Legally cruelty for the purpose of Section 498-A

Legally cruelty for the purpose of Section 498-A is to be
established in that context as it may be different from other
statutory provisions. It is to be determined/inferred by considering
conduct of the man, weighing 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 of complaint.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr. Appeal No. 413 of 2005
Decided on: 6th December, 2012.
State of Himachal Pradesh.
...Appellant
Versus
1. Rakesh Kumar Sharma S/o Sh. Kishori Lal.

Coram
The Hon’ble Mr. Justice R.B. Misra, Judge.
The Hon’ble Mr. Justice Surinder Singh, Judge.
Citation;2013(2)Crimes 31 (H.P )

The acquittal of the respondents passed by learned
Additional Sessions Judge, Fast Track Court, Shimla for the
offences under Sections 498-A, 306 read with Section 34 of the
Indian Penal Code has been challenged in the present appeal.

Heard and gone through the record. The undisputed
facts are that:
(i)
The deceased Smt. Vijay Bharti was married to the
respondent Rakesh Kumar on 5th December, 1997.
She
committed suicide by partially hanging in her room on 4.1.2002 at
her residence at Sanjauli, where she was residing with her
husband, parents in law and the other respondents.
(ii)
Respondents No. 2 and 3 Miss. Reena Sharma and Miss
Monika Sharma are unmarried sisters of respondent No. 1.
(iii)
Respondent No. 1 was Draughtsman (Civil) in HPSEB,
Shimla.
(iv)
Respondent No. 2, Miss Reena Sharma is post
graduate in Engineering and B.Sc B.Ed and for some time she
remained as teacher in SPM Model High School Sanjauli, Shimla.
(v)
Respondent
No.
3,
Miss
Monika
is
M.Phill
in
Mathematics and serving in private Engineering College as
lecturer.
(vi)
After one year of marriage, deceased started living in
a rented house with her husband, near the house of her in-laws.
3.
As per the prosecution case, the relations between
deceased, respondents and other family members did not remain
cordial, as such, she had been quite often complaining to PW-1
Minakshi Gautam. It is alleged that respondents No. 2 and 3 had
been passing comments against the deceased that she did not

know the house hold work and did not know how to wash clothes.
It is alleged that when she was carrying eight months pregnancy,
her husband left her alone in the rented room unattended. Then
she was taken to her home by PW-2 Kaura Devi, where she
delivered a child and after birth of child, she joined the company
of her husband.
On 4.1.2002, as already stated above,
deceased was found partially hanging in her room, which was
bolted from inside.
Police was called and door was broken
open and dead body was taken out by PW-8 H.C.
with the assistance of other constables.
Suraj Parkash,
Thereafter PW-10
Dr.Piyush Kapila, Registrar Forensic Medicine, IGMC, Shimla was
called to the spot.
He inspected the dead body and thereafter
at the request of police the dead body was taken to hospital for
conducting post mortem.
Apparently, doctor did not notice any
ligature mark on the neck but faint marks of contustions were
present on the neck. Hypostasis had not appeared on the back
of the dead body.
There was no frothing or salivation from the
mouth, however, the face was congested and body was worm.
The partial hanging was with sari Ex. P-26. The doctor also noticed
the congestion and bluish coloration of the face and pale
extrimities.
No ligatures mark could be appreciated at the time
of fixing on the back purpling colour.
appear in big joints and neck.
subcutaneous
on
the
neck.
Riger mortis has started to
No evidence of crushing of
There
was
no

fracture of hyoid bone, thyroid cartilage or cricoids cartilage was
found.
In both the lungs evidences of petechial hemorrhages
were found in the inter lobar fissures. Tongue was not bitten in
between the teeth. There was no food or fluids in the stomach
neither any smell nor congestion was seen. Viscera were not sent
for chemical examiner. There were gross petechial hemorrhages
on liver, spleen and kidney.
The deceased was in menstrual
phase and sanitary pad was in situ.
Prima facie doctor was of
the opinion that the deceased had died of antemoratem
exphysia secondary to partially hanging leading to death-suicidal
in nature in all probabilities.
Post mortem report along with
ligature material and the jewellary articles found on the dead
body was handed over to the police vide inventory. The post
mortem report is Ex. PK.
police are Ex. PL(5 pages).
The inquest papers prepared by the
A wooden plank was found on the
spot when the doctor had visited the spot. The height of the grill
from floor was about 4 feet with which one end of the sari was
found tied.
The probable duration of injuries and death was
about 3 to 5 minutes and between death and post mortem was
about 6 to 7 hours with quite certainty that the doctor was of the
opinion that the case of the death was partial hanging, because
other nature of death like strangulation and complete hanging
can easily be ruled out by him in the present case. The police
had also taken the photographs of the dead body and had

