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Wednesday, April 2, 2014

Sec. 498 A, 304 B and 306 I.P.C. - sec.116 A of Evidence Act - Trial court acquitted as there are material improvements in evidence and acquitted - High court convicted the husband under sec. 306 I.P.C. with the help of sec.116 A of Evidence Act - when wife and child died as the wife plunged in to river with a child within 7 years of marriage - burden lies on husband why she committed suicide when the prosecution proved harassment = Ramesh Vithal Patil …Appellant Versus State of Karnataka and Ors. …Respondents= 2014 (March.Part) http://judis.nic.in/supremecourt/filename=41370

Sec. 498 A, 304 B and 306 I.P.C. - sec.116 A of Evidence Act -  Trial court acquitted as there are material improvements in evidence and acquitted - High court convicted the husband under sec. 306 I.P.C. with the help of sec.116 A of Evidence Act - when wife and child died as the wife plunged in to river with a child within 7 years of marriage - burden lies on husband why she committed suicide when the prosecution proved harassment  - Apex court confirmed the High court order = 
The trial court in the circumstances  held  that  demand
was not proved and that it  cannot  be  said  that  the  deceased  committed
suicide because she was ill-treated by the accused.=
The  acquittal  of  the
appellant of the offence under Section 304-B  of  the  IPC  was  set  aside.
Instead he was convicted for offence punishable under  Section  306  of  the
IPC and sentenced to undergo rigorous imprisonment  for  three  years.   The
acquittal of the other accused was confirmed.   
The  High  Court  held  that
they must be given benefit of doubt.  
Being  aggrieved  by  his  conviction, the appellant has approached this Court.=

Ganpat   v. State of Haryana &  Ors.[8],  this  Court  reformulated
the principles as under:

           “(i) There is no limitation on the part of the  appellate  court
           to review the evidence upon which  the  order  of  acquittal  is
           founded and to come to its own conclusion.


           (ii) The appellate court  can  also  review  the  trial  court’s
           conclusion with respect to both facts and law.


           (iii) While dealing with the appeal preferred by the  State,  it
           is the duty  of  the  appellate  court  to  marshal  the  entire
           evidence on record and by giving cogent and adequate reasons may
           set aside the judgment of acquittal.


           (iv) An order of acquittal is to be interfered  with  only  when
           there are “compelling and substantial reasons” for doing so.  If
           the order is “clearly unreasonable”, it is a  compelling  reason
           for interference.


           (v) When the trial court has ignored the evidence or misread the
           material evidence or has ignored material documents  like  dying
           declaration/report of  ballistic  experts,  etc.  the  appellate
           court is competent to reverse the decision of  the  trial  court
           depending on the materials placed. (Vide Madan Lal v.  State  of
           J&K(1997) 7 SCC 677, Ghurey Lal v. State of U.P. (2008)  10  SCC
           450, Chandra Mohan Tiwari v. State of M.P. (1992) 2 SCC 105  and
           Jaswant Singh v. State of Haryana(2000) 4 SCC 484.” =
When his wife and small child had left  the  house  and
were not traceable the appellant was expected to move heaven  and  earth  to
trace them.  As to when and why the deceased left  the  house  and  how  she
died in suspicious circumstances was within the  special  knowledge  of  the
appellant.  When the prosecution established  facts  from  which  reasonable
inference can be drawn that the deceased committed  suicide,  the  appellant
should have, by virtue of  his  special  knowledge  regarding  those  facts,
offered an explanation which might drive  the  court  to  draw  a  different
inference.  The burden of proving those facts was on the  appellant  as  per
Section 106 of the Evidence Act but the appellant  has  not  discharged  the
same  leading  to  an  adverse  inference  being  drawn  against  him  (See:
Tulshiram Sahadu Suryawanshi & Anr.    v.   State  of  Maharashtra[9]    and
Babu  alias Balasubramaniam)=
Applying the above principles, we  have  no  hesitation  in  recording
that the trial court’s order acquitting the appellant is replete with  gross
errors of facts resulting in miscarriage of justice.   
The  High  Court  has
rightly held that the other members of the appellant’s family can  be  given
benefit of doubt, but the appellant cannot escape the liability.  
We  concur with the High Court.   We see no  reason  to  interfere  with  the  impugned
judgment of the High Court.  
The  appeal  is,  therefore,  dismissed.    
The appellant is on bail.  He is directed  to  surrender  forthwith.   His  bail
bond stands cancelled.

