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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 1138-1139 OF 2016

(@ S.L.P. (Crl) Nos. 5928-5929 OF 2016)

K.V. Prakash Babu … Appellant

VERSUS

State of Karnataka … Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.The instant appeals reveal a factual score that has the

potentiality to shock a sensitive mind and a sincere heart, for the

materials brought on record show how “suspicion” can corrode the

rational perception of value of life and cloud the thought of a wife to

such an extent, that would persuade her to commit suicide which

entail more deaths, that is, of the alleged paramour, her mother and

brother who being not able to emotionally cope up with the social

humiliation, extinguish their life-spark; and ultimately the situation

ropes in the husband to face the charge for the offences punishable

under Sections 302 and 498-A of the Indian Penal Code (IPC) read

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with Section 3 of the Dowry Prohibition Act, 1961 (‘1961 Act’ for

short). As the facts would unveil, the husband gets acquitted for the

offence under Section 302 IPC but convicted in respect of other two

charges by the trial court. In appeal, his conviction under Section 3 of

the 1961 Act is annulled but success does not come in his way as

regards the offence under Section 498-A IPC. And the misery does not

end there since in the appeal preferred by the State, he is found guilty

of the offence under Section 306 IPC and sentenced to suffer four

years rigorous imprisonment and to pay a fine of Rs.50,000/- to be

given to the father of the victim with a default clause.

3.In the course of our adumbration and analysis of facts, it will be

uncurtained how the seed of suspicion grows enormously and the

rumours can bring social dishonor and constrain not-so-thick skinned

people who have bound themselves to limitless sorrow by thinking ‘it

is best gift of God to man” and choose to walk on the path of

deliberate death. A sad incident, and a shocking narrative, but we

must say, even at the beginning, the appellant-husband has to be

acquitted regard being had to the evidence brought on record and the

exposition of law in the field.

4.The singular issue, as the aforesaid passage would show, that

arises for consideration in these appeals, by special leave, that assails

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the judgment and order dated 13.04.2016 passed by the High Court of

Karnataka at Bengaluru in Criminal Appeal No. 655 of 2012 whereby

the High Court has allowed the appeal preferred by the State which

had called in question the legal acceptability of the judgment and

order passed by the learned Additional Sessions Judge, Fast Track

Court-III, District Kolar, Karnataka, who vide judgment dated

5.1.2012 had found the appellant guilty of the offences punishable

under Section 498-A of the IPC and Section 3 of the 1961 Act and

sentenced him to suffer rigorous imprisonment of one year and two

years respectively with the default clause. It is apt to note here that

the appellant had also preferred Criminal Appeal No. 126 of 2012

wherein the High Court while passing the common judgment has

opined that the prosecution has miserably failed to establish the

conviction under the 1961 Act. However, as stated earlier, it found

the appellant guilty of the offence under Section 306 IPC and the

result of such conviction was imposition of four years rigorous

imprisonment and fine of Rs. 50,000/- (Rupees fifty thousand only)

with the further stipulation that Rs.45,000/- (Rupees forty five

thousand only) be paid to the father of the deceased.

5.The occurrence that led to launching of prosecution is that the

marriage between the appellant and the deceased, Anjanamma, was

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solemenised on 12.10.1997. The appellant, as alleged, got involved

with one Deepa, daughter of one Ashwathamma inasmuch as his visit

to the house of Ashwathamma was quite frequent. As the

prosecution story proceeds, the deceased felt extremely hurt and

eventually being unable to withstand the conduct of the husband who

was allegedly involved in an extra-marital affair, put an end to her life

on 20

th

August, 2004. An FIR was lodged at the concerned police

station by the father of the deceased, which set the criminal law in

motion and the investigating officer recorded statement of witnesses

under Section 161 of the IPC and after completing the investigation,

placed the charge sheet under Sections 201, 302 and 498-A of the IPC

and Section 3 of the 1961 Act before the concerned Magistrate who, in

turn, committed the matter to the Court of Session. The accused

abjured his guilt and expressed his intention to face trial, advancing

the plea of denial and false implication. In order to establish the

charges, the prosecution examined 31 witnesses in all. The defence

chose not to adduce any evidence. The main witnesses are father of

the deceased, PW-1 and the neighbours who have deposed about the

extra- marital affair of the husband and the death of the deceased.

6.As we have already stated about the conviction and the

punishment, the same need not be stated in detail. There is no

dispute that the learned trial judge as well as the High Court has not

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found the appellant guilty of the offence punishable under Section 302

of the IPC. The High Court has also arrived at the conclusion after

detailed deliberation that the prosecution has not been able to

establish the offence under Section 3 of the 1961 Act. However, it has

found the appellant guilty of the offence under Sections 498-A and

306 of the IPC.

