GHUSABHAI RAISANGBHAI CHORASIYA & ORS.versusSTATE OF GUJARAT

                   [2015] 2 S.C.R. 594



   GHUSABHAI RAISANGBHAI CHORASIYA & ORS.                  A

                            v.
                  STATE OF GUJARAT

            (Criminal Appeal No. 262 of2009)               B

                  FEBRUARY 18, 2015

      [SUDHANSU JYOTI MUKHOPADHAYA AND
               DIPAK MISRA, JJ.]                           C
Pena/Code, 1860- 498A, 306, 201 and114-Dowrydeath
- The deceased committed suicide - Deceased-wife
suspecting illicit relationship of her husband-accused -
Conviction by courts below of the husband and other three D
accused - On appeal, held: Mere extra-marital relationship,
even if proved, would be illegal and immoral unless proved
that the accused had conducted in such a way which
amounted to high degree of mental cruelty driving a woman
to commit suicide - The facts of the present case did not E
amount to cruelty under the first limb of s.498-A - The
evidence against other appellants-accused also not sufficient
to hold them guilty- All the accused acquitted.

      Allowing the appeal, the Court                       F

       HELD: 1. The first limb of Section 498A IPC, which
refers to cruelty, has nothing to do with demand of dowry.
In the present case, there is no demand of dJwry. The
deceased was pained and disturbed as the husband was G
having an illicit affair with appellant No.4. Such a
situation would not amount to cruelty under the first limb
of Section 498A IPC. Mere extra-marital relationship, even
if proved, would be illegal and immoral. However, it
                            594                            H
595        SUPREME COURT REPORTS               [2015] 2 S.C.R.


A would take a different character ifthe prosecution brings
  some evidence ~>n record to show that the accused had
  conducted in such a manner to drive the wife to commit
  suicide. In the instant case, the accused may have been
  involved in an illicit relationship with appellant No. 4, but
B in the absence of some other acceptable evidence on
  record that can establish such high degree of mental
  cruelty, the Explanation to Section 498A which includes
  cruelty to drive a woman to commit suicide, would not
C be attracted. [paras 18 and 20] [602-C-D; 604-G-H; 605-
  A-B]

      Pinakin Mahipatray Rawal v. State of Gujarat 2013
      (10) SCR 306 = 2013 (10) SCC 48 - relied on.

D Girdhar Shankar Tawade v. State of Maharashtra 2002
  (3) SCR 376 =20.02 (5) SCC 177, Gurnaib Singh v. State of
  Punjab 2013 (3) SCR 563 = 2013 (7) SCC 108 - referred to.

  2. So far as the other accused persons, viz. appellant
E Nos. 1, 3 and 4 are concerned, there is no allegation of
  any kind of physical torture. The evidence brought on
  record against them with regard to cruelty is absolutely
  sketchy and not convincing. On the basis of the
  evidence against them, it is difficult to sustain their
F conviction under Sections 306 and 498A IPC. Since the
  offence under Section 306 and 498A IPC is not
  sustainable, the conviction under Section 201 IPC also
  cannot be sustained. [para 21] [605-C, D-E]
G                     Case Law Reference

        2002 (3) SCR ·376      referred to         para 16

        2013 (3) SCR 563       referred to         para 17
H       2013 (10) SCR 306      relied on           para 18
           GH!JSABHAI RAISANGBHAI CHORASIYA v.                     596
                    STATE OF GUJARAT

    CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.                A
    262 of 2009

    From the Judgment·and Order dated 09.07.2008 of the High
    Court of Gujarat in Criminal Appeal No. 444 of 2005
                                                                       B
c
    Haresh Raichura, Saroj Raichura, Kalp Raichura, RajatVats
    for the Appellants.

    Anurag Ahluwalia, Hemantika Wahi, Puja Singh for the C
    Respondent.

