Bombay High Court
Rajesh Rambhau Khankure And 3 … vs State Of Mah.Thr.Pso Wardha on 16 February, 2018
Bench: R. B. Deo
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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.629 OF 2004


 1        Rajesh s/o. Rambhau Khankure,
          aged about 30 years,

 2        Rambhau s/o. Kisanji Khankure,
          aged about 57 years,

 3        Sau. Ushabai w/o. Rambhau Khankure,
          aged about 45 years,

 4        Umesh s/o. Rambhau Khankure,
          aged about 24 years,

          All residents of Ram Nagar Ward,
          Hinganghat, Tah. Hinganghat,
          District Wardha                              ....       APPELLANTS


           VERSUS


 State of Maharashtra, 
 through Police Station Officer,
 Police Station, Hinganghat,
 District Wardha                                       ....       RESPONDENT

 ______________________________________________________________

               Shri M.I. Dhatrak, counsel for the appellants
   Shri V. P. Maldhure, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                                               CORAM : ROHIT B. DEO, J.

DATE OF DECISION : 16.02.2018 2 apeal629of04 ORAL JUDGMENT :

Challenge is to the judgment and order dated 29.9.2004, rendered by the 3rd Adhoc Additional Sessions Judge Wardha, in Sessions Trial 132 of 2002, by and under which, the appellants – accused are convicted for offence punishable under section 498-A read with section 34 of Indian Penal Code (IPC) and are sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs. 5000/- each and are further convicted for offence punishable under section 304-B read with section 34of the IPC and are sentenced to suffer rigorous imprisonment for eight years. 2 Heard Shri M.I. Dhatrak, the learned counsel for the accused and Shri V. P. Maldhure, the learned Additional Public Prosecutor for the respondent / State.

3 The gist of the prosecution case is thus:-

Deceased Surekha entered into matrimonial alliance with accused Rajesh on 9.5.2001. Concededly, Surekha suffered burn injuries on 16.6.2001 and expired at 7.00 a.m. on 17.6.2001. Shri Anandrao Thakare, the father of deceased (PW 12) lodged oral report 3 apeal629of04 (Exh 70) at Hinganghat Police Station on 17.6.2001 at 7.30 p.m.. The gist of which oral report is that deceased Surekha suffered taunts from accused since she was of sallow complexion. On the basis of the said report offence punishable under section 498-A306 and 304-B of the IPC was registered at the Hinganghat Police Station. Record reveals, that the relatives of the deceased Surekha were not satisfied with the investigation conducted by the Hinganghat police and at their instance the Criminal Investigation Department(CID) took over the investigation some time in September 2001. The completion of the investigation led to submission of the charge sheet in the Court of Judicial Magistrate First Class, Hinganghat, who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exh 15) for the offence punishable under section 498-A304-B read with section 34 of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. The trend and tenor of the cross- examination and the statements recorded under section 313 of the Criminal Procedure Code reveal that the defence is of total denial. 4 Shri M.I. Dhatrak, the learned counsel for the accused submits that the prosecution has failed to establish that the possibility of the accidental death is excluded. Shri Dhatrak invites my attention 4 apeal629of04 to the admissions attracted in the evidence of the Investigating Officer (PW 19) Shri Vinod Wankhede, which is to the effect that the Investigating Officer recorded the statements of Dr. Gupta and Dr. Khandare on 1.2.2002 and the statements reveal that deceased Surekha disclosed to Dr. Gupta and Dr. Khandare that she suffered accidental burns while cooking. Shri M.I. Dhatrak then invites my attention to injury report Exh. 44 which records alleged history of the injury as accidental burns due to gas flames. The injury certificate Exh 44 further records that the condition of the patient was stable, conscious, cooperative and oriented. The submission of the learned counsel is that the failure of the investigating agency to record the dying declaration of deceased Surekha, which dying declaration would have thrown light on the cause of death, is fatal to the prosecution case. The medical history is admissible in evidence, is the submission. Since the deceased Surekha was stable, conscious and well oriented, the possibility of somebody else having narrated the medical history is remote, is the submission. Shri M.I. Dhatrak, would submit, that even if, arguendo, it is assumed that the death of Surekha was suicidal, the prosecution has not established the sine quo non ingredients of offence punishable under section 498-A or 304(B) of the IPC.

