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Thursday, July 18, 2013

When the prosecution failed to prove the basic case of harassment or demand of dowry , it was not open to convict the accused on presumption referring to sec.113 A or 113 B of the Evidence Act = We find that there are contradictory statements which cannot be stated to be a minor contradiction as was suggested by the learned Addl.SSP before the Appellate Court. The improvement in the statements of PW.1 and 12 is clear. The allegation about the demand of dowry of Rs.1,50,000/­ and 800 gms. of gold ornaments and harassment and torture made by accused No.1 on deceased was not disclosed and mentioned in the First Information Report or before the Tahsildar(PW.21) who recorded the initial evidence. In Ex.P.2 and complaint Ex.P.3 absolutely there is no evidence to show that Rs.25, 000/­ was demanded and Rs.10,000/­ was given to accused No.1 either at Benali or at Mysore. Further, payment of Rs.50,000/­ and 500 gms. of gold to accused No.1 as dowry was also not established beyond reasonable doubt. Once the prosecution failed to prove the basic ingredients of harassment or demand of dowry and the evidence brought on record were doubted by the trial court, it was not open to the High Court to convict accused No.1 on presumption referring to Section 113­A or 113­B of the Evidence Act. The presumption of innocence of the accused being primary factor, in absence of exceptional compelling circumstances and perversity of the judgment, it was not open to the High Court to interfere with the judgment of the trial court in a routine manner. For the reasons aforesaid, we set aside the impugned judgment dated 4th January, 2006 in Criminal Appeal No.1042 of 1999 passed by the High Court, allow the appeal by restoring the judgment dated 2nd August, 1999 of the trial court. The appellant is on bail, his bail bonds stand discharged.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40515
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.937 OF 2006
S. ANIL KUMAR @ ANIL KUMAR GANNA  … APPELLANT
VERUS
STATE OF KARNATAKA … RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This   appeal   has   been   preferred   by   the   appellant
against   the   judgment   dated   4th  January,   2006   in   Criminal
Appeal No.1042 of 1999 passed by the learned Single Judge
of the High Court of Karnataka at Bangalore, whereby the
learned   Single   Judge   reversed   the   judgment   of   acquittal
dated 2nd  August, 1999 passed by the Xth Additional City
Sessions Judge at Bangalore in S.C.No.86 /96 and convicted
and sentenced the appellant for the offences under Section
304­B and Section 498­A of the IPC.Page 2
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The   Appellate   Court   imposed   sentence   of   rigorous
imprisonment   for   seven   years   for   the   offence   punishable
under Section 304­B of the IPC and rigorous imprisonment
for   two   years   and   to   pay   a   fine   of   Rs.10,000/­,   in
default, to undergo simple imprisonment for three months
for the offence punishable under Section 498­A of the IPC.
The   Appellate   Court   further   ordered   that   the   sentences
shall run concurrently.
2. The case of the prosecution is briefly stated below:
The   complainant­Parasmal's   sister   Meena   Kumari   was
married to accused No.1, Anil Kumar on 13th December, 1990.
In   relation   to   the   said   marriage   a   demand   was   made   by
accused   Nos.1   and   3   to   5   for   dowry   of   an   amount   of
Rs.1,50,000/­ and gold weighing 800 gms. It was agreed by
the bride's party to pay a sum of Rs.50,000/­ and 500 gms.
of   gold   as   dowry   and,   accordingly,   the   marriage   was
performed. After the marriage, Meena Kumari came to know
that   her   husband   Anil   Kumar,   accused   No.1   (appellant
herein) had developed illicit intimacy with accused No.2,
Sumithra   alias   Savitri,   wife   of   Kailaschand,   (PW­8).
After some time, accused Nos.1 and 3 to 5 began to treatPage 3
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Meena Kumari  with cruelty since she failed  to bring the
amount   demanded   by   accused   No.1   for   expansion   of   his
business.     Whenever   Meena   Kumari   came   to   her   brother's
house, she complained about ill treatment meted out to her
by accused No.1. After some days, the amount demanded by
accused No.1 was given, but his demand did not subside. On
20th  January, 1992 at about 7.00 a.m., Meena Kumari took
milk and went inside her house. After some time,  accused
No.1, Anil Kumar left the house. Thereafter Meena Kumari
came   out   of   the   house   and   requested   Smt.   Kamalamma,   a
neighbour to bring a nipple for putting the same to tap.
