Sanjay Karol, J.@mdashFor an offence, which is alleged to have been committed on 8.7.1996, accused were put to trial. In terms of judgment dated 31.10.2000 passed by the learned Sessions Judge, Una, H.P., in Sessions Case No. 14 of 1998/ Sessions Trial No. 7 of 1999, titled as State of Himachal Pradesh v. Sushil Kumar and Ors. accused stands acquitted of the offences punishable under Sections 306, 498A read with Section 34 of the Indian Penal Code.
2. It is the case of the prosecution that Pramodh Kumar alias Dev Prashad (accused No. 2) was married to Sonika (deceased), daughter of complainant Sh. Ramesh Bhardwaj (PW-1) on 24.5.1995. Pramodh Kumar was living with his mother Giano Devi (accused No. 3), brother Sushil Kumar (accused No. 1) and sister Sushma Kumari (accused No. 4). On 8.7.1996 Sh. Ramesh Bhardwaj lodged a complaint with the police that he was informed by a friend of his bother that Sonika had taken ill and was undergoing treatment at the D.M.C. Hospital, Ludhiana. He rushed for the hospital and found his daughter to be dead. Same day he lodged a report with the Police at Police Post Chintpurni to the effect that since inception of marriage accused No. 1 and 3 used to torture his daughter for having brought insufficient dowry. Two - three months after the marriage the deceased had told him about the same. On 7.7.1996 accused killed his daughter by administering poison. She was killed for having brought insufficient dowry. His suspicion was based on the fact that even though he had a telephone at his residence and his house was just at a distance of 10 - 11 kilometers from the house of the accused, yet they did not inform him about the illness. On the basis of statement (Ext. PB) police recorded F.I.R. No. 108 of 1996 (Ext. PH) dated 8.7.1996 u/s 306 Indian Penal Code at Police station, Amb. Police got post mortem conducted and obtained report (Ext. PP). As per the report deceased had died due to poisoning. Investigation revealed that accused had taken the deceased for treatment to a doctor at Chintpurni where no medical treatment could be administered to her. Consequently she was taken to a private Doctor at Gagret. At both the places, allegedly accused avoided taking her to a government hospital. From Gagret she was taken to the hospital at Ludhiana where she was declared dead. During investigation complainant discovered that police had not correctly recorded his statement (Ext. PB) as also the statement of his wife. In his statement complicity of accused No. 2 and 4 was not recorded. Consequently his wife approached this Court and filed Cr.M.P.(M) No. 1045 of 1996, titled as Smt. Sarla Rani v. State of H.P. and Ors. which stood decided on 25.3.1997 with a direction that statements of the parents of the deceased be recorded before the Magistrate. Pursuant to such directions, statement (Ext. PC) of father (complainant) was recorded. Investigation revealed that on 7.7.1996 itself Sh. Sunil Kalia, relative of brother of the complainant had accompanied the accused to the doctors at Chintpurni, Gagret and Ludhiana.
3. With the completion of investigation challan was presented in the Court for trial. Accused were charged for having committed offences punishable under Sections 306 and 498A Indian Penal Code to which they did not plead guilty and claimed trial.
4. In order to prove its case prosecution examined fourteen witnesses and statements of the accused u/s 313 Code of Criminal Procedure were also recorded. In defence accused Pramodh Kumar stepped into the witness box and got recorded his statement.
5. The Court below acquitted the accused of the charged offence. Hence the present appeal.
6. It is not in dispute that in the first statement (Ext. PB) of Sh. Ramesh Bhardwaj (PW-1) names of accused Pramodh Kumar and Sushma Kumari are not mentioned. On the contrary it is mentioned that accused Pramodh Kumar had good relations with his wife. Be that as it may be, it is also not in dispute that pursuant to the directions issued by this Court, subsequent statement (Ext. PC) of PW-1 was recorded. It is in this statement that incriminating material against all the accused came on record.
