CR.A/216/2004 on 29 December 2010

1. The State has challenged the acquittal of the respondent, for the offences punishable under Sections 498-A and 506 of the Indian Penal Code, passed in Criminal Case No.7/II/2002, decided on 20.2.2004, on the ground that the learned trial Court did not appreciate the evidence in the right perspective and the circumstances which stand proved on record duly supported by the prosecution witnesses were wrongly ignored.

Whether reporters of the Local papers are allowed to see the judgment?

2. Heard and gone through the evidence on record.

3. Admittedly, the complainant Simro Devi is the wife of the respondent. The marriage inter-se the parties was solemnized about 17 years ago from the date of lodging of the present FIR. Respondent was employed in the Army and he used to live outside his village. From this wedlock, complainant Simro Devi gave birth to one daughter and two sons. Now daughter is married and two sons are living with the respondent, whereas, it is alleged that the complainant is presently residing in the parental house, to whom the respondent is paying monthly maintenance amount.

4. Prosecution case in brief is that in the month of April, 1999, respondent retired from the Army and settled down in his village. After about one month, he allegedly started harassing the complainant without any rhyme and reason. He used to come to his house under the influence of liquor and forcing complainant to seek divorce, to facilitate him to solemnize another marriage. When she refused to succumb to his pressure, the respondent subjected her to beatings. Once she was given beatings and was turned out from her matrimonial house, thus she took refuge in the parental house. After few days, her father accompanied by her uncle and the cousin brother took her to the matrimonial home. Respondent promised not to torture her, but even after 5-6 days, he again gave her beatings. Next morning, she went to the house of Vice President of the Gram Panchayat, namely Jagan Nath, but he was not there. Thereafter she intended to approach Ward Panch, but due to fear, she went to the parental house and filed a complaint to the Panchayat concerned, but nothing happened.

5. It is also alleged that thereafter on 15.6.2001, an application was moved to the Gram Panchayat which ended into compromise, whereby the respondent undertook not to harass her in future. Thereafter, she joined the matrimonial house, but again after about 5/6 days, the respondent resumed the same rut, forcing her to divorce.

6. On 5.8.2001, she was given merciless beatings. Then she approached Jagan Nath, Vice President of the Gram Panchayat. He took her to the

Ward Panch Ganga Ram and Kulwant Singh Pradhan of the Panchayat, who advised them to report the matter to police. Ultimately, present FIR against the respondent under Section 498-A and 506 of the Indian Penal Code was registered.

7. PW9 ASI Naratu Ram investigated the case. He took into possession photocopies of application Ex.PA, compromise Ex.PB and moved an application Ex.PW3/A to the doctor for the medical examination of the complainant. The complainant was got medically examined and the police procured her medico legal certificate Ex.PW3/B. The police also recorded statements of the witnesses and after completion of the investigation, challan was presented in the court for the trial of the respondent. He was accordingly charge-sheeted, to which he pleaded not guilty and claimed trial.

8. Prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal procedure. He alleged false implication in the case by the complainant and her relations. In defence, he examined DW1 MC Partap Chand and DW2 HC Surinder Kumar. At the end of trial, he was acquitted of the offences against which the State has filed the instant appeal, which was admitted for hearing.

9. On the last date of hearing, respondent did not put in appearance despite service, as such, his non-bailable warrants were issued. Today, he has been produced in the custody of ASI Gambhir Singh, Police Station Lamba Gaon, District Kangra, H.P., however respondent is duly represented by Shri Rakesh Jaswal, Advocate. Arguments were heard. He supported the impugned judgment of acquittal passed by the learned trial Court, whereas the learned Additional Advocate General argued that the judgment of acquittal is perverse.

10. From the trend of the cross-examination of the witnesses and also on the perusal of the statements of the defence witnesses, it transpired that the brother of the complainant was arrested in a case under Section 302 of the Indian Penal Code and the complainant insisted upon the respondent to provide some financial help to save her brother, but the respondent did not provide such relief, which caused bitterness between them. The respondent is also alleged to have threatened by the near relation of the complainant, with the result, he filed a complaint to the police. They had prepared a complaint under Section 107/150 of the Code of Criminal Procedure against Nirmala Devi, Sher Singh and Vijay Kumar, the relatives of the complainant.

