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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11TH DAY OF JULY, 2018

PRESENT

THE HON’BLE MR.JUSTICE BUDIHAL R.B.

AND

THE HON’BLE MR.JUSTICE B.A. PATIL

CRIMINAL APPEAL NO.1395/2012
c/w
CRIMINAL APPEAL NO.1139/2012

IN CRIMINAL APPEAL NO.1395/2012:

BETWEEN:

State of Karnataka
by Inspector of Police
HAL Police Station
Bangalore.
…Appellant
(By Smt. B.G.Namitha Mahesh, HCGP)

AND:

1. Raviprasad
S/o Chandra
Aged about 27 years
R/at No.356/A,
1st Floor, 2nd Main Road,
A. Narayanapura, Udaynagar
Bangalore-16.
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2. Madhusudhan
S/o Chandra
Aged about 26 years
R/at No.356/A,
1st Floor, 2nd Main Road,
A. Narayanapura, Udaynagar,
Bangalore-16.

3. Chandra
S/o late Kariya
Aged about 60 years
R/at No.4/118/1, Darabayalu
Mangalore Town and Taluk
South Canara District-575 001.

4. Smt. Akkayamma @ Latha
W/o Chandra
Aged about 55 years
R/at No.4/118/1, Darabayalu,
Mangalore Town and Taluk
South Canara District-575 001.

5. Smt. Vidhyarani
W/o Venugopal
Aged about 22 years
R/at No.4/118/1, Darabayalu,
Mangalore Town and Taluk
South Canara District-575 001.

6. Venugopal
S/o late Devaiah
Aged about 33 years
R/at No.4/118/1, Darabayalu,
Mangalore Town and Taluk
South Canara District-575 001.
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7. Mahesh
S/o late Devaiah
Aged about 35 years
R/o Pete Colony
Arakalugoodu Town and Taluk
Hassan District-573 102.
…Respondents

(By Sri Amar Correa, Advocate)

This Criminal Appeal is filed under Section 378(1)
and (3) of the Cr.P.C praying to grant leave to appeal
against the judgment and order of acquittal dated
10.09.2012 passed by the XXXII Addl. City Civil and
Sessions Judge and Spl. Judge for CBI Cases, Bangalore
in S.C. No.58/2009 – acquitting the respondent/accused
for the offences punishable under Section 304B of Indian
Penal Code and Sections 3 and 4 of Dowry Prohibition
Act.

IN CRIMINAL APPEAL NO.1139/2012:

BETWEEN:

1. Sri Raviprasad
S/o Chandra
Aged about 31 years
R/at Madhura Nilaya, No.4/118/1,
Malemar, Kottara Chowki,
Mangalore-575 006

2. Madhusudhan
S/o Chandra
Aged about 30 years
R/at Madhura Nilaya, No.4/118/1,
Malemar, Kottara Chowki,
Mangalore-575 006.
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3. Sri Chandra
S/o late Kariya
Aged about 63 years
R/at Madhura Nilaya, No.4/118/1,
Malemar, Kottara Chowki,
Mangalore-575 006

4. Smt. Akkayamma @ Latha
W/o Chandra
Aged about 58 years
R/at Madhura Nilaya, No.4/118/1,
Malemar, Kottara Chowki,
Mangalore-575 006.

5. Smt. Vidhyarani
W/o Venugopal
Aged about 25 years
R/at Madhura Nilaya, No.4/118/1,
Malemar, Kottara Chowki,
Mangalore-575 006.

6. Sri Venugopal
S/o late Devaiah
Aged about 36 years
R/at Madhura Nilaya, No.4/118/1,
Malemar, Kottara Chowki,
Mangalore-575 006.

7. Mahesh
S/o late Devaiah
Aged about 38 years
R/o Pete Colony
Arakalagoodu Town
Arakalagoodu Taluk
Hassan District.
…Appellants
(By Sri Amar Correa, Advocate)
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AND:

State of Karnataka
By Mahadevapura Police Station
Represented by State Public Prosecutor
High Court of Karnataka
Bangalore.
…Respondent

(By Smt. B.G.Namitha Mahesh, HCGP)

This Criminal Appeal is filed under Section 374(2) of
the Cr.P.C praying to set aside the judgment and order
dated 10.09.2012 passed by the XXXII Addl. City Civil
and Sessions Judge and Spl. Judge for CBI Cases,
Bangalore in S.C. No.58/2009 -convicting the
appellants/accused 1 to 7 for the offence punishable
under Section 498(A) of Indian Penal Code.

These Criminal Appeals having been heard,
reserved on 01.06.2018 coming on for pronouncement of
judgment/order this day, B.A.PATIL J., delivered the
following:-

JUDGMENT

Criminal Appeal No.1139/2012 is filed by accused

Nos.1 to 7, whereas Criminal Appeal No.1395/2012 is

filed by the State through Inspector of Police, HAL Police

Station challenging the judgment and order dated

10.9.2012 passed by the XXXII Additional City Civil and
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Sessions and Special Judge for CBI Cases, Bangalore

(CCH-34) in SC.No.58/2009 by which accused Nos.1 to 7

are convicted for the offence punishable under Section

498A of IPC and acquitted of the offences punishable

under Section 304B of IPC and Sections 3 and 4 of Dowry

Prohibition Act, 1961. (‘DP Act’ for short).

