IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.345 of 2000 with Cr. Appeal No.516 of 2000. Date of Decision: 25th November, 2010. _______________________________________________________ 1. Cr. Appeal No.345 of 2000. Amin Chand .. Appellant. Versus State of Himachal Pradesh .. Respondent. For the appellant : Shri Vinay Thakur, Advocate, vice Mr. Y. Paul, Advocate. For the respondent : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. 2. Cr. Appeal No.516 of 2000. State of Himachal Pradesh ….Appellant. Versus Amin Chand ….Respondent. For the appellant : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent : Mr. Vinay Thakur, Advocate. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes ____________________________________________________ Per SURINDER SINGH, J (Oral). Amin Chand was tried for the offences punishable under Sections 304-B and 498-A of the Indian Whether reporters of the Local papers are allowed to see the judgment? - 2 - Penal Code. Vide judgment dated 31st May, 2000, passed in Sessions Trial No.8-S/7 of 1999, the learned trial Court acquitted him for the offence punishable under Section 304-B of the Indian Penal Code, but convicted and sentenced him under Section 498-A of the Indian Penal Code, to undergo simple imprisonment for a period of three years and to pay a fine of `5,000/-. In default of payment of fine, to further undergo simple imprisonment for a period of six months. As such, convict Amin Chand filed this appeal (Cr. Appeal No.345 of 2000) against his conviction and sentence for the offence under Section 498-A of the Indian Penal Code and the State came in appeal (Cr. Appeal No.516 of 2000) against his acquittal for the offence under Section 304-B of the Indian Penal Code. 2. Since both the appeals are arising out from the same judgment, therefore, taken up together for its decision. 3. In short, the prosecution story can be stated thus. Deceased Smt. Bano Devi was married to Amin Chand (hereinafter to be referred as ‘the accused’) way back in the year 1994. Thereafter both of them lived together as husband and wife. During this wedlock she gave birth to a daughter and a son. Accused was Hawker by vocation. - 3 - (ii) On 18th January, 1998 at about 11.00 PM, when her children were sleeping in the room, her husband had returned as usual. She provided meals to him. In the meantime, her son aged about one year, who was sleeping suddenly got up and started weeping. She gave a slap on his face and again tried to make him sleep. Her husband got offended, hurled abuses upon her and went outside to urinate. The deceased went to her kitchen, poured kerosene oil upon her and set ablaze. Out of pain and agony, she raised hue and cry. Smt. Raj, her sister-in-law and her husband got attracted by it and rushed to the spot. Deceased had torn-off her clothes to put-off the fire, but by that time she had sustained serious burn injuries on her entire body. She was removed to Community Health Centre, Arki by the accused, where PW7 Dr. Raman Tuley examined her and noted 60% burn injuries as mentioned in her Medico Legal Certificate Ext.PW7/A. She was referred to I.G.M.C., Shimla. (iii) On her statement Ext.PW9/B, FIR Ext.PA under Sections 498-A and 323 of the Indian Penal Code was registered. She remained hospitalized, for - 4 - about one month and died on 24th February, 1998 she died on account of 73% burn injuries. 4. Autopsy of the dead body was conducted by PW15 Dr. D.K. Ghosh. The report is Ext.PW15/A. In his opinion death had occurred as a result of septicemia- shock in a case of 1st degree ante-mortem burns (73% approximately). The probable time that elapsed between the injury and death was 36 days and between the death and post-mortem was approximately 60 hours. Thus the case was converted from offence punishable under Section 323 of the Indian Penal Code to Section 304B of the Indian Penal Code. 5. Police recorded the statements of the witnesses and on the completion of the Challan, case was presented for the trial of the accused. After having been tried and upon hearing the parties, the learned trial Court did not find it a case under Section 304-B of the Indian Penal Code, as such the accused was acquitted, but relying upon the statements of the witnesses qua the offence of cruelty, respondent was convicted and sentenced as aforesaid to which the challenge has been made in this Court. 6. Shri R.K. Sharma, learned Senior Additional Advocate General duly assisted by Shri Rajinder Dogra, learned Additional Advocate General, forcefully argued - 5 - that the learned trial Court wrongly acquitted the accused for the offence punishable under Section 304-B of the Indian Penal Code. To make his point, he led us through the evidence on record, including the statement of the deceased Ext.PW9/B and submitted that there are grounds for converting the acquittal into conviction. 7. Contra, Shri Vinay Thakur, learned Counsel for the accused repelled the above arguments on the ground that there is not even an iota of evidence to substantiate the charge of ‘dowry death’ and in so far as the conviction for the offence of ‘cruelty’ is concerned, the evidence on record would suggest that the accused as well as his wife both were living in complete harmony. Even there was no instigation or abetment on behalf of the accused for committing the said offence. He further argued that the witnesses on record were consistent in their statements that no quarrel between the accused and the deceased had ever taken place even in their normal life and the findings of guilt are totally wrong and incorrect. 