PETITIONER: BALRAM PRASAD AGRAWAL Vs. RESPONDENT: THE STATE OF BIHAR & ORS. DATE OF JUDGMENT: 10/12/1996 BENCH: G.N. RAY, S.B. MAJMUDAR ACT: HEADNOTE: JUDGMENT:
THE 10TH DAY OF DECEMBER, 1996
Present:
Hon’ble Mr. Justice G.N. Ray
Hon’ble Mr. Justice S.B. Majmudar
S.B. Sanyal, Sr. Adv., Gopal Prasad and K. Pandeya,
Advs. with him for the appellant
B.B. Singh, Adv. (NP), and Anjani Kumar Jha, Adv. for
the Respondents.
J U D G M E N T
The following Judgment of the Court was delivered:
S.B. Majmudar, J.
In this appeal by special leave under Article 136 of
the Constitution of India the appellant-original complainant
has brought in challenge the order of acquittal rendered by
the Additional Judicial Commissioner, Lohardagga in Sessions
Trial case against the respondent-accused and as confirmed
in Criminal Revision Application No.10 of 1992 by the High
Court of Patna, Ranchi Banch. While granting special leave
to appeal a Bench of two learned judges of this Court by
order dated 25th March 1996 rejected special leave petition
against respondent no.4-original accused no.2 Smt. Jhalo
Devi, mother-in-law of the deceased while special leave was
granted only against respondent nos.1, 2 and 3 who are the
State of Bihar and original accused nos.1 and 3 respectively
of the deceased Kiran Devi.
In this case a tragic fate visited a young married
woman aged 28 years named Kiran Devi, daughter of the
appellant-complainant, who is alleged to have been murdered
by the respondent-accused or to have been forced to commit
suicide by falling in a well situated on the back side of
the house of the accused.
A few facts leading to these proceedings deserve to be
noted at the outset. Deceased Kiran Devi was married to
respondent no.2 Paran Prasad Agrawal in the year 1977. It is
the case of the prosecution that even after five to six
years of her marriage as no child was born respondent no.4,
the mother-in-law of the deceased against whose acquittal
the present proceedings do not survive, and respondent no.3,
the elder brother of the husband of the deceased wanted
accused no.1-respondent no.2 to marry some other girl by
killing Kiran Devi. It is the further case of the
complainant father of the deceased that he got her treated
by a gynaeoologist and subsequently she gave birth to two
sons. It is alleged that despite the aforesaid events the
cruelty meted put to Kiran Devi did not stop. They persisted
in demanding dowry and as Kiran Devi did not fulfil their
requirement the accused started beating her physically and
used to torture her causing danger to her life. That being
tired to the torture meted out to her she had earlier tried
to jump in the same well about four years ago. But she was
saved by the neighbours. In this regard Kiran Devi herself
had made a report before the concerned Police Station
against her husband and in-laws. Thereafter Kiran Devi
started living at her paternal home. However at the instance
of her father, a compromise was made with her husband and
in-laws and she was brought to the house of her in-laws in
the year 1988 where she started to reside till the date of
her tragio death. It is the prosecution case that on the
fateful night intervening 30th and 31st October 1988 at
about 9.00 a.m. Kiran Devi fall in the wall situated in the
backyard of the house of her in-laws which was occupied by
all the three accused along with her. That on 31st October
1988 at about 10.00 a.m. her husband respondent no.2
informed the appellant that his daughter Kiran Devi had died
after falling in the well. Thereupon the appellant want to
the house of her in-laws where he found the dead body of his
daughter lying near the well. That he got shock of his life.
Thereafter he visited the house of the accused on 12th
November 1988 in order to meet his grandson. At that time he
was informed by the neighbours that on the previous night of
the date of the occurrence there was quarrel in the house of
the accused and they had heard the crying and weeping of
Kiran Devi and she was being assaulted by her in-laws.
