Himachal Pradesh High Court
State Of H.P. vs Pawan Kumar And Anr. on 15 December, 1999
Equivalent citations: 2000CRILJ4889
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. This is an appeal against the judgment dated 5-7-1995 passed by the learned Judicial Magistrate, 1st Class, Bilaspur whereby the accused-respondents (hereinafter referred to as 'the accused') have been acquitted of the charge under Section 498-A, I.P.C.
2. Case of the prosecution, in brief, is that PW-1 Surindera was married to accused-Pawan Kumar about 5 years before lodging of the FIR by PW-1 against the accused persons. After about a month of the marriage, accused Pawan Kumar started beating PW-1 on the pretext that she was not good looking and did not work properly. On complaint made to the parents of accused-Pawan Kumar, he was advised by his parents but in vain and he continued to beat and criminally intimidate his wife Surindera. On 9-10-1992 at about 9 p.m. accused persons and Budh Ram, husband of accused-Vidya, came on the lintel and asked Surindera to leave the house otherwise she would be done to death and thereafter beat her up. The accused is residing with the co-accused and he is being instigated by the co-accused and her husband to harass and beat Surindera. The occurrence was reported by PW-1 Surindera at Police Station, Barmana and, thus, FIR Ex. PW-1/A came into being. During investigation, the investigating agency found that accused-Pawan Kumar had illicit relations with accused-Vidya and that is the reason for which Surindera is being tortured by the accused persons and Budh Ram, husband of accused-Vidya. On being satisfied of the commission of offences under Sections 498-A, 109, 506/34, I.P.C. by the present accused and Budh Ram, police submitted a charge-sheet against them.
3. Accused-Pawan Kumar was tried on a charge under Section 498-A, I.P.C. whereas accused Vidya Devi and Budh Ram were tried for abetment of the said offence.
4. To prove the charge against the accused, prosecution examined 8 witnesses.
5. It may be pointed out that during the trial, accused Budh Ram died, hence the trial continued only against the present accused persons.
6. In their statements under Section 313, Cr.P.C. the accused denied the incriminating prosecution evidence and claimed to be innocent. However, they did not lead any evidence in defence.
7. The trial Magistrate ultimately acquitted the accused persons of the respective charges against them. Hence the present appeal.
8. I have heard the learned Addl. Advocate General for the State and the learned counsel for the accused and have also gone through the records.
9. The learned trial Magistrate has acquitted the accused persons on the following grounds :
(i) That simple beating by the husband to his wife is not sufficient to attract the provisions of Section 498-A, I.P.C. unless it is further shown that the intendment was to meet any unlawful demand for any property or valuable security;
(ii) The allegation that the accused-Pawan Kumar had illicit relation with accused-Vidya Devi is an offence under Section 497, I.P.C. and will not amount to an offence under Section 498-A, I. P. C, and
(iii) That on merits, there was no reliable and cogent evidence to prove the charges against the accused persons.
10. To appreciate grounds (i) and (ii) of acquittal supra, it is necessary to refer to the provisions of Section 498-A, I.P.C. which read as follows :
Husband or relative of husband of a woman subjecting her to cruelty :-
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation :- For the purposes of this section, "cruelty" means -
(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) harassment of the woman where such harassment is with a view to coercing 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.
11. A bare reading of the above section makes it clear that subjecting of a woman to cruelty by her husband or his relative is an offence, punishable under the aforesaid Section.
12. To constitute cruelty within the meaning of Section 498-A, I. P. C, the following has to be established;
(i) any wilful conduct on the part of the accused which is of a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical; or
(ii) harassment of the woman by the accused with a view to coercing her or her relations to meet any unlawful demand for any property or valuable security or on account of failure of the woman or her relation as the case may be to meet such demand.