7. It is not in dispute that Pramodh Kumar was married to Smt. Sonika (deceased), daughter of Sh. Ramesh Bhardwaj. That she died due to poisoning is also not in dispute. It is the allegation of the complainant that the accused killed his daughter. However, during investigation police found it not to be a case of murder but that of suicide. The accused have been charged for having abetted such crime. Allegedly the accused subjected the deceased to cruelty by their willful conduct and harassed her to meet their unlawful demands.
8. In the instant case even though prosecution has examined fourteen witnesses but however statements of Sh. Ramesh Bhardwaj (PW-1), Sh. Hem Raj (PW-2), Sh. Sunil Kalia (PW-3) and Ms. Kanika (PW-4) are relevant. Rest all are either police officials or witnesses to recovery of documents/articles.
9. Investigation in this case was carried out by Inspector Sansar Chand (PW-7). He has deposed that post mortem examination of the deceased was carried out at Ludhiana and he took into possession tablets of Aluminum Phosphide. Significantly he has deposed that statement (Ext. PB) was scribed by him as per the version given by Sh. Ramesh Bhardwaj in the presence of Sh. N. C. Walia, Deputy Superintendent of Police and Sh. Shamsher Singh, Incharge of Police Post Chintpurni. He recorded the statements truthfully.
10. Sh. Bahadur Singh, J.M.I.C. Palampur (PW-13) has deposed that statement (Ext. PC) made by Sh. Ramesh Bhardwaj was recorded by him. He also recorded the statement (Ext. PR) of Smt. Sarla Devi wife of Sh. Ramesh Bhardwaj. Prosecution has not examined Smt. Sarla Devi in Court. She was given up being an unnecessary witness. Her examination, in the given circumstances was necessary. She had filed the petition before this Court claiming that her statement as also the statement of her husband was recorded by the police in an incomplete manner.
11. Sh. Ramesh Bhardwaj (PW-1) admits that both he and his wife are teachers in a Government Primary School. We find his deposition during trial not to inspire confidence. He is an educated man. He admits that earlier he had not lodged any complaint, before any forum, in relation to the maltreatment meted out by the accused to his daughter. He admits that he was informed about the illness of his daughter by a friend of his brother (Sh. Roshan Lal). This fact also stands testified by Sh. Hem Raj (PW-2). This was in the evening of 7.7.1996. He admits to have travelled to Ludhiana on 8.7.1996. He admits that his brother Sh. Roshan Lal resides at Ludhiana. Significantly Sh. Roshan Lal has not been examined in Court. What did Sh. Roshan Lal do after learning about the illness of his niece has not come on record. This witness states that he did not talk about the illness of his daughter with Sh. Roshan Lal. This is a very strange conduct of the father. It is quite unbelievable that he would have not contacted his brother who was stationed at the place where post mortem was carried out by the police. It is not his case that relations between the two brothers were strained. Why did this witness immediately not leave for Ludhiana on 7.7.1996 itself is also not evident from record. He states that he went to Ludhiana with his nephew Anil Kumar who has not been examined in Court. Further according to this witness he learnt about the death of his daughter at Ludhiana itself yet he did not take any action of reporting the matter to the police there. He chose to travel back from Ludhiana to Chintpurni and then lodge report at about 8.00 p.m. on 8.7.1996. The possibility of the statement being recorded after due deliberation cannot be ruled out. Further it is unbelievable that a teacher would sign a statement without reading the same. He admits that letter (Ext. DA) was written by his daughter Monika to the deceased. Perusal of this letter evidently shows that relations between the families were not only cordial but no grievance of the sort in issue is reflective from the contents thereof. His version has rendered the prosecution story to be doubtful. Assuming hypothetically, that testimony of this witness is unimpeachable even then his statement cannot be said to have proved the charged offences. The relevant extract of his statement with regard to cruelty, harassment, dowry demands and murder is extracted as under:
...Soon after taking place of the marriage the deceased used to tell me that her mother-in-law Smt. Giano Devi, brother-in-law Sushil Kumar and sister-in-law Sushma Devi and her husband used to taunt and beat her for more dowry. In order to make the married life of my daughter happy I used to persuade her to adjust herself with the accused. But the atrocities from the part of the accused against her did not evade. On the other hand it went on increasing. On 7.7.1996 the accused hatched a conspiracy to kill her. They did kill her by administering poison to her. (objected to being inadmissible as opinion evidence). I suspected that she had been killed because the accused had not informed me about her death though telephone existed at my house. My house happened to be situated at a distance of 10 or 11 kilometers away from the house of the accused. The accused belongs to village Chhaproh where my daughter lived with them. The accused did not take Sonika deceased for treatment to any hospital. She was not taken to any government hospital so that her dying declaration could not be recorded. There is a government hospital at Chintpurni. The accused had taken the deceased to Dayanand Medical College-cum-hospital at Ludhiana. There is a government hospital at Gagret....
