IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 437 of 1996 Judgment Reserved on : 30.4.2010 Date of Decision : September _23 , 2010 State of Himachal Pradesh Appellant Versus Surjit Kumar and others Respondents 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 Singh Thakur, Addl. Advocate General with Mr. Rajesh Mandhotra, Dy. A.G. for the appellant/State. For the respondents : Mr. Vinay Thakur, Advocate, for the respondents. Sanjay Karol, J. For an offence, which is alleged to have been committed sometime in the year 1991, accused persons were put to trial. In terms of judgment dated 27.7.1995 passed by the learned Sessions Judge, Hamirpur, H.P. in Sessions Case No. 12 of 1993, titled as State versus Surjit Kumar and others, accused persons stand acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that in the year 1988 Smt. Neelam Kumari daughter of Sh. Ram Nath (PW-3) and Smt. Kamla Devi (PW-4) was married to Amarjit Singh (accused No. 3), brother of Surjit Kumar (accused No. 1) and son of Smt. Rattani Devi (accused No. 2). Out of the wed lock one son was born. Smt. Neelam was residing at the matrimonial house in the village and accused Amarjit Singh was serving in the Army. On 24.10.1991 Smt. Neelam consumed poison (Aluminium Phosphide) and was got admitted by the accused in the Community Health Centre, Barsar where she was attended to by Dr. Parveen (PW-1) who informed the police about the incident vide written message (Ext. PA). The incident occurred in the presence of accused No. 3 who was on leave. During the course of hospitalization Smt. Neelam remained unconscious and as such her statement could not be recorded. Accused No. 3 informed his inlaws and Smt. Kamla Devi (PW-4) alongwith her brother Sh. Sita Ram (PW-5) and Sh. Kishori Lal came to the hospital. Eventually at about 7 p.m. on 25.10.1991 Smt. Neelam expired in the hospital. Upon receiving telephonic message about the illness of his daughter, PW-3 reached his village from Jallundhar where he was gainfully employed. He reached on 26.10.1991 but lodged a complaint (Ext. PF) with the police on 28.10.1991 on the basis of which F.I.R. (Ext. PF/1) of the same day was duly registered under Sections 304-B and 498-A of the Indian Penal Code. During investigation police took into possession the vomittance, tube having pesticide and a cloth smeared with vomit 3 and undigested vegetables from a field near the house of the accused. A letter (Ext. PG) alleged to have been written by accused No. 3 to the deceased was also taken into possession vide memo (Ext. PH) dated 1.11.1991. On 26.10.1991 police took into possession a tape-recorder (Ext. P1) vide memo (Ext. PM). Inquest report was prepared and the dead body was taken to the District Hospital, Hamirpur where post mortem was performed by Dr. K. C. Kaushal (PW-2) and Dr. Wattan Singh who gave their report (Ext. P4). As per the report (Ext. PE) of the forensic science laboratory Smt. Neelam died of consumption of pesticide (aluminium phosphide). With the completion of investigation challan was presented in the Court for trial. 3. Accused Surjit Kumar and Rattni Devi were charged for having committed offences punishable under Sections 304-B and 306 of the Indian Penal Code and accused Amarjit Singh was charged for having committed an offence punishable under Section 304-B of the Indian Penal Code to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 14 witnesses and the statements of the accused persons under Section 313 Cr. P.C. were also recorded. One witness in defence was examined by the accused. 5. The learned Sessions Judge, Hamirpur acquitted all the accused persons of the charged offences on the ground that prosecution failed to establish that there was any positive evidence 4 inspiring confidence to prove the allegations made by the prosecution. The accused were given benefit of doubt. 6. From the statement of Dr. Parveen (PW-1) and Dr. K. C. Kaushal (PW-2) as also the MLC (Ext. PB) and the post mortem report (Ext. P4) it is not in dispute that Smt. Neelam died of consumption of poison i.e. Aluminium Phosphide an insecticide which is generally used for preventing damage to the grains from the pests. The deceased who was brought to the hospital on 24.10.1991 remained unconscious till the time she expired on 25.10.1991 at about 7.25 p.m. 7. From the version of PW-1 it is evident that statements of some of the relatives of the deceased who were present in the hospital were recorded by the police. This fact is also narrated by PW-4 mother of the deceased as also PW-5 her maternal uncle. Investigation in this case was carried out by Inspector Amar Nath (PW-12) and Sh. Baldev Raj (PW-7). None of these police officials have deposed that they had recorded the statement of the relatives in the hospital. The relevance of this fact becomes significant and material for the reason that it was only on the basis of complaint (Ext. PF) made by PW-3 on 28.10.1991 that F.I.R. was registered on the said date. What were these statements made by the relatives and why they have not been placed on record has not been explained. These statements would have disclosed the allegations, if any, levelled against all or any one of the accused persons. Or was it that someone else was named. PW-4 and PW-5 admit that they 5 were informed about the illness of the deceased by the accused persons and that they remained in the hospital from 25.10.1991 till the death of the deceased. They admit that they did not inquire anything from the Doctors or the nurses as to why the deceased was hospitalized. However, PW-4 admits that in the hospital itself she had come to know that her daughter had consumed poison. Now if these witnesses knew about this fact and in the hospital had disclosed to the police about the dowry demands and the harassment caused by the accused then why did the police not register any F.I.R. at that time. There is no explanation for the same. 8. F.I.R. in the present case, appears to have been registered only after due deliberation and consultation. This fact is evident from the statement of PW-3 who has deposed as under:- “… I had consulted my brother Sita Ram and Pardhan Parma Nand on 27.10.91 and thereafter on 28th I made a report to the police. Pardhan met me during noon time on 27.10.91. My brother was already in the house on 26th.” 9. All this, in our considered view has rendered the prosecution version to be extremely doubtful. 