7.It is submitted by Mr. S.R. Singh, learned senior counsel that the

High Court has completely erred in appreciating the evidence to

sustain the conviction under Section 498-A inasmuch as there is no

material whatsoever with regard to demand of dowry or any kind of

torture. According to Mr. Singh, the High Court has applied the

second limb of Section 498-A IPC on the foundation that the

involvement of the husband in extra-marital affair established cruelty

under the said provision and, therefore, it would be an offence under

Section 306 of the IPC which is contrary to the pronouncements of

this Court.

8.Mr. V.N. Raghupathy, learned counsel appearing for the State

had supported the judgment and order passed by the High Court by

placing reliance on the analysis of the various facets and the scrutiny

and scanning of the evidence of the prosecution witnesses including

that of the father, the neighbours and the investigating officer.

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9.To appreciate the submissions raised at the Bar, we have

bestowed our anxious consideration and carefully examined the

decision rendered by the trial court and that of the High Court. On a

studied scrutiny of the evidence, it is demonstratable that the father of

the deceased in his deposition has not stated anything with regard to

any kind of cruelty meted out to the deceased except stating that she

quite often complained to the parents about the visit of the appellant

to the house of Ashwathamma and that she had suspicion against her

husband that he was going to have a second marriage. The other

witnesses including the investigating officer have deposed that there

was discussion in the locality about the illicit connection of the

appellant with one lady at Chelur Village. Barring the aforesaid, there

is no whisper with regard to any kind of ill-treatment or cruel

behaviour by the husband.

10. In view of the aforesaid evidence, the question that emerges for

consideration is whether the conviction under Section 498A and 306

IPC is legally justiciable in this context. We think it appropriate to

refer to Section 498A of the IPC. The said provision reads as follows:-

“498-A. 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

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to three years and shall also be liable to fine.

Explanation: For the purposes of this section, "cruelty"

means

(a) Any willful 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”

11.The said provision came up for consideration in Giridhar

Shankar Tawade vs. State of Maharashtra

1

, where the Court

dwelling upon the scope and purport of Section 498-A IPC has held

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 herein

before. 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

1

(2002) 5 SCC 177

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patent, the other one is latent but equally serious in terms

of the provisions of the statute since the same would also

embrance the attributes of 'cruelty' in terms of Section

498-A.”

[emphasis added]

12.In Gurnaib Singh v. State of Punjab

2

, while dwelling upon the

concept of ‘cruelty’ enshrined under Section 498-A the Court has

opined thus:-

“Clause (a) of the Explanation to the aforesaid provision

defines “cruelty” to mean “any wilful 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. Clause (a) can take in its ambit mental cruelty.”

13.The aforesaid analysis of the provision clearly spells how coercive

harassment can have the attributes of cruelty that would meet the

criterion as conceived of under Section 498-A of the IPC. Thus, the

emphasis is on any wilful conduct which is of such a nature that is

likely to drive the woman to commit suicide. The mental cruelty

which is engraved in the first limb of Section 498-A of the IPC has

nothing to do with the demand of dowry. It is associated with mental

cruelty that can drive a woman to commit suicide and dependent

upon the conduct of the person concerned.

14.In this regard, Mr. Singh has drawn our attention to the

authority in Pinakin Mahipatray Rawal v. State of Gujarat

3

. In

2 (2013) 7 SCC 108

3 (2013) 10 SCC 48

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the said case, the Court was dealing with as to whether relationship

between the appellant and the second accused therein was

extra-marital leading to cruelty within the meaning of Section 498-A

IPC and whether that would amount to abetment leading to the act of

suicide within the meaning of Section 306 IPC. Dealing with the

extra-marital relationship, the Court has opined that 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 up-bringing,

services in the home, support, affection, love, liking and so on, but

extra-marital relationship as such is not defined in the IPC. The Court

analyzing further in the context of Section 498A observed that the

mere fact that the husband has developed some intimacy with another

woman, 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 498A IPC. The Court

further elucidated that harassment need not be in the form of physical

assault and even mental harassment also would come within the

purview of Section 498A IPC. Mental cruelty, of course, varies from

person to person, depending upon the intensity and the degree of

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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. The Court ruled that in the facts of the said case the

alleged extra-marital relationship was not of such a nature as to drive

the wife to commit suicide. The two-Judge Bench further opined

that:-

“Section 306 refers to abetment of suicide which 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 extra marital

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.”

[emphasis added]

15.Slightly recently in Ghusabhai Raisangbhai Chorasiya v.

State of Gujarat

4

, the Court perusing the material on record opined

that even if the illicit relationship is proven, unless some other

acceptable evidence is brought on record to establish such high degree

of mental cruelty the explanation (a) to Section 498-A of the IPC which

includes cruelty to drive the woman to commit suicide, would not be

4 (2015) 11 SCC 753

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attracted. The relevant passage from the said authority is reproduced

below:-

“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 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. 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 498-A

which includes cruelty to drive a woman to commit suicide,

would not be attracted.”

