STATE OF KARNATAKA Vs. DATTARAJ & ORS.
Section 34 - Acts done by several persons in futherance of common intention
Section 498 - Enticing or taking away or detaining with criminal intent a married woman
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 326 of 2012, Judgment Date: Feb 15, 2016
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 326 OF 2012
State of Karnataka … Appellant
versus
Dattaraj & others … Respondents
J U D G M E N T
Jagdish Singh Khehar, J.
1. Dattaraj – the respondent-accused no. 1, married Savita (since
deceased), on 7.6.2002. About three months before the marriage, at the
asking of Dattaraj, it was agreed to give Rs.21,000/- in cash and 3 tolas
of gold. Accordingly, the family of Savita complied with the aforesaid
commitment, at the time of marriage. After their marriage, Savita started
to live in her matrimonial house along with Dattaraj (respondent-accused
no. 1). Soon after his marriage, Dattaraj went to Dubai, leaving Savita at
the matrimonial house. During his absence, she went to her parents’ house.
Dattaraj contacted Savita, and had a telephonic conversation with her,
while she was at her parents’ house. He enquired from her, with whose
permission she had gone to her maternal house. He also rebuked her for
having left the matrimonial house, without his permission.
2. While Savita was in her maternal house, Dattaraj required her to get
Rs.20,000/- in cash from her parents, as his brother needed the money to
purchase some agricultural land. On the asking of Dattaraj, Savita got the
money from her parents. After Dattaraj returned from Dubai, he was invited
by Savita’s parents for a “pooja” (prayer) ceremony. The “pooja” had been
arranged to celebrate the installation of a bore-well, on the agricultural
lands owned by Savita’s father. It was alleged, that Dattaraj (respondent-
accused no. 1) had agreed to attend the “pooja”, only if he was given three
tolas of gold, as also, wearing apparel. As against the above, the
assertion of Dattaraj was, that such gifts were customary, and were given
by the parents of Savita, on their own free will. In any case, it is not a
matter of dispute, that gold and clothing were indeed given to Dattaraj,
during the “pooja” arranged by the parents of Savita, to celebrate the
installation of a bore-well.
3. After Dattaraj returned from Dubai, Savita became pregnant. She left
for her maternal house, prior to her delivery. She delivered a girl child,
at her parents’ house. Thereafter, she returned to her matrimonial house.
4. On yet another occasion, while Savita along with Dattaraj (respondent-
accused no. 1) had gone to stay with her parents, it was alleged, that
Dattaraj had made similar monetary demands. On this occasion, Savita’s
parents had expressed their helplessness, and had informed Dattaraj, that
they did not have adequate resources to meet his demands. It was also
alleged, that on this occasion, Dattaraj had picked up a quarrel with the
parents of Savita. It was alleged, that when Savita returned to her
matrimonial house with Dattaraj, she was taunted by the brother of
Dattaraj, namely, by Siddappa @ Siddaraj (respondent-accused no. 3), as
also by Ningesh (respondent-accused no. 2) and Revamma (respondent-accused
no. 4), the father and mother of respondent-accused no. 1 respectively, for
bringing inadequate gifts from her parents’ house.
5. Savita went to her parents’ house for “Rakhi Poornima” (festival to
celebrate sanctity of the brother-sister, relationship), to tie a “rakhi”
(sacred thread) on her brother’s arm. It was alleged, that Dattaraj
demanded a sewing machine. This demand made by Dattaraj was allegedly met
by the parents of Savita. This is yet another incident of the alleged
demand of dowry, made by Dattaraj and his family members.
6. The case of the prosecution is, that despite the fact that the
parents of Savita met all the demands made by Dattaraj, as well as, his
family members, they remained unsatisfied and continued to pressurise
Savita’s family for more dowry. It is also the case of the prosecution,
that Dattaraj used to harass and ill-treat Savita, and would even assault
her.