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 5                 In   rebuttal,   Shri   V.P.   Maldhure,   the   learned   Additional

Public Prosecutor would submit that the evidence on record clinchingly establishes that the deceased was subjected to cruelty within the meaning of section 498-A of the IPC explanation (a) and (b). The death concededly occurred within 38 days of the marriage and due to burns. The cruelty to which the deceased was subjected was in connection with a dowry demand, is the submission. 6 Section 304-Bwas introduced in the IPC by Dowry Prohibition Amendment Act, 1986 with the avowed object of curbing and eliminating dowry menace. Simultaneously, legislative changes were effected in the Criminal Procedure Code, 1973 and the Indian Evidence ActSection 113-B was introduced in the Indian Evidence Act and offence punishable under section 304 of IPC was made non- bailable and triable by Sessions Court by appropriate amendment to the Criminal Procedure Code.

Section 304-B of the IPC reads thus:

“304-B. Dowry death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 6 apeal629of04 “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation – For the purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 2961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

In view of the explanation to section 304-B which provides that dowry shall have the same meaning insection 2 of the Dowry Prohibition Act, 1961, it would be appropriate to reproduce section 2 of the Dowry Prohibition Act, 1961:

“2. Definition of “dowry” – In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly –

(a) by one party to a marriage to the other party to the marriage, or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before (of any time after the marriage) (in connection with the marriage of the said parties, but does not include) dower or mahr in the case of persons to whom the Muslim Personal Law (Sharirat) applies.

Explanation II – The expression “valuable security” has the same meaning as in section 30of the Indian Penal Code (45 of 1860)”

Sub section 113-B of the Indian Evidence Act which provides for statutory presumption reads thus:

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          "113-B.      Presumption as to dowry death  - When the

question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation – For the purposes of this section, “dowry death”, shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860)”

7 Be it noted, that in contradistinction with the statutory presumption under section 113-A of the Indian Evidence Act, if the prosecution establishes the ingredients of section 304-B of the IPC, the court is obligated to take recourse to the statutory presumption under section 113-B. The legislative intent that the court has no discretion in invoking the statutory presumption is manifested by the employment of expression “shall presume” in section 113-B in contradistinction with employment of the expression “may presume” in section 113-A of the Indian Evidence Act.

8 Axiomatically, the statutory presumption under section 113-B of the Indian Evidence Act is activated only if the prosecution establishes the ingredients of section 304-B IPC beyond reasonable doubt. The ingredients of section 304-B of the IPC are :

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          (i)      The   death   of   the   woman   was   caused   due   to   burns,

bodily injury or due to unnatural circumstances.

(ii) The death should be within seven years of marriage.

(iii) It would be shown that soon before death the woman was subjected to cruelty or harassment by her husband or any relative of the accused.

(iv) The cruelty or harassment was for or in connection with any demand of dowry.

Explanation to section 113-A of the Indian Evidence Act clarifies that for the purposes of section 113-A cruelty shall have the same meaning as in section 498-A of the IPC. Such an explanation or clarification is not legislatively provided either in section 304-B of the IPC or in section 113-B of the Indian Evidence Act. However, it is judicially recognized that for the purposes of section 304-B of the IPC and section 113-B of the Indian Evidence Act, the cruelty which the prosecution is obligated to prove is the cruelty envisaged under section 498-A of the IPC. It would be apposite to refer to the enunciation of law by the Apex Court in Smt. Shanti and another v. State of Haryana, AIR 1991 Supreme Court 1226. The relevant observations of which judgment read thus:-

