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.
-----------------------
[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
-----------------------
19
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.
-----------------------
[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
-----------------------
19
