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.
19
