REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 12 OF 2013
[Arising out of Special Leave Petition (Crl.)No. 2038 of 2012]
Vajresh Venkatray Anvekar … APPELLANT
Versus
State of Karnataka … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. The appellant (original accused 2 – A2) was tried along with his
father Venkatray Narayan Anvekar (original accused 1 – A1) and his mother
Smt. Vidyabai Venkatray Anvekar (original accused 3 – A3) for offences
punishable under Sections 498-A, 304-B and 306 read with Section 34 of the
Indian Penal Code (for short ‘the IPC’) and Sections 3, 4 and 6 of the
Dowry Prohibition Act, 1961 by the Sessions Judge, Fast Track Court-II at
Karwar in Sessions Case No.59/02. By his judgment dated 30/03/2007 learned
Sessions Judge acquitted all the accused.
The State of Karnataka carried
an appeal to the High Court of Karnataka, Circuit Bench at Dharwad from the
said judgment.
The High Court by the impugned judgment confirmed the
acquittal of A1 and A3.
The High Court, however, reversed the acquittal of
the appellant and convicted him for the offences punishable under Sections
498-A and 306 of the IPC.
For offence punishable under Section 306 of the IPC, the appellant was sentenced to imprisonment for five years and to pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo further imprisonment for one year. For offence punishable under Section 498-A the appellant was sentenced to imprisonment for three years and to pay fine of Rs.10,000/- and in default of payment of fine, to
undergo further imprisonment for six months. The substantive sentences
were ordered to run concurrently. Fine amount was directed to be paid to
the parents of deceased Girija. The appellant was acquitted of the other
charges. Being aggrieved by the said judgment, the appellant has filed the
present appeal.
3. Admittedly, PW1-Suresh father of Girija stays at Nandangad Karwar.
The appellant’s family stays at Habbuwada Karwar. Girija was married to
the appellant on 17/12/2001 at Karwar. The gist of the prosecution case can
be gathered from the F.I.R. lodged by PW1-Suresh. It is stated in the
F.I.R. that one month after the marriage the appellant went to Mumbai where
he has a jewellery shop along with Girija. About two months prior to the
date of the F.I.R. Girija had developed eye problem. Instead of taking
her to a doctor the appellant took her to one Swamiji. When the eye
ailment could not be cured, she was brought to Karwar for check-up. When
she came to Karwar she told PW1-Suresh that the appellant, her sister-in-
law and A1 used to torture her and her sister-in-law used to assault her.
They used to wake her up at 5 a.m. and pressurize her to work. At the
instigation of her sister-in-law and A1, the appellant used to assault her.
They used to ask her to get money from her parents. On 11/06/2002, PW1-
Suresh, his son, Girija and the appellant went to Hubli and got Girija’s
eyes checked from eye specialist Dr. Anant Revankar. On 12/06/2002, Girija
informed them that she was being tortured. She stated that when she
requested the appellant to take her for honeymoon, he refused and told her
that if she continues with the demand, she will have to go to her parent’s
house. She stated that the appellant tortures her mentally and when she
visits Karwar the torture increases. On 12/06/2002, at 4.00 p.m., PW1-
Suresh, his son and wife took Girija to the appellant’s house at Hubbuwada
and informed them that they would take her back next day evening. On
13/06/2002, at 12 noon, he called-up Girija and told her that he would
visit her matrimonial home and speak to A1 about the harassment and torture
meted out to her. Girija told him that if he visits her house, her in-laws
would torture her more and, therefore, he should not come. On 13/06/2002,
at 2.30 p.m, the appellant phoned and told him that Girija was not speaking
anything. He went to the appellant’s house along with his wife and sons.
His son Sandeep saw Girija in the bedroom situated on the upper floor. She
was not able to speak. Sandeep lifted her and brought her downstairs in
order to show her to the doctor. The moment the doctor checked her, he
pronounced her dead. PW1-Suresh stated that Girija had committed suicide
by consuming poison or some tablets because the appellant, A1 and A3
tortured her. The complaint was lodged at 2215 hours. PW1-Suresh stated
that because he had gone to inform about the death of Girija to his
relatives there was some delay in lodging the complaint.
