HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.R. No. : 3 of 2002 Decided on: 2.6.2009. Naresh Kumar and another ……… Appellants. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Ajay Kochhar & Mr.Bimal Gupta, Advocates. For the respondent: Mr.J.S. Guleria, Assistant Advocate General. For the complainant: Mr.Ramakant Sharma, Advocate. V.K. Ahuja, J. (Oral): This is a revision petition filed by the petitioners against the judgment, dated 11.12.2001, passed by the learned Additional Sessions Judge, Una, confirming the judgment passed by the learned Chief Judicial Magistrate, Una, vide which the petitioners were convicted and sentenced under Section 498-A of the IPC. Petitioner No.1 Naresh Kumar was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/-. In default of payment of fine, he was to undergo simple imprisonment for a further period of six months. Petitioner No.2 Om Parkash was sentenced to ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - undergo simple imprisonment for one year and to pay a fine of Rs.10,000/-. In default of payment of fine, he was to under simple imprisonment for a further period of six months. Briefly stated the facts of the case are that on 24.2.1994, a report was lodged with the police, vide a written application Ext.PW-1/A, by Smt.Meenu Sharma, complainant. She alleged therein that her marriage was performed with petitioner No.1 (Naresh Kumar) on 26.1.1987 in Village Jakhera. She alleged that after five days of marriage, her husband (petitioner No.1) and her in-laws started demanding dowry. After 15 days, her husband, mother-in-law and father-in-law took her to Bihar where her husband gave her beatings in the presence of her father-in- law and mother-in-law. They also demanded more dowry. She wrote a letter to her father, who replied that he would settle the things once she would come there. She further alleged that she came to Jakhera, where again she was given beatings. She came to her parents’ house at Mehatpur, but she was not aware what commitment was made by her father to her in-laws. She further alleged that this process continued and she used to be given beatings at Bihar as well as Jakhera and every year she used to take some articles from her parents. She further alleged that at Bihar also, she used to be kept nicely for 2-3 months and thereafter, her husband used to give her beatings and maltreat her. She came to Jakhera alongwith her husband in connection with the marriage of the niece of her husband, which was fixed for 15th February. There she was given - 3 - beatings by her father-in-law and mother-in-law and was sent to her parents’ house and they asked her to come with money. Her father was admitted in the hospital, so she could not talk to him, who died on 7.2.1994. She further alleged in the complaint that one day prior to Kirya, her husband (petitioner No.1) came to her and asked her that, since her father was no more alive, she should demand her share in the house and money deposited in the bank and then only she could accompany him. Thereafter, on 17th February, her husband, father-in-law, brother-in-law Manmohan Sharma and her husband’s maternal uncle Salig Ram and their three children came to their house at Mehatpur, quarreled with them and gave a threat to her brothers to take their lives. They also gave a threat to set the houses and the shops on fire and attempted to forcibly abduct her 3-1/2 year daughter named Ginni. Thus, it was alleged that action be taken against her in-laws. On this report, a case was registered and after registration of the FIR, the investigation was conducted by the police. On completion of the investigation, the challan was filed before the court of the learned Chief Judicial Magistrate, Una under Section 498-A of the IPC against petitioner No.1 and his father petitioner No.2, who were tried by the learned trial Court leading to their conviction and sentence, as detailed above. On appeal, the said sentence was upheld by the learned Additional Sessions Judge, Una. - 4 - I have heard the learned counsel for the petitioners and the learned Assistant Advocate General for the State and have gone through the record of the case. The submissions made by the learned counsel for the petitioners were that the statement of the complainant Meenu Sharma, who has been examined as PW-1, does not stand substantiated from the statement of her mother PW-2 Smt.Sushil Dutta, PW-3 Rajiv Dutta and a family friend PW-4 Gurdas Ram, who have been examined to substantiate her statement. It was submitted that there is no material corroboration in regard to the assertions made in the complaint and material improvements have been made by the complainant and other witnesses and, therefore, it was submitted that their testimonies cannot be relied upon. Some facts were allegedly stated by the witnesses for the first time in the Court, which was never the case when the complaint was lodged by the complainant or when their statements were recorded by the police under Section 161 of the Cr.P.C. It was submitted that the learned courts below have mainly relied upon a letter proved to have been written by petitioner No.2 to his son petitioner No.1, though there is nothing on the record to show that this letter was ever posted by petitioner No.2 to his son petitioner No.1. It was also submitted that there is no specific evidence on record if the said letter was written in 