REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 976 OF 2001

Satish Kumar Batra & Ors.   ....Appellants

Versus

State of Haryana ....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 Punjab and Haryana High Court dismissing the Criminal Revision

Petition filed by the present appellants.  Challenge in the Revision Petition

was to the judgment of learned Additional Sessions Judge, Sonepat, finding

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each of the present appellants  guilty of offence punishable under Section

498A of the Indian Penal Code, 1860 (in short the ‘IPC’).  Learned Chief

Judicial Magistrate, Sonepat, had found the accused persons guilty and had

convicted them as aforenoted.  In appeal learned Additional Sessions Judge

confirmed the same.  Six persons were arrayed as accused persons on the

basis of information lodged by Santosh Kumari.

2. Prosecution version in a nutshell is as follows:

Marriage  between  Santosh  Kumari  and  Satish  Kumar  (Appellant

No.1) was solemnization on 21.10.1985. According to FIR No. 695 dated

20.6.1992 that was registered in Police Station City Sonepat at the behest of

Santosh  Kumari,  at  the  time  of  her  engagement,  her  parents  had  given

sufficient articles valued at Rs.20,000/- to her husband and other members

of  his  family.  At  the  time of  her  marriage,  various  articles  listed  in  the

complaint were handed over to the accused and in all about Rs.1,50,000/-

were spent thereon.  Despite this,  the persons mentioned in the complaint

were not satisfied with the articles of dowry handed over to them, with the

result that her husband Satish Kumar, mother-in-law Satya, brother-in-law

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Sunil  Kumar,  father-in-law  Ram  Lal,  his  sister  Ishwar  Devi  and  Om

Parkash, brother-in-law of Ram Lal had been pressing her to bring more

dowry. Satish Kumar husband had demanded Rs.5,000/- and Rs.10,000/- for

purchase of goods for his shop which amount was given to him.  In spite of

that, the petitioners were not satisfied and had been beating her on several

occasions. After the  birth of the  children, the petitioners turned her out of

the matrimonial home, so that her parents could be forced to spend money

on the upbringing of the children. On the birth of each of her children, her

parents had spent Rs.20,000/-. But this had not satisfied her in-laws. Om

Prakash,  the  brother-in-law  of  her  father-in-law  used  other  methods  to

torture her and she bore the atrocities attributing them to her wedlock. On

01.12.1991 the appellants had tried to kill her by pouring kerosene oil on

her, but she was able to save herself by running away. The neighbours had

pacified her and assured that her in laws would behave properly in future.

Despite  this  assurance,  there  was  no  change  in  their  attitude  and  on

03.03.1992  her  husband  gave  her  severe  beating  and asked her  to  bring

Rs.45,000/-  for  the  purpose  of  taking  agency  and  they  could  give  only

Rs.25,000/-. On account of the beating, she started bleeding and was  about

to leave for Delhi Police Station, but was dissuaded by the members of the

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locality from doing so. The attitude of the in-laws did not change and on

21.05.1992  she  was  turned  out  from the  house  after  being  told  that  she

should not return to the matrimonial home, otherwise she and her children

would be done to death. She was also told that if she wanted to settle with

Satish Kumar then her parents should purchase a separate house for her. The

Stridhan was kept by them. On the basis of this complaint, formal FIR under

Sections 406 and 498-A read with section 120-B IPC was registered.

During investigation list of articles Ex.PB and letters alleged to have

been written by Santosh Kumari Ex.PD, Ex.PE, Ex.PF, Ex.PG and Ex.PH

were taken into possession vide recovery memo Ex.P5. On completion of

the investigation challan was put in Court under sections 406, 498-A IPC.

On going through the challan, the learned trial Court framed charges under

sections 406 and 498-A IPC and when the accused pleaded not guilty to the

charges, called upon the prosecution to lead evidence in support of its case.

After completion of the trial, the learned trial court acquitted the appellants

of the offence under Section 406 IPC but  convicted them under Section

498A IPC and sentenced them to undergo R.I. for two years and to pay a

fine of Rs.500/- each and in default of payment of fine to further undergo

R.I. for one month.

