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Crl.A. No. 512 of 2007 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 512 OF 2007

MODINSAB KASIMSAB KANCHAGAR  .....   APPELLANT

VERSUS

STATE OF KARNATAKA & ANR. .....   RESPONDENT

J U D G M E N T

A.K. PATNAIK J.

1. This is an appeal against the judgment dated  

11th September, 2006 of the Karnataka High Court in  

Criminal Appeal No. 805 of 2006.

2. The facts very briefly are:

2.1 The  appellant  was  married  to  Rajbee  on  21st  

April, 1997.   She  committed suicide  on 29th March,  

1998.  A case was registered and investigated by the  

Police Inspector [Anti-Dowry Cell] and charge sheet  

was filed against the appellant and the mother of the  

appellant for offences under Sections 498A and 304B  

read with Section 34 IPC as well as Sections 3, 4 and  

6 of the Dowry Prohibition Act read with Section 34

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of IPC.    

2.2 The prosecution case was that at the time of  

marriage of the appellant with Rajbee(the deceased),  

`1,000/- cash and one tola of gold was given to the  

appellant and thereafter the appellant harassed the  

deceased further for more dowry of  `10,000/- and the  

deceased  informed  about  this  harassment  to  her  

mother. Thereafter, the mother of the deceased was  

able to give `2000/- towards the demand but was unable  

to pay the balance amount of  `8000/-.  The deceased  

came along with the appellant to her mother's place  

and when the appellant was told that her family does  

not have any capacity to meet the balance demand of  

`8000/-,  the  deceased  went  back  to  her  matrimonial  

house weeping and saying that her life would not be  

safe.   She  came  back  again  to  her  mother's  place  

during the Holi festival and complained of harassment  

and  once  again  asked  for  the  balance  amount  of  

`8000/-,  but  the  same  was  not  paid  to  her  by  her  

mother and within fifteen days of this incident, the  

deceased committed suicide.   

2.3 At  the  trial,  mother  of  the  deceased  was  

examined  as  P.W.  2  and  two  of  her  uncles  were  

examined as P.W. 3 and P. W. 4 and besides them four  

other witnesses were examined as P.Ws. 5, 7, 10 and  

12, who all deposed about the demand of ` 1,000/- cash  

and one tola of gold as well as demand of  `10,000/-  

and about the fact that `1,000/- cash and one tola of

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gold were actually given to the appellant at the time  

of marriage and also about the fact that out of the  

demand of  `10,000/- made after the marriage,  `2,000/-  

was paid but the balance of `8,000/- could not be paid  

because of which the deceased was harassed and she  

committed  suicide.   Nonetheless,  the  trial  court  

acquitted  the  appellant  of  the  charges  by  its  

judgment dated 2nd December, 1999.   

2.4 Aggrieved,  the  State  of  Karnataka  filed  

Criminal Appeal No. 805 of 2000 before the High Court  

and by the impugned judgment, the High Court reversed  

the order of the trial court only qua the appellant-

husband and convicted the appellant for the offences  

punishable under Section 498A, 304B and Sections 3, 4  

and 6 of the Dowry Prohibition Act and sentenced the  

appellant to undergo simple imprisonment for a period  

of seven years for the offence under Section 304B and  

in view of the sentence awarded under Section 304B,  

the High Court did not award any separate sentence  

for the offence under Section 498A.  In respect of  

the offences under Sections 3, 4 and 6 of the Dowry  

Prohibition  Act,  the  High  Court  sentenced   the  

appellant to undergo simple imprisonment for a period  

of six months for each of the three offences.

3. Learned  counsel  for  the  appellant  submitted  

that there was no demand for dowry by the appellant.  

He submitted that  `1000/- and one tola of gold was

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given by P.W.2, the mother of the deceased to the  

appellant as  “Varopachara” as has been found by the  

trial court on the basis of the evidence of P.W. 3,  

the uncle of the deceased.  Regarding the demand of  

`10,000/-, he submitted that the evidence of P.W.3,  

the uncle of the deceased, is clear that after six  

months of marriage, the deceased demanded  `10,000/-  

from P.W. 2, her mother, stating that there was a  

society loan of the appellant.  He submitted that the  

demand of `10,000/- was, therefore, not towards dowry  

but was for repayment of a society loan.  He cited a  

decision of this Court in  Appasaheb and Another v.  

