Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 328

2009(2) Supreme 72
SUPREME COURT OF INDIA
Dalveer Bhandari and Harjit Singh Bedi, JJ.
Anand Kumar — Appellant
versus
State of M.P. — Respondent
Criminal Appeal No. 337/2009
(Arising Out of Special Leave Petition (Crl.) No. 2857/2008)
Decided on : 20-02-2009

Advocates appeared:
For the Appellant :Vivek K. Tankha, Sr. Adv., Suryanaryana Singh, Ms. Pragati Neekhra and Ms. Ratna Kaul, Advocates.
For the Respondent:Ms. Vibha Datta Makhija, Advocate.

IMPORTANT POINT
Under Section 306 of IPC which is relatable to Section 113 – A of the Evidence Act, 1872 though the presumption against an accused has to be raised therein as well, the onus is not as heavy as in the case of a dowry death.

Headnote:Indian Penal Code, 1860 – Section 498 A and 306 r\w Section 4 of Dowry Prohibition Act –Death by Suicide – Death of deceased in matrimonial home by consuming aluminium phosphide (Sulphas) tablets – Prosecution of appellant husband and his parents and brother – Trial Court while convicting appellant acquitted rest of accused persons – Appeal – Dismissed by High Court – Appeal – Courts below relied heavily on letter Exhibit P – 20 to support finding of conviction against appellant – This letter was sought to be proved in evidence by PW – 11 father of the deceased, to whom it had been addressed – However excerpt from his evidence could not be said to be proof of the document as no statement was made that he recognized the handwriting or the signature of the appellant – Moreover, this letter had not been produced before the police during the course of the initial investigation and was handed over to police after several months – This fact, as also a reading of the letter, indicated that this was a concocted piece of evidence and the work of a legal mind, as no person would write such a letter meeting all legal requirements for implicating himself and his near relatives, in a claim for Dowry – Apart from that a comparative reading of two provisions highlighted that under Section 113 – A Court ‘may presume’, having regard to all the other circumstances of the case, an abetment of suicide as visualized by Section 306 of the IPC but in Section 113 – B which is relatable to Section 304 – B the word ‘may’ has been substituted by ‘shall’ and there is no reference to circumstances of the case – Admittedly, the conviction of appellant had been recorded under Section 306 which was relatable to Section 113 – A and though presumption against an accused had to be raised therein as well, onus was not as heavy as in the case of a dowry death – Hence in this background, contention that onus shifts exclusively and heavily on an accused in such cases held not entirely correct – In the background of sketchy ocular evidence and the additional fact that the dying declaration recorded by the Naib Tehsildar completely exonerated all the accused of any misconduct, clearly dispelled any suspicion with regard to their involvement in this unfortunate incident – Appeal Allowed. (Paras 7 to 12)
       Facts of the Case :
        1. Deceased died in matrimonial home by consuming aluminium phosphide (Sulphas) tablets herein in the instant case. On Prosecution of appellant husband and his parents and brother,Trial Court while convicting appellant acquitted rest of accused persons. Appeal there against was dismissed by High Court.
        2. Present appeal has been filed against said order of High Court.
       Findings of the Court :
        Courts below relied heavily on letter Exhibit P – 20 to support finding of conviction against appellant. This letter was sought to be proved in evidence by PW – 11 father of the deceased, to whom it had been addressed. However excerpt from his evidence could not be said to be proof of the document as no statement was made that he recognized the handwriting or the signature of the appellant. Moreover, this letter had not been produced before the police during the course of the initial investigation and was handed over to police after several months. This fact, as also a reading of the letter, indicated that this was a concocted piece of evidence and the work of a legal mind, as no person would write such a letter meeting all legal requirements for implicating himself and his near relatives, in a claim for Dowry. Admittedly, the conviction of appellant had been recorded under Section 306 which was relatable to Section 113 – A and though presumption against an accused had to be raised therein as well, onus was not as heavy as in the case of a dowry death – Hence in this background, contention that onus shifts exclusively and heavily on an accused in such cases held not entirely correct – In the background of sketchy ocular evidence and the additional fact that the dying declaration recorded by the Naib Tehsildar completely exonerated all the accused of any misconduct, clearly dispelled any suspicion with regard to their involvement in this unfortunate incident. Appeal was allowed acquitting appellant.
       Result : Appeal allowed.

