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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 891 of 2004
Dr. Sunil Kumar Sambhudayal Gupta & Ors. …Appellants
Versus
State of Maharashtra …Respondent
JUDGMENT
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the judgment and order
of the High Court of Bombay, dated 29.4.2004, passed in Criminal
Appeal No. 865 of 1987, by which the High Court has reversed the
judgment and order of the Trial Court acquitting the appellants of the
charges under Sections 306/34 and 498A/34 of the Indian Penal Code,
1860 (hereinafter called as `IPC’).
2. Facts and circumstances giving rise to this case are that
appellant No.1 got married to one Neeru Gupta (hereinafter called as
`the deceased’) on 1.12.1978 by way of an arranged marriage. Out of
the said wedlock, a female child named Mili was born in 1981. There
had been some disputes between the husband and wife on petty
matters. Neeru committed suicide on 28.9.1985 by hanging herself in
the bathroom when all the other family members had gone outside.
Rajesh (PW.2), brother of the deceased, filed a complaint dated
30.9.1985, against the appellants i.e. the husband and parents in law of
the deceased, alleging that they had been demanding dowry and had
given ill treatment to the deceased, and that is why Neeru committed
suicide. The police investigated the matter and filed the charge sheet
against all the three appellants on 9.1.1986 under Section 306 read
with Section 34 IPC and Section 498A read with Section 34 IPC. The
prosecution examined a large number of witnesses to substantiate its
case. After the conclusion of the trial, the Sessions Court vide its
judgment and order dated 21.5.1987, held that the deceased had
committed suicide. However, no role could be attributed to any of the
appellants for the same, and the prosecution failed to prove any of the
charges beyond reasonable doubt against the appellants. The
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witnesses examined by the prosecution improved their version with
regard to claims of the alleged demands, particularly in respect of the
gold ornaments and ill treatment of the deceased. The Trial Court
came to the conclusion that the deceased was suffering from epilepsy,
psychosis and depression and had been getting regular treatment for
the same. Therefore, it was not a case of dowry demand or treating her
with cruelty.
3. Being aggrieved, the State of Maharashtra preferred Criminal
Appeal No.865 of 1987 before the High Court of Bombay and the
High Court reversed the order of acquittal, convicted the appellants
vide its judgment and order dated 29.4.2004 and imposed the
punishment of 3 years RI on the husband, appellant No.1, and 2 years
on the other appellants i.e. the in-laws of the deceased. Hence, this
appeal.
4. Shri K.T.S Tulsi, learned senior counsel appearing for the
appellants, has submitted that the High Court failed to appreciate the
medical evidence and depositions of the prosecution witnesses in the
right perspective, as the same could not establish conclusively that the
suicide by the deceased could be attributed to the appellants to any
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extent. It was a clear cut case of suicide because of depression, as the
deceased had been suffering from epilepsy and other mental disorders.
The deceased had developed an illicit relationship with a family
friend, Kake, and a letter written by the said Kake had been in the
possession of the other family members and, therefore, they had
informed her parents and brother about the said illicit relationship.
The medical evidence, particularly, the deposition of Dr. Daulatram
Nekumal Gurbani (PW.10) made it clear that the deceased had been
suffering from serious depression and such a patient often develops
suicidal tendencies. The deceased had also made an attempt earlier to
commit suicide in 1985 and she had been taken to the local hospital.
Subsequently, she had also been treated at Kanpur. The findings of
fact recorded by the Trial Court that there was neither any demand of
gold ornaments or any kind of dowry, nor had the deceased been
subjected to cruelty, could not be held to be perverse by the High
Court to bring home the charges against the appellants under Sections
306 or 498A IPC. The parents-in-law of the deceased were not living
at Kalyan, as the appellant No.2 had been transferred to Kurudwadi in
1983 and the deceased was living with her husband i.e. appellant
No.1, at Kalyan. The High Court committed an error in shifting the
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burden of proof to the defence as the court observed that the defence
failed to prove its version. In fact the prosecution has to prove its case
beyond reasonable doubt and the failure of the defence to prove the
defence version cannot be a ground for conviction. More so, as there
has been no abetment to suicide, the provisions of Section 306 IPC
could not be attracted. Thus, in view of above, the appeal deserves to
be allowed.
5. On the contrary, Shri Sushil Karanjakar, learned counsel
appearing for the State has vehemently opposed the appeal contending
that the High Court’s judgment is based on cogent reasons and on a
proper appreciation of the evidence on record. The High Court has
correctly reached the conclusion that the findings of fact recorded by
the Trial Court were perverse. The High Court is the final court of
facts, its findings do not deserve to be disturbed by this Court in a
routine manner. There is sufficient evidence on record to prove the
demand of dowry and abetment to suicide. Therefore, no interference
is required by this Court with the findings of fact recorded by the
High Court. The appeal lacks merit and, thus, is liable to be dismissed.
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6. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
7. Before proceeding further, it may be pertinent to mention here
that Shri K.T.S Tulsi, learned senior counsel appearing for the
appellants, has informed us that appellant No.3, Sou. Pushamalati
Sambhudayal Gupta died in the month of February, 2010. In view
thereof, the appeal by appellant No.3 stands abated and we only have
to consider the case of appellant Nos. 1 and 2, i.e., the husband and
the father-in-law of the deceased.
