IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Rev.No. 201 of 2003. Date of Decision: 5.8.2010. _______________________________________________ Surinder Singh. ….Petitioner. Versus State of H.P. & others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the appellant : Mr. K.B.Khajuria, Advocate. For Respondent-1. : Ms. Ruma Kaushik, Addl. Advocate General. For Respondent-2 Ms.Kiran Lata Sharma, Advocate. Dev Darshan Sud, J.(Oral). This case is a chequered history. Vide judgment dated 31.3.1998 the Judicial Magistrate, Ist Class, Nurpur, District Kangra, convicted the petitioner, Harbans Lal, Smt. Basant Devi, Vijay, Pal Singh and Nimmo for offences under Section 498-A of the Indian Penal Code. One other accused, namely, Smt. Saristha Devi, with whom the petitioner is supposed to have developed a illicit relations, was acquitted by the trial Court. The charges against the accused persons were framed under Sections 494, 109 and 498-A of the Indian Penal Code. Whether reporters of the Local papers are allowed to see the judgment? yes. 2 Against the judgment, all the convicted accused preferred an appeal which was disposed of by the learned Additional Sessions Judge, Kangra at Dharamshala on 16.3.2001, who accepted the appeal and the case was remanded for trial afresh in accordance with law. The acquittal of Smt. Sarishta Devi was not challenged in these proceedings. Subsequently, the case was again tried by the learned Judicial Magistrate, who acquitted all the accused vide judgment dated 31.3.1998 except the petitioner herein who was convicted under Section 498-A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of six months and pay fine of Rs.5000/-. An appeal preferred by him has been dismissed by the learned Sessions Judge. No appeal has been preferred against the acquittal of the other accused. The prosecution case in brief is that the petitioner was married to complainant Nirmala Devi (PW1), who alleged that after the solemnization of the marriage from which two children were born, namely, Gauram and Saurav, the accused including his parents and brother-in-law etc. were maltreating her, subjecting her to physical violence. So much so, they in connivance with each other have assisted the petitioner to perform second marriage with Sarishta Devi. The allegation is that the fondness and likeness expressed by the petitioner to this Sarishta Devi was the cause of maltreatment and before this fact came to the fore, they were leading a happy life. 3 On the evidence on record, the learned trial Court disbelieved the story of the complainant in so far as the maltreatment meted out by Harbans Lal, Smt. Basant Devi and Vijay are concerned, therefore they were acquitted of the offences. It is only the petitioner herein who was charged and convicted for offences under Section 498-A I.P.C. The foundation of the fact for the prosecution is the maltreatment meted out to the complainant who stated in her evidence that she was thrown out of the house by the petitioner because of his preference for Sarishta Devi with whom he developed illicit relations. So much so, she even witnessed the ceremony of marriage which was performed inside a room where all the accused were present and she was a mute spectator watching the entire ceremony of “Hawan” etc. through the window. She could not disclose the name of Pandit/ Priest, who had performed this ceremony. She states that on ‘Karvachoth’, rather than honouring the sentiments of the wife in accordance with the Hindu customs, she was beaten up and then turned out of the house. She tried to corroborate this from the statement of CW1 Kulwant Singh who states that he met the complainant at her house but did not have any talk with her but later on he was informed by the complainant that she had actually been beaten up. An attempt has also been made to corroborate this by the evidence of the so called collateral of Sarishta, CW6 Satpal, who said that he was the uncle of Smt. Sarishta Devi and that marriage had been solemnized between her and 4 the petitioner. Mark ‘A’ is the copy of affidavit which is purportedly produced on the record to prove that the ceremony of marriage has been gone through and performed. No effort has been made to prove these documents. It is well settled that unless a document is proved in accordance with law, it cannot be read in evidence. The central point for consideration is whether the complainant has been able to establish the necessary ingredients of Section 498-A of the Indian Penal Code or not. What I need to notice here is that there are false allegations of extra marital sexual relations between the petitioner and Smt. Sarishta Devi. This fact need not detain this court any further as she has already been acquitted for offences under Sections 494 and 498-A of the Indian Penal Code. On the other aspect, the learned court below completely ignored the fact that when allegations of cruelty were that the complainant was being beaten up and turned out of the house in order to facilitate the marriage