(PER: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV)
A. CONVICTION U/S 304-B R/W 34 OF IPC
B. CONVICTION UNDER SECTIONS 3 AND 4 OF DOWRY
PROHIBITION ACT
C. CONVICTION UNDER SECTION 498A R/W SECTION
34 IPC
D. RE. COMPENSATION TO DEPENDANT OF VICTIM
I. BRIEF FACTS
The present appeal is preferred by accused Nos. 1 to 3
were sentenced to undergo imprisonment of 7 years.
2. Brief facts made out by the prosecution are that,
of accused No.1. The deceased daughter of P.W.1 Kallappa
08.11.2011. Their marriage was performed in accordance
with a customary practice "Yadi Me Shadi". At the time of
bridegroom as also from the bridegroom to the bride. It is
to get half tola of Gold from her parental house. It is further
would marry another lady. It is further made out that elders
Cash of Rs.50,000/-. The said harassment was informed by
"Urus". At such time, it is stated that accused No.1 was
3. On 06.05.2013, parents were informed regarding
lodged in Crime No. 118/2013.
4. Inquest Panchanama was drawn on 07.05.2013
on the same day and 2 pieces of rope were seized. On the
of 2nd accused under mahazar as shown by P.W.1.
5. Postmortem was conducted and after completion
Belagavi. Charges were framed and the points for
"1) Whether the accused No.1 being the husband
of Seema, accused Nos. 2 and 3 being the in-laws of
Seema, in furtherance of their common intention,
subjected the said Seema to cruelty by demanding
dowry of half tola of gold and hard cash of
Rs.50,000/- in the house of accused, after lapse of
four months of her marriage and thereby the accused
have committed offences punishable under Section
498-A r/w. sec. 34 of IPC?
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2) Whether the accused, demanded dowry,
indirectly through Seema, from the parents of Seema
and thereby all the accused committed an offence
punishable u/s. 4 of D.P.Act?
3) Whether the accused, in furtherance of their
common intention, in their house, on 6.5.2013,
committed dowry death, by causing the death of
Seema and thereby accused have committed
offences punishable u/s. 304-B r/w Sec. 34 of IPC?
4) What order?"
6. On behalf of the prosecution, P.W.1 to P.W.24
were examined and Exhibits P1 to P.30 were marked and
M.Os. 1 to 22 were also marked.
7. The prosecutor has given up witnesses P.W.3, 7,
19, 21 and 26. There was no defence evidence and
statement of accused has been recorded under Section
313(5) of Cr.P.C. After trial and arguments, judgment of
conviction and order of sentence has been passed.
8. Heard both sides.
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II. ANALYSIS:
9. In light of the above, following point arises for
consideration:
i) Whether the judgment of conviction and order on
sentence passed by the trial Court calls for affirmation?
A. CONVICTION UNDER SECTION 304-B R/W SECTION 34
OF IPC.
10. Insofar as the conviction as regards Section 304-
B r/w Section 34 of IPC, the trial Court has recorded a
finding in the affirmative on the point for consideration at
point no.3 which deals with the said aspect.
11. Section 304-B reads as follows:
"304B. Dowry death.--(1) Where the death
of a woman is caused by any burns or bodily
injury or occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before her
death she was subjected to cruelty or har-
assment by her husband or any relative of her
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husband for, or in connection with, any
demand for dowry, such death shall be called
"dowry death", and such husband or relative
shall be deemed to have caused her death.
Explanation - For the purpose of this sub-
section, "dowry" shall have the same meaning
as in section 2 of the Dowry Prohibition Act,
1961 (28 of 1961).
(2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which
may extend to imprisonment for life."
12. In the present case, the evidences of PWs.1 to 3
(PW.1 is the father; PW.2 is the mother and PW.3 is the
brother of the deceased) are on same lines.
13. The requirement for conviction under Section
304-B are:
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i) the death of a woman occurred otherwise than
under normal circumstances. Such death must have
occurred within seven years of marriage.
ii) The victim was subjected to cruelty or harassment
by her husband or relative of her husband in connection
with demand for dowry.
iii) In case of death in such circumstances, death shall
be called dowry death and husband or relative shall be
deemed to have caused death.
14. It is also necessary to notice the presumption
under Section 113A of the Evidence Act, 1872, which reads
as follows:
"113A. Presumption as to abetment of
suicide by a married woman. - When the
question is whether the commission of suicide
by a woman had been abetted by her husband
or any relative of her husband and it is shown
that she had committed suicide within a period
of seven years from the date of her marriage
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and that her husband or such relative of her
husband had subjected her to cruelty, the court
may presume, having regard to all the other
circumstances of the case, that such suicide had
been abetted by her husband or by such relative
of her husband.
