IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.464 of 2002 Date of decision: October 28, 2011 State of H.P. ….. Appellant. Vs. …. Respondents. Vinod Kumar & Ors. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Vivek Thakur, Addl. A. G. with Mr. Rajesh Mandhotra, Dy.A.G. For the respondents : Pt. Om Parkash Sharma, Advocate Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 28.6.1997, accused were put to trial. In terms of judgment dated 30.3.2002 passed by learned Additional Sessions Judge-II, Kangra at Dharamshala, in Sessions Case No. 7-P/1999 titled as State of H.P. vs. Vinod Kumar & Ors., accused stands acquitted of the charged offences. 2. It is the case of the prosecution that on 7.12.1996 accused Vinod Kumar was married to the deceased, Smt. Kusam Kumari. After the marriage, parties started residing at village Lahla, Himachal Pradesh. However for work, accused No.1 Vinod Kumar lived in Delhi and deceased lived in the village along Whether the reporters of the local papers may be allowed to see the Judgment? 2 with her in-laws, including brother-in-law (accused No.2) and mother-in-law (accused No.3), who maltreated her. She was also not being maintained properly by her husband. In the month of June 1997, accused No.1 had come to the village. On 27.6.1997, he along with the deceased visited the house of his in-laws when his mother-in-law (PW-4) asked him to mend his ways. On 28th of June, 1997, Sh. Milap Chand (PW-5) (co-brother of accused No.1) along with Rajesh Kumar (PW-6) (brother- in-law of accused No.1) went to the house of the accused and learnt that Kusam Kumari had expired the same day. PW-5 immediately informed Sh. Krishan Kumar (PW-3) (elder brother of Kusam Kumari) about the same. Accordingly, PW-3 lodged report (Ext.PW-3/A) with the police, on the basis of which FIR No.202/97 under Sections 498-A, 306, 34 IPC (Ext.PW-7/B) was registered at Police Station, Palampur, Distt. Kangra. SI Kushal Kumar (PW-8) commenced investigation. He prepared inquest reports (Ext.PW-2/B & Ext.PW-2/C). Dead body was sent for post mortem which was conducted by Dr.S. K. Bhatia (PW-2) who issued report (Ext.PW-2/E). Statements of PW-5 & PW-6 were recorded by the Investigating Officer at the spot. Report of the Chemical Examiner (Ext.PW-1/A) was obtained by the police on the basis of which final opinion was given by the doctor about the cause of death of the deceased. Matter was also investigated by SI Om Parkash (PW-1) and HC Ajeet Singh (PW-7). Investigation revealed 3 complicity of the accused to the crime. Hence challan was presented in the Court for trial. 3. Accused were charged for having committed the offences punishable under Sections 498-A, 306 both read with section 34 IPC, to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 8 witnesses and statements of the accused under Section 313 Cr.PC were also recorded in which they pleaded innocence and false implication. Evidence in defence was also led by them. 5. Trial Court acquitted the accused of the charged offences. Hence, the present appeal. 6. From the testimony of PW-2, post mortem report (Ext.PW-2/D) and the final opinions (Ext.PW-2/E & Ext.PW-2/F) of the doctor, it is clear that deceased died due to shock. Also traces of aluminium phosphide insecticide poison were found. Report of the Chemical Examiner simply states that there is evidence of aluminium phosphide poisoning. Doctor is perhaps not sure as to whether deceased actually died due to consumption of poison for the reason that in his cross- examination he admits that he did not mention in the report that the body smelled of aluminium phosphide nor did he find any such smell at the time of conducting post mortem. Prosecution has also not proved that deceased died due to consumption of poison by leading other contemporaneous/corroborative evidence. But 4 however fact of the matter is that deceased died within 7 years of her marriage and at that time she was in her matrimonial house. 7. To hold the accused guilty of the charged offences, prosecution has to prove, beyond reasonable doubt, by leading clear, cogent and reliable evidence that the present accused i.e. the husband and the relatives i.e. brother-in-law and mother-in-law, subjected the deceased to cruelty of such a nature which drove her to commit suicide or that accused harassed the deceased to the extent which coerced her to meet any unlawful demand of any nature. Prosecution also has to prove that accused abetted the deceased to commit suicide. 8. In State of West Bengal Vs. Orilal Jaiswal (1994) 1 SCC 73, the Apex Court has held as under:- “the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the 5 court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.” 9. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not. [ Mohd. Hoshan A.P. & Anrs. Vs. State of A.P.(2002) 7 SCC 414]. 10. In Balram Prasad Agrawal Vs. State of Bihar & Ors. (1997) 9 SCC 338, the Apex Court has held cruelty to mean torture to be so unbearable in the common course of human conduct that a young lady having commitments to life could take a drastic steps to end her life leaving behind her infant children in the lurch and at the mercy of the accused husband who was found to be in contemplation of remarrying. 11. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary 6 that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The accused must by his acts or omission or by a continued course of conduct create such circumstances that the deceased is left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618. 12. In State of A.P. Vs. M. Madhusudhan Rao (2008) 15 SCC 582, the Apex Court held as under:- “It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State, is attracted in the instant case, every harassment does not amount to "cruelty" within the meaning of Section 498-A I.P.C. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498-A I.P.C. harassment simpliciter is not "cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to "cruelty" punishable under Section 498-A I.P.C.” 7 13. To prove the prosecution case, reliance is sought on the testimonies of PW-3, PW-4, PW-5 & PW-6. Having closely scrutinized the statements of these witnesses, we are of the view that prosecution has not been able to prove, beyond reasonable doubt, by leading clear, cogent and reliable evidence, the fact that the accused are guilty of the charged offences. 14. According to PW-3 and PW-4, deceased used to complain that her father-in-law, mother-in-law, younger brother-in-law maltreated her and also her husband did not properly behave with her. Accused did not feed her properly. They would state that they did not like her and would divorce her. Accused also did not properly maintain her nor gave any money. In futility, the matter was also taken up with the accused on two different occasions. 15. Significantly both PW-3 & PW-4 have not deposed about any dowry demand. They have also not deposed about any physical harassment, torture/cruelty. Now except for bald and vague statement of cruelty, there is nothing on record to corroborate the same. Also there are no specific instances with regard to time and place narrated by them. The allegations are of general nature. Also statements of PW-3 & PW-4, to our mind, do not inspire confidence. There are several improbabilities, improvements and missing gaps. 8 16. To begin with, PW-3 admits that his statement that father-in-law used to misbehave, torture and maltreat the deceased is not recorded in his previous statement recorded under Section 154 Cr.PC. (Ext.PW- 3/A). Noticeably, it is for the fist time in Court that crime is attributed to the father-in-law, who in any event is not a co-accused. He admits that it was for the first time in Court he deposed that twice he had taken up the matter with the accused. Further he admits that residences of both the parties are within the same Panchayat, yet matter with regard to the grievances/ atrocities was neither taken up with the Panchayat, Biradari or the neighbours. No neighbour/independent witness has been examined to corroborate their version. He admits that his statement to the effect that accused threatened to divorce the deceased is also not recorded in Ext.PW-3/A. His statement is replete with several improvements. Most importantly this witness admits that prior to the incident accused No.1 had handed over a sum of Rs.55,000/-, in cash, to the deceased who in turn had purchased National Security Certificates of the same amount in her own name and accused No.1 was only her nominee. Thus, version of this witness that deceased was not properly maintained appears to be improbable and unbelievable if not falsified. 17. Statement of PW-4 also does not inspire confidence. She states that prior to her death deceased along with accused No.1 had visited her in the presence 9 of PW-5 & PW-6, when deceased had also made a grievance that accused did not give her adequate food and money. She also states that her in-laws did not give her enough ration to eat. We find this version not to inspire confidence in the backdrop of the version given by and admission made by PW-3. In any event version of PW-4 is not corroborated by PW-5 & PW-6. PW-5 in fact has a different version to state. According to him, it was accused No.1 who had complained to the effect that deceased did not obey his parents. Accused threatened to divorce the deceased, which significantly is not the version of the mother. Further according to him, it was agreed that accused No.1 would take the deceased to Delhi. Therefore, he had got a ticket reserved for her in the bus for the date when accused No.1 was to travel to Delhi. Thus, there are two versions with regard to the alleged talks which took place on the day prior to the date of death of the deceased. 18. We also find the version of PW-5 otherwise not to inspire confidence for the reason that he has given a version which is totally different than the prosecution story. According to PW-5 & PW-6, in the evening of 28th June, 1997 when they went to the house of the accused, they knocked the door of the house for a long time. It was opened after a considerable period of time when they saw the accused giving massage to the deceased. They were informed that the deceased had fainted. This witness arranged for a Taxi and took the 10 deceased along with the accused to the hospital at Palampur. They were informed by the doctor that deceased had expired an hour ago. Having heard the same, his wife started weeping and he started consoling her. However, accused No.1 took the dead body of the deceased to his house. Both he and PW-6 went to the house of PW-4 and informed her about the incident. PW-5 then telephonically informed PW-3 about the death of the deceased. PW-6 has supported him. Significantly, PW-5 or PW-6 do not state the number of the taxi, name of its driver, name and place of the hospital and the name of the doctor who immediately attended to the deceased. Statements of PW-5 & PW-6 to the effect that deceased was taken to the hospital also stand contradicted by PW-8, according to whom no such fact was discovered during his investigation. Ext.PW-3/A was recorded in the presence of PW-5 & PW-6. Also wife of PW-5 has not been examined in Court. Significantly PW-5 admits that the house of the accused is surrounded by houses of other persons. Prolonged knocking on the door would have only attracted attention of the neighbours. In the instant case no neighbour has been examined by the prosecution. Also it has not come in the investigation that neighbours had heard these witnesses knock the door of the house of the deceased. Further PW-5 admits that his statement recorded by the police under Section 161 Cr.PC does not record that (i) he had knocked the door of the accused for long time; (ii) he 11 had got reserved a seat in the bus for the deceased to travel to Delhi. His version in Court, therefore, does not inspire confidence. 19. We find that in the instant case there has been delay on the part of the police in recording the statements of the prosecution witnesses. No doubt, FIR was recorded on the statement of PW-3, but however, it has also come in the testimony of PW-6 that before police left for the spot he had narrated everything to the police at the police station itself on 28th June, 1997, yet statements of the witnesses were not recorded at the police station. It gathers significance in the background that copy of the FIR was not sent to the Ilaqua Magistrate immediately but only after a gap of two days. The same was sent on 30th June, 1997 at 11 a.m. whereas it was recorded on 28th June, 1997 at about 4.45 p.m. Police Station is just adjoining to the Court Complex and also the residence of the CJM. No explanation is forthcoming for the delay. In the given facts and circumstances, possibility of due deliberation in getting the FIR recorded or the statements recorded with improvements cannot be ruled out. 20. For all the aforesaid reasons, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence. 12 21. Accused have had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge (Sanjay Karol) Judge October 28, 2011 (rana)