2014 (March.Part) http://judis.nic.in/supremecourt/filename=41370
RANJANA PRAKASH DESAI, MADAN B. LOKUR

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 56 OF 2006


Ramesh Vithal Patil                                …Appellant


Versus


State of Karnataka and Ors.                  …Respondents



                           J  U  D  G  M  E  N  T



(SMT.) RANJANA PRAKASH DESAI, J.



1.    The appellant-accused no.1 was tried along with five others  (original
accused nos. 2 to 6 respectively) by  the  III  Additional  Sessions  Judge,
Belgaum for offences  punishable  under  Sections  498-A,  304-B  read  with
Section 34 of the IPC.

2.     Accused no.1 is the husband of deceased  Hira  alias  Vaishali  (‘the
deceased’, for convenience).  Accused no. 2 is the father of the  appellant,
accused nos. 3 & 4 are the brothers of the appellant, accused no. 5  is  the
wife of accused no. 2 and accused no. 6 is the wife of accused no. 3.

3.     The appellant was married to the deceased on  27/06/1985.   According
to the prosecution, the appellant and other accused subjected  the  deceased
to cruelty in their house  at  Kasaba  Nandgad,  Taluka  Khanapur,  District
Belgaum.  They asked her to bring five tolas of gold  and  Rs.10,000/-  from
her parents.  On account of  this  unbearable  cruelty,  on  10/12/1987  the
deceased committed suicide by jumping in the Malaprabha River near  Khanapur
along with her ten month old daughter Jyoti.

4.    In support of its case the prosecution  examined  11  witnesses.   The
important witnesses who unfolded the prosecution  story  are  PW1-Bhavakanna
and PW2-Balram, elder brothers of the deceased and PW5-Babita, wife of  PW2.
  PW4-Dr.  Ishwarappa,  the  Medical  Officer  attached  to  District  Civil
Hospital at Belgaum, conducted post-mortem examination of the deceased.   He
opined that death of  the  deceased  was  due  to  asphyxia  on  account  of
drowning.  The accused pleaded not guilty to the charge.

5.     The trial court came to a conclusion that the prosecution had  failed
to prove its case beyond reasonable doubt and acquitted  the  accused.   The
trial court observed that while in court PW1 and PW2  stated  that  all  the
accused were harassing the deceased and asking her to bring 5 tolas of  gold
and cash of Rs. 10,000/- from her parents; that the  deceased  was  made  to
work in the house for the whole day; that the deceased was  not  given  food
to eat and that on her last visit to her maternal  house  the  deceased  had
told her brothers that if the demand of her in-laws is not met she would  be
murdered, the FIR lodged by PW1 does not contain these allegations.  In  the
FIR there are vague allegations about the demand.  PW5, the wife of PW2  has
not referred to the specific amount and quantum of gold  allegedly  demanded
by the in-laws of the deceased. She has not even referred to the last  visit
of the deceased.  The trial court was  also  of  the  view  that  since  the
accused belonged to a rich family it is inconceivable that they  would  make
a demand for money and gold.  The trial court was further of the  view  that
since the evidence on record established that the deceased  was  allowed  to
visit her maternal home and that the appellant and his  father  visited  her
maternal home, the allegation that  the  deceased  was  ill-treated  in  the
house is not true.  The trial court in the circumstances  held  that  demand
was not proved and that it  cannot  be  said  that  the  deceased  committed
suicide because she was ill-treated by the accused.