State of Maharashtra (2007) 9 SCC 721 in which it has  

been  held  that  some  money  for  meeting  domestic  

expenses and for purchasing manures cannot be treated  

as dowry and, therefore, the provisions of Section  

304B IPC which applies to only the demand made in  

connection  with  dowry  could  not  be  attracted.   He  

finally submitted that although all the prosecution  

witnesses have stated that there was harassment to  

the  deceased  in  connection  with  the  demand  of  

`10,000/-, no specific acts of harassment or cruelty  

have  been  proved  against  the  appellant  by  the  

prosecution.

4. Learned  counsel  for  the  State,  on  the  other  

hand,  supported  the  impugned  judgment  of  the  High  

Court and submitted that there was clear evidence led

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by the prosecution through P.Ws. 2, 3,4, 5, 7, 10 and  

12 that there was demand of dowry of `1,000/- and one  

tola  of  gold  at  the  time  of  marriage  and  further  

there was a demand of dowry of  `10,000/- after the  

marriage  by  the  appellant  and  that  the  appellant  

harassed  the  deceased  on  account  of  which  the  

deceased  had  no  option  but  to  commit  suicide.  

Learned  counsel  for  the  State  vehemently  submitted  

that  this  is  definitely  not  a  case  in  which  this  

Court should interfere with the impugned judgment of  

the High Court.

5. We have examined the impugned judgment of the  

High Court and we find that the High Court has in  

para 10 of its judgment impugned herein recorded its  

findings to hold the appellant guilty of the charges  

on the basis of evidence of P.W.s. 2,3,4,5,7 and 12.  

Para 10 of the judgment is extracted hereunder:-

“It  is  the  specific  case  of  the  prosecution that at the time of marriage  of the deceased with A1 Rs. 1,000/- cash  was  paid  along  with  1  tola  of  gold,  watch, etc. and the accused continued to  demand  further  dowry  of  Rs.  10,000/-  from the deceased.  The evidence in this  regard is spoken to by Pws. 2, 3,4,5,7  and 12.  PW Hussainbi is the mother of  the deceased and she has stated in her  evidence that at the time of marriage, 1  tola of gold and Rs. 1,000/- cash was  paid to the accused.  She also stated  that  for  six  months  following  the  marriage, her daughter and A1 – husband  got on well, but later on, her daughter  was  forced  to  bring  Rs.  10,000/-  cash  and in that connection, Rs. 2,000/- was  paid  by  one  Abdul  Sab  the  younger

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brother  of  PW  2's  husband  and  she  further  states  that  her  daughter  came  for Ramzan festival and told about the  harassment given to her and she was sent  back by stating that there was no money  to be paid and again her duaghter came  along with A-1 after some days and at  that  time  A-1  demanded  a  sum  of  Rs.  8,000/-  and  when  PW2  expressed  her  inability to pay the said, the deceased  went  back  weeping  and  saying  her  life  may not be safe and once again came for  holi  festival  and  asked  for  money  and  was  again  sent  back  without  money  and  after 15 days Rajbi committeed suicide  in the house of her husband.  PW2 has  clearly stated in her evidence that her  daughter  committed  suicide  because  of  the harassment given by the accused.”

6. What appears to have been lost sight of by the  

High Court is that the demand of  `10,000/- was not  

towards dowry but for payment of a society loan.  The  

evidence  of  P.W.  2  on  which  the  High  Court  has  

heavily  relied  upon  in  the  impugned  judgment  for  

convicting  the  appellant  is  clear  that  when  the  

deceased came to her house on the occasion of Holi  

festival  and she demanded money, she told her to ask  

from her uncle.  Thus, the uncle of the deceased was  

the  person  who  knew  exactly  what  were  the  demands  

upon the deceased in connection with her marriage.  