When Kamalamma brought the nipple, she found the door of
the house closed.   Meena Kumari did not open the door in
spite of knocking by  Kamalamma. At that time, Sarojamma,
(PW­6) was also present. At about 9.00 a.m. the mother of
PW­6, Kailas and Anil Kumar came and knocked the door, but
the door was not opened.  Despite their efforts, door was
not   opened   and   there   was   no   response   from   inside.
Therefore, Anil Kumar put his hand through the ventilator
and   unlatched   the   door   and   opened   it.   When   they   went
inside,   they   found   that   Meena   Kumari   had   hanged   herself
from the  fan and  had committed suicide. The news spreadPage 4
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and later, a friend of the accused Sri Shanthilal (PW­9)
came   and   he   gave   on   phone   a   message   to   Meena   Kumari's
elder   brother   S.     Parasmal   (PW­1),   who   was   residing   in
Mysore. Intimation sent to him was that Meena Kumari was
seriously ill and they should come immediately. On their
way   to   Bangalore,   Parasmal   (PW­1),   learnt   that   Meena
Kumari   had   committed   suicide.   They   reached   the   house   of
the accused at about 5.00 p.m. and after ascertaining the
matter, Parasmal    (PW­1) went to the Police Station and
informed   the   Police.   The   Police   came   to   the   house   and
after inspecting the spot, took the complaint of PW­1. On
the basis of the same, he registered a case in Cr.No.33/92
against the accused Nos.1 and 2. Sri. M.V. Chengappa, PSI,
Hebbal   Police   Station   (PW­23)   started   with   the
investigation and further investigation was taken up by,
Praveena,   ACP,   Yeshwanthpur   Sub­Division   (PW­24).   The
investigation disclosed that accused Nos.3 to 5 were also
involved in the matter. Therefore, they were added in the
list of the accused. After further investigation by S.V.D.
Souza (PW­25), Police Inspector, ADC, COD, Bangalore and
his successor,   B. Venkataramana, Police Inspector, ADC,
COD,   Bangalore   (PW­26)   a   chargesheet   was   placed   againstPage 5
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the accused for the offences punishable under Section 498­
A and 304­B of the IPC and Sections 3,4 and 6 of the Dowry
Prohibition Act, 1961.
3. The   accused   pleaded   not   guilty   of   the   charges   and
claimed to be tried.   The prosecution examined in all 26
witnesses and closed its case.  As per prosecution PWs­1,
10,11,12,13,15   and   18   were   examined   with   regard   to   the
payment   of   dowry.   To   substantiate   the   allegation   of   the
dowry   harassment   they   examined   PWs­10,11,12,13,14,16   and
21 and other witnesses who saw the body hanging with fan.
PWs­2,   7   and   19   were   Panch   witnesses.   PW­17,   Dr.
Thirunavakkarasu was the Professor, Forensic Medicine, who
conducted   the   post­mortem   examination.   PW­21,   was   the
Taluk   Executive   Magistrate,   who   conducted   inquest
proceedings. PWs.22 to 26 are the Police Officers.
4.   The   accused   in   their   statements   under   313   Cr.P.C.
denied   the   allegations   made   against   them.   On   behalf   of
defence one Vimal Kumar (DW­1) was examined to show that
there was no demand for dowry and no harassment was made
to Meena Kumari. It was suggested on behalf of the defence
that Meena Kumari had extra affinity towards PW­10, AshokPage 6
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Kumar   Jain   and   perhaps   on   the   objection   raised   by   the
accused she might have committed suicide.
5.  The trial court on appreciation of evidence on record
came   to   hold   that   the   statements   of   material   witnesses,
PW­1 and PW­12 and some others are contradictory and there
statements   are   not   trustworthy.   In   view   of   such   finding
the trial court acquitted the accused of all the charges
levelled against them.