1987 and was recovered by the complainant in 1987 or in 1994 since the evidence is contradictory in regard to these facts. - 5 - Thus, it was submitted by the learned counsel for the petitioners that there is no specific evidence on record to show that the petitioners have committed this offence and ingredients of Section 498-A of the IPC do not stand proved beyond any reasonable doubt and the findings to the contrary are liable to be reversed. It was further submitted that the learned courts below have wrongly relied upon the letter, which does not refer to any specific demand made by the petitioners at any time. The learned counsel for the petitioners had relied upon some decisions to substantiate his submissions. Reliance was placed upon the decision in State of H.P. versus Raj Kumar & Ors., Latest HLJ 2002 (HP) 582. It was observed in this case, which was also under Section 498-A of the IPC, that stray domestic quarrels, perfunctory abuses by the mother-in-law to her daughter-in- law in the Indian Society, crude and uncultured behaviour by the in-laws or the husband towards his wife being mundane matters of normal occurrence in the traditional joint Hindu families will not go to form and constitute cruelty unless these acts and conduct singly or cumulatively are found to be of such formidable and compelling nature as may lead to the commission of suicide and impair physical and mental health. It was further observed that mere foul language or taunts would not constitute cruelty. Reliance was also placed on the decision in Meera versus State of Rajasthan, AIR 2004 Supreme Court 1879, a perusal of which shows that there was no mention of - 6 - any dying declaration by the witnesses for one year after the occurrence, having been made by the deceased, and after the report of Forensic Science Laboratory, it was alleged that the dying declaration had been made by the deceased to her mother. Another decision relied upon by the learned counsel for the petitioners was in K.Prema S. Rao and another versus Yadla Srinivasa Rao and others, AIR 2003 Supreme Court 11, which shows that in para 13 of the judgment it was held that the allegations against the in- laws of the deceased about their participation with accused husband in driving out deceased from their house were made for the first time by the father of the deceased only in his deposition in the Court. No other evidence was there against the in-laws except the oral testimony of the father of the deceased. It was held that the acquittal of the in- laws of the deceased was proper. The decision in Sujoy Sen alias Sujoy Kr. Sen versus State of W.B., (2007) 6 Supreme Court Cases 32, shows that in referring to the appreciation of evidence and the discrepancy in FIR, if any, whether it was fatal, it was observed by their Lordships that discrepancy a major one in the FIR, since had the first informant seen the accused entering into the house at the time of the incident, he would have definitely mentioned the fact in the FIR. This discrepancy was held to be major affecting the merits of the case. On the other hand, the learned Assistant Advocate General has supported the impugned judgments for - 7 - the reasons recorded therein supplementing them by the submissions that the contradictions referred to by the learned counsel for the petitioners are minor in nature and they do not affect the merits of the case. It was also submitted that the jurisdiction of this Court is very limited since it is a revisional jurisdiction and there cannot be a detailed appraisal of the evidence, which has been duly appraised by both the courts below and as such there is no merit in the petition filed by the petitioners, which deserves to be dismissed accordingly. The learned Assistant Advocate General has placed reliance on the decision in State of Maharashtra versus Jagmohan Singh Kuldip Singh Anand and others, (2004) 7 Supreme Court Cases 659, which shows that the following observations were made in para 22, which are relevant and are being reproduced: “22. The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”. It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an - 8 - appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.” Another decision relied upon by the learned Assistant Advocate General was in Hydru versus State of Kerala, (2004) 13 Supreme Court Cases 374. The observations made in para 3 are relevant and are being reproduced below: “3. From a bare perusal of the impugned order, it would appear that the High Court upon reappraisal came to a conclusion different from the one recorded by the appellate court. It is well settled that in revision against acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any procedural irregularity or material evidence has been overlooked or misread by the subordinate court. If upon reappraisal of evidence, two views are possible, it is not permissible even for the appellate court in appeal against acquittal to interfere with the same, much less in revision where the powers are much narrower. No procedural irregularity has been found by the High Court in the order of the Sessions Court whereby the appellant was acquitted. Therefore, we are of the view that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional powers, as such the same is liable to be interfered with by this Court.” However, this judgment is not applicable to the facts of the present case