//
you're reading...
legal issues

CRIMINAL APPEAL NO. 46 OF 2007 A K DEVAIAH ….Appellant Versus STATE OF KARNATAKA ….Respondent

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 46 OF 2007

A K DEVAIAH ….Appellant

Versus

STATE OF KARNATAKA ….Respondent

JUDGMENT

M.Y. EQBAL, J.

The instant Criminal Appeal is directed against the judgment and
order dated 25-8-2005 passed by the High Court of Karnataka at Bangalore in
Criminal Appeal No. 828 of 1999 whereby setting aside the judgment of
acquittal passed by the trial court allowed the appeal filed by State and
the accused-appellant herein has been convicted for the offences
punishable under Sections 3, 4, and 6 of the Dowry Prohibition Act and
Sections 498-A and 304-B of the Indian Penal Code (in short, ‘IPC’). The
XXV Additional City Civil and Sessions Judge, Bangalore had acquitted the
accused of the offences punishable under aforesaid sections.

2. The prosecution case in a nutshell is that one Smt. Leelavati was
married to the appellant on 16.4.1989 and was living in the house of the
appellant at Konanakunte in Bangalore. Besides attending the household
chores, she was gainfully employed in a private company. Even according
to the Appellant, there used to be wordy altercations between him and the
deceased since about the three months before her death (at the age of 28
years). These altercations between him and the deceased, according to the
appellant, were regarding there being no indication of her becoming
pregnant after the marriage. Further case of the prosecution is that
before marriage of the deceased with the appellant, negotiations were held,
wherein the appellant had demanded dowry in the form of cash amounting to
Rs 15,000/- as well as gold and silver ornaments. Pursuant to such
demand made by the appellant, it is stated that a part of the dowry amount
was given to the appellant before marriage and a further amount was given
to him at the time of the marriage. All the ornaments demanded by the
appellant, except a pair of gold bangles, were given to the appellant.
The balance of dowry was agreed or promised to be given after the marriage.
The appellant was also in the habit of consuming liquor. After marriage,
the deceased had been subjected to mental and physical torture over certain
issues including the one for demand of balance of dowry.

3. The deceased had complained to her brother and sister as well as to
her brother-in-law about the ill-treatment meted out on her by the
appellant and ultimately, the deceased being unable to bear any more
torture of the appellant, committed suicide by setting herself on fire in
their house at about 5:00 AM on 16-3-1990 i.e., within a year of marriage.
Appellant himself informed about the unnatural death of the deceased to the
SHO of the jurisdictional Police Station at about 7:10 AM and a case
regarding the unnatural death was registered. Further investigation of
the matter was done by the Investigating officer (PW 10) and the inquest
proceedings were held on the dead body of the deceased by the Taluka
Executive Magistrate. In the course of such proceedings, he also recorded
the statement of the blood relatives of the deceased. On the basis of the
materials disclosed during the inquest proceedings, a suo motu case was
registered against the appellant for the aforesaid offences and FIR was
lodged. The dead body of the deceased was subjected to postmortem
examination by the Doctor (PW6) on 17.3.1990 and it was found that the dead
body was partially pugilistic and smelled kerosene. The face, chest and
upper limbs of the deceased were blackened and charred. Second and third
degree burns were present all over the body, except over both feet. Heat
ruptures were present over front of the left thigh and back of right
middle, ring and little finger. The deceased had sustained 97% ante-mortem
burns and death of the deceased was due to shock as a result of the burns
sustained. However, the doctor did not find any symptoms of pregnancy.

4. Appellant was arrested on 18-3-1990 and was subjected to
interrogation by the Investigating Officer (PW 10). During the course of
interrogation, appellant furnished certain information and pursuant to such
information, the appellant along with Investigating officer, PW 4 and other
panchas went to a pawn broker’s shop, where, he recovered the ornaments of
the deceased, which were pledged by the appellant.

5. In order to substantiate the case, the prosecution examined 11
witnesses, whereas in defence, 2 witnesses were examined. The appellant,
when examined under section 313 Cr.P.C., has denied all the incriminating
circumstances appearing against him in the prosecution evidence. He,
however, admitted that he furnished the information about unnatural death
of his wife to the police and a case regarding unnatural death of the
deceased was registered at the police station. On being questioned about
the prosecution evidence adduced in the case, accused-appellant has stated
as under:-

“We belong to kodava community. In our community there is no custom of
giving and taking dowry. In our community half the expenses is borne by
the bridegroom and half is borne by the bride’s side. I have never
demanded dowry, I have not harassed my wife for bringing dowry. The
witnesses are giving false deposition. Even after 9 months of marriage my
wife did not conceive. There was no indication in this regard either and
for this reason I requested to consult a doctor and she was offended by
this. For this reason alone she might have committed suicide.”
6. Considering the material evidence placed on record by the prosecution
and after hearing both sides, the trial court acquitted the accused-
appellant of the charges against him holding that:-

