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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE  JURISDICTION

CRIMINAL   APPEAL  NO(S).   1138-1139        OF 2016 (@ S.L.P. (Crl) Nos.  5928-5929 OF 2016)

K.V. Prakash Babu                     … Appellant

VERSUS

State of Karnataka                  …     Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The  instant  appeals  reveal  a  factual  score  that  has  the

potentiality  to  shock a sensitive  mind and a sincere heart,  for  the

materials brought on record show how “suspicion” can corrode the

rational perception of value of life and cloud the thought of a wife to

such an extent,  that  would persuade her  to commit  suicide which

entail more deaths, that is, of the alleged paramour, her mother and

brother  who being not  able  to emotionally  cope up with the  social

humiliation, extinguish their life-spark; and ultimately the situation

ropes in the husband to face the charge for the offences punishable

under Sections 302 and 498-A of the Indian Penal Code (IPC) read

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with  Section  3  of  the  Dowry  Prohibition  Act,  1961  (‘1961  Act’  for

short). As the facts would unveil, the husband gets acquitted for the

offence under Section 302 IPC but convicted in respect of other two

charges by the trial court. In appeal, his conviction under Section 3 of

the 1961 Act is annulled but success does not come in his way as

regards the offence under Section 498-A IPC.  And the misery does not

end there since in the appeal preferred by the State, he is found guilty

of  the offence under  Section 306 IPC and sentenced to suffer  four

years rigorous imprisonment and to pay a fine of Rs.50,000/- to be

given to the father of the victim with a default clause.

3. In the course of our adumbration and analysis of facts, it will be

uncurtained  how the  seed of  suspicion grows  enormously  and the

rumours can bring social dishonor and constrain not-so-thick skinned

people who have bound themselves to limitless sorrow by thinking  ‘it

is  best  gift  of  God  to  man”  and  choose  to  walk  on  the  path  of

deliberate death.  A sad incident, and a shocking narrative, but we

must say,  even at  the beginning,  the appellant-husband has to be

acquitted regard being had to the evidence brought on record and the

exposition of law in the field.

4. The singular issue, as the aforesaid passage would show, that

arises for consideration in these appeals, by special leave, that assails

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the judgment and order dated 13.04.2016 passed by the High Court of

Karnataka at Bengaluru in Criminal Appeal No. 655 of 2012 whereby

the High Court has allowed the appeal preferred by the State which

had called  in  question the  legal  acceptability  of  the  judgment  and

order passed by the learned Additional  Sessions Judge, Fast Track

Court-III,  District  Kolar,  Karnataka,  who  vide  judgment  dated

5.1.2012 had found the appellant guilty of  the offences punishable

under Section 498-A of the IPC and Section 3 of the 1961 Act and

sentenced him to suffer rigorous imprisonment of one year and two

years respectively with the default clause.  It is apt to note here that

the  appellant  had also  preferred Criminal  Appeal  No.  126 of  2012

wherein  the  High  Court  while  passing  the  common  judgment  has

opined  that  the  prosecution  has  miserably  failed  to  establish  the

conviction under the 1961 Act.  However, as stated earlier, it found

the  appellant  guilty  of  the  offence  under  Section 306 IPC and the

result  of  such  conviction  was  imposition  of  four  years  rigorous

imprisonment and fine of Rs. 50,000/- (Rupees fifty thousand only)

with  the  further  stipulation   that  Rs.45,000/-  (Rupees  forty  five

thousand only) be paid to the father of the deceased.

