Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 1150

2009(5) Supreme 153
SUPREME COURT OF INDIA
D.K. Jain and R.M. Lodha, JJ.
Bhairon Singh — Appellant
versus
State of Madhya Pradesh — Respondent
Criminal Appeal No. 1124 of 2009
(Arising out of S.L.P. (Crl.) No.6816/2008
Decided on : 29-05-2009

Advocates appeared:
For the Appellant :R.P. Gupta, Sr. Adv., Jamshed Bey, Parmanand Gaur, Advocates.
For the Respondent(s):Ms. Vibha Datta Makhija, Advocates.

IMPORTANT POINT
Statement of a dead person is admissible in law if statement is as to the cause of death or as to any of circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question.

Headnote:Indian Penal Code, 1860 – Sections 304-B and 306, 498A – Evidence Act – Section 32 (1) – Death by asphyxia due to drowning – Dead body of deceased found in a well in village -Deceased married appellant, about 10 years before her death – Prosecution case that after one year of Gauna, accused subjected his wife to torture and harassment – The accused would ask his wife to bring Rs. 1 lac to enable him to start business – Deceased told incidence of torture and harassment to her brothers (PW-4) and (PW-5) – Trial court held that it was not possible to conclude that accused committed murder of deceased ,there was no evidence to prove that deceased had committed suicide and that deceased had fallen into well accidentally and she died – Trial court, accordingly, acquitted accused of offence punishable under Sections 304B and 306, IPC – Relying upon the testimony of PW-4 and PW-5, two brothers of deceased, trial court, however, held that accused guilty under Section 498A, IPC and Section 3 of Dowry Prohibition Act, 1961 – On appeal, High Court set aside conviction and sentence under Section 3 of Dowry Prohibition Act, 1961 but maintained conviction and sentence under Section 498A, IPC – Appeal – Only evidence to bring home charge under Section 498A, IPC, was 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 arrange a job for him or a cash of Rs.1 lac was given to enable him to do some business – Trial court as well as High Court relied on evidence of PW-4 and PW-5 and held that charge under Section 498A, IPC, against accused was proved – Apart from statement attributed to deceased, none of the witnesses had spoken anything which they had seen directly insofar as torture and harassment to deceased was concerned – Held evidence of PW-4 and PW-5 about what deceased had told them against accused about torture and harassment was inadmissible under Section 32(1) of Evidence Act and such evidence could not be looked into for any purpose – Statement of a dead person is admissible in law if statement is as to the cause of death or as to any of circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question – What had been deposed by PW-4 and PW-5 had no connection with any circumstance of transaction which resulted in her death – Since for an offence under Section 498A simpliciter, question of death was not and could not be an issue for consideration – Hence evidence of PW-4 and PW-5 was hardly an evidence in law to establish such offence – In facts and situation Section 32(1) of the Evidence Act did not get attracted – Conviction of appellant set aside – Appeal allowed. (Paras 10, 11, 16 to 18)
       Facts of the Case :
        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 304-B 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?
       Findings of the Court :
        Only evidence to bring home charge under Section 498A, IPC, was 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 arrange a job for him or a cash of Rs.1 lac was given to enable him to do some business. Trial court as well as High Court relied on evidence of PW-4 and PW-5 and held that charge under Section 498A, IPC, against accused was proved. Apart from statement attributed to deceased, none of the witnesses had spoken anything which they had seen directly insofar as torture and harassment to deceased was concerned. Held evidence of PW-4 and PW-5 about what deceased had told them against accused about torture and harassment was inadmissible under Section 32(1) of Evidence Act and such evidence could not be looked into for any purpose. Statement of a dead person is admissible in law if statement is as to the cause of death or as to any of circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question. What had been deposed by PW-4 and PW-5 had no connection with any circumstance of transaction which resulted in her death. Since for an offence under Section 498A simpliciter, question of death was not and could not be an issue for consideration. Hence evidence of PW-4 and PW-5 was hardly an evidence in law to establish such offence. In facts and situation Section 32(1) of the Evidence Act did not get attracted. Conviction of appellant was set aside. Appeal was allowed.
       Result : Appeal allowed.

JUDGMENT

R.M. Lodha, J.—

1. Leave granted.

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 304-B 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?

3. Section 32(1) of the Indian Evidence Act, 1872 reads thus:

“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.— Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:—

(1) when it relates to cause of death.—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.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

4. The legal position relating to the admissibility of evidence under Section 32(1) has come up for consideration before this court time and again. It is not necessary to multiply the authorities in this regard as reference to a three Judge Bench decision of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra1, 1984 (4) SCC 116 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 conditions 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 fals

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2009 Supreme(SC) 1150

2009(5) Supreme 153SUPREME COURT OF INDIAD.K. Jain and R.M. Lodha, JJ.Bhairon Singh — AppellantversusState of Madhya Pradesh — RespondentCriminal Appeal No. 1124 of 2009(Arising out of S.L.P. (Crl.) No.6816/2008Decided on : 29-05-2009

IMPORTANT POINT Statement of a dead person is admissible in law if statement is as to the cause of death or as to any of circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question.

Cases Referred (3)

2009(5) Supreme 153
SUPREME COURT OF INDIA
D.K. Jain and R.M. Lodha, JJ.
Bhairon Singh — Appellant
versus
State of Madhya Pradesh — Respondent
Criminal Appeal No. 1124 of 2009
(Arising out of S.L.P. (Crl.) No.6816/2008
Decided on : 29-05-2009

IMPORTANT POINT
Statement of a dead person is admissible in law if statement is as to the cause of death or as to any of circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question.