4. In support of its case the prosecution examined 24 witnesses.
Prominent amongst them are PW1-Suresh and PW18-Anuradha, the parents of the
deceased, PW19- Jayant the brother of the deceased, PW2-Manjunath and PW12-
Sripad Anvekar who attended appellant’s marriage, PW11-Digvijay, PW16-
Prasanna Revankar and PW17-Dr. Raj Kumar, the sons-in-law of PW1-Suresh and
PW3-Shruti, friend of Girija. The appellant denied the prosecution case
and submitted a written explanation. We shall soon advert to it.
5. Assailing the impugned judgment of the High Court Smt. Suri, learned
counsel for the appellant, contended that the view taken by the trial court
while acquitting the accused was a reasonably possible view which ought not
to have been interfered with by the High Court. Counsel submitted that the
High Court erred in relying on the evidence of interested witnesses.
Counsel submitted that though, evidence shows that several police officers
were there at the scene of offence, PW1 did not lodge the complaint
immediately. He lodged the complaint at 2215 hours, though he got to know
about Girija’s death at 2.30 p.m. The complaint is, therefore, doctored.
Counsel submitted that the High Court has held that demand of dowry is not
proved. The High Court, therefore, could not have proceeded to convict the
appellant under Sections 498A and 306 of the IPC by reversing the order of
acquittal. There was no credible evidence on the basis of which the
appellant could be held guilty of the said offences. Counsel requested us
to go through the explanation offered by the appellant in his statement
recorded under Section 313 of the Criminal Procedure Code, 1973 (for short
‘the Code’) which according to her establishes his innocence. Learned
counsel for the State strenuously supported the impugned order.
6. Two most vital circumstances which must be kept in mind while dealing
with this case are that Girija had committed suicide in the matrimonial
home and her death took place within seven years of her marriage.
Presumption under Section 113A of the Indian Evidence Act, 1872 springs
into action which says that when the question is whether the commission of
suicide by a woman had been abetted by 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. The question is whether the
appellant has been able to rebut this presumption.
7. Medical evidence is of great importance in this case. PW7-Dr. Sailaja
had done Girija’s post-mortem. She found the following injuries on Girija:
“1. On right side of head there was little swelling and wound on the
forehead.
2. On the right eye lower eyelid and on the neck there was weal’s
of specific area and the eye was bleeded.
3. There was swelling on the right side of neck.
4. On the right hand thumb bottom there was blue mark having an
area 3’x2 ½’.
5. To the inner side of the arm the blood was clotted having an
area of 2’ x 1’.
6. To the inner side of the wrist the skin was blackened having an
area 1’ x ½’.
7. Below the thumb the blood was clotted covering an area 2’ x 1’.”
Dr. Sailaja opined that cyanide poisoning was the cause of death. She
stated that all the external wounds were caused prior to post-mortem.
According to her, the wounds on the right side of head can be sustained if
a person is beaten with hands. According to her report, they could be
caused by hard and blunt object when the deceased was alive. In the cross-
examination, it was suggested to her that if the dead body falls on rough
surface, the wounds, which she had seen, could be caused. She denied the
suggestion. Thus, it is clear that Girija was beaten up prior to the
death. In the facts of this case, it is difficult and absurd to come to a
conclusion that the injuries were self-inflicted. Pertinently, Girija died
in her matrimonial home. We have no hesitation, therefore, in concluding
that prior to taking cyanide, Girija was assaulted in her matrimonial home.
PW6- Laxman Kudani, the then Tahsildar and Taluka Magistrate Karwar who
drew the inquest panchnama also referred to blackening of the skin at the
wrist and on the left and right side of the cheeks of the dead body. He
denied the suggestion that because of the pressure exerted by PW1-Suresh,
it was so stated in the inquest panchnama.
8. It would be appropriate at this stage to go to the evidence of PW20-
Dr. Anil Kolvekar. This evidence takes us little backwards. Dr. Kolvekar
stated that on 30/5/2002 Girija had visited his nursing home for treatment
with her brother. He found following injuries on her body:
“(1) Contusion on right inner thigh aspect and 1/3rd circular – 3 cm
in diameter;
(2) Contusion of left inner thigh aspect and 1/3rd circular zoom
diameter;
(3) Contusion over back right side 6 cm injuries. “
She told him that she sustained those injuries because her husband had
beaten her. Dr. Kolvekar stated that those injuries were caused within 24
hours and they could be caused due to beating by sticks and pinching. Dr.
Kolvekar identified his signature on the injury certificate (Ex. P66).
