justified in holding that there is good explanation for the delay in
lodging the FIR on 22.11.1993 because PW-15 delayed the inquest
proceedings without valid reasons leading to delay in the postmortem
examination as well and only on knowledge of the injuries etc. the
mother of the deceased gathered strength to lodge the FIR. When the
deceased died leaving a son of ten months old the mother of the
deceased had many other things to worry for, including cremation of
the dead body and in such circumstances the High Court was justified
in criticizing the trial court for its hyper technical approach in
blaming the mother of the deceased for lodging a delayed complaint. It
will be useful to remember that delay in lodging the FIR or complaint
is not fatal in all cases. The Court must show some sensitivity in
cases of present nature where the victim’s closest relation - mother is
a poor helpless lady. Even a well to do person may suffer a state of
mental confusion when struck by such a tragedy. The prosecution in
such cases is likely to be delayed further if the deceased has left
behind children. The issues relating to their safety and custody often
require higher priority. Occurrences of the present nature require
lodging of criminal case against persons who are already in the
category of relation by virtue of matrimonial ties through the deceased
and it is not always easy to take a decision whether to lodge a
criminal case against a relation or not. Hence in such cases the
factum of delay has to be dealt with sympathetically keeping in mind
the mental condition of the close relations of the victim. The trial court
miserably failed on this count too.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1358 of 2008
Satish Shetty …..Appellant
Versus
State of Karnataka …..Respondent
Dated:June 03, 2016.
SHIVA KIRTI SINGH, J.
1. This appeal by special leave is directed against judgment and
order dated 13.09.2007 passed by a Division Bench of High Court of
Karnataka at Bangalore in Criminal Appeal No. 1409 of 2000
preferred by the State against judgment dated 16.09.2000 by First
Additional Sessions Judge, D.K. Mangalore in SC No. 150/94 whereby
the appellant and both his parents were acquitted for offences
punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act
and under Sections 498-A and 304-B of the Indian Penal Code (IPC).
By the impugned order High Court has reversed the judgment of
acquittal in part. It has convicted the appellant, the husband of the
victim lady, for the offence under Section 498-A with punishment of
rigorous imprisonment (RI) of three years and a fine of Rs.5000/- with
a default clause. The appellant has also been convicted for the offence
under Section 306 of the IPC with RI for five years and a fine of
Rs.10,000/-, again with a default clause. Both the sentences are to
run concurrently. If realized, the fine amount is to be paid to PW-6
Gulabi, mother of the deceased, if she is alive.
2. Learned senior counsel Mr. P. Vishwanatha Shetty appearing for
the appellant has raised three main contentions to assail the
judgment and order under appeal. According to him, the judgment
and order of acquittal was not a perverse judgment and required no
interference by the High Court. Secondly, it is contended that in
absence of any charge framed under Section 306 of IPC by the trial
court the High Court should not have convicted the appellant under
that Section. Lastly but not the least, is the contention that there is
no evidence on record to justify the conviction of the appellant by the
High Court for any of the charges.
3. Mr. V. N. Raghupathy learned counsel for the respondent has, on
the other hand, strenuously refuted all the aforesaid three
submissions and has placed reliance on the relevant materials on
record as well as the discussions made by the High Court in the
impugned order to fully support that judgment and order reversing
the acquittal of the appellant to the extent indicated above.
4. Before adverting to specific contentions for deciding the main
issue whether the impugned judgment and order requires
interference, it will be useful and relevant to take note of the factual
matrix of this case. The story of the deceased young lady, aged about
25 years who was forced to commit suicide by the unfortunate
situation and circumstances surrounding her life, resembles the tale
of so many similar young ladies who end their life due to untold
miseries and hardships faced by them within the confines of the four
walls of their matrimonial home. All of them enter such home with
hope of leading a long and blissful married life but this hope,
invariably, does not last long, nor their life. In the present case the
victim left behind a son then aged about ten months and she was also
mothering a life of twenty weeks in her womb. The deceased Rekha @
Baby was married with the appellant on 5.06.1991 and immediately
she began her stay in matrimonial home with her husband and
in-laws and a son was also born to them who on the date of her death
i.e. 19.11.1993 was aged about ten months. There is no dispute
regarding her death and even as per the Unnatural Death Report
(UDR) exhibit Ex.P.20, lodged by the appellant with the local police
station on 19.11.1993 at 9.45 a.m, she died of some poison which she
had consumed allegedly because the appellant forbade her from going
to her mother’s place in the morning hours of 18.11.1993. As
described in the said report, the victim had consumed a poison which
was kept for spray in the fields. She had been taken to hospital but
expired there at around 8 a.m. As per version of the occurrence given
by the appellant, the deceased and he were living a very happy life. He
was satisfied with the money and gold given at the time of marriage as
dowry and was apparently at a loss as to why the deceased consumed
poison.
