Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.398 of 2009. Date of Decision: March 14, 2011. --------------------------------------------------------------------------------------------------------------------- Baljinder Singh …… Appellant. Versus State of H.P. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? For the Appellant : Mr. Sanjeev Kuthiala, Advocate. For the Respondent : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J, (oral) : In police challan emanating from FIR No.32/04 dated 14th March, 2004, registered under Sections 498-A, 406 and 506 read with Section 34 of the Indian Penal Code, after the complete trial, the accused were acquitted by the learned trial Court, vide its judgment dated 6.11.2007 against which State preferred an appeal before the Court of Sessions, which came to be decided by the learned Additional Sessions Judge. While upholding the acquittal of the co-accused reversed the judgment of acquittal qua appellant Baljinder Singh, vide its judgment - 2 - dated 18th July, 2009 passed in Cr.Appeal No.2-NL/10 of 2008, which has been challenged in the present appeal. 2. The admitted facts of the case are that the complainant Veena Devi was married to appellant Baljinder Singh, hereinafter to be referred to as ‘the accused’ on 4.5.2001. During this wedlock, she gave birth to a male child. The accused-husband is a matriculate. His father was a bank employee and died while in service. After his death, the accused was given job on compassionate ground in State Bank of Patiala, where he has been working as a Cashier. The complainant-wife is a graduate, her father is a Police Officer. It is alleged that the complainant in the beginning was kept well, but after few matters, dispute shot up in the matrimonial home. She alleged ill-treatment at the hands of mother, sister and brother of the accused. They alleged that the ear-rings given to her in the marriage by her parents were not of gold, but were of some cheap metal. It was also alleged that “milni” in her marriage was not properly performed with one Mohinder. The aforesaid relatives of the accused had instigated him as a result of which he used to give beatings to the complainant. The father of the complainant at that time was posted as SHO at Police - 3 - Station Jubbal. Since both the parties did not put on well, as such, complainant started living separately from her husband in the house of her parents at Nalagarh. She also filed a petition for maintenance under Section 125 of the Code of Criminal Procedure and the accused had filed petition under Section 9 of the Hindi Marriage Act for restitution of conjugal rites. The petition for maintenance ended into compromise, consequently, the petition for conjugal rites was withdrawn. 3. It is alleged in the complaint filed by Smt. Veena Devi that the accused did not join the marriage of her brother and had not come despite invitation. She alone attended the marriage, thus this was another cause for creating bad blood inter-se the parties. 4. On the basis of complaint Ex.PW2/D, FIR was registered on 14.3.2004 under the aforesaid sections. Police investigated the matter and took into possession Photostat copies of Ex.PW2/A dated 18.9.1993 and Ex.PW2/B dated 23.8.2003 and also recorded the statement of the father of the complainant and filed the challan in the Court for the trial of the accused, his mother, brother and sister. They were accordingly charge- sheeted, tried and acquitted by the learned trial Court, - 4 - on the ground that there was no evidence with respect to the offence punishable under Sections 406 and 506 of the Indian Penal Code and with respect to cruelty under Section 498-A of the Indian Penal Code, it was held that the allegations made in the complaint and evidence did not meet the requirement of ingredients of said section and further learned trial Court also that the parties were living separately for the last five months. Thus, the prosecution had failed to prove the offence under Section 498-A of the Penal Code beyond reasonable doubt. 5. In appeal, while upholding the acquittal of the other accused persons, except Baljinder Singh, learned Additional Sessions Judge after discussing the evidence and perusing the compromise Exts.PW2/A and B respectively coupled with the statement of the complainant and her father convicted the accused, but released him on probation under Section 498-A, 406 and 506 of the Indian Penal Code. 6. Shri Sanjeev Kuthiala, learned counsel for the accused-appellant led me through the evidence on record and ventilated that the complainant herself admitted that she had received the dowry articles from - 5 - the accused and further made the reference to the evidence on record that there was absolutely no criminal intimidation given by the accused to her. He also argued that the evidence with respect to cruelty is discrepant and motivated by the father of the complainant who himself is a Police Officer and the allegations made in the complaint with respect to the cruelty are not of the standard which are required under the provisions of Section 498-A of the Indian Penal Code. Since the two views are deducible from the evidence on record, the learned Additional Sessions Judge failed to take the note of the fact that the view favourable to the accused should have been taken into consideration. 