Non-Reportable  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.  1061  of 2019 (Arising out of SLP (Crl.) No.193 of 2019)

WASIM .... Appellant

Versus

STATE NCT OF DELHI                            …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.  

1. On  receipt  of  information  on  27.10.2015  about  a

suicide,  PW-23  Sub-Inspector  Bijender  Dahia  attached  to

Police Station Aman Vihar rushed to Nithari  village, Delhi.

By  the  time  he  reached,  the  body  of  the  deceased  i.e.

Moniya  had  already  been  brought  down  from  hanging

position.  Ashwani (PW-12), the brother of the deceased was

found sitting besides the body of the deceased.  The elder

brother of the Appellant was also present.  A suicide note

was seized.  PW-23 sent the body of the deceased for post-

mortem.  The statement of Ashwani was recorded by PW-23.

Inquest was conducted by the Executive Magistrate on the

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next day.  According to the post-mortem, the cause of death

of Moniya was due to asphyxia as a result of ante mortem

handing.   

2. FIR was registered on the statement of Sunita (PW-11),

the mother of the deceased on 04.11.2015.  A charge sheet

was  filed  on  05.02.2016.   Later,  charges  were  framed

against  the  Appellant  under  Section  498A/304B  of  the

Indian Penal Code, 1860 (hereinafter ‘IPC’).  23 witnesses

were examined by the prosecution and several documents

relied upon to prove the guilt  of the Appellant.  The Trial

Court convicted the Appellant under Section 498A and 306

IPC. Sentence of three years’ simple imprisonment for the

offence  under  Section  498A  IPC  and  four  years  simple

imprisonment  for  the  offence  under  Section  306  IPC  was

imposed on the Appellant.  The appeal filed by the Appellant

was partly allowed by the High Court.  The Appellant was

acquitted  for  the  offence  under  Section  306  IPC.   The

conviction and sentence under Section 498A IPC was upheld

by the High Court. Hence, this appeal.          

3. The deceased Moniya who was working as a teacher

was married to the Appellant on 02.05.2015. PW-11 Sunita

deposed that her daughter Moniya was being harassed by

the  Appellant  by  demanding  dowry.   She  testified  in  the

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Court  that  on  two  occasions  she  gave  Rs.40,000/-  and

Rs.50,000/- to the deceased for handing over the same to

the Appellant to meet his demands of dowry.  She stated

that the same was not informed either to her husband or

her son and that she made the payments from her savings.

She also spoke about the demand for a bigger car.   The

Appellant was working in Nagercoil District, Tamil Nadu and

he was demanding for air fare to travel to the place of his

work.   PW-11 further stated that she was informed by the

deceased that the Appellant had extra marital relations with

one  Poonam  and  he  informed  the  deceased  that  he

intended to marry Poonam after leaving the deceased.   

4. The statement of PW-12 Ashwani was recorded on the

day of the incident in which he did not mention about the

demand  of  dowry  by  the  Appellant.   He  stated  that  the

deceased was depressed by the behavior of the Appellant.

PW-10 Sukhbir, the father of the deceased, who reached the

place of incident also did not accuse the Appellant of any

demand of dowry.  The suicide note which was seized from

the place of incident was proved on a comparison of  the

admitted  hand  writing  of  the  deceased  from  the  school

records with the suicide note.  The suicide note also did not

contain any allegation of demand of dowry by the Appellant.

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The suicide note which was reproduced in the judgment of

the Trial Court is as follows:

“Relations have come heavy on dreams” Always lived with head ups and never did nay work by which I have to down my neck. I love a lot to my dad and brother.  Today they have tears in their eyes I  have  broken  from  inside.  I  love  a  lot  to  my profession and education.  I have done nothing that is why I cannot tolerate I  want  to  live  my  life  with  Master  Ji,  He  also manipulated.  I  do  not  have  any  complaint  to anyone.   

5. After examining the evidence on record, the Trial Court

held that the demand of dowry was not proved. However,

the Trial Court was convinced that the prosecution proved

the extra marital relationship of the Appellant with Poonam.

The oral  evidence relating to the Appellant  informing the

deceased  about  such  extra  marital  relations  to  the

deceased was accepted by the Trial  Court.   Having found

that  the  Appellant  was  guilty  of  mental  cruelty,  the  Trial

Court  convicted  the  Appellant  under  Section  498A,  IPC.

Though, there was no charge under Section 306 IPC, relying

upon the judgments of this Court, the Trial Court was of the

opinion  that  the  conviction  under  Section  306  IPC  was

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permissible.  The Trial Court found that the offence under

Section 306 IPC was made out against the Appellant and

convicted him.   

6. The main issue that was considered by the High Court

in the appeal against the judgment of the Trial Court was

the  correctness  of  the  conviction  under  Section  306  IPC

without a charge being framed.  The Appellant contended

before  the  High  Court  that  the  charge  that  was  framed

against him was under Section 304B, IPC and that he could

not have been convicted under Section 306 IPC.   Placing

reliance on the judgments of this Court, it was held that a

conviction  under  Section  306  IPC  is  permissible  even

without a charge being framed in a case where the accused

is charged under Section 304 B IPC.  The High Court held

that such conviction would not amount to failure of justice.

