IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal.No.224 of 2004. Date of Decision: 26.11.2010. _______________________________________________ Salochna Devi and another. ….Appellants. Versus State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the appellants: Mr. Anoop Chitkara, Advocate. For Respondent. : Mr.P.K.Sharma, Addl. Advocate General with Ms.Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). The genesis of the entire prosecution case is that deceased Rajani was treated by the appellants accused in a cruel manner which ultimately forced her to end her life by consuming poison. 2. The prosecution case in brief is that on 24.3.2000, ASI. Tanvir Khan (PW18) was on patrol duty along with Constable Arvind Singh when he recorded the statement Ext. PW1/A of the complainant Dalip Singh (PW1) (father of deceased Rajni Devi) under Section 154 Cr.P.C. The complainant was father of six daughters, Rajni Devi deceased was the fifth daughter and married to the second accused Whether reporters of the Local papers are allowed to see the judgment? yes. 2 Pawan Kumar. The marriage was solemnized in the year 1997. As the accused husband was working in Delhi, he had taken the deceased there to reside with him. However, after 20/22 days she returned home complaining about the maltreatment meted out to her by the accused complaining that she had been beaten up by the accused. A Panchayat was convened where the matter seems to have been sorted out. He also states that the accused always wanted to divorce the deceased and was not providing any maintenance etc. She was, therefore, compelled to file a petition under Section 125 Cr.P.C. claiming maintenance. The statement then proceeds that the accused especially Kuldip Singh (brother-in- law), Salochna Devi (sister-in-law) and Sandhya Devi (mother-in-law) threatening her with dire consequences in case she persisted with her petition for maintenance. In other words, the treatment meted out by these people was of such extreme cruel nature that the deceased had no option but to end her life. 3. The undisputed facts proved on record are that a petition for divorce Ext.PW17/C was instituted on 23.9.1999 by the husband on the ground that they were not living as husband and wife and that the marriage had not been consummated. The pleading was that every time he approached her, she would refuse sexual intercourse and would berate him. She would threaten that in case the accused (her husband) would touch her she would commit suicide. On one occasion, when he tried to persuade her to 3 consummate the marriage she ran away and bolted the door of the house from outside wrongfully confining the petitioner in the house. This petition was compromised and withdrawn on 17th November, 1999. The order Ext.PW17/B records that the parties have settled their differences, they seem to be satisfied with each other and as such the petition was dismissed as withdrawn. Ext.PW17/E petition for maintenance was instituted by the deceased on 13th September, 1999 on the allegations that he was not maintaining her. At one point, there is also an allegation that she had not brought sufficient dowry. 4. It is undisputed that the deceased had consumed aluminum phosphate which is a common insecticide used in agriculture operations. The main point for consideration in this appeal is as to whether the deceased was subjected to such intense cruel treatment that she had no other choice but to end her life. It is also undisputed and proved that she had died by consuming poison in the house of her in-laws at the time when the second accused was not present there. 5. The trial Court, on the evidence of the prosecution consisting, mainly of the complainant PW1 Dalip Singh, PW2 Ranjit Singh, PW3 Sandla Devi, PW4 Baldev Singh, PW5 Vidya Devi, PW8 Pradhan and PW9 Jagdish Chand proceeded to convict all the accused holding that the deceased was, in fact, treated with the cruelty which compelled her to end her life. 6. At the out set what I find in the judgment is that the trial court seems to have paid no attention to either the 4 fact situation or to the defence evidence. Two letters Ext.P9 and Ext.P10 addressed by appellant No.3-Pawan Kumar, to his deceased wife as also his mother-in-law Smt. Vidya Devi PW 5 also formed the basis for conviction. The tone and tenor of these letters which were admittedly written somewhere in 1997-98 were conclusive evidence of the manner in which appellant No.2 had been treated with cruelty by his deceased wife and mother-in-law. I will be adverting to these letters at a later point as they form a very important link in the chain of events and the manner in which this appellant has been treated. 7. Learned counsel appearing for the appellants urges that the evidence on record is clearly insufficient to convict the appellants for the offences as charged. 