Court: Himachal Pradesh High Court
Bench: JUSTICE Dev Darshan Sud
Madan Gopal Vs. State Of Himachal Pradesh On 2 March 2013
Law Point:
Indian Penal Code, 1860 — Sections 498A, 306 — Cruelty — Abetment of Suicide — No evidence on record to show that accused was subjecting deceased to cruelty and constantly threatening and beating her up — Trial Court is speculative — Offence for which accused was charged, not proved on record — Accused is acquitted of offences charged and released from custody.
JUDGEMENT
The appellant has challenged his conviction under Sections 498A, 306 and 201 of the Indian Penal Code (hereinafter referred to as the IPC). He has been sentenced for the offence as under:
Under Section 306, IPC
To undergo rigorous imprisonment for a period of five
years and to pay fine of Rs. 20,000 and in case of default
of payment of fine to further undergo simple imprisonment
for a period of six months.
Under Section 498A, IPC
To undergo rigorous imprisonment for a period of one
year and to pay fine of Rs. 5,000 and in case of default
of payment of fine to further undergo simple
imprisonment for a period of two months.
Under Section 201, IPC
To undergo rigorous imprisonment for a period of one
year and to pay fine of Rs. 5,000 and in case of default
of payment of fine to further undergo simple
imprisonment for a period of two months.
It is this conviction which the appellant has challenged.
2. The prosecution case in brief and the facts not disputed are that deceased Nisha, aged about 19 years, was married to accused Madan Gopal on 1.7.2009. She died on 30.9.2009 under abnormal circumstances in her matrimonial home. She was taken to Primary Health Centre, Darlaghat where she was declared dead on arrival. Thereafter post-mortem of the dead body of the deceased was conducted at Civil Hospital, Arki by Dr. Suresh Kumar, PW-13 and found that:
“External appearance:
A young body lady wearing red colour Kurta with following pattern plain red Salwar by lateral wrist having Chudra, left hand containing Wrist Watch, golden earrings by literal pinna, red colour Paranda, white bra and blue underwear, silver anklets, silver Chak, red colour nail polish.
There was no injury mark over any part of body. No injury mark over neck face cervical region, head chest, abdomen, perineal area, hands, both arms, dorsal and ventral aspect etc. No ligature mark over neck, no fracture of hyoid bone, cervical vertebrae are normal. No abrasion, no scratch over any part of neck.
Cranium and Spinal Cord.
No injury to skull, brain, vertibra and spinal cord was observed.
Thorax
All the parts of thorax was normal.
Abdomen.
Abdominal walls peritoneum, mouth pharynx and oesophagus was normal.
Stomach and its contents.
Contain semi-digested food.
Small intestines were filled with faecal matter and sent for chemical analysis.
Large intestine were filled with faecal matter and set for chemical analysis.
Liver was normal on appearance and sent for chemical analysis.
Spleen and kidney were normal and sent for chemical analysis.
Bladder was normal and contained urine.
Organs of generation external and internal. Utarus: 8 to 10 Wk in large (approximately). Fallopian tubes red and swollen right sided ruptured hemorrhagic fluid in the poutch of dougleus ovaries were normal by laterally. No injury over external organ of generation.
Muscles Bones and Joints.
No bony injury, no fracture, no dislocation was observed.
Body was handed over to C. Mahinder Singh, No. 608 along with cloths on 1.10.2009 at 11.15 a.m. after suturing the body.
Probable duration that elapsed between injury and death N.A. Probable duration that elapsed between death and post-mortem between 24 hours.
Visra was sealed and handed over to police for chemical analysis along with docket to FSL and final opinion was reserved till the report of chemical analysis SFL and after going through the report Ex. P-X my final opinion was as under:
As per chemical analysis organ phosphorous poison was found in the specimen sent for chemical analysis, so in my opinion deceased had died because of organ phosphorous poison. I have issued post-mortem report Ex. PW-13/D (four sheets) in this behalf which is in my hand and bears my signatures.