“The evidence adduced by the prosecution merely raised suspicion that
something on the part of the accused might have prompted the deceased to
commit suicide. However, that evidence is not sufficient to positively say
that the alcoholic behavior of the accused, his demand of dowry, his taunts
for not conceiving the child has the cumulative effect of the deceased
leading her to commit suicide.”
7. Dissatisfied and aggrieved by the decision of the trial court, State
preferred appeal under Section 378(1) and (3), Cr.P.C before the High
Court. After hearing learned counsel appearing on either side, perusing
the judgment of the trial court and re-appreciating the evidence on record,
High Court, in the impugned judgment, opined that the trial court has
approached the entire matter in a spirit of distrust and prosecution and
its judgment is based upon conjectures, surmises and suspicions. Setting
aside the acquittal judgment passed by the trial court and allowing the
appeal of the State, the High Court convicted the appellant for the
offences under Sections 3, 4 and 6 of Dowry Prohibition Act and Section 498-
A and 304-B, IPC. High Court sentenced the accused-appellant for the
offence under Section 304-B, IPC to undergo imprisonment for a period of 7
years and for the offence under Section 3 of Dowry Prohibition Act, High
Court also awarded sentence of 5 years and fine of Rs. 15000/- and in
default of payment of such fine, to undergo further sentence for a period
of 2 years. Appellant was further directed to return the dowry amount of
Rs 15000/- as well as the gold ornaments, failing which, an amount equal to
value of the gold ornaments and Rs. 15000/- may be recovered as if it were
the fine imposed by the Court in accordance with the provisions contained
under Sections 421 and 422, Cr.P.C. Hence, present appeal by special
leave by the accused.

8. We have heard learned counsel for the appellant as well as for the
State of Karnataka and perused the papers placed before us. Learned
counsel appearing for the accused-appellant submitted that appellant’s wife
committed suicide in the kitchen in early hours of the day by setting
herself on fire after pouring kerosene on herself, and the appellant within
a period of two hours reported the incidence of unnatural death to the SHO
of the jurisdictional police station. An FIR was registered on the
statement given at the time of inquest proceedings by PWs 1 to 3, who are
relatives of the deceased. It is contended that the trial court compared
the statements of these witnesses at the time of inquest with the
deposition given in the Court and held that these witnesses had not
mentioned the facts about dowry harassment etc. The evidence would show
that the jewellery and cash were given as gifts and to help the appellant
to meet the marriage expenses and not as dowry. It is further contended
that the High Court has placed reliance on the deposition of these
witnesses without comparing their statement given at the time of inquest.
The High Court has also not appreciated that there is absolutely no
evidence of harassment or cruelty soon before the death. It is submitted
on behalf of the appellant that the High Court has drawn the presumption
under Section 113-B of the Indian Evidence Act though the ingredients of
the offences were not proved and it was not shown by the prosecution that
the appellant treated the deceased with such cruelty and subjected her to
such harassment to drive her to commit suicide.
9. It has been further submitted on behalf of the appellant that the
deceased and the accused both belonged to Kodava community and, as admitted
by the prosecution witnesses themselves, there was no such custom of demand
and acceptance of dowry in Kodava community. It has been further submitted
that PWs 1 to 3 are the close relatives of the deceased and they are highly
interested in the outcome of the prosecution case. Present one is a case
where the independent persons, who were present at the time of the marriage
negotiations, were not examined and there is no explanation on the side of
the prosecution as to why the independent witnesses were not even cited in
the chargesheet. Although PW1 had given description of the gold ornaments,
but he did not give actual amount alleged to have been demanded by the
appellant. Whereas PW2, who was not present at the time of the marriage
negotiations, gave the exact figure of amount that was demanded by the
appellant.

10. It is also contended on behalf of the appellant that the evidence of
the prosecution witnesses themselves would show that the amount that was
given to the appellant was towards the expenses for the marriage and that
being so, it cannot be termed as dowry. The same is the case with regard
to the ornaments that were alleged to have been given by PW-1 at the time
of the marriage. Their evidence would show that all these ornaments were
given voluntarily as per the custom and that being so, they cannot be
termed as dowry. It is further contended that the fact of recovery of
ornaments at the instance of the accused has only been deposed by the
Investigating Officer PW-10, but his evidence being incomplete, the same is
not admissible in law. Further these ornaments were also not got
identified through PWs 1 to 3. Even the pawnbroker, with whom the said
ornaments were pledged, has not been examined in the case. It is contended
on behalf of the appellant that the recovery evidence is wholly inadequate
and not satisfactory.