2. Case of the prosecution as per the complaint at

Ex.P1, in brief is that marriage of the deceased Triveni

with accused No.1 was performed on 26.11.2007. Prior

to the marriage, marriage negotiations were held and at

the time of marriage, cash of Rs.5,00,000/-, a watch, a

ring and a chain were given as dowry. Accused No.1 was

working as a Lecturer in Reva Engineering College and

after the marriage, the couple started living in a rented

house and brother-in-law of the deceased (brother of

accused No.1), who was working in ISRO Company was

also staying with them. At the time of marriage, accused

No.1 asked to give Rs.9,00,000/- and as it was agreed
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for Rs.5,00,000/-, the same was paid. Thereafter

accused No.1 and other accused persons started

demanding Rs.4,00,000/-. He quarrelled with the

complainant that if the said demand is not fulfilled by

him, he would send back the deceased to her parental

house and he would spoil her life. Whenever the parents

of the deceased used to visit the matrimonial house of

the deceased, she used to inform by crying that accused

No.1 was demanding dowry by harassing and ill-treating

her. So also, her brother-in-law Madhusudhan-accused

No.2 used to harass and ill-treat her by saying that they

developed the relationship with an indigent family.

Accused No.2 also used to tell that if the deceased does

not bring dowry amount, she should go out of the house

and they would perform the marriage of accused No.1

with another girl, thereby used to taunt and harass her

both physically and mentally. It is further case of the

prosecution that Vidyarani-accused No.5, sister of

accused No.1 used to demand over phone saying that
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she needs cash and gold ornaments or otherwise, she

would perform the marriage of accused No.1 with

another girl. Venugopal, the husband of accused No.5-

Vidyarani and brother of Vidyarani namely Mahesh-

accused No.7, used to demand cash and gold ornaments.

If their demand is not fulfilled, they would ill-treat and

harass the deceased. The parents of accused No.1 were

also demanding dowry. As the deceased was a loving and

affectionate daughter of the complainant and in order to

see that she should lead happy marital life with accused

No.1, who was a Lecturer and he should look after the

deceased very well, they had performed the marriage.

However, accused persons strangulated her for demand

of dowry and hence the complainant requested for a legal

action against the accused persons. On the basis of the

said complaint a case came to be registered in

Crime.No.197/2008 by Mahadevapura Police against the

accused persons for the offences punishable under

Section 304B of IPC and Sections 3 and 4 of DP Act.
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After completion of investigation, the Investigating

Officer has laid the charge against them. The committal

Court committed the case to the Sessions Court. The

Sessions Court took cognizance and after hearing both

the parties, framed the charge and the same was read

over and explained to the accused persons. They pleaded

not guilty and claimed to be tried and as such trial was

fixed.

3. In order to prove its case, the prosecution in all

has examined 26 witnesses and got marked 34 Exhibits

and 18 Material Objects. Thereafter the statement of the

accused came to be recorded under Section 313 of

Cr.P.C. by putting incriminating materials against them.

Accused persons denied the same and led the evidence

by examining DWs.1 to 4 and getting marked Exhibits D1

to D7. After hearing the learned counsel for the parties,

the impugned judgment and order of conviction and

sentence came to be passed by the trial Court. Assailing

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the same, the accused persons have filed Criminal Appeal

No.1139/2012 in so far as their conviction for the offence

punishable under Section 498A of IPC is concerned and

the State being aggrieved by their acquittal of the

offences punishable under Section 304B of IPC and

Sections 3 and 4 of DP Act, has filed Criminal Appeal

No.1395/2012.

4. The main grounds urged by Smt.Namitha

Mahesh, learned HCGP appearing for the State are that

the prosecution has clearly established its case by

examining PWs.1, 2, 7, 9, 15, 20 and 21 to show that

prior to marriage there were marriage talks and at that

time, the accused persons demanded dowry and

ultimately it was also negotiated and settled. Thereafter

the dowry has been paid to the accused persons and the

marriage was also performed by spending huge amount.

Few months after the marriage, the accused persons

started ill-treating and harassing the deceased by

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pressurizing her to bring additional amount of dowry and

as such the deceased committed suicide. The

prosecution has also established the fact that death of

the deceased is within seven years after the marriage

and death of the deceased is homicidal death. Under

such circumstances, the Court ought to have drawn the

presumption under Section 113B of the Indian Evidence

Act (‘Act’ of short) and it ought to have held that the

death of the deceased is a dowry death and even the trial

Court ought to have come to the conclusion that the

deceased was subjected to cruelty by her husband

accused No.1 and his relatives accused Nos.2 to 7 and

therefore the trial Court ought to have also answered the

said issue in the affirmative. In that light, the trial Court

ought to have raised the presumption under Section

113B of the Act. When once the presumption is drawn,

then the burden lies on the accused to rebut the same.

Though the accused persons have not rebutted the said

presumption and only because the deceased was

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suffering from herpes genetalis, the trial Court has come

to a wrong conclusion and has acquitted the accused of

the offences punishable under Section 304B of IPC and

Sections 3 and 4 of the DP Act. The defence taken by

the accused persons is also not a just and proper and the

said fact has not been properly considered and

appreciated by the trial Court. The trial Court ought to

have convicted the accused persons for the said offences.

On these grounds he prayed for allowing the appeal filed

by the State by setting aside the order of acquittal.

