Whether offence U/S 498A of IPC can be proved through dying declaration of deceased wife?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.451 OF 2004

Suresh s/o Premlal Malviya,
V
State of Maharashtra,

CORAM: ROHIT B. DEO, J.
DATE:     25th JANUARY 2018.

1] The appellant is challenging the judgment and order dated   09.07.2004   in   Sessions   Trial   81/1997   rendered   by   the Additional Sessions Judge, Achalpur, by and under which, the appellant is convicted for the offence punishable under section 498­A of the Indian Penal Code (‘IPC’ for short) and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.500/­. The appellant is acquitted of offence punishable under section 302 read with section 34 of IPC. The mother of the appellant Smt. Lalita Malviya who was co­accused is acquitted of both the offences.

2] Heard Shri P.R. Agrawal, the learned Counsel for the appellant   and   Ms.   S.V.   Kolhe,   the   learned   Additional   Public Prosecutor for the respondent­State.

3] Concededly, deceased Arti suffered burn injuries on 31.07.1996 and succumbed thereto on 01.08.1996. The death is within   less   than   three   months   of   her   marriage   with   accused Suresh Malviya which was solemnized on 13.05.1996.

4] The incident occurred at 06:00 a.m. on 31.07.1996. Arti was admitted in Rural Hospital, Dharni. Her dying declaration (Exh.23) was recorded in Rural Hospital, Dharni by the Executive Magistrate,   Dharni.   The   dying   declaration   records   that   Arti suffered accidental burns. Arti was thereafter referred to Irwin Hospital,   Amravati.   Police  Head   Constable   Babarao  visited  the spot and prepared panchnama in presence of the panch witnesses. The quilt used for extinguishing the fire was seized.

5] Arti   requested   that  she   be   admitted   in  hospital   at Khandwa, since her parents reside at Khandwa. A second dying declaration was recorded in the Khandwa hospital on 31.07.1996. The dying declaration purportedly inculpates accused Suresh and the acquitted Sau. Lalita and records that the accused assaulted Arti on the previous night and her mother­in­law set her ablaze after pouring kerosene on her person. On the basis of the second dying declaration, offence under section 307, 498­A read with section 34 of IPC was registered in Mohar Road Police Station, Khandwa and the case papers were transferred to Police Station Dharni.   Offence   under   the   said   sections   was   again   registered against the  accused in  Dharni Police  Station, A.P.I. Samadhan Gopnarayan visited the spot of the incident, seized burnt clothes from   the   spot   in   the   presence   of   witnesses   and   recorded   the statements   of   relatives   of   Arti   who   resided   in   Khandwa. Arti expired on 03.08.1996. Offence under section 302 of IPC was additionally   registered,   and   upon   completion   of   investigation charge­sheet was submitted in the court of Judicial Magistrate First Class, Dharni who committed the case to the Sessions Court. The learned Sessions Judge framed charge (Exh.17) under section 498­A, 302 read with section 34 of IPC, the accused abjured guilt and claimed to be tried in accordance with law.

6] The learned Sessions Judge recorded a finding, and I see no reason to take a different view, that the prosecution has failed   to   prove   that   the   death   was   homicidal.   The   dying declaration (Exh.23) which was recorded on 31.07.1996 recites that Arti suffered accidental burns. The spot panchnama (Exh.24) records the existence of furnace with five half burnt pieces of wood. The incident occurred at 06:00 a.m. No trace or residue of kerosene was noticed on the floor of the room. The half burnt quilt which was used to extinguish the fire and the clothes of the deceased which were seized were sent to the Chemical Analyzer whose   report   the   prosecution   did   not   produce   on   record. The   second   dying   declaration   purportedly   recorded   in   the Khandwa hospital was not proved by the prosecution. In the teeth of the evidence on record, the possibility of homicidal death can be safely excluded. It is not even the case of the prosecution that Arti committed suicide. That the death was accidental is the only reasonable inference which can be drawn from the evidence on record.

7] The   learned   Sessions   Judge,   while   acquitting   the mother   of   the   accused,   convicted   the   accused   for   offence punishable under section 498­A of the IPC. In order to prove the offence punishable under section 498­A of IPC the prosecution has examined   Shri   Premnarayan   Rai,   the   father   of   the   deceased (P.W.1), Smt. Pushpabai Rai, the mother of the deceased (P.W.2) and Smt. Archana Jaiswal, the sister of the deceased (P.W.3).