11. Learned counsel for the appellant contended that although the
deceased had died hardly within 11 months of her marriage, but there is no
evidence on record to show that soon before her death, there was harassment
for dowry. The evidence of PWs 1 to 3, if scrutinized carefully, besides
being inconsistent and contradictory, would not establish the essential
ingredients to constitute an offence under Section 304-B, IPC, that soon
before her death the deceased was subjected to cruelty over a demand for
dowry. There is no positive evidence on record to show that the accused
used to harass the deceased in his house in a drunken state. Learned
counsel for the appellant made his best efforts to persuade us to hold that
the High Court erred in reversing the judgment and order of acquittal
passed by the trial court.

12. Per contra, learned counsel appearing for the respondent-State of
Karnataka submitted that prior to the marriage, the appellant had demanded
dowry in the form of cash and ornaments etc. and PWs. 1 to 3 have
consistently spoken about the demand and acceptance of dowry and also about
the deceased being subjected to mental and physical cruelties by the
appellant in their house. After the marriage, the appellant was coercing
his wife to bring the balance of dowry and she being unable to bear the
torture had committed suicide. The appellant had even pledged the
ornaments that were given to the deceased at the time of marriage. It is
vehemently contended by the State that PWs. 1 to 3 being the close
relatives of the deceased were the most competent and natural witnesses to
speak the aforesaid fact and there was no reason to disbelieve them.

13. As noticed above, the High Court while allowing the appeal, set aside
the judgment of acquittal passed by the trial court and convicted the
appellant for the offences punishable under Sections 498A and 304B, IPC and
Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. Before coming to
the judgment of the High Court, we would like to quote Section 304-B, IPC
and Section 113-A and 113-B of the Evidence Act.

“304B, IPC: Dowry death.—

(1) Where the death of a woman is caused by any burns or bodily injury or
occurs otherwise than under normal circumstances within seven years of her
marriage and it is shown that soon before her death she was subjected to
cruelty or harassment by her husband or any relative of her husband for, or
in connection with, any demand for dowry, such death shall be called “dowry
death”, and such husband or relative shall be deemed to have caused her
death.

Explanation.—For the purpose of this sub-section, “dowry” shall have the
same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of
1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a
term which shall not be less than seven years but which may extend to
imprisonment for life.”
Sections 113A and 113B of the Evidence Act, 1872 read as under:-

“113A. 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. tc “1[113A. 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 498A of the Indian Penal Code (45 of 1860).] tc
“Explanation.—For the purposes of this section, “cruelty” shall have the
same meaning as in section 498A of the Indian Penal Code (45 of 1860).
113B. Presumption as to dowry death.—When the question is whether a person
has committed the dowry death of a woman and it is shown that soon before
her death such woman has been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry, the Court
shall presume that such person had caused the dowry death. tc “2[113B.
Presumption as to dowry death.—When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her
death such woman has been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry, the Court shall presume
that such person had caused the dowry death.” Explanation.—For the purposes
of this section, “dowry death” shall have the same meaning as in section
304B, of the Indian Penal Code, (45 of 1860).] tc “Explanation.—For the
purposes of this section, “dowry death” shall have the same meaning as in
section 304B, of the Indian Penal Code, (45 of 1860).”
14. We also take notice of Sections 3, 4 and 6 of the Dowry Prohibition
Act, 1961. The word ‘Dowry’ has been defined in Section 2 of the Act,
which means any property or valuable security agreed to be given either
directly or indirectly by one party to a marriage to the other party to the
marriage or by the parents of either party to a marriage. However, it
does not include ‘Dower or Mehar’ in the case of persons to whom Muslim
Personal Law applies. Section 3 of the Act is a penal provision which
makes giving or taking or abetting the giving or taking of dowry
punishable. The demand of dowry directly or indirectly from the parents or
other relatives or guardians of bride or bridegroom has also been made
punishable under Section 4 of the Act.

15. Section 304B, IPC applies where the death of a woman is caused by any
burns, bodily injury or occurs otherwise than under normal circumstances,
within seven years of her marriage and the cause of death is because the
women was subjected to cruelty or harassment by her husband or her
husband’s family or relatives and such harassment should be in relation to
a demand of dowry. Section provides the presumption under which husband or
relatives had committed the offence of dowry death and render them liable
for punishment unless the presumption is rebutted.