The uncle of the deceased Ismailsab has been examined  

as  P.W.  3  and  his  evidence  is  to  the  following  

effect.:-

“I  know  accused,  Daughter  of  my  elder  brother  has  given  in  marriage  to  A-1.  P.W. 2 is the wife of my elder brother.  I was present along with my brothers &  parents  at  Banaginhal  where  marriage

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talks of Rajbee were held.  One Ameerbee  was  the  mediator.   One  tola  gold  Rs.  1,000/- were demanded for A-1 apart from  some  ornaments  to  Rajbee.   Half  tola  boramala sara, 3 anas ear rings, 3 anas  bugudi were put to Rajbee at the time of  her  marriage.   2½  or  3  months  after  marriage talks marriage was held between  Rajbee  &  A-1  &  as  agreed  valuable  ornaments, cash, utensils, bed etc. were  given.  Dresses & watch were also given.  After marriage Rajbee went to live with  A-1.  They were happy six months after  thereafterwards  Rajbee  demanded  Rs.  10,000/- stating there was society loan  of  A-1.   We  expressed  our  inability.  However  we  consoled  Rajbee  that  availability  of  amount  will  be  seen.  Again  Rajbee  had  coem  to  our  house  on  some occasion.  At that time my brother  had given Rs. 2,000/'- to Rajbee, stating  not to disclose it to A-1 otherwise he  would demand more.  Again he came to our  village  at  Holi  festival  and  demanded  remaining  amount  and  stated  she  was  harassed by the accused.  Inability was  expressed  about  fulfilling  that  demand.  Rajbee went back to her husband's house  weeping.  On 29.3.1998 at about 5.30p.m.,  received  some  message  that  there  was  heart to Rajbee.  I alone went to their  house.  When all other came to Kanaginhal  it  was  10:00p.m.   Many  persons  had  gathered there.  That body was about to  be removed to hospital.  There was some  mark on the neck of Rajbee.  It was told  Rajbee died due to stomach pain.  But she  had no such pain, at any time.  Rajbee  committed suicide due to the harassment  by the accused.  I have given statement  before  the  COI  &  Gadag  Police  &  also  Tahsildar  Marriage  card  &  photo  are  marked at Ex. P.5 &6.”

From the  aforesaid evidence, it is clear that at the  

time  of  marriage  there  was  no  demand  of  `10,000/-  

towards society loan, and only  `1,000/- in cash, one  

tola  of  gold  and  other  articles  were  demanded  and  

were agreed and given to the appellant.  It further

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appears  from  the  evidence  of  PW  3  that  after  the  

marriage, the appellant and the deceased were happy  

for six months and thereafter the deceased demanded  

`10,000/- stating that there was a society loan of A1  

(appellant) and the family expressed their inability  

and consoled the deceased that the availability of  

the  amount  will  be  seen  later  and  again  when  the  

deceased came to her house,  `2000/- was paid to her  

but  the  balance  was  not  paid  and  she  committed  

suicide due to harassment by the appellant.

7. Thus the demand of  `10,000/- was not a dowry  

demand but was in connection with a society loan of  

`10,000/- of the appellant.  This Court in Appasaheb's  

case(supra) has referred to the provisions of Section  

304B IPC and in particular explanation appended to  

sub-Section  (1)  thereof  which  says  that  the  word  

“dowry” under Section 304B will have the same meaning  

as in  Section 2 of the Dowry Prohibition Act, 1961  

and has held that the word “dowry” in Section 304B of  

the  IPC  would,  therefore,  mean  'any  property  or  

valuable security given or agreed to be given either  

directly or indirectly at or before or any time after  

the marriage and in connection with the marriage of  

the parties'.  In this case, the amount of ` 10,000/-  

was demanded by the appellant through the deceased  

was  for repayment of a society loan of the appellant  

and it had no connection with the marriage of the

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appellant and the deceased.  Hence, even if, there  

was demand of ` 10,000/- by the appellant, it was not  

a demand in connection with the dowry and the offence  

under section 304B was not attracted.

8. We are, however, of the view that the appellant  

was liable for the offence under Section 498A IPC.  

