Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. Cr. Appeal No. : 29 of 2005 Date of Decision : 23.12. 2011 Jiwan Lal, son of Sh. Kahan Singh (Caste Rajput), R/o Bohin, PO Sehali Ilaqa Tungal, Tehsil Sadar, Distt. Mandi (H.P.) …..Appellant. Versus State of Himachal Pradesh …. Respondent. Criminal Appeal under Section 374 of the Code of Criminal Procedure against the judgment of the Ld. Sessions Judge, Mandi, dated 10.1.2005/11.1.2005 passed in Sessions Trial No.4 of 2002. Coram: The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes For the appellant : Mr. M.S. Guleria, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. Surinder Singh, J. (Oral): A. Undisputed Facts:- The appellant was convicted and sentenced by learned trial Court for offence punishable under Sections 498-A and 306 of the Indian Penal Code, whereby he was sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of `.5,000/- under Section 306 of - 2 - the Indian Penal Code and also rigorous imprisonment for six months and to pay fine of `.500/- under Section 498-A of the Indian Penal Code with the default clauses. Both the sentences are ordered to run concurrently, which have been challenged in the present appeal. (ii) Admittedly, Smt. Tameshwari Devi, daughter of PW-1 Sh. Bahadur Singh and PW-5 Smt. Himi Devi, was married to the appellant, (hereinafter referred to as “the accused”), in the year 2000. On 21.9.2001 i.e. within 10 months of her marriage, she committed suicide by hanging with the roof of her cowshed in the matrimonial village. B. Prosecution Case:- 2. It is alleged that the accused had been picking up quarrels with the deceased on trivial matters and used to give beatings to her and further that he also proclaimed that the dowry articles were not of good standard. (ii) On the day of alleged incident, the accused and the deceased both had gone to their fields to do agricultural work but in the evening the deceased had left the agricultural work earlier and returned home. The accused returned in the evening from the fields and on the way he met PW-3 Bimla Devi, who asked about the deceased. The accused replied that she had earlier left to home. - 3 - (iii) The cowshed of PW-3 Smt. Bimla Devi was located besides the cowshed of the deceased at a walkable distance. While going to her cowshed, she (PW-3) found deceased Tameshwari Devi hanging with the roof of the cowshed. She cried for help and called the accused. She brought the sickle from her house and cut the rope with which the deceased was hanging and brought her down to the floor. But by then she was dead. (iv) The parents of the deceased were informed and when they reached in the matrimonial village of the deceased they found the dead body lying in the courtyard of the deceased covered with coffin. The matter was reported to the police by PW-1 Bahadur Singh, father of the deceased alleging cruelty by the accused to the deceased and also expressed his apprehension that their daughter might have been killed by the accused. These allegations culminated to the FIR Ex.PA. (v) The police reached the spot, prepared the inquest papers and sent the dead body for autopsy. (vi) PW-6 Dr. J.N. Chauhan conducted the postmortem of the dead body. On physical examination, he noticed multiple haemorrhagic spots brown in colour with clotted blood present on the left side of the face near rim - 4 - and angle of mandible in front of left ear lobule and also superficial pressure abrasion on the neck and on the thyroid cartilage, on both side of neck, skin colour with some linear lines of clotted dry blood present on the both side of neck, supra sternal notch, back of the neck on left side dark brown in colour. The ligature mark was very superficial in nature present on upper and front part of the neck skin colour. There were also three small irregular dark brown triangular abrasions, one on the suprsternal notch, two on right side of middle of the neck. The underline subcutaneous tissue and fibers of the platysma were congested, brown in colour. Thyroid cartilage and hyoid bone appeared to be normal. The veins of the neck i.e. external jugular, internal jugular on both side of neck were full of dark coloured blood and were distended. There was also some flexibility of the neck moving to all sides showing dislocation and contusion around cervical second and third vertebrae of neck with clotted blood around these vertebrae. The viscera was also sent for chemical examination but there was no evidence of any poison. On the above findings, final opinion was given by the Doctor that she died of asphyxia as a result of hanging. Post-mortem report is Ex.PD. - 5 - (vii) During the investigation, police took into possession the pieces of rope Ex.P-1 and Ex.P-2 vide memo Ex.PB and also took photographs of the dead body. The site plan Ex.PJ of the place of alleged incident was prepared by the Investigating Officer. The accused was arrested, but later granted bail. The police also recorded the statements of the witnesses and after completing the investigation, Challan was presented against the accused for offences aforesaid. 