10. Before we further examine the case on merits the settled position of law needs to be discussed. 11. It is a settled position of law that there should be reasonable nexus between cruelty and suicide. It has to be 6 substantiated, established and proved on record. Cruelty has to be of such a gravity as is likely to drive a woman to commit suicide. Suicide alone would not establish that it was occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide. Mere assumption or demand of dowry by itself in given circumstances may not amount to cruelty. The harassment has to be with a definite object i.e. to meet any unlawful demand. Every act of cruelty is not punishable. There must be evidence to show that soon before the death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of natural or accidental death so as to prove that the death had occurred otherwise than in normal circumstances. The expression “soon before” the occurrence is very relevant, where Sections 113-B and 304-B IPC are pressed in to service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case statutory presumption would arise. The expression “soon before” would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 7 12. 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 court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.” 13. 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 8 established or not. [Mohd. Hoshan A.P. & Anrs. Vs. State of A.P. (2002) 7 SCC 414]. 14. 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. 15. 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 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. 16. In Sham Lal versus State of Haryana, (1997) 9 SCC 759, their lordships of the apex court said that it is imperative for 9 invoking the legal presumption under Section 113-B of Evidence Act for attracting the provisions of said Section and fastening with penal liability upon the accused under Section 304-B, I.P.C. and before that prosecution has to prove that “soon before her death”, the wife was subjected to such cruelty or harassment. In somewhat similar and identical facts the apex court found that the accused could not be convicted of the offence under Section 304-B, I.P.C. 17. Now in his statement (Ext. PF) recorded under Section 154 Cr. P.C. PW-3 has stated that on 26.10.1991, at Jallundhar he learnt that his daughter was seriously ill. Accordingly he proceeded for his native place and reached on 27.10.1991 where he learnt that his daughter had passed away on 25.10.1991 in the hospital at Barsar. At the time of solemnization of the marriage of the deceased sufficient dowry had been given to the accused persons. However, after the marriage whenever his daughter used to visit his house she would always complain to him, to his wife and other relatives that she was subjected to harassment by all the accused persons for having brought insufficient dowry and articles such as godrej almirah and tape recorder. Accused Rattani Devi used to harass the deceased frequently by stating that her parents had not given her any gold ornaments at the time of marriage. At the instance of his daughter and on the demand of her in laws he had purchased and given in dowry one tape recorder. This was done two years prior to the incident. However due to scarcity of money further dowry articles could not be given. The accused persons had 10 been treating his daughter with cruelty which was the cause of harassment and agony for her. The cause of death is directly attributable to the nonfulfillment of the dowry demands. Due to the harassment and misbehaviour of the accused persons the deceased was instigated to consume poison. 18. To prove the said fact prosecution has relied upon the version of PW-3, PW-4 and PW-5. On the question of dowry demand the relevant portion of examination in chief of PW-3 reads as under:- “At the time of the marriage of my daughter Neelam Kumari, I had given the dowry according to my capacity. She used to visit my house after the marriage and she used to remain there for one or two days. Durig this time she used to complain that her husband Amarjit, Surjit and her mother-in-law used to torture her. They insisted upon her to have the tape-record which was not brought in Dowry. After about six months, I purchased the tape-record and gave it to my daughter. But thereafter, Rattani Devi demanded the golden chain and Godrej Almirah was demanded by Amarjit and Surjit accused present in the Court. I could not afforded. The accused persons used to torture Neelam Kumari for not bringing these items.” 19. In cross examination he further states that 20 days prior to her death deceased had complained of being tortured by the accused persons for having brought insufficient dowry. This obviously is an improvement as he admits this fact not to have been 11 recorded in his statement (Ext. PF) with which he was confronted. He further admits that none of the accused persons had directly made any demand of dowry after the marriage. He further admits that he did not complain about the same to any of his relatives, the panchayat or to anyone else. He thought that the accused persons would mend their way. But this version does not inspire confidence. It is not the case of the prosecution that the accused persons had been counselled or had been asked by this witness or anyone else to mend their behaviour or that there were any assurance on the part of the accused persons in this regard. His version that he had purchased a tape-recorder six months prior to the incident is contradicted by his own statement (Ext. PF) wherein he has categorically stated that the tape recorder was given two years prior to the occurrence of the incident. 