Explanation. - For the purposes of this section,
"cruelty" shall have the same meaning as in
section 498A of the Indian Penal Code (45 of
1860)."
15. By virtue of the above provision where the
married woman commits suicide within a period of seven
years from the date of her marriage and facts reveal that
she has been subjected to cruelty, the Court may presume
that such suicide has been abetted by her husband or his
relatives.
16. Section 113B of the Evidence Act also provides
for a presumption as to dowry death and reads as follows:
"113B. Presumption as to dowry death. -
When the question is whether a person has
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committed the dowry death of a woman and it
is shown that soon before her death such
woman had 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.
Explanation. - For the purposes of this section,
"dowry death" shall have the same meaning as
in section 304B of the Indian Penal Code (45 of
1860)."
17. The main ingredients for raising such
presumption would be as follows:
i) Where it is established that a woman soon before
her death has been subjected to cruelty or harassment by
any such person;
ii) Such cruelty or harassment was in connection with
demand for dowry;
iii) where point (i) and (ii) are established, the court
shall presume that such person had caused dowry death.
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18. Dowry death shall have the same meaning as in
Section 304B of the Indian Penal Code.
19. In light of the above, it is to be noticed that
undisputedly the date of marriage is 08.11.2011. The date
of death was 06.05.2013, which is within seven years of
marriage.
20. The date of marriage is also evidenced by Ex.P2
which is the 'Yadi' which was marked by the prosecution. It
has come out in evidence that in terms of the custom
namely "Yadi me Shadi" marriage was performed on the
same date i.e., on 08.11.2011.
21. The factum of suicide is also not in dispute as is
made out from the Inquest Panchanama, Postmortem
report and evidence of the Doctor (Ex. P13, P24 and PW.20
respectively)
22. Insofar as the deceased being subjected to
cruelty or harassment, the evidence of PWs.1 to 3 would
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indicate that the agreement entered into in the 'Yadi'
provided for payment of half Tola gold which PW.1 - father
of the deceased states that as the accused had failed to
give the gold ornaments of half Tola in terms of Ex.P2, they
had not given gold to the accused and there were quarrels.
23. This demand regarding Half Tola of gold is stated
to have been made by accused collectively, which the
deceased used to inform by way of telephone call and also
when she visited the house of her parents. Such stand was
corroborated by the evidence of PW.3, brother and PW.2,
mother.
24. It was also specifically asserted by PW.1 that in
the context of such demand, elders of the village PWs.6, 9
and 13 were informed and that they visited the house of the
accused with the family of the deceased and requested the
accused not to abuse Seema and sought for time to satisfy
the demand. It is made out from the evidence that the
deceased at such time was in the house of her parents and
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thereafter accused no.1 picked up the deceased and took
her back while continuing with harassment in the
matrimonial house. Such assertion is corroborated by the
evidence of PWs.2 and 3. The said version is also
corroborated by PW.9, an elderly person Baburamu Munje.
It is further asserted by him that the demand of half tola of
gold and Rs.50,000/- was mentioned to him by the
deceased.
25. Such demands for dowry would constitute
cruelty/ harassment. Any demand for dowry continuously
with further threats by the husband of getting married to
another lady as made out by PW.1 if the demand is not
met, would constitute cruelty.
26. The evidence of mother, brother and father
cannot be discarded merely on the ground that they are
interested witnesses. There is no uniform rule to discard
the evidence of the witnesses who happen to be the family
members of the deceased. The witnesses are consistent
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that the evidence of PW.9 who is an elderly person would
also corroborate such version.
27. The statement of the deceased regarding
harassment made to PWs.1 to 3 and 9 constitutes relevant
evidence.
28. The factum of death was eight days after she
was left in the house of the accused. Such assertion comes
out from the evidence of PW.2 the mother and corroborated
by PW.9. The elders had visited the house of the accused
along with her parents to seek time for payment of dowry
and only after such visit was the deceased brought from her
parents house and left in the house of the accused. It has
come out from the evidence as noted above that the elders
visited the accused house in the context of demands for
dowry. In light of the death within eight days of leaving her
in the in-laws house which was preceded by demands for
dowry, it could be stated that the cruelty/ harassment by
the accused was soon before her death.
