Anand Kumar vs State Of M.P

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 4

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 Others (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 5

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 accused

have been acquitted and that no appeal against their acquittal

has been filed is admitted on record. It is also clear from the

impugned judgments that the courts have relied heavily on

the letter Exhibit P-20 to support the finding of conviction

against the appellant. This letter was sought to be proved in

evidence by PW-11 Ram Prasad, the father of the deceased, to

whom it had been addressed. This is what he had to say in

his examination in chief by way of its proof :

"I had received letter of threat from accused Anand Kumar on 27.02.86 through Peon Achchhe Lal and that letter is exhibit P20. He had raised the demand for radio, watch, cycle and fan through that letter, at the time of gauna, I had given him watch, radio, cycle and fan as demanded in the letter."

6 7. We are of the opinion that this excerpt from his evidence

cannot 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 had been 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 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.

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. 7

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 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, as envisaged under Section 113-A of the

Evidence Act to contend that the onus lay on the accused to

prove his innocence. She has in this connection referred us to

Iqbal Singh's case (Supra) to emphasize that the legislative

intent in the introduction of Sections 113-A and 113-B of the

Evidence Act was to strengthen "the Prosecution hands by

permitting a presumption to be raised if certain foundational

facts are established and the unfortunate event has taken place

within seven years of marriage." She has accordingly 8

submitted that in the light of this presumption it was for the

accused to prove that nothing amiss had happened at their

instance.

10. Undoubtedly, the aforesaid provisions do raise a

presumption but the facts of the case cannot be ignored. The

different terminology of Sections 113-A and 113-B itself brings

out the real purpose behind the two provisions and whereas

Section 113-B places a heavier onus on an accused, the onus

placed under Section 113-A is far lighter. We reproduce the

two Sections hereunder to focus on this distinction:

"113-A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetment 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 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.

9 113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has 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. "

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 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 10

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.

...................................J. (DALVEER BHANDARI)

..................................J. (HARJIT SINGH BEDI) New Delhi,

Dated: February 20, 2009