G.V.Siddaramesh vs State Of Karnataka

G.V. Siddaramesh .............. Appellant

Versus

State of Karnataka ..............Respondent

J U D G M E N T

H.L. Dattu, J.

This criminal appeal arises out of common judgment

and order passed by the Karnataka High Court in Criminal

Appeal No. 1755 of 2003 and Criminal Appeal No. 665 of

2004, whereby and whereunder the court has partly allowed

the appeal, and in so far as the appellant is concerned,

while maintaining the conviction for offences punishable

under Section 4 of Dowry Prohibition Act, 1961 and

Sections 498-A and 304-B of the Indian Penal Code, 1860,

has modified the sentence for the offence punishable under

Section 3 of the Dowry Prohibition Act, 1961 from 5 years

and a fine of Rs. 2,50,000/- to 2 years and a fine of

Rs. 1,25,000/- and, in default, to undergo simple

imprisonment for 6 months.

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2) The learned Additional Sessions Judge

had sentenced the appellant under the

following heads : -

(i) To undergo R.I for 5 years and a fine of Rs.

2,50,000/- and in default, to undergo R.I for two years for the offence punishable under Section 3 of the Dowry Prohibition Act.

(ii) To undergo S.I for two years and to pay a fine of Rs. 10,000, in default, to undergo S.I for one month for an offence punishable under Section 4 of the Dowry Prohibition Act.

(iii)To undergo S.I for 3 years and to pay a fine of Rs.

10,000/-, in default, to undergo S.I for one month for an offence punishable under Section 498-A of the Indian Penal Code.

(iv) To undergo imprisonment for life for an offence punishable under section 304-B of IPC.

3) On appeal, the High Court has allowed the

appeal in part and has modified the sentence

as stated earlier. The appellant has

preferred this appeal against his conviction

and sentence of imprisonment for life

under Section 304-B of the Indian Penal

Code.

4) The facts of the case in brief are, that

the complainant K.G Lingappa's daughter Usha

(deceased) had been married to Siddaramesh

2 (appellant) on 13.12.1997. The deceased went

to her matrimonial home on 15.1.1998. On

17.1.1998, the deceased committed suicide by

hanging herself. In order to prove its case,

the prosecution has examined as many as twenty

eight witnesses. The case of the prosecution

in brief is that, at the time when there were

talks of the marriage in November 1996, the

appellant and his family demanded 20 tolas of

gold, Rs. 2 lakhs in cash and a motorcycle as

dowry. Ultimately as negotiations progressed,

the money was settled at Rs. 1,65,000 in cash,

18 tolas of gold, and a motorcycle. These

demands were met with by the complainant and

in furtherance the marriage took place on

13.12.1997. The case of the prosecution

further is that, the deceased Usha was taken

to her matrimonial home on 15.1.1998, despite

protests by the family of the complainant that

it was pushyamasa which was inauspicious for

the bride's entry into her matrimonial home.

On 17.1.1998, the elder sister of the

deceased, Karibasamma PW-3, went to the

matrimonial home of the deceased along with

sweets and other eatables. The deceased

confided to her elder sister that she was

3 being treated cruelly by the accused. The

deceased further confided that there were

fresh demands on her to get Rs. 50,000/- more

as dowry. On her reluctance, she was being

beaten by her husband and the husband was not

keen on maintaining a physical relationship

with her. Karibasamma later returned home and

confided to her father the torture and

harassment meted out to her sister (deceased)

by the appellant on account of non-fulfilment

of dowry demand. The complainant sent his son

Karibasappa, the brother of the deceased PW-2

to enquire into the matter. The brother of the

deceased also found out from her sister that

she was being ill-treated and was unhappy. On

the same night, the complainant received the

news that her daughter had committed suicide

by hanging herself. After reaching the

matrimonial home of their daughter and seeing

that their daughter had committed suicide,

they informed the police. A complaint was

lodged by the complainant to the police

alleging that it was the dowry harassment on

the part of the family of the appellant that

led to the suicide of her daughter. A case was

registered in Cr. No. 18/1998, against the

4 appellant and his father under Section 498-A

and 304 B of the IPC and Sections 3,4 and 6 of

the Dowry Prohibition Act. The Learned Chief

Judicial Magistrate committed the case to the

Court of Sessions, as it involved offences

exclusively triable by the Sessions Court.

