Ved Prakash vs State of U.P.

S.N.H. Zaidi, J.—This appeal has been filed against the judgment and order dated 22.12.2006 of the Additional Sessions Judge/Fast Track Court-III, Gonda, passed in Sessions Trial No. 411 of 1995, State v. Ved Prakash, convicting and sentencing the appellant to five years rigorous imprisonment and a fine of Rs. 5000/- u/s 306 of the Indian Penal Code, for short I.P.C., and in default of payment of fine to an additional imprisonment for six months.

Briefly stated, the prosecution case is that Shashi Kiran, the daughter of Rajeshwari Prasad, resident of village Bhairampur, District-Gonda, was married to the appellant about two years prior to the incident and the appellant used to beat his wife alleging that she was having a bad character and due to that harassment she had committed suicide by consuming poison. A written report Ext. Ka-1 was given by Rajeshwari Prasad on 21.1.1995 at P.S. Khargupur of District Gonda and on the basis of that report a case u/s 306 I.P.C. was registered against the appellant and after investigation the police filed a charge-sheet under Sections 498-A and 306 I.P.C. The Magistrate took cognizance thereon and committed the case for trial to the Court of Sessions. The learned trial Court framed the charges of the said sections against the appellant, who pleaded not guilty and claimed the trial.

The complainant Rajeshwari Prasad had died prior to the initiation of the trial. The prosecution examined seven witnesses, namely; PW-1 Om Prakash, PW-2 Smt. Sampta, PW-3, Avdhesh Kumar, PW-4 Krishna Kumar, PW5 Ram Pravesh Pandey, PW-6 R.C. Chaturshreni and PW-7 S.S.I. Chandra Bhushan Upadhyay and produced documentary evidence Exhibit Ka-1 to Ka-12 in support of its case.

PW-1 Om Prakash and PW-2 Smt. Sampta, who are the brother and mother respectively of the deceased, have said that deceased Shashi Kiran had told them about the cruel treatment given to her by the appellant and that she would commit suicide any day. PW-3 is the scribe of the written report Ext. Ka-1. Pws. 4 to 7 are the formal witnesses and have proved the police papers. According to PW-6 Dr. R.C. Chaturshreni, who had conducted the post mortem examination of the deceased, the cause of death could not be ascertained and her viscera was preserved.

The accused-appellant in his statement u/s 313 Cr.P.C. has denied the prosecution evidence and has stated that his mother and Bhabhi (wife of his elder brother) were also residing in the same house and there had been some hot talks amongst the ladies due to which the deceased had consumed something and when her condition worsened, then he took her to the PHC but she died on the way. The appellant has not adduced any evidence in his defence.

The learned trial Court found the charge of Section 498-A I.P.C. not proved and acquitted the accused-appellant from the same but found him guilty of the charge of Section 306 I.P.C. and sentenced him, as stated above. Feeling aggrieved with the judgment and sentence, the accused has come up in appeal before this Court.

I have heard Mr. G.M. Kamil, learned Counsel for the appellant and learned Additional Government Advocate for the State and perused the material on record.

Mr Kamil has contended that, according to the charge against the appellant, he had abetted his wife to commit the suicide as he practiced cruelty by beating her after accusing her of having bad character, but since the learned trial Court did not find the charge of cruelty u/s 498-A IPC proved, which was the basis of the alleged abetment, therefore, the charge of Section 306 IPC also fails against the appellant.

It is also the contention of the learned Counsel for the appellant that the deceased had allegedly consumed the poisonous substance at her matrimonial home but there is nothing on record to show any circumstance which had prompted her to take that step on the day of incident. It has been pointed out that the brother PW-1 Om Prakash and mother PW-2 Smt. Sampta of the deceased are residents of other village and were not present in the house of the deceased when she had allegedly consumed the poisonous substance and there is also no evidence on record to show that the deceased was beaten or maltreated by the appellant on that day and as such it can not be said that the deceased had taken the extreme step to end her life due to any misconduct or ill-treatment at the hands of the appellant.

The learned Counsel for the appellant has further submitted that the incident of the death of Smt. Shashi Kiran had taken place after about two years of her marriage and PW-1 and PW-2 have stated that her Bidai had taken place after the Gauna ceremony which was solemnized after about a year of the marriage and at that time the deceased had stayed for about a month with her husband and when she returned to her maternal home, then she told that her husband had leveled the charge of characterlessness against her and had beaten her on account thereof. It has been pointed out that PW-2 has stated that, at that time after staying for about fifteen days, the deceased had left for her matrimonial home and till her death she did not visit her maternal home and PW-1 has not said that he visited her sister after she paid the last visit to her maternal home and stayed for about fifteen days. In view of above, it has been contended that even if there was any maltreatment or beating of the deceased by the appellant as alleged, it was during the period when she had stayed for one month with the appellant after the Gauna ceremony, which had admittedly taken place about eleven months prior to the incident and since there is no evidence to show that the deceased was maltreated or beaten by the appellant during this eleven month''s period or on the date of incident or soon before her death, which had prompted her to take the extreme step, the appellant can not be said to have abetted the deceased to commit suicide.