3. The accused was accordingly charge-sheeted, to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined the parents of the deceased (PW-1 and PW-5) and PW2 Smt. Tara Devi and also PW-3 Smt. Bimla Devi from the matrimonial village of the deceased, PW-4 Sh. Moti Ram, cousin of the deceased, PW-7 Smt. Dharma Devi, her married sister and PW-9 Sh. Rajinder Singh, her brother, besides examining the Doctor and other officials witnesses including the Investigation Officer. 4. The accused was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor but according to him all the witnesses deposing against him were close relatives of the complainant party and he was falsely implicated in the case. - 6 - 5. When called upon to enter into his defence, he did not lead any evidence in his defence. Learned trial Court relied upon the statements of the parents, brother and sister of the deceased and rejected the defence of the accused. Accordingly, he was convicted and sentenced, as aforesaid. C. Plea before this Court:- 6. Shri M.S. Guleria, learned counsel for the accused vehemently argued that the statements of the parents of the deceased are contradictory to each other. PWs, Tara Devi and Bimla Devi did not corroborate the case of the prosecution, rather they were declared hostile. Statement of PW-4 Moti Ram is highly vague and also sharply contradicts the statements of the parents of the deceased and no reliance can be placed on their testimonies. He also pointed out that PW-7 Bimla Devi introduced altogether a new story and the statement of Rajinder, brother of the deceased, is prejudicial and vague. It is also ventilated that the prosecution has failed to prove “cruelty” in terms of Section 498-A of the Indian Penal Code and there is also absolutely no reason for abetting suicide by the accused to make him liable under Section 306 of the Indian Penal Code. In nutshell, learned counsel submitted that the learned trial Court did not appreciate the evidence in right - 7 - perspective which caused miscarriage of justice to the accused. 7. Contra Shri A.K. Bansal supported the impugned judgment of conviction and sentence. He forcefully argued that all the witnesses i.e. parents, brother and sister of the deceased, though stated different story with respect to the cruelty, but the different version disclosed by the deceased were of different times during the matrimonial life which constitutes the offence of “cruelty” within the meaning of 498-A of the Indian Penal Code. It is also argued that PW-3 Bimla Devi testified that at about 10:00 AM on the date of alleged incident, the deceased alongwith accused had gone together for agricultural operations in the fields, but in the evening she noticed that the accused was alone and when asked about his wife he told that she had already left the field prior to him, is indicative of the fact that something had happened inter se the accused and the deceased when both of them were together in the field and these circumstances are enough to prove the case of abetment so as to bring home the guilt of the accused under Section 306 of the Indian Penal Code by pressing into the service the provisions of Section 113-A of the Evidence Act, noticing the fact that the suicide has been committed by the deceased within - 8 - seven years of her marriage, more precisely, within 9/10 months. 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously re-appreciated the evidence on record. 9. As already stated above, the deceased had committed suicide by hanging within one year of her marriage in her matrimonial house. 10. The offences charged against the accused, both are independent to each other and it is a settled law that acquittal of one does not lead to the acquittal of the other. 11. In Girdhar Shankar Tawade Vs. State of Maharashtra, AIR 2002, Supreme Court 2078, the Apex Court while dealing with the scope Sections 306 and 498-A of the Indian Penal Code held that in order to justify the conviction under the later provision there must be available on record some material and cogent evidence. In the instant case, deceased is alleged to have committed suicide due to ill treatment by the husband. On record, there are different versions given by the parents and also by the brother and sister. Now, the question is that what value should be attached to it. According to PW-1 Bahadur Singh, the father of the deceased, accused kept his daughter nicely - 9 - for about three/four months. Thereafter, he started beating her which fact came to his notice when she visited her parental house and revealed about it. After about 10 days thereafter, PW-2 Tara Devi of their village married in the village of the accused had also visited his house alongwith deceased and both of them told about giving beatings to the deceased by the accused. He further stated that both of them had told him that the accused again gave beatings to her and Tara Devi rescued her and kept in her house and in the morning she was brought to his house. The reason for giving beating is not stated by him but he revealed that accused used to give beatings on trivial matters. Thereafter, he alongwith his son PW-9 Rajinder Singh, PW-2 Tara Devi, PW-4 Moti Ram etc. went to the house of the accused alongwith deceased and asked the reasons from the accused for giving beatings to his daughter. Accused admitted his mistake and agreed not to repeat it in future. But after about one month, he was informed telephonically that she was killed. Thereafter, he visited the house of the accused and lodged the FIR. 12. Significantly in cross-examination he stated that his deceased daughter, in the presence of Tara Devi had made complaint only once in a period of 8 months of her - 10 - marriage about the beatings given by the accused and before that she had stated that the accused was asking her to take divorce. 