IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.97 of 2000 with Cr. Appeal No.325 of 2000. Judgment reserved on 24th February, 2011. Date of Decision: 16th March, 2011. _______________________________________________________ 1. Cr. Appeal No.97 of 2000. Parveen Kumar .. Appellant. Versus State of Himachal Pradesh .. Respondent. For the appellant : Shri M.S. Thakur and Mr. Inderjeet Singh Narwal, Advocates. For the respondent : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. 2. Cr. Appeal No.325 of 2000. State of Himachal Pradesh ….Appellant. Versus Parveen Kumar ….Respondent. For the appellant : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent : Mr. M.S. Thakur and Mr. Inderjeet Singh Narwal, Advocates. 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. Both the above titled appeals are arising from the same judgment passed by the learned trial Court, in Whether reporters of the Local papers are allowed to see the judgment? - 2 - Sessions Trial No.18 of 1997, decided on 24th February, 2000, hence taken up together for its decision. The State has filed appeal against the acquittal of Praveen Kumar for the offence punishable under Section 306 of the Indian Penal Code and Parveen Kumar is in appeal against his conviction and sentence under Section 498-A Indian Penal Code whereby he has been ordered to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 1,000/- with the default clause. 2. Brief facts of the case are as under: (i) Raksha Devi deceased was married to appellant Parveen Kumar, hereinafter to be referred as ‘the accused’ on 10th October, 1992. She gave birth to a male child from the loins of the accused in the house of her parents, where she remained for about 5/6 months. (ii) It is alleged that her husband did not provide maintenance to her and the child, thus, filed a petition under Section 125 of the Code of Criminal Procedure. She had also alleged maltreatment and torture. An FIR Ext. PD was also lodged against the accused on 12th September, 1993 under Section 498- A of the Indian Penal Code in Police Station, Ghumarwin. She had also filed a complaint with the police under Sections 107/151 of the Code of - 3 - Criminal Procedure apprehending danger to her life from her husband. Police had prepared ‘Kalandra’ Ext.PF and filed in the Court of Sub Divisional Magistrate. Both the above proceedings were dropped as having been compromised on 22nd September, 1994 on the basis of her statement Ext. P10, assuring her to keep well in future. The order of SDJM, Ghumarwin with respect to dropping of proceedings is Ext.P12. (iii) It is the case of prosecution that after the marriage the deceased was kept nicely by the accused in the matrimonial house, thereafter he insisted upon her to bring more dowry and cash from her parental house, otherwise she would be done to death. (iv) On 26th September, 1994, i.e., within seven years of her marriage, she committed suicide by consuming Aluminium Phosphide in her matrimonial home and died next day around 1.45 p.m. in P.H.C., Bharari. Her parents were informed on 1st October, 1994, after cremation. (v) On receiving the information after her death, PW3 Madan Lal, brother of the deceased, reported the matter to the police. Police recorded his statement under Section 154 of the - 4 - Code of Criminal Procedure, on the basis of which FIR was registered in Police Station, Bhoranj. 3. On 2nd October, 1994, SI/SHO, Police Station, Bhoranj, reached the spot, prepared the inquest papers and sent the dead-body for post-mortem. The vomitance of the deceased was also taken into possession. 4. During investigation, police also took into possession certified copies of the documents of previous litigation i.e. Exts.P7 to P10, P12 and P13 recorded before the Court and also a complaint 1st July, 1993 filed under Sections 107/151 of the Code of Criminal Procedure (Ext.PF Colly) before the Sub Divisional Magistrate. 5. PW6 Suresh Kumar, brother of deceased was a Constable in CR.P.F. He is said to have sent ` 5,000/- to the accused by money-order from the place of his postings to meet his demand. 6. The medico legal certificate Ext.PB was also taken into possession along with the report of post- mortem. Viscera was sent for forensic examination. The report is Ext.P11 showing the contents of alumnium phosphide an insecticide. 