prepared the site plan of the spot.
The police recorded the
statement of PW-1, Smt.Minakshi Gautam, under Section 154 of
the Code of Criminal Procedure, which ultimately culminated into
FIR against the accused persons for offences aforesaid.
The
challan was accordingly presented in the Court for trial.
4.
Finding a prima facie case against the respondents,
they were charged for the offences aforesaid and at the end of
the trial, they were acquitted of the offences.
The State felt
aggrieved against the impugned judgment of acquittal, filed the
present appeal.
5.
Sh. R.K. Sharma, Senior Additional Advocate General,
duly assisted by Sh. Ramesh Thakur, Assistant Advocate General
forcefully argued that the learned trial Court did not appreciate
the evidence of the prosecution in its right perspective.
No
reasons were assigned for discarding the cogent version of the
complainant, mother of the deceased and other witnesses, which
were examined by the prosecution to substantiate the charges.
The circumstantial evidence on record clearly proves that the
respondents were responsible for creating a situation for
committing suicide by the deceased in the matrimonial home
within seven years of her marriage. Therefore, by virtue of Section
113(A) of the Evidence Act, presumption as to abatement of
suicide by the decease could have been drawn.
Since the
findings of the learned trial Court dehorse the evidence,

therefore, there are chances of acquittal converting into
conviction of the respondents.
6.
Mr.
Anup
Chitkara,
learned
counsel
for
the
respondents countered the above arguments that the evidence
of the prosecution witnesses is tainted and exaggerated,
probably they were prejudiced with the untimely death of the
deceased.
It is submitted that there was an age difference
between the deceased and her accused/husband.
The
deceased was younger of about eight years. She was reluctant
to marry with respondent No. 1, however, otherwise also the
evidence on record suggests that she was suffering from
physiological problem, for which she had taken the treatment
from DW-2 Dr. Munish Kumar Saroch, Registrar, Psychiatry
Department IGMC and further he has referred to the statement of
PW-1, Minakshi Gautam that the deceased had been taken to
Sundernagar for treatment from a ‘Tantrik’. He has further stated
that the deceased was sensitive in nature and at one time, she
had also tried to commit suicide by jumping into Satluj River near
Tata Pani, who was saved by her husband.
Further that there
was no cogent and reliable evidence of cruelty by the
respondents and also in absence of the proof of cruelty the
presumption under Section 113(A) of the Evidence Act cannot be
drawn.

7.
We have appreciated the rival contentions of the
parties, in the light of the record, more carefully and cautiously.
Admittedly, the deceased had committed suicide within seven
years of her marriage. The presumption under Section 113(A) of
the Indian Evidence Act can only be drawn, when it is proved
that the suicide has been committed within seven years of the
marriage and further when the husband or any relative of her
husband must have committed the cruelty within the meaning of
Section 498 of the Indian Penal Code.
however, is rebuttable.
The presumption,
In other words, failure on the part of the
prosecution to prove that the deceased was subjected to cruelty
by the accused leads to the conclusion that the presumption
under Section 113(A) of the Evidence Act cannot be raised,
therefore, the instant case is required to be examined in the light
of the above settled principle of law.
8.
PW-1, Minakshi Gautam is the cousin of the deceased,
i.e. the daughter of her Mausi. She was residing in the vicinity of
the in-laws of the deceased. She stated that the deceased had
been visiting her and was also in touch on telephone. After about
2-3 months from her marriage, the relations between the
deceased and the respondents become strained, as they were
unnecessarily torturing her with regard to her conduct and
behavior and she was helpless. On this, she advised her to get the
matter settled by intervention of the parents-in-laws.
She had

also visited her mother in the month of June, 1998 at Karsog.
Simultaneously, her husband also reached there. On seeing the
deceased and her husband visiting the house, everybody was
surprised and felt concern and it was then the deceased told her
that she came alone from her house from Sanjauli and took a bus
to Karsog and her husband might have also boarded the same
bus, since some quarrel had taken place between them and she
had left the house of her husband.
Next day, Rakesh Kumar,
respondent returned Shimla and Vijay Bharti remained in the
house of her mother. This all happened in June, 1998. Thereafter
they tried to console the matter and the respondents told that it
was a family matter and nothing would happen in future. She
specifically stated that respondents No. 2 and 3 had been
torturing her by saying that she did not know how to cook food
and wash clothes and were in full control of the affairs in the
house.
They had also been giving beatings to her and pass
unpleasant remarks.
In cross-examination she stated that no
dispute have ever taken place in her presence in between
deceased and respondents. But a sporadic incident, took place
on the birth day of the daughter of the deceased when the
parents and sisters of respondent No. 1 did not attend the birth
day function, her husband wanted to provide packed dinner to
them, but deceased raised objection that since they failed to
attend the function, why the dinner should be served to them.