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29. In light of the presumption under Section 113B
of the Evidence Act, it could be stated that the ingredients
of Section 304B of IPC was satisfied.
30. As rightly observed by the trial Court, an adverse
inference is also to be drawn in light of non-explanation of
the circumstances leading to the deceased committing
suicide in her in-laws house.
31. Though the accused have made suggestions to
the witnesses that the deceased was not interested to
marry and she was suffering from unbearable stomach ache
and accordingly committed suicide, the said suggestions are
not supported by any cogent evidence by the accused.
32. Accordingly, the judgment of the trial Court also
does not call for any interference on such aspect of
conviction under Section 304B of IPC. The trial Court by
detailed discussion from para 67 to 74 has analysed the
evidence of PWs.1 to 3, taken note of presumption under
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Section 113B of the Evidence Act, has also drawn an
adverse inference of the accused not having explained the
circumstances leading to the suicide.
B. CONVICTION UNDER SECTIONS 3 AND 4 OF DOWRY
PROHIBITION ACT
33. As regards the conviction under Sections 3 and 4
of the Dowry Prohibition Act, the Sessions Court has
convicted the accused.
Section 4 of Dowry Prohibition Act reads as follows:
"4. Penalty for demanding dowry.-- If any
person demands, directly or indirectly, from the
parents or other relatives or guardian of a bride
or bridegroom, as the case may be, any dowry,
he shall be punishable with imprisonment for a
term which shall not be less than six months,
but which may extend to two years and with
fine which may extend to ten thousand rupees:
Provided that the Court may, for adequate and
special reasons to be mentioned in the
judgment, impose a sentence of imprisonment
for a term of less than six months."
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34. The demand for dowry directly or indirectly from
the parents of the bride is by itself an offence.
35. The discussion of evidence of PWs.1 to 3 as
referred to above would hold good as regards the offence
under Section 4 of the Dowry Prohibition Act. The demand
for dowry has been communicated by the deceased to
PWs.1 to 3 and PW.9. Such assertions by the witnesses on
the basis of statement made by the deceased would
constitute relevant evidence. The allegations made are
collectively against the accused and it could be stated that
the acts of harassment attributed to the accused would
constitute acts in furtherance of common intention.
36. The demand for dowry need not be direct and
could be indirect as well. In the present case, there was
demand for dowry made against the deceased who has
revealed such fact to her family i.e., PWs.1 to 3 as well as
village elder PW.9. The finding of the Trial Court holding in
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the affirmative as regards the offence under Section 4 of
the Dowry Prohibition Act does not call for interference on
such aspect.
C. CONVICTION UNDER SECTION 498A R/W SECTION 34
IPC
37. The finding of the Trial Court as regards offence
under Section 498A r/w 34 of IPC on points for
consideration (i) is also in the affirmative.
Section 498A of IPC reads as follows:
"498A. Husband or relative of husband of
a woman subjecting her to cruelty.--
Whoever, being the husband or the relative of
the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment
for a term which may extend to three years
and shall also be liable to fine.
Explanation.--For the purpose of this
section, "cruelty" means--
(a) any willful conduct which is of such a
nature as is likely to drive the woman to
commit suicide or to cause grave injury or
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danger to life, limb or health (whether mental
or physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or
any person related to her to meet any unlawful
demand for any property or valuable security
or is on account of failure by her or any person
related to her to meet such demand."
38. What is made an offence is subjecting woman to
cruelty. In terms of the explanation, cruelty would include
any willful conduct which is of such a nature as is likely to
drive the woman to commit suicide. Further under
Explanation (b) cruelty is a wider concept as harassment of
the woman with a view to coerce her or any person related
to her to meet unlawful demand, would constitute cruelty.
39. If the evidence as noticed above is taken note of,
it is clear that the demand for half tola of gold and
Rs.50,000/- was made and she was allowed to come back
to the matrimonial home only after assurance given by the
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elders along with the complainant's family. The trial court
has rightly held on such aspect in the affirmative.
40. Accordingly, the point for consideration is
answered in the affirmative.