8. We have given our thoughtful consideration to the rival contentions of the parties and have closely and carefully gone through the evidence recorded by the learned trial Court. - 6 - 9. We do not find even an iota of evidence to convert the acquittal of the accused into conviction for the offence punishable under Section 304-B of the Indian Penal Code. 10. As far as offence under Section 498-A of the Indian Penal Code is concerned; even evidence to conclude the said offence is also not consistent and convincing, thus cannot be made basis for the conviction of the accused. 11. Admittedly, the deceased committed suicide by dousing herself in kerosene oil and setting herself ablaze. It is also established that she had died seventh year of her marriage. 12. Before Section 304-B of the Indian Penal Code is complete, the following essentials must be satisfied: (i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of her marriage; (iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (iv) such cruelty or harassment must be for or in connection with demand of dowry; (v) such cruelty or harassment is shown to have been meted out to the woman soon before her death. - 7 - 13. Whereas to prove offence punishable under Section 498-A of the Indian Penal Code, the prosecution must prove that (i) the woman was subjected to cruelty or harassment; or (ii) such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband; or (iii) such cruelty was (a) with a view to drive her to commit suicide, or (b) to cause a grave injury to life, limb or health whether mental or physical of the woman; or (iv) 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. 14. The perusal of the above Sections together shows that both are not mutually exclusive. They deal with two distinct offences. In both the Sections ‘cruelty’ is common element. Under Section 498-A of the Indian Penal Code, however, ‘cruelty’ by itself amounts to an offence and is punishable, under Section 304-B of the Indian Penal Code. It is the ‘dowry-death’ that is punishable and such death must have occurred within seven years of the marriage, but no such period is mentioned in Section 498-A. The husband or his relatives are liable for subjecting a woman to ‘cruelty’ at any time. Moreover, a person charged and acquitted under - 8 - Section 304-B can be convicted under Section 498-A even without a specific charge, if such case is made out. 15. On the perusal of the record, we find that till her death the police did not do anything pursuant to FIR lodged on the basis of statement of the deceased. It only dealt with the matter after her death. Further, when the police was informed by the Medical Officer of Community Health Centre, Arki, thereafter the police reached I.G.M.C., Shimla to which place she was referred and recorded the statement Ext.PW9/B of the deceased on 19th January, 1998. Significantly, she did not make any statement before the Medical Officer at Arki. However, the record shows that on 19th January, 1998 when she was in the hospital at Arki, an application Ext.PW7/B, was also moved by the police to the Incharge, Medical Officer, Arki, only to get the medial certificate, but no request was made regarding fitness to make her statement, nor any opinion was sought whether she was fit to make any statement. In acute burns and unbearable pain, the sedations and painkillers are generally given which affect the mental faculty of the patient. The treatment summary of the deceased has not been produced on record. Thereafter when she was in I.G.M.C., Shimla, her statement Ext.PW9/B was recorded by the police, without any certificate from the doctor whether she was fit to - 9 - make the statement. It is not known what was her mental condition. When she had sustained 60% burn injuries, as per Medico Legal Certificate (Ext.PW7/A) and was referred to I.G.M.C. Shimla for treatment, then by no stretch of imagination it could be presumed that she could make the said statement. 16. Even the perusal of statement aforesaid only reveals that when she gave a slap to her one year old son, her husband started abusing her and went outside to urinate, she felt offended and committed suicide. Immediately thereafter she was taken to the hospital by her husband, sister-in-law and maternal uncles Sheru and Rasid. But there is no specific statement with respect to any ‘cruelty’ caused against her or ‘dowry-demand’. Though, the learned Senior Additional Advocate General submits that it is a dying declaration which can be acted upon, but we are afraid, if we can make it a basis to convict the accused for the offences charged. 17. The position of law relating to the admissibility of evidence under Section 32 (1) of the Indian Evidence Act is well settled. It is, therefore, not necessary to refer in detail to the decisions of the Apex Court. It is suffice to say that what is relevant and admissible under Clause (1) of Section 32, is the statement actually made by the deceased as to the cause of his or her death or of the - 10 - circumstances of the transaction which resulted in his or her death. The cause and circumstances of the death and not previous or subsequent transaction, such independent transaction being excluded as not falling within the principle of necessity on which such evidence is received. 18. The only evidence to hold him guilty under Section 498-A is the statement of PW1 Sher Ali, her brother, who reached hospital at Shimla and other close relatives. PW1 stated that when his sister was admitted in the hospital for the severe burn injuries, for about two days she was not in a position to talk and subsequently her condition was stated to be critical and on inquiry she told him that it was her fate and fate of her husband as it was so destined. He further stated that he was informed by her that her husband came in a drunken position, thereafter abused her, then he went outside and she went to the kitchen and committed suicide. Whereas in her statement Ext.PW9/B this fact did not find mentioned that he was drunken and left the house. Even he did not say anything about hurling the abuses to her, though a fleeting reference of a general nature was given that she committed the suicide on account of the torture given by the accused. - 11 - 19. His cross-examination is quite important. In his cross-examination he admitted that he was never told by his deceased sister that she was ever being tortured by the accused and also stated that she never disclosed anything about the cruelty even to her parents and she never expressed her desire even to desert her matrimonial home on account of torture. 