Sec.306 I.P.C.- No evidence - exaggerations and embellishments - conviction set aside = Basheer alias Abdul Basheer ... Appellant Vs State by Inspector of Police Manapparai Police Station, Trichy ... Respondent = Reported in http://judis.nic.in/judis_chennai/filename=62453

Sec.306 I.P.C.- No evidence - exaggerations and embellishments  - conviction set aside =
In the instant case, the exaggerations and embellishments made
by PW.1 in the course of her evidence, when it is put into test on the
touchstone of credibility,  render the whole version of the Prosecution
unreliable and more particularly considering the evidence of PW.4, PW.5, PW.6
and PW.7 and DW.1 in that regard.
Honourable Supreme Court  rendered in
the case of State of Punjab Vs. Jit Singh (1995-SCC-Cri-156), it has been held
that when the witnesses deliberately  improve their version from stage to stage,
their evidence cannot be relied upon.  In yet another, decision of the
Honourable Supreme Court  reported in 2009-6-SCC-564 (Baldev Singh Vs. State of
Punjab) it has been held that if the evidence of a witness is not relied upon,
conviction and sentence cannot be recorded on its basis.
13. In 2004-9-SCC-186 (Bihari Nath Goswami Vs. Shiv Kumar Singh),
the Honourable Supreme Court  has held that though exaggerations per se do not
render the evidence brittle, but they 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.
14. In the instant case, the exaggerations and embellishments made
by PW.1 in the course of her evidence, when it is put into test on the
touchstone of credibility,  render the whole version of the Prosecution
unreliable and more particularly considering the evidence of PW.4, PW.5, PW.6
and PW.7 and DW.1 in that regard.
 the trial court committed manifest error in believing the evidence of those
witnesses and reasoning of the Trial Court that some thing must have happened
otherwise the deceased would not have committed suicide is clearly indefensible.
In the instant case, neither there are any instances of instigation attributable
to the Appellant nor even any allegation to have incited the deceased to commit
suicide.  Therefore, the conviction of the Appellant is unsustainable and the
conviction and sentence recorded by the court below is liable to be set aside.
21. In the result, this criminal appeal is allowed. The impugned
judgement of conviction and sentence dated 31.7.2007 made in SC.No.48/2007  by
the learned Sessions Judge (Mahila Court) Tiruchirappalli is set aside.  The
bail if any executed by the Appellant shall stand cancelled and the fine amount
if any paid by the Appellant shall be refunded to him.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 19/03/2013

CORAM
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

CRL.A(MD)396 of 2007

Basheer alias Abdul Basheer  ... Appellant

Vs

State by Inspector of Police
Manapparai Police Station, Trichy ... Respondent

Prayer

This Criminal Appeal is filed against the judgement of conviction and
sentence dated 31.7.2007 made in SC.No.48/2007 by the learned Sessions Judge
(Mahila Court) Tiruchirappalli.