8. The Trial Court after appreciating the depositions of the
witnesses and examining the documentary evidence on record came to
the conclusion that the alleged demand of gold ornaments or ill-
treatment of the deceased could not be established and none of the
letters produced by the prosecution has been suggestive of either of
ill-treatment or demand of dowry. None of the prosecution witnesses,
i.e. the family members of the deceased, made such allegations either
while lodging the FIR or in their statements recorded under Section
161 of the Code of Criminal Procedure, 1973 (hereinafter called
`Cr.P.C.’). Such allegations had been made for the first time while
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making statements before the court during trial. There were material
contradictions and improvements, which were not mere elaborations
of their statements already made. Thus, their statements in regard to
those allegations were liable to be discarded.
9. The High Court reversed the findings of fact recorded by the
Trial Court, mainly relying upon the evidence of Dr. Daulatram
Nekumal Gurubani (PW.10), as he had deposed that when he had
examined the deceased, she told him that she had been deprived of
love and affection by her family members. She had no faith in any
member of her family. He had also opined that it was not a case of
psychosis, but the deceased had been suffering from a mental
disorder. The High Court also reached the conclusion that the defence
failed to establish that the deceased was suffering from epilepsy
before her marriage. The stay of the deceased along with her parents
in a Guest House for two-three days after going from Kanpur to
Kalyan has also been taken by the High Court as a circumstance
adverse to the appellants. The High Court also came to the
conclusions that the intimacy between the deceased and Kake did not
mean that she had illicit relationship with Kake; and there had been a
demand of a gold chain by appellant No.3.
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10. As the High Court has reversed the order of acquittal and taken
a view contrary to the view taken by the Trial Court, we have taken
upon ourselves the task of appreciation of evidence and considered the
legal and factual issues involved in the case.
11. Letters written by the parties to each other:
(A) A large number of letters had been placed on record before the
Trial Court by both the parties. Letter dated 24.2.1979 (Ext.P-26),
written by the deceased to her husband, about 3 months after the
marriage reveals that there was no problem in the relationship
between the husband and wife. In fact, it suggests that they had deep
love and affection for each other.
(B) Letter dated 3.4.1985, written by appellant no. 2 to the father of
the deceased, makes it evident that something had gone wrong and the
behaviour of the deceased had been totally unwarranted, as it revealed
that she had gone out of the house i.e. on the main road, half-naked
and she had brought disrepute to the family of her in-laws. However,
they had been tolerating such behaviour. She had lowered their
prestige so much that they had not been able to show their faces to
anyone. It suggested an illicit relationship between the deceased and
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one family friend, Kake. It also suggested that the deceased wanted to
live with the said Kake, as she had developed love for him and she
was willing to elope with him. It also suggested that it was wrong on
the part of Smt. Shanti (mother of the deceased) to have been giving
wrong advice to the deceased and making false allegations that her in-
laws were not treating her properly. According to this letter, the
deceased had declared that she was no longer interested in Sunil, her
husband, as she did not like him any more and in the end appellant
No.2 had expressed great concern about his grand daughter Mili and
stated that he was willing to keep her in a hostel so that she could be
spared humiliation because of the illicit relationship between the
deceased and Kake. The author of the letter suggested to the father of
the deceased that he should call the deceased to Kanpur as there could
be some untoward/disastrous incident in future.
(C) The undated letter (Ext. P-2) purported to have been written by
Kake to the deceased, gives an impression that the deceased had not
only deep intimacy, but something more with Kake. Kake was also in
possession of some of her photographs which he claimed to be his
fortune and said that the same would not be returned to her as she had
requested and would be burnt only with the end of his life. This letter
9
also suggested that he had the opportunity to have a physical
relationship with her.
(D) There are several other letters on record showing that after the
development of the intimacy between Kake and the deceased, both
families were disturbed and attempts had been made from both the
sides to patch up the matter. However, none of the letters suggests any
demand of dowry or ill treatment to the deceased amounting to cruelty
by the appellants.
(E) The letter dated 7.7.1985 written by the complainant, Rajesh,
brother of the deceased to appellant No.1, is suggestive in nature. It
suggests that appellant no. 1 should try to save the prestige of the
family at any cost and forget all that had happened in the past, as the
deceased was willing to improve herself and accept any advice given
by her husband. Another letter dated 9.7.1985, written by the
informant, Rajesh, brother of the deceased to the appellant No.2
revealed that the entire family of the deceased had been making
serious attempts at re-conciliation. Even in this letter there was not
even a whisper/mention of any demand of dowry or of ill treatment.
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(F) The letter dated 18.7.1985 written by the father of the deceased
to his son Rajesh (PW.2) from Kalyan made it clear that the author
along with the deceased had gone to Kalyan to meet the family of the
appellants, and they were not welcomed by the mother-in-law of the
deceased at the initial stage. They had been staying in Modern Guest
House in the same colony. Appellant No.1, the husband of the
deceased suggested that the deceased should meet her mother-in-law
and apologies, which was accepted by the deceased. The deceased met
her mother-in-law and apologized. After some time, the mother-in-
law became quiet and calm and started behaving properly and all the
appellants treated them well.