           The Judgment of the Court was delivered by

             DIPAK MISRA, J. The present appeal, by special
     leave, is directed against the judgment of conviction and order   D
     of sentence passed by the High Court of Gujarat atAhmedabad
     in Criminal Appeal No. 444/2005 whereby the Division Bench
     has affirmed the conviction recorded by the learned Additional
     Sessions Judge, Jamnagar, who had found the appellants guilty
     of the offences punishable under Section 498A, 306, 201 and       E
     114 of the Indian Penal Code, 1860 ('IPC' for short) and
     sentenced Ghusabhai Raisinghbhai Chorasia, appellant no.1
     to suffer five years imprisonment, Rakesh Ghusabhai
     Chorasia, appellant no.2 to suffer rigorous imprisonment for      F
     seven years and to pay a fine of Rs.500/-with a default clause
     and other accused persons, namely, Bakuben W/o Ghusabhai
     Chorasia and Jasuben @ Gaduben Rakeshbhai, appellant
     nos. 3 and 4 herein to suffer rigorous imprisonment for three
    years and to pay fine of Rs.250/-with a default clause under       G
    Section 306 IPC. That apart, separate sentences were
    imposed under Section 498A and 201 with the stipulation that
    all the sentences w.ould run concurrently. Be it noted, the
    appellants were tried along with two other accused persons,
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597         SUPREME COURT REPORTS                   (2015] 2 S.C.R.


 A    namely, Sangitaben w/o. Vijaybhai and Vijay Ghusabhai
      Chorasia who were acquitted by the learned trial Judge. It is
      also apt to note here that the State had also preferred two
      criminal appeals, one for enhancement of sentence and the
      other challenging the acquittal of the other two accused persons
 B    and both the appeals were dismissed along with the appeal
      filed by the appellants in a common judgment.

   2. The prosecution case, bereft of unnecessary details, is that
   the marriage between the deceased Biniben and Rakesh was
 C solemnized approximately eight years before the date of
   occurrence, i.e. 4.3.2004. As put forth by the prosecution,
   Rakesh, husband of the deceased, had illicit relationship with
   Jasuben, a divorcee. Despite the said situation two children
   were born in the wedlock but the compatibility between the
 0
   husband and wife and the harmony of family life could not be
   sustained. When the first child was three months old, the
   deceased was driven out by her husband and she came to
   her parental home and stayed there for sometime. Afterthe
 E intervention of the-elders and relatives a settlement was arrived
   at and thereafter she came to stay in her in-laws house. It was
   the further case of the prosecution that the husband was keen
   in his extra-marital affair and that had led to more marital
   discord and bitterness. The in-laws, as alleged, used to take
 F away the income earned by her. A time came when she was
   compelled to stay on the terrace of the house where she
   committed suicide on 4th of March, 2004.

  3. As the case of the prosecution further gets uncurtained, the
G dead body was cremated without informing the parents of the
  deceased and the factum of the death was reported by the
  father-in-law of the deceased on 14th of March, 2004 and
  eventually the mother of the deceased came to know about
  the death on 17th of March, 2004 and thereafter reported at
 H
       GHUSABHAI RAISANGBHAI CHORASIYA v.                           598
        STATE OF GUJARAT [DIPAK MISRA, J.)

  the Police Station in Jamnagar. After the criminal law was set     A
  in motion, the investigating agency proceeded with the
· investigation and recorded the statements of 25 witnesses and
  eventually placed the charge-sheet under Sections 498A, 306
  and Section 201 read with Section 114 of the Indian Penal
 Code, before the competent court. After the charge-sheet was        B
 filed, the learned Magistrate committed the matter to the Court
  of Session.

4. The accused persons abjured their guilt and wanted to be
~~.                                                                  c
5. During the trial, the prosecution in order to establish the
charges levelled against the accused persons, examined 25
witnesses and exhibited certain documents.
                                                                     D
6. The learned trial Judge placing reliance on the ocular as
well as the documentary evidence came to hold that four
accused persons, namely, father-in-law A-1, husband A-2,
mother-in-law A-3 and the woman with whom the husband was
having illicit relationship,A-4, guilty of the offences. However,    E
the trial Judge acquitted the elder brother of the husband and
his wife for lack of evidence.

