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CASE NO.:

Appeal (crl.) 609 of 1997

PETITIONER:

Hans Raj

RESPONDENT:

State of Haryana

DATE OF JUDGMENT: 26/02/2004

BENCH:

N. Santosh Hegde & B.P. Singh.

JUDGMENT:

JUDGMENT

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 \026 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.

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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

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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

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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

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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

law has been succinctly stated in RameshKumar Vs. State of

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

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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 \026 "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 \026 "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

Sanjay Singh Sengar Vs. State of M.P. (2002) 5 SCC 371.

In the State of West Bengal Vs. Orilal Jaiswal and Anr.

(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

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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.