State of Himachal Pradesh vs Joginder Singh

Sanjay Karol, J.—Assailing the judgment dated 30.7.2008, passed by learned Addl. Sessions Judge, Fast Track Court, Una, District Una, H.P., in Sessions Case No. 08/2007 RBT 30/07 (Sessions Trial No. 35/07), titled as State of H.P. vs. Joginder Singh & another, whereby respondents-accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 18.8.2006 at about 2.35 p.m., information was received at Police Station Amb, that Smt. Promila Devi wife of accused Joginder Singh had committed suicide by consuming some poisonous substance. On receiving this information SI-Om Parkash (PW-13) immediately rushed to the spot where he recorded statement (Ext. PW-2/A) of Arvind Rana (PW-2), son of the deceased, under Section 154 Cr.P.C., on the basis of which F.I.R. No. 166/06, dated 18.8.2006 (Ext. PW 13/B) was registered at Police Station Amb, Distt. Una, under the provisions of Sections 498A and 306 of the Indian Penal Code, against the accused. PW-13 conducted necessary investigation on the spot by preparing inquest reports (Ext. PW-13/C and 13/D) and collected other incriminating material. Dead body was sent to the district hospital Una, where post mortem was conducted by Dr. Sunil Sharma (PW-10), who issued report (Ext. PW-10/B). Bed sheet (Ext. P1) and container of poison (Ext. P2) were recovered by the police. Incriminating articles including viscera were sent for chemical analysis to the F.S.L. Junga from where report (Ext. PW-10/A) obtained. Apparently accused consumed aluminum phosphide, which was the cause of death. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused Joginder Singh was charged for having committed offences punishable under the provisions of Sections 498A and 306 read with Section 34 of the Indian Penal Code, whereas, accused Krishna Mehta was charged for having committed an offence punishable under the provisions of Section 306 read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined sixteen witnesses and statements of the accused under Section 313 Cr.P.C. were also recorded, in which they took plea of innocence and false implication. No evidence in defence was led by the accused.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offences. Hence, the present appeal by the State.

We have heard Mr. B.S. Parmar and Mr. Ashok Chaudhary, learned Addl. Advocate Generals assisted by Mr. Vikram Thakur, learned Dy. Advocate General on behalf of the State as also Mr. N.K. Thakur, learned Senior Advocate assisted by Mr. Surinder Sharma, learned Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offences.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.C. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.""

That deceased died on account of consumption of aluminum phosphide is not in dispute. Dr. Sunil Sharma, (PW-10) who conducted the post mortem, on receipt of report of the chemical analyst (Ext. PW-10/A), issued post mortem report (Ext. PW-10/B) opining that deceased died on account of poisoning, so caused by consumption of aluminum phosphide which lead to cardio pulmonary failure.

To establish the fact that accused Joginder Singh subjected the deceased to physical and mental cruelty and also in furtherance of common intention of co-accused Krishna Mehta abetted the deceased to commit suicide, prosecution relies upon the testimonies of Arvind Rana (PW-2), Anu Rana (PW-3), Ashit Rana (PW-4), Jagdev Thakur (PW-6), Harish Chand (PW-7), Sanjay Verma (PW-8) and Shobha Devi (PW-9). They are either very close relatives, friends or neighbours.

Now all these witnesses except for Arvind Rana (PW-2) have not supported the prosecution case. They were declared hostile and extensively cross examined by the Public Prosecutor. Despite thereof, nothing fruitful could be elicited from their testimonies which would, even remotely, suggest involvement of the accused, in the alleged crime. Through the testimonies of these witnesses it is evidently clear that parties were married for more than 20 years. Children born out of wed-lock were grown-up and also married. Apparently their does not appear to be any immediate cause or reason sufficient enough, for the deceased to have committed suicide. There is nothing on record to even remotely suggest complicity of the accused in the alleged crime. That they prompted the deceased to commit suicide and subjected her to cruelty cannot be said to have been established on record.

At this juncture we deem it appropriate to deal with the statement of law on the point.

Law with regard to cruelty as defined under Section 498-A of the Indian Penal Code and abetment to commit suicide, so as to fall within the scope of Section 306 of the Indian Penal Code is now well settled.

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 under Section 498-A 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 498-A 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 under section 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 under section 498-A.

Explanation (b) of Section 498-A 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 498-A 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 under section 498-A 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 498-A against the accused Acquittal of a charge under section 306, as noticed hereinbefore, though not by itself a ground for acquittal under section 498-A, but some cogent evidence is required to bring home the charge of section 498-A 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 498-A 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 under section 498-A 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 under section 498-A 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:

"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 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 "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.

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 498-A 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]

In the very same decision 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 498-A 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.

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 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."

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 498-A 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 behaviour may amount to cruelty and harassment in a given case. Gananath Pattnaik Vs. State of Orissa,

Prosecution evidence has to be appreciated in the backdrop of the aforesaid legal position.

Arvind Rana (PW-2), elder son of the deceased, categorically states that the family used to reside together. In fact, on 18.8.2006, when deceased consumed poison, he was home. In fact, at about 12.30 p.m. he had borrowed money from his mother whereafter she went to her room and bolted it from inside. Some time during the day his wife knocked the door and informed that the deceased had consumed poison. He immediately broke open the door and found his mother lying dead on bed. He is categorical that before his mother consumed poison, no quarrel took place. In fact, he is not aware of any reason, for the deceased, to have consumed poison. Suggestion put by the prosecution that accused had illicit relations with co-accused Krishna Mehta stands categorically denied by him. In fact, he states that she is residing with her husband and both the families were in visiting terms with each other. Witness categorically states that on 18.8.2006 accused Joginder Singh had left for his duty, meaning thereby that he was not home himself prior to, or soon before, the incident.

Testimony of Anu Rana (PW-3) wife of PW-2 is also to similar effect. Ashit Rana (PW-4) is the second son of the deceased who admits that he was a drug addict which, in fact was the cause of tension for his mother. Also his father had got him treated for the same.

In the present case what we find that is even Jagdev Thakur (PW-6) and Shobha Devi (PW-9), brother and bhabhi of the deceased respectively, have not supported the prosecution. As per their version, deceased never made any grievance of harassment, meted out, on the hands of accused Joginder Singh. Prosecution unsuccessfully through the testimony of PW-6, tried to prove one note, allegedly written by the deceased. Even this witness admits the same not to have been written in his presence. Handwriting of the deceased has not been proved on record. Even otherwise note cannot be said to be inculpatory in any manner. There is no reference of any harassment, cruelty or misdemeanor on the part of accused persons.

Neighbours Harish Chand (PW-7) and Sanjay Verma (PW-8) categorically deny any quarrel having taken place between the accused and the deceased on 17.8.2006.

Thus, having perused the testimony of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, that accused subjected the deceased to cruelty or abetted her to commit suicide, by leading clear, cogent, convincing and reliable material on record. It cannot be said that findings returned by court below are not borne out from the record, are perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence.

The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that the trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.