Signature Not Verified: Digitally Signed by Satish Kumar Yadav Date: 2019.11.26 16:15:03 IST Reason
Signature Not Verified: Digitally Signed by Satish Kumar Yadav Date: 2019.11.26 16:15:03 IST Reason
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos. 14921493 OF 2010
GURJIT SINGH ....APPELLANT(S)
VERSUS
STATE OF PUNJAB .... RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
and order dated 20.2.2009 passed by the Division Bench of the
Punjab and Haryana High Court in Criminal Appeal No. 544
DBA of 2001 and Criminal Appeal No. 959SB of 2000. All the
who is husband of the deceased, were charged and tried by the
Signature Not Verified 304B and Section 498A of the Indian Penal Code, 1860
Digitally signed by
SATISH KUMAR YADAV
Date: 2019.11.26
(hereinafter referred to as “IPC”). The other accused were the
16:15:03 IST
Reason:
father (accused No.1), the mother (accused No.2) and the sister
prosecution had succeeded in proving the case against accused
Nos. 1 to 3 for the offence punishable under Section 498A of
the IPC but has failed to prove the case against the said accused
(Nos. 1, 2 and 3) for the offence punishable under Section 304
B of the IPC. Insofar as accused No. 4 is concerned, it was held
that the prosecution has failed to prove the case against her for
appellant and his father and mother for the offence punishable
under Section 498A of the IPC and sentenced them to undergo
rigorous imprisonment for a period of three years and to pay a
fine of Rs. 4000/ each and, in default of payment of fine, to
months.
2. Being aggrieved by the conviction and sentence under
Section 498A of the IPC, the appellant along with his parents
preferred an appeal (being Criminal Appeal No.959SB of 2000)
before the High Court. So also, the State preferred an appeal
(being Criminal Appeal No.544DBA of 2001), being aggrieved by
that part of the order by which the trial Court acquitted accused
No. 4 and also acquitted accused Nos. 1, 2 and 3 for the offence
3
upheld the conviction of accused Nos. 1, 2 and 3 for the offence
punishable under Section 498A of the IPC. It also upheld the
prosecution could not bring the case under Section 304B of the
court maintained the order of the sentence and fine as recorded
by the trial Judge for the offence punishable under Section 498
A of the IPC. For the offence under Section 306 of the IPC, the
High Court sentenced the appellant herein to undergo rigorous
imprisonment for a period of five years and to pay a fine of Rs.
appellant.
3. Shri Rajeshwar Singh Thakur, learned counsel for the
Section 498A of the IPC is not tenable. It is submitted, that the
conviction is only on the basis of the evidence of PW10 Bishan
Singh, the father of the deceased. It is submitted, that there is
4
no corroboration to the said evidence. It is submitted, that in
any case, the conviction under Section 306 of the IPC is not
punishable under Section 304B of the IPC, the ingredients of
which are totally different than the ingredients of Section 306 of
the IPC. It is submitted that as such grave prejudice was caused
to the appellant. It is further submitted that the evidence shows
during the course of the trial, the appellant was on congenial
meeting terms with the father of the deceased and as such the
unnatural human conduct would discredit his testimony.
conviction under Section 498A of the IPC is concerned, since
there is a concurrent finding, no interference is warranted. She
further submitted, that since the ingredients of Section 304B
and Section 306 of the IPC are almost similar, no prejudice was
caused to the appellant by convicting him under Section 306 of
under Section 306 with the aid of Section 113A of the Indian
5
Evidence Act, 1872 were duly proved by the prosecution and as
such no interference is warranted in the present appeals.
5. The perusal of the record would reveal that though the
appellant has disputed the date of marriage to be 04.02.1989,
both the courts have disbelieved him and rightly so. The
deceased died an unnatural death on 28.09.1994 by consuming
poison. As such, the unnatural death occurred within a period
acquitted the appellant for the offence punishable under Section
304B of the IPC since the prosecution has failed to prove the
demand for dowry, while convicting him along with the parents
for the offence punishable under Section 498A of the IPC. The
the IPC, however, it also convicted the appellant for the offence
punishable under Section 306 of the IPC with the aid of Section
113A of the Indian Evidence Act, 1872.
6. The question that we are called upon to answer is as to
whether the conviction as confirmed by the High Court under
Section 498A of the IPC and as recorded by it for the first time
under Section 306 of the IPC would be sustainable or not.
6
consideration are as under:
“107. Abetment of a thing A person abets the doing of
a thing, who—
First.—Instigates any person to do that thing; or
Secondly.—Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if
an act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
Thirdly.—Intentionally aids, by any act or illegal
omission, the doing of that thing.