5. Per contra, Sri Amar Correa, learned counsel

appearing for the accused persons vehemently argued

that the trial Court has wrongly come to the conclusion

that there was a physical and mental cruelty by the

accused persons as against the deceased. Even PW.2,

the mother of the deceased has clearly admitted the fact

that the deceased Triveni was treated in the hospital

wherein it was recognized that she was suffering from

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herpes genetalis and as per the evidence of the doctor-

DW.4 it is not a permanently curable disease and in that

light the deceased was under depression and she

committed suicide. Even the doctor who conducted the

postmortem has clearly stated that the death is due to

asphyxia and there were no injuries found over the body

of the deceased. Under such circumstances, the trial

Court ought to have held that there was no ill-treatment,

harassment and demand for dowry by the accused

persons. On taking into consideration the said aspect, by

a detailed discussion the trial Court has rightly acquitted

the accused persons of the offences punishable under

Section 304B of IPC and Sections 3 and 4 of DP Act, but

has wrongly convicted them for the offence punishable

under Section 498A of IPC. He further submitted that

the conduct of the accused is also much relevant at the

time of appreciation of the evidence. There was no

malice and even after coming to know the fact that the

deceased was suffering with sexually transferable disease

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and it may affect accused No.1, in spite of that he

provided the treatment and even he allowed her to stay

with him. Under such circumstances, the question of

accused No.1 demanding the additional dowry cannot be

acceptable and reliable. He further submitted that

though there were no complaints prior to the death of

the deceased and even the parents of the deceased also

have not visited the house of the accused persons and

the deceased has not complained about the harassment

and ill-treatment, the trial Court has wrongly held that

there was ill-treatment and harassment by the accused

persons. He further submitted that accused No.1 has

allowed the deceased to appear for KPSC Exams and she

was also preparing for the said Exams. He further

submitted that when she was suffering with sexually

transferable disease, she might have thought that it is

not proper on her part to go with the conjugal rights and

in that light she might have committed the suicide under

depression. It is the human tendency and the mental

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condition which determines at the relevant point of time.

He further submitted that though there are omissions

and contradictions and there is no consistency in the

evidence for demand of dowry, the trial Court has

wrongly convicted the accused persons for the offence

punishable under Section 498A of IPC. He further

submitted that as accused Nos.3 to 6 are residents of

Mangalore, the question of they ill-treating and harassing

the deceased for demand of dowry does not arise at all.

On these grounds, he prayed for allowing the appeal filed

by the accused persons and requested for dismissal of

the appeal filed by the State.

6. We heard the learned HCGP appearing for the

State and the learned counsel appearing for the accused

persons and perused the grounds urged in both the

appeals and the evidence and materials on record

carefully and cautiously.

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7. Before going to discuss the evidence on record,

there are some admitted facts, which are relevant in this

case. It is not in dispute that the marriage of the

deceased and accused No.1 was performed on

26.11.2007 and thereafter the deceased started residing

with accused No.1. It is also not in dispute that the

deceased Triveni is the 3rd daughter of PW.1 and her

death took place in the house of accused No.1.

8. In order to prove that the accused persons ill-

treated and harassed the deceased for demand of dowry,

prosecution has relied upon the evidence of PWs.1, 2, 3,

7, 9, 10, 15, 20 and 21. PW.1 has deposed that the

marriage of the deceased with accused No.1 was

performed on 26.11.2007. Prior to the marriage,

himself, his younger brother, brother-in-law, his wife sat

together and discussed that accused No.1 suits their

daughter and thereafter they agreed to give her in

marriage to accused No.1. Thereafter the relatives of

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accused No.1 came to Bangalore and they decided to

perform the betrothal ceremony. One month prior to

betrothal ceremony there were marriage talks in the

house of PW.1 and at that time, himself, his relatives like

his younger brother Rakesh Kumar, his co-brother

Thimmaiah, sister-in-law Indira, brother-in-law

Parashivaprasad were present and his friends Ramdas

Ventataramanaiah and his son’s friend Prasad were also

present, whereas, on the side of accused No.1, his

brother Madhusudhan, father Chandra, mother Latha

sister Vidyarani, husband of Vidyarani Venugopal,

brother of Venugopal Mahesh were present. PW.1

further deposed that accused No.1 and his father

demanded for dowry of cash of Rs.9,00,000/- along with

wrist watch, golden ring, bracelet, an amount of

Rs.10,000/- for suit, Rs.6,000/- for clothes for

muhartham and a golden chain. He further deposed that

accused persons demanded 50 savaran of gold

ornaments to his daughter Triveni, besides mangalya

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chain, golden bangles, necklace and ear studs. They

further demanded silver pooja articles. Due to his

poverty he told them that he was not in a position to pay

such amount of dowry. However, he showed his

readiness to pay dowry of Rs.5,00,000/- and other

articles. He further deposed that on 5.7.2007 there was

betrothal ceremony and at that time he presented one

golden ring to accused No.1 and at that time his father

was also present, so also one golden ring to his daughter

Triveni and an amount of Rs.10,000/- was paid for

purchase of suit and as per their demand he also paid

Rs.6,000/- for purchase of clothes for muhurtham. He

further deposed that one day prior to muhurtham, they

had been to kalyanamantapa where accused No.1 and his

father demanded Rs.5,00,000/- which he paid to accused

No.1 in the presence of his sons, friends and his

relatives. At that time, relatives of the accused persons

were also present. He further deposed that accused No.1

who in turn paid the said amount to his father. He

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further deposed that at that time, he has also given

golden ornaments and the marriage was performed. He

further deposed that three days after the marriage, his

daughter Triveni informed him over the phone that

accused demanded Rs.9,00,000/-, however, only

Rs.5,00,000/- was paid by PW.1 and the same was less.

Deceased also told him that there was a balance of

Rs.4,00,000/- to be paid by PW.1 which has to be paid as

the accused persons were insisting to pay the said

amount. PW.1 was also told that accused persons

started abusing the deceased under the pretext of

bringing the said amount.

9. PW.1 further deposed that one and half months

thereafter, he went to the house of accused No.1 along

with his wife, his sons, brother-in-law and sister-in-law.

