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Friday, February 27, 2015

whether any direct link has been shown between dowry demand and death, in the case of Dinesh v. State of Haryana, 2014 (5) SCALE 641, the accused has been convicted under Sections 113B and 304B of the IPC, on the basis of presumption, since certain foundational facts were established. In the present case, it has been established from the versions of PW-1, PW-7, PW-8 and PW-9 that there was a demand for dowry and the deceased was being mentally harassed. 17. In the case of Thanu Ram v. State of M.P., (2010) 10 SCC 353, this Court has observed certain criteria with regard to establishment of guilt in the cases of dowry death. The first criterion being that the suicide must have been committed within seven years of marriage. The second criterion is that the husband or some relative of the husband had subjected the victim to cruelty, which led to the commission of suicide by the victim. This is when Section 113A of the Indian Evidence Act indicates that in such circumstances, the Court may presume, having regard to all the circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. In the present case that we are dealing with, both the above mentioned criteria have been satisfied, since the deceased died within seven years of marriage and with the version of the witnesses, it has been further proved that there was cruelty meted out to the deceased immediately before her unfortunate death. 18. We, therefore, see no reason to interfere with the impugned judgment passed by the High Court or the Trial Court. The appeal is accordingly dismissed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 186 OF 2010

Amrutlal Liladharbhai Kotak & Ors.                       .....Appellants

                                  :Versus:

State                               of                               Gujarat
.....Respondent





                                  JUDGMENT

Pinaki Chandra Ghose, J.

   1. This criminal appeal,  by  special  leave,  is  directed  against  the
      impugned common judgment dated June 17, 2009  of  the  High  Court  of
      Gujarat whereby the High Court dismissed Criminal  Appeal  No.1327  of
      2004 filed by the appellants and confirmed the  order  passed  by  the
      Trial Court. The High Court in the present matter upheld the  sentence
      as awarded by the Trial Court by stating that the evidence led by  the
      complainant (PW-1), the elder sister of the deceased  (PW-8)  and  the
      grandfather of the deceased (PW-9) gets support from the evidence  led
      by PW-7, who are the friends and relatives of the deceased.

   2. The case of the Prosecution is that  the  marriage  between  Truptiben
      (the deceased) and the appellant No.3 herein took place on 01.05.1996.
      Truptiben was  the  daughter  of  one  Kantilal  Dhanjibhai  Karia  of
      District  Rajkot  in  Gujarat.  After  the  marriage,  Truptiben   was
      residing in a joint family with her in-laws appellant Nos.1 and 2  and
      her husband appellant No.3 at Morbi, Gujarat. Out of the said wedlock,
      a girl named Gopi was born.




   3. On 23.03.2000 at around 1130 Hrs, while Kantilal Dhanjibhai Karia  was
      discharging his duties in the Bank of Baroda at Rajkot, he received  a
      telephonic message from Appellant No.1, that his daughter  is  hanging
      by the fan and  that  he  may  immediately  come  to  Morbi.  Kantilal
      Dhanjibhai Karia informed  about the said telephonic  message  to  his
      nearest relatives and thereafter, they all proceeded towards Morbi.




   4. In the meantime, Appellant No.1 had informed about the  said  incident
      to Morbi City Police Station. The  P.S.O,  who  was  on  duty  at  the
      relevant time, made the relevant entry in  the  Station  Register  and
      directed the ASI to investigate the matter. The ASI went to the  scene
      of the offence and carried out preliminary investigation. He  recorded
      the statement of Appellant No.1 and thereafter, sent a  yaadi  to  the
      P.S.O to register the incident as an accidental death, which  came  to
      be registered as A.D. No.16/2000. Thereafter, investigation  into  the
      said incident was  taken  over  by  Police  Inspector  Mr.  Jaynarayan
      Rameshwar Srivastav.   The  Investigating  Officer  informed  Kantilal
      Dhanjibhai Karia, the father of the deceased, of the said incident and
      in return he asked  the  Investigating  Officer  not  to  disturb  the
      position of the dead body of his daughter till he arrives at Morbi.




   5. The said Kantilal Dhanjibhai Karia, the father of the deceased arrived
      at 1500 Hrs on the same day. He felt something fishy behind the  death
      of her daughter  Truptiben,  as  the  appellants  had  demanded  dowry
      several times in the past, which was further strengthened by the  fact
      that none of the appellants were present in the house at the  relevant
      point of time.