6.    Being aggrieved by the judgment of acquittal, the State  of  Karnataka
preferred an appeal before the Karnataka High Court.  The  High  Court  held
that PW2 had stated in his evidence that  the  appellant  and  the  deceased
were staying in another house belonging to the accused.  The  evidence  also
shows that effort was made by PWs.1 and 2 to open that  house  to  find  out
whether the deceased was in  that  house.   The  High  Court  observed  that
therefore the possibility of the deceased  staying  with  the  appellant  in
that house at least for major part of the day cannot be ruled out and  hence
though the other accused can  be  given  benefit  of  doubt,  the  appellant
cannot escape the liability.  The High Court observed that  it  is  more  so
because the appellant kept mum after the disappearance of the  deceased  for
a long time.  The High Court relied upon evidence of PWs.1, 2  &  5  and  by
the impugned judgment partly allowed  the  appeal.   The  acquittal  of  the
appellant of the offence under Section 304-B  of  the  IPC  was  set  aside.
Instead he was convicted for offence punishable under  Section  306  of  the
IPC and sentenced to undergo rigorous imprisonment  for  three  years.   The
acquittal of the other accused was confirmed.   The  High  Court  held  that
they must be given benefit of doubt.  Being  aggrieved  by  his  conviction,
the appellant has approached this Court.

7.    We have heard  at  some  length  Mr.  P.  Vishwanath  Shetty,  learned
counsel appearing for the appellant.   He  submitted  that  the  High  Court
erred in disturbing the acquittal of the appellant. He  submitted  that  the
trial court’s view was a reasonably possible view.  It was  not  a  perverse
view warranting interference  from  the  High  Court.  In  support  of  this
submission counsel relied on Shyamal  Saha  &  Anr.    v.    State  of  West
Bengal[1].  Counsel  submitted  that  all  the  witnesses  examined  by  the
prosecution are interested witnesses and, therefore, the  High  Court  ought
not to have placed reliance on them.   Their evidence  is  not  corroborated
by the other evidence on record.  Counsel submitted that  there  is  nothing
on record to suggest that the appellant demanded dowry, in  fact,  the  High
Court has acquitted the appellant  of the offence punishable  under  Section
304-B of the IPC.  There  is  no  cogent  evidence  to  establish  that  the
deceased was subjected to cruelty by the appellant which led her  to  commit
suicide.  Counsel pointed out that the  evidence  of  PW1,  brother  of  the
deceased, shows that  the  deceased  was  regularly  visiting  her  parents’
house.   Therefore, cruelty or ill-treatment is  not  established.   Counsel
submitted that there is a vague allegation of  demand  for  money  and  gold
ornaments in the FIR.   The  demand  is  not  specified  in  the  complaint.
Whereas PW1 and PW2  the  brothers  of  the  deceased  have  tried  to  give
particulars of the demand PW5, the wife of PW2, has omitted to  do  so.  The
prosecution witnesses have improved their version  in  court.  There  is  no
evidence to  establish  that  the  appellant  abetted  the  suicide  of  the
deceased.  In the circumstances, the  impugned  order  deserves  to  be  set
aside.

8.    Mr. K. Parameshwar, learned counsel for the  State  of  Karnataka,  on
the other hand, submitted that the prosecution has proved it’s  case  beyond
reasonable doubt.   The brothers and  sister-in-law  of  the  deceased  have
clearly stated that she was subjected to cruelty.   Moreover,  the  deceased
was staying in the matrimonial  house.   She  was  in  the  custody  of  the
appellant.  The bodies of the deceased and her daughter Jyoti were found  in
Malaprabha river near Khanapur.  It was  incumbent  upon  the  appellant  to
explain  how  the  deceased  and  her  daughter  Jyoti  died  in  suspicious
circumstances.  Counsel submitted that Section 106 of  the  Indian  Evidence
Act, 1872 (‘Evidence Act’, for short) is clearly  attracted  to  this  case.
In support of his submissions counsel relied on K. Prema S. Rao &  Anr.   v.
 Yadla Srinivasa Rao & Ors.[2],    Thanu Ram v. State of Madhya  Pradesh[3],
Narwinder Singh  v.  State of Punjab[4],  Rakhal Devnath  v. State  of  West
of  Bengal[5],   Gurnaib  Singh    v.   State  of  Punjab[6]  and   Babu   @
Balasubramaniam & Anr.  v.  State of Tamil Nadu[7].