When the matter was pending before the

Sessions Judge, the case was transferred to

Fast Track Court, Devangere in accordance with

a notification issued by the High Court.

5) The case of the appellant is that giving

money or taking money is not dowry and

further, money demanded after marriage is not

dowry. The appellant further submits that the

facts of the case do not disclose commission

of an offence punishable under Section 498-A

and 304-B of the IPC. The appellant contended

that most of the witnesses examined by the

prosecution were interested witnesses who were

closely related to the deceased. The appellant

further contended that the police officer had

no power to charge-sheet as per the provisions

of Section 7 of the Dowry Prohibition Act.

Another important contention of the appellant

was that, it was he who first made a complaint

5 to the police about the mishap after he

brought his father, and therefore he cannot be

guilty of any wrongdoing.

6) The learned Additional Sessions Judge has

taken into consideration the testimony of the

complainant PW-1 and that of Karibasappa and

Karibasamma (PW-2 and PW-3 respectively), the

brother and the sister of the deceased. It has

also relied upon the testimony of other

witnesses to conclude that there was a demand

for dowry and there was acceptance of dowry on

the part of the appellant and his father. The

trial court also took into consideration, the

suspicious conduct of the appellant. The

appellant had alleged that the deceased had

committed suicide because she was in love with

another person before marriage and was

frustrated when she could not marry him. Again

in his statement under Section 313 of Cr.PC,

the appellant stated that since coming to her

matrimonial home, she compared the house of

the appellant to that of a "railway bogie",

which, according to her, did not

satisfactorily compare to her father's house

and her sister's house. The trial court

6 however observed that the appellant produced

nothing on record to prove that the deceased

had an affair before the marriage with another

person. Further the trial court refused to

believe the version of the appellant contained

in Ex. D-3. The time of writing this letter,

which was addressed to the Sub-Inspector of

the Devangere Police Station, was shown as

12.30 in the midnight of 17.1.98. However, by

his own admission, he had left his shop at

10.30 PM. He had stated that after reaching

home, he noticed that his wife has committed

suicide by hanging, and thereafter went and

informed the sister of the deceased and then

went to Kogganooru to inform his father and

after his return went to the police station.

The trial court has inferred that it was not

possible for the appellant to reach the Police

Station before 1 AM or 2 AM. Also according

to the trial court, the natural reaction of

anyone seeing a dead body would be that of

shock or disbelief. This according to the

trial court was indicative of the suspicious

conduct of the appellant who wanted to hush up

the matter. Further this document was never

called for from the Police Station and only a

7 photocopy of the same was produced. The trial

court also relied upon the post mortem report

which revealed that death was caused due to

asphyxiation due to hanging and there were

also some unexplained scratches in the body

which, according to the trial court was

evidence of the harassment of the deceased by

the appellant and, hence, concluded that the

cruel treatment and harassment of the deceased

by the appellant led her to commit suicide.

Section 113B of the Evidence Act raises a

presumption against the accused. The onus lies

on the accused against whom the presumption

lies to discharge it. The appellant has

failed to discharge the burden satisfactorily.

Based on these findings, the trial court has

convicted and sentenced the accused to undergo

R.I for 5 years and a fine of Rs. 2,50,000/-

and in default, to undergo R.I for two years

for the offence punishable under Section 3 of

the Dowry Prohibition Act; to undergo S.I for

two years and to pay a fine of Rs. 10,000/-,

in default, to undergo S.I for one month for

an offence punishable under Section 4 of the

Dowry Prohibition Act; to undergo S.I for 3

years and to pay a fine of Rs. 10,000/-, in

8 default, to undergo S.I for one month for an

offence punishable under Section 498-A of the

Indian Penal Code; to undergo imprisonment for

life for an offence punishable under Section

304-B of IPC. The trial court however went on

to acquit the accused no.2 (father of the

appellant) of all the charges.

7) The appellant (accused No. 1) preferred

appeal before the High Court of Karnataka

challenging his conviction and sentence and

the State has preferred appeal challenging the

acquittal of the appellant for the offence

punishable under Section 6 of the Dowry

Prohibition Act and accused No. 2 (father of

the appellant) for all the offences. As

stated earlier, the High Court has partly

allowed the appeals.

8) This court while entertaining the special

leave petition has issued notice confining to

the offence under Section 304-B of IPC. We

have heard learned counsel for the parties

regarding the same.

