IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 240 of 2003. Judgment reserved on 14th May, 2010. Date of Decision: 17th June, 2010. _______________________________________________________ Kamla Devi and another ….Appellants. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. Vinay Thakur, Advocate. For the respondent : Mr. Anshul Bansal, Additional Advocate General and Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. Appellants were convicted and sentenced for the offences punishable under Sections 498-A and 306 of the Indian Penal Code by the learned trial Court in Sessions Case No.5-K/VII of 2001, decided on 21st May, 2003 whereby each of them ordered to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- each under Section 498-A of the Indian Penal Code and also to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/- each for the offence under Section 306 of the Indian Penal Code with default clauses. Both the sentences were ordered to run concurrently. Whereas co-accused Ravi Dass (maternal uncle) was acquitted. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. Thus the convict-appellants Kamla Devi mother-in-law and Rajinder Kumar husband of deceased both have challenged their conviction and sentence by way of present appeal. 3. In nutshell the prosecution case can be stated thus. On 18th February, 1999, Smt. Suman Lata (deceased) was married to Rajinder Kumar appellant son of Kamla Devi aforesaid. It is alleged that after about 15 days of her marriage appellants alongwith co-accused Ravi Dass started harassing her for bringing less dowry. Appellant Kamla Devi demanded the gold chain for herself and scooter for appellant Rajinder Kumar. At that time Rajinder Kumar was working in a private factory at Ludhiana alongwith his maternal uncle Ravi Dass, the acquitted accused. The deceased was taken by her husband to Ludhiana, where she was allegedly maltreated and tortured. Thus she wrote two letters Ext.PD and PE to her father PW-3 Shadi Lal mentioning all the details of the cause for maltreatment therein. Shadi Lal visited Ludhiana and brought her back to his house at Kangra where she lived for long time. It is alleged that appellants alongwith Ravi Dass aforesaid visited the parental house of the deceased and assured to treat Suman Lata nicely. On their assurance she was allowed to accompany them in the presence of PW-6 Shri S.D. Sharma, Advocate. Shadi Lal, thereafter sent his son PW-1 Kuldip Kumar and his friend PW-6 S.D. Sharma, Advocate to the house of the appellants to enquire about welfare of Suman Lata. They found no improvement in the behaviour of the appellants. Thereafter Shadi Lal provided a gold chain to appellant Kamla Devi but promised to provide a scooter to Rajinder Kumar on getting amount on his retirement from service. 4. On 11th December, 1999, PW-1 Kuldeep Kumar received a telephonic message that his sister Suman Lata was serious. He alongwith his parents, PW-2 Santosh Kumari and PW-3 Shadi Lal went to - 3 - village Rajiana, i.e., the house of the appellants. They came to know that the appellants had been quarrelling with her throughout the night, ultimately she took aluminum phosphide an insecticide to end her life. She became unconscious. The deceased was taken to Kangra hospital, where she was attended upon by PW-10 Kailash Nath. He informed the police telephonically. 5. PW-13 ASI Puran Chand visited hospital and moved an application Ext.PW-10-A seeking permission of the doctor to record her statement, but doctor opined that she was unfit to make any statement. Thereafter said police officer recorded the statement Ext.PA of Kuldip Kumar, her brother, under Section 154 of the Code of Criminal Procedure and sent Ruka for the registration of the case on the basis of which FIR Ext. PW-16/A was recorded. 6. On the same day Smt. Suman Lata died at around 2.45 p.m. in the hospital. PW-13 ASI Puran Chand applied for the post-mortem. It was conducted by PW-15 Dr. Aditya Kumar Sharma. He preserved viscera of the deceased. It was sent for forensic examination. The report Ext.PW-14/A confirmed the fact of taking aluminium phosphide poison by the deceased. Post mortem report Ext.PW-15/A was obtained by the police. 7. Letters Ext.PD and PE were taken into possession by the police vide memo Ext.PW-3/A and letter Ext.PF from the aunt of deceased Smt. Prem Lata vide memo Ext.PW-5/A. Police recorded the statements of the witnesses and on completing the Challan it was presented in the Court for the trial of all the accused persons. 8. After full-fledged trial appellants were convicted and sentenced as aforesaid, whereas Ravi Dass was acquitted. 9. Challenge in this appeal has been made by the appellants on the ground that the learned trial Court did not appreciate the - 4 - evidence of the prosecution in the right perspective and further that the deceased was of hyper-sensitive nature, not keeping good health. She was not happy with the weak financial condition of the family of the appellants. There was no harassment and the appellants never treated her with cruelty as alleged. 10. I have heard learned Counsel for the parties and have carefully gone through the evidence on record. 11. Admittedly, Smt. Suman Lata was married to appellant Rajinder Kumar on 18th February, 1999 and she died on 11th December, 1999 by consuming aluminium phosphide within a year of her marriage. The appellants alleged their false implication in the case. 12. Prosecution relies upon the oral testimony of the parents, brother of the deceased coupled with the statements of PW-6, S.D. Sharma, Advocate, PW-7 Gurmit Kaur, PW-8 Kewal Kumar and also on the letters (Ext.PD and PE) alleged to have been written by the deceased to her parents as well as Ext.PF to her aunt. 13. Before adverting to the critical examination of the evidence on record, it would be useful to reproduce Section 498-A of the Indian Penal Code. It 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.” - 5 - 14. “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. 15. 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. 16. 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. 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. 17. 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 - 6 - 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 also be termed as “cruelty”. 18. 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. 19. Section 113A 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).” 20. 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 - 7 - marriage, it is only in that 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. 21. In view of above settled principles of law I proceed to examine the statements of the witnesses adduced on record to find out whether impugned judgment of conviction and sentence passed by the learned trial Court against the appellants is legally and factually sustainable. 22. Father of the deceased was in service. He was to retire in the month of October, 2000. Her brother PW-1 Kuldip Kumar was an Advocate and PW-6 Shri S.D. Sharma is the friend of Kuldip Kumar. He is practicing as an Advocate and also remained as Municipal Counselor of Ward No.4 Kangra. 23. Although, PW-3 Shadi Lal, father of the deceased, stated that after marriage the deceased was taken to Ludhiana where she resided with her husband only for 15 days. He stated that from Ludhiana, she had sent two letters Ext.PD and PE to him. He visited them at Ludhiana and deceased told that her husband was demanding a scooter for going to his factory and he should keep his son-in-law in good honour by providing him a scooter. On this, he assured him to provide a scooter at the time of his retirement in October, 2000. Thereafter he brought her daughter to his house in Kangra. The appellants alongwith co-accused Ravi Dass accompanied by 2-3 persons visited him and assured to behave with her nicely. Her brother Kitu also advised the appellants to behave nicely. Then she was sent with them. After sometime, Kitu aforesaid her brother was sent to her matrimonial house to know about her welfare. He revealed that there was no improvement in their behaviour. He stated in that in the month of June, 1999 he went to the house of appellants and provided a gold - 8 - chain to appellant Kamla Devi and also assured to provide a scooter to her son on his retirement, but even then the behaviour of the appellants did not improve. On 11th December 1999, his son PW-1 Kuldip Kumar was informed about her ailment. He alongwith other family members went to village Rajiana. Many ladies had assembled there and the deceased was lying on the cot. On enquiry, she stated that her mother-in-law Kamla Devi during night and also in the morning quarreled with her so she took poison. Thereafter she was removed to hospital at Kangra. None of the family members accompanied her to the hospital. Police was informed and reached hospital. Condition of his daughter was critical. She became unconscious. Statement of his son PW-1 Kuldip Kumar was recorded and after sometime Suman expired. On 14th December, 1999 he is stated to have handed over two letters Ext.PD and PE to the police which were taken into possession vide memo Ext.PW-3/A. PW-2 Santosh Kumar, mother of the deceased also made similar statement. 24. PW-3 Shadi Lal in his cross-examination stated that the letters aforesaid were in the envelopes which were not handed over to the police. He denied that these letters were manufactured. He did not produce any admitted writing of the deceased. According to him, when he reached village Rajiana alongwith his wife and other persons there were only 3-4 ladies inside the room. When he asked his daughter those ladies were present there and pertinently neither he supplied their names to the police nor any of them were cited as witnesses. He also stated that when the doctor attended the deceased in the hospital her condition was critical and she was vomiting and did not tell anything. He also stated that he had seen injuries marks on the person of deceased, but he did not tell about it to the police. He further stated that on 14th April, 1999 he went to - 9 - Ludhiana and stayed for a night and returned next night. He denied about hatching of the story regarding the demand of scooter and gold chain by him. He did not report to the police nor made any complaint to his Biradri. He denied that in consultation with S.D. Sharma aforesaid a false case was made. He also denied that Suman was sensitive in nature and had been complaining that she was married in a family of low status and felt distressed. 25. PW-2 Santosh Kumari in her cross-examination stated that when she visited alongwith her husband in the matrimonial village of the deceased many persons were there inside the room. She stated that she asked from Suman as to what happened and she revealed that appellant Kamla picked-up the quarrel with her, she could not tolerate and consumed poison due to frustration. Pertinently, she did not say about the demand of scooter and chain as alleged. She further stated that this was revealed by her in the presence of the ladies and gents who had assembled there, but no one was cited as a witness. She also stated that she did not tell these facts to the police, but she revealed it for the first time in the Court at the time of her examination. Except letters Ext.PD and PE, according to her, no other letter or writing was in their possession. 26. PW-1 Kuldip Kumar, brother of the deceased also made the same version. He stated that in the month of June, 1999 accompanied by PW-6 he visited the matrimonial house of the deceased. The deceased complained about the maltreatment and he told the appellants to treat her properly and that they would provide the scooter to them at the time of retirement of his father. He also stated that in the month of June, 1999 his father provided a gold chain to appellant Kamla Devi. On 11th December, 1999 he received a message around 10.30 a.m. that the deceased was serious. He - 10 - alongwith his parents went to her matrimonial house in a vehicle. She was lying on bed. She had vomited. He enquired as to what had happened. She told that throughout the night and in the morning her mother-in-law had been quarrelling with her, but he did not say anything about her husband. In cross-examination he stated that he did not state to the police that when he asked his sister 4-5 ladies were also sitting in that room. He denied that when he reached she was not in a position to speak at all. He further stated that when they reached the house of Suman only appellant Kamla Devi was present. He further stated that he came to know that the husband of the deceased was present in the village but after her death went underground and the police was in search of him. He further stated that on 14th December, 1999 letters aforesaid were identified by him before the police to be written in the hands of the deceased. But significantly, about these letters he did not make any reference in his statement Ext.PA. He further stated that in his statement Ext.PA there was no reference about torture on account of dowry. He admitted that a case was registered against him for fracturing leg of appellant Rajinder Kumar on 11th December, 2000 that means that Rajinder Kumar had not gone underground as stated by him. 27. PW-6 S.D. Sharma is a friend of PW-1 Kuldip Kumar and both are Advocates. He stated that he was called in the month of May, 1999 by Shadi Lal aforesaid to his house and then informed him that the appellants were harassing his daughter. He enquired from the deceased, she confirmed this fact and further stated that the appellants are greedy persons and were demanding something and she had been tortured on petty matters. He met the appellants and told them not to indulge in such acts. He further stated that the appellants were insisting upon the deceased to provide a scooter to - 11 - her husband, but they were informed that Shadi Lal, father of the deceased had three other unmarried girls and his son had just entered in profession and he would make available scooter at the time of his retirement. In the month of June, 1999 in the company of Kuldip Kumar he visited the house of the appellants. Suman was weeping and he took her to a side and enquired from her then she stated that she was being harassed for not providing scooter. He again tried to convince the appellants and assured to provide scooter within 2-3 months and thereafter he came back. 28. PW-16 Shri Ram Chand, the then Additional S.H.O. stated about the taking into possession letters Exts.PD and PE alleged to have been written by the deceased to her father. These letters were produced by Shadi Lal. According to him, he did not obtain any admitted writing because Shadi Lal, father of the deceased knew the writing of the deceased and this letter was also identified by her brother to be in the hands of her sister. He did not enquire about the receipt of these letters either by hand or by post. 29. There is another inland land Ext.PF produced to the police by PW-5 Prem Lata, aunt of the deceased, which was taken into possession vide memo Ext.PW-5/A. In this letter the deceased is alleged to have narrated about the demand of the scooter by her husband and gold chain to her mother-in-law Kamla Devi, whereas according to PW-1 Kuldip Kumar, as stated above, chain was already provided to her in the month of June, 1999. She also made reference that twice or thrice she was beaten by her husband at Ludhiana and when her father had come to Ludhiana he promised to provide scooter at the time of retirement and her husband agreed, but she alleged that still they were harassing her time and again and had threatened to kill her. She requested her aunt to talk to mother of Anil as intervener to the - 12 - appellants and not to disclose about this letter to her mother-in-law. This inland letter is dated 10th August, 1999. It bears the postal stamp dated 13th August, 1999 of Kangra Post Office from where it was allegedly sent, but the other postal stamp from where it was allegedly delivered is not decipherable. PW-5 Smt. Prem Lata stated that Suman Lata might have dropped the aforesaid letter from her village Rajiana. She further stated that she had not given the aforesaid letter to the police nor she informed said Shri Anil Kumar. However, she denied that this letter was false. The said letter was taken into possession by the police on 09.1.2000 vide memo Exhibit PW5/A. If the letter was in the possession of PW5 aforesaid and she knew that the Suman had died, it is not understood why it was produced to the police after such a delay. The postal stamps of the post office from where it is alleged to have been delivered are smudged. Deceased was matriculate. Admitted writings were not produced that could have been sent for its comparison. Therefore, the authenticity of this letter is under cloud. Although PW1 Kuldip Singh and his father PW3 stated that they the letters were written by the deceased, their evidence is relevant but what value should be attached to it in the light of other evidence is to be seen. 30. Further, PW-7 Gurmeet Kaur daughter-in-law of appellant Kamla, who was married to her elder son Ashok Kumar. She was staying away from her matrimonial home in the house of her parents because of the matrimonial dispute with he husband and appellant Kamla. She stated that in October, 1999 she met Suman Lata. She told her that she was being tortured by the appellants and cautioned her that her parents should know about her plight. Her statement also cannot be taken as gospel truth because she has a motive to depose against the appellants. Similarly the statement of PW-8 Kewal Kumar is - 13 - quite unnatural and not confidence inspiring. He stated that Suman informed him in the month of October 1999 about the maltreatment being given to her by the appellants for not providing Chain and scooter whereas it has come in the evidence that gold chain was already provided to Kamla in the month of June same year but when confronted with his statement DB, recorded under section 161 Cr.P.C. these facts did not find mention. Further the above conversation was alleged to be between him and the deceased. He did not disclose it to anyone. He stated that police had come to his shop to record his statement and he did not know how the police came there. 31. On the scrutiny of the evidence, I find that the letters Exts. PD and PE were handed over to the police on 14.12.1999 by the father of the deceased which were taken into possession vide memo Ex.PW3/A, which are purported to be