Tuesday, 21 June 2016

Whether dying declaration given by wife is admissible for conviction of husband U/S 498A of IPC simplicitor?

Before discussing the evidence, it would
be appropriate to refer to the question which had
come up for consideration before the Hon'ble the
Supreme Court in the matter of Bhairaon Singh vs.
State   of   M.P.   (supra).   The   question   recorded   by
the Hon'ble Supreme Court in the above Judgment in
Para 2 is as under:­
"2.  The question that arises for consideration
in this appeal by special leave is : in a case
where accused has been acquitted of the offence
punishable under Sections 304­B and 306, IPC,
and the death of wife is neither homicidal nor
suicidal   but   accidental,   whether   the   oral
evidence of witnesses about what the deceased
had   told   them   against   the   accused   about   the
treatment meted out to her is admissible under
Section   32(1)   of   the   Evidence   Act   to   sustain
conviction under Section 498­A IPC?"

 The Hon'ble Supreme Court then dealt with
the provisions under Section 32(1) of the Indian
Evidence   Act,   1872   and   the   concerned   law   on   the
subject and after referring to the evidence of the
brothers of the victim in that matter, observed in
Para 11 as under:
"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   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 circumstances 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."
8. In view of the above observations of the
Hon'ble the Supreme Court, it is clear that what
victim   told   PW­1   and   PW­2   against   the   accused
about the alleged demand and harassment would be
inadmissible   evidence   under   Section   32(1)   of   the
Indian Evidence Act and the said evidence cannot
be looked  into as here also  death  appears  to be
accidental. 
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
   CRIMINAL APPEAL NO.93 OF 2003
Subhash s/o Purandas Pawar,

       VERSUS             
The State of Maharashtra  
  
              CORAM:   A.I.S. CHEEMA, J.
  
   DATE OF PRONOUNCING JUDGMENT: 15TH JUNE, 2016.


1. The Appellant ­ original accused has been
convicted   in   Sessions   Case   No.36   of   2002   by
Additional   Sessions   Judge,   Jalgaon   vide   Judgment

dated   16th   January   2003,   under   Section   498­A   of
the Indian Penal Code, 1860 ("IPC" in brief) and
has been sentenced to suffer rigorous imprisonment
for three years and to pay fine of Rs.2000/­. In
default   of   fine,   he   has   been   directed   to   suffer
further rigorous imprisonment for six months. The
accused   came   to   be   acquitted   of   offence   under
Section 306 of IPC with which also he was charged.
2. In brief, the case of the prosecution is
as follows:
A). Contents of F.I.R. show that Sunita, the
daughter   of   PW­1   Changdeo   Tulshiram   Rathod   (here
after referred as "victim") was married with the
accused   on   18th   April   2000.   After   marriage,   she
went to reside with the accused at Mordad Tanda.
Later   on   accused   was   appointed   as   teacher   at
Akadikheli,   Tq­Nandurbar   and   the   accused   started
residing   at   place   called   Mhaswad­Pimpri.   On
holidays he used to come down to Mordad Tanda. For

some time victim was treated well. In April 2001
victim   came   to   the   place   of   her   father,
complainant   PW­1   Changdeo   at   Walthan   Tanda.   She
told her father that her husband is required to go
up and down between Mhaswad­Pimpri and Akadikheli
and   has   been   asking   for   Rs.50,000/­   to   buy
motorcycle.   She   had   come   to   her   father   for   2­3
times   but   did   not   ask   for   money   and   went   back,
because   of   which   the   accused   had   beaten   her   and
was giving her physical and mental ill­treatment.
The   complainant   explained   to   her   and   sent   her
back. Later on she came for delivery and at that
time also she told about this fact. She delivered
a son (Saurabh ­ another victim). When the accused
came to take back victim Sunita, he demanded money
from   the   complainant   to   buy   motorcycle.
Complainant   told   him   that   he   does   not   have   the
money.   As   such   the   accused   beat   victim   at   his
house.   One   Kantilal   Rathod   was   present   at   that
time.   On   24th   December   2001   victim   Sunita   along
with victim Saurabh and accused came to the place

