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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1209 OF 2015

(ARISING OUT OF SLP (Crl.) NO. 3869 OF 2015)

BHANUBEN AND ANR.                ………APPELLANTS Versus

STATE OF GUJARAT                  ……RESPONDENT

J U D G M E N T

V.GOPALA GOWDA, J.

    Leave granted.

2. This appeal is filed by the appellants against

the impugned judgment and order dated 23.02.2015,

passed in Criminal Appeal No. 101 of 2010, by the

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High Court of Judicature of Gujarat at Ahmedabad,

wherein the High Court has dismissed the appeal of

the appellants and upheld the order of conviction

and sentence of the appellants under Sections 498A

and 306 read with Section 114 of the Indian Penal

Code, 1860 (in short “I.P.C.”) passed by the Fast

Track  Court,  Veraval,  Camp  Una,  in  Sessions  Case

No.9 of 2007 (hereinafter “the trial court”) in its

judgment and order dated 21.11.2009. The appellants

have  prayed  to  set  aside  the  same  and  quash  the

criminal proceedings initiated against them by the

respondent-State, urging various legal grounds.     

3. The brief facts of the case are stated hereunder

to appreciate the rival legal contentions urged on

behalf of the parties:

The appellant nos. 1 and 2 are the mother-in-law

and the sister-in-law of the deceased respectively.

It is the case of the prosecution that the deceased

was residing with her husband and in-laws in a joint

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family at Kodinar with a minor daughter. However,

within  2  years  of  marriage,  the  deceased  was

allegedly tortured by her husband and her in-laws

for not bringing dowry and not working properly. The

deceased  was  also  allegedly  driven  out  of  her

matrimonial home and was forced to stay at Kanta

Stri Vikas Gruh at Rajkot.  

4. The deceased informed the complainant, who is

her paternal uncle about the harassment and that her

husband  and  in-laws  were  demanding  an  amount  of

Rs.20,000/-  from  her.  The  maternal  uncle  of  the

deceased  persuaded  her  to  compromise  with  her

in-laws and sent her back to her matrimonial home.

Thereafter, the deceased was kept well for a month

but she was later allegedly beaten up and driven out

of  her  matrimonial  home.  A  case  was  registered

against them before the Amreli Nari Surakhsha Gruh.

After 2 months, the husband and the father-in-law of

the  deceased  brought  her  back  after  making  a

settlement.  After  a  month  of  her  return  to  her

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matrimonial home, the deceased was again allegedly

beaten up and thrown out of her home. The deceased

then filed a complaint against her in-laws before

the  Babra  Police  Station  and  a  maintenance

application was filed before the Babra Court. The

husband of the deceased brought her back home again

after making a settlement before the Court but she

was again allegedly beaten up by her in-laws against

which  she  filed  a  case  before  the  Amreli  Mahila

Vikas  Gruh,  where  her  maintenance  was  fixed  at

Rs.1,000/- p.m. but the same was not paid by her

husband.   5. The  deceased  then  stayed  at  the  Gondal  Bala

Ashram  (orphanage)  and  from  there  she  again  went

back to her in-laws place at Kodinar to meet her

daughter whose custody was with her husband as part

of a compromise between herself and the accused. It

is  further  the  case  of  the  prosecution  that  on

12.11.2006 at about 11.30 hours when the complainant

was on his way to work he received an information

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that the deceased had consumed poison and later came

to know through his daughter that the deceased had

passed away.

6. The  complainant  then  filed  a  complaint  being

I.C.R.  No.172  of  2006  before  the  Kodinar  Police

Station against the appellants and the husband of

the deceased. Thereafter, further investigation was

carried out, the panchanama of the scene was drawn,

the statements of the witnesses were recorded and

the accused were arrested.  

