IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 243 of 2003. Date of Decision: 15th May, 2010. _______________________________________________________ Dev Raj and others ….Appellants. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma and Mr. B.C. Verma, Advocates. For the respondent : Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. (Oral) Appellants Dev Raj and Brahmi Devi alongwith their co-accused Brij Mohan and Giano were tried for the offences under Sections 498A and 306 read with Section 34 of the Indian Penal Code, in Sessions Case No.16-G/VII of 2001, decided on 1st May, 2003/2nd May, 2003, by the learned trial Court. All of them were convicted, but only appellants Dev Raj and Brij Mohan were sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3,000/- each for the offence punishable under Section 498-A of the Indian Penal Code Whether reporters of the Local papers are allowed to see the judgment? - 2 - and were also awarded sentence for a period of two years rigorous imprisonment and also to pay a fine of Rs.3,000/- under Section 306 of the Indian Penal Code with default clause, whereas co-accused Smt. Brahmi Devi and Giano Devi, being women thus under special circumstances of the case were given the benefit of Probation and were ordered to be released on probation of good conduct and also for keeping peace and to be of good behaviour for a period of two years on their furnishing bonds in the sum of Rs.10,000/- each with one surety in the like amount each to the satisfaction of the learned trial Court. 2. Feeling aggrieved by the impugned judgment of conviction and sentence all the convicts filed the instant appeal. 3. During the pendency of the appeal Smt. Brahmi Devi appellant has died, therefore, the appeal abated qua her. 4. In short, the prosecution story, as emerges from the prosecution case, can be stated thus. Deceased Smt. Saroj was married to appellant Dev Raj in the year 1999 in village Jastehar falling under Police Station, Jawalamukhi. (Kangra) Brahmi Devi, is the mother-in-law of deceased, whereas appellant Giano Devi is the sister-in-law of the deceased and appellant Brij Mohan is the husband of Giano Devi. Admittedly, Giano Devi and Brij Mohan are - 3 - residing in different village, namely Jijjai Behrian at a distance of about one kilometer from the house of Dev Raj. 5. It is alleged that after the marriage appellants started torturing the deceased for bringing less dowry. During the period she remained in the house of her in-laws, she visited thrice her parental village, which is at a distance of about three kilometers from her matrimonial home. On every visit, deceased used to complain to her parents about maltreatment meted out in the matrimonial home. It is also alleged that the mother-in-law of the deceased and her husband did not allow her to visit parental home. Thus, Ram Rakha her father took PW-7 Sushil Kumar and his brother-in-law PW-8 Rattan Chand and Dalip Singh to the house of appellant Dev Raj to ask the appellants to mend their ways. Dev Raj and Brahmi Devi both are stated to have admitted their fault and promised not to give any chance to make any complaint in future and also assured to keep the deceased nicely in her matrimonial home. 6. On 27th July, 2000 Saroj (deceased) took her newly born female child aged about 2½ months alongwith her to PW-6 Sheela Devi for getting the ears of minor child cleaned from her. Thereafter she visited her parental house on the same day and made the complaint to her parents about the maltreatment being meted out to her in the house of her in-laws. In the evening committed suicide - 4 - consuming aluminum phosphide an insecticide. She was removed to the hospital where she was admitted. She was not in a position to talk as stated by PW-16 Dr. Sunita Kundu. Doctor informed the police. PW-2 Ram Rakha, father of the deceased, also reached the hospital. During the intervening night of 27th/28th July, 2000, she died. Police recorded statement Ext.PW-2/A of her father under Section 154 of the Code of Criminal Procedure wherein he alleged maltreatment and torture to the deceased by the appellants and leveled allegations about the dowry- demand. The aforesaid statement culminated into FIR. Police obtained the post-mortem. Viscera was sent for chemical examination. It was opined that the deceased had died because of consumption of aluminium- phosphide. 7. During the investigation, police recorded the statements of the witnesses, took photographs of the dead body and on completing the investigation presented the challan against the appellants under the Sections aforesaid. 8. The appellants were accordingly charge- sheeted. They pleaded not guilty and claimed trial. 9. To substantiate its case the prosecution examined its witnesses and appellants were also examined under Section 313 of the Code of Criminal Procedure. - 5 - Appellants took-up the defence that PW-3 Ilam Devi, the mother of the deceased, had delivered seven daughters and eighth was a male issue. On the alleged incident, at the time of delivery deceased visited her mother in the hospital and told her to go for sterilization as her parents have become a laughing stock in the society, but this suggestion was not acceptable to her parents. She felt depressed, left the hospital alongwith her minor child and in the evening and committed suicide. At that time Dev Raj was not in the house but he was with his father-in-law PW-2 Ram Rakha. 