20. On this point version of PW-4 is more or less the same. The relevant portion of her examination in chief reads as under:- “Whenever she used to visit, she used to complain that she was being tortured by the accused persons for not bringing the dowry the Godrej Almirah, tape-recorder and the gold ornaments. Amarjit, Surjit and Rattani Devi had been torturing her. We gave tape- recorder which was a foreign made. I can recognize it if shown to me, then said it was sent by me Dewar from foreign country to my husband at Jalandhar. I did not see it. It was handed over by my husband to the accused persons from Jalandhar itself. We could not provide the gold ornaments or the Godrej Almirah. On 12 account of this, my daughter was un-happy in the house of her in-laws.” 21. Now she has contradicted the statement of PW-3 according to whom the tape recorder was purchased by him and then handed over to his daughter. In cross examination she states that 13 days prior to the death of the deceased, accused Amarjit Singh had visited their house where she had inquired from him as to why his mother (accused No. 2) was torturing the deceased. Accused Amarjit did not respond to the same. Importantly she does not make any grievance of torture against accused No. 1 and accused No. 3. Thus she totally demolishes the prosecution case. Even otherwise this version of hers does not inspire confidence for the simple reason that this fact is not mentioned in her statement (Mark-X) with which she was confronted. She further admits that no grievance about the alleged torture was ever made with the Panchayat, members of the Beradari (brotherhood) or anyone else. 22. Statement of Sh. Sita Ram (PW-5) is more or less on the lines narrated by PW-3 and PW-4. 23. In our considered view the statements of these witnesses do not establish that “soon before” the occurrence of the incident the accused persons had made any demand of dowry or that any dowry article was given to the accused persons. Noticeably the allegations of torture and harassment are vague and unspecific with reference to time, place and manner. According to PW-3 dowry 13 demand was met two years prior to the occurrence of the incident whereas according to PW-4 it was six months. Even with regard to these dowry demands their version cannot be relied upon. Had the deceased visited her parents and complained about the harassment and dowry demands immediately before her death PW-3 would have definitely got this fact recorded in the complaint. There is nothing on record to prove that soon before her death, the deceased was subjected to cruelty or harassment in connection with any dowry demand or that the accused persons, in any manner had abetted commission of crime of suicide. 24. PW-3 produced a letter (Ext. PG) alleged to have been written by accused No. 3 to the deceased. This letter is dated 2.9.1991. This letter is nothing but an advisory written by the husband to his wife. It is reflective of love, affection and care which accused No. 3 had for the deceased and their child. Deceased appeared to be under stress. From this letter it cannot be proved, beyond reasonable doubt, that the accused had made any demand of dowry or that the deceased was subjected to any cruelty or harassment. There may have been some instances of nagging or other reasons which would have been the cause of annoyance, irritation or harassment to the deceased, but certainly it cannot be attributed due to dowry demand. 25. Prosecution has placed on record letter (Ext. PW 6/A) which was presented by accused No. 3 to his superior officer on 6.1.1992. In this letter the said accused has undoubtedly admitted 14 to have slapped his wife twice on her face. Apparently the deceased had refused to wash his clothes which had provoked him. However in our considered view even from this it cannot be said that the charge against the accused persons stands proved beyond reasonable doubt. Accused No. 3 in his statement under Section 313 Cr. P.C. has come out with a defence that the letter was written on the asking of the police officials as he had been assured that no case against him would be made out. The defence appears to be probable for the simple reason that name of the accused was added later on in the report under Section 173 Cr. P.C. In this regard the statement of the Investigating Officer (PW-12) gains significance who has deposed as under:- “… From the information given by Kamla and Sita Ram, nothing incriminating came against the accused pesons including the demand of dowry etc. Ram Nath P.W. on his arrival on 28.10.91 supplied the incriminating circumstances against the accused persons which were reduced into writing in his statement Ext. PF. During the hospitalisation of Neelam I was there, the mother of the deceased Kamla and uncle Sita Ram were also there.” 26. The Apex Court in Bhagwan Dass versus Kartar Singh and others, AIR 2007 SC 2045, has held that in the absence of any proof of abetment, if the wife commits suicide then the very fact that the husband had been harassing the wife due to their 15 differences, per se would not attract the provisions of Section 306, I.P.C. 27. The ratio laid down in Ramesh Kumar (supra) squarely applies to the instant case. 28. What was the immediate cause of provocation prompting the deceased to have committed suicide is not evident from the record. Dowry demands such as godrej almirah and gold chain is alleged to have been made. Had it been made over a period of time then certainly deceased would have made a grievance about the same with her sisters, brother, friends or relatives. They have not been examined. 29. It is not the case of the prosecution that after the deceased had consumed poison the accused persons did not bother to save her life. In fact they took her to the hospital and gave her the best possible treatment. No grievance was ever made with regard to the quality and nature of the treatment given to the deceased. The witnesses who were informed by the accused were present in the hospital all along. Last rites were also performed by the accused. 30. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus 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 persons has resulted 16 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. September _23_, 2010 (PK)