5. The occurrence that led to launching of prosecution is that the

marriage between the appellant and the deceased, Anjanamma, was

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solemenised on 12.10.1997.  The appellant, as alleged, got involved

with one Deepa, daughter of one Ashwathamma inasmuch as his visit

to  the  house  of  Ashwathamma  was  quite  frequent.       As  the

prosecution  story  proceeds,  the  deceased  felt  extremely  hurt  and

eventually being unable to withstand the conduct of the husband who

was allegedly involved in an extra-marital affair, put an end to her life

on 20th August, 2004.   An FIR was lodged at the concerned police

station by the father of the deceased, which set the criminal law in

motion and the investigating officer recorded statement of witnesses

under Section 161 of the IPC and after completing the investigation,

placed the charge sheet under Sections 201, 302 and 498-A of the IPC

and Section 3 of the 1961 Act before the concerned Magistrate who, in

turn,  committed  the  matter  to  the  Court  of  Session.  The  accused

abjured his guilt and expressed his intention to face trial, advancing

the  plea  of  denial  and  false  implication.  In  order  to  establish  the

charges, the prosecution examined 31 witnesses in all. The defence

chose not to adduce any evidence.  The main witnesses are father of

the deceased, PW-1 and the neighbours who have deposed about the

extra- marital affair of the husband and the death of the deceased.

6. As  we  have  already  stated  about  the  conviction  and  the

punishment,  the  same  need  not  be  stated  in  detail.   There  is  no

dispute that the learned trial judge as well as the High Court has not

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found the appellant guilty of the offence punishable under Section 302

of the IPC.  The High Court has also arrived at the conclusion after

detailed  deliberation  that  the  prosecution  has  not  been  able  to

establish the offence under Section 3 of the 1961 Act.  However, it has

found the appellant guilty of the offence under Sections 498-A and

306 of the IPC.

7. It is submitted by Mr. S.R. Singh, learned senior counsel that the

High  Court  has  completely  erred  in  appreciating  the  evidence  to

sustain the conviction under Section 498-A inasmuch as there is no

material whatsoever with regard to demand of dowry or any kind of

torture.    According to Mr.  Singh,  the  High Court  has applied the

second  limb  of  Section  498-A  IPC  on  the  foundation  that  the

involvement of the husband in extra-marital affair established cruelty

under the said provision and, therefore, it would be an offence under

Section 306 of the IPC which is contrary to the pronouncements of

this Court.

8. Mr.  V.N. Raghupathy,  learned counsel  appearing for the State

had supported the judgment and order passed by the High Court by

placing reliance on the analysis of the various facets and the scrutiny

and scanning of the evidence of the prosecution witnesses including

that of the father, the neighbours and the investigating officer.

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9. To  appreciate  the  submissions  raised  at  the  Bar,  we  have

bestowed  our  anxious  consideration  and  carefully  examined  the

decision rendered by the trial court and that of the High Court.  On a

studied scrutiny of the evidence, it is demonstratable that the father of

the deceased in his deposition has not stated anything with regard to

any kind of cruelty meted out to the deceased except stating that she

quite often complained to the parents about the visit of the appellant

to the house of Ashwathamma and that she had suspicion against her

husband that he was going to have a second marriage.  The other

witnesses including the investigating officer have deposed that there

was  discussion  in  the  locality  about  the  illicit  connection  of  the

appellant with one lady at Chelur Village.  Barring the aforesaid, there

is  no  whisper  with  regard  to  any  kind  of  ill-treatment  or  cruel

behaviour by the husband.

10.   In view of the aforesaid evidence, the question that emerges for

consideration is whether the conviction under Section 498A and 306

IPC is legally justiciable in this context.  We think it appropriate to

refer to Section 498A of the IPC.  The said provision reads as follows:-

“498-A.  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

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to three years and shall also be liable to fine.

Explanation:  For  the  purposes  of  this  section,  "cruelty" means

(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”

11. The  said  provision  came  up  for  consideration  in  Giridhar

Shankar  Tawade vs.  State  of  Maharashtra1,  where  the  Court

dwelling upon the scope and purport of Section 498-A IPC has held

thus:-

“The  basic  purport  of  the  statutory  provision is  to  avoid 'cruelty'  which  stands  defined  by  attributing  a  specific statutory  meaning  attached  thereto  as  noticed  herein before. 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

1   (2002) 5 SCC 177

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patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrance  the  attributes  of  'cruelty'  in  terms  of  Section 498-A.”

