IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 307 of 2003 Date of Decision: 15th July, 2010 __________________________________________________________ State of H.P. ….Petitioner. Versus Chuni Lal & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Petitioner: Ms. Ruma Kaushik, Additional Advocate General. For the Respondent: Shri A.K. Sharma, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). The State is aggrieved by the judgment of acquittal passed by the learned Judicial Magistrate Ist Class, Dehra acquitting all the respondents for offences punishable under Sections 498-A, 323, 506 and 34 of the Indian Penal Code. 2. The prosecution case, in brief, is that on 5.11.1999 complainant PW5 Anita Devi, wife of respondent No.2 Desh Raj, registered a First Information Report with the police Ext.PW1/A alleging that her marriage was solemnized with accused/respondent No.2 on 21.11.1992 according to Hindu rites. She gave birth to one son and one 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 daughter from this wedlock. Her grievance is that she was maltreated by her father-in-law, respondent No.1, brother-in-law respondent No.3 and husband respondent No.2. It is alleged that all of them were compelling her to bring dowry and on her refusal to do so, she was beaten up and turned out of the house. She states that prior to 4.1.1999, all accused had beaten her on 4/5 occasions when she reported the matter to her father Mohan Lal, PW2, mother Rajo Devi and sisters Pinki, Sumna Devi, Manuwala and Sahani. In addition, she submits that that matter was reported to Pradhan Rai Singh of Gram Panchayat, Amb Pathiar and Pardhan Ms. Ruma Kaundal; of Gram Panchayat Dohag Dehrian and a written compromise was entered into between the parties. 3. The complainant states that on 4.1.1999 at about 2 PM she was beaten up by her brother–in-law Mohinder Singh as a result of which she sustained injuries. He threatened her that he would kill her. For proving the point with respect to the demand of dowry and physical violence prosecution relies upon the statement of PW2 Mohan Lal, PW4 Anita Devi, PW5 Jaimail Singh and PW6 Rai Singh. 4. Adverting to the evidence, learned Court relied upon the evidence of PW5 Jaimail Singh who states that no beating was given in his presence and that Pardhan Rai Singh PW6 had also been summoned as a witness by complainant PW4. Of course, she states that when she was beaten up, she fell unconscious for about 2/3 hours though she admits that 12-13 houses are adjoining to her In-laws house. She says that her application was presented to PW6 Rai Singh, Pardhan of Gram Panchayat. She also filed an application to Ms. Ruma Kaundal, Pardhan. These applications have not been produced or proved on record of the case. Her testimony remains uncorroborated that demand for TV 3 and golden ring was made by the accused which she stated before the police but was not so recorded there. 5. PW2 Mohan Lal, who is the father of complainant, states that his daughter was maltreated by the respondents. At one point of time the matter was patched up but again this course of conduct was adopted by the respondents. PW6 Rai Singh has stated that he was Pardhan of Gram Panchayat and that father of the complainant had given dowry according to his ability and financial capacity. He admits criminal litigation between his brothers Gagan and Bhagat Ram and the accused. He also admits the civil litigation with the accused persons. 6. Rajo Devi, mother of the complainant, though cited as a witness, but was given up by the Assistant Public Prosecutor. 7. Adverting to the evidence of the parties on record, the learned Court held that there are material contradictions which go to the root of the case. On the basis of the statement of complainant, the Court holds that when she appeared as a witness she no where stated about beatings given to her by Mohinder Singh respondent No.3 on 4.11.1999. The learned Court has duly considered that fact that on 4.11.1999 an application had been presented to PW6 Pardhan Rai Singh of Gram Panchayat, Amb Pathiar by the complainant, but this fact has been denied by this witness. She also says that on 4.11.1999, an application was filed before Ms. Ruma Kaundal, Pardhan of Gram Panchayat Dohag Dohrain, but she was not examined as a witness though her name was included as a witness by the prosecution. One last factor considered by the learned Court is that it is an admitted case of the parties that that the complainant had filed a divorce petition against her husband and there was all the 4 possibility that this case was instituted only for the purpose of creating evidence for divorce. 8. Learned Additional Advocate General has emphasized that evidence of PW1 Dr. Sunita Kundu as also the evidence of PW4 Anita Devi establishes the complicity of the respondents and that there is no doubt that they are involved in the case. 9. I cannot accept this submission for the reason that evidence of other witnesses is directly contradicted with the statement of the complainant. The doctor certifies the injuries but that injuries were not relatable to the injuries purportedly caused by the respondents. Moreover, the learned trial Court rightly held that statement of PW6 Pardhan Rai Singh requires to be discarded straight away for the reason that there are civil and criminal litigations in between him and the accused. The Supreme Court in Satish Kumar Batra and others Vs. State of Haryana (2009) 12 SCC 491, held that when there are infirmities in the evidence of the prosecution and improvements have been made in the testimony of the witnesses, acquittal would be the natural consequence. In Bhaskar Lal Sharma and another Vs. Monica (2009) 10 SCC 604, again the Court stresses that the ingredients of the offences have to be clearly established before conviction under Section 498-A of the Indian Penal Code. The Court holds: “38. The scope of the aforementioned provision came up for consideration in some of the decisions of this Court. We may notice a few. In Noorjahan v. State this Court held : (SCC P. 59, paras 16-17) “16. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to 5 bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of ‘cruelty’. 17. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Amendment) Act, 1983 (46 of 1983). As clearly stated therein the increase in the number of dowry death is a matter of serious concern. The extent of the evil has been commented upon the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some case, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.” It was observed in the fact situation obtaining therein : (SCC pp. 59-60, para 18) “18. So far as the present appellant is concerned, the evidence is inadequate to show that she was party to any demand for dowry. In fact, PW 1 stated that when she went to the place of her daughter the appellant was present along with A-1 and A-2. The said A-1 demanded jewels and presentation of Rs. 5000 for Ramzan. She accepted that she told A-1 and A-2 that she will send the same within a week. The next statement of this witness is very significant. She 6 (the appellant) told that two months’ time will be sufficient for offering the presentation. In other words, she did not made any demand for dowry. That aspect has been accepted by PW 1. Significantly, this witness in her cross- examination had admitted that the appellant is residing at Coimbatore for the last 35 years. She has categorically admitted that while she went to the house of her daughter, she (the appellant) was not present. Therefore, there is no evidence to show that the appellant was either present when the demand was made or she herself made any demand.” 39. In Sushil Kumar Sharma v. Union of India this Court held: (SCC pp 285 & 287-88, paras 10 & 19) “10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘CrPC’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in- laws and relatives. The avowed object is to combat the menace of dowry death and cruelty. 19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent 7 abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. If the cry of ‘wolf’ is made too often as a prank, assistance and protection may not be available when the actual ‘wolf’ appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalized a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.” (p.p.617-619) 10. In the totality of the facts and circumstances of the case, I am satisfied that order passed by the learned trial Court is just and proper. 8 This appeal does not call for any interference. Appeal is accordingly dismissed. Bail bonds furnished by the respondents are discharged. July 15, 2010 (Dev Darshan Sud) (ms) Judge