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Saturday, January 3, 2015

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.


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