!For Appellant ... Mr.V.Illanchezhian
^For Respondent ... Mr.S.Prabha, GA

:JUDGEMENT
  This Criminal Appeal is filed by the sole accused in SC.No.48/2007
against the judgement of conviction and sentence dated 31.7.2007 made by the
learned Sessions Judge (Mahila Court) Tiruchirappalli, thereby convicting and
sentencing the Appellant for the offence under Section 306 of IPC to undergo 3
years  Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to
undergo 6 months  Rigorous Imprisonment.
2.  The case of the Prosecution is as follows:-
a. PW.1 is the mother of the deceased Banu @ Navzad. The
Appellant/accused is the husband of the deceased. The marriage between the
deceased and the Appellant took place on 2.7.2006. After their marriage, the
deceased was living with her husband, father-in-law and  mother-in-law as joint
family. Thereafter, the deceased was living with her husband separately at Door
No.1/285, Bharathiar Nagar, Manapparai. The Appellant demanded twenty sovereigns
of gold jewels, by torturing and harassing her. On 7.10.2006 morning also, the
Appellant demanded gold jewels by abusing her and her mother. Unable to tolerate
the torture and harassment meted out to her, the deceased has committed suicide
by hanging on 8.10.2006 at 9.30 a.m.
b. PW.7 Akbar, who is the friend of the father of the Appellant, on
receipt of  information that the deceased committed suicide, went to the house
of the deceased and found the deceased hanging and informed the same to PW.1
over phone. Immediately, PW.1 came to the place of occurrence and  went to the
Manapparai Police Station and gave Ex.P1 complaint. On receipt of Ex.P1, PW.8,
Inspector of Police attached to the said Police Station, registered a case in
Cr.No.440/2006 and prepared Ex.P10 First Information Report and sent the same to
PW.9, the Revenue Divisional Officer.
c. On receipt of Ex.P10, PW.9 went to the place of occurrence and
conducted inquest on the body of the deceased and prepared Ex.P12 inquest report
and examined the witnesses and the Panchayatars and recorded their statements
and Ex.P11 is the statement of the Panchayatars. Ex.P13 is the final report
given by PW.9.
d. PW.11 Photographer, on receipt of information from the said
Police Station, went to the place of occurrence on 8.10.2006 at 7.30 p.m. and
took photographs. Ex.P18 (Series) is the negative films and Ex.P10 is the
photographs. On receipt of requisition from PW.9, on 9.10.2006 at 4.00 p.m. PW.6
Doctor attached the Government Hospital, Manapparai, conducted postmortem on the
body of the deceased and in Ex.P7 postmortem report, PW.6 opined that the
deceased would appear to have been died of asphyxia due to hanging 24-36 hours
prior to postmortem and Ex.P8 is the final report given by PW.6.
e. On 8.10.2006, PW.10 Deputy Superintendent of Police, on receipt
of First Information Report, took up the case for further investigation and went
to the place of occurrence and examined the witnesses and recorded their
statements and prepared observation mahazar Ex.P9 and rough sketch Ex.P16.  On
4.11.2006, PW.10 arrested the Appellant and sent him for judicial custody. On
5.12.2006, after completing investigation, on receipt of Ex.P5 the chemical
analysis report and Ex.P6 the forensic report in respect of the neck bone of the
deceased, PW.10 filed a final report against the accused for the offence under
Sections 498A and 306 of IPC.
3.  The case was taken on file in SC.No.48/2007  by the learned
Sessions Judge (Mahila Court) Tiruchirappalli and necessary charges were framed.
In order to substantiate the charges levelled against the accused, the
prosecution examined as many as 11  witnesses (PW.1 to PW.11) and  also relied
on Exs.P1 to P18 and ten material objects (Mos.1 to 10).
4.  On completion of the evidence on the side of the prosecution,
the accused was questioned under Section 313 Cr.PC as to the incriminating
circumstances found in the evidence of prosecution witnesses and the accused
denied the same as totally false. On the side of the defence, DW.1 and DW.2 were
examined and Ex.D1 to D3 were marked and one material object was marked.
5.  The court below, after hearing the arguments advanced on either
side and looking into the materials available on record, found the appellant
guilty and awarded punishments as referred to above, which is challenged in this
Criminal Appeal.
6. This court heard the learned counsel on either side and also
perused the materials placed on record.
7.  To prove the case of the Prosecution, it mainly relied upon the
testimony of PW.1, the mother and PW.2 brother of the deceased, PW.3 the house
owner, where the deceased resided with her husband, PW.4, the wife of PW.3 and
