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[2008) 16 S.C.R. 1005

RAJENDRAN & ANR. v.

STATE ASSTT. COMMNR. OF POLICE LAW & ORDER

(Criminal Appeal No. 53 of 2002)

DECEMBER 2, 2008

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

Penal Code, 1860: s.498A and s.3048 - Evidence Act, 1872 - s. 113A - Suicide by married woman - Husband and C in-laws of deceased charge-sheeted for offence under s.3048 and s.498A - Acquittal under s.3048 but conviction under s. 498A - Challenged on the ground that since accused were acquitted for offence under s.3048, courts below ought to have acquitted accused in respect of offence under s.498A - Held: D A person charged and acquitted under s. 3048 can be convicted under s.498A, if such a case is made out - s. 3048 and s.498A cannot be held to be mutually inclusive - Presumption under s. 113A of Evidence Act that suicide was abetted by husband and in-laws was not rebutted by accused E

- Clause (a) of Explanation to s.498A applicable in the facts of the case - Conviction upheld - Crime against woman.

Prosecution case was that appellants who were husband and parents-in-law of the deceased tortur.ed the deceased. She committed suicide by setting fire on herself after pouring kerosene. Appellants were chargesheeted and tried for offence under s.3048 and s.498A IPC. Trial Court held all the appellants guilty under s.498A

IPC and sentenced them to undergo rigorous imprisonment for three'years. The High Court did not

G accept the plea that since the appellants were acquitted of the charge punishable under s.3048 IPC, therefore, High Court ought to have acquitted appellants in respect of offence under s.498A. It, therefore, held that the

1005 H

A appellants were rightly convicted. Hence the instant

appeal.

Dismissing the appeal, the Court

HELD: 1. Consequences of cruelty which are likely B 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 ofs.498A IPC. Cruelty has been defined in the Explanation for the purpose of C s.498A. Substantive s.498A IPC and presumptive s.1138 of the Evidence Act, 1872 have been ins.erted in the respective statutes by Criminal Law (Seccm.d Amendment) Act, 1983. 5.3048 and s.498A, IPC cannot be held to be mutually inclusive. These provisions deal with D two distinct offences. It is true that cruelty is a common

 esential to both the Sections and that has to be proved.

The Explanation to s.498A gives the meaning of 'cruelty!.

In s.3048 there is no such explanation about the meanin.g of 'cruelty'. But having regard to common background to E these offences it has to be taken that the meaning of

'cruelty' or 'harassment' is the same as prescribed in the Explanation to s.498A under which 'cruelty' by itself amounts to an offence. Under s.3048 it is 'dowry death' .that is punishable and such death should have occurred F .· within seven years of marriage. No such period is mentioned in s.498A. A person charged and acquitted under s.3048 can be convicted under s.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 G sections. S.498A IPC and s.1138 of the Evidence Act

ii:iclude in their amplitude past events of cruelty. [Para 8]

[1011.-B-G]

Akula Ravinder and others v. The State of Andhra Pradesh AIR (1991) SC 1142 and Ba/want Singh & Ors. v.

H State of H.P. (2008) 10 JT 589, relied on.

...

POLICE LAW & ORDER

2. S.498A IPC has two limbs. The first limb of s.498A A 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 B drive a woman to commit suicide. When there is demand of dowry, the case comes under clause (b) of the Explanation to s.498A. Clause (a) of the Explanation has . definite application to the facts of the present case.

Additionally, effect of s.113A of the Evidence Act cannot c be lost sight of. Further as per s.113A 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 0 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. [Paras 10 and E

11] [1012-8-F]

Case Law Reference:

AIR (1991) SC 1142

(2008) 10 JT 589

relied on

relied on

Para 8

Para 9

CRIMINA~ APPELLATE JURISDICTION: Criminal Appeal No. 53 of 2002.

From the final Judgment and Order dated 23.2.2001 of the High Court of.Judicature at Madras in Crl. M.P. No. 6590 of G 1992 in Criminal Appeal No. 581 of 1992.

