Hans Raj
Vs. State of Haryana [2004] Insc 123 (26 February 2004)
N. Santosh
Hegde & B.P. Singh. B.P. Singh, J.
In
this appeal by special leave the appellant Hans Raj has impugned the judgment
and order of the High Court of Judicature of Punjab and Haryana at Chandigarh
dated January 21, 1997 in Criminal Appeal No.633 SB of 1986 affirming the
judgment and order of the learned Additional Sessions Judge, Kurukshetra dated
September 24, 1986 convicting and sentencing the appellant to seven years
rigorous imprisonment and a fine of Rs.300/- under Section 306 I.P.C. We have
carefully perused the judgments of the learned Additional Sessions Judge and
the High Court and we are constrained to observe that the High Court while
disposing of the appeal did not even apply its mind to the facts of the case. A
disturbing feature noticed by us is that the High Court merely repeated
paragraphs after paragraphs from the judgment of the learned Additional
Sessions Judge as if those conclusions were its own, reached on an appreciation
of the evidence on record. Many of the paragraphs are word from word borrowed
from the judgment of the learned Additional Sessions Judge without
acknowledging that fact. We are, therefore, left with the impression that the
High Court failed to apply its mind to the facts of the case as it was required
to do, and was content with repeating what was stated in the judgment of the
Trial Court. In these circumstances we found it necessary to carefully
scrutinize the evidence on record since the High Court even though the first
court of appeal failed to do so.
The
case of the prosecution is that the wife of the appellant, namely, Jeeto Rani
committed suicide on 24.8.1986 on account of the cruelty and harassment meted
out to her by the appellant herein.
The
case of the prosecution is that in the year 1982 the appellant married Jeeto Rani,
daughter of Munshi Ram, PW-2.
It is
also not in dispute that Naro, sister of the appellant was married to Fateh Chand,
PW-3 the brother of the deceased. The appellant lived in village Kheri Sahidan
with the deceased while Naro and Fateh Chand resided in the house of Munshi
Ram, PW-2 at village Laha Majri. The appellant was blessed with a daughter only
seven months before the death of Jeeto.
On
August 24, 1986 Munshi Ram, PW-2 father of Jeeto (deceased) lodged the FIR
which was recorded by ASI Chaman Lal, PW-5 of Police Station Ismailabad at 2.50
p.m. The allegations in the FIR were to the following effect.
The
appellant was addicted to 'Bhang' and did not pay any attention towards his
domestic affairs. Whenever Jeeto attempted to prevent her husband from taking
'Bhang' she used to be assaulted by him. Jeeto (deceased) had reported this
matter to her parents but they all persuaded her to go back to her matrimonial
home. On Friday last the appellant and Jeeto (deceased) came to the house of Munshi
Ram (PW-2) when the appellant stated that he would not keep Jeeto (deceased)
with him because his sister Naro was being harassed by Fateh Chand, PW-3, the
brother of Jeeto (deceased). Munshi Ram and members of his family persuaded the
appellant not to do so but Jeeto (deceased) was frightened and refused to
accompany her husband. The appellant and Jeeto (deceased) stayed at the house
of Munshi Ram for two days and on the third day with great difficulty Munshi
Ram, PW-2 persuaded his daughter Jeeto to accompany the appellant to her
matrimonial home. It was alleged by Munshi Ram in the FIR that the appellant
had told them that since Fateh Chand, PW-3 was harassing his sister he would
take revenge.
On the
date of occurrence at about 10 a.m. Munshi Ram, PW-2 was informed by one Shana
Ram that Jeeto was seriously ill and asked him to reach village Kheri
immediately. The informant alongwith his brothers and others reached village Kheri
and found that his daughter was dead. In the report he stated that he
entertained a suspicion that Jeeto had committed suicide by taking poison being
fed up by the beatings and the harassment caused to her by her husband.
On the
basis of the said report a case was registered and the matter was investigated
by ASI, Chaman Lal, PW-5. The medical evidence on record as well as the
chemical examiner's report established the fact that Jeeto died of poisoning.