Smelling a rat, on this information the appellant lodged
written report/First Information Report on 12th November
1988 about murder of his daughter Kiran Devi by the accused.
it is his case that no case was registered by the police
against the accused as approval of the Superintendent of
Police had to be obtained. Ultimately on the complaint of
the appellant before the Superintendent of Police the case
was ordered to be registered on 18th January 1989. After
investigation the police submitted chargesheet under
Sections 498-A, 302 and 120-B of the Indian Penal Code
(`IPC’ for short) against the respondent-accused and the
acquitted accused mother-in-law of the deceased before the
learned Chief Judicial Magistrate, Lohardagga. Ultimately
the pass was committed to the Court of Sessions, namely, the
Additional Judicial Commissioner, Lohardagga. The learned
Trial Judge framed charges against the accused under Section
302 read with Section 34, IPC. On the completion of the
trial the learned Judge came to the conclusion that the
prosecution had not made out any base under Section 302 read
with Section 34, IPC against the accused. The learned Judge
in terms held that there was evidence on record that the
members of the family of the accused Paran Prasad Agrawal
used to assault the victim lady Kiran Devi and they also
used to demand dowry from her and there had also been threat
given by these accused persons to the victim, that they
would kill the victim lady and would get Paran Prasad
Agrawal married to another lady. But as the marriage of
Kiran Devi took place in the year 1977 and murder took place
in the year 1988, and thus more than seven years had
elapsed, the presumption that Kiran Devi might have been
killed for the sake of dowry cannot be raised. The learned
Judge further held that he had no doubt in this mind that
these accused persons committed murder of Kiran Devi because
of the threat being extended by them but in view of the fact
that there was no legal evidence he was helpless and he
could not convict these accused persons and the charges fell
to the ground. The appellant carried the matter in revision
before the High Court. A learned Single Judge of the High
Court who decided the Revision Application came to the
conclusion that no case was made out for him to interfere of
ravisional proceedings against the accused as there was no
evidence to show that the accused were responsible for the
murder of Kiran Devi.
Learned senior counsel for the appellant Shri Banyal
vehemently contended that both the courts below had failed
to appreciate the well established fact on the record that
deceased Kiran Devi had suffered a consistent course of
cruel conduct on the park of the accused. That she had
earlier tried to commit suicide by jumping in the same well
but she was saved by the neighbours. That the accused were
torturing her and treating her with extreme cruelty. Under
these circumstances even though there may not be any clear
evidence against the accused regarding their overt act of
throwing her in the well on that fateful night, it can
easily be seen that at least she was forced to commit
suicide because of the cruelty meted out to her by the
accused and evidence of the appellant in this behalf relying
upon what the neighbours told him as to what transpired in
the household of the accused on that fateful night as
corroborated by the evidence of investigating officer
clearly established the lessar charge against the accused
under Section 498-a of the IPC and even though the police
had charge sheeted the accused also under Section 498-A the
learned Sessions Judge had wrongly failed to frame this
alternative charge against the accused. He, therefore,
submitted that either the matter be remanded for fresh trial
or this Court in exercise of its powers under Article 142 of
the Constitution of India may go into the evidence on record
and take appropriate decision about the culpability of the
respondent-accused for the offence under Section 498-A, IPC.
Learned counsel for the respondents on the other hand
submitted that though there was no charge framed under
Section 498-A, IPC and as the prosecution evidence fell
short of bringing home the charge under Section 302 read
with Section 34, IPC against the accused the order of
acquittal as rendered by the Trial Court and as confirmed in
revision by the High Court deserves to be upheld. He
however, fairly stated that if this Court comes to the
conclusion that the accused are required to be called upon
to meet the lesser charge under Section 498-A, IPC then the
accused may be charged accordingly. He also submitted that
if this Court is inclined to appreciate the evidence on
record and take decision on merits on the culpability of the
accused so far as offence under Section 498-A is concerned,
then according to him the evidence does not connect the
accused with the said offence. That there was nothing on
record to show that the complainant was informed about what
happened on the fateful night by the neighbours as the
neighbours who were examined in the case as prosecution
witnesses had turned hostile and did not support the
prosecution regarding what they were alleged to have stated
in their police statements and to the complainant about the
incident of quarrel that took place on the fateful night. He
submitted that what the complainant deposed about the
information gathered by him from the neighbours was purely
hearsay evidence and could not be legally relied upon. It
was contended by him that once that evidence is ruled out
nothing remains on the record to show as to what actually
happened on the night of the incident which resulted in the
drowning of deceased Kiran Devi in the well and that it
could be a case of sheer accident or even assuming that she
had committed suicide there was nothing to show that the
accused were responsible for the said suicide or had by
their willful conduct driven Kiran Devi to commit suicide on
that fateful night. He, therefore, contended that in the
light of the evidence available on record even charge under
Section 498-A is not brought home to the accused.