Strangely, learned Sessions Judge has given no importance to this evidence
and has observed that from the evidence of this witness one can only
conclude that on 30/5/2002 when Girija visited him, she had three injuries
on her body which were caused 24 hours prior to the treatment and it is for
the prosecution to prove that the accused had caused those injuries.
Learned Sessions Judge has not disbelieved Dr. Kolvekar. Girija was
brought to him by her brother. She told him that her husband had caused
those injuries. We fail to understand what more evidence the prosecution
could have adduced to prove that those injuries were caused by the
appellant. In the peculiar circumstances of the case, only this conclusion
can be drawn from Dr. Kolvekar’s evidence. It is pertinent to note that
PW3-Shruti Vernekar, a friend of Girija, has supported the case of PW20-Dr.
Kolvekar that the deceased had visited him in May, 2002. PW3-Shruti stated
that she met Girija at Dr. Kolvekar’s nursing home in May, 2002. Girija
appeared to be disturbed and she complained of body ache. According to PW3-
Shruti, she told her that the appellant and members of his family were
beating her and that she was fed up. Learned Sessions Judge discarded the
evidence of this witness on the ground that there is a delay in recording
her statement. So far as delay is concerned, we cannot lose sight of the
fact that the investigation of this case was entrusted to PW24-A.K.
Sidamma, Deputy Superintendent of Police in COD in Dowry Prohibition Cell
on 21/06/2002. Thereafter, she appears to have recorded certain vital
statements. In the peculiar facts of this case delay in recording
statements of witnesses cannot be taken against the prosecution. So far as
PW3-Shruti is concerned, despite the delay in recording her statement we
find her to be a reliable witness. The High Court has rightly relied upon
her evidence.
9. Learned Sessions Judge has refused to rely upon the evidence of the
parents, brother and brothers-in-law of Girija primarily on the ground that
they are interested witnesses. We find this approach to be very
unfortunate. When a woman is subjected to ill-treatment within the four
walls of her matrimonial house, ill-treatment is witnessed only by the
perpetrators of the crime. They would certainly not depose about it. It
is common knowledge that independent witnesses like servants or neighbours
do not want to get involved. In fact, in this case, a maid employed in the
house of the appellant who was examined by the prosecution turned hostile.
It is true that chances of exaggeration by the interested witnesses cannot
be ruled out. Witnesses are prone to exaggeration. It is for the trained
judicial mind to find out the truth. If the exaggeration is of such nature
as to make the witness wholly unreliable, the court would obviously not
rely on him. If attendant circumstances and evidence on record clearly
support and corroborate the witness, then merely because he is interested
witness he cannot be disbelieved because of some exaggeration, if his
evidence is otherwise reliable. In this case, we do not find any such
exaggeration qua the appellant. The witnesses have stood the test of cross-
examination very well. There are telltale circumstances which speak
volumes. Injuries suffered by Girija prior to the suicide cannot be
ignored. The pathetic story of Girija’s woes disclosed by her parents, her
brother and her brothers-in-law deserves to be accepted and has rightly
been accepted by the High Court. A1 and A3 have been acquitted by the
Sessions Court. That acquittal has been confirmed by the High Court. The
State has not appealed against that order. We do not want to therefore go
into that aspect. But, we must record that we are not happy with the
manner in which learned Sessions Judge has ignored vital evidence.
10. PW1-Suresh the father of Girija stated how Girija was harassed
mentally and physically. Learned Sessions Judge has recorded a finding
that Girija did not receive eye injury prior to marriage. PW1-Suresh
stated that the appellant assaulted Girija on her face and she received eye
injury. This evidence inspires confidence. The story that the appellant
had taken her to Dr. Kumta appears to have been created to get over PW1-
Suresh’s version. In any event, taking Girija to a doctor after assaulting
her does not absolve the appellant of the crime. PW11-Digvijay Kudtarkar,
brother-in-law of Girija resides in Bombay. He stated that when Girija had
come to his house along with the appellant she appeared to be frightened.
