1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Cr. Appeal No. 284 of 2009. Date of Decision : June 2, 2010. Ramesh Kumar Appellant. Versus State of Himachal Pradesh Respondent. Coram: Hon’ble Mr. Justice, Dev Darshan Sud, Judge. Whether approved for reporting?1. yes For the appellant : Mr. Nimish Gupta, Advocate. For the respondent : Ms. Ruma Kaushik, Additional Advocate General. _____ Dev Darshan Sud, J.(Oral) The appellant has been tried and convicted for the offences under Sections 498-A and 304-B of the Indian Penal Code. 2. The brief facts requiring consideration for the decision of this appeal are that marriage of the deceased Swarna was solemnized with the appellant herein, about one and a half year prior to the incident, i.e on 30.7.2008. The prosecution case is that the marriage was solemnized in accordance with Hindu Rites and Customs. 5/6 days after the marriage, the deceased complained to her parents that she was being ill-treated as she was accused of not bringing enough dowry. After about 1½ months of the marriage, the appellant left for Gujrat, where he 1 Whether reports of Local Papers may be allowed to see the judgment? yes 2 was employed and the deceased went to her parents house, where she remained for about one year. 3. Three months prior to the occurrence, the appellant returned from Gujrat and brought the deceased from her parents house to his village Behru (Samot). Swarna died on 29.7.2008. At about 7.00 a.m., Shashi Kumar (PW-9), resident of Village Kamla, went to her parents house and informed them about her death. Up-Pradhan of the Gram Panchayat also informed PW-14 A.S.I Harnarayan Singh about her death. F.I.R No. 73/08 was recorded against three persons, namely, the appellant, Vidya Devi mother- in-law of the deceased and Tilak Raj (Jaith) brother-in-law of the deceased, all of whom were accused before the learned trial Court. The dead body was sent for postmortem examination which confirmed her death by burn injuries. According to the prosecution, the case of dowry death was made out on the statements of the witnesses, especially that of PW-1 Ami Chand, father of the deceased. Ext. P.W. 1/A is the statement made by him. 4. On conclusion of the evidence, the learned trial Court holds that the evidence is insufficient for convicting Vidya Devi and Tilak Raj, but there was ample evidence on record to convict the appellant. For this purpose, the learned Trial Court also relied upon the provisions of Section113-B of the Evidence Act, raising a presumption that since an un-natural death of the deceased had taken place within seven years of marriage, the appellant (husband) was guilty. The appellant challenges his conviction. 3 5. Adverting to the evidence on record, the statement of PW-1 Ami Chand may be considered in the first instance. He states that he is an agriculturist by profession and has two daughters and one son. All of them are married. The deceased was married to Ramesh Chand about two and a half years back. After the marriage, all the accused persons started harassing and ill-treating Swarna because she had not brought sufficient dowry. He states that he came to know about this fact after 2-3 days after the marriage. According to him, a demand for ‘Batlohi’, vehicle and money was made. He states that he had given articles of the value of Rs. 1,50,000/- in dowry, which according to his status in life was more than enough, but the accused was not satisfied with this and started making continuous demands for money and articles and constantly harassed the deceased. PW-7 Swarna Devi was sent by him to sort out matters and she informed him that the problem was amicably resolved. He states that his daughter came to her parental house because of ill- treatment meted out to her by the accused. The accused came from Gujrat in the year 2008 asking for his wife to be sent back with him, but he refused to do so, whereupon the accused requested with folded hands that he be forgiven and assured him that he would not ill-treat his daughter in future. He then says that the family asked the accused to bring some Pradhan from his village who would assure him about his good behaviour, but he prevailed upon them by assuring that there would be no ill- treatment of his daughter in future. He was categoric that his daughter had complained to him during her visit that her mother- 4 in-law and Jaith (brother-in-law), who have been acquitted, had also actively participated with the accused in harassing her. This is the crux of the evidence with respect to the demand for dowry. 