State of Himachal Pradesh vs Ravinder Kumar

Justice Sanjay Karol, Judge

For offences, which are alleged to have been committed on 20th January, 2004 and prior thereto, accused was put to trial. In terms of judgment dated 29th August, 2006, passed by Additional Sessions Judge, Fast Track Court, Una, H.P., in Sessions Trial No. 4/06 titled as State versus Ravinder Kumar, accused stands acquitted of the charged offences. It is the case of prosecution that Rachna Devi (deceased), daughter of Smt. Sita Devi (PW-3) was married to accused Ravinder Kumar on 20th April, 2003. Accused was working in Dubai. After ten days of marriage, he left his wife, i.e. the deceased, in his village in Tehsil Amb for Dubai (UAE), but returned after three months, as his mother expired. Allegedly, accused had illicit relationship with his "Bharjai" (brother''s wife), which fact was discovered by the deceased. When she confronted the accused with the same, he started physically assaulting her. He also made dowry demands. On 20th January, 2004, deceased telephonically informed her mother that the previous night she had caught the accused in a compromising position with his "Bharjai" and when she objected to the same, accused again gave her beatings. When PW-3 spoke to the accused on telephone he threatened to leave the deceased at her parental house. PW-3 kept on waiting for the accused and her daughter till late in the evening and neither the accused nor the deceased came to her house. Thereafter, she telephonically enquired about the whereabouts of her daughter and was told by a girl in the house of the accused that both the deceased and the accused had left. Lateron, same day at about 5.30 p.m., PW-3 was telephonically informed that deceased had committed suicide. PW-3 rushed to the hospital, where she found her daughter dead. She approached the police and her statement (Ex. PW-3/A), u/s 154 of the Code of Criminal Procedure, was recorded, on the basis of which, FIR No. 17 dated 20th January, 2004 (Ex. PW-9/A), under Sections 498-A and 306 of the Indian Penal Code was registered at Police Station Amb, District Una, H.P. During investigation, police discovered that after deceased consumed poison, she was taken to the Primary Health Centre, Amb, where she was medically examined by Dr. R.K. Garg (PW-1), who issued MLC (Ex. PW-1/A). Deceased was in a critical condition. Police did try to record her statement, but doctor opined that she was not fit for the said purpose. Lateron, deceased Rachna Devi died and postmortem of the dead body was got conducted by the police from Dr. D.K. Sharma (PW-2), who issued postmortem report (Ex. PW-1/D), which revealed that deceased had died due to consumption of phosphide poison. Police carried out investigation and also recorded statements of the relevant witnesses. Report of the Forensic Science Laboratory was also obtained during investigation, which revealed complicity of the accused to the alleged crime. With the completion of investigation, challan was presented in the Court for trial.

Accused was charged for having committed offences, punishable under Sections 498-A, 306 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to prove its case, prosecution examined as many as ten witnesses and statement of the accused, u/s 313 of the Code of Criminal Procedure was also recorded, in which he took up the defence that he had already purchased tickets for his visit to Dubai, which was objected to by the deceased, who did not want him to leave her alone. Such tickets are on record.

The Court below after appreciating material on record acquitted the accused of the charged offences. Hence, the present appeal.

We have heard Shri R.K. Sharma, learned Senior Additional Advocate General, assisted by Shri J. S. Guleria, Assistant Advocate General, on behalf of the State as also Shri N.K. Thakur, Senior Advocate, assisted by Shri Ramesh Sharma, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence placed on record by the prosecution. Having minutely examined the record, 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 well reasoned and is based on complete and proper appreciation of evidence (documentary and ocular) placed on record. There is neither any illegality/infirmity nor any perversity in the same.

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 498-A of the Indian Penal Code. 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 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 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 u/s 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 u/s 306, as noticed hereinbefore, though not by itself a ground for acquittal u/s 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 u/s 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 u/s 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:

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.

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.

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 lacune 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 A.P. Vs. M. Madhusudhan Rao (2008) 15 SCC 582, 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 u/s 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.

The fact that deceased was married to the accused is not in dispute. The fact that deceased died on account of consumption of phosphide is also not in dispute, which fact, in any event, stands proved on record through the testimony of Dr. D.K. Sharma (PW-2) and postmortem report (Ex. PW-1/D). That death took place within seven years of marriage is also not in dispute.

Through the testimony of Dr. R.K. Garg (PW-1) and Investigating Officer ASI Prakash Chand (PW-10), it is evident that deceased was taken to the hospital by the accused. Prompt medical aid was administered to the deceased by the accused. Upon medical examination, doctor found the pulse of the deceased to be weak and in spite of medical treatment administered to her she could not survive.

