ATMARAM S/O RAYSINGH RATHODversusSTATE OF MAHARASHTRA

                   [2013] 1 S.C.R. 867


           ATMARAM S/O RAYSINGH RATHOD                       A
                            v.
               STATE OF MAHARASHTRA
            (Criminal Appeal No. 985 of 2004)
                  FEBRUARY 08, 2013
                                                             8
         [A.K. PATNAIK AND CHANDRAMAULI
                  KR. PRASAD, JJ.]

    Evidence Act, 1872:
                                                             c
     s. 113-A - Presumption as to abetment of suicide -
'Cruelty' - Suicide by second wife of appellant -. Conviction
of appellant ulss 306 and 498-A - Held: It is not the case of
prosecution that appellant had subjected the deceased to
cruelty of the nature described in clause (b) of Explanation 0
to s.498A, /PC - As regards clause (a) of the Explanation,
prosecution has not been able to prove beyond reasonable
doubt that appellant was guilty of any wilful conduct which was
of such a nature as was likely to drive deceased to commit
suicide - Therefore, presumption u/s 113A is not attracted E
and the appellant cannot also be held guilty of abetting
suicide of deceased - Judgment of courts below holding the
appellant guilty of offences punishable u/ss 306 and 498-A
/PC are set aside - Penal Code, 1860 - ss. 306 and 498-A.

    The appellant, his first wife and his parents were F
prosecuted for committing offences punishable u/ss 306
and 498 read with s.34 IPC, on the allegations that the
accused ill-treated the second wife of the appellant and
did not give her food for two days because she delivered
a female child, as a result of which she jumped into a well G
with her daughter and committed suicide. The trial court,
on the strength of s.113-A of the Evidence Act, 1872,
convicted the accused of the offences charged and

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    868      SUPREME COURT REPORTS           [2013] 1 S.C.R.


A sentenced to them to imprisonment of three years and a
  fine of Rs.5000/- each. The High Court affirmed the
  conviction and sentence of the appellant, but .acquitted
  the other accused.
          Allowing the appeal, the Court
B
       HELD: 1.1. A reading of s. 113A of the Evidence Act,
  1872 will show that for the purposes of the said section,
  'cruelty' shall have the same meaning as in s.498A, IPC.
  Therefore, to convict a husband or any relative of the
C husband of a woman or to draw presumption as to
  abetment of suicide by a married woman by her husband
  or any relative of her husband in case of suicide
  committed by a woman within a period of seven years
  from the date of her marriage, there must first be evidence
D to establish that such husband or the relative of her·
  husband committed cruelty of the nature described in
  clauses (a) or (b) of the Explanation to s.498A, IPC. [para
  7) [874-G-H; 875-A-B]
E      1.2. In the instant case, it is not the case of the
  prosecution that the appellant had subjected the
  deceased to cruelty of the nature described in clause (b)
  of Explanation to s.498A, IPC, as there is no allegation
  that the appellant had harassed her with a view to coerce
F her or any person related to her to meet any unlawful
  demand for any property or valuable security or that he
  subjected her to harassment on account of failure by her
  or any person related to her to meet such demand. [para
  8] [875-C-E]
G     1.3. As regards Clause (a) of the Explanation to s.
  498A, the High Court has relied on Ext. 47 I.e. a written .
  undertaking dated 17.4.1988 given by appellant to give
  equal treatment to both his wives. Exts. 47 Is an evidence
  of some misbehaviour of the appellant towards the
H deceased but the nature of the misbehaviour has not
  ATMARAM S/O RAYSINGH RATHOD v. STATE OF            869
               MAHARASHTRA
been stated in it. Besides, the drowning of the deceased    A
took place three months after Ext. 47 had been execuited.
For holding the appellant guilty of the offences u/s 306
and 498A, IPC, there must be evidence of wilful conduct
of the appellant towards the deceased soon before her
death which could have driven her to commit suicide.        B
The post mortem examination report of deceased
described her as 'well nourished' and the last meal was
taken by her within six hours. Moreover, the post mortem
examination report does not show that the deceased was
subjected to any severe beating before her death. [para     c
3, 9, 11 and 13] [871-D; 876-E; 877-C-D; 879-C-D]