Explanation 1.—A person who, by wilful
misrepresentation, or by wilful concealment of a material
fact which he is bound to disclose, voluntarily causes or
procures, or attempts to cause or procure, a thing to be
done, is said to instigate the doing of that thing.
Explanation 2.—Whoever, either prior to or at the time of
the commission of an act, does anything in order to
facilitate the commission of that act, and thereby
facilitates the commission thereof, is said to aid the doing
of that act.
xxx
xxx
8. The relevant provision of the Indian Evidence Act, 1872
that also requires consideration is as follows:
9. The perusal of the evidence of PW10 Bishan Singh, the
daughter had two issues. The elder one was four years old and
the son was about 1 ½ years old at the time of the occurrence.
He stated, that after the marriage, accused were harassing his
daughter for giving less dowry. In the year 1992, he had given
one steel almirah to his daughter but the accused were not
8
purchased one fridge through his soninlaw, Jagtar Singh, from
the Military Canteen for Rs. 6,600/, which was given to the
accused persons. Even then the accused were not satisfied. The
accused were pressing his daughter, Jaswinder Kaur, to bring
Hoshiarpur. He further stated that on twothree occasions, his
daughter came to his Village Kharal Kalan and he requested her
that Rs. 50,000/ were not with him at that stage and after
selling the paddy crop he can pay that amount. He stated that,
inlaws house. He further stated, that on 28.09.1994 when he
was in his house, he came to know that his daughter had died.
Suspecting that his daughter was given poison or she consumed
poison, he lodged a report with the police.
10. To some extent, the evidence of PW10 is corroborated by
the evidence of PW13 Iqbal Singh. He has stated, that prior
to the occurrence, i.e., the death of the deceased there was a
Jaswinder Kaur, as Rs. 50,000/ was being demanded by the
9
deceased could not pay Rs. 50,000/ and promised to pay the
demand of Rs. 50,000/, one refrigerator and one almirah was
given to the accused persons by the parents of the deceased on
their demand and this was over and above dowry given at the
time of the marriage.
11. Thus from the evidence of PW10 which is corroborated
to an extent by PW13, we have no hesitation to hold that the
prosecution has proved that the deceased was harassed with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or such a
charge under Explanation (b) of Section 498A of the IPC.
12. Now the question that would fall for consideration is as to
Explanation (b) of Section 498A of the IPC and also establishes
that the deceased committed suicide within seven years of the
marriage, could the accused be also held guilty for the offence
10
punishable under Section 306 of the IPC with the aid of Section
113A of the Indian Evidence Act.
13. The said question fell for consideration before the bench
of three learned Judges of this Court in the case of Ramesh
reproducing the provisions of Section 306 of the IPC and Section
113A of the Indian Evidence Act, 1872 observed thus:
13. The present case is not one which may fall
under clauses secondly and thirdly of Section 107
of the Penal Code, 1860. The case has to be
decided by reference to the first clause i.e. whether
the accusedappellant abetted the suicide by
instigating her to do so.”
(emphasis supplied)
14. It could thus be seen, that this Court has observed that
satisfied:
(i) The woman has committed suicide,
12
(ii) Such suicide has been committed within a period of
seven years from the date of her marriage,
(iii) The husband or his relatives, who are charged had
subjected her to cruelty.
presume that such suicide had been abetted by her husband or
words “may presume” suggests. It has further been held that
circumstances shall not, like a formula, enable the presumption
being drawn. It has been held that before a presumption being
drawn, the court shall have regard to all other circumstances of
the case. It has been held, that the consideration of all the other
circumstances of the case may strengthen the presumption or
may dictate the conscience of the court to abstain from drawing
the presumption. It thus observed that the expression “the other
circumstances of the case” used in Section 113A of the Indian
relationship between the cruelty and the suicide for the purpose
of raising a presumption.
13
16. It has been further held that when the case does not fall
under clauses secondly and thirdly of Section 107 of the IPC,
the case is to be decided with reference to the first clause, i.e.,
following observations in Ramesh Kumar (supra):
“20. Instigation is to goad, urge forward, provoke,
incite or encourage to do “an act”. To satisfy the
requirement of instigation though it is not necessary
that actual words must be used to that effect or what
constitutes instigation must necessarily and
specifically be suggestive of the consequence. Yet a
reasonable certainty to incite the consequence must
be capable of being spelt out. The present one is not
a case where the accused had by his acts or
omission or by a continued course of conduct
created such circumstances that the deceased was
left with no other option except to commit suicide in
which case an instigation may have been inferred. A
word uttered in the fit of anger or emotion without
intending the consequences to actually follow cannot
be said to be instigation.
not be satisfied for basing a finding that the accused
charged of abetting the offence of suicide should be
found guilty.
