Satish Shetty vs State Of Karnataka

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1358 of 2008

Satish Shetty …..Appellant

Versus

State of Karnataka …..Respondent

JUDGMENT

SHIVA KIRTI SINGH, J.

1. This appeal by special leave is directed against judgment and

order dated 13.09.2007 passed by a Division Bench of High Court of

Karnataka at Bangalore in Criminal Appeal No. 1409 of 2000

preferred by the State against judgment dated 16.09.2000 by First

Additional Sessions Judge, D.K. Mangalore in SC No. 150/94 whereby

the appellant and both his parents were acquitted for offences

punishable under Sections 3, 4 and 6 of the Dowry Prohibition Act

and under Sections 498-A and 304-B of the Indian Penal Code (IPC).

1

Page 1 Crl.A. No.1358 of 2008

By the impugned order High Court has reversed the judgment of

acquittal in part. It has convicted the appellant, the husband of the

victim lady, for the offence under Section 498-A with punishment of

rigorous imprisonment (RI) of three years and a fine of Rs.5000/- with

a default clause. The appellant has also been convicted for the offence

under Section 306 of the IPC with RI for five years and a fine of

Rs.10,000/-, again with a default clause. Both the sentences are to

run concurrently. If realized, the fine amount is to be paid to PW-6

Gulabi, mother of the deceased, if she is alive.

2. Learned senior counsel Mr. P. Vishwanatha Shetty appearing for

the appellant has raised three main contentions to assail the

judgment and order under appeal. According to him, the judgment

and order of acquittal was not a perverse judgment and required no

interference by the High Court. Secondly, it is contended that in

absence of any charge framed under Section 306 of IPC by the trial

court the High Court should not have convicted the appellant under

that Section. Lastly but not the least, is the contention that there is

no evidence on record to justify the conviction of the appellant by the

High Court for any of the charges.

3. Mr. V. N. Raghupathy learned counsel for the respondent has, on

the other hand, strenuously refuted all the aforesaid three

submissions and has placed reliance on the relevant materials on

2 Page 2 Crl.A. No.1358 of 2008

record as well as the discussions made by the High Court in the

impugned order to fully support that judgment and order reversing

the acquittal of the appellant to the extent indicated above.

4. Before adverting to specific contentions for deciding the main

issue whether the impugned judgment and order requires

interference, it will be useful and relevant to take note of the factual

matrix of this case. The story of the deceased young lady, aged about

25 years who was forced to commit suicide by the unfortunate

situation and circumstances surrounding her life, resembles the tale

of so many similar young ladies who end their life due to untold

miseries and hardships faced by them within the confines of the four

walls of their matrimonial home. All of them enter such home with

hope of leading a long and blissful married life but this hope,

invariably, does not last long, nor their life. In the present case the

victim left behind a son then aged about ten months and she was also

mothering a life of twenty weeks in her womb. The deceased Rekha @

Baby was married with the appellant on 5.06.1991 and immediately

she began her stay in matrimonial home with her husband and

in-laws and a son was also born to them who on the date of her death

i.e. 19.11.1993 was aged about ten months. There is no dispute

regarding her death and even as per the Unnatural Death Report

(UDR) exhibit Ex.P.20, lodged by the appellant with the local police

3 Page 3 Crl.A. No.1358 of 2008

station on 19.11.1993 at 9.45 a.m, she died of some poison which she

had consumed allegedly because the appellant forbade her from going

to her mother’s place in the morning hours of 18.11.1993. As

described in the said report, the victim had consumed a poison which

was kept for spray in the fields. She had been taken to hospital but

expired there at around 8 a.m. As per version of the occurrence given

by the appellant, the deceased and he were living a very happy life. He

was satisfied with the money and gold given at the time of marriage as

dowry and was apparently at a loss as to why the deceased consumed

poison.