When they were about to reach, they saw all the accused

persons in the house of accused No.1. He enquired as to

why the accused persons were demanding dowry and ill-

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treating the deceased and showed his inability to pay the

dowry of Rs.4,00,000/- and requested them not to ill-

treat the deceased Triveni. Thereafter they came back to

their place. One week thereafter he received a phone

message from accused No.3 that he has not paid the

dowry amount as demanded by them and therefore he

cannot come and talk to his daughter Triveni and even

they would not allow the deceased to come to her

parents’ house. Two or three days after, again deceased

informed him over phone that accused persons were

insisting for payment of Rs.4,00,000/- and threatening

that they would kill her. She also informed him that

accused No.2 harassing her by saying that they had

developed relationship with an indigent family and if they

performed the marriage of accused No.1 with another

girl, they would have got more dowry. The deceased

also informed about harassment of accused No.5 by

saying similar words. The accused persons were ill-

treating her by using abusive words and pressuring her

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to bring further dowry and she is afraid too much on

account of their ill-treatment. He further deposed that

he was thinking to file complaint before the police against

the accused persons regarding the said ill-treatment.

10. One week thereafter, accused came to his

house and told him that they were in angry and therefore

they put such words and requested him not to file any

complaint against them. They also assured that they

would take proper care of his daughter Triveni. Believing

the same, he kept silent without filing any complaint.

Again in the month of February, 2008 his daughter

Triveni informed him over phone that accused persons

were asking to spare her golden ornaments since

accused had to perform baby’s shower function

(seemantha) of accused No.5 and also informed that she

was not ready to spare the said ornaments. On the same

day, Triveni also informed him over phone that accused

were demanding at least Rs.50,000/- towards expenses

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of the said function. She also told that her husband-

accused No.1 assaulted her by saying that she should not

talk with PW.1 and broken the phone and therefore she

was making a call from the outside phone. He further

deposed that he assured his daughter that he has to

receive some amount from somebody and he would

provide some amount to the accused. He further

deposed that when Ashada month commenced, he went

to the house of accused with his family members and

requested them to send his daughter to his house for

which, they told that as he has not paid the remaining

amount of dowry of Rs.4,00,000/- and as he has not

even paid at least Rs.50,000/-, they were not ready to

send the deceased with him. They also told that he has

not allowed the deceased to spare the golden ornaments

of his daughter. He further deposed that on the next day

he telephoned accused Nos.3 and 4 requesting them to

send Triveni and he would make arrangements for

money later, for which they told that they were not ready

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to send the deceased to his house and asked him to

forget her. Even accused No.1 also told the same thing.

On 25.6.2008, he telephoned to accused No.1 that they

would come on the next day to take his daughter to his

house. But accused No.1 told that he was not ready to

send the deceased to his house and he would kill her.

On 26.6.2008 at about 6.30 a.m., he received a phone

call from accused No.1 stating that his daughter Triveni

committed suicide by hanging herself. During the course

of cross-examination of this witness, nothing has been

elicited so as to discard his evidence.

11. Even the evidence of PW.2, the mother of the

deceased, PW.3, the brother of the deceased, PW.7,

relative of the deceased who was present at the time of

marriage talks, PW.9, the brother of PW.1, PW.10, the

brother of the deceased and PWs.20 and 21, the relatives

of PW.2 have also consistently stated in their evidence

regarding the said fact. On going through the evidence

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of all these witnesses it clearly goes to show that prior to

the marriage there was marriage negotiation and as

agreed an amount of Rs.5,00,000/- and gold ornaments

were paid to the accused persons and thereafter there

was ill-treatment and harassment against the deceased

by the accused for further demand of dowry and also to

give gold ornaments. Even the evidence of PW.1 and

other witnesses clearly goes to show that though PW.1

was intending to file the complaint, as per the request of

the accused persons, he did not file any complaint and

even when PW.1 called over phone on 25.6.2008 accused

No.1 has told that he was not ready to send the

deceased to his house and he would kill her and

immediately thereafter on 26.6.2008 accused No.1

himself called PW.1 and informed that his daughter

Triveni committed suicide by hanging herself. All these

material facts clearly go to show that soon before the

death, the deceased was subjected to ill-treatment and

harassment by the accused for demand of dowry. The

– 25 –

records reveal that there was a demand of dowry in the

form of gold and cash and even the accused persons

used to ill-treat and harass the deceased. Though during

the course of arguments the learned counsel for the

appellants-accused contended that there is no

consistency with regard to the demand of the amount, as

could be seen from the evidence of PWs.1 and 2 and

other witnesses, there is evidence for demand of

Rs.4,00,000/- and for sparing the gold ornaments which

were given to the deceased Triveni at the time of

marriage. Further progression of the event just prior to

the marriage till the unnatural death of the deceased

Triveni not only provides an in severable link inter se but

also unambiguously demonstrates the build up

intolerable mental and physical torture upon the

deceased Triveni, which made her to commit suicide.

Even the evidence produced by the prosecution clearly

goes to show that the deceased had informed PW.1

about the said ill-treatment and harassment caused by

– 26 –

the accused persons over phone. During the course of

cross-examination of the witnesses, nothing has been

brought out as to why they are falsely deposing against

the accused persons in this regard.

12. It is well established principle of law that when

once the prosecution establishes that within seven years

of marriage the deceased has died unnaturally and was

subjected to cruelty and harassment by her husband or

his relatives for demand of dowry or gold, then the

legislative mandate of drawing a statutory presumption

under Section 113B of the Act would apply.

13. The rule of presumption, is a rule that the Court

“may” or “shall”, draw a particular inference from a

particular set of facts or evidence until the substance of

such inference is rebutted. Drawing a statutory

presumption is a technique, which treats facts as proved

by proof or admission of certain other facts.