PW.5 the sister in law of PW.3.  The marriage between the accused and the
deceased took place on 2.7.2006 and three months after her marriage, she
committed suicide.  PW.2, the brother of the deceased has been working in
Bangalore and the evidence revealed that he did not attend the marriage of his
sister. His evidence is to the effect that he accompanied his mother PW.1 to the
house of the accused and invited him for Ramzan Festival, to which the accused
replied that as PW.1 and PW.2 did not comply with his demand, he was not willing
to come to their house for Ramzan festival.  His evidence disclosed that except
going to the accused's house on 7.10.2006 to invite the accused and the deceased
for Ramzan, he has not visited the deceased ever since the marriage of the
deceased with the accused.  So, the demand of dowry by the accused, as spoken to
by PW.2 could only be a hearsay evidence.
8.  Even with regard to his visit along with his mother on
7.10.2006, it is not supported by PW.3, PW.4 and PW.5, inasmuch as their
evidence disclosed that no one visited the deceased on the day prior to Ramzan,
i.e. on 7.10.2006. PW.3 an independent witness, who is the owner of the house
where the spouses lived together, candidly deposed even in his chief examination
that only the mother of the deceased visited her once, but she did not come to
the accused's house on 7.10.2006.  His evidence is to the effect that PW.7 came
to the house of the accused only after having come to know about the suicide
committed by his daughter. The evidence of PW.4 and PW.5 are also on the same
line as deposed by PW.3.
9.  In fact, PW.4 and PW.5 had deposed that PW.1 met her daughter in
the school where she worked and insisted that the parents of the accused should
not come to the house of the accused which had agonised the deceased and she was
found sad. Their evidence cannot be ignored, as they have not been treated as
hostile  by the Prosecution.  Their evidence assumes significance for the reason
that PW.9 Revenue Divisional Officer, who conducted inquiry immediately after
the incident, admitted in his cross examination that none of the panchayatars,
who were the neighbours of the accused, had spoken to the fact of ill treatment
of the deceased by accused demanding dowry either on 7.10.2006 or before the
said date.
10.  The only evidence remaining to speak about the alleged demand
of dowry and ill-treatment meted out to the deceased is her mother PW.1, whose
evidence as pointed by the learned counsel for the Appellant suffers from
serious infirmities and contradictions.  She has stated that the deceased was
not given proper food for nearly a month after marriage which is not spoken to
by PW.3 to PW.5.  PW.1 has not stated this to the investigating officer which
has been admitted by her in her cross examination when she was confronted with
the statement made to the Police.  Even PW.2 did not whisper this in his
evidence.  She has further stated that on 7.10.2008 when she and PW.3 went to
invite the accused and the deceased for Ramzan, the accused demanded twenty
sovereigns of jewels from them.  PW.2 did not say about the demand of 20
sovereign of jewels made by the accused and he merely says that he demanded
jewels.  PW.1  has improvised her version from her earlier statement made to the
police and the First Information Report that on the date of incident, the
deceased phoned up to her and asked her to get at least five sovereigns and
heard the accused beating her when PW.1 pleaded her inability to arrange for the
jewels immediately.  The above said statement has been made only before the
court and it did not find place either in the First Information Report or in the
statement made to the Revenue Divisional Officer during his enquiry or to the
police during investigation.
11.The above said embellishments and contradictions found in her
evidence create doubt about the truthfulness of her version and renders her
testimony unsafe to rely upon to hold the accused guilty and convict him for
abetting the deceased to commit suicide. Even otherwise, the Prosecution case
found to be not credible and seriously affects the core of the Prosecution case.
12.  In the decision of the Honourable Supreme Court  rendered in
the case of State of Punjab Vs. Jit Singh (1995-SCC-Cri-156), it has been held
that when the witnesses deliberately  improve their version from stage to stage,
their evidence cannot be relied upon.  In yet another, decision of the
Honourable Supreme Court  reported in 2009-6-SCC-564 (Baldev Singh Vs. State of
Punjab) it has been held that if the evidence of a witness is not relied upon,
conviction and sentence cannot be recorded on its basis.
