IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.284 of 2003. Date of Decision_25th November,2010. _______________________________________________ Nagender Kumar and others. ….Appellants. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the appellant :Mr.Deepak Kaushal, Advocate. For Respondent. :Mr.P.K.Sharma, Addl. Advocate General. Dev Darshan Sud, J.(Oral). The appellants’ challenge their conviction by the learned trial Court for offences under Section 498-A of the Indian Penal Code for which they have been sentenced to undergo imprisonment for various terms. The prime accused appellant No.1 has been sentenced to rigorous imprisonment for two years and fine of Rs.3,000/- while the other two accused have been sentenced till the rising of the Court. 2. In brief the prosecution case is that the deceased Smt. Sheela Devi was married to Nagender Kumar accused in accordance with Hindu rites on 26th April, 1999. At that time, her parents had given more then enough dowry beyond their capacity. The case is that the accused were not satisfied with Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 the dowry. The first accused is the husband, accused No.2 Rajesh Kumar is the brother-in-law (Dewar) and accused No.3 Sheela Wati is Jethani (elder sister-in-law) of the deceased. 3. On 15th April, 2000 at around 8 p.m. a telephonic message was sent to Police Post, Gunnu Ghat by the Medical Officer of Zonal Hospital, Nahan that one lady had been brought for treatment to the hospital but was declared dead on her arrival. A.S.I. Sh. Gurdip Singh (PW7) rushed to the hospital and prepared the inquest report Ext.PW1/A. He observed some marks on the neck and throat of the deceased and was informed by the mother-in-law of the deceased that Sheela Devi had gone to her home at around 4 p.m. and that when the first accused returned at about 6.30 p.m., he found her lying on the bed with her face downwards. She appeared to be unconscious. He immediately rushed her to the hospital where she was declared dead and an autopsy performed. 4. Ext.PW10/A is the post mortem report and the cause of death as recorded therein is “probably the death was caused by “Asphyxia”. The probable time between the injuries and the death was opined to be 30 minutes. This has been the subject matter of further investigation by the police. The opinion of Dr. D.K.Ghosh (PW9), State Medico Legal Adviser Professor and Head of Department of Forensic Medicine, Indira Gandhi Medical College, Shimla, is that it was extremely difficult to pin point whether the case was one of natural/un-natural death. He opines that it is a case of un- 3 natural death and homicide cannot be ruled out for which a detailed interrogation of the family members should be carried out. The viscera report from the Forensic Science Laboratroy, Junga should also be taken into consideration and the blood report with respect to the pillow and bed sheet taken into possession on 22.4.2000 should also be carefully examined. 5. The initiation of the case is by Ext.PW1/A which is a complaint addressed by Sanjeev Kumar brother of the deceased to the police on 24.4.2000 stating therein that his sister Sheela Devi had died because of the cruelty to which she has been subjected to by the appellants. He also says in this application that earlier he did not lodge any report because when they had gone to attend the cremation, the family members of the accused threatened them with the dire consequences and even threatened to kill them. 6. I have considered these few facts at the initial stage only to emphasize the fact that the case against the appellants herein is based on circumstantial evidence which would require that the chain of circumstances pointing an accusatory finger at the appellants is so complete that there cannot be any other possibility save and except that they were guilty of the offence as alleged. 7. Adverting to the evidence on record, PW1 Sanjeev Kumar, who is the brother of the deceased, says that the marriage between the first accused and the deceased was solemnized in April 26, 1999. After about 5/6 months, the 4 deceased complained that her husband, brother-in-law Rajesh Kumar and sister-in-law Sheela Wati were always ill-treating her and beating her up. A demand for Rs. 50,000/- was made as he wanted to set up his own business. Two-three days thereafter, accused Nagender Kumar came to their house at Jagadhari and on being questioned as to why he was ill- treating and had assaulted the deceased, he admitted that in fact, he had done this but in future he promised not to persist in these acts. Thereafter she was sent with him to her matrimonial home. He then says that on the eve of Holi in 2000, accused Nagender Kumar and Sheela Devi came to his house and he made a demand for Rs.10,000/- and a sewing machine. He borrowed Rs.10,000/- from one Ramesh Verma and bought a sewing machine from Yamunanagar for Rs.1400/- and handed them over to the accused Nagender Kumar but he did not seem to be happy. On the evening of April 15, 2000, he received telephonic information that Sheela Devi was not