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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     201      OF     2010   

Rakhal Debnath ….Appellant

VERSUS

State of West Bengal                .…Respondent

J     U     D     G     M     E     N     T   

Fakkir Mohamed Ibrahim Kalifulla, J.

1. The first accused is the appellant. The appellant was  

proceeded against for offences under Sections 306 and  

498A of IPC. The Trial Court acquitted the appellant and  

by the impugned order, the High Court while reversing  

the judgment of the Trial Court found the appellant guilty  

on both the charges and imposed the sentence of  

imprisonment of 10 years and also a fine of Rs.10,000/-,  

in default to suffer further one year rigorous  

imprisonment for the offence under Section 306 of IPC.  

He was also sentenced to suffer rigorous imprisonment  

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for three years apart from fine of Rs.10,000/-, in default  

to suffer further rigorous imprisonment for one year for  

the offence under Section 498A of IPC. Both the  

sentences were directed to run consecutively. The High  

Court thus partly allowed the appeal of the State. The  

acquittal of the second accused, however, was confirmed  

by the High Court.    

2. The case of the prosecution was that the appellant got  

married to the deceased Krishna as per Hindu rites and  

customs on 22.04.1987. The unfortunate incident of the  

death of the deceased Krishna occurred on 26.05.1987  

when she was admitted to SSKM Hospital with severe  

burn injuries at 08.35 a.m. and she was declared dead at  

08.37 a.m. In the hospital register it was noted by the  

doctor-P.W.19 that as per the statement of the appellant  

at 07.35 a.m. in the morning while the deceased was  

preparing tea and bread in the kitchen of the house she  

got burnt of the burning stove. However, according to the  

prosecution shortly after the marriage the appellant  

demanded a sum of Rs.40,000/- from the father of the  

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deceased Krishna for the purpose of his business which  

was declined, that upset by the declining of his demand  

by the father of the deceased the appellant stated to have  

retorted then that he knew how to collect the money from  

his father-in-law through his wife, and that thereafter on  

22.05.1987, the appellant pledged the jewels of deceased  

Krishna for a sum of Rs.11,000/-. The deceased Krishna  

was also stated to have been nurturing a grievance  

against the appellant about his illicit contacts with the  

second accused Anima who was none other than the  

niece of the appellant. The prosecution filed its final  

report before the Trial Court and, thereafter, the charges  

under Sections 306 and 498A of IPC were leveled against  

the appellant.         

3. Learned counsel appearing for the appellant while  

assailing the judgment of the High Court submitted that  

the postmortem doctor-P.W.15 stated that he was not  

able to come to any definite opinion as to whether the  

death was homicidal, suicidal or accidental. Therefore,  

the main ingredient for the alleged offences against the  

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appellant was not established by the prosecution.  

Learned counsel then contended that the whole case was  

based on circumstantial evidence and that there was no  

circumstance to link the appellant with the death of the  

deceased. Elaborating his submission learned counsel  

contended that none of the ingredients for the offences  

under Section 306 as well as 498A of IPC was  

demonstrably placed before the court below by the  

prosecution and, therefore, the conviction and sentence  

cannot be sustained. He further contended that FIR was  

based on the complaint of P.W.3 which was not written by  

him, that the version of P.W.3, who was the father of the  

deceased, did not in any way disclose any factor or even  

remotely suggest that there was any abetment on the part  

of the appellant for the deceased to commit suicide. The  

learned counsel therefore contended that the acquittal  

made by the Trial Court was a well considered judgment  

and the interference with the same by the High Court was  

not justified. The submission of learned counsel for the  

appellant was that there was no evidence for abetment  

nor was there any evidence to show that the appellant  

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caused any cruelty to the deceased in order to convict the  

appellant for the offences falling under Sections 306 and  

498A of IPC.