“6. Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under S. 498-A makes any difference. The submission of 9 apeal629of04 the learned counsel is that the acquittal under S. 498-AIPC would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that S. 304D and S.498-A IPC, are mutually exclusive and that when once the cruelty envisaged in S. 498-A IPC culminates in dowry death of the victim, S. 304-B alone is attracted and in that view of the matter the appellants were acquitted under S.498-A IPC. It can therefore be seen that the High Court did not hold that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of S.304-B IPC has been established. Therefore the mere acquittal of the appellants under S.498-A IPC in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and sections 304-b and 498-A cannot be held to be mutually exclusive. These provisions deal with two distinct offences. It is true that “cruelty” is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of “cruelty”. In S.304-B there is no such explanation about the meaning of “cruelty” but having regard to the common background to these offences we have to take that the meaning of “cruelty or harassment” will be the same as we find in the explanation to S.498-A under which “cruelty” by itself amounts to an offence and is punishable. UnderSection 304-B as already noted, it is the “dowry death” that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in S.498-A and the husband or his relative would be liable for subjecting the woman to “cruelty” any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under S. 304-B can be convicted u/ S.498-A without charge being there, if such a case is made out. But from the point of view of 10 apeal629of04 practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under S. 498-A in view of the substantive sentence being awarded for the major offence under S.304-B.

(Emphasis supplied) Pivotal issue in the present appeal is whether the prosecution has proved beyond reasonable doubt that the deceased Surekha was subjected to cruelty within the meaning of section 498-A of the IPC. Concededly, Surekha suffered burns and expired within 38 days of the marriage. If the prosecution establishes that she was subjected to cruelty within the meaning of section 498-A of the IPC for or in relation to demand for dowry, the statutory presumption under section 113-B of Indian Evidence Act would stand activated.

 9                 Section 498-A of the IPC 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 file.

Explanation – For the purpose of this section, “cruelty” means-

(a) any wilful conduct which is of such a nature as is 11 apeal629of04 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 scrutiny or is on account of failure by her or any person related to her to meet such demand.)”

For the purposes of section 498-A of the IPC cruelty is statutorily defined to mean such willful 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) or harassment, whether the harassment is with a view to coerce the women or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by the woman or any other person related to her to meet such demand. 10 It is well settled, and I need not burden the judgment with the plethora of authorities enunciating the law, that the cruelty which the prosecution must establish to bring home charge under section 498-A of the IPC is graver than the cruelty which may constitute a matrimonial offence or which may furnish a ground for claiming relief under a matrimonial law. Cruelty is statutorily defined. The use of the 12 apeal629of04 expression willful brings into play an element of mens rea. The willful conduct must be of such 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) or harassment, where the harassment is with a view to coerce the women or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by the woman or any other person related to her to meet such demand.

11 Axiomatically, the conduct must be willful, persistent and continuous. Behavioral aberrations which may constitute cruelty for the purposes of matrimonial law may not constitute cruelty for the purposes of section 498-A of the IPC. The explanation (b) of section 498-A taken within its sweep harassment, with a view to coerce the women or her relatives to fulfill an unlawful demand. The legislative intent is that the harassment must be actuated by an intention of coercing the woman or her relatives to fulfill an unlawful demand. The prosecution is obligated to prove not only that a demand was made but to further prove that the demand was accompanied by harassment or illtreatment.

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 12                The evidence on record must be tested on the anvil of the

 statutory provisions referred to supra.



 13                The First Information Report dated 17.6.2001 lodged by

PW 12 Anandrao Thakare, the father of the deceased is conspicuously silent on any demand for dowry. The First Information Report recites that the deceased Surekha suffered taunts due to her sallow complexion and that she apprehended danger to her life from accused. The prosecution has examined as many as twenty witnesses to bring home the charge under section 498-A and 304-B of the IPC. The material witnesses from the perspective of the prosecution are PW 1 Shrirang Kolte, PW 4 Shankare Mule, PW 11 Baynabai Thakre who is the grandmother of the deceased, PW 12 – Anandrao Thakre, the father of the deceased, PW 13 Subhadrabai Thakre, the mother of the deceased, PW 14 Diwakar Thakre, the uncle of the deceased and PW 15 Pinglabai Karkade a friend of the deceased Surekha. The submission of the learned APP Shri V.P. Maldhure is that testimonies of these witnesses conclusively establish that the deceased Surekha was subjected to cruelty and that the cruelty was for or in relation to dowry demand.