(G) The un-dated letter (Ex.P-21) written by the deceased to her
father revealed that her mother-in-law wanted her to separate herself
from the other members of the family and her parents. It also gave the
impression that her mother-in-law was asking for a gold chain
(“zanzir ke liye keh rahi thi”) and created problems for her in meeting
her husband and daughter. After the arrival of her brother-in-law to
Kalyan, the behaviour of her mother-in-law had improved a lot, but
her husband being busy in his practice and did not have sufficient time
to be with her.
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(H) From the original record, a letter dated 1.4.1985 (Ext. 16), by
the mother-in-law to the father of the deceased seems to have been
written after losing hope completely and concluding that the deceased
had become incorrigible. The said letter suggests that the relationship
between the deceased and her husband had come to an end. The
deceased had become a woman of bad character. They had tolerated
her to a great extent. The deceased had been tutored by her mother;
she had been misbehaving with them and it had become difficult for
them to tolerate her any more. The deceased had been using abusive
language to all the family members. She had lowered their reputation
and they had been very unlucky to have such a daughter-in-law. As
she wanted to live with Kake and not with her husband, they did not
want to have any relationship with her. [Appellant No. 3 had denied
writing the said letter].
(I) Another letter dated 22.5.1985, is on record written by Jai
Narain Gupta from Sandila, U.P. (who seems to be relative of the
deceased) wherein a suggestion had been made to patch up the matter.
The author has drawn the inference that the problems were being
created for the deceased, and she has been treated with cruelty as her
in-laws did not receive dowry according to their expectations, though,
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there is no allegation that there has been any demand of dowry and for
not giving the same.
(J) The undated letter written by the deceased to her aunt Manorma
Gupta at Barabanki does not suggest anything against the accused, as
the deceased had written that everything was fine and that she would
discuss things when they met. The undated letter written by her aunt
in reply, suggests that there was something amiss. She had mentioned
that the whole family was very disturbed, but they were not able to
suggest any solution. There was nothing to worry or fear as all of
them were with the deceased and she also told the deceased to face
things with courage, as she had equal rights to stay in the house and to
fight for justice.
12. Depositions of Prosecution witnesses (Relevant parts):
(I) Dr. Mohan Kulkarni, a practicing doctor
residing in the same building (PW.1)-
“I know both accused Nos. 2 and 3 used to
occasionally visit their block at Waldhuni (Kalyan)
after transfer of accused No.2 at Kurduwadi…..I
have no any personal knowledge about the
relations in between accused No.1 and his
deceased wife…..It is true that I was told by
accused No.1 some four or five month before the
incident that his wife Guddi was getting the attacks
of epileptic fits. The ailment of epileptic fits is of
13
neurological problems. I say that these medicines
namely used in neurological problems as gardenal,
have their side effects on the patient. E.C.T.
(Electro Convulsive Therapy) treatment is given to
mental patients of some sort. If a person shows
abnormal signs then he is branded as a mental
patient. I say that those who have tendency of
mental depression they tend to commit suicide. It
is true that mental disorder in some cases creates
mental depression.”
(II) Rajesh (PW.2) (Brother of the deceased)-
“It is true that there was nothing wrong in
between the accused and Neeru till the delivery of
a female child and everything was smooth and
cordial, in between them……
I cannot say why it is not disclosed
specifically in my complaint that as accused no.3
instructed Neeru to fetch golden ornaments on
account of my marriage ceremony, my father
presented with four golden bangles in the
ceremony…….
I cannot say why it is not stated in my
complaint that after the birth of her daughter we
presented Neeru with two golden ear rings and
golden chain of two tolas because those were
demanded by her husband’s family members…..
As I did not remember the exact account of
the remaining ornaments presented to Neeru by us
as and when demanded by her in laws. I did not
narrate about them in the complaint. Except my
words I have no documentary evidence to show
how many golden ornaments were presented to
Neeru and when……
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There is no reference to golden chain any
other letters except letter (Exh.21) sent by Neeru to
my parents and myself. That golden chain we give
to Neeru in 1985 was weighing 2 and = tolas…..
The only reference about the golden chain
asked for by accused no.3 appears in letter
(Exh.21) sent by Neeru to us after she was reached
at her in laws place on 24.8.1985.”
(III) Manorma (PW.7) Aunt of deceased-
“She told me that accused persons had
demanded a golden chain from her and hence she
was not being called back now shown inland letter
dated 10.7.1985 which is written by me to Neeru
alias Guddi at Kanpur…..
I have not stated before the police that when
I met Neeru in March 1985 she told me that
accused persons were demanding more golden
ornaments from her and that they were keeping her
starving and were not allowing her to meet her
daughter Mili, and that she was craving to meet
Mili. As I was not well at that time I forgot to
narrate the things before the police. I have told
this fact for the first time to the court……
I have not written specifically in my two
letters (Exh.39 and 40) addressed to my brother
and sister in law that Neeru told me that she was
subjected to physical assault by the accused and
that she was kept starving by the accused and
further accused demanded golden ornaments from
her.”
