Page 1

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  

1

Page 2

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  

2

Page 3

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  

3

Page 4

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

Page 5

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  

5

Page 6

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),  

6

Page 7

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.  

7

Page 8

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  

8

Page 9

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  

9

Page 10

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  

10

Page 11

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  

11

Page 12

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  

12

Page 13

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).

13

Page 15

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  

15

Page 16

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  

16

Page 17

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  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.”

17

Page 18

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. Absence of any  cooking material in the kitchen is another very important  circumstance which would belie the stand of the accused.”

18

Page 19

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  

19

Page 20

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.

20

Page 21

…………………………….J. (M.Y. Eqbal)

…………………………….J. (Pinaki Chandra Ghose)

New Delhi, October  14, 2014.

21