      1.4. Thus, the prosecution has not been able to prove
 beyond reasonable doubt that the appellant was guilty of
any wilful conduct which was of such a nature as was
 likely to drive the deceased to commit suicide. Rather, D
 there appears to be some evidence in the depositions of
 PW-1 · and PW-4 (father and sister of the deceased) that
the deceased was sad due to a daughter being born to
 her and a son being born to the first wife of the appellant.
These circumstances may have driven her to commit E
suicide by jumping into the well along with her daughter.
Such a consequence from the mental state of the
deceased cannot be a ground for holding the appellant
guilty of cruelty within the meaning of clause (a) of the
Explanation to s.498A, IPC. Therefore, the presumption u/ F
s 113A is not attracted and the appellant cannot also be
held guilty of abetting the suicide of the deceased. The
judgments of the High Court and the trial court holding
the appellant guilty of the offences punishable u/ss 306
and 498A, IPC are set aside. [para 14-15] [879-D-G; 880-D] G
   State of West Bengal v. Ori/a/ Jaiswal & Anr. (1994) 1
sec 73 - referred to

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A                         Case Law Reference:
          (1994) 1 sec 73           referred to            para 14
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 985 of 2004.
B
        From the Judgment & Order dated 3.12.2003 of the High
    Court of Judicature at Bombay, bench at Nagpur in Criminal
    Appeal No. 10 of 1991.

      Anagha Desai, Shashant Pareek, Satyajit A. Desai,
C Venkateswara Rao Anumolu for the Appellant.

          Shankar Chillagre, Asha Gopalan Nair for the Respondent.

          The Judgment of the Court was delivered by
D      A.K. PATNAIK, J. 1. This is an appeal against the
  judgment dated 03.12.2003 of the Bombay High Court, Nagpur
  Bench, in Criminal Appeal No.10 of 1991 by which the High
  Court has maintained the conviction of the appellant for
  offences under Sections 306 and 498A of the Indian Penal
E Code (for short 'the IPC') and the sentence of rigorous
  imprisonment of three years and a fine of Rs.5,000/- for each
  of the aforesaid two offences by the Sessions Court.

       2. The facts very briefly are that a written report was
F lodged by Gorsing Shewa Pawar (hereinafter referred to as
  'the informant') on 17.07.1988 in the Police Station, Pusad
  (Rural). In this report, the informant stated that the appellant got
  married for the second time to his daughter Purnabai with the
  consent of his first wife with a hope to get a son from Purnabai
G and he treated her well for the first 2 to 2Y2 years but when she
  delivered a female child, the appellant and his family members
  started beating and harassing Purnabai and also did not
  provide her with meals and on 16.07.1988, the informant
  received a message that Purnabai died by drowning in the well
  at Bhandari. The informant has further stated in the report that
H
  ATMARAM S/O RAYSINGH RATHOD v. STATE OF 871
       MAHARASHTRA [A.K. PATNAIK, J.]
he reached Bhandari in the evening and came to know that            A
Purnabai had not been given food for two days and was ill-
treated with an intention to ensure that she leave the house and
because of such ill-treatment Purnabai jumped into the well
along with her daughter Nanda and committed suicide. On the
basis of the written report, an FIR was registered under            B
Sections 306 and 498A of the IPC and after investigation, a
charge-sheet was filed against the appellant, his first wife, his
father and his mother and they were all tried for offences under
Sections 306 and 498A read with Section 34 of the IPC in
Sessions case No.29/1990.
                                                                    c
      3. At the trial, altogether eight witnesses were examined.
The informant was examined as PW-1, the sister of Purnabai
was examined as PW-4, the Police Patil of Bhandari was
examined as PW-5 and the Investigating Officer was examined
as PW-8. At the trial, a written undertaking dated 17.04.1988       D
signed by the appellant to give equal treatment to both his wives
was marked as Ext.47 and a written undertaking signed by
Purnabai to behave properly in future was marked as Ext. 48.
The learned Sessions Judge considered the evidence and, in
particular, the evidence of PW-1 and PW-4 as well as Ext.47         E
and held that the presumption as to abetment by the husband
and his relatives of suicide by a married woman as provided
in Section 113A of the Indian Evidence Act, 1872 was attracted
and the appellant, his first wife, his father and his mother were
all guilty of the offences under Sections 306 and 498A read with    F
Section 34, IPC. After hearing the accused persons on the
sentence, the learned Sessions Judge sentenced each of the
accused persons to rigorous imprisonment for three years in
respect of each offence and in addition, for a fine of Rs.5,000/
- each in respect of each offence by judgment and order dated       G
09.01.1991. Aggrieved, all the accused persons filed Criminal
Appeal No.10 of 1991 before the High Court and by the
impugned judgment dated 03.12.2003, the High Court set aside
the conviction and sentence of the first wife, the mother and the
father of the appellant and acquitted them of the offences, but     H
    872      SUPREME COURT REPORTS                    [2013] 1 S.C.R.