12. There is no evidence on record to establish that Government dispensary/hospital at Chintpurni or Gagret was medically equipped to handle a case of poisoning. This witness has falsely deposed that deceased was not given any medical treatment. In fact she was taken to the best hospital within the shortest period of time. The alleged offence took place in the year 1996 when hospitals at Ludhiana were famous for modern medical facilities. Statement of this witness that accused did not inform him about the illness of the deceased also does not inspire confidence. His brother, who used to reside in Ludhiana was aware of the incident. Obviously someone close to him must have disclosed the same. That apart, it has come in the testimony of PW-3 that accused Sushil Kumar had come to his shop at Chintpurni to inform that the deceased had consumed some poisonous substance. This witness admits to be a relative of Sh. Roshan Lal, brother of Sh. Ramesh Bhardwaj. Now if the accused could inform a relative of the uncle of the deceased then whey would they not inform the parents. They had no reason to conceal the same. It is not his case that due to alleged cruelties relations between the families were strained.
13. According to Sh. Sunil Kalia (PW-3), on 7.7.1996 at about 3.00 p.m. he was sitting in his shop at Chintpurni when accused Sushil Kumar came and informed him that the deceased had consumed some poisonous substance. He came to meet Sonika who was surrounded by accused Giano Devi and Sushma. When he took them aside deceased whispered in his ears that "the accused had maltreated her for want of dowry and have now poisoned her". She further whispered that "she was fed up with all the accused". This dying declaration, to our mind is absolutely an after thought and uninspiring. He further stated that the deceased was taken to a private doctor at Chintpurni who advised that she be taken to D.M.C. Hospital at Ludhiana. Deceased vomited twice in the presence of the doctors at Chintpurni and Gagret. He accompanied the accused alongwith Sonika up to Ludhiana. At Gagret the doctor wanted to inject some medicine but since the medicine was not available therefore she was immediately rushed to Ludhiana. Even on the way she vomited. Importantly this witness was associated by the accused immediately. He actively associated himself with the accused in giving best possible treatment to the deceased. He admits that he used to treat Sonika as his sister and that PW-1 is his relative with whom he has cordial relations. Significantly except for the dying declaration he does not state anything incriminating against the accused. The deceased was treated by him as his sister. She was living close by. Had she been subjected to cruelty by the accused, she would have definitely brought this fact to his notice. To this extent the version of the father is not corroborated by him. With regard to the dying declaration, this witness admits that this fact is not recorded in his earlier statement (Mark-A) recorded by the police. Police officials have categorically deposed that they had correctly recorded the statement of the witnesses during investigation. It is also not his case that police had also wrongly recorded his statement. Consequently this witness has made several improvements rendering this part of his statement to be unworthy of credence. We take this view for the reason that had the deceased actually uttered the alleged words then this witness would have definitely taken some action of reporting the matter to the police either at Chintpurni, Gagret or Ludhiana. In the statement (Ext. PB) this fact is missing.