6. One of the reasons shown by the trial court to come to
the   conclusion   that   the   statements   are   not   trustworthy,
was   that   PW­1,   complainant   nowhere   mentioned   in   the
complaint   that   demand   of   Rs.1,50,000/­   in   cash   and   800
gms. of gold as dowry was made as pre­condition to marry
Meena Kumari.  Such allegations were also not made before
the Tahsildar (PW.21), as evident from the observation of
the trial court:
“12.....It   is   an   undisputed   fact   that
nowhere   in   the   complaint   Ex.P3,   it   is
mentioned that the accused persons demanded
Rs.1.5 lacks and 800 grams of gold as dowry
as   a   pre­condition   to   marry   the   deceased
Meenakumari.   In   the   second   para   of   the
complaint, Ex.P.3, it is mentioned that the
marriage was done as per their request and
that to their satisfaction. At the time of
marriage,   they   gave   500   grams   of   goldPage 7
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ornaments   and   Rs.50,000/­   cash   and
household articles, further, nowhere in the
complaint Ex.P.3 any mentioned is made with
regard to the payment of Rs.10,000/­ during
1991   to   the   first   accused   and   subsequent
payment of Rs.25,000/­ to the first accused
in the house of PW. at Mysore........ Now I
will   see   the   cross­examination   of   PW.21,
the Tahsildar. He states that PW.1 has not
stated before him that the accused persons
demanded   800   grams   of   gold   and   Rs.1.50
lacks of as dowry. Likewise, PW.1 has not
stated   before   him   that   the   first   accused
and his family members participated in the
marriage talks. He admits that PW.10 stated
before him vide Ex.D.2. He admits that PW.1
has   not   stated   before   him   that   the   third
accused sent deceased Meenakumari to bring
the balance of Rs.1.00 lack and 300 grams
of   gold.   Likewise   PW.1   has   not   stated
before   him   that   he   gave   Rs.10,000/­   to
accused   Nos.1   and   3   and   sent   deceased
Meenakumari.   He  also   admits  that   PW.1   has
not   stated   before   him   that   PW.1   went   to
Devgarh and requested accused No.3 to send
Meenakumari with him for which he refused.
He   also   states   that   PW.1   has   not   stated
before   him   that   he   sent   his   brother
Sampathlal to bring Meenakumari and that he
brought her to his house at Mysore in June,
1991. Likewise, he has also not stated that
the   first   accused   did   not   take   back
Meenakumari to his house and therefore she
stayed in her house for about 2 ½ months,
PW.1   has   not   stated   before   PW.21   that
Meenakumari was telling before him that she
was insulted by her in­laws for having not
taken   the   dowry   articles.   It   is   also
admitted   by  PW.21   Tahsildar  that   PW.1   has
not   stated   before   him   during   November,
1991,   accused   Nos.1   and   2   and   one
Sampathlal came to his house and his father
PW.22   gave   Rs.25,000/­   to   the   first
accused.   PW.21   also   states   that   PW.1
Parasmal has not specifically stated phone
that   the   second   accused   was   ill­treating
her. PW.10 also not stated before PW.21 thePage 8
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Tahsildar   on   13.01.1992.   He   sent   Mohanlal
to Bangalore to see Meenakumari and that in
turn   they   told   him   about   the   harassment
given   to   her   by   the   first   accused.   PW.21
also states that PW.18 A. Suresh Jain has
not   stated   before   him   that   deceased
Meenakumari came to Mysore six months after
the   marriage   and   stayed   in   the   house   of
PW.1   for   about   1   ½   months   and   that   she
complained of harassment by her in­laws for
the same of dowry.
13. From   the   evidence   of   PW­21   the
Tahsildar   it   is   crystal   clear   that   at   no
point of time, either PW­1 or as matter of
fact,   this   PW­18   never   stated   that   the
accused   persons   made   a   demand   for   Rs.1.5
lakhs   and   800   grams   of   gold   as   dowry.