A maintained the conviction of the appellant as well as the
  sentence imposed upon him by the learned Sessions Judge.

         4. Learned counsel for the appellant submitted that the
    High Court has relied on Ext.47 and Ext.48 as well as evidence
    of PW-1 and PW-4 to come to the conclusion that the appellant
B   had ill-treated the deceased Purnabai on account of which she
    had committed suicide by jumping into the well along with her
    daughter. She submitted that there is nothing in Exts.47 and
    48 to indicate that the appellant had actually ill-treated Purnabai.
    She submitted that Exts.47 and 48 would show that the appellant
C   had undertaken before the Panchas to give equal treatment to
    both his wives Purnabai and Kesri and Purnabai had also
    similarly undertaken before the Panchas that she would behave
    properly in future even though the appellant was having another
    wife. She submitted that the evidence of PW-1 and PW-4 also
D   do not establish any specific act of cruelty committed by the
    appellant because of which Purnabai committed suicide. She
    submitted that the post mortem report of the deceased
    Purnabai (Ext.35) does not show any injury on her body and it
    also shows that she had her meals. She submitted that the
E   appellant has not committed any cruelty of the nature defined
    in the Explanation to Section 498A, IPC. She submitted that
    the Explanation to Section 113A of the Indian Evidence Act,
    1872 is also clear that to attract the presumption as to abetment
    of suicide by a married woman, the husband must be shown
F   to have subjected the married woman to cruelty of the nature
    defined in Section 498A, IPC and, therefore, the presumption
    under Section 113A of the Indian Evidence Act, 1872 was not
    attracted in this case. She submitted that the FIR (Ext.49) was
    lodged on 17.07.1988, two days after the drowning took place
G   on 15.07.1988, because the appellant denied a share in his
    properties to PW-1 and this was the defence of the appellant
    in his statement under Section 313, Cr.P.C. She finally
    submitted that the evidence of PW-1 and PW-4 would rather
    show that Purnabai was depressed and unhappy after a female
    child instead of male child was born to her and it is quite
H
  ATMARAM S/O RAYSINGH RATHOD v. STATE OF                      873
       MAHARASHTRA [A.K. PATNAIK, J.]
possible that she jumped into the well with the female child on        A
account of such depression and unhappiness.

     5. Learned counsel for the respondent-State, on the other
hand, .submitted in his reply that the evidence of PW-1 and PW-
4 clearly establishes that the appellant has been beating the
                                                                       8
deceased Purnabai and has not been providing her with food
and because of these cruel acts of the appellant she committed
suicide by jumping into the well with her daughter. He submitted
that the evidence of PW-1 and PW-4 were also corroborated
by the FIR lodged by PW-1 as well as the evidence of PW-8.
He submitted that the presumption in Section 113A of the               C
Indian Evidence Act, 1872 as to abetment of suicide by a
married woman is also attracted in this case as the deceased
Purnabai has committed suicide within a period of s~ven years
from the date of her marriage and the appellant has subjected
her to cruelty. He submitted that this is, therefore, not a fit case   D
in which concurrent findings of the trial court and the High Court
with regard to the guilt of the appellant under Sections 306 and
498A, IPC, should be disturbed.

