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REPORTABLE   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 262 OF 2009

Ghusabhai Raisangbhai Chorasiya & Ors. ... Appellants

Versus

State of Gujarat        ... Respondent

J U D G M E N T

Dipak Misra, J.

The  present  appeal,  by  special  leave,  is  directed  

against  the judgment  of  conviction and order  of  sentence  

passed  by  the  High  Court  of  Gujarat  at  Ahmedabad  in  

Criminal Appeal No. 444/2005 whereby the Division Bench  

has  affirmed  the  conviction  recorded  by  the  learned  

Additional  Sessions  Judge,  Jamnagar,  who  had  found  the  

appellants guilty of the offences punishable under Section  

498A, 306, 201 and 114 of the Indian Penal Code, 1860 (‘IPC’  

for short) and sentenced Ghusabhai Raisinghbhai Chorasia,  

appellant  no.1  to  suffer  five  years  imprisonment,  Rakesh

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Ghusabhai  Chorasia,  appellant  no.2   to  suffer  rigorous  

imprisonment for seven years and to pay a fine of Rs.500/-  

with a default  clause and other  accused persons,  namely,  

Bakuben W/o Ghusabhai Chorasia and Jasuben @ Gaduben  

Rakeshbhai, appellant nos. 3 and 4 herein to suffer rigorous  

imprisonment for three years and to pay fine of Rs.250/- with  

a default clause under Section 306 IPC.  That apart, separate  

sentences were imposed under Section 498A and 201 with  

the stipulation that all the sentences would run concurrently.  

Be it noted, the appellants were tried along with two other  

accused  persons,  namely,  Sangitaben  w/o.  Vijaybhai  and  

Vijay Ghusabhai Chorasia who were acquitted by the learned  

trial Judge.  It is also apt to note here that the State had also  

preferred  two  criminal  appeals,  one  for  enhancement  of  

sentence and the other challenging the acquittal of the other  

two accused persons and both the appeals were dismissed  

along with the appeal filed by the appellants in a common  

judgment.  

2.  The prosecution case, bereft of unnecessary details, is  

that the marriage between the deceased Biniben and Rakesh  

was solemnized approximately eight years before the date of  

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occurrence, i.e. 4.3.2004.  As put forth by the prosecution,  

Rakesh,  husband  of  the  deceased,  had  illicit  relationsHIP  

with  Jasuben,  a  divorcee.   Despite  the  said  situation  two  

children  were  born  in  the  wedlock  but  the  compatibility  

between the husband and wife and the harmony of family  

life could not be sustained.  When the first child was three  

months old,  the deceased was driven out by her husband  

and she came to her parental home and stayed there for  

sometime.  After the intervention of the elders and relatives  

a settlement was arrived at and thereafter she came to stay  

in  her  in-laws  house.   It  was  the  further  case  of  the  

prosecution that the husband was keen in his extra-marital  

affair  and  that  had  led  to  more  marital  discord  and  

bitterness.  The in-laws, as alleged, used to take away the  

income  earned  by  her.   A  time  came  when  she  was  

compelled to stay on the terrace of the house where she  

committed suicide on 4th of March, 2004.   

3. As the case of the prosecution further gets uncurtained,  

the dead body was cremated without informing the parents  

of the deceased and the factum of the death was reported  

by the father-in-law of the deceased on 14th of March, 2004  

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and eventually the mother of the deceased came to know  

about  the  death  on  17th of  March,  2004  and  thereafter  

reported at the Police Station in Jamnagar.  After the criminal  

law was set in motion, the investigating agency proceeded  

with  the  investigation and recorded the  statements  of  25  

witnesses  and  eventually  placed  the  charge-sheet  under  

Sections 498A, 306 and Section 201 read with Section 114 of  

the Indian Penal Code, before the competent court.  After the  

charge-sheet  was  filed,  the  learned  Magistrate  committed  

the matter to the Court of Session.

4. The accused persons abjured their guilt and wanted to  

be tried.  

5. During the trial,  the prosecution in order to establish  

the charges levelled against the accused persons, examined  

25 witnesses and exhibited certain documents.     

