LexGIRDHAR SHANKAR TAWADE versus STATE OF MAHARASHTRA
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A GIRDHAR SHANKAR TAWADE v. STATE OF MAHARASHTRA APRIL 24, 2002 B [UMESH C. BANERJEE AND Y.K. SABHARWAL, JJ.) Penal Code, 1860-Sections 306, 498-A-Charges under-Conviction under Section 498-A-Acquittal under Section 306 by Courts below-:-On appeal ·r c held, evidence not sufficient to bring home charge under Section 498-A- ,.__ Acquittal under Section 306 though not by itself a ground for acquittal under Section 498-A, but some cogent evidence is required to bring home the charge under Section 498-A. Constitution of India, 1950-Article 136-Petition-Appreciation of D evidence under-Held, normally not permissible, but permissible in case of misappreciation of evidence leading to utter perversity. Evidence Act, 1872-Section 32-Dylng declaration-Corroboration of- Held, though not essential but is otherwise expedient to strength the evidentiary ·~ value thereof ~ E Accused-appellant was charged under Sections 306 and 498-A. Prosecution relied on the oral evidence of the brother and cousin of the deceased, on the 3 letters written by deceased, and on dying declaration of the deceased. However, there was inter se contradiction in the oral evidence. F Trial Court on appreciation of the evidence held the death as accidental ' and convicted the accused under Section 306 IPC. However, it convicted him )- under Section 498-A. Judgment of trial court was upheld by High Court. Hence the present appeals. G Allowing the appeal, the Court HELD: 1.1. Inherent contradiction interse in the evidence of the brother and cousin of the deceased leads to the term of credibility of the oral evidence and it is in this perspective that reliance thereon by both the Trial Court and the High Court stands totally misplaced resulting in uttar perversity. (382-D] -+ ' H 376 GIRDHAR SHAN KART A WADE v. STATE OF MAHARASHTRA 3 77 1.2. Dying declarations shall have to be dealt with due care and upon A proper circumspection. Though corroboration thereofis not essential as such, but its introduction is otherwise expedient to strengthen the evidential value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of the dying declaration as a trustworthy piece of evidence. In the instant case the dying B declaration does not lend any assistance in the matter in issue. [382-E, Fl 1.3. If suicide is ruled out then in that event applicability of Section 49S- A can be had only in terms of explanation (b) thereto which in no uncertain terms records harassment of the woman and the Statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the C event of such a harassment being with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand-there is total absence of any of the requirements of the Statute in terms of Section 49S-A. The three letters said to have been written cannot possibly lend any credence to the requirement of the Statute or even D a simple demand for dowry. [383-C, DI 1.4. In order to justify a conviction under Section 498-A there must be available on record some material and cogent evidence. In the instant case, no credence can be attributed on the two inconsistent versions of the brother E and cousin-the documentary evidence (namely, those three letters), falls short of the requirement of the Statute: Even on an assu_mption of the fact that there is no contradiction in the oral testimony available on record would not bring home the charge under Section 498-A. Demand for dowry has not seen the light of the day. (377-El F 1.5. Acquittal of a charge under Section 306, though not by itself a ground for acquittal under Section 498•A, but some cogent evidence is required to bring home the charge of Section 498-A as wet~ without which the charge cannot be said to be maintained. In the instant case, there is no such evidence available on record. Conviction as recorded by the Trial Judge as also by the High Court cannot be sustained. If suicide is left out, then in G that event question of applicability of explanation (a) to Section 498-A would not arise-neither the second limb to cause injury and danger to life or limb or health would be attracted. To have an event sometime back cannot be ~ termed to be a factum take
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