MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI.

ENGLISH-II
FINAL SUBMISSION
Pawan Kumar v. State of H.P.

NAME: SIDDHANT LOKHANDE.

ROLL NUMBER: 2017-054.

COURSE: B.A., LL.B.(Hons.)

SUBMITTED TO: Dr. UPMANYU SENGUPTA.

(Course Instructor)

DATE OF SUBMISSION:10TH SEPTEMBER 2018.

We today live in a patriarchal structure, but are constantly trying to battle the same oppressive
structure. But while we are trying to provide a solution to the structure each one of us is a
victim of the same structure. The males like the Judge of the case take up the “White Man’s
burden” of protecting feminism and thus further propound patriarchal values themselves.

The case is a special leave petition of criminal nature wherein suicides committed by victims
of harassment in this post-human era is the main focal point. There are various questions which
need to be asked as this case is about harassment and whether harassment amounts to abetment,
but the most pertinent question one is compelled to think of has been put-forth by Justice Dipak
Mishra himself in this judgement, which is, ‘why women in this nation cannot be permitted by
the social actors to live in peace and lead a life that is warranted with dignity and freedom.’1
The main issues analysed by the court were, whether the high court has the power to overturn
a judgement, what is the legal validity of a dying declaration and the main issue of abetment to
suicide.

The facts of the case are that a young girl, in the middle of her teens, fell in love with the
accused- appellant and eloped with him. The accused later was booked for the offences
punishable under Sections 363, 366 and 376 of the Indian Penal Code (IPC), as the young girl
stood behind the accused, he was acquitted of all the charges. The sad story gets into a new and
different beginning. The accused feels that he has been prosecuted due to the prosecutrix and
gets obsessed with idea of threatening the girl and that continues and eventually eve- teasing
becomes a matter of routine. Here, as the exposition of the prosecution uncurtains, a situation
is created by the accused which becomes insufferable, where the young girl feels unassured
and realizes that she could no more live in peace.

The feeling gets embedded and the helpless situation compels her to think that the life is not
worth living. Resultantly, she pours kerosene on her body and puts herself ablaze but death
does not visit instantly and that is how she was taken to a nearby hospital, where in due course
of investigation, her dying declaration is recorded, but she ultimately succumbs to her injuries.

1
Per CJI Dipak Mishra, ‘why women in this nation cannot be permitted by the social actors to live in peace and
lead a life that is warranted with dignity and freedom.’ Pawan Kumar vs State Of H.P, S.L.P. (Crl) No. 8998 of
2016)
The language of the judgement is a appropriate depiction of the contemporary social morality,
wherein Justice Dipak Mishra presents the facts of the case by depicting the victim as a weak
and driven by youthful fixation. This depiction of a female who elopes is quite common. It is
Indian societal construct of blaming the girl and this is seen in the way the judgement is given,
by the learned judge. The judge has also taken into consideration the social standing of the
family and the economic resources available. This consideration is very vital in deciding
whether the girl was truly in mental distress and did it cause her mental anguish. But again, the
criticism to this view is the fact even though she would have been from a rich-urban family it
might have caused equal mental stress. So, it is not a water-tight basis for the evaluation
existence of mental stress, in fact there can be no water tight criteria to decide the extent and
existence of mental stress. At the same time no straightjacket formula for instigation can be
laid down as it is highly subjective as to what may or may not be instigating. So, the fact that
whether there was instigation by the accused was analysed by the court. As instigation forms a
basic-criteria for abetment and after the answer to the question of instigation was positive the
court could state that there was abetment.

Another issue raised by the court was the validity of the dying declaration. This became very
crucial as the credence given to the dying declaration by the high court became the basis for
reversal of the judgment given by the trial court. The dying declarations’ validity has been
questioned by the trial court as the doctor didn’t present a certificate declaring the victim to be
mentally fit to give a dying declaration. The court disapproves of the argument on the basis of
the testimony of the same doctor. The dying declaration was considered by the court and it
stood as a evidence to prove the existence of the mental harassment that the victim was going
through.

An appellate court, in this case the high court, had to bear in mind that in case of acquittal,
there is double presumption in favour of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court. This issue was also carefully
analysed by the court as the reversal of the judgement is taken very seriously and it can be done
only when the grounds for the judgement were unreasonable or new evidence has come up so
as to substantially affect the case.
Due to a rising sensitization of the general public regarding the issues faced by women, there
is a pro-feminine wave throughout India. This is evident in the judgement as the judge himself
is very biased and falls victim to the larger societal context. After a thorough reading of the
judgement one can see that it is filled with emotional biases towards the victim. The death of
the victim is also described in a very literary manner. The Justice system has taken up the
burden of ending the male egoism and the judge in the last paragraph says that, ‘Egoism must
succumb to law,’ this clearly shows that it is the burden of the justice system, which is male
dominated to protect the female. This shows that the patriarchal structure has precipitated so
deeply into various structures so much so that even if the court is trying to change the status
quo, it is indirectly strengthening it.

The democratic principles also make the judge their victim, wherein the idea the formation of
civil society will be the answer to all the present issues is addressed. The judge expresses his
views that such injustice and gender-based inequality should not take place in a ‘civilized
society.’2 This idea has been propagated by the global wave of liberal-democratization. Also,
it is claimed that the incidents of eve-teasing and harassment will not take place in a civilized
society, but these subjective notions can never be eradicated even if a civilized society is
formed.

The court dismissed the appeal and the accused stood guilty. But the wider debate was the
staunching fact that the patriarchal structure is so deep rooted that even when there are
structures which oppose it but it still appropriates them within its structural ambit. Also, now
that the idea of democracy is globally accepted its emphasis on the need for civil society is also
a highlight of the judgement. The case stands as an important precedent on the issue of whether
eve teasing and mental harassment can be included in the compass of abetment to suicide.

BIBLIOGRAPHY

Per CJI Dipak Mishra, ‘why women in this nation cannot be permitted by the social actors to live in
peace and lead a life that is warranted with dignity and freedom.’ Pawan Kumar vs State Of H.P,
S.L.P. (Crl) No. 8998 of 2016)

CJI Dipak Mishra, ’civilized society.’ Pawan Kumar vs State Of H.P, S.L.P. (Crl) No. 8998 of 2016)

2
CJI Dipak Mishra, ’civilized society.’ Pawan Kumar vs State Of H.P, S.L.P. (Crl) No. 8998 of 2016)