6. The learned trial Judge placing reliance on the ocular as  

well  as the documentary evidence came to hold that four  

accused  persons,  namely,  father-in-law  A-1,  husband  A-2,  

mother-in-law A-3 and the woman with whom the husband  

was  having  illicit  relationship,  A-4,  guilty  of  the  offences.  

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However, the trial Judge acquitted the elder brother of the  

husband and his wife for lack of evidence.   

7. Being  dissatisfied  with  the  aforesaid  judgment  of  

conviction and order of sentence, the accused filed Criminal  

Appeal  No.  444  of  2005.   As  stated  earlier,  the  State  

preferred  Criminal  Appeal  No.  2408  of  2005  for  

enhancement of sentence and Criminal Appeal No. 2410 of  

2005 assailing the judgment of the acquittal of two accused  

persons.   

8. The High Court appreciating the evidence brought on  

record, declined to interfere in the appeals preferred by the  

State and resultantly all the appeals stood dismissed.   

9. Be  it  noted,  the  principal  witnesses  on  whom  the  

prosecution  relied  are  Dakshaben Shantilal  Shah,  PW-9,  a  

social  worker  at  Vikas  Vidhyalay  (Vadhvan),  Miraben  

Devsinhbhai,  PW-21,  sister  of  the  deceased,  Champaben  

Devsinhbhai,  PW-18,  mother of the deceased, Kanaiyabhai  

Devsinhbhai, PW-19, brother of the deceased and Natubhai  

Hirabhai, PW-17, Sarpanch of village Rajsitapur.

10. Accused  persons  in  their  statements  recorded  under  

Section 313 took the plea that there was a divorce between  

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the deceased and the accused No. 2, her husband; that she  

was staying on the terrace of the house; that she committed  

suicide by consuming poison; and that the accused persons  

had no role in it.     The defence, to substantiate its plea,  

examined one witness and got two documents exhibited.

11. We have heard Mr. Harish Raichura, learned counsel for  

the appellants and Mr. Anurag Ahluwalia, learned counsel for  

the State.  

12. On a careful scrutiny of the findings of the learned trial  

Judge and that of the High Court, it is noticeable that both  

the  Courts  have  found  that  cruelty,  as  alleged  by  the  

prosecution  under  Section 498A IPC was  established as  a  

result of which the deceased committed suicide.  It is quite  

clear from the findings and evidence on record that there  

was no demand of dowry.  The learned trial Judge as well as  

the High Court has proceeded on the base that there was  

cruelty as per the first limb of Section 498A IPC.  

13. The  singular  issue  that  requires  to  be  scrutinized  is  

whether  there  was  such  cruelty  by  the  husband  and  his  

relations  that  could  have  driven  the  deceased  to  commit  

suicide.   The stand  of  the  accused  persons,  as  has  been  

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indicated  hereinabove,  was that  the  husband had already  

divorced the deceased and she was staying on the terrace.  

On a proper x-ray of the material  brought on record, it  is  

manifest  that  the  prosecution  has  brought  on  evidence,  

three documents, exhibits 65 to 67, on record to show that  

there  was  divorce.   The  sister  of  the  deceased,  Miraben  

Devsinhbhai, PW-21, has categorically deposed that she had  

talked to the deceased on telephone before her death and  

the deceased had told her  that  there has been a divorce  

between her husband and herself and she was staying on  

the terrace of the house and will leave for the parental home  

after the ‘Holi’ festival.  

14. The  documents  that  have  been  produced  by  the  

prosecution,  namely,  Exhibits  67  to  69  have  not  been  

believed by the learned trial Judge as well as the High Court  

on the ground that there is some unacceptable discrepancy.  

15. At this juncture, it is appropriate to mention that the  

Holi  festival  in  the  said  year  fell  on  6.3.2004  and  the  

occurrence took place on March 4, 2004.  It is also noticeable  

that  the sister  of  the deceased had volunteered to  speak  

about  the  conversation  of  divorce.   The  document  shows  

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that  there  was  a  divorce  as  per  the  customs.   There  is  

material  on  record  to  show  that  she  was  staying  on  the  

terrace.   In  this  factual  backdrop  what  is  to  be  seen  is  

whether there has been a cruelty which compelled her to  

commit  suicide.   In  this  regard,  we may fruitfully  refer  to  

Section 498A of the IPC, which reads as under:

“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.”