Having given our anxious consideration to these rival
contentions we have reached the conclusion that the
prosecution has not been able to make out any case against
the respondent-accused under Section 302 read with Section
34, IPC. There is no evidence to show that on that fateful
night the accused or anyone of them had pushed or thrown
Kiran Devi in the well. But that is not the end of the
matter. As rightly contended by learned senior counsel for
the appellant the evidence on record clearly indicated that
a case was made out against the accused under Section 498-A,
IPC. The said provision reads as under:
“498-A. Husband or relative of
husband of a woman subjection her
to cruelty. Whoever, being the
husband or the relative of the
husband of a woman, subjects such
woman to cruelty shall be punished
with imprisonment for a term which
may extend to three years and shall
also be liable to fine.
Explanation-For the purposes of
this section. “cruelty” means-
(a) any willful conduct which is of
such a nature as is likely to drive
the woman to commit suicide or to
cause grave injury or danger to
life, limb or health (whether
mental or physical) of the woman;
or
(b) harassment of the woman where
such harassment is with a view to
coercing her or any person related
to her to meet any unlawful demand
for any property or valuable
security or is on account of
failure by her or any person
related to her to meet such
demand.”
Now it is of course true that though police had
chargesheet the accused also alternatively under Section
498-A the Trial Court framed charge under Section 302 which
is obviously for a graver offence and did not think it fit
to frame any charge under Section 498-A, IPC. But the
evidence on record, as we will presently point out, clearly
attracted the said charge. Under these circumstances we
would have been required to remand these proceedings for re-
trial on the available evidence after framing a charge under
Section 499-A against the respondent-accused but that
exercise is not required in view of the fact that this Court
in exercise of powers under Article 142 of the Constitution
of India may itself examine the question of culpability of
the accused for the offence under the said Section in the
light of the evidence on record so as to obviate protraction
of trial and multiplicity of proceedings against the
accused.
We have, therefore, though it fit to consider the
question of the culpability of the respondent-accused for
offence under Section 498-A of IPC. It is now well settled
that in exercise of powers under Article 142, appropriate
orders can be passed in the interest of justice in cases
which are brought before this Court [See E.K. Chandrasenan
v. State of Kerala (1995) 2 SCC 99]. We have accordingly
heard the learned counsel for the parties on this question.
We have been taken thought the relevant evidence on the
record. Having carefully gone through the evidence on record
we find that the prosecution has been able to bring home the
guilt of the accused under Section 498-A, IPC.
In this connection we may refer to relevant evidence on
record. The appellant as P.W.S. had stated on path that on
31st October 1988 at 10.00 a.m. he was informed by his son-
in-law Paran Prasad Agrawal that his daughter had died after
falling into the well and he accordingly went on the site
and saw her dead body. He had further deposed that on 12th
November 1988 he went again to the house of the accused son-
in-law to see his youngest grandson and at that time he
enquired of the incident from the neighbors residing in the
Mohalla and his neighbors told him that on previous night of
the incident Kiran Devi was beaten by her mother-in-law
Jhala Devi, Paran Prasad and the elder brother of Paran
Prasad and Kiran Devi was shouting `Bachao Bachao’ `save
save’ and they also told that the mother-in-law, husband and
elder brother of the husband of Kiran Devi, Girbar Prasad
were telling that they would perform the second marriage of
Paran Prasad after killing her and were threatening to kill
her and this fact was told to him by the neighbours, namely,
Shiv Nath, P.W.4, Laxmi Mahto, P.W.3 and others, namely,
Birendra Prasad etc. He also stated that in his police
complaint he had also given the names of these witnesses who
informed him accordingly, namely, Ajay Mittal, Avdhesh
Prasad, Shiv Nath Mahto, Laxmi Mahto and Birendra Prasad. He
had also deposed about the suffering undergone by his
daughter at the hands of the accused in past after her
marriage. That his daughter Kiran Devi and informed him that
her husband used to ask her to bring money from him and on
this he replied that he had already given Rs. 10,000/-. She
also used to say that her husband Paran Prasad, Cirbar
Prasad and mother-in-law Jhalo Devi used to beat her. The
marriage of his daughter was soiamnized in the year 1977.
