Madhya Pradesh High Court

Sanjiv vs State Of Madhya Pradesh on 15 November, 2006

Equivalent citations: 2007CRILJ2020, 2007 CRI. L. J. 2020, 2007 (3) AJHAR (NOC) 966 (MP), 2007 (5) ABR (NOC) 784 (MP), 2007 CRILR(SC&MP) 420

Author:
U.C. Maheshwari

Bench:
U.C. Maheshwari

JUDGMENT

U.C. Maheshwari, J.

1. This judgment shall govern aforesaid both the appeals as arising out of the same judgment.

2. The appellant of Cr. A. No. 543/92 has preferred this appeal being aggrieved by the judgment dated 30-4-1992 passed by Sessions Judge, Chhindwara in S. T. No. 134/91 convicting him under
Section 306
of I.P.C. with imprisonment of till rising the Court and fine of Rs. 50,000/-, in default of it two and half years SI was directed. While the State of Madhya Pradesh has preferred Cr. A. No. 704/92 under
Section 377
of Cr.P.C. for enhancement of aforesaid punishment.

3. The facts giving rise to these appeals are that the wife of appellant in Cr. A. No. 543/92 namely Babita committed suicide by hanging and died by unnatural death in the intervening night of 22nd and 23rd May 1991 in their home. On information to Police Kundipura, by the appellant a marg intimation (Ex. P.9) was registered on 23-5-1991. After preparation of dead body Panchnama (Ex. P. 10) and spot map (Ex. P. 11) the dead body was sent to hospital for postmortem and the same was carried out. During its enquiry on 26-5-1991 an offence under
Section 306
of I.P.C. was registered. During investigation some suicidal notes written by the deceased and addressed to the appellant and her family members were seized. The appellant was arrested. The seized letters were sent to Hand Writing Expert for his opinion. On receiving such report and completion of investigation the appellant was charge sheeted for the offence under
Section 306
of I.P.C. As alleged the appellant got married with the deceased, who was his maternal sister, contrary to the wishes of their respective family members and the custom of the community. Subsequent to this marriage they were residing separately at Chhindwara while the parents of the deceased were resided at Bhopal.

4. The case was committed to the Sessions Court, where the charge under
Section 306
of I.P.C. was framed against the appellant. On denying the same by him the trial was held, in which the prosecution has examined as many as 11 witnesses while no one was examined on behalf of the appellant in his defence. On appreciation of evidence, the trial Court held guilty to the appellant for the aforesaid offence and sentenced him as said above. Hence, the appellant of Cr. A. No. 543/92 has challenged such conviction and sentence, while the State of Madhya Pradesh has filed Cr. A. No. 704/92 for enhancement of the sentence.

5. Shri S.C. Datt, learned Senior Advocate assisted by Shri Manoj Kumar Pandey counsel for the convicted appellant said that the appellant ought to have been acquitted by the trial Court from the alleged charge on proper appreciation of evidence but under the wrong premises he has been convicted. He fairly conceded that the deceased committed suicide within seven years from the date of her marriage with the appellant and died by unnatural death but in the present circumstances the provision of presumption enumerated under
Section 113A
of the Evidence Act could not be invoked because the prosecution has failed to prove the cruel act of the appellant towards the deceased. By referring para 20 of the deposition of Chandrabhan (P.W. 1), the brother of deceased, he said that no quarrel or dispute took place in between the appellant and the deceased as it was never complained to him or any other person. In this context, depositions of Shivram (P.W. 3) and Mst. Kamini Bai (P.W. 4) the landlord and landlady of the appellant and deceased also referred saying that they have also not stated anything regarding cruel act of the appellant towards the deceased. He by referring the deposition of Darshannath (P.W. 5), businessman of the vicinity said that he did not speak anything against the appellant; in the lack of such evidence of cruelty the appellant could not be held guilty for the alleged offence.

6. According to prosecution another cause for committing suicide was the poverty of the family, it could not be treated as a cause of instigation or abetment to commit suicide against the appellant.

7. So far letters the part of notebook (Ex. P. 1 -A), suicidal notes as allegedly written by the deceased to the appellant and letter Ex. P. 3 written to her mother and brother are concerned, he said that the same has not been proved in the handwriting of the deceased, as the same were not compared by natural and undisputed handwriting of the deceased. Merely on relying the testimony of her brother Chandrabhan (P.W. 1), the handwriting of the deceased could not be inferred, as it was not written in his presence. Even Ex. P. 3 was not seized from the mother or brother of the deceased.

8. So far handwriting expert's report is concerned, he said that it was not prepared by comparing with the admitted or natural handwriting of the deceased. The same were compared with other hand writing of the same note book which could not be held as conclusive proof unless such other hand are not proved the writing of the deceased by any independent source of evidence. Besides this the opinion of hand writing expert could not be a sole ground to draw an inference against the appellant.

9. It was argued that even on assuming that such letters were written by the deceased herself even then looking to its language and averments the same could not be treated as instigation or inducement for committing suicide.

10. So far appeal of State is concerned, he said that in view of his submissions, question for enhancement of sentence does not arise and prayed for dismissal of State appeal by allowing his appeal.