[emphasis added]

12. In Gurnaib Singh v. State of Punjab2, while dwelling upon the

concept  of  ‘cruelty’  enshrined  under  Section  498-A  the  Court  has

opined thus:-

“Clause  (a)  of  the  Explanation  to  the  aforesaid  provision defines “cruelty”  to mean “any wilful  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.  Clause (a) can take in its ambit mental cruelty.”

13. The aforesaid analysis of the provision clearly spells how coercive

harassment can have the attributes of  cruelty that would meet the

criterion as conceived of under Section 498-A of the IPC.  Thus, the

emphasis is on any wilful conduct which is of such a nature that is

likely  to  drive  the  woman to  commit  suicide.   The  mental  cruelty

which is engraved in the first limb of Section 498-A of the IPC has

nothing to do with the demand of dowry.  It is associated with mental

cruelty  that  can  drive  a  woman to  commit  suicide  and  dependent

upon the conduct of the person concerned.

14. In  this  regard,  Mr.  Singh  has  drawn  our  attention  to  the

authority in Pinakin Mahipatray Rawal v. State of Gujarat3.   In

2  (2013) 7 SCC 108 3   (2013) 10 SCC 48

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the said case, the Court was dealing with as to whether relationship

between  the  appellant  and  the  second  accused  therein  was

extra-marital leading to cruelty within the meaning of Section 498-A

IPC and whether that would amount to abetment leading to the act of

suicide  within  the  meaning  of  Section  306  IPC.  Dealing  with  the

extra-marital  relationship,  the  Court  has  opined  that  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  up-bringing,

services in the home, support, affection, love, liking and so on, but

extra-marital relationship as such is not defined in the IPC. The Court

analyzing further in the context  of  Section 498A observed that  the

mere fact that the husband has developed some intimacy with another

woman, during the subsistence of marriage and failed to discharge his

marital  obligations,  as  such 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 498A IPC.  The Court

further elucidated that harassment need not be in the form of physical

assault  and  even  mental  harassment  also  would  come  within  the

purview of Section 498A IPC. Mental cruelty, of course, varies from

person to  person,  depending  upon the  intensity  and the  degree  of

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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.  The Court ruled that in the facts of the said case the

alleged extra-marital relationship was not of such a nature as to drive

the  wife  to  commit  suicide.   The  two-Judge  Bench further  opined

that:-

“Section 306 refers to abetment of suicide which 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 extra marital 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.”

[emphasis added]

15. Slightly  recently  in  Ghusabhai  Raisangbhai  Chorasiya  v.

State of Gujarat4, the Court perusing the material on record opined

that  even  if  the  illicit  relationship  is  proven,  unless  some  other

acceptable evidence is brought on record to establish such high degree

of mental cruelty the explanation (a) to Section 498-A of the IPC which

includes cruelty to drive the woman to commit suicide, would not be

4   (2015) 11 SCC 753

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attracted. The relevant passage from the said authority is reproduced

below:-

“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 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 498-A which includes cruelty to drive a woman to commit suicide, would not be attracted.”

16. The concept of mental cruelty depends upon the milieu and the

strata  from  which  the  persons  come  from  and  definitely  has  an

individualistic  perception regard being had to one’s endurance and

sensitivity.   It  is  difficult  to  generalize  but  certainly  it  can  be

appreciated in a set of established facts.  Extra-marital relationship,

per se, or as such would not come within the ambit of Section 498-A

IPC. It would be an illegal or immoral act, but other ingredients are to

be brought home so that it would constitute a criminal offence.  There

is no denial of the fact that the cruelty need not be physical but a

mental  torture  or  abnormal  behaviour  that  amounts  to  cruelty  or

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harassment in a given case. It will depend upon the facts of the said

case.   To  explicate,  solely  because  the  husband  is  involved  in  an

extra-marital relationship and there is some suspicion in the mind of

wife, that cannot be regarded as  mental cruelty which would attract

mental cruelty for satisfying the ingredients of Section 306 IPC.

