IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr.Appeal No. 566 of 1999 Reserved on: 28.3.2008 Date of decision: 11.4.2008. Aman Kumar and others Appellants Versus State of H.P. Respondent ___________________________________________________________ Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?1Yes. For the Appellants : Mr. T. R. Chandel, Advocate. For the Respondent : Mr. Rajesh Mandhotra, Deputy Advocate General. Surinder Singh, J. The appellants, herein, have called in question the judgment of conviction, passed against them by the learned Additional Sessions Judge, Solan, District Solan, H.P. on 22.12.1999, under sections 304-B and 306 read with Section 34 I.P.C. whereby they have been sentenced to undergo simple imprisonment for a period of seven years and to pay Rs.7,000/- each. In default of payment of fine all the appellants have been ordered to further undergo simple imprisonment for a period of one year in Sessions Trial No.5-NL/7 of 1997. The aforesaid sentences were ordered to run concurrently. In brief, Prosecution case can be stated thus: Smt. Anita Devi (deceased) was married to appellant Aman Kumar on 5th November, 1989. From this wedlock, she gave birth to 1 Whether the reporters of Local Papers may be allowed to see the judgment ? Yes. - 2 - one son and two daughters. Deceased was pregnant for the fourth time. On 1.5.1996 she along with her three minor children, aged between 3½ years to 5 years, is alleged to have jumped into the well, near her matrimonial house and finished her own life as well as of her children. The matter was reported in police station, Barotiwala by Ramesh Kumar, Member, Block Development Committee, Jharmazri. The Police reached the spot and got extracted the bodies of three children and Anita Kumari from the well. Since all were dead, the police sent the dead bodies to the hospital Barotiwala for post- mortem examination. In the opinion of the Doctor, cause of death in all the cases was drowning leading to asphyxia. Anita Devi was also having the ante-mortem head injury. The viscera was sent for chemical examination but nothing adverse was detected. The Police preceded under section 174 Cr.P.C. In the meantime PW1 Mukesh Kumar, brother of Anita Devi deceased, filed a complaint Ex.P4 before the police alleging that after giving birth to the son in year 1990, the appellants started maltreating her and gave beatings. They also raised demand of money from her parents. To this effect a report was lodged by her father to the police station Barotiwala, which ended in compromise. The complainant expressed his doubts that his sister Anita Devi along with her children might have been murdered by throwing them into the well. Copy of the compromise (Ext P1) and the receipt (Ex.P3), regarding taking - 3 - loan of Rs.10,000/- by respondent Aman kumar from Smt. Uma Gupta, his mother-in-law was also produced to the police. On the basis of the aforesaid complaint, police registered a case under sections 302, 498-A read with section 34 of the Indian Penal Code. Aman Kumar, Narinder Kumar brothers and their father Nathu Ram (appellants) were arrested. Statements of the witnesses were recorded. The police during the investigation found that Anita Kumari was harassed by the appellants for not brining sufficient dowry. The appellants had raised the demand of money and on the day of alleged occurrence, the other members of the family were not present in the house. Anita Kumari (deceased) allegedly had a tiff with her mother-in-law, Premi Devi (appellant) which became unbearable to her. On these allegations, after collecting the evidence against the appellants, the police presented the challan against the appellants, in the court for their trial. Finding a prima-facie case, the learned trial court framed the charges against each of the appellant-accused under section 304-B and 306 read with section 34 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined the brother of deceased Mukesh Kumar (PW1), his wife Smt. Usha Rani (PW2), Smt. Madhu Sharma (PW3) and, Ram Sarup (PW6) neighbours of PW1, Smt.Kavita (PW4) elder sister of the deceased, Maluk Singh (PW5) a friend of PW1, Ramesh Kumar (PW7) Member of Block Development Committee, Lachhman - 4 - Dass (PW8), Bhajan Kaur (PW9), Om Parkash (PW10), Karam Singh, Patwari (PW11), Lekh Raj Photographer (PW12), Dr. Dharamvir Singh Chanaria, (PW13) who had conducted the post- mortem examination of the deceased, Sunder Singh (PW14), Gurbax Singh ASI (PW15),Jagdish Chand Dy.S.P. (PW16) and Gurdial Singh SHO (PW17) to prove its case. The appellants were also examined under section 313 Cr.P.C. They denied the circumstances put to each of them and the appellants pleaded their innocence. Their defense was that the brother and the parents of Anita Kumari had died in quick succession. Thereafter she remained mentally depressed and quite unhappy, which might have been the cause of finishing her life alongwith her children. The appellants were called upon to lead their defence. They examined DW1 Ramesh Kumar. After hearing the learned counsel for the parties, at the end of trial, the learned trial court convicted and sentenced the appellants as aforesaid, which has been assailed in the present appeal. The matter has been heard. Shri T.R.Chandel, learned counsel for the appellants, has forcefully argued that the prosecution evidence is absolutely discrepant and unworthy of credence as far as the alleged demand of dowry, torture; cruelty and abetment of suicide by the appellants are concerned. It