of the complainant Changdeo. On 25th December 2001
there was programme of "Nawas". Thereafter accused
again asked for Rs.50,000/­ to purchase motorcycle
and picked up argument. Accused then started to go
with   the   victim   to   Mordad   Tanda.   At   that   time
complainant sent his son Sandeep PW­2 along with
them.   After   going   back   home,   accused   again   beat
victim. On 26th December 2001 PW­2 Sandeep along
with victim Sunita and Saurabh started to come by
train to Walthan. Accused was also with them. At
that time victim jumped from the running train and
fell  below bridge.  In such act of hers,  she  and
the   infant   Saurabh   died.   Thus   the   complaint   was
filed vide Exhibit 11.
B). Before   the   complaint   was   filed   on   27th
December   2011,   on   26th   December   2001   after   the
incident,   Kotwal   of   village   Jamada   had   filed
Accidental   Death   (A.D.)   Report   (Exhibit   13)   and
A.D.   59   of   2001   was   registered   by   PW­3   Yogiraj.
PW­3 Yogiraj had gone to the spot and did inquest

panchnamas   Exhibit   14   and   15   of   the   victims   and
spot panchnama Exhibit 16 was recorded. When FIR
Exhibit   11   was   filed,   the   offence   came   to   be
registered on 27th December 2001 in the afternoon.
The   offence   was   investigated   by   PW­3   A.P.I.
Yogiraj and after investigation, charge­sheet came
to be filed.
C). Charge was explained to the accused under
Section   498­A   and   306   of   IPC.   He   pleaded   not
guilty. His defence is of denial.
3. In   the   trial   Court,   the   prosecution
examined   complainant   PW­1   Changdeo   and   his   son
PW­2   Sandeep.   The   investigating   officer   PW­3
Yogiraj   was   also   examined.   The   documents   of   AD
Report (Exhibit 13), inquest panchnamas Exhibit 14
and Exhibit 15, and spot panchnama Exhibit 16 were
admitted   by   the   accused   and   thus   the   documents
were exhibited. The post­mortem reports were also
not disputed and are at Exhibit 17 and Exhibit 18.

4. The   trial   Court   considered   the   evidence
which was brought and recorded findings that the
prosecution   failed   to   prove   that   the   victim   had
committed suicide or that the accused had abetted
the committing of suicide by the victim Sunita. It
also held that it was not proved that Sunita was
subjected to cruelty of such a nature which would
drive   her   to   commit   suicide   or   to   cause   grave
injury to herself. The trial Court, however, held
that   between     April   2001   to   26th   December   2001
victim   Sunita   had   been   harassed   by   the   accused
with a view to coerce her to meet unlawful demand
of Rs.50,000/­. In support of such findings, trial
Court   recorded   reasons   and   while   trial   Court
acquitted   the   accused   for   offence   under   Section
306 of IPC, it convicted the accused under Section
498­A of IPC.
5. I   have   heard   learned   counsel   for   the
Appellant­accused.   According   to   the   learned

counsel, the trial Court found that the death of
the   victim   Sunita   and   infant   Saurabh   was   due   to
accidental   fall.   According   to   him,   the   evidence
did not show that the victim had jumped from the
train.   Rather   it   was   a   case   of   accidental   fall.
According to the counsel, when Section 306 of IPC
was held as not proved, the evidence of PW­1 and
PW­2,   who   were   interested   witnesses,   regarding
what Sunita had told them, was not admissible and
on   the   basis   of   such   evidence   the   trial   Court
could   not   have   held   the   accused   guilty.   The
learned   counsel   relied   on   the   case   of  Bhairaon
Singh vs. State of M.P., AIR 2009 Supreme Court,
2603.   Learned   counsel   submitted   that   if   what
Sunita   informed   her   father   and   brother   was
ignored,   what   remains   is   evidence   of   the   father
that   the   accused   had   at   times   asked   for
Rs.50,000/­   to   buy   motorcycle.   According   to   the
counsel, only because money was asked would not be
reason to conclude that the same was being asked
as dowry or to brand it as illegal. According to