Apparently,
therefore, the case of the prosecution was that she had committed suicide by
consuming poison. The record also discloses that Jeeto was treated by Dr. Ram Gopal
Sharma when she was in a precarious condition at the house of the appellant. He
gave her an injection and thereafter she was shifted to his clinic at Ismailabad
on his advice. It appears that thereafter Dr. Kaushal also treated her but her
life could not be saved.
In the
FIR only two allegations were made by Munshi Ram, PW-2, firstly, that there
were frequent quarrels, sometimes resulting in physical assault, between the
appellant and Jeeto on account of his being addicted to consumption of 'Bhang',
and secondly, that the appellant was aggrieved by the fact that his sister was
not being properly looked after by his brother-in-law namely, Fateh Chand,
PW-3. Munshi Ram was examined by the prosecution as PW-2.
In his
deposition he stated that the appellant was addicted to liquor and bhang and
whenever Jeeto attempted to persuade him to desist from this addiction he used
to misbehave with her and even beat her. According to him, 8-9 days before her
death Jeeto had come to his house alongwith the appellant. The appellant had
then complained to him that Jeeto was not good looking and therefore he was not
going to take her back and that he intended to perform a second marriage.
However, on their persuasion he stayed at his village for 2-3 days whereafter
he persuaded his daughter Jeeto to accompany the appellant to village Kheri.
From his cross-examination, it appears that the case sought to be made out at
the Trial that the appellant was addicted to liquor was not stated in the
course of investigation.
Similarly,
Munshi Ram, PW-2 had not stated in the course of investigation that the
appellant had complained that Jeeto was not good looking. It also appears that
in the course of investigation he had not stated about Jeeto having told him
that the accused had been beating her.
Fateh Chand,
PW-3 also deposed in favour of the prosecution and he also alleged that the
appellant was addicted to liquor and bhang and that he had been told by Jeeto
that the appellant did not want to keep her as he did not find her to be good
looking. According to Fateh Chand, PW-3 whenever Jeeto came to their house she
used to complain about the treatment meted out to her by the appellant. Even
the appellant had told him that he did not like Jeeto. PW-3 further deposed
that for about a year and a half after marriage the appellant and Jeeto lived
in harmony. In his statement before the police in the course of investigation
there is no mention about the fact that the appellant was addicted to liquor.
PW-3 also admitted that in his statement before the police he did not state
that the accused had told him that his sister was not good looking, nor did he
state that his sister had told him that the accused felt aggrieved because she
was not good looking.
The
case of the prosecution rests mainly on the evidence of these two witnesses
namely, Munshi Ram, PW-2 and Fateh Chand, PW-3. In his examination under
Section 313 Cr.P.C. the appellant stated that the case against him was false.
He had kept his wife Jeeto with love and affection and had never proclaimed
that she was not good looking. She had given birth to a daughter but thereafter
she had been keeping unwell because of some tension in her mind on account of
birth of a daughter. Only four days prior to her death she had come from her
parents' house and thereafter she started vomiting. Dr. Ram Gopal Sharma was
called from Ismailabad and he gave her an injection. Thereafter Jeeto was
removed to the clinic of Dr. Ram Gopal. Dr. Kaushal was also consulted but he
did not give any hope. The parents of Jeeto were thereafter informed through a
messenger but by the time they came Jeeto had died.
The
learned Additional Sessions Judge noticed the fact that Munshi Ram, PW-2 had
considerably improved his case at the trial. The allegations that the appellant
used to taunt Jeeto because she was not good looking, or that he was going to
re- marry, or even regarding beatings to her, were all in the nature of
improvements. His statement at the trial that once the deceased had come to his
house in injured condition did not find mention in his statement recorded by
the police in the course of investigation. The allegation that the appellant
was addicted to liquor also did not find recorded in the statement of the
witnesses before the police. However, the Trial Court was greatly impressed by
the fact that this was clearly a case of suicide and the appellant had
maintained complete silence as to what was the conversation between him and the
deceased immediately before the deceased was found in a precarious condition.
According to the Trial Court, law enjoined upon the husband an obligation to
explain the circumstances in which his wife committed suicide. Reliance was
placed on the presumption under Section 113-A of the Indian Evidence Act.