For 5-6 years there was no issue from her and hence her in-
laws started abusing her and wanted to make a second
marriage of Paran Prasad. He got Kiran Devi treated at
Ranchi and consequently she gave birth to two sons. About
four years prior to this incident his daughter Kiran Devi
due to the atrocities of her in-laws had jumped into the
same well. However the neighbours had saved her. That after
birth of her youngest son she started living at his house as
his son-in-law was not taking her back. That he sent his
daughter to her in-laws’ house after convincing his son-in-
law. In cross examination he stood by his version that the
people of the Mohalla told him that on the fateful night
they had personally heard the sound of quarrel and that
threat to kill her. He also reiterated what he stated before
the police in this connection. He proved two post cards
which he had received when his daughter was pregnant and in
these post cards he was informed that his son-in-law was
trying to get married to one Lalo Devi. Nothing substantial
could be brought out in his cross examination to discredit
his aforesaid version. This version is fully corroborated by
the evidence of P.W.8 Kedar Nath Pathak, the investigating
Officer. The aforesaid evidence of the appellant clearly
established the sufferings undergone by his daughter
deceased Kiran Devi at the hands of the accused and the
situation had so worsened that she had tried to commit
suicide even earlier and was saved by the neighbours. His
evidence about what his deceased daughter told him earlier
about her sufferings at the hands of the accused was clearly
admissible under Section 22 of the Evidence Act. His
evidence further shows that the cruel conduct of the
respondent-accused did not abate and appeared to have
continued till the fateful night when the situation became
unbearable to the deceased which resulted in her unfortunate
death by drowning in the well in the courtyard of the house
of the accused. it is necessary to appreciate that on that
fateful night apart from the victim only the accused ware in
the house. Thus what happened on that night and what led to
the deceased failing in the well would be wholly within the
personal and special knowledge of the accused. But they kept
mum on this aspect. It is of course true that burden is on
the prosecution to prove the case beyond reasonable doubt.
But also the prosecution is found to have shown that the
accused were guilty of persistent conduct of cruelty qus the
deceased spreed over years as is well established from the
unshaken testimony of P.W.6, father of the deceased girl,
the facts which were in the personal knowledge of the
accused who were present in the house on that fateful night
could have been revealed by them to disprove the prosecution
case. This burden under Section 109 of the Indian Evidence
Act is not discharged by them. In this connection we may
usefully refer to some of the decisions of this Court on the
point. In the case of Shambhu Nath Mehra v. The State of
Ajmer AIR 1956 SC 404 Bose, J. speaking for a two member
Bench referring to the applicability to Section 106 of the
Evidence Act to criminal prosecutions laid down in
paragraphs 10 and 11 of the Report as under:
“(10) Section 106 is an exception
to S.101. Section 101 lays down the
general rule about the burden of
proof.
`Whoever desires any Court to give
judgment as to any legal right or
liability dependent on the
existence of facts which he
asserts, must prove that those
facts exist’.
Illustration (a) says-
`A desires a Court to give judgment
that B shall be punished for a
crime which A says B has committed.
A must prove that B has committed
the crime’.
(11) This lays down the general
rule that in a criminal case the
burden of proof is on the
prosecution and S.106 is certainly
not intended to relieve it of that
duty. On the contrary, it is
designed to meet certain
exceptional cases in which it would
be impossible, or at any rate
disproportionately difficult, for
the prosecution to establish facts
which are `especially’ within the
knowledge of the accused and which
he could prove without difficulty
or inconvenience.”
In the case of Collector of Customs, Madras & Ors. v.
D. Bhoormull AIR 1974 SC 850 another Bench of two learned
judges of this Court while considering the offence under Sea
Customs Act, 1878 earmarked the scope of Section 106 of the
Evidence Act in the following terms in paragraphs 31 and 32
of the Report:
“31. The other cardinal principle
having an important bearing on the
incidence of burden of proof is
that sufficiency and weight of the
evidence is to be considered – to
use the words of Lord Mansfield in
Blatch v. Archar (1774) 1 Cowp 63
at p.65 `according to the proof
which it was in the power of one
side to prove, and in the power of
the other to have contradicted.