7. On 1.9.2006, Savita died of burn injuries. The mother of Savita,
Tukkubai – PW-1, was informed about the burn injuries suffered by Savita,
on 1.9.2006 itself. She was also informed, that Savita, had been admitted
to hospital. When Tukkubai – PW-1 reached the hospital along with her son
Dattatry – PW-4, the dead body of Savita was lying in the mortuary of the
Government hospital, Gulbarga. None of the respondents-accused was present
at the hospital. Immediately, Tukkubai – PW-1, filed a complaint. In the
complaint it was alleged, that the respondents-accused had committed the
murder of Savita, on account of their dowry demands having not been met, by
the maternal family of Savita. The above report was lodged on 2.9.2006
i.e., the day following the death of Savita. The fact, that Savita was
left all by herself at the hospital, and that no one out of the respondents-
accused attended upon her even during her pitiable condition, was alleged
as sufficient to establish, that the relationship between Savita and the
family of her in-laws, was not cordial. The defence repudiated the version
of the prosecution by asserting, that Savita had committed suicide on
account of her over-sensitive nature.
8. Consequent upon the culmination of the investigation, a chargesheet
was filed by the prosecution, leading to the framing of charges against
Dattaraj (respondent-accused no. 1), his brother Siddappa @ Siddaraj
(respondent-accused no. 3), his father Ningesh (respondent-accused no. 2),
and his mother Revamma (respondent-accused no. 4). The respondents-accused
were charged with the offences punishable under Sections 498A and 304B read
with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as,
the IPC), as well as, under Sections 3, 4 and 6 of the Dowry Prohibition
Act, 1961 (hereinafter referred to as, the Dowry Act). The factual
position recorded above, constituted the basis of the alleged actions of
cruelty, by the respondents-accused towards Savita, and therefore, the
offence under Section 498A. The fact that Savita had died of burn
injuries, within seven years of her marriage, and that, she was being
subjected to dowry demands, cruelty and harassment by the accused, was the
basis for substantiating the offence under Section 304B of the IPC.
9. The Sessions Judge (Fast Track Court-III), Bidar, who tried the
respondents-accused arrived at the conclusion, that the cash, the gold and
other gifts given by the parents of Savita to the accused, were in the
nature of dowry articles presented by Savita’s family, to Dattaraj and
other members of his family. This conclusion was arrived at because the
term “dowry” means and includes, property or valuable security given either
directly or indirectly, not only at the time of marriage, but also at any
time after marriage.
10. Despite the fact that Tukkubai – PW-1, admitted that the family of
Dattaraj had gifted the maternal family of Savita, 4 tonnes of sugarcane
seeds and a bag of jowar, when a girl child was delivered by Savita, the
trial Court concluded, that the taunts and physical torture at the hands of
the accused, stood established from eye-witnesses account. The same were
considered sufficient to establish, mental and physical cruelty towards
Savita. The evidence indicating that Savita had been asking Dattaraj not
to go to Dubai, which according to the defence, was sufficient to
establish, that there was love and harmony between them, was rejected. The
threat of Savita to Dattaraj, that if he went abroad, he may not find her
alive, was also found to be of no substance. The trial Court also rejected
the contention of the accused, that Savita had a meal at the residence of
the sister of Dattaraj -Sulebai, just two hours before the occurrence,
again to indicate that Savita was not being harassed by the family of
Dattaraj. The ground for such rejection by the trial Court was, that even
though it was established that Savita had eaten her meal two hours before
the occurrence, yet there was no evidence to establish that she had eaten
her meal, at the house of Sulebai – the sister of Dattaraj. The trial
Court also rejected the contention advanced on behalf of the respondents-
accused, that the doctor who conducted the post-mortem examination had
deposed, that the deceased had no physical injuries on her person. This
was used by the defence to establish, that the burn injuries were an act of
suicide, at the free will of Savita herself. And that, the respondents-
accused had not committed any act linked to the incident of burning.
11. Accordingly, the trial Court convicted all the four accused persons
for the offences punishable under Sections 498A and 304B read with Section
34 of the IPC, and under Sections 3, 4 and 6 of the Dowry Act. The
following sentences were awarded by the trial Court to the accused:-
“All the accused persons are sentenced to undergo imprisonment for life for
the offence punishable under Section 304B of IPC.
Further, they are sentenced to undergo simple imprisonment for 3 years, and
to pay a fine of Rs.5,000/- (Rupees five thousand) each, for the offence
punishable under Section 498A of IPC. In default, to undergo further
simple imprisonment for 3 months.
Further, they are sentenced to undergo simple imprisonment for 3 years and
to pay a fine of Rs.10,000/- each for the offence punishable under Section
4 of the Dowry Prohibition Act. In default, to undergo simple imprisonment
for six months.