6. I would be adverting on the other evidence on record, which is that of PW-7 Swarna Devi, who says that her house is situated at a distance of one kilometer from the house of the deceased. She says that the relation between the husband and wife remained cordial for about 7-8 days after the marriage, where after all the accused persons including the wife of Tilak Raj (accused No. 2), whose name she does not remember, started ill- treating the deceased and making demand for dowry. She says that the accused persons used to say that the clothes brought by the deceased were of inferior quality and only one ‘Batlohi’ (utensil used for cooking rice) was given instead of seven, which was the norm. She went to the house of the accused persons where she saw accused Vidya (mother-in-law) quarrelling with the deceased. She states that she does not remember the date or month, but she saw the accused quarrelling with Swarna. Accused Ramesh was not present at the house at that time. Tilak Raj accused No. 2 was also not present there. The deceased remained in her parents house for about 5-6 months and thereafter she was sent back to her matrimonial home. On 30.7.2008, she came to know that Swarna had died. This information was given to her by the brother of the deceased. She went to the house of the accused and found the dead body of Swarna lying there. Thereafter other people also arrived on the spot. In her cross-examination, she admits that she knows the families of both, the bride and the bridegroom and that 5 she had not stated to the police in her statement Mark D-7 that any demand for dowry was made etc. She says that she patched up the matter and informed PW-1 Ami Chand accordingly. Two important things have emerged from her statement. One is that she had not stated anything about harassment of the deceased in mark D-7 (Ext. PW-15/A) and secondly, there is nothing on record to show that the deceased was being constantly harassed by the accused. P.W. 6 Satya Devi states that Swarna was present in her house at Village Beru at about 8.30 p.m., when the accused came alongwith her son (Satya Devi’s son). Both of them left their house at about 9.45 p.m. and in the next morning, at about 4.30-4.45 a.m, she was in the Varandah of her house when accused Tilak Raj and Ramesh passed through a passage situated in front of her house and told that Swarna was not present in their house. They also stated that she had sustained burn injuries and died in the kitchen. She went to their house and noticed that the deceased was lying on the ground in a burnt condition. She did not see any quarrel between accused and Swarna during the night. She was declared hostile as she had resiled from her earlier statement. In her cross-examination, nothing has been elicited from her, which would in any manner implicate the accused. She has been confronted with a portion of her statement Mark D-6, which was made by her to the police, but she has denied having stated anything to the police. It is worthwhile to note that she states in her evidence that she is illiterate. P.W. 3 Kunto Devi states in her evidence which was recorded after alteration of the charge that the mother-in-law and 6 deceased were quarrelling about domestic chores. This quarrel took place immediately before the incident. 7. The other evidence on record consists of the doctors and the Investigating Officer(s) and is not being considered in detail as the factum of death of Swarna is established on the record. Medical evidence also establishes that she died because she had sustained burn injuries. 8. What requires to be noticed is that the crux of the allegation against the accused is the demand for dowry made by the accused, which fact has been noticed for the first time in the evidence before the learned Trial Court. Ami Chand (PW-1) admits in his cross-examination that he had not complained to any person regarding the alleged constant demand for dowry made by the accused. His statement Ext. PW-1/A also nowhere details this nor is there any suggestion that the accused were unhappy because sufficient number of utensils (Batlohi) had not been given and the clothes were of inferior quality. There is nothing on the record of the case to suggest demand for dowry and harassment and even if the statements of the prosecution witnesses are taken on their face value, this fact is not established. 9. While considering the evidence on record, the learned Trial Court holds that there is nothing in the statements of the witnesses to implicate Smt. Vidya Devi mother-in-law and Tilak Raj brother in law of the deceased, who had been charged for the offences. It holds that the statements of P.W. 1, 7 and 11, namely, Ami Chand, Swarna Devi and Satya Devi do not in any manner implicate both these persons. It finds as a fact that the 7 mother-in-law and the Jeith had been living separately from the husband and under these circumstances, allegation of dowry could not be sustained against them. The Court then observes that although the statements of the witnesses are insufficient to implicate them, but at the same time, these are sufficient to convict the accused Ramesh. The learned Court, with the assistance of Section 113-B of the Evidence Act holds that in the case of un-natural death, the husband as a natural consequence must be responsible for the death of the wife if such death has occurred within the statutory period of seven years. Nothing can be farther from the truth. I find that the judgment is slipshod in so far as it deals with the analysis of the evidence on record to connect the appellant. The learned Trial Court was duty bound to have considered as to whether the case of the prosecution was within the parameters proved within the meaning of Section 3 of the Evidence Act. The presumption under Section 113-B of the Act could only have been invoked, if it was found that there was or had been a demand for dowry. Learned Counsel appearing for the petitioner submits that this Court in Subhash Chand versus State of H.P and others, Latest HLJ 2009(2) (HP) 1076 has held that: “10. As already noticed in the earliest version, given to the police, vide statement Ext. PW3/A by PW-3 Bihari Lal, not only that there is not a whisper of the allegation that Rs. 25000/- were demanded by the appellant and his parents and that demand had been made within a few days of the marriage and that soon thereafter another demand for a larger amount of Rs. 50000/- had been made, but also there is no allegation of any harassment or cruelty. What is recorded in Ext. PW3/A is that on her first visit, about 15 days 8 after the marriage, deceased had complained that she felt suffocated and uncomfortable on account of the appellant being in the habit of consuming liquor and eating meat. If a man consumes liquor or eats meat that cannot be said to be a case of harassment of wife, within the meaning of Section 498-A IPC. PW-3 Bihari Law was duly confronted with Ext. PW3/A, the statement under Section 154 Cr. P.C, made by him to PW-12 SI Harnam Singh. 11. Even in complaint Ext. DA, which PW-3 Bihari Lal lodged about 1 ½ month after the occurrence, there is no mention of amount of Rs. 25,000/- having been paid, on account of dowry demand, by the appellant and his parents or a further demand for Rs. 50,000/-. PW-3 Bihari Lal was duly confronted with complaint Ext. DA. He could not offer any explanation, whatsoever, for the omission of these material facts in the complaint, despite the fact that such a complaint was lodged about 1 ½ months after the occurrence and was drafted by a legal practitioner. 12. PW-4 Prem Chand, a brother of the deceased was also confronted with his statement Ext. DD, recorded by the police, under Section 161 Cr. P.C. In that statement also, there is no mention not only of payment of Rs. 25,000/- or demand for another sum of Rs. 50,000/- but also of the allegation that the deceased was harassed for seeking dowry from him or his father. 13. From the above discussion, it is clear that story regarding harassment of the deceased, on account of dowry demand, is an afterthought and, hence, not believable. Now when there is no evidence that there was any demand for dowry nor is there any evidence that the deceased was ever subjected to cruelty or harassment, neither the charge of dowry death, under Section 304-B IPC nor the charge of cruelty, under Section 498-A IPC can be said to have been established.” (p.1079) 10. Learned Counsel submits that this Court holds that once the case regarding demand for dowry is not stated before the police in the first instance and later it is built up in the Court for 9 the first time, no reliance can be placed on such evidence. He further fortifies his submissions from the judgment of this Court in Bholi @ Veena and another versus State of H.P 2009 (3) Shim. LC 503 holding that where the allegation with respect to demand of dowry is contradictory and dilatory wanting corroboration, it does not inspire confidence and cannot be used for convicting the accused. 11. Section 113-B of the Evidence Act does not provide for invoking the presumption in every situation but only on proof of treatment with cruelty and harassment with respect to dowry. It reads: “113-B. Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, on in connection with, any demand for dowry, the Court shall presume tat such person had caused the dowry death.” Explanation- For the purpose of this section “dowry death” shall have the same meaning as in Section 304-B of the Indian Penal Code.” 12. Section 498-A of the Indian Penal Code Provides:- “498-A. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a terms which may extend to three years and shall also be liable to fine. Explanation- For the purpose of this section 'cruelty' means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) Harassment of the women where such harassment is with a view to coercing her or 10 any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.” 13. It is now well established that presumption under Section 113-B of the Evidence Act and 304-B of the Indian Penal Code can be raised only when the element of cruelty or harassment has been established on the record. (See Babaji Charan Barik versus State 1994 Cr.L.J 1684 (Ori); Keshab versus State 1995 Cr..L.J 174(Ori), Bhakhar Ram versus State, 1995 Cr.L.J 1345, State of H.P versus Nikku Ram (1995)6 SCC 219. 14. In Satish Kumar Batra and others versus State of Haryana, (2009) 12 SCC 491, the Supreme Court 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 only consequence. In Bhaskar Lal Sharma and another versus 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 can be sustained. 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 bring home the application of Section 498- A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. 11 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 (the appellant) told that two months’ time will be sufficient for offering the presentation. In other words, she did not made any demand 12 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 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 13 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) 15. The Court considered the combined effect of Section 498-A of the Indian Penal Code and Section 113-B of the Evidence Act in Raman Kumar versus State of Punjab 2009 (6) Scale, 335, holding: 14 “15. The necessity