MAHADEVAPPA versus STATE OF KARNATAKA REP. BY PUBLIC PROSECUTOR on 7 January 2019

[2019] 1 S.C.R. 39

MAHADEVAPPA

v.

STATE OF KARNATAKA REP. BY PUBLIC PROSECUTOR

(Criminal Appeal No. 1261 of 2008)

JANUARY 07, 2019

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Penal Code, 1860 – s.498A r/w s.302 – Dowry death – Deathby burn injuries – Prosecution case was that the appellant-husbandpoured kerosene on his wife and set her on fire which resulted inher death – Trial court held that prosecution was not able to provethe charge of demand of dowry against the appellant and also thatthe deceased suffered homicidal death and ordered his acquittal –High Court reversed the order of acquittal and convicted theappellant under ss.498A and 302 – Appeal against conviction –Held: The evidence of the four prosecution witnesses clearly provedthat the appellant was addicted to consuming liquor – He used todemand money from the deceased and her parents quite often andalso at times used to ill-treat and assault the deceased – There wasno reason to discard the evidence of the parents of the deceasedwho were the most natural and material witnesses to speak on suchissues – In such circumstances, the daughter - a newly married girlwould always like to first disclose her domestic problems to hermother and father and then to her close relatives because they haveaccess to her and are always helpful in solving her problems – Theacts and the behavior of the appellant (husband) towards his wifesoon after their marriage which eventually culminated in her deathwithin seven years from the date of their marriage squarely fellwithin the meaning of s.498-A Explanations (a) and (b) of IPC –Further, it was a case of homicidal death and not a case of accidentaldeath – Appellant was the only person present at the time of incidentin the house with the deceased – The explanation by the appellantthat the deceased’s sari accidentally caught fire when she was boilingthe water on the oven was not convincing – In the absence of anyplausible explanation given by the appellant and the circumstances,the manner in which the incident occurred and material seized fromthe room i.e. kerosene oil bottle, it was proved beyond reasonable

39

A

B

CDE

F

G

H

Adoubt that the appellant was responsible for causing death of thedeceased – Evidence of four prosecution witnesses fully proved thecase of the prosecution – Interference with the order of convictionnot called for – Crime against women.

Dismissing the appeal, the CourtB

HELD: 1. A perusal of the evidence of the four prosecutionwitnesses clearly proved that firstly the appellant was addictedto consuming liquor, Secondly, he used to demand money fromthe deceased and her parents quite often; and thirdly, he also attimes used to ill-treat and assault the deceased. The incident ofCill-treatment and demand of money did not occur once but onmany a times and it started soon after the marriage whichcontinued till deceased’s death. There is no reason to discardthe evidence of the father and mother of the deceased who arethe most natural and material witnesses to speak on such issues.Indeed, in such circumstances, the daughter - a newly marriedDgirl would always like to first disclose her domestic problems toher mother and father and then to her close relatives becausethey have access to her and are always helpful in solving herproblems. There was no contradiction on any of the materialissues in the evidence of these four witnesses despite they beingEsubjected to lengthy cross-examination by the defense. That apart,why should a mother and a father speak lie unless there arejustifiable reasons behind it. Not only that, even their relativessupported their version. Therefore, the acts and the behavior ofthe appellant (husband) towards his wife soon after their marriagewhich eventually culminated in her death within seven years fromFthe date of their marriage squarely fell within the meaning ofSection 498-A Explanations (a) and (b) of IPC. [Paras 30, 31, 32,33][47-E-H; 48-A-B]

2.1 The victim-deceased died due to pouring of Keroseneoil and setting her body on fire and this act could be done only byGthe appellant and by no one else. It is proved by the followingcircumstances. First, the incident in question occurred in thehouse when only the deceased and the appellant were present.In other words, the appellant was the only person present at thetime of incident in the house with the deceased. In theseHcircumstances, it was the appellant who could give some plausible explanation as to how and in what manner the incident in questionoccurred. The explanation given by the appellant was that thedeceased’s sari accidentally caught fire when she was boiling thewater on the oven. This story of the appellant cannot be believed.Second, the evidence of I.O., Post-Mortem Report, FSL reportand the evidence of doctor (PW-6) has proved that kerosene oilwas found on the body of deceased and second, one bottle ofkerosene oil was also lying in the room. The presence of keroseneoil on the body of deceased would indicate that the kerosene oilwas poured on her body. Since the appellant was the only personpresent in the room (kitchen), it was he who could do it. Third,the presence of broken bangles found in the room suggest thatthe deceased must have struggled with the appellant to saveherself which resulted in breaking of her bangles. Fourth, had itbeen a case of catching of simple fire from the oven, then in suchevent, the smell of kerosene oil from the body of the deceasedwould not have been found on her body. Fifth, it is nobody’s casethat the deceased tried to commit suicide by pouring keroseneoil on her and then put herself on fire. Sixth, the relations betweenthe appellant and deceased were not cordial. The appellant alwaysused to demand money from the deceased which she was not in aposition to give to the appellant. Seventh, had this been a case ofaccident as suggested by the defense then burn injuries sustainedby the deceased would have been more on the lower part of herbody rather on the upper part of the body because according todefense, the deceased was near to oven when her sari caughtfire. The post-mortem report, however, showed that the burninjuries were more on her upper part and her blouse was foundburnt. [Paras 38-46][48-F-H; 49-A-G]