13. Pertinently, Tara Devi did not support this version. Admittedly, this fact was also not stated to the police by him. According to him, he disclosed this fact for the first time only in the Court. He also stated that during the course of their marriage during the period of eight months he had visited the house of the accused for about four times, whereas accused and his daughter had visited the parental house for about eight times. With respect to the aforesaid incident responded once, he did not inform either the police or the respectable members of the village. 14. PW-5 Himi Devi, mother of the deceased made a different version. She stated that the cause of giving beatings by the accused was, not providing better quality of dowry articles and this fact was informed to them immediately after one month of their marriage whereas her husband (PW-1) stated that for three months they lived nicely. In his cross-examination, she also stated that the deceased had only once made the allegations of beatings having been given by the accused. Though, the father of the deceased stated that he had seen some injuries on the - 11 - person of the deceased, which fact has been denied by her mother, Himi Devi. Thus, both of these statements are contradictory in material particulars to each other. 15. PW-7 Dharma Devi, sister of the deceased married in the village of the accused came with a new story that after about 5/6 months of her marriage, the deceased visited the house of her parents during “Rakshabandhan” and she noticed that she was not wearing nose ring and when she inquired about it she started weeping and stated that it was lost somewhere on account of beatings given by her husband who used to quarrel with her on small matters and for not bringing sufficient dowry. She also stated that during Sair festival, she also complained that her husband did not allow her to visit the parental house. Further, she was also informed telephonically by her about the cruelty by giving beatings to her by her husband. When she had visited the parental house during “Rakshabandhan” she was not wearing the nose pin and complained about the ill treatment given by her husband, but neither PW-1 Bahadur Singh nor PW-5 Himi Devi stated about this fact. Even PW-7 Dharma Devi did not complain about it to the parents of the deceased. Further the ill-treatment alleged to have been complained of to her telephonically, was also not told to her - 12 - parents by Dharma Devi. This story is different that of the statements of the other witnesses. It might be for the reason that her sister had committed suicide and she got prejudiced against the accused and not to spare him. No reason has been explained by her as to why she kept all these complaints made by her sister confined to unto herself. 16. Further, PW-9 Rajinder Singh stated that during the year 2001-02, the deceased visited his house during “Rakshabandhan” and complained about beatings given by the accused for brining insufficient dowry but he did not say like other witnesses that the accused had raised dispute with respect to the quality of the dowry articles provided to him. More particularly, the father of the deceased did not say anything about bringing less dowry or any allegation made by the accused with respect to its quality. 17. In cross-examination, Rajinder Singh stated that when she made the complaint, all the family members were present in the house. He also stated that Tara Devi PW-2 had also complained about ill-treatment given by the accused to the deceased. However, no quarrel took place between them in his presence. 18. The above story has been totally shattered by PW-2 Tara Devi. She did not support the version given by - 13 - the parents, sister and brother of the deceased, rather she stated that the relationship between the accused and the deceased was quite cordial and the accused never gave beatings to her nor the deceased had come to her house as alleged by her parents. She also did not support the version that the deceased was rescued by her when she was given beatings by the accused and for keeping her in her house and next morning taking her to her parental house. PW-3 Bimla Devi aforesaid who had noticed the dead body of the deceased also did not make any reference with respect to the alleged torture to the deceased. Both these witnesses i.e. PW-2 and PW-3 were immediate neighbours of the deceased. 