13. The expression "wilful conduct" as used hereinabove, cannot be read in a narrow compass but has to be given a wider meaning so as to include any wilful conduct on the part of the accused which may drive the concerned woman to commit suicide or is likely to cause grave injury to her life, limb or health. As is the human nature, the greatest emotional torture to a spouse will be the infidelity of the other spouse. Therefore, the conduct of a husband having extramarital relations definitely will amount to such wilful conduct on the part of the husband which can, in the given circumstances, drive the wife to commit suicide or to act in a manner which may cause grave injury or danger to her life, limb or health, mental as well as physical. Similarly, it cannot be said that beating of his wife by a husband is not wilful conduct on the part of the husband which may drive the wife to commit any of the acts specified hereinabove. Beatings and threat to a wife to turn her out of the matrimonial house for the reason that husband has extra-marital relations will still be a grave wilful conduct on the part of the husband which may drive a woman to commit suicide or to cause grave injury or danger to her life, limb or health, mental as well as physical. Thus, in a case where it is proved that the husband is having extra-marital relations and as a consequence thereof he beats his wife and is bent upon to turn her out of the matrimonial house, the case will squarely fall within the ambit of Section 498-A, I.P.C. and it is absolutely not necessary to be established that such beatings were intended to secure the fulfilment of any demand for any property or valuable security.
14. The learned trial Magistrate, therefore, is wrong on a point of law while holding that extra-marital relations of a husband is not a wilful conduct on his part which may amount to an offence under Section 498-A, I.P.C. and is an offence under Section 497, I.P.C. It has to be differentiated that a wife, S when met with cruelty by the husband by having extra-marital relations, her remedy is either by seeking divorce and/or to complain under Section 497, I.P.C., because in view of the provisions of Section 198, Cr. P. C, no Court shall take cognizance of an offence punishable under Section 497, I.P.C. except on the complaint of an aggrieved person and such aggrieved person shall be the husband of the woman with whom adultery is committed or in the absence of the husband, such other person who had care of such woman on behalf of the husband at the time when such offence was committed. Thus, a wife cannot lodge a complaint against her husband for the commission of an offence of adultery under Section 497, I.P.C. but can make a complaint only under Section 498-A, I.P.C. Therefore, grounds (i) and (ii) above, relied upon by the learned trial Magistrate for acquitting the accused persons, are not sustainable.
15. However, the evidence on record reveals that the alleged acts of the accused living in adultery and beating PW-1 Surindera are not established.
16. Be it stated here that it is the case of the prosecution itself that PW-1 Surindera is residing in the house of the parents of accused-Pawan Kumar whereas Pawan Kumar who is a truck driver is residing in the house of his uncle Budh Ram and does not reside with his parents. It emerges from the statements of PW-1 Surindera, PW-4 Kasu, mother of accused-Pawan Kumar, PW-5 Jai Kishan, brother of accused-Pawan Kumar and PW-6 Munshi Ram, father of accused-Pawan Kumar, that accused who being a truck driver is an earning hand, does not give anything out of his earnings for the maintenance of his aged parents and other family members including PW-1 Surindera. It is admitted by PW-1 Surindera in her statement that the dispute between accused-Pawan Kumar and them which results in quarrel is that accused-Pawan Kumar does not pay anything to his family members and this leads to quarrel and beatings between accused-Pawan Kumar on the one hand and his family member on the other. Therefore, the evidence on record has to be appreciated against this admitted aspect of the matter.
17. A perusal of the FIR Ex. PW-1/1 reveals that the only allegation against the accused persons therein is that accused-Pawan Kumar used to beat PW-1 Surindera at the instance of accused-Vidya and deceased Budh Ram and that he resides with them. There is no allegation about illicit intimacy between the present accused persons. These allegations have been brought on record only during the course of trial in the statements of PW-1 Surindera, PW-5 Jai Kishan and PW-6 Munshi Ram respectively wife, brother and father of accused Pawan Kumar all of whom have grievance against the accused that he does not pay anything to them out of his earnings. Evidently, these allegations which are not contained in the FIR, are an afterthought and not reliable for so many reasons apparent on the face of the record. Accused-Vidya, at the relevant time, was about 50 years of age. She is the wife of the real uncle of the accused-Pawan Kumar. Her husband Budh Ram was alive at the relevant time and said Budh Ram is also alleged to be an abettor of the acts of cruelty alleged to have been committed by accused-Pawan Kumar. The age factor, relation, Budh Ram husband of Vidya being alive at the relevant time and the accused residing in his house, renders this version highly improbable. These allegations have not been made in the FIR. For this reason also, these allegations seem to be cooked up after due deliberations between the persons who were affected by non-payment of any money by accused-Pawan Kumar to them. PW-1 Surindera, in her cross-examination, has admitted that though the statement made by her in the Court was not read over to her on the day when she appeared as a witness but it was earlier read over to her when she was told that the date of occurrence is 9-10-1992. Why should she be told the date of her alleged beatings by anyone else when she is the complainant and has lodged the FIR and given the date therein? It means that she has been tutored about the statement she has made against the accused. In the FIR Ex. PW- I/A, the allegations against the accused are that on 9-10-1992, accused came on the lintel, threatened her and gave her beatings. However, in the statement in the Court, the prosecutrix has admitted that on 9-10-1992 she was only threatened to get out of the house. If so, the allegations in the FIR that on that day, she was even beaten up by the accused, is simply false.
