LexANAND KUMAR versus STATE OF M.P.
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[2009] 2 S.C.R. 775 ~ ANAND KUMAR A t v STATE OF M.P. Criminal Appeal No. 337 of 2009 FEBRUARY 20, 2009 B (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 c 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 D ~ 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. E 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 F 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 G .> ·-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 775 H 776 SUPREME COURT REPORTS [2009] 2 S.C.R. A 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 C 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 D 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 E 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. F 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 G 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 H piaces a heavier onus on an accused, the onus placed ANAND KUMAR V. STATE OF M.P. 777 ~~ u/s 113-A is far lighter. Under s.113-A the Court 'may A 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] B [ 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 < an accused has to be raised therein, keeping in view the c ( phrase "may presume" occurring in s.113-A, the onus is not as heavy as in the case of a dowry death. In this background, it would not be correct to say that the onus shifts exclusively and heavily on the accused in such \ cases. [para 11] [ 782-D-E] D
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