Rajinder Kumar vs State of H.P.

Sanjay Karol, J.—Assailing the judgment dated 25.5.2004, passed by learned Addl. Sessions Judge, Mandi, H.P., in Sessions Trial No. 7 of 2001, titled as State vs. Rajinder Kumar & another whereby accused Rajinder Kumar (appellant herein) has been convicted for having committed offences punishable under the provisions of Sections 306 and 498A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and fine of Rs. 20,000/- for offence punishable u/s 306 IPC (in default of payment of fine to further undergo simple imprisonment for a period of six months) and also rigorous imprisonment for a period of two years and fine of Rs. 5,000/- for offence punishable u/s 498A IPC (in default of payment of fine to further undergo simple imprisonment for a period of three months), appellant filed Revision Petition under the provisions of Sections 397/401 of the Code of Criminal Procedure, 1973, which was ordered to be registered as Criminal Appeal by this Court in terms of order dated 15.12.2010. It is the case of prosecution that appellant Rajinder Kumar was married to Smt. Lata Devi (deceased). From the beginning, appellant Rajinder Kumar and his family members subjected Smt. Lata Devi with cruelty and harassment. They physically assaulted her and raised dowry demands. On 30.9.1999 Smt. Lata Devi consumed poison. Appellant approached Sh. Amar Singh (PW-3), who advised them to take her to the hospital. At the Regional Hospital Sarkaghat Dr. Vikas Gupta (PW-5) Medical Officer attended to her. Police was informed. HC-Megh Singh moved an application (Ext. PW 5/A) for recording statement of Smt. Lata Devi. She was certified to be unfit, hence the same could not be recorded. In the night intervening of 30.9.1999 and 1.10.1999, Smt. Lata Devi expired. Her parents were informed about the same. On 1.10.1999 Sh. Mast Ram (PW-1), father of deceased Smt. Lata Devi lodged a complaint (Ext. PW 1/A) with the police on the basis of which F.I.R. 191/99, dated 1.10.1999 (Ext. PW 8/A) was registered at Police Station Sarkaghat, Distt. Mandi, H.P. under the provisions of Sections 306 and 498A of the Indian Penal Code. Post mortem report (Ext. PX) was taken on record. Report of Forensic Science Laboratory, Junga (Ext. PW 9/E) was also obtained by the police. Two/three months prior to her death, Smt. Lata Devi had lodged a complaint with Sh. Amar Singh (PW-3). She had been subjected to cruelty by her husband and mother-in-law. With the completion of investigation, challan was presented in the Court for trial.

Accused Rajinder (appellant herein) and his mother Smt. Hardei were charged for having committed offences punishable under the provisions of Sections 306 and 498A of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as ten witnesses and statements of the accused u/s 313 of the Code of Criminal Procedure were also recorded, in which they pleaded false implication. However, accused did not lead any evidence in their defence.

Appreciating the testimony of prosecution witnesses, trial Court fully acquitted accused Hardei but convicted accused Rajinder Kumar (appellant herein) on all counts, and sentenced, as aforesaid.

The appellant assail the judgment on the ground that: (i) testimony of Sh. Mast Ram (PW-1) and Smt. Brahmi Devi (PW-2) is hearsay and as such no reliance can be placed thereupon; (ii) there is no disclosure of any specific instance of dowry demand/harassment by the witnesses; (iii) in the F.I.R. there is no reference of dowry demand; (iv) allegation of instigation, cruelty and dowry demand is an afterthought as none was reported to any of the authorities; (v) in the absence of any continuous and persistent acts of cruelty, an isolated incident, which also is not in close proximity to the incident in question cannot be said to be an act of abetment of the crime.

Before these contentions are dealt with it would be beneficial to discuss the settled principles of law, laid down by the Apex Court.

It is a settled position of law that there should be reasonable nexus between cruelty and suicide. It has to be substantiated, established and proved on record. Cruelty by itself would not amount to having committed an offence punishable u/s 498A IPC. A reasonable nexus has to be established between cruelty and the suicide in order to make good the offence of cruelty under the penal laws. 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. 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. 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.