9) Section 304-B of the IPC reads:-

9 (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). (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.

10) The essential ingredients which need to

be proved in order to attract the offence of

dowry death is as follows:-

(i) Death is caused in unnatural circumstances.

(ii) Death must have occurred within seven years of the marriage of the deceased.

(iii)It needs to be shown that soon before her death, the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.

11) Coming to the first ingredient, the post

mortem report suggests that the body of the

deceased was bearing the mark of hanging and

there is the indication of an injury mark 8

inches long around the neck. The cause of

death was shock and asphyxia as a result of

hanging. There are also unexplained traces of

scratches around the neck region. This raises

1 serious doubts about the possibility of

strangulation of the deceased, as opined by

Dr. T. Parashuramappa PW-24. Therefore, it is

beyond doubt that the death was an unnatural

death. The second ingredient is also proved as

the marriage between the deceased took place

on 13.12.1997 and the death of the deceased

took place on 17.1.998, which is within the 7

year timeframe.

12) To prove the third ingredient, we need

to peruse the testimony of the witnesses. The

complainant PW-1 asserts that the appellant

and his family demanded 20 tolas of gold, Rs.

2 lakhs in cash and a motorcycle as dowry.

Ultimately as negotiations progressed, the

money was settled at

Rs. 1,65,000 in cash, 18 tolas of gold and a

motorcycle. These demands were met by the

complainant. Also against the will of the

family of the deceased, the deceased was taken

to her matrimonial home on 15.1.1998, which

coincided with Pushyamasa, which is considered

as an inauspicious time by the family of the

deceased. There is no reason to disbelieve

the statement of the complainant, as the

1 appellant himself in his statement under

Section 313 of Cr.PC has stated, that, there

were negotiations taking place as to the

amount of money and gold, which will change

hands during the course of the marriage, but

he is unclear as to the place where the

negotiations took place. The brother and

sister of the deceased also testify this fact.

In addition to this, Umapathy, a friend of the

family of the deceased PW-10, M.G

Shankarappa PW-15, Maheshwaraiah PW-16 also

testified that there were indeed serious

negotiations which took place as to the amount

of dowry prior to the marriage. The

prosecution also brought on record the

testimony of Narayan PW-6, the goldsmith who

testified that 18 tolas of gold were given to

him by the complainant to prepare various

ornaments like bangles, mangalya chain, ear

hangings, nose rings etc for the bride. Some

of these ornaments were recovered during the

investigation and some were found on the body

of the deceased. The prosecution has also

established through Karibasappa PW-2 that he

was instrumental in arranging a loan of Rs.

50,000/- from his friend Shivakumar who in

1 turn had withdrawn money from Andhra Bank and

in this regard, the receipt has also been

produced. Umapathy PW-10, Maheshwariah PW-16

and Shivakumar PW-9 have also stated being

present at the medical store of the appellant,

where the money to the tune of Rs. 1,65,000/-

changed hands. Therefore, there is no doubt

that there was a demand for dowry prior to the

death of the deceased, which was met by the

family of the deceased.

13) Karibasamma PW-3, the elder sister of the

deceased has also stated in her evidence that

when she went to the matrimonial house of the

deceased on 17.1.1998, the deceased confided

in her that there is further demand of Rs.

50,000/- by way of dowry by the appellant, and

on account of the failure to meet the demand,

she is being treated with cruelty and is

harassed physically and mentally. She has also

stated that the deceased also requested her

elder sister not to disclose these

developments to their father as he had health

problems related to high blood pressure. When

the brother of the deceased Karibasappa PW-2,

went to the house of the deceased, he also

1 came back with the same version. The testimony

of these two witnesses is consistent and very

clear that the deceased was indeed mentally

disturbed, the day she committed suicide by

hanging herself. Cruelty can either be mental

or physical. It is difficult to straightjacket

the term cruelty by means of a definition,

because cruelty is a relative term. What

constitutes cruelty for one person may not

constitute cruelty for another person. This

court in the case of V. Bhagat v. D. Bhagat,

(AIR 1994 SC 710), has observed that mental

cruelty is such that if the wronged party

continues to stay with his/her spouse there is

reasonable apprehension of injury to the

wronged party. The circumstances surrounding

the present case, where there was pressure on

the deceased to arrange a further sum of Rs.