5. The records have been carefully noticed by the High Court and
they reveal that the police/the investigating agency, soon after
learning about the occurrence made a request to the Tehsildar
(Executive Magistrate), PW-15 to conduct inquest proceedings under
Section 174 of Criminal Procedure Code. The High Court has rightly
condemned the Tehsildar’s action in causing undue delay and holding
the inquest two days later on 22.11.1993. It was after the inquest
that the mother of the deceased, Gulabi, PW-6 lodged the complaint
with the police on 22.11.1993 and on that basis police registered a
Criminal Case No. 136/93 for offences under Section 498-A, 304-B of
the IPC and Sections 3 and 4 of the Dowry Prohibition Act. After
investigation police submitted chargesheet against the husband of the
4Crl.A. No.1358 of 2008
deceased and his parents only. Subsequently another relation was
summoned as accused no. 4 under Section 319 of CrPC.
6. Dr. M.R. Shetty, PW-8 has proved the postmortem report. He has
deposed that he conducted the autopsy on the deceased in the
afternoon of 22.11.1993 along with another Doctor and found the
following wounds on the dead body:
1. Transverse contusion across the lower part of the rt. Thigh 2”
above the knee joint 2” in length.
2. Haematoma 6” x 3” on the lower part of the left thigh with
abrasion of different sizes on it;
3. Abrasion on the rt. Lumbar region 2-1/2”;
4. Abrasion on the back of the rt. Thigh 2-1/2”;
5. Multiple small abrasions on the rt. Hand of different sizes; and
6. Blood strained fluid from the nostrils.
He had found a twenty weeks embryo in the womb of the
deceased. He deposed that as per subsequent chemical lab report of
the viscera, the death was because of consumption of Organo
phosphorous chemical. The Doctor has also deposed that the wounds
were ante-mortem caused by hard and blunt object but they did not
cause the death. The unnatural death of the victim within seven years
of marriage is not in dispute.
7. The High Court has scrutinized the deposition of mother of the
deceased PW-6 and her two younger brothers PW-9 and PW-20 for
coming to a finding that at the time of marriage they had to arrange
money to meet the demand of the husband of the deceased for
payment of dowry in cash and gold. The witnesses on this aspect were
found trust-worthy and not indulging into exaggeration or false
allegations. The trial court on the other hand went into unnecessary
details to discuss this issue on the basis of capacity of the
complainant to pay, source of money arranged by her and whether
actually money had been paid at the professed place or not. Though
there is difference in the amount but nonetheless in the UDR
complaint in Ex.P20 the appellant has admitted of taking Rs.25,000/-
as dowry. The High Court has rightly held that the trial court should
not have gone into further details. The only relevant issue was initial
payment of dowry and not its quantum. But this aspect need not be
pursued further because the High Court has also, while relying on the
evidence of the prosecution that one year after the marriage during
her visit to her mother the deceased had informed that the accused
were harassing her by making a demand for additional dowry of 20
sovereigns of gold and Rs.1,00,000/- for investment by the appellant
in a wine shop, has held that such subsequent demand being
unrelated to marriage, need not be accepted as demand for dowry and
therefore the offence under Section 304 of the IPC is not attracted. In
this regard it was noticed that in Section 304 of the IPC as per the
explanation, “dowry” shall have the same meaning as in Section 2 of
the Dowry Prohibition Act, 1961.
8. The High Court has considered the issue whether Section 498-A
and 306 of the IPC are attracted or not and after extracting the
relevant provisions as well as Section 113A of the Evidence Act, has
held the appellant guilty of the offences under Section 498-A and 306
of the IPC. For that the High Court has relied upon relevant materials
consisting of oral evidence available on record as well as documentary
evidence in the forms of letters. Before discussing whether the High
Court has committed any error of facts or law on this issue, it is
useful to examine the first contention advanced on behalf of the
appellant that the High Court should not have interfered with the
acquittal of appellant.