8. Adverting to the statements of the witnesses, PW1 Dalip Singh father of deceased stated that he has six daughters and the deceased was his fifth daughter and was married to accused Pawan Kumar in the year 1997 according to Hindu rites and customs. At that point of time, he (husband) used to work in Delhi. He says that after about four months, he (husband) started maltreating her. Before that, the relationship between the deceased and the accused were cordial. He states that Sandhya the mother of accused used to reside with them in Delhi. In the month of September (Bhadown), 1997 he sent his grandson Sanjay Kumar to bring his daughter to the native village since it was “Kala Mahina” (a month which according to prevalent tradition the bride 5 does not reside with her in-laws.) He was informed that she had gone to Delhi. He then states that she was beaten up at Delhi by the accused and on 8th or 9th September, 1997, she came to his house alone. At that point of time, he saw that she had some internal injuries. (The word used in Hindi as “Gum Choten”). He states that the accused left his daughter at her In-laws house and left for Delhi. He then states that the mother-in-law of the deceased told him that since she had incurred expenditure of Rs 1 lac on the marriage of his son, hence she will not allow his daughter to visit her parental house and she was not provided even food and other necessities of life. He further says that she even abused him and told him not to behave like a dog. His daughter filed a petition for maintenance against her husband. Petition for divorce at Hamirpur was filed by the husband but withdrawn later on. This is the gist of the evidence, so far as the allegations of cruelty are concerned. 9. PW3 Sandlan Devi states that the deceased was her younger sister and married to the accused Pawan Kumar. She says that the deceased was subjected to maltreatment and beaten up by the accused persons namely, Kuldeep, husband Pawan and Sandhya Devi, her mother in law. She states that at one point of time, his sister had come from Delhi to her parental house all alone without any luggage and only with clothes and footwear she was wearing. 10. To similar effect is the evidence of PW5, Vidya Devi, mother of the deceased. Two other witnesses namely 6 PW2 Ranjeet Singh, brother-in-law of the deceased and PW7 Baldev Singh another brother-in-law of the deceased have supported the case of the prosecution. These witnesses also state that at one point of time, when the deceased had come from Delhi, they had seen some kind of injuries on her face. 11. What is significant to note is that no report has been lodged with respect to this incident of maltreatment by any one of these persons. The learned Court below after considering the evidence of these witnesses’ alongwith two letters Ext.P9 and Ext.P10 holds that the deceased was subjected to cruelty continuously for a long period of time. 12. What is important to consider is as to whether these letters establish the case of the prosecution either in conjunction with the other evidence or in isolation. Adverting to the first letter Ext.P10 dated 14th October, 1997 written by Pawan Kumar accused to his mother-in-law PW5 Vidya Devi, I find that he has expressed his anguish and pain at the state of affairs created by her and also blamed her for not letting the deceased carry on a normal life as husband and wife. He writes in anguish that she (mother-in-law) and the sisters of the deceased had brought up the deceased in a manner to disrupt domestic harmony rather than encouraging normal life/relationship. He writes that he has been visiting the temple of the Goddesses “Avha Devi” where he has prayed regularly to punish PW5 Vidya Devi for the misdeeds committed by her and for destroying his marital harmony. This does not indicate as to under what circumstances, it can 7 be treated as being a precursor of the cruel treatment meted out to the deceased. The letter is in ten pages expressing deep sorrow and anguish, mental agony and trauma to which he has been subjected. The letter ends by saying that if his prayer and faith is sincere, God will punish her and if not may he be severely punished by the Holy Goddess. In the second letter dated 18th March, 1998 Ext.P9 again the accused expressed his anguish in the manner in which the deceased has treated him. He complains to her that he has been insulted by his mother-in-law by telling him that he is “nothing”, a non entity and that so many people like him are roaming the streets. He also refers to the incident where he expresses shock and sorrow for the manner in which she left Delhi all alone without informing him and he reminds her that she is a beautiful lady and her act could have invited molestation and physical harm to her from strangers. Surely, this is not the writing of a person who maltreats his wife. The manner in which he expresses deep mental trauma and sorrow at the conceit and arrogance of the family of the deceased towards him has been highlighted. He says that he prays sincerely that she be meted out punishment by God for maltreating him. It is in this backdrop of the situation that the entire evidence is to be considered. 