Supreme Court - Daily Orders

State Of Karnataka By Gandhinagar P.S. vs M.N.Basavaraja on 3 April, 2024

Author:
Dipankar Datta

Bench:
Dipankar Datta

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 503 OF 2013

STATE OF KARNATAKA BY GANDHINAGAR P.S. .....Appellant(s)

Vs.

M.N. BASAVARAJA & ORS. .....Respondent(s)

O R D E R

1. The first respondent along with the other respondents

(second to fifth) stood trial before the Court of the

Additional Sessions Judge, Fast Track Court-II at Davangere,

Karnataka for commission of offence punishable under
sections
,
498A
and
of the Indian Penal Code, 1860 (‘
IPC
’,

hereafter) read with
sections 3
and
of the Dowry Prohibition

Act (‘
DP Act
’, hereafter). Vide judgment and order dated 4th

March, 2004, all the respondents were acquitted. The State of

Karnataka carried the judgment and order of acquittal in appeal

before the High Court. The High Court vide judgment and order

dated 27th August, 2010 confirmed the acquittal of the

respondents for the offences under
sections 302
and
of the

IPC as well as
sections 3
and
of the DP Act; however,

convicted the first respondent under
section 498A
, IPC only. On

the question of sentence, it was represented on behalf of the

Signature Not Verified

Digitally signed by

Ashwani Kumar

Date: 2024.04.08

first respondent before the High Court that he had been behind

18:02:55 IST

Reason:

bars for four years during the period of trial. Considering
that the maximum punishment that could be imposed under
section

498A
, IPC is three years, the High Court sentenced the first

respondent to the period of incarceration already undergone and

disposed of the appeal. This judgment and order of the High

Court is the subject matter of challenge in the present appeal,

by special leave, at the instance of the State of Karnataka

(‘appellant’, hereafter).

2. At the outset, we are informed by the parties that

correct representation had not been made before the High Court

by counsel for the first respondent in respect of the period of

incarceration suffered by him. He had been behind bars for a

little less than seventeen months, and not four years as

submitted.

3. The trial stemmed from the unnatural death of Susheelamma

within 7 years of her marriage. The first respondent happened

to be her husband while the other respondents were her in-laws.

After the First Information Report was registered under

sections 498A
and
304B
, IPC read with
sections 3
and
of the

DP Act based on the complaint of Susheelamma’s brother (PW-1),

police report under
section 173(2)
, Code of Criminal Procedure

Code (‘Cr. PC.’, hereafter) was submitted before the relevant

Court by the Deputy Superintendent of Police, Davangere City,

Sub-Division, Davangere, Karnataka. Bare perusal of the police

report reveals that materials collected during investigation

pointed towards suicidal death of Susheelamma owing to

harassment meted out to her by the respondents for not having

brought with her requisite dowry at the time of marriage and
even thereafter till her death. Despite the police report

having been filed, inter alia, under
section 304B
, IPC and

suggesting death of Susheelamma by suicide, charge against the

respondents was framed by the Sessions Court on 24th July, 2003,

inter alia, under
section 302
, IPC. This appears to us

inexplicable in the absence of any material in the police

report suggesting commission of offence under
section 302
, IPC.

Assuming that the Sessions Court had reason to frame a charge

under
section 302
, IPC, it is incomprehensible why no

alternative charge under
section 304B
, IPC was framed.

4. Evidence was led by the prosecution. The Sessions Court

did not find adequate material on record to convict the

respondents under
section 302
, IPC or any other relevant

provision resulting in an order of acquittal being recorded, as

noticed earlier. However, in appeal, only the first respondent

was found guilty of the offence under
section 498A
, IPC by the

High Court and erroneously sentenced premised on incorrect

representation in respect of the period of incarceration.

5. We have observed on perusal of the impugned judgment

brushing aside by the High Court of the contention raised on

behalf of the appellant that sufficient materials were

available on record for convicting the first respondent as well

as the other respondents under
section 304B
, IPC merely on the

ground that no charge in that behalf had been framed and having

regard to efflux of time, which had since occasioned since the

date of death, in the interest of justice, it would not look

into the evidence adduced by the prosecution for the purpose of
finding out whether there was any material for convicting the

respondents under
section 304B
, IPC.