20. Further, PW2 Sunita Devi niece of the deceased also made a similar statement. Significantly, admitted that the accused used to love her. PW3 Rashida, sister-in-law of the deceased, did not support the case of the prosecution. As such, she was declared hostile. She disowned her statement Ext.PW14/E recorded by the police. PW4 Rahmand was the cousin of the deceased. Although, he stated that about seven months prior to the occurrence the deceased had complained her that she was maltreated, when he asked from the accused he picked-up the quarrel with him. In cross- examination he could not state about the specific date of making such a complaint nor he reported the matter to the Pradhan of the Panchayat or to the police. Even he did not visit the deceased in the Hospital at Shimla. His statement is of no value to the prosecution in view of other evidence which probablised defence. - 12 - 21. PW5 Sakila, sister of the deceased, stated that she had also visited the house of the deceased after her marriage and inquired about her welfare and she did not disclose that the accused used to quarrel with her. But when PW6 Rashida visited her she was told that the accused had been picking up the quarrel in the marriage to which she attended, which fact has not been supported by PW6 aforesaid. On having asked by the deceased she told that there was a small quarrel with her husband, but she was not having any complaint. When she was in the hospital at Shimla, accused used to pick-up the quarrel, but in cross-examination when confronted with this she told that she did not disclose this fact to the police. 22. As stated above, PW6 Rashid did not corroborate the version of PW5 Sakila, rather she stated that whenever he had been visiting the house of the deceased he found that both were living happily. Though he stated that the accused had abused her before committing suicide by her, but he did not make any complaint against the accused. PW11 Smt. Raj is the sister-in-law of the deceased. She completely denied the allegations that the accused had been torturing her as alleged in the prosecution case. Even PW13 Smt. Parwati - 13 - made the similar statement and did not substantiate the prosecution case with respect to cruelty by the accused. 23. On the critical examination of the aforesaid evidence, we find that there is no cogent, consistent and convincing evidence with respect to the harassment of the deceased or ‘cruelty’ with a view to coerce to meet any unlawful demand of property or valuable security or that there was a failure by her or any person related to her to meet such a 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 of the Indian Penal Code, 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 of the Indian Penal Code and there should be a case of continuous state of affairs of torture by one to another. 25. Taking note of the above judgments amongst others Apex Court in Manju Ram Kalita v. State of Assam 2009 (2) S.L.J. (S.C.) 1036 observed that “cruelty” for the - 14 - purpose of Section 498-A of the Indian Penal Code is to be established in the context of S. 498-A of the Indian Penal Code 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’. 27. The small abrasions in the marital life do occur which have also been admitted by PW1 her brother in his statement. There are general allegations made by him and also by some of the close relatives. As discussed above, the majority of the witnesses supports that the accused had been keeping the deceased with love. The deceased in the instant case committed the suicide because she could not tolerate the anger of her husband, as she had slapped her child of one year. There was no instigation/ gesture by the accused which could be - 15 - termed as ‘cruelty’ falling within the clean-sweep of Section 498-A of the Indian Penal Code. 28. Thus, in the totality of the above circumstances and law discussed supra, the accused cannot be held guilty for either of the offences charged also in view of the latest judgment of the Apex Court in Bhairon Singh v. State of Madhya Pradesh, 2010(1) Criminal Court Cases 687 (SC), as the statement Ext.PW9/B alleged to have been made by the deceased to make her statement admissible in law to prove such offence is also insufficient. Even when we are dealing with an offence distinct from the other regarding which there is no evidence, the question of death is not an issue for consideration on the premise also Section 32 (1) of the Evidence Act will stand on the way so far as these materials are concerned. 29. Thus, we hold, as it must be, that there is not an iota of evidence which can be admitted to be used against the accused for the offence punishable either under Section 304-B or Section 498-A of the Indian Penal Code. Consequently, the appeal (Cr. Appeal No.345 of 2000) filed by the accused has to be allowed and is accordingly allowed and his conviction and sentence passed under Section 498-A of the Indian Penal Code is set aside. The fine amount, if any deposited, be refunded - 16 - to him, whereas the appeal (Cr. Appeal No.516 of 2000) filed by the State stands dismissed and he is also discharged of the bail bonds entered upon by him during the proceedings of both these appeals. (R.B. Misra), Judge November 25, 2010 (Surinder Singh), (rc) Judge.