8] The evidence of P.W.1 is that he was told by P.W.2 that   the   deceased   Arti   disclosed   to   P.W.2   that   the   accused demanded a gas stove and Rs.10,000/­ or Rs.5000/­. P.W.1 states that he was told by P.W.2 that Arti was subjected to ill­treatment and was assaulted by accused Suresh. The evidence of P.W.1 does not take the case of the  prosecution  any further since he has deposed on the basis of what was conveyed to him by his wife (P.W.2), to whom Arti made the disclosures.

9] P.W.2 Smt. Pushpabai has deposed that when Arti was in  her parental  home for 15 days, she disclosed that the accused were demanding Rs.10,000/­ and gas furnace and was ill­treated and assaulted by the accused. P.W.2 states that when she reached Arti to her matrimonial home, she stayed there for two days and was a witness to a quarrel between Arti and her mother­in­law on the issue of preparation of food. P.W.2 then states that in the hospital Arti told her that her mother­in­law poured kerosene on her person and her husband set her ablaze. P.W.2 states that it was also disclosed by Arti that on the previous night accused Suresh assaulted her on the back with stick. The statement that accused persons were quarreling with   Arti   and   were   assaulting   her   to   coerce   her   to   fulfill   the demand of money and gas stove, is an omission, which is duly proved in the evidence of P.W.5  I.O.

10] P.W.3   Archana   Jaiswal   who   is   the   sister   of   the deceased  has  deposed  when   Arti  was  residing  in  the   parental home for 20 days, she disclosed that the accused persons were demanding Rs.10,000/­ and gas stove and that she was ill­treated. This evidence is an omission, which inexplicably was not proved.

11] The evidence, sketchy and  bereft of details, as the evidence is, is concededly not direct. P.W.1, P.W.2 and P.W.3 have deposed on the basis of the disclosures which the deceased Arti is said to have made when she was residing at her parental home for 15   to   20   days.   The   pivotal   issue   is   whether   such   evidence   is admissible. The learned Sessions Judge having recorded a finding that the death was not homicidal and was accidental, the cause of death   or   any   of   the   circumstances   of   the   transaction   which resulted in death is not in issue for consideration. Section 32(1) of the   Indian   Evidence   Act   carves   out   an   exception   to   the   rule against   the   admissibility   of   hear   say   evidence.   Statement   of deceased,  verbal  or  written,  is  admissible  under   section  32(1) provided   the   cause   of   death   or   the   circumstances   of   the transaction which resulted in death, is an issue and such verbal or written statement is regarding such cause or circumstances.

12] In Inderpal v. State of M.P. reported in (2001) 10 SCC 736 the Apex Court observes thus:

7. Unless   the   statement   of   a   dead   person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained   in   Exhibit   P­7   or   Exhibit   P­8   and   those quoted   by   the   witnesses   be   connected   with   any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498­A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.

It   would   be   apposite   to   also   note  the   following
observations   in  Bhairon   Singh vs.   State   of   Madhya   Pradesh,
reported in (2009) 13 SCC 80:

“4. The   legal   position   relating   to   the
admissibility of evidence under section 32(1) has come
up for consideration before this court time and again. It
is   not   necessary   to   multiply   the   authorities   in   this
regard as reference to a three judge Bench decision of
this court in Sharad Birdhichand Sarda Vs. State of
Maharashtra,   (1984)4   SCC   116:[2009   ALL
SCR(O.C.C.)   281],   will   suffice.   Regarding   the
application of rule under section 32(1) Evidence Act,
Fazal Ali, J. culled out the legal position as follows:

“(1)   Section   32   is   an   exception   to   the   rule   of
hearsay   and   makes   admissible   the   statement   of   a
person who dies, whether the death is a homicide or a
suicide, provided the statement relates to the cause of
death, or exhibits circumstances leading to the death.
In this respect as indicated above, the Indian Evidence
Act, in view of the peculiar condition of our society and
the diverse nature and character  of our people, has
thought it necessary to widen the sphere of Section 32
to avoid injustice”.

