Purushottam Sitaram Bakal And 3 … vs State Of Maharashtra on 7 September, 2017

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

CRIMINAL APPEAL NO.17 OF 2000
WITH
CRIMINAL APPEAL NO.74 OF 2000

CRIMINAL APPEAL NO.17 OF 2000

1 Purushottam Sitaram Bakal,
aged about : 27 years,

2 Sitaram Bhikaji Bakal
aged about 55 years,

3 Dwarkabai w/o. Sitaram Bakal
aged about : 50 years

4 Rameshwar Sitaram Bakal,
aged about : 19 years,

All residents of Tiwali,
District. Washim. …….APPELLANTS

…V E R S U S…

The State of Maharashtra,
through Police Station Officer Shirpur, ……RESPONDENT

———————————————————————————————-
Mr. S.A. Bramhe, counsel for appellants.
Mr. H.R. Dhumale, Addl. Public Prosecutor for respondent.
———————————————————————————————-

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CRIMINAL APPEAL NO.74 OF 2000

The State of Maharashtra,
through Police Station Officer Shirpur …….APPELLANT

…V E R S U S…

1 Purushottam Sitaram Bakal,
aged about : 27 years,

2 Sitaram Bhikaji Bakal
aged about 55 years,

3 Dwarkabai w/o. Sitaram Bakal
aged about : 50 years

4 Rameshwar Sitaram Bakal,
aged about : 19 years,

All residents of Tiwali,
District. Washim ……RESPONDENTS

———————————————————————————————–
Mr. H.D. Dhumale, Addl. Public Prosecutor for appellant.
Mr. S.A. Bramhe, counsel for respondents.
———————————————————————————————–

DATE OF RESERVING THE JUDGMENT
:21 th
AUGUST, 2017.
: 7 SEPTEMBER, 2017.
DATE OF PRONOUNCING THE JUDGMENT th

CORAM: ROHIT B. DEO, J.

ORAL JUDGMENT

1 The appellants in Criminal Appeal No. 17 of 2000

faced trial for offence punishable under sections 306 and 498-A read with

section 34 of Indian Penal Code (for short ‘IPC’). They have been

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acquitted of offence punishable under section 306 read with section 34 of

IPC and have been convicted of offence punishable under section 498-A

read with section 34 of Indian Penal Code and are sentenced to suffer

rigorous imprisonment for two years and to pay fine of Rs. 500/-.

The State is challenging the acquittal of the accused for offence

punishable under section 306 of IPC and accused are challenging the

conviction under section 498-A read with section 34 of IPC. Criminal

Appeal 17 of 2000 and Criminal Appeal 74 of 2000, assailing the

judgment dated 20.12.1999, in Session Trial 65 of 1997 delivered by

Additional Sessions Judge, Washim, have been heard together and are

decided by this common judgment.

2 Heard Shri. S.A. Bramhe, learned counsel for

appellants in Criminal Appeal 17 of 2000 and Shri. H.R.Dhumale, learned

Additional Public Prosecutor in Criminal Appeal 74 of 2000 for the State.

3 Saraswati, late wife of appellant 1, Purushottam

(appellants shall be referred to as ‘accused’ hereinafter) expired on

22.5.1997 at village Tiwali. The prosecution contends that Sarswati

committed suicide by consuming poison. Natthu Jadhav, the father of

Sarswati lodged First Information Report (for short ‘FIR’) (Exh.23), on

23.5.1997, pursuant to which offence punishable under section 498-A and

306 read with section 34 of IPC was registered at Shirpur Police Station.

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4 The gist of the prosecution case is that Sarswati was

harassed by the accused to coerce her to fulfil unlawful demand of colour

TV, cooler and Rs.10,000/-. The FIR states that whenever Sarswati used

to visit the maternal house, she used to disclose the harassment to which

she was subjected, to the informant and other family members.

The investigation led to filing charge-sheet before the learned

Magistrate who committed the case to the Sessions Court. The learned

Sessions Judge framed charge (Exh.14). The accused pleaded not guilty

and claimed to be tried. The prosecution examined six witnesses

including the father, mother, uncle and sister of the deceased Sarswati.

The defence of the accused is total denial.

5 The learned Sessions Judge has held that the prosecution has

not proved that Sarswati committed suicide. The learned APP Shri.

H.R.Dhumale, contends that the finding of the learned Sessions Judge is

manifestly erroneous and is contrary to the dictum of the Hon’ble Supreme

Court in Bhupendra Vs. State of Madhya Pradesh (2014) 2 SCC 106.