In Girdhar Shankar Tawade Vs. State of Maharashtra, the Apex Court has held that "the basic purport of the statutory provision is to avoid ''cruelty'' which stands defined by attributing a specific statutory meaning attached thereto. In order to ascribe a meaning to the word ''cruelty'' as is expressed by the Legislatures: Whereas explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the Legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of ''cruelty'' in terms of section 498(A)." �. �. �.

Section 498A is attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman Admittedly, the finding of the trial court as regards the death negated suicide with a positive finding of accidental death. If suicide is left out, then in that event question of applicability of explanation (a) would not arise - neither the second limb to cause injury and danger to life or limb or health would be attracted in any event the willful act or conduct ought to be the proximate cause in order to bring home the charge u/s 498(A) and not de-hors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge u/s 498A.

Explanation (b) of Section 498A in no uncertain terms records harassment of the woman and the statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce 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 - there is total absence of any of the requirements of the statute in terms of section 498(A)." �.. �.. ��

� � Charges under sections 306 and 498A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other.

To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge u/s 498A. The legislative intent is clear enough to indicate in particular reference to explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of explanation (b) The letters by itself though may depict a reprehensible conduct, would not however, bring home the charge of section 498A against the accused Acquittal of a charge u/s 306, as noticed hereinbefore, though not by itself a ground for acquittal u/s 498A, but some cogent evidence is required to bring home the charge of section 498A as well, without which the charge cannot be said to be maintained.

In Ramesh Kumar Vs. State of Chhattisgarh, the Apex Court has also held that "Sections 498A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence u/s 498A and may also, if a course of conduct, amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished u/s 498A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned."

In Sushil Kumar Sharma Vs. Union of India (UOI) and Others, the Apex Court has held as under:

The object for which Section 498A 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 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 (in short "Cr.P.C.") 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.

One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two sections i.e. Section 306 and Section 498A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the woman concerned to commit suicide, while under the former provision suicide is abetted and intended.

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 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 generalised 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 circumstantial evidence has to be kept in view.

In State of West Bengal Vs. Orilal Jaiswal and another, the Apex Court has held as under:

In a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of S. 498A, I.P.C. and S. 113A of Indian Evidence Act. Although, the court''s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. The doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter.

The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.

[Emphasis supplied]

The Apex Court further cautioned that 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.

In Arun Vyas and Another Vs. Anita Vyas, the Apex Court has held that the essence of offence in Section 498A is cruelty. It is a continuing offence and on each occasion on which the wife is subjected to cruelty, she would have a new starting point of limitation.

In Kundula Bala Subrahmanyam and Another Vs. State of Andhra Pradesh, the Apex Court has held as under:-

The role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacuna in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women.

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 and Another Vs. State of A.P.,

In State of Andhra Pradesh Vs. M. Madhusudhan Rao, the Apex Court has 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 498A 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 498A 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 u/s 498A I.P.C.

In Balram Prasad Agrawal Vs. State of Bihar and others, 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.

In Arvind Singh Vs. State of Bihar, the Apex Court has held as under:-

The word ''cruelty'' in common English acceptation denotes a state of conduct which is painful and distressing to another. The legislative intent in Section 498A is clear enough to indicate that in the event of there being a state of conduct by the husband to the wife or by any relative of the husband which can be attributed to be painful or distressing. The same would be within the meaning of the section. Torture is a question of fact. There must be a proper effort to prove it.

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 Chhattisgarh,

The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behavior may amount to cruelty and harassment in a given case. Gananath Pattnaik Vs. State of Orissa,

Crime took place in the year 1999. Parties hail from rural background. Prosecution evidence has to be appreciated in the backdrop of the aforesaid legal position.

It is not in dispute, nor can it be disputed, that deceased Smt. Lata Devi was married to appellant Rajinder Kumar.