Presumptions are drawn connecting the co-existence of

– 27 –

facts and circumstances. This proposition of law has been

laid down in the case of M/s. Sodhi Transport

Company Vs. State of U.P. reported in AIR 1986 SC

1099.

14. For the purpose of brevity at this juncture, we

feel it to extract Section 113B of the Act, which reads as

under:-

“113B. Presumption as to dowry death.- When
the question is whether a person has
committed the dowry death of a woman and it
is shown that soon before her death such
woman has 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.”

15. Keeping in view the aforesaid proposition of law

the Hon’ble Apex Court in the case of Kans Raj vs. State

of Punjab reported in (2000) 5 SCC 207, the Hon’ble

Supreme Court dealt with the presumption available in terms

– 28 –

of Section 113B of the Act and its effect on finding persons

guilty in terms of Section 304B of the IPC in the following

words:

“9. The law as it exists now provides that
where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than
under normal circumstances within 7 years of
marriage and it is shown that soon before her
death she was subjected to cruelty or
harassment by her husband or any relative for
or in connection with any demand of dowry
such death shall be punishable under Section
304-B. In order to seek a conviction against a
person for the offence of dowry death, the
prosecution is obliged to prove that:

(a) the death of a woman was caused by burns
or bodily injury or had occurred otherwise
than under normal circumstances;

(b)such death should have occurred within 7
years of her marriage;

(c) the deceased was subjected to cruelty or
harassment by her husband or by any
relative of her husband;

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(d)such cruelty or harassment should be for or
in connection with the demand of dowry;
and

(e) to such cruelty or harassment the deceased
should have been subjected soon before
her death.”

16. Section 113B of the Act has also been

considered in the case of Thakkan Jha and others vs.

State of Bihar reported in (2004) 13 SCC 348 as

under:

“7. No presumption under Section 113B of
the Evidence Act would be drawn against the
accused if it is shown that after the alleged
demand, cruelty or harassment the dispute
stood resolved and there was no evidence of
cruelty or harassment thereafter. Mere lapse
of some time by itself would not provide to an
accused a defence, if the course of conduct
relating to cruelty or harassment in connection
with the dowry demand is shown to have
existed earlier in time not too late and not too
stale before the date of death of the victim.

– 30 –

This is so because the expression used in the
relevant provision is “soon before”. The
expression 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. The
expression is pregnant with the idea of
proximity test. It cannot be said that the
term “soon before” is synonymous with the
term “immediately before”. This is because of
what is stated in Section 114 Illustration (a) of
the Evidence Act. The determination of the
period which can come within the term “soon
before” is left to be determined by the courts,
depending upon the facts and circumstances
of each case. Suffice, however, to indicate
that the expression “soon before” would
normally imply that the interval should not be
much between the cruelty or harassment
concerned and the death in question. There
must be existence of a proximate and live link
[see Hira Lal v. State (Govt. of NCT), Delhi].”

– 31 –

17. Once the prosecution discharges its initial

burden of proving all the ingredients of dowry death as

laid down under Section 304B of IPC by preponderance of

probabilities, Section 113B of the Act mandatorily

requires the Court to draw an adverse inference against

the accused. Then, the burden shifts upon the accused to

disprove the said presumption by preponderance of

probabilities. This position of law has been laid down in

the case of Sher Singh Alias Partap vs. State of Haryana

reported in (2015) 3 SCC 724l as under:

“9. The legal regime pertaining to the death
of a woman within seven years of her
marriage thus has numerous features, inter
alia:

(i) The meaning of “dowry” is as
placed in Section 2 of the Dowry
Prohibition Act.
(ii) Dowry death stands defined for all
purposes in Section 304 IPC. It
does exclude death in normal
circumstances.
– 32 –

(iii) If death is a result of burns or
bodily injury, or otherwise than
under normal circumstances, and it
occurs within seven years of the
marriage and, it is “shown” in

contradistinction to “proved” that
soon before her death she was
subjected to cruelty or harassment
by her husband or his relatives,
and the cruelty or harassment is
connected with a demand of dowry,
it shall be a dowry death, and the
husband or relatives shall be
deemed to have caused her death.

(iv) To borrow from Preventive
Detention jurisprudence-there must
be a link between the cruelty
emanating from a dowry demand
and the death of a young married
woman, as is sought to be
indicated by the words “soon
before her death”, to bring Section
304-B into operation; that live link
will obviously be broken if the said
cruelty does not persist in

– 33 –

proximity to the untimely and
abnormal death. It cannot be
confined in terms of time; the
query of this Court in the context of
condonation of delay in filing an
appeal-why not minutes and
second-remains apposite.

(v) The deceased woman’s body has to
be forwarded for examination by
the nearest civil surgeon.

(vi) Once the elements itemised in (iii)
above are shown to exist the
husband or relative shall be
deemed to have caused her death.

(vii) The consequences and
ramifications of this “deeming” will
be that the prosecution does not
have to prove anything more, and
it is on the husband or his relative
concerned that the burden of proof
shifts as adumbrated in Section
113-B, which finds place in Chapter
VII of the Evidence Act. This
Chapter first covers “burden of
proof” and then “presumption”,

– 34 –

both being constant bed-fellows.

