Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 563 (HP)

HANS RAJ v. STATE OF H. P.

2013-06-19

DEV DARSHAN SUD

body2013
JUDGMENT DEV DARSHAN SUD, J. 1. THE appellants challenge his conviction for offences under Sections 306 and 498-A read with Section 34 of the Indian Penal Code (hereinafter referred to as 'the IPC') for causing the death of Soma Devi alias Seema Devi, wife of the first appellant and daughter-in-law of the second appellant. 2. THE prosecution case is that they abetted the suicide of the deceased, who was being subjected to cruel treatment for not bringing adequate dowry. Soma Devi, who was daughter of PW1 Mast Ram and PW4 Phulan Devi, was married to the accused Hans Raj in January, 2000. The case then proceeds that 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. she was treated well for about 5/6 months, whereafter the accused started maltreating her and demand of Rs. 80,000/- was made by them which according to the prosecution was the expenditure spent by the accused on the solemnization of the marriage. PW1 Mast Ram father of the deceased was unable to fulfill this demand. In October, 2000 the deceased visited her parents and stayed there for 10/15 days. Dhani Ram, father of accused Hans Raj, came to take her back and assured PW1 Mast Ram as also PW4 Phulan Devi, the parents of the deceased, that she would be treated properly with all due love, care, respect and affection by his family. On the next morning, he left for his duty at 6 AM and when he returned home, he learnt that Dhani Ram had taken his daughter-in-law with him. The case then proceeds that after 6/7 days, Mast Ram PW1 was informed that Soma Devi was missing. He searched for her and on the next day, her shawl, shoes and darati (sickle) were recovered from the river side which articles were identified by him. He lodged FIR Ext.PC alleging that the deceased committed suicide accusing the appellants of maltreatment and cruel behaviour towards the accused persons. 3. THE prosecution examined eight witnesses in all. Adverting to their testimony, the learned trial Court on the evidence of PW1 Mast Ram, PW4 Phulan Devi and PW3 Santosh Kumar, which according to the prosecution was the direct evidence of cruelty and maltreatment, and on the corroborative evidence of PW2 Prem Singh, medical evidence of PW8 Dr. 3. THE prosecution examined eight witnesses in all. Adverting to their testimony, the learned trial Court on the evidence of PW1 Mast Ram, PW4 Phulan Devi and PW3 Santosh Kumar, which according to the prosecution was the direct evidence of cruelty and maltreatment, and on the corroborative evidence of PW2 Prem Singh, medical evidence of PW8 Dr. S.P. Bhangal, Chemical Examiner report Ext.PX, convicted the accused sentencing them:- Under Section 306 IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs. 5000/-. In case of default of payment of fine, further undergo rigorous imprisonment for a period of six months. Under Section 498-A IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs. 5000/-. In case of default of payment of fine, further undergo rigorous imprisonment for six moths. 4. IT is these findings which are now challenged in this appeal. Adverting to the evidence of PW1 Mast Ram, PW4 Phulan Devi, the Court holds that the deceased was treated well by the accused for the first 6/7 months after the marriage and thereafter both the accused started maltreating her for not meeting the demand of Rs. 80,000/-, which according to them had been spent on the solemnization of the marriage. He states that he was a poor person and unable to meet this unwarranted demand of the accused. He then corroborates the facts that the deceased had come to him and thereafter taken by the accused Dhani Ram on the assurance that he will treat her well and after /7 days she was found dead. He says that the deceased had committed suicide because of the maltreatment meted out by the accused. 6. PW4 Phulan Devi corroborates this evidence. PW3 Santosh Kumar states that his house is adjoining that of Mast Ram. About two years prior to the date when his statement was recorded, Dhani Ram came to the house of PW1 Mast Ram as also his (PW3) house. On the next day, he took his daughter-in- law to his house. He stated that Mast Ram did not state anything about harassment of his daughter. He was declared hostile and was then cross examined at length by the prosecution. On the next day, he took his daughter-in- law to his house. He stated that Mast Ram did not state anything about harassment of his daughter. He was declared hostile and was then cross examined at length by the prosecution. On the corroborative evidence, the Court considers the statement of PW2 Prem Singh who stated that he and Ram Lal joined police investigation and they identified shawl Ext.P1, shoes Ext.P2 and sickle Ext.P3 which were recovered from the banks of the river. PW8 Dr. S.P. Bhangal conducted the post-mortem states in his report Ext.PH that the deceased had died due to asphyxia, the exact cause could not be stated but drowning could not be ruled out. He states that no poison was found in the stomach, liver etc. The Chemical Examiner's report Ext.PX states that there was no poison in the contents of stomach, liver and other organs sent for examination. 5. THE Court, on the statements of PW1 Mast Ram and PW4 Phulan Devi, father and mother of the deceased, holds that they corroborate the maltreatment meted out to the deceased as there are no contradictions in their statements. The Court holds that the report Ext.PC also contains the same allegations. 6. LEARNED counsel appearing for the appellants urges that barring these statements, there is no proof for demand of any money least of all for dowry. At best, the case of the prosecution is that demand of Rs. 80,000/- was a reimbursement for the expenses incurred on the marriage. This does not constitute dowry but was compensatory in nature if the submission made by prosecution is accepted. Learned counsel has placed reliance on Appasaheb and another vs. State of Maharashtra (2007)9 SCC 721 which decision was reiterated in Modinsab Kasimsab Kanchagar vs. State of In Modinsab's case the Karnataka and another JT 2013 (4) SC 41. Court holds that demand of Rs. 10,000/- for repayment of loan to Society cannot be considered as dowry within the meaning of Section 304-B IPC, but nonetheless the Court proceeded to convict the accused for offence under Section 498-A read with Explanation (b). But before invoking this principle what is to be considered in the present case is as to whether the deceased was in fact subjected to cruelty which in fact left no option with her, but to end her life. But before