embellishments and & contradictions in PW evidence create doubt about truthfulness & renders her testimony unsafe to hold accused guilty : MADRAS HC

"….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.

**

Madras High Court

Basheer Alias Abdul Basheer vs State By Inspector Of Police on 19 March, 2013

 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 

1. 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. FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpressFOR 100s of high court and supreme court cases

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

*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

1 thought on “embellishments and & contradictions in PW evidence create doubt about truthfulness & renders her testimony unsafe to hold accused guilty : MADRAS HC

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