Himachal Pradesh High Court
Sarwan Kumar vs State Of Himachal Pradesh on 6 July, 2000
Equivalent citations: 2000CRILJ4002
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. The appellant, Sarwan Kumar, stands convicted by the learned Sessions Judge, Bilaspur, vide judgment dated 1-7-l997, in Sessions Trial No. 20 of 1996 for the offence under Sections 498-A and 306 read with Section 34 Indian Penal Code. Upon such conviction, he has been sentenced as under:-
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Offence Sentence imposed
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498-A, Indian Rigorous imprisonment for two years and fine of Rs.
Penal Code 2000/-.
In default of payment of fine, simple imprisonment for a
period of six months.
306 Indian Indian Rigorous imprisonment of five years and fine of Rs.
Penal Code 2000/-.In default of payment of fine, simple imprisonment
for a period of six months.
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Whether reporters of Local Papers may be allowed to see the Judgment? Yes.
2. The two substantive sentences of imprisonemnt were ordered to run concurrently.
3. The prosecution story, in brief, may be thus stated. The deceased Smt. Soma Devi daughter of PW-5 Smt. Prabhi Devi, was married to the appellant about three years before her death. After the marriage, the deceased Smt. Soma Devi started living with her husband and his parents in village Manan, Paragana Sunhani, Tehsil Ghumarwin, District Bilaspur. The deceased Smt. Soma Devi committed suicide by hanging herself on 22-5-1995.
4. On the basis of the statement made by PW-4 Smt. Veena Devi, brother's wife of the deceased, under Section 154 Code of Criminal Procedure, a case for the offences under Sections 306 and 498-A, Indian Penal Code, came to be registered vide FIR No. 30 of 1994 at Police Station Shah Talai, (Ex. PW-8/A). It was stated that the deceased Smt. Soma Devi, since after her marriage, was being harassed and ill-treated on trifle issues by the appellant Sarwan Kumar and his mother Smt. Krishni Devi. Unable to bear suqh harassment and ill treatment at the hands of her husband and mother in law, the deceased had committed suicide by hanging herself.
5. After necessary investigation, the appellant along with his mother Smt. Krishni Devi, and father Haru were arrested and sent up for trial.
6. The learned Sessions Judge charged the appellant and his parents for the offence under Section 202, 306 and 198-A read with pleaded not guilty and claimed trial.
7. The prosecution, in support of its case, examined eleven witnesses in all. The defence of the appellant and his parents is that of denial and false implication. It was stated that the deceased was a highly sensitive type of lady. She was not happy with the financial position of her husband and in laws since the financial position of her parents was very Sound. It was further stated that the deceased had committed suicide by hanging herself in the kitchen in their absence when they were away working in their field. One witness has been examined in defence to show that the deceased had never complained about the harassment and ill treatment, and that the appellant and his parents had never absconded after the suicide by the deceased.
8. The learned Sessions Judge acquitted the appellant and his parents of the offence under Section 202 Indian Penal Code. Haru father of the appellant, was also acquitted of. the offences under Section 306 and 498-A read with Section 34 Indian Penal Code. The appellant and his mother Smt. Krishni Devi, however, were convicted and sentence for the offences under Section 306 and 498-A read with Section 34 Indian Penal Code.
9. The present appeal was filed by the appellant as well as his mother Smt. Krishni Devi assailing the conviction and sentence imposed upon them by the learned Sessions Judge. However, since Smt. Krishni Devi has died during the pendency of the present appeal her name was ordered to be deleted from the array of the appellants vide order dated 29-6-2000.
10. While admitting that the deceased Smt. Soma Devi has died an unnatural death, that is, a suicidal death by hanging, the learned counsel for the appellant has contended that the evidence coming on record falls short of the requirement to establish the offence against the appellant either under Section 306 Indian Penal Code, or the one under Section 498-A Indian Penal Code.
11. The learned Assistant Advocate General, on the other hand, has supported the conviction and sentence imposed upon the appellant by the learned Sessions Judge for the reasons and on the grounds recorded in the impugned judgment.
12. Admittedly, it is not the case of the prosecution that the deceased was being harassed and ill treated on account of dowry.
13. In order to bring home the offence under Section 306 Indian Penal Code, against an accused, the prosecution has to establish:
(a) that the deceased had committed suicide; and
(b) that the accused abetted the commission of the suicide.
14. In view of the admitted fact that the deceased Smt. Soma Devi had committed suicide, the only question falling for determination is - whether the appellant is guilty of having abetted suicide by the deceased in any manner by his wilful conduct which is of such a nature as is likely to drive the deceased to commit suicide ?