Investigating Officer, in his un-rebutted testimony, has deposed that he could not find any material with regard to the alleged illicit relationship, which the accused was having with his sister-in-law.

In order to establish the charge of cruelty and dowry demand, prosecution has heavily relied upon the testimonies of Smt. Sita Devi (PW-3), who is the mother of the deceased and Smt. Sarla Devi (PW-4), who is the real sister of PW-3.

Now, the mother (PW-3) in her examination-in- chief states that deceased was subjected to cruelty by the accused. Deceased saw the accused in a compromising position with his "Bharjai" (brother''s wife), and when whe objected, accused gave her beating. Also, accused had made a demand of Rs. 10,000/-. Who is this "Bharjai"? Now, significantly, she does not name the lady with whom accused was allegedly having such illicit relationship. It has not been conclusively proved that the accused was having only one brother, who also was married. The place of discovery of such alleged relationship has also not been disclosed by this witness in Court. We find testimony of this witness with regard to allegations of cruelty, maltreatment and dowry demand not to be inspiring in confidence at all. In Court, for the first time, this witness made allegations of dowry demand of Rs. 10,000/-, which fact is missing in the complaint (Ex. PW-3/A). That apart, this witness in her examination-in-chief admits that both the deceased and the accused were having cordial relationship and financial status of the accused was much better than that of the complainant. Accused had even constructed a separate house, adjacent to the old house, where both the deceased and the accused used to reside. Witness admits that her daughter was educated and no report with regard to harassment/cruelty/dowry demand was made with the Panchayat by the deceased. Even she did not do so. This witness admits that accused had returned from Dubai only on account of death of his mother and not that accused had wanted to meet his "Bharjai". She does not categorically deny the fact that her daughter had wanted the deceased to continue to stay at the matrimonial house and not return to Dubai. This only probablises the defence of the accused. This witness admits that both the deceased and the accused had visited her house on several occasions. Such last visit was just five-six days prior to the date of occurrence of the incident. No dowry demands were made at that time. Also, issue of illicit relationship was not raised then. Hence, her allegation with regard to dowry demand/cruelty does not appear to be true. Accused was financially well of and he was never confronted by the complainant on various aspects of cruelty/dowry demand etc.

With regard to the beating given by the accused to the accused, as has already been noticed earlier, allegations are vague and unspecific with regard to time and place. Who is this "Bharjai" with whom the accused was having illicit relationship? has not been so stated in Court. Significantly, Investigating Officer has clarified that during investigation nothing was found, which could even remotely substantiate this fact.

Coming to the testimony of PW-4, we find that she has simply tried to corroborate the version of PW-3. She mediated the marriage of deceased and the accused. She states that the deceased had telephonically informed her about the discovery of illicit relationship, which accused was having with his "Bharjai". Now, significantly, PW-3 does not corroborate this fact in her testimony. PW-3 does not even whisper that the deceased had informed PW-4 about the said incident. PW-4 also does not state that she had informed Smt. Sita Devi about the said incident. All that PW-4 states is that on 20th January, 2004, she informed Smt. Sita Devi that Rachna Devi had died. We also find that PW-4 has made improvements in Court. Her version with regard to receipt of telephonic call from the deceased appears to be an exaggeration, as this witness was confronted with her previous statement (Mark B) recorded by the police, wherein this fact was not so recorded. Hence, her testimony is neither reliable nor trustworthy.

It has come in the testimony of both these witnesses that house of the accused is situated in a Mohalla, where there are about 40-50 houses and families reside therein. Now, prosecution has not associated any one of the neighbours to verify the allegations of dowry demand, cruelty and the alleged illicit relationship of the accused. Undisputedly, both PW-3 and PW-4 were staying at different places and not in the same village. Police ought to have enquired about the same from the neighbours. Defence taken by the accused that the deceased objected to his visit to Dubai appears to be probable, as tickets were purchased by the accused much prior to the date of occurrence of the incident and deceased was not to go with the accused.

Deceased was an educated lady. She could have easily complained about the allegations of cruelty, dowry demand and maltreatment to any one of the authorities, including the neighbours or relatives of the accused. Unfortunately, mother has lost her daughter. But however, suspicion alone cannot be basis for establishing/ proving the guilt of the accused.

In our considered view, there is no local, proper and sufficient evidence on record to prove that accused caused cruelty to the deceased, which prompted her to take away her life. The element of mensrea and cruelty, harassment and dowry demand, even prima facie, cannot be said to have been established on record through the testimonies of the relevant witnesses.

Thus, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt by leading clear, cogent, convincing and reliable piece of evidence so as to prove the charged offences.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. The accused has 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., and State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted 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.