10. Learned trial Court on the basis of above evidence, called upon the appellants to enter their defence. Appellants did not lead any evidence in defence. At the end of trial, the learned the appellants were convicted and sentenced as aforesaid and disbelieved the defence version. 11. Shri G.D. Verma, learned Senior Advocate duly assisted by Shri Romesh Verma, vehemently argued that the prosecution has failed to prove the ingredients of offences charged and further led me through the evidence on record to point out that the prosecution story has been highly doubtful, all the witnesses are relation witnesses and no witness from the village of the appellants, more specifically Angrejo Devi real sister of the deceased, - 6 - who was married in the same village and other witnesses of the locality whose statements were recorded by the police under Section 161 of the Code of Criminal Procedure, namely, Bhag Mal, Karam Chand, Hazara Singh and Savitri Devi, were given up and adverse inference should have been drawn. The prosecution witnesses lop-sided view with prejudicial approach. 12. Contra, Shri J.S. Rana, learned Assistant Advocate General forcefully argued that the statements of the parents of the deceased are dully corroborated by the statements of PW-8 Rattan Chand and PW-4 Sheela Devi. Further, presence of deceased on 27th July, 2000 in her parents’ house stands admitted and the fact of making the complaint regarding maltreatment by the appellants stood corroborated. It is also submitted that the witnesses who were given up by the prosecution were the close relation of the appellants from the same village and they were won over. Adverse inference should be taken to the extent had been examined, they would not have supported the prosecution case. 13. I have given my thoughtful consideration to the rival contentions of the parties and have gone through the evidence exhaustively. - 7 - 14. Before touching the merits of the case, it would be relevant to reproduce Section 498-A 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.” 15. “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: - 8 - (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. 16. 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. 17. 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 - 9 - there should be a case of continuous state of affairs of torture by one to another. 18. 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 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 be termed as “cruelty”. 19. 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. 20. Section 113A of the Indian Evidence Act raises a presumption as to abatement of suicide by a married woman. It reads as under: - 10 - “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).” 21. 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 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. 22. Against the above stated principle of law I proceed to scrutinize the statements of the witnesses of the prosecution to find out whether the impugned judgment of - 11 - conviction and sentence passed by the learned trial Court is legally and factually sustainable. 23. At the very outset I would like to say that there is not even an iota of evidence led by the prosecution against appellants Brij Mohan and his wife Giano Devi regarding causing any torture or harassment to the deceased. Both of them were residing in a different village. Only evidence, which is quite discrepant, has come on record is that they were residing at a place about one kilometer away from the house of appellant Dev Raj and had been visiting his house almost daily, but there is no direct or circumstantial evidence even to infer that they had at any time caused any cruelty to the deceased. Therefore, their conviction and sentence is palpably wrong and illegal. 24. In so far as appellant Dev Raj and his mother Brahmi Devi are concerned, although appeal against Brahmi Devi stands abated in view of her death during its pendency, yet her role is also required to be scanned in order to find out whether she alongwith her son Dev Raj had caused any harassment or maltreatment to the deceased so as to drive her to commit suicide. 25. The entire evidence whatever the prosecution could bring in this case against the appellants with respect to cruelty alleged to have been taken place from the date - 12 - of her marriage till her death, is in the form of statements of the parents of the deceased. 26. Significantly, PW-2 Ram Rakha did not make any complaint to the Panchayat or to the police during the life time of the deceased except, as stated by him that he had taken Dalip Singh, Sushil Kumar (PW-7) and Rattan Chand, his brother-in-law (PW-8) to the house of the appellants for making the enquiries about the complaint made by the deceased about one month prior to her death. PW-7 Sushil Kumar did not support his version, rather he stated that Ram Rakh never complained to him about the maltreatment meted out to the deceased by her in- laws or the husband. He was meticulously cross-examined by the learned Public Prosecutor with the permission of the Court when declared hostile, but nothing material could be extracted. 