Supreme Court of India
Amrutlal Liladharbhai Kotak & Ors vs State Of Gujarat on 26 February, 2015Author: P C Ghose

Bench: M.Y. Eqbal, Pinaki Chandra Ghose





Amrutlal Liladharbhai Kotak & Ors. …..Appellants


State of Gujarat


Pinaki Chandra Ghose, J.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. We have heard the learned counsels on both the sides.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. We, therefore, see no reason to interfere with the impugned judgment
passed by the High Court or the Trial Court. The appeal is accordingly





New Delhi;

February 26, 2015.


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