“(2) The test of proximity cannot be too literally
construed and practically reduced to a cut and dried
formula of universal application so as to be confined in
a straitjacket. Distance of time would depend or vary
with   the   circumstances   of   each   case.   For   instance,
where death is a logical culmination of a continuous
drama long in process and is, as it were, a finale of the
story,   the   statement   regarding   each   step   directly
connected   with   the   end   of   the   drama   would   be
admissible because the entire statement would have to
be read as an organic whole and not torn from the
context. Sometimes statements relevant to or furnishing
an immediate motive may also be admissible as being a
part of the transaction of death. It is manifest that all
these statements come to light only after the death of
the   deceased   who   speaks   from   death.   For   instance,
where the death takes place within a very short time of
the marriage or the distance of time is not spread over
more than 3­4 months the statement may be admissible
under Section 32”.

(3) The second part of clause (1) of Section 32 is
yet another exception to the rule that in criminal law
the evidence of a person who was not being subjected to
or given an opportunity of being cross examined by the
accused, would be valueless because the place of cross
examination is taken by the solemnity and sanctity and
sanctity of oath for the simple reason that a person on
the   verge   of   death   is   not   likely   to   make   a   false
statement unless there is strong evidence to show that
the   statement   was   secured   either   by   prompting   or
tutoring.

(4) It may be important to note that Section 32
does not speak of homicide alone but includes suicide
also, hence all the circumstances which may be relevant
to prove a case of homicide would be equally relevant to
prove a case of suicide.

(5) Where the main evidence consists of statements
and letters written by the deceased which are directly
connected with or related to her death and which reveal
a tell­tale story, the said statement would clearly fall
within the four corners of Section 32 and, therefore,
admissible. The distance of time alone in such cases
would not make the statement irrelevant.”

5. Varadarajan, J. on the other hand referred to
the legal position stated by Woodroffe and Amir Ali in
their Law of Evidence,(fourteenth edition) and Ratanlal
Dhirajlal in their Law of Evidence (1982 Reprint). This
is how A. Varadarajan, J. dealt with the admissibility
of evidence under Section 32(1):

“….The position of law relating to the admissibility
of evidence under Section 32(1) is well settled. It is,
therefore,   not   necessary   to   refer   in   detail   to   the
decisions of this Court or of the Privy Council or our
High   Courts.   It   would   suffice   to   extract   what   the
learned authors Woodroffe and Amir Ali have stated in
their Law of Evidence, Fourteenth Edn. and Ratanlal
and Dhirajlal in their Law of Evidence (1982 Reprint).
Those  propositions  are  based   mostly   on  decisions   of
courts for which reference has been given at the end.
They   are   these:   Woodroffe   and   Amir   Ali’s   Law   of
Evidence, Fourteenth Edn.:

“Page   937:   Hearsay   is   excluded   because   it   is
considered   not   sufficiently   trustworthy.   It   is   rejected
because   it   lacks   the   sanction   of   the   test   applied   to
admissible   evidence,   namely,   the   oath   and   crossexamination.
But where there are special circumstances
which   give   a   guarantee   of   trustworthiness   to   the
testimony, it is admitted even though it comes from a
second­hand source.

Page 941: What is relevant and admissible under
clause (1) of this section (Section 32) is the statement
actually made by the deceased as to the cause of his
death or of the circumstances of the transaction which
resulted in his death.

Page 945­946: A statement must be as to the cause
of   the   declarant’s   death   or   as   to   any   of   the
circumstances of the transaction which resulted in his
death i.e. the cause and circumstances of the death and
not   previous   or   subsequent   transaction,   such
independent transactions being excluded as not falling
within the principle of necessity on which such evidence
is received. When a person is not proved to have died as
a result of injuries received in the incident in question,
his statement cannot be said to be a statement as to the
cause of his death or as to any of the circumstances
which resulted in his death. (AIR 1964 SC 900.) Where
there is nothing to show that the injury to which a
statement in the dying declaration relates was the cause
of the injured person’s death or that the circumstances
under which it was received resulted in his death, the
statement   is   not   admissible   under   this   clause.   (ILR
1901 25 Bom.45.)

Page   947:   Circumstances   of   the   transaction
resulting in his death: This clause refers to two kinds of
statements: (i) when the statement is made by a person
as to the cause of his death, or (ii) when the statement
is made by a person as to any of the circumstances of
the transaction which resulted in his death. The words
`resulted in his death’ do not mean `caused his death’.
The   expression   `any   of   the   circumstances   of   the
transaction   which   resulted   in   his  death’  is  wider   in
scope than the expression `the cause of his death’. The
declarant need not actually have been apprehending
death. (AIR 1964 MP 30.)