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 14                PW 1 Shrirang Kolte is examined to bring on record that

during the marriage settlement talks accused Rambhau demanded gold chain of 20 grams, a gold ring of 6 grams, clothes of the bridegroom and expenses for two ST buses. The deposition is that it was thereafter agreed that PW 12 Anandrao would give to the accused a gold chain of 10 grams and gold ring of 4 grams, expenses of one bus and the clothes for bridegroom. PW 1 states that when he met Surekha in a marriage on 29.5.2001, she disclosed that the accused taunted her. PW 1 states that the disclosure was to the effect that accused Rajesh used to tell Surekha that her complexion was black and that she was not engaging in conversation with his friend. Accused Usha used to tell her that she was not working properly and that accused Rajesh and Rambhau used to express that they were expecting much more from her father. In the cross-examination, it is elicited that at the relevant time PW 1 was working as a police sub inspector. It is elicited that the articles, ornaments and clothes were traditionally given out of love and affection and that PW 12 Anandrao Thakare gifted the articles, ornaments and clothes as per his financial condition.

The statement of PW1 is recorded on 11.2.2002. The CID took over the investigation on 22.9.2001. The defence was obviously not alive to the settled position of law that it was necessary to seek an 15 apeal629of04 explanation from the Investigating Officer as regards the delay in recording the statement under section 161 of the Code of Criminal Procedure. (Randhir and others v. State of Punjab, AIR 1973 SC 1409).

The failure of the defence to be alert and alive to the settled position of law does not however detract from the fact that the undue delay of 5 months in recording the 161 statement is inexplicable. This court is conscious of the fact that an explanation was not sought from the Investigating Officer. However, the 161 statement of most of the witnesses are recorded in January or February 2002. The CID which took over the reins of investigation on 22.9.2001 obviously did not justify the confidence reposed by the complainant on its ability and competence. The evidence of PW 1 Shrirang Kolte does not take the case of the prosecution any further. PW 1 Shrirang Kolte does not speak of any illtreatment or harassment to the deceased Surekha, connected with any dowry demand. The disclosure said to have been made by Surekha to the effect that Rajesh and Rambhau were expecting much more from her father cannot be construed by any stretch of imagination, as a disclosure that Rajesh or Rambhau demanded dowry. The only other disclosure is that Rajesh said that Surekha was of black complexion and was not conversing with his 16 apeal629of04 friend and Usha said that Surekha was not working properly. 15 The evidence of PW 4 Shankar Muley is of no assistance to the prosecution to prove illtreatment or harassment since the deposition is that when PW 4 Shankar Muley inquired from Surekha about her marital life, she said nothing since she was with her husband Rajesh.

16 PW 11 Bayanabai is the grandmother of the deceased Surekha. She states that when the deceased and her husband Rajesh visited Nagbhid to attend a marriage, they were invited for tea by the elder daughter of Bayanabai. Deceased Surekha conversed with the witness in the kitchen, accused Rajesh was in the sitting room and the deceased Surekha who was weeping, disclosed that the accused were troubling her by saying that Surekha’s parents did not give proper clothes and did not pay the fare of one ST bus. In the cross- examination every material statement in the examination in chief is brought on record as an omission. The omissions are duly proved in the evidence of the Investigating Officer PW 19. The statement of PW 11 Bayanabai is recorded on 16.1.2002. The evidence of PW 11 Bayanabai must be discarded since the entire evidence on the 17 apeal629of04 disclosure made by the deceased Surekha is omission partaking the character of contradiction.

