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