D. RE. COMPENSATION TO THE DEPENDENT OF VICTIM
41. While the judgment of conviction and order of
sentence is confirmed and aspect that requires due
consideration is restitution of the victim.1 While the wife of
accused no.1 could be construed to be victim which would
be a conservative understanding of the term the 'victim' in
the present case the question as to whether the child from
within the wedlock of accused No.1 and his wife, who as on
The Observations made by the Apex Court in Suresh and Another v. State of Haryana, (2015)
2 SCC 227, is of relevance and is as follows:
"16. We are of the view that it is the duty of the courts, on taking cognizance of a criminal offence,
to ascertain whether there is tangible material to show commission of crime, whether the victim is
identifiable and whether the victim of crime needs immediate financial relief. On being satisfied
on an application or on its own motion, the court ought to direct grant of interim compensation,
subject to final compensation being determined later. Such duty continues at every stage of a
criminal case where compensation ought to be given and has not been given, irrespective of the
application by the victim. At the stage of final hearing it is obligatory on the part of the court to
advert to the provision and record a finding whether a case for grant of compensation has been
made out and, if so, who is entitled to compensation and how much. Award of such compensation
can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in
mind, apart from such other factors as may be found relevant in the facts and circumstances of an
individual case.
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date is a minor (aged about 12 years) could also be treated
to be a victim requires consideration.
42. It is to be noticed that under Section 2(wa) of
Cr.P.C., victim is defined as follows:
"(wa) "victim" means a person who has suffered
any loss or injury caused by reason of the act or
omission for which the accused person has been
charged and the expression "victim" includes his
or her guardian or legal heir"
43. The deceased who is a victim is survived by
accused No.1 and son who are legal heirs. Literal
interpretation of 2(wa) would include the accused and the
son as legal heirs. If that were to be so, the Court would be
competent to either award compensation under Section 357
(3) of Cr.P.C. payable by the accused to the victim or make
recomendaton for awarding of compensation under section
357-A of Cr.P.C. However, the power conferred under
Section 357-A provides for awarding of compensation upon
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a recommendation by the Court under the Victim
Compensation Scheme.
44. The recourse to recommending for awarding
compensation under the Victim Compensation Scheme, can
be where:
(a) The accused is unable to pay and order for the
accused to pay victim compensation which is not
capable of implementation due to the accused's
indegency as such order passed against the accused
that cannot be implemented would be no order of
compensation at all.
(b) Where, the compensation awarded under Section
357 is inadequate, the Court shall take recourse to
awarding of compensation under the Victim
Compensation Scheme under Section 357-A.
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45. It is a settled position as laid down by the Apex
Court2 that there is a duty on the Courts to apply their mind
as regards compensation in every case whether the
judgment is one of acquittal or conviction. This
interpretation would be on a plain understanding of the
object of victim compensation introduced under Section
357-A.
46. The trial Court in the present case has no doubt
applied its mind as regards victim compensation while
recording a finding that there is no material placed to
demonstrate ability of the accused to pay compensation.
The appellate Court during the appeal proceedings while
dealing with grant of bail to the accused has no doubt
The Apex Court in Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770, has
held as follows:
46. The amendments to CrPC brought about in 2008 focused heavily on the rights of victims
in a criminal trial, particularly in trials relating to sexual offences. Though the 2008 amendments
left Section 357 unchanged, they introduced Section 357-A under which the Court is empowered
to direct the State to pay compensation to the victim in such cases where
"the compensation awarded under Section 357 is not adequate for such rehabilitation, or
where the cases end in acquittal or discharge and the victim has to be rehabilitated".
Under this provision, even if the accused is not tried but the victim needs to be rehabilitated, the
victim may request the State or District Legal Services Authority to award him/her compensation.
This provision was introduced due to the recommendations made by the Law Commission of India
in its 152nd and 154th Reports in 1994 and 1996 respectively.
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imposed a condition to the accused to pay a sum of
Rs.3,00,000/- while passing order on suspension of
sentence. It must be noticed that stricto sensu, such
amount which has been deposited by the accused cannot be
construed to be an order for grant of compensation under
Section 357 of Cr.P.C passed against the accused. However,
a meaningful legal understanding of the direction would
result in this Court construing the amount deposited by the
accused to be compensation to be paid by the accused in
terms of Section 357(3) of Cr.P.C.
47. The question then arises whether recourse to
awarding compensation under the Victim compensation
Scheme can still be resorted to and whether the amount
eventually paid by the DLSA under the Victim compensation
Scheme requires to be adjusted by taking note of the
amount paid by the accused under Section 357 in light of
the mandate of Clause-7(2) of the Karnataka Victim
Compensation Scheme, 2011.
