Point of Law: Statement of the deceased person so as to become admissible under Section 32(1) has to be in a case where the cause of that person's death comes into question. In a prosecution under Section 498A of IPC, the cause of death of the person concerned does not come into question and hence, Section 32(1) of the Indian Evidence Act does not get attracted.

JUDGMENT :

This appeal has been filed by the accused in S.C.No.05/2008 on the files of the Sessions Court, Kottayam against the judgment dated 17.5.2008, convicting him under Section 498A of IPC.

2. The accused is the husband of the deceased namely Jyothi. They married in the year 1994. It was an inter-caste marriage. Two children were born in the wedlock. On 26.11.2006, the wife of the accused committed suicide. According to the prosecution, the accused subjected her to cruelty, both physically and mentally, so as to drive her to commit suicide and as a result of the said cruelty she committed suicide by consuming a poisonous fruit called odollam (Cerebera Odollam).

3. It was at about 11 am on 25.11.2006, the wife of the accused consumed poison at the house of the accused situated at Kiliroor Kara of Thiruvarppu Village. Immediately after the accused found his wife consumed the poisonous fruit mentioned above, he took her to the Medical College Hospital, Kottayam. She was treated at the hospital, but, she died at 1.30 am on 26.11.2006. At 8 am on the same day, the brother of the accused, who was examined as PW1, went to the Kumarakom Police Station and gave Ext.P1 first information statement to PW11, the Sub Inspector of Police, Kumarakom Police Station. On the basis of Ext.P1, PW11 registered FIR under Section 174 of Cr.P.C. Ext.P6 is the FIR. He went to the Medical College Hospital and conducted inquest on the body of the deceased. The inquest report is Ext.P3. He went to the scene of occurrence and prepared Ext.P4 mahazar and questioned the witnesses. Thereafter, Section 498A of IPC was added and the appellant was arrayed as the accused. PW12 took up the investigation on 6.12.2006. He arrested the accused. He added Section 306 of IPC. He completed the investigation and filed final report before the Magistrate. The learned Magistrate after completing the statutory formalities committed the case to stand trial at the Court of Sessions.

4. The accused, on receipt of summons, appeared at the court below. After hearing both sides, the court below framed charge under Sections 498A and 306 of IPC. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PW1 to PW13 were examined and Exts.P1 to P9 were marked. No defence evidence was adduced. After trial, the court below found that the prosecution failed to prove the ingredients to attract Section 306 of IPC and, hence, the accused was found not guilty for the offence under Section 306 of the IPC and he was acquitted for the said offence. However, the court below found the accused guilty under Section 498A of IPC and he was convicted for the said offence. He was sentenced to undergo rigorous imprisonment for one year with a fine of Rs.500/-, in default to suffer rigorous imprisonment for one month. Aggrieved by the said conviction and sentence, the accused preferred this appeal.

5. I have heard Sri. P. Sanjay, the learned counsel for the appellant and Sri. Sanal P. Raj, the learned Public Prosecutor.

6. The learned counsel for the appellant impeached the findings of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that having found that the offence under Section 306 of IPC is not attracted, the court below ought to have acquitted the accused under Section 498A of IPC as well. The counsel further submitted that the evidence of PW2 to PW5 relied on by the court below to convict the accused under Section 498A of IPC is not admissible under Section 32(1) of Cr.P.C of the Indian Evidence Act and, hence, the court below went wrong in relying on their evidence. The counsel added that there is no direct evidence to prove the alleged cruelty. The learned prosecutor, on the other hand, supported the findings and verdict handed down by the court below and argued that necessary ingredients of Section 498A of IPC had been established and the prosecution had succeeded in proving the ca