17. We are  absolutely  conscious  about  the  presumption engrafted

under Section 113-A of the Evidence Act.  The said provision enables

the Court to draw presumption in a particular  fact  situation when

necessary ingredients in order to attract the provision are established.

In  this  regard,  we  may  reproduce  a  passage  from  Pinakin

Mahipatray Rawal (supra):-   

“Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of  saving the married woman from being ill-treated or forcing to com- mit  suicide  by  the  husband or  his  relatives,  demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of  her husband had subjected her to cruelty as per the terms de- fined in Section 498-A IPC, the court may presume having regard to all other circumstances of the case that such sui- cide  has  been  abetted  by  the  husband  or  such  person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution.”    

We have reproduced the aforesaid passage only to highlight that

the Court can take aid of the principles of the statutory presumption.

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18.     In the instant case, as the evidence would limpidly show, the

wife developed a sense of suspicion that her husband was going to the

house of Ashwathamma in Village Chelur where he got involved with

Deepa, the daughter of Ashwathamma.  It has come on record through

various witnesses that the people talked in the locality with regard to

the involvement of the appellant with Deepa.   It needs to be noted

that  Deepa,  being  not  able  to  digest  the  humiliation,  committed

suicide. The mother and the brother of Deepa paved the same path. In

such a situation, it is extremely difficult to hold that the prosecution

has established the charge under Section 498A and the fact that the

said cruelty induced the wife to commit suicide.  It is manifest that

the  wife  was  guided  by  the  rumour  that  aggravated  her  suspicion

which has  no  boundary.    The seed  of  suspicion planted  in  mind

brought the eventual tragedy.  But such an event will not constitute

the  offence  or  establish  the  guilt  of  the  accused-appellant  under

Section 306 of the IPC.

19. Having said that we intend to make it clear that if the husband

gets  involved  in  an  extra-marital  affair  that  may  not  in  all

circumstances  invite  conviction  under  Section  306  of  the  IPC  but

definitely  that  can  be  a  ground  for  divorce  or  other  reliefs  in  a

matrimonial dispute under other enactments.  And we so clarify.  

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20. Consequently,  the  appeals  are  allowed.  The  conviction  under

Sections 306 and 498-A of the IPC is set aside.  The appellant be set

at liberty unless his detention is required in connection with any other

case.

…............…..…..............J. (DIPAK MISRA)

…............…..…..............J.                 (AMITAVA ROY)

New Delhi  November 22, 2016

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ITEM NO.4              COURT NO.3               SECTION IIC

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.) No(s).   5928-5929/2016 (Arising out of impugned final judgment and order dated  13/04/2016 in CRLA No. 126/2012 13/04/2016 in CRLA No. 655/2012 passed by the  High Court Of Karnataka At Bangalore) K.V. PRAKASH BABU                                  Petitioner(s)                                 VERSUS STATE OF KARNATAKA                                 Respondent(s) (with appln. (s) for bail and exemption from filing O.T. and office report) Date : 22/11/2016 These petitions were called on for hearing today. CORAM :           HON'BLE MR. JUSTICE DIPAK MISRA          HON'BLE MR. JUSTICE AMITAVA ROY For Petitioner(s)  Mr. S.R. Singh, Sr. Adv.

Mr.Anurag Thomas, Adv.  Mr. B. Vishwanath Bhandarkar, Adv.  Mr. H.K. Naik, Adv.

                    Mr. Karunakar Mahalik,Adv.                     For Respondent(s)    Mr. V. N. Raghupathy,Adv.                                 UPON hearing the counsel the Court made the following                              O R D E R

 Leave granted. Consequently, the appeals are allowed. The conviction

under Sections 306 and 498-A of the IPC is set aside. The appellant be set at liberty unless his detention is required in connection with any other case.

  (NEELAM GULATI)       COURT MASTER

         (H.S. PARASHER)             COURT MASTER

(Signed Reportable Judgment is placed on the file)