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Cruelty which must be established to charge under Section 498-A of the IPC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.555 OF 2007

Sanjay s/o Vasantrao Nagmote,
Aged about 29 years,
Occupation – Agriculturist,
Resident of Parsodi (Dixit), Tahsil- Narkhed, District – Nagpur. …. APPELLANT

VERSUS

The State of Maharashtra,
through its Police Station Officer,
Police Station Jalalkheda, District – Nagpur. …. RESPONDENT

Shri A.R. Sharma, learned Counsel holding for Shri Amol Mardikar, Counsel for the appellant,
Shri N.H. Joshi, Additional Public Prosecutor for the respondent.

CORAM : ROHIT B. DEO, J.

DATED : 17 FEBRUARY, 2018.

th ORAL JUDGMENT :

Appellant Sanjay Nagmote faced trial for offence punishable under Sections 306 and 498-A of the Indian Penal Code (“IPC” for short) alongwith his brother Chandu Nagmote, who is acquitted. The appellant is acquitted of offence punishable under 2 apeal555.07 Section 306 of the IPC and is convicted for offence punishable under Section 498-A of the IPC and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.1,000/-. This judgment dated 21-11-2007 rendered by the learned Ad hoc District Judge-4 and Additional Sessions Judge, Nagpur is assailed herein.

2. Heard Shri A.R. Sharma, learned Counsel holding for Shri Amol Mardikar, learned Counsel for the appellant-accused and Shri N.H. Joshi, learned Additional Public Prosecutor for the respondent- State.

3. Shri A.R. Sharma, learned Counsel for the accused contends :

(i) The conviction is based on inadmissible evidence,

(ii) The delay of 15 days in lodging the first information report is unexplained and renders the prosecution case suspect.

(iii) Even if arguendo, the evidence is held admissible, the prosecution has not established cruelty within the meaning of Explanation (a) or (b) of Section 498-A of the IPC.

(iv) The defence that the deceased Sou. Maya was suffering from unbearable acute stomach pain which led her to commit suicide, is probablised on the touchstone of the preponderance of probabilities.

Per contra, Shri N.H. Joshi learned Additional Public Prosecutor supports the judgment and order impugned.

4. The deceased Maya and accused Sanjay entered into the matrimonial alliance on 17-5-2005. Concededly, Maya died within four month of the marriage on 10-9-2005 due to consumption of insecticide. The oral report was lodged by P.W.1 Natthuji Zamde-the father of the deceased on 25-9-2005. The explanation given by P.W.1 for lodging the oral report belatedly is that he was mentally disturbed. The offence which is registered on the basis of the delayed oral report is also belatedly registered on 25-10-2005. The explanation of the Investigating Officer P.W.7 is that the offence was not registered immediately because the accused and the father of the deceased (P.W.1) were intending to compromise and the offence was registered since the compromise did not materialize. Shri A.R. Sharma, learned Counsel is justified in submitting that the explanation given for belated lodging of the report and the registration of the offence is not satisfactory.

5. The gist of the oral report lodged on 25-9-2005 (Exhibit 4 apeal555.07

17) is that deceased Maya was treated well for fifteen days. Thereafter accused Sanjay used to come home under the influence of liquor and used to harass Maya for a demand of Rs.15,000/- and ring. Maya disclosed to P.W.1 that accused Sanjay was addicted to liquor and gambling and was not taking her to the hospital when she was ill.

6. In his deposition, P.W.1 states that Maya was treated well for fifteen days and then the harassment began. Accused Sanjay complained that inadequate dowry was given. On the eve of Rakhi festival, Maya and the accused visited P.W.1 and accused demanded Rs.15,000/- and gold ring. P.W.1 states that he received the information of the said demand from Maya. The evidence that Maya and accused visited P.W.1 on the occasion of Rakhi festival and it was then that the demand was conveyed by Maya, is inconsistent with the contents of the oral report (Exhibit 17).