13. Before proceedings any further, I need to notice the submission made by the learned Additional Advocate General that there was ample stimulus to commit suicide which according to him is the pressure exerted and exercised 8 on the deceased by Salochna Devi appellant No.1 and Sandhya Devi appellant No.2 to withdraw the maintenance petition. He submits that this period is crucial. Even if the previous acts of cruelty are excluded as being acts in the distant past, this pressure/maltreatment coupled with threats which according to the learned Additional Advocate General were contained in the letter Ext.P9 and Ext.P10, was per se sufficient to establish the continuity of the sequence of the cruel treatment meted out to the deceased. 14. The case further urged by the State is that the evidence of PW8 Vidya Devi, Pradhan of Gram Panchayat, Bari had intervened in the disputes between the deceased and the accused. At that point of time she observed some injuries on the face of the deceased wife. She also says that the deceased had informed her that her husband used to beat her up for petty matters. She states in her evidence that she helped in compromising the disputes between the deceased and the family members of the accused and advised the husband to live a normal life. This incident pertains to the year 1997. In cross-examination, she admits that she has not stated this fact to the police. That the compromise was reduced into writing has been admitted by PW9 Capt. Jagdish Chand, cousin brother of the deceased. Interestingly, in his cross-examination he admits that it was recorded in the compromise that the deceased will not hold out threats to the accused and his family members that she would commit suicide. Though later on he states that it was added at the 9 instance of the accused persons. The cross examination of PW9 would be relevant in which he inter alia states:- “Uski naklay dono farikan ko dee gai thee. Panchayat nay abb rajinama kaa record naa rakha tha qunki khangi panchayat hui thee. Yaha galat hai kee rajinama may yaha bhee likha gaya tha kee Rajni Bala ney maana tha kee whaha atam hatya kee dhamki na degi. Yaha thik hay ki rajinama may yaha likha tha kee Rajni Bala apni marji say apney sasural kay ghar say na jaigi. Yah theek hay ki yah bhi rajinama may leekha gaya tha kee Rajni Bala apni atam hatya karney kee dhamki nayi degi. Khud kaha kee yaha bat doshiyoo nay lekhwai thee. (Translated: It is correct that the copies of the compromise have been given to both the parties. The Panchayat had not maintained any record as it was a ‘Khangi’ Panchayat. It is incorrect that in this compromise it was recorded that Rajni Balla had admitted that she would not commit suicide. It is correct that it was recorded in the compromise that she is going to her in-law’s house of her own free will. It is also correct that it was recorded that Rajnai Bala will not hold out any threats to commit suicide. Self stated that this was written at the instance of the accused.)” 15. Adverting to the first fact that the deceased was pressurized and threatened that she should withdraw the petition filed under Section 125 Cr.P.C, the evidence of PW20 Sh.A.C.Dogra (at present Secretary Law to the State of H.P.) who was appearing for the deceased, may be considered. At the time when his statement was recorded he was Additional District and Sessions Judge, Shimla. He says that during the time when he was practicing as an Advocate, a petition under Section 125 Cr.P.C. was filed by him on behalf of the deceased. He proves on record Ext.PW17/B, the divorce petition filed by the accused. He says that the brother-in-law of the deceased was looking after the cases. After 10 compromise was arrived at in the divorce petition, the deceased had accompanied the husband willingly. PW1 Dalip Singh the father of the deceased states: “Yeh thik hai ki apni mrityu say pehlay jab waha meray ghar tithi 22.3.2000 ko eye thee toh waha gujara bhatay kee petition koo wapis lanaa chahati thee”. Translated: It is correct that before the death the deceased visited in my house on 22.3.2000 and she wanted to withdraw the petition filed for maintenance” PW2 Ranjit Singh admits: Albata mritak apni mata key paas bus stand Hamirpur may meray karalya maay aayi thee. Uskey baad may uskey sath adalat may