G.V. Siddaramesh vs State Of Karnataka on 5 February, 2010

      IN THE SUPREME COURT OF INDIA

                CRIMINAL APPELLATE JURISDICTION

               CRIMINAL APPEAL NO. 160 OF 2006   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.

   1

            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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