During investigation police moved an application Ex.PW13/E regarding injury sustained by deceased over external organs of generation or whether she has conceived at the time of death and I have opined on this query and my opinion is Ex.PW13/F.”
3. The accused was arraigned for offences under Sections 498A, 304B and 201, IPC. In order to prove its case, the prosecution has examined 17 witnesses. On the conclusion of the trial, the learned Trial Court after appraisal of the evidence on record, convicted the accused for offences as noticed above. The learned Trial Court formulated three points for consideration. The first being as to whether the prosecution has been able to prove that immediately/soon before the death of deceased Nisha, she had been subjected to cruelty/harassment on account of demand for dowry. The second point was as to whether the prosecution has been able to prove the commission of offences punishable under Sections 306, 498A and 201, IPC. On the first point, the learned Trial Court holds that no demand for dowry, etc., and cruel treatment has been proved. On the second point, the learned Trial Court holds that the prosecution has been able to prove its case and proceeded to convict the accused.
4. Adverting to the first point, the learned Trial Court considered the ingredients of Section 304B and holds that the evidence does not in any manner establish any demand for dowry though the prosecution case is that a sum of Rs. 50,000 was demanded by the accused from the parents of the deceased. On the second point, the learned Trial Court holds that the deceased was about 19 years of age and she died otherwise then in normal circumstance. The learned Judge relied upon the opinion of the Medical Officer, PW13 Dr. Suresh and report of FSL Ex. PX which revealed that traces of organo phosphorus poison being present in the liver and kidney of the deceased. The learned Trial Court noticed that the brother of the deceased stated that on 30.9.2009 at around 12.58 p.m., the accused had contacted him on his mobile phone and asked him to talk to Nisha (deceased), who did not speak but kept crying inconsolably. He then states that he contacted the father of the accused on phone and told him that there was some quarrel going on in his family. He states that accused had again called him and threatened him as to why he had called his father. The oral testimony of this witness is corroborated by Ex.PW1/C, call details of mobile phone No. 98054-43638 (mobile number of PW7 Jeet Ram, brother of the deceased) and mobile No. 98167-21821 (mobile number of the accused). According to the learned Trial Court, the assessment of this evidence proves that on 30.9.2009 at about 12.58 p.m. a call had been received on mobile No. 98054-43638 from mobile No. 98167-21821. This document further proved that at about 1.00 p.m. a call had been made from mobile No. 98054-43638 to mobile No. 98052-02455. With Ex.PW1/B, it was proved that on 30.9.2009 at about 4.02 p.m. PW7 Shri Jeet Ram had received mobile call from the mobile phone of the accused. In these circumstances, the learned Trial Court concluded that there was a quarrel between the accused and the deceased immediately before her death and that she was in the company of the accused. The learned Trial Court on the evidence of PW8 Smt. Premi Devi, mother of the deceased, who had stated that immediately before her death when the deceased had visited her, she had informed her that accused is harassing her by beating her up after getting drunk. This part of the testimony of this witness, according to the learned Trial Court “appears to be true and believable as there is no reason to disbelieve”. According to the learned Court, this testimony when read in conjunction the evidence (supra) corroborates the fact that the accused was subjecting the deceased to cruel treatment when he was drunk. On the submission on behalf of the accused that there were no marks of violence on the body of the deceased as proved by the post mortem report and that there was some possibility that she was suffering from tuberculosis, the learned Trial Court held that this fact was not proved and the testimony was sufficient to sustain conviction.
5. Learned Senior Counsel Mr. J.S. Bhogal submits that the judgment of conviction passed by the learned Trial Court cannot be sustained for more than one reason as after holding that there was no demand for dowry, the learned Trial Court cannot hold that the accused is guilty for the offences punishable under Sections 498A, 306 and 201, IPC as there was no evidence on record to establish either the demand of dowry (which fact has been disbelieved by the learned Trial Court) and there was no evidence of cruel treatment meted out to the deceased. Learned Senior Counsel submits that mere fact that the deceased had attended the call on the mobile phone and started crying that fact by itself in no manner established the factum of cruel treatment. At best, all that can be inferred from this and subsequent conversation between the deceased and PW 7 Shri Jeet Ram is that there may have been a quarrel between the accused and deceased but not of a nature which would provoke/provide stimulus to the deceased to commit suicide. There is no evidence on record to establish that any offence under Section 201, IPC was made out against the accused.
