Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 295 of 2002.. Date of Decision: 23rd September, 2011. ------------------------------------------------------------- State of H.P. …… Appellant. Versus Tarsem Lal and others. ……. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General For the Respondents : Mr. Himmat Negi, Advocate vice Mr. Ajay Sharma, Advocate Dev Darshan Sud, J. (oral) : The State has preferred this appeal against the judgment of learned Sessions Judge, Una acquitting the respondents/accused for offences punishable under Sections 498-A, 306 read with Section 34, IPC. 2. The facts necessary for adjudication of the case as placed before the learned trial Court and as urged before us are that Nisha Devi deceased, the daughter of complainant Bimla Devi (PW2) and Ram Nath (PW4) was married to accused Tarsem Lal on 4th December, 1998. She gave birth to a male child on 14th September, 1999. It was alleged that the accused who are the husband, mother-in-law and brother-in-law of the deceased used to maltreat her and subject her to physical harassment by slapping etc., which started after about one month of the solemnization of - 2 - marriage. The allegations are that the deceased had been complaining that she was maltreated because the accused wanted her to bring dowry articles such as scooter, refrigerator and machine for churning curd etc. 3. On may 21, 2000, the deceased along with her minor son Anku and her brother-in-law Billu came to her parents house at Badaun as her son was suffering from dysentery. Medical treatment was arranged for him. On 24th May, 2000 accused Tarsem Lal also stayed in the house of his in-laws. On 25th May, 2000 her husband, complainant Bimla Devi and the deceased took Anku to a doctor at Amb where he was examined and medical treatment started. The accused Tarsem Lal went to his village after this. However, he returned to the house of his in-laws on 25th May, 2000 at about 2.30 p.m. and asked deceased to accompany him to her matrimonial home along with his son. The case is that Nisha Devi deceased consumed Aluminum phosphide during the early hours of the night of 25th May, 2000 in the house of her in-laws. She was brought to District hospital, Una where she breathed her last. Kishan Chand, PW-5 conveyed this information to her parents who then rushed to the hospital. 4. The deceased was admitted in hospital and medical history was taken down on Ex.PK at 10.40 P.M. She breathed last at 10.55 p.m. Information was sent to the police and investigation started. The genesis of the entire case is statement Ex.PF made by Bimla Devi (PW2), mother of the deceased which forms the basis of FIR Ex. PG. Postmortem was performed by DR. R.S. Dhadwal (PW1) and Dr. Satinder Chauhan, who proved report Ex. PC confirming that - 3 - according to the report of Forensic Science Laboratory, Junga (Ex.PB) the death was a direct result of poisoning by Aluminum phosphide. The accused denied any involvement in the crime. 5. Adverting to the evidence on record. Dr. R.S. Dhadwal (PW1) conducted postmortem along with Dr. Satinder Chauhan and proved report Ex. PC which in conjunction with Ex. PB, which is the report from Forensic Science Laboratory confirmed the death of Nisha Devi by poisoning. He also stated in his evidence that period between the consumption of poison and death could be between few minutes to a few hours. 6. The prosecution relied heavily on the evidence of PW2 Bimla Devi who was the mother of the deceased. We need not consider the facts regarding the marriage between the accused and the deceased and birth of the child as they were not disputed before us. In her statement Ex. PF, she narrated about the deceased being slapped and maltreated by the accused. In cross-examination she admitted that in Ex. PF she has not stated that Tirtho Devi, the mother-in-law of the deceased used to slap her, nor there was any mention made by her in this statement that deceased Nisha was being harassed for not brining sufficient dowry. She then admits that Nisha was taken to one “Chela” (Shaman) Shankar Dass at Village Panoh for treatment as it was suspected that Nisha was possessed by evil spirits which were required to be exorcised. 7. PW4 Ram Nath, the father of the deceased testified about her being beaten up by her brother-in-law Kuldeep in March, 1999 and Tirtho Devi also having subjected her to the same treatment when she was washing clothes in March, 2000. He - 4 - states that Nisha had complained about this to Kishan Chand alias Kishan Singh. He visited the house of the accused from time to time and advised them to treat his daughter properly. He states that the maltreatment was the direct result of the accused insisting that she should bring dowry articles as demanded by them. But here again what we find is that in his statement under Section 161 of the Code of Criminal Procedure, Ex. DA where he states that Kuldeep has given only one slap to Nisha Devi but no mention regarding the demand for dowry articles was made. He admits that he did not make any complaint about the maltreatment of the deceased. 8. PW5 Kishan Chand who had arranged the marriage between the deceased and Tarsem lal respondent stated that deceased had informed him that her mother-in-law Smt. Tirtho Devi had beaten her up and he took her back to her matrimonial house and advised accused to behave properly. Then he says that he was informed by one Gurbachan Singh about the fact that Nisha had consumed poison and he immediately informed her parents. He is related to Ram Nath and Tirtho who was on visiting terms with Ram Nath. In Ex. DB which is statement of Kishan Singh recorded under Section 161 Cr. P. C. he has not stated anything about Nisha having come to his house to complain about Tirtho that she had beaten her. His house is situated at a distance of only ½ furlong from the house of the accused. 9. Kashmir Singh (PW6) is the uncle of the deceased and he says that deceased had informed him about her maltreatment because of the fact that she had not brought adequate dowry. However, when confronted with his statement under Section 161, - 5 - Cr.P.C. Ex. DC he was forced to admit that he has not mentioned anything about Nisha being maltreated because of dowry etc. Though, Kartar Chand (PW7) says that Ram Nath (PW4) had complained to him about the accused maltreating the deceased but in cross-examination he states that Baldev Singh was Ward Panch of the Ward where Ram Nath was residing and no complaint was made to him. 10. The case of the prosecution is based on the presumption under Section 113-A of the Indian Evidence Act, 1872 (Evidence Act for short), the demand of dowry being made by in- laws who used to beat her up. Adverting to the first aspect urged by learned Senior Additional Advocate General that the learned Court below was in grave error in not drawing presumption under Section 113-A of the Evidence Act and considering the evidence of the prosecution in its true prospective. 