7. Being dissatisfied with the aforesaid judgment of conviction
and order of sentence, the accused filed Criminal Appeal No.         F
444 of 2005. As stated earlier, the State preferred Criminal
Appeal No. 2408 of 2005 for enhancement of sentence and
Criminal Appeal No. 2410 of 2005 assailing the judgment of
the acquittal of two accused persons.
                                                                     G
8. The High Court appreciating the evidence brought on record,
declined to interfere in the appeals preferred by the State and
resultantly all the appeals stood dismissed.

9. Be it noted, the principal witnesses on whom the prosecution      H
599         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A     relied are Dakshaben Shantilal Shah, PW-9, a social worker
      at Vikas Vidhyalay (Vadhvan), Miraben Devsinhbhai, PW-21,
      sister of the deceased, Champaben Devsinhbhai, PW-18,
      mother of the deceased, Kanaiyabhai Devsinhbhai, PW-19,
      brother of the deceased and Natubhai Hirabhai, PW-17,
 B    Sarpanch of village Rajsitapur.

  10. Accused persons in their statements recorded under
  Section 313 took'the plea that there was a divorce between
  the deceased and the accused No. 2, her husband; that she
C was staying on the terrace of the house; that she committed
  suicide by consuming poison; and that the accused persons
  had no role in it.   The defence, to substantiate its plea,
  examined one witness and got two documents exhibited.

D     11. We have heard Mr. Harish Raichura, learned counsel for
      the appellants and Mr. Anurag Ahluwalia, learned counsel for
      the State.

  12. On a careful scrutiny of the findings of the learned trial Judge
E and that of the High Court, it is noticeable that both the Courts
  have found that cruelty, as alleged by the prosecution under
  Section 498A IPC was established as a result of which the
  deceased committed suicide. It is quite clear from the findings
  and evidence on record that there was no demand of dowry.
F The learned trial Judge as well as the High Court has proceeded
  on the base that there was cruelty as per the first limb of Section
  498AIPC.

  13. The singular issue that requires to be scrutinized is whether
G there was such cruelty by the husband and his relations that
  could have driven the deceased to commit suicide. The stand
  of the accused persons, as has been indicated hereinabove,
  was that the husband had already divorced the deceased and
H she was staying on the terrace. On a proper x-ray of the
       GHUSABHAI RAISANGBHAI CHORASIYA v.                          600
        STATE OF GUJARAT [DIPAK MISRA, J.)

material brought on record, it is manifest that the prosecution A
has brought on evidence, three documents, exhibits 65 to 67,
on record to show that there was divorce. The sister of the
deceased, Miraben Devsinhbhai, PW-21, has categorically
deposed that she had talked to the deceased on telephone
before her death and the deceased had told her that there has B
been a divorce between her husband and herself and she was
staying on the terrace of the house and will leave for the parental
home after the 'Hol.i: festival.

14. The documents that have been produced by the                    C
prosecution, namely, Exhibits 67 to 69 have not been believed
by the learned trial Judge as well as the High Court on the
ground that there is some unacceptable discrepancy.

15. At this juncture, it is appropriate to mention that the Holi    D
festival in the said year fell on 6.3.2004 and the occurrence
took place on March 4, 2004. It is also noticeable that the
sister of the deceased had volunteered to speak about the
conversation of divorce. The document shows that there was
                                                                    E
a divorce as per the customs. There is material on record to
show that she was staying on the terrace. In this factual
backdrop what is to be seen is whether there has been a cruelty
which compelled her to commit suicide. In this regard, we
may fruitfully refer to· Section 498A of the IPC, which reads as    F
under:

  "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
                                                                    G
  woman to cruelty shall be pun-ished with imprisonment
  for a term which may extend to three years and shall
  also be liable to fine.