19. PW-4 Moti Ram, cousin of the deceased introduced one more story to the prosecution case when examined in the Court that the accused had been leveling allegations of infidelity. He also stated that in his presence the deceased told that the accused used to beat her on small matters and on 7/8th of the month Tara Devi had taken her to her parental house when she was given beatings by her husband. 20. Pertinently in his cross-examination, he stated that he did not know Tara Devi and even he could not - 14 - recognize her since he had seen her only once. This witness is resident of Kotli, a distant place from the village of the accused and also the complainant. It appears that he has been examined only to lend strength to the case of the prosecution having no knowledge regarding the relationship of the deceased and the accused. 21. Section 498-A of the Indian Penal Code reads as under:- “498-A. Husband or relative of husband of a woman subjecting her to cruelty._ Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation._ For the purposes of this section “cruelty” means- (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 or 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 such demand.” - 15 - 22. “Cruelty” has not been defined in the Indian Penal Code but the above explanations added to the Section spells out the ingredients of the offence of “cruelty” which are cruelty and harassment. The elements of cruelty so far as clause (a) is concerned can be classified as follows: (i) any ‘willful’ misconduct which is of such a nature as is likely to drive the woman to commit suicide; or (ii) any ‘willful’ conduct which is likely to cause grave injury to the woman; or (iii) any ‘willful’ act which is likely to cause danger to life, limb or health, whether physical or mental of the woman. 23. In order to constitute “cruelty” under clause (b), there has to be a harassment of the woman with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or a case is to be made out to the effect that there is a failure by her or any person related to her to meet such demand. 24. In Smt. Raj Rani v. State (Delhi Administration); AIR 2000 SC 3559 the apex Court held that while considering the case of cruelty in the context to the provisions of Section 498-A IPC, the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt. - 16 - 25. Further, in another case Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078, the Supreme Court held that “cruelty” has to be understood having a specific statutory meaning provided in Section 498- A I.P.C. and there should be a case of continuous state of affairs of torture by one to another. 26. Taking note of the above judgments amongst others Supreme Court in Manju Ram Kalita v. State of Assam 2009 (2) S.L.J. (S.C.) 1036 observed that “cruelty” for the purpose of Section 498-A Indian Penal Code is to be established in the context of S. 498-A IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as ‘cruelty’ to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as “cruelty”. - 17 - 27. Whereas, Section 306 of the Indian Penal Code requires the proof that (i) commission of suicide and (ii) its abetment by such commission of suicide. 28. Section 113 A of the Indian Evidence Act raises a presumption as to abatement of suicide by a married woman. It reads as under: “When the question is whether the commission of suicide by a women 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 circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation - For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).” 29. Now after taking into consideration the aforesaid provisions more specifically explanation (i) to Section 498-A of the Indian Penal Code the cruelty has to be understood in the context used therein. Once the prosecution is able to prove the “cruelty” within the above parameters that woman had died within seven years of her marriage, it is only in that - 18 - circumstance Section 113A of the Evidence Act can be pressed into service to hold the accused guilty for the offence under Section 306 of the Indian Penal Code. In M. Mohan Vs. State, 2011 CRI L.J. 1900, the Apex Court held that the abatement involves a mental process of instigating a person. 30. Further in Dev Raj and others Vs. State of Himachal Pradesh 2011 (1) Criminal Court Cases 90, (H.P.) and also as held by Division Bench of this Court in Cr. Appeal No.97 of 2000 alongwith Cr. Appeal No.325 of 2000, above principle in the light of judgment of Supreme Court was discussed and it also held that there should a case of continuous affairs of torture by one and another and not solitary incident as stated by the parents, as aforesaid 31. Against the above settled principle of law, if the evidence of the prosecution is examined, in that event in my opinion, no offence against the accused person stands proved in accordance with law. Therefore, the impugned judgment of conviction and sentence is set-aside. Consequently, the accused is acquitted of the charges by giving him the benefit of doubt. 32. The respondent/accused is discharged of his bail bonds entered upon by him at any time during the - 19 - proceedings of this case. Fine, if any deposited, shall be refunded to him. 33. The appeal stands disposed of. Send down the records. 23rd December, 2011. (Surinder Singh),J. k.sharma