6. Mr. Chidanand, learned counsel appearing for the

appellant, has taken serious exception to this approach of the

High Court. According to him, the High Court occasioned grave

failure of justice in letting the respondents off on the twin

grounds of absence of any charge framed against them under

section 304B
, IPC and long lapse of time. He contends that

notwithstanding such lapse, the High Court ought to have

examined whether the evidence on record were sufficient to

presume dowry death of Susheelamma and whether the respondents

should have been proceeded against for commission of offence

punishable under
section 304B
, IPC; and, if the answers were in

the affirmative, it was the duty of the High Court to draw

statutory presumption and remit the case to the Sessions Court

for proceeding against the respondents to examine as to whether

they are liable for conviction under
section 304B
, IPC.

Referring to and relying on the testimony of PW-1 and

Susheelamma’s parents, neighbours and an aunt (PWs 10, 12, 8,

14 and 9, respectively), he further contends that since all the

ingredients of
section 304B
, IPC were present, i.e., (i) death

of Susheelamma occurred within 7 years of marriage; (ii) such

death was due to circumstances other than normal; (iii)

sufficient material was available on record to indicate that

Susheelamma prior to her unnatural death was subjected to

cruelty by the first respondent, which also stands proved by

reason of his unchallenged conviction under
section 498A
, IPC;
and (iv) such cruelty was inflicted on Susheelamma owing to her

inability to bring requisite dowry, the High Court grossly

erred in not presuming dowry death of Susheelamma.

7. Our attention has been drawn by Mr. Chidanand to the

decision of this Court in
Shamnsaheb M. Multtani vs. State of

Karnataka1
. Heavy reliance has been placed by him on such

decision in support of the prayer for remand to the Sessions

Court. The relevant paragraphs of
the said decision
read as

follows:

“13. … The question raised before us is whether in a
case where prosecution failed to prove the charge under

Section 302
IPC, but on the facts the ingredients of
section 304-B have winched to the fore, can the court
convict him of that offence in the absence of the said
offence being included in the charge.

17. The composition of the offence under
Section
304-B
IPC is vastly different from the formation of the
offence of murder under
Section 302
IPC and hence the
former cannot be regarded as minor offence vis-à-vis
the latter. …

18. So when a person is charged with an offence under

Sections 302
and
498-A
IPC on the allegation that he
caused the death of a bride after subjecting her to
harassment with a demand for dowry, within a period
of 7 years of marriage, a situation may arise, as in
this case, that the offence of murder is not
established as against the accused. Nonetheless all
other ingredients necessary for the offence under

Section 304-B
IPC would stand established. Can the
accused be convicted in such a case for the offence
under
Section 304-B
IPC without the said offence
forming part of the charge?

21. The crux of the matter is this: Would there be
occasion for a failure of justice by adopting such a
course as to convict an accused of the offence under

1 (2001) 2 SCC 577
Section 304B
IPC when all the ingredients necessary for
the said offence have come out in evidence, although he
was not charged with the said offence? …

27. The postulates needed to establish the said
offence are: (1) Death of a wife should have occurred
otherwise than under normal circumstances within seven
years of her marriage; (2) soon before her death she
should have been subjected to cruelty or harassment by
the accused in connection with any demand for dowry.

Now reading
section 113B
of the Evidence Act, as a part
of the said offence, the position is this: If the
prosecution succeeds in showing that soon before her
death she was subjected by him to cruelty or harassment
for or in connection with any demand for dowry and that
her death had occurred (within seven years of her
marriage) otherwise than under normal circumstances
‘the court shall presume that such person had caused
the dowry death’.

28. Under
Section 4
of the Evidence Act ‘whenever it
is directed by this Act that the Court shall presume
the fact it shall regard such fact as proved unless and
until it is disproved’. So the court has no option but
to presume that the accused had caused dowry death
unless the accused disproves it. It is a statutory
compulsion on the court. However it is open to the
accused to adduce such evidence for disproving the said
compulsory presumption, as the burden is unmistakably
on him to do so. He can discharge such burden either by
eliciting answers through cross-examination of the
witnesses of the prosecution or by adducing evidence on
the defence side or by both.

