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Friday, February 15, 2013

Sections 306 and 498A, IPC -whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the 18Page 19 society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.” 15. For the aforesaid reasons, we allow this appeal and set aside the impugned judgment of the High Court and the judgment of the trial court holding the appellant guilty of the offences under Sections 306 and 498A, IPC and direct that the bail bonds executed by the appellant be discharged.


Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 985 of 2004
Atmaram s/o Raysingh Rathod                           ……
Appellant
Versus
State of Maharashtra                                       …..
Respondent
J U D G M E N T
A. K. PATNAIK, J.
This  is  an  appeal  against  the  judgment  dated
03.12.2003 of the Bombay High  Court,  Nagpur Bench,  in
Criminal Appeal No.10 of 1991 by which the High Court has
maintained the conviction of the appellant for offences under
Sections 306 and 498A of the Indian Penal Code (for short
‘the  IPC’)  and  the  sentence  of  rigorous  imprisonment  ofPage 2
three years and a fine of Rs.5,000/- for each of the aforesaid
two offences by the Sessions Court.
2. The facts  very  briefly  are  that  a written  report was
lodged by Gorsing Shewa Pawar (hereinafter referred to as
‘the informant’) on 17.07.1988 in the Police Station, Pusad
(Rural).   In  this  report,  the  informant  stated  that  the
appellant got married for the second time to his daughter
Purnabai with the consent of his first wife with a hope to get
a son from Purnabai and he treated her well for the first 2 to
2½  years  but  when  she  delivered  a  female  child,  the
appellant  and  his  family  members  started  beating  and
harassing Purnabai and also did not provide her with meals
and on 16.07.1988, the informant received a message that
Purnabai died by drowning in the well at Bhandari.  The
informant has further stated in the report that he reached
Bhandari in the evening and came to know that Purnabai had
not been given food for two days and was ill-treated with an
intention to ensure that she leave the house and because of
such ill-treatment Purnabai jumped into the well along with
her daughter Nanda and committed suicide.  On the basis of
2Page 3
the written report, an FIR was registered under Sections 306
and 498A of the IPC and after investigation, a charge-sheet
was filed against the appellant, his first wife, his father and
his  mother  and  they  were  all  tried  for  offences  under
Sections 306 and 498A read with Section 34 of the IPC in
Sessions case No.29/1990.
3. At the trial, altogether eight witnesses were examined.
The informant was examined as PW-1, the sister of Purnabai
was examined as PW-4,  the Police Patil of Bhandari was
examined  as  PW-5  and  the  Investigating  Officer  was
examined as PW-8.  At the trial, a written undertaking dated
17.04.1988 signed by the appellant to give equal treatment
to  both  his  wives  was  marked  as  Ext.47  and  a  written
undertaking signed by Purnabai to behave properly in future
was  marked  as  Ext.  48.   The  learned  Sessions  Judge
considered the evidence and, in particular, the evidence of
PW-1  and  PW-4  as  well  as  Ext.47  and  held  that  the
presumption  as  to  abetment  by  the  husband  and  his
relatives  of  suicide  by  a  married  woman  as  provided  in
Section 113A of the Indian Evidence Act, 1872 was attracted
3Page 4
and the appellant, his first wife, his father and his mother
were all guilty of the offences under Sections 306 and 498A
read with Section 34, IPC.  After hearing the accused persons
on the sentence, the learned Sessions Judge sentenced each
of the accused persons to rigorous imprisonment for three
years in respect of each offence and in addition, for a fine of
Rs.5,000/- each in respect of each offence by judgment and
order dated 09.01.1991. Aggrieved, all the accused persons
filed Criminal Appeal No.10 of 1991 before the High Court
and by the impugned judgment dated 03.12.2003, the High
Court set aside the conviction and sentence of the first wife,
the mother and the father of the appellant and acquitted
them of the offences, but maintained the conviction of the
appellant as well as the sentence imposed upon him by the
learned Sessions Judge.
4. Learned counsel for the appellant submitted that the
High  Court  has  relied  on  Ext.47  and  Ext.48  as  well  as
evidence of PW-1 and PW-4 to come to the conclusion that
the  appellant  had  ill-treated  the  deceased  Purnabai  on
account of which she had committed suicide by jumping into
4Page 5
the well along with her daughter.  She submitted that there
is nothing in Exts.47 and 48 to indicate that the appellant
had actually ill-treated Purnabai.  She submitted that Exts.47
and 48 would show that the appellant had undertaken before
the  Panchas to  give  equal  treatment  to  both  his  wives
Purnabai  and  Kesri  and  Purnabai  had  also  similarly
undertaken  before  the  Panchas that  she  would  behave
properly in  future even though  the appellant was having
another wife.  She submitted that the evidence of PW-1 and
PW-4  also  do  not  establish  any  specific  act  of  cruelty
committed  by  the  appellant  because  of  which  Purnabai
committed suicide.  She submitted that the  post mortem
report of the deceased Purnabai (Ext.35) does not show any
injury on her body and it also shows that she had her meals.