Page   947:   The   expression   `circumstances   of   the
transaction’   occurring  in   Section  32,  clause  (1)   has
been a source of perplexity to courts faced with the
question as to what matters are admissible within the
meaning   of   the   expression.   The   decision   of   Their
Lordships   of   the   Privy   Council   in   Pakala   Narayana
Swami v. Emperor (AIR 1939 PC 47) sets the limits of
the matters that could legitimately be brought within
the   purview   of   that   expression.   Lord   Atkin,   who
delivered   the   judgment   of   the   Board,   has,   however,
made   it   abundantly   clear   that,   except   in   special
circumstances no circumstance could be a circumstance
of the transaction if it is not confined to either the time
actually occupied by the transaction resulting in death
or the scene in which the actual transaction resulting in
death took place. The special circumstance permitted to
transgress the time factor is, for example, a case of
prolonged   poisoning,   while   the   special   circumstance
permitted   to   transgress   the   distance   factor   is,   for
example, a case of decoying with intent to murder….
But   the   circumstances   must   be   circumstances   of   the
transaction   and   they   must   have   some   proximate
relation to the actual occurrence.

Page 948: `Circumstances of the transaction’ is a
phrase no doubt that conveys some limitations. It is not
as   broad   as   the   analogous   use   in   `circumstantial
evidence’  which   includes  the  evidence  of   all  relevant
factors. It is on the other hand narrower than `res
gestae’.   Circumstances   must   have   some   proximate
relation   to   the   actual   occurrence,   though,   as   for
instance, in the case of prolonged poisoning they may
be related to dates at a considerable distance from the
date of actual fatal dose.

Page 948: The Supreme Court in the case of Shiv
Kumar v. State of U.P.{1966 Cri.App.R (SC) 281} has
made similar observations that the circumstances must
have some proximate relation to the actual occurrence,
and   that   general   expressions   indicating   fear   or
suspicion,   whether   of   a   particular   individual   or
otherwise and not directly to the occasion of death will
not be admissible.

Page 949: The clause does not permit the reception
in evidence of all such statements of a dead person as
may   relate   to   matters   having   a   bearing   howsoever
remote on the cause or the circumstances of his death.
It   is   confined   to   only   such   statements   as   relate   to
matters   so   closely   connected   with   the   events   which
resulted in his  death  that  may  be  said  to  relate  to
circumstances of the transaction which resulted in his
death.   [(1939)   66   IA   66.]   `Circumstances   of   the
transaction which  resulted in his death’ means only
such  facts  or   series  of  facts  which  have   a  direct  or
organic relation to death. Hence statement made by the
deceased   long   before   the   incident   of   murder   is   not
admissible.[1974 Cri LJ 1200 (MP).] Law of Evidence
by Ratanlal and Dhirajlal (1982 Reprint)

Page 94: Circumstances of the transaction: General
expressions indicating fear or suspicion whether of a
particular   individual   or   otherwise   and   not   directly
related to the occasion of the death are not admissible.
[(1939) 66 IA 66] (18 Part 234.)

Page 95: Circumstances must have some proximate
relation to the actual occurrence and must be of the
transaction   which   resulted   in   the   death   of   the
declarant.   The   condition   of   the   admissibility   of   the
evidence is that the cause of the declarant’s death comes
into question. It is not necessary that the statement
must be made after the transaction has taken place or
that the person making it must be near death or that
the `circumstance’ can only include the  acts done when
and where the death was caused….

Dying   declarations   are   admissible   under   this
clause.”

“10. The only evidence to bring home charge under
Section 498A, IPC, is that of PW­4 and PW­5. In their
deposition PW­4 and PW­5 stated that their sister told
them that accused was torturing her as he wanted that
her brothers arrange a job for him or the house at Ganj
Basoda is given to him or a cash of Rs.1 lac is given to
enable him to do some business. They deposed that as
and when their sister come to their house, she would
tell them that accused used to insert cloth in her mouth
and give beatings for dowry. The trial court as well as
the High Court relied on the evidence of PW­4 and
PW­5 and held that charge under Section 498A, IPC,
against   the   accused   was   proved.   Apart   from   the
statement   attributed   to   the   deceased,   none   of   the
witnesses had spoken anything which they had seen
directly insofar as torture and harassment to Ranjana
Rani @ Raj Kumari was concerned”.

