Holding

The conviction under s.306 cannot be maintained as the letter was not proved, the presumption under s.113‑A is discretionary, and the dying declaration together with unreliable ocular evidence exonerates the accused.

Summary

Karuna, the wife of Anand Kumar, died by suicide within seven years of marriage. Kumar, his parents and brother were charged under IPC s.306 (abetment of suicide), s.498A (cruelty) and the Dowry Prohibition Act s.4. The trial court acquitted the parents and brother but convicted Kumar based on a letter (Exhibit P‑20) allegedly written by him and on sketchy ocular evidence; the High Court affirmed. On appeal, the defence argued that the letter was not proved and that a dying declaration recorded by the Naib Tehsildar exonerated all accused, while the State relied on the presumption under Evidence Act s.113‑A. The Supreme Court held that the letter was inadmissible and appeared concocted, the presumption under s.113‑A merely allows a discretionary "may presume" and does not shift the heavy burden onto the accused, and the dying declaration together with unreliable ocular evidence cleared the accused. Consequently, the conviction under s.306 was set aside and the appellant released.

Issues considered

Whether the letter (Exhibit P‑20) is admissible and can be relied upon to prove abetment of suicide under IPC s.306.
Whether the presumption under Evidence Act s.113‑A shifts the burden of proof onto the accused in abetment of suicide cases.
Whether the dying declaration exonerating the accused overrides other evidence.
Whether conviction can be sustained on sketchy ocular evidence in the absence of reliable documentary proof.

Legislation cited

Dowry Prohibition Act, 1961s. 4
Indian Evidence Act, 1872s. 113-A, s. 113-B
Indian Penal Code, 1860s. 306, s. 498A

Subjects

abetment of suicidepresumptionEvidence Act s.113-Aburden of proofdying declarationdowry deathocular evidenceconviction overturned

Judgment

[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
of- Interpretation of Statutes. F

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
..._
State of Punjab Vs. Iqbal Singh and Others (1991) 3 SCC
~

1 - referred to.
1.4 The sketchy ocular evidence and the additional
fact of the dying declaration recorded by the Naib
Tehsildar completely exonerating all the accused of any E
misconduct, clearly dispel any suspicion with regard to

( ,.
. their involvement in the unfortunate incident. Accordingly,
the judgment of the High Court is set aside and the
appellant is directed to be released. [para 11-12] [ 782-E-G]
F
Case Law Reference
(1991) 3 sec 1 referred to para 5
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
No. 337 of 2009
G
,;. _. From the final Judgement and Order dated 25.10.2007 of
the High Court of Madhya Pradesh at Jabalpur in Criminal
Appeal Nos. 781 of 1993.
Vivek K. Tankha, Suryanaryana Singh, Pragati Neekhra
and Ratna Kaul, with him for the Appellant. H
778 SUPREME COURT REPORTS [2009] 2 S.C.R.

A Vibha Datta Makhija, for the Respondent. ~·

The Judgement of the Court was delivered by
HARJIT SINGH BEDI, J.
1. Leave granted.
B
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
i.
and sentenced to imprisonment for 5 years and 6 months R.I.
c respectively- both sentences to run concurrently. The facts are
as under:
..
3. Karuna, deceased and the appellantAnand Kumar were }---

married in the year 1981 while she was yet a child. The gauna
th
of the deceased, however, took place on 13 May 1986 and a
D month thereafter she visited her parents home to attend a family f·
_,_,
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 Kathi
E 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, ~
1
F Satna on 29 h 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 Anoop Kumar Gautam were
com.mitted to face trial and duly charged for the offences, as
G
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 2ih February 1986 Exhibit P-
20 allegedly written by the appellant to his father-in-law held the
H
ANAND KUMAR V. STATE OF M.P. 779
[HARJIT SINGH BEDI, J.]

case against the appellant proved and accordingly convicted A
' 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 forthe appellant B
has, at the very outset, pointed out that as per the findings
" A' 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 c
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 that the
evidence with regard to the present appellant too was ambivalent
~,
and insufficient to bring home the charge against him. He has D
/
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 E
declaration recorded by the Naib Tehsildar which exonerated
all the accused of any wrongdoing. Ms. Makhija, the learned

1 .,.
. 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 F
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
sec 1 to support her plea that a presumption had advisedly
been raised against an accused in an offence relating to
G
-~
abetment of suicide in view of the malaise of dowry which had
~
afflicted 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 H
780 SUPREME COURT REPORTS [2009] 2 S.C.R.

A been acquitted and that no appeal against their acquittal has r-
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
B 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
c exhibit P20. He had raised the d~mand 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."
7. We are of the opinion that this excerpt from his evidence i-
D
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.
E
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. ..,. )

F 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 Sud ha
G 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
H she and nobody else was the villain and general allegations
ANAND KUMAR V. STATE OF M.P. 781
[HARJIT SINGH BEDI, J.]

....,. with regard to the other accused find mention only in the A
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. B
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
c
(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
D
marriage." She has accordingly 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 E
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 F
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 worn.an had been abetment
by her husband or any relative of her husband and it is G
,J 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 H
782 SUPREME COURT REPORTS [2009] 2 S.C.R.

A had been abetted by her husband or by such relative of ,--
her husband.
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
B death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any demand
I'
for dowry, the "Court shall presume that such person had ~

),
caused the dowry death."
">==
c 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
D
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
E 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
F 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
G
forthwith, if not already on bail. l
"·
R.P. Appeal allowed.