Romesh Kumar vs State of Punjab

M.M. Punchhi, J.—In this appeal is raised an important question of law with regard to the applicability of the presumption arising in Section 113A of the Evidence Act to a crime which was committed prior to its insertion in the said Act. But before the point is examined in detail, the facts need be elaborated.

Romesh Kumar, resident of Batala, the sole appellant, was married to Parveen Kumari of Ajnala in the year 1981. As the prosecution case goes, they lived cordially for 2/3 months but then a consistent treatment of harassment and cruelty was meted out to her. Not only was the appellant accused of such misconduct but his father Sardari Lal, his mother Harbans Kaur and sister Subhash Kumari were said to be co-participants. About three months prior to the occurrence which took place on 9-5-1983, Parveen Kumari was administered a beating by the appellant and his co-participators for statedly the dowry brought by her bereft of a fridge, scooter and television set had dashed their expectations and in the meantime on the occasion of a son born to her, proper presents had not been made to her in-law''s family. She sought shelter in her parental house at Ajnala but her brother Mahesh Pal P. W. 1, accompanied by some members of the public, restored her back under the roof of her husband at Batala but then he had to pay for it. He gave Rs. 5,000/-to the appellant promising him some more suggesting to him that he should use the money in his business and give up gambling and drinking. As is apparent from the case set up by both sides, the appellant runs a confectionery shop selling bread and butter etc. In the joint house at Batala, his brother Lajpat Rai and his family occupied the first floor. In one portion of the ground floor lived the appellant with his wife and in the other his parents and sister. All the three families had separate kitchens.

On 9-5-1983 at 10.10 A.M. Parveen Kumari was burnt to death. The burns were 100%. According to the complainant party, she was put to death but, according to the prosecution, she had committed suicide. The defence, on the other hand, suggested that she had died on account of the accidental bursting of the kerosene stove while she was heating milk for her infant child. A message was sent to her brother Mahesh Pal which he received sometimes in the evening. He reached Batala at 8 P. M. the same day accompanied by a few of his relatives. He made an application at 10 P. M. to the police for registration of the case. However, beforehand, Lajpat Rai, the brother of the appellant, reported to the police at 7.45 P. M. that the death was accidental.

The prosecution besides sending the appellant to face trial arraigned his parents and sister as accused. The learned Additional Sessions Judge, Gurdaspur acquitted them of the charges but convicted the appellant for the offence charged and sentenced him to five years'' rigorous imprisonment besides imposing a fine of Rs. 2,000/-, in default of payment of which further rigorous imprisonment for one year. The fine, if paid, was to go to the mother of Parveen Kumari. This has given rise to this appeal.

As mentioned earlier, the occurrence took place on 9-5-1983 and Section 113A was inserted in the Evidence Act with effect from 25-12-1983. That section reads as follows :

113A. Presumption as to abetment of suicide by a married woman.- When the question is whether a commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.-- For the purposes of this section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860).

Simultaneously Section 498A was also inserted in the Penal Code which reads as follows :

498A. Husband or relative of husband of a woman subjecting her to cruelty.

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- For the purposes of this section, "cruelty" means-la) 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.

The aforesaid provision in the Penal Code provides the meaning of the word "cruelty", employed in Section 113A of the Evidence Act but Section 498A of the Penal Code as a penal provision is not retrospectively applicable. There are no two opinions about it.

Now the question is whether Section 113A of the Evidence Act applies to a case of suicide occurring before 25-12-1983 (The date of the insertion) which has been tried or is being tried after the said date, learned Counsel for the appellant was at pains to contend that this provision had a substantive character and could not be made to apply retrospectively. He asserted that the conduct amounting to abetment in the pre-amendment times was being viewed differently but after the amendment, more than enough has been straight-jacketed creating a fresh angle of vision and thus creating almost a new offence in the garb of a presumption. On the other hand, learned Counsel for the State maintained that the provision was procedural in nature and the view of the legislature now formulated in a presumption was not altogether alien to the concept of abetment as known to law.