She submitted that the appellant has not committed any
cruelty of the nature defined in the Explanation to Section
498A, IPC.  She submitted that the Explanation to Section
113A of the Indian Evidence Act, 1872 is also clear that to
attract  the  presumption  as  to  abetment  of  suicide  by  a
married  woman,  the  husband  must  be  shown  to  have
5Page 6
subjected  the  married  woman  to  cruelty  of  the  nature
defined in Section 498A, IPC and, therefore, the presumption
under Section 113A of the Indian Evidence Act, 1872 was not
attracted in this case.  She submitted that the FIR (Ext.49)
was lodged on 17.07.1988, two days after the drowning took
place on 15.07.1988, because the appellant denied a share
in his properties to PW-1 and this was the defence of the
appellant in his statement under Section 313, Cr.P.C.  She
finally submitted that the evidence of PW-1 and PW-4 would
rather show that Purnabai was depressed and unhappy after
a female child instead of male child was born to her and it is
quite possible that she jumped into the well with the female
child on account of such depression and unhappiness.
5. Learned  counsel  for  the  respondent-State,  on  the
other hand, submitted in his reply that the evidence of PW-1
and PW-4 clearly establishes that the appellant has been
beating the deceased Purnabai and has not been providing
her  with  food  and  because  of  these  cruel  acts  of  the
appellant she committed suicide by jumping into the well
with her daughter. He submitted that the evidence of PW-1
6Page 7
and PW-4 were also corroborated by the FIR lodged by PW-1
as well as the evidence of PW-8.  He submitted that the
presumption  in  Section  113A of the Indian  Evidence Act,
1872 as to abetment of suicide by a married woman is also
attracted  in  this  case  as  the  deceased  Purnabai  has
committed suicide within a period of seven years from the
date of her marriage and the appellant has subjected her to
cruelty.  He submitted that this is, therefore, not a fit case in
which concurrent findings of the trial court and the High
Court with regard to the guilt of the appellant under Sections
306 and 498A, IPC, should be disturbed.
6. Section  498A,  IPC,  and  Section  113A  of  the  Indian
Evidence Act, 1872 are extracted hereinbelow:
“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  purpose  of  this  section,
"cruelty" means-
7Page 8
(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.”
“113A.  Presumption  as  to  abetment  of
suicide  by  a  married  woman.-  When  the
question is whether the commission of suicide
by a women 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 has 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 498-A of the Indian Penal Code (45 of
1860).”
7. A reading of Section 498A, IPC, would show that if the
husband or relative of the husband of a woman subjected
such  woman  to  cruelty,  they  shall  be  liable  for  the
8Page 9
punishment mentioned therein.  Moreover, the Explanation
to Section 498A, IPC, defines ‘cruelty’ for the purpose of
Section 498A, IPC, to mean (a) any willful 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.   A reading of Section 113A of the
Indian Evidence Act, 1872 will show that for the purposes of
Section 113A of the Indian Evidence Act, 1872, ‘cruelty’ shall
have the same meaning as in Section 498A, IPC.  Hence, to
convict a husband or any relative of the husband of a woman
or to draw up presumption as to abetment of suicide by a
married  woman  by  her  husband  or  any  relative  of  her
husband in case of suicide committed by a woman within a
period of seven years from the date of her marriage, there
must first be evidence to establish that such husband or the
9Page 10
relative  of  her  husband  committed  cruelty  of  the  nature
described in clauses (a) or (b) of the Explanation to Section
498A, IPC.
8. Therefore, the main question, which we have to decide
in  this  case,  is  whether  there  is  any  such  evidence  to
establish beyond reasonable doubt that the appellant had
subjected his second wife, Purnabai, to cruelty either of the
nature described in clause (a) or of the nature described in
clause (b) of the Explanation to Section 498A, IPC.  It is not
the case of the prosecution in this case that the appellant
had subjected Purnabai to cruelty of the nature described in
clause (b) of Explanation to Section 498A, IPC, as there is no
allegation  in  this  case  that  the  appellant  had  harassed
Purnabai with a view to coerce her or any person related to
her  to  meet  any  unlawful  demand  for  any  property  or
valuable  security  or  that  he  subjected  Purnabai  to
harassment  on  account  of  failure  by  her  or  any  person
related to her to meet such demand.  We have, therefore,
only to decide whether the appellant treated Purnabai with
10Page 11
cruelty  of  the  nature  described  in  clause  (a)  of  the
Explanation to Section 498A, IPC.  