him, PW­1 Changdeo  did not depose that the victim
was harassed because the amount was not paid. The
evidence of PW­2 Sandeep claiming that the victim
was  beaten  at the house  of her parents  when  the
amount was not paid, was not corroborated by PW­1
Changdeo.   There   was   also   delay   in   filing   F.I.R.
Thus,   according   to   the   counsel,   there   was   no
sufficient evidence to hold the accused guilty.
6. Against   this,   the   learned   A.P.P.
submitted   that   the   trial   Court   itself   in   the
Judgment referred to the evidence of PW­2 Sandeep
along   with   the   recitals   in   the   spot   panchnama
which   showed   that   on   26th   December   2001   itself
PW­2 Sandeep had told the police official that the
victim had committed suicide by jumping from the
train and still the police did not take down his
statement as FIR and thus delay in filing of the
FIR   till   27th   December   2001   was   explained   and
could not be said to be fatal to the prosecution.
According to the learned A.P.P., the trial Court

has   given   sufficient   reasons   for   holding   the
accused guilty under Section 498­A of IPC. There
was evidence that the accused was asking for money
from   his   father   in   law.   Thus,   according   to   the
learned   A.P.P.,   the   Appeal   deserves   to   be
dismissed.
7. Before discussing the evidence, it would
be appropriate to refer to the question which had
come up for consideration before the Hon'ble the
Supreme Court in the matter of Bhairaon Singh vs.
State   of   M.P.   (supra).   The   question   recorded   by
the Hon'ble Supreme Court in the above Judgment in
Para 2 is as under:­
"2.  The question that arises for consideration
in this appeal by special leave is : in a case
where accused has been acquitted of the offence
punishable under Sections 304­B and 306, IPC,
and the death of wife is neither homicidal nor
suicidal   but   accidental,   whether   the   oral
evidence of witnesses about what the deceased
had   told   them   against   the   accused   about   the
treatment meted out to her is admissible under
Section   32(1)   of   the   Evidence   Act   to   sustain
conviction under Section 498­A IPC?"

 The Hon'ble Supreme Court then dealt with
the provisions under Section 32(1) of the Indian
Evidence   Act,   1872   and   the   concerned   law   on   the
subject and after referring to the evidence of the
brothers of the victim in that matter, observed in
Para 11 as under:
"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   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 circumstances 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."
8. In view of the above observations of the
Hon'ble the Supreme Court, it is clear that what
victim   told   PW­1   and   PW­2   against   the   accused
about the alleged demand and harassment would be
inadmissible   evidence   under   Section   32(1)   of   the
Indian Evidence Act and the said evidence cannot
be looked  into as here also  death  appears  to be
accidental. In the present matter, the trial Court
recorded   reasons   and   in   Para   19   of   the   Judgment
came   to   the   conclusion   that   the   prosecution   had
failed   to   disclose   existence   of   any   act   which
would prompt victim Sunita to end her infant son's
life.   Trial   Court   also   concluded   that
uncorroborated   evidence   of   PW­2   Sandeep   that   the
victim jumped from the train and committed suicide
could   not   be   believed.   Trial   Court   found   that
probability of accidental death of Sunita from the
door of the train cannot be ruled out. In Para 20
of   its   Judgment,   trial   Court   held   that   the

evidence   adduced   by   the   prosecution   was   not
sufficient to come to the only conclusion that the
victim Sunita committed suicide when the train was
passing   over   bridge.   The   prosecution   has   not
challenged   these   findings   or   the   acquittal   under
Section   306   of   IPC   by   filing   Appeal.   Reasons
recorded   by   the   trial   Court   for   acquittal   under
Section   306   of   IPC   appear   to   be   in   order.   Thus
suicide has not been proved. This being so, I have
to proceed further to see if there is acceptable
evidence under Section 498­A of IPC.
9. The   trial   Court   discussed   the   evidence
relating to cruelty from Para 21 of its Judgment.
It discussed the evidence of PW­1 and PW­2 and in
the process, discussed the evidence as to what the
victim   had   been   telling   regarding   the   alleged
cruelty.   Keeping   in   view   the   Judgment   in   the
matter   of  Bhairaon   Singh   vs.   State   of   M.P.,
discussed   above,   I   proceed   to   refer   to   the
evidence of PW­1 and PW­2, but I will ignore what