because in that case the revisional jurisdiction was being exercised by the Court in case of acquittal and in case of acquittal, even if two views are possible, the findings cannot be set aside until and unless they are perverse. - 9 - Coming to the evidence, in the light of the above submissions and the case law cited by the learned counsel for the parties, the material statement is of PW-1 Meenu Sharma, the complainant. A perusal of her statement shows that she has referred to various dates and demands made or the harassment caused to her and it has to be seen as to whether her statement stands corroborated, on material particulars, or not. The main occurrence reported by her is of 17.2.1994 when the petitioners and others quarreled with them and her brothers were given a threat to take their lives and to set the property on fire. Apart from that, she had also alleged some other facts which may be summarized below for better appreciation: i) At the time of marriage on 26.1.1987, when the doli was about to leave, her father-in-law i.e. petitioner No.2 told her father that they should pay Rs.50,000/- in cash and a colour television be also given, and till these are not given, the doli will not be allowed to go. Thereafter, the villagers mediated and advised the parties and the matter was resolved. ii) After 3-4 days of marriage, the petitioners started making demands and she was taken to Bihar where she was given beatings by the petitioners and her mother-in-law. - 10 - iii) The next occurrence pointed out is of 15th February, 1994 when she was to go for the marriage of her husband’s niece and they had come to village Jakhera from Bihar, where she was given beatings by her father-in-law and mother-in-law and they demanded that she should bring cash from her parents. iv) The next occurrence is of 16.2.1994 when the petitioners asked her that she should get her share in the property of her father, who was already dead, but it has not been specified as to which of the petitioners asked her to get her share in the property. v) The next occurrence is of 17.2.1994, on which date the relatives of her in-laws came and told her that they would be visiting her parents’ house in the evening. She also called some persons to their house and her in-laws came there and demanded her share in the property and they also attempted to give her beatings and also a threat was given to take her life and to set on fire the houses and the shops. They also attempted to forcibly abduct her daughter and thus, she also apprehended danger to her life. - 11 - It has to be seen as to whether the statement of the complainant, on these material facts, can be relied upon or not and as to whether other witnesses had corroborated her statement. In regard to the first demand that a sum of Rs.50,000/- and a colour television was demanded on the day of marriage, she was confronted with her police statement wherein it was not so recorded. She was also confronted with her police statement in which she had not alleged that she was asked by her in-laws to get ready since they would be visiting their house in the evening. She also admitted that in her complaint made to the police, there was no mention of the letter Ext.PW-1/B or qua the fact that an attempt was made to abduct her daughter, though a threat was given to abduct her. In regard to the letter, which shall be referred below, she has stated that she got the letter at Bihar in December, 1994, but never stated how she got the same, whether it was received by post in the name of her husband or it was lying in the house or from where she got this letter. She admitted that when the petitioners gave a threat at Mehatpur, many persons gathered there, but none has been examined to substantiate if the petitioners and their relatives visited the house of the parents of the complainant at Mehatpur on that day and gave a threat. PW-2 Smt.Sushil Dutta is the mother of the complainant, who also stated that after the marriage, petitioners started maltreating her daughter in regarding to bringing of insufficient dowry and also gave her - 12 - beatings. She further stated that on the date of marriage, petitioner No.2 had demanded a sum of Rs.50,000/- and a colour television, which were not given. In cross examination, she admitted that this fact was not mentioned by her in the statement under Section 161 of the Cr.P.C. and the said fact was, therefore, stated by her for the first time in the Court. She only stated about the occurrence of 17.2.1994 when petitioner No.1 came and gave a threat that they would kill Meenu Sharma and started quarrelling with her and attempted to forcibly take the daughter of the complainant, namely, Ginni. She further stated that this quarrel took place on 16.2.1994, again clarified that it took place on 17.2.1994. In regard to the letter Ext.PW-1/B, she stated that she had got this letter in December, 1987, which is contrary to the deposition of the complainant that she got the letter in December, 1994. She further stated that she had shown this letter to several persons named by her, but none had been examined to prove the fact that such a letter was traced or was shown to them. She clearly admitted in her cross examination that there was no demand of any specific item except the general demand that less number of articles were given in dowry. In regard to the occurrence of 17.2.1994, she has specifically