AMRUTLAL LILADHARBHAI KOTAK & ORS. Vs. STATE OF GUJARAT
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 186 of 2010, Judgment Date: Feb 26, 2015
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
We have heard the learned counsels on both the sides.
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.
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.
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.
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.
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.
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.
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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