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Before trial was completed, Ram Lal, the  father of Santosh Kumar

died and the other five persons faced trial.  Each one of them was convicted

as in the case of the present appellants. They also filed appeals along with

the present appellants and their appeals were dismissed. However, the High

Court by order in a separate Criminal Revision Petition (Criminal Revision

No. 607 of 2000) directed their acquittal. Conviction under Section 498A

IPC was  upheld  by  the  High  Court  so  far  as  the  present  appellants  are

concerned.   Primarily  the  prosecution  relied  upon  the  version  of  the

complainant (PW 1), mother (PW 5), and the brother (PW 6). The stand of

the appellants all through was that the evidence of these witnesses does not

inspire  confidence.  The  High  Court  noted  that  there  were  lots  of

improvements and false implication of two other persons. The trial court,

the  First  appellate  court  and  the  High  Court  did  not  accept  this  plea.

However, finding that the evidence was inadequate, the High Court directed

acquittal of the co-accused persons.

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

that  the  courts  below  did  not  notice  the  inherent  improbabilities  in  the

evidence of PWs 1, 5 & 6. Though the High Court noted that there were lots

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of inconsistencies and improvements, yet chose to direct acquittal only of

two persons while upholding the conviction on the self-serve evidence qua

the  appellants.   It  is  submitted  that  appellant  No.1  has  already  suffered

custody for more than 13 months.

4. Learned counsel for the respondent on the other hand supported the

judgment of the courts below including the High Court.

5. It  is  to  be  noted  that  in  the  first  information  report  the  thrust  of

allegations was primarily directed against the acquitted accused persons i.e

Om Prakash and Ishwar Devi.  They have been acquitted by the High Court.

So far as the evidence of PWs 1, 5 & 6 is concerned, it is true as noticed by

the High Court, that there were lots of improvements.  But the High Court

found that  even if  these improvements  are kept  out  of consideration,  the

evidence  was sufficient  to  hold  the  present  appellants  guilty.  It  is  to  be

noted  that  these  improvements  primarily  related  to  appellant  Nos.2  & 3.

Therefore, in our considered opinion the acquittal as directed qua the co-

accused persons should have also been done in the case of appellant Nos.2

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& 3.  However, the evidence is clear and cogent so far as the appellant No.1

is concerned.

6. Section 498-A appears in Chapter XX-A IPC.

7. Substantive Section 498-A IPC and presumptive Section 113-B of the

Indian Evidence Act, 1872 (in short “the Evidence Act”) have been inserted

in the respective statutes by the Criminal Law (Second Amendment) Act,

1983 and by the Dowry Prohibition (Amendment) Act, 1986, respectively.

8. Section 498-A IPC and Section 113-B of the Evidence Act include in

their amplitude past events of cruelty. Period of operation of Section 113-B

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.

9. Section 498-A reads as follows:

“498-A.  Husband  or  relative  of  husband  of  a

woman subjecting her to cruelty.—Whoever,  being the

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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. Section 113-B reads as follows:

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“113-B.  Presumption as to dowry death.—When

the  question  is  whether  a  person  has  committed  the

dowry death of a woman and it is shown that soon before

her  death  such  woman  had  been  subjected  by  such

person  to  cruelty  or  harassment  for,  or  in  connection

with, any demand for dowry, the court shall presume that

such person had caused the dowry death.

Explanation.—For  the  purpose  of  this  section,

‘dowry death’ shall have the same meaning as in Section

304-B of Indian Penal Code (45 of 1860).”

11. 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 498-A IPC. Cruelty has been defined

in the Explanation for the purpose of Section 498-A. It is to be noted that

Sections  304-B and 498-A 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

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Explanation to  Section 498-A gives the meaning of “cruelty”.  In Section

304-B 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 498-A under which “cruelty” by itself amounts

to an offence.

12. The  object  for  which  Section  498-A IPC was introduced is  amply

reflected  in  the  Statement  of  Objects  and  Reasons  while  enacting  the

Criminal  Law  (Second  Amendment)  Act  46  of  1983.  As  clearly  stated

therein the increase in the number of dowry deaths is a matter of serious

concern.  The  extent  of  the  evil  has  been  commented  upon  by the  Joint

Committee of the Houses to examine the work of the Dowry Prohibition

Act,  1961. In some cases, cruelty of the husband and the relatives of the

husband which culminate in suicide by or murder of the helpless woman

concerned,  constitute  only  a  small  fraction  involving  such  cruelty.

Therefore, it was proposed to amend IPC, the Code of Criminal Procedure,

1973 (in short “CrPC”) and the Evidence Act suitably to deal effectively not

only with cases of dowry deaths but also cases of cruelty to married women

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by the husband, in-laws and relatives. The avowed object is to combat the

menace of dowry death and cruelty.