JUDGMENT

Harjit Singh Bedi, J. —

1. Leave granted.

2. This appeal has been filed by the accused who stands convicted for offences punishable under Section 306 of Indian Penal Code and Section 4 of the Dowry Prohibition Act 1961 and sentenced to imprisonment for 5 years and 6 months R.I. respectively – both sentences to run concurrently. The facts are as under:

3. Karuna, deceased and the appellant Anand Kumar were married in the year 1981 while she was yet a child. The gauna of the deceased, however, took place on 13th May 1986 and a month thereafter she visited her parents home to attend a family wedding and on 18th June 1986, returned to her matrimonial home accompanied by her brother – in – law. She, however, consumed aluminium phosphide (Sulphas) tablets on 28th June 1986 and in a precarious condition was removed to Kothi hospital from where she was referred to the Civil Hospital, Satna for further management. The Naib Tehsildar – cum – Executive Magistrate concerned was called by the doctor who recorded her dying declaration. Karuna, however, died soon thereafter, on which information was sent to Police Station City Kotwali, Satna on 29th June 1986 and a case under Section 498 A and 306 of the IPC and Section 4 of the Dowry Prohibition Act was registered. On the completion of the investigation, the four accused i.e. the appellant, his father Manmohan Gautam, mother Ramdulari and brother Anoop Kumar Gautam were committed to face trial and duly charged for the offences, as above mentioned. The trial court after recording the evidence of 20 witnesses and taking into account, in particular the ocular evidence, acquitted the parents and brother of the appellant but placing reliance on a letter dated 27th February 1986 Exhibit P – 20 allegedly written by the appellant to his father – in – law held the case against the appellant proved and accordingly convicted and sentenced him, as already indicated above. In appeal the High Court confirmed the order of conviction and sentence. It is in these circumstances that the matter is before us by special leave.

5. Mr. Tankha, the learned Senior Counsel for the appellant has, at the very outset, pointed out that as per the findings recorded by the Trial Court and confirmed by the High Court, the evidence adduced by the Prosecution was unreliable so as to involve the three accused who had been acquitted although the ocular evidence if at all pointed directly towards Karuna’s in – laws rather than at the appellant as being the guilty party. He has submitted that in the fact that the State had not chosen to challenge the acquittal of the three, it had to be held that the evidence with regard to the present appellant too was ambivalent and insufficient to bring home the charge against him. He has further emphasized that the courts below too were conscious of this fact and had accordingly chosen to rely on the letter Exhibit P – 20 in support of the ocular evidence against the appellant although the said letter was inadmissible in evidence as it had not been proved, and had on the other hand ignored the dying declaration recorded by the Naib Tehsildar which exonerated all the accused of any wrongdoing. Ms. Makhija, the learned State Counsel has, however, pointed out that in the light of the presumption raised under Section 113 – A of the Evidence Act, 1872 and the ocular evidence in the case there was other unimpeachable evidence against the appellant, even assuming that the letter Exhibit P – 20 could not be looked into. She has relied on State of Punjab Vs. Iqbal Singh and Others1 (1991) 3 SCC 1 to support her plea that a presumption had advisedly been raised against an accused in an offence relating to abetment of suicide in view of the malaise of dowry which had afflicted Indian society and if this gross social evil had to be curbed, the court must also lend a helping hand.

6. We have heard the learned counsel for the parties and gone through the record. The fact that three of the accuse

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2009 Supreme(SC) 328

2009(2) Supreme 72SUPREME COURT OF INDIADalveer Bhandari and Harjit Singh Bedi, JJ.Anand Kumar — AppellantversusState of M.P. — RespondentCriminal Appeal No. 337/2009(Arising Out of Special Leave Petition (Crl.) No. 2857/2008)Decided on : 20-02-2009

IMPORTANT POINT Under Section 306 of IPC which is relatable to Section 113 – A of the Evidence Act, 1872 though the presumption against an accused has to be raised therein as well, the onus is not as heavy as in the case of a dowry death.

Cases Referred (1)

2009(2) Supreme 72
SUPREME COURT OF INDIA
Dalveer Bhandari and Harjit Singh Bedi, JJ.
Anand Kumar — Appellant
versus
State of M.P. — Respondent
Criminal Appeal No. 337/2009
(Arising Out of Special Leave Petition (Crl.) No. 2857/2008)
Decided on : 20-02-2009

IMPORTANT POINT
Under Section 306 of IPC which is relatable to Section 113 – A of the Evidence Act, 1872 though the presumption against an accused has to be raised therein as well, the onus is not as heavy as in the case of a dowry death.