13. In 2004-9-SCC-186 (Bihari Nath Goswami Vs. Shiv Kumar Singh),
the Honourable Supreme Court  has held that though exaggerations per se do not
render the evidence brittle, but they 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.
14. In the instant case, the exaggerations and embellishments made
by PW.1 in the course of her evidence, when it is put into test on the
touchstone of credibility,  render the whole version of the Prosecution
unreliable and more particularly considering the evidence of PW.4, PW.5, PW.6
and PW.7 and DW.1 in that regard.
15. Mr.Illanchezhian, the learned counsel for the Appellant drawing
the attention of this court to the contradictions and inconsistency in the
evidence of the Prosecution witnesses, contended that  there is absolutely no
reliable evidence whereby the Appellant is shown to have committed any willful
act or omission or intentionally instigated the deceased in committing act of
suicide or created such circumstances for the deceased that she had been forced
to end her life.
16.  There is every force in the contention raised by the learned
counsel for the Appellant.  The serious contradictions and infirmities in the
evidence of the Prosecution witness were not correctly considered and
appreciated by the trial court and the evidence of PW.1 and PW.2 are not
sufficient to hold that the Appellant had committed the offence under Section
306 of IPC.  Material omissions and improvements made by PW.1 the important
witness herein render her testimony doubtful and there is no reliable evidence
either direct or circumstantial to prove that the deceased was tortured or
harassed by the accused.
17.  At this juncture, it is relevant to point out to the evidence
of PW.7 who had stated in his cross examination that PW.1 came to his shop where
the  deceased and accused visited his shop to view TV Programme and at that
time, PW.1 scolded her daughter for not giving the salary of that month to her.
His evidence further disclosed that there was heated exchange of words between
the deceased and her mother over that issue.  He had also produced a card
showing that on 7.10.2006 i.e. a day prior to the commission of suicide by the
deceased, both the accused and the deceased had purchased a TV for Rs.8250/- and
paid Rs.5000/- towards advance. His evidence clearly revealed that the spouses
lived together happily.
18. Another significant factor as noticed from the defence evidence
is that the accused had purchased a "karukamani chain" (fUfkzp brapd;) and a
ring for the deceased on 20.6.2006 and paid a sum of Rs.20,000/-,  which
strengthened the defence version that the spouses were leading a happy
matrimonial life but for the intervention of PW.1 who pressurized the deceased
to part with her salary to PW.1.
19.  Another significant discrepancy in the case of the Prosecution
is that even before registering the First Information Report, PW.8 the Sub
Inspector of Police had visited the place of occurrence and it is admitted by
PW.8 that he visited the place of the incident at 13.00 hours on 8.10.2006, but
the First Information Report was registered only at 5.00 p.m. This clearly
indicates that there is lot of deliberation and discussion before lodging the
First Information Report in this case. The First Information Report had reached
the court at 10.00 p.m. only and there is no explanation whatsoever for the
delay in lodging the First Information Report and further despatching the same
to the court.
20. Having regard to the incredible evidence brought on record and
looking to the reasons recorded by the trial court, I am of the considered view
that the trial court committed manifest error in believing the evidence of those
witnesses and reasoning of the Trial Court that some thing must have happened
otherwise the deceased would not have committed suicide is clearly indefensible.
In the instant case, neither there are any instances of instigation attributable
to the Appellant nor even any allegation to have incited the deceased to commit
suicide.  Therefore, the conviction of the Appellant is unsustainable and the
conviction and sentence recorded by the court below is liable to be set aside.
21. In the result, this criminal appeal is allowed. The impugned
judgement of conviction and sentence dated 31.7.2007 made in SC.No.48/2007  by
the learned Sessions Judge (Mahila Court) Tiruchirappalli is set aside.  The
bail if any executed by the Appellant shall stand cancelled and the fine amount
if any paid by the Appellant shall be refunded to him.

Srcm

To:

1.The Sessions Judge (Mahila Court) Tiruchirappalli
2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai

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