13. One other provision which is relevant to be noted is Section 306 IPC.

The basic difference between the two sections i.e. Section 306 and Section

498-A  is  that  of  intention.  Under  the  latter,  cruelty  committed  by  the

husband  or  his  relations  drag  the  woman  concerned  to  commit  suicide,

while under the former provision suicide is abetted and intended.

14. It is well settled that mere possibility of abuse of a provision of law

does  not  per  se  invalidate  a  legislation.  It  must  be  presumed,  unless  the

contrary is proved, that administration and application of a particular law

would be done “not with an evil eye and unequal hand”. (See  A. Thangal

Kunju Musaliar v. M. Venkatichalam Potti (1955 (2) SCR 1196))

15. In  Budhan  Choudhry v.  State  of  Bihar  (1955  (1)  SCR  1045)  a

contention was raised that a provision of law may not be discriminatory but

it  may  lend  itself  to  abuse  bringing  about  discrimination  between  the

persons similarly situated. This Court repelled the contention holding that

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on the possibility of abuse of a provision by the authority, the legislation

may not be held arbitrary or discriminatory and violative of Article 14 of the

Constitution.

16. From the decided cases in India as well  as in the United States  of

America, the principle appears to be well settled that if a statutory provision

is otherwise intra vires, constitutional and valid, mere possibility of abuse of

power  in  a  given  case  would  not  make  it  objectionable,  ultra  vires  or

unconstitutional.  In  such  cases,  “action”  and  not  the  “section”  may  be

vulnerable. If it is so, the court by upholding the provision of law, may still

set  aside the  action,  order  or decision and grant  appropriate  relief  to the

person aggrieved.

17. In  Mafatlal Industries Ltd. v.  Union of India (1997 (5) SCC 536) a

Bench of nine Judges observed that mere possibility of abuse of a provision

by those  in  charge of  administering  it  cannot  be  a  ground for  holding  a

provision  procedurally  or  substantively  unreasonable.  In  Collector  of

Customs v.  Nathella  Sampathu  Chetty  (1962  (3)  SCR  786), this

Court observed: (SCR p. 825)

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“The  possibility  of  abuse  of  a  statute  otherwise

valid does not impart to it any element of invalidity.”

18. It was said in  State of  Rajasthan v.  Union of  India(1977 (3) SCC

592): (SCC p. 658, para 147)

“It  must  be  remembered  that  merely  because

power  may  sometime  be  abused,  it  is  no  ground  for

denying the existence of power. The wisdom of man has

not  yet  been  able  to  conceive  of  a  Government  with

power sufficient to answer all its legitimate needs and at

the same time incapable of mischief.”

(Also  see  Commr.,  H.R.E. v.  Sri  Lakshmindra Thirtha

Swamiar of Sri Shirur Mutt (1954 SCR 1005).

19. As observed in  Maulavi  Hussein Haji  Abraham Umarji v.  State of

Gujara ((2004 (6) SCC 672), Unique Butyle Tube Industries (P) Ltd. v. U.P.

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Financial Corpn. (2003 (2) SCC 455) and Padma Sundara Rao v. State of

T.N. ((2002 (3) SCC 533), while interpreting a provision,  the Court  only

interprets the law and cannot legislate it. If a provision of law is misused

and subjected to the abuse of the process of law, it is for the legislature to

amend, modify or repeal it, if deemed necessary.

20. In the instant case the evidence of PWs 1, 5 & 6 clearly establish the

accusations  so  far  as  the  accused  appellant  No.1  i.e.  Satish  Kumar  is

concerned and therefore we find nothing infirm in the judgment of the High

Court in upholding the conviction of accused appellant Satish Kumar.  The

sentence imposed was two years.   It  is  on record that  he has  undergone

sentence of more than 13 months. He has been released on bail pursuant to

order dated 9.7.2001. Therefore, while upholding the conviction, sentence is

reduced to the period already undergone. So far as the appellant nos.2 & 3

i.e. Sunil Kumar and Satya Devi are concerned, the prosecution has not been

able to establish the accusations so far as they are concerned.  Their appeal

is accepted and the conviction is set aside.  The bail bonds executed by them

for giving effect to the order dated 9.7.2001 shall stand discharged.

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22. The appeal is disposed of accordingly.

................................................... ..J.

(Dr. ARIJIT PASAYAT)

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

New Delhi; April 01, 2009  

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