2.2 In the absence of any plausible explanation given bythe appellant and the one which was suggested but not havingbeen proved and further keeping in view the circumstances, themanner in which the incident occurred and material seized fromthe room i.e. kerosene oil bottle, it is proved beyond reasonabledoubt that the appellant was responsible for causing death of thedeceased. In other words, her death was homicidal and notaccidental. The evidence of four prosecution witnesses fullyproved the case of the prosecution. In this view of the matter, ABCDEF

G

H

Aeven if, some witnesses might have turned hostile, yet it wouldbe of no significance and nor it would adversely affect the case ofthe prosecution. [Paras 47, 49][49-G-H; 50-A, B-C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal no.1261 of 2008.

B

From the Judgment and Order dated 03.01.2007 of the HighCourt of Karnataka at Bangalore in Criminal Appeal No. 1040 of 2000.

Mallikarjun S. Mylar, Manjunath, Ms.Umme Salma, Ms. E. R.Sumathy Advs. for the Appellant.

CJoseph Aristotle S., Mrs.Priya Aristotle, Shiva P., Ms. ArunaHannah Dutta, Ms. Anitha Shenoy, Advs. for the Respondent.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is filed againstthe final judgment and order dated 03.01.2007 passed by the High CourtDof Karnataka at Bangalore in Criminal Appeal No.1040 of 2000 wherebythe High Court allowed the appeal filed by the respondent/State herein.

2. It is necessary to set out the facts hereinbelow in detail toappreciate the issues arising in this appeal.

3. The appellant (accused) was married to Rukmini Bai (deceased)Eon 04.06.1994. On the same day, the younger sister of Rukmani Bai,namely, Sonabai was also married to the appellant’s younger brother-Bhimanand. Both the marriages were performed in Lokeshwar Templeat a place called Lokapur.

4. After marriage, the appellant, who was serving as a ConstableFin the Police Station, Kaladagi in the District Bagalkot went to Kaladagiwith Rukmini Bai. So far as the appellant’s younger brother wasconcerned, he was working as a Constable in CRPF at Nagaland. Healso proceeded to Nagaland with his wife.

5. On 02.10.1995, father of Rukmini Bai - Eknath (PW-1) receivedGa wireless message that Rukmini Bai was admitted to GovernmentHospital at Bagalkot for burn injuries. On receipt of the message, Eknathand some elder persons of the village immediately left for Bagalkot. Onreaching the hospital, Eknath found the condition of Rukmini Bai- herdaughter to be very critical.

H

6. When Eknath asked from Rukmini Bai the cause of sustaininginjuries by her, she first started crying on seeing him and then said thather husband (appellant) had poured kerosene oil on her body and set heron fire. Later eventually around 6.15 p.m. on the same day, Rukmini Baisuccumbed to her injuries while in the hospital.

7. Eknath (PW-1) - then lodged the FIR in PS Kaladagi on thesame day against the appellant (FIR No.99/95) for commission ofoffences under Sections 498(A) read with Section 302 of the IndianPenal Code, 1860 (for short “the IPC”). The Investigating Officerregistered the FIR and started investigation. He recorded the statementsof several persons, got the post mortem of the dead body, obtained F.S.L.Report and after completion of the investigation and collecting necessaryevidence, filed the charge-sheet against the appellant. The case wasthen committed to the Sessions Court for trial.

8. The Sessions Judge by judgment/order dated 31.05.2000acquitted the appellant of all the charges. It was held that the prosecutionwas not able to prove the charge of demand of dowry against theappellant. It was also held that the prosecution was also not able toprove that Rukmini Bai suffered homicidal death. In other words, theSessions Judge held that the evidence adduced by the prosecution wasnot sufficient to hold the appellant guilty of the offence punishable underSection 498-A IPC and the murder punishable under Section 302 IPC.

