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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1567 of 2007  

Kantilal Martaji Pandor …… Appellant

Versus

State of Gujarat & Anr.                                   …..  Respondents

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article  

136  of  the  Constitution  against  the  judgment  and  order  

dated  13.09.2007  of  the  Gujarat  High  Court  in  Criminal  

Appeal No.294 of 1994.

FACTS

2. The  facts  very  briefly  are  that  the  appellant  was  

married to  Laxmiben in  1980.   The appellant,  who was a

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teacher, used to travel in a bus along with Amriben, who was  

also  a  teacher,  for  their  work  in  their  respective  schools  

located  at  a  distance  of  2  kms.  from  each  other.   The  

appellant and Amriben fell in love and got married in 1990.  

A daughter was born to Amriben in 1991.   The appellant,  

Laxmiben  and  Amriben  were  living  together  in  different  

portions  of  one  house  of  the  appellant  in  village  Dhuleta  

Palla.   On  26.03.1992,  a  letter  written  by  Amriben  was  

received in Shamlaji Police Station.  In this letter, Amriben  

alleged inter alia that the appellant was more interested in  

money and not in love and he had threatened and kidnapped  

her,  although  he  had  a  wife  and  three  children  and  the  

appellant had cheated her and persuaded her to have civil  

marriage on 21.08.1990.  She further alleged in the letter  

that after marriage the appellant’s family was living on her  

salary and the appellant had started torturing her to a limit  

which was no longer tolerable by her and she was also not  

given meals  and the appellant  was threatening to kill  her  

and for all this the appellant and his first wife Laxmiben and  

his other family members were involved.  On 26.03.1992 in  

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the afternoon, the appellant came to the school of Amriben  

and  enquired  from  the  Principal  of  the  school  and  the  

teacher  of  Amriben  as  to  whether  Amriben  had  made  a  

complaint to the Police Station.  That evening, the appellant  

who  usually  took  Amriben  back  from  her  school  instead  

requested the  Principal  of  her  school,  Ms.  Timothibhai,  to  

take seat on the scooter with him and as a result Amriben  

had to walk along with Lilavatiben, who was holding her little  

daughter, to the bus stand.  During the night of 26.03.1992,  

the appellant slept with Laxmiben while Amriben slept with  

her new born daughter in another room of the house.  On  

27.03.1992,  early  in  the  morning,  the  appellant  and  

Laxmiben heard the little  daughter  of Amriben crying and  

they found that Amriben had jumped into the well and had  

died.

3. A  post  mortem on the  dead body of  Amriben (for  

short ‘the deceased’) was conducted on 28.03.1992 at 2.30  

p.m. and the cause of the death was found to be drowning.  

Initially, on the report of the appellant, the Shamlaji Police  

Station registered an accidental  death case under Section  

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174 of the Criminal Procedure Code, (for short ‘the Cr.P.C.’).  

Subsequently, however, on 03.04.1992 an FIR was registered  

by Shamlaji Police Station under Sections 498A and 306 of  

the  Indian Penal  Code (for  short  ‘the  IPC’)  in  view of  the  

allegations  made  by  the  deceased  in  her  letter  dated  

26.03.1992 to the police station.  Investigation was carried  

out and a charge-sheet was filed against the appellant and  

Laxmiben under Sections 498A and 306, IPC.

4. At the trial,  amongst other witnesses examined on  

behalf of the prosecution, Ms. Timothibhai, Principal of the  

school, was examined as PW-1, the doctor who carried out  

the post mortem was examined as PW-2, the mother of the  

deceased was examined as PW-3, Lilavatiben, co-teacher of  

deceased  was  examined  as  PW-4  and  the  Investigating  

Officer  was  examined  as  PW-10.   The  appellant  also  

examined various witnesses in his defence.  The trial court  

by its judgment dated 10.02.1994 in Sessions Case No.59/92  

acquitted  Laxmiben,  but  convicted  the  appellant  under  

Sections 498A and 306, IPC, and sentenced him to simple  

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imprisonment  for  one  year  and  two  years  for  the  two  

offences respectively and also imposed a fine of Rs.100/- for  

each of the offences.  Aggrieved, the appellant filed criminal  

appeal  before  the  High  Court,  and  by  the  impugned  

judgment, the High Court acquitted the appellant from the  

charge  under  Section  306,  IPC,  but  maintained  the  

conviction  and  sentence  on  the  appellant  under  Section  

498A, IPC.  Aggrieved, the appellant has filed this appeal.