7. On concluding the investigation, the police came to the conclusion that the accused dealt the - 5 - deceased with cruelty and abetted the offence of suicide by her. Thus, challan was presented in the Court for his trial under Sections 498-A and 306 of the Indian Penal Code. 8. The accused was accordingly charge-sheeted. He abjured his guilt and claimed trial. Prosecution led evidence to prove its case. 9. The accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant and put to him and that the deceased had written a letter after the death of her father from her parental house to take her back to the matrimonial house but no such letter was produced by him either in his statement or his defence. He also examined DW1 Raj Kumar, Pradhan of the Panchayat, his neighbour. According to him, he did not come to know about any dispute between the deceased and the accused. He was also unaware of any litigation between them and he denied that he had only appeared as a witness to help the accused. Another defence witness is DW2 Rameshwari Devi. She was examined on the same lines as to that of DW1. She also stated that the deceased used to tell her that her brother had been instigating her to get half of - 6 - the property belonging to the accused transferred in her name. Pertinently no such question/suggestion was put in defence to PW3 Madan Lal the brother of deceased nor he referred it in the statement under Section 313 of the Code of Criminal Procedure. 10. Further, after examining the aforesaid defence witnesses, the accused produced suicide note Ext.DF allegedly executed on 6.8.1994 stated to have been written by the deceased, as an additional evidence, making a reference that suicide is being committed by her because of frustration caused on account of her intolerable illness. This was not the case during the trial nor it was put to any of the witnesses by the accused that she was suffering from any kind of illness and he had made every endeavour to get her treated medically. Rather the facts on record prove that she was not being provided any maintenance during pregnancy and post delivery. 11. On examining the evidence on record, the learned trial Court did not find any cogent evidence to conclude the offence under Section 306 of the Indian Penal Code, but convicted and sentenced the accused for the offence under Section 498-A of the Indian Penal Code only. 12. Shri M.S. Thakur, learned Counsel for the accused strenuously argued that the earlier complaints - 7 - filed by the deceased were motivated by her parents and brother Madan Lal, which were later on reconciled and all the cases were withdrawn and both of them were living together very nicely. There was no demand for dowry or cash. PW6 Suresh Kumar could not connect the alleged receipts of money-order with accused. The accused did not treat her with cruelty at any time. He supported the findings of acquittal passed by the learned trial Court for the offence under Section 306 of the Indian Penal Code and further argued that the minor abrasions in the matrimonial relations are bound to occur, but the evidence put forth to prove the offence of “cruelty” under Section 498-A of the Indian Penal Code is not of the nature which may fall within the ambit and scope of said Section. 13. Shri R.K. Sharma, learned Senior Additional Advocate General duly assisted by Shri Rajinder Dogra, learned Additional Advocate General, supported the findings of conviction and sentence passed for the offence under Section 498-A of the Indian Penal Code and further argued that the previous litigation inter se the parties though withdrawn by the deceased is indicative of the fact that the deceased was treated with “cruelty” by the accused. It is further ventilated that the deceased was living with the accused for the - 8 - last about 3-4 months alongwith her minor child. It was during her stay with the accused, she compromised all the matters but immediately thereafter within a week she committed suicide goes to show that everything was not going on well in the matrimonial house when she was in the company of her husband. He further argued that the accused has impeachable conduct. He took up the false defence(s) and did not explain as to why she committed suicide. Further, there is nothing on record to show that she was suffering from any illness or that she was given medical treatment of any kind by the accused. Therefore, there was no question of getting depressed by any pain or illness and that the alleged suicidal note is a fabricated document and it has not been proved to be in the hands of the deceased. He further argued that it was placed on record as an additional evidence at the fag end of the trial with a calculated mode and the accused neither brought it to the notice of police nor informed the brother of the deceased about it. Even he informed about the death after her cremation. Thus in the background the defence taken is blatantly false and there were strained matrimonial relations, the life of the deceased was made miserable by the accused, as such she consumed poison and committed suicide. Thus it is - 9 - also argued that the accused is liable to be convicted and sentenced even for the offence under Section 306 of the Indian Penal Code. 14. We have given our thoughtful consideration to the rival contentions of the parties and have meticulously scanned the evidence on record. 