The learned APP contends that the reasoning of the learned Sessions

Judge, that in view of the report of the Chemical Analyzer that on

examination of viscera, no general and specific chemical was detected,

suicidal death is not proved conclusively, is a reasoning which is clearly

flawed. The learned APP would contend that there is ample evidence on

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record including the FIR, the spot panchanama and the Post Mortem

Report which proves that Sarswati consumed poison. He would urge, that

the learned Sessions Judge fell in serious error on relying only on the

negative report of the Chemical Analyzer to hold that suicidal death is not

established. Per contra, Shri. S.A. Bramhe, learned counsel for the

accused would urge, that the finding recorded by the learned Session

Judge does not prove that Sarswati committed suicide, is a possible and

plausible view and certainly not perverse. The learned counsel for the

accused does not dispute the proposition that it is not necessary for the

prosecution to wait for the report of the Chemical Analyzer even if such

report is sought. However, the learned counsel would urge, that once the

prosecution receives the report of the Chemical Analyzer and the Chemical

Analyzer’s report is relied upon by the prosecution by filing the same in

the trial and inviting the accused to admit the contents thereof, the

prosecution is bound by the report of the expert. The learned counsel

would contend that the judgment of the Hon’ble Supreme Court in

Bhupendra Vs. State of Madhya Pradesh, is distinguishable on facts. The

Hon’ble Supreme Court was considering a factual scenario in which the

Chemical Analyzer’s report was sought but then was awaited and the

defence contended that in the absence of the report of viscera

examination, death due to consumption of poison is not established. The

Hon’ble Supreme court was pleased to articulate that the consumption of

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poison can be established by other evidence, and absence of viscera report

is not necessarily fatal to the prosecution case. The learned counsel for

the accused would urge, that while absence of viscera report may not be

fatal to the prosecution case, if there is no direct ocular evidence on record

to suggest suicidal death due to consumption of poison, a negative viscera

report is certainly fatal.

6 Be it noted, that in the present case, the viscera

examination report was sought for and the report which was received and

filed alongwith charge-sheet was negative. The prosecution filed the

Chemical Analysis Report, invited the accused to admit the contents

thereof and the Chemical Analysis report is proved on admission. It is

axiomatic that the prosecution in a sense relied on the Chemical Analysis

report. It is not the case of the prosecution that the viscera examination

report is not conclusive or untrustworthy due to any reason. The learned

Session Judge has held that offence under section 306 of IPC is not

proved on the premise that suicidal death by consumption of poison is not

sought. I would not be inclined to take a different view, even if arguendo,

two views are possible. The viscera examination report is negative and

poison is not detected. The finding of the learned Session Judge, is

certainly not perverse. I do not see any merit in the State appeal

challenging the acquittal of the accused for offence under section 306 of

IPC.

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7 The accused have been convicted for offence

punishable under section 498-A which reads thus:-

498-A. Husband or relative of husband of a woman
subjecting 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 purpose of this section, “cruelty” means

(a) any wilful 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.

8 The ingredients of section 498-A of IPC are

articulated in Girdhar Shankar Tawade Vs. State of Maharashtra

(2002) 5 SCC 177, thus:

“3. The basic purport of the statutory provision is to avoid
“cruelty” which stands defined by attributing a specific statutory
meaning attached thereto as noticed hereinbefore. Two specific
instances have been taken note of in order to ascribe a meaning to
the word “cruelty” as is expressed by the legislature: whereas

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Explanation (a) involves three specific situations viz. (I) to drive
the woman to commit suicide or (ii) to cause grave injury or (iii)
danger to life, limb or health, both mental and physical, and thus
involving a physical torture or atrocity, in Explanation (b) there is
absence of physical injury but the legislature thought it fit to
include only coercive harassment which obviously as the legislative
intent expressed is equally heinous to match the physical injury;
whereas one is patent, the other one is latent but equally serious in
terms of the provisions of the statute since the same would also
embrace the attributes of “cruelty” in terms of Section 498-A.”

“17. As regards the core issue as to whether charges under
Sections 306 and 498-A of the Indian Penal Code are independent
of each other and acquittal of one does not lead to acquittal on the
other, as noticed earlier, there appears to be a long catena of cases
in affirmation thereto and as such further dilation is not necessary
neither are we inclined to do so, but in order to justify a conviction
under the later provision there must be available on record some
material and cogent evidence. Presently, we have on record two
inconsistent versions of the brother and the cousin, as such no
credence can be attributed thereupon – the documentary evidence
(namely, those three letters), in our view, falls short of the
requirement of the statute: even on an assumption of the fact that
there is no contradiction in the oral testimony available on record,
the cousin goes to the unfortunate girl’s in laws’ place and
requests the husband to treat her well – at best some torture and a
request to treat her well. This by itself would not bring home the
charge under Section 498-A. Demand for dowry has not seen the
light of day”.

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9 Cruelty for the purpose of section 498-A of IPC is

statutorily defined. Cruelty which may be constitute a matrimonial

offence may not necessarily be the cruelty envisaged under explanation

(a)(b) to section 498-A of IPC. The evidence on record must be tested on

the anvil of the statutory definition of cruelty and the articulation of the

Hon’ble Supreme Court on the scope and ambit of section 498-A of IPC.