It
observed that in the absence of any suitable answer from the defence a
presumption arose under Section 113-A of the Indian Evidence Act. Therefore,
the Court found that though there were improvements in the statements of the
prosecution witnesses, it could not be disbelieved that the appellant treated
his wife with cruelty. Taking the aid of Section 113-A the trial court
concluded that a presumption of law arose in the given circumstances. Since Jeeto
was led to commit suicide, it must have been due to the abetment on the part of
the appellant, since the story set up by the appellant in his statement under
Section 313 Cr.P.C. was totally unbelievable. Surprisingly, the Trial Court
observed that the appellant's remark that his wife was not good looking and to
his liking and that he was going to re-marry was "a gravest of abetment on
the part of the husband leading to the wife to commit suicide". The trial
court while recording this conclusion completely lost sight of its own finding
that this part of the story was clearly an improvement and that no such
allegation was made either in the FIR or in the course of investigation. All
that was stated in the FIR and in the course of investigation was that the
appellant was aggrieved of the fact that his sister Naro was not properly
treated by Fateh Chand, PW-3 who was the brother of Jeeto. The only other
allegation found in the FIR is that the appellant was addicted to 'Bhang' and
whenever Jeeto objected to it, it resulted in a quarrel and sometimes physical
assault on Jeeto.
Having
gone through the evidence on record we are satisfied that the prosecution has
sought to improve its case at the trial by introducing new facts and allegations
which were never stated in the course of investigation. All that appears to
have been satisfactorily established is that the appellant was addicted to
'Bhang' and that frequent quarrels took place when his wife Jeeto objected to
his taking 'Bhang'. Though it is stated in the FIR that the appellant had
complained about the treatment meted out to his sister Naro by Fateh Chand,
there is evidence of Fateh Chand, PW-3 himself that he was living happily with Naro,
his wife, who happened to be the sister of the appellant. One fails to
understand why the appellant should make such an allegation when his sister was
living happily with Fateh Chand, PW-3. As to the frequent assaults on the
deceased by the appellant and her reporting the matter to her father and
brother, there appears to be no reason why, if these facts were true, no such
allegation was made in the course of investigation by the prosecution witnesses
PWs 2 and 3. We are, therefore, satisfied that the prosecution has been able to
establish its case only to the extent that the appellant was addicted to
'Bhang' which was opposed by his wife Jeeto and on account of such opposition
there used to be frequent quarrels and may be on some occasions Jeeto was
assaulted by the appellant. Beyond this we find the other allegations made by
the prosecution to be unacceptable.
The
question then arises as to whether in the facts and circumstances of the case
the appellant can be convicted of the offence under Section 306 I.P.C. with the
aid of the presumption under Section 113 A of the Indian Evidence Act.
Any
person who abets the commission of suicide is liable to be punished under
Section 306 I.P.C. Section 107 I.P.C. lays down the ingredients of abetment
which includes instigating any person to do a thing or engaging with one or
more person in any conspiracy for the doing of a thing, if an act or illegal
omission takes place in pursuance of that conspiracy and in order to the doing
of that thing, or intentional aid by any act or illegal omission to the doing of
that thing. In the instant case there is no direct evidence to establish that
the appellant either aided or instigated the deceased to commit suicide or
entered into any conspiracy to aid her in committing suicide. In the absence of
direct evidence the prosecution has relied upon Section 113-A of the Indian
Evidence Act under which the Court may presume on proof of circumstances
enumerated therein, and having regard to all the other circumstances of the
case, that the suicide had been abetted by the accused. The explanation to
Section 113-A further clarifies that cruelty shall have the same meaning as in
Section 498A of the Indian Penal Code which 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".
Unlike
Section 113-B of the Indian Evidence Act, a statutory presumption does not
arise by operation of law merely on proof of the circumstances enumerated in
Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian
Evidence Act the prosecution has first to establish that the woman concerned
committed suicide within a period of seven years from the date of her marriage
and that her husband (in this case) had subjected her to cruelty. Even if these
facts are established the Court is not bound to presume that the suicide had
been abetted by her husband. Section 113-A gives a discretion to the Court to
raise such a presumption, having regard to all the other circumstances of the
case, which means that where the allegation is of cruelty it must consider the
nature of cruelty to which the woman was subjected, having regard to the
meaning of word cruelty in Section 498-A I.P.C.