Since it is exceedingly difficult,
if not absolutely impossible for
the prosecution to prove facts
which are especially within the
knowledge of the opponent or the
accused, it is not obliged to prove
them as part of its primary burden.
32. Smuggling is clandestine
conveying of goods to avoid legal
duties. Secrecy and stealth being
its covering guards, it is
impossible for the Preventive
Department to unravel every link of
the process. Many facts relating to
this illicit business remain in the
special or peculiar knowledge of
the person concerned in it. On the
principle underlying Section 106,
Evidence Act, the burden to
establish those facts is cast on
the person concerned and if he
fails to establish or explain those
facts, an adverse inference of
facts may arise against him which
coupled with the presumptive
evidence adduced by the prosecution
or the Department would rebut the
initial presumption of innocence in
favour of that person, and in the
result prove him guilty. As pointed
out by Best in `Law of Evidence’
(12th Edn. Article 320, page 291),
the “presumption of innocence is,
no doubt, presumption juris`: but
every day’s practice shows that it
may be successfully encountered by
the presumption of guilt arising
from recent (unexplained)
possession of stolen property”,
though the latter is only a
presumption of fact. Thus the
burden on the prosecution or the
Department may be considerably
lightened even by such presumption
of fact arising in their favour.
However, this does not mean that
the special or peculiar knowledge
of the person proceeded against
will relieve the prosecution or the
Department all together of the
burden of producing some evidence
in respect of that fact in issue.
It will only alleviate that burden
to discharge which very slight
evidence may suffice.”
On the other hand the evidence of the appellant-
complainant which had stood the test of cross-examination
has clearly established the culpability of the accused so
far as their wilful conduct of cruelty against the deceased
is concerned. it is true that what happened on the fateful
night was said to have been conveyed to the complainant by
witness Shiv Nath Mahto, P.W.4, Laxmi Mahto, P.W.3 and
others who have all turned hostile.
It was submitted by learned senior counsel for the
appellant that what was deposed to by the witness P.W.6
would not remain in the realm of hearsay evidence as these
informants have been examined as witnesses. It was contended
by him that before any oral version of a witness can be said
to be hearsay it mus amount to statement of oral version of
the witness based on what he heard from others who are not
before the court. In other words the witness says about what
he heard from outsiders. Section 60 of the Indian Evidence
Act lays down that oral evidence must be direct. If it
refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it. The evidence
before the court can be divided into original and
unoriginal. The original is that which a witness reports
himself to have seen or heard through the medium of his own
senses. Unoriginal, also called derivative, transmitted,
secondhand or hearsay, is that which a witness is merely
reporting not what he himself saw or heard, not what has
come under the immediate observation of his own bodily
senses, but what he had learnt respecting the fact through
the medium of a third person. Hearsay, therefore, properly
speaking is secondary evidence of any oral statement.
Learned senior counsel for the appellant submitted that if
the informants are examined as witnesses as in the present
case, the objection to hearsay disappears as then it becomes
the original evidence of the informant who can be cross-
examined about the truth of his information conveyed to
P.W.6 and in such an eventuality the versions deposed to by
P.W.6 and the informants will fall for scrutiny and will
have to be weighed by the court with a view to ascertaining
as to which of the versions on bath is a correct one. In
this connection we were referred to a decision of this Court
in the case of Bhugdomal Gangaram & Ors. etc. v. The State
of Gujarat AIR 1993 SC 906 wherein at page Q10 Varadarajan,
J. speaking for a two member Bench dealing with evidence of
P.W.12 about what was informed to him made the following
pertinent observations in paragraph 13 of the Report:
“Accused Nos. 3 and 5 have been
convicted by the learned single
Judge under Section 66(1)(b) of the
Act. The prosecution relies on the
evidence of P.W.12 to show that the
had received information in the
evening of 12-9-1970 that from
Baroda the truck GTD 4098 would be
carrying liquor to Ahmedabad and
that accused Nos. 3 and 4 and some
other persons would be coming in a
taxi behind the truck. But since
the informant has not been examined
as a witness the evidence of P.W.12
that he was informed that accused
Nos.3 and 4 would be coming behind
the truck in a taxi is not
admissible.”