7. On the other hand, Shri A.K.Bansal, learned Additional Advocate General supported the impugned judgment of conviction and forcefully argued that the statement of the complainant coupled with the testimony of her father duly supported by the compromise deed on record proves the allegations of cruelty, therefore, no interference is called for. 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record and reappraised the evidence. - 6 - 9. A perusal of the testimony of PW2 complainant Veena Devi clearly exhibits that she was not residing with her husband for the last about five months before filing the present complaint. Otherwise also, it has come in evidence that for the last five years, her stay with the husband-accused was very less. In her statement, she admitted that she had received back all the dowry articles from the accused vide memo Ex.PW2/C and she admitted her signatures thereon, but according to her, those articles were damaged. Once she has admitted to have received the dowry articles, Section 406 of the Indian Penal Code is not attracted at all. 10. Insofar as the offence of criminal intimidation is concerned, neither she nor her father said anything about it during the trial of the case. The allegation with respect to administering the threatening through telephone is also not proved by leading cogent evidence. Her own version to that effect cannot be taken as a gospel truth. 11. Further, the statements of the complainant and other witnesses qua offence of cruelty are that her husband was being instigated by his mother, brother and sister to beat her. She nowhere stated that her husband had been giving beatings or torturing her for bringing less - 7 - dowry or for not meeting the demand of dowry. She also alleged to have been given beatings by the accused- husband at Nalagarh, but there is no evidence on record to show that she had made any complaint to the police or the Panchayat or there is also nothing on record to substantiate this allegation. 12. The next piece of evidence to which the prosecution relies are the compromise deeds Ex.PW2/A and Ex.PW2/B. The scribe of these documents has not been examined. Both the documents are photo copies. For the sake of arguments, if these documents are to be taken as legal evidence, even then these are not sufficient to prove the charge against the accused for the offence punishable under Section 498-A of the Indian Penal Code. 13. As a matter of fact, the word “cruelty” has not been defined in the Indian Penal Code, but the explanation added to the said Section spells out the ingredients of the “cruelty”, which can be classified as follows:- “ (i) any ‘willful’ misconduct which is of such a nature as is likely to drive the woman to commit suicide; or - 8 - (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. (iv) 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.” 14. The Supreme Court in Smt. Raj Rani v. State (Delhi Administration); AIR 2000 SC 3559 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 and in Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078, the Apex Court held that “cruelty” has to be understood having a specific statutory meaning provided in Section 498-A I.P.C. and there should be a case of continuous state of affairs of torture by one to another. 15. The Supreme Court taking note of the above judgments inter-alia in the judgment of Manju Ram Kalita - 9 - 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. However, petty quarrels cannot be termed as ‘cruelty’ to attract the provisions of the aforesaid Section. 16. In the instant case, the prosecution has failed to prove the essential elements of the offence of “Cruelty”. She was residing separately from her husband for a considerable time. With respect to earlier beatings, there is merely an allegation not supported by any authenticated record. It appears that because of some misunderstanding, both the parties withdrew from the marital ties of each other and started living separately. Since the father of the complainant happened to be Police Officer, he tried to support the cause of his - 10 - daughter by filing the complaint that too at the belated stage. The learned Additional Sessions Judge while disbelieving the same set of evidence qua other co- accused, surprisingly, believed the evidence against the accused-appellant only on the sole ground of allegation against him that at the instigation of his co-accused, he had given beatings to the complainant. 17. On the reappraisal of evidence, I am of the opinion that the findings of acquittal recorded by the learned trial Court are borne out from the record. 18. It is an established law that if the findings of acquittal are borne out from the record, even if another view from the same set of evidence is deducible against the accused, in that eventuality also, the view favourable to the accused deduced from the evidence on record is to be accepted. 19. In my considered opinion, there is no perversity in the judgment passed by the learned trial Court, which should have impelled the learned Additional Sessions Judge to convert the acquittal into conviction. - 11 - 20. For the foregoing reasons, the appeal is allowed, the judgment of conviction in lieu of sentence releasing the accused on probation is not legal, hence it is set-aside. Consequently, accused-appellant stands acquitted of the charges framed against him also by giving him the benefit of doubt. 21. The accused-appellant is discharged of his bail bonds entered upon by him at any time during the proceedings of the case. Send down the records. March 14, 2011. (Surinder Singh) (Pds) Judge.