IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 135 of 1996 & Cr. Appeal No. 570 of 1996 Reserved on.: 3.9.2008 Date of decision: 10.9.2008 Cr.Appeal No. 135 of 1996 Vijay Kumar and another Appellants. Versus State of Himachal Pradesh Respondent. Cr.Appeal No. 570 of 1996 State of Himachal Pradesh Appellant. Versus Vijay Kumar and another Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 No. For the appellants-accused: Mr. N.S.Chandel, Advocate. For the respondent-State: Mr. Rajesh Mandhotra, Deputy Advocate General Per Deepak Gupta, J. These two appeals arise out of the judgement of the learned Sessions Judge, Hamirpur, in Sessions Trial No. 05 of 1995 decided on 20.6.1996 whereby she has convicted the accused persons of having committed offences punishable under Sections 498-A and 304-B IPC. The accused Vijay Kumar has been sentenced to undergo simple imprisonment for seven years and fine of Rs.1000/- for offence under Section 304-B IPC and simple imprisonment for two years and fine of Rs.1000/- for the offence under Section 498-A 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 IPC. In default of payment of fine on each account he has been directed to undergo further imprisonment for one month each. Accused Prem Rani has been sentenced to simple imprisonment for one year and fine of Rs.2000/- each for both the offences under Sections 304-B and 498-A IPC and in default of payment of fine to undergo simple imprisonment for two months each. Aggrieved by this aforesaid conviction and sentence, the accused have filed Criminal Appeal No. 570 of 1996. The State has filed Criminal Appeal No. 135 of 1996 in which the State has prayed for enhancement of sentence especially in the case of accused Prem Rani. The undisputed facts are that late Smt. Jai Devi daughter of Shri Sher Singh was married to accused Vijay Kumar. Second accused Prem Rani is the mother of accused Vijay Kumar and mother-in-law of the deceased. Marriage between Vijay Kumar and Jai Devi took place some time in the year 1989. It is not disputed that on 9.10.1992 the deceased Jai Devi committed suicide by setting fire to herself. The allegations of the prosecution is that the deceased committed suicide since she was being tortured by the two accused who treated her with cruelty and were making demands for dowry from her. After investigation of the matter, challan against the accused was filed. Trial was conducted and after conclusion of the trial the accused were convicted and sentenced as aforesaid. We have heard Shri N.S.Chandel, learned counsel for the accused and Shri Rajesh Mandhotra, learned Deputy Advocate General for the State. 3 Shri Chandel, learned counsel for the accused has taken us through the entire evidence and submitted that there is not an iota of evidence to show that any demand of dowry was made from the deceased by her family members. He further submits that from the material on record placed by the prosecution it is apparent that the relation between husband and wife were not cordial. According to him the deceased was under treatment for psychiatric disorder and committed suicide of her own accord. On the other hand, Shri Rajesh Mandhotra, learned Deputy Advocate General, has supported the judgement of the learned trial Court in so far as the conviction is concerned. He has further urged that the learned trial Judge gravely erred in awarding sentence of only two years to accused Prem Rani even though the minimum sentence which can be awarded under Section 304-B is seven years. We have also gone through the judgement of the learned Sessions Judge. We are constrained to state that the learned Sessions Judge appears to have been swayed by the facts which were not proved on record and she has relied on hear-say evidence while convicting the accused. A perusal of the judgement shows that the learned Sessions Judge has based her judgement on conjectures and surmises. She has drawn conclusions from the material which had not been proved on record. Therefore, we have examined the evidence in detail. We may first make reference to the statement Ext.PE of Shri Sher Singh, father of the deceased, dated 10.10.1992, on the basis of which the FIR Ext.PF was registered. After stating that his 4 daughter Jai Devi was married to Vijay Kumar, he states that at the time of marriage of his daughter he had not given any dowry and her in-laws had also not demanded any dowry. Lateron, he was told by his daughter that her in-laws were demanding Rs.55,000/- in dowry. He, however, did not give any money. According to Shri Sher Singh on the mid-night between 9th and 10th October, 1992 two persons Balbir Singh and Daleep Singh came to his house in a taxi and informed him that her daughter had died due to burns. The father did not go to the house of her daughter with these persons. Both these persons came again in the morning when the father went to Badoh where the house of the accused is situated. His daughter’s body was lying in a charred condition. He suspected that his daughter Jai Devi had committed suicide because of the harassment she had to suffer at the hands of her mother-in-law Prem Rani and husband Vijay Kumar, i.e. accused. Unfortunately, Sher Singh died before the evidence in the case could be led and therefore, his statement could not be recorded in the case. PW-6 Ludar Singh is the brother of Sher Singh and uncle of deceased Jai Devi. According to him, when he had accompanied the Doli of Jai