4. As against above submissions the learned counsel  

appearing for the State contended that the death of the  

deceased occurred hardly within 35 days after her  

marriage with the appellant, that the ocular evidences of  

P.Ws.3, 9 and 11 amply disclosed that within few days  

after the marriage the appellant made a demand for a  

sum of Rs.40,000/-, that the non-payment of the said  

money to the appellant and the subsequent pledging of  

the jewels of the deceased which was established by  

Exhibit 7 as well as evidence of P.W.17 showed that the  

demand of dowry was amply established. The learned  

counsel submitted that the evidence of P.Ws.3, 9 and 11  

disclosed that the deceased duly conveyed to both the  

witnesses the conduct of the appellant in having raised a  

demand for money apart from his illicit behaviour with  

his niece which ultimately resulted in the deceased taking  

the extreme decision of pouring kerosene and setting fire  

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to herself. The learned counsel pointed out that the  

recoveries made at the place of occurrence such as  

kerosene cane, piece of cloth soaked in kerosene, the quilt  

and pillows and the wearing apparels of the deceased  

which had the smell of kerosene and the burn injuries  

suffered by the deceased amply proved that the deceased  

committed suicide and that such an extreme decision to  

commit suicide was pursuant to the constant instigation  

of the appellant to get money from the parental home of  

the deceased and also his illicit relationship with second  

accused. The learned counsel relied upon the decisions of  

this Court reported as Ramesh Kumar v. State of  

Chhattisgarh – (2001) 9 SCC 618, K. Prema S. Rao and  

another v. Yadla Srinivasa Rao and others –  (2003) 1  

SCC 217 and Devi Lal v. State of Rajasthan - (2007) 14  

SCC 176.

5. Having heard learned counsel for the appellant as well as  

the learned counsel for the State and having perused the  

judgment impugned in this appeal and other related  

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papers, at the very outset, it will have to be stated that  

there is no merit in this appeal.  

6. The deceased died due to extensive burn injuries on her  

body which was fully established by the postmortem  

report as well as by the evidence of doctor P.W.15 who  

conducted the postmortem. The same is also not disputed  

by the appellant. In fact, P.W.19 the doctor who examined  

the deceased immediately after she was brought to the  

hospital reported that according to the appellant the  

deceased suffered the burn injuries from the burning  

stove when she was preparing tea and bread.  However,  

in the 313 questioning the appellant made it clear that he  

did not make any such statement. If the said statement is  

to be accepted then what remains is the postmortem  

report, the evidence of P.W.15 and the recoveries made at  

the place of occurrence, namely, kitchen (viz) the 20 litre  

cane in which about a litre of kerosene was found, the  

quilt and pillows and a piece of cloth soaked in kerosene  

and the clothes worn by the deceased which also smelled  

kerosene. The question of deceased having suffered burn  

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injuries from the burning stove is ruled out by the own  

version of the appellant.  

7. Considering the extent of burn injuries stated by the  

doctor in the postmortem report (viz) the first degree burn  

injuries from top of the head up to the tip of the leg  

makes it clear that it could have been caused only by  

pouring kerosene from the cane over the head and by  

burning the person after that. The smell of kerosene oil in  

the clothes and other materials recovered at the scene of  

occurrence also fully support such a situation which  

could have only been inflicted by the deceased herself  

and, therefore, the conclusion of the High Court in having  

held that the deceased committed suicide cannot be  

found fault with.   

8. If once the said conclusion is irresistible, what remains to  

be examined is what was the reason for the deceased to  

take that extreme decision to burn herself. For that  

purpose, when we examine the ocular evidence placed  

before the court below, we find the consistent statements  

of P.Ws.3, 9 and 11 which disclose that the complaint  

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made by the deceased about the conduct of the appellant  

that he made a demand for money from her father apart  

from his illicit relationship with the second accused  

merits acceptance. P.W.3 stated that after some days of  

the marriage the appellant approached him and his son  

for a sum of Rs.40,000/-, that when P.W.3 expressed his  

inability to make the payment the appellant left the place  

in a huff by stating that he knows how to get the money  

from him through his own daughter. P.W.3 also stated  

that the deceased herself informed him about the torture  

meted out to her by the appellant along with second  

accused for money when P.W.3 declined to pay any  

money to the appellant. P.W.3 further stated that the  

deceased also informed him about the illicit relationship  

of appellant with the second accused. The pledging of  

jewels of the deceased with P.W.17 was also proved by  

producing Exhibit 3 by which P.W.3 repaid a sum of  

Rs.11,000/- to P.W.17 to get back the jewels which were  

seized by the police along with ornaments. P.W.17 in his  

evidence also confirmed that the appellant pledged the  

jewels with him. P.W.3 also indentified the jewels which  

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he gifted to his daughter at the time of the marriage  

which were recovered from P.W.17 and marked as Exhibit  

1 (collectively).  