9. As already noticed, on the issue whether the marriage was
performed after demanding and accepting dowry, the High Court
found the approach of the trial court totally erroneous. The findings
were found to be vitiated on account of trial Judge ignoring the glaring
facts emerging from deposition of PW-6, 9 and 20 as well as PW 13
and 16 and also by ignoring the admission of the accused in the UDR
complaint at Ex.P.20.
10. The High Court has further rightly held that the trial Judge failed
to look for the relevant documents already available on the record and
wrongly drew inference against the prosecution for not producing the
statements of PW-6 and other relations of the deceased recorded by
Taluka Executive Magistrate under Section 174 CrPC proceedings.
Presently it is not disputed that those statements were/are available
on record along with the inquest report. It is noted that such
erroneous approach of the trial court had strong influence on its
judgment rendering it perverse. In fact, had the trial court applied its
mind to the scope of Section 174 of the CrPc as explained by this
Court in the case of Pedda Narayana and others v. State of Andhra
Pradesh (1975) 4 SCC 153 = AIR 1975 SC 1252
, such gross error could have been avoided because such
statements do not have much legal weight as they are beyond the
scope of inquest proceedings under Section 174 of CrPC.
11. On the basis of relevant facts the High Court appears to be
justified in holding that there is good explanation for the delay in
lodging the FIR on 22.11.1993 because PW-15 delayed the inquest
proceedings without valid reasons leading to delay in the postmortem
examination as well and only on knowledge of the injuries etc. the
mother of the deceased gathered strength to lodge the FIR. When the
deceased died leaving a son of ten months old the mother of the
deceased had many other things to worry for, including cremation of
the dead body and in such circumstances the High Court was justified
in criticizing the trial court for its hyper technical approach in
blaming the mother of the deceased for lodging a delayed complaint. It
will be useful to remember that delay in lodging the FIR or complaint
is not fatal in all cases. The Court must show some sensitivity in
cases of present nature where the victim’s closest relation - mother is
a poor helpless lady. Even a well to do person may suffer a state of
mental confusion when struck by such a tragedy. The prosecution in
such cases is likely to be delayed further if the deceased has left
behind children. The issues relating to their safety and custody often
require higher priority. Occurrences of the present nature require
lodging of criminal case against persons who are already in the
category of relation by virtue of matrimonial ties through the deceased
and it is not always easy to take a decision whether to lodge a
criminal case against a relation or not. Hence in such cases the
factum of delay has to be dealt with sympathetically keeping in mind
the mental condition of the close relations of the victim. The trial court
miserably failed on this count too.
12. The evidence of PW-6 mother of the deceased is well supported by
PW-7 Pratap, a cousin of the deceased who had visited the deceased
during Dushera holidays, a month prior to her death. He found that
the deceased was getting continuous ill-treatment by her husband. He
has deposed to the extent that the deceased requested PW-7 not to
disclose the ill-treatment to her mother because she would get upset.
The letters contained in Ex P-7 dated 27.9.1993 and exhibit D-3 dated
28.10.1993 have been discussed by both the Courts below. We are in
agreement with the views of the High Court that those letters written
respectively by the deceased to her mother and by sister of the
deceased to the deceased, do not help the defence at all. The trial
court had clearly adopted a perverse approach in appreciating those
letters as if they are in favour of the defence. Further, the correct and
logical inferences from these documents were rejected by the trial
court in paragraph 37 of the judgment by again resorting to adverse
inference on the incorrect ground that statements of PW-6 and PW-9
recorded by the Tehsildar at the time of conducting inquest were not
produced before the Court. As already noticed earlier, these
statements formed part of the inquest report and were available on
record.
13. In view of aforesaid discussions we find no merit in the first
contention that the judgment and order of the acquittal was not
perverse or that it required no interference of the High Court. The
views of the High Court on this issue are sound and we are in
agreement that the judgment of the trial court suffered from such
gross errors in approach and appreciation that it could not be saved
on the principle that if two views are possible, there should be no
interference with a judgment and order of acquittal.