   6. On the same day, i.e on 23.03.2000, in the evening hours,  a  criminal
      complaint with regard to the said incident was filed by the father  of
      the deceased against the appellants,  which  ultimately,  came  to  be
      registered as I-C.R No. 92/2000 for offence punishable under  Sections
      498-A, 304-B & 306 read with Section 114 of the IPC. The body  of  the
      deceased was taken off the fan and sent for  post-mortem  examination.
      The investigation was  carried  out  and  the  statements  of  several
      witnesses were recorded.




   7. After the registration of the complaint  against  the  appellants,  an
      arrest warrant was issued by the concerned  Judicial  Magistrate,  1st
      Class, Morbi on  report  filed  by  the  Investigating  Officer  under
      Section 70 Cr.P.C, but the  appellants  were  untraceable.  They  were
      absconding  for  a  period  of  thirty  six  days  and  ultimately  on
      29.04.2000 at around 2130 Hrs., the appellants surrendered  themselves
      at the Morbi City Police Station.




   8. The appellants were produced in the court  of  the  District  &  Addl.
      Sessions  Judge,  Fast  Track  Court  No.7,  Morbi  in  Sessions  Case
      No.52/2000 and the trial was held. During  the  trial,  the  witnesses
      were examined at length. The witnesses PW-1 ,  PW-8  and  PW-9  stated
      that the deceased used  to  complain  about  the  mental  torture  and
      harassment frequently meted out to her  by  the  accused  due  to  the
      insufficient dowry provided during the  marriage.  This  evidence  was
      supported by PW-7, the friend of the  deceased  who  stated  that  the
      deceased had informed her that she  was  subject  to  frequent  mental
      torture and harassment by the accused for bringing  less  dowry.  This
      witness was also cross-examined at length by the other side alike  the
      other witnesses and based on the evidence provided by  the  witnesses,
      the accused were convicted for the offences punishable under  Sections
      498A, 304B & 306 IPC read with Section 114 IPC.




   9. Aggrieved by and dissatisfied with the aforesaid  judgment  and  order
      passed by the Sessions  Court,  the  appellants  preferred  an  appeal
      before the High Court. The counsel for the appellants contended before
      the High Court that the  evidence  stated  by  the  relatives  of  the
      deceased are interested witnesses and their statements  could  not  be
      solely relied upon.




  10. The High Court opined out that the deceased died of a  suicidal  death
      is not a dispute though the evidence on record, more particularly, the
      photographs of the dead body at Exhibits 49/1 to 49/7 and the  inquest
      Panchnama, say an altogether different story. The High  Court  further
      observed that since it was an appeal under Section 374 Cr.P.C, it  did
      not want to enter into the other aspect of the case and instead  focus
      on the present appeal. The evidence led by the complainant (PW-1), the
      elder sister (PW-8) and the grandfather of the  deceased  (PW-9)  gets
      support from the evidence  led  by  (PW-7)  who  are  the  friend  and
      relatives of the deceased. The High Court further opined out that  the
      evidence of PW-1, PW-7, PW-8 and PW-9  clearly  establishes  that  the
      appellants were greedy people, who had started to demand  dowry  right
      from the date of marriage i.e on 01.05.1996.  It is the  case  of  the
      appellants  that  the  essential  ingredient  of  Section  304-B   IPC
      regarding the existence of cruelty soon before the death has not  been
      established by  the  prosecution.  The  High  Court  thus  upheld  the
      ultimate conclusion and the resultant order of conviction recorded  by
      the Trial Court.

  11. We have heard the learned counsels on both the sides.




  12. The counsel for the  appellant  contended  that  the  prosecution  has
      failed to substantiate the guilt of the appellants under Sections  306
      and 304B of IPC. The counsel further contended  that  to  satisfy  the
      conditions of Sections 304-B and 306 of the IPC, it must be shown that
      the deceased was incited, provided or virtually driven  to  committing
      suicide by the accused. The counsel for the appellant stated  that  in
      the case of Kishori Lal  v. State of M.P., (2007)  10  SCC  797,  this
      Court has held that in cases of alleged abetment of suicide there must
      be proof of direct or indirect acts of incitement to the commission of
      suicide. The mere fact that the husband treated wife with  cruelty  is
      not enough.




