KERALA HIGH COURT
A.M. Shaffique and Annie John, JJ.
Appukuttan —Appellant
versus
State of Kerala —Respondent
Crl.A.No.534 of 2013
Decided on 20.2.2018

IMPORTANT POINTS
1. In order to attract Section 498A IPC, there must be a cruelty, mental as well as physical, so as to cause grave injury or danger to life, limb or health and there must be harassment with a view to coerce her to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand.
2. Evidence of dying declaration u/s 32(1) cannot be admitted to prove offence under Section 498A IPC.

Headnote:Indian Penal Code, 1860—Sections 498A and 302—Accused appellant used to torture his wife, physically and mentally, suspecting her chastity and poured kerosene and set her on fire—Victim died in hospital after four days—FIR was registered on her statement and later her statement was recorded by Magistrate—Conviction on dying declaration and evidence of other witnesses—Appeal—Question whether cruelty as alleged by prosecution would come under purview of section 498A IPC—To attract Section 498A IPC there must be a cruelty so as to cause grave injury or danger to life, limb or health or harassment with a view to coerce victim to meet any unlawful demand for property—Deceased had not made any complaint against appellant prior to death regarding ill treatment—There was no evidence of any independent witness that she was subjected to cruelty in relation to demand of dowry—Evidence u/s 32 of Evidence Act could not be admitted to prove offence u/s 498A IPC—Conviction u/s 498 IPC was liable to be set aside—Dying declaration was trustworthy and reliable—Conviction u/s 302 IPC was liable to be upheld.

       Held: Therefore, in order to attract Section 498A IPC, there must be a cruelty, mental as well as physical, so as to cause grave injury or danger to life, limb or health and there must be harassment with a view to coerce her to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand. So, only if the ingredients as contemplated under Section 498A is attracted, the question of conviction will arise.

       Section 498A IPC, which was inserted by the Criminal Law (Second Amendment) Act, 1983, came into force on December 25, 1983 and is prospective in operation. A perusal of Section 498A leaves no manner of doubt that the Legislature intended the operation of this provision to be prospective in nature and not retrospective. In this case, the dying declaration of the victim is available and there was no evidence in the nature as revealed from the dying declaration that she was incessantly ill-treated mentally, physically for a long period before her death. It is true that some of her relatives, sister and brother, had deposed that she used to tell them regarding the ill-treatment, physical and mental harassment on the part of the appellant. As we have stated above, all cruelties will not attract Section 498A IPC.

       In the instant case, the deceased had not made any complaint against the appellant prior to her death regarding the ill-treatment and manhandling, before any of the authorities. It is turned out that she was the second wife of the accused. The first wife of the appellant is no more. Hardly she lived for three years along with the appellant. If she had suffered manhandling, either physically or mentally, definitely she would have given a proper complaint before the concerned authorities. Even when she was in hospital, after sustaining the burn injuries, she had not spoken against the appellant that she had subjected to cruelty on the part of the appellant. Only when she was on the bed after sustaining 80% burn injury, she has given statement before the police as well as the Magistrate and to the neighbours that the appellant has poured kerosene over her body and set fire and accordingly, she sustained 80% burn injuries. She has also deposed that the intention of the appellant was to kill her by setting fire on her. In order to attract Section 498A of IPC, there must be an evidence to prove that the deceased was subjected to mental as well as physical cruelties by demanding dowry.

       The learned Sessions Judge relied on the evidences of PWs 2 and 3 and convicted the appellant by invoking Section 498A IPC. In fact, there is no evidence on the side of the independent witness that she was subjected to cruelty in relation to the demand of dowry or any property or valuable security. In the absence of such an evidence, I find that the finding entered by the Sessions Judge is not proper and in fact he has not understood the gist and crux of Section 498A of IPC. Section 498A IPC can be invoked only when the first and second limb of Section 498A is proved.