9. The factum of the living of second accused in the very  

same house of the appellant was not in dispute and the  

same was also deposed by P.W.3. He further stated that  

though his daughter complained to him about the  

monitory demand as well as illicit relationship of the  

appellant with the second accused he did not inform the  

same to others except his close relatives fearing any  

damage that may be caused to the matrimonial life of his  

daughter which conduct of P.W.3 as a father of the  

deceased was quite natural.

10. P.W.5 who is a relative of the deceased also stated that  

the deceased informed him once about the illicit intimacy  

of the appellant with second accused. P.W.10 who is  

stated to be the cousin of the deceased deposed that  

when she visited his house once after marriage she  

informed him that she did not like the environment of her  

matrimonial home and that the appellant and second  

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accused used to talk in code language. P.W.11 who is the  

neighbour of P.W.3, in his evidence also deposed that  

when the deceased visited her parental home on the  

occasion of Dwira Gaman Ceremony she informed him  

that she did not like the relationship of the appellant with  

the second accused and that appellant was demanding  

money from her father. P.W.11 further stated that  

deceased also requested him to tell her father not to give  

any money to appellant. P.W.11 also stated that  

according to the deceased she was not happy with the  

marriage. To the same effect was the version of P.W.12.  

11. The High Court while examining the charge of abetment  

of the suicide committed by the deceased as well as  

cruelty meted out to her falling under Sections 306 and  

498A of IPC made a detailed analysis of the above  

evidence and held that the charges were proved. Though  

the learned counsel for the appellant attempted to point  

out that there was no proof to show that the appellant  

pledged the jewels of the deceased, we are not in a  

position to appreciate the said contention for more than  

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one reason. In the first place P.W.3 the father of the  

deceased identified the jewels which were recovered from  

P.W.17. P.W.17 himself confirmed that those jewels were  

pledged by the appellant with him. The receipts Exhibit 3  

and 3A disclosed that the said jewels were pledged by the  

appellant for a sum of Rs.11,000/-. If those jewels really  

did not belong to the deceased the same could have been  

established only by the appellant by producing proper  

evidence before the Court. Except the mere denial in the  

313 statement, the appellant failed to show that those  

jewels which were pledged by him did not belong to the  

deceased.  

12. As rightly held by the High Court the father of the  

deceased cannot be expected to inform everyone living  

around him about the unpleasant factum of the  

daughter’s embarrassing living condition in her  

matrimonial home and, therefore, mere non-disclosure of  

those facts to others cannot be a ground to disbelieve the  

version of P.W.3. We also do not find any inconsistency in  

the evidence of P.W.3 and other witnesses who had the  

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advantage of hearing from the mouth of the deceased  

about the conduct of the appellant relating to his  

demand, as well as, his illicit intimacy with the second  

accused. Nothing was suggested to any of the witnesses  

on behalf of the appellant to state that they were deposing  

against him with any other ulterior motive. The fact  

remains that the deceased committed suicide within 35  

days from the date of marriage, coupled with the  

untrammeled evidence before the court below about the  

cruelty meted out to the deceased, fully established the  

guilt of the appellant of abetment to the deceased to  

commit suicide as well as the cruelty under Section 498A  

of IPC.  