  Explanation.-Forthe purpose of this section, "cruelty"
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601       SUPREME COURT REPORTS                       (2015) 2 S.C.R.


 A     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
 B     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
 c     security or is on account of failure by her or any person
       related to her to meet such demand."

   16. This Court in Girdhar Shankar Tawade II. State of
   Maharashtra 1, examining the scope of 498A, has observed
 D thus:

       'The basic purport of the statutory provision is to avoid
       "cruelty" which stands defined by attributing a specific
       statutory meaning attached thereto as noticed
 E     hereinbefore. Two specific instances have been taken
       note of in order to ascribe a meaning to the word "cruelty"
       as is expressed by the legislatures: whereas Explanation
       (a) involves three specific situations viz. (1) to drive the
       woman to commit suicide or (i1) to cause grave injury or
  F    (iii) danger to life, limb or health, both mental and physical,
       and thus involving a physical torture or atrocity, in
       Explanation (b) there is absence of physical injury but
       the legislature thought it fit to include only coercive
       harassment which obviously as the legislative intent
 G     expressed is equally heinous to match the physical injury:
       whereas one is patent, the other one is latent but equally
       serious in terms of the provisions of the statute since the
       same would also embrace the attributes of "cruelty" in

 H 1 (2002) s sec 177
       GHUSABHAI. RAISANGBHAI CHORASIYA v.                        602
        STATE OF GUJARAT [DIPAK MISRA, J.]

  terms of Section 498-A."                                          A

17. In Gumaib Singh V. State of Punjab 2 , while analyzing
the aforesaid provision, it has been opined that Clause (a) of
the Explanation to Section 498A IPC defines cruelty to mean
"any willful conduct which is of such a nature as is likely to drive B
the woman to commit suicide". Clause (b) of the Explanation
pertains to unlawful demand and Clause (a) can take in its
ambit mental cruelty.

18. From the aforesaid authorities it is quite clear that the first c
limb of Section 498A, which refers to cruelty, has nothing to do
with demand of dOW(Y. In the present case, in fact, there is no
demand of dowry. If the evidence is appropriately appreciated,
the deceased was pained and disturbed as the husband was
having an illicit affair with the appellant no.4. Whether such a D
situation would amount to cruelty under the first limb of Section
498A IPC is to be seen. A two-Judge Bench of this Court in
Pinakin Mahipatray Rawa/ V. State of Gujarat', while
dealing with extra marital relationship, has held thus:
                                                                    E
   "Marital relationship means the legally protected marital
   interest of one spouse to another which include marital
   obligation to another like companionship, living under the
   same roof, sexual relation and the exclusive enjoyment • ·
   of them, to have children, their upbringing, services in         F
   the home, support, affection, love, liking and so on.
   Extramarital relationship as such is not defined in the
   Penal Code. Though, according to the prosecution in this
   case, it was that relationship which ultimately led to
                                                                    G
   mental harassment and cruelty within the Explanation to
   Section 498-A and that A-1 had abetted the wife to

  2 (2013) 1sec108
 3 (2013) 10 sec 48
                                                                    H
603      SUPREME COURT REPORTS                     [2015] 2 S.C.R.


 A    commit suicide."

                      )()()()()(   xxxxx      xxxxx

      "We are of the view that the mere fact that the husband
      has developed some intimacy with another, during the
 B
      subsistence of marriage and failed to discharge his
      marital obligations, as such would not amount to "cruelty'',
      but it must be of such a nature as is likely to drive the
      spouse to commit suicide to fall within the Explanation to
 c    Section 498-A IPC. Harassment, of course, need not be
      in the form of physical assault and even mental
      harassment also would come within the purview of
      Section 498-A IPC. Mental cruelty, of course, varies from
      person to person, depending upon the intensity and the
 D    degree of endurance, some may meet with courage and
      some others suffer in silence, to some it may be
      unbearable and a weak person may think of ending one's
      life. We, on facts, found that the alleged extramarital
      relationship was not of such a nature as to drive the wife
 E    to commit suicide orthatA-1 had ever intended or acted
      in such a manner which under normal circumstances,
      would drive the wife to commit suicide."