Devi, there were some dowry articles. When they reached the house of the accused the ladies remarked about the inadequate dowry being provided. On this, there was exchange of words between Sher Singh and the accused. He further states that Jai Devi used to tell him that her in-laws taunt her and trouble her for bringing less dowry. Sher Singh gave Rs.8000/- to Jai Devi but her in-laws returned this amount. However, they kept troubling her. 5 This witness further states that about one year prior to her death Jai Devi had informed the witness that her mother-in-law and husband were demanding Rs.55,000/- from her. The statement of this witness also shows that Jai Devi had been, for a long period of time, living with her parents and some time with her uncle but they used to leave her back at her marital home. In cross-examination, this witness admits that Sher Singh had also gone to the house of the accused in the marriage procession alongwith the Doli. He also states that distance of Baroh from their village Kotlu is about 14 to 15 kilometers. He admits that neither at the time of betrothal nor at the time of marriage any talk of dowry took place. He also admits that no Panchayat of the Biradri was called to look into the complaint of Jai Devi. A suggestion has been put to this witness that Jai Devi was suffering from some mental illness and was under the treatment of one doctor Dhatwalia. The witness has stated that he does not know anything about the same. He admits that a taxi was sent by the accused alongwith two messengers to inform them about the death of Jai Devi. PW-7 Narain Singh is also related to the deceased. According to him about three years prior to her death they had received a complaint that Jai Devi is not taking food. Thereafter, he alongwith Sher Singh visited the house of the accused. On their asking, Jai Devi had not uttered any word but at the asking of her father-in-law they brought her to her parental house. Thereafter, she kept quarreling with his father. She was again taken to the house of the accused. There the accused gave her 2-3 slaps. Vijay Kumar, 6 accused stated that he does not need Jai Devi. When they were leaving the house of the accused Jai Devi followed them and told that she should be given Rs.50,000/- and then she would not ask for anything from them. On questioning, Jai Devi stated that she did not want to live with the accused and wanted to utilize this amount to live separately. This witness makes no mention of any demand for dowry. PW-9, Bhagi Rath, is the other witness with regard to the alleged demand of dowry. Jai Devi was his wife’s brother’s daughter. He had arranged the marriage of Jai Devi. According to him, after Jai Devi conceived her second child, she came to his house about 6- 7 months prior to her death and complained that her in-laws do not treat her well and she was being beaten up by them. She lived with the witness for about 3-4 months. According to him, she refused to go to her in-laws house since she apprehended danger to her life. He also states that Jai Devi had lodged a complaint against Vijay Kumar in the police station but since the father-in-law of Jai Devi was also in the police they were advised to settle the matter. Finally, he and the father of accused Vijay Kumar took Jai Devi to her parents’ house in village Kotlu. According to this witness, thereafter a child was born and Jai Devi lived at Kotlu. In examination-in-chief this witnesses itself stated that the accused at the time of marriage had refused to accept any dowry. In his entire statement, he makes no reference to any dowry demand by the accused persons. In fact, his statement shows that neither the 7 husband nor any of the family members had made any demand for dowry. PW-8 Balwant Singh, PW-12 Sarvo Devi, and PW-14 Giano Devi are all neighbourers of the accused persons. It is also proved on record that none of them is on talking terms with the accused. In fact, from the material on record it stands proved that there is enmity between the accused and these witnesses. According to these witnesses, the accused persons did not permit Jai Devi to freely move around in the village. They also states that Jai Devi and Vijay Kumar used to quarrel quite often. Most of the evidence of these witnesses is in the nature of hear-say and totally inadmissible. According to PW-8 Shri Balwant Singh, his wife asked him to come out and when he came out he saw that Jai Devi was raising shrieks and when she stopped shrieking her in-laws said that her body now be covered with a cloth and then they started weeping. PW-12 Sarvo Devi is another neighbour. She has not supported the prosecution case at all except to the extent that she heard the shrieks of Jai Devi and that Jai Devi was not permitted to talk to any other person in the village. She was declared hostile. She also states that before Jai Devi died accused Vijay Kumar and Narsingh Parkash had gone up to the attic where the kitchen was situated and forced open the door. Statement of PW-14 Giano Devi is also to the similar extent. These three statements have to be scrutinized with great care and caution, since all these witnesses have admitted that they are not on talking terms with the accused party. Even if the statements of these witnesses are accepted all that can be said 8 is that the relations between the husband and wife were not cordial. These witnesses do not talk about any demand of dowry. Section 304-B