17. The Court observed that instigation is to goad, urge
forward, provoke, incite or encourage to do “an act”. Though
the court observed that to satisfy the requirement of instigation,
it is not necessary that actual words must be used to that effect
or what constitutes instigation must necessarily and specifically
observed that a reasonable certainty to incite the consequence
must be capable of being spelt out. Relying on the judgment of
this court in the case of State of West Bengal vs. Orilal Jaiswal 2,
2 (1994) 1 SCC 73
15
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 her life by committing suicide. It has further been held that
Section 498A and Section 306 of the IPC are independent and
depending on the facts and circumstances of an individual case,
subjecting a woman to cruelty may amount to an offence under
Section 498A of the IPC. It has further been observed, that if a
course of conduct amounting to cruelty is established leaving no
observed, that, however, merely because accused had been held
liable to be punished under Section 498A of the IPC, it does not
follow that on the same evidence he must also and necessarily
be held guilty of having abetted the commission of suicide by
the woman concerned.
18. Another threeJudge bench of this Court in the case of K.
circumstances of framing charge only under Section 304B of
the IPC and not framing the one under Section 306 of the IPC,
could the conviction under Section 306 of the IPC read with
mentioned as under.
“That on or about the 22nd day of October, 1989, at your
house at Tunikipadu of Gampalagudem Mandal, Yedla
Krishna Kumari, wife of A1 among you and daughterin
law of A2 and A3 among you, committed suicide by
consuming poison, and that you all subjected her to such
cruelty and harassment as did drive her to commit
suicide, with the object of extracting ac. 5.00 of land as
dowry to A1 and thereby committed an offence
punishable under Section 304B of the Indian Penal
Code, 1860 and within the cognizance of this court.
or alternatively
constitute an offence under Section 306 of the IPC were already
found in the charge and as such no prejudice was caused to the
accused therein, though no separate charge was framed under
Section 306 of the IPC. Apart from that, the evidence on record
were discovered by the wife and handed over to the father and
she was driven out of the house, this cruel conduct of the
husband led the wife to commit suicide. It could thus be seen,
that in the facts of the said case, the Court found that the
17
conviction under Section 306 of the IPC could be recorded. It
was found that, apart from the earlier acts of harassment for
stridhana, there was an act of driving the deceased out of the
suicide.
20. The bench of two Judges of this Court had an occasion
to consider a similar issue in the case of Hans Raj vs. State of
Haryana4. It will be relevant to refer to following paragraphs:
13. Unlike Section 113B of the Indian Evidence Act,
a statutory presumption does not arise by operation of
law merely on proof of the circumstances enumerated in
Section 113A of the Indian Evidence Act. Under Section
113A of the Indian Evidence Act, the prosecution has
first to establish that the woman concerned committed
suicide within a period of seven years from the date of her
marriage and that her husband (in this case) had
subjected her to cruelty. Even if these facts are
established the court is not bound to presume that the
suicide had been abetted by her husband. Section 113A
gives a discretion to the court to raise such a
presumption, having regard to all the other
circumstances of the case, which means that where the
allegation is of cruelty it must consider the nature of
cruelty to which the woman was subjected, having regard
to the meaning of the word “cruelty” in Section 498A
IPC. The mere fact that a woman committed suicide
within seven years of her marriage and that she had been
subjected to cruelty by her husband, does not
automatically give rise to the presumption that the
suicide had been abetted by her husband. The court is
required to look into all the other circumstances of the
case. One of the circumstances which has to be
considered by the court is whether the alleged cruelty
was of such nature as was likely to drive the woman to
commit suicide or to cause grave injury or danger to life,
limb or health of the woman……”
21. The court found that in the case there was no direct
instigated the deceased to commit suicide or entered into any
regard to the meaning of the word “cruelty” in Section 498A of
IPC. It has been held that one of the circumstances which has
19
alleged cruelty was of such a nature as was likely to drive the
woman to commit suicide or to cause grave injury or danger to
life, limb or health of the woman.
22. This court in the case of Hans Raj (supra) has also
referred to the judgment of this court in the case of State of
West Bengal vs. Orilal Jaiswal (supra), wherein it is observed
that the requirement of proof beyond reasonable doubt does not
stand altered even after the introduction of Section 498A of the
IPC and Section 113A of the Indian Evidence Act.
23. It will be relevant to refer to the following observations
State of Gujarat5 :
committed by the accused under Section 498A IPC is on
the prosecution. On facts, we have already found that the
prosecution has not discharged the burden that A1 had
instigated, conspired or intentionally aided so as to drive
the wife to commit suicide or that the alleged extramarital
affair was of such a degree which was likely to drive the
wife to commit suicide.