She also stated that only once, they had asked about respondent
Rakesh Kumar about the complaint made by the deceased,
when he stated that it was only family matter and in her opinion
the family skirmishes might have been solved between them,
because only for this, they had been living together.
She stated
that on account of age gap between the deceased and Rakesh
Kumar, she did not want to marry.
She also admitted the
suggestion that the deceased at one point of time was taken to
Sundernagar for treatment to Chela/Tantrik. This fact is denied by
her mother Kaura Devi.
She also stated that two days prior to
death, she was seen along with respondents No. 2 and 3 in the
market and before that she had also wished Happy New Year to
her on telephone and was quite happy.
9.
PW-2, Kaura Devi is the mother of deceased.
Her
husband had died about 14 years back. She worked as a part
time water carrier in a school at monthly wages of `900/- . In
addition
to
that
she
was
also
doing
agricultural
work.
Comparatively the family of the parents of the deceased was not
so much affluent as that of the respondents.
Previously, on
4.2.2002 a statement Ex.PG was made by Smt. Kaura Devi before
the police under Section 161 of the Code of Criminal Procedure,
wherein she had admitted that at one point of time, the
deceased had also tried to commit suicide by jumping into river
at Tata Pani and she was saved by her husband. PW-9, Inspector

Ramesh Kumar afforded corroboration to this statement by
proving it and admitted that PW-2 Smt. Kaura Devi had stated to
him that her daughter told her that she was fed up from her life
and for this reason, she had tried to commit suicide by jumping
into river and on arrival of her husband on the spot, she changed
her mind and came back accompanying him to her house from
the spot. Her other statement mark-Y was recorded on 30.2.2002,
but according to the investigating officer, she had herself
contacted to record her statement, which was recorded in the
house of PW-1, Smt. Minakshi.
Wereas, PW-2 stated that she
approached the police second time for recording her statement
as she was not in proper mental condition earlier.
that
the
respondents
were
not
properly
She stated
maintaining
the
deceased and inturn she herself had provided clothings to her,
but she could not tell how many times and how much money was
spent by her on clothes of deceased.
She also stated that the
deceased wanted to take divorce from the respondent/husband
and was called to Shimla. She further admitted that there was a
age difference between her daughter and her husband, as her
daughter was much younger to respondent No. 1.
She also
stated that the family dispute used to be compromised/patched
up by her daughter on her advice but she denied that her
daughter attempted suicide at Tata Pani, whereas, this fact found

mentioned in Ex.PG, her statement given to the police, as stated
above, when she was confronted with.
10.
PW-4, Bhartendu Sharma is the brother of deceased,
though stated that the respondents have been taunting her that
she did not know cooking food and washing clothes. In cross-
examination he admitted that he had to remain outside to pursue
his studies in Maharashtra, where he had gone in August, 2000.
He approached police of his own for his statement, while staying
in the house of PW-1, Minakshi.
He further stated that expenses
for marriage were arranged by his maternal uncle, as they were
not financially well, whereas, the respondents are financially well.
11.
PW-5 Sh. Matidhar Gupta is the nephew from the
village of PW-2, Smt. Kaura Devi.
He has introduced a new story
that twice or thrice, the deceased had stated that her husband
and other respondents used to give her beatings and also
demanded dowry, which was never the case of the prosecution
nor stated by any other witness. He was also confronted with his
statement recorded under Section 161 of the Code of Criminal
Procedure, wherein this fact did not find mention.
12.
PW-6 Sh. Maheshwar Dutt is also from the village of
Smt. Kaura Devi.
He stated that the respondents had been
passing taunts and using to tell the deceased that she did not
know cooking and washing of clothes.
He also stated that