16.The concept of mental cruelty depends upon the milieu and the

strata from which the persons come from and definitely has an

individualistic perception regard being had to one’s endurance and

sensitivity. It is difficult to generalize but certainly it can be

appreciated in a set of established facts. Extra-marital relationship,

per se, or as such would not come within the ambit of Section 498-A

IPC. It would be an illegal or immoral act, but other ingredients are to

be brought home so that it would constitute a criminal offence. There

is no denial of the fact that the cruelty need not be physical but a

mental torture or abnormal behaviour that amounts to cruelty or

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harassment in a given case. It will depend upon the facts of the said

case. To explicate, solely because the husband is involved in an

extra-marital relationship and there is some suspicion in the mind of

wife, that cannot be regarded as mental cruelty which would attract

mental cruelty for satisfying the ingredients of Section 306 IPC.

17.We are absolutely conscious about the presumption engrafted

under Section 113-A of the Evidence Act. The said provision enables

the Court to draw presumption in a particular fact situation when

necessary ingredients in order to attract the provision are established.

In this regard, we may reproduce a passage from Pinakin

Mahipatray Rawal (supra):-

“Criminal law amendment and the rule of procedure was

necessitated so as to meet the social challenge of saving

the married woman from being ill-treated or forcing to com-

mit suicide by the husband or his relatives, demanding

dowry. Legislative mandate of the section is that when a

woman commits suicide within seven years of her marriage

and it is shown that her husband or any relative of her

husband had subjected her to cruelty as per the terms de-

fined in Section 498-A IPC, the court may presume having

regard to all other circumstances of the case that such sui-

cide has been abetted by the husband or such person.

Though a presumption could be drawn, the burden of proof

of showing that such an offence has been committed by the

accused under Section 498-A IPC is on the prosecution.”

We have reproduced the aforesaid passage only to highlight that

the Court can take aid of the principles of the statutory presumption.

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18. In the instant case, as the evidence would limpidly show, the

wife developed a sense of suspicion that her husband was going to the

house of Ashwathamma in Village Chelur where he got involved with

Deepa, the daughter of Ashwathamma. It has come on record through

various witnesses that the people talked in the locality with regard to

the involvement of the appellant with Deepa. It needs to be noted

that Deepa, being not able to digest the humiliation, committed

suicide. The mother and the brother of Deepa paved the same path. In

such a situation, it is extremely difficult to hold that the prosecution

has established the charge under Section 498A and the fact that the

said cruelty induced the wife to commit suicide. It is manifest that

the wife was guided by the rumour that aggravated her suspicion

which has no boundary. The seed of suspicion planted in mind

brought the eventual tragedy. But such an event will not constitute

the offence or establish the guilt of the accused-appellant under

Section 306 of the IPC.

19.Having said that we intend to make it clear that if the husband

gets involved in an extra-marital affair that may not in all

circumstances invite conviction under Section 306 of the IPC but

definitely that can be a ground for divorce or other reliefs in a

matrimonial dispute under other enactments. And we so clarify.

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20. Consequently, the appeals are allowed. The conviction under

Sections 306 and 498-A of the IPC is set aside. The appellant be set

at liberty unless his detention is required in connection with any other

case.

…............…..…..............J.

(DIPAK MISRA)

…............…..…..............J.

(AMITAVA ROY)

New Delhi

November 22, 2016

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ITEM NO.4 COURT NO.3 SECTION IIC

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s).

5928-5929/2016

(Arising out of impugned final judgment and order dated 13/04/2016

in CRLA No. 126/2012 13/04/2016 in CRLA No. 655/2012 passed by the

High Court Of Karnataka At Bangalore)

K.V. PRAKASH BABU Petitioner(s)

VERSUS

STATE OF KARNATAKA Respondent(s)

(with appln. (s) for bail and exemption from filing O.T. and office

report)

Date : 22/11/2016 These petitions were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DIPAK MISRA

HON'BLE MR. JUSTICE AMITAVA ROY

For Petitioner(s) Mr. S.R. Singh, Sr. Adv.

Mr.Anurag Thomas, Adv.

Mr. B. Vishwanath Bhandarkar, Adv.

Mr. H.K. Naik, Adv.

Mr. Karunakar Mahalik,Adv.

For Respondent(s) Mr. V. N. Raghupathy,Adv.

UPON hearing the counsel the Court made the following

O R D E R

Leave granted.

Consequently, the appeals are allowed. The conviction

under Sections 306 and 498-A of the IPC is set aside.

The appellant be set at liberty unless his detention is

required in connection with any other case.

(NEELAM GULATI)

COURT MASTER

(H.S. PARASHER)

COURT MASTER

(Signed Reportable Judgment is placed on the file)