5. The records have been carefully noticed by the High Court and

they reveal that the police/the investigating agency, soon after

learning about the occurrence made a request to the Tehsildar

(Executive Magistrate), PW-15 to conduct inquest proceedings under

Section 174 of Criminal Procedure Code. The High Court has rightly

condemned the Tehsildar’s action in causing undue delay and holding

the inquest two days later on 22.11.1993. It was after the inquest

that the mother of the deceased, Gulabi, PW-6 lodged the complaint

with the police on 22.11.1993 and on that basis police registered a

Criminal Case No. 136/93 for offences under Section 498-A, 304-B of

the IPC and Sections 3 and 4 of the Dowry Prohibition Act. After

investigation police submitted chargesheet against the husband of the

4 Page 4 Crl.A. No.1358 of 2008

deceased and his parents only. Subsequently another relation was

summoned as accused no. 4 under Section 319 of CrPC.

6. Dr. M.R. Shetty, PW-8 has proved the postmortem report. He has

deposed that he conducted the autopsy on the deceased in the

afternoon of 22.11.1993 along with another Doctor and found the

following wounds on the dead body:

1. Transverse contusion across the lower part of the rt. Thigh 2”

above the knee joint 2” in length.

2. Haematoma 6” x 3” on the lower part of the left thigh with

abrasion of different sizes on it;

3. Abrasion on the rt. Lumbar region 2-1/2”;

4. Abrasion on the back of the rt. Thigh 2-1/2”;

5. Multiple small abrasions on the rt. Hand of different sizes; and

6. Blood strained fluid from the nostrils.

He had found a twenty weeks embryo in the womb of the

deceased. He deposed that as per subsequent chemical lab report of

the viscera, the death was because of consumption of Organo

phosphorous chemical. The Doctor has also deposed that the wounds

were ante-mortem caused by hard and blunt object but they did not

cause the death. The unnatural death of the victim within seven years

of marriage is not in dispute.

5

Page 5 Crl.A. No.1358 of 2008

7. The High Court has scrutinized the deposition of mother of the

deceased PW-6 and her two younger brothers PW-9 and PW-20 for

coming to a finding that at the time of marriage they had to arrange

money to meet the demand of the husband of the deceased for

payment of dowry in cash and gold. The witnesses on this aspect were

found trust-worthy and not indulging into exaggeration or false

allegations. The trial court on the other hand went into unnecessary

details to discuss this issue on the basis of capacity of the

complainant to pay, source of money arranged by her and whether

actually money had been paid at the professed place or not. Though

there is difference in the amount but nonetheless in the UDR

complaint in Ex.P20 the appellant has admitted of taking Rs.25,000/-

as dowry. The High Court has rightly held that the trial court should

not have gone into further details. The only relevant issue was initial

payment of dowry and not its quantum. But this aspect need not be

pursued further because the High Court has also, while relying on the

evidence of the prosecution that one year after the marriage during

her visit to her mother the deceased had informed that the accused

were harassing her by making a demand for additional dowry of 20

sovereigns of gold and Rs.1,00,000/- for investment by the appellant

in a wine shop, has held that such subsequent demand being

6 Page 6 Crl.A. No.1358 of 2008

unrelated to marriage, need not be accepted as demand for dowry and

therefore the offence under Section 304 of the IPC is not attracted. In

this regard it was noticed that in Section 304 of the IPC as per the

explanation, “dowry” shall have the same meaning as in Section 2 of

the Dowry Prohibition Act, 1961.

8. The High Court has considered the issue whether Section 498-A

and 306 of the IPC are attracted or not and after extracting the

relevant provisions as well as Section 113A of the Evidence Act, has

held the appellant guilty of the offences under Section 498-A and 306

of the IPC. For that the High Court has relied upon relevant materials

consisting of oral evidence available on record as well as documentary

evidence in the forms of letters. Before discussing whether the High

Court has committed any error of facts or law on this issue, it is

useful to examine the first contention advanced on behalf of the

appellant that the High Court should not have interfered with the

acquittal of appellant.