She was not able to talk properly. When she came alone she told him that
she was scared of living in the appellant’s house. He noticed that her
left cheek had become red and the right portion of her face had become
dark. PW17-Rajkumar Diwakar, another brother-in-law of Girija spoke about
the ill-treatment meted out to Girija, the eye injury received by her and
the assault on her left cheek. PW19-Jayant, brother of Girija also deposed
as to how Girija was ill-treated. Despite all this learned Sessions Judge
acquitted the appellant. Surprisingly, six hours delay in lodging the
F.I.R. is taken against the prosecution. Learned Sessions Judge also finds
the F.I.R. cryptic. Learned Sessions Judge’s observation need to be
quoted:
“… … …When the death of the deceased had come to the knowledge of
P.W.1, it was around 2.30 p.m. and that house of the accused in
which deceased committed suicide was hardly 2 K.Ms. away from
the P.S. I feel that P.W.1, reaching the police station as late
at 22.15 hours., is a delay and this delay is not explained.
The possibility of P.W.1Suresh discussing with his relatives
also to net in the in-laws as A-1 and 3 with oblique motive
cannot be ruled out. Therefore this delay of 5 to 6 hours which
is un-explained is a fatal to the case of prosecution. … … …”
We are amazed at this observation. When a man looses his daughter due
to cyanide poisoning, he is bound to break down. He would take time to
recover from the shock. Six hours delay cannot make his case untrue. It
is also not proper to expect him to give all minute details at that stage.
The F.I.R. contains sufficient details. It is not expected to be a
treatise. We feel that the comments on alleged delay in lodging the F.I.R.
and its contents are totally unwarranted. For the same reasons, we also
reject the submission of counsel for the appellant that because PW1-Suresh
did not tell the police officers who were present at the scene of offence
that the appellant was responsible for the suicide his FIR lodged after six
hours is suspect.
11. We have carefully gone through the explanation offered by the
appellant in his statement recorded under Section 313 of the Code as
requested by his counsel. It confirms our view that the appellant is not
innocent. After denying the allegations of ill-treatment, cruelty and
demand of dowry, the appellant goes on to paint a rosy picture of his
married life. He refers to certain photographs and a Valentine day’s card
sent by Girija to him in 2002. Valentine day’s card sent by Girija to the
appellant does not help him to probablise his alleged good conduct. In the
facts of this case it appears to us to be an effort made by Girija to
please the appellant. The photographs were produced in the court to show
that Girija was taken to religious places and hill stations. Trial court
has rightly not placed reliance on them. As regard the photographs it has
observed that in the photographs Girija is seen standing alone and,
therefore, on the basis of these photographs it cannot be said that the
appellant had taken her to religious places or for honeymoon. Perhaps to
create an impression that Girija was suffering from depression, the
appellant comes out with a story that Girija used to consume pills everyday
and when he enquired about it she used to give evasive answers. According
to him she used to lead a life of an introvert and she preferred
loneliness. She never watched T.V., she never read any newspapers or
books. When he asked her about it she stated that she had an eye problem.
He has further gone on to say that he blamed Girija’s parents that they had
suppressed her eye trouble from him and got her married to him. He further
goes on to say that for this reason she was not willing to give birth to a
child. This story is palpably false and is a crude attempt to create an
impression that Girija was mentally unstable. No such evidence is brought
on record. In this connection, at the cost of repetition, it must be stated
that the trial court has rejected the defence of the appellant that Girija
had lost her eye sight even before her marriage and that this fact was
concealed from him. The trial court has observed that Girija was a
graduate. If she had really lost eye sight, the appellant and his parents
would have noticed the defect earlier. Further part of the explanation
which refers to the appellant’s alleged conduct of getting Girija examined
by Dr. Kumta, an eye specialist and allegedly giving her money for
operation will have to be understood against the background of above facts.
We are not inclined to believe that the appellant took Girija to an eye
specialist and if he did take Girija to an eye specialist we have no manner
of doubt that it was too late in the day. The evidence on record clearly
indicates that Girija received injury on her cheek and to her eye after
marriage. She had no eye trouble before marriage. The injury was
certainly not self-inflicted. Circumstances on record clearly establish
that Girija received the eye injury in the matrimonial home and the
appellant was responsible for it.
12. We are wary of passing comments against the subordinate courts
because such comments tend to demoralize them. But, in this case, we will
be failing in our duty if we ignore the insensitivity shown by learned
Sessions Judge to a serious crime committed against a hapless woman. We
need to quote certain extracts from learned Sessions Judge’s judgment which
will show why we are so anguished.
