 107 IPC. In the instant case the prosecution was required to prove that the conduct of accused was willfully of such a nature as was likely to drive her to commit suicide. The prosecution was required to bring overwhelming evidence to establish that life of Devki was made intolerable by the accused husband. Here the plea taken by the prosecution was that husband maltreated his wife, contracted second marriage so much so that her life became a hell compelling her to commit suicide. In the instant case all out efforts were made by learned counsel for the revisionist to show that the accused entered into bigamous marriage with one Geeta Pandey, but I am afraid, no cogent evidence is available on record to prove this. Prosecution / revisionist could have produced the invitation card of second marriage of accused with Geeta but the same was not brought on record. In the absence of invitation card, any pandit or witness could have been produced before whom ''saptapadi'' took place. In the absence of ritual of ''saptapadi'' no marriage in Hindus can be said to be solemnized. It is not the case of prosecution that accused and Geeta solemnized marriage before Arya Samaj Mandir or before the Court. No such evidence is available on record. If accused was keeping Geeta with him, her status at the most would be that of a concubine. A concubine is no wife. A concubine cannot give birth to a legitimate son or daughter. Thus the prosecution in the instant case failed to substantiate that accused entered into bigamous marriage. That was perhaps the basic cause of committing suicide by victim. Learned counsel for the revisionist drew the attention of this Court towards photocopy of the compromise between the husband and wife. That compromise does not indicate, in no uncertain terms, that Geeta in fact entered into the life of accused husband as a wife.

Further, no witness was produced on behalf of prosecution before whom accused administered brown-sugar or poison to victim. The victim herself did not speak before anybody that her husband administered poison to her. She was literate. She passed high school. She could have conveyed the misdeeds of her husband by writing letter to her parents. She could have conveyed the same to her parents or cousin before she was taken to Pilibhit Hospital. No doubt, a faint attempt was made by the prosecution to show that the victim uttered a few words against her husband on way to Pilibhit but that was a half-hearted unconvincing exercise. The victim could have told something to the doctor who first attended on her. Doctor Palini refused to have heard anything from the mouth of victim when she provided first aid to her. The marriage between the accused and victim continued for 18-19 long years. There was no direct evidence regarding maltreatment / harassment to victim by husband. Even her husband was present in the hospital when she was admitted. Husband himself along with her cousin took victim to Khatima and then to Pilibhit. Had the span of marriage not crossed beyond 7 years, the presumption of Section 113A of the Indian Evidence Act could have come to the aid of prosecution but unfortunately, in the instant case, the same was not to be.

It is made clear that while exercising revisional jurisdiction, this Court has looked into all the papers including the additional evidence which was not filed before the trial court, although it is the law that additional evidence is not required to be seen by the Revisional Court. Learned counsel for the accused / respondent raised an objection that additional evidence cannot be looked into by the Revisional Court but this Court was persuaded to look into them in a zeal to find out whether there exists any ray of hope for the revisionist in the interest of justice? Unfortunately that additional evidence also does not help the revisionist.

The statement of P.W.1 Kailash Chand Joshi was that when victim was being taken to Pilibhit Hospital she told that her in-laws beat her and administered white-powder. If this statement is taken to be correct then it was a case of Section 302 IPC and not 306 IPC. It is unfortunate and unconvincing that the victim chose her last moments to convey the same to his father or cousin. It has come on evidence that the victim went with her husband to Ranikhet, Bhatinda, Jammu, Lucknow and stayed with him. As has been said earlier, there is no evidence regarding second marriage of accused with Geeta. Geeta''s status remains undefined. She was not the wife, might be mistress or anything else. Accused got victim examined in POS Hospital some 9-10 days before her death. The victim, no doubt, died under unnatural circumstances. That was most unfortunate but the courts are required to deliver verdict on the basis of evidence which unfortunately in the instant case was not sufficient to bring home the guilt against accused. The absence of aid of Section 113A of Indian Evidence Act was being miserably felt.

When the compromise took place between the parties on 29.09.2002, there was no evidence of fresh crisis after that. The death took place within three months thereafter. It is just possible that the victim might be suffering from the agony of not being able to conceive a child. In the post mortem report cause of death of victim could not be ascertained because viscera was preserved and when the report of Forensic Science Laboratory was received the same found aluminum phosphate in viscera. The reason for consuming aluminum phosphate by victim could not be ascertained on the basis of evidence on record. Compelling circumstances leading to her death (suicide) could not be brought home convincingly.

There is no reason to interfere in the Judgment & Order revised against. The revision therefore, fails and is liable to be dismissed. The revision against the impugned order is thus dismissed.