50,000/- and the consequent misdemeanor on the

part of the appellant no doubt puts serious

apprehension on the mind of the deceased,

that, if she continues to stay with the

appellant, she might be assaulted physically

and mentally. It is difficult how different

people react to different situations. The

threats by the husband of the deceased over

1 the course of two days, when the deceased was

in her matrimonial home might have been enough

for the deceased who was in a fragile state of

mind to reach breaking point and end her life.

Therefore all the ingredients of Section 304-B

have been satisfied, pointing towards the

guilt of the appellant.

14) Section 113-B of the Evidence Act raises

a presumption against the accused and reads :-

"When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had 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)."

15) A reading of Section 113-B of the Evidence Act

shows that there must be material to show that soon before

the death of woman, such woman was subjected to cruelty or

harassment for or in connection with demand of dowry, then

only a presumption can be drawn that a person has

committed the dowry death of a women. It is then up to the

appellant to discharge this presumption. The appellant

however has not brought on record anything substantial to

dispel the theory of the prosecution. In fact, while

1 filing application for grant of bail, the appellant had

stated that the deceased was having an affair with another

person before her marriage and since she could not marry

him, she was in distress and, therefore, committed

suicide. However there was no evidence brought on record

to prove this theory. Further in his statement under

Section 313 of Cr.P.C. he has stated that the deceased was

not happy with the house of the appellant and stated that

the house of her sister and father were bigger and better.

Further his theory of intimating the police and lodging a

complaint before the Sub-Inspector of the Police Station

at 12.30 AM fails as he had closed his shop at around

10.30 PM. After that by his own admission, he went and

informed the sister of the deceased and then went outside

the town to bring his father before lodging the complaint.

Therefore, it is very much likely that the accused after

witnessing the dead body of the deceased tried to hush up

the matter and went to the Police Station much later. If

this theory is to be true, this brings the suspicious

behaviour of the appellant more to light, as the natural

reaction to seeing the dead body of a wife who had come to

her matrimonial home only 2 days earlier would be that of

disbelief or shock. Instead by his own admission, he went

and informed the sister of the deceased. The prosecution

witnesses have also testified that the appellant came to

the paternal house of the deceased and made a statement to

1 the effect that it would be detrimental to both the

families if a complaint was to be lodged and to bury the

past. The appellant has also not produced anything on

record to dispel the theory of the prosecution that there

was a further demand of Rs. 50,000/- on his part. He has

also failed to prove that there were demands for dowry

immediately before the marriage and there were

negotiations which took place involving both the families.

All these circumstances point to the fact that the

appellant has not rebutted or discharged the presumption.

Therefore we have no doubt in holding that the appellant

is guilty for the offence punishable under Section 304-B

of the IPC, for being responsible for the death of his

wife.

16) On the point of sentence, learned

counsel for the appellant pointed out that the

appellant is in jail for more than six years.

The appellant was young at the time of incident

and therefore, the sentence awarded by the trial

court and confirmed by the High Court may be

modified. In so far as sentencing under the

section is concerned, a three Judge Bench of

this court in the case of Hemchand v. State of

Haryana, has observed that "Section 304-B merely

raises a presumption of dowry death and lays

1 down that the minimum sentence should be 7

years, but it may extend to imprisonment for

life. Therefore, awarding the extreme punishment

of imprisonment for life should be used in rare

cases and not in every case." Keeping in view

the facts and circumstances of the case, this

court reduced the sentence from life

imprisonment awarded by the High Court to 10

years R.I on the above principle.

17)In conclusion, we are satisfied that in the

facts and circumstances of the case, the

appellant was rightly convicted under Section

304-B IPC. However, his sentence of life

imprisonment imposed by the courts below appears

to us to be excessive. The appellant is a young

man and has already undergone 6 years of

imprisonment after being convicted by the

Additional Sessions Judge and the High Court. We

are of the view, in the facts and circumstances

of the case, that a sentence of 10 years

rigorous imprisonment would meet the ends of

justice. We, accordingly while confirming the

conviction of the appellant under Section 304-B

IPC, reduce the sentence of imprisonment for

life to 10 years rigorous imprisonment. The

1 other conviction and sentence passed against the

appellant are confirmed. In the result, the

appeal is dismissed subject to the above

modification of sentence.

.......................................J. [ P. SATHASIVAM ]

.......................................J. [ H.L. DATTU ]

New Delhi, February 05, 2010.

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