11. According to the case of the prosecution, the complainant was given beatings on 5.8.2001 by the respondent at 10 P.M. She was ousted from her matrimonial house. This is what she alleged in the initial complaint as well as in the Rapat Ex.PW2/A. When she was got medically examined, she gave the history of the alleged assault on 6.8.2001 at 10 P.M. and the duration of simple injuries in the form of bruises and abrasions which were allegedly found on her body of the duration between 36 to 48 hours as indicated in the Medico Legal Certificate Ex.PW3/B, whereas she was examined on 8.8.2001. If the maximum allowance of 48 hours is taken from the time of her examination by the doctor, it comes to 6.8.2001 as against 5.8.2001, the date of alleged incident. Thus, the story of giving beatings to her on 5.8.2001 becomes doubtful. She stated that she disclosed about maltreatment by the respondent to her father PW6 Sukh Ram and PW7 Smt. Nirmala Devi, Pradhan of the Panchayat.

12. PW6 Sukh Ram her father expressed his ignorance, whereas Nirmala Devi aforesaid, Sher Singh and Vijay Kumar, were the non-applicants in the complaint under Section 107/150 of the Code of Criminal Procedure filed by the respondent earlier, i.e. on 3.12.1999. PW6 also admitted that his son was involved in a murder case, but feigned ignorance that the complainant had demanded money from the respondent to defray the expenses for engaging a counsel to get his bail. He did not positively say that the respondent had been given beatings to her or that he at any time threatened her to do away with her life. Even PW7 Nirmala Devi Pradhan who is also related to the complainant and is her neighbour stated that the complainant had come to her about one year ago she made a complaint about the beatings given by the respondent, but both the statements coupled with the statement of the complainant does not meet the warp-woof of the ingredients of Section 498-A of the Indian Penal Code.

13. “Cruelty” has not been defined in the Indian Penal Code but the explanations added to Section 498-A spells out the ingredients of the offence of “cruelty” which are cruelty and harassment. The elements of cruelty so far as clause (a) is concerned can be classified as follows:

(i) any ‘willful’ misconduct which is of such a nature as is likely to drive the woman to commit suicide; or

(ii) any ‘willful’ conduct which is likely to cause grave injury to the woman; or

(iii) any ‘willful’ act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.

14. To constitute “cruelty”, the evidence should conform to the above standard.

15. In Smt. Raj Rani v. State (Delhi Administration); AIR 2000 SC 3559 the apex Court held that while considering the case of cruelty in the context to the provisions of Section 498-A IPC, the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt. Further, in another case Girdhar Shankar Tawade v. State of

Maharashtra, AIR 2002 SC 2078, the Supreme Court held that “cruelty” has to be understood having a specific statutory meaning provided in Section 498-A I.P.C. and there should be a case of continuous state of affairs of torture by one to another.

16. Taking note of the above judgments amongst others Supreme Court in Manju Ram Kalita v. State of Assam 2009 (2) S.L.J. (S.C.) 1036 observed that “cruelty” for the purpose of Section 498-A Indian Penal Code is to be established in the context of S. 498-A IPC as it may be different from other statutory provisions. It is to be determined/ inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/ persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as ‘cruelty’ to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as “cruelty”.

17. Even the evidence with respect to criminal intimidation is also not inspiring confidence, thus, the evidence on record fails to establish a case against the respondent for the offences charged.

19. Therefore, the findings of acquittal of the respondent, recorded by the learned trial Court are borne out from the record, which require no interference, as such, the appeal lacks merit and is accordingly dismissed.

20. The respondent, who is in custody, is hereby ordered to be released forthwith.

Send down the records.

December 29, 2010.

(Surinder Singh), (Pds)

Judge.