Section  498A  read  with  Explanation  (b)  thereto  

provides that if  a husband of a woman subjects the  

woman to harassment  with a view to coerce her or any  

person related to her to meet any unlawful demand for  

property or valuable security he shall be liable with  

punishment  for   a  term  which  may  extend  to  three  

years and shall also be liable to fine.  The demand  

of  ` 10,000/- towards the society loan made by the  

appellant, thus, may not be a demand in connection  

with dowry but is certainly an unlawful demand for a  

property  or  valuable  security  and  there  is  clear  

evidence   of  the  prosecution  to  show  that  the  

deceased was subjected to harassment by the appellant  

on  account  of  her  failure  to  meet  the  aforesaid  

demand of ` 10,000/-.

9. Regarding  the  offences  under  the  Dowry  

prohibition Act, 1961,  Section 2 of the Act defines  

'dowry' to mean -

“any property or valuable security given  and agreed to be given either directly or

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indirectly - (a) by one party to the marriage to the  other party to the marriage; or  (b) by the parents of either party to a  marriage or by another person, to either  party to a marriage or by another person  to either party to the marriage or to any  other person on or before any time of the  marriage.

10. On a reading of the evidence of the prosecution  

witnesses  and in particular, P.Ws. 2, 3, 4, 5, 7, 10  

and 12, we find that a sum of ` 1000/- in cash and one  

tola of gold in addition to other articles were given  

to the appellant at the time of marriage. Hence, the  

aforesaid cash and  articles have been given towards  

dowry.  Sub-section (1) of Section 3 of the Dowry  

Prohibition Act provides that if any person, after  

the  commencement  of  the  Act,  comes  or  takes  or  

objects the giving or taking of dowry, he shall be  

punishable  for  the  term  mentioned  therein.   Sub-

section  (2)  of  Section  3,  however,  states  that  

nothing  in  Sub-section  (1)  of  Section  3  -  (a)  in  

relation to presents which are given at the time of  

marriage  to  the  bride;  and  (b)  presents  which  are  

given at the time of marriage to the bride groom.  

The proviso under Clauses (a) and (b) of Sub-section  

(2),  however,  states  that  such  presents  must  be  

entered in a list maintained in accordance with the  

rules made under this Act.  Hence the Section clearly  

intends  to  exempt  presents  which  are  given  at  the

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time of marriage to the bride or the bride groom from  

the prohibition against dowry under the Act.  Perhaps  

for this reason, the trial Court has taken a view  

that if anything was given to the appellant in the  

form of  “Varopachara” such payment may not attract  

the  provisions  of  the  Dowry  Prohibition  Act.   The  

High Court, however, has found that the appellant was  

guilty of the offences under Sections 3, 4 and 6  of  

the  Dowry  Prohibition  Act,  1961,  but  has  not  

considered the offences to be grave and has imposed  

punishments  for  only  six  months  for  each  of  the  

offences in accordance with the proviso to Section  

5(1) of the Dowry Prohibition Act.  Considering the  

lenient view taken by the High Court of the offences  

under  the  Dowry  Prohibition  Act,  1961,  we  are  not  

inclined to interfere with the findings of the High  

Court in respect of the offences under the said Act.  

11. In the result, we set aside the conviction of  

the appellant under Section 304B IPC and the sentence  

thereunder  but  maintain  the  conviction  of  the  

appellant under Section 498A IPC and under the Dowry  

Prohibition Act, 1961.  We maintain the sentence of  

six  months'  imprisonment  awarded  to  the  appellant  

under  the  Dowry  Prohibition  Act  for  each  of  the  

offences  under  the  said  Act  and  award  sentence  of  

approximately two years which the appellant is stated  

to  have  already  undergone  for  the  offence  under  

Sections  498A  IPC  and  further  direct  that  the

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sentences  under  Section  498A  IPC  as  well  as  the  

offences under the Dowry Prohibition Act, 1961 will  

run concurrently.

12. The appeal is allowed to the aforesaid extent.  

The bail bonds stand discharged.    

............................J [A.K. PATNAIK]

............................J  [SUDHANSU JYOTI MUKHOPADHAYA]

NEW DELHI MARCH 11, 2013.