The fact that Smt. Lata Devi died on account of consumption of Aluminium Phosphide Insecticide stands established on record through the testimony of Inspector Manoj Kumar (PW-9) who has proved the post mortem report. Dr. Vikas Gupta (PW-5), who first attended to the deceased at Regional Hospital Sarkaghat has proved MLC (Ext. PW 5/B) from which it is also evident that patient was not oriented to time, place and person. She was not responding to verbal commands. Her pulse and blood pressure were not recordable.

It also cannot be disputed that Sh. Mast Ram (PW-1), father of the deceased lodged report (Ext. PW 1/A) with the police, disclosing act of maltreatment meted out by the appellant to the deceased. Significantly it stands disclosed that deceased approached the Pradhan, disclosing acts of cruelty suffered at the hands of the appellant.

Sh. Amar Singh, Pradhan (PW-3) has categorically deposed that two and a half months prior to the incident, appellant had quarreled with the deceased. At night Smt. Lata Devi came to his house and informed him that her husband had a fight with her. He gave blows with a danda. She also retaliated and to save herself from further beatings, sought refuge in his house. Villagers also assembled on the spot. Daughter-in-law of his neighbour Sh. Sukh Ram, came and took the deceased to her house. In the morning when he visited the house of Sh. Sukh Ram, he was informed that accused had taken away the deceased. Third day after this incident, he visited the house of the accused, who, in the presence of the deceased, sought forgiveness. He warned the appellant and asked him not to ill-treat his wife in future. Thereafter none of the parties approached him till the incident in question, when appellant came to his house and informed that his wife had consumed poison. The witness went to the spot and asked the accused to immediately take her to the hospital. Later, on the asking of police, he joined investigation. From the house of accused incriminating substance was recovered.

Significantly this witness has not been cross examined on any of the material points, including the incident which occurred two and a half months prior to the incident in question. It is only suggested that no injury was found on the body of the deceased. The defence taken by the accused, as is borne out from the line of cross examination, is that deceased consumed poison for the reason that accused handed over money to his mother, which was objected to by the deceased.

Evidently it stands established on record, beyond reasonable doubt, that appellant had given beatings to his wife and thereafter sought forgiveness. Pradhan (PW-3) had warned the appellant and asked him not to further ill-treat his wife.

The fact that appellant ill-treated his wife also stands established through the testimony of Sh. Mast Ram (PW-1) who, unequivocally has deposed that since the time of solemnization of marriage, not only accused demanded dowry but also ill-treated his daughter. He had advised his daughter to inform the Pradhan, if she was subjected to cruelty by the appellant. From the testimony of this witness, it is evident that accused did not inform him that Smt. Lata Devi had expired. Through his relatives, on 1.10.1999 he learnt that his daughter was admitted at Regional Hospital, Sarkaghat. Only when he went there, he was informed, by the staff, that she had expired. While the dead body was being taken for cremation he reported the matter to the police.

Statement of his wife Smt. Brahmi Devi (PW-2) is also to similar effect, though she has further deposed that deceased informed her about dowry demands and other acts of cruelty.

No doubt these witnesses have not given any specific instances with regard to dowry demands and acts of cruelty. But conjoint reading of their testimonies would only reveal that deceased was subjected to cruelty and dowry demands from the very beginning. The acts were continuous which fact, in fact, stands corroborated through the testimony of the Pradhan (PW-3). The fact that these witnesses did not bring the matter to the notice of the authority(s) cannot be taken as a ground to disbelieve them or discredit their testimonies. After all, PW-1 has deposed that he had advised his daughter (deceased) to report the matter to the Pradhan, which in fact she did to save herself from the physical assaults. Whether the appellant had given money to his mother, contrary to wishes of his wife or not has not been established on record though it only shows that some dispute was there between the parties on a particular issue. The defence also cannot be said to be probabilized. There was no reason for the deceased to have consumed poison. It has not come on record that deceased was hot headed, temperamental or in any manner unhappy with life.

