AMRUTLAL LILADHARBHAI KOTAK & ORS.versusSTATE OF GUJARAT

                   [2015] 2 S.C.R. 871


      AMRUTLAL LILADHARBHAI KOTAK & ORS.                      A

                            v.
                  STATE OF GUJARAT

            (Criminal Appeal No. 186 of 2010)                 B

                  FEBRUARY 26, 2015

  [M.Y. EQBAL AND PINAKI CHANDRA GHOSE, JJ.]

    Penal Code, 1860 - ss. 498-A, 304-B and s.306 rlw C
s.114-8 - Dowry death - Conviction by courts below relying
on evidence of friends and relatives of the deceased as
regards mental torture and harassment of the deceased by
the accused, for bringing insufficient dowry - On appeal,
                                                            0
held: As the deceased died by committing suicide within
seven years of her marriage and four witnesses have further
proved that cruelty was meted out to the deceased
immediately before her death, courts below rightly presumed
that the suicide was abetted by the accused persons E
(husband and relatives of the husband) - Evidence Act,
1872 - ss.113-A and 113-8.

   ss. 304-B and 498-A - Nature of the provisions under
- Held: ss.304-B and 498-A are not mutually inclusive - F .
Acquittal under one provision does not necessarily lead to
acquittal under another provision.

     Evidence Act, 1872 - s. 113-A and 113-B - Introduction
of the provisions - O~ject of - Discussed.
                                                              G
    Dismissing the appeal, the Court

    HELD: 1. Section 3048 and Section 498A of IPC are

                           871                                H
872          SUPREME COURT REPORTS              (2015] 2 S.C.R.


A 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 1138 of the Evidence Act, presumption arises
  when a woman has committed suicide within a period
B of seven years from the date of the marriage. In the
  present case, after going through the documentary
  evidence and the version of the witnesses, the accused
  were convicted u/ss. 3048 and 498A of the IPC.
  Therefore, a reasonable apprehension can be raised, for
C that the accused committed a crime under Section 3048
  of the IPC and a presumption can be raised under
  Section 1138 of the Evidence Act, since seven years of
  marriage had not been completed. [para 13] (879-D-G]

D        Ba/want Singh and Ors. vs State of Himachal Pradesh
                            =
      2008 (13) SCR 1111 (2008) 15 sec 497- relied on.

      2. It is not easy to gather direct evidence in cases
  of dowry death because such crimes are generally
E committed in the privacy of residential homes. That is
  why the legislature has by introducing Sections 113A
  and 1138 of the Evidence Act, tried to strengthen the
  prosecution hands by permitting a presumption to be
  raised if certain foundational facts are established and
F the unfortunate event has taken place within a period
  of seven years. [para 14] [880-A-8]
            State of Punjab v. Iqbal Singh and Ors.1991 (2) SCR
      790   = (1991) 3 sec 1 - relied on.
G
      3. The first criterion with regard to establishment
  of guilt in the cases of dowry death is that the suicide
  must have been committed within seven years of
  marriage. The second criterion is that the husband or
H some relative of the husband had subjected the victim
   AMRUTLAL LILADHARBHAI KOTAK v. STATE OF            873
                  GUJARAT

to cruelty, which led to the commission of suicide by A
the victim. This is when Section 113A of the 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 B
present case, both the above mentioned criteria have
been satisfied, since the deceased died within seven
years of marriage and w:ith the version of the witnesses
i.e. PWs 1, 1; 8 and 9, it has been further proved that
there was cruelty meted out to the deceased c
immediately before her unfortunate death. [para 16]
[880-F-H; 881-A]

    Dinesh v. State of Haryana,. 2014 (5) SCALE 641,
Thanu Ram v. State ofM.P. 2010 (12) SCR 710   =
                                              (2010) D
10 sec 353 - relied on.

    Kishori Lal v. State of M.P. 2007 (7) SCR 1051   =
(2007) 10 SCC 797; Sushi/ Kumar Sharma v. Union of India
                         =
2005 (1) Suppl. SCR 730 (2005) 6 SCC 281; Sakatar E
Singh & Ors. v. State of Haryana 2007 (9) SCR 842    =
(2004) 11 SCC 291, M. Srinivasu/u v. State of A.P., (2007)
12 sec 443, Matru v. State of U.P. 1971 (3) SCR 914  =
(1971) 2 sec 75 - cited.
                                                         F
                Case Law Reference
    2007 (7) SCR 1051        cited        para 12
   2005 (1) Suppl. SCR 730 cited          para 13
                                                         G
   2004 (11) sec 291         cited        para 13
   2007 (9) SCR 842          cited        para 13
   1971 (3) SCR 914          cited        para 13
   2008 (13) SCR 1111        relied on    para 14        H
874        SUPREME COURT REPORTS                [2015] 2 S.C.R.


A        1991 (2) SCR 790           relied on      para 15

         2014 (5) SCALE 641         relied on      para 16

         2010 (12) SCR 710          relied on      para 17

B        CRIMINAL APPELLATE JURISDICTION:              Criminal
      Appeal No. 186 of 2010

      From the Judgment and Order dated 17.06.2009 of the
  High Court of Gujarat at Ahmadabad in Criminal Appeal No.
C 1327 of 2004.