It is universally recognised as a principle of law that procedure of a trial, civil or criminal, is governed by the rules of the forum and the Law of Evidence is part of the Law of Procedure. It is termed in Anglo-American language as lex fori. Taking it to be law of procedure, it results in practical convenience. It has been taken as established that the Law of Evidence is a branch of adjective law and, therefore, all questions of evidence must be decided according to the law of the forum in which the action is tried. And being part of the Law of Procedure, changes in Evidence Act like changes in other rules of procedure are retrospective in nature. Now here the Legislature has channelised and focussed the attention of the Court that it can raise a presumption of abetment against the persons named therein if it is shown that a woman had committed suicide within a period of seven years from the date of her marriage when proved that they had subjected her to cruelty of the kind mentioned in Section 498A of the Penal Code. Even without raising the presumption in the pre-amendment period, the Court was not absolved in putting parties to proof and arrive at a conclusion that a woman committed suicide which was abetted by her husband or her relatives. By introducing the aforesaid provision, the Court has been facilitated to raise a presumption, though rebuttable. Raising of presumptions at a trial is not part of the substantive law and hence the question of retrospectivity in this regard does not arise. Furthermore, the presumption is only applicable within a duration of seven years from the date of marriage because in those years the newly married woman after transplantation in her new family is supposed to be taking roots and thus vulnerable to various adverse factors which may amount to cruelty. Keeping that practical angle in view, the attention of the Court is focussed when deciding a case of abetted suicide. Thus, I am of the firm view that Section 113A of the Evidence Act is applicable to the instant trial and that the presumption is drawable if there is evidence of her husband having subjected her to cruelty of the kind defined in Section 498A of the Penal Code. Now the stage is set to view the prosecution evidence.

Mahesh Pal P.W. 1, besides detailing out the prosecution story as set out above, stated that after two or three months of the marriage, the appellant and his family members, the acquitted co-accused, started maltreating Parveen Kumari deceased for not having brought sufficient dowry in the form of scooter, fridge and television set.

They taunted her quite often. She kept replying to them that her parents were poor and could not afford the dowry asked for and had given whatever they could afford. As mentioned earlier, according to him, she was turned out of the house about three months prior to the occurrence on account of her inability to satisfy them and they gave her a beating before that. Parveen Kumari came to Ajnala weeping and narrated her tale of woe to him. According to him, he advised her that in the Hindu society a married girl should live with her in-laws. He took aid of some respectables of the town, went to rehabilitate his sister back in her house and in the presence of all gave Rs. 5,000/- to the appellant to start some business with a promise for further help. According to him, the appellant was a gambler and a drunkard. He accepted the suggestion that before marriage no demand for dowry was made but after marriage gradually the ugly head of dowry started rising. A suggestion was put to him that the appellant already had a T.V. set, scooter and fridge but this fact was denied by him. Almost on the same lines is the statement of Tilak Raj P.W. 3, an ex-Municipal Commissioner who went with Mahesh Pal to rehabilitate the deceased. According to him, all of them advised the appellant to give up drinking and gambling and keep his wife with love and affection. On the same lines was the statement of Raj Kumar, Proprietor, Nursery School, Ajnala, and lastly of Roop Lal P.W. 10, the brother of Mahesh Pal P.W. 1. Additionally, he stated that in Dec. 1982, he had gone to Phillaur to attend the marriage of his first cousin where the deceased had also come and not the appellant. When the time of customary garlanding the bridegroom came, the deceased could not garland the bridegroom with a currency notes sewn garland like others and on that she had wept before her mother who consoled her by giving her Rs. 500/- and advised her to take things in stride as part of life. He identified letters, Exhibits P. 2, P. 3 and P. 7, to have been written by his sister as also Exhibit P. 1, a copy book written by her.