IPC reads as follows:- “304-B. Dowry Death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” From a bare perusal of the Section it is apparent that to bring a case within the meaning of Section 304-B it must be established that the death of woman has occurred in abnormal circumstances and that she was subjected to cruelty or harassment in connection with any demand for dowry. In the present case, no demand for dowry has been proved and except for PW-6 no other witness has stated anything about any demand of dowry. The statement of PW- 6 is contradicted by the statements of other witnesses and is also contrary to the statement made by the father of the deceased under Section 154 Cr.P.C. The father of the deceased in his statement had clearly stated that neither the accused nor his family members had ever demanded dowry at the time of the marriage. He stated that he had not given any dowry to his daughter. According to PW-6 dowry was given. It is also proved that a sum of Rs.8,000/- given 9 by the father to his daughter was returned by her in-laws. If they were so keen of dowry, they would have kept this amount and asked for more. PW-7 has stated that Jai Devi demanded Rs.50,000/- to set up a separate residence for herself. This by no stretch of imagination can be said to be a demand for dowry. We are, therefore, of the considered view that no case under Section 304 B was made out as the prosecution has failed to prove that there was any demand for dowry. Coming to the question, as to whether a case under Section 498-A is made out, there are general allegations by the witnesses that the accused were treating the wife with cruelty. There is no material on record to show that the wife had ever complained about such cruelty to a Panchayat or to any other person. There can be marital discord in any relationship. For an offence to fall under Section 498-A, the cruelty should be of such an extent as to drive the woman to commit suicide or to cause grave injury or danger to the life, limb or health of the woman or where the harassment of the woman is to meet any unlawful demand of property or valuable security. No specific acts of cruelty which would fall within the meaning of Section 498-A have been proved. It would be pertinent to mention that the prosecution recovered from PW-10 Shri A.C.Dogra, Advocate, the documents which she had supplied to her counsel as she wanted to file a petition under Section 125 Cr.P.C. for grant of maintenance against her husband. Amongst these documents, she had given the counsel three letters written by the accused Vijay Kumar to her. We have gone through these 10 letters in detail. The accused had admitted that he had sent these letters. These letters tell a totally different story. In Ext.P-1, the husband makes reference to the allegation of the wife that her husband and his family are living in poverty in a Kacha house. The husband responds by stating that before marriage the wife and her father had seen the house and should have been shown whether it was Kacha or pucca. It is also apparent that the wife was demanding the custody of the child and the husband has responded that he would give the child to the wife in compliance with any order of the Court. Ext.P-2 is a notice written in the handwriting of the accused Vijay Kumar to his wife. This notice is addressed to the father of the deceased. In this notice, the allegations are that the wife had run away from the marital home on two previous occasions and this was the third time. According to the husband, every time the wife insisted that she wanted to live with her parents. He also mentioned that the wife was insisting that she wants a divorce. According to the husband he does not want to keep the wife any longer and has asked his father-in-law to get a divorce deed prepared. He has stated that he will agree for any condition for grant of a divorce. The document Ext.P-3 to P-9 is a long letter. In this also, the husband has made a complaint that it is the wife who is not willing to live according to established social norms. In this letter, the husband also makes mention of the fact that the wife prior to the marriage was suffering from mental ailment but this fact was hidden from the husband at the time of marriage. Reading of this letter clearly shows that the husband was feeling insulted by the 11 behaviour of his wife and he has asked her to either mend her ways or to get separated. The entire evidence on record does not show that any one of the accused treated the deceased with cruelty as defined in Section 498-A. Before parting with the case, we must also observe that the learned Sessions Judge has totally misappreciated the evidence. Her judgement is based on surmises and conjectures. She has taken into consideration hear-say and inadmissible evidence. Furthermore, though she has convicted the accused Prem Rani for an offence under Section 304-B she has been sentenced to imprisonment for one year only whereas the minimum sentence should have been seven years. This shows total lack of application of mind on the part of the learned Sessions Judge. Keeping in view the above discussion, the appeal filed by the accused is allowed. The conviction and sentence passed by the learned Sessions Judge on the accused is set-aside. The appeal filed by the State is dismissed. The bail bonds of the accused who are on bail are discharged. (Deepak Gupta), J. 10th September, 2008 ( V.K.Ahuja ), J. ™