Further, they are ordered to undergo simple imprisonment for 3 years, and
to pay a fine of Rs.15,000/- each, for the offence punishable under Section
3 of the Dowry Prohibition Act. In default to undergo further simple
imprisonment for one year; and lastly
They are ordered to undergo simple imprisonment for 2 years, and to pay a
fine of Rs.10,000/- (Rupees ten thousand) each, for the offence punishable
under Section 6 of the Dowry Prohibition Act. In default, to undergo
further simple imprisonment for six months.
All the said substantive sentences shall run concurrently. They are
entitled for set off.
Out of the fine amount, it is ordered to pay Rs.1,50,000/- (Rupees one lakh
fifty thousand) to the mother of the deceased.”
12. All the four respondents-accused preferred Criminal Appeal no. 3514
of 2008 before the High Court of Karnataka, Circuit Bench at Gulbarga
(hereinafter referred to as, the High Court). A Division Bench of the High
Court convicted Dattaraj and acquitted the other three accused, namely, the
brother, the father and the mother of Dattaraj. While arriving at the
conclusion, that the other three accused besides the husband of Savita,
namely, Dattaraj (respondent-accused no. 1) had played no role in the death
of Savita, the High Court was of the view, that the evidence of Tukkubai –
PW-1 and Dattatry – PW-4, the mother and the brother of the deceased
respectively, did not attribute any kind of overt acts of cruelty or
harassment to respondent-accused nos. 2 to 4, and as such, their conviction
under Sections 498A and 304B read with Section 34 of the IPC, was bad in
law. For the same reason, respondent-accused nos. 2 to 4 were found
innocent, insofar as, the allegations under Sections 3, 4 and 6 of the
Dowry Act are concerned, and were accordingly acquitted for the offences
punishable thereunder.
13. Dissatisfied with the impugned order dated 30.6.2009 passed by the
High Court, the State of Karnataka has approached this Court through the
present appeal.
14. During the course of hearing, learned counsel representing the State
of Karnataka vehemently contended, that the acquittal of the accused by the
High Court, was in clear violation of the declaration of law, with
reference to the provisions under which the accused were charged. Insofar
as the instant aspect of the matter is concerned, reliance in the first
instance was placed on the decision rendered by this Court in Kans Raj v.
State of Punjab & Ors., (2000) 5 SCC 207. Learned counsel invited our
pointed attention to the following observations recorded therein:-
“15. It is further contended on behalf of the respondents that the
statements of the deceased referred to the instances could not be termed to
be cruelty or harassment by the husband soon before her death. “Soon
before” is a relative term which is required to be considered under
specific circumstances of each case and no straitjacket formula can be laid
down by fixing any time-limit. This expression is pregnant with the idea of
proximity test. The term “soon before” is not synonymous with the term
“immediately before” and is opposite of the expression “soon after” as used
and understood in Section 114, Illustration (a) of the Evidence Act. These
words would imply that the interval should not be too long between the time
of making the statement and the death. It contemplates the reasonable time
which, as earlier noticed, has to be understood and determined under the
peculiar circumstances of each case. In relation to dowry deaths, the
circumstances showing the existence of cruelty or harassment to the
deceased are not restricted to a particular instance but normally refer to
a course of conduct. Such conduct may be spread over a period of time. If
the cruelty or harassment or demand for dowry is shown to have persisted,
it shall be deemed to be “soon before death” if any other intervening
circumstance showing the non-existence of such treatment is not brought on
record, before such alleged treatment and the date of death. It does not,
however, mean that such time can be stretched to any period. Proximate and
live link between the effect of cruelty based on dowry demand and the
consequential death is required to be proved by the prosecution. The demand
of dowry, cruelty or harassment based upon such demand and the date of
death should not be too remote in time which, under the circumstances, be
treated as having become stale enough.”
(emphasis supplied)
Learned counsel submitted, that the view expressed in the Kans Raj case
(supra) had been reiterated in another decision rendered by this Court in
Tummala Venkateswar Rao v. State of Andhra Pradesh, (2014) 2 SCC 240.