30. But the peculiar situation in respect of an
offence under
Section 304-B
IPC, as discernible from
the distinction pointed out above in respect of the
offence under
Section 306
IPC is this: Under the former
the court has a statutory compulsion, merely on the
establishment of two factual positions enumerated
above, to presume that the accused has committed dowry
death. If any accused wants to escape from the said
catch the burden is on him to disprove it. If he fails
to rebut the presumption the court is bound to act on
it.
31. Now take the case of an accused who was called
upon to defend only a charge under
Section 302
IPC. The
burden of proof never shifts on to him. It ever remains
on the prosecution which has to prove the charge beyond
all reasonable doubt. The said traditional legal
concept remains unchanged even now. In such a case the
accused can wait till the prosecution evidence is over
and then to show that the prosecution has failed to
make out the said offence against him. No compulsory
presumption would go to the assistance of the
prosecution in such a situation. If that be so, when an
accused has no notice of the offence under
Section 304B

IPC, as he was defending a charge under
Section 302
IPC
alone, would it not lead to a grave miscarriage of
justice when he is alternatively convicted under

Section 304B
IPC and sentenced to the serious
punishment prescribed thereunder, which mandates a
minimum sentence of imprisonment for seven years.

34. In such a situation, if the trial court finds
that the prosecution has failed to make out the case
under
Section 302
IPC, but the offence under
Section
304-B
IPC has been made out, the court has to call upon
the accused to enter on his defence in respect of the
said offence. Without affording such an opportunity to
the accused, a conviction under
Section 304-B
IPC would
lead to real and serious miscarriage of justice. Even
if no such count was included in the charge, when the
court affords him an opportunity to discharge his
burden by putting him to notice regarding the prima
facie view of the court that he is liable to be
convicted under
Section 304B
IPC, unless he succeeds in
disproving the presumption, it is possible for the
court to enter upon a conviction of the said offence in
the event of his failure to disprove the presumption.

35. As the appellant was convicted by the High Court
under
Section 304-B
IPC, without such opportunity being
granted to him, we deem it necessary in the interest of
justice to afford him that opportunity. The case in the
trial court should proceed against the appellant (not
against the other two accused whose acquittal remains
unchallenged now) from the stage of defence evidence.
He is put to notice that unless he disproves the
presumption, he is liable to be convicted under
section
304-B
IPC. To facilitate the trial court to dispose of
the case afresh against the appellant in the manner
indicated above, we set aside the conviction and
sentence passed on him by the High Court and remand the
case to the trial court.”

8. It is, accordingly, prayed by Mr. Chidanand that upon

setting aside of the impugned judgment and order of the High

Court except to the extent of recording of conviction against

the first respondent under
section 498A
, IPC, the Sessions

Court may be directed to re-start the trial against the

respondents from the stage of defence evidence in order to

afford them fair opportunity of defence to disprove the

presumption of dowry death under
section 304B
, IPC read with

section 113B
of the Evidence Act, 1872.

9. Mr. Kotemath, learned counsel appearing for the first

respondent as well as the other respondents, on the other hand,

contends that the materials on record are insufficient to grant

relief on terms as claimed by learned counsel for the

appellant. He was heard to submit that the dead body of

Susheelamma was not found in the house where Susheelamma and

the first respondent were residing together just prior to the

former’s death; on the contrary, the dead body of Susheelamma

was found in her paternal home. It is further submitted that

the material witnesses for the prosecution were interested

witnesses and, therefore, the Sessions Court was entirely

correct in not relying on their evidence. He also submits that

there is no material on record to link the in-laws of

Susheelamma (respondents 2 to 5) to the alleged offence and
that only general allegations have been levelled against them

by the prosecution witnesses and on account thereof, no order

adverse to their interest is called for. He, thus, prayed for

dismissal of the appeal.

10. Having heard learned counsel for the parties and on

perusal of the materials on record, we are of the opinion that

the High Court, to a substantial extent, grossly erred in

deciding the appeal in the manner it did and that the appeal

deserves to succeed by remitting the case to the Sessions Court

for the purpose of trying only the first respondent, and not

the other respondents, in the manner indicated in the decision

in
Shamnsaheb M. Multtani
(supra).

