Page 1

-1-

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.

Page 2

-2-

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

Page 3

-3-

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

Page 4

-4-

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

Page 5

-5-

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

Page 6

-6-

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

Page 7

-7-

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

Page 8

-8-

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,

Page 9

-9-

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

Page 10

-10-

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

Page 11

-11-

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.