Likewise, whatever PW­1 states in the chief
examination are all omissions which were not
stated   before   PW­21   the   Tahsildar
immediately   after   this   incident.   Absolutely
there   is   no   substance   in   PWs­1   and   12
telling that they paid Rs.10,000/­ at Benali
and   Rs.25,000/­   in   the   house   of   PW­1   at
Mysore to the first accused”
7. The High Court relied substantially on the submission
made   by   the   learned   Addl.   SPP   appearing   for   the
prosecution   who   stated   that   there   are   abundant   material
placed   on   the   record   by   the   prosecution   including
depositions of PWs­1,10 to 16 and 21, many of whom spoke
about   the   demand   of   dowry,   payment   of   dowry   and   dowry
harassment.   It   was   contended   that   the   learned   Sessions
Judge because of minor discrepancies in the statements of
the prosecution witnesses has given the benefit of doubtPage 9
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in acquitting all the accused. The Sessions Judge had not
considered the provisions of Sections 113­A and 113­B of
the Evidence Act to be drawn against the accused. In view
of such argument, the Appellate Court re­appreciated the
evidence and observed as follows:
“8.Though   it   is   submitted   by   the   learned
Addl.SPP   that   there   is   abundant   material
regarding   demand   for   dowry   and   payment   of
dowry   for   the   settlement   of   marriage,   on
perusal   of   the   depositions   of
PWs.1,10,11,12,13,15 and 18, we are unable
to agree with his view. It is an admitted
fact that an amount of Rs.50,000/­ and gold
ornaments weighing about 500 gms were given
at   the   time   of   marriage.   The   evidence   is
not sufficient to raise a presumption that
this   payment   of   money   as   dowry   was   on
demand by the accused nos.1 and 3 to 5. As
rightly   observed   by   the   learned   Sessions
Judge, they appear to be customary presents
given from the bride's side.”
Again   on   re­appreciation   of   evidence   of
PWs.1,10,11,12,13,14,15,16   and   21,   the   Appellate   Court
while holding that it was unable to find the allegations
involve accused Nos.2 to 5 observed as follows:
“9.........It   is   not   the   case   of   the
prosecution   that   from   those   distant   places
the accused Nos.3 to 5 tutored accused No.1
to demand dowry or ill­treat Meena Kumari.
Therefore, we do not find sufficient ground
to   interfere   in   the   conclusion   of   the
learned   Sessions   Judge   with   regard   to   thePage 10
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demand for dowry payment of dowry and dowry
harassment so far as the allegations relate
to accused Nos.3 to 5.”
8. So   far   as   accused   No.2   is   concerned   she   being   a
neighbour's wife the trial court held that she cannot be
held   responsible   for   any   demand   of   dowry   or   dowry
harassment. The trial court acquitted all the accused No.1
to 5 for offences punishable under Sections 3,4 and 6 of
the Dowry Prohibition Act and accused Nos.2 to 5 for an
offence punishable under Section 498­A of the IPC with the
following observation:
“10.....Of   course,   a   suggestion   has   been
made that as informed by Meena Kumari, there
was illicit relationship between the accused
nos.1   and   2.   But   this   has   not   been
substantiated   by   any   material.   Merely
because some witness says that they learned
from   Meena   Kumari   that   there   was   illicit
relationship between accused Nos.1 and 2 and
of that it was the cause for marital discord
between accused nos.1 and Meena Kumari, that
cannot   be   accepted.   Considering   all   these
materials,   we   hold   that   the   acquittal   of
accused nos. 1 to 5 for offences punishable
under   Sections   3,4   and   6   of   the   Dowry
Prohibition Act and accused nos.2 to  5  for
an offences punishable under Sections 498­A
of the IPC does not need interference.”Page 11
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9. In spite of such finding referring to the statements
made   by   PWs.1,10   to   16   and   21   the   Appellate   Court   held
that   accused   No.1­appellant   herein   is   liable   to   be
convicted for the offences for dowry harassment and dowry
death and made the following observations:
“The   learned   Sessions   Judge   lost   sight   of
the   presumption   that   is   available   in
Sections 113­A and 113­B of the Evidence Act
and ignoring the evidence of PWs.1, 10 to 16
and   21,   held   that   there   was   no   dowry
harassment, so far as the allegation relates
to  the accused  no.1.  We find  absolutely no
reason   to   discard   the   evidence   of   these
witnesses   so   far   as   the   allegations   relate
to  the accused  no.1 and consequently  he is
liable   to   be   convicted   for   the   offences
under   Sections   498­A,   304­B   of   the   IPC.