14. Next witness is Ms. Kanika (PW-4), younger sister of the deceased. This witness states that the deceased "used to tell my father, mother and me that the accused maltreats her for pressing demand for dowry. She told that the accused used to taunt her for bringing inadequate dowry and on account of other factors. I had visited my deceased sister at her house during vacations of January, 1996 at Chintpurni. I stayed with her for 8 days. I observed that all the accused were repeatedly maltreating her. The mother-in-law of the deceased had discarded the lady suit, groundnuts, reories etc. which I had taken on the occasion of Lohri. Sushil Kumar accused had thrown out the meal which my sister had served him during my presence at their house. Accused Giano Devi did not used to eat the food cooked by the deceased. Sushil Kumar and Sushma accused also had refused to take the meals cooked by the deceased". Now this version of hers, to our mind is an after thought. In cross examination she admits to have written letter (Ext. DB) to her sister. Contents thereof are not reflective of such facts/incidents. That apart, the father does not corroborate the version of this witness. Further PW-4 admits that incidents of cruelty and harassment are not recorded in her earlier statement (Mark B) made to the police with which she was confronted with. She has made several improvements. That apart, version given by PW-4 is also not recorded in the statement (Ext. PC) which was recorded on 4.4.1997, much after the date of incident. Had it been true, definitely there would have been reference about the same.
15. We also find that the husband (DW-1) has stepped into the witness box and proved the letters (Ext. DE, DF, DG and DH) written by Smt. Sarla Devi to the deceased. From these letters also it is apparent that things were normal between the two families, and the deceased and the accused. Thus the prosecution case does not appear to be true.
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17. 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.
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The basis purport of Section 498A is to avoid "cruelty" which is defined by attributing a specific statutory meaning attached thereto. Two specific instances have been taken note of 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 498A.
Section 498A 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 498A and not dehors 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 498A.
Explanation (b) of Section 498A in no uncertain terms records harassment of the woman and the stature 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 498A.
21. In State of A. P. v. 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 the learned Counsel for the State, is attracted in the instant case, every harassment does not amount to "cruelty" within the meaning of Section 498A Indian Penal Code 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 order words, for the purpose of Section 498A Indian Penal Code 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 498A Indian Penal Code
22. The accused ensured that in the presence of a relative best possible medical treatment be given to the deceased. They all accompanied the deceased to Ludhiana. They themselves performed the last rituals and ceremonies.
23. Except for a bald and unspecific statement of the father there is nothing to show that the accused had subjected the deceased to cruelty and abetted her to commit suicide. Even this bald statement cannot be said to be convincing enough so as to establish the charged offences beyond reasonable doubt. Father simply states that the accused used to taunt the deceased and beat her up for dowry demands. What were these dowry demands? By whom and when was she beaten? What were the alleged taunting remarks made by the accused have not been disclosed. This witness did not take up the matter with the accused even when he found their atrocities to be on the increase. Why so? has not been explained. In fact in statement (Ext. PB) complainant categorically got recorded that the deceased was having cordial relations with her husband who never maltreated her. It is for this reason statement of the mother, who had approached this Court, acquires significance.
24. We may also add that in statement (Ext. PC) complainant got recorded that the neighbours tried to intervene but were stopped by accused No. 4. Now there is no evidence to prove this fact. Neighbours would have definitely come out with the truth. There non examination also renders the prosecution case to be doubtful.
25 Keeping in view the entire facts in totality, including the documentary evidence which has come on record, we find the statement of the father not sufficient enough to hold the accused guilty of the charged offences.
26. It is a settled position of law that the statutory presumption under the Evidence Act would arise only if prosecution is able to show that the accused had actually treated the deceased with cruelty which led her to commit suicide.
27. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and Ors. v. Public Prosecutor, High Court of
