Gopal Vs. State of
Rajasthan  INSC 319 (13 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 57 of 2002 Gopal
......Appellant Versus State of Rajasthan .....
Respondent JUDGME NT
Dr. ARIJIT PASAYAT, J
in this appeal is to the judgment of a learned Single Judge of the Rajasthan
High Court allowing the appeal of the State Government and holding the
appellant guilty of offence punishable under Section 498-A of the Indian Penal
Code, 1860 (in short `IPC') while upholding the acquittal in respect of offence
punishable under Section 306 IPC. The appellant was sentenced to undergo
rigorous imprisonment for one year and to pay a fine of Rs.2,000/-with default
facts giving rise to the prosecution are as under:
On 4.7.1988, at about
10 p.m. Laxman Singh (P.W.13) who was S.I.
in the Police Station
Nimbaheda received an information from the Medical Officer Dr. R.D. Bhatt
(P.W.15) from the Hospital and on receiving that information, Laxman Singh
reached the hospital where Prem Chand was present who informed orally to Laxman
Singh that in the morning all the persons of his family had gone to the field
in the house; wife of his son Gopal, namely, Ram Kumari (hereinafter referred
to as "the deceased") was alone and in the noon, when he went to his
house, he found the deceased unconscious and then he called his wife Lahar Bai
(PW-4) who was living nearby and she also came there. Then he called doctor and
doctor advised him that she should be taken to the hospital and in the
hospital, when the treatment was going on, the deceased died.
This oral report was
reduced into writing and the same is Ex. P/6 and on this report, Laxman Singh
(P.W.13) registered Marg FIR No.6/88 under Section 174 of the Code of Criminal
Procedure, 1973 (in short the `Code') and started investigation.
post mortem of the dead body of the deceased was conducted by Dr. R.K. Gupta
(P.W. 11) and Dr. R.D. Bhatt (P.W.15) and the post mortem report is Ex.P/4 and
both the doctors have stated that cause of death of Smt. Ram Kumari was
asphyxia and this may be probably due to opium poisoning and they also found 6
bruises, three on the right thigh and three on her right hip. Thereafter P.W.13
Laxman Singh came to the conclusion that accused Gopal who was husband of the
deceased used to treat her with cruelty and used to beat her and a case for
offence under Sections 498A and 306 I.P.C. was made out and he himself lodged
FIR Ex.P/8 and on this FIR Ex.P/8 investigation of the case was done by
Netrapal Singh (PW-14) who was S.H.O. in the police station Nimbaheda.
investigation challan was submitted in the Court of Magistrate for offence
under Section 498A and 306 IPC from where the case was committed to the Court
of Additional Sessions Judge, Nimbaheda.
Since the accused
pleaded innocence trial was held and 15 witnesses were examined. The trial
Court directed acquittal of the appellant inter-alia holding as follows:
(i) It has not been
proved by the prosecution that the deceased has been subjected to cruelty and
single act of cruelty or beating is not sufficient.
(ii) Since the
deceased had undergone tubectomy operation after delivery of 3rd child and
because of that she was not in a position to work and she used to feel
restlessness and accused respondent used to ask her to work and there was
dispute between husband and the wife on this point and such type of dispute
cannot be covered Aggrieved by the judgment and order, State filed an appeal
and as noted above the same was allowed.
support of the appeal, learned counsel for the appellant submitted that the
marriage took place some time in1976 and the date of occurrence is July, 1998
and therefore Section 113-B of the Indian Evidence Act, 1872 (in short the
`Evidence Act') has no application. Further it is submitted that the
ingredients of Section 498-A have not been established.
has been concluded by the High Court that suicide has not been proved.
Therefore, Section 498-A has no application. Section 498-A(b) relates to demand
of dowry for which there is no evidence.
response, learned counsel for the respondent-State submitted that the case is
covered by Section 498-A(b). It is submitted that in any event injuries have
been established and therefore Section 323 IPC has been clearly established. It
is by way of reply learned counsel for the appellant submitted that no charge
has been framed for Section 323.
ingredients of Section 498-A are as follows:
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."
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 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 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.
above position was highlighted in Balwant Singh & Ors. v. State of H.P.
[2008(10) JT 589].
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 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.
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.
bringing in application of Section 306 IPC, suicide has to be established. In
the instant case, the trial Court and the High Court have categorically held
that no suicide has been established.
far as Section 498-A(b) is concerned, there must be an evidence of demand of
dowry. There is no evidence in that regard adduced by the prosecution. That
being so, as rightly contended by learned counsel for the appellant Section
498-A(b) has no application.
crucial question is whether the appellant can be convicted in terms of Section
323 IPC. Even if it is so as contended by learned counsel for the respondent,
considering the fact that the appellant has already suffered custody of about 6
months, we do not consider it necessary to go into that question. The appeal is
allowed. The conviction as recorded is set aside. The bail bonds executed by
the appellant for release on bail pursuant to the order dated 14.1.2002 shall
(Dr. ARIJIT PASAYAT)