15. Of course, mere demand of dowry or money raised by the accused is not an offence either under Sections 304-B and 498-A of the Indian Penal Code, but the prosecution is further obliged to prove that the accused used to torture and harass the deceased, which constitute cruelty for satisfying the demand of dowry/money. Unless the above ingredients are fully satisfied the offences charged could not be said to have been made out. 16. In fact “cruelty” has not been defined in the Indian Penal Code but the explanations added to the Section spells out the ingredients of the offence of “cruelty”. The elements of “cruelty” so far as clause (a) is concerned 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 (ii) any ‘willful’ conduct which is likely to cause grave injury to the woman; or - 10 - (iii) any ‘willful’ act which is likely to cause danger to life, limb or health, whether physical or mental of the woman. 17. 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. 18. 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 there should be a case of continuous state of affairs of torture by one to another. 19. Taking note of the above judgments amongst others Supreme Court in Manju Ram Kalita v. - 11 - 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 also be termed as “cruelty”. 20. Whereas, Section 306 of the Indian Penal Code requires the proof i.e., (i) commission of suicide and (ii) its abetment by such commission of suicide. 21. Section 113A of the Indian Evidence Act raises a presumption as to abetment of suicide by a married woman. It reads as under: “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 - 12 - 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).” 22. 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 also. 23. In view of above settled principles of law we proceed to examine the statements of the witnesses adduced on record to find out whether impugned judgment of conviction and sentence passed by the learned trial Court against the accused is legally and factually sustainable and whether the offence under - 13 - Section 306 of the Indian Penal Code is also made out. 24. On the close scrutiny and reappraisal of evidence on record, we find that everything was not going well inter se the accused and the deceased in her matrimonial home during her entire married life. Although, the maintenance petition as well as the other criminal proceedings were withdrawn on her statement as stated above while she was living with her husband for the last about four months, on the assurance that he would keep her well, yet the averments made by her in those complaints Ext.PD proved by PW9 M.C. Nand Lal, Ext.PF (Colly.) by PW10 Prakash Chand, Reader of SDM and earlier complaint under Section 498-A read with Section 506 of the Indian Penal Code which culminated into FIR No.59 of 1993 (Ext.PD) by PW14 Inspector Sher Singh and also the certified copies Ext.P8 to P10 with respect to dropping of proceedings as stated above by PW16 SI Bakshi Ram, are self explanatory. 25. PW3 Madan Lal is the brother of deceased. He testified that soon after the marriage the accused started giving beatings to the deceased. The deceased stayed in the matrimonial home upto June, 1993. She used to complain that the accused - 14 - had been demanding more dowry and cash from the parental house or else she would be done to death. In such circumstances, she lodged FIR on 12th September, 1993 under Section 498-A of the Indian Penal Code against the accused in Police Station, Ghumarwin, when the deceased was living in their house. The mother and the brother of the accused were also named in the FIR. While residing with them in the parental house, she gave birth to the male child from the loins of the accused but the accused did not provide any maintenance to the deceased or the newly born child. All those expenses were born by them. The position being so, proceedings under Section 125 of the Code of Criminal Procedure were also initiated by her in the Court of Sub Divisional Judicial Magistrate, Ghumarwin. In May, 1994, the deceased was sent back to the matrimonial home on the assurance of the accused that he would not put any demand for dowry and shall treat her properly. So both these cases were compromised by her and the proceedings came to an end on 22nd September, 1994. He also stated that on 1st October, 1994 they were informed about the death of the deceased, whereas the deceased had already died on 26th September, 1994 and her dead body was - 15 - consigned to flames. On coming to know about the death, he reported the matter to the police and his statement Ext.PC was recorded by the police, expressing his suspicion that either she was killed or she was compelled to consume poison. In cross- examination he was confronted with his statement Ext.DB wherein the allegations of bringing insufficient dowry and money were not found mentioned but he stated in his cross-examination dated 19th August, 1998 that these allegations were made by the deceased in her petition under Section 125 of the Code of Criminal Procedure and FIR lodged under Section 498-A of the Indian Penal Code. He denied that the case was registered under Section 498-A of the Indian Penal Code against the accused and his family members in connivance with the higher authorities. He denied that initially there were