It was, therefore, submitted that what is deposed to by
a witness about the information conveyed to him by another
would remain hearsay unless the author of this information
also is examined in the case and is subjected to cross
examination. In the latter contingency the objection of
hearsay would disappear and the court will have to weigh the
relative merits and demerits of the respective versions
deposed to by the concerned witnesses, one affirming an
information and another denying the same. On the other hand
it was submitted on behalf of respondent-accused that as
informants P.W.3 and P.W.4 had turned hostile, version of
their alleged information to P.W.S and the details thereof,
will remain in the realm of hearsay evidence as they had not
asserted about such information in their examinations-in-
chief. We find prima facie some force in what learned senior
counsel for the appellant submitted in this connection.
However on the facts of the present case it is not necessary
to dilate on this aspect and to decide whether the details
of the information said to have been conveyed to the
appellant P.W.S by these hostile witnesses remained in realm
of hearsay evidence or not. We will assume that contents of
this information represented. Still as will be seen
presently, their are clinching circumstances well
established on the record by the prosecution which clearly
bring home the charge under Section 498-A, IPC to the
respondent-accused.
We now proceed to narrate these circumstances. It is
now well settled that even evidence of hostile witness also
to the extent it corroborates the prosecution version can be
relled upon (Khujji alias Surendra Tiwari v. State of Madhya
Pradesh AIR 1991 SC 1853 and Sat Paul v. Delhi
Administration AIR 1976 SC 2941. Witness Laxmi Mahto, P.W.3
in his chief examination before the court stated that he
heard in the night of the incident sound of quarrel from the
house of Paran Prasad Agrawal (accused-husband of the
deceased). A fight was going on inside the house and the
said hullah was of the same. At around 1.00-1.30 a.m. in the
night he heard the said hullah. That was a sound of a woman
but he could not say whose voice was that. This version of
his in the examination-in-chief lands predance to the
version deposed to by the complainant P.W.6 and fully
supports his case about what the witness is said to have
conveyed to the complainant when he met him on 12th November
1988. So far as the evidence of hostile witnesses Shiv Nath
Mahto, P.W.4, Laxmi Mahto, P.W.3 as well as Ajay Mittal,
P.W.2 is concerned it becomes clear that they have reslled
from their original versions before the Investigating
Officer with a view to help their neighbours the present
accused and their contrary versions on oath before the court
were clearly unreliable and false ones. We would, therefore,
reject their versions and on the contrary rely upon the
natural version of P.W.6, complainant whose evidence appears
to be more reliable and creditworthy and which gets
corroborated even by the evidence of hostile witness P.W.3.
We may also note that even if the nature of information
alleged to be conveyed to P.W.6 the father of the deceased
by the neighbours about what was actually heard by them on
that fateful night may be ruled out as hearsay, the fact
that some information was conveyed to him by the neighbours
on 12th November 1988 which prompted him to rush to police
as he entertained grave doubt on the basis of what was
conveyed to him by neighbours about the conduct of the
accused on that night and which made him apprehend about
their culpability in connection with unnatural death of his
daughter, would remain admissible in evidence as the conduct
of this witness P.W.6 propelled by the fact of such
information by neighbours about what the witness did on 12th
November 1988 and not earlier by approaching police. That
part of his evidence was not shaken in cross examination.
Not only that but even the hostile witnesses P.W.3 and 4 who
are alleged to have given some information to the witness
P.W.6 on 12th November 1988 had not even whispered either in
their chief examination or cross examination about their not
having conveyed any information or not having met P.W.6 on
12th November 1988 as deposed to by P.W.6 in his evidence.
This part of the evidence of P.W.6 would not be hit by the
rule of exclusion of hearsay evidence. A decision of this
Court deserves to be noted on this aspect. In the case of
J.D. Jain v. The Management of State Bank of India & Anr.
AIR 1982 SC 673 a Bench of three learned Judges speaking
through Baharul Islam, J. in paragraph 10 of the Report has
made the following pertinent observations:
“The word `hearsay’ is used in
various senses. Sometimes it means
whatever a person is heard to say;
sometimes it means whatever a
person declares on information
given by someone else. (See Stephen
of Law of Evidence).