      The Court further proceeded to state:
 F
      "Section 306 refers to abetment of suicide. It says that if
      any person commits suicide, whoever abets the
      commission of such suicide, shall be punished with
      imprisonment for a term which may extend to 10 years
 G    and shall also be liable to fine. The action for committing
      suicide is also on account of mental disturbance caused
      by mental and physical cruelty. To constitute an offence
      under Section 306, the prosecution has to establish that
      a person has committed suicide and the suicide was
 H
          GHUSABHAI RAISANGBHAI CHORASIYA v.                       604
           STATE OF GUJARAT [DIPAK MISRA, J.]

      abetted by the aCC'.used. The prosecution has to establish     A    .
      beyond reasonable doubt that the deceased committed
      suicide and the accused abetted the commission of
      suicide. But for the alleged extramarital relationship,
      which if proved, could be illegal and immoral, nothing
      has been brought out by the prosecution to show that the       B
      accused had provoked, incited or induced the wife to
      commit suicide."

   19. After holding as aforesaid, the Court found on facts and
   especially referring to suicide note that one can infer that the C
   deceased was so possessive of her husband, and was always
   under an emotional stress that she might lose her husband
   and that apart she had exonerated the husband and accordingly
   it would not come within the scope and ambit of Section 306
                                                                    0
   IPC.

  20. Coming to the facts of the present case, it is seen that the
• factum of divorce has not been believed by the learned trial
  Judge and the High Court. But the fact remains is that the
  husband and the wife had started living separately in the same E
  house and the deceased had told her sister that there was
  severance of status and she would be going to her parental
  home after the 'Holi'festival. True it is, there is some evidence
  aboutthe illicit relationship and even ifthe same is proven, we F
  are of the considered opinion that cruelty, as envisaged under
  the first limb of Section 498A IPC would not get attracted. It
  would be difficult to hold that the mental cruelty was of such a
  degree that it would drive the wife to commit suicide. Mere
  extra-marital relationship, even if proved, would be illegal and G
  immoral, as has been said in Pinakin Mahipatray Rawal
  (supra), but it would take a different character if the prosecution
  brings some evidence on record to show that the accused had
  conducted in such a manner to drive the wife to commit suicide.
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605          SUPREME COURT REPORTS                     [2015) 2 S.C.R.


 A    In the instant case, the accused may have been involved in an
      illicit relationship with the appellant no.4, but in the absence of
      some other acceptable evidence on record that can establish
      such high degree of mental cruelty, the Explanation to Section
      498A which includes cruelty to drive a woman to commit
 B    suicide, would not be attracted.

   21. Presently, adverting to the involvement of the other accused
   persons, that is, appellant nos. 1, 3 and 4, we find that there is
   no allegation of any kind of physical torture. The evidence
 C brought on record against them with regard to cruelty is
   absolutely sketchy and not convincing. It has been alleged
   that the mother-in-law used to rob her money which she earned
   as wages. The said fact has really not been established. As
   far as appellant no. 4, Jesuben, is concerned, there is only
 D one singular allegation that at one public place, i.e. in a 'mela',
   she had threatened the deceased that she would be divorced
   by her husband. C>n the basis of the said evidence, it is difficult
   to sustain the conviction under Sections 306 and 498A IPC.
 E Once we are holding that the accused-appellants are not guilty
   of the offence under Section 306 and 498A IPC, the conviction
   under Section 201 IPC is also not sustainable.

      22. In view of the aforesaid analysis, the appeal is allowed,
 F    the conviction and sentence of all the appellants are set aside.
      As they are on bail, they be discharged of their bail bonds.

      Kalpana K. Tripathy                                 Appeal allowed.



G




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