9. The State felt aggrieved by the appellant’s acquittal and filedappeal in the High Court of Karnataka seeking leave to appeal questioningthe legality and correctness of the order of the acquittal passed by theSessions Judge.

10. By impugned order, the High Court granted leave to file appealand later allowed the State’s appeal. The High Court by impugned orderreversed the order of the acquittal passed by the Sessions Judge andconvicted the appellant for commission of offences punishable underSections 498-A and 302 IPC. The High Court held that the evidenceadduced by the prosecution, in clear terms, proved both the charges,namely, the demand of dowry and murder beyond reasonable doubtagainst the appellant and, therefore, the appellant was liable to beconvicted under Section 302 read with Section 498-A of IPC. The HighCourt, accordingly, sentenced the appellant to undergo life imprisonment.It is against this judgment/order of the High Court, the appellant (accused)has filed this appeal by way of special leave before this Court.

A

BC

DE

F

G

H

A11. Heard Mr. Mallikarjun S. Mylar, learned counsel for theappellant and Mr. Joseph Aristotle S., learned counsel for the respondent.

12. Mr. Mallikarjun S. Mylar, learned counsel for the appellant(accused), while assailing the legality and correctness of the impugnedorder, contended that no case was made out by the State before theBHigh Court for reversing the judgment of the Sessions Judge. It was hissubmission that the High Court should have upheld the order of theSessions Judge, which rightly acquitted the appellant holding that thecharges leveled against the appellant were not proved.

13. Learned counsel further contended that this being a case ofCreversal, this Court is entitled to re-appreciate the entire evidence forcoming to its own conclusion with a view to find out as to whether theevidence adduced by the prosecution is sufficient to hold the appellantguilty for commission of offences punishable under Sections 498-A and302 IPC.

14. Learned counsel then took us to the entire ocular evidenceDand made sincere attempt by pointing out the circumstances occurringprior to the date of incidence and the manner in which those incidentsoccurred with a view to show that on such evidence adduced by theprosecution, no case of demand of dowry could be made out against theappellant within the meaning of Section 498-A IPC nor a charge ofEcommission of murder of Rukmini Bai punishable under Section 302IPC was made out.

15. In other words, his submission was that the view taken by theSessions Judge acquitting the appellant from both the charges deservesto be restored as against the view taken by the High Court, which wronglyFheld the appellant guilty for commission of the offences.

16. In reply, learned counsel for the respondent (State) supportedthe impugned order and argued that the appeal deserves to be dismissed.It was his submission that the Sessions Judge failed to properly appreciatethe evidence adduced by the prosecution as a result of which wrongGconclusion of acquittal was arrived at by the Sessions Judge whereas,according to learned counsel, the High Court was right in its approach inappreciating the evidence and coming to a conclusion that both thecharges, i.e., demand of dowry and murder were made out against theappellant.

H

17. Having heard the learned counsel for the parties and onappreciating the entire evidence, we are inclined to agree with thereasoning and the conclusion of the High Court.

18. In our view, the High Court was right in holding that a case ofthe appellant’s conviction under Section 498-A and Section 302 IPCwas made out by the prosecution beyond the reasonable doubt and,therefore, the appellant has to be convicted and accordingly sentencedfor commission of twin offences punishable under Sections 498-A and302 IPC.

19. On appreciating the evidence and on perusal of the record ofthe case, we find that it is not in dispute that Rukmini Bai died within 17months of her marriage with the appellant (date of marriage is 4.6.1994and the date of her death is 2.10.1995). It is also not in dispute thatRukmini Bai was not suffering from any kind of ailment and was ahealthy woman. It is also not in dispute that the death occurred due tosevere burn injuries suffered by her on 02.10.1995.

20. The question which, therefore, arises for consideration is, firstwhether the appellant at any point of time made any demand of dowryto Rukmini Bai or/and to her parents; and secondly, whether RukminiBai’s death was “homicidal” or “accidental” in nature.

21. In other words, the question arises for consideration is whetherRukmini Bai’s death can be regarded as “dowry death” attracting Section498-A IPC or/ and secondly, whether her death was “homicidal”attracting Section 302 IPC or it was “accidental death”.

