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Wednesday, June 15, 2016

Sections 498-A and 306 of the IPC = 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 stand satisfied.=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.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.1358 of 2008


Satish Shetty                                      …..Appellant


      Versus


State of Karnataka                                 …..Respondent



                               J U D G M E N T



SHIVA KIRTI SINGH, J.


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.
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.
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.
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.
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  deceased  and  his
parents only. Subsequently another relation was summoned  as accused  no.  4
under Section 319 of CrPC.
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.


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.
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.
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.
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[1],  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.
 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.
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.
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.
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 others[2]. 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 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.
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.”

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.
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.
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.
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.
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.
Reliance has been placed on behalf of appellant  on  the  judgment  of  this
Court in the case of Hans Raj v. State of Haryana[3]. 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
Pradesh[4]. 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.
Reliance was also placed upon case  of  M.  Mohan  v.  State[5].  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  Haryana[6],  this  Court  acquitted  the
appellant who was husband of the deceased for the  offences  under  Sections
498-A and 306 of the  IPC  on  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.
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  Karnataka[7]  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.
 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  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.
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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[1]    (1975) 4 SCC 153 = AIR 1975 SC 1252
[2]    (2003) 1 SCC 217
[3]    (2004) 12 SCC 257
[4]    (2010) 1 SCC 750
[5]    (2011) 3 SCC 626
[6]    (2014) 12 SCC 595
[7]    (2008) 16 SCC 512

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