“The other allegations in Ex-P1 complaint is that the deceased was
asked to get up at 5.00 a.m. early in the morning and she was asked to
attend to house-hold work. Even the accused had asked the deceased to
attend to house hold chorus, that is not the act of cruelty, so as to
drive the deceased to commit suicide………………………………… …………………………Conduct of
the accused in reprimanding the deceased for her lethargic habits,
strongly advising her to be more compatible with members of the family
and to evince interest in the domestic shores cannot be considered as
acts of cruelty.”
It is pertinent to note that even in this case Girija was asked to
wake-up at 5.00 a.m. and start work. This kind of orders may not always be
innocuous.
13. Learned Sessions Judge further observes as under:
“In 1995, Cri. L.J. Page -2472, (Neelakanth Patil vs. State of
Orissa), it is held that; mere statement that the deceased wife was
not happy with the husband-accused, is not sufficient. Particularly
in the absence of any direct evidence, oral or documentary about ill
treatment one or two incident of assault by the accused-husband is not
likely to drive the wife to commit suicide. Therefore, the Hon’ble
High Court held the conviction of the husband was not proper.”
(emphasis supplied)
Reproduction of Orissa High Court’s judgment does not appear to be
accurate. Learned Sessions Judge further observes as under:
“PW-11 has not stated the particular day of the noticing face of the
deceased turning brownish and right eye upper portion blackening. He
has not stated particular day on which he found deceased to be panic.
He has not stated particular day on which he found the deceased
physically weak. Therefore, again these imputations are all general
allegations. As I said earlier even if upper eye portion or face of
Girija had changed their colour because of A-2 giving beatings, that
alone as I said earlier is not the act of cruelty driving the deceased
to commit suicide.” (emphasis supplied)
“As I said earlier A-1 and 3 are the ordinary residents of Karwar. In
between the date of the marriage and the death of the deceased on
13.6.2002 she was very much staying with her husband A-2 in Bombay.
Therefore, giving one or two beating is not cruelty to drive the
deceased to commit suicide.” (emphasis supplied)
“The learned Public Prosecutor has argued that blackening of skin on
various parts of the body of the deceased is proved. Therefore, court
has to believe those injuries to hold the accused responsible for the
sake of argument, it is assumed that those injuries were inflicted by
the accused, they are not sufficient to bring death in the ordinary
course. One or two beats are not sufficient in the ordinary course of
woman to commit suicide.” (emphasis supplied)
14. The tenor of the judgment suggests that
wife beating is a normal facet of married life.
Does that mean giving one or two slaps to a wife by a husband just does not matter?
We do not think that
that can be a right approach.
It is one thing to say that every wear and tear of married life need not lead to suicide and it is another thing to put it so crudely and suggest that one or two assaults on a woman is an accepted social norm.
Judges have to be sensitive to women’s problems.
Perhaps
learned Sessions Judge wanted to convey that the circumstances on record
were not strong enough to drive Girija to commit suicide.
But to make light of slaps given to Girija which resulted in loss of her eyesight is to show extreme insensitivity.
Assault on a woman offends her dignity. What effect
it will have on a woman depends on facts and circumstances of each case.
There cannot be any generalization on this issue.
Our observation,
however, must not be understood to mean that in all cases of assault suicide must follow.
Our objection is to the tenor of learned Sessions
Judge’s observations. We do not suggest that where there is no evidence the
court should go out of its way, ferret out evidence and convict the accused
in such cases.
It is of course the duty of the court to see that an
innocent person is not convicted.
But it is equally the duty of the court
to see that perpetrators of heinous crimes are brought to book.
The above
quoted extracts add to the reasons why learned Sessions Judge’s judgment
can be characterized as perverse. They show a mindset which needs to
change.
There is a phenomenal rise in crime against women and protection
granted to women by the Constitution of India and other laws can be
meaningful only if those who are entrusted with the job of doing justice
are sensitized towards women’s problems.
15. In the ultimate analysis we are of the opinion that the appellant has
not been able to rebut presumption under Section 113A of the Evidence Act.
Girija committed suicide within seven years from the date of her marriage in her matrimonial home.
Impact of this circumstance was clearly missed by
the trial court.
The evidence on record establishes that Girija was
subjected to mental and physical cruelty by the appellant in their matrimonial home which drove her to commit suicide. The appellant is guilty of abetment of suicide.
The High Court has rightly reversed the
judgment of the trial court acquitting the appellant. Appeal is,
therefore, dismissed.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
JANUARY 3, 2013.
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