9.    Since we are dealing with  a  case  involving  reversal  of  acquittal
order by the High Court, it is necessary to see the principles laid down  by
this Court in that behalf.  After adverting to  several  judgments  of  this
court in Ganpat   v. State of Haryana &  Ors.[8],  this  Court  reformulated
the principles as under:
           “(i) There is no limitation on the part of the  appellate  court
           to review the evidence upon which  the  order  of  acquittal  is
           founded and to come to its own conclusion.


           (ii) The appellate court  can  also  review  the  trial  court’s
           conclusion with respect to both facts and law.


           (iii) While dealing with the appeal preferred by the  State,  it
           is the duty  of  the  appellate  court  to  marshal  the  entire
           evidence on record and by giving cogent and adequate reasons may
           set aside the judgment of acquittal.


           (iv) An order of acquittal is to be interfered  with  only  when
           there are “compelling and substantial reasons” for doing so.  If
           the order is “clearly unreasonable”, it is a  compelling  reason
           for interference.


           (v) When the trial court has ignored the evidence or misread the
           material evidence or has ignored material documents  like  dying
           declaration/report of  ballistic  experts,  etc.  the  appellate
           court is competent to reverse the decision of  the  trial  court
           depending on the materials placed. (Vide Madan Lal v.  State  of
           J&K(1997) 7 SCC 677, Ghurey Lal v. State of U.P. (2008)  10  SCC
           450, Chandra Mohan Tiwari v. State of M.P. (1992) 2 SCC 105  and
           Jaswant Singh v. State of Haryana(2000) 4 SCC 484.”




10.   In  Shyamal Saha this Court referred to Ganpat and  observed  that  it
is the obligation of the High Court to consider and identify  the  error  in
the decision of the trial court and then decide whether the error  is  gross
enough to warrant interference.  The High Court is not  expected  merely  to
substitute its opinion for that of the trial court because it has  power  to
do so – it has to correct an error of law  or  fact  significant  enough  to
necessitate overturning the verdict of the trial court.  This Court  further
observed that the High Court has to exercise its discretion keeping in  mind
the acquittal of the accused and the rights of the victim (who  may  or  may
not be before it).  We shall proceed to deal with this  case  keeping  these
principles in mind.

11.   There is no dispute about the fact that the  bodies  of  the  deceased
and her daughter Jyoti were recovered from Malaprabha  river  near  Khanapur
on 11/12/1987.  In the complaint  dated  11/12/1987  PW1  Bhavakanna  stated
that the deceased was treated well in her  matrimonial  house  for  4  to  5
months after her marriage, thereafter,  she  was  subjected  to  harassment.
She was asked to bring money and gold from her parents for the  business  of
her husband.  It is further stated that during her visits  to  her  parents’
house the deceased used to complain about the harassment meted out  to  her.
They used to console her and send her  back.   It  is  further  stated  that
about 15 days back when the deceased had visited their house she  complained
about the demand for money and gold and the harassment  meted  out  to  her.
The complaint further goes on to say that on 10/12/1987 the  appellant  came
to the village and told them that the deceased had left  their  house  along
with her daughter Jyoti.  The appellant enquired whether she  was  in  their
house.  All of them rushed to the appellant’s house  where  they  were  ill-
treated and abused.  They started searching for the  deceased.   They  found
the dead bodies of the deceased and her daughter Jyoti lying  in  Malaprabha
river.   The complaint ends with the  apprehension  expressed  by  PW1  that
there was some foul-play.