Contentions of the learned Counsel for the parties:  

5. Learned  counsel  for  the  appellant,  Ms.  Aishwarya  

Bhati,  submitted that in the impugned judgment, the High  

Court found the appellant to be guilty of the offence under  

Section 498A, IPC, because of some conduct or acts of the  

appellant of which the deceased has complained of in her  

letter to the Police Station on 26.03.1992.  She submitted  

that  the  High  Court  held  that  the  acts  or  conduct  of  the  

appellant amounted to cruelty for which the appellant was  

liable for the offence under Section 498A, IPC, but did not  

amount to abetment of suicide within the meaning of Section  

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306,  IPC.   She  submitted  that  the  statements  of  the  

deceased in the letter of the deceased to the Police Station  

(Ext.10)  were  not  proof  of  the  acts  or  conduct  of  the  

appellant in the letter and in any case these acts or conduct  

of  the  appellant  did  not  amount  to  cruelty  within  the  

meaning  of  clauses  (a)  or  (b)  of  the  Explanation  under  

Section 498A, IPC.

6. Ms. Bhati submitted that the evidence of PW-3, the  

mother  of  the  deceased,  would  show  that  when  the  

deceased was carrying the child, PW-3 had been to see the  

deceased and she did not find that the deceased had any  

food problem.  She also referred to the evidence of PW-4 to  

show  that  the  appellant’s  conduct  was  not  such  as  to  

amount  to  cruelty  or  harassment  within  the  meaning  of  

clauses (a) or (b) of the Explanation of Section 498A, IPC.  

She submitted that the post mortem report (Ext.15), on the  

other  hand,  would  show  that  the  deceased  was  well-

nourished and was well-built and did not suggest that she  

was starved of any food.  

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7. Ms. Bhati cited the decision of this Court in State of  

West  Bengal  v.  Orilal  Jaiswal  & Anr.  [(1994) 1 SCC 73]  in  

which it  has been held that the charges made against an  

accused under Section 498A, IPC, must be proved beyond all  

reasonable doubt and that the requirement of proof is not  

satisfied by surmises and conjectures.   She also cited the  

decision of this Court in Manju Ram Kalita v. State of Assam  

[(2009)  13  SCC  330]  wherein  it  has  been  held  that  for  

holding an accused guilty under Section 498A, IPC, it has to  

be established that the woman has been subjected to cruelty  

continuously/persistently  or  at  least  in  close  proximity  of  

time  to  the  lodging  of  the  complaint  and  petty  quarrels  

cannot be termed as “cruelty” to attract the provisions of  

Section 498A, IPC, though mental torture to the extent that it  

becomes  unbearable  may  be  termed  as  cruelty.   She  

vehemently submitted that in this case the prosecution has  

not proved beyond reasonable doubt that the appellant was  

in any way guilty of any act or conduct which is of the nature  

described in clauses (a) and (b) of Section 498A, IPC, so as to  

amount to cruelty within the meaning of this Section and,  

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therefore,  the appellant is  entitled to be acquitted by this  

Court of the charge under Section 498A, IPC.