In the present context, the
deeming or presumption of
responsibility of death are
synonymous.”
x x x

14. In Section 113-A of the Evidence
Act, Parliament has, in the case of a

wife’s suicide, “presumed” the guilt of
the husband and the members of his
family. Significantly, in Section 113-B
which pointedly refers to dowry deaths,
Parliament has again employed the word
“presume”. However, in substantially
similar circumstances, in the event of a
wife’s unnatural death, Parliament has in
Section 304-B “deemed” the guilt of the
husband and the members of his family.
xxx”

18. In yet another decision, in the case of

M. Narayana vs. State of Karnataka reported in

(2015) 6 SCC 465, after referring to Section 498-A of

– 35 –

the IPC, the relevant portion of the observations of the

Hon’ble Supreme Court can be culled out as under:

“Under Section 304-B defining “dowry death”,
there will be a statutory presumption against
the husband for having caused the death of a
woman resulting from burns or bodily injury or
occurring otherwise than under normal
circumstances within seven years of her
marriage accompanied by the proof that soon
before her death she had been subjected to
cruelty or harassment by him or any of his
relatives for, or in connection with, any
demand for dowry. Not only Section 304-B
enjoins a statutory presumption of the guilt of
the husband on the proof of the eventualities
as mentioned therein, Section 113-B of the
Evidence Act, 1872 fortifies such presumption
in the probative perspectives. Section 304-B
IPC and Section 113-B of the Evidence Act,
1872, do supplement each other to effectuate
the legislative mandate of statutory
presumption of guilt, the contingencies
warranted being present.”

– 36 –

19. Keeping in view the above judicial precedent

and on careful consideration of the evidence by us, it

would clearly indicate that immediately after the

marriage, for some period deceased Triveni and accused

No.1 led happy marital life and thereafter accused No.1

and other accused persons started ill-treating and

harassing her and also used to assault the deceased for

demand of dowry and to depart with the gold as a result

of the same, she also informed her father and even his

father also assured that he is likely to get some funds

and he is going to give the same. But as could be seen

from the evidence produced by the prosecution it clearly

goes to show that soon before the death of the deceased

Triveni accused persons ill-treated and harassed her and

as a result of the same, she died in the house of accused

unnaturally by committing suicide by hanging herself.

20. On careful consideration of the evidence of the

prosecution though there are minor inconsistencies in the

– 37 –

evidence of the witnesses, by and large there is

corroboration in the evidence of all the witnesses and the

said evidence is worth believable, creditworthy and

reliable. Under such circumstances, now the burden

shifts upon the accused to rebut the said presumption on

preponderance of probabilities.

21. It is the case of the appellants-accused that

deceased Triveni was suffering from herpes genetalis

which is sexually transmissible and the said disease

causes fever, body pain, white discharge from vagina and

ulcer on the genital organ. It is also the case of the

accused that because of the said disease it might have

drawn her to depression and as the doctor who treated

her also told that it is not permanently curable and even

accused No.1 also took her to the hospital and even he

has also not forced her for cohabitation and he was ready

to co-operate with her and there were no complaints as

against accused No.1 in this behalf. It is also the case of

– 38 –

the accused that the conduct of the accused also shows

that there is no malice and there was no demand for

dowry. The deceased committed suicide because of the

depression due to the disease with which she was

suffering. Relying on the evidence of DW.4 and PW.2

learned counsel for the accused further submitted that

accused No.1 had taken the deceased to Malya Hospital

where the deceased was examined and thereafter even

accused No.1 told the deceased that she should not

worry about the said disease and even he asked her in

detail with regard to problem and whenever he used to

ask the deceased she used to weep and used to tell him

that there was possibility of infection to the child in the

event of they getting the child and in that light she used

to refuse for cohabitation. It is also the submission of

the learned counsel for the appellants that the deceased

told accused No.1 that because of the said disease, her

all feelings were killed and she used to be under

depression, which made her to commit suicide. He

– 39 –

further submitted that the trial Court after considering

the facts in detail as there was no other alternative, has

rightly acquitted the accused for the offence punishable

under Section 304B of IPC. He further submitted that

the accused persons have produced the relevant

documents to rebut the said presumption on

preponderance of probabilities and the same may be

accepted and the order of acquittal passed by the trial

Court may be confirmed.

22. We have carefully and cautiously gone through

the submissions made in this behalf. In order to

substantiate the contention of the accused persons,

accused No.1 himself got examined as DW.2 who

deposed that there were no marriage talks and as the

deceased was qualified they could not impose any

conditions, but they had to share the expenses of the

marriage. DW.2 further deposed that on 5.7.2007 there

was betrothal ceremony and only as per the custom he

– 40 –

presented golden ring to the deceased and she presented

one golden ring to him. Except that nothing was paid to

accused No.1. He further deposed that deceased Triveni

was preparing for KPSC Exams and he used to extend full

co-operation for the said preparation as he was also

preparing for IAS Exams. He also used to accompany

her to her parental house. She never used to visit alone

to her parents house. She was very close to her cousin

sister Dr.Ashwini to whom she used to meet. Whenever

he used to insist the deceased for cohabitation, she used

to refuse and he was under the impression that she

might be having difficulty of menstrual cycle and

therefore she was refusing for cohabitation. On

15.1.2008 when he insisted for cohabitation, she totally

refused and thereafter he came to know that she was

suffering from infection to her genital organ and she was

having difficulty in that regard. She was also having pain

in her genetic organ. He further deposed that when he

asked about her problem she told nothing perhaps she

– 41 –

started weeping and told him to take her to the house of

PW.1. On 16.1.2008, he took the deceased to the house

of PW.1, where he found her mother PW.2 to whom he

told the difficulty of the deceased to which PW.2 told that

she would take an appointment in Malya Hospital and

thereafter they went to Malya Hospital and consulted the

family doctor. Accused No.1 also accompanied them in

the Hospital. When they were returning, accused No.1

asked the deceased regarding her problem and she told

that she is having viral infection to her genetic organ and

it is not coming under control though she is taking

tablets and treatment. She also told that in the event of

they getting the child, normal delivery cannot be possible

and if the infection is repeated, she has to undergo

caesarian and there is possibility of infection to the child

in the event of normal delivery. She also told that she

has to take medicine for lifelong and it is unbearable for

her. He further deposed that thereafter her behavior has

been changed. They did not have any cohabitation. He

– 42 –

further deposed that he has not ill-treated the deceased

and has not demanded any gold or money even for the

purpose of baby’s shower (seemantha) of his sister

Vidyarani.