11. The testimonies of the relevant witnesses for the

prosecution, which were read in Court by Mr. Chidanand, leave

no manner of doubt that dowry death of Susheelamma could be and

ought to have been presumed. All the ingredients for framing of

a charge under
section 304B
, IPC were present and quite

mindlessly, an exercise appears to have been undertaken to nail

the respondents for committing offence punishable under
section
, IPC overlooking the contents of the police report under

section 173(2), Cr. PC suggesting suicidal death. The Sessions

Court while framing charge under
section 302
, IPC, in our

opinion, did not apply its judicial mind resulting in non-

framing of an alternative charge under
section 304B
, IPC. The

High Court too failed to address the problem in the proper

perspective and, thus, disabled itself from rendering justice

to the parties. Merely because a charge under
section 304B
, IPC
had not been framed and there had been lapse of time did not

afford any ground to the High Court to distance itself from

following the settled law and ordering a remand.

11. We find no reason to accept the argument advanced on

behalf of the respondents that the dead body of Susheelamma was

found in her paternal home. In fact, we have found a specific

finding in the judgment of the Sessions Court that both the

first respondent and Susheelamma were residing together in a

house in Suez Plot and that the dead body of the latter was

found in such house. Having regard thereto and also in the

light of the testimony of the neighbour (PW-14), it would

entirely be for the first respondent to explain as to how

Susheelamma died and under what circumstances in terms of

provisions contained in
section 106
of the Evidence Act.

Significantly, it is in the evidence of PW-14 that while she

was brooming at about 4.00 hours of 19 th December, 2002, she saw

the first respondent cross the “drain that is situated in front

of all the houses”. It is also in the evidence of PW-14 that an

hour or two earlier, she had been woken up by the sound of a

meowing cat and then had heard the scream of a woman coming

from the house of the first respondent, whereupon she assumed

that someone must have been harassing a woman in the night

hours.

12. The next argument that PWs 1, 10 and 12 are interested

witnesses and hence their evidence lacks credence has been

advanced only to be rejected. A lady facing harassment and

cruelty owing to her or her family’s failure to meet dowry
demands would more often than not confide in her immediate

family members. If the evidence of the family members in a case

of dowry death is to be discarded on the ground that they are

interested witnesses, we wonder who would be the reliable

witness to testify for bringing the culprit to book. We have no

hesitation in rejecting the argument as one wholly without

substance.

13. The further argument that materials are insufficient to

presume a dowry death need not detain us for too long. The

ingredients for presuming a dowry death, as submitted by Mr.

Chidanand and noted by us in paragraph 6 are present. That

apart, PW-12 was categorical in her assertion that even six

days prior to her death, Susheelamma had complained to PW-12

that the first respondent beat Susheelamma for failing to meet

his demand to bring Rs.50,000/- or to get a job for him.

14. However, we are in agreement with Mr. Kotemath that

allegations levelled against the other respondents (in-laws of

Susheelamma) are general in nature and that no specific overt

acts are attributed calling for interference with the order

acquitting them.

15. We are conscious of the law as well as decisions of this

Court holding that an accused could be convicted for an offence

for which no charge was framed if the accused is aware of the

basic ingredients of the offence with which he could have been

charged and if no failure of justice would occasion, provided

fair chance of defence is extended to him. Even then, we feel

persuaded to follow the decision in
Shamnsaheb M. Multtani
(supra) not only because we are bound by it (the same having

been rendered by three Hon’ble Judges) but also because that

too was a case where both
sections 302
and
304-B
, IPC were

involved, as in the present appeal, and the approach followed

therein has our concurrence as the correct approach. Hence,

following the same, an opportunity is required to be extended

as part of the assurance of a fair trial and reasonableness of

the procedure established by law to enable the first respondent

rebut the presumption of dowry death drawn in terms of the

provisions contained in
section 304B
IPC read with
section 113B

of the Evidence Act. However, we repeat that notwithstanding

the availability of evidence and materials on record sufficient

to draw a presumption of dowry death of Susheelamma, such

presumption is, of course, rebuttable and such presumption is

open to be rebutted if the first respondent adduces relevant

evidence sufficient for a prudent man to believe the existence

of circumstances put forward by him leading to the death of

Susheelamma as probable without he being responsible in any

manner; however, should such presumption be not rebutted, a

conviction under
section 304B
, IPC could logically follow.