7. P.W.2 Anusayabai who is the mother of the deceased, states that after the initial period of marital life the accused started harassing Maya for an amount of Rs.15,000/- and gold ring. P.W.2 ropes in the mother-in-law, who is not an accused, as the person who along with accused Sanjay was harassing Maya. She then states that 5 apeal555.07 when Maya and accused visited her on the occasion of Rakhi Maya complained about ill-treatment. P.W.2 Anusayabai Zamde states that Maya conveyed that accused Sanjay used to beat her under the influence of liquor and that Maya also disclosed the harassment to P.W.1.

In the cross-examination, she denies the suggestion that Maya was suffering from stomach ache. She admits that Maya visited her in summer and on the occasion of Akhadi she did not make any complaint. She admits that in the statement recorded on 11-9-2005 she did state before the police that Maya complained about her ill- health. She admits that Rs.35,000/- was paid to the accused willingly.

8. P.W.3 Shyamao Zamde does not speak of ill-treatment or demand and his evidence is of no assistance to the prosecution.

9. P.W.4 Nitin Tekade is the witness to the seizure panchanama who did not support the prosecution.

10. P.W.5 Atul Zamde is the elder brother of the deceased. He states that when Maya and the accused visited her parental home on the occasion of Rakhi festival, Maya disclosed that she was having  persistent stomachaches and that the accused was not providing medical treatment. He states that Maya also revealed that accused was harassing her for money and gold ring.

11. P.W.6 Dr. Pankaj Karande conducted the autopsy on the dead body of Maya and his opinion is that the cause of death is poisoning. He has proved the post-mortem report (Exhibit 28). The evidence of P.W.6 is corroborated by the report of the Chemical Analyser (Exhibit 29) which confirms detection of organo-chloro insecticide endosulfan (thiodan organophosphorous insecticide quinalphos (Ekalux) and petroleum hydrocarbons.

12. P.W.7 Wasudeo Kapte is the investigating officer. He admits that during the course of the investigation, it was revealed that Maya was suffering from stomach ache and that on the day of the incident she suffered acute pain. It is elicited in the cross-examination that investigation revealed that the accused did not have the money for treatment and he went to other people to arrange for money and in the meanwhile, Maya committed suicide.

13. The accused is acquitted of offence under Section 306 of 7 apeal555.07 the IPC and the only offence left for consideration was Section 498-A of the IPC. The cause of death was no longer in issue. The learned Sessions Judge committed a serious error of law in relying on the disclosure by the deceased Maya to her relatives. The verbal statements of the deceased were not admissible under Section 32(1) of the Indian Evidence Act since the cause of death or circumstances leading to the transaction which resulted in death, was not in issue. Suffice it to refer to the observations of the Hon’ble Apex Court in Bhairon Singh Vs. State of Madhya Pradesh, 2000 SCC 80, which read thus :

“3. 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 3-4 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 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 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.”

4. 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 and Dhirajlal in their Law of Evidence (1982 Reprint). This is how A. Varadarajan, J. dealt with the admissibility of evidence under Section 32(1):(Sharad case, SCC pp. 206-08, Para

202) “202…….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 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 10 apeal555.07 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. 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. 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. 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 11 apeal555.07 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. “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.

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.’”

11. 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 should 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.

12. 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.

13. 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.

14. In our considered view, the evidence of PW-4 and PW- 5 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 13 apeal555.07 Evidence Act and such evidence cannot be looked into for any purpose.

15. 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.

16. 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.

17. We are fortified in our view by the decision of this Court in Inderpal vs. State of M.P., wherein this Court considered the matter thus SCC pp.738-39, paras 4-7):

“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 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 14 apeal555.07 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 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 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.”

It would also be apposite to refer to the following observations in Kantilal Martaji Pandor vs. State of Gujarat and another reported in (2013) 8 SCC 781 and in particular to the following observations.