27. Another witness Rattan Chand (PW-8) stated that he alongwith Ram Rakha, PW-7 Sushil Pandit had gone to the house of Dev Raj, but he did not name Dalip Singh. As per PW-2 Ram Rakha, Dalip Singh was also one of the conciliator/mediator, but he was not examined. The cause for the maltreatment is alleged to be for bringing of less dowry by the deceased and the appellants were insisting upon to bring more money for installing planer by appellant Dev Raj, who was a carpenter by profession. In my opinion, - 13 - this demand is not a demand for dowry and it was just for flourishing his business and a help, if this version is to be believed and there was no cause to the deceased to get depressed. 28. According to the learned Assistant Advocate General, when the deceased failed to bring the amount as demanded from her parents she was tortured and maltreated by appellants, but this case is devoid of such evidence worth inspiring confidence. Another incident of cruelty put-forth is that the appellants did not allow the deceased to visit the house of her parents, but is not true, as it has come in evidence that after the marriage she had visited them thrice. It is also stated by PW-3 Ilami Devi, her mother that on 27th July, 2000 the deceased had visited her, and made the general allegation that she was maltreated. Her evidence regarding visiting her in the house is also dicey if it is read with the statement of her husband PW-2 that on 28th July, 2000 she delivered a mal child in Mission hospital, Kangra where she remained admitted for three days, which means that on 27th July, 2000 she in the hospital, not in the house. Thus the very foundation of her statement to this effect stands shaken. 29. Contra appellants have admitted her presence in the hospital when her mother was to deliver a baby. However, PW-2 and PW-3 denied the defence put to them - 14 - that she insisted upon her mother to go for the sterilization as people in the society laughed at her when her parents denied, it led to a tiff between them and later in the evening she committed suicide. 30. As a circumstance to prove its case, prosecution also relied upon the statement of PW-6 Sheela Devi, who is a resident of different village that the deceased is alleged to have visited her to clean the ears of her daughter. She claimed that she knew the deceased even prior to that but did not know to whom and where she was married. She stated that on having been asked where she was married she disclosed that she was married to appellant Dev Raj then she said that she was married in a good family, it was then disclosed about the maltreatment. It is pertinent to note that the distance of the house of PW-6 from the village of appellants is stated to be only one kilometer. It is quite surprising that she did not know as to where and to whom deceased was married. She did not spell out what was the demand raised by the appellants nor she enquired about it. The mother of the deceased (PW-3) did not say that she had gone to the house of Sheela Devi to clean the ears of her child and thereafter visited her. It is not understood as to how the police came to know that she had also gone to the house of Sheela Devi when no other witness stated about her visit - 15 - to the house of Sheela Devi and when father and police arrived she was unconscious. 31. Further, it is evident from the statements of the witnesses on record that the deceased and her husband resided together at Amritsar. Appellant Dev Raj was doing some job there and left the job at the askance of his wife. Thereafter both of them started residing in village Jasther and it has also been admitted by the prosecution witnesses that Dev Raj got separated from his mother and resided separately at the behest of his deceased wife. 32. Against the above background if the deceased and Dev Raj were not having cordial relations and he was harassing the deceased for want of dowry, he would not have agreed to leave Amritsar and reside in the village separately at the instance of his wife. Whatever Dev Raj did, it was to keep her happy. The statements of the parents of deceased and their villagers cannot be blindly accepted against the above facts. 33. Therefore, in the totality of the circumstances when the case of the prosecution is examined against the above undisputed facts and also the law discussed, I do not find that the evidence of cruelty stands established. Therefore, no presumption can be drawn as required under Section 113A of the Evidence Act to conclude that the appellants are guilty for the offence punishable under - 16 - Section 306 of the Indian Penal Code. In result, I conclude that the judgment of conviction and sentence passed by the learned trial Court is not legally and factually sustainable, therefore, it is set aside. Consequently, appeal is allowed. The appellants are acquitted of the offences charged. The fine amount, if deposited, be returned to the appellants. 34. The appellants are discharged of their bail bonds entered upon by them at any stage during the proceedings of this case. May 15, 2010. (Surinder Singh), J. (rc)