Om Prakash vs State of Himachal Pradesh

Bhawani Singh, J.—The accused challenges his, conviction by the Additional Sessions Judge (I,) Kangra Division, in Sessions Trial No. 2 of 1987. By this decision on 13-8-1987, the accused has been convicted u/s 306 of the Indian Penal Code and has been sentenced to, rigorous imprisonment for a period of four years and to pay a fine of Rs. 500/-.

Briefly, the necessary facts are that the accused had married the deceased on 22-2-1985. On 16-12-1985, while in the house of the accused, the deceased committed suicide by consuming Aluminium Phosphide (a poisonous insecticide). The matter was reported by Smt Rewati Devi (PW. 12), who is the mother of the deceased to the Police. It was stated therein that the deceased had been subjected to maltreatment and cruelty by the accused and the members of his family. Consequentially, a case u/s 306 of the Indian Penal Code was registered against the accused. The prosecution alleges that the accused and the members of his family had treated the deceased with cruelty-mental as well as physical-for getting more dowry thus, bringing the case within the purview of Section 306 of the Indian Penal Code. The accused, when questioned denied the charge and claimed to be tried.

The prosecution examined a number of witnesses in support of its case. The accused, on the other hand, admitted that the deceased was his wife and the marriage had been sole missed on 22-2-1985 and the deceased was in his house on the day she committed suicide. However, it has been denied that the deceased was subjected to cruelty and that the accused abetted the commission of this offence. The accused has also examined Shri Phangan Ram in defense.

After the trial, the Court concluded that the deceased was subjected to cruelty as defined u/s 113A of the Indian Evidence Act and the accused had, therefore, abetted the commission of suicide. In this way, the trial finally ended in the aforesaid conviction of the accused.

Sh. Harish Behal, who appears for the accused, has very ably and seriously assailed the judgment of the trial court in various ways and he urges that the conviction of the accused is liable to be set-aside, since the judgment suffers from palpable errors of law and facts, thus, causing complete miscarriage of justice. It is contended that the relations between the accused and the deceased were cordial and there was no occasion for the deceased to have gone to the extent of committing suicide. Further, there is no cogent and convincing evidence pointing out the cruelty to the deceased at the hands of the parents of the accused. Reference to letters exchanged between the accused and the deceased and taken into consideration by the trial court for convicting the accused has also been made and it is contended that the learned Sessions Judge has taken a myopic view of the relationship between the parties by extracting a few sentences out of the mass of communication between them. I see sufficient force in these submissions of Sh. Harish Behal, learned Counsel for the accused. The accused was posted at Manikaran at the relevant time. It is in evidence that he had once taken the deceased to this place to live with him. Thereafter it appears that the deceased had been going quite often and living most of the time with her parents in her village than with the parents of the accused. The accused brought her back and on 16-12-1985, at about 10.40 p. m, she was taken to Br. B.K. Pahwa (P W-4), a private medical practitioner, in an unconscious state. This witness states that the deceased was brought to him as an acute case of vomiting since 4.00 P.M. and he was told that the deceased was in the fields when the vomiting started. Looking to the condition of the deceased, the case was referred to the hospital for further treatment at 1.15 a .m. He did not suspect that it was a case of poisoning nor it was disclosed to him by the attendants or the relations who had brought the deceased to him.

Dr. B.D. Sharma (P. W-1) conducted the post mortem examination of the deceased and issued the post mortem certificate (Ex. P-A). In his opinion, the cause of death of the deceased, in this case, was due to Aluminum Phosphate poi soiling.

At this stage, it is worth noticing that there is no evidence] of any quarrel having taken place'' between the accused and the deceased or between the deceased and the family of the accused. So, it is difficult to infer that such a quarrel might have taken place as a result of which the deceased was compelled to commit suicide. There is no evidence pointing out that the deceased was being ill-treated by the father of the accused. In these circumstances,, it appears rather probable that the deceased might have insisted on living with the husband at Manikaran and on his reluctance, she may have consumed the poison. It indicates that she was unduly sensitive arid even routine happenings in family life upset her and it may be that she consumed the poison to compel the accused to take her to the place of his posting. These facts exclude the liability of the accused and the offence, he is stated to have committed, cannot be said to be the result of abetment on his part.

It is relevant to quote Section 113A of the Indian Evidence Act and Section 498A of he Indian Penal Code.

113-A Presumption as to abetment of suicide by a married woman-When the question is whether the commission of suicide by a woman 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 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 498A of the Indian Penal Code (45 of 1860).

498-A. Husband or relative of a woman subjecting her to cruelty-Who ever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation-for the purposes of this Section "Cruelty" means

(a) any willful conduct, which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

A perusal of Section 498A of the Indian Penal Code demonstrates that if any part of it can be examined in the light of the present case, it is explanation (a) to this section since (b) is not relevant as the trial Court has held that no case under this provision is made out and this conclusion, in my opinion, is correct and I uphold it. Therefore, the prosecution has failed to prove cruelty to which the deceased was being subjected to be willful. This essential requirement has not been fulfilled.