       So, on going through the evidence adduced by the prosecution, it does not appear that the victim was subjected to cruelty and mental harassment and the conduct of the appellant is such a nature as is likely to do such an act or the harassment of the accused was with an intention to coerce her or any person related to her to meet any unlawful demand for any property or valuable security. The trial court has misconceived the gist of the Section and without considering or discussing the evidence, blindly arrived at a point that the appellant is guilty under Section 498A of IPC. It was evidenced from the testimony of PWs 1to 3 that there was harassment on the part of the appellant; but it was due to his doubt regarding the chastity of the victim.

       The decision in Kantilal Martaji Pandor v. State of Gujarat & another [(2013) 8 SCC 781], describes the inadmissibility of evidence under Section 32(1) to prove an offence under Section 498A IPC. It is held that 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 death, in cases in which the cause of death comes into question. Hence evidence under Section 32(1) cannot be admitted to prove an offence under Section 498A IPC. So, in order to establish the ingredients under Section 498A IPC, the cruelty has to be proved by giving the leading evidence other than the dying declaration. In this case, immediately after the incident, the victim has given an oral declaration to the immediate neighbours and the owner of the building. All the witnesses cited by the prosecution have supported to the effect that the deceased has told them that she was being set on fire by her husband, who is the accused/appellant herein. During cross examination also, they deposed that immediately after the incident, the matter was revealed by the victim and she has pointed out that the accused/appellant who was there at the time of incident has stated that he is the sole person behind it.

       The question is whether the victim had been ill-treated by the accused/appellant. The defence has no case that the victim had committed suicide by pouring kerosene herself on her body and set fire. PW1, who is none other than the brother of the victim, had stated that she used to say about the ill-treatment of her husband, the appellant herein; but she has never stated anything about the manhandling for procuring any dowry or any property from the residence of the victim. Even on going through the evidence of PW1, there is not even a whisper that the accused/appellant had ill-treated his wife, the victim, or was harassing her or treating her within the meaning of Section 498A IPC. On going through discussion of evidence adduced by the prosecution, nothing was brought out to prove the ingredients as contemplated under Section 498A IPC. There is no evidence to prove that the cruelty or the mental torture on the part of the appellant was of the magnitude that it has been practised continuously.

       In this case, no evidence is forthcoming to prove that there are discrepancies and contradictions in the evidence of the independent witnesses as well as the statement recorded as dying declaration. The victim after sustaining the burn injuries has given an oral dying declaration that the accused himself has done the act. So the evidence adduced by PWs 1 to 5 is to the effect that the victim has stated immediately after the incident that the appellant has purposefully poured kerosene on her body and set fire.

       In this case, PW16, the Doctor has assertively stated in support of Ext.P8 that the victim has given statement voluntarily without any influence of the Investigating agency or the accused/appellant herein. Even at the time of giving dying declaration, the victim has stated that her husband has forced her to say that she herself had done the act. It shows that even when she was on sinking stage on her bed, she was forced by the appellant, who is none other than her husband, to give statement supporting him and therefore he was so cruel even at the time of her death. When Ext.P8 is read along with the oral testimony of PWs 1 to 5, we do not find any contradictions in the statement made by the witnesses before the police officer and the statement of the victim and PWs 1 to 5 before the Police Officer. PW16, the Magistrate, has a prime role to establish the guilt of the appellant herein. The evidence adduced by PWs 1 to 5 along with PW16 is consistent and reliable. It is well settled that the courts are fully entitled to act on the dying declaration if it is free from extraneous pressures.

       Keeping in view all the above facts, we are of the considered view that the prosecution in this case failed to prove beyond reasonable doubt that the appellant was in any way guilty of any act or conduct which is of the nature elaborated in clauses (a) and (b) of Section 498A of IPC so as to establish the cruelty within the meaning of Section 498A IPC. Therefore, the appellant herein is entitled to be acquitted of the charges under Section 498A IPC The trial court was fully justified in relying upon the dying declaration and the testimony of PWs 1 to 5, PW16 and Ext.P8 in order to convict the appellant under Section 302 of IPC. There is no merit in the appeal preferred against the conviction and sentence under Section 302 of IPC. (Paras 23 to 26, 31, 32, 33, 47, 48 and 48)

       Result: Appeal allowed partly.