15
(IV) Ramkishan Gupta (PW.8) Father of deceased-
“I then arranged for a golden chain and sent
Rajesh along with Neeru with a golden chain to
Kalyan on 24.8.1985. Rajesh handed over golden
chain to accused, and left Neeru in her in laws
house and returned back to Kanpur. After 15 days
we received a telegram sent by brother of accused
no.1 Pradeep Kumar that all was well in the house
at Kalyan. On 29.9.1985 we received a phone call
informing us the said news of death of Neeru…..
I have not stated in letter (Exh.23/1) that
while we were standing out side the house of
accused and requesting them to accept Neeru,
accused no.3 demanded a golden chain from us
and refused to allow Neeru to see her daughter in
side the house, because Rajesh already knew all
these things at Kanpur. I have no documentary
evidence except my words to show that I had
written to my sister Manorama and to my brother
that accused persons were demanding……
I have not stated in either of my two
statements before the police that when accused
no.3 came to attend the wedding of my son Rajesh
she demanded golden ornaments for herself
(Accused no.3). I have not stated in either of my
two statements before the police that even after the
delivery of Neeru in 1981 none of the accused
persons came to Kanpur to visit her. I have not
stated in my first statement dated 1.10.1985 before
the police that when Neeru came for delivery at
Kanpur she informed us that accused no.3 was
demanding golden ornaments from her…..
I have not stated in either of my two
statements specifically that when I and my wife
went to the house of accused on 17.2.1985 we met
all three accused at the entrance and all of them
16
asked me whether I had brought golden ornaments
or had come empty handed, and that they had
already asked Rajesh to bring along golden
ornaments and whereupon I told all three accused
that I had not brought along golden ornaments as I
was not having them and where upon all three
accused pointed out towards Neeru and said as to
how all those accused had driven Neeru to such a
condition and that they would further make her
condition miserable. I have not stated in either of
my two statements before the police that when
Neeru returned back to our house in March 1985
she told us that all accused told her that till their
demand for cash and ornaments was not made,
they would not allow Mili to go along with Neeru.
I have not stated in either of my two statements
before the police that when accused nos.2 and 3
had come to attend the marriage ceremony at
Kanpur in the month of March 1985 accused nos.2
and 3 did not allow me to meet Mili. I had not
stated in either of my two statements before the
police that when Rajesh brought back Neeru in the
month of June 1985 at Kanpur Neeru told me that
she was not allowed to meet her daughter Mili in
the house of her husband and accused no.3 asked
her if she had brought golden chain or not.”
(V) Daulatram Nekumal Gurubani (PW.10), Doctor-
“In the mid of February, 1985 accused No.1
told me that his wife has become aggressive and
was not co-operative and also used to become
violent. When I reached the house of accused
No.1, there I met accused No.2 and Accused No.3.
I examined Neerubai, the wife of accused No.1.
She was lying in store room and was not in a mood
to talk anything with me even she become
aggressive with me in the sense she was not co-
operative with me. Accused No.1 told Neerubai
17
that I was psychotherapist of Thane Mental
Hospital and then Neeru asked me whether I
treated my wife in the same way she was being
treated by her husband accused No.1. She showed
me injury marks bruises on her both knees and a
small injury on the lower lip and also bruises on
the back. She also told me that she was beaten by
her family members and by a ward boy of hospital.
She also told me that she had been maltreated by
her husband, by her mother in law. She also told
me that, her ornaments were being worn by
accused No.3. On seeing the injury marks on her
person I talked with accused No.1 and asked for
details. Accused No.1 told me that as Neeru had
become violent and we were controlling her it was
possible that she sustained small bruises…..
Accused No.1 told me that his wife was
suffering from epileptic fits since before her
marriage and that she was on Geroin tablets. I told
him that there were side effects of this drug and the
drug should be stopped after 3 years. He told me
that she was on drug for so many years and she is
maintained on that drugs. I told him to continue
with above tablets and consult Neurologist if she is
suffering from the above ailments. I visited her
place for 4 times in the same month i.e. February,
1985. During all those visits I never found any
signs of epileptic fits……
Cross examination:
I started my practice in January 1985 at
Ulhasnagar and handed the case of Neeru in
February 1985 after I passed my M.D. Degree in
Psychiatry in July 1984 though I joined mental
hospital at Thane as Medical Officer……
I agree that even in major epilepsy this
medicine Geroin is prescribed. It will not be
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correct to say that because I prescribed medicine
Geroin I was convinced that the patient was
suffering from major epilepsy. Even though I knew
that drug Geroin carried side effect yet I prescribed
it though I knew she had no sign of epilepsy
because once the drug is started it cannot be
abruptly discontinued otherwise the patient may
get fits. I stick to the proposition that if an anti-
convulsent drugs such as Geroin is given for long
period and withdrawn abruptly then she may get
convulsions. I am backed by authority. Clinical
examination alone cannot decide whether a patient
is suffering from epilepsy or not. Patient of
epilepsy may have a grand-mal or petit-mal. It is
true that dose of Geroin daily is more in case of
grand-mal than in the case of petit-mal. It is true
that a maximum dose of Geroin tablets is 4 tablets
3 times a day. I agree that brain scan, EEG and X-
ray of all the skull are required for investigations
in cases of epilepsy….