8. Ms. Pinky Behera, learned counsel appearing for the  

respondent-State, on the other hand, relied on Ext.10, which  

is the letter written by Amriben to Shamlaji Police Station on  

26.03.1992 to the Police Station and submitted that there  

was sufficient evidence in Ext.10 to show that the appellant  

had treated the deceased with cruelty within the meaning of  

Section 498A, IPC.  She also relied on the findings of the High  

Court in paragraph 15 of the impugned judgment in which  

the High Court has found the appellant guilty of the offence  

punishable  under  Section  498A,  IPC.   She  vehemently  

argued that even though the High Court has found that the  

appellant was not guilty of abetment of suicide within the  

meaning of Section 306, IPC, the appellant can still be held  

liable  for  the  offence  under  Section  498A,  IPC,  if  he  had  

committed acts of cruelty towards the deceased.  In support  

of this contention, she relied on the decision of this Court in  

West Bengal v. Orilal Jaiswal & Anr. (supra).  

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Findings of the Court:

9. Section  498A,  IPC,  under  which  the  appellant’s  

conviction  has  been  maintained  by  the  High  Court  is  

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  purposes  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.”

10.  It will be clear from the language of Section 498A,  

IPC, that if a husband subjects his wife to cruelty, he shall be  

punished with imprisonment for a term which may extend to  

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three years and shall also be liable to fine.  The Explanation  

under  Section  498A  defines  “cruelty”  for  the  purpose  of  

Section 498A to mean any of the acts mentioned in clause  

(a) or clause (b).  In this case, clause (b) is not attracted as  

there was no harassment  by  the  husband with  a  view to  

coercing her to meet any unlawful demand for any property  

or valuable security or on account of failure by her to meet  

such demand.  

11. The  first  limb  of  clause  (a)  of  the  Explanation  of  

Section  498A,  IPC,  states  that  “cruelty”  means  any  wilful  

conduct which is of such a nature as is likely to drive the  

woman to commit suicide.  In the present case, although the  

trial court found the appellant guilty of conduct which had  

driven the deceased to commit suicide and hence liable for  

the offence of abetment of suicide under Section 306, IPC,  

the High Court has given a clear finding in paragraph 13 of  

the impugned judgment that the conviction of the appellant  

under Section 306, IPC, cannot be sustained in the eye of  

law and the appellant deserves to be acquitted of the charge  

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of abetment of suicide under Section 306, IPC.  This part of  

the finding has not been challenged by the State in appeal  

before this Court and has, therefore, become final.  Thus, the  

appellant cannot be held guilty of any wilful conduct which  

was of such a nature as is likely to drive the deceased to  

commit suicide.

12.  The second limb of clause (a) of the Explanation of  

Section  498A,  IPC,  states  that  cruelty  means  any  wilful  

conduct which is of such a nature as to cause grave injury or  

danger to life, limb or health (whether mental or physical) of  

the  woman.   In  the  present  case,  the  High  Court  has  

recorded findings against the appellant to hold him guilty of  

the  offence  under  Section  498A,  IPC,  presumably  for  

“cruelty” which falls within the second limb of clause (a) of  

the  Explanation  under  Section  498A,  IPC.   The  relevant  

findings of the High Court in paragraph 15 of the impugned  

judgment are extracted hereunder:  

“As discussed earlier, permitting to enter his  first wife in the house of deceased Amariben  with  new  born  child,  is  an  act  of  the  appellant – accused, which can be said to be  

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a  cruel  act.   The  document  Exhibit  10  indicates that she was financially exploited  and the  demand of  money  were  made by  the appellant – accused frequently.  She has  stated  that  on  account  of  this,  she  was  falling in starving.  It is not in evidence that  this Court can notice on one fact based on  biological  reasons  assigned  that  the  pregnant lady or lady, who has given birth to  child, need more food, as such women are  feeling  more  hungry  then  other  normal  women.  She was facing very much financial  problem and there should  be possibility  to  go into depression and the present appellant  –  accused  was  the  responsible  person  for  creating this  situation.   The deceased was  dropped woman, but self-respect is privilege  of each individuals.  The accused depended  on the income of deceased Amariben after  performing  second  marriage  with  her  and  was under legal as well as moral obligation  to see that she may be treated well and may  not be felt to insult or ignore.  It is settled  position  that  the  cruelty  includes  mental  cruelty,  physical  marks falls  over the body  are  not  required  to  be  proved  by  the  prosecution.   The  date  of  the  application  received by the police is 26.3.1992 and the  evidence  of  PW-1  also  show  that  on  26.3.1992 the appellant-accused had come  to  the  school  to  inquire  whether  the  deceased  Amariben  had  made  an  application to the Principal of school or not.  He  must  have  been  frightened  that  the  deceased  may  complain  genuinely  to  the  school  authority  and  Government  and  he  may lose the job or at least, may invite some  departmental  action,  so  anxiety  of  the  appellant-accused is found, which is exposed  

