State of Himachal Pradesh vs Sukhdev

Sanjay Karol, J.—Assailing the judgment dated 10.4.2008, passed by learned Addl. Sessions Judge (II), Kangra at Dharamshala, H.P., in Sessions Case No. 16-N/VII/2007 (Sessions Trial No. 15/2007), titled as State of Himachal Pradesh vs. Sukhdev & 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 Sukhdev (accused No. 1) was married to Smt. Usha Devi (deceased) on 14.12.2006. Since inception of their marriage, deceased was subjected to cruelty. Also dowry demands were made by her husband and father-in-law Kali Dass (accused No. 2). Sukhdev who was an alcoholic would quite often assault the deceased, who apprised her parents about the same. As a result of atrocities of the accused, on 3.2.2007 deceased committed suicide by hanging herself. Incident of death was reported to the police by Arun Soni (PW-3) on the basis of which entry in Daily Diary Register (Ext. PW-10/A) was recorded. Inspector Nathu Ram (PW-10), S.H.O. of the concerned police station proceeded to the spot where Kuldeep Raj (PW-1) brother of the deceased, got his statement recorded u/s 154 Cr. P.C. (Ext. PW-1/A) on the basis of which F.I.R. No. 49/2007, dated 3.2.2007 (Ext. PW-10/C) was registered at Police Station Nurpur, Distt. Kangra, H.P., under the provisions of Section 304-B read with Section 34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961, against the accused persons. Inquest report (Ext. PW-5/B) was prepared. Post mortem of dead body was got conducted from Dr. Gurmit Singh (PW-5) and report (Ext. PW-5/C) taken on record after receipt of the report of the chemical analyst (Ext. PW-10/F). With the completion of necessary investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused were charged for having committed offences punishable under the provisions of Section 304-B read with Section 34 of the Indian Penal Code as also Section 4 of the Dowry Prohibition Act, 1961, to which they did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined eleven witnesses and statements of the accused u/s 313 Cr. P.C. were also recorded, in which they pleaded innocence and false implication. No evidence in defence was led by the accused.

Appreciating the testimonies of prosecution witnesses, trial Court acquitted the accused of the charged offences. Hence the present appeal.

Having heard learned counsel for the parties as also perused the record, we are of the considered view that in the instant case no ground for interference is made out. The Court below has correctly and completely appreciated the testimonies of prosecution witnesses, as also other material placed on record.

That Smt. Usha Devi (deceased) was married to accused No. 1 on 14.12.2006 is not in dispute. She died on 3.2.2007 is also not in dispute. According to Dr. Gurmit Singh (PW-5) who conducted post mortem of the deceased, cause of death is asphyxia due to hanging which is ante-mortem in nature. On physical examination of the body, Doctor observed as under:

"Dead body of adult female with face cyanosed and head tilted to left side dried up dribbled marks of saliva on the left angle of the mouth and left cheek. Ligature mark present in the upper part of the neck above the thyroid cartilage which is brownish dry and parchment like. It is six inches x 1/2 inches extending from right side of the neck 3 cm below right ear-lobule up to left side of the neck 6 cm below the left ear lobule. On dissection hemorrhage present in it."

It is not the case of prosecution that deceased was murdered by the accused persons.

Before we deal with the testimonies of prosecution witnesses, we shall discuss the statement of law on the point.

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 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. 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 death had occurred otherwise than in normal circumstances. The expression "soon before" the occurrence is very relevant, where Sections 113-B and 304-B IPC are pressed in to service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case the statutory presumption would arise. The expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. 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 purpose of statutory provision is to prevent ''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).

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 that:

"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 "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 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."

Sections 304-B and 498-A IPC are both distinct and separate offences. Though ''cruelty'' is a common essential ingredient of both the offences, but u/s 304-B, it is only a ''dowry death'' that is punishable and such death should have occurred within seven years of the marriage. In the statute, no such period is mentioned in section 498-A IPC. The husband or his relative would be liable for subjecting the woman to ''cruelty'' any time after the marriage. The legal position is absolutely clear that a person charged and acquitted u/s 304-B can be convicted u/s 498-A IPC. [ Smt Shanti and Another Vs. State of Haryana, and State of U.P. Vs. Santosh Kumar, .

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

"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 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 that:

"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, ]

In Sham Lal Vs. State of Haryana, , their lordships of the apex court said that it is imperative for invoking the legal presumption u/s 113-B of Evidence Act for attracting the provisions of said Section and fastening with penal liability upon the accused u/s 304-B, I.P.C. and before that prosecution has to prove that "soon before her death", the wife was subjected to such cruelty or harassment. In somewhat similar and identical facts the apex court found that the accused could not be convicted of the offence u/s 304-B, I.P.C.