9. As already noticed, on the issue whether the marriage was

performed after demanding and accepting dowry, the High Court

found the approach of the trial court totally erroneous. The findings

were found to be vitiated on account of trial Judge ignoring the glaring

facts emerging from deposition of PW-6, 9 and 20 as well as PW 13

7 Page 7 Crl.A. No.1358 of 2008

and 16 and also by ignoring the admission of the accused in the UDR

complaint at Ex.P.20.

10. The High Court has further rightly held that the trial Judge failed

to look for the relevant documents already available on the record and

wrongly drew inference against the prosecution for not producing the

statements of PW-6 and other relations of the deceased recorded by

Taluka Executive Magistrate under Section 174 CrPC proceedings.

Presently it is not disputed that those statements were/are available

on record along with the inquest report. It is noted that such

erroneous approach of the trial court had strong influence on its

judgment rendering it perverse. In fact, had the trial court applied its

mind to the scope of Section 174 of the CrPc as explained by this

Court in the case of Pedda Narayana and others v. State of Andhra

Pradesh1, such gross error could have been avoided because such

statements do not have much legal weight as they are beyond the

scope of inquest proceedings under Section 174 of CrPC.

11. On the basis of relevant facts the High Court appears to be

justified in holding that there is good explanation for the delay in

lodging the FIR on 22.11.1993 because PW-15 delayed the inquest

proceedings without valid reasons leading to delay in the postmortem

examination as well and only on knowledge of the injuries etc. the

1 (1975) 4 SCC 153 = AIR 1975 SC 1252

8 Page 8 Crl.A. No.1358 of 2008

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.

9

Page 9 Crl.A. No.1358 of 2008

12. The evidence of PW-6 mother of the deceased is well supported by

PW-7 Pratap, a cousin of the deceased who had visited the deceased

during Dushera holidays, a month prior to her death. He found that

the deceased was getting continuous ill-treatment by her husband. He

has deposed to the extent that the deceased requested PW-7 not to

disclose the ill-treatment to her mother because she would get upset.

The letters contained in Ex P-7 dated 27.9.1993 and exhibit D-3 dated

28.10.1993 have been discussed by both the Courts below. We are in

agreement with the views of the High Court that those letters written

respectively by the deceased to her mother and by sister of the

deceased to the deceased, do not help the defence at all. The trial

court had clearly adopted a perverse approach in appreciating those

letters as if they are in favour of the defence. Further, the correct and

logical inferences from these documents were rejected by the trial

court in paragraph 37 of the judgment by again resorting to adverse

inference on the incorrect ground that statements of PW-6 and PW-9

recorded by the Tehsildar at the time of conducting inquest were not

produced before the Court. As already noticed earlier, these

statements formed part of the inquest report and were available on

record.

13. In view of aforesaid discussions we find no merit in the first

contention that the judgment and order of the acquittal was not

10 Page 10 Crl.A. No.1358 of 2008

perverse or that it required no interference of the High Court. The

views of the High Court on this issue are sound and we are in

agreement that the judgment of the trial court suffered from such

gross errors in approach and appreciation that it could not be saved

on the principle that if two views are possible, there should be no

interference with a judgment and order of acquittal.

14. So far as the second contention is concerned, the same needs to

be noticed only for rejection. To be fair to the learned counsel, he has

not dealt on this contention at any length nor has cited any judgment.

The High Court on the other hand dealt with the issue of conviction

under Section 306 of the IPC in absence of a charge under that head

in detail in paragraphs 44 and 45. It has also noticed some judgments

of the Karnataka High Court and this Court in paragraph 44. The

issue is definitely not res integra in view of judgment of this Court in

somewhat similar circumstances in the case of K. Prema S. Rao and

another v. Yadla Srinivasa Rao and 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

2 (2003) 1 SCC 217

11 Page 11 Crl.A. No.1358 of 2008

suicide when the relevant and material facts are already part of

charge under Section 498-A and 304-B of the IPC. That judgment

rendered by a Bench of Three Judges in somewhat identical facts, in

our view leaves no scope for accepting the second contention on

behalf of the appellant.

