IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.255 of 2002. Date of decision: 18.08.2011 State of H.P. … …Appellant Versus Godawar Singh … …Respondent Coram The Hon’ble Mr.Justice R.B. Misra,J. The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General. For the Respondent: Mr.M.S. Guleria, Advocate. Dev Darshan Sud,J. The State has appealed against the judgment of the learned Additional Sessions Judge-(I), Kangra at Dharamshala, acquitting the accused for offences under Sections 498-A and 306 IPC. 2. The prosecution case is that the respondent was married to Smt.Sharda for about 11 years. On 18.7.1999, Parkash Chand PW-13, SHO, Police Station, Kangra was informed by Constable Vijay Kumar about the death of Sharda in Zonal Hospital, Dharamshala. She was stated to have consumed poison. He accordingly deputed PW-15 ASI Gopal Sharma to investigate the case. This 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 witness proceeded to the hospital where, PW-1 father of the deceased, in his statement recorded under Section 154 Cr.P.C. Ex.PW-1/A, stated that he had three children, Sharda was the youngest of three offsprings, the other two being his sons. She was married to the respondent-accused in the year 1989 in accordance with the Hindu rites and ceremonies. He stated that the accused started harassing and beating up his daughter as she had no children for about 4/5 years after the marriage. As and when she came to visit her paternal home, she used to complain to him that her husband used to taunt her that she could not bear children and maltreated on that account. He had also called a Panchayat at his house, which was attended by his son- in-law, his mother and Pradhan Jagdish. The deceased lateron had two children, one son and one daughter. Even after that there were constant complaints against him that whenever he returned home from his posting in the ITBP he harassed her and used to beat her up under the influence of liquor by saying that she is having loose character/lax morals and even questioned the legitimacy of the children. About 1½ years ago, she went to her paternal home and told her father that a sum of Rs.10,000/- was demanded by the accused for constructing his house and if this money was not provided, the deceased would face dire consequences. He then states that he did not disclose this fact to anybody but made the payment. Since 1999 his grand 3 children are studying in a Central School. The complaint then follows this by stating that the deceased was not treated well by the accused as he did not provide any maintenance to her and that he had been defraying the expenditure of his daughter meeting her financial needs. On 18.7.1999 he was informed by one Ramna Kumari that she had gone to her daughter’s house where she found that his daughter had been roughed up and was being forced to go to her paternal home to bring Rs.10,000/- and if this money is not paid, not to return at all. On that very day, his son Gian Chand informed him that the deceased had been taken to Dharamshala Hospital in a serious condition. Immediately he sent him to inquire about her welfare, but he informed him that she had died. This is the gist of the prosecution case. 3. We advert to the statement Ex.PW-1/A, which was recorded on 19.7.1999, stating that it is because of the consistent maltreatment meted out to her by the respondent that she was forced to commit suicide. 4. PW-8 Dr.Dinesh Mehta has proved on record Ex.PW-8/A, which is the postmortem report, and has opined that she died due to asphyxia and final opinion would be given after the receipt of the report of the Chemical Examiner. Ex.PA is the Chemical Examiners report which shows that aluminum phosphate was found in the intestines and abdominal organs of the deceased. 4 5. The prosecution also relies upon the inquest report Ex.PW-15/A which is witnessed by Dharampal, Nand Lal, Smt.Chagutri Devi etc. 6. The prosecution case has been disbelieved by the learned trial Court primarily on the ground that PW-1 Wazir Chand, father of the deceased, has stated that she was writing letters to him complaining about the maltreatment, but not even a single letter has been produced and proved on the point of the case. The Court also noticed that even the evidence on the point of cruelty is vague. Adverting to the evidence of PW-1 Wazir Chand, his statement was general in nature where he states that the deceased was harassed by the accused asking her to bring dowry as her maternal uncles (Mamas) were rich people. He states nothing about the demand of Rs.10,000/- etc. having been made. In his cross-examination he admits that his grand children are studying in the Army School at Bhanala, the accused had taken a house on rent at that place to ensure the proper education of the children, he could not say how old his grand sons were and not met them for the last 5/6 years, his daughter had studied up to 8th standard and she used to write letters regarding her welfare. 7. PW-2 Durgi Devi, simply states that deceased was her daughter and was being maltreated and taunted for not bearing children. She says that the deceased was subjected to cruelty because of insufficient dowry 5 and the fact that the deceased was not “properly/ adequately educated”. 8. PW-3 Ramna Devi also states that the deceased was beaten up etc. for not bearing children. Statement of PW-4 Gian Chand is also on similar lines. We need not go into the detail of evidence because it is terse statement in 3/4 lines that the deceased was subjected to maltreatment without giving specific instances. The learned trial Court holds that no offence under Section 498-A and 306 IPC has been made out. 9. In Subhash Chand vs. State of H.P. and Others, Latest HLJ 2009(2) (HP) 1076, this Court, considering the evidence on record, held that the factum regarding demand of dowry etc. having been made first time in Court, such evidence cannot be relied upon. To similar effect is the decision in Bholi @ Veena and Another vs. State of H.P., 2009(3) Shim.L.C.503, holding that where the allegation with respect to demand of dowry is contradictory and dilatory, wanting corroboration, it does not inspire confidence and cannot be used for convicting the accused. 10. We also reiterate the principle laid down by Supreme Court in Satish Kumar Batra and Others vs. State of Haryana, (2009)12 SCC 491, that when there are material infirmities in the evidence of the prosecution case, the only consequences would be acquittal. To uphold the conviction under Section 498-A IPC, the 6 ingredients of the offence have to be established. In Bhaskar Lal Sharma and another vs. Monica (2009)10 SCC 604, 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 vs. State, (2008) 11 SCC 55, 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 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 7 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 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 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 8 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 make 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 vs. Union of India & Ors. (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 9 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 (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 10 framework. As noted above the object is to strike at the roots of dowry menace. But 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 generalised 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 11 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." (pp.617-619) 11. We do not find that ingredients under Section 498-A IPC having been established on the record. We also do not find any ingredients under Section 306 IPC being established that is to say instigation to the deceased to end her life. We note that the evidence of PW-1 in Court is general in nature and so is the other evidence on the record. There has been no complaint to any aspect nor a written letter has been produced on record. 12. In these circumstances, we find that the prosecution case does not inspire any confidence and learned Court below has rightly acquitted the accused. We also note that in his cross-examination PW-15 ASI Gopal Sharma says that he did not make any inquiry from the two maternal uncles of the deceased at the time when he prepared investigation report as they did not state anything regarding such maltreatment. Therefore, this appeal is dismissed. (R.B. Misra) Judge August 18, 2011 (Dev Darshan Sud), (aks) Judge