of the petitioner with Shristha and that all the accused have acted in concert, it is not understood on what ground the conviction of the petitioner can now be sustained. It could either be if there were acts of cruelty singularly attributed to the petitioner which were established on record alluinde of the participation by the other accused. The case of the complainant had to be considered and had to stand on its own strength when she categorically states in her evidence that it was all the accused 5 who have acted jointly to harass her and threw her out of the house. An objection has been taken by the learned counsel appearing for the respondent that this court in exercise of its powers under Section 397 and 401 of the Indian Penal Code will not re-appreciate the entire evidence. True, this principle of law is well established. As I have noticed from the evidence above, the factum of marriage or even adultery is not established. The person, with whom the adultery was supposed to have been committed, has been acquitted of all offences. The so called complaint made by the brother of the complainant in the Panchayat also do not establish any cruelty. I find from the evidence on record that baring the bald assertion of the complainant that she was harassed for dowry, there is no evidence on the record. Having found the other accused persons as not guilty, it cannot be said that the demand of dowry was made solely by the petitioner. There is no evidence to support this charge. In Bhaskar Lal Sharma and another Vs. Monica (2009) 10 SCC 604, the Court stresses that the ingredients of the offences have to be clearly established before conviction under Section 498-A of the Indian Penal Code. The Court holds: “38. The scope of the aforementioned provision came up for consideration in some of the decisions of this Court. We may notice a few. In Noorjahan v. State this Court held : (SCC P. 59, paras 16-17) “16. Consequences of cruelty which are likely to drive a woman to commit suicide or to 6 cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to bring home the application of Section 498- A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of ‘cruelty’. 17. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Amendment) Act, 1983 (46 of 1983). As clearly stated therein the increase in the number of dowry death is a matter of serious concern. The extent of the evil has been commented upon the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some case, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.” It was observed in the fact situation obtaining therein : (SCC pp. 59-60, para 18) “18. So far as the present appellant is concerned, the evidence is inadequate to show that she was party to any demand for dowry. In fact, PW 1 stated that when she went to the place of her daughter the appellant was present along with A-1 and A- 2. The said A-1 demanded jewels and 7 presentation of Rs. 5000 for Ramzan. She accepted that she told A-1 and A-2 that she will send the same within a week. The next statement of this witness is very significant. She (the appellant) told that two months’ time will be sufficient for offering the presentation. In other words, she did not made any demand for dowry. That aspect has been accepted by PW 1. Significantly, this witness in her cross-examination had admitted that the appellant is residing at Coimbatore for the last 35 years. She has categorically admitted that while she went to the house of her daughter, she (the appellant) was not present. Therefore, there is no evidence to show that the appellant was either present when the demand was made or she herself made any demand.” 39. In Sushil Kumar Sharma v. Union of India this Court held: (SCC pp 285 & 287-88, paras 10 & 19) “10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘CrPC’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty. 19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the 8 accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. If the cry of ‘wolf’ is made too often as a prank, assistance and protection may not be available when the actual ‘wolf’ appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalized a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to 9 circumstantial evidence has to be kept in view.” (p.p.617-619) In the present case, what I find is that the complainant has failed to establish the factum of second marriage adultery or demands of dowry or harassment by the petitioner. In these circumstances I hold that there is no evidence to establish second marriage of the petitioner with Saristha Devi. So much so her evidence is totally lacking to show as to whether the petitioner was living in adultery. The conclusions arrived at by both the courts below are totally perverse for the reason that it was either all of the accused who could be convicted on the evidence or none at all. This revision petition is accordingly allowed. The bail bonds furnished by the petitioner shall stand discharged. (Dev Darshan Sud), Judge. August 5, 2010(R)