stated that 25-30 persons had gathered there but none has been examined to prove that the petitioners and their relatives came on that date and gave a threat. PW-3 Rajiv Dutta, the brother of the complainant, has also stated about the demand of - 13 - Rs.50,000/- and a colour television on the date of marriage. He was also confronted with his statement Ext.DW wherein it was not so recorded. He stated about the occurrence that took place after four months of marriage when the petitioners and the mother of petitioner No.1 left the complainant at Mehatpur and told her that she has no place in their house and she should visit them only in case she brings more dowry. He further stated that Parkash and Gurdas, who were the friends of his father, went to Jakhera and advised them, where the mother-in-law of the complainant and petitioner No.1 gave beatings and abuses to the complainant. There was no mention of this occurrence in the statement of the complainant or her mother, as has been discussed above. He further stated that on 17.2.1994, petitioners alongwith the sons of their maternal uncle, as named in the statement, came to Mehatpur, quarreled with them and gave a threat to take his life and that they would set their shops and houses on fire. Thereafter, the report was lodged by them. He was confronted with his police statement, where the names of several persons, now named by him in the statement having accompanied the petitioners, were not mentioned. This clearly shows that attempts have been made to introduce the names of more persons, who came on 17.2.1994 to Mehatpur, just to implicate them falsely. PW-2 Rajiv Dutta was confronted with his police statement wherein there was no mention of the threat given by the petitioners and others to set the shops and houses on fire. In regard to the visit to Jakhera by Gurdas and Parkash with the complainant, he has stated that it happened in - 14 - 1987, whereas the complainant has nowhere stated about such visit in the year 1987. PW-4 Gurdas Ram has stated that he was knowing the complainant’s father, who used to tell him that his daughter was being maltreated by her in-laws and the petitioner No.1 and his wife, i.e. the complainant, were not having good relations. He did not state anything in regard to the beatings having been given by the petitioners or by the mother of petitioner No.1 at any time. He further stated that when he went to Jakhera and asked the complainant and her husband to sit in a room and settle the matter, thereafter, petitioner No.2 came out and gave a slap blow to the complainant and thereafter, he begged pardon. This was never so stated by the complainant that when PW-4 Gurdas Ram came to Jakhera, she and her husband sat in a room or that she was given beatings by petitioner No.2 in presence of PW-4 Gurdas Ram. On appraisal of the above evidence, it is clear that out of the four witnesses examined by the prosecution to prove the harassment or maltreatment to the complainant or beatings given to her on different times, not even a single witness has stated about any specific demand of any specific article having been made by the petitioners at any time. In regard to the demand at the time of marriage, it was stated by the complainant and her mother and brother for the first time in the Court. It may be that the complainant had forgotten to mention this fact when she lodged the report but the statement of her mother and brother were recorded subsequently under Section 161 of - 15 - the Cr.P.C. and it was expected of them that they would not have forgotten to mention this demand of Rs.50,000/- and that of a colour television at the time of marriage. The allegations made by the complainant are general in nature and do not refer to any specific demand of beatings given to her at any particular date. Her brother PW-3 Rajiv Dutta has clearly admitted that their family is well educated and all the persons are at least graduate. It also looks surprising that the marriage was performed in the year 1987, the parties lived together for more than 7 years and after 7 years, the present complaint was made to the police, but prior to this, no complaint was made to any person or authority including the Panchayat or the police in regard to the demand of dowry or harassment caused to the complainant at any time by the petitioners. A perusal of the judgment passed by the learned Additional Sessions Judge shows that it mainly relied upon the letter Ext.PW-1/B, allegedly written by petitioner No.2 to his son petitioner No.1. The specimen handwriting of petitioner No.2 was taken separately and there is evidence to this effect that this letter was in the hand of petitioner No.2, which fact has also not been disputed by the learned counsel for the petitioners during the course of arguments. The learned Additional Sessions Judge has taken view from some of the sentences of this letter, which runs into 15 pages. The learned appellate Court referred to the demand of dowry articles by the petitioners. In my view, in case the letter is thoroughly perused, it appears to have been written as a diary in - 16 - which petitioner No.2 has put on record his sentiments, his greed or desire or expectations at the time of marriage of his son and his frustration due to receipt of less dowry or having not got a daughter-in-law of his choice or his son not being sincere to him. In the said letter, he had even