          K. T. S. Tulsi, Huzefa Ahmadi, Pradhuman Gohil,
      Taruna Singh, Kuber Boddh, Jaikriti S. Jadeja, Prabuodha
      Sharma, Charu Mathur for the Appellants.
D
         Nitin Sangra, Hemantika Wahi, Swati Vaibhav, Preeti
      Bhardwaj, Puja for the Respondent.

          The Judgment of the Court was delivered by

E      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
F 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
G evidence led by PW-7, who are the friends and relatives of
  the deceased.

      1. The case of the Prosecution is that the marriage
  between Truptiben (the deceased) and the appellant No.3
H herein took place on 01.05.1996. Truptiben was the
   AMRUTLAL LILADHARBHAI KOTAK v. STATE OF                     875
     GUJARAT [PINAKI CHANDRA GHOSE, J.]

daughter of one Kantilal Dhanjibhai Karia of District Rajkot A
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.
                                                              B
     2. 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 C
 Karia informed about the said telephonic message to, his
 nearest relatives and thereafter, they all proceeded towards
 Morbi.

      3. In the meantime, Appellant No.1 had informed about     o
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 E
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.O.
No.16/2000. Thereafter, investigation into the said incident
was taken over by Police Inspector Mr. Jaynarayan F
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 p-osition of the dead body of his daughter
till he arrives at Morbi.                                      G

    4. 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       H
876        SUPREME COURT REPORTS                [2015] 2 S.C.R.


A     past, which was further strengthened by the fact that none
      of the appellants were present in the house at the relevant
      point of time ...

       5. On the same day, i.e on 23.03.2000, in the evening
B 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 1-C.R
  No. 92/2000 for offence punishable under Sections 498-A,
  304-B & 306 read with Section 114 of the IPC. The body
C 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.

       6. After the registration of the complaint against the
D appellants, an arrest warrant was issued by the concerned
  Judicial Magistrate, 1•1 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
E around 2130 Hrs., the appellants surrendered themselves
  at the Morbi City Police Station.

      7. The appellants were produced in the court of the
  District & Addi. Sessions Judge, Fast Track Court No.7,
F 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
G 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 frequen_t mental torture and
  harassment by the accused for bringing less dowry. This
H witness was also cross-examined at length by the other side
   AMRUTLAL LILADHARBHAI KOTAK v. STATE OF                  877
     GUJARAT [PINAKI CHANDRA GHOSE, J.]

alike the other witnesses and based on the evidence          A
provided by the witnesses, the accused were convicted for
the offences punishable under Sections 498A, 3048 & 306
IPC read with Section 114 IPC.

      8. Aggrieved by and dissatisfied with the aforesaid B
 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 t!Je relatives of the deceased
 are interested witnesses and their statements could not be C
 solely relied upon.

     9. 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 o
at Exhibits 49/1 to 4917 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 E
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 F
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 G
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.

    10. We have heard the learned counsels on both the       H
878         SUPREME COURT REPORTS              [2015] 2 S.C.R.


 A sides.

        11. The counsel for the appellant contended that the
    prosecution has failed to substantiate the guilt of the
    appellants under ~ections 306 and 3048 of IPC. The
 8 counsel further contended that to satisfy the conditions of
    Sections 304-8 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
 C 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.
 D
        12. The counsel for the appellants further stated that
   in the case of Sushi/ 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
 E menace and its unleashing wilt 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
 F 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 1138
 G 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
.H
     AMRUTLAL LILADHAR8HAI KOTAK v. STATE OF                     879
       GUJARAT [PINAKI CHANDRA GHOSE, J.]

 fact cannot be made the basis for inferring his guilt. The A
 learned counsel cited the case of Matru v. State of U.P.,
 reported in (1971) 2 sec 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 8
 when wrongly suspected of a grave crime.

       13. 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           C
  accused. With regard to the position of law involving
  applicability of Sections 498A, 3048 and 306 of the IPC, in
  the case of Ba/want Singh and Ors. v. State of Himachal
  Pradesh, (2008) 15 SCC 497, it has been held that Section
  3048 and Section 498A of the IPC are not mutually               D
  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 1138 of the Indian
  Evidence Act, presumption arises when a woman has
  committed suicide within a period of seven years from the       E
· 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 3048 and 498A of
  the IPC. In the present case that we are dealing with, a
                                                                  f.
  reasonable apprehension can be raised, for that the
  accused committed a crime under Section 3048 of the IPC
  and a presumption can be raised under Section 113 8 of
  the Indian Evidence Act, since seven years of marriage had
  not been completed.                                             G
    14. With regard to the applicability of Sections 113A and
 1138 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 H
880         SUPREME COURT REPORTS                 [2015) 2 S.C.R.


A     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 1138 of the Indian
      Evidence Act, tried to strengthen the prosecution hands by
8     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.

       15. With regard to whether any direct link has been
C 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 1138 and 3048
  of the IPC, on the basis of presumption, since certain
  foundational facts were established. In the present case, it
D 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.

           16. In the case of Thanu Raf11 v. State of M.P., (2010)
E     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
F     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
G     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 tiave been satisfied, since the
      deceased died within seven years of marriage and with the
H     version of the witnesses, it has been further proved that
   AMRUTLAL LILADHARBHAI KOTAK v. STATE OF                    881
     GUJARAT [PINAKI CHANDRA GHOSE, J.]

there was cruelty meted out to the deceased immediately A
before her unfortunate death.

    17. 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.                    B

Kalpana K. Tripathy                       Appeal dismissed.