13. In this context the reliance placed upon the decision of  

this Court by the counsel for the State in Ramesh Kumar  

(supra) can be usefully applied. In paragraph 12 of the  

said decision this Court, while explaining the application  

of Sections 107, 113A in regard to an offence falling  

under Section 306 IPC has held as under:

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“12. This provision was introduced by the Criminal  Law (Second) Amendment Act, 1983 with effect from  26-12-1983 to meet a social demand to resolve  difficulty of proof where helpless married women  were eliminated by being forced to commit suicide  by the husband or in-laws and incriminating  evidence was usually available within the four  corners of the matrimonial home and hence was not  available to anyone outside the occupants of the  house. However, still it cannot be lost sight of that  the presumption is intended to operate against the  accused in the field of criminal law. Before the  presumption may be raised, the foundation thereof  must exist. A bare reading of Section 113-A shows  that to attract applicability of Section 113-A, it must  be shown that (i) the woman has committed suicide,  (ii) such suicide has been committed within a period  of seven years from the date of her marriage, (iii) the  husband or his relatives, who are charged had  subjected her to cruelty. On existence and  availability of the abovesaid circumstances, the  court may presume that such suicide had been  abetted by her husband or by such relatives of her  husband. Parliament has chosen to sound a note of  caution. Firstly, the presumption is not mandatory;  it is only permissive as the employment of  expression “may presume”  suggests. Secondly, the  existence and availability of the abovesaid three  circumstances shall not, like a formula, enable the  presumption being drawn; before the presumption  may be drawn the court shall have to have regard to  “all the other circumstances of the case”. A  consideration of all the other circumstances of the  case may strengthen the presumption or may  dictate the conscience of the court to abstain from  drawing the presumption. The expression — “the  other circumstances of the case”  used in Section  113-A suggests the need to reach a cause-and-effect  relationship between the cruelty and the suicide for  the purpose of raising a presumption. Last but not  the least, the presumption is not an irrebuttable  

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one. In spite of a presumption having been raised  the evidence adduced in defence or the facts and  circumstances otherwise available on record may  destroy the presumption. The phrase “may  presume”  used in Section 113-A is defined in  Section 4 of the Evidence Act, which says —  “Whenever it is provided by this Act that the court  may presume a fact, it may either regard such fact  as proved, unless and until it is disproved, or may  call for proof of it.”

14. When we apply the said principle to the facts of the case,  

we find that the relevant criteria for application of Section  

113A is duly attracted to the facts of this case. The  

deceased committed suicide within 35 days from the date  

of her marriage and the allegation of cruelty was also fully  

established. The evidence thus disclosed that the conduct  

of the appellant vis-à-vis the deceased coupled with the  

consequential demand of money from P.W.3 the father of  

the deceased and also the pledging of the jewels of the  

deceased fully established the case of the prosecution  

that the deceased was instigated by the appellant to take  

the extreme decision of committing suicide by pouring  

kerosene on herself and set herself on fire and thereby  

the charge of abetment under Section 306 and as well as  

Section 498A stood proved.  

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15. In this respect the subsequent decision reported as  

Thanu Ram v. State of Madhya Pradesh (Now  

Chhattisgarh) – (2010) 10 SCC 353 can also be usefully  

referred to. In paragraphs 26 and 27 this Court has  

explained the legal position as under:

“26. In the Explanation to Section 113-A it has also  been indicated that for the purpose of the said  section, the expression “cruelty”  would have the  same meaning as in Section 498-A IPC. Accordingly,  if the degree of cruelty is such as to warrant a  conviction under Section 498-A IPC, the same may  be sufficient for a presumption to be drawn under  Section 113-A of the Evidence Act in harmony with  the provisions of Section 107 IPC.

27. All the decisions on the point cited by Dr.  Pandey, deal with the differences in relation to the  provisions of Section 498-A and Section 306 IPC,  except in Sushil Kumar Sharma case, where the  provisions of Section 498-A IPC had been considered  in the context of Section 304-B IPC. In that context,  it was sought to be explained that the big difference  between Sections 306 and 498-A IPC is that of  intention. The provisions of Section 113-A of the  Evidence Act or its impact on an offence under  Section 498-A IPC or Section 306 IPC vis-à-vis  Section 107 IPC was not considered in any of these  decisions.”

16. In the light of the above conclusion of ours, we do not find  

any merit in this appeal and the same is dismissed.  

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…..……….…………………………...J.

                 [Swatanter Kumar]

…………….………………………………J.                     [Fakkir Mohamed Ibrahim  

Kalifulla]

New Delhi; September 04, 2012

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