22. PW-1 is the father of the deceased- Rukmini Bai. He deposedin his evidence that the appellant was working as a Constable in theState Police Department. He was addicted to consuming alcohol daily.He often visited to the house of PW-1 in fully drunken condition. Hedeposed that Rukmini Bai had told him and his wife (mother of RukminiBai) that under the influence of alcohol, the appellant used to insist RukminiBai that she should also consume liquor and dance before him undressed.He also deposed that Rukmini Bai had told him many a times that theappellant used to harass and ill-treat her off and on in the house. He alsodeposed that Rukmini Bai also used to tell him that the appellant alsoused to beat her while he was under the influence of liquor and used toinsist her to go to her parental house to bring Rs.4000/- to Rs.5000/-from her parents for him. He further deposed that on two occasions, he A

B

C

D

E

F

G

H

Amanaged to send Rs.2000/- for the appellant through Rukmini Bai butthird time, he declined due to his poor financial capacity to send moremoney. He deposed that Rukmini Bai once told him that she apprehendsdanger to her life when she is alone with the appellant and, therefore,she would like to come back and stay with her parents in their house. Hedeposed that with the intervention of elder members of the village,BRukmini Bai was persuaded to go back and stay with the appellant forwhich she agreed.

23. He deposed that Rukmini Bai on returning to her matrimonialhouse found that the appellant was not mending his ways, and continuedwith his bad habits. She had therefore sent a letter to her father mentioningCthe incidents of ill-treatment meted out to her by the appellant. He alsodeposed that on receipt of the letter from Rukmini Bai, his wife- Savitribaiand his elder brother’s wife-Droupadi had gone to the appellant’s housebut the appellant abused both the ladies and did not permit them to meetRukmini Bai. He deposed that the appellant on that day went to theDextent of beating the two ladies with his shoes. The two ladies then wentto the Police Station and requested the in-charge of the police station toadvise the appellant to behave properly with his wife. On return back tohome, both the ladies told the incident to their elder brother who thencontacted Rukmini Bai when she told him to send Rs.3000/- for theappellant failing which allow her to come back to her father’s house.E

24. PW-1 further deposed that after eight days, a message cameto him at his residence that Rukmini Bai has suffered extensive burns onher body and is admitted in the hospital for treatment. He, therefore,immediately left for the hospital along with his relatives and friends. Onreaching there, he met Rukmini Bai when she told him that it was theFappellant who poured kerosene oil on her body, due to which she sufferedinjuries.

25. PW-4 (Savitribai) is the mother of deceased. On perusal ofher deposition, we find that she has corroborated the evidence of PW-1which we have detailed above on all material issues. In other words,GPW-4 also has given the same version of the appellant which PW-1 hasgiven in his deposition including about the behavior of the appellant andthe way he had ill-treated Rukmini Bai all along till her death.

26. We, therefore, need not repeat in verbatim the deposition ofPW-4 except to state that her deposition is also on the same lines on H

which PW-1 has given his statement and it fully corroborates with theversion of PW-1 on all material issues about the appellant without anycontradiction between the two versions.

27. Now, we come to the evidence of PW-5. He is another son-in-law of PW-1. His name is Bhimappa. He is brother of the appellant.He was married to PW-1’s another daughter-Sonabai. His marriage wasalso performed on the same day on which the appellant was got marriedto Rukmini Bai.

28. He also deposed that the appellant used to ill-treat RukminiBai and at times beat her also. He deposed that one of his relatives-Krishnappa when he visited Rukmini Bai’s house, she complained tohim about the bad behavior of the appellant towards her. This was toldto him by Krishnappa.

29. Now, we come to the evidence of PW-17 (Kristappa). He isa close relative of Eknath (PW-1) - father of the deceased. He deposedthat once he went to Rukmini Bai’s residence and when he was on hisway to a Temple at Tulasigeri, Rukmini Bai met him and complainedagainst the appellant and told him to convey to her father (PW-1) tosend money for the appellant.

30. On a perusal of the evidence of the aforementioned fourprosecution witnesses, it proves in clear terms that firstly the appellantwas addicted to consuming liquor, Secondly, he used to demand moneyfrom the deceased and her parents quite often; and thirdly, he also attimes used to ill-treat and assault the deceased. The incident of ill-treatment and demand of money did not occur once but on many a timesand it started soon after the marriage which continued till Rukmini Bai’sdeath.

31. In our opinion, there is no reason to discard the evidence ofthe father and mother of the deceased who are the most natural andmaterial witnesses to speak on such issues. Indeed, in such circumstances,the daughter - a newly married girl would always like to first discloseher domestic problems to her mother and father and then to her closerelatives because they have access to her and are always helpful insolving her problems.

32. We have not been able to notice any kind of contradiction onany of the material issues in the evidence of these four witnesses despite A

B

C

D

EF

G

H

Athey being subjected to lengthy cross-examination by the defense. Thatapart, why should a mother and a father speak lie unless there arejustifiable reasons behind it. We do not find any such reason in this case.Not only that, even their relatives, i.e., Bhimappa and Kristappa supportedtheir version.