well. He contacted his father who was informed that Sheela Devi had died. He says that he wanted to report the matter to the police but was threatened with dire consequences and even death in case he dared to initiate prosecution. In cross-examination, he says that his father is a labourer. The in-laws of his brother resided at Nahan. Their house is about 300 yards from the house of the accused. She some times used to write letters to her father and on one occasion told her neighbour that she was ill-treated by the accused persons. He then says that his father went to Nahan 5 on 15th April, 2000 to attend the cremation with 2/3 other persons, namely Ashok Kumar and Anil Kumar and accompanied the funeral procession from the house of the deceased till the cremation ground. After the autopsy, he wanted to carry the body of his daughter to Jagadhari but the father of the accused as also one Sikh gentlemen requested him not do so and prevented them from cremating the body at Jagadhari. He was confronted with his statement recorded under Section 161 Cr.P.C. where there were some contradictions which, he denied. 8. PW2 Jai Prakash says that he is the neighbour of PW1 Sanjeev Kumar and that he knows the family including the deceased. He then purportedly corroborates the statement of PW1 by saying that after 5/6 months a demand for dowry etc. was made. He along with some other persons intervened in the dispute when the accused told them that she would not be maltreated. He then states that PW1 Sanjeev Kumar had told him that a sum of Rs. 10,000/- and a sewing machine had been given by him. In cross- examination, he admits that on 16th April, 2000 he and some residents of the ‘Mohalla’ numbering about 20/25 had gone to Nahan to attend the cremation after which he and those persons returned to Jagadhari on the same evening. The funeral ceremony was performed by the first accused. 9. PW3 Ramesh Verma is also a neighbour of PW1 Sanjeev Kumar. He says that 5/6 months after the solemnization of the marriage etc., he was passing by the 6 house of Jung Bahadur father of the deceased and he inquired about the well being of the deceased where upon she informed him that she was ill-treated and beaten up. He told her that one has to face these difficulties when one goes to a new- house to settle in a new family and that she should bear this. He then purportedly supports the demand for dowry of Rs. 50,000/- but later on the entire matter being settled at Rs.10,000/- which was borrowed from him. He admits that his monthly income is Rs.2000/- to Rs.5000/-. He has four children and wife to look after. He says that out of this income he has to contribute Rs.500/- per month to some committee. So far as the other witnesses are concerned, they are witnesses after the incident. 10. The evidence of PW7 S.I.Gurdip Singh is important. He, of course, proves the daily diary report Ext.PW7/A. He makes a very important admission in his cross-examination and that is to the effect that he recorded the statements of the complainant and his father and mother. He admits that the complainant, his father and mother had not stated before him that the accused persons ill-treated or beat up deceased Sheela Devi rather they stated that she was happy in her in laws house. He also admits that no statement regarding demand for dowry was made by the accused persons nor was any such statement made by the complainant, his mother or father before him. He also says that on the basis of the inquest report, F.I.R. was registered. 7 11. PW10 Dr.Mahender Kumar Sharma, performed the autopsy. PW9 Dr. D.K.Ghosh has furnished his opinion Ext.PW8/B which would be considered by me at a later point in this judgment. 12. Looking to this evidence on the record, there can be no doubt that in case any conviction is to be sustained, it cannot be by direct evidence but only on the basis of circumstances. The principles applicable for conviction in such cases have been detailed by the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 S.C. 1622, where the principles of Section 3 of the Evidence Act have been discussed as also the falsity of the explanation furnished by the accused under Section 313 Cr.P.C. The Court holds: “150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. 151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, 1952 SCR 1091: (AIR 1952 S.C. 343) This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v State of Maharashtra, 8 AIR 1972 SC 656. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (at pp. 345-46 of AIR) (supra) : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793: (AIR 1973 S.C.2622 ) where the following observations were made : "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 9 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 154. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry, (1952) NZLR 111, thus : "Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt : the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for." 155. Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain” (PP 1655 & 1656) 13. The learned trial Court, while considering the presumption under Section 304-B I.P.C. rules out the applicability of the presumption that unnatural death having occurred within seven years can be invoked against the appellants. But then the Court, relying upon the evidence of three witnesses supra as noticed by me as also the evidence of PW8 Lachhman Dass, PW9 Dr.D.K.Ghosh and PW10 Dr.Mahinder Kumar, convicts all of them under Section 498-A I.P.C. 14. What requires to be considered at this stage is that even if the evidence of those witnesses is taken as it is, whether conviction under Section 498-A can follow. What I find strange is that from a reading of Ext.PW1/A, no complaint was made earlier to the police that the parents of the deceased would be subjected to physical violence and even threatened with death. This aspect itself is 10 proved by the evidence of PW7 Gurdip Singh who says that no such complaint was made to him at the very first instance. There was no statement made by the family of the deceased as also complainant PW1 Sanjeev Kumar that demands for dowry etc. were made. Rather, the case was that the deceased was being treated with love and affection and care in the in laws’ house. The other star witness produced by the prosecution PW2 Jai Parkash also does not support the case of the prosecution. There were 20 to 25 people from the complainant’s party, who were present at the cremation ceremony and under what circumstances the complainant and his family members were threatened, remains an obscure mystery. 15. It is admitted by PW1 Sanjeev Kumar himself that the house of the in-laws of his brother is situated only at a distance of about 300 metres from the house of the deceased. No attempt has been made in the investigation as to why no inquiry was conducted from them. 16. On the demand of dowry, all that I need say is that this has been introduced for the first time in Court or slightly prior to that. The first point of time to disclose this was when the complainant and his family members had met PW7 Gurdip Singh, who is clear in his statement that no complaint was made to him. Why the complaint Ext. PW1/A was addressed to the police more than 5/6 days after the occurrence and more especially when the deceased was cremated in the presence of the family members and their 11 neighbours , prior information of the cremation and her death had been conveyed to them is also something which has not been considered by the trial Court. 17. Learned counsel appearing for the appellants relies upon the decision of the Supreme Court in Gananath Pattnaik Vs. State of Orissa, 2002 2 S.C.C. 619, holding: “7.The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. 10. Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW 5, who is the sister of the deceased. In her deposition recorded in the court on 4-5-1990 PW 5 had stated: "WHENEVER I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in- laws for non-fulfillment of balance dowry amount of a scooter and a two-in-one, and added: "ON 3-6-1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima Apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from her, and that her mother- in-law has come and some conspiracy is going against her (the deceased). She further told that 'mate au banchei debenahin'." Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304-B and such statement was admissible under clause (1) of the said section as it related to the cause of death of the 12 deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498-A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused. 14. It follows, therefore, that there was no legal evidence tendered in the case which could be made the basis for returning a finding with respect to the alleged cruelty of the accused with the deceased. In the absence of any legal evidence produced in the case, we are of the opinion that the prosecution has failed to prove, beyond doubt, that the appellant had committed the offence under Section 498-A of the Indian Penal Code and find that it is a fit case where he is entitled to be given the benefit of doubt”. (PP 622,623&624) 18. The fact situation is some what similar in this case. Learned counsel submits that the so called act of cruelty is not proximate in point of time to the death that is to say that even if the first incident is accepted, it is 5/6 months after the marriage and in this case the death occurred after a long time thereafter. He places reliance on the decision of the Supreme Court in Kaliyaperumal and another Vs State of Tamil Nadu, 2004 9 S.C.C. 157, the Court holds: “5………………..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 13 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-B of the Evidence Act. The expression “soon before her death” used in the substantive 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 163) 19. In Preeti Gupta and another Vs. State of Jharkhand and another, 2010 7 S.CC. 667, the court rules:, “37 Before parting with this case, we would like to observe that a serious relook of the entire provision 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