However, the High Court found no convincing evidence to

hold that the Appellant abetted the commission of suicide

by  the  deceased.   The  Appellant  was  acquitted  for  the

offence under Section 306 IPC on the basis that there was

no evidence to show that the deceased was subjected to

mental  or  physical  cruelty  before  her  death.    The  High

Court affirmed the conviction of the Appellant under Section

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498A IPC by holding that there was sufficient evidence on

record regarding the demand of dowry.   

7. The acquittal of the Appellant under Section 306 IPC

has  become final  as  no  appeal  is  preferred by the  State

against the judgment of  the High Court.    Ms. Aishwarya

Bhati, learned Senior Counsel on instructions submitted that

a decision was taken not to file the appeal in view of the

fact that the Appellant has already undergone the sentence

under  Section  498A  IPC.    The  learned  counsel  for  the

Appellant submitted that his conviction under Section 498A

is  impermissible  after  he  was  acquitted  for  the  offence

under Section 306 IPC.  He relied upon the reasons given by

the Trial Court regarding the non availability of any evidence

pertaining to demand of dowry.   

8. Ms.  Bhati,  learned  Senior  Counsel  for  the  State

submitted that it  is clear from the evidence of the family

members of the deceased that there was demand of dowry

by the Appellant and the High Court was justified in holding

that the Appellant is guilty of committing an offence under

Section 498A.   

9. The  conviction  of  the  Appellant  by  the  Trial  Court

under  Section  498A  was  not  for  demand  of  dowry.   The

conviction under Section 498A was on account of  mental

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cruelty by the Appellant in having an extra marital relation

and the threats held out by him to the deceased that he

would leave her and marry Poonam.   

10. The High Court acquitted the Appellant under Section

306 IPC by reaching a conclusion on the basis of evidence

that  the  charge  of  abetment  of  suicide  on  part  of  the

Appellant was not proved.  Without any discussion of the

evidence  pertaining  to  demand  of  dowry  and  without

dealing  with  the  findings  recorded  by  the  Trial  Court

regarding the demand of dowry, the High Court held that

the offence under Section 498A was made out.   

11. Cruelty is dealt with in the Explanation to Section 498A

as follows:

[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  

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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.]

12. Conviction under Section 498A IPC is for subjecting a

woman to cruelty. Cruelty is explained as any wilful conduct

which is  likely  to drive a woman to commit suicide or to

cause  grave  injury  or  danger  to  life,  limb  or  health.

Harassment of a woman by unlawful demand of dowry also

partakes the character of ‘Cruelty’.  It is clear from a plain

reading of Section 498A that conviction for an offence under

Section 498A IPC can be for wilful conduct which is likely to

drive a woman to commit  suicide OR for  dowry demand.

Having held that there is no evidence of dowry demand, the

Trial Court convicted the Appellant under Section 498A IPC

for his wilful conduct which drove the deceased to commit

suicide.   The Appellant  was also convicted under Section

306 IPC as the Trial Court found him to have abetted the

suicide by the deceased.

13. Section  306  IPC  provides  for  punishment  with

imprisonment that may extend to ten years. There should

be  clear  mens  rea to  commit  the  offence  for  conviction

under  Section 306 IPC.   It  also requires  an active  act  or

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direct act which led the deceased to commit suicide seeing

no option and this act must have been intended to push the

deceased  into  such  a  position  that  he/she  committed

suicide – See M. Mohan vs. State1.  To attract the ingredients

of abetment, the intention of the accused to aid or instigate

or abet the deceased to commit suicide is necessary – See

Pallem Deniel Victoralions Victor Manter vs. State of Andhra

Pradesh2.   Whereas,  any  wilful  conduct  which  is  likely  to

drive  the  woman  to  commit  suicide  is  sufficient  for

conviction under Section 498A IPC.  In this case, the High

Court recorded a categorical finding  that neither mental nor

physical  cruelty on the part of the Appellant was proved.

Therefore, the conviction under Section 498A IPC is not for

wilful conduct that drove the deceased to commit suicide.

The High Court held that though there was no demand of

dowry soon before the death, the prosecution proved dowry

demand by the Appellant immediately after the marriage.  

14. The  High  Court  ought  not  to  have  convicted  the

Appellant under Section 498A for demand of dowry without

a detailed discussion of the evidence on record, especially

when  the  Trial  Court  found  that  there  is  no  material  on

record to show that there was any demand of dowry.  The

1 (2011) 3 SCC 626 2 (1997) 1 Crimes 499 (AP)

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High Court did not refer to such findings of the Trial Court

and record reasons for its disapproval.   

15. For the aforementioned reasons, the judgment of the

High Court is set aside.  The appeal is allowed.        

                    …................................J                                               [L. NAGESWARA RAO]

                                    ..…............................J                                               [HEMANT GUPTA]

New Delhi, July 18, 2019.

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