Since   the   dowry   harassment   by   the   accused
nos.2   to   5   has   not   been   proved,   the
acquittal granted to them does not need any
interference.”
10. Learned   counsel   for   the   appellant   submitted   that   if
one view has been taken by the trial court which is not
perverse,   it   was   not   open   to   the   Appellate   Court   to
substitute   such   view   to   re­appreciate   the   evidence   for
coming to a different conclusion.
11. Per contra, according to the learned counsel for the
State, the High Court was right in reversing the judgmentPage 12
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of   acquittal   passed   by   the   trial   court   in   view   of
sufficient   evidence   of   PWs.10   to   16   and   21   recorded   to
show   that   the   appellant   has   subjected   deceased   to
harassment   due   to   which   she   was   compelled   to   commit
suicide.
12. This   Court   in   the   case   of    Rohtash   vs.   State   of
Haryana,  (2012) 6 SCC 589,  held that only in exceptional
cases where there are compelling circumstances and where
the  judgment in appeal is found to be perverse, the High
Court can interfere with  the order of acquittal.  In the
said   case   the   following   observation   was   made   by   this
Court:
“27. The High Court interfered with the
order of acquittal recorded by the trial
court. The law of interfering with the
judgment  of  acquittal  is   well  settled.
It   is   to   the   effect   that   only   in
exceptional   cases   where   there   are
compelling   circumstances   and   the
judgment   in   appeal   is   found   to   be
perverse, the   appellate   court   can
interfere   with   the   order   of   the
acquittal.   The   appellate   court   should
bear   in   mind   the   presumption   of
innocence   of   the   accused   and   further
that   the   trial   court’s   acquittal
bolsters   the   presumption   of   innocence.
Interference  in  a  routine  manner  where
the   other   view   is   possible   should   bePage 13
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avoided,  unless  there  are  good   reasons
for interference.”
13. We have gone through the evidence of the prosecution
witnesses   PWs.1,   10   to   16   and   21   relied   on   by   the
prosecution.  
We   find   that   there   are   contradictory
statements   which   cannot   be   stated   to   be   a   minor
contradiction   as   was   suggested   by   the   learned   Addl.SSP
before   the   Appellate   Court.   
The   improvement   in   the
statements of PW.1 and 12 is clear.  
The allegation about
the demand of dowry of Rs.1,50,000/­ and 800 gms. of gold
ornaments and harassment and torture made by accused No.1
on deceased was not disclosed and  mentioned in the First
Information   Report   or   before   the   Tahsildar(PW.21)   who
recorded   the   initial   evidence.  
 In   Ex.P.2   and   complaint
Ex.P.3   absolutely   there   is   no   evidence   to   show     that
Rs.25,   000/­   was   demanded   and   Rs.10,000/­   was   given   to
accused   No.1   either   at   Benali     or   at   Mysore.   Further,
payment   of   Rs.50,000/­   and   500   gms.   of   gold   to   accused
No.1 as dowry was also not established beyond reasonable
doubt.
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14. Once   the   prosecution   failed   to   prove   the   basic
ingredients   of   harassment   or   demand   of   dowry   and   the
evidence   brought   on   record   were   doubted   by   the   trial
court,   
it   was   not   open   to   the   High   Court   to   convict
accused No.1 on presumption referring to Section 113­A or
113­B of the Evidence Act.   
The presumption of innocence
of   the   accused   being   primary   factor,   in   absence   of
exceptional compelling circumstances and perversity of the
judgment, 
it was not open to the High Court to interfere
with the judgment of the trial court in a routine manner.
15. For the reasons aforesaid, we set aside the impugned
judgment dated 4th January, 2006 in Criminal Appeal No.1042
of   1999   passed   by   the   High   Court,   allow   the   appeal   by
restoring the judgment dated 2nd August, 1999 of the trial
court.   The   appellant   is   on   bail,   his   bail   bonds   stand
discharged.
…………………......…………………………….J.
(A.K. PATNAIK)
.......……………………………………………….J.
    (SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 3, 2013.

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