It is true that drugs at Sr. Nos. 1 to 5
prescribed by me to Mrs. Neeru wife Exh.46 are
normally prescribed in a case of epilepsy with
psychoses and in depressive state….I have
prescribed to Neeru E.C.T. treatment…..It is not
stated in my prescription letter (Exh.46) that if the
drug as Sr. Nos. 1 to 5 prescribed to Neeru do not
work out, then E.C.T. therapy should be started to
her, though verbally told her so. It is true that I have
not specifically stated in my prescription letter
(Exh.46) at any time during my visits to Mrs. Neeru
on 4 or 5 occasions that as the drugs at Sr.Nos. 1 to
5 in (Exh.46) were working, E.C.T. therapy was not
essential…..I have not stated in my police statement
that the room in which Neeru was found was an
unkept room or a store room. I have not stated
before the police that when I was introduced to
Neeru as a psychiatrist, Neeru asked me whether I
treat my wife in the same way as she was treated by
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her husband. I have not stated before the police that
before Neeru was examined by me she told me that
she was harassed by accused persons and that her
ornaments were worn by accused No.3……
I have not stated before the police that I
examined Neeru and found that there was not any
gross psychological problem but she was mentally
disturbed and I found that she had no faith in any of
the members of the family and I found that she was
deprived of love, affection and sympathy of her
family members. I have not stated before the police
that accused No.1 told me she was also epileptic but
I did not find any signs and symptoms of that
disease with her. I have not stated before the police
that I requested accused No.1 where was the X-ray
of skull and other investigation papers and accused
No.1 told me that his wife was suffering of epileptic
fits since before her marriage and that she was on
geroin tablet. I have not stated before the police that
I told him that there were side effects of this drug
and the drug should be stopped after 3 years…..
I agree that Mrs. Neeru did not meet me in
April 1985 but she brought the letter of April 1985
of Dr. S. Mahendru in the month of June 1985. I
have not stated before the police that Neeru either
met me in April 1985 or in June 1985. Beyond my
word there is no any other evidence to show that in
September 1985 accused Nos. 1 and 2 came to me. I
have not stated before the police that both accused
Nos. 1 and 2 later on told me that Neeru committed
suicide and that they needed certificate about her
mental condition…..”
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(VI) Dr. Ramesh Kumar Mahendru (PW.12) – Doctor
from Kanpur :
xxx
“…..I say that the experts prescribed E.C.T. (Electro
Convulsive treatment) in cases of retarded
depression and, manic depressive psychosis. I am
shown the chart today by the learned Defence
counsel in which the prescription of medicines
advised by Dr. Gurubani for Niru and by me are
practically same except with a difference that the
medicines mentioned at Sr.No.4 does not potentiate
as anti depressants but it prevents the reactions
caused by the medicines stated at Sr.No.3 in the
chart…..
Narco therapy is a kind of suggestive psycho
therapy under the influence of narcotic drugs such as
barbiturates.”
13. The above referred letters and the depositions of the witnesses
have to be understood/appreciated within the four corners of law,
particularly dealing with the issues of reversal of the order of acquittal
by the appellate court and discrepancies/improvement/embellishment
and contradictions in the statements of the witnesses.
14. Material Contradictions:
While appreciating the evidence, the court has to take into
consideration whether the contradictions/omissions had been of such
21
magnitude that they may materially affect the trial. Minor
contradictions, inconsistencies, embellishments or improvements on
trivial matters without effecting the core of the prosecution case
should not be made a ground to reject the evidence in its entirety. The
Trial Court, after going through the entire evidence, must form an
opinion about the credibility of the witnesses and the appellate Court
in normal course would not be justified in reviewing the same again
without justifiable reasons. (Vide: State Represented by Inspector of
Police v. Saravanan & Anr., AIR 2009 SC 152).
15. Where the omission(s) amount to a contradiction, creating a
serious doubt about the truthfulness of a witness and other witness
also make material improvements before the court in order to make
the evidence acceptable, it cannot be safe to rely upon such evidence.
(Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106).
16. The discrepancies in the evidence of eye-witnesses, if found to
be not minor in nature, may be a ground for disbelieving and
discrediting their evidence. In such circumstances, witnesses may not
inspire confidence and if their evidence is found to be in conflict and
contradiction with other evidence or with the statement already
22
recorded, in such a case it cannot be held that prosecution proved its
case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v.
State of Uttar Pradesh, (2009) 11 SCC 334).
17. In case, the complainant in the FIR or the witness in his
statement under section 161 Cr.P.C., has not disclosed certain facts
but meets the prosecution case first time before the court, such version
lacks credence and is liable to be discarded. (Vide: State Represented
by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008)
15 SCC 440).
18. In State of Rajasthan v. Smt. Kalki & Anr., AIR 1981 SC
1390, while dealing with this issue, this Court observed as under:
“In the depositions of witnesses there are always
normal discrepancies, however honest and truthful
they may be. These discrepancies are due to
normal errors of observation, normal errors of
memory due to lapse of time, due to mental
disposition such as shock and horror at the time of
the occurrence, and the like. Material
discrepancies are those which are not normal, and
not expected of a normal person.”