The Privy Council in the case of
Subramaniam v. Public Prosecutor,
(1958) 1 WLR observed:
`Evidence of a statement made to a
witness who is not himself called
as a witness may or may not be
hearsay. It is hearsay and
inadmissible when the object of the
evidence is to establish the truth
of what is contained in the
statement. It is not hearsay and is
admissible when it is proposed to
establish by the evidence, not the
truth of the statement but the fact
that it was made. The fact that it
was made quite apart from its
truth, is frequently relevant in
considering the mental state and
conduct thereafter of the witness
on some other persons in whose
presence these statements are
made’.”
It is also to be appreciated that evidence of father of
the deceased P.W.6 shows that his daughter’s married life in
the household of the accused had undergone rough weather all
throughout. She was illtreated both for not bringing dowry
amount to the satisfaction of the accused and also for not
giving birth to children. Accused no.1, her husband, also
was contemplating to remarry one Lalo Devi as letters Ex.4
and 4/1 showed. Complainant’s evidence further showed that
his deceased daughter had earlier tried to commit suicide
but was saved in the nick of time by neighbours. Even after
birth of two sons ill-treatment of his deceased daughter and
quarrels with her continued till the fateful night as
deposed to by complainant P.W.6 and as corroborated by even
hostile witness P.W.3 as seen earlier. It can, therefore,
safely be presumed under Section 114 of the Evidence Act
that the cruel treatment meted out to the deceased by the
accused earlier had continued unabated till the very last
when she was forced to commit suicide on that fateful night.
Such a presumption of continuanos of cruel treatment which
is established on record necessarily points an accusing
finger to the accused. Such presumption under Section 114 of
the Evidence Act has remained unrebutted on record. This is
another clinching circumstance well established against the
accused. In this connection we may refer to what this Court
said in two of its judgments. In Ambika Prasad Thakur & Ors.
etc. v. Ram Ekbal Rai (Dead) by his L.Rs. and Ors. etc. AIR
1988 BC 906 a three member Bench of this Court referring to
illustration (d) of Section 114 of the Evidence Act has made
the following pertinent observations in para 15 of the
Report:
“If a thing or a state of things is
shown to exist, an inference of its
continuity within a reasonably
proximate time both forwards and
backwards may sometimes be drawn.
The presumption of future
continuance is noticed in illus.(d)
to S.114. In appropriate cases, an
inference of the continuity of a
thing or state of things backwards
may be drawn under this section,
though on this point the section
does not give a separate
illustration. The rule that the
presumption of continuance may
operate retorspectively has been
recognised both in India. This is
rule of evidence by which one can
presume the continuity of things
backwards. The presumption of
continuity weakens with the passage
of time. How far the presumption
may be drawn both backwards and
forwards depends upon the nature of
the thing and the surrounding
circumstances.”
Another three member Bench of this Bench of this Court
in the case of Kali Ram v. State of Himachal Pradesh AIR
1979 SC 2773 speaking through Khanna, J. has made the
following pertinent observations in paragraph 24 of the
Report:
“Leaving aside the cases of
statutory presumption, the onus is
upon the prosecution to prove the
different ingredients of the
offence and unless it discharges
that onus, the prosecution cannot
succeed. The court may, of course,
presume, as mentioned in Section
114 of the Indian Evidence Act, the
existence of any fact which it
thinks likely to have happened,
regard being had to the common
course of natural events, human
conduct and public and private
business, in their relation to the
facts of the particular case. The
illustration mentioned in that
section, though taken from
different spheres of human
activity, are not exhaustive. They
are based upon human experience and
have to be applied in the context
of the facts of each case. The
illustrations are merely examples
of circumstances in which certain
presumptions may be made. Other
presumptions of a similar kind in a
similar circumstances can be made
under the provisions of the section
itself. Whether or not a
presumption can be drawn under the
section in a particular case
depends ultimately upon the facts
and circumstances of each case. No
hard and fast rule can be laid
down. Human behaviour is so complex
that room must be left for play in
the joints. It is not possible to
formulate a series of exact
propositions and confine human
behaviour within straitjackets. The
raw material here is far too
complex to be susceptible of
precise and exact propositions for
exactness here is a fake.”
