IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.551 of 2008 Date of decision : June 2, 2009 Kuldip alias Sukhia …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Rakesh Jaswal, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) This appeal, under Section 374 of the Code of Criminal Procedure, is directed against the judgment, dated 8th September, 2008, of learned Additional Sessions Judge, whereby the appellant, who, alongwith his father, mother and grandmother, was charged with and tried for offences, under Sections 498-A and 306, read with Section 34 of the Indian Penal Code, has been convicted of the offences, under Sections 306 and 498-A of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-, in respect of offence, under Section 306 of the Indian Penal Code; and to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- for the offence, under Section 498-A of the Indian Penal Code, though his father, mother and grandmother stand acquitted. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Case of the prosecution, as it emerges from the evidence, led during trial, may be summed up thus. Deceased Usha Devi was married to the appellant in March, 2002. For the first five-six months, she was treated well and with foundness, but thereafter the appellant, his father Chuharu Ram, his other Manbhari Devi and his grandmother Phoolan Devi, started harassing her. They would often taunt her that she did not know any job and was incapable of performing even the routine household chores. Once, about eight months prior to her death (death took place on 15th March, 2004), Usha Devi called her brother PW-6 Om Prakash and her cousin PW-9 Paras Ram to the matrimonial home. When they went there, they saw that her face was swollen and she was also having injury marks on her arms. On enquiry, she told them that her husband (appellant Kuldip Kumar) had given her beatings. PW- 6 Om Prakash and PW-9 Paras Ram asked the appellant to mend his ways and not to give any beatings to the deceased in future. He admitted his fault and not only apologized but also assured that in future she would not be beaten up. 3. About a month prior to her death, deceased Usha Devi delivered a male child at Mission Hospital, Palampur, where she remained admitted for six-seven days. She had been got admitted to the hospital and was attended upon during the period of admission by the appellant and his family members. 4. On 15th March, 2004, the room, on the upper storey of the house, where the deceased lived with her …3… husband, was seen to be on fire, by PW-10 Brahmi Devi, a neighbour of the deceased. She also heard some noise. She informed one Kuldip Sharma, telephonically, to apprise electricity people of the fire in the house and also informed the appellant, whose name is also Kuldip, who, at that time, was at his shop. Pradhan of the Panchayat, PW-11 Onkar Chand, on coming to know that the house of the appellant and his parents was on fire, went to the house of the appellant and saw the deceased lying in burnt condition, in a room, on the upper storey of the house. He informed the police. Parents of the deceased were also informed by the Pradhan, on telephone. 5. Police reached the spot. Parents of the deceased and her brother PW-6 Om Prakash also reached the spot. PW-6 Om Prakash made a statement, under Section 154 of the Code of Criminal Procedure, Ex. PW-6/A, to the police, in which he reported that the appellant started giving beatings to the deceased six months after the marriage, on the excuse that she did not know the household chores and that once about eight months prior to the occurrence, the deceased had been beaten up by appellant Kuldip Kumar and when he, accompanied by PW-9 Paras Ram, went to the house of the appellant, he saw face of the deceased swollen and some injury marks on her arms and, on enquiry, she told that she had been beaten up by appellant Kuldip Kumar, her husband. 6. Police conducted inquest and sent the dead body for postmortem examination. Postmortem was conducted by PW-1 Dr. D.P. Swami, who found 100 per cent burns present on …4… the dead body. In his opinion, 18 per cent burns were ante- mortem, 23 per cent were pari-mortem and the rest postmortem. Police searched the room, in which the dead body was lying. The cot kept in the room was found burnt. One can of kerosene was also found lying in the room, indicating that kerosene had been used for causing the fire. Blood-like stains were found on bed-sheet and also on the floor. Burnt articles, bed sheet and some other articles were taken into possession. The same were sent to the Chemical Examiner, who, vide report Ex. PA, opined that no traces of any inflammable matter had been found on any article and that 3630 ml of kerosene had been found in the can, the total capacity of which was five litres. 7. Prosecution examined PW-6 Om Prakash, the brother, and PW-9 Paras Ram, a cousin of the deceased, who allegedly went to her house eight months, prior to her death and on seeing her face swollen and arms injured, were informed that the appellant had given her beating. Other witnesses examined by the prosecution are PW-2 Lata Devi, a cousin of the deceased, PW-3 Anita Kumari, Member of Zila Parishad, PW-4 Raj KUmari, an aunt of the deceased, PW-5 Shakuntla, another aunt of the deceased, PW-7 Janki Devi, mother of the deceased, and PW-8 Sushil Kumar, another cousin of the deceased. All of them stated that the deceased used to complain that her in-laws gave beatings to her and taunted her that she was incapable of performing even the ordinary household chores. Prosecution also examined PW-10 …5… Brahmi Devi, a neighbour of the deceased and PW-11 Onkar Chand, Pradhan of the Panchayat, who informed the police and the parents of the deceased, about the incident leading to the death of the deceased. 8. Learned trial Court has held that the present appellant used to harass the deceased and one instance, which, according to it stands proved, is that when the deceased was admitted to the hospital, in connection with her delivery, about one month before her death, the appellant asked the deceased to demand medical expenses from her mother. Trial Court has also believed the version of PW-6 Om Prakash, a brother of the deceased, and PW-9 Paras Ram, a cousin of the deceased, that about eight months, prior to the occurrence, deceased was having swollen face and injuries on her arms and on enquiry she told that she had been beaten up by the appellant. Trial Court has also placed reliance upon the testimony of PW-2 Lata Devi, PW-3 Anita Kumari, PW-4 Raj Kumari, PW-5 Shakuntla, PW-7 Janki Devi and PW-8 Sushil Kumar, who testified that the deceased used to complain about ill-treatment meted out to her by her in-laws. 9. I have heard the learned counsel for the appellant as also the learned Assistant Advocate General, appearing for the respondent. 