12.   In his evidence PW1-Bhavakanna reiterated the same story.   He  stated
that during marriage they had given 2½ tolas gold Mangalsutra and  2½  tolas
gold Laxmihar to the deceased.  About 4 to 5 months after her marriage,  the
appellant and the members of his family started harassing her.   They  asked
her to get 5 tolas of gold and cash of Rs.10,000/- from her  parents  house.
They were making the deceased work for the whole day.  They were not  giving
her food.   She used to  convey  her  woes  to  her  brothers  whenever  she
visited their  house.    Even  after  birth  of  the  child,  the  appellant
continued to ill-treat her.   Fifteen days prior to her death, the  deceased
had visited her parents house and told them that if  5  tolas  of  gold  and
cash of Rs.10,000/- were not given to her in-laws  she  would  be  murdered.
She refused to go to her matrimonial house, but, they told  her  that  after
the draught is over they may think of meeting the demands of the  appellant.
 After consoling her they took her to her matrimonial  house  and  left  her
there.  On 10/12/1987 the appellant came  to  their  house  and  asked  them
whether the deceased had come there.  The appellant told them that  she  had
left the house with the child on 9/12/1987.  Thereafter, he along  with  his
brother PW2-Balram went to Nandgad.  They  searched  for  the  deceased  but
could not find her.   On  11/12/1987  they  again  went  in  search  of  the
deceased  and  her  daughter  Jyoti.   They  found  their  bodies  lying  in
Malaprabha river.   PW1 then, went to Khanapur  police  station  and  lodged
the FIR,  Ex.P-1.

13.   In the cross-examination PW1  has  stuck  to  the  same  story.   This
witness comes across as a truthful witness.  He admitted that the  appellant
is a leading merchant in Nandgad. He admitted that for  her  first  delivery
the deceased came to their house and after the child was born the  appellant
and her father-in-law came to  their  house  to  see  the  child.   He  also
admitted that the deceased had been to their house to see PW-2  Balram,  who
was sick.  It is argued that the evidence of this  witness  shows  that  the
relations between both the families were cordial. It is submitted  that  the
appellant is a rich merchant and, therefore, he  could  not  have  made  any
demand for money.   It is not possible for us  to  accept  this  submission.
It would be wrong to say that the poor are  avaricious  and  not  the  rich.
Many a murder are committed by the rich out of greed  for  money.   Besides,
merely because the appellant and his father visited the  maternal  house  of
the deceased it  cannot  be  presumed  that  both  the  families  maintained
cordial relationship and, therefore, the deceased must not  have  been  ill-
treated. The trial court has   wrongly  come  to  this  conclusion,  despite
there  being  cogent  evidence  on  record  to  establish  the  demand.  PW1
Bhavakanna’s  evidence  establishes  this  case  of  the  prosecution.   His
evidence becomes more acceptable because of the honesty  displayed  by  him.
There is no reason to disbelieve  his statement that whenever  the  deceased
used to come to their house  she used to tell them about   the  demand   for
money and gold and the harassment meted out to her in her  matrimonial  home
in that connection.  It is argued that, whereas in the evidence, PW1  stated
that the appellant made demand for 5 tolas of gold and cash of  Rs.10,000/-,
 it is not so mentioned in the complaint.   This  is  hardly  a  significant
omission.  The fact that the deceased was asked  to  bring  money  and  gold
from her parents’ house and she was harassed  for  that  is  stated  in  the
complaint.  The specific details of the demand are given  in  the  evidence.
PW1 must have been in a great shock when he  saw  the  dead  bodies  of  his
sister and niece lying in Malprabha river.   He  could  not  have  therefore
given details of the demand made by the appellant and other  particulars  of
harassment to which the deceased was subjected, in  his  complaint.  In  any
case, it cannot be said that he  has  completely  omitted  to  say  anything
about the demand.   The trial court wrongly gave importance  to  absence  of
such details in the FIR.  It is not necessary for us to repeat that the  FIR
is not expected to be a treatise.

14.   PW2-Balram, the other brother of  the  deceased,  has  supported  PW1-
Bhavakanna.  PW2 explained why their  family  had  not  disclosed  the  ill-
treatment meted out to the deceased to anyone.  He  stated  that  they  felt
that if these facts are  disclosed  to  people,  the  ill-treatment  of  the
deceased may increase.   This reaction is normal and the fear appears to  be
genuine. He also stated that the deceased was not given food  in  the  house
and she was made to work for the whole day.  Both PW1 and  PW2  stated  that
the deceased was asked to bring money and gold from her parents’  house  and
was given dire threats.  Both these witnesses have  been  cross-examined  at
length. The cross-examiner could not make any dent in their  evidence.   PW5
Babita wife of PW2 Balram has supported PW1 and PW2.  PW5’s evidence  cannot
be overlooked because she has not verbatim repeated the version of  PW1  and
PW2.  Being wife of PW2 her  presence  in  the  house  is  natural  and  her
evidence can be safely relied  upon.   In  our  opinion,  on  the  basis  of
evidence of PWs 1, 2 and 5, the High Court has rightly  concluded  that  the
deceased committed suicide and the suicide was abetted by the appellant.