usual minor differences between the accused and the deceased which generally has been between husband and wife but voluntarily stated that the discord between the accused and the deceased was of a serious nature. He also denied that after the deceased joined the company of her husband both of them lived happily till her death. - 16 - 26. PW6 Suresh Kumar, is the younger brother of the deceased, who was serving as Constable in CR.P.F. After the marriage of his deceased sister he was on the annual leave for two months and according to him, she used to be restless. On having been asked, she disclosed that her husband had given beatings to her for bringing insufficient dowry and after about six months she came to the parental house though the accused was also accompanying her. Thereafter he returned to his duties. At that time, he was posted in Bombay. He had been receiving the letters from the deceased about the ill-treatment being meted out to her in lieu of insufficient dowry and apprehended danger to her life, thus requesting to send her money. He did not produce the said letter at the time of examination in the Court, but stated having sent ` 5,000/- to the accused by money orders and produced receipts Ext.P.1 to P.6, which were objected to on the ground of proof. He further stated that the aforesaid amount was sent by three different money orders and that as and when the accused used to visit the house of his parents he demanded money. He further stated that the deceased gave birth to a male child from the loins of the accused and all the expenses connected - 17 - therewith were bored by them. Later either the deceased was killed by the accused or she committed suicide on account of maltreatment and harassment by the accused. 27. In cross-examination, he stated that he was living in the joint family. He also stated having made the statement to the police with respect to the demands raised by the accused as aforesaid, but when confronted with his statement recorded under Section 161 of the Code of Criminal Procedure Ext.DD, it was not found so recorded. He also stated that he did not disclose about the letters to his father and PW3 Madan Lal. Pertinently, he explained that he withheld this information from them fearing that its disclosure would cause mental agony to them. He denied that she had died all of a sudden and there had been normal differences between her and the accused during the initial period of marriage and later blame was put on the accused on the suspicion. 28. PW4 Prem Lata is the younger sister of the deceased. She stated that after the marriage of her deceased sister with the accused both of them lived happily for about 4/5 months, thereafter the accused started giving beatings to her as a result, - 18 - the deceased came and resided in her parental house. At that time she herself was unmarried. The deceased gave birth to a male child from the loins of the accused and all the expenses connected with the birth of the child were meted out by them. The accused never turned up either to enquire about the welfare of the deceased or the newly born child. Consequently, proceedings under Section 125 of the Code of Criminal Procedure were initiated by the deceased and she had also filed a case against the accused regarding the physical harassment meted out to her. Later she joined the company of the accused after having compromised the earlier proceedings. She also stated that when she visited the house of the deceased, the deceased was given beatings, by the accused. When she and her deceased sister were returning to parental house the accused met them on the way and took her back from near a temple at Ladrour where he again gave her kick blows and forcibly took her to the matrimonial home. In September, 1994, they came to know about her death in the matrimonial house. With respect to the above statement, in cross-examination she was confronted with her statement Ext.DA wherein though there was - 19 - no reference with respect to the beatings, but, however, it found mentioned that the accused had taken her from her company near the temple, to the matrimonial house, while going to the house of her parents. 29. PW5 Siri Ram is the maternal-uncle of the deceased. He also stated about the giving of beatings by the accused to the deceased for bringing insufficient dowry. According to him, he had invited the deceased to visit their house when the child of the deceased was about five months. On the second day accused also visited his place and threatened the deceased with dire consequences and tried to take her forcibly to his house. Then he told the accused that he would send her back to the house of her parents next day and not with him. Thereafter the accused left the place. He also stated that the deceased had been complaining to them regarding physical violence on the allegation that she had brought insufficient dowry. He was also confronted with his statement Ext.DC recorded under Section 161 of the Code of Criminal Procedure wherein the fact