19. The courts have to label the category to which a discrepancy
belongs. While normal discrepancies do not corrode the credibility of
a party’s case, material discrepancies do so. (see: Syed Ibrahim v.
23
State of A.P., AIR 2006 SC 2908; and Arumugam v. State, AIR
2009 SC 331).
20. In Bihari Nath Goswami v. Shiv Kumar Singh & Ors.,
(2004) 9 SCC 186, this Court examined the issue and held:
“Exaggerations per se do not render the
evidence brittle. But it can be one of the factors to
test credibility of the prosecution version, when
the entire evidence is put in a crucible for being
tested on the touchstone of credibility.”
21. While deciding such a case, the Court has to apply the aforesaid
tests. Mere marginal variations in the statements cannot be dubbed as
improvements as the same may be elaborations of the statement made
by the witness earlier. The omissions which amount to contradictions
in material particulars i.e. go to the root of the case/materially affect
the trial or core of the prosecution’s case, render the testimony of the
witness liable to be discredited.
Appeal against Acquittal:
22. It is a well-established principle of law, consistently re-iterated
and followed by this Court is that while dealing with a judgment of
acquittal, an appellate court must consider the entire evidence on
record, so as to arrive at a finding as to whether the views of the trial
24
Court were perverse or otherwise unsustainable. Even though the
appellate court is entitled to consider, whether in arriving at a finding
of fact, the trial Court had placed the burden of proof incorrectly or
failed to take into consideration any admissible evidence and/or had
taken into consideration evidence brought on record contrary to law;
the appellate court should not ordinarily set aside a judgment of
acquittal in a case where two views are possible, though the view of
the appellate court may be the more probable one. The trial court
which has the benefit of watching the demeanor of the witnesses is the
best judge of the credibility of the witnesses.
23. Every accused is presumed to be innocent unless his guilt is
proved. The presumption of innocence is a human right. Subject to the
statutory exceptions, the said principle forms the basis of criminal
jurisprudence in India. The nature of the offence, its seriousness and
gravity has to be taken into consideration.
The appellate court should bear in mind the presumption of
innocence of the accused, and further, that the trial court’s acquittal
bolsters the presumption of his innocence. Interference with the
decision of the Trial Court in a casual or cavalier manner where the
25
other view is possible should be avoided, unless there are good
reasons for such interference.
24. In exceptional cases where there are compelling circumstances,
and the judgment under appeal is found to be perverse, the appellate
court can interfere with the order of acquittal. The findings of fact
recorded by a court can be held to be perverse if the findings have
been arrived at by ignoring or excluding relevant material or by taking
into consideration irrelevant/inadmissible material. A finding may
also be said to be perverse if it is `against the weight of evidence’, or
if the finding so outrageously defies logic as to suffer from the vice of
irrationality. (See: Balak Ram & Anr. v. State of U.P., AIR 1974 SC
2165; Shailendra Pratap & Anr. v. State of U.P., AIR 2003 SC
1104; Budh Singh & Ors. v. State of U.P., AIR 2006 SC 2500; S.
Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors., AIR 2008
SC 2066; Arulvelu & Anr. v. State, (2009) 10 SCC 206; Ram Singh
alias Chhaju v. State of Himachal Pradesh, (2010) 2 SCC 445); and
Babu v. State of Kerala, (2010) 9 SCC 189).
25. The instant case is required to be examined in light of the
aforesaid legal principles.
26
Undoubtedly, the record reveals that at an initial stage the
relationship between husband and wife had been very cordial and they
had love and affection for each other. At a later stage when the family
suspected an illicit relationship between the deceased and Kake, the
appellants were very much disturbed. Both the families made serious
attempts to re-concile and patch up the matter and the appellants
agreed that the deceased may be given an opportunity to improve her
behaviour. Thus, admittedly there was a doubt that the deceased had
developed serious intimacy with Kake, which was much more than
what happens in normal course with a family friend. Therefore, the
finding recorded by the High Court that the intimacy between them to
the extent of having an illicit relationship was not there, loses its
significance, for the reason that even the suspicion of such a matter
becomes the talk of the town and the reputation of the family remains
at stake. The protests on the part of the appellants even on a mere
suspicion and asking the deceased to keep distance from Kake or
improve her behaviour is not something which can be termed to be
unwarranted or uncalled for.
26. There is ample evidence on record to suggest that the deceased
had been suffering from psychosis/mental dis-order. According to Dr.
27
Daulatram Nekumal Gurubani (PW.10) the ailment was not of a very
serious nature. However, the prescriptions given by Dr. Gurubani
(PW.10) reveal that the deceased had been suffering from serious
mental dis-order, otherwise such medicines could not have been
prescribed by him. He has prescribed the deceased the medicine
Geroin because he was convinced that the deceased was suffering
from major epilepsy, in spite of the fact that he was fully aware that
the said drug has side effects. He also deposed that mere clinical
examination alone is not sufficient to decide whether the patient is
suffering from epilepsy. He further deposed that such medicine can
be given to a person suffering from grand-mal epilepsy. More so, had
it not been the case of serious ailment of mental dis-order, the
question of prescribing and giving E.C.T. to the deceased could not
arise.