14. So far as the second contention is concerned, the same needs to
be noticed only for rejection. To be fair to the learned counsel, he has
not dealt on this contention at any length nor has cited any judgment.
The High Court on the other hand dealt with the issue of conviction
under Section 306 of the IPC in absence of a charge under that head
in detail in paragraphs 44 and 45. It has also noticed some judgments
of the Karnataka High Court and this Court in paragraph 44. The
issue is definitely not res integra in view of judgment of this Court in
somewhat similar circumstances in the case of K. Prema S. Rao and
another v. Yadla Srinivasa Rao and others2
. In that case the
acquittal of the husband of the deceased under 304-B IPC was not
reversed but this Court while upholding the conviction of the all the
three accused under Section 498-A IPC, further convicted the
husband of the victim under Section 306 IPC after discussing issues
relating to absence of a charge under Section 306 IPC in a case of
2
(2003) 1 SCC 217
suicide when the relevant and material facts are already part of
charge under Section 498-A and 304-B of the IPC. That judgment
rendered by a Bench of Three Judges in somewhat identical facts, in
our view leaves no scope for accepting the second contention on
behalf of the appellant.
15. The last contention on behalf of the appellant that there is no
evidence to justify the conviction of the appellant for any of the
charges, indirectly stands negated by our discussions and findings in
respect of the first contention itself. However to consider the legality of
the view taken by the High Court we propose to deal with this issue
further after taking note of the relevant provisions of law i.e. Sections
498-A and 306 of the IPC as well as Section 113A of the Evidence Act
which are extracted below:
“Section 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 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.”
Section 306. Abetment of suicide.—If any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also
be liable to fine.
Section 113-A. Presumption as to abetment of suicide by a
married woman.—When the question is whether the
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, having regard to all
the other circumstances of the case, that such suicide had
been abetted by her husband or by such relative of her
husband.
Explanation.—For the purposes of this section, ‘cruelty’
shall have the same meaning as in Section 498-A of the
Indian Penal Code.”
16. On a plain reading of Section 498-A it transpires that if a married
woman is subjected to cruelty by the husband or his relative, the
offender is liable to be punished with the sentence indicated in the
Section. But cruelty can be of different types and therefore what kind
of cruelty would constitute offence has been defined under the
explanation. As per first definition contained in clause (a) – it means a
willful conduct of such a nature which is likely to drive the victim
woman to commit suicide or to cause grave injuries to health and life,
limb or health (mental or physical). The other definition of cruelty is in
clause (b) and is attracted when a woman is harassed with a view to
coercing her or any of her relation to meet any unlawful demand for
any property or valuable security or is on account of failure to meet
such demand.
17. In the present case after noticing the injuries on the person of
victim which is not at all explained by the appellant husband
although in the fateful night he and the deceased slept together in the
same room before she consumed poison, the High Court has come to
a well considered finding in paragraph 42 of the impugned judgment
that the deceased was being harassed both physically and mentally
and in direct as well as indirect ways for non compliance with the
demand of the accused for Rs.1,00,000/- for investment in his wine
business. The High Court found that such harassment falls squarely
under clause (b) of the explanation of Section 498-A of the IPC. We
find no good reason to take a different view.
18. The High Court after recording the aforesaid finding proceeded to
consider whether Section 306 of the IPC is also attracted against the
appellant or not. Since the High Court had, on relevant material
returned a finding of guilt under Section 498-A of the IPC, it found
the circumstances of the case right and proper for resorting to Section
113A of the Evidence Act which permits raising of presumption as to
abetment to suicide by a married woman. Such a statutory
presumption though discretionary, may be presumed by the Court in
appropriate cases where the question of abetment of suicide by a
woman is under consideration in respect of her husband or any of his
relative and if the suicide has been committed within seven years of
marriage, provided the husband or such relative had subjected her to
cruelty.
19. Since the High Court had recorded a finding against the appellant
of causing cruelty to the deceased for his conviction under Section
498-A, all the essential ingredients for raising of presumption under
Section 113A of the Evidence Act were clearly made out. But the issue
raised before us is whether the High Court was justified in resorting to
exercise such a discretion as was available to it under Section 113A or
not.