15.   It is true that the appellant was not charged  under  Section  306  of
the IPC.  The charge was under Section 304-B of the IPC.  It  was,  however,
perfectly legal for the High Court to convict  him  for  offence  punishable
under Section 306 of the IPC.  In this connection, we may usefully refer  to
Narwinder Singh.  In that case the accused was charged under  Section  304-B
of the IPC.  The death had occurred within  seven  years  of  the  marriage.
The trial court convicted  the  accused  for  an  offence  punishable  under
Section 304-B of the IPC.  Upon reconsideration of the entire evidence,  the
High Court came to the  conclusion  that  the  deceased  had  not  committed
suicide on account of demand for dowry, but, due  to  harassment  caused  by
the husband in particular.  The High Court  acquitted  the  parents  of  the
accused and converted the conviction of the accused from one  under  Section
304-B of the IPC to Section 306 of  the  IPC.    This  Court  dismissed  the
appeal filed by  the  accused.   It  was  observed  that  it  is  a  settled
proposition of law that mere omission or defect in framing charge would  not
disable the court from convicting the accused  for  the  offence  which  has
been found to be proved on the basis of the evidence  on  record.   In  such
circumstances, the matter would fall within the purview of  Sections  221(1)
and (2) of the Code of Criminal Procedure, 1973.  The relevant  observations
of this Court could be quoted:
      “21. The High Court upon meticulous scrutiny of the entire evidence on
      record rightly concluded that there was no evidence  to  indicate  the
      commission of offence under Section 304-B IPC. It  was  also  observed
      that the deceased had committed suicide due to harassment meted out to
      her by the appellant but there was no evidence on  record  to  suggest
      that such harassment or cruelty was made in connection  to  any  dowry
      demands. Thus, cruelty or harassment  sans  any  dowry  demands  which
      drives the wife to commit suicide attracts the offence of “abetment of
      suicide” under Section 306 IPC and not Section 304-B IPC which defines
      the offence and punishment for “dowry death”.”



16.   Moreover, admittedly the deceased committed suicide  within  a  period
of seven years from  the  date  of  her  marriage.   Section  113-A  of  the
Evidence Act is, therefore, clearly attracted  to  this  case.   Presumption
contemplated therein must spring in action.  This provision  was  introduced
by Criminal Law Second Amendment Act, 1983  to  resolve  the  difficulty  of
proof where married women are forced to  commit  suicide  but  incriminating
evidence  is difficult to get  as it  is usually  available within the  four
walls of the matrimonial home.  Section 113-A reads as under:

      “113A-  Presumption as to abetment of suicide  by  a  married  woman.-
      When the question is whether the commission of suicide by a woman  had
      been abetted 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.


      Explanation.-- For the purposes of this section, “cruelty" shall  have
      the same meaning as in section 498A of the Indian Penal  Code  (45  of
      1860 ).”


      In this case the prosecution has led evidence to establish cruelty  or
harassment caused to the deceased, which is rightly taken  into  account  by
the High Court.  Thus, the  foundation  for  the  presumption  exists.   The
appellant,  however,  has  led  no  evidence  to  rebut   the   presumption.
Therefore, it can be safely concluded in the facts of  this  case  that  the
appellant abetted the suicide of the deceased.