The
mere fact that a woman committed suicide within seven years of her marriage and
that she had been subjected to cruelty by her husband, does not automatically
give rise to the presumption that the suicide had been abetted by her husband.
The
Court is required to look into all the other circumstances of the case. One of
the circumstances which has to be considered by the Court is whether the
alleged cruelty was of such nature as was likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health of the
woman. The Chhattisgarh (2001) 9 SCC 618 wherein this Court observed :
"This
provision was introduced by the 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-laws and incriminating evidence was usually available
within the four corners of the matrimonial home and hence was not available to
anyone 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 113-A
shows that to attract applicability of Section 113-A, it must be shown that
(i) the
woman has committed suicide,
(ii) such
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. 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". A 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 113- A suggests 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 113-A is defined in Section 4 of the Evidence Act, which says "Whenever
it is provided by this Act that the court may presume a fact, it may either
regard such fact as proved, unless and until it is disproved, or may call for
proof of it".
The
same principle has been reiterated in Sanju Alias (1994) 1 SCC 73 this Court observed
:
"We
are not oblivious that in a criminal trial the degree of proof is stricter than
what is required in a 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 498-A IPC and Section 113-A 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 doubts 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 Bater v. Bater [(1950) 2 All ER 458,459] 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".
Having
regard to the principles aforesaid, we may now advert to the facts of this
case. The learned Trial Judge took the view that since the wife of the
appellant committed suicide and since the appellant did not disclose as to what
conversation preceded her committing suicide and that there were allegations of
cruelty against the appellant, it must be presumed under Section 113-A of the
Indian Evidence Act that the suicide had been abetted by him. We do not find
ourselves in agreement with the finding of the Trial Court, having regard to
the facts and circumstances of this case and our finding that the prosecution
is guilty of improving its case from stage to stage.
The
allegations that the appellant did not like to keep the deceased with him
because she was not good looking, or that he was addicted to liquor or that the
deceased had reported these matters to her parents and others, or that the
appellant intended to re-marry and had told his wife Jeeto about it, or that
the deceased had once come to her father's house in an injured condition, or
even the allegations regarding beatings, do not find place in the statements
recorded by the police in the course of investigation. These allegations have
been made at the trial for the first time. All that was alleged in the FIR or
even at the stage of investigation was that there were frequent quarrels
between the husband and wife sometimes resulting in physical assault, on
account of the husband being addicted to consumption of 'Bhang'. The other
allegation that the appellant was aggrieved of the fact that his sister Naro
was not being properly treated by Fateh Chand, PW-3, brother of the deceased,
also appears to be untrue because there is nothing on record to show that there
was any disharmony in the marital life of his sister Naro. In fact, Fateh Chand,
PW-3, her husband, himself stated on oath that he was living happily with his
wife Naro, sister of the appellant. On such slender evidence therefore we are
not persuaded to invoke the presumption under Section 113-A of the Indian
Evidence Act to find the appellant guilty of the offence under Section 306
I.P.C.
The
Trial Court found that there was material to support the charge under Section
498-A I.P.C. but did not pass a sentence under Section 498-A I.P.C. on a
finding that the same will be overlapping, the appellant having been found guilty
of the offence under Section 306 I.P.C. Having regard to the facts of the case,
we are satisfied that though the prosecution has failed to establish the
offence under Section 306 I.P.C., the evidence on record justifies the
conviction of the appellant under Section 498-A I.P.C.
We,
therefore, set aside the conviction and sentence passed against the appellant
under Section 306 I.P.C. and acquit him of that charge, but we find the
appellant guilty of the offence under Section 498-A I.P.C and sentence him to
undergo rigorous imprisonment for one year on that count. This appeal is partly
allowed. The appellant was admitted to bail by this Court. His bail bonds are
cancelled, and he must surrender to his sentence, subject to the provisions of
Section 428 of the Code of Criminal Procedure.
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