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in  the  deposition  of  PW-1.  When  the  deceased  Amariben  felt  in  creating  apprehension in the mind that she may be  killed  by  her  husband  is  sufficient  to  conclude  that  the  wife  must  have  been  treated  with  cruelty  either  mentally  or  physically or both types of cruelty and that  too frequently made otherwise the defence  ought to have prove that she was a patient  of depression.   No such suggestive evidence  made to the school teacher or other witness  including mother.  Meaning thereby, there is  sufficient  evidence  to  show  that  the  deceased was treated with cruelty and that  had  led  her  to  frustration  and  thereafter,  depression, this is not an act of commission  of a lady with child. She had decided to jump  into the well leaving the child and accused  behind,  therefore,  the  act  of  the  suicide  appears to be intentional act to get rid of the  frequent insult,  ignorance and exploitation.  The learned Trial Judge has rightly linked the  accused with the offence punishable under  Section 498A. There is no error in evaluating  the evidence so far as cruelty is concerned.  

13.  Obviously,  the  finding  of  the  High  Court  that  

permitting  the  first  wife  to  enter  the  house  of  deceased  

Amriben  with  new  born  child  amounts  to   a  cruel  act  is  

erroneous as such act cannot amount to cruelty within the  

meaning  of  second  limb  of  clause  (a)  of  the  Explanation  

under Section 498-A, IPC.  However, the High Court, relying  

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on the letter written by the deceased to the Police Station on  

26.03.1992  (Ext.10),  has  also  come to  a  finding  that  the  

appellant had starved the deceased of food when she was  

pregnant by spending the salary earned by the deceased on  

his own family and had also subjected the deceased to other  

acts of mental cruelty.   

14. The question that  we have,  therefore,  to  decide is  

whether the Court could have arrived at this finding that the  

appellant has starved the deceased and committed various  

acts  of  mental  cruelty  towards  the  deceased  only  on  the  

basis of the contents of the letter dated 26.03.1992 written  

by the deceased to the Police Station.  The letter written by  

the deceased on 26.03.1992 could be relevant only under  

Section  32(1)  of  the  Indian  Evidence  Act,  1872,  which  

provides that a statement, written or verbal, of relevant facts  

made  by  a  person  who  is  dead,  is  relevant  when  the  

statement is made by a person as to the cause of his death,  

or as to any of the circumstances of the transaction which  

resulted in his death,  in cases in which the cause of that  

person’s death comes into question.  The High Court in the  

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present case has already held that  the appellant  was not  

guilty  of  abetting  the  suicide  of  the  deceased  and  was,  

therefore, not guilty of the offence under Section 306, IPC.  

As the cause of the death of the deceased is  no more in  

question in the present case, the statements made by the  

deceased in the letter dated 26.03.1992 to the Police Station  

cannot be taken to be proof of cruel acts committed by the  

appellant for the purpose of holding him guilty under Section  

498A, IPC.

