REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO…337/2009

(ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 2857/2008)

ANAND KUMAR …………………APPELLANT  

VS.

STATE OF M.P. ……………….RESPONDENT  

J U D G M E N T

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

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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

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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

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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.”

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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.

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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

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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.  

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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

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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

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