REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 57  of 2002

Gopal  ......Appellant  

Versus

State of Rajasthan ..... Respondent

J U D G M E  N T

Dr. ARIJIT PASAYAT, J

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Rajasthan High Court  allowing the appeal of the State Government

and holding the appellant guilty of offence punishable under Section 498-A

of  the  Indian  Penal  Code,  1860  (in  short  ‘IPC’)  while  upholding   the

acquittal  in  respect  of  offence  punishable  under  Section  306  IPC.  The

appellant was sentenced to undergo rigorous imprisonment for one year and

to pay a fine of Rs.2,000/-with default stipulation.

2. Background facts giving rise to the prosecution  are as under:

On 4.7.1988, at about 10 p.m. Laxman Singh (P.W.13) who was S.I.

in the Police Station Nimbaheda received an information from the Medical

Officer Dr. R.D. Bhatt  (P.W.15) from the Hospital  and on receiving that

information,  Laxman Singh reached the hospital  where Prem Chand was

present who informed orally to Laxman Singh that in the morning all the

persons of his family had gone to the field in the house; wife of his son

Gopal, namely, Ram Kumari (hereinafter referred to as “the deceased”) was

alone and in the noon, when he went to his house, he found the deceased

unconscious and then he called his wife Lahar Bai (PW-4) who was living

nearby and she also came there. Then he called doctor and doctor advised

him that she should be taken to the hospital and in the hospital, when the

treatment was going on, the deceased died.

This oral report was reduced into writing and the same is Ex. P/6 and

on this report, Laxman Singh (P.W.13) registered Marg FIR No.6/88 under

Section 174 of the Code of Criminal Procedure, 1973 (in short the ‘Code’)

and started investigation.

During investigation, post mortem of the dead body of the deceased

was conducted by Dr. R.K. Gupta (P.W. 11) and Dr. R.D. Bhatt (P.W.15)

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and the post mortem report is Ex.P/4 and both the doctors have stated that

cause of death of Smt. Ram Kumari was asphyxia and this may be probably

due to opium poisoning and they also found 6 bruises, three on the right

thigh and three on her right hip. Thereafter P.W.13 Laxman Singh came to

the conclusion that accused Gopal who was husband of the deceased used to

treat  her  with  cruelty and used  to  beat  her  and a case for  offence  under

Sections  498A and 306 I.P.C.  was made out  and he himself  lodged FIR

Ex.P/8  and  on  this  FIR  Ex.P/8  investigation  of  the  case  was  done  by

Netrapal Singh (PW-14) who was S.H.O. in the police station Nimbaheda.

After usual investigation challan was submitted in the Court of Magistrate

for  offence  under  Section  498A and  306  IPC from where  the  case  was

committed to the Court of Additional Sessions Judge, Nimbaheda.  

Since the accused pleaded innocence trial was held and 15 witnesses

were examined.  The trial Court directed acquittal of the appellant inter-alia

holding as follows:

(i) It has not been proved by the prosecution that the deceased has

been  subjected  to  cruelty  and  single  act  of  cruelty  or  beating  is  not

sufficient.

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(ii) Since the deceased had undergone tubectomy operation  after

delivery of 3rd child and because of that she was not in a position to work

and she used to feel restlessness and accused respondent used to ask her to

work  and there was dispute between husband and the wife on this point and

such type of dispute cannot be covered  

Aggrieved by the judgment and order,  State filed an appeal  and as

noted above the same was allowed.  

3. In support of the appeal, learned counsel for the appellant submitted

that the marriage took place some time in1976 and the date of occurrence is

July, 1998 and therefore Section 113-B of the Indian Evidence Act, 1872 (in

short the ‘Evidence Act’) has no application.  Further it is submitted that the

ingredients of Section 498-A have not been established.  

4. It has been concluded by the High Court  that suicide has not been

proved.  Therefore,  Section  498-A  has  no  application.  Section  498-A(b)

relates to demand of dowry for which there is no evidence.  

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5. In response, learned counsel for the respondent-State submitted that

the case is covered by Section 498-A(b). It is submitted that in any event

injuries  have  been  established  and  therefore  Section  323  IPC  has  been

clearly established. It is by way of reply learned counsel for the appellant

submitted that no charge has been framed for Section 323.  