gayaa aur Sh.Avtar Singh Dogra sey mila aur tab unsay mietak koo doshi vykati dawara darkhawast koo wapis lenay kee dhamki key baray may usay batya thaa. Albata Mr.Dogra nay hamay 24.4.2000 koo jis din darkhawast kee tarikh paddi too usay aaney koo kahha thaa aur yaha bhee batyaa thaa kee dono pakshoo kee hajari may usi din samjauta keya jaiga. “ Translated: However, the deceased accompanied by her mother came to my office at Bus Stand, Hamirpur and then visited the office of Sh. Avtar Singh Dogra, Advocate where the deceased informed him (Mr.Dogra) that the accused was threatening her to withdraw the application. Mr. Dogra called us for 24.4.2000 on which date the case was to be taken up and the matter would be patched up amicably.” 16. What is required to be noticed in this statement is that this part being crucial and vital to the entire case is not supported by PW20 Sh.A.C.Dogra who was the counsel for the deceased. He does not say one word about any threat etc. being held out to the deceased. The most important fact to be considered is the version given by the father who states nothing about any pressure being exercised on her. If the version of all the three witnesses is to be accepted, she had gone to the house of her parents to inform them about the 11 pressure exerted and threats being held out to her. PW1 Sh. Dalip Singh does not breathe a word about it. The statement of PW2 Ranjit Singh is not supported by PW20 Sh.A.C.Dogra. PW5 Vidya Devi, mother of the deceased states in a general way that the deceased had informed her that in case the petition was not withdrawn, the accused persons would finish her. She contradicts PW2 Ranjit Singh who had accompanied the deceased to the office of Sh.A.C.Dogra, Advocate. Sh. A.C.Dogra, Advocate (PW20) supports none of them and does not even say one word about any threat etc having been held out to the deceased. PW3 Smt. Sandla Devi states that the cause for asking the deceased to withdraw the petition was because accused Pawan Kumar had started drinking and smoking heavily, though in the next breathe she says that they had threatened to kill her. This testimony is not at all in concord with any of the versions on record. This myriad version can hardly inspire confidence and be considered sufficient to attribute criminality to the accused. I need not reiterate the well established proposition in criminal law that a fact must be proved beyond reasonable doubt and the necessary ingredients of the offence be established before guilt can be fastened on any person. 17. I do not find that the learned trial Court has considered the case in its true perspective. In order to arrive at a finding of guilt, the necessary ingredients under Section 306 and 498-A had to be established. It had also to be established that Section 34 I.P.C. could be invoked. It is 12 undisputed before me that on the date when she committed suicide, the accused husband Pawan Kumar was at Delhi. The other three accused were present in the house. How Section 34 I.P.C. was invoked in his case is not clear from the facts. I also find from the judgment that besides discussing the evidence in a general manner, the learned Sessions Judge has not paid any attention to the evidence of defence nor he has given any reason to disbelieve them. 18. Adverting to the evidence of DW1 Savitri Devi, she states that she is related to Rajni Devi. She admits in her cross-examination and there was no talk of any maltreatment etc. DW2 Smt. Sheela Devi was also a resident of the area and related to them not by blood relation but because of residence in the same village. When she heard cries from the house of the deceased, she rushed there and talked to the deceased Rajni Devi who said that she had consumed some tablet. In cross examination, she admits that the deceased did not want to live with the accused persons because they belong to a lower economic strata. DW3 Prem Singh, retired Head Master, was witness to the compromise and states that accused Pawan Kumar had informed him that Rajni Devi (deceased) had left Delhi by bolting him (husband) inside the room. Why this evidence was not taken into consideration and its credibility not adjudicated is not clear from the record. 19. The case is based on circumstantial evidence. In Bhaskar Lal Sharma and another Vs. Monica (2009) 10 SCC 604, the Supreme Court holds: 13 “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, (2008) 11 SCC 55, 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. 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 14 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 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,(2005) 6 SCC 281, 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 ‘Cr.PC’) 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