REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 53 OF 2002

Rajendran & Anr. ……Appellants

Versus

State Asstt. Commnr.  of Police Law & Order    ……Respondent

With

CRIMINAL APPEAL NO. 1139 OF 2003

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. These  two  appeals  are  interlinked  and  have  their  matrix  on  a

judgment of the Madras High Court.  By the impugned judgment the High

Court upheld the conviction of the accused persons for offence punishable

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

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Each was sentenced to undergo rigorous imprisonment for three years.  The

conviction  was  imposed  by  learned  Second  Additional  Sessions  Judge,

Madras, and appeal was preferred by the appellants questioning conviction

and  the  sentence  imposed.  Originally,  the  accused  persons  were  charge

sheeted and tried  for  offence punishable  under  Section 498A and 304 B

IPC.  The Trial Court after considering the material on record acquitted the

appellants  in  respect  of offence referred  to  Section  304 B and convicted

them for offence under Section 498A IPC.

2. Prosecution version in a nutshell is as follows:

Appellant-Rajendran, was married to Shanthi (hereinafter referred to

as the ‘deceased’). The other appellants are the parents of Rajendran. On

1.12.1989, the deceased Shanthi got married to appellant-Rajendran. Since

there  was  torture  at  the  hands  of  the  appellants,  the  deceased  Shanthi

committed suicide on 7.3.1991 at 10.30 A.M. by setting fire on herself after

pouring kerosene.

On the complaint of Ganesan (PW-1), the father of the deceased,  a

case was registered in Crime No.  99 of 1991 for suspicious death by the

Sub-Inspector of Police (P.W.9).

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After examination of witnesses and recovery of material objects, the

Assistant Commissioner of Police (PW-11) filed a charge sheet before the

trial Court on 20.3.1992 for the offences under Section 498(A) and 304(B)

IPC.

During the course of trial, on the side of prosecution, P.Ws 1 to 11

were examined, Exs. P1 to P16 were filed and M.Os. 1 to 4 were marked.

The trial court on completion of trial, concluded that all the appellants

were  guilty  of  offence  under  Section  498  A  IPC  and  convicted  and

sentenced them to undergo rigorous imprisonment for 3 years.  Same was

challenged before the High Court.

The appellants in the appeal before the High Court submitted that in

the absence of any dying declaration or suicide note or any evidence relating

to dowry torture the trial court ought not to have convicted the appellants

for offence punishable under Section 498A IPC.  It was also submitted that

since  the  appellants  were  acquitted  of  charge  punishable  under  Section

304B  IPC,  consequentially  the  trial  court  ought  to  have  acquitted  the

appellants in respect of other offence.  The High Court did not accept this

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plea.  It held that on going through  the evidence of PWs. 1 & 2 it was clear

that there was no offence relating to dowry torture but there are materials to

show that deceased was being tortured by the appellants.

The High Court also referred to the evidence of independent witness

Dhanam (PW 3) who was a neighbour.  She had specifically stated about the

ill-treatment  by  the  appellants.  The  High  Court,  therefore,  held  that  the

appellants were rightly convicted. The stand taken before the High Court

was reiterated in this appeal.

3. Learned  counsel  for  the  State  on  the  other  hand  supported  the

judgment.

4. One  of  the  reasons  for  ill-treatment  to  the  deceased  was  that  the

deceased  gave  birth  to  a  female  child,  which  was  considered  to  be

inauspicious and after  the birth of the said female child,  the Rajendran’s

brother's  wife  died  and  the  appellants  thought  that  the  birth  of  the  said

female  child  was  the  reason  for  various  debacles  in  the  family  and

consequently, she was tortured by the appellants.

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5. It is also clearly stated by P.W.1 that on 28.2.1991, PW-1 went to the

house of the appellants to take both the first appellant-Rajendran and the

deceased  to  attend  a  function  at  their  'Kula  Theivam'  temple.  But  the

appellants allowed only the deceased to go along with PW-1 to attend the

function.  Admittedly,  Rajendran  did  not  accompany the deceased  to  the

function.

6. On 7.3.1991 at about 10.30 A.M., PW 2 the brother of the deceased,

took the deceased and left her in the house of the appellants.  At that time,

the 3rd appellant abused her. After having pacified the deceased, PW2 came

back.  Then at 12.30 PM, PW 1 received message from the first appellant

that the deceased Shanti was not well. At that time, the first appellant did

not inform him as to what really happened.

7. Section 498A reads 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 –

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(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.”

8. 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 Indian Evidence

Act,  1872 (in short  ‘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

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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 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.     

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

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

10. 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

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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.

11. 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.

12. Above being the position we find no merit in these appeals, which are

accordingly dismissed.  

………………………………….J.

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(Dr. ARIJIT PASAYAT)

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

New Delhi, December 2, 2008

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