33. We are, therefore, of the opinion that the acts and the behaviorof the appellant (husband) towards his wife-Rukmini Bai soon aftertheir marriage which eventually culminated in Rukmini Bai’s death withinseven years from the date of their marriage squarely fell within themeaning of Section 498-A Explanations (a) and (b) of IPC.

B

34. This takes us to examine the other question as to whether thedeath of Rukmini Bai was homicidal or accidental.

C

35. The evidence on record has proved that the incident in questionoccurred in the morning around 8 a.m. in the house of the deceased. Ithas also come in evidence that at that time, there were only two personsDin the house, i.e., the deceased and the appellant.

36. The case of the prosecution was that it was the appellant,who poured kerosene oil on his wife- Rukmini Bai when she was inkitchen and set her on fire, whereas the case of the appellant was that itwas a case of an accidental death. It was suggested that when RukminiEBai was boiling the water on the oven in the kitchen, her nylon sariaccidentally came in contact with the fire, which resulted in her death.

37. In order to examine this question, the manner in which theincident occured and the surroundings prevailing in the room at the timeof incident are important. The nature of burn injuries sustained by thedeceased is also equally important.

F

38. Having perused the evidence, we are of the considered opinionthat Rukmini Bai died due to pouring of Kerosene oil and setting herbody on fire and this act could be done only by the appellant and by noone else. In other words, it was a case of homicidal death and not acase of accidental death. It is proved by the following circumstances.

G

39. First, it is not in dispute that the incident in question occurredin the house when only the deceased and the appellant were present. Inother words, the appellant was the only person present at the time ofincident in the house with the deceased.

H

40. In these circumstances, it was the appellant who could givesome plausible explanation as to how and in what manner the incident inquestion occurred. As mentioned above, the explanation given by theappellant was that Rukmini Bai’s sari accidentally caught fire when shewas boiling the water on the oven. In our opinion, this story of the appellantcannot be believed.

41. Second, the evidence of I.O., Post-Mortem Report, FSL reportand the evidence of doctor (PW-6) has proved that kerosene oil wasfound on the body of deceased and second, one bottle of kerosene oilwas also lying in the room. The presence of kerosene oil on the body ofdeceased would indicate that the kerosene oil was poured on her body.Since the appellant was the only person present in the room (kitchen), itwas he who could do it.

42. Third, the presence of broken bangles found in the room suggestthat the deceased must have struggled with the appellant to save herselfwhich resulted in breaking of her bangles.

43. Fourth, had it been a case of catching of simple fire from theoven, then in such event, the smell of kerosene oil from the body of thedeceased would not have been found on her body.

44. Fifth, it is nobody’s case that the deceased tried to commitsuicide by pouring kerosene oil on her and then put herself on fire.

45. Sixth, the relations between the appellant and deceased werenot cordial. The appellant always used to demand money from thedeceased which she was not in a position to give to the appellant.

46. Seventh, had this been a case of accident as suggested by thedefense then burn injuries sustained by the deceased would have beenmore on the lower part of her body rather on the upper part of the bodybecause according to defense, the deceased was near to oven when hersari caught fire. The post-mortem report, however, showed that the burninjuries were more on her upper part and her blouse was found burnt.

47. In the absence of any plausible explanation given by theappellant and the one which was suggested but not having been provedand further keeping in view the circumstances, the manner in which theincident occurred and material seized from the room i.e. kerosene oilbottle, it is proved beyond reasonable doubt that the appellant was A

B

C

D

E

F

G

H

Aresponsible for causing death of Rukmini Bai. In other words, RukminiBai’s death was homicidal and not accidental.

48. Learned counsel for the appellant argued that some of thewitnesses of the prosecution did not support their case, and turned hostile.It is for this reason, learned counsel submitted that the prosecution caseBshould be discarded.

49. We do not agree to this submission of the learned counsel forthe appellant. The evidence of four prosecution witnesses which wehave detailed above fully proves the case of the prosecution. In thisview of the matter, even if, some witnesses might have turned hostile,Cyet it would be of no significance and nor it would adversely affect thecase of the prosecution. It is more so when the witnesses which wehave referred above did not turn hostile and were, therefore, rightlybelieved by the High Court.

50. In view of the foregoing discussion, we agree with the reasonsDand the conclusion of the High Court. As a result, the appeal fails and isaccordingly dismissed.

Devika Gujral

Appeal dismissed.

E

F

G

H