The Supreme Court recently comprising of a three-judge Bench of CJI NV Ramana, Justice AS Bopanna & Justice Hima Kohli held that the dying declaration of the wife is admissible as evidence under Section 32 of the Evidence Act to prove cruelty under Section 498A IPC even when the husband is acquitted of all the other charges pertaining to her death.(Surendran vs State of Kerala)
The Court while holding so, opined that it was subject to the fulfillment of two conditions -
"i) The cause of her death must come into question in the matter; and
ii) Prosecution will have to show that the evidence sought to be admitted with respect to Section 498A of the IPC must also relate to the circumstances of the transaction of the death."
The Bench observed, "...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 of the IPC under Section 32(1) of the Evidence Act."
Facts of the case
The Appellant got married after which his wife/victim started residing at the matrimonial home along with the family members of the Appellant. It is alleged that the Appellant and his family members started harassing her and demanding additional dowry. The victim attempted suicide by consuming Benzyl Hexa Chloride Powder due to the mental harassment by the husband and his family members. She later recovered after getting treated at Government Hospital in Palakkad. Mediation proceedings were initiated and a settlement was reached by which she resumed residing at her husband's house. Despite the settlement the harassment continued which led to the victim committing suicide.
The prosecution charged the accused husband and his family members under section 498A and 304B of Indian Penal Code and they were later convicted by the Trial Court. The appellate court later acquitted two brothers of the accused but upheld the conviction of the accused and his mother. The High Court while upholding the conviction of accused and his mother reduced the sentence of the accused to rigorous imprisonment of one year and mother's sentence to rigorous imprisonment of one month.
Therefore the present appeal was filed before the Supreme Court.
Contention of the Parties
The main thrust of the submissions made by the learned counsel for the appellant were twofold. Firstly, that the suicide note and other statements made by the deceased cannot be relied upon by the Court for convicting him under Section 498A of the IPC as they do not fall within the scope of Section 32(1) of the Indian Evidence Act, 1872 (for short ‘the Evidence Act’). Secondly, that the evidence of PW3 (mother of the deceased) is contradictory and cannot be relied upon to convict the appellant. On the strength of the above two arguments, the learned counsel for the appellant attempted to persuade this Court that there is no credible evidence to convict the appellant under Section 498A of the IPC, and therefore, he should be acquitted of the same.
On the other hand, the learned counsel for the respondent- State submitted that there are three concurrent finding of facts by the Courts below which do not merit any interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India. Learned counsel for the State also submitted that there is sufficient evidence on record to make out a clear case for convicting the appellant under Section 498A of the IPC.
Courts Observation and Judgment
The bench said that 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 (husband or relative of husband of a woman subjecting her to cruelty) of the IPC, the prosecution has also charged the accused under Sections 302, 306 or 304B of the IPC. "
The bench said, “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 apex court said 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 of the IPC must also relate to the circumstances of the transaction of the death.
The bench said, “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.”
The apex court noted that the deceased’s wife was being harassed is clear from the evidence of the mother of the deceased.
The bench while directing the husband to surrender within a period of one week from before the authorities concerned to serve out the remaining period of sentence noted, “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 ”
The bench dismissing the appeal remarked, "In view of the above, we see no reason to interfere with the impugned judgment passed by the High Court in confirming the conviction of the appellant under Section 498A of the IPC and sentencing him to undergo rigorous imprisonment for one year.
The appeal is, accordingly, dismissed.
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