27. There had been a lot of improvements and contradictions in his
statements. The witness deposed for the first time in the court during
the trial, that when he went to examine the deceased, she was found
in an unkept room/store room and that he was introduced to the
deceased as a Psychiatrist and that the deceased had asked him
whether he treated his wife in the same way as she had been treated by
28
her husband. None of this was mentioned in his statement recorded by
the police. Nor it had been recorded therein that the deceased had told
him that she was harassed by the appellants and her ornaments were
taken away/worn by her mother in law (A.3). More so, he had not
stated in his police statement that the deceased was merely mentally
disturbed and not suffering from a gross psychological problem. Nor
had he stated therein that the deceased had told him that she was not
having any faith in any of her family members and she was deprived
of their love, affection and sympathy. Such contradictions in his
statements cannot be held to be mere explanations or elaborations of
his version, but are tantamount to material contradictions or vital
omissions. The Rules of appreciation of evidence requires that court
should not draw conclusions by picking up an isolated sentence of a
witness without adverting to the statement as a whole. In such a fact-
situation, it is not safe to rely on his testimony for the simple reason
that he had made a lot of improvements/embellishments while
deposing in court and vital contradictions exist with his earlier
recorded statement. Thus, no reliance can be placed on his depositions
to hold that appellants had ill-treated the deceased or that appellant
No.3 had taken away/worn her ornaments or that she had been
29
deprived of their love and affection or that she was not suffering from
epilepsy etc.
28. The deposition of Dr. Mohan Kulkarni (PW.1) reveals that
E.C.T. treatment is given only to mental patients, who have mental
depression and tend to commit suicide; the ailment of epileptic fits is
a neurological problem. His statement also suggests that her in-laws
had not been living with her after 1983, as the appellant No.2 stood
transferred to Kurudwadi and had shifted to the said transferred place
and her in-laws had been visiting Kalyan occasionally.
This view stands fully corroborated by the deposition of Dr.
Ramesh Kumar Mahendru (PW.12), Reader in Psychiatric Medicine,
Mental Hospital, Kanpur, as referred to herein above. He had
examined the deceased and prescribed medicines for manic depressive
Psychosis. The prescription of this witness substantially remained the
same as of Dr. Daulatram Nekumal Gurubani (PW.10).
The cumulative effect of the medical evidence given by three
Doctors leads us to the conclusion that deceased had been suffering
from manic depression and certainly had some mental/epileptic/
psychosis problem.
30
29. So far as the other witnesses are concerned, they are the father,
brother and aunt of the deceased. Thus, being close relatives, in such
facts and circumstances they might have developed inimical feelings
towards the appellants, since they came to the conclusion that the
appellants were responsible for the death of the deceased. However,
their depositions are full of contradictions and have marked
improvements from their statements recorded earlier. The
exaggerations and improvements are of such a nature that they make
their whole statements in respect of the demand for gold ornaments
and/or the ill-treatment of the deceased liable to total disregard on
these counts. Gold ornaments had been given by the complainants to
the deceased out of love and free will at the time of the marriage of
Rajesh (PW.2) and at the time of delivery of her daughter Mili.
Undoubtedly, Rajesh (PW.2) had alleged in the FIR that there had
been demand of gold ornaments by the appellants without any details
of the same, however, he could not furnish any explanation as why
this fact had not been disclosed to the police when his statement and
supplementary statement was recorded. Also no such inference can
be drawn from any of the letters on record. Only one un-dated letter
(Ext.P-21) written by the deceased to her father suggests that her
31
mother in-law had been asking for a chain. More so, as the chain had
been given by the complainants to the deceased just 2/3 months before
her death, and there is no evidence that any further demand had been
there, the issue became totally irrelevant in terms of proving the
motive, and it cannot be presumed that any demand had been made.
More so, even if it is presumed that there was some demand by
appellant No.3, as she is no more, and her appeal stands abated, this
issue becomes totally irrelevant for the reason that no such allegation
had ever been made against the remaining two appellants.
30. So far as the stay of the deceased with her parents after coming
from Kanpur to Kalyan at the guest house is concerned, admittedly at
that time the relations between the parties were strained because of the
suspicion that the deceased was having an illicit relationship with
Kake. However, it has been admitted by Ramkishan (PW.8), father of
the deceased, that subsequently the relations became normal and they
were invited at the house of the appellants after the deceased tendered
an apology to her mother-in- law. The said witness did not state in his
statement before the police that when he went to see the appellants on
17.2.1985, they had asked him whether he had brought gold
ornaments or had come empty handed or that he was told that the
32
deceased would not be allowed to live there and they would make her
condition even more miserable. Such an improvement was made
while deposing in court and no explanation could be furnished by him
as to why such vital facts were not stated by him at the time of
recording his statement under Section 161 Cr.P.C. This statement is
to be discarded as it is not safe to hold the appellants guilty of the
offences alleged against them on such an improved version.
