IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.3 of 2001 Date of Decision : December 8, 2010 State of H.P. …Appellant. Versus: Pardeep Kumar & Anr. …Respondents. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. R. K. Sharma, Sr. Addl. A. G. For the respondents: Mr. K.D. Batish, Advocate Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 11.8.1991, accused were put to trial. In terms of judgment dated 18.9.2000 passed by learned Sessions Judge, Kangra at Dharamshala, in Sessions Case No. 24-K/VII/98 titled as State of H.P. vs. Pardeep Kumar & Anr., accused stand acquitted of the charged offence. 2. As per the prosecution case, Smt. Rekha Devi (deceased) was married to Pardeep Kumar (accused No.1) sometime in the year 1989. On account of various acts of cruelties metted out by her husband (accused No.1) 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 and mother-in-law Shanti Devi (accused No.2), Rekha Devi came back to her matrimonial house within 5-6 months of her marriage. Matter was reported to Panchayat. With the intervention of Member of the Panchayat, parties compromised and Smt. Rekha Devi started residing with her husband in the matrimonial house. However, on 11.8.1991 she committed suicide by setting herself on fire. She was admitted by the accused in the local hospital for treatment. Her statement dated 12.8.1991(Ext.PN) was recorded by the police in the presence of independent witnesses. Unfortunately, she died on 16.8.1991. Last rites were performed by the accused. On 20.8.1991, her father Sh. Mulakh Raj (not examined) lodged a complaint with the Superintendent of Police, Kangra, on the basis of which F.I.R. No. 294/91 dated 20.8.1991 (Ext.PO) was registered at Police Station, Kangra under Sections 304-B & 201 IPC. Police carried out investigation and recovered a letter allegedly written by the accused to his in-laws, wherein he had demanded dowry. Statements of Kartar Chand (PW-1), cousin of the deceased and other witnesses were recorded by the police. Police took into possession application (Ext.PB) filed by the father of the deceased before the Panchayat, statements of the deceased and her father (Ext.PE/1 & Ext.PE/2) as also compromise (Ext.PE) arrived at between the parties before the Panchayat. After 3 thorough investigation police found that a case against the accused was made out and consequently presented the challan in the Court for trial. 3. Accused were charged for having committed offences punishable under Sections 498-A, 304-B and 306 IPC, to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 10 witnesses and statements of the accused under Section 313 Cr.PC were also recorded. Court below acquitted the accused of the charged offences. Hence the present appeal. 5. From the statement of Kartar Chand (PW-1) cousin brother of the deceased, Rania Ram (PW-2), Parkash Chand (PW-4) and Gian Chand (PW-7), prosecution has tried to prove that accused made dowry demands and maltreated the deceased. From the statements of Amar Nath (PW-5) and Harbans Lal (PW-6), prosecution has tried to prove that accused No.1 used to give beatings to the deceased. 6. From the version of PW-5 & PW-6 as also documents Ext.PB, Ext.PE, Ext.PE/1 & Ext.PE/2, it cannot be disputed that all was not well between the parties and the deceased and her father had alleged that accused No.1 used to give beatings to the deceased. But however, there is no reference of any 4 dowry demand or payment in these proceedings before the Panchayat. 7. PW-4 & PW-7 have not supported the prosecution. They were declared hostile and there is nothing in their testimonies which would render their depositions to be false. 8. Kartar Chand (PW-1) is the cousin brother of the deceased. His version, to our mind, does not inspire confidence. We find that while deposing in Court he has made several improvements. When confronted with his earlier statement recorded by the police, he admits not to have made any reference about dowry demands in the application moved before the Panchayat. Statement of Rania Ram (PW-2) also is of no support to the prosecution as even he admits that in relation to dowry demands, in his presence, no complaint was made before any authority either by the deceased or her father. Hence the foundation and genesis of the prosecution case with regard to the dowry demands stand not proved. 9. It is a matter of record that accused themselves had informed the relatives of the deceased about the incident. They had also got the deceased admitted in the hospital for medical treatment. Through the statement of PW-1, it has also come on record that even on an earlier occasion when accused No.1 had fought with the deceased it was found that 5 she had tied poison in her ‘Pallu’ (cloth used to cover the head by a lady). According to PW-1, Smt. Rekha Devi had alleged that it was the accused who had tied the same, which fact though is disputed by him. Be that as it may be, it is not the case of the prosecution that accused had murdered his wife. The charge is of abatement. Now there is no evidence on record to show that soon before the incident either of the accused had subjected the deceased to cruelty or harassment so as to force her to take such a drastic step of taking her own life. Deceased suffered 70% burnt injuries which was the cause of death. In fact there is other material on record which renders the prosecution version to be improbable. According to Inspector Krishan Singh (PW-9), he had recorded the statement of Rekha Devi (Ext.PN). As per this statement, deceased was working in the kitchen and her clothes caught fire due to which she got burnt and her husband had nothing to do with the same. 10. In Balram Prasad Agrawal Vs. State of Bihar & Ors. (1997) 9 SCC 338, the Apex Court has held cruelty to mean torture to be so unbearable in the common course of human conduct that a young lady having commitments to life could take a drastic steps to end her life leaving behind her infant children in the lurch and at the mercy of the accused husband who was found to be in contemplation of remarrying. 6 11. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The accused must by his acts or omission or by a continued course of conduct create such circumstances that the deceased is left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. {Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618}. 12. In Sham Lal v. State of Haryana, (1997) 9 SCC 759, their Lordships of the Apex Court said that it is imperative for invoking the legal presumption under Section 113-B of Evidence Act for attracting the provisions of said Section and fastening with penal liability upon the accused under Section 304-B IPC and that before prosecution has to prove that “soon before her death”, the wife was subjected to such cruelty or harassment. In somewhat similar and identical facts the Apex Court found that the accused could not be convicted of the offence under Section 304-B IPC. 7 13. In State of A.P. Vs. M. Madhusudhan Rao (2008) 15 SCC 582, the Apex Court held as under:- “It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State, is attracted in the instant case, every harassment does not amount to "cruelty" within the meaning of Section 498-A I.P.C. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498-A I.P.C. harassment simpliciter is not "cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to "cruelty" punishable under Section 498-A I.P.C.” 14. Sections 304-B and 498-A IPC are both distinct and separate offences. The `cruelty' is a common essential ingredient of both the offences. Under section 304-B, it is the `dowry death' that is punishable and such death should have occurred within seven years of the marriage. In the statute, no such period is mentioned in section 498-A IPC. The husband or his relative would be liable for subjecting the woman to `cruelty' any time after the marriage. The legal position is absolutely clear that a person charged and acquitted under section 304-B can be 8 convicted under section 498-A IPC. This court in Smt. Shanti & Another v. State of Haryana (1991) 1 SCC 371 has taken the same view. 15. Thus from the record it could not be proved beyond reasonable doubt, that the accused had caused cruelty of such a nature so as to force the deceased to take her life. There is also no evidence of abatement. 16. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R. B. Misra) Judge. 56(Sanjay Karol), Judge. December 8, 2010. (rana)