The State of Madhya Pradesh vs Girjashankar

B.D. Rathi, J.—Heard on admission. This is an application for grant of leave to appeal u/s 378(3) of the Code of Criminal Procedure ("Code" for short). By the impugned judgment dated 6/7/09 passed by IV Additional Sessions Judge, Jabalpur in Sessions Trial No. 382/2007, respondents have been acquitted of the offences punishable under Sections 304B, 498A in alternative 306 of the Indian Penal Code (for short "the Code") respectively. Marriage of Sarasvati Koshta (since deceased) was solemnized with respondent no. 3 Mohan Garhewal on 7/6/2006.

As per the prosecution story, during the period 7/6/06 to 31/10/06, respondents were involved in subjecting Sarasvati to cruelty and harassment due to non satisfaction of demand for dowry and ultimately on 31/10/2006, Sarasvati consumed Celphos and, thereafter, died on 3/11/2006.

Learned Government Advocate, while making reference to the evidence on record, submitted that the trial Court has erred in appreciating the evidence and the judgment of acquittal deserves to be interfered with.

In response, learned counsel for the respondents, submitted that the trial Court had properly appreciated the evidence on record and the judgment of acquittal, being well merited, did not deserve any interference.

Having regard to the arguments advanced by the parties, we have gone through the impugned judgment.

On 1/11/06, dying declaration (Ex. P/5), thumb impressed by the deceased, was recorded by Executive Magistrate D.K. Sharma (PW 5). Nothing has been narrated therein against the respondents.

While inviting attention to the letter and so called suicide note (Ex. P/23) dated 30/10/06, learned Government Advocate submitted that grave allegations had been leveled therein against the respondents, and the trial Court had completely misdirected itself in disbelieving the same.

We have gone through the suicide note. An unusual feature of the note is that it is type-written. Secondly, it bears a remark that the same was being left by Sarasvati with her friend. However, her friend has not been examined by the prosecution to prove the same. Moreover, State Examiner of Questioned Document, Jahangirabad, Bhopal, in his report (Ex. P/24) dated 22/1/08, was unable to give any definite opinion as to the authenticity of the signature of Savita appended on the said note. Further, it is alleged to be authored on 30/10/06, whereas the dying declaration was recorded on 1/11/06. However, the dying declaration is silent, with regard to the facts mentioned in the suicide note, and, therefore, the suicide note has rightly been disbelieved by the trial Court.

Material contradictions and omissions were found in the evidence of Khushiram (PW 1), Shobharam (PW 2) and Manish Kumar (PW 8), whose statements, under S. 161 of the Code of Criminal Procedure, were recorded after more than six months. Therefore, the same were not found trustworthy on the point that behaviour of the respondents was cruel some with Sarasvati.

On the aforesaid premises, trial Court found that presumptions u/s 113-A and 113-B of the Evidence Act could not be drawn from the facts of the case.

The principle on which dying declaration is admitted in evidence is indicated in the legal maxim "Nemo moriturus praesumitur mentire" - a man will not meet his Maker with a lie in his mouth. Accordingly, we fully agree with the findings recorded by the trial Court based on the proper appreciation of evidence on record.

It is well settled that the judgment of acquittal should not be disturbed unless the conclusions drawn on the basis of evidence brought on record are found to be grossly unreasonable or manifestly perverse or palpably unsustainable.

Taking into consideration the reasons assigned on the face of evidence on record establishing the aforesaid facts and circumstances, the view taken by the learned trial Court was apparently a possible view. As such, no interference is called for with the order of acquittal in question. The application, therefore, stands dismissed in limine.