15. "Abetment" has been defined under Section 107 Indian Penal Code, as meaning instigating any person to do that thing; or engaging in conspiracy with one or more other person(s) for doing that thing; or intentionally aiding by any act or illegal omission the doing of that thing. The word "instigate" in its ordinary meaning means to incite, set or urge on, stir up, stimulate, provoke, etc.
16. It will not be out of place to refer to Section 498-A Indian Penal Code, which deals with the offence of cruelty of the husband or relations of the husband committed towards a woman, and for which offence the appellant stands convicted and sentenced. Explanation to this section, insofar as it is relevant for the purpose of the present case, reads:-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical of the woman; or
(b) ...
17. When it is shown that a married woman has committed suicide within a period of seven years from the date of her marriage and that her husband had subjected her to cruelty, the Court may, having regard to all the circumstances of the case, presume that such suicide has been abetted by her husband or by such relative(s) of her husband.
18. Section 113-A Indian Evidence Act, 1872, provides:-
113-A. Presumption as to abetment of suicide by a married woman- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation:- For the purpose of this section, "cruelty" shall have the same meaning as in Section 498-A of the Indian Penal Code (45 of 1860)
19. Relying upon the provisions contained in Section 113-A Indian Evidence Act the learned Assistant Advocate General while supporting the conviction and sentence imposed upon the appellant by the learned Sessions Judge, has vehemently contended that on the facts and in the circumstances of the case, such an inference and presumption has to be raised for arriving at the conclusion that appellant had treated the deceased with cruelty within the meaning of Section 498-A Indian Penal Code, and thereby had abetted the suicide by the deceased.
20. It is well settled that before a presumption under Section 113-A Indian Evidence Act, can be raised, one of the ingredients, which necessarily has to be proved is that the wife was subjected to cruelty.
21. In the present case, no reliable evidence is forthcoming to prove that the deceased was subjected to cruelty and that such acts of cruelty are closely proximate in time to the time of the incident.
22. The prosecution in order to prove the cruelty has examined three witnesses, namely, PW-4 Smt. Bina Devi, the brother's wife of the deceased, PW-5 Smt. Prabhi Devi, mother of the deceased and PW-3 Nanku Ram, a neighbourer.
23. PW-3 Nanku Ram does not help the case of the prosecution. He has not stated even a word regarding the deceased being harassed and/or treated with cruelty by the appellant. He has only deposed:-
Whenever she used to come, she would never sit for a long time and used to say that her-in-laws would abuse her for going late.
24. PW-4 Smt. Bina Devi has gone to state that the deceased after about a year of her marriage, used to complain to her (PW-4) on each of her visit to her parental house about the maltreatment and harassment he caused to her on small matters. The last of such complaint was made when the deceased had come to stay for 5/6 days at her parental house during some festival about ten days before her death. PW-4 has admitted that she never disclosed about the beatings being given to the deceased by the appellant and/or his mother to anyone during the lifetime of the deceased. She has hastened to explain that she was under a vow not to disclose these facts to anyone.
25. Though as PW-4 Smt. Bina Devi has stated that when the deceased had come to her parental house during a festival she had complained about the beatings given to her by the appellant and his mother, significantly enough, PW-4 never stated this fact in her statement Ex. PW-4/A made to the police under Section 154 Code of Criminal Procedure.
26. PW-5 Smt. Prabhi Devi, the mother of the deceased, has admitted that the de-. ceased had complained to her about the beatings about six days prior to her death when she (the deceased) had come to stay in her parental house and that prior to that she had never complained about the beatings. In the words of PW-5 Smt. Prabhi Devi:-
My daughter told me about the beatings six days prior to her death when she was in our house but prior to that she did not specifically told me about the beatings but had been telling me off and on that small matters happen in every house and the girls have to bear all this.
27. Be it stated that PW-5 in her statement Ex. DC made to the police under Section 161 Code of Criminal Procedure, never stated that the deceased had complained to her about the beatings being given to her by the appellant and his mother. This part of the statement of PW-5 is clearly an improvement over the earlier statement Ex. DC.
28. In Indian society a daughter is always very close to her mother and in whom she has the confidence in respect of everything. Had the deceased been harassed and subjected to cruelty, as alleged by the prosecution PW-5 would have been the first person to whom the deceased must have confided and complained about the harassment and cruelty being caused to her by her husband and/or the mother-in-law. Admittedly, the deceased never complained to her mother.
29. There is nothing on the record to show that the deceased was very close to and fond of PW-4 Smt. Bina Devi, her sister-in-law and that she would have confided in her in preference to her own mother. It is in the statement of PW-4 that the marriage of the deceased had taken place just three months after her own marriage. Therefore, there was hardly any time for the deceased to have developed intimacy with and confidence in PW-4.