10. View taken by the learned trial Court that the appellant had demanded that the mother of the deceased defrayed her hospital expenses, in connection with her delivery, is not supported by the evidence on record. Mother of the …6… deceased, namely PW-7 Janki Devi, did not state that the appellant had asked the deceased to demand money for defraying medical expenses. It was only PW-4 Raj Kumari, an aunt of the deceased, who stated that the appellant asked his wife, angrily, to demand money from her mother to meet hospital expenses. According to PW-4 Raj Kumari, the mother of the deceased and another aunt of the deceased, PW-5 Shakuntla Devi, were also accompanying her, when the appellant asked the deceased to demand money from her mother, but neither PW-7 Janki Devi, the mother of the deceased, nor PW-5 Shakuntla Devi, whispered, even a word, about such a demand. Learned trial Court has observed that the Investigating Officer has corroborated the testimony of PW- 4 Raj Kumari to this effect. Investigating Officer of the case was not there, at the time when this alleged demand was made by the appellant and, therefore, he could not have testified about the same. Investigating Officer simply stated that the investigation conducted by him revealed that such a demand had been made. The statement of an Investigating Officer about what he observes or concludes during investigation of the case, based on the statements of the witnesses, is not evidence but his own view, which is irrelevant. 11. No doubt, PW-2 Lata Devi, PW-3 Anita Kumari, PW-4 Raj Kumari, PW-5 Shakuntla, PW-7 Janki Devi and PW-8 Sushil Kumar, testified that the deceased used to complain to them that she was harassed and beaten up by all the members of her in-laws’ family, but none of them testified about any …7… specific incident of beating or the dates and other particulars of such beatings. They made general type of statements, with respect to this allegation. Trial Court has disbelieved their statements, with regard to this allegation, so far as the parents and the grandmother of the appellant are concerned, but has believed the same as against the present appellant. Now, when the statements of the abovenamed witnesses, as against the other three accused, namely the father, the mother and the grandmother of the appellant, have not been believed by the trial Court, the same could also not have been believed even as against the present appellant, especially when the witnesses did not name any particular accused, but stated that the deceased used to tell that all the accused ill-treated and gave beatings to her. 12. Prosecution did not lead any evidence, indicating that the deceased was ever beaten up, after the alleged beating by the appellant about eight months prior to the death of the deceased. None of the witnesses, including the mother, the brother, aunts and cousins, of the deceased, stated that the deceased was beaten up by the appellant or for that matter any other member of the family of her in-laws, after the beating given by the appellant eight months prior to the occurrence. PW-10 Brahmi Devi, a neighbour of the appellant, who, per her testimony, is not on good terms with the appellant and his parents, also did not say that the deceased was ever beaten up by the appellant or any other member of his family. …8… 13. As regards the allegation of harassment, other than the beating, suffice it to say that the same does not amount to harassment, within the meaning of Explanation (b) to Section 408-A of the Indian Penal Code. The allegation is that the appellant used to taunt the deceased that she did not know how to perform even the routine household chores. For amounting to harassment, within the meaning of Explanation (b) of Section 408-A of the Indian Penal Code, such harassment should be with a view to coercing the lady or any person related to her to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand. Otherwise also, it has been held by the Hon’ble Supreme Court in Bhagwan Das versus Kartar Singh and others, AIR 2007 SC 2045, that it often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by her husband or in-laws and this by itself does not attract the provision of Section 306, read with Section 107 of the Indian Penal Code, and there has to be something more to attract these provisions of law. 14. In view of the abovestated position, I am of the considered view that the charge, under Section 306 of the Indian Penal Code, does not stand established against the appellant, beyond reasonable doubt. 15. As regards the charge, under Section 498-A of the Indian Penal Code, testimony of PW-6 Om Prakash, a brother, and PW-9 Paras Ram, a cousin of the deceased, that once the …9… deceased was having swollen face and injury marks on her arms and, on enquiry, she told that the appellant had given her beating, prove the same. No doubt, PW-9 Paras Ram, in his statement, also named the father of the appellant, besides the appellant, as a beater, but that by itself is not a ground for disbelieving the testimony of PW-6 Om Prakash, the brother of the deceased. PW-9 Paras Ram’s testimony can be used as corroborative to the testimony of PW-6 Om Prakash that the deceased had told that she had received the injuries at the hands of the present appellant. This evidence proves that the deceased was subjected to cruelty, within the meaning of Explanation (a) to Section 498-A of the Indian Penal Code, by the appellant. Hence, the conviction of the appellant for the offence, under Section 498-A of the Indian Penal Code, does not call for interference. However, I do feel that award of sentence of two years rigorous imprisonment for this offence is too harsh, particularly when the evidence on record shows that he act of cruelty was committed more than eight months prior to the death of the deceased and there is no evidence, indicating that after that the appellant had ever used criminal force against the deceased or committed any other act of cruelty. As a result of the above discussion, appeal is partly accepted. Conviction and sentence of the appellant for the offence, under Section 306 of the Indian Penal Code, are set aside and, to that extent, the judgment of the trial Court is also set aside. His conviction for offence, under Section 498-A of …10… the Indian Penal Code, is upheld, but the sentence awarded by the trial Court is reduced from two years rigorous imprisonment to the sentence already undergone by him and he is ordered to be released forthwith, in case the amount of fine of Rs.5,000/-, imposed for this offence, has been paid. In case it has not been paid, he will be released as soon as the same is paid. Release warrants be prepared accordingly. June 2, 2009(sd) ( Surjit Singh ), J