11. In Anand Kumar versus State of Madhya Pradesh (2009) 3 SCC 799, Supreme Court holds that: “13. Undoubtedly, the aforesaid provisions do raise a presumption but the facts of the case cannot be ignored. The different terminology of Sections 113-A and 113-B itself brings out the real purpose behind the two provisions and whereas Section 113-B places a heavier onus on an accused, the onus placed under Section 113-A is far lighter. We reproduce the two sections hereunder to focus on this distinction: “113-A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other - 6 - circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. 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 of dowry, the court shall presume that such person had caused the dowry death.” A Comparative reading of the two provisions (particularly the underlined portions) would highlight that under Section 113- A the court “may presume” having egard to all the other circumstances of the case, an abetment of suicide as visualized by Section 306, IPC but in Section 113-B which is relatable to Section 304-B the word “may” has been substituted by “shall” and there is no reference to the circumstances of the case. 14. Admittedly, the conviction of the appellant has been recorded under Section 306 which is relatable to Section 113-A and though the presumption against an accused has to be raised therein as well, the onus is not as heavy as in the case of a dowry death. In this background, Ms. Makhija’s arguments that the onus shifts exclusively and heavily on an accused in such cases is not entirely correct and in the background of sketchy ocular evidence and the additional fact that the dying declaration recorded by the Naib Tahsildar completely exonerates all the accused of any misconduct, clearly dispels any suspicion with regard to their involvement in this unfortunate incident.” (PP 802-803) 12. We note at this juncture the caution added by the Supreme Court in the trial of cases under Section 498-A, IPC in Preeti Gupta and another versus State of Jharkhand and another (2010) 7 SCC 667 to the effect that : “36. Experience reveals that long and protracted criminal trials lead to rancor, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin chances of an amicable - 7 - settlement altogether. The process of suffering is extremely long and painful. 37. Before parting with the 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 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 consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.” (P-677) 12. Adverting now to the facts of the present case as to whether the presumption under Section 113-A or 113-B of the Evidence Act can be invoked by the prosecution as an aid for convicting the respondents/accused. In Hans Raj versus State of Haryana (2004) 12 SCC 257 the Court holds that the nature of presumption is discretionary. There will be no presumption only because the wife committed suicide. The Court is required to look into all the other circumstances and to consider the nature of cruelty to which the woman was subjected to. The bare provisions of the law are that the suicide has to be relational to the circumstances of the case and that such suicide has been abetted by the husband or relatives of the husband. Cruelty has been given the same meaning as described under Section 498-A, IPC : - 8 - “498A. Husband or relative of husband of a woman subjecting her to cruelty.-…………………………………………………. ……………………………………………………………………………………… (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet demand.” 14. Adverting to Section 113-A of the Evidence Act, we now find that the law is clearly settled in Hansraj’s case (Supra). In that case the Court holds: “13 Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty) Even if these facts are established the court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word “cruelty” in Section 498-A IPC. There mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or damage to life, limb or health of the woman. The law has - 9 - been succinctly stated in Ramesh Kumar v. Chhattisgarh (2001)9 SCC 618 wherein this Court observed: “12. This provision was introduced by the Criminal Law (Second) Amendment At, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the filed of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband o his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression ‘may presume’ suggests. Secondly, the existence and availability of the above said three circumstances shall not like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to ‘all the other circumstances of the case’. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression – ‘the other circumstances of the case’ used in Section 113-A suggests the need to reach a cause-and- effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase ‘may presume’ used in Section 113-A is defined in Section 4 of the Evidence Act, which says – ‘Whenever it is - 10 - provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof o it’ ”. 14. The same principle has been reiterated in Sanju v. State of M.P. (2002)5 SCC 371. 15. In State of W.B. v. Orilal Jaiswal (1994)1 SCC 73 this Court observed: 15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot be lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498- A IPC and Section 113-A of the Indian Evidence Act. Although, the court’s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater (1950) 2 AII ER 458 has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter.” ( pp 263-265). 15. In Ramesh Kumar versus State of Chhattisgarh (2001) 9 SCC 618 the Court considering the provisions of Section aforestated holds: “20. Instigation is to goad, urge forward, prvoke, 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 - 11 - consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was 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. 21. In State of W.B. v. Orila Jaiswal (1994) 1 SCC 73 this Court has cautioned that the court should be extremely careful is assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. 22. Sections 498-A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary, Article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the court can convict an accused on the basis of such declaration - 12 - where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on p.11 of diary (Article A) clearly suggests that sometime earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Ext. )-10 corroborates the inference following from the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire ad taking his wife to the hospital also improbabilises the theory of his having abetted suicide.” (p.629-630) 16. Adverting to the provisions of Sections 304-B, IPC and 113-B of the Evidence Act we find that it has to be established by the prosecution beyond reasonable doubt that ingredients of the sections have been established. In T. Arunteperunjothi versus State through S.H.O. Pondicherry (2206) 9 SCC 467 the Court interpreting the provisions of this Section holds that: “29. The essential ingredients of the said offen, therefore, are (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances’ (ii) such death must have occurred within seven years of marriage; (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband;