IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 530/2002 Judgment reserved on 1.6.2009 Date of decision: 2 . 6. 2009 State of H.P. …..Appellant Versus Bansi Lal ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Vikas Rathore, Dy. Advocate General For respondents : Mr. Jagdish Thakur, Advocate. Surinder Singh, J. The acquittal of the respondent for the offences under Sections 498-A, 323 and 506-II of the Indian Penal Code has been challenged in this appeal by the State. In nutshell, prosecution story is that Smt. Lata Devi was married to the respondent in the year 1998. During the subsistence of this marriage, she gave birth to two children. In the year 1997, she was a teacher in a Private School and the respondent was working as ‘Beldar’ in the IPH Department. For the last about one and a half year from the date of the alleged incident, both were 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - residing in village Sandhole. It is alleged that the respondent was a liquor addict and used to beat up her to bring money from her father. Failing to do so, respondent had been threatening her with dire consequences. It is alleged that on 1.7.1997, in a drunken condition at about 12.30 p.m. she was given beatings by respondent causing injuries on her person. Her mother, who had been living with them for the last about 8 months was also present there, she saved her. Thereafter a clerk from the nearby Treasury Quarters came there and offered her water. She reported the matter to the police and was medically examined. Her Medico Legal Certificate Ext. PW-3/A discloses the simple injuries on her person in the nature of bruise and abrasion. The Investigating officer prepared the site plan Ext. PW-8/A and recorded the statements of the witnesses. On completing the investigation, the challan was presented in the court for the trial of the respondent under the aforesaid Sections. Respondent was charge-sheeted for the offences aforesaid. He pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove the charges and the - 3 - respondent was also examined under Section 313 of the Code of Criminal Procedure. No evidence in defense was led by the respondent. His case had been that he along with his wife were living together nicely but his in-laws wanted them to stay with them. His father-in-law is a retiree from the Police Department and falsely implicated him in this case. The learned trial court disbelieved the prosecution evidence. At the end of the trial, respondent was acquitted by the learned trial court which has been assailed in this appeal by the State. Shri Vikas Rathore, learned Deputy Advocate General has vehemently argued that the learned trial court did not appreciate the evidence on record properly and if the evidence led by the prosecution is appreciated in the right perspective, there are grounds to convert acquittal into conviction. In response, Shri Jagdish Thakur, learned counsel for the respondent has supported the judgment of acquittal passed by the learned trial court. As already stated above, respondent was charge-sheeted for the offences under Sections 498-A, 323 and 506-II of the Indian Penal Code. In so far as Section 506-II is - 4 - concerned, there is not even an iota of evidence to substantiate the said charge. Whereas in respect to offences punishable under Sections 498-A and 323 the evidence on record is required to be reappraised. For that statement of PW-6 Smt. Lata Devi is important. According to her, after the marriage, respondent started maltreating her for bringing less dowry in her marriage and the other reason for making her life a hell was stated to be that the respondent used to say that she was week, ugly and was unable to bear the children. She had delivered two issues by surgery. It is alleged that in the month of July, 1997, she was given beatings by her husband and became unconscious. Her mother was present in the house who offered her water she regained consciousness after about half an hour. She proved the report Ext. PW-4/A and also identified her signatures on MLC Ext. PW- 3/A. In her cross-examination, she stated that after the marriage, she along with her husband had been staying in the house of her parents for about three years and the respondent had been attending his duty at Sandhole from that place. Thereafter she stayed with her father at Hamirpur for one and a half years as she was ill and then on her - 5 - request, respondent hired the accommodation at village Sandhole and both of them started living there with their children where they stayed for about two years. In the meantime, her father got retirement from Police Department and settled down in his village “Kothuwan”. She further stated that when her first son was aged about 3 years, her mother also started living with them at Sandhole. At the time of second delivery, she remained with them for about 8/9 months. She further stated that after ten days of her marriage, respondent started beating her on the ground of bringing less dowry but no complaint was made either in the Panchayat or to the Police. Significantly, she was not