6. Adverting to the last submission first, the learned Trial Court has gone awry in convicting the accused for offence punishable under Section 201, IPC. I find none of the ingredients of Section 201, IPC having been proved and established on record. Section 201 provides that whoever knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false shall be punished as provided. I find nothing in the evidence to establish these ingredients.
7. I now advert to the submission made by the learned Senior Counsel that accused did not commit any act of cruelty in compelling the deceased to end her life. Learned Additional Advocate General submits that cruelty needs not to be physical but even mental. He relies upon the decision of Division Bench of this Court in Criminal Appeal No. 15 of 2006, titled State of Himachal Pradesh v. Haresh Kumar Gautam and Others, decided on 11.12.2012. In that case this Court was dealing with the case of a mother who had ended her life as also of her two children. On the facts of that case, which were that on 5.3.2003 the deceased had murdered her twin children and thereafter she had ended her life by setting herself on fire. Brother-in-law and sister-in-law (Jeth and Jethani) of the deceased were issueless despite the fact that they were married for thirteen years, wanted that the deceased should give one of the children in adoption to them. When she refused, she was constantly abused and subjected to cruelty by her in-laws. There was a suicide note written by her which formed the basis of the prosecution case. This Court holds that this note had been excluded by the learned Trial Court from consideration in evidence. Defence was put up that she was not keeping good mental health but this evidence was discarded on the ground that the expert had never been examined. The defence evidence was disbelieved and this Court after considered assessment of the evidence held that taunts from Jeth and Jethani constitute sufficient ground for compelling the deceased to commit suicide. There can be not dispute with this proposition. It is not normal for a mother to part with her child. The pain of parting is itself sufficient to cause agony throughout one’s natural life.
8. Learned Senior Counsel places reliance upon the decision in Cr. Appeal No. 255 of 2002, State of H.P. v. Godawar Singh, Decided on 18.8.2011 by the Division Bench of this Court (in which I was one of the member), the Court had considered the concept of cruelty in detail by adverting to the decision of the Supreme Court in Bhaskar Lal Sharma and Another v. Monica, II (2009) DMC 256 (SC)=161 (2009) DLT 739 (SC)=VI (2009) SLT 100=III (2009) CCR 512 (SC)=(2009) 10 SCC 604, wherein the Court holds:
“38. The scope of the aforementioned provision came up for consideration in some of the decisions of this Court. We may notice a few. In Noorjahan v. State, (2008) 11 SCC 55, this Court held: (SCC p.59, paras 16-17):
“16. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to bring home the application of Section 498A, IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A, IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498A gives the meaning of “cruelty”.
17. The object for which Section 498A, IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Amendment) Act, 1983 (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 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.”
It was observed in the fact situation obtaining therein: (SCC pp. 59-60, para 18):
“18. So far as the present appellant is concerned, the evidence is inadequate to show that she was party to any demand for dowry. In fact, PW 1 stated that when she went to the place of her daughter the appellant was present along with A-1 and A-2. The said A-1 demanded jewels and presentation of Rs. 5,000 for Ramzan. She accepted that she told A-1 and A-2 that she will send the same within a week. The next statement of this witness is very significant. She (the appellant) told that two months’ time will be sufficient for offering the presentation. In other words, she did not make any demand for dowry. That aspect has been accepted by PW 1. Significantly, this witness in her cross-examination had admitted that the appellant is residing at Coimbatore for the last 35 years. She has categorically admitted that while she went to the house of her daughter, she (the appellant) was not present. Therefore, there is no evidence to show that the appellant was either present when the demand was made or she herself made any demand.”
39. In Sushil Kumar Sharma v. Union of India & Ors., (2005) 6 SCC 281, this Court held: (SCC pp 285 & 287-88, paras 10 and 19):
“10. The object for which Section 498A, 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.
