Conviction under Section 306 for abetment of suicide requires evidence of clear mens rea and intentional instigation. Section 106 of the Evidence Act cannot be invoked to shift the evidentiary burden onto an accused unless the prosecution has first established a prima facie case against them.

JUDGMENT :

SUBHASH VIDYARTHI, J.

1. Heard Sri Pawan Kumar Mishra, the learned counsel for the appellant and Sri Mohd. Asif Khan, the learned A.G.A.-I.

2. By means of the instant appeal filed under Section 374 (2) Cr.P.C, the appellant has challenged the validity of a judgment and order dated 06.04.2012 passed by the learned Special Judge, E.C. Act, Gonda in Session Trial No. 217 of 2008, arising out of Case Crime No. 127 of 2008, under Sections 498-A, 304-B (alternative Section 302/34 IPC) and 3/4 Dowry Prohibition Act, Police Station Kaudiya, District Gonda.

3. The aforesaid case was instituted on the basis of an FIR lodged against four persons - the appellant Manoj Kumar, his father Faujdar, mother Maya Devi and brother Pawan Kumar, stating that the informant had got his daughter married to the appellant Manoj Kumar about six years ago. Gauna ceremony was performed three years after the marriage. About one year after the Gauna, the accused persons started demanding Rs. 30,000/- as additional dowry. The informant had paid Rs. 10,000 and had committed to pay the balance amount soon. The appellant had taken the informant’s daughter with him about 8 days ago and had stated that unless the balance amount of Rs. 20,000/- was paid within 10 days, his daughter would be set ablaze. His daughter was set ablaze on 10.04.2008, the FIR was lodged on 09.05.2008, i.e. after one month since the incident.

4. The victim was admitted to the District Hospital, Gonda at about 7:55 p.m. on 11.04.2008 and she died at 7:50 a.m. on 12.04.2008. An inquest report was prepared and postmortem examination report was prepared.

5. Charge-sheets were submitted against the appellant and his parents. The involvement of the appellant’s brother Pawan Kumar could not be established during the investigation and he was exonerated.

6. The informant Goli Ojha (father of the deceased) was examined as PW- 1. The mother of the deceased was examined as PW-2. The informant’s brother was examined as PW-9. The other witnesses were police officials and the doctor who had conducted the postmortem examination of the dead body. The appellant denied the allegations in his statement recorded under Section 313 CrPC and he examined two witnesses: DW-1-Parmatma Prasad and DW-2-Lakshmi Narayan.

7. The informant PW-1 stated that his daughter’s husband (the appellant) had taken her to the District Hospital, Gonda and she died in the Hospital. He did not know that his elder brother Mathura Prasad (PW-9) was present at the time of preparation of the inquest report. The FIR was lodged 28-29 days after the incident. He or any of his family members had not witnessed the incident. He denied the suggestion that the victim had set herself ablaze being disturbed by her ailment.

8. Mother of the victim (PW-2) stated that information of death of her daughter was received from her sasural (matrimonial home). Her daughter had been admitted to the hospital by her husband and his family members. She had gone to the District Hospital along with the elder brother of her husband. She stated that the elder brother of her husband was present at the time of preparation of the inquest report. She stated that the FIR was lodged about a month after the incident. She denied that the victim had opposed her husband from consuming liquor, an altercation f