    6. Section 498A, IPC, and Section 113A of the Indian               E
Evidence Act, 1872 are extracted hereinbelow:

     "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          F
     a term which may extend to three years and shall also be
     liable to fine.

     Explanation- For the purpose of this section, "cruelty"
     means-                                                            G

     {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
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    874       SUPREME COURT REPORTS                   [2013] 1 S.C.R.


A         (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
          "113A. Presumption as to abetment of suicide by a
          married woman.- When the question is whether the
          commission of suicide by a women 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
c         years from the date of her marriage and that her husband
          or such relative of her husband has subjected her to cruelty,
          the court may presume, having regard to all the other
          circumstances of the case, that such suicide had been
          abetted by her husband or by such relative of her husband.
D
          Explanation.- For the purposes of this section, "cruelty''
          shall have the same meaning as in section 498-A of the
          Indian Penal Code (45 of 1860)."

E       7. A reading of Section 498A, IPC, would show that if the
  husband or relative of the husband of a woman subjected such
  woman to cruelty, they shall be liable for the punishment
  mentioned therein. Moreover, the Explanation to Section 498A,
  IPC, defines 'cruelty' for the purpose of Section 498A, IPC, to
  mean (a) any willful conduct which is of such a nature as is likely
F 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
G security or is on account of failure by her or any person related
  to her to meet such demand. A reading of Section 113A of the
  Indian Evidence Act, 1872 will show that for the purposes of
  Section 113A of the Indian Evidence Act, 1872, 'cruelty' shall
  have the same meaning as in Section 498A, IPC. Hence, to
H convict a husband or any relative of the husband of a woman
 ATMARAM S/O RAYSlNGH RATHOD v. STATE OF                 875
      MAHARASHTRA [A.K. PATNAIK, J.]
or to draw up presumption as to abetment of suicide by a A
married woman by her husband or any relative of her husband
in case of suicide committed by a woman within a period of
seven years from the date of her marriage, there must first be
evidence to establish that such husband or the relative of her
husband committed cruelty of the nature described in clauses B
(a) or (b) of the Explanation to Section 498A, IPC.
      8. Therefore, the main question, which we have to decide
in this case, is whether there is any such evidence to establish
beyond reasonable doubt that the appellant had subjected his
second wife, Purnabai, to cruelty either of the nature described C
in clause (a) or of the nature described in clause (b) of the
Explanation to Section 498A, IPC. It is not the case of the
prosecution in this case that the appellant had subjected
Purnabai to cruelty of the nature described in clause (b) of
Explanation to Section 498A, IPC, as there is no allegation in D
this case that the appellant had harassed Purnabai with a view
to coerce her or any person related to her to meet any unlawful
demand for any property or valuable security or that he
subjected Purnabai to harassment on account of failure by her
or any person related to her to meet such demand. We have, E
therefore, only to decide whether the appellant treated Purnabai
with cruelty of the nature described in clause (a) of the
Explanation to Section 498A, IPC.
     9. Clause (a) of the Explanation to Section 498A, IPC, F
defines 'cruelty' to mean 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. Exhibit 47, on which the High
Court has relied on, is the English translation of the written G
undertaking given by the appellant before the Panchas, and is
extracted hereunder:
    ".... As I was not having son, I got married with Purnabai
    from village Bhidongar, in Ganhar for getting son, about 5
    to 6 years back. As I have first wife, an bhangad H
     876       SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A          (problems) used to take place (between them) at my home.
           As the dispute was taken (brought) before panchas. On
           this day, the panchas advised me to treat both the wives
           well. Henceforth I will give equal treatment to Puma as well
           as Kesari, the sisters. If I commit any mistake in future, I
a          will be bound by the rules. Hence this undertaking ... "

