IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 420 of 1996 Reserved on: March 29, 2010 Date of Decision : July 13, 2010 State of H.P. …Appellant v. Prithi Chand …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the respondent: Mr. Ashwani Kumar Sharma, Advocate Sanjay Karol, J. For an offence which is alleged to have been committed on 17.7.1993 accused was put to trial. In terms of judgment dated 5.9.1995 passed by learned Addl. Sessions Judge-I, Kangra at Dharamshala, in Sessions Case No.1-G/95, titled as State of H.P. vs. Prithi Chand, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that Smt. Suita Devi d/o Sh. Kali Ram (PW-1) was married to accused Prithi Chand. The accused was having relations with “some other” lady which 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 was objected to by Smt. Sunita Devi. For this reason the accused used to beat her up. He would strip her naked and then beat her. Once he threw the meal prepared by her and threatened to hit her head with the cot. He also made a dowry demand of a cooker. She complained about his misbehaviour to her father who in turn reported the matter to Pradhan Gurnam Singh (PW-7). The Pradhan asked PW-1 not to send Smt. Sunita Devi to her matrimonial house but however on the asking of Sh. Rikhi Ram (PW-4), she was sent to her matrimonial house on the assurance that the accused would mend himself. However, the accused continued to mentally and physically torture Smt. Sunita Devi which prompted her to commit suicide by taking poison. The police was informed of the incident and the statement (Ext.PW-1/A) of Sh. Kali Ram (PW-1) was recorded by the police. On the basis of the said statement F.I.R. dated 17.7.1993 (Ext.PW-10/A) under Section 304-B IPC was registered with Police Station, Dehra. During investigation the clothes of the deceased were taken into possession vide recovery memos (Ext.PW-3/B & Ext.PW-3/C). The site was photographed and one plastic container (Ext.PC) found near the body of the deceased was taken into possession vide memo (Ext.PW-3/D). The post mortem of the dead body was carried out by Dr. R. K. Sharma (PW-8) who gave his report (Ext.PW-8/A). The plastic container and the part of body of the deceased was sent to the Chemical Examiner and his report was also taken on record. With the 3 completion of the investigation the challan was presented in the Court for trial. 3. The accused was charged for having committed an offence punishable under Sections 498-A IPC as also 304-B IPC to which he did not plead guilty and claimed trial. With the recording of the statements of the prosecution witnesses statement of the accused under Section 313 Cr.PC was also recorded. The defence taken is that of denial and false implication. 4. The Court below acquitted the accused of the charged offence, hence the present appeal. 5. Heard learned counsel for the parties and also perused the record. 6. It is a settled position of law that there should be reasonable nexus between cruelty and the suicide. It has to be substantiated, established and proved on record. Cruelty by itself would not amount to having committed an offence punishable under Section 498-A IPC. A reasonable nexus has to be established between cruelty and the suicide in order to make good the offence of cruelty under the penal laws. Cruelty has to be of such a gravity as is likely to drive a woman to commit suicide. Suicide alone would not establish that it was occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide. Mere assumption or demand of dowry by itself in given 4 circumstances may not amount to cruelty. The harassment has to be with a definite object i.e. to meet any unlawful demand. Every act of cruelty is not punishable. There must be evidence to show that soon before the death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of natural or accidental death so as to prove that the death had occurred otherwise than in normal circumstances. The expression “soon before” the occurrence is very relevant, where Sections 113-B and 304-B IPC are pressed in to service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case the statutory presumption would arise. The expression “soon before” would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 7. In Girdhar Shankar Tawade vs. State of Maharashtra (2002) 5 SCC 177, the Apex Court has held that the basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing “a specific statutory meaning attached thereto. In order to ascribe a meaning to the word 'cruelty' as is expressed by the Legislatures Whereas explanation 5 (a) involves three specific situations viz , (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the Legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of section 498 (A).” “Section 498-A is attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman Admittedly, the finding of the trial court as regards the death negated suicide with a positive finding of accidental death. If suicide is left out, then in that event question of applicability of explanation (a) would not arise - neither the second limb to cause injury and danger to life or limb or health would be attracted in any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under section 498 (A) and not de- hors the same To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under section 498-A. Explanation (b) of Section 498-A in no uncertain terms records harassment of the woman and the statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce her or any person related to her to meet any unlawful demand for any 6 property or valuable security or is on account of failure by her or any person related to her to meet such demand - there is total absence of any of the requirements of the statute in terms of section 498 (A).” “Charges under sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other.” “To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under section 498-A The legislative intent is clear enough to indicate in particular reference to explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of explanation (b) The letters by itself though may depict a reprehensible conduct, would not however, bring home the charge of section 498-A against the accused Acquittal of a charge under section 306, as noticed hereinbefore, though not by itself a ground for acquittal under section 498-A, but some cogent evidence is required to bring home the charge of section 498-A as well, without which the charge cannot be said to be maintained.” 8. In Ramesh Kumar (supra) the Apex Court has also held that “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 7 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.” 