15. Reliance was also placed by the learned counsel for the appellant, on
a recent judgment rendered by a three-judge Bench of this Court in Rajinder
Singh v. State of Punjab, (2015) 6 SCC 477, wherein Section 304B has been
explained to the effect, that the term “dowry” expressed therein, would not
be limited to the traditional meaning attached to the aforesaid expression,
but would include a demand for money for other purposes as well. In this
behalf it would be relevant to mention, that the three-judge Bench did not
accept the position expressed in Appasaheb v. State of Maharashtra, (2007)
9 SCC 721, in connection whereof, this Court had first explained the
position in the Appasaheb case (supra), as under:-
“11. This Court has spoken sometimes with divergent voices both on what
would fall within "dowry" as defined and what is meant by the expression
"soon before her death". In Appasaheb v. State of Maharashtra, (2007) 9 SCC
721, this Court construed the definition of dowry strictly, as it forms
part of Section 304-B which is part of a penal statute. The Court held that
a demand for money for defraying the expenses of manure made to a young
wife who in turn made the same demand to her father would be outside the
definition of dowry. This Court said: (SCC p. 727, para 11)
“11. …A demand for money on account of some financial stringency or for
meeting some urgent domestic expenses or for purchasing manure cannot be
termed as a demand for dowry as the said word is normally understood. The
evidence adduced by the prosecution does not, therefore, show that any
demand for ‘dowry’ as defined in Section 2 of the Dowry Prohibition Act was
made by the Appellants as what was allegedly asked for was some money for
meeting domestic expenses and for purchasing manure.”
And thereupon, having examined the object and intent of the legislation,
this Court held in the Rajinder Singh case (supra), as under:-
“26. The facts of this appeal are glaring. Demands for money were made
shortly after one year of the marriage. A she-buffalo was given by the
father to the daughter as a peace offering. The peace offering had no
effect. The daughter was ill-treated. She went back to her father and
demanded money again. The father, then, went along with his brother and the
Sarpanch of the village to the matrimonial home with a request that the
daughter be not ill-treated on account of the demand for money. The father
also assured the said persons that their money demand would be fulfilled
and that they would have to wait till the crops of his field are harvested.
Fifteen days before her death, Salwinder Kaur again visited her parents'
house on being maltreated by her new family. Then came death by poisoning.
The cross-examination of the father of Salwinder Kaur has, in no manner,
shaken his evidence. On the facts, therefore, the concurrent findings
recorded by both the courts below are upheld. The appeal is dismissed.”
Based on the above decision it was the vehement contention of the learned
counsel for the appellant, that the demands made by the accused for
purchase of agricultural land, as also, with reference to a sewing machine,
were liable to be treated as demands constituting “dowry”.
16. We have given our thoughtful consideration to the submissions
advanced at the hands of the learned counsel for the rival parties. It is
not necessary for us to deal with the statements of various witnesses,
relied upon by the trial Court, as well as, the High Court. In our
considered view, it would be sufficient for the disposal of the controversy
in hand, to refer to a few relevant portions of the cross-examination of
Tukkubai – PW-1, the mother of Savita. Tukkubai – PW-1, during the course
of her cross-examination, acknowledged the following factual position:-
“It is true two years A-1 remained in India after coming from Dubai and
after one year my daughter delivered female child my daughter was in our
house at the time of delivery for about 4 to 5 months. By giving all the
necessary ornaments to my grand daughter, my daughter was sent to her
house. It is true there is custom to present gold and clothes to the
person if they come from foreign country. At the time of putting my grand
daughter in cradle, we went to their house by engaging “Tam Tam”. They
gave four tonnes sugarcane seeds and a bag of jowar to us and we carried
them to our village in the said “Tum Tum”.
xxx xxx xxx
It is true there is custom to give gold and clothes at the time of
performing Pooja to the bore-well. At the time of Rakhi pourna when they
came to our house, there was Chikungunya to my husband. As my son was not
there in village, A-1 took my husband to hospital. It is not true to
suggest to avoid coolie work for my daughter, we ourselves voluntarily gave
tailoring machine to my daughter. My daughter was knowing tailoring.
Tailoring machine was given to our daughter for tailoring clothes by her.
A-1 once again went to Dubai for about two months to bring Visa service.
xxx xxx xxx
It is not true to suggest my daughter was not having a liking of A-1’s
going to foreign country second time.
xxx xxx xxx
I have studied up to IVth Standard. My son drafted the complaint by
sitting in the Govt. hospital.”
