A.K. DEVAIAH Vs STATE OF KARNATAKA
Bench: M.Y. EQBAL,PINAKI CHANDRA GHOSE
Case number: Crl.A. No.-000046-000046 / 2007
Diary number: 7488 / 2006
Advocates: RAJESH MAHALE Vs
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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
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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
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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
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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.
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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
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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),
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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.
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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
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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
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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
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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
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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
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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).
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(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
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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
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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
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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.”
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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.”
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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
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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.
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…………………………….J. (M.Y. Eqbal)
…………………………….J. (Pinaki Chandra Ghose)
New Delhi, October 14, 2014.
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