9. In Sushil Kumar Sharma. Vs. Union of India & Ors. (2005) 6 SCC 281, the Apex Court has held as under: “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 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. 11. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two sections i.e. Section 306 and Section 498-A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the woman concerned to commit suicide, while under the former provision suicide is abetted and intended. 8 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 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 9 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 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.” 10. Sections 304-B and 498-A IPC are both distinct and separate offences. Though `cruelty' is a common essential ingredient of both the offences, but under section 304-B, it is only a `dowry death' that is punishable and such death should have occurred within seven years of the marriage. In the statute, no such period is mentioned in section 498-A IPC. The husband or his relative would be liable for subjecting the woman to `cruelty' any time after the marriage. The legal position is absolutely clear that a person charged and acquitted under section 304-B can be convicted under section 498-A IPC. [Smt. Shanti & Another v. State of Haryana (1991) 1 SCC 371 and State of U.P. Vs. Santosh Kumar & Ors. (2009) 9 SCC 626]. 11. In State of West Bengal Vs. Orilal Jaiswal (1994) 1 SCC 73, the Apex Court has held as under: “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 10 case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of S. 498A, I.P.C and S. 113A of 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. 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. The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.” 11 12. The Apex Court further cautioned that “the court should be extremely careful in 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 the 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.” 13. In Arun Vyas & anr. Vs. Anita Vyas (1999) 4 SCC 690, the Apex Court has held that “the essence of offence in Section 498-A is cruelty. It is a continuing offence and on each occasion on which the wife is subjected to cruelty, she would have a new starting point of limitation.” 14. In Kundula Bala Subrahmanyam and Anr. Vs. State of Andhra Pradesh (1993) 2 SCC 684, the Apex Court has held as under:- “The role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or 12 insignificant lacune in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women.” 15. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not. [Mohd. Hoshan A.P. & Anrs. Vs. State of A.P. (2002) 7 SCC 414]. 16. In State of A.P. Vs. M. Madhusudhan Rao (2008) 15 SCC 582, the Apex Court has held as under: “It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State, is attracted in the instant case, every harassment does not amount to "cruelty" within the meaning of Section 498-A I.P.C. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498-A I.P.C. harassment simpliciter is not "cruelty" and it is only when 13 harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to "cruelty" punishable under Section 498-A I.P.C.” 17. In Balram Prasad Agrawal Vs. State of Bihar & Ors. (1997) 9 SCC 338, the Apex Court has held cruelty to mean torture to be so unbearable in the common course of human conduct that a young lady having commitments to life could take a drastic steps to end her life leaving behind her infant children in the lurch and at the mercy of the accused husband who was found to be in contemplation of remarrying.” 18. In Arvind Singh Vs. State of Bihar (2001) 6 SCC 407, the Apex Court has held as under:- “The word 'cruelty' in common English acceptation denotes a state of conduct which is painful and distressing to another. The legislative intent in Section 498-A is clear enough to indicate that in the event of there being a state of conduct by the husband to the wife or by any relative of the husband which can be attributed to be painful or distressing. The same would be within the meaning of the section. Torture is a question of fact. There must be a proper effort to prove it.” 19. Instigation is to goad, urge forward, provoke, 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 consequence. 14 Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The accused must by his acts or omission or by a continued course of conduct create such circumstances that the deceased is 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. Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618. 20. The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. Gananath Pattnaik vs. State of Orissa, (2002) 2 SCC 619. 21. In U. Suvetha Vs. State, (2009) 6 SCC 757, the Apex Court has held that “living with another woman may be an act of cruelty on the part of the husband for the purpose of judicial separation or dissolution of marriage but the same, in our opinion, would not attract the wrath of Section 498-A of the Indian Penal Code.” 22. In Bhaskar Lal Sharma & Anr. Vs. Monica (2009) 10 SCC 604, the Apex Court has held as under: 15 “Ex facie no case has been made out under Section 498A of the IPC so far as the appellants are concerned. The allegations relating to the place where the marriage took place has nothing to do with an offence under Section 498A of the IPC. Allegations that appellant No.2 kicked the respondent with her leg and told her that her mother to be a liar may make out some other offence but not the one punishable under Section 498A. Similarly her allegations that the appellant No.2 poisoned the ears of her son against the respondent; she gave two used lady suits of her daughter to the complainant and has been given perpetual sermons to the complainant could not be said to be offences punishable under Section 498A. Even threatening that her son may be divorced for the second time could not bring out the offence under Section 498A of the IPC.” 23. In order to prove its case the prosecution has examined 13 witnesses. Sh. Kali Ram (PW-1) is the father of the deceased; Smt. Ram Devi (PW-2) is the mother of the deceased; Sh. Gurcharan Singh (PW-3) is the witness to the inquest report (Ext.PW-3/A) and also recovery of one bottle of medicine (Ext.PW-3/B); Sh. Rikhi Ram (PW-4) is the brother of the deceased; Smt. Maya Devi (PW-5) hails from the village of accused; Sh. Amin Chand (PW-6) is the brother of PW-1; Sh. Gurnam Singh (PW-7) is the Pradhan of Gram Panchayat Bassi; Dr. R. K. Sharma (PW-8) carried out the post mortem; Sh. Mohit Kumar (PW-9) took the photographs at site; Sh. Balwant Singh (PW-10) recorded FIR (Ext.PW-10/A); HC Parmod Singh (PW-11)