16. Bearing the same in mind and considering the totality of

the circumstances, the impugned judgment is liable to limited

interference in exercise of our appellate jurisdiction as

indicated hereafter. The first respondent not having challenged

his conviction recorded by the High Court under
section 498A
,

IPC, the same is sustained; however, the sentence stands set

aside since it was admittedly based on incorrect representation
of facts. Further, acquittal recorded by the Sessions Court,

since affirmed by the High Court, qua the other respondents

(second to fifth) is also maintained. Also, acquittal recorded

by the High Court in respect of the other offences against the

first respondent (except
section 302
, IPC) is set aside. The

case is remitted to the Sessions Court for proceeding further

and to take the same to its logical conclusion in accordance

with law upon granting reasonable opportunity to both the

prosecution and the defence.

17. We clarify that the Sessions Court, on remand as ordered

by us, shall proceed with the trial from the stage of defence

evidence. The first respondent has been adequately put on

notice that unless he disproves the presumption of dowry death,

he is liable to be convicted under
section 304B
, IPC. He shall,

therefore, be at liberty to disprove the presumption of dowry

death by adducing relevant evidence. Upon evidence being

adduced, or if no evidence is adduced, the Sessions Court shall

proceed to conclude the trial in accordance with law, as

expeditiously as possible. The Sessions Court shall be free to

draw its own conclusions and observations made hereinabove will

not stand in the way of conducting a fair trial, which is the

essence of the criminal justice system. Irrespective of the

outcome of the trial to be resumed in terms of this order, the

Sessions Court shall also be free to decide on the sentence to

be imposed on the first respondent for the conviction recorded

against him by the High Court in respect of the offence under

section 498A
, IPC.
18. To facilitate the Sessions Court to dispose of the case

against the first respondent in the manner that we have

indicated above and to avoid delay, we direct the first

respondent to appear before the Sessions Court on 3rd June, 2024

and also grant him the liberty to seek bail. Till 3rd June,

2024, he shall not be arrested. Upon the first respondent

applying for bail, the Sessions Court shall enlarge him on bail

subject to such terms and conditions as it deems fit and proper

to impose. Should the first respondent not appear on 3rd June,

2024, the Sessions Court shall be entitled to secure his

presence in accordance with law.

19. The appeal is allowed to the extent indicated above and on

the aforesaid terms.

20. The trial court records be sent back forthwith.

21. Pending application(s), if any, including the application

for impleadment of PW-1 shall also stand disposed of.

...................J.
(DIPANKAR DATTA)

....................J.
(S.V.N. BHATTI)

New Delhi;

April 03, 2024.
ITEM NO.105 COURT NO.15 SECTION II-C

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). 503/2013

STATE OF KARNATAKA BY GANDHINAGAR P.S. Appellant(s)

VERSUS

M.N. BASAVARAJA & ORS. Respondent(s)

Date : 03-04-2024 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DIPANKAR DATTA
HON'BLE MR. JUSTICE S.V.N. BHATTI

For Appellant(s) Mr. D. L. Chidananda, AOR

For Respondent(s) Mr. Ashwin V. Kotemath, Adv.

Ms. K. V. Bharathi Upadhyaya, AOR

Mr. Shailesh Madiyal, Sr. Adv.

Mr. Mahesh Thakur, AOR
Mr. Vaibhav Sabarwal, Adv.

Ms. Anusha R, Adv.

Ms. Mythili Srinivasmurthy, Adv.

Mr. Ranvijay Singh Chandel, Adv.

Mr. Shivamm Sharrma, Adv.

UPON hearing the counsel the Court made the following
O R D E R

The appeal is allowed in terms of signed order.

The trial court records be sent back forthwith.

Pending application(s), if any, including the application

for impleadment of PW-1 shall also stand disposed of.

(NEETA SAPRA) (RAM SUBHAG SINGH)
COURT MASTER (SH) COURT MASTER (NSH)
(Signed order is placed on the file)

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