respondent No. 1 was compelling her to live in the family with his
parents.
13.
The
respondents
have
denied
the
alleged
circumstances, which were found attendant upon to them. They
also filed a written statement under Section 233(2) of the Code of
Criminal Procedure, whereby they stated that the deceased was
highly sensitive and was suffering from Hysteria.
She was not
mentally stable and also was suspecting herself to be under the
spell of some evil spirit and she was got treated at IGMC Shimla
and Kali Temple Kanswal Khad near Sundernagar by respondent
No. 1 and also by the mother of deceased (PW-2). Respondent
No. 1 and the deceased had a visit to the parental house of the
deceased and remained there for a period of seven days and
returned on 30.12.2001 with the deceased happily.
She was
never harassed by any one and they were surprised by the act of
the deceased bolting the room from inside, when the accused
were not able to open the door and suspected some foul play,
the police was informed. The door was broken open and found
the deceased having committed suicide by partially hanging.
The deceased being an irrational and sensitive person, suffering
from Hysteria had committed suicide.
After her death, due to
strained relations, a false story was concocted with ulterior
motives.

14.
To prove their case, the respondents/accused also
produced DW-1, Sh. Umesh Sharma from the office of Deputy
Chief Engineer, HPSEB, where respondent No. 1 is serving.
Respondent No. 1 had claimed the reimbursement with respect to
medicines which he purchased for treatment of his wife and the
said witness proved Ex. D-1 to D-2, prescription slips which were
appended with the reimbursement form.
15.
To prove the prescription slips, respondents also
examined DW-2, Dr.Munish Kumar Saroch, Registrar, Psychiatry
Department, IGMC, Shimla. He admitted that the prescription slip
dated 28.4.1998 is in his hand and also the hand of Dr.Joginder
Mohan, who had examined Smt. Bharati in the Psychiatry
Department.
From this prescription slip, Smt. Bharti was lastly
given treatment on 8.6.98.
As per Ex. DW-2/A, she was given
treatment for ‘conversion reaction’ and ‘depression’.
stated that conversion reaction means hyseteria.
He also
In cross-
examination, he stated that the deceased was suffering from B.F.
32(depression), which is not common in women.
16.
On critical examination, we apparently find that the
deceased was suffering from depression. At one point of time,
she also attempted suicide by jumping into river near Tata Pani
but on arrival of her husband, she changed her mind and
accompanied him to her house.
We have also noted

exaggerations
and
inconsistencies
in
the
statements
of
prosecution witnesses with regard to cruelty meted out to
deceased.
17.
Legally cruelty for the purpose of Section 498-A is to be
established in that context as it may be different from other
statutory provisions. It is to be determined/inferred by considering
conduct of the man, weighing 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 of complaint.
It has been
observed in Manju Ram Kalita Vs. State of Assam (2009)13 SCC
330 that petty quarrels cannot be termed as “cruelty” to attract
provisions of Section 498-A IPC.
Causing mental torture to the
extent that it becomes unbearable may be termed as cruelty. In
Bansi Lal Vs. State of Haryana JT 2011(5) SC 373, the Supreme
Court observed that while considering the case under Section
498-A of the Indian Penal Code, cruelty has to be proved during
the close proximity of time of death and it should be continuous
and such continuous harassment physical or mental by the
accused should make the life of the deceased miserable, which
may force her to commit suicide.

18.
In the instant case, there is no such evidence on
record to show that any of the respondents have done any act of
cruelty in terms of Section 498-A of the Indian Penal Code, during
the close proximity of time of death. As per record, the deceased
committed suicide on 4.1.2002, whereas, prior to it she was seen
by PW-1 in the company of respondents No. 2 and 3 roaming in
the Bazar happily on the eve of new year.
19.
The entire gamut of the above discussion leads us to
the conclusion that there might be some minor abrasions in the
family as her respondent/husband wanted that deceased should
live in joint family with his unmarried.
It appears that this
proposition was not acceptable to deceased.
Since she was
already suffering from depression as stated by the doctor and
had been under treatment in the recent past that might be the
reason that because of her sensitive nature, she must have
finished her life, coupled with the fact that she already attempted
earlier by jumping into river at Tata Pani without any instigation or
abatement by the respondents.
20.
Therefore, in the above circumstances, we did not
see any reason to interfere in the judgment of acquittal passed by
learned trial Court, as a result of which the appeal stands
dismissed.

21.
The respondents are discharged of their bail bonds
entered upon by them at any time during the proceedings of the
case. Send down the records.
(R.B. Misra),
Judge
6th December, 2012
(KRS)
(Surinder Singh),
Judge