7. The  learned  trial  court  after  recording  the

evidence of prosecution witnesses and on perusal of

the  dying  declaration  of  the  deceased  and  on

consideration of the same, convicted and sentenced

the  present  appellants  and  the  husband  of  the

deceased for the offences punishable under Sections

498A and 306 read with Section 114 of I.P.C. The

accused  were  to  undergo  3  years  of  rigorous

imprisonment  with  a  fine  of  Rs.5000/-  and  in

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default, further simple imprisonment of six months

for the offences punishable under Sections 498A and

114  of  the  I.P.C.  For  offences  punishable  under

Sections 306 and 114 of the I.P.C. the accused were

ordered to undergo 10 years rigorous imprisonment

with  a  fine  of  Rs.12,000/-each  and  in  default,

further simple imprisonment of one year. The accused

were  acquitted  for  the  offences  punishable  under

Section 304B read with Section 114 of the I.P.C. and

Section 4 of the Dowry Prohibition Act, 1961.

8. Being aggrieved by the same the accused filed an

appeal  before  the  High  Court  of  Gujarat  which

dismissed the same holding that it has been well

established  that  the  accused  have  instigated  the

deceased and thereby they abetted the deceased in

committing suicide. The High Court further held that

the accused and his family members caused mental and

physical cruelty and therefore, the deceased was put

in  a  critical  condition  and  consumed  poison  and

ended her life. It further held that on perusal of

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the  findings  recorded  by  the  trial  court  it  was

impossible  that  the  deceased  could  have  consumed

poison by mistake and therefore, the learned trial

court has rightly convicted the accused as they are

guilty  of  the  above  mentioned  offences.  The  High

Court has thus upheld the order of conviction and

sentence passed by the trial court against all the

accused persons. It is stated that the husband of

the  deceased  has  already  undergone  the  period  of

sentences passed against him and has been released

from jail. The present appeal has been filed by the

appellants-the  mother-in-law  and  the  sister-in-law

of  the  deceased  praying  to  set  aside  their

conviction and sentence and for their enlargement on

bail.

9. It has been contended by the learned counsel on

behalf of the appellants that the guilt or even the

involvement of the appellants in the commission of

the offence has not been rightly pointed out by the

courts  below  as  there  are  no  independent

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evidence/witnesses  against  them.  Thus,  the  case

against the appellants has not been proved beyond

reasonable doubt.

10. It has been further contended by him that the

trial court did not find any incriminating material

evidence against the accused so as to punish them

under the aforementioned offences. In the present

matter, the only evidence adduced before the courts

below was the deposition of the relatives of the

deceased and no independent witnesses were examined.

He has further submitted that as per the provisions

under  Section  113(A)  of  the  Indian  Evidence  Act,

1872, the abetment on the part of the accused has

not been proved by the prosecution.

11. He has further contended that the courts below

have  not  considered  the  dying  declaration  of  the

deceased and the deposition made by the doctor who

had examined her that were recorded by the Executive

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Magistrate do not mention any allegation against the

accused.

12. On  the  other  hand,  it  has  been  contended  by

Ms. Hemantika Wahi, the learned counsel on behalf of

the respondent that the trial court and the High

Court after appreciating the evidence on record and

the submissions made on behalf of the parties have

rightly convicted and sentenced the accused for the

afore- mentioned offences.   

13. She  has  submitted  that  the  ingredients  under

Sections  498A,  306  and  304B  of  I.P.C.  are

established beyond all reasonable doubt against the

accused.  She  has  further  submitted  that  from  the

evidence  of  the  witnesses,  it  has  been  clearly

established that the appellants were mentally and

physically  harassing  the  deceased  and  even  had

driven  her  out  of  her  matrimonial  house  several

times.

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14.  She has further submitted that the presumption

as to the abetment of suicide as per Section 113A of

the  Indian  Evidence  Act,  1872,  has  been  clearly

proved  and  the  appellants  are  responsible  for

abetting her in the commission of suicide which is

the concurrent finding on fact and the appellants

have not made out a case for interference of this

Court.

15. On  the  basis  of  the  rival  legal  contentions

urged on behalf of the parties and the evidence on

record, the following questions would arise for our

consideration:

1) Whether,  the  Courts  below  have  rightly convicted and sentenced the accused for the offences punishable under  Sections 498A and 306 read with Section 114 of I.P.C.?

2) What order?