  13. The counsel for the appellants further stated  that  in  the  case  of
      Sushil Kumar Sharma v. Union of India,  (2005) 6 SCC 281,  this  Court
      has held that the object of Section 498A of the IPC is to get  to  the
      root of  dowry  menace  and  its  unleashing  will  lead  to  a  legal
      terrorism. The provision is to be used as  a  shield  and  not  as  an
      assassin's weapon. The counsel further contended that in the  case  of
      Sakatar Singh & Ors. v. State of Haryana,  (2004)  11  SCC  291,  this
      Court has held that such evidence which is not based on  the  personal
      knowledge of the witness  cannot  be  the  foundation  for  basing  of
      conviction. The learned counsel for the  appellant  further  contended
      that in the case of M. Srinivasulu v. State of  A.P.,  (2007)  12  SCC
      443, it was held by this Court that a presumption under  Section  113B
      of the Indian Evidence Act can be only raised in case of dowry  death,
      if there is concrete proof of cruelty and harassment meted out to  the
      deceased by the accused.   The  learned  counsel  for  the  appellants
      further contended that merely because the accused was absconding,  the
      said fact cannot be made  the  basis  for  inferring  his  guilt.  The
      learned counsel cited the case of Matru v. State of U.P., reported  in
      (1971) 2 SCC 75 , where it has been held that the appellants'  conduct
      in absconding by itself does not necessarily lead to a firm conclusion
      of guilty mind. Even an innocent man may feel panicky and try to evade
      arrest when wrongly suspected of a grave crime.

  14. We would like to conclude that going by the version provided by  PW-1,
      PW-7, PW-8 and PW-9, there is a reasonable apprehension of  the  crime
      committed by the accused. With regard to the position of law involving
      applicability of Sections 498A, 304B and 306 of the IPC, in  the  case
      of Balwant Singh and Ors. v. State of Himachal Pradesh, (2008) 15  SCC
      497, it has been held that Section 304B and Section 498A  of  the  IPC
      are not mutually inclusive. If  an  accused  is  acquitted  under  one
      section, it does not mean that the accused cannot be  convicted  under
      another section. According to Section 113B of the Indian Evidence Act,
      presumption arises when a woman has committed suicide within a  period
      of seven years from the date of the  marriage.  In  this  case,  after
      going  through  the  documentary  evidence  and  the  version  of  the
      witnesses, the accused were convicted under Sections 304B and 498A  of
      the IPC.  In the present case that we are dealing with,  a  reasonable
      apprehension can be raised, for that the  accused  committed  a  crime
      under Section 304B of the IPC and a presumption can  be  raised  under
      Section 113 B of  the  Indian  Evidence  Act,  since  seven  years  of
      marriage had not been completed.




  15. With regard to the applicability of Sections  113A  and  113B  of  the
      Indian evidence Act, in the case of State of Punjab v. Iqbal Singh and
      Ors., (1991) 3 SCC 1, this Court observed that the legislative  intent
      is clear to curb the menace of dowry deaths, etc, with a firm hand. It
      must be remembered that since crimes are generally  committed  in  the
      privacy of residential homes, it is not easy to gather direct evidence
      in such cases. That is why the legislature has by introducing Sections
      113A and 113B of the Indian Evidence  Act,  tried  to  strengthen  the
      prosecution hands by permitting a presumption to be raised if  certain
      foundational facts are established and the unfortunate event has taken
      place within a period of seven years.




  16. With regard to whether any direct link has been  shown  between  dowry
      demand and death, in the case of Dinesh v. State of Haryana, 2014  (5)
      SCALE 641, the accused has been convicted under Sections 113B and 304B
      of the IPC, on the basis of presumption,  since  certain  foundational
      facts were established. In the present case, it has  been  established
      from the versions of PW-1, PW-7, PW-8 and PW-9 that there was a demand
      for dowry and the deceased was being mentally harassed.




  17. In the case of Thanu Ram v. State of M.P., (2010)  10  SCC  353,  this
      Court has observed certain criteria with regard  to  establishment  of
      guilt in the cases of dowry death. The first criterion being that  the
      suicide must have been committed within seven years of  marriage.  The
      second criterion is that the husband or some relative of  the  husband
      had subjected the victim to cruelty, which led to  the  commission  of
      suicide by the victim.  This  is  when  Section  113A  of  the  Indian
      Evidence Act indicates that  in  such  circumstances,  the  Court  may
      presume, having regard to all the circumstances of the case, that such
      suicide has been abetted by her husband or by  such  relative  of  her
      husband. In the present case that we are dealing with, both the  above
      mentioned criteria have been satisfied, since the deceased died within
      seven years of marriage and with the version of the witnesses, it  has
      been further proved that there was cruelty meted out to  the  deceased
      immediately before her unfortunate death.




  18. We, therefore, see no reason to interfere with the  impugned  judgment
      passed by the High Court or the Trial Court. The appeal is accordingly
      dismissed.









                                       .......................................
                                       ..J

                                                         (M.Y. EQBAL)




                                       .......................................
                                       ..J

                                                         (PINAKI CHANDRA
   GHOSE)

   New Delhi;


   February 26, 2015.

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