19. 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 strait jacket 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 pre-conceived 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.
(pp.617-619)
9. In Ramesh Kumar v. State of Chhattisgarh, II (2001) DMC 636 (SC)=VII (2001) SLT 356=IV (2001) CCR 178 (SC)=(2001) 9 SCC 618, the Supreme Court holds:
“12. This provision was introduced by Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-law and incriminating evidence was usually available within the four-corners of the matrimonial home and hence was not available to any one outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability of Section 113A, it must be shown that, (i) the woman has committed suicide, (ii) suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory, it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to all the other circumstances of the case’. The consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression—‘The other circumstances of the case’ used in Section 113A suggest the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase ‘May presume’ used in Section 113A is defined in Section 4 of the Evidence Act, which says-whenever it is provided by this Act that Court may presume a fact, it may either regard such act as provided, unless and until it is disproved or may call for proof of it.”
(pp.626-627)
10. Similar principle was reiterated in Sanju v. State of Madhya Pradesh, I (2002) DMC 773 (SC)=III (2002) SLT 513=II (2002) CCR 189 (SC)=(2002) 5 SCC 371.
11. In State of West Bengal v. Orilal Jaiswal, I (1994) DMC 138 (SC)=IV (1993) CCR 392 (SC)=(1994) 1 SCC 73, the Court holds:
“75. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in the 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 Section 498A, I.P.C. and Section 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 doubt 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. Lord Denning in Eater v. Bater, (1950) 2 All ER 458 at p.459 has observed that 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.
(pp.89 & 90)
12. Lastly, learned Senior Counsel also relies on the decision in Criminal Appeal No. 390 of 1997, State of H.P. v. Prittam Chand & Ors., decided on 3.9.2010, wherein the Division Bench of this Court held that there was no material on record to connect the accused with the crime while adverting to the decision of the Supreme Court in Preeti Gupta and Another v. State of Jharkhand and Another, II (2010) DMC 387 (SC)=VI (2010) SLT 7=III (2010) CCR 338 (SC)=(2010) 7 SCC 667, holding—
“A serious relook at Section 498A is warranted by the Legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the Courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the Legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the Legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.”
(p 668.)
13. I need not multiply precedent any further but the principles of law are by now well settled. There is no dispute with this proposition when there is unnatural death, the entire circumstances and evidence require detailed and carefully scrutiny.
14. Adverting to the facts of the present case, I need not reassess the evidence on the point of demand for dowry so made as the learned Trial Court rightly holds that there is no cogent evidence to establish such allegation. But adverting to the other aspect of the case that the deceased was subjected to physical and mental cruelty of the kind which left her with no option except to end her life, I find that the learned Trial Court was not able to assess the evidence on record in accordance with law. It was not for the learned Trial Court to have said that there is no reason to disbelieve the evidence that death had occurred under abnormal circumstances within three months of marriage with the accused, before the death accused had subjected the deceased to cruelty which treatment had forced the deceased to end her life. The learned Sessions Judge has been remiss in assessing the evidence for convicting the accused. He should and ought have realized that the evidence is to be assessed/evaluated as a whole and not in the manner as he has done by reproducing some parts and not taking the entire evidence into consideration. The law with respect to assessment of the evidence by now well settled in C. Nagesh and Others v. State of Karnataka, (2010) 5 SCC 645 and Param Jeet Singh @ Pamma v. State of Uttarakhand, VII (2010) SLT 1=IV (2010) CCR 59 (SC)=(2010) 10 SCC 439. I do not find any evidence on record to show that the accused was subjecting the deceased to cruelty and was constantly threatening and beating her up. The learned Trial Court is speculative. In these circumstances, I do not find that the offences for which the accused was charged were proved on record. Thus, the appeal is accordingly. Accused is acquitted of the offences charged. He shall be released from the custody forthwith if not wanted in any other offence. Fine amount deposited by the accused before the Trial Court be refunded to him.
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