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Mere illicit relationship is not enough for 498A case

                       CRIMINAL APPEAL NO. 262 OF 2009
Ghusabhai Raisangbhai Chorasiya & Ors. ...   Appellants
State of Gujarat                        ... Respondent
                               J U D G M E N T
Dipak Misra, J.
      The present appeal, by  special  leave,  is  directed  against  the judgment of conviction and order of sentence passed by the High Court of Gujarat at  Ahmedabad  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 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 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  Section  306  IPC.   That  apart,
separate sentences were imposed under Section  498A  and  201  with  the stipulation that all the sentences would run concurrently.  Be it noted, the appellants were tried along with two other accused persons,  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 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   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 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.  After the 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 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  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 the Police Station in Jamnagar.  After  the  criminal  law  was  set  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 filed, the learned Magistrate  committed  the  matter  to  the Court of Session.
4.    The accused persons abjured their guilt and wanted to be tried.
5.    During the trial,  the  prosecution  in  order  to  establish  the charges levelled against the accused persons, examined 25 witnesses  and exhibited certain documents.
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, 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.  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.
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 relied are Dakshaben Shantilal Shah, PW-9,  a  social  worker  at  Vikas Vidhyalay (Vadhvan), Miraben Devsinhbhai, PW-21, sister of the deceased, Devsinhbhai,  PW-18,  mother  of  the  deceased,  Kanaiyabhai Devsinhbhai, PW-19, brother of the deceased and Natubhai  Hirabhai,  PW- 17, 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 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.
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 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.  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 498A IPC.
13.   The singular issue that requires  to  be  scrutinized  is  whether 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 she was staying on the terrace.  On  a proper x-ray of the material brought on record, it is manifest that  the prosecution 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 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 'Holi' festival.
14.   The documents that have been produced by the  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 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 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 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  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-
     (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."
16.   This Court in Girdhar Shankar Tawade V. State  of  Maharashtra[1], examining the scope of 498A, has observed 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 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.  (i)  to  drive  the  woman  to  commit
      suicide or (ii) to cause grave injury or (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  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 terms of Section 498-A."
17.   In Gurnaib 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  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 limb of Section 498A, which refers to cruelty, has nothing  to  do  with demand of dowry.  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 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 Rawal V. State of  Gujarat[3], while dealing with extra marital relationship, has held thus:
      "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 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  mental  harassment  and  cruelty
      within the Explanation to Section 498-A and that A-1 had  abetted  the
      wife to commit suicide."
                              xxxxx xxxxx xxxxx
      "We are of the view that the mere fact that the husband has  developed
      some intimacy with another, during the  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 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 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 to commit suicide  or  that  A-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:
      "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
      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 abetted by the accused. The prosecution has  to  establish  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  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 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 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 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 about the illicit relationship and even if the same  is proven, we 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 immoral, as has  beensaid 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.  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 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  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 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.  On the basis of the said evidence, it is difficult to  sustain the conviction under Sections 306 and 498A IPC.   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,  the conviction and sentence of all the appellants are set  aside.   As  they are on bail, they be discharged of their bail bonds.
                             [DIPAK MISRA]
                                               [SUDHANSU JYOTI MUKHOPADHAYA]
FEBRUARY 18, 2015.
[1]  (2002) 5 SCC 177
[2]  (2013) 7 SCC 108
[3]  (2013) 10 SCC 48