Sh. L.S. Panta, learned Deputy Advocate General submits that u/s 113A of the Indian Evidence Act, which applies in this case, the Court may presume that suicide had been abetted by the husband or any of his relation and it is for the accused to explain and establish his innocence by proving that the deceased was not subjected to any cruelty and he did not abet the commission of the offence. Although it is not possible to presume that the deceased was subjected to cruelty by the accused or his relations for want of evidence and other circum- stances, even if the application of this provision is assumed, in that event also the accused has clearly and comprehensively1. Established his innocence. I have gone through the large number of letters exchanged between the accused and the deceased. They do not anywhere suggest that the relations between them were hostile and the deceased was being subjected to cruelty (mentally or physical). Rather, the accused appears to be quite attached to her. Minor facts which have been made the basis for conviction by the learned Sessions Judge and referred to in the impugned judgment, do not point out any hostile indignation of the husband or and his father towards the deceased. The deceased has nowhere complained against the parents of the accused in her communications to the accused. The letters, if read as a whole, exclude any part played by the accused in the commission of the offence. Further minor skirmishes and convalance thereof by the parties to each other are not uncommon in family life. They happen and will go on happening in every family. But when a Court of law is faced to examine" a case" brought before it, the matter has to be examined carefully and keeping in view these casual and common facts and circus-stances of family life.

In her report to the Police, Smt. Rewati Devi (P. W.-1 2) had complained that the death of the deceased was due to mal treatment arid beatings but in her statement she improves it by saying that the maltreatment and administration of beatings to the deceased were due to the reason that the deceased had brought less dowry. This is a clear case of improvement in her version and there is an effort to make out a case of demand of dowry by the accused. To the same effect are the statements of Ishwar Dass (P. W.-10) and Urmila Devi (P. W. 13). Smt. Pawna Devi (P. W.-l4) has confined her version to the maltreatment of the deceased by the accused which fact has again been denied by Sh. Kikkar Singh (P. W.-9). The deceased had not com pained to anyone except Smt. Rewati Devi (P. W.-12). Ishwar Dass (P. W.-10), Smt. Urmila Devi (P. W.-13) and Smt. Pawna Devi (P. W.-l4) who appear to be quite interested in the prosecution of the accused, being the relations of the deceased. Their versions, therefore do not evoke any credibility in face of other clear and cogent evidence pointing out the innocence of the accused.

Looking to the conduct of the accused, it is quite natural and blameless. When, vomiting did not stop, the, accused took the deceased to a doctor for treatment. In case he had any intention to do away with her, he would not have taken steps to seek medical help. Further, he did not know the cause of the vomiting which fact could not be ascertained by Dr. B.K. Pahwa (P. W. 4) also.

On examination of the evidence on record of this case quite seriously and analytically, the opinion formed is that neither the genesis of the offence is accurately established nor there is sufficient evidence available on the record to conclude the application of Section 306 IPC Chanchal Kumari and Others Vs. Union Territory, Chandigarh, Further as already observed, mostly the witnesses are the relations of the deceased. Smt. Rewati Devi (P. W.-l2) has exaggerated the issued by improving the version she had at one time given to the Police u/s 154 Code of Criminal Procedure (Ex.P-G). Smt. Urmila Devi (P. W. l3) and Pawna Devi (P. W. 14) are also the relations of the deceased. Ishwar Dass is the Pardhan of the Gram Panchayat under whose jurisdiction Smt. Rewati Devi lives and further he states that he was told by her. No other disinterested Person has been cited in this case by the prosecution. As a matter of fact, the version of most of these witnesses suffers because they have unnecessarily tried to allege that the maltreatment and beating or cruelty was due to the demand of the accused for dowry. There is absolutely no case therefore. There is suspicion and suspicion all around which cannot take the place of proof and it is not only dangerous but also hazardous to conclude the involvement of the accused. Although there is no presumption in law that the relations are bound to make a false statement, but then as said in Dalip Singh and Others Vs. State of Punjab, and Sharad Birdhichand Sarda Vs. State of Maharashtra, that such persons have the natural tendency to exaggerate or add facts even unconsciously making it absolutely necessary for the court to examine their evidence with care and caution. The evidence of such witnesses has, therefore, to be accepted only if it stands scrutiny with more than ordinary care Ravulappalli Kondaiah and Others Vs. State of Andhra Pradesh,

As already said, much has been said about the letters (Ex. P-l and Ex. P-2) by the Trial Judge. This is not so One has to read this communication with Ors. and then form an opinion as to the whole case. If so done, one can safely conclude that there was no loveliest between the accused and his wife and his family. She has not pointed out especially as to any kind of maltreatment meted out to her. General complaints are normal and do not in any way point out that the deceased was being harassed. Looking to the conduct of Smt. Rewati Devi (P.W-12) who states that the deceased had been complaining about her maltreatment in the past but this fact was not discussed by her with anyone else, In fact, there was no such thing. She has exaggerated the matter and has not spoken the truth at all. The sensitivity that led to the commission of suicide appears to be none other than the concealed desire of the deceased to live with the husband at Manikaran instead of living with her father in law in the village. This torment was the point of discussion in the letters by the husband when he talked of settling the matter once for all. This statement in no case meant her elimination. Procurement of insecticide has not been clearly established. It is not established further that the accused was responsible for if. Recovery u/s 27 of the Evidence Act as stated by the prosecution is not legal. There is no evidence as to who actually brought it. There is also no evidence where from it was procured and at what stage it was consumed by the deceased and what created this circumstance.

Therefore, after examining the matter quite exhaustively, deeply and painstakingly, I am of the, confirmed opinion that the offence has not at all been proved against the accused and the conclusion and the conviction recorded by the learned Sessions Judge, while convicting. The accused are thoroughly inept, against the evidence on record and against the canons of interpretation and application of the legal principles applicable to the facts and circumstances of this case.

Accordingly, there is merit in this appeal and the same is allowed. The conviction and sentence of the accused is set aside. He is set at liberty. Bail bonds and surety bonds,-if any, executed by the accused at any stage of this case are hereby cancelled.