cross-examined with respect to the incident of beating alleged to have been given to her in the month of July, 1997. The cruelty has been defined in explanation (a) and (b) of Section 498-A of the Indian Penal Code. Explanation (a) attracts, where a reasonable nexus stands established between cruelty which drive the wife to commit suicide. In other words, the cruelty established has to be of such a gravity as is likely to drive a woman to commit suicide. If suicide is established it has further to be established that it was - 6 - occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide. But Explanation (b) of the said Section does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet any unlawful demand. Hence mere harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that is cruelty and this is made punishable under the Section aforesaid. In the instant case, neither version given by PW-6 Lata Devi nor the statement of her parents brings the offence within the ambit of Section 498-A: Because PW-1 Kanhiya Lal has imputed a general allegation that the respondent had been torturing her for brining less dowry. He has admitted that the respondent was living at village Sandhole together with his family and children and at that time, his wife PW-9 was also residing there. He further stated that with respect to the demand of dowry, he never - 7 - reported the matter to the Panchyat nor any complaint was made to the police. More specifically, when he himself retired as MHC from the Police Department and knew its consequences. Smt. Dhobi Devi PW-9 has also made the similar statement with respect to bringing of the less dowry in the marriage. In view of the aforesaid evidence, there is no averment with respect to the demand of the dowry and mere harassment or mere demand of property etc. is not cruelty and the prosecution has failed to prove that the harassment was with a definite object i.e. to coerce her to meet any unlawful demand. Even with respect to the physical torture alleged, witnesses have failed to establish that the cruelty was of such a nature which could have led Smt. Lata Devi to drive her to commit suicide. Therefore, the evidence aforesaid is lacking the ingredients of Section 498-A of the Indian Penal Code and the acquittal by the learned trial court was rightly recorded for the offences punishable under Sections 498-A and 506-II of the Indian Penal Code. But however, the findings of learned trial court to acquit the respondent for the offence under Section 323 of the Indian Penal Code given in para 16 of the judgment are - 8 - perverse. In the opinion of the trial court, the incident of beating was found to have not happened in the way it is alleged by Smt. Lata Devi and her parents. Whereas the perusal of her statement and her mother (PW-9) reveals that she was given beatings by the respondent in the month of July, 1997 and immediately thereafter she lodged the report Ext. PW-4/A to the police and was medically examined on the same day by PW-3 Doctor Keshav Kaundal who proved the injuries in question caused within 12-20 hours. PW-6 Lata Devi specifically stated that she was given beatings by respondent and had sustained the said injuries but to my utter surprise, this fact was not assailed in her cross-examination. Legally, the fact deposed in the examination-in-chief if not assailed in cross- examination; is admitted to be correct. Further PW-9 Dhobi Devi affords corroboration to her version that when she entered the room, respondent came out and Lata Devi was given beatings by the respondent and she was unconscious. Then one person who was an employee in the Treasury came there and he offered the water and Lata Devi regained conscious. Shri Jagdish Thakur, learned counsel for the respondent argued that PW-2 has not - 9 - supported the case of the prosecution on this score it makes the version of Dhobi Devi doubtful. I have considered this argument but in my opinion, the statement of PW-2 is of no consequence in view of the statement of the injured and her mother who has corroborated it further statement of Lata Devi is corroborated by doctor who has clinically examined her. In view of the above un-assailed proved facts, the charge under Section 323 of the Indian Penal Code could not be rebutted by the respondent even by preponderance of probabilities. Therefore, findings of acquittal recorded by the learned trial court under Section 323 of the Indian Penal Code are wrong and perverse, as such acquittal of the respondent under Section 323 of the Indian Penal Code is set aside and respondent is held guilty for the offence punishable under Section 323 of the Indian Penal Code and is accordingly convicted. Since he being the first offender and there is no criminal history to his credit and the alleged offence was committed about a decade back thus, he is ordered to be admonished by giving the benefit of Section 3 of the Probation of Offenders Act. - 10 - In result, the appeal filed by the State is partly allowed to the above extent. The matter stands disposed of. Send down the records. June 2,2009 (Surinder Singh),J. (cm)