Learned Counsel has also contended that the learned trial Court has wrongly taken the presumption of Section 113A of the Evidence Act against the appellant that he had abetted his wife to commit the suicide on the grounds; firstly, that it is mentioned in the inquest report Ext. Ka-2 that the Panchas had informed that the husband of the deceased often admonished the deceased due to which she consumed the Sulphas and died; and secondly, that PW-4 Krishna Kumar, who is one of the Panchas, has stated that the husband used to beat the deceased. It has been pointed out that out of five Panchas of the inquest proceedings, only one PW 4 Krishna Kumar has been examined and he has stated that the father of Shashi Kiran had told him that his son-in-law used to maltreat his daughter and has admitted that he had not seen Ved Prakash either admonishing or beating the deceased. The contention is that the trial court has, therefore, wrongly placed reliance upon the inquest report Ext. Ka-2 in taking the presumption of abetment against the appellant.

I have given my thoughtful considerations to the case and find that the contentions of the learned Counsel for the appellant are acceptable. Section 113-A of the Evidence Act reads as under.

113-A When the question is whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume having regard to all the other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband.

As the trial Court has not found the charge of cruelty u/s 498-A IPC proved and acquitted the appellant of the same, therefore, one of the ingredients necessary for attracting the said Section 113-A, i.e., subjecting the deceased to cruelty, is missing and as such the learned trial Court has committed mistake in taking the presumption of abetment of suicide against the appellant under the said section.

In the post mortem examination of the deceased, the doctor PW6 could not ascertain the cause of her death and had preserved the viscera but the record does not show that the viscera was sent for examination to the Forensic Science Laboratory and there is also no viscera examination report on record and as such, it can not be said with certainty that the deceased had died of poison. The observation of the learned trial Court that failure to send the viscera for examination by the Investigating Officer shows only carelessness on his part and does not adversely affect the prosecution case cannot be accepted. In cases where the doctors fail to ascertain the cause of death while conducting the autopsy of the dead bodies, the viscera is generally preserved and sent for examination to determine the cause of death, but failure in doing so is not only a serious lapse on the part of the Investigating Officer but also makes the prosecution case unacceptable. Admittedly, no body had seen the deceased taking the poisonous substance and it was suspected that she had taken the Sulphas, a poisonous substance generally kept in the bags of wheat for its protection from the insects, and in the absence of the viscera examination report it can not be held that the deceased had died of poison as the suspicion however strong it might be, can not take the place of proof. Unless it is proved that the deceased had died under unnatural circumstances, her death shall be presumed to have occurred in natural course. In order to prove the charge of abetment to commit suicide u/s 306 IPC, it has to be sufficiently proved that the deceased had died under unnatural circumstance. Although the appellant has stated in his statement u/s 313 Cr.P.C that the deceased had consumed something after the hot talks amongst the ladies of the house and her condition had worsened and she died on her way to the P.H.C, yet since from the evidence on record, it can not be said that Smt. Shashi Kiran had died of poison, hence the charge of the said section fails and the finding of the learned trial court contrary to this view cannot be upheld.

Learned Additional Government Advocate has, on the other hand, contended that as the deceased had died at the house of the appellant, therefore, it shall be presumed that the reason of her death is especially within his knowledge and by virtue of Section 106 of the Evidence Act, the burden of proving as to how she had died lies upon him. Looking to the facts and circumstances of this case, I am not inclined to accept this contention. In a criminal trial, initial burden of substantiating the charge against the accused lies on the prosecution and once the prosecution successfully discharges this burden, only then the accused, u/s 106 of the Evidence Act is required to prove the fact which is especially in his knowledge. In the instant case, the prosecution has utterly failed to discharge its initial burden of proving that the deceased had died as result of any act of the appellant, but even then the appellant has tried to explain the circumstances under which his wife had died by stating, u/s 313 Cr.P.C, that there had been some hot talks among the deceased, his mother and Bhabhi, whereupon she had consumed something. PW-1 has admitted that six Pattidars of the appellant used to reside in that house and as such it can not be said that the fact relating to the cause of death of Smt. Shashi Kiran was in the specific knowledge of the appellant. In view of this, the appellant cannot be held to be under any legal obligation to explain as to how she had died.

In view of what has been stated above, the charge of Section 306 I.P.C. is not proved against the appellant and the finding of the guilt of the said section by the learned trial court can not be sustained and consequently the appeal is deserved to be allowed.

The appeal is, accordingly, allowed. The conviction and sentence of the appellant Ved Prakash u/s 306 I.P.C. is set aside and the appellant is acquitted of the charge of said section. He is on bail. He is not required to surrender. His sureties are discharged. The amount of fine, if deposited, shall be refunded to the appellant.