16. This Court in  Girdhar Shankar Tawade V. State of   

Maharashtra1, examining the scope of 498A, has observed  

thus: 1  (2002) 5 SCC 177

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“The basic purport of the statutory provision is to  avoid  “cruelty”  which  stands  defined  by  attributing a specific statutory meaning attached  thereto  as  noticed  hereinbefore.  Two  specific  instances  have  been  taken  note  of  in  order  to  ascribe  a  meaning  to  the  word  “cruelty”  as  is  expressed  by  the  legislatures:  whereas  Explanation (a)  involves three specific situations  viz. (i) to drive the woman to commit suicide or (ii)  to cause grave injury or (iii) danger to life, limb or  health,  both  mental  and  physical,  and  thus  involving  a  physical  torture  or  atrocity,  in  Explanation (b) there is absence of physical injury  but  the legislature thought it  fit  to  include only  coercive  harassment  which  obviously  as  the  legislative intent expressed is equally heinous to  match the physical injury: whereas one is patent,  the  other  one  is  latent  but  equally  serious  in  terms of the provisions of the statute since the  same  would  also  embrace  the  attributes  of  “cruelty” in terms of Section 498-A.”

17. In  Gurnaib  Singh  V.  State  of  Punjab2,  while  

analyzing the aforesaid provision,  it  has been opined that  

Clause (a)  of the Explanation to Section 498A IPC defines  

cruelty  to  mean  “any  willful  conduct  which  is  of  such  a  

nature as is likely to drive the woman to commit suicide”.  

Clause (b) of the Explanation pertains to unlawful demand  

and Clause (a) can take in its ambit mental cruelty.

18. From the aforesaid authorities it is quite clear that the  

first  limb  of  Section  498A,  which  refers  to  cruelty,  has  

2  (2013) 7 SCC 108

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nothing to do with demand of dowry.  In the present case, in  

fact,  there  is  no  demand  of  dowry.   If  the  evidence  is  

appropriately  appreciated,  the  deceased  was  pained  and  

disturbed as the husband was having an illicit affair with the  

appellant no.4.  Whether such a situation would amount to  

cruelty under the first limb of Section 498A IPC is to be seen.  

A  two-Judge  Bench  of  this  Court  in  Pinakin  Mahipatray  

Rawal  V.  State  of  Gujarat3,  while  dealing  with  extra  

marital relationship, has held thus:

“Marital relationship means the legally protected  marital  interest of one spouse to another which  include  marital  obligation  to  another  like  companionship, living under the same roof, sexual  relation and the exclusive enjoyment of them, to  have  children,  their  upbringing,  services  in  the  home, support,  affection, love, liking and so on.  Extramarital relationship as such is not defined in  the  Penal  Code.  Though,  according  to  the  prosecution in this case, it was that relationship  which  ultimately  led  to  mental  harassment  and  cruelty  within  the  Explanation  to  Section  498-A  and  that  A-1  had  abetted  the  wife  to  commit  suicide.”

xxxxx xxxxx xxxxx

“We are of the view that the mere fact that the  husband  has  developed  some  intimacy  with  another, during the subsistence of marriage and  failed to discharge his marital obligations, as such  

3  (2013) 10 SCC 48

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would not amount to “cruelty”, but it must be of  such a nature as is likely to drive the spouse to  commit  suicide  to  fall  within  the Explanation to  Section 498-A IPC.  Harassment,  of  course,  need  not be in the form of physical assault and even  mental  harassment  also  would  come within  the  purview of Section 498-A IPC. Mental cruelty,  of  course, varies from person to person, depending  upon the intensity and the degree of endurance,  some may meet with courage and some others  suffer  in silence,  to some it  may be unbearable  and a weak person may think of ending one’s life.  We, on facts, found that the alleged extramarital  relationship was not of such a nature as to drive  the wife to commit suicide or that A-1 had ever  intended or acted in such a manner which under  normal  circumstances,  would  drive  the  wife  to  commit suicide.”