23. During the course of his cross-examination,

DW.2 has admitted that the deceased had completed her

M.A. Degree and as he had to appear for KPSC Exams,

she was preparing for the said Exams. He further

deposed that his father was working as an Attender in

the Bank and he retired at the time of his marriage. He

has also admitted that four months prior to his marriage,

marriage of accused No.5 was performed with accused

No.6. He has also admitted that his family is a poor

family.

24. In order to substantiate their contention

accused have also examined DW.4-Dr.Seetha Rajan,

working as a Gynecologist in Malya Hospital, Bangalore,

who deposed that she treated the deceased Triveni who

– 43 –

was having the history of lesions on her genetic organ

one week prior to her treatment. She further deposed

that Triveni was suffering from herpes genetalis which

would cause viral infection due to sexual transmission.

She further deposed that such disease would cause fever,

body pain, white discharge from the vagina and ulcer on

the genital organ. She further deposed that it is not a

serious disease and she advised the deceased Triveni to

take Famcyclovir tablets and seitzbath. She further

deposed that said disease may be recurrent and

generally not very painful with subsequent episode. The

patient can continue physical union like sexual

intercourse. Such disease may spread to the husband on

account of continuous physical union during the attack.

She further deposed that patient can get pregnancy even

with herpes genetalis, however the delivery would be by

caesarean section in case the patient was active at the

time of delivery. If the normal delivery was undertaken

at the time of ailment there was possibility of infection to

– 44 –

the child. If the ailment was not active, normal delivery

may be undertaken which would not cause any infection

to the newborn child. The disease could be managed by

regular treatment by taking pain killers whenever

required. Further she deposed that she does not know

whether deceased Triveni was under depression. This

witness has been treated as hostile by the learned

counsel for the accused and the suggestions made in this

behalf are denied, except admitting that permanent cure

is not possible. The suggestion that the patient suffering

from herpes genetalis should undergo caesarean section

delivery instead of normal delivery. During the course of

cross-examination, nothing has been elicited from the

mouth of this witness.

25. It is the contention of the learned counsel for

the appellants that because of the disease herpes

genetalis, which is a sexually transmissible disease, the

deceased was under the depression and as such she

– 45 –

committed suicide. It is not in dispute that the deceased

Triveni committed suicide by hanging herself to the fan

and the death of the deceased is within seven years after

the marriage. Now on close scrutiny of the evidence

produced by the accused and even during the course of

cross-examination, it clearly goes to show that though

the deceased Triveni was suffering from herpes genetalis

which is a viral infection and sexual transmissible disease

on account of continuous physical union, as could be

seen from the evidence of the doctor-DW.4, at

paragraph-4, she has clearly deposed that it is not a

serious disease and the said disease may be recurrent

and generally not very painful with subsequent episode

and she does not know whether deceased was under

depression. Admittedly, during the course of cross-

examination of PW.2, the suggestion that prior to the

marriage, deceased was suffering from the said problem

and she used to visit to the hospital and subsequently

when she visited Malya Hospital on 16.1.2008 she told

– 46 –

that she was having the said infection prior to her

marriage was denied by PW.2. If that being the case, as

deposed by the doctor-DW.4 that the said disease will

not be very painful in subsequent episode, then under

such circumstances, the deceased being under

depression for having affected with the said disease does

not arise at all. Be that as it may, it is the contention of

the learned counsel for the accused that accused No.1

himself has taken the deceased for treatment and after

coming to know that she was suffering from the said

disease, she was not forced for cohabitation and even

accused No.1 was looking after her well by supporting

her to prepare for KPSC Exams. Under such

circumstances, question of deceased Triveni undergoing

depression does not arise at all. When accused No.1, the

husband of the deceased after coming to know about the

said disease, if he has really not forced for cohabitation

and he was looking after her well, then under such

circumstances, she would be very proud of himself

– 47 –

though she was suffering from the said disease and it will

not make her to get depressed, though the said disease

is not permanently curable one. No woman will be under

depression if her husband starts looking after her well

even after coming to know about such disease. In that

light, though the learned counsel for the appellants-

accused has contended that the deceased was suffering

from the disease herpes genetalis and she was under

depression and as such she committed suicide is not

acceptable that too when the doctor-DW.4 who has been

examined by the defence has specifically deposed that

she does not know whether the deceased Triveni has

undergone depression. Even nothing has been elicited

from the mouth of any of the witnesses that a person

who is suffering from the disease herpes genetalis, will

be under depression.

26. In the light of the above discussion held by us,

we are of the considered opinion that the trial Court has

– 48 –

not properly appreciated the evidence produced by both

the sides and has also not appreciated the factual

situation in its right perspective. When once the

evidence produced clearly goes to show that a person

suffering from the disease herpes genetalis will not be

under depression, then under such circumstance, she

being committing suicide because of such depression

cannot be acceptable. The next alternative possibility is,

it is only because of the ill-treatment and harassment

caused by the accused persons the deceased has

committed the suicide. The evidence produced by the

prosecution as appreciated by us above, there is

sufficient material to show that accused persons ill-

treated and harassed the deceased for demand of dowry.

When once the accused-appellants have failed to rebut

the presumption on preponderance of probabilities, then

under such circumstances, the case of the prosecution

stands proved. In that light, the accused-appellants are

liable to be convicted for the offences punishable under

– 49 –

Section 304B of IPC and also under Sections 3 and 4 of

DP Act.