30. The evidence coming on record does not establish that the deceased was being harassed and treated with cruelty by the husband. Therefore, the presumption available under Section 113-A Indian Evidence Act, cannot be drawn in the present case.
31. Much reliance has been placed by the learned Sessions Judge while convicting and sentencing the appellant on the fact that the appellant had absconded immediately after the occurrence and he could be apprehended only after more than one year of the occurrence. The appellant in his statement under section 313, Code of Criminal Procedure, in answer to question No. 25 has explained and stated as under:-
I on that day went to Delhi to bring my brother-in-law and when I came to village then the false case was made out against us. As we apprehended danger to our life and property, we went to our relative's house in village Balegaon, Police Station Talai. In tehsil Ghumarwin, it has become routine that in case whenever bride commits suicide then the ladies of Mahila Mandal burn the properties of the bride's-in-laws and they also beat them. We did not abscond from the area. We are Chamar, Harijan and PW Narain Dutt is a Brahmin by caste and he has involved us falsely.
32. The Investigation Officer PW-10 Sub-Inspector Bhola Ram, has categorically admitted that it has come in his investigation that the appellant had gone to Delhi to bring Amar Singh, brother of the deceased. This Amar Singh, has neither been associated during investigation nor has been examined in Court to show whether the appellant had gone to him and if so, whether he came back from Delhi or not. Amar Singh was a material witness to show if the appellant had infact absconded and/or to disprove the defence version that the appellant had gone to Delhi.
33. The learned Sessions Judge has also drawn adverse inference against the appellant from the fact that the appellant had not even attended the funeral of the deceased. The learned Sessions Judge has observed in Para 24 of his judgment in the following terms:-
They have even not attended the cremation which clearly indicates their involvement in the present case.
34. Suffice to say that no adverse inference could have been drawn against the appellant on this score. There is not even an iota of evidence to show that the appellant and/or his parents were not present at the time of cremation.
35. The learned Sessions Judge has also erred in laying the onus on the appellant to explain under what circumstances, the deceased Smt. Soma Devi had committed suicide. The onus was heavily on the prosecution to show that the appellant had abetted the commission of suicide by the deceased.
36. As stated above, PW-10 the investigation officer has admitted that as per his investigation the appellant had gone to Delhi to bring his brother in law (the brother of the deceased) on the day of occurrence. Therefore, it cannot be said that the appellant had not tried to inform the parents of the deceased. There is no evidence on the record to show either that the appellant and/or his parents never tried to inform PW-5 the mother of the deceased about the occurrence or as to who had informed her.
37. The learned Sessions Judge has also taken note of the fact that no explanation had been offered by the appellant as to how and by whom the dead body was brought to the ground floor from the first floor and as to who had removed the rope. In view of the admitted case of the prosecution that the deceased had committed suicide, the questions as to who had removed the rope, and how and who brought the dead body to the ground floor are of no significance and consequence.
38. On the facts and in the circumstances of the case, the prosecution has not been able to prove beyond reasonable doubt that the deceased was being harassed and treated with cruelty by the appellant and that the suicide was instigated by him.
39. It has been held by the High Court of Madhya Pradesh in Padamabai v. State of M.P. 1987 Cri LJ 1573 while dealing with the meaning of the words "abetment" that (Para 14):-
Stray domestic quarrels, perfunctory abuses by mother-in-law, to her daughter-in-law in the Indian society, crude and uncultured behaviour by the in-laws or the husband towards his wife being mundane matters of normal occurrence in the traditional Joint Hindu Families, will not go to form and constitute "abetement" unless these acts of conduct singly or cumulatively, are found to be of such formidable and compelling nature as may led to the commission of suicide or may facilitate in a singular and prime manner, the commission of the same.
40. The explanation put forth by the appellant is that the deceased was short-tempered and hypersensitive and was not happy due to the poor financial condition of her husband and in-laws. That is why she had taken the extreme step of putting an end to her life.
41. It is well settled that a plausible explanation put forth by the accused, even though not proved is sufficient. The explanation put forth by the appellant, on the facts of the case, appears to be plausible and though not proved is worthy of acceptance.
42. Resultantly, the present appeal is allowed. The conviction and sentence imposed upon the accused by the learned Sessions Judge are set aside and the appellant is acquitted of the offences under Section 306 and 498-A. Indian Penal Code.
43. The appellant, who is lodged in jail undergoing sentence, be released forthwith, if not required in any other case. The amount of fine, if already deposited, be refunded to him forthwith.