The Court further proceeded to state:  

“Section 306 refers to abetment of suicide. It says  that if any person commits suicide, whoever abets  the commission of such suicide, shall be punished  with imprisonment for a term which may extend  to 10 years and shall  also be liable to fine. The  action for committing suicide is also on account of  mental  disturbance  caused  by  mental  and  physical  cruelty.  To  constitute an offence under  Section 306, the prosecution has to establish that  a person has committed suicide and the suicide  was abetted by the accused. The prosecution has  to  establish  beyond  reasonable  doubt  that  the  deceased  committed  suicide  and  the  accused  abetted  the  commission  of  suicide.  But  for  the  alleged extramarital relationship, which if proved,  could  be illegal  and immoral,  nothing has been  brought out by the prosecution to show that the  accused had provoked, incited or induced the wife  to commit suicide.”

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19. After holding as aforesaid, the Court found on facts and  

especially referring to suicide note that one can infer that  

the deceased was so possessive of her husband, and was  

always under an emotional stress that she might lose her  

husband and that  apart  she had exonerated the husband  

and  accordingly  it  would  not  come  within  the  scope  and  

ambit of Section 306 IPC.

20. Coming to the facts of the present case, it is seen that  

the factum of divorce has not been believed by the learned  

trial Judge and the High Court.  But the fact remains is that  

the husband and the wife had started living separately in the  

same house and the deceased had told her sister that there  

was  severance  of  status  and  she  would  be  going  to  her  

parental home after the ‘Holi’  festival.   True it is,  there is  

some evidence about the illicit relationship and even if the  

same  is  proven,  we  are  of  the  considered  opinion  that  

cruelty, as envisaged under the first limb of Section 498A IPC  

would not get attracted.  It would be difficult to hold that the  

mental cruelty was of such a degree that it would drive the  

wife  to  commit  suicide.   Mere  extra-marital  relationship,  

even if proved, would be illegal and immoral, as has been  

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said  in  Pinakin Mahipatray Rawal (supra),  but  it  would  

take  a  different  character  if  the  prosecution  brings  some  

evidence on record to show that the accused had conducted  

in such a manner to drive the wife to commit suicide.  In the  

instant  case,  the  accused  may  have  been  involved  in  an  

illicit relationship with the appellant no.4, but in the absence  

of  some  other  acceptable  evidence  on  record  that  can  

establish  such  high  degree  of  mental  cruelty,  the  

Explanation to Section 498A which includes cruelty to drive a  

woman to commit suicide, would not be attracted.    

21. Presently,  adverting  to  the  involvement  of  the  other  

accused persons, that is, appellant nos. 1, 3 and 4, we find  

that there is no allegation of any kind of physical torture.  

The evidence brought on record against them with regard to  

cruelty is absolutely sketchy and not convincing.  It has been  

alleged that the mother-in-law used to rob her money which  

she earned as  wages.   The said  fact  has  really  not  been  

established.  As far as appellant no. 4, Jesuben, is concerned,  

there is only one singular allegation that at one public place,  

i.e. in a ‘mela’, she had threatened the deceased that she  

would be divorced by her husband.  On the basis of the said  

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evidence,  it  is  difficult  to  sustain  the  conviction  under  

Sections 306 and 498A IPC.  Once we are holding that the  

accused-appellants  are  not  guilty  of  the  offence  under  

Section 306 and 498A IPC, the conviction under Section 201  

IPC is also not sustainable.  

22. In view of the aforesaid analysis, the appeal is allowed,  

the  conviction  and  sentence  of  all  the  appellants  are  set  

aside.  As they are on bail, they be discharged of their bail  

bonds.  

.........................................................J.     [SUDHANSU JYOTI MUKHOPADHAYA]

........................................................J.       [DIPAK MISRA]

NEW DELHI FEBRUARY 18, 2015.

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