In addition to the above evidence, there is evidence of Shanti Parkash P.W. 8, who had as an intermediary arranged the marriage and the two letters, Exhibits P. 2 and P. 3, she seemingly had written to him; one by post and the other by hand through Sat Pal P. W. 7 seven or eight days before her death. The handwriting on the copy book and on those letters, besides owned by P. Ws. 1 and 10, her brothers, was identified by Jiwan Dass P.W. 4, a Government teacher, who had coached her in Hindi in the year 1975. Shanti Parkash also detailed out how he was conveyed about the constant harassment of the deceased at the hands of the appellant and his family members.

As is clear from the above evidence, the conduct of the appellant, if proved, would amount to cruelty in reminding his wife off and on that he should have been provided with a T.V. set, fridge and a scooter and be harassment with a view to coerce her to ask her brothers to meet that unlawful demand, for on one occasion they had" satiated his demand by paying him Rs. 5,000/-. This would have encouraged him to continue harassing her. On the other hand, inability of his wife or her brothers to meet such a demand would be obvious cruelty and the Court can raise a presumption u/s 113A of the Evidence Act that this cruel conduct adopted by the appellant was to lead her by instigative conduct and intentional aid to commit suicide.

The plea of the appellant of course was one of denial. He maintained that his wife had caught accidental fire when she was boiling milk for their infant child. He denied ever having pushed out his wife from his house about three months prior to the occurrence or to have received a sum of Rs. 5,000/- from his brother-in-law in the presence of the respectables. With regard to the incident at Phillaur, he maintained that he had attended the marriage of the cousin of his wife and that he and his wife both had garlanded the bridegroom with currency notes. He denied letters, Exhibits P. 2, P. 3 and P. 7, to have been written by his wife. Rather, he maintained that his brother had produced two letters before the police which were in the handwriting of Parveen Kumari. He led defence evidence.

Gurdip Singh Bajwa D.W. 1 is a close neighbbur of the appellant because the former''s shop is close to the house of the, latter. According to him, he had not seen Parveen Kumari being maltreated by anyone or to have been asked for any dowry. He maintained that on the day of the occurrence, he had heard cries of the deceased and he was one of the many who had collected at the scene. He found Parveen Kumari lying in the kitchen, the door of which was open. In the kitchen, milk was lying split. Her body was later brought in the verandah. Dilbagh Singh Bagga D.W. 2 is a Municipal Commissioner of the same ward in which the appellant resides. According to him, he never saw anyone maltreating Parveen Kumari for demand of a dowry. S.C. Diwan D.W. 3, an officer from the United Commercial Bank, Batala, deposed to the deceased having opened a joint account with the appellant and another account in the name of her minor child. The evidence of these three D.Ws. is mostly negative suggesting that nothing untoward happened for which the appellant could be held responsible. This does not carry the case of defence any far. Mohinder Lal Sekhi D.W. 4 deposed that on 10-3-1976 he had sold a bottle cooler to Romesh Kumar, suggestedly the appellant. Even if his statement is accepted as correct, bottle cooler was an item meant for the confectionery shop of the appellant. This too does not advance the case of the appellant that there could be no demand for dowry on the mere fact that he owned a bottle cooler. Lakhwinder Singh Chimni D.W. 5 deposed that on 16-11-1979 Dr. Sardari Lal had purchased a Vijay Super scooter from him. Dr. Sardari Lal is suggested to be the father of the appellant. Even the appellant''s father owning the scooter does not militate against the suggestion of the prosecution that the appellant was greedy of having a scooter of his own. Rachhpal D.W. 6 deposed of having sold a T.V. set to Lajpat Rai, suggestedly the brother of the appellant, on 12-5-1979. Even if his statement is accepted as correct, this also does not militate against the demand of the appellant for a T.V. set. Tarsem Lal D.W. 7 deposed that on 23-11-1982, he had sold a refrigerator to Lajpat Rai, suggestedly the brother of the appellant. Even if his statement is admitted as correct, then it cannot be said that the appellant desired no refrigerator when his brother was living separate from him on the upper storey. Rattan Lal D. W. 8 only talked of the hours of duty of Sat Pal P.W. and seems to me of no value. Tak Bahadur D.W. 9 on 23-6-1977 sold a scooter to Lajpat Rai, brother of the appellant. This evidence also would rather go against the appellant for his brother had a T.V. set, refrigerator and a scooter and so had his father a scooter but he did not have any of these things and hence his greed. Gopal Krishan D.W. 10 deposed that he sold to the appellant one Deep Freezer on 6-3-1981. This obviously was no substitute to the refrigerator and normally would have been bought by the appellant for use at his shop. Lastly, P.S. Ahuja D.W. 11, Handwriting Expert, Ludhiana, gave his opinion regarding the handwriting of the deceased vis-a-vis the letters produced by the prosecution and the letters produced by the defence.