invoking this principle what is to be considered in the present case is as to whether the deceased was in fact subjected to cruelty which in fact left no option with her, but to end her life. Reliance was placed on the decision of the Supreme Court in Bhaskar Ramappa Madar and others vs. State of Karnataka (2009)11 SCC 690 holding that demand for adoption of a son did not constitute a demand for dowry to attract the provision of Section 498-A IPC. 7. I have given my anxious consideration to the submissions. True, there is no dispute with this proposition as to what the Supreme Court decides what constitutes a demand for dowry, but nonetheless if the demand becomes consistent and the accused persists in harassing the deceased to pay that amount which ultimately drives the deceased to commit suicide leaving no other option; surely it would constitute abetment to commit suicide. But, I do not find that evidence on record substantiates the demand for money or dowry. Where and on what basis, this demand is made is not clear from the evidence. I also find that the father and mother of the deceased have adopted a very nonchalant attitude towards the purported harassment of the deceased. This is not to say that their evidence is to be considered as that of an accomplice but nonetheless some cloak of protection should and ought to have been placed around the deceased if what is stated by these witnesses is the correct state of affairs. 8. IT is now well settled that evidence is to be assessed on consistency and not in isolation. This proposition of law is now well settled in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another (2003)8 SCC 752 , Thanu Ram vs. State of Madhya Pradesh, (2010)10 SCC 353 and C. Magesh and others vs. State of Karnataka (2010)5 SCC 645 . Adverting to the law on the point as to what constitutes the instigation. In Ramesh Kumar vs. State of Chhattisgarh (2001) 9 SCC 618 the Court holds : "20. 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. 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 to being spelt out. The present one is not a case where the accused had his acts or omission or by a continued course of conduct created such circumstances that the deceased was 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. 21. In State of W.B. v. Orilal Jaiswal (1994)1 SCC 73 this Court has 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 her 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." (at p. 629) Still adverting to the case in hand the Court holds that teasing by the accused of the deceased, ill-treating her for her mistakes which could have been pardonable and turning her out of the house, also once beating her inside the house at the odd hours of nights amounts to cruelty within the meaning of Section 498-A IPC. On Section 113-A of the Evidence Act, the Court holds that in order to attract the provision, it must be shown (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years form the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. 9. On Section 113-A of the Evidence Act, the Court holds that in order to attract the provision, it must be shown (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years form the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. 9. IN Mankamma vs. State of Kerala (2009)10 SCC 164 the Supreme Court considers in detail the parameters for invoking Section 306 IPC including the nature and extent of proof. The Court holds :- "16. In the matter of offence under Section 306 IPC we would expect much stronger evidence than what is presented. True it is that the evidence about what happens within the four corners of wall is not available to the investigating agency. But in this case, very strangely, the investigating agency has not proceeded against the husband against whom there was a very strong suspicion. The investigating agency has instead made a scapegoat of the old mother perhaps trying to rely on the age-old concept of bickering between the mother-in-law and daughter-in-law. That is not the universal truth. The courts below should have therefore in such a matter appreciated the evidence with discerning eyes. The evidence should have been weighed with more care and the finding should have been arrived at that but for such ill-treatment by the accused, the deceased would not have committed suicide. Such would be the standard of proof in the matter under Section 306 IPC. It is indisputably true that the court has to appreciate the evidence with an open mind and not being driven by the age-old concepts. (at p. 169) 10. LEARNED Additional Advocate General places reliance on the decision of the Supreme Court in Thanu Ram vs. State of M.P. (2010)10 SCC 353 . The proposition of law as laid down therein cannot be disputed. But what the Supreme Court was also seized of Thanu's case is also the dying declaration of the deceased. This is the distinguishable feature in the present case. Adverting to this case, I cannot persuade myself to hold that the appellants are responsible for causing harassment to the deceased to the extent that she had no other choice but to end her life. The medical evidence points out that the deceased had died due to asphyxia which could be possible by drowning. Adverting to this case, I cannot persuade myself to hold that the appellants are responsible for causing harassment to the deceased to the extent that she had no other choice but to end her life. The medical evidence points out that the deceased had died due to asphyxia which could be possible by drowning. The clothes, sickle and shoes were found on the river bank, as is evident from Ext.P-4 to Ext.P-9. The possibility of the deceased having slipped and then fall in river cannot be ruled out. If the deceased went to commit suicide there was no occasion to carry the sickle with her. In fact the demand of Rs. 80,000/-, which was stated to be for compensating the accused for marriage expenditure, does not stand established from the record. There should and ought to have been some link evidence to show that this amount was actually spent on the marriage which is totally lacking. There is no evidence for the basis of this demand. The medical evidence is inconclusive. It does not stand established that the deceased in fact committed suicide or died accidently by drowning. There is no evidence on record to show that the deceased was subjected to cruel treatment either as an isolated act or as a consistent pattern of behaviour forcing her to end her life. This appeal is accordingly allowed. The judgment of learned Sessions Judge, Bilaspur is quashed and set aside. Bail bonds furnished by the accused-appellants are discharged.