Evidence Act, 1872: s. 32 – Dying declaration – Admissibility of – On facts, suicide attempt by the wife soon after marriage due to harassment and dowry demands of husband and the family members – Settlement between the parties, however, harassment continued and wife committed suicide within two years of marriage – Conviction of husband, his mother and two brothers u/ss. 304B and 498A – Appellate court acquitted the brothers but maintained the conviction of the husband and the mother – However, the High Court acquitted the husband and his mother u/s.304B while upheld their conviction u/s.498A and sentenced accordingly – Husband’s case before this Court that since he was acquitted u/s. 304B, thus, statement of wife could not be relied upon to sustain his conviction u/s. 498A as it would not fall within the ambit of s. 32(1) – Held: U/s. 32, the phrase ‘cases in which the cause of that person’s death comes into question’ is broader than merely referring only to cases where there is a charge of murder, suicide or dowry death – s. 32(1) has been used to admit statements in a case where the charge is of a different nature or even in a civil action – Second part of the s. 32(1) specifies that such statements are relevant ‘whatever may be the nature of proceeding in which the cause of death comes into question – Test of admissibility u/s. 32(1) is that ‘the cause of death’ must come into question in the case regardless of the nature of the case – Purpose for which such evidence is being sought should be a part of the ‘circumstances of the transaction’ relating to the death – Whether the charge relating to death is proved or not is immaterial with respect to its admissibility – On facts, it is not necessary to examine whether the statement of the wife can be admitted u/s 32(1) – Other evidence on record clearly proves the husband’s guilt beyond reasonable doubt – Furthermore, evidence of the mother of the deceased was reliable – Thus, the order passed by the High Court does not call for interference – Penal Code, 1860 – ss. 304B and 498A.
Dismissing the appeal, the Court
HELD: 1.1 Section 32 of the Evidence Act, 1872 relates to the admissibility of statements made by a person who cannot be called as witness. The Section itself specifies the circumstances under which such statements become relevant. In the instant case, the concern is with one such circumstance, that is, when the person who made the statement is dead. [Para 9][681-D-E]
1.2 To rely on Section 32(1) of the Evidence Act, one of the main conditions laid out in the sub-section is that the issue must arise “in cases in which the cause of that person’s death comes into question”. [Para 11][682-D]
1.3 The phrase “cases in which the cause of that person’s death comes into question” is broader than merely referring only to cases where there is a charge of murder, suicide, or dowry death. There have been instances where Courts have used Section 32(1) of the Evidence Act to admit statements in a case where the charge is of a different nature or even in a civil action. This is abundantly clear from the second part of Section 32(1) of the Evidence Act which specifies that such statements are relevant “whatever may be the nature of the proceeding in which the cause of his death comes into question”. Illustration (a) to Section 32 of the Evidence Act refers to a statement made by a deceased in a rape case which may be admitted under the section, which was the position in India even prior to the enactment of the Evidence Act. [Para 14][684-B-D]
1.4 The test for admissibility under the Section 32(1) of the Evidence Act, is not that the evidence to be admitted should directly relate to a charge pertaining to the death of the individual, or that the charge relating to death could not be proved. Rather, the test appears to be that the cause of death must come into question in that case, regardless of the nature of the proceeding, and that the purpose for which such evidence is being sought to be admitted should be a part of the ‘circumstances of the transaction’ relating to the death. [Para 17][686-D-F]
1.5 In some circumstances, the evidence of a deceased wife with respect to cruelty could be admissible in a trial for a charge under Section 498A IPC under Section 32(1) of the Evidence Act. There are, however, certain necessary pre-conditions that must be met before the evidence is admitted. The first condition is that her cause of death must come into question in the matter. This would include, for instance, matters where along with the charge under Section 498A IPC, the prosecution has also charged the accused under Sections 302, 306 or 304B IPC. It must be noted however that as long as the cause of her death has come into question, whether the charge relating to death is proved or not is immaterial with respect to admissibility. The second condition is that the prosecution will have to show that the evidence that is sought to be admitted with respect to Section 498A IPC must also relate to the circumstances of the transaction of the death. How far back the evidence can be, and how connected the evidence is to the cause of death of the deceased would necessarily depend on the facts and circumstances of each case. No specific straitjacket formula or rule can be given with respect to this. [Paras 20-22][689-F-H; 690-A-B]
Gananath Pattnaik v. State of Orissa (2002) 2 SCC 619 : [2002] 1 SCR 845; Inderpal v. State of MP (2001) 10 SCC 736; Bhairon Singh v. State of Madhya Pradesh (2009) 13 SCC 80 : [2009] 9 SCR 875; Kantilal Martaji Pandor v. State of Gujarat (2013) 8 SCC 781 : [2013]
8 SCR 137 – Partly Overruled.
1.6 It is not necessary for this Court to undertake the exercise to determine whether the statement of the deceased can be admitted under Section 32(1) of the Evidence Act. The appeal can be decided even without considering this aspect, as the other evidence on record clearly proves the appellant’s guilt beyond reasonable doubt. [Para 24][690-E]
1.7 The deceased’s wife was being harassed is clear from the evidence of PW-3 (mother of the deceased). She had specifically stated in her chief examination that within few days of their marriage, the appellant brought the deceased back to her parental home with the threat that if extra dowry was not given, he would leave her and marry another “beautiful” girl. As a result of such harassment, the deceased allegedly attempted suicide for the first time by consuming poison. While she was being treated in the hospital, a settlement was reached between the parties, to which appellant was also a part, wherein it was agreed that no further demands for dowry would be made. This agreement was exhibited before the trial court. Although the High Court indicated that the said settlement was not admissible in evidence, the fact of its existence has been deposed by PW-9, who is an independent witness, as well as by PW-3. Further, it was stated by PW-3 in her chief examination that even after the settlement, the appellant had continued to ill-treat the deceased. The deceased, due to the ill-treatment faced by her had ultimately committed suicide by hanging herself with a saree. [Para 25][690-F-H; 691-A]
1.8 There are concurrent findings of the courts below upholding the reliability of the evidence of PW-3. The submission of the appellant that the evidence of PW-3 is unreliable because she is the mother of the deceased, cannot be accepted. The evidence tendered by the related or interested witness cannot be discarded on that ground alone. However, as a rule of prudence, the Court may scrutinize the evidence of such related or interested witness more carefully. [Para 26][691-B-C]
1.9 There is no reason to interfere with the impugned judgment passed by the High Court in confirming the conviction of the appellant under Section 498A IPC and sentencing him to undergo rigorous imprisonment for one year. [Para 27][691-F] Queen v. Bissorunjun Mookerjee (1866) 6 W.R. Cr. 75; Lalji Dusadh v. King Emperor AIR 1928 Pat 162; Parmanand Ganga Prasad v. Emperor AIR 1940 Nag 340; Pakala Narayana Swami v. King Emperor AIR 1939 PC 47; Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Ilangovan v. State of T.N. (2020) 10 SCC 533 - referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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