Having gone through the record with the assistance of the learned Counsel, I have come to the view that the defence led by the appellant rather supports the prosecution case that his father Dr. Sardari Lal and more particularly his brother Lajpat Rai were possessed of more amenities which the appellant when living separately from them was deprived of and the convenient source to him for feeding his hunger for things like fridge, T.V. set and scooter was the parental family of his wife. No wonder that three months prior to the occurrence, he turned his wife out, and her brother with the aid of respectables of Ajnala brought her back in her husband''s house. Even if one is to view a little cautiously the evidence of Mahesh Pal P.W. 1 and of Roop Lal P.W. 10, being brothers of the deceased, I can think of no reason why statements of Tilak Raj, ex-President, Municipal Committee, Ajnala (P.W. 3), by all means a responsible public man, and Raj Kumar P.W. 5, a proprietor of Nursery Model School, Ajnala, another responsible man, be not believed for the incident of rehabilitation of Parveen Kumari in her husband''s house and payment of Rs. 5,000/- to the appellant and the promise given to him for more payment. These two witnesses are totally disinterested. The fact that the payment of money was simultaneous with permitted living of Parveen Kumari with the appellant goes a long way to establish cruelty by the appellant as envisaged in the Explanation added to Section 498A of the Penal Code and this conduct is enough to raise a presumption u/s 113A of the Evidence Act to hold that the appellant was responsible for abetting the suicide of his wife. This presumption the appellant has failed to rebut, as is evident from the consideration of his defence evidence. He could not suggest a word against P.Ws. 3 and 5. This finding singularly is enough to maintain the appellant''s conviction. Keeping aside for the moment the letters, Exhibits P. 2, P. 3 and P. 7, of the deceased which go a long way to disclose the maltreatment meted out to her, one need not indulge in the dispute whether the letters produced by the prosecution are those of the deceased or the ones produced by the defence are hers. And even if one does, except for the bald suggestion of the defence that those letters were of the deceased, there is no positive evidence to prove that fact despite Mr. P.S. Ahuja D.W. 11 on comparison saying to that effect. His is barely an opinion on the letters produced by the defence. But to the contrary is the teacher of the deceased, Jiwan Dass P.W. 4, identifying her handwriting on letters, Exhibits P. 2, P. 3 and P. 7. Who could be a better expert than a teacher identifying the handwriting of his pupil. I would rather place implicit reliance on the evidence of Jiwan Dass P.W. 4 to conclude that those letters were written by the deceased in which she had written to her uncle about the maltreatment meted out to her by the appellant and his family members.

Having viewed the case from all possible angles, I am of the view that the deceased did not die an accidental death but rather committed suicide on account of the cruel conduct adopted by the appellant towards her and in this way he abetted her suicide. Charge against the appellant is thus proved to the hilt Accordingly, his conviction is maintained. His sentence of imprisonment is, however, reduced to four years'' rigorous imprisonment while maintaining that of fine taking into account the consumerism which has afflicted all sections of society more particularly the lower middle classes, and their race ''to keep up with Joneses''.

Resultantly, this appeal is dismissed with the above modification in the sentence.