“11. The moot question is: whether the statements
attributed to the deceased could be used as evidence for
entering   upon   a   finding   that   the   accused   subjected
Ranjana Rani @ Raj Kumari to cruelty as contemplated
under Section 498A, IPC. In our considered view, the
evidence of PW­4 and PW­5 about what the deceased
Ranjana Rani @ Raj Kumari had told them against the
accused   about   the   torture   and   harassment   is
inadmissible under Section 32(1) of the Evidence Act
and   such   evidence   cannot   be   looked   into   for   any
purpose. Except Section 32(1) of the Indian Evidence
Act,   there   is   no   other   provision   under   which   the
statement   of   a   dead   person   can   be   looked   into   in
evidence”.

The statement of a dead person is admissible in law
if the statement is as to the cause of death or as to any
of the circumstance of the transactions which resulted
in her death, in a case in which the cause of death
comes into question. What has been deposed by PW­4
and PW­5 has no connection with any circumstance of
transaction which resulted in her death. The death of
Smt.   Ranjana   Rani   @   Raj   Kumari   was   neither
homicidal nor suicidal; it was accidental. Since for an
offence under Section 498A simpliciter, the question of
death is not and cannot be an issue for consideration,
we are afraid the evidence of PW­4 and PW­5 is hardly
an evidence in law to establish such offence. In that
situation Section 32(1) of the Evidence Act does not get
attracted”.

“12. We are fortified in our view by the decision of
this Court in Inder Pal vs. State of M.P2. (2001) 10
SCC   736,   wherein   this   Court   considered   the   matter
thus:

“4. We will consider at first the contention as to
whether   there  is   any   evidence   against   the  appellant
which can be used against him for entering upon a
finding   that   he   subjected   Damyanti   to   cruelty   as
contemplated in Section 498­A IPC. PW 1 father of the
deceased and PW 8 mother of the deceased have stated
that Damyanti had complained to them of her plight in
the house of her husband and particularly about the
conduct of the appellant. PW 4 sister of the deceased
and PW 5 a relative of the deceased have also spoken
more or less on the same line. Exhibit P­7 and Exhibit
P­8 are letters said to have been written by Damyanti.
In those two letters reference has been made to her life
in the house of her in­laws and in one of the letters she
said that her husband had subjected her to beating.
5.   Apart   from   the   statement   attributed   to   the
deceased none of the witnesses had spoken of anything
which they had seen directly. The question is whether
the statements attributed to the deceased could be used
as   evidence   in   this   case   including   the   contents   of
Exhibits P­7 and P­8 (letters).

6. Before deciding that question we have to point
out that the High Court came to a conclusion that the
allegation   that   she   committed   suicide   was   not
substantiated. A dying declaration was recorded by the
Executive Magistrate in which the deceased had stated
that she got burns accidentally from a stove. If that be
so,   death   could   not   be   the   result   of   either   any
harassment or any cruelty which she was subjected to.
In this context we may point out that the State has not
challenged the finding of the High Court that death of
Damyanti was not due to commission of suicide”.

7. Unless the statement of a dead person would fall
within   the   purview   of   Section   32(1)   of   the   Indian
Evidence Act there is no other provision under which
the same can be admitted in evidence.  In order to make
the   statement   of   a   dead   person   admissible   in   law
(written or verbal) the statement must be as to the
cause of her death or as to any of the circumstances of
the transactions which resulted in her death, in cases in
which the cause of death comes into question.  By no
stretch of imagination can the statements of Damyanti
contained   in   Exhibit   P­7   or   Exhibit   P­8   and   those
quoted   by   the   witnesses   be   connected   with   any
circumstance of the transaction which resulted in her
death.  Even that apart, when we are dealing with an
offence under Section 498­A IPC disjuncted from the
offence   under   Section   306,   IPC   the   question   of   her
death is not an issue for consideration and on that
premise  also   Section  32(1)  of  the  Evidence  Act  will
stand at bay so far as these materials are concerned.”
If the evidence on record is scrutinized on the anvil of
the   enunciation   of   law   in   the   judgments   of   the   Apex   Court
referred to supra, it must be held that there is no admissible
evidence on record to prove that the deceased was subjected to
cruelty within the meaning of explanation (a) or explanation (b)
of section 498­A of the Act.

13] In the result, the judgment and order impugned is unsustainable and is set aside.

14] The accused is acquitted of offence punishable under section 498­A of IPC.

15] Fine paid by the accused, if any, be refunded.

16] The bail bond of the accused shall stand discharged.

17] The appeal is allowed.

JUDGE
NSN

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