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48. The Karnataka Victim Compensation Scheme
prepared pursuant to the powers conferred under Section
357-A of Cr.P.C. being a product of beneficial exercise of
executive power, must be interpreted with a leaning
towards relief to the victim. The legislature having noticed
repeated assertions of prisoners rights and while noticing
under emphasis to the victims rights, though it fit to
introduce Section 357-A. Under Section 2(e) of the
Karnataka Scheme 2011 victim is defined as follows:
"(e) "Victim" means a person who himself has
suffered loss or injury as a result of crime and
rehabilitation and includes his dependants who
had suffered loss or injury as a result of the
crime and who require rehabilitation".
49. It is clear that the victim "includes his
dependents who have suffered loss or injury as a result of
the crime and who require rehabilitation"
50. The present factual matrix would present a case
where the wife of accused No.1 having committed suicide is
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no doubt a victim of the crime. However, while considering
the aspect of right of the victim to be compensated, the
child of accused No.1 and the deceased is required to be
treated as a victim. Clearly, the definition of victim under
the Karnataka Victim Compensation Scheme, 2011 would
include dependent of a victim who has suffered injury as a
result of crime. The wife of accused No.1 having committed
suicide being a victim in terms of Clause-2(e) of the
Scheme, the dependent who has suffered loss and who
requires rehabilitation is also a victim within the definition
of the scheme.
51. The child has not only lost motherly love and
affection but by virtue of confirmation of the order of
conviction is also being deprived of fatherly love, affection
and his support. The child at this stage still being a minor
aged about 12 years requires rehabilitation.
52. While taking note of a sum of Rs.3,00,000/-
which as discussed to be treated to constitute compensation
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under Section 357 of Cr.P.C., its inadequacy for
rehabilitation stares in the face of the Court. Taking judicial
notice of costs of education and other needs of the child
considering that accused (i.e., father) would now undergo
sentence of imprisonment, the amount of Rs.3,00,000/-
would wholly be inadequate. Accordingly, where
compensation under Section 357 of Cr.P.C. is inadequate
and the Court is of the view that the accused is not in a
position to pay even if any order is passed, the Court could
make appropriate recommendation for payment of
compensation under the Karnataka Victim Compensation
Scheme, 2011 framed under Section 357-A of Cr.P.C. It is
clarified that the amount paid under the Compensation
Scheme would not be adjustable or set off in terms of
Section 7(2) of the Karnataka Victim Compensation
Scheme, 2011. Such direction is passed in light of
discussion supra.
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53. As the trial Court in its order has observed that
there is no material placed by the Prosecution as regards
the capacity of the accused to pay compensation, it could
be stated that order even if passed against the accused to
pay compensation could be un-implementable in the
absence of demonstrable ability of the accused to pay
compensation.
54. Accordingly, it would be appropriate to
recommend payment of compensation under the Karnataka
Victim Compensation Scheme, 2011 and DLSA is to take
appropriate steps in this regard. As the child is a minor, the
compensation amount would be kept in a Fixed Deposit till
the child attains majority and the amount may be disbursed
as and when the expenses have to be incurred for
education, health and other needs of the child. The
Secretary, DLSA is required to take appropriate decision as
regards disbursal of compensation which would be need
based.
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The amount of compensation awarded would be kept
in a Fixed Deposit till the child attains majority subject to
disbursement as stipulated above.
As regards compensation to the victim, the Trial
Courts ought to take note of the manner in which this Court
has dealt with compensating victim, which approach would
go a long way in addressing the need for reparation of the
victim. The monetary compensation though cannot undo
the wrong, but would be "some solace" to the victim and
their family.
III. CONCLUSION:-
55. The judgment and order on sentence passed by
the Court of the VI Additional District and Sessions Judge,
Belagavi, dated 12.01.2016 in S.C.No.258/2013 convicting
appellant Nos. 1 to 3 is affirmed.
Insofar as the payment of compensation in terms of
the Scheme framed under Section 357-A of Cr.P.C is
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concerned, the District Legal Services Authority, Belagavi, is
hereby directed to take necessary steps as regards the
quantification of compensation, in light of the discussion
made above.
56. Accordingly, the appeal is disposed of.
57. In light of the disposal of the appeal, the accused
Nos. 1 to 3 are hereby directed to surrender before the Trial
Court within 14 days from the date of communication of this
judgment to the accused.
58. Registry is directed provide a free copy of this
judgment to the accused Nos.1 to 3 and mark a copy of this
judgment to the trial Court, Karnataka State Legal Services
Authority and District Legal Services Authority, Belagavi.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
NP/VP