17. On a perusal of the statement of Tukkubai – PW-1, the mother of
Savita, it is apparent that the monetary gifts given to Dattaraj and his
family members, were in the nature of customary gifts exchanged during
different ceremonies. But what is of extreme significance is the fact,
that even the family of Dattaraj, the husband of Savita, had given four
tonnes of sugarcane seeds and a bag of jowar to her family, when the family
of Savita visited her matrimonial house, on the occasion of the birth of a
female child. It is acknowledged by Tukkubai – PW-1, that the aforesaid
gifts were taken by the family members of Savita to their own village, by
hiring a “tum-tum” (a horse-drawn cart). This return gift by the family of
Dattaraj was also in conformity with the customary tradition for such
occasions. It seems that the two families celebrated all festivities in
the spirit of their customary obligations. Both families engaged in
offering gifts to each other, in accord with the prevailing practice and
tradition. For this reason, the judgment rendered by this Court in the
Rajinder Singh case (supra), which was strongly relied upon by the learned
counsel for the appellant, in our considered view, would be of no avail in
the determination of the projection canvassed.
18. Insofar as the demand of Rs.20,000/- for the purchase of agricultural
land is concerned, it is apparent that the same was allegedly made when
Dattaraj was in Dubai. The said demand was allegedly made by Ningesh
(respondent – accused no.2), the father of Dattaraj, when he had gone to
leave Savita at her maternal home. Dattaraj is stated to have returned to
India from Dubai eight to ten months, after the above demand. A female
child was born to Savita about a year after the return of Dattaraj to
India. After the birth of the female child, Savita had remained in her
maternal house, for about four to five months. Therefore, even if the
above oral allegation is accepted as correct, it was a demand made about
two years before the occurrence. The same was too remote to the
occurrence, and therefore, would not satisfy the requirement of “soon
before her death” contemplated under Section 304B(1) of the Indian Penal
Code.
19. The only remaining alleged dowry demand, besides those referred to
above was, that of a sewing-machine. Yet again the position was clarified
by Tukkubai – PW-1. During her cross-examination she stated, that Savita
knew tailoring. And that, the sewing-machine was given to her for
tailoring clothes. This was really a gift to Savita, and therefore, cannot
be considered as a part of the demand made by Dattaraj, for himself or for
his family members. This allegation, in our considered view, is
inconsequential, with respect to the provisions under which the accused
were charged.
20. There was no further attribution, as against the respondent – accused
nos. 2 to 4. It is therefore not possible for us to accept, that the
prosecution was successful in establishing either harassment or violence
towards Savita, as against the aforestated accused, nor of any dowry
demand. In such view of the matter, it is difficult for us to conclude the
culpability of respondent-accused nos. 2 to 4, in the entire occurrence.
We are satisfied, that the High Court was fully justified in recording that
even the statements of Tukkubai – PW-1 and Dattatry – PW-4, did not
attribute any kind of overt act to respondent-accused nos. 2 to 4. The
High Court was, therefore, fully justified in acquitting respondent-accused
nos. 2 to 4, for the offences punishable under Sections 498A and 304B read
with Section 34 of the IPC, as also, for the charges under Sections 3, 4
and 6 of the Dowry Act.
21. For the reasons recorded hereinabove we are satisfied, that the
impugned order passed by the High Court, does not justify any interference
at our hands. The instant appeal being devoid of any merit, is accordingly
dismissed.
…………………………….J.
(Jagdish Singh Khehar)
…………………………….J.
(S.A. Bobde)
New Delhi;
February 15, 2016.
ITEM NO.1A COURT NO.3 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 326/2012
STATE OF KARNATAKA Appellant(s)
VERSUS
DATTARAJ & ORS. Respondent(s)
[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE S.A.BOBDE, JJ.]
Date:15/02/2016 This appeal was called on for
pronouncement of judgment today.
For Appellant(s) Ms. Anitha Shenoy,AOR
For Respondent(s) Mr.Anirudh Sanganeria, Adv.
Mr. Chinmay Deshpande, Adv.
Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice S.A.
Bobde.
For the reasons recorded in the Reportable judgment, which is
placed on the file, the instant appeal is dismissed, being devoid of any
merit.
(Renuka Sadana) (Parveen Kr. Chawla)
Court Master AR-cum-PS
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