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

Careful scrutiny and examination of the prosecution witnesses namely Kuldeep Raj (PW-1), Raj Kumar (PW-2), brothers of the deceased, as also, Machlo Devi (PW-6), mother of the deceased and Pinky Devi (PW-8) would only reveal the prosecution case not to have been established, beyond reasonable doubt. No doubt in their examination in chief they have deposed that accused had subjected the deceased to cruelty in terms of dowry demands. Golden chain and colour television were demanded. Also accused No. 1 would beat the deceased after taking liquor, but however, in cross examination they have contradicted themselves.

Kuldeep Raj (PW-1) admits it to be correct that at the time of engagement, marriage or thereafter accused did not make any dowry demand. Deceased did visit her parental house alongwith her husband twice. Also accused No. 2 visited their house. Unambiguously he admits it to be correct, that no dowry demands were ever made by the accused persons. Witness also admits that deceased had stayed at her parental house on the occasion of lohri celebrations. Witness admits it to be correct that "during inquiry by the police on the spot it was found that accused Sukh Dev had gone to answer the call of nature and in the mean time Usha Devi had gone ahead where her dead body was found lying on the spot". Witness further admits that no complaint whatsoever was ever made with the Panchayat about the alleged acts of cruelty, dowry demands etc. Also witness admits that complainant party never spoke with the accused about the grievances made by the deceased. What further emerges from the testimony of this witness is that accused not only took the deceased to the hospital but also performed her last rites.

Raj Kumar (PW-2) admits it to be correct that accused Sukhdev, even when offered, never took alcohol. Testimony of this witness reveals that deceased "being newly wed", at the initial stage, was not comfortable at the house of her in-laws and as such had wanted to visit her parental house. Further this witness admits it to be correct that "my sister disclosed to me that she could not get herself comfortable being newly wed at the initial stage in the family of her in-laws and thereby she intended to accompany to her parental house. It is correct that when I asked the husband and father-in-law of my sister so as to permit her to accompany me then both of them told me that she had just come in her in-laws house and further sought to allow her to remain in her in-laws house and thereafter she was to be send after two days to her parental house. It is correct that my sister Usha Devi felt and taken to her heart that she was not allowed to accompany to her parental house."

Also from the testimony of this witness it appears that deceased could not digest the idea of not being allowed to visit her parental house as in the initial stages, she was finding it difficult to adjust in her matrimonial home. It is not that deceased was never allowed to visit her parental house. In fact, witness admits to have been informed by the accused that deceased would be sent to her parental house after two days. She may not have been very comfortable but then it would not necessarily mean that she was subjected to cruelty or driven to commit suicide. Normal wear and tear of life is not cruelty. Non adjustment also cannot be cruelty particularly if not purported by hostile or indifferent actions.

Machlo Devi (PW-6) admits that her daughter (deceased) had visited her house for two days at the time of lohri. This witness admits it to be correct that "when Usha Devi came to my house on Lohri festival she disclosed that she was not feeling homely in her in-law''s house as she felt the new place in her in-law''s house initially. It is correct that when the funeral was performed to the dead body of the deceased the accused contributed and arranged all rituals to the last rites including payment of Rs. 3000/-. It is correct that we were knowing the poverty of the accused and the accused persons were also knowing the poverty of our family as well since both the families were similarly situated economically. It is correct that at the time of engagement of the deceased as well as at the time of marriage and thereafter the accused did not make any demand of any dowry from us."

Further from the testimony of Pinky Devi (PW-8) it appears that the families were on visiting terms and there was no acrimony between them. Also no dowry demands were made in the presence of this witness.

Arun Soni (PW-3), Ward Panch, in his unrebutted testimony has categorically deposed that the accused were taking proper care of the deceased.

There is nothing on record to show the proximity of the alleged acts of cruelty and maltreatment to the date of alleged offence. No doubt the accused have not been charged for offence punishable under the provisions of Section 498-A of the Indian Penal Code but then what is cruelty and harassment has been considered by the apex Court taking into account the relevant provisions of Section 498-A I.P.C. The offence under the provisions of Dowry Prohibition Act, 1961, also cannot be said to be made out. The culpability of the accused in relation to the charged offences cannot be said to have been proved in accordance with law. There is no iota of evidence with regard to the alleged demands, direct or indirect, of any dowry much less television and other articles.

Thus from the conjoint reading of testimonies of prosecution witnesses, as also position of law discussed herein earlier, it is quite evident that prosecution has not been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. It cannot be said that findings returned by the court below are not borne out from record, are perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence. Testimonies of the prosecution witnesses, in fact, are in favour of the accused.

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.