20. That the Court has a discretion in the matter of resorting to
presumption is clear from the plain words used in that Section – “the
Court may presume” (emphasis supplied). The law on this issue is
also well settled and therefore needs no elaborate discussion but at
this stage the relevant case laws cited by learned senior counsel for
the appellant need to be taken note of.
21. Reliance has been placed on behalf of appellant on the judgment
of this Court in the case of Hans Raj v. State of Haryana(2004) 12 SCC 257. In this case it was reiterated that Section 113A
of the Evidence Act vests a
discretion in the Court to raise such a presumption having regard to
all the other circumstances of the case. On evidence and facts of that
case it was found that the nature of cruelty proved in that case was
not such as is likely to drive the women to commit suicide or to cause
grievous injury etc. Reliance was also placed upon the case of
Gangula Mohan Reddy v. State of Andhra Pradesh4
. The facts of
that case were entirely different and required interpretation of the
term “abetment” as defined under Section 107 of the IPC. In that case
the victim was a servant of the accused and the case did not require
any examination of inter-dependence and inter-connectivity of Section
498A and 306 of the IPC or of Section 113A of the Evidence Act.
22. Reliance was also placed upon case of M. Mohan v. State5
. The
Court followed the general law with regard to ingredients of abetment
in the context of Section 306 of the IPC and quashed the prosecution
of some of the relations of the husband on the peculiar facts of the
case which disclosed that there was no allegation of any dowry
demand or instigation against those appellants although they were
relatives of the husband. In the case of Mangat Ram v. State of
Haryana6
, this Court acquitted the appellant who was husband of the
deceased for the offences under Sections 498-A and 306 of the IPC on
4
(2010) 1 SCC 750
5
(2011) 3 SCC 626
6
(2014) 12 SCC 595
the ground that the prosecution had not succeeded in establishing the
offences. The accused had merely left the deceased wife in the
matrimonial home in the company of his parents while proceeding to
report for duty as a constable to another place. This Court held that
such action would not amount to abetment to commit suicide.
23. The aforesaid case laws do not lay down any proposition of law
which may warrant interference with the views of the High Court in
the impugned judgment. In the case of Narayanamurthy v. State of
Karnataka7
the law was reiterated that if on appreciation of evidence
two views are possible then the appellate court should not interfere
with the judgment of acquittal in favour of the accused. There is no
quarrel with the said proposition. The High Court was aware of such
legal principle and keeping the same in mind, it has discussed the
evidence for coming to a conclusion that the findings of the trial court
leading to acquittal were fully unwarranted and it is not a case where
two views are possible. Hence the High Court proceeded to convict the
appellant for the offences under Sections 498-A and 306 of the IPC.
24. Once the prosecution succeeds in establishing the component of
cruelty leading to conviction under Section 498A, in our view only in a
rare case, the Court can refuse to invoke the presumption of
abetment, if other requirements of Section 113A of the Evidence Act
7
(2008) 16 SCC 512
17Crl.A. No.1358 of 2008
stand satisfied. This proposition is amply supported by the view
taken by the three-Judge Bench of this Court in the case of K. Prema
S. Rao and Anr. (Supra). Further, the High Court has given good
reasons on the basis of facts brought on record through evidence for
exercising the discretion of invoking the presumption under Section
113A of the Evidence Act and thereafter it has discussed in detail the
explanations given by the appellant in the initial version by way of
Unnatural Death Report as well as the later explanations. The High
Court found the later explanations unacceptable and the initial
explanation that the deceased committed suicide because she was not
permitted to go to her mother’s place does not inspire confidence and
has rightly been rejected by the High Court. Only for such a trivial
matter, a hale and hearty young woman having a ten months old son
and a pregnancy of twenty weeks is not at all expected to take her life.
The appellant not only gave absolutely no explanation for the injuries
on the person of the deceased, rather he chose to conceal them by
keeping mum. Clearly the appellant failed to rebut the presumptions
raised against him under Section 113A of the Evidence Act. Having
gone through the relevant facts and the reasonings of the trial court
we are not persuaded to take a different view.
25. In the result the appeal must fail. We order accordingly. As a
consequence, the bail bonds of the appellant are cancelled. He be
taken into custody forthwith to serve out the remaining part of the
sentence as per law.
.…………………………………….J.
[DIPAK MISRA]
……………………………………..J.
[SHIVA KIRTI SINGH]
New Delhi.
June 03, 2016.
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