31. The deposition of Manorma (PW.7), aunt of the deceased is by
no means different, as she had also made major contradictions and
improvements in her statement made in court. She had not stated in
her police statement that the appellants were demanding gold
ornaments from the deceased and her family or that the appellants
were keeping the deceased starving and were not allowing her to meet
her daughter, Mili. The explanation furnished by her that she had not
been feeling well and had forgotten to narrate such material facts,
cannot be believed.
32. The statement of Rajesh (PW.2), the brother of the deceased is
also full of contradictions and suffers from major improvements. The
contradictions are of such a nature that they impair the whole of his
33
evidence. The same cannot be held to be clarificatory. He was not in
a position to state what ornaments his family had presented to the
deceased on different occasions. More so, it was not even stated in his
police statement that after the birth of Mili, his family had given gold
ornaments as demanded by the appellants. He could not even furnish
an explanation as to why the demand of a gold chain is not evident
from any of the letters between the parties, except in the letter (Ext. P-
21).
33. The complainants have denied the receipt of letter dated
3.4.1985 written by the appellant No.2 to the father of the deceased,
referred to hereinabove. However, the appellants have produced the
correspondence with the post office and proved the postal stamp to
show that the said letter had been sent by registered A.D. to
Ramkishan Gupta (PW.8). The law in this regard is well settled.
In Gujarat Electricity Board & Anr. v. Atmaram Sungomal
Poshani, AIR 1989 SC 1433, this court examined the issue regarding
the presumption of service of letter sent by registered post under
Section 27 of the General Clauses Act, 1897 and held as under:
“There is a presumption of service of a
letter sent under registered cover…. No doubt the
34
presumption is rebuttable and it is open to the
party concerned to place evidence before the court
to rebut the presumption by showing that the
address mentioned on the cover was incorrect or
that the postal authorities never tendered the
registered letter to him…..The burden to rebut the
presumption lies on the party challenging the
factum of service.” (Emphasis added)
A similar view has been re-iterated by this court in Chief
Commissioner of Income Tax (Administration), Bangalore v. V.K.
Gururaj & Ors., (1996) 7 SCC 275; and Shimla Development
Authority & Ors. v. Santosh Sharma (Smt.) & Anr., (1997) 2 SCC
637.
In Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102, a
similar view had been taken by the Privy Council, referring to
Illustration (f) of Section 114 of the Indian Evidence Act, 1872.
In view of the above, it was the responsibility of the
complainants to prove by adducing evidence of the official of the Post
Office, Kanpur that the said letter had not been delivered to them.
However, for the reasons best known to the prosecution such an
exercise has not been undertaken.
35
34. The instant case is required to be examined from another angle
also. The marriage took place on 1st December, 1978. The
complainant party could not place any correspondence on record prior
to February 1985 except letter dated 24th February, 1979 written by
the deceased herself to her husband. However, it goes in favour of the
appellants. Therefore, it is evident that the controversy arose only
after the expiry of the period of more than 6 years from the date of
marriage. It is quite possible that the dispute arose between the parties
only because of the suspicion that the deceased had developed an
illicit relationship with Kake. Had there been a demand of dowry or
ill-treatment to her on any other ground by the appellants, there could
have been some correspondence between the parties during the
aforesaid long period of more than 6 years. None of the prosecution
witnesses had made any allegation of any demand of dowry or ill
treatment during the said earlier period. It is unnatural that after
expiry of such a long period, the appellants suddenly became greedy
and started demanding ornaments and for not meeting their demand,
started ill treating the deceased to the extent that she had to commit
suicide. Thus, the allegations made by the complainant party
remained unnatural and improbable. More so, the demand had been
36
only of a thin gold chain which could not be very expensive in those
days, especially given the socio-economic status of all the parties. For
the gold ornament worth such a petty amount after the expiry of a
long period of about 6 = years, from the date of marriage, it is not
natural that the appellants could treat the deceased with such cruelty
that she was drawn to commit suicide.
35. It is a clear cut case of gross abuse of the dowry laws. We find
it difficult to sustain the conviction of the appellants on the aforesaid
counts based upon the inconsistent, embellished and improved
statements of the witnesses, which materially contradict their
respective statements recorded earlier. The High Court did not
dislodge the reasons given by the Trial Court for acquittal. The High
Court did not make any reference to the deposition of Dr. Daulatram
Nekumal Gurubani (PW.10) in the cross-examination and dealt with
the case very casually, adopting a very superficial approach to the
whole matter and brushed aside the allegation of an illicit relationship
for which there had been documentary evidence on record without
recording any cogent reasons for the same. The High Court did not
make any attempt to appreciate the evidence with accuracy and
37
reversed the findings of the trial court which were based on the
evidence on record and for which detailed reasons had been assigned.
36. In view of the above, the appeal succeeds and is allowed. The
judgment and order of the High Court of Bombay, dated 29.4.2004,
passed in Criminal Appeal No. 865 of 1987 is set aside. The
judgment and order of the Trial court in Sessions Case No. 25/1986
dated 21.5.1987 is hereby restored. The appellants are on bail. Their
bail bonds stand discharged.
……………………………J.
(P. SATHASIVAM)
…………………………
…J.
(Dr. B.S. CHAUHAN)
New Delhi,
November 11 , 2010
38
39
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