is also argued that the prosecution did not place on record any document showing that the deceased Anita Kumari was married to Aman Kumar on 5.11.1989. It is also submitted that the - 5 - prosecution had tried to prove that way back in the year 1991, there was some dispute between the husband and wife, which ended in compromise on 30.7.1991 but if the evidence in this behalf is examined minutely, it would reveal that the dispute was something else than as projected against the appellants. The learned counsel also read that portion of the statement of Mukesh Kumar wherein he had stated that Rs.50,000/- was demanded by appellant Aman Kumar to meet the expenses to defend the criminal case regarding the sale of kerosene-oil registered against him and submitted that this cannot be said to be a demand of dowry nor there is any evidence to show that Smt. Anita Kumari was ever harassed or tortured by the appellants as alleged. It is also ventilated that even the alleged beating given to Anita Kumari 15 days prior to the said incident and demand of money did not find mention in the complaint; the witnesses have improved their version during the trial, which cannot be believed. It is submitted that there are material contradictions and omissions in the statements of witnesses which renders the prosecution case unworthy of credence. According to him suicide/death of Anita Kumari along with children might be due to some accident or any other unknown reason, for which the appellant cannot be held guilty. Contra, Shri Rajesh Mandhotra, learned Deputy Advocate General, while supporting the impugned judgment of conviction and sentence has vehemently argued that the statements of the prosecution witnesses are worth inspiring confidence which were - 6 - rightly relied upon by the learned trial court, therefore, there is no merit in the appeal. I have carefully gone through the record of the case and have reappraised the evidence. Now I proceed to discuss the law and evidence to find out whether the impugned judgment of conviction and sentence is legally and factually sustainable? A. OFFENCE UNDER SECTION 304-B I.P.C. Both the sections 304-B and 306 IPC deals with two distinct offences and if the case is established, there can not be any escape from the conviction of the appellants under both the sections. First of all, I shall take up the offence of “dowry death” punishable under section 304-B of the Indian Penal Code. In order to prove a case under Section 304-B of the Indian Penal Code against the appellants, the prosecution is obliged to prove the following essential factors:- (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. - 7 - As a matter of fact, the word “dowry” in Section 304-B IPC has to be understood as it is defined in Section 2 of the Dowry Act. There are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third “at any time” after the marriage. The third occasion may appear to be unending period. But the crucial words are “in connection with the marriage of the said parties.” Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression “dowry”. Further the demand for money on account of financial stringency or for meeting urgent domestic expenses also does not fall within the meaning of “Dowry”. In this behalf reference may be made to a judgment of the apex Court in Appasaheb and another v. State of Maharashtra: AIR 2007 S.C.763. Section 113-B of the Evidence Act is also relevant in the case at hand. Both section 304-B IPC and Section 113-B of the Evidence Act were inserted by the Dowry Prohibition (Amendment) Act 43 of 1986, with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows: “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, or in connection with, any demand for dowry, the Court - 8 - shall presume that such person had caused the dowry death. [Emphasis mine] Explanation. - For the purpose of this section, “dowry death” shall have the same meaning as in section 304 B of Indian Penal Code (45 of 1860)”. A conjoint reading of section 113-B of the Evidence Act and section 304-B IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances.” The expression “soon before” is very relevant where section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. In other words the live link or proximity must be shown to exist between the course of conduct relating to cruelty or harassment in connection with dowry demand and consequential death. Mere lapse of time by itself would not provide the accused a defense that cruelty or harassment was not soon before her death. Prosecution is obliged to show that “soon before” the occurrence there was cruelty or harassment beyond a reasonable doubt and only in that case presumption would operate. In the instant case, the date of marriage of Anita Kumari with Aman Kumar appellants on 5.11.1989, as deposed by the prosecution witnesses is disputed, but the appellants have also not stated as to when the said marriage had taken place. Therefore, we take 5.11.89 as the date of marriage of Anita Kumari to be correct as testified by the prosecution witnesses. Anita Kumari had died as stated above on 1.5.96 about six - 9 - months prior to completing seven years. The circumstances of alleged cruelty as deposed by the witnesses are:- The first allegation leveled by Mukesh Kumar (PW1), the brother of deceased is that his father late Sh. Ishwar Dayal had filed a complaint on 2.7.1991 against that appellants for giving beatings and causing torture to Anita Kumari by the appellants which ended in compromise before