18. This is not a case where the acts of alleged beatings and threats might have been extended by the accused within the four walls of a room occupied by the husband and wife or in a secluded house occupied by the family members only. About the alleged occurrence of 9-10-1992 as per the FIR, the accused came on the lintel and extended threats. However, in her statement, PW-1 Surindera has stated that this occurrence took place on 11-10-1992. She has further stated that on that day, she was saved from the accused by her parents-in-law and other villagers. PW- 5 Jai Kishan has also admitted that the acts and conduct of accused-Pawan Kumar is known to all the villagers. Thus, in the event of the accused extending any threat from the lintel or beating her, these facts would have been noticed by a sizeable number of villagers, if not by the entire village community. Therefore, there would not have been any dearth of independent witnesses to support this version. However, no independent person from the village has been examined to support the version of the prosecution regarding the alleged acts and conduct of the accused persons. The only independent witness from the village is PW-2 Vasudev, who is a member of the Gram Panchayat, Bramana and whose house is adjacent to the house of the accused and others (i.e. the family members of accused-Pawan Kumar). He has not supported the prosecution case regarding illicit intimacy between the accused persons or beating and intimidating PW-1 by accused-Pawan Kumar. The other independent witness, though not from the same village, examined by the prosecution is PW-3 Kanshi Ram. He is the President of the concerned Gram Panchayat. He was associated in a Family Panchayat convened by Munshi Ram. He has denied that accused-Pawan Kumar had asked his wife PW-1 Surindera to leave his house. He has not admitted the alleged illicit relations between the present accused persons. On the contrary, his version is that the complaint made to him was that accused did not pay any money to Munshi Ram. Thus, there is no reliable evidence to prove the alleged illicit intimacy between the accused persons and beating of PW-1 by accused-Pawan Kumar.
19. The alleged occurrence of beating of Surindera by accused-Pawan Kumar, as per the contents of FIR Ex. PW-1/A, took place on 9-10-1992. None has stated that in such beatings, Surindera sustained injuries. She was not got medically examined to get any medical certificate about her having sustained injuries in the alleged beatings. PW-5 Jai Kishan has stated that in the beating given by accused-Pawan Kumar none sustained injuries. It is beyond comprehension that despite beatings none sustained injuries. This also belies the allegation of beatings given to Surindera by accused-Pawan Kumar.
20. The FIR was lodged against the accused persons on 11-10-1992 at 4.45 p.m. whereas the occurrence allegedly took place on 9-10-1992 at 9 p.m. The police station is at a distance of 1 km. only from the place of alleged occurrence. Not even a single word has been uttered by any of the witnesses particularly PW-1 Surindera, to explain the delay of almost two days in lodging the FIR. This also creates suspicion about the prosecution version and renders it an outcome of the deliberations and fabrications.
21. In view of the above discussion, it is evident that the evidence on record is not cogent, consistent, reliable and trustworthy and thus is incapable of proving the charges against the accused persons. Therefore, the impugned acquittal order passed by the learned trial Magistrate does not call for any interference.
22. As a result, the appeal merits dismissal and is accordingly dismissed. The bail bonds furnished by the accused are discharged.