17.   There is also  another  angle  to  this  case.   The  prosecution  has
succeeded in proving facts from which a reasonable inference  can  be  drawn
that the deceased committed suicide by jumping in the river along  with  her
daughter.  The deceased was in the custody of the appellant.  She  left  the
appellant’s house with the small child.  Admittedly, neither  the  appellant
nor any member of his family lodged any missing  complaint.   The  appellant
straightway went to the house of the deceased to enquire  about  her.   This
conduct is strange.  When his wife and small child had left  the  house  and
were not traceable the appellant was expected to move heaven  and  earth  to
trace them.  As to when and why the deceased left  the  house  and  how  she
died in suspicious circumstances was within the  special  knowledge  of  the
appellant.  When the prosecution established  facts  from  which  reasonable
inference can be drawn that the deceased committed  suicide,  the  appellant
should have, by virtue of  his  special  knowledge  regarding  those  facts,
offered an explanation which might drive  the  court  to  draw  a  different
inference.  The burden of proving those facts was on the  appellant  as  per
Section 106 of the Evidence Act but the appellant  has  not  discharged  the
same  leading  to  an  adverse  inference  being  drawn  against  him  (See:
Tulshiram Sahadu Suryawanshi & Anr.    v.   State  of  Maharashtra[9]    and
Babu  alias Balasubramaniam)



18.   In our opinion, the trial court erred in giving  undue  importance  to
trivial matters.  The trial court missed the core of  the  prosecution  case
which is established by the  straightforward  and  honest  evidence  of  the
brothers of the deceased.  The trial court should  have  seen  that  when  a
woman is harassed and ill-treated  in  her  matrimonial  house,  it  is  not
possible to get independent witnesses to depose about  the  harassment.   No
doubt, the brothers of  the  deceased  are  interested  witnesses.   It  is,
therefore, necessary to scrutinize their evidence carefully.   Keeping  this
caution in mind if the evidence of the brothers is examined, the  conclusion
is irresistible that it inspires confidence and bears  out  the  prosecution
case.   The  trial  court  should  have  taken  note  of  the  callous   and
indifferent attitude of the appellant.  It should have  taken  into  account
the fact that there is nothing on record to suggest that  the  deceased  was
schizophrenic or was insane.  That is not even the case of the defence.   It
is also not the case of the defence that the death was accidental.   When  a
married woman jumps in a river along with her small child  that  too  within
seven years of marriage and when the prosecution leads reliable evidence  to
establish harassment caused to her in her matrimonial  house  in  connection
with demand of money for her  husband’s  business  and  the  accused-husband
leads no evidence to prove to the contrary the logical and legal  conclusion
that must follow is that she committed suicide and her suicide  was  abetted
by her husband.

19.   Undoubtedly, the High Court should not  interfere  with  an  order  of
acquittal because it has power to do so and just because some other view  is
also possible.  The High Court must locate some gross error of law  or  fact
and must feel impelled to interfere with the order of acquittal  to  rectify
it.   The  purpose  behind  such  interference  is  obviously   to   prevent
miscarriage of justice.  If in a given case the High Court  feels  that  the
trial court could never have taken the view it has taken and that  it  is  a
perverse view which may result in gross miscarriage of justice,  it  is  not
only its  legal  obligation  but  duty  to  interfere  with  such  order  of
acquittal.

20.   Applying the above principles, we  have  no  hesitation  in  recording
that the trial court’s order acquitting the appellant is replete with  gross
errors of facts resulting in miscarriage of justice.   The  High  Court  has
rightly held that the other members of the appellant’s family can  be  given
benefit of doubt, but the appellant cannot escape the liability.  We  concur
with the High Court.   We see no  reason  to  interfere  with  the  impugned
judgment of the High Court.  The  appeal  is,  therefore,  dismissed.    The
appellant is on bail.  He is directed  to  surrender  forthwith.   His  bail
bond stands cancelled.

                                                           …………………………………..J.
                                                     (Ranjana Prakash Desai)


                                                            ……………………………………J.
                                                            (Madan B. Lokur)
New Delhi;
March 31, 2014.
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[1]    2014 (2) SCALE 690
[2]    (2003) 1 SCC 217
[3]    (2010) 10 SCC 353
[4]    (2011) 2 SCC 47
[5]    (2012) 11 SCC 347
[6]    (2013) 7 SCC 108
[7]    (2013) 8 SCC 60
[8]    (2010) 12 SCC 59
[9]    (2012) 10 SCC 373

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