the police. The compromise Ext P1 is placed on record. It is stated that pursuant to this compromise appellant Aman Kumar gave an undertaking Ext P1 to keep her well and took her back to his house. In fact, the perusal of Anita Kumari’s statement Ex.D1 dated 2.7.1991, reveals that Anita Kumari was hospitalized at Chandigarh in the year 1991, for consuming poison which she had alleged to have consumed accidentally, mistaking it as her medicine. When she was hospitalized at Chandigarh, her father lodged a complaint in police station Barotiwala against the appellants. PW2 Usha Rani, the wife of the complainant has identified the signatures of Anita Kumari on Ext.D1 aforesaid. The said case was closed by the police as per report (Ext.D8). None of the witnesses of the prosecution have stated that Smt. Anita Kumari had taken the poison because of any harassment, cruelty or alleged demand of dowry or for that matter, the statement (Ext D1) of Anita Kumar was incorrect. For the argument sake, if it is believed that there was any such thing in that event it stood resolved. The case of the prosecution is related to dowry demand after the marriage of the deceased with Aman Kumar appellant, therefore, the prosecution is obliged to prove the existence of the conduct of the - 10 - appellants that even the closure of the case as per police report Ex.P8, on 2.7.1991, the appellants had harassed or caused cruelty to the deceased in connection with demand of dowry, failing which presumption of section 113- B of the Evidence Act cannot be drawn. (Pl.See: Kans Raj Versus State of Punjab: 2000(5) SCC 207) To prove this fact the prosecution has relied upon the testimony of Mukesh Kumar (PW1) and his wife Usha Rani (PW2). According to them on 23.1.1992, Aman Kumar came to their house at Chandigarh and demanded more money. He (PW1) was not having any money, and then he went to Master Om Parkash (PW10) and took a loan of Rs.10,000/- from him, which he confirms, then paid it to Aman Kumar against receipt Ex.P3. But this money was not returned by him and it is alleged that he went on torturing and humiliating Anita Kumari and insisted upon her to bring more money. The perusal of the receipt Ext P3 reveals that appellant Aman Kumar was running a glossary shop and a kerosene depot at Barotiwala and he took a loan of Rs.10,000/- from his mother-in-law Uma Gupta on 23.1.92 with an undertaking to return it back on 23.4.92. But it does not show that this amount was demanded by him on account of dowry nor such an allegation is there. It was pure and simple case of taking the said amount on loan which does not fall within the purview of demand of dowry at all. The next allegation is that Aman Kumar Appellant had also demanded the amount of Rs.50,000/- in the month of April,1996; approximately one month before the death of Anita Kumari. To prove this fact Mukesh Kumar (PW1) has deposed that Anita came to his house with appellant Narinder Kumar, her brother-in-law (appellant) and told that - 11 - Aman Kumar appellant was demanding Rs.50,000/- as he was involved in some criminal case with respect to the sale of kerosene-oil, but he (PW1) expressed his inability to pay this amount. The alleged demand was made before his complaint Ex.P4 to the police but this fact was not mentioned by him in his complaint aforesaid. PW2 Usha Rani, his wife had also corroborated his this version but according to her Narinder Kumar had left Anita there in their house and told her to come to matrimonial house on arranging the money. On 7.4.1991, she was taken back to the house of appellants by Mukesh Kumar, though this fact was disputed in her cross- examination. PW4 Kavita, the sister of the deceased has also made the similar statement, but she was confronted with her statement Ex.D5 recorded under section 161 Cr.P.C., wherein this fact was not found mentioned. According to Usha Rani after about fifteen days when Anita was left in her matrimonial house, she received the telephonic call from Anita Kumari in the house of Madhu Sharma (PW3) informing her that she was being tortured and threatened to be killed. Madhu Sharma (PW3) has stated that though a telephonic message was received in her house in the last week of April, 1996 but she did not know whether it was of Anita Kumari. Above events are alleged to have taken place before the lodging of FIR and was within the knowledge of the above witnesses but there is no explanation why these incidents were also not mentioned in the complaint by Mukesh Kumar. Its non-explanation by the complainant and the other witnesses renders the above circumstance highly doubtful. - 12 - As far as the raising of demand of Rs.5,000/- to Rs.7,000/- as alleged by PWs 1 and 2 by the appellants at various occasions are concerned, these are merely the allegations not supported by any authenticated evidence. Had such things happened it would have definitely been mentioned in the complaint by the complainant which was filed by him after due deliberation. The prosecution has also alleged the physical torture to the deceased. Though there is no witness to this fact except PW3 Madhu Sharma a neighbour of Mukesh Kumar. She has stated that she had seen some marks of injuries on the hands of Anita Kumari in the month of April, 1996 when she had visited the house of PW1 at Chandigarh. On inquiry by her in the house of Mukesh Kumar she had revealed that she was given beatings by the family members of her in-laws and at that time, she was quite depressed and in great trouble. She (PW3) did not know