15.  For  taking  this  view,  we  are  supported  by  the  

decision of this Court in Inderpal v. State of M.P. [(2001) 10  

SCC 736].  In this case, Inderpal was charged and tried for  

the offence under Section 306,  IPC,  and convicted by the  

trial  court for the said offence of abetment of suicide.  In  

appeal  filed  by  Inderpal,  the  High  Court  found  that  the  

offence under Section 306, IPC, was not made out as it could  

not  be  held  that  death  of  the  deceased  was  due  to  

commission of suicide, but the High Court held the appellant  

guilty of the offence under Section 498A, IPC.  This finding of  

the  High  Court  was  based on  the  evidence of  the father,  

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mother,  sister  and  another  relative  of  the  deceased  who  

deposed on the basis of inter alia the two letters (Exhibits P-

7 and P-8) written by the deceased Damyanti that Inderpal,  

her husband, had subjected her to beating.  This Court found  

that apart from the statement attributed to the deceased,  

none of the witnesses had spoken of anything which they  

had seen directly and the question that this Court had to  

decide  was  whether  the  statement  attributed  to  the  

deceased could be used as evidence including the contents  

of Exts.P-7 and P-8 and this Court held that the contents of  

Exts.  P-7  and  P-8  written  by  the  deceased  could  not  be  

treated as proof of the acts of cruelty by Inderpal  for  the  

purpose of offence under Section 498A, IPC.  The reasons  

given  by  this  Court  in  paragraph  7  of  the  judgment  as  

reported in the SCC are as follows:

“7.  Unless the statement of a dead person would  fall  within  the  purview  of  Section  32(1)  of  the  Indian Evidence Act  there  is  no other  provision  under  which  the  same  can  be  admitted  in  evidence.  In  order  to  make the statement  of  a  dead person admissible in law (written or verbal)  the  statement  must  be  as  to  the  cause  of  her  death  or  as  to  any  of  the  circumstance  of  the  transactions which resulted in her death, in cases  

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in which the cause of death comes into question.  By no stretch of imagination can the statements  of Damyanti contained in Exhibit P-7 or Exhibit P- 8  and  those  quoted  by  the  witnesses  be  connected  with  any  circumstance  of  the  transaction which resulted in her death. Even that  apart, when we are dealing with an offence under  Section  498-A  IPC  disjuncted  from  the  offence  under Section 306 IPC the question of her death is  not  an  issue  for  consideration  and  on  that  premise also  Section 32(1)  of  the  Evidence Act  will  stand at  bay so  far  as  these materials  are  concerned.

16.  In the present case also, except Ext.10, the letter  

written by the deceased to the Police Station on 26.03.1992,  

no  other  witness  has  spoken  about  the  appellant  having  

starved the deceased of food and having committed acts of  

mental  cruelty  to  the  deceased.   On the  other  hand,  the  

mother  of  the  deceased  (PW-3)  has  stated  in  her  cross-

examination:  

“I have not recorded in my statement before   police that Amri was giving her salary to her   husband.  It  is not true that when I went to   see  Amri,  at  that  time,  my  daughter  was  crying she had food problem, I say it is false.”

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17.   This  being  the  evidence  of  the  mother  of  the  

deceased,  the  High  Court  could  not  have  come  to  the  

conclusion  that  the  deceased  was  subjected  to  financial  

exploitation  and  starving  and  mental  cruelty  by  the  

appellant.  Unlike the case of State of West Bengal v. Orilal   

Jaiswal & Anr. (supra) cited by Ms. Behera in which there was  

evidence of the husband coming home drunk and abusing  

and assaulting the deceased wife,  in this case there is no  

evidence of any physical harm having been caused by the  

appellant  to  the deceased nor  any acts  of  mental  cruelty  

committed  by  him.   Hence,  the  appellant  cannot  be  held  

guilty of any cruelty within the meaning of clause (a) of the  

Explanation under Section 498A, IPC.  

18. In the result, we set aside the impugned judgment of  

the High Court and acquit the appellant of the charge under  

Section 498A, IPC.  Since the appellant is on bail,  his bail  

bonds be discharged.                 

..……………..……………………….J.                                          (A. K. Patnaik)

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 ...…………..………………………..J.

                            (Sudhansu Jyoti Mukhopadhaya)

New Delhi, July 25, 2013.    

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