At this juncture it be also observed that even though an independent witness Sh. Sarvan (PW-4), who happened to be neighbour of the accused, initially did not support the prosecution, but later on admitted having made statement to the police, with which he was confronted, to the effect that two and a half months prior to death, appellant had given severe beatings to his wife, who had taken refuge in the house of the Pradhan. He had also intervened.

Inspector Manoj Kumar (PW-9) has established on record recovery of phosphide tablets from the house of the appellant.

It cannot be said that testimony of PW-1 and PW-2 is hearsay and not admissible in evidence. Deceased had directly informed her parents about the atrocities committed by the accused. The offence took place within seven years of marriage. Immediately after the wedding, appellant subjected the deceased to cruelty. He gave her beatings on several occasions. Parents have categorically deposed that demand for reimbursement of expenditure incurred on the wedding was met. It is not always important for the parents to report the matter to the police. After all, no parent, coming from such socio-economic rural background would want marriage of their daughter to be put in jeopardy. They were hoping for things to improve. At the same time, they did not want to intervene in the matrimonial life of their daughter and had wanted her to handle the matter, without any embarrassment, at her end. They had prepared their daughter to report the matter to the Pradhan, which she did. Cruelty, as is established on record, is continuous and persistent and is in close proximity with the time of her death.

Much can be said about the conduct of the accused in the instant case. Having learnt that deceased had consumed poison, in stead of straightaway taking her to the hospital, appellant went to the house of the Pradhan which is at a distance of 1� k.m. It is only when Pradhan reached the spot, under his advice, deceased who was critical, was taken to the hospital. Also appellant never bothered to inform his in-laws about the said fact. Why so? has not been explained on record. Accused also did not inform them about the death of their daughter. Parents learnt about this fact from third parties. When the body was being taken for cremation, case was registered and that too on the asking of the parents of the deceased.

Absence of dowry demands in the F.I.R. would not render the prosecution case to be doubtful. After all report was lodged by the father at the time when body was taken for cremation. His anguish, pain and mental state of affairs cannot be ignored. In no uncertain terms he has disclosed complicity of the accused to the crime.

Parents met the expenses incurred at the time of wedding. There was demand made by the appellant, conveyed through the deceased. If a person is treated with cruelty, mental and physical, since the inception of her marriage, it cannot be said that there is no harassment with a definite object on the part of the appellant. It is not a case of natural or accidental death. The acts of cruelty also cannot be said to be remote in point of time. Continuously and persistently, with intent, deceased was subjected to cruelty. To my mind there is no doubt that prosecution has been able to prove the guilt of the accused, beyond reasonable doubt. Trial court based its decision legal evidence. It is not a case of harassment simpliciter. Harassment was caused with the purpose of coercing the deceased to meet the unlawful demands of dowry. Her torture was so unbearable that she took away her life.

Learned counsel for the appellant has also referred to and relied upon the following decisions: Randhir Singh and Another Vs. State of Punjab, Sohan Raj Sharma Vs. State of Haryana, Bhairon Singh Vs. State of Madhya Pradesh, Amalendu Pal @ Jhantu Vs. State of West Bengal, Gangula Mohan Reddy Vs. State of Andhra Pradesh, Sita Ram, Gita Ram and Duni Chand Vs. State of H.P., Moti Ram vs. State of H.P., Latest HLJ 2009 (HP) 432; State of H.P. Vs. Ajinder Singh and Others,

Each case has to be considered on its own facts. Principles laid down therein, have been considered on the applicable facts. I do not find any illegality, infirmity or perversity in the judgment passed by the Court below. It cannot be said that the Court below erred in correctly and completely appreciating the evidence led by the parties, resulting into travesty of justice.

For all the aforesaid reasons, appeal is dismissed. Bail bonds furnished by the appellant are cancelled. He shall surrender before the trial Court to serve out the sentence. Pending applications, if any, also stand disposed of.