17 PW 12 Anandrao Thakare is the father of the deceased and the informant. I have noted supra, that the First Information Report (Exh. 106) makes no reference to any unlawful demand much less unlawful demand accompanied by harassment or illtreatment. The report speaks of taunts due to the sallow complexion of the deceased Surekha. PW 12 Anandrao states that deceased Surekha and accused Rajesh came to Nagbhid on 28.5.2001 to attend the marriage of Madhuri, daughter of the cousin brother of PW 12. Surekha disclosed that the accused were complaining about the quality of the clothes gifted to the bridegroom, deceased Surekha also disclosed that accused Rajesh was saying that her complexion is black and was troubling her. She also expressed an apprehension that her life might be in danger, is the deposition. In the cross-examination, it is suggested to PW 12 that the accused are falsely implicated since there was a verbal altercation between PW 12 and the accused on the occasion of ‘Satyanarayan Puja”. The suggestion is denied. The rest of the cross-examination endeavors to bring into focus that the statements in the examination in chief are absent in the First Information Report which renders the 18 apeal629of04 reliability and credibility of the evidence suspect. 18 PW 13 Subhadra Thakare, is the mother of the deceased who has deposed that Surekha disclosed to her that accused Rambhau threatened her that she should bring dowry of Rs.50,000/-. The version of PW 13 that Surekha disclosed a dowry demand is not supported by any other prosecution witness. PW 13 has deposed that according to Surekha she was scolded and taunted in her matrimonial home. Her husband Rajesh used to tell her that she was black in complexion and was dumb. She disclosed that accused Rajesh was complaining about the cost of the dress, the value of the gold chain and ring. PW 13 has further deposed that Surekha disclosed to her that accused Usha criticized her manner of speaking and behavior and the ability to do household work and questioned her culinary skills. PW 13 states that Surekha also disclosed that accused Rajesh beat her. In the next breath PW 13 states that the accused, with common intention, burnt Surekha. In the cross-examination, several omissions are brought on record, some of which are proved in the evidence of PW 18 PSI Balakdas Patil. The endeavor in the cross-examination was to demonstrate that every material and significant statement is an omission. Consideration of the evidence of the scribe of the 161 19 apeal629of04 statement PW 18 would reveal that although the submission of the defence is not entirely correct, PW 17 has indeed indulged in improvements and exaggeration. The evidence that Surekha disclosed that Rs.50,000/- was demanded as dowry, that she was beaten, that her mother in law criticized her culinary skills and ability to do household work, that accused Umesh taunted her and complaint that no dowry was received are omissions which is duly proved in the evidence of PW 18.

19 PW 14 Diwakar Thakare, the uncle of the deceased has deposed that he met Surekha on 30.5.2001 and during the said meeting Surekha disclosed that her husband was taunting her which caused irritation. Deceased Surekha disclosed that her husband was complaining as regards the ornaments and the quality of the clothes, is the deposition. In the cross-examination, it is brought on record that every material and significant statement in the examination in chief is an omission vis-a-vis the 161 statement recorded on 17.6.2001. The omissions are duly proved in the evidence of PW 18 Shri Patil. 20 PW 15 Pinglabai Karkade, a friend of the deceased was examined to bring on record that when the deceased came to Nagbhid 20 apeal629of04 on 27.5.2001, she visited the house of PW 15 on 29.5.2001 and disclosed that her husband was calling her black and that the other inmates of the matrimonial home were complaining that the dowry paid was less. PW 15 states that it was disclosed to her by her friend Surekha that Ushabai criticized her culinary skills and that Rajesh and Umesh were complaining about her ability to converse. Every significant statement in the examination in chief is an omission which is duly proved in the evidence of PW 19. In the teeth of evidence on record, the finding recorded by the learned Sessions Judge that the prosecution has proved offence punishable under section 304-B is clearly sustainable. The prosecution has not established that dowry was demanded much less that the deceased was illtreated or harassed for or in connection with dowry demand. The common thread which runs through the evidence of the prosecution witnesses is that the accused were not satisfied with either jewellery or quality of clothes or the amount of bus fare which were, according to the prosecution, the terms agreed during the marriage negotiations. Demand for dowry must be strictly proved. Expression of dis-satisfaction can not be construed as a demand for dowry. The prosecution witnesses, as a fact, admit that the jewellery and articles were presented as a tradition and as would suit the financial capacity of PW 12 Anandrao. The only 21 apeal629of04 witness who speaks of a dowry demand is PW 13 Subhadra who speaks of a disclosure made by the deceased Surekha that Rs. 50,000/- was demanded as dowry. No other prosecution witnesses corroborates the version of PW 13 that Rs. 50,000/- was demanded as dowry. The learned counsel for the accused is more than justified in the submission that even if the evidence is taken at face value, offence punishable under section 304 part B of IPC is not made out since the demand for or in connection with dowry is not established. The accused are entitled to be acquitted for offence punishable under section 304-B of the IPC.