11. On the other hand Shri Pramod Choubey, learned Government Advocate while supporting the findings of the impugned judgment said that the same are based on proper appreciation of evidence and in conformity with the law. It does not require any interference for acquittal of the appellant.

12. While arguing his appeal he said that in the facts and circumstances of the case the provisions of presumption enumerated under
Section 113A
of the Evidence Act was applicable to the case and the appellant was not punished with adequate and proper sentence. Hence, the same is required reconsideration at this stage and prayed for enhancement of the sentence awarded to the appellant by allowing his appeal and also for dismissing the Cr. A. No. 543/92 filed by the appellant/accused.

13. Having heard the learned Counsel, in order to consider their rival submissions, I have gone through the record of the trial Court. Chandrabhan (P.W. 1) the brother of the deceased categorically stated in his deposition that the appellant being his cousin brother he got married with her sister (son of his father's sister) contrary to the custom of the community and the wishes of the family members. He also stated that the appellant was not coming to their home prior to two-three days of the incident and due to financial crises his sister could not take meals. Resultantly, she committed suicide by hanging. He also identified the hand writing of the deceased on Ex. P-1-A and Ex. P.3 but in para 20 of his cross examination, that on his visit to her sister's home at Chhindwara on the festival of Holy he came to know that appellant was parting tuition to some students for their livelihood. He was not apprised by his sister regarding any cruel act of the appellant. He also stated that he has not seen any quarrel or dispute in between the appellant and the deceased. It appears from his deposition that appellant never committed any cruel act towards the deceased.

14. Shivram (P.W. 3) the landlord of the appellant and deceased has not stated anything regarding quarrel or dispute in between the appellant and the deceased. On the contrary he could not say the reason for committing such suicide. He supported the Panchnama (Ex. P. 6) by which the notebook was seized from the aforesaid house. Mst. Kamini Bai (P.W. 4), the landlady specifically stated in para one of her chief that the deceased was egoistic lady and appellant was parting tuition to the students as she was told by the appellant. In para 3 she said that any quarrel or dispute in between the appellant and the deceased was not seen while residing in their house. While other witness Darshannath (P.W. 5), the shopkeeper of the vicinity has also not stated anything regarding cruel act of the appellant towards the deceased.

15. In view of the aforesaid depositions any cruelty on the part of the appellant towards the deceased has not be proved. Thus, in the absence of it, the presumption provided under
Section 113A
of the Evidence Act could not be invoked.

16. Now coming to the question of letters (Ex. P. 1-A and Ex. P. 3) as allegedly written by the deceased to the appellant and her mother and brother. On going through the subject-matter of these letters the averments mentioned in it are not sufficient to draw any inference against the appellant regarding inducement or instigation to deceased for committing suicide. Ex. P. 1-A was written in following manner:

(Vernacular matter is omitted -- Ed.)

17. According to this letter the appellant was not faithful towards the deceased, such ground could not be treated sufficient for abetment to commit suicide, mere apprehension in the mind of the deceased of aforesaid nature could not be treated the act in terms of instigation or inducement for committing suicide. This question was answered by the Apex Court in the matter
Mahendra Singh and Anr. v. State of Madhya Pradesh
reported in 1996 Cri LJ 894 : 1995 AIR SCW 4570, in which it is held as under (Para 1):

The charge under
Section 306
,I.P.C. is basically based on the dying declaration of the deceased which when translated reads as follows:

My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.

Learned Counsel for the appellant rightly submitted that but for the statement of the deceased there was no other pointed evidence from which it could be inferred that there was any abetment so as to bring the acts of the appellant's within
Section 306
, I.P.C. under which the appellants have been punished. The dying declaration, per se, could not involve the appellants in offence punishable under Section 306, I. P. C, because it provides for abetment of suicide. Whoever abets the commission of suicide, and if any person commits suicide due to that reason, he shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Abetment has been defined in
Section 107
, I.P.C. to mean that a person abets the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that thing or thirdly, intentionally aids, by act or illegal omission, the doing of that thing. Neither of the ingredients of abetment are attracted on the statement of the deceased. The conviction of the appellants under
Section 306
, I.P.C. merely on the allegation of harassment to the deceased is not sustainable. The appellants deserve to be acquitted of the charge.

18. This Court has also considered and given the verdict on such question in the matter of
Alka Grewal v. State of M.P.
reported in 2000 Cri LJ 672 (MP), in which it is held as under (para 7):

In this case the material on record may show a cause for the husband to feel so depressed as to take such a decision, but how much he was so depressed by the immoral character of the wife, is different from person to person. It is not a common feature that husbands are led to commit suicide. So it is not a normal conduct. There is no other material on record against the petitioner except the suicide note of the husband and the letter written by him to his own sister earlier. They are totally insufficient material to infer that the wife abetted suicide. She may be cause for the suicide, but not the abettor. So although this wife on the basis of dying declaration deserves no sympathy of either the Court or the society, but it cannot be said that she abetted suicide.

