IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 390 of 1997 Decided on: 3.9.2010 State of H.P. ..…Appellant Versus Prittam Chand & ors. ..…Respondents Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1Yes For the appellant : Mr. P.K. Sharma, Addl. AG with Ms. Shubh Mahajan, Dy. AG. For the respondents : None. Dev Darshan Sud,J. (Oral) The State is aggrieved by the acquittal of the respondents for offences, under Sections 306/498-A IPC. The prosecution case is that the deceased Sushma was married to the Suresh Chand, son of respondent Prittam Chand a year before the alleged occurrence. She disclosed to her father PW-1 Lal Chand, her mother PW-2 Gudoo Devi and sister PW-3 Shukla Devi that she was being maltreated by the respondents and she was not given sufficient food to eat and was beaten-up. Whenever she visited her patents house, she made this complaint to her mother/father/sister. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. It is the case of the prosecution that on the occasion of ‘Barsala’, she remained in the house of her parents for about one month and thereafter, her brother-in-law (Devar) Arshal took her away to her in-laws house. On 24.9.1996, at about 3.00 a.m., accused Arshal went to the house of Lal Chand, father of Sushma and disclosed that she had consumed some insecticide and had expired. 3. Three witnesses are important to consider the charge against the respondents, under Sections 498-A and 306 IPC. The first is PW-1 Lal Chand, who is the father of deceased, who states that she was married to Suresh Chand and after her marriage, according to him, she was subjected to cruelty as she was not given proper/adequate food, tea etc. She was also confined in one room and subjected to beatings etc. To similar effect is the evidence of PW-2 Guddo Devi, mother of the deceased and PW-3 Shukla Devi, sister of the deceased. It is not disputed before us that she had died because of consuming insecticide namely aluminium phosphide which fact stands proved by Pw-6 Dr. Veena Chaudhary, M.O. Zonal Hospital, Dharamshala, who conducted the post mortem examination of Sushma (deceased). 4. The crucial point for determination is as to whether the respondents had subjected the deceased to cruelty within the meaning of Section 498-A IPC leading her to commit suicide and whether the presumption of section 113 (B) of the Evidence Act would be drawn against them. 5. Leaned trial Court on the evidence holds that there is no evidence worth the name to prove that the deceased was 3 ever subjected to cruelty. To arrive at this conclusion, the learned trial Court notices that in his evidence PW-1 Lal Singh has though stated that the deceased was subjected to cruelty but he had never made any such complaint either to the police or to the panchayat or to any other person. PW-2 Gudoo Devi, mother of the deceased, admits that the deceased wanted to live with her husband who was employed as driver in Delhi. So far as PW-3 Shukla is concerned, her evidence is of general nature when she states that some kind of complaint was made to her with respect of maltreatment. In cross-examination, she again admitted that deceased wanted to stay with her husband in Delhi. 6. PW-4 Nimmo Devi, who is neighbour of the deceased, has stated in her evidence that the relationship between the husband and wife were cordial. In these circumstances, the learned court rightly holds that there is no evidence worth the name to implicate the respondents or that they were guilty of cruelty as alleged. 7. Learned Additional Advocate General, submits that the very fact that the deceased had consumed aluminium phosphide is but a pointer to the fact that the deceased has been treated in cruel manner and this is a crucial circumstance as any normal person would not consume insecticide. This submission cannot be accepted. It is true that suicide is not usually committed by a person and that it is a rarity but then at the same time the blame for such an act cannot be attributed to the respondents. We also find from the evidence that the so called acts of cruelty have been stated for the first time by the 4 witnesses in Court and that too in a general nature. In Subhash Chand vs. State of H.P. and Others, Latest HLJ 2009 (2) 1076, this Court holds where the allegations are made for the first time by a witness in the Court, they cannot be relied upon. Adding to what has been stated in the judgment we may state that the conduct of PWs-1,2 and 3 cannot be expected as normal. Nobody would accept that her/his daughter/sister is treated in a cruel and harsh manner without making any complaint to the police/panchayat or disclose this fact to another person. 8. There is no corroboration to the statements of the witnesses and moreover as noticed by us, PW-4 Nimmo Devi does not supported the case of the prosecution at all. 9. In Satish Kumar Batra and others versus State of Haryana, (2009) 12 SCC 491, the Supreme Court holds 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 5 to 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 presumption 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 for dowry. That aspect has been accepted by PW 1. Significantly, this 6 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 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 7 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. 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: “15. The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its Twenty-first Report dated 10.8.1988 on “Dowry Deaths and Law Reform”. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of “dowry death” in Section 304- B IPC and the wording in the presumptive 8 Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with demand for dowry”. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: 1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) 2) The woman was subjected to cruelty or harassment by her husband or his relatives. 3) Such cruelty or harassment was for, or in connection with any demand for dowry. 4) Such cruelty or harassment was soon before her death. 16. 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. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “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. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113- of the Evidence Act. The expression “soon before her death” used in the substantive 9 Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.” (p.p. 341-342) 11. Aside from the fact we do not find any evidence on the record to connect the respondents with the crime, we may also notice that the Supreme Court in Preeti Gupta and another Vs. State of Jharkhand and another, (2010) 7 SCC 667, holds:- “A serious relook at Section 498-A is warranted by the legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into 10 consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.” 12. Looking to the totality of the facts and circumstances of the case, we hold that the prosecution has failed miserably in establishing that the deceased was subjected to cruelty by the respondents within the meaning of Section 498-A IPC. We, therefore, find no justification in the present appeal, which is accordingly dismissed. Bail bonds furnished by the respondents shall stand discharged. (Dev Darshan Sud),Judge. (V.K. Sharma), Judge. September 3, 2010, (vs)