16. Interpreting the above provision, this Court in Bansi Lal vs. State
of Haryana, (2011) 11 SCC 359, observed:-

“19. It may be mentioned herein that the legislature in its wisdom has used
the word “shall” thus, making a mandatory application on the part of the
court to presume that death had been committed by the person who had
subjected her to cruelty or harassment in connection with any demand of
dowry. It is unlike the provisions of Section 113-A of the Evidence Act
where a discretion has been conferred upon the court wherein it had been
provided that court may presume abetment of suicide by a married woman.
Therefore, in view of the above, onus lies on the accused to rebut the
presumption and in case of Section 113-B relatable to Section 304-B IPC,
the onus to prove shifts exclusively and heavily on the accused. The only
requirements are that death of a woman has been caused by means other than
any natural circumstances; that death has been caused or occurred within 7
years of her marriage; and such woman had been subjected to cruelty or
harassment by [pic]her husband or any relative of her husband in connection
with any demand of dowry.”
17. Section 113A of the Evidence Act and Section 107, IPC have also been
considered by this Court in the case of Thanu Ram vs. State of M.P., (2010)
10 SCC 353, this Court held as under:-

“25. In our view, the element of instigation as understood within the
meaning of Section 107 IPC is duly satisfied in this case in view of the
provisions of Section 113-A of the Evidence Act, 1872, which provides for a
presumption to be arrived at regarding abetment of suicide by a married
woman and certain criteria are also laid down therein. The first criterion
is that such suicide must have been committed within 7 years from the date
of the victim’s marriage. Since Hirabai committed suicide in the 4th year
of her marriage, such condition is duly satisfied. The second condition is
that the husband or such relative of the husband had subjected the victim
to cruelty which led to the commission of suicide by the victim. Section
113-A indicates that in such circumstances, the court may presume, having
regard to all the circumstances of the case, that such suicide had been
abetted by her husband or by such relative of her husband.”
[pic]

18. In the case of Rajesh Bhatnagar vs. State of Uttarakhand, (2012) 7
SCC 91, this Court held as under:-

“15. Before we examine the merit or otherwise of this contention, it will
be useful to state the basic ingredients of Section 304-B IPC. The
requirement of Section 304-B is that the death of a woman be caused by
burns, bodily injury or otherwise than in normal circumstances, within
seven years of her marriage. Further, it should be shown that soon before
her death, she was subjected to cruelty or harassment by her husband or her
husband’s family or relatives and thirdly, that such harassment should be
in relation to a demand for dowry. Once these three ingredients are
satisfied, her death shall be treated as a “dowry death” and once a “dowry
death” occurs, such husband or relative shall be presumed to have caused
her death. Thus, by fiction of law, the husband or relative would be
presumed to have committed the offence of dowry death rendering them liable
for punishment unless the presumption is rebutted. It is not only a
presumption of law in relation to a death but also a deemed liability
fastened upon the husband/relative by operation of law.

xxxxxxx
34. Furthermore, the entire conduct of the accused is such as to lead to
only one plausible conclusion i.e. all the accused together had caused the
death of the deceased. The arguments of the defence are strange because if
the accused had attempted to save the deceased, then he would have suffered
some burn injuries. But as per the above details of injuries, there was not
even a single burn injury found on the body of the accused Mukesh. These
injuries were such that one could suffer only if he was struggling or
fighting with another person, as then alone could he suffer such bruises or
minor cuts. [pic]Absence of any cooking material in the kitchen is another
very important circumstance which would belie the stand of the accused.”
19. Admittedly, the marriage was solemnized on 16.4.1989 and the incident
took place on 16.3.1990 i.e. within a period of eleven months only. From
the evidence it reveals that the altercation between the appellant and the
deceased started three months before the incident when there was no
indication of the deceased becoming pregnant after marriage. According to
the prosecution, before the marriage of the deceased with the appellant,
negotiations were held with regard to the demand of dowry in the form of
cash as well as gold and silver ornaments. It further reveals that part of
the dowry amount was given to the appellant before marriage and further
amount was given at the time of marriage. The prosecution further led
evidence that the appellant was in the habit of consuming liquor and
further the deceased had been subjected to physical and mental cruelty over
certain issues including demand of balance dowry. The deceased being not
in a position to bear more torture and cruelty pertaining to demand of
dowry committed suicide by setting herself on fire. The sister, brother
and sister’s husband of the deceased along with other witnesses had been
examined as PWs 1, 2 and 3, who have consistently deposed about the demand
and acceptance of dowry and also about the deceased being subjected to
mental and physical cruelty by the appellant in their house.

20. We have gone though the evidence both oral and documentary brought on
record. We have also analysed and scrutinized the evidence and the material
available on record. In our considered opinion, the High Court has
correctly recorded the finding based on evidence and found the appellant
guilty of commission of offence. The judgment of acquittal passed by the
trial court is wholly perverse and based on conjecture and surmises.

21. After giving our thoughtful consideration in the matter, we are in
full agreement with the findings recorded by the High Court and in our
opinion the impugned judgment needs no interference by this Court. The
appeal preferred by the accused, therefore, stands dismissed.

…………………………….J.
(M.Y. Eqbal)

…………………………….J.
(Pinaki Chandra Ghose)
New Delhi,
October 14, 2014.

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,730,407 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,853 other followers

Follow advocatemmmohan on WordPress.com