SATISH SHETTY versus STATE OF KARNATAKA

11. On the basis of relevant facts the High Court appears to be justified in holding that there is good explanation for the delay in lodging the FIR on 22.11.1993 because PW-15 delayed the inquest proceedings without valid reasons leading to delay in the postmortem examination as well and only on knowledge of the injuries etc. the mother of the deceased gathered strength to lodge the FIR. When the deceased died leaving a son often 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 Fl R 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 ifthe deceased has left behind children. The issues relating to their safety and custody 1 (1975)4 sec 153 =AIR 1915 sc 1252 SATISH SHETTY v. STATE OF KARNATAKA [SHIVA KIRTI SINGH, J.] often require higher priority. Occurrences of the present nature require lodging of criminal case against persons who are already in the category of relation by virtue of matrimonial ties through the deceased and it is not always easy to take a decision whether to lodge a criminal case against a relation or not. Hence in such cases the factum of delay has to be dealt with sympathetically keeping in mind the mental condition of the close relations of the victim. The trial court miserably failed on this count too.

12. The evidence of PW-6 mother of the deceased is well supported by PW-7 Pratap, a cousin of the deceased who had visited the deceased during Dushera holidays, a month prior to her death. He found that the deceased was getting continuous ill-treatment by her husband. He has deposed to the extent that the deceased requested PW-7 not to disclose the ill-treatment to her mother because she would get upset. The letters contained in Ex P-7 dated 27.9.1993 and exhibit D-3 dated 28.10.1993 have been discussed by both the Courts below. We are in agreement with the views of the High Court that those letters written respectively by the deceased to her mother and by sister of the deceased to the deceased, do not help the defence at all. The trial court had clearly adopted a perverse approach in appreciating those letters as if they are in favour of the defence. Further, the correct and logical inferences from these documents were rejected by the trial court in paragraph 37 of the judgment by again resorting to adverse inference on the incorrect ground that statements of PW-6 and PW-9 recorded by the Tehsildar at the time of conducting inquest were not produced before the Court. As already noticed earlier, these statements formed part of the inquest report and were available on record.

13. In view of aforesaid discussions we find no merit in the first contention that the judgment and order of the acquittal was not perverse or that it required no interference of the High Court. The views of the High Court on this issue are sound and we are in agreement that the judgment of the trial court suffered from such gross errors in approach and appreciation that it could not be saved on the principle that if two views are possible, there should be no interference with a judgment and order of acquittal.

14. So far as the second contention is concerned, the same needs to be noticed only for rejection. To be fair to the learned counsel, he has not dealt on this contention at any length nor has cited any judgment. c c 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 Kamataka 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. Pre ma S. Rao and another v. Yadia Srinivasa Rao and others~. 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 tJy 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 oflaw i.e. Sections 498-A and 306 of the lPC as well as Section I 13A of the Evidence Act which are extracted below: "Section 498-A. Husba11d or relative of husband of a 11•0111a11 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 ll'iljul 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 —- '(2003)JSCC217 SATISH SHETTY v. STATE OF KARNAT1~KA [SHIVA Kf1cffl SINGH, J.] 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.-lf 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 marriedwoman.-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. Expla11atio11.-For the purposes of this section, 'cruelty' shall have the same meaning as in Section 498-A of the Indian Penal Code."

16. On a plain reading of Section 498-A it transpires that if a married woman is subjected to cruelty by the husband or his relative, the offender is liable to be punished with the sentence indicated in the Section. But cruelty can be of different types and therefore what kind of cruelty would constitute offence has been defined under the explanation. As per first definition contained in clause (a)- it means a willful conduct of such a nature which is likely to drive the victim woman to commit suicide or to cause grave injuries to health and life, limb or health (mental or physical). The other definition of cruelty is in clause (b) and is attracted when a woman is harassed with a view to coercing her or any of her relation to meet any unlawful demand for any property or valuable security or is on account of failure to meet such demand.

17. In the present case after noticing the injuries on the person of victim which is not at all explained by the appellant husband although in the fateful night he and the deceased slept together in the same room before she consumed poison, the High Court has come to a well considered finding in paragraph 42 of the impugned judgment that the deceased was being harassed both physically and mentally and in direct c c 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 !PC, it found the circumstances of the case right and proper for resorting to Section 113A of the Evidence Act which permits raising of presumption as to abetment to suicide by a married woman. Such a statutory presumption though discretionary, may be presumed by the Court in appropriate cases where the question of abetment of suicide by a woman is under consideration in respect of her husband or any of his relative and if the suicide has been committed within seven years of marriage, provided the husband or such relative had subjected her to cruelty.

19. Since the High Court had recorded a finding against the appellant of causing cruelty to the deceased for his conviction under Section 498- A, all the essential ingredients for raising of presumption under Section l 13A of the Evidence Act were clearly made out. But the issue raised before us is whether the High Court was justified in reso11ing to exercise such a discretion as was available to it under Section I 13A 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 behalfofappellant on the judgment of this Court in the case of Hans Raj v. State ofHaryana3• In this case it was reiterated that Section l l 3A 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 ' (2004) 12 sec 2s1 SATISH SHETTY v. STATE OF KARNATAKA [SHIVA KIRTI SINGH, J.] etc. Reliance was also placed upon the case ofGangula Mohan Reddy v. State of Andhra Pradesh". The facts of that case were entirely different and required interpretation of the term "abetment" as defined under Section I 07 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 !PC or of Section I I 3A 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 forthe 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 Cou1i 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 Karnataka' 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 !PC.

24. Once the prosecution succeeds 'in establishing the component 't201oi 1 sec 750 '(2011 l 3 sec 626 "(2014) 12 sec 595 't2oosi 16 sec s12 c c 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 I I 3A of the Evidence Act. Having gone through the relevant facts and the reasonings of the trial court we are not persuaded to take a different view.

25. In the result the appeal must fail. We order accordingly. As a consequence, the bail bonds of the appellant are cancelled. He be taken into custody forthwith to serve out the remaining pa11 of the sentence as per law. Nidhi Jain Appeal dismissed.