16. Before arriving at an irrefutable conclusion, we

have to first determine as to whether the deceased

was tortured and meted with cruelty by the accused

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or not? To find out the same, we have perused the

evidence placed on record by the prosecution  viz.,

the  deposition  of  witnesses  and  the  dying

declaration of the deceased.  

17. It is an undisputed fact that the deceased was

frequently taking refuge at Kanta  Stri Vikas Gruh,

Rajkot, Mahila Vikas Gruh and Gondal Bala Ashram. It

is  also  an  undisputed  fact  that  her  paternal

relatives had pacified her many a times and she was

sent back to her in laws’ home after compromise. The

same  has  been  proved  by  the  deposition  of  PW-6

paternal uncle of the deceased at Exh.69 before the

trial court and PW-7-the wife of PW-6 and PW-9-the

brother  of  the  deceased.  The  same  has  also  been

further corroborated by PW-19 who is a social worker

at Amreli Mahila Vikas Gruh at Exh.135. It is also

an undisputed fact that the deceased had filed a

complaint against the accused for maintenance, which

was not paid to her by her husband. She had also

filed an FIR against the accused on 14.02.2006 under

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Sections 498A, 506(2) 114 of I.P.C and Sections 3

and 7 of the Dowry Prohibition Act, 1961. On several

occasions  after  the  compromise,  the  deceased  was

again  thrown  out  of  her  matrimonial  home.  The

abovementioned witnesses have also stated that the

deceased  was  regularly  taunted  and  mentally  and

physically  harassed  by  the  accused  and  she  had

complained  about  the  same  to  the  above  mentioned

witnesses.

18. It has also been deposed before the trial court

by several other independent witnesses who are the

neighbours  of  the  accused  and  live  in  the  same

vicinity that they had witnessed heated exchanges

and  quarrel  between  the  accused  and  the  deceased

which has been corroborated by Ravibhai Dodia (PW-8)

in his testimony at Exh.80 before the trial court.

Further, another independent witness, Smt. Savitaben

(PW-10), has also deposed before the trial court at

Exh.84 that the deceased had sat on “Otla” of her

house  for  2  consecutive  days  as  the  accused  had

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locked up their house and gone somewhere and came

back  only  when  they  received  a  call  from  their

neighbours about the deceased sitting there. It has

also  been  noticed  that  the  deceased  had  spent

several  days  sleeping  at  odd  places  like,  empty

buses, etc. as she had nowhere else to go.   

19. Further, the deposition of the witness Hirakumar

Kanabhai Gohil (PW-12) in his testimony at Exh.95

had stated before the trial court that the deceased

was loitering outside his street and had asked for

his  help,  thereby  claiming  that  her  husband  and

in-laws were trying to kill her and that is why she

had  run  away  from  their  home.  She  also  had  burn

marks branded on her hands. Therefore, he had helped

her and paid her an amount of Rs.200/- for the bus

fare. We have also taken note of the fact that the

mother-in- law  ignored the pleas of the deceased by

calling  her  act  as  “epileptic  fits”  when  the

deceased had come running out of her house and was

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calling  out  to  her  for  help  on  the  day  of  the

unfortunate incidence.

20. There  is  no  other  material  evidence  or  fact

brought  before  this  Court  to  show  that  the

deposition  of  the  above  mentioned  witness  is

unreliable and this Court has no reason to believe

the same to annul the finding of conviction on the

charge  against  the  appellants.  Therefore,  in  the

light of the above mentioned depositions made and

based on the facts and circumstances of the case, it

has been aptly held by the courts below that the

prosecution has established by adducing cogent and

convincing  evidence  that  the  deceased  had  been

tortured by her in-laws and her husband. The reason

that  the  deceased  kept  coming  back  to  her

matrimonial home by way of compromise in spite of

all the cruelty and torture meted against her is

because of her minor daughter who was living with

her husband. Thus, the ingredients to constitute the

offence  under  the  provision  of  Section  498A  of

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I.P.C. have been fully satisfied in the present case

against the appellants. The relevant provisions of

Section 498A read thus:

“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—

(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.”