19. If she committed suicide on account of non-availability of the food or meals, as the same was not provided to her by the appellant due to poverty and financial crises then it could not be treated as abetment to commit suicide. This question was resolved by this Court in the matter of
Balram and Anr. v. State of M.P.
reported in 1999 (2) MPJR 304 : 1999 Cri LJ 3944, in which it was held as under (para 6):

On careful consideration of the evidence of the two witnesses mentioned above it is found that deceased Kalanbai was not getting proper food and clothing because her husband was very poor. The word 'cruelty' has been defined in the Explanation to
Section 498A
, I.P.C. Clause (a) of this Explanation provides that 'cruelty' means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide. Clause (b) to this Explanation is not attracted in the present case, as it does not relate to demand of dowry. A reasonable nexus has to be established between the cruelty and the suicide in order to establish the charge of abetment. The cruelty should be of sufficient gravity, which is likely to drive a woman to commit suicide.
In
State of West Bengal v. Orilal
it has been held by the Supreme Court that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstances individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. In the present case the alleged cruelty was not of such a nature, which could ordinarily drive a woman to commit suicide. The cause of the quarrel, as discussed above, was the poverty of appellant Balram. He was not able to provide proper food and clothing to his wife. That cannot be equated with cruelty.

20. So far Ex. P. 3 is concerned, as alleged it was written by the deceased for her mother and brother but not sent to them. Even otherwise in this letter nothing incriminating thing was mentioned against the appellant. Hence, the same could not be treated as a ground to draw any inference against the appellant for giving abetment to commit suicide to the deceased.

21. Besides this, the aforesaid letters have not been proved by cogent and reliable evidence that the same were written by the deceased. Merely on account of seizure of notebook and letters from the place of incident it could not be inferred, the same were written by the deceased unless it is not proved by comparing with the admitted and undisputed natural handwriting of the deceased. Such undisputed papers of handwriting were neither produced nor proved on record. It appears from the report of Hand-writing Expert (Ex. P. 18) that the same was prepared by comparing the handwriting of the other part of the same notebook Ex. P. 1-A, which could not be treated as undisputed or standard hand writing of the deceased, same should have been proved by examining her friends and teacher but such evidence was not led by the prosecution. Although the seizure memo of these letters was proved by Shivram (P.W. 3) and investigating officer Shri N.P. Dwivedi (P.W. 9) but mere seizing the letters could not be treated the handwriting of the deceased in it. Chandrabhan (P.W. 1) has identified such letter in the handwriting of the deceased but he has not stated any foundation to identify such writing. Therefore, it could not be assumed beyond reasonable doubt same have been written by the deceased. Even otherwise the report of handwriting expert (Ex. P. 18) could not be a foundation for conviction of the appellant as it is not a conclusive proof, such question was answered by the Apex Court in the matter of
Bhagwan Kaur v. Maharaj Krishan Sharma and Ors.
, in which it is held as under:

27. So far as the dying declaration PW1/A is concerned, we are of the opinion that the evidence about the writing of that document by the deceased is of a most unconvincing character. The High Court has referred to a number of circumstances, which militate against the acceptance of the evidence regarding the aforesaid dying declaration, and we find no cogent ground to take a different view. It is no doubt true that the prosecution led evidence of hand writing expert to show the similarity of hand writing between PW 1/A and other admitted writings of the deceased, but in this respect, we are of the opinion that in view of the main essential features of the case, not much value can be attached to the expert evidence. The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The Courts should, therefore, be wary to give too much weight to the evidence of handwriting expert.
In
Kishore Chandra v. Ganesh Prasad
this Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case.

22. On another occasion the Apex Court has
laid down in
the matter
Magan Bihari Lal v. The State of Punjab
, reported in AIR 1977 SC 1901 : 1977 Cri LJ 1197, in which it is held as under (Para 7):

It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of the presidential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in
Ram Chandra v. State of U.P.
, that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence.

This Court again pointed out in
Ishwari Prasad v. Md. Isa
that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in
Shashi Kumar v. Subodh Kumar
where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.
This Court had again occasion to consider the evidentiary value of expert opinion in regard to hand writing in Fakhruddin v. State of M.P. AIR 1967 SC 1326 : 1967 Cri LJ 1197 and if uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the Court must always try to see whether It is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the Judgments of English and American Courts. Vide Gureny v. Longlands (1822) 5 B & Ald 330 and Matter of Alfred Foster's Will, 34 Mich 21. The Supreme Court of Michigan pointed out in the last mentioned case; 'Every one knows how very unsafe it is to rely upon any one's opinion concerning the niceties of penmanship. Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil. We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, is by its very nature weak and infirm and cannot of itself form the firm and cannot of itself form the basis for a conviction.

23. Under the aforesaid premises, it is held that the trial Court has committed infirmity, perversity and grave error in appreciation of the evidence holding guilty to the appellant for the alleged offence. Hence, the judgment of the trial Court as well as conviction and sentence of the appellant is not sustainable and the same is hereby set aside.

24. Resultantly by allowing Cr. A. No. 543/92, the appellant Sanjiv is acquitted from the alleged charge of
Section 306
of IPC, his bail bonds are hereby cancelled. In consequence of this acquittal Cr.A. No. 704/ 92 filed on behalf of the State deserves to be and is hereby dismissed.