these   witnesses   stated   as   far   as   regards
information received from victim Sunita before the
incident relating to the train took place.
10. The   evidence   of   PW­1   Changdeo   earlier
refers to the marriage taking place and then there
is   reference   regarding   what   Sunita   had   been
telling. Then the evidence is that after delivery
of Sunita, accused had come to the house of PW­1
Changdeo   and   accused   had   told   PW­1   that   he
required   money   to   purchase   motorcycle.   According
to   PW­1,   he   told   accused   that   he   does   not   have
money   and   he   requested   accused   to   take   victim
Sunita with him. PW­1 deposed that accused picked
up   quarrel   with   him   and   told   victim   Sunita   to
immediately proceed along with him. PW­1 has then
deposed   that   after   about   a   month   of   delivery   of
Sunita, she had gone to the house of the accused.
Later  on, on 24th December  2001  she  came  to the
house   of   this   witness   along   with   child   and   the
accused.   On   25th   December   2001   it   appears   that

there was a ceremony of the Nawas of the child of
the   accused   at   the   house   of   PW­1   Changdeo.   The
evidence   shows   that   for   such  Nawas  (ceremony   to
fulfill   promise   made   to   deity   on   fulfillment   of
wish made earlier), the accused had arranged for
goat.   According   to   PW­1,   after   the   ceremony   the
accused again asked for Rs.50,000/­ for purchasing
motorcycle   immediately.   He   deposed   that   he   sent
the victim Sunita along with the accused, and his
son   had   also   gone   to   the   house   of   the   accused.
Thus,   regarding   the   alleged   demand   made   by   the
accused, this is the evidence of PW­1. 
11. Now, if the evidence of PW­2 Sandeep is
considered,   his   evidence   also   refers   to   what
Sunita   had   been   telling.   He   then   deposed   that
victim Sunita had come for delivery to their house
and   after   the   delivery,   the   accused   came.
According to this witness, accused told parents of
PW­2, to provide him money and his father (PW­1)
told   accused   that   he   is   not   having   money.   This

witness   deposed   that   while   at   his   house,   the
accused   beat   victim   Sunita.   The   further   evidence
of PW­2 is that after the  Nawas  on 25th December
2001,   the   accused   again   demanded   money   from
parents of PW­2 and that accused beat the victim
and   also   threatened   father   of   the   witness.   The
learned   counsel   for   the   Appellant­accused   has
rightly   submitted   that   although   PW­2   Sandeep
claims that on both the occasions when the accused
was   at   the   house   of   his   father­in­law   and   made
demand,   accused   beat   the   victim,   the   complainant
PW­1 himself did not depose that the accused had
beaten   victim   Sunita   in   the   house   of   her   own
parents   or   that   accused   had   threatened   the
father­   in­law.     PW­2   in   fact   in   the   crossexamination
  even   claimed   that   victim   Sunita   had
been beaten in presence of her parents. However,
PW­1 did not depose that the victim was beaten by
the accused in his presence.  
12.   Looking to the above evidence, the only

material   which   was   brought   on   record   by   the
prosecution which is admissible evidence, is that
the   accused   had   made   the   demand   of   money.   PW­1
claimed   that   the   accused   had,   in   this   context
quarreled,   but   no   particulars   of   the   alleged
quarrel   are   mentioned   by   PW­1.   No   material   has
been   brought   that   for   non­fulfillment   of   such
demand the victim was subjected to any particular
harassment in the presence of PW­1 and PW­2. This
being   so,   after   ignoring   the   inadmissible
evidence, the evidence which can be relied on, is
not   sufficient   to   conclude   offence   under   Section
498­A of IPC. I thus find that I am not able to
maintain   conviction   as   recorded   by   the   trial
Court. The Judgment of the trial Court needs to be
interfered with as not maintainable. The same is
substantially based on inadmissible evidence. 
13. For   the   reasons   recorded   above,   I   pass
the following order:­

           O R D E R
(I) The Appeal is allowed.
(II)   The impugned Judgment and order  of
conviction and sentence as passed against
the Appellant ­ accused under Section 498­
A   of   the   Indian   Penal   Code,   1860   is
quashed and set aside.
(III) The   Appellant   ­   accused   is
acquitted   of   the   offence   under   Section
498­A of the Indian Penal Code, 1860.
(IV)   The bail bonds of the Appellant are
cancelled.
                             [A.I.S. CHEEMA, J.]

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