ANAND KUMAR v. STATE OF M.P

Citation: [2009] 2 S.C.R. 775

Court: Supreme Court of India

Bench: DALVEER BHANDARI, H.S. BEDI

Case summary

ANAND KUMAR v. STATE OF M.P.pdf

Judgment text

[2009] 2 S. C. R. 775 ~ ANAND KUMAR t v STATE OF M. P. Criminal Appeal No. 337 of 2009 FEBRUARY 20, 2009 (DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ) .... Penal Code, 1860: ~ s. 306 - Suicide committed by a married woman - Mother-in-law, father-in-law and brother-in-law of deceased acquitted - Husband convicted on the basis of a letter alleged to have been written by him - HELD: Letter having not been proved and appearing to be concocted, ocular evidence being sketchy, dying declaration recorded by Naib Tehsildar :,. exonerating all the accused, conviction of husband cannot be ~ ~ maintained - Keeping in view the phrase 'may presume' occurring in s. 113-A of Evidence Act, it would not be correct to say that onus shifts exclusively and heavily on accused - Evidence Act, 1872- ss. 113-A and 113-B - Evidence - Dying declaration - Proving of documentary evidence. Evidence Act, 1872: ss. 113-A and 113-B - Difference between - Explained. • s.

4- Expressions 'may presume' and 'shall presume' as • occurring in ss. 113-A and 113-B respectively- Interpretation of- Interpretation of Statutes. The wife of the appellant consumed poisonous substance and committed suicide within seven years of their marriage. The appellant alongwith his parents and brother faced trial for offences punishable u/ss 306 and . > ·-t 498-A IPC and s. 4 of the Dowry Prohibition Act, 1961. The trial court acquitted the parents and brother of the ~ appellant but, relying on a letter (Ext. P-20), allegedly written by the appellant, convicted and· sentenced him u/s 306 IPC and s. 4 of the 1961 Act. The High Court affirmed the conviction and the sentence. In the appeal it was contended for the appellant that Ext.

P-20 relied on by the trial court in support of the ocular evidence was inadmissible in evidence as it had not been 8 proved; and that the trial court erred in ignoring the dying · - declaration recorded by the Naib Tehsildar which exonerated all the accused of any wrong-doing. The respondent-State contended that in view of the presumption u/s 113-A of the Evidence Act, 1872, the judgments of the courts below needed no interference. Allowing the appeal, the Court. HELD: 1. 1 The excerpt from the evidence of PW-11, the father of the deceased, cannot be said to be proof of the document Ext. P-20 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 the police after several months. This fact, as also a reading of the letter, indicates that this was a concocted piece . of evidence.

Besides, from a reading of the testimonies of PWs 1, 8,11 and 17, it is evident that the problem, if any, lay with the mother-in-law of the deceased and nobody else. Therefore, in this background and keeping in view the fact that the main accused has been acquitted, it would not be possible to maintain the conviction of the appellant. [para 7-8] [ 780-D-H; 781-A, B] 1. 2 As regards the presumption, the legislative intent in ss. 113-A ilnd 113-8 of the Evidence Act, 1872 is clear. Undoubtedly, these provisions do raise a presumption but the facts of the case cannot be ignored. The different terminology of ss. 113-A and 113-8 itself brings out the real purpose behind the two provisions : whereas s. 113-B piaces a heavier onus on an accused, the onus placed ~~ u/s 113-A is far lighter. Under s. 113-A the Court 'may presume', having regard to all the other circumstances of the case, an abetment of suicide as visualized by s. 306 IPC, but in s. 113-8 which is relatable to s.

304-8 the word 'may' has been substituted by 'shall' and there is no reference to the circumstances of the case. [para 9-11] [ 781-8-E; 782-C-D] ~':--1 1. 3 In the instant case, the conviction of the appellant Ac has been recorded u/s 306 IPC which is relatable to s. 113- A of the Evidence Act and though the presumption against . for implicating himself and his near relatives, in a claim for Dowry. .. ,. ) 8. Faced with this situation, Ms. Makhija has pointed out that even if this letter was ignored, the other evidence_ against the appellant was sufficient to maintain his conviction. She has, in particular, relied on the evidence of Arun Kumar Mishra, the brother of the deceased PW-1, a friend of the deceased Sudha Tripathi PW-8, her father Ram Prasad PW-11, and Brij Kumari PW-17 Karuna's Sister-in-law to submit that their evidence + " conclusively spelt out the prosecution's case.

We, however, find from a reading of the testimonies of these witnesses that the problem, if any, lay with Karuna's mother-in-law Ramdulari and she and nobody else was the villain and general allegations [HARJIT SINGH BEDI, J. ] .... ,. with regard to the other accused find mention only in the statement of Ram Prasad. We are, therefore, of the opinion that in this background and keeping in view of the fact that Ramdulari has been acquitted, it would not be possible to maintain the conviction of the appellant on the basis of this evidence. 9. Ms. Makhija has then placed reliance on the presumption ~" raised in a case of abetment of suicide by a married woman, , == 11.

A comparative reading of the two provisions (particularly the underlined portions) would highlight that under Section 113-A the 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 ·f by 'shall' and there is no reference to the circumstances of the ," """case. Admittedly, the conviction of the appellant has been recorded under Section 306 which is relatable to Section 113- A and 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. In this background, Ms. Makhija's arguments that the onus shifts exclusively and heavily on an accused in such cases is not entirely correct and in the background of ....

sketchy ocular evidence and the additional fact that the dying • declaration recorded by the Naib Tehsildar completely exonerates all the accused of any misconduct, clearly-dispels any suspicion with regard to their involvement in this unfortunate incident. 12. We accordingly allow this appeal, set aside the impugned judgments and direct that the Appellant be released forthwith, if not already on bail. l "· R. P. Appeal allowed.