WITH

Criminal Appeal No. 1139 of 2003.

A shekhar Naphade, Anil Kaushik, Jaspreet Aulakh, Meenakshi Thareja, A. Santhakumaran, Gopal Singh Chavan,· Shiv Prakash Pandey, K.V. Vishwanathan, Deepak Jain, Judy James, Subra Rai, T". Raja and S. Thananjayan fo_r the appearing parties.

B The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. These two appeals are )- ~

interlinked and have their matrix on a judgment of the Maras

. . c-

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'). Each was sentenced to undergo rigorous imprisonment for three years. The conviction was imposed by learned Second Additional Sessions Judge, Madras, and D 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 1

Setion 498A and 304. B IPC. The Trial Court after considering ....

the material on record acquitted the appellants in respect of

E 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 F referred to as the 'deceased'). The other appellants are the

parents of Rajendran. On 1.12.1989, the deceased Shanthi got -r---

.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 AM. by setting fire on herself after G pouring kerosene.

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

J.._

.. deceased, a case was registered in Crime No. 99 of 1991 for suspicious death by the Sub-Inspector of Police (P.W.9).

H After-examination of witnesses and recovery of material

I ..

; i

~ ...

___.

~1--

RAJENDRAN & ANR. v. STATE ASSTT. COMMNR. OF -1009

objects, the Assistant Commissioner of Police (PW-11) filed a A charge sheet before the trial Court on 20.3.1992 for the offences under Section 498(A) and 304(8) 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.

B 1 to 4 were marked.

The trial court on completion of trial, concluded that all the appellants were gurlty of offence under Section 498 A IPC and convicted and sentenced them to undergo rigorous imprisonment for 3 years. Same was challenged before the c

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 .D 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 3048 IPC, consequentially the trial court ought to have acquitted the appellants in respect of other offence. The High E Court did not accept this 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 F

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 H

A considered to be inauspicious and after the birth of the said

female child, the Rajendran's broth.er's wife died a11d th~ 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.

5. It is also clearly stated by P.W.1 that on 28.2.19~1, 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.

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

6. On 7.3.1991 atabout10.30 AM., PW 2 the brother of the deceased, took the deceased and left her in the house of D the appellants. At that time, the 3rd appellant abused her. After having pacified the deceased, PW2 came back. Then at 1~.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 informihim 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 ofa 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 qf this section 'cruelty' means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to coh1mit 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 A .-i . 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 B

woman to commit suicide or to cause grave injury or danger "'i 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 !n c the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 1138 of the lndia, n Evidence Act, 1872 (in short 'Evidence Act') have been inserted in the respective statutes by Criminal Law (Seconl:J Amendment) Act, 1983. It is to be noted that Sections 3048

D 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 9ives the meaning of 'cruelty'. In Section 3048 there is no such explanation about the meaning of 'cruelty'. But having regard to common E 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 3048 it is 'dowry death' that is punishable and such death should have ccurred within F , i seven years of marriage. No such period is mentioned in Section 498A. A person charged and acquitted under Section 3048 can be convicted under Section 498A without that charge being there, if such a case is made out. If the case is est?blished, there can be a conviction under both the sections. G (See Akula Ravinder and others v. The State of Andhra Pradesh (AIR 1991 SC 1142). Section 498A IPC and Section

1138 of the Evidence Act include in their amplitude past events of crl1elty. Period of operation of Section 1138 of the Evidence Act is seven years, presumption arises when a woman H

A committed suicide within a period of sevn years from the date of marriage. ~.

9. The above position was highlighted in Ba/want Singh

:- . ' . . & Ors. v. State of H.P. [2008(10) JT 589] .

.. 9

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 been defined in clause

(a) of the Explanation to the said Section as any willful conduct c which is of such a nature as is likely to drive a woman to commit suicide. When there is demand of dowry, the case comes under t

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 D 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 ...

E 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

F has not been rebutted by the appellants.

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

D.G.

Appeal dismissed.