15 apeal555.07 “17. The question that we have, therefore, to decide is whether the Court could have arrived at this finding that the appellant has starved the deceased and committed various acts of mental cruelty towards the deceased only on the basis of the contents of the letter dated 26.03.1992 written by the deceased to the Police Station. The letter written by the deceased on 26.03.1992 could be relevant only under Section 32(1) of the Evidence Act, 1872, which provides that a statement, written or verbal, of relevant facts made by a person who is dead, is relevant when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. The High Court in the present case has already held that the appellant was not guilty of abetting the suicide of the deceased and was, therefore, not guilty of the offence under Section 306, IPC. As the cause of the death of the deceased is no more in question in the present case, the statements made by the deceased in the letter dated 26.03.1992 to the Police Station cannot be taken to be proof of cruel acts committed by the appellant for the purpose of holding him guilty under Section 498-A, IPC.

18. For taking this view, we are supported by the decision of this Court in Inderpal v. State of M.P. Inthis case, Inderpal was charged and tried for the offence under Section 306, IPC, and convicted by the trial court for the said offence of abetment of suicide. In the appeal filed by Inderpal, the High Court found that the offence under Section 306 IPC, was not made out as it could not be held that death of the deceased was due to commission of suicide, but the High Court held the appellant guilty of the offence under Section 498-A, IPC. This finding of the High Court was based on the evidence of the father, mother, sister and another relative of the deceased who deposed on the basis of inter alia the two letters (Exhibits P-7 and P-8) written by the deceased Damyanti that Inderpal, her husband, had subjected her to beating. This Court found that apart from the statement attributed to the deceased, none of the 16 apeal555.07 witnesses had spoken of anything which they had seen directly and the question that this Court had to decide was whether the statement attributed to the deceased could be used as evidence including the contents of Exts.P-7 and P-8 and this Court held that the contents of Exts. P-7 and P-8 written by the deceased could not be treated as proof of the acts of cruelty by Inderpal for the purpose of offence under Section 498-A IPC. The reasons given by this Court in paragraph 7 of the judgment as reported in the SCC are as follows (Inderpal case, SCC p. 739):

“7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the 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 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 underSection 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.”

14. Shri A.R. Sharma, learned Counsel is justified in the submission that the conviction is based on inadmissible evidence. Even if arguendo, the evidence is considered, the prosecution has failed to 17 apeal555.07 establish that the deceased Maya was subjected to cruelty within the meaning of Explanation (a) or (b) of Section 498-A of the IPC. It is only P.W.2 Anusayabai who states that Maya disclosed that she was beaten by the accused under the influence of liquor. This evidence is not supported or corroborated by any other relative. P.W.1 Nathuji, who has lodged the report belatedly after 15 days of the death, states that it was when Maya and the accused visited him on the occasion of Rakhi festival that Maya made disclosure that the accused was demanding Rs.15,000/- and gold ring. Other than this bare statement, P.W.1 has not disclosed the nature and extent of harassment to which the deceased was allegedly subjected to by the accused. The version of P.W.2 that Maya was beaten is unreliable since P.W.1 to whom according to the witness the disclosure was made by Maya, does not speak of the accused having beaten Maya much less for demand of dowry. The evidence of P.W.2 that Maya disclosed that accused used to assault Maya under the influence of liquor, is not corroborated by P.W.1 who makes no reference whatsoever to the consumption of liquor or much less beating under the influence of liquor. The only other witness examined to prove cruelty, P.W.5 Atul states that Maya disclosed that she was having persistent stomach ache and that she was not provided medical treatment. However, this is not the version of  P.W.1. The only other statement is that Maya complained that accused was harassing her for money and gold ring. Again, the evidence is bereft of particulars and the nature and extent of harassment is left to speculation.

15. It is trite law, that cruelty which must be established to bring home charge under Section 498-A of the IPC is of graver and sterner degree than the concept of cruelty in matrimonial law. 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 must be proved beyond reasonable doubt. The harassment envisaged by Explanation (b) to Section 498-A must be proved to be wilful and intended to coerce the women or her family members to satisfy an unlawful demand. The evidence on record falls woeful short of the requisite degree of proof.

16. The judgment and order impugned is unsustainable and is set aside. The accused is acquitted of offence punishable under Section 498-A of the IPC.

17. Bail bond of the accused shall stand cancelled.

19 apeal555.07

18. Fine paid by the accused, if any, be refunded to him.

19. The appeal is allowed and disposed of accordingly.

JUDGE adgokar


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