9. Clause  (a)  of  the  Explanation  to  Section  498A,  IPC,
defines ‘cruelty’ to mean 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.  Exhibit 47, on
which the High Court has relied on, is the English translation
of the written undertaking given by the appellant before the
Panchas, and is extracted hereunder:
“…. As I was not having son, I got married with
Purnabai from village Bhidongar, in Ganhar for
getting son, about 5 to 6 years back.  As I have
first wife, an bhangad (problems) used to take
place  (between  them)  at  my  home.   As  the
dispute  was  taken  (brought)  before  panchas.
On this day, the panchas advised me to treat
both the wives well.  Henceforth I will give equal
treatment to Purna as well as Kesari, the sisters.
If I commit any mistake in future, I will be bound
by the rules.  Hence this undertaking. ..”
A reading of Ext. 47 would only indicate that the appellant
got married with Purnabai for getting a son and as he had his
first wife also, some problems used to take place between
11Page 12
Purnabai and his first wife in his house and the dispute was
brought before the  Panchas and the  Panchas advised the
appellant to treat both the wives well.  The appellant had
stated in his undertaking that as the Panchas advised him to
treat both the wives well, he gave an undertaking that in
future he will give equal treatment to Purnabai as well as
Kesari (his first wife) and he will not commit any mistake in
this regard.  Exhibit 48 is an undertaking dated 17.04.1988
given by Purnabai in which she has assured that she would
behave  properly  in  future  but  her  husband  should  also
behave  properly  with  her.   Thus,  Exts.  47  and  48  are
evidence  of  some  misbehaviour  of  the  appellant  towards
Purnabai but the nature of the misbehaviour of the appellant
towards Purnabai has not been stated in these two Exhibits.
10. PW-1 in his evidence, however, has stated that since
the birth of a son from the first wife, the appellant started
beating and ill-treating Purnabai and they were not providing
her food and this he had come to learn from Purnabai.  He
has also stated in his evidence that he had gone to Paradha
12Page 13
at the house of Shantabai before the death of Purnabai and
some ladies from Bhandari had come there for grinding their
grains in the flour mill and they had reported to him that the
appellant and his family members were beating Purnabai
severely.   He has stated that he, therefore,  went to  the
house of the appellant and found marks of Shiwal on the
hands and thigh of Purnabai and he brought her to Paradha
and he was going to report the matter to the Police Station,
but the appellant and his family members and others came
and told him that the appellant is going to give in writing
that henceforth he will not beat Purnabai.  PW-1 has further
deposed  that  thereafter  the  appellant  executed  the
undertaking  (Ext.47)  dated  17.04.1988  and  Purnabai
executed the undertaking (Ext.48) dated 17.04.1988 before
the  Panchas and  Exts.  47  and  48  were  kept  with  the
Sarpanch and the Police Patil.
11. The aforesaid evidence of PW-1 establishes that the
appellant used to beat Purnabai and was not giving her food
before he executed the undertaking in Ext.47 on 17.04.1988.
13Page 14
The drowning of Purnabai took place three months thereafter
on  15.07.1988.   For  holding  the  appellant  guilty  of  the
offences under Sections 306 and 498A, IPC, there must be
evidence of wilful conduct of the appellant towards Purnabai
soon before her drowning which could have driven her to
commit  suicide  and  this  is  what  PW-1  has  said  in  his
Examination-in-Chief on what happened before the drowning
of Purnabai:
“Thereafter I took Purana to Bhandari in
the house of accused no.1.  Thereafter I
brought her back to my house for Rasai.
She  complained  that  there  is  illtreatment  going  on  though  it  is
lessened.   She  complained  me  that
accused  was  not  providing  her  with
meals and used to beat her.  She also
told  that  as  accused  do  not  give  her
food she begs for food from others even
then I reached her with the hope that
everything will be settled.   Later on I
received  the  news  of  her  death.   On
hearing dead news of Purana I went to
Bhandari.   I  found  Purana  and  her
daughter dead due to drowning in the
well.  I enquired there at Bhandari and I
came  to  know  that  there  was  lot  of
beating given to Purana and hence she
died on fall in the well.  I came to know
that there was accidental death.  I also
came to know that Purana died along
14Page 15
with her girl after falling  in the well due
to  ill-treatment  received  by  her  from
accused persons.  Then I went to Rural
P.S. Pusad and reported the matter.  The
report now read over to me is the same.
It’s contents are correct.  It bears my
thumb  impression.   It  is  at  exh.49.
Printed F.I.R. shown to me also bears my
signature.   It  is  at  exh.50.   Police
recorded my statement.”  
