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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  of

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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  

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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  

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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  

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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  

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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  

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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-

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(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  

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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  

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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  

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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  

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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  

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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.  

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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  ill- treatment  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  

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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  ill- treating 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  ill- treated with an intention that she should  

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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 ill-

treatment 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  ill-

treated 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  

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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  

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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  

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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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