21 It is already recorded supra, that the statements of most of the prosecution witnesses have been recorded belatedly. In the backdrop of the First Information Report being totally silent on the causes and motive for the illtreatment or harassment other than stating that Surekha was taunted in view of her sallow complexion, the fact that 161 statements are recorded more than six months after the death assumes significance.

22 The evidence of the prosecution witnesses is entirely predicated on the disclosure made by the deceased Surekha. Since this 22 apeal629of04 court has recorded a finding that offence punishable under section 304-B of the IPC is not made out, what is left for consideration is offence punishable under section 498-A of the IPC. Cause of death or circumstances of the transaction leading to death is no longer in issue. The verbal statements of the deceased Surekha are not admissible in evidence under section 32(1) of the Indian Evidence Act since for the purposes of section 498-A cause of death is not a issue. It would be apposite to refer to the following observations of the Apex Court in Bhairon Singh Vs. State of Madhya Pradesh, 2010 ALL SCR 213:

“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.

23 apeal629of04 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 24 apeal629of04 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 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 25 apeal629of04 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 and they must have some proximate relation to the actual occurrence.

Page 948:

26 apeal629of04 “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. Page 95:

Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which 27 apeal629of04 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 498AIPC, 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 498AIPC, 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 498AIPC.

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 Evidence Act and such evidence cannot be looked into for any purpose.

28 apeal629of04

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 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).

29 apeal629of04

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 306IPC 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.”

23 The precedents on proposition that when the only offence left to be considered is 498-A of the IPC, the disclosures made by the deceased are not admissible in evidence, can be multiplied. Suffice it to refer to only one of the several judgments of the Apex Court in Kantilal Martaji Pandor vs. State of Gujarat and another reported in 30 apeal629of04 (2013) 8 SCC 781 are also relevant:

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 306IPC. 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-AIPC.

18. For taking this view, we are supported by the decision of this Court in Inderpal v. Stateof m.P. In this case, Inderpal was charged and tried for the offence under Section 306IPC, 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-AIPC. 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 31 apeal629of04 attributed to the deceased, none of the 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 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.”

24 In the light of the enunciation of law by the Apex Court, there is absolutely no admissible evidence to bring home the charge under section 498-A of the IPC. Even if arguendo, the verbal statements are considered, the disclosures does not establish illtreatment or harassment of the nature and extent, willfully meted 32 apeal629of04 out, as is likely to drive deceased Surekha to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) or harassment, where the harassment is with a view to coerce the women or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by the woman or any other person related to her to meet such demand. Explanation (b) of section 498-A of the IPC is not attracted since the evidence on demand is virtually non-existent. It is most unfortunate that Surekha left for heavenly abode within 37 days of the marriage. The cause of death is blurred. The investigation is not only unfair but is dishonest. The failure of the prosecution to examine the two doctors to whom Surekha disclosed that she suffered accidental burns while cooking is suggestive of dishonesty. The failure to examine the two doctors may or may not be attributed to inefficiency or incompetence of the CID. However, the fact that the defence made no effort to examine Dr. Gupta and Dr. Khandare despite the history of injury recorded in Exh. 44 and the categorical admission of the Investigating Officer, surely reflects poorly on the defence. I refrain from making any further observations. In the light of the discussion supra, I pass following order:

                                            33                                        apeal629of04




                (i)      The judgment and order impugned is unsustainable and is 

                         set aside.  

                (ii)     The accused are acquitted of offence punishable under 

                         section 498-A and 304-B of the IPC.

                (iii)    The bail bonds of the accused shall discharged.  Fine paid 

                         by the accused, if any, shall be refunded.

                (iv)     The appeal is allowed.



                                                                        JUDGE




RSB

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