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Madhya Pradesh High Court · body

2002 DIGILAW 599 (MP)

Satya Narayan v. State Of M. P.

2002-06-28

S.P.KHARE

body2002
JUDGMENT : Appellants Satya Narayan and Surendra Kumar were convicted under section 498-A, Indian Penal Code and sentenced to rigorous imprisonment for two years each. Appellant Satya Narayan has died during the pendency of this appeal and, therefore, his appeal has abated. 2. Deceased Mamta was married to appellant Surendra Kumar in the year 1982 and she died on 26-9-1984 on account of burn injuries which she sustained in her matrimonial home in village Nainpur. 3. The prosecution case was that appellant Surendra Kumar was treating his wife Mamta with cruelty. He was asking her to bring more dowry from the house of her father. He was assaulting her and driving her out of the house in the night. He was not providing her proper food. She used to make complaints to her parents when she visited her parental house in village Kamthi in Maharashtra. She also wrote several letters to her parents. These are Exs. P-7 to P-11 in which she narrated how she was being treated with cruelty by her husband. She gave dying declaration before her death on 26-9-1984 to the Tahsildar and the Executive Magistrate i.e. Ex. P-16. According to this dying declaration she sustained burn injuries accidentally from stove. 4. Appellant Surendra Kumar pleaded not guilty before the trial court. His defence was that he never treated his wife with cruelty. 5. The trial court acquitted appellant Surendra Kumar of the charge under section 306, Indian Penal Code on the ground that Mamta did not commit suicide. Her death was accidental. That finding is based on the dying declaration recorded by the Executive Magistrate. The State has not challenged the acquittal of appellant Surendra Kumar for the offence punishable under section 306, Indian Penal Code. But the trial Court found that the appellant was treating his wife with cruelty and, therefore, he has been convicted for this offence. 6. In this appeal it has been argued that there is no legal evidence to hold that appellant Surendra Kumar was treating his wife with cruelty. It is submitted that the letter Ex. P-10 written by the deceased in which the allegations of cruelty have been made docs not fall within the ambit of section 32 (1) of the Evidence Act and, therefore, it is not admissible as dying declaration of the deceased. It is submitted that the letter Ex. P-10 written by the deceased in which the allegations of cruelty have been made docs not fall within the ambit of section 32 (1) of the Evidence Act and, therefore, it is not admissible as dying declaration of the deceased. Similarly, it is argued that the oral complaints made by deceased Mamta to her parents are also not covered by section 32 of the Evidence Act and, therefore, in the absence of any other direct or circumstantial evidence in support of the charge of cruelty, the appellant could not be convicted for the offence punishable under section 498-A, Indian Penal Code. 7. The evidence on record has been scanned by this court. The trial Court has based the conviction of the appellant on letter Ex. P-10 written by deceased Mamta and also the oral statements made by her to her parents when she visited their house after the marriage. Hirabai (P.W.4) is mother of the deceased. She has deposed that her daughter Mamta told her that her husband returns late in the night in drunken condition and he used to beat her. She further complained that she was being driven out of the matrimonial home and she was not being provided proper food. To the same effect is the evidence of Harish Chandra (P.W.6) who is the father of the deceased. Letter Ex. P-10 is proved to be in the hand-writing of deceased Mamta. In this letter she has narrated how she was being treated by her husband with cruelty. 8. As mentioned above the appellant has been acquitted of the charge under section 306, Indian Penal Code and that acquittal is based on the dying declaration of the deceased marked as Ex. P-16 in which it is stated that the deceased sustained burn injuries accidentally from the stove. Therefore, death of Mamta is not suicidal. There is no direct evidence regarding the harassment or ill-treatment by the appellant towards his wife. The statements made by the deceased to her parents orally and in the letter Ex. P-10 are not covered by section 32 (1) of the Evidence Act as the statements were not "as to the cause of her death" or "as to any of the circumstances of the transaction which resulted in her death". The statements made by the deceased to her parents orally and in the letter Ex. P-10 are not covered by section 32 (1) of the Evidence Act as the statements were not "as to the cause of her death" or "as to any of the circumstances of the transaction which resulted in her death". The Supreme court has observed in Rattan Singh vs. State of Himachal Pradesh, AIR 1997 SC 768 that section 32 (1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question, but its admissibility depends upon one of the two conditional. Either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death. The collocation of the words in section 32 (1) "circumstances of the transaction which resulted in his death" is apparently of wider amplitude than saying "circumstances which caused his death." There need not necessarily be a direct nexus between "circumstances" and "death". It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of section 32 (1) of the Evidence Act. In other words, it is not necessary that such circumstances should be proximate, for even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death. 9. Recently a case came before the supreme court which was identical to the present one i.e. Inderpal vs. State of M.P. 2002 Cri.L.J. 926 in which the supreme court observed that unless the statement of a dead person would fall within the purview of section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. 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 circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. 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 circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P7 or Exhibit P8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. (That was also a case of accidental death). Even that apart, when we are dealing with an offence under section 498-A, Indian Penal Code disjuncted from the offence under 306, Indian Penal Code the question of her death is not an issue for consideration and on that premise also section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned. 10. In the present case statements made by deceased Mamta to her parents orally and in her letter do not fall within the purview of section 32(1) of the Evidence Act and these are excluded from consideration being hearsay. There is no material on record to establish the charge under section 498-A, Indian Penal Code. Therefore, the conviction of appellant Surendra Kumar for this offence recorded by the trial court is not sustainable. 11. The appeal is allowed. The conviction and sentence are set aside and appellant Surendra Kumar is acquitted of the charge under section 498-A, Indian Penal Code.