It must, therefore, be held that the prosecution had
fully established its case against the accused that on the
fateful night between 30th October and 31st October 1988
deceased Kiran Devi was subjected to cruelty by her mother-
in-law, her husband accused no.1 and his elder brother
accused no.3 which forced her to commit suicide. It is easy
to visualize the unbearable state of affairs on that night
when a young housewife having two minor children, the
younger only four and a half years of age, had to jump in
the well to end her miserable existence in the house of the
accused. Unless the torture to her had become unbearable in
the common course of human conduct such a young housewife
having commitments to life could not have taken the drastic
step to end her life, leaving her infant sons in the lurch
and at the mercy of the accused especially when her husband
accused no.1 was contemplating a re-marriage. As the Special
Leave Petition of accused no.2. mother-in-law of deceased
Kiran Devi has been dismissed we need not say anything about
her culpability. However the aforesaid evidence clinchingly
established beyond of reasonable doubt that respondents,
original accused nos.1 and 3, by their wilful and parslatent
conduct of cruelty on Kiran Devi had driven her to commit
suicide by jumping in the well in the compound of their
house. It is not possible to agree with the contention of
learned counsel for the respondents that she might have
accidentally fallen in the well. It has to be kept in view
that at 3.00 O’clock in winter night while the deceased
would be sleeping in the house there would have been no
occasion for her to go in the back verandah and fall
accidentally in the well which was 25 ft. away from the back
door of the house as seen from the evidence of P.W.8 the
Investigating Officer. On the contrary the prosecution
evidence clearly indicates beyond shadow of reasonable doubt
that because of the mistreatment by the accused and the
consistant course of cruelty perpetrated on her, she had on
the fateful night suffered from the last straw that broke
the camel’s back. Earlier she had jumped in the same well to
put and end to her miserable existence but was saved by the
neighbours. Yet the life for her in the household of the
accused did not improve subsequently. She was, therefore,
driven to once again try to commit suicide by failing in the
very same well in which she had earlier fallen. But on the
second occasion on that fateful night when she jumped in the
well there was no neighbour to save her and her life got
extinguished. Under these circumstances it cannot be said
that the accused were not responsible for bringing to a
tragic and the life of this young housewife aged 28 years,
mother of two children, who having suffered in such a
drastic manner at the hands of the accused was driven to
take the extreme step of committing suicide. This is neither
the case of murder nor the case of accident. But it is only
the case of suicide for which the persistent hostile conduct
of the accused over years as deposed to by P.W.6 complainant
and also the act of cruelty perpetrated on her on the
fateful night as revealed by the aforesaid wall established
clinching circumstances, were directly responsible. It is
also pertinent to note that the learned Trial Judge reached
that conclusion in para 8 of the judgment. However in his
view this was no a dowry death as contemplated by Section
304-B, IPC as the deceased had died more than seven years
after her marriage. But unfortunately the learned Trial
Judge failed to examine alternative case under Section 498-A
which got squarely attracted on the facts of the present
case. It must, therefore, he held that on the facts of the
present case the prosecution has been able to bring home to
the accused beyond shadow of reasonable doubt offence under
Section 498-A, IPC read with Explanation (a). When she was
driven to take such a drastic step all the accused including
acquitted accused mother-in-law were in the house and along
with them rasided the victim and her two minor children.
Hence the accused alone must be held responsible for driving
her to commit suicide by their misconduct which had led to a
quarrel and shouting revealing the voice of a woman as
admitted even by the hostile witness P.W.3 who actually
heard the same being the next door neighbour. All the
circumstances proved by the prosecution clinchingly
establish the culpability of the accused themselves and no
one else. These established circumstances wholly rule out
any reasonable possibility of innocence of the accused from
any viewpoint. In other words the chain in the
circumstantial evidence is so complete against the accused
as to rule out any other hypothesis about their innocence.
We accordingly convict respondent no.2 Paran Prasad Agrawal
and respondent no.3 Girbar Prasad Agrawal of offences
punishable under Section 498-A, IPC.
In view of our aforesaid finding of guilt of the
concerned respondent-accused it will now be necessary to
hear them on the question of appropriate sentence to be
imposed on them. We, therefore, give an opportunity to the
learned counsel for the respondent to have his say on the
question of appropriate sentence to be imposed on these
accused after taking instructions from them. It will be open
to the learned counsel for the respondent-accused to furnish
material on this aspect by way of affidavits of the
concerned accused if thought fit. Accordingly the matter
stands adjourned to 17-1-97 for hearing the accused on the
question of sentence.