15. The last contention on behalf of the appellant that there is no

evidence to justify the conviction of the appellant for any of the

charges, indirectly stands negated by our discussions and findings in

respect of the first contention itself. However to consider the legality of

the view taken by the High Court we propose to deal with this issue

further after taking note of the relevant provisions of law i.e. Sections

498-A and 306 of the IPC as well as Section 113A of the Evidence Act

which are extracted below:

“Section 498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.—For the purpose of this section, ‘cruelty’ means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable

12 Page 12 Crl.A. No.1358 of 2008

security or is on account of failure by her or any person related to her to meet such demand.”

Section 306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 113-A. Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.—For the purposes of this section, ‘cruelty’ shall have the same meaning as in Section 498-A of the Indian Penal Code.”

16. On a plain reading of Section 498-A it transpires that if a married

woman is subjected to cruelty by the husband or his relative, the

offender is liable to be punished with the sentence indicated in the

Section. But cruelty can be of different types and therefore what kind

of cruelty would constitute offence has been defined under the

explanation. As per first definition contained in clause (a) – it means a

willful conduct of such a nature which is likely to drive the victim

woman to commit suicide or to cause grave injuries to health and life,

limb or health (mental or physical). The other definition of cruelty is in

13 Page 13 Crl.A. No.1358 of 2008

clause (b) and is attracted when a woman is harassed with a view to

coercing her or any of her relation to meet any unlawful demand for

any property or valuable security or is on account of failure to meet

such demand.

17. In the present case after noticing the injuries on the person of

victim which is not at all explained by the appellant husband

although in the fateful night he and the deceased slept together in the

same room before she consumed poison, the High Court has come to

a well considered finding in paragraph 42 of the impugned judgment

that the deceased was being harassed both physically and mentally

and in direct as well as indirect ways for non compliance with the

demand of the accused for Rs.1,00,000/- for investment in his wine

business. The High Court found that such harassment falls squarely

under clause (b) of the explanation of Section 498-A of the IPC. We

find no good reason to take a different view.

18. The High Court after recording the aforesaid finding proceeded to

consider whether Section 306 of the IPC is also attracted against the

appellant or not. Since the High Court had, on relevant material

returned a finding of guilt under Section 498-A of the IPC, it found

the circumstances of the case right and proper for resorting to Section

113A of the Evidence Act which permits raising of presumption as to

abetment to suicide by a married woman. Such a statutory

14 Page 14 Crl.A. No.1358 of 2008

presumption though discretionary, may be presumed by the Court in

appropriate cases where the question of abetment of suicide by a

woman is under consideration in respect of her husband or any of his

relative and if the suicide has been committed within seven years of

marriage, provided the husband or such relative had subjected her to

cruelty.

19. Since the High Court had recorded a finding against the appellant

of causing cruelty to the deceased for his conviction under Section

498-A, all the essential ingredients for raising of presumption under

Section 113A of the Evidence Act were clearly made out. But the issue

raised before us is whether the High Court was justified in resorting to

exercise such a discretion as was available to it under Section 113A or

not.

20. That the Court has a discretion in the matter of resorting to

presumption is clear from the plain words used in that Section – “the

Court may presume” (emphasis supplied). The law on this issue is

also well settled and therefore needs no elaborate discussion but at

this stage the relevant case laws cited by learned senior counsel for

the appellant need to be taken note of.