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21. The deceased was subjected to cruelty at the

hands  of  her  husband  and  her  in-laws  and  the

evidence  of  the  prosecution  witnesses  and  the

circumstantial evidence makes it amply clear that

she was harassed beyond limits by her in-laws, which

had caused her grave mental and physical injury. The

same had made her run away from matrimonial home on

several  times  and  had  ultimately  resulted  in  her

death.  On  the  issue  that  the  above  mentioned

witnesses  are  interested  witnesses  and  their

evidence  cannot  be  accepted  by  this  Court  as

contended by the learned counsel on behalf of the

appellants  is  also  rejected  in  the  light  of  the

decision of this Court in the case of  Vishwanath

Agrawal  v. Sarla Vishwanath Agrawal1,  wherein this

Court has held thus:  

“39…….In a matrimonial dispute, it would be inappropriate to expect outsiders to come and depose. The family members and sometimes the relatives, friends and neighbours are  the  most  natural  witnesses.

1 (2012) 7 SCC 288

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The veracity of the testimony is to  be  tested  on  objective parameters  and  not  to  be  thrown overboard on the ground that the witnesses are related to either of the  spouse.  Exception  has  been taken by the courts below that the servants of the house should have been examined and that amounts to suppression of the best possible evidence…….”

22. Now, coming to the point of determining whether

the accused had abetted in the commission of suicide

of the deceased as provided under Section 306 of

I.P.C., the same cannot be proved with conclusive

evidence in the light of the fact that the deceased

in her dying declaration had clearly stated that she

had consumed the poisonous tablets by mistake. The

same was further corroborated by the doctor who had

examined  her  and  had  declared  her  as  stable  and

conscious  enough  to  give  a  reasonable  statement.

Reliance has also been placed upon the decision of

this Court in the case of  Bhola Turha  v. State of

Bihar2, wherein this Court has held thus:  2 (1998) 9 SCC 15

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“2. The  conviction  of  the appellant  is  based  solely  upon the  dying  declaration.  It  has been  found  to  be  reliable.  It was made by the deceased within about  two  hours  from  the incident and a few hours before his  death.  In  his  dying declaration,  he  has  clearly explained  how  he  came  to  be injured by the appellant. After carefully scrutinising the dying declaration,  both  the  courts have come to the conclusion that it  contains  a  truthful  version as regards the manner in which the  injuries  were  caused  to him.”

23. Further,  the  accused  were  present  inside  the

house  at  the  time  the  deceased  consumed  the

poisonous  tablet  and  they  had  taken  her  to  the

hospital as soon as they realized that she was in a

critical condition. Thus, even though the cruelty

aspect meted on the deceased has been proved beyond

all reasonable doubt, it cannot be said that the

same  had  lead  her  to  commit  suicide  or  that  the

accused had abetted in the commission of the same,

as is clear from the facts and circumstances of the

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present case. The appellant no.1 herein even though

had behaved stoically in the beginning by calling

the act of the deceased as “epileptic fit”, but as

soon as she realized the gravity of the situation

she called her son and they took her to the hospital

for  examination  and  treatment.  This  act  of  the

accused clearly shows that they did not abet the

deceased in the commission of the suicide, if at all

it was a suicide.

 24. From the facts and circumstances of the present

case  and  upon  the  examination  of  the  body  of

deceased, it is clear that her death was a result of

an  accident  and  she  had  mistakenly  consumed  the

poisonous tablet as the same was kept with other

medicines. Had the deceased wanted to implicate the

accused, she would have revealed their names in the

final moments before her death, as she had nothing

to fear for and her antecedent showed that she had

previously  filed  a  complaint  against  the  accused

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when they harassed her. If the accused had any hand

in her death, the same would have been revealed in

the  dying  declaration  of  the  deceased.  Thus,  the

prosecution  has  failed  to  prove  beyond  all

reasonable doubt that the accused had abetted the

deceased in the commission of suicide as provided

under the provision of Section 306, I.P.C.

25. In view of the above observations made, it is

amply  clear  that  even  though  the  accused  had

tortured and harassed the deceased because of which

she was constantly running away from her matrimonial

home  and  had  also  filed  a  number  of  complaints

against the accused, the same cannot be said to be

the reason for her death in the light of the facts

and circumstances of the present case and the dying

declaration made by her.