12. In the written report (FIR) lodged by PW-1 on which the
prosecution has relied upon for corroboration, it has been
similarly stated:
“So,  I  sent  my  daughter  again  to
Bhandari  and  then  I  brought  my
daughter on the occasion of Rosa.  At
that time I came to know that the said
four  non-applicants  were  again  illtreating and beating my daughter and
not providing her meals too.  I also came
to know that she is required to beg for
food.  Still then, I sent my daughter to
their  house.   On  16.7.88  I  received
message that my grand daughter died
on account of drowning into the well at
Bhandari.  On getting the said message,
I reached there at the time of evening
and  then  I  came  to  know  that  my
daughter Purnabai and grand daughter
died.  On enquiry in the village, I came
to know that my daughter was not given
food  since  last  two  days  and  was  illtreated with an intention that she should
15Page 16
leave the house and hence my daughter
Purnabai  jumped  into  the  well  and
committed  suicide  with  her  daughter
Nanda.”
It is thus clear from the evidence of the PW-1 and from the
FIR lodged by him that he had no personal knowledge about
the  cause  of  the  death  of  Purnabai  but  on  enquiry  at
Bhandari he had come to learn that there was lot of beating
of Purnabai and no food was given to her and for such illtreatment she had jumped into the well with her daughter.
13. No  witness  of  Bhandari  from  whom  PW-1  made  the
inquiry has been examined by the prosecution to prove such
beating  and  denial  of  food  to  Purnabai  soon  before  she
committed suicide.  PW-4, the sister of Purnabai, has not
deposed that there was any beating and denial of food to
Purnabai soon before her drowning in the well.  PW-5, the
Police Patil of Bhandari, has stated that Purnabai was illtreated by the appellant in his house and he came to learn of
this fact from the father of the appellant Raysingh who also
told him that Purnabai’s father had for this reason taken
16Page 17
Purnabai to Paradha three months back but the appellant
and his father took four  to five  Panchas to  Paradha and
brought  back  Purnabai.   PW-5  has,  therefore,  also  not
deposed that Purnabai was beaten or not given food because
of which  she jumped into  the well with her  daughter on
15.07.1988.  On the other hand, on a perusal of the  post
mortem examination report (Ext. 35) of deceased Purnabai,
we  find  that  the  Doctor  has  described  Purnabai  as  ‘well
nourished’ and the last meal appears to have been taken by
her  within  six  hours.   Moreover,  the  post  mortem
examination  report  (Ext.  35)  does  not  show  that  the
Purnabai was subjected to any severe beating before her
death.
14. From  the  discussion  of  the  aforesaid  evidence  on
record, we find that the prosecution has not been able to
prove beyond reasonable doubt that the appellant was guilty
of any wilful conduct which was of such a nature as was
likely to drive Purnabai to commit suicide.  Rather, there
appears to be some evidence in the depositions of PW-1 and
17Page 18
PW-4 (father and sister of Purnabai) that Purnabai was sad
due to a daughter being born to her and a son being born to
the first wife of the appellant.  These circumstances may
have driven Purnabai to commit suicide by jumping into the
well along with her daughter.  Such a consequence from the
mental state of Purnabai cannot be a ground for holding that
the appellant was guilty of cruelty within the meaning of
clause (a)  of the Explanation  to  Section  498A,  IPC.  We,
therefore, hold that the presumption under Section 113A is
not attracted and the appellant cannot also be held guilty of
abetting the suicide of Purnabai.  We have to bear in mind
this note of caution in State of West Bengal v. Orilal Jaiswal
& Anr. [(1994) 1 SCC 73]:
“………the  Court  should  be  extremely
careful  in  assessing  the  facts  and
circumstances  of  each  case  and  the
evidence  adduced  in  the  trial  for  the
purpose of finding whether the cruelty
meted  out  to  the  victim  had  in  fact
induced  her  to  end  the  life  by
committing suicide. If it transpires to the
Court that a victim committing suicide
was  hypersensitive  to  ordinary
petulance,  discord  and  differences  in
domestic  life  quite  common  to  the
18Page 19
society  to  which  the  victim  belonged
and  such  petulance,  discord  and
differences were not expected to induce
a similarly circumstanced individual in a
given  society  to  commit  suicide,  the
conscience of the Court should not be
satisfied  for  basing  a  finding  that  the
accused charged of abetting the offence
of suicide should be found guilty.” 
15. For the aforesaid reasons, we allow this appeal and set
aside the impugned judgment of the High Court and the
judgment of the trial court holding the appellant guilty of the
offences under Sections 306 and 498A, IPC and direct that
the bail bonds executed by the appellant be discharged.
       
……...……………………….J.
                                                       (A. K. Patnaik)
……..………………………..J.
(Chandramauli Kr. Prasad)
New Delhi,
February 08, 2013.  
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