21. Reliance has been placed on behalf of appellant on the judgment

of this Court in the case of Hans Raj v. State of Haryana3. In this

3 (2004) 12 SCC 257

15 Page 15 Crl.A. No.1358 of 2008

case it was reiterated that Section 113A of the Evidence Act vests a

discretion in the Court to raise such a presumption having regard to

all the other circumstances of the case. On evidence and facts of that

case it was found that the nature of cruelty proved in that case was

not such as is likely to drive the women to commit suicide or to cause

grievous injury etc. Reliance was also placed upon the case of

Gangula Mohan Reddy v. State of Andhra Pradesh4. The facts of

that case were entirely different and required interpretation of the

term “abetment” as defined under Section 107 of the IPC. In that case

the victim was a servant of the accused and the case did not require

any examination of inter-dependence and inter-connectivity of Section

498A and 306 of the IPC or of Section 113A of the Evidence Act.

22. Reliance was also placed upon case of M. Mohan v. State5. The

Court followed the general law with regard to ingredients of abetment

in the context of Section 306 of the IPC and quashed the prosecution

of some of the relations of the husband on the peculiar facts of the

case which disclosed that there was no allegation of any dowry

demand or instigation against those appellants although they were

relatives of the husband. In the case of Mangat Ram v. State of

Haryana6, this Court acquitted the appellant who was husband of the

deceased for the offences under Sections 498-A and 306 of the IPC on 4 (2010) 1 SCC 750 5 (2011) 3 SCC 626 6 (2014) 12 SCC 595

16 Page 16 Crl.A. No.1358 of 2008

the ground that the prosecution had not succeeded in establishing the

offences. The accused had merely left the deceased wife in the

matrimonial home in the company of his parents while proceeding to

report for duty as a constable to another place. This Court held that

such action would not amount to abetment to commit suicide.

23. The aforesaid case laws do not lay down any proposition of law

which may warrant interference with the views of the High Court in

the impugned judgment. In the case of Narayanamurthy v. State of

Karnataka7 the law was reiterated that if on appreciation of evidence

two views are possible then the appellate court should not interfere

with the judgment of acquittal in favour of the accused. There is no

quarrel with the said proposition. The High Court was aware of such

legal principle and keeping the same in mind, it has discussed the

evidence for coming to a conclusion that the findings of the trial court

leading to acquittal were fully unwarranted and it is not a case where

two views are possible. Hence the High Court proceeded to convict the

appellant for the offences under Sections 498-A and 306 of the IPC.

24. Once the prosecution succeeds in establishing the component of

cruelty leading to conviction under Section 498A, in our view only in a

rare case, the Court can refuse to invoke the presumption of

abetment, if other requirements of Section 113A of the Evidence Act

7 (2008) 16 SCC 512

17 Page 17 Crl.A. No.1358 of 2008

stand satisfied. This proposition is amply supported by the view

taken by the three-Judge Bench of this Court in the case of K. Prema

S. Rao and Anr. (Supra). Further, the High Court has given good

reasons on the basis of facts brought on record through evidence for

exercising the discretion of invoking the presumption under Section

113A of the Evidence Act and thereafter it has discussed in detail the

explanations given by the appellant in the initial version by way of

Unnatural Death Report as well as the later explanations. The High

Court found the later explanations unacceptable and the initial

explanation that the deceased committed suicide because she was not

permitted to go to her mother’s place does not inspire confidence and

has rightly been rejected by the High Court. Only for such a trivial

matter, a hale and hearty young woman having a ten months old son

and a pregnancy of twenty weeks is not at all expected to take her life.

The appellant not only gave absolutely no explanation for the injuries

on the person of the deceased, rather he chose to conceal them by

keeping mum. Clearly the appellant failed to rebut the presumptions

raised against him under Section 113A of the Evidence Act. Having

gone through the relevant facts and the reasonings of the trial court

we are not persuaded to take a different view.

25. In the result the appeal must fail. We order accordingly. As a

consequence, the bail bonds of the appellant are cancelled. He be

18 Page 18 Crl.A. No.1358 of 2008

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.

19

Page 19