  A reading of Ext. 47 would only indicate that the appellant got
  married with Pumabai for getting a son and as he had his first
  wife also, some problems used to take place between
C Pumabai and his first wife in his house and the dispute was
  brought before the Panchas and the Panchas advised the
  appellant to treat both the wives well. The appellant had stated
  in his undertaking that as the Panchas advised him to treat both
  the wives well, he gave an undertaking that in future he will give
  equal treatment to Pumabai as well as Kesari (his first wife)
D and he will not commit any mistake in this regard. Exhibit 48 is
  an undertaking dated 17.04.1988 given by Pumabai in which
  she has assured that she would behave properly in future but
  her husband should also behave properly with her. Thus, Exts.
  47 and 48 are evidence of some misbehaviour of the appellant
E towards Purnabai but the nature of the misbehaviour of the
  appellant towards Purnabai has not been stated in these two
  Exhibits.

        10. PW-1 in his evidence, however, has stated that since
F the birth of a son from the first wife, the appellant started beating
  and ill-treating Purnabai and they were not providing her food
  and this he had come to learn from Purnabai. He has also
  stated in his evidence that he had gone to Paradha at the house
  of Shantabai before the death of Purnabai and some ladies
G from Bhandari had come there for ~rinding their grains in the
  flour mill and they had reported to him that the appellant and
  his family members were beating Purnabai severely. He has
  stated that he, therefore, went to the house of the appellant and
  found marks of Shiwal on the hands and thigh of Purnabai and
  he brought her to Paradha and he was going to report the
H
  ATMARAM S/O RAYSINGH RATHOD v. STATE OF 877
       MAHARASHTRA [A.K. PATNAIK, J.]
matter to the Police Station, but the appellant and his family        A
members and others came and told him that the appellant is
going to give in writing that henceforth he will not beat Purnabai.
PW-1 has furtherdeposed that thereafter the appellant executed
the undertaking (Ext.47) dated 17.04.1988 and Purnabai
executed the undertaking (Ext.48) dated 17. 04 .1988 before the       B
Panchas and Exts. 47 and 48 were kept with the Sarpanch and
the Police Patil.
      11. The aforesaid evidence of PW-1 establishes that the
appellant used to beat Purnabai and was not giving her food
before he executed the undertaking in Ext.47 on 17.04.1988.           C
The drowning of Purnabai took place three months thereafter
on 15.07.1988. For holding the appellant guilty of the offences
under Sections 306 and 498A, IPC, there must be evidence
of wilful conduct of the appellant towards Purnabai soon before
her drowning which could have driven her to commit suicide and        D
this is what PW-1 has said in his Examination-in-Chief on what
happened before the drowning of Purnabai:
      "Thereafter I took Purana to Bhandari in the house of
      accused no.1. Thereafter I brought her back to my house         E
 . for Rasai. She complained that there is ill-treatment going
 \\on though it is lessened. She complained me that accused
   · :was not providing her with meals and used to beat her.
      She also told that as accused do not give her food she
      begs for food from others even then I reached her with the
                                                                      F
      hope that everything will be settled. Later on I received the
      news of her death. On hearing dead news of Purana I went
      to Bhandari. I found Purana and her daughter dead due
      to drowning in the well. I enquired there at Bhandari and I
     came to know that there was lot of beating given to Purana
      and hence she died on fall in the well. I came to know that     G
     there was accidental death. I also came to know that
      Purana died along with her girl after falling in the well due
     to ill-treatment received by her from accused persons.
     Then I went to Rural P.S. Pusad and reported the matter.
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    878       SUPREME COURT REPORTS                    [2013] 1 S.C.R.

A         The report now read over to me is the same. It's contents
          are correct. It bears my thumb impression. It is at exh.49.
          Printed F.l.R. shown to me also bears my signature. It is
          at exh.50. Police recorded my statement."
B        12. In the written report (FIR) lodged by PW-1 on which the
    prosecution has relied upon for corroboration, it has been
    similarly stated:

          "So, I sent my daughter again to Bhandari and then I
          brought my daughter on the occasion of Rosa. At that time
C         I came to know that the said four non-applicants were again
          ill-treating and beating my daughter and not providing her
          meals too. I also came to know that she is required to beg
          for food. Still then, I sent my daughter to their house. On
          16.7.88 I received message that my grand daughter died
D         on account of drowning into the well at Bhandari. On
          getting the said message, I reached there at the time of
          evening and then I came to know that my daughter
          Purnabai and grand daughter died. On enquiry in the
          village, I came to know that my daughter was not given food
E         since last two days and was ill-treated with an intention that
          she should leave the house and hence my daughter
          Purnabai jumped into the well and committed suicide with
          her daughter Nanda."
       It is thus clear from the evidence of the PW-1 and from the
F FIR lodged by him that he had no personal knowledge about
  the cause of the death of Purnabai but on enquiry at Bhandari
  he had come to learn that there was lot of beating of Purnabai
  and no food was given to her and for such ill-treatment she had
  jumped into the well with her daughter.
G
       13. No witness of Bhandari from whom PW-1 made the
  inquiry has been examined by the prosecution to prove such
  beating and denial of food to Purnabai soon before she
  committed suicide. PW-4, the sister of Purnabai, has not
H deposed that there was any beating and denial of food to
  ATMARAM S/O RAYSINGH RATHOD v. STATE OF                     879
       MAHARASHTRA [A.K. PATNAIK, J.]
Purnabai soon before her drowning in the well. PW-5, the Police       A
Patil of Bhandari, has stated that Purnabai was ill-treated by
the appellant in his house and he came to learn of this fact from
the father of the appellant Raysingh who also told him that
Purnabai's father had for this reason taken Purnabai to
Paradha three months back but the appellant and his father took       B
four to five Panchas to Paradha and brought back Purnabai.
PW-5 has, therefore, also not deposed that Purnabai was
beaten or not given food because of which she jumped into the
well with her daughter on 15.07.1988. On the other hand, on a
perusal of the post mortem examination report (Ext. 35) of            c
deceased Purnabai, we find that the Doctor has described
Purnabai as 'well nourished' and the last meal appears to have
been taken by her within six hours. Moreover, the post mortem
examination report (Ext. 35) does not show that the Purnabai
was subjected to any severe beating before her death.
                                                                      D
       14. From the discussion of the aforesaid evidence on
 record, we find that the prosecution has not been able to prove
 beyond reasonable doubt that the appellant was guilty of any
 wilful conduct which was of such a nature as was likely to drive
 Purnabai to commit suicide. Rather, there appears to be some         E
 evidence in the depositions of PW-1 and PW-4 (father and
 sister of Purnabai) that Purnabai was sad due to a daughter
 being born to her and a son being born to the first wife of the
 appellant. These circumstances may have driven Purnabai to
_commit suicide by jumping into the well along with her daughter.     F
 Such a consequence from the mental state of Purnabai cannot
 be ~ ground for holding that the appellant was guilty of cruelty
within the meaning of clause (a) of the Explanation to Section
498A, IPC. We, therefore, hold that the presumption under
 Section 113A is not attracted and the appellant cannot also be       G
 held guilty of abetting the suicide of Purnabai. We have to bear
 in mind this note of caution in State of West Bengal v. Ori/al
Jaiswal & Anr. [(1994) 1 SCC 73]:

     • ......... the Court should be extremely careful in assessing
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    880        SUPREME COURT REPORTS                 [2013] 1 S.C.R:

A          the facts and circumstances of each case and the evidence
           adduced in the trial for the purpose of finding whether the
           cruelty meted out to the victim had in fact induced her to
           end the life by committing suicide. If it transpires to the
           Court that a victim committing suicide was hypersensitive
B          to ordinary petulance, discord and differences in domestic
           life quite common to the society to which the victim
           belonged and such petulance, discord and differences
           were not expected to induce a similarly circumstanced
           individual in a given society to commit suicide, the
c          conscience of the Court should not be satisfied for basing
           a finding that the accused charged of abetting the offence
           of suicide should be found guilty."

       15. For the aforesaid reasons, we allow this appeal and
  set aside the impugned judgment of the High Court and the
D judgment of the trial court holding the appellant guilty of the
  offences under Sections 306 and 498A, IPC and direct that the
  bail bonds executed by the appellant be discharged.

    R.P.                                            Appeal allowed.