6. The ingredients of Section 498-A are 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 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.”

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7. Consequences  of  cruelty  which  are  likely  to  drive  a  woman  to

commit suicide or to cause grave injury or danger to life, limb or health,

whether mental or physical of the woman are required to be established in

order to bring home the application of Section 498A IPC. Cruelty has been

defined in the Explanation for the purpose of Section 498A.  Substantive

Section 498A IPC and presumptive Section 113B of the Evidence Act have

been  inserted  in  the  respective  statutes  by  Criminal  Law  (Second

Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC

cannot  be held  to be mutually inclusive.  These provisions deal with two

distinct offences.  It is true that cruelty is a common essential to both the

Sections and that has to be proved. The Explanation to Section 498A gives

the meaning of  ‘cruelty’.   In Section 304B there  is  no such explanation

about the meaning of ‘cruelty’.  But having regard to common background

to  these  offences  it  has  to  be  taken  that  the  meaning  of  ‘cruelty’  or

‘harassment’ is the same as prescribed in the Explanation to Section 498A

under which ‘cruelty’ by itself amounts to an offence.  Under Section 304B

it is ‘dowry death’ that is punishable and such death should have occurred

within seven years of marriage.  No such period is mentioned in Section

498A.   A  person  charged  and  acquitted  under  Section  304B  can  be

convicted under Section 498A without  that  charge being there, if such a

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case is made out.  If the case is established, there can be a conviction under

both the sections.  (See Akula Ravinder and others v. The State of Andhra

Pradesh (AIR 1991 SC 1142). Section 498A IPC and Section 113B of the

Evidence Act include in their amplitude past events of cruelty.  Period of

operation of Section 113B of the Evidence Act is seven years, presumption

arises  when a  woman committed  suicide  within  a period of  seven  years

from the date of marriage.     

8. The above position was highlighted in Balwant Singh & Ors. v. State

of H.P. [2008(10) JT 589].

9. Section  498A IPC has  two limbs.  The  first  limb of  Section  498A

provides that whoever, being the husband or the relative of the husband of a

woman,  subjects  such woman to  cruelty shall  be punished.  ‘Cruelty’ has

been defined in  clause (a)  of  the Explanation  to  the  said  Section as  any

willful conduct which is of such a nature as is likely to drive to a woman to

commit  suicide.  When there  is  demand  of  dowry,  the  case  comes under

clause (b) of the Explanation to Section 498A. Clause (a) of the Explanation

has definite application to the facts of the present case.  Additionally, effect

of Section 113 A of the Indian Evidence Act cannot be lost sight of.

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10. Further as per Section 113 A of the Evidence Act when the question

as to whether commission of suicide by a woman had been abetted by her

husband  or  any  relative  of  her  husband  and  it  is  shown  that  she  had

committed  suicide  within  a  period  of  seven  years  from the  date  of  her

marriage and that her husband or such relative of her husband had subjected

her to cruelty, the court may presume that such suicide had been abetted by

her husband or by such relative of her husband.  This has not been rebutted

by the appellants.

11. For  bringing  in  application  of  Section  306 IPC,  suicide  has  to  be

established.   In the instant  case, the trial  Court  and the High Court have

categorically held that no suicide has been established.  

12. So far as Section 498-A(b) is concerned, there must be an evidence of

demand  of  dowry.  There  is  no  evidence  in  that  regard  adduced  by  the

prosecution. That being so, as rightly contended by learned counsel for the

appellant Section 498-A(b) has no application.  

13. The  crucial  question  is  whether  the  appellant  can  be  convicted  in

terms of Section 323 IPC. Even if it is so as contended by learned counsel

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for  the  respondent,  considering  the  fact  that  the  appellant  has  already

suffered custody of about 6 months, we do not consider it necessary to go

into that question. The appeal is allowed.  The conviction as recorded is set

aside. The bail bonds executed by the appellant for release on bail pursuant

to the order dated 14.1.2002 shall stand discharged.  

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, February 13, 2009

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