The prosecution case entirely rests on the testimony of the four

family members of the deceased, namely, PW1 Natthu Jadhav(father),

PW2 Antakala Jadhav (mother), PW3 Vishwanath Jadhav (uncle) and

PW4 Vimal Shinde (sister). PW1 Natthu deposes that as and when

deceased Sarswati used to visit to her parental home, she used to narrate

the instances of illtreatment. The evidence of PW 1 on the illtreatment,

to the extent the evidence is hearsay, is not admissible and the said

aspect shall be dealt with at a later stage in the judgment. PW1 states

that the accused used to say that since Sarswati came to their house as

bride, accused were facing poverty. PW1 further states that the accused

demanded colour TV and Rs.10,000/- and that the harassment to

Sarswati was due to the said demand. Be it noted, that the harassment is

not directly witnessed by the PW1 who is essentially deposing on the

basis of the conversation which he and Sarswati allegedly had when

Sarswati used to visit the parental home. Similarly, the general

allegations of illtreatment in paragraph 3 and 4 of the examination in

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chief are also hearsay in as much as the deposition is based on what

Sarswati allegedly narrated to PW1 on 4.5.1997 and 8.5.1997. The

evidence of PW1 is not reliable or trustworthy and is marked by serious

proved omissions which partake the character of contradiction. The

evidence is even otherwise too sketchy, general and grossly insufficient to

prove cruelty within the meaning of explanation (a) and explanation (b)

of section 498-A of IPC.

The evidence which is based on what Saraswati narrated is

hearsay and is not admissible under section 32(1) of the Indian Evidence

Act, 1872. The prosecution has not proved that Sarswati committed

suicide. PW1 asserts that deceased Sarswati narrated the instances of

illtreatment when she met her family members. The statements

attributed to the deceased are clearly inadmissible since the death of

Sarswati is neither homicidal nor suicidal. Section 32(1) of Evidence Act,

is an exception to the rule of hearsay and statements of a person who

dies, whether the death is a homicide or a suicide, are made admissible if

the statements relate to the cause of death, or explain circumstances

leading to the death. In view of the finding recorded by the learned

Sessions Judge that suicidal death is not proved, and which finding I am

not inclined to disturb, the statements attributed to deceased Sarswati

are not statements which are admissible under section 32(1) of the

Indian Evidence Act and to the extent the evidence of PW1 and other

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family members is hearsay, the evidence is clearly inadmissible.

10 It would be apposite to refer to the following observations in

Bhairon Singh Vs. State of Madhya Pradesh, 2010 ALL SCR 213:

“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 annd 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

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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
3-4 months the statement may be admissible under Section 32″.

(3) The second part of clause (1) OF Seciton 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 examiantion 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 tell-tale story, the said

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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
cross- examination. But where there are special circumstances
which give a guarantee of trustworthiness to the testimony, it is
admitted even though it comes from a second-hand source.

Page 941: What is relevant and admissible under clause (1) of this

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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 945-946: 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

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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

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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

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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 PW-4 and PW-5. In their deposition PW-4 and PW-5
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 PW-4 and
PW-5 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 PW-4 and PW-5 about what the deceased Ranjana

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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 PW-4 and PW-5 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 PW-4 and PW-5 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 498-A 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

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deceased and PW 5 a relative of the deceased have also spoken
more or less on the same line. Exhibit P-7 and Exhibit P-8 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 in-laws 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 P-7 and P-8 (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 Evidnece 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

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Damyanti contained in Exhibit P-7 or Exhibit P-8 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 498-A 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.”

11 The evidence of PW 2 Antakala is not only sketchy,

vague and inherently unreliable due to proved omissions, the evidence is

inadmissible since the evidence is entirely hearsay. PW2 is not a witness

to the alleged illtreatment. The illtreatment is said to be narrated to her

by the deceased. Similarly, the evidence of PW3 and PW4 is entirely

hearsay and inadmissible for reasons spelt out supra.

The evidence of the family members of the deceased is mostly if

not entirely inadmissible and section 32(1) of the Indian Evidence Act

does not come into play since cause of death or the circumstances leading

to death was not an issue in so far as offence under section 498-A of IPC,

is concerned. However, even if the evidence is taken at face value, the

prosecution has not established cruelty of the nature and extent which

can be the basis of conviction under section 498-A of IPC.

Criminal Appeal 17 of 2000, is allowed and the accused are

acquitted of offence punishable under section 498-A read with section 34

of IPC. Criminal Appeal 74 of 2000 is dismissed.

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21 apl17of2000with74of2000

The bail bonds shall discharged and fine paid by the accused, if

any, shall be refunded.

Criminal Appeal 74 of 2000 and Criminal Appeal 17 of 2000 are

disposed of accordingly.

JUDGE

Belkhede, PA

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