26. The  learned  counsel  for  the  appellants  has

placed  reliance  upon  the  decision  of  this  Court

reported in the case of  Ramesh Kumar  v.  State of

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Chhattisgarh3  at paragraph 22 wherein it is held

that Sections 498A and 306 IPC are independent and

constitute different offences.  Merely because an

accused has been held liable to be punished under

Section 498A IPC, it does not follow that on the

same evidence, he must also and necessarily be held

guilty of having abetted the commission of suicide

by the women concerned under 306 IPC. Therefore, the

conviction and sentence for offence punishable under

Section 306 read with Section 114 of the IPC of the

present appellants is contrary to the legal evidence

on record particularly, the dying declaration of the

deceased and the conduct of the accused who took the

deceased to the hospital. This fact has been grossly

ignored  by  the  courts  below  while  convicting  and

sentencing  the  appellants  for  the  aforesaid

offences.  Therefore, the conviction and sentence

for  the  aforesaid  offence  is  erroneous  and

accordingly it is liable to be set aside.

3 (2001)9 SCC 618

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27. After  evaluation  of  evidence  on  record  and

concurrent  finding  of  fact  recorded  by  the  trial

court and the appellate court, the appellants were

convicted for the offences punishable under Section

498A and 306 read with Section 114 of I.P.C. The

accused were acquitted for the offences punishable

under Section 304B read with Section 114 of I.P.C.

and Section 4 of the Dowry Prohibition Act, 1961 as

they did not find any evidence on record to bring

home  the  guilt  of  appellants  for  the  offences

punishable under Section 306 as there is no cogent

evidence  in  this  regard  in  the  finding  of  fact.

Therefore,  the  conviction  and  sentence  for  the

offence punishable under Section 498A of I.P.C. with

regard to cruelty is held to be proved by the courts

below.  The  same  is  accepted  by  us  and  they  are

required  to  be  convicted  and  sentenced  for  the

offence punishable under Section 498A, I.P.C. The

conviction and sentence passed by the High Court for

the offence punishable under Section 306 read with

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Section 114 of I.P.C. is liable to be set aside,

accordingly, we set aside the same.  

28. Since, we have upheld the conviction for the

offence punishable under Section 498A I.P.C., it is

to  be  carefully  examined  by  us  taking  into

consideration  the  facts  and  circumstances  of  the

case as to what sentence is required to be imposed

upon the appellants. Keeping in view the age of the

appellants i.e. the appellant No. 1-mother-in-law of

the deceased who is said to be around 60 years of

age and appellant No.2-sister-in-law of the deceased

who is more than  35 years of age and having a child

to take care of, we deem it fit and proper to limit

the sentence to the period of imprisonment already

undergone by them.

29.  We partly set aside the impugned judgment and

order dated 23.02.2015 of the High Court of Gujarat

at Ahmedabad  in  Criminal Appeal No. 101 of 2010.

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    We confirm the conviction on the charge under

Section  498A  of  I.P.C.  and  having  regard  to  the

facts and circumstances referred to above we direct

that the period already undergone by the appellants

in custody is the sentence. We modify and reduce the

sentence  to  the  period  of  imprisonment  already

undergone by them.

30.  Since,  we  have  stated  that  period  already

undergone is the sentence which we have modified in

this judgment for the conviction under Section 498A

of  the  I.P.C.  and  in  pursuant  to  the  impugned

judgment and order of the High Court, the appellants

have  surrendered  to  undergo  the  imprisonment.

Presently, they are undergoing sentence imposed by

the High Court and therefore, we direct the Jail

Superintendent,  Rajkot  Central  Prison,  Rajkot,

Gujarat to release them forthwith, if not required

in connection with any other criminal case.

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31.   Accordingly,  the  appeal  is  allowed  to  the

aforesaid extent.

 ……………………………………………………………J. [T.S.THAKUR]

                                                                                    ……………………………………………………………J.                           [V.GOPALA GOWDA]

New Delhi,                                    September 14, 2015