27. 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.”
24. It has thus been observed that though presumption could
be drawn, the burden of proof of showing that such an offence
has been committed by the accused is on the prosecution. The
prosecution has to establish beyond reasonable doubt that the
accused had instigated, conspired or intentionally aided so as to
drive the wife to commit suicide.
observed thus:
been made out against the accused, but it convicted the
accused under Section 306 IPC, even though no charge
had been framed on that section against the accused.
The scope and ambit of Section 306 IPC has not been
properly appreciated by the courts below. ………..
26. After observing the aforesaid, this Court, relying on the
observed that even if it is established that the woman concerned
had committed suicide within a period of seven years from the
consideration all other circumstances of the case.
threeJudge Bench of this Court in the case of Ramesh Kumar
(supra) that when a case does not fall under clause secondly or
thirdly, it has to be decided with reference to the first clause,
22
i.e., whether the accused has abetted the commission of suicide
by intentionally instigating her to do so; has been consistently
followed. As such, we are of the view that merely because an
accused is found guilty of an offence punishable under Section
498A of the IPC and the death has occurred within a period of
establishes that some act or illegal omission by the accused has
driven the deceased to commit the suicide, the conviction under
Section 306 would not be tenable.
Rao (supra), on which the High Court had relied, is concerned,
there was evidence on record proving that immediately prior to
house. As such, it was held that the said cruelty would amount
to abetment to commit suicide.
concerned, no doubt that the learned counsel for the State is
7 (2013) 4 SCC 551
23
justified in relying on the said judgment as the conviction in the
said case is for the offence punishable under Section 498A of
1961. However, in the said case, the conviction under Section
304B of the IPC was set aside by this Court. However, the
question, as to whether when the charge is framed only under
Section 304B of the IPC could the conviction be recorded under
Section 306 of the IPC did not fall for consideration in the said
case.
Pradesh8 this Court by observing that on account of interplay
Sections 498A, 107 and 306 of the IPC, held that the appellant
Section 498A and Section 306 of the IPC. However, it is to be
noted that in the said case the Court relied on the dying
been treated with both mental and physical cruelty. In the said
case, there was a dying declaration of the deceased which was
corroborated by the evidence of PW13, on the basis of which
the Court held that the ill treatment was such which triggered
her immediate intention to commit suicide.
the victim was found to have injuries on her person. Though,
the deceased and the husband had slept together in the same
room before she consumed poison, the appellanthusband had
not at all explained the injuries sustained by the victim. In these
circumstances, the conviction under Section 306 of the IPC, as
recorded by the High Court for the first time, was maintained by
this Court.
Court in Ramesh Kumar (supra)..
33. Applying the aforesaid principles to the present case, we
case under Section 498A of the IPC, we are of the view that the
prosecution has failed to prove that the cruelty was of such a
suicide. The prosecution has not been in a position to place on
record any evidence to establish beyond reasonable doubt that
any act or omission of the accused instigated the deceased to
commit suicide. There is no material on record to show that
immediately prior to the deceased committing suicide there was
suicide. We are of the view, that there is no material placed on
cruelty and the suicide for the purpose of raising presumption.
34. It could further be seen from the evidence on record that
the time gap between the last visit of the deceased to her
commission of suicide is about two months. As such, there is
between the commission of suicide and the illegal demand made
Sengar vs. State of M.P.11 this Court found that there was time
gap of 48 hours between the accused telling the deceased ‘to go
and die’ and the deceased ‘committing suicide’. As such, this
accused had abetted the suicide committed by the deceased.
11 [ (2002) 5 SCC 371]
26
35. Another aspect that needs consideration is that the cases
wherein this Court has held that the conviction under Section
306 of the IPC was tenable though charge was only under
Section 304B of the IPC, it was found the charge specifically
account of cruelty meted out to the deceased. However, in the
present case, the charge reads thus:
36. It would thus be seen, that the charge does not state that
the deceased was driven to commit suicide on account of the
harassment meted out to the deceased. It also does not mention
that the accused had abetted in commission of suicide by the
deceased. In that view of the matter, we are of the considered
view that the cases wherein conversion is held to be permissible
are clearly distinguishable.
maintained and the conviction under Section 306 of the IPC is
set aside. The appellant is acquitted of the charge under Section
306 of the IPC.
38. The appellant is stated to be on bail, his bail bonds shall
weeks for serving the remaining period of his sentence, if not
already undergone. 39.
.........................J.
[NAVIN SINHA]
......................J.
[B.R. GAVAI]
NEW DELHI;
NOVEMBER 26, 2019.