if anyone else had also seen these injuries on Anita’s hand. She did not advise her to lodge the complaint to the police, but when she was confronted with her statement Ex.D4 under Section 161 of Code of Criminal Procedure, this fact of injuries did not find mention therein. Amazingly, if these injuries were visible and noticed by PW3 then why PW1 and PW2 could not have noticed it. This means PW3 is not a reliable witness. The case of the prosecution is also that just before her committing suicide there was a tiff with Premi Devi, her mother-in-law but there is no evidence worth its name on record. Although some ante-mortem injuries were found on the dead body of Anita Kumari as per the post-mortem report, but these injuries were possible due to a fall in the well as stated by Dr. Dharam Veer Singh Chanaria (PW13). - 13 - Therefore, for the reasons mentioned above the prosecution evidence to prove the above charge is not at all convincing as such the conviction of the appellants cannot be sustained. B-OFFENCE U/S 306 I.P.C.: As far as the charge under Section 306 IPC is concerned, it is based on the statements of PW1 Mukesh Kumar, his wife PW2 Usha Rani and PW4 Kavita younger sister of deceased Anita Kumari, whereby they have stated that the appellants demanded the amount of Rs.50,000/- from them in the month of April, 1996 through Anita Kumari when they were not able to pay them Kamlesh and Premi Devi appellants had abused and maltreated her for not arranging money. Anita Kumari was literate and according to PW Usha Rani, she had been complaining to her in her letters about the maltreatment being given to her by the appellants and one such letter was allegedly handed over by her to the police. The letter which is alleged to have been handed over to the police by PW2 could have thrown some light on the allegations of cruelty as alleged but that letter was not produced and proved by the prosecution on record. PW3 Madhu Sharma, PW5 Maluk Singh and PW9 Bhajan Kaur, all neighbourers and Ram Swaroop (PW6) an acquaintance of PW1 were also examined to lend strength to their version, but their testimonies are unworthy of credence because of improvements in material particulars or full of material omissions. Thus as stated above, there is no reliable material on record which could even remotely suggest any torture or mal-treatment or for that matter cruelty meted out to the deceased by the appellants, so as to derive her to commit suicide alongwith her children. - 14 - There are certain important facts, which have appeared in the prosecution evidence which also require consideration. PW1 Mukesh Kumar has stated that on 24.9.1990 Anita was hospitalized at the time of delivery of her son. She had developed some complications after the delivery. Harish Kumar, her elder brother was also admitted in the same hospital on 1.10.1990 as he suddenly fell ill and died on the very next day i.e. 2.10.1990. He was 26 years of age and left behind his wife PW2 Usha Rani and a son aged about 11 years. Usha Rani (PW2) after about six months married to Mukesh Kumar (PW1) the brother of Harish Kumar (deceased). Her parents had also died one after the other. According to PW9 Bhajan Kaur, she remained depressed after the death of her mother. Aman Kumar appellant was running a karyana shop and a kerosene depot at Barotiwala. He was residing alongwith his family in village Jharmajri, which was at a distance of about 6 K.M. He was involved in a criminal case as stated above. The financial condition of the family of the deceased was also not good. The testimony of Lachhman Dass (PW8) also need to be closely scanned, he saw Anita Kumari on the day of alleged occurrence alongwith a small child going towards the temple where there was a well, followed by Premi Devi, her mother-in-law who while crying, that her children be saved, fell down. He did not see other children (two minor girls) with her. According to him Anita Kumari jumped into the well and her son also fell alongwith her. When he went near the well and looked into it, he saw the bodies of two girls floating in the water. He did not know as to how the girls fell into the well. He shouted for help, thereafter many persons gathered - 15 - there. Photographs show that the well was unguarded it was situated at a distance of about 100 yards away from the house of Aman Kumar. No other family member except Premi Devi was there in the house. They were called from Baddi from their shop, which was at a distance of about 6 K.M. How and under what circumstances, this unfortunate incident took place remained under the thick smoke. In absence of it, no presumption against the appellants can be drawn. In fact there are numerous reasons for committing suicide, some times these are psychic, some times the bad financial conditions and at times emotional and accidental also. To connect the appellants for this offence, the prosecution was obliged to prove that the accused abetted the commission thereof, but the prosecution has failed in this exercise as the cruelty or harassment by the appellants to my mind stands not established. The cruelty has to be seen in the context as understood in section 498-A IPC. In State of Himachal Pradesh v. Nikku [AIR 1996 SC 67] it was held by the apex Court that if the woman has been subjected to cruelty as defined in Section 498-A IPC, the court may presume, having regard to all circumstances of the case that suicide had been abetted by her husband or any of his relations. 113-A raises a presumption of abetment of