27. Keeping in view the aforesaid facts and

circumstances, we have cautiously and carefully gone

through the judgment and order passed by the trial

Court. Though the trial Court has discussed the evidence

in detail and has come to the conclusion that the

prosecution has proved the offence of the accused

punishable under Section 498A of IPC, while appreciating

the evidence in so far as the offence punishable under

Section 304B of IPC, it has reached a wrong conclusion

and has passed the impugned judgment and order which

is perverse and illegal. Therefore, the impugned

judgment and order needs to be interfered with by this

Court in so far as the above aspects are concerned.

In view of the above, Criminal Appeal

No.1395/2012 filed by the State is allowed and Criminal

– 50 –

Appeal No.1139/2012 filed by the accused persons is

dismissed being devoid of merits.

Accused persons-Appellants in Criminal Appeal

No.1139/2012 are convicted for the offences punishable

under Section 304B of IPC and also Sections 3 and 4 of

DP Act. In so far as the judgment and order passed by

the trial Court convicting the accused for the offence

punishable under Section 498A of IPC and imposing

sentence on them for the said offence is concerned, the

same is confirmed.

Sd/-

JUDGE

Sd/-

JUDGE
*ck/-

– 51 –

ORDER ON SENTENCE

Having arrived at the conclusion to convict accused

Nos.1 to 7-respondent Nos.1 to 7 in Criminal Appeal

No.1395/2012 (appellants in Criminal Appeal

No.1139/2012) and after pronouncement of the

judgment, we heave heard the learned counsel appearing

for accused Nos.1 to 7 and the learned HCGP for the

State regarding sentence.

2. Learned counsel appearing for accused Nos.1 to

7-respondent Nos.1 to 7 in Criminal Appeal

No.1395/2012 (appellants in Criminal Appeal

No.1139/2012) submitted that a lenient view may be

shown in respect of accused Nos.1 to 7 as they have

suffered since the year 2012 and the trial Court has also

acquitted them for the alleged offence. Accused Nos.2 to

7 are having families to be nourished by them and

accused No.1 is also now got married. If the maximum

– 52 –

punishment is imposed, it creates greater hardship to the

accused and also their families.

3. Per contra, learned HCGP appearing for the State

vehemently argued by contending that the accused

persons have committed the offence punishable under

Section 498A of IPC by ill-treating and harassing the

deceased and thereby they have committed the offences

punishable under Section 304B of IPC and Sections 3 and

4 of Dowry Prohibition Act. Therefore, maximum

punishment for the said offences is to be imposed so as

to send a signal to the Society that such persons are to

be dealt with iron hand and they will not be spared.

4. We have considered the submissions made by

the learned counsel for both parties. At the time of

imposition of sentence, the Court no doubt has to keep in

mind the fact that sending an accused behind bars is not

only a just desert, but also for his reformation, as has

been observed in appropriate cases. But, at the same

time, the Court has to strike a balance keeping in view

– 53 –

the gravity of the offence committed and the effect of

punishment on the Society at large and on victim’s

family. The sentence in a case should send a signal to

the Society about the guilty being punished. The Court

has to strike a balance between reformative as opposed

to punitive theories of criminal law, as laid down by

Parliament and as held by the Hon’ble Apex Court in the

case of Siddrama and others Vs. State of Karnataka,

reported in AIR 2006 SC 3265.

5. Further, it is the duty of the Court to impose

proper punishment depending upon the degree of

criminality and desirability to impose such punishment.

As a measure of social necessity and also as a means of

deterring other potential offenders, the sentence should

be appropriate, befitting the crime as held by the Hon’ble

Apex Court in the case of Akram Khan Vs. State of

West Bengal reported in 2012(1) Crimes 5(SC). In

the light of the above, we impose the following sentence

on accused Nos.1 to 7-respondent Nos.1 to 7 in Criminal

– 54 –

Appeal No.1395/2012 (appellants in Criminal Appeal

No.1139/2012):-

1) Accused Nos.1 to 7-respondent Nos.1
to 7 in Criminal Appeal No.1395/2012
(appellants in Criminal Appeal No.1139/2012)
are convicted for the offence punishable under
Section 304B of IPC. They are sentenced to
undergo RI for a period of seven years.

2) Accused Nos.1 to 7-respondent Nos.1 to
7 in Criminal Appeal No.1395/2012 (appellants
in Criminal Appeal No.1139/2012) are also
convicted for the offence punishable under
Section 3 of Dowry Prohibition Act. They are
sentenced to undergo RI for five years and to
pay fine of Rs.15,000/- each (Rupees fifteen
thousand only), in default to pay fine, they
shall undergo SI for further period of three
months.

3) Accused Nos.1 to 7-respondent Nos.1 to
7 in Criminal Appeal No.1395/2012 (appellants
in Criminal Appeal No.1139/2012) are further
convicted for the offence punishable under
Section 4 of Dowry Prohibition Act. They are

– 55 –

sentenced to undergo RI for a period of six
months and to pay fine of Rs.2,000/- each
(Rupees two thousand only), in default to pay
fine, they shall undergo SI for a period of one
month.

4) All the sentences shall run concurrently.

5) Accused Nos.1 to 7-respondent Nos.1 to
7 in Criminal Appeal No.1395/2012 (appellants
in Criminal Appeal No.1139/2012) are entitled
to the benefit of set off under Section 428 of
Cr.P.C.

The trial Court is directed to secure accused Nos.1

to 7-appellants in Criminal Appeal No.1139/2012 and

issue necessary conviction warrant to undergo the

sentence, forthwith.

Sd/-

JUDGE

Sd/-

JUDGE
*cs/ck/-