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2013 DIGILAW 33 (TRI)

Prwitish Dutta v. State of Tripura

2013-10-08

U.B.SAHA

body2013
JUDGMENT U.B. Saha, J. This revision petition is directed against the judgment and order dated 14.3.2005 passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Appeal No. 39(4) of 2003 affirming the judgment and order dated 22.9.2003 passed by learned Asstt. Sessions Judge, West Tripura, Agartala in ST. 9 (W.T./A) of 2003 convicting the petitioners under Section 498(A) of IPC and thereby sentencing them to suffer R.I. for two years and to pay compensation of Rs. 50000/- to the informant-mother, who lost her daughter. All the accused petitioners were acquitted from the charge leveled against them under Section 304(B) IPC. Heard Mr. H. Debnath, learned counsel appearing for the accused petitioners. Also heard Mr. R.C. Debnath, learned Addl. P.P. appearing for the respondent-State. 2. The prosecution case, in short, is that the marriage of the deceased Shila Deb, daughter of the informant Madhabilata Deb (P.W. 1) was solemnized with the accused Biresh alias Tutan Datta, the petitioner No. 2 herein, on 3rd Sravana, 1405 B.S. and as per demand of the bride-groom party; various articles were given in the said marriage. But after two months, the accused petitioners created pressure upon the deceased for bringing one Television and Rs. 10,000/- from her mother. The deceased daughter of the informant informed the same to her and in response to the same, she gave one television set to the accused Biresh, her son-in-law and she expressed her inability to pay Rs. 10,000/-. So, the accused persons started torture upon the deceased both mentally and physically. The informant (P.W. 1) visited the house of the accused persons and requested the father-in-law and sister-in-law of the deceased that she is not in a position to pay Rs. 10,000/- as demanded by them and also requested not to commit torture upon her daughter, but the same continued unabated. 3. On 21st January, 1999, the P.W. 1 got information that her daughter has been hospitalized. She rushed to the hospital and came to learn that her daughter Shila died due to poisoning. She, thereafter, on 1.2.1999 lodged a written FIR with the Sidhai police station. 4. On the basis of the aforesaid FIR, Police registered a police case being Sidhai P.S. case No. 09 of 1999 under Sections 498A. and 304-B of IPC and consequent thereto, started investigation. She, thereafter, on 1.2.1999 lodged a written FIR with the Sidhai police station. 4. On the basis of the aforesaid FIR, Police registered a police case being Sidhai P.S. case No. 09 of 1999 under Sections 498A. and 304-B of IPC and consequent thereto, started investigation. On completion of the investigation, police submitted the charge sheet under Sections 498A and 304B IPC against the accused petitioner. 5. As the case was exclusively triable by the Court of Sessions, the case was committed to the Court of learned Sessions Judge, Wet Tripura, Agartala, who after receipt of the case on commitment transferred the same to the court of the Assistant Sessions Judge, West Tripura, Agartala. 6. Upon receipt of the case record, the learned Assistant Sessions Judge after hearing the parties framed the charge which is as under: That all of you on the capacity of husband, father-in-law, brother-in-law and sister-in-law respectively habitually put Smt. Shila Datta W/o. Sri Tutan Datta (Accused) under cruelty, harassment and torture physically and mentally for the failure to meet unlawful demand for money from her parents since her marriage and lastly on 21.1.1999 at Bhogjor, Bamutia under Sidhai Police Station, consequence of which she died on 21.1.1999 at G.B. Hospital by taking poison and thereby committed an offence punishable under Section 498A of the Indian Penal Code and within my cognizance. Secondly, that all of you being the husband, father-in-law, brother-in-law and sister-in-law of Shila Datta (Deb) W/o. Tutan Datta (accused) on 21.1.1999 at Bhogjor, Bamutia under Sidhai Police Station, caused the death of said Shila Datta (Deb) within seven years of her marriage by taking poison and succumbed at G.B. Hospital, Agartala on 21.1.99 by subjecting her. cruelty in connection with your demand of dowry and you are thereby committed an offence punishable under Section 304-B of the Indian Penal Code and within my cognizance. And I hereby direct that all of you be tried by the Court of Sessions on the said charges. 7. To bring home the charge, the prosecution examined as many as 14 witnesses, but the defence examined none. After closure of the prosecution evidence, the accused petitioners were examined under Section 313 Cr.P.C. to which they denied the allegations levelled against them. 8. 7. To bring home the charge, the prosecution examined as many as 14 witnesses, but the defence examined none. After closure of the prosecution evidence, the accused petitioners were examined under Section 313 Cr.P.C. to which they denied the allegations levelled against them. 8. After conclusion of the trial, the learned trial court held that the evidence as available on record failed to establish the charge under Section 304(B)IPC against the accused persons and accordingly acquitted them from the said charge of Section 304(B) IPC, but the accused petitioners were found guilty for commission of offence punishable under Section 498A of the IPC and accordingly, they were convicted under Section 498A and sentenced each of them to suffer 2 (two) years rigorous imprisonment and to pay Rs. 50,000/- by way of compensation to the mother of the deceased. 9. Having felt aggrieved by and dissatisfied with the judgment of conviction and sentence passed by the trial court, the accused petitioners preferred the appeal before the learned Sessions Judge, West Tripura, Agartala which was registered as Criminal Appeal No. 39(4) of 2003. The learned Sessions Judge, West Tripura dismissed the aforesaid appeal vide his judgment dated 14.3.2005 affirming the judgment dated 22.9.2003 passed by the learned Assistant Sessions Judge, West Tripura, Agartala, (Court No. 2) in Sessions Trial No. 09(WT/A) of 2003. 10. It is to be mentioned here that the accused Biswanath Dutta, father of the petitioner No. 1, who was also convicted by the trial Court expired during pendency of the appeal before the learned Sessions Judge. 11. Being aggrieved, the convict present petitioners have preferred the instant revision petition against the judgment and order of the appellate court as stated supra. 12. Mr. 11. Being aggrieved, the convict present petitioners have preferred the instant revision petition against the judgment and order of the appellate court as stated supra. 12. Mr. Debnath, learned counsel for the petitioners while urging for setting aside the impugned judgment and order of conviction under Section 498Aand sentence thereto would contend that none of the prosecution witnesses stated that they have any direct knowledge regarding the alleged torture to deceased Shila by the accused petitioners, rather the source of the prosecution witnesses is the alleged information given by the deceased daughter of P.W. 1 to them, particularly P.W. 1 and P.W. 2 and the said statements do not come within the purview of Section 32 of the Evidence Act and thus not admissible in evidence, but the learned trial court relying upon those statements convicted the petitioners and sentenced them which was subsequently affirmed by the learned appellate court. 13. He further submits that the P.W. 1 though in her chief stated that after two months of the marriage of her daughter, her son-in-law, the convict petitioner No. 2 herein and other house inmates demanded Rs. 10,000/- from her daughter which her daughter subsequently informed her and she expressed her inability to pay the said amount and consequent thereto, her daughter used to weep and told her about the torture upon her, but in the FIR, she did not disclose those facts. Hence, on that count also, the evidence of P.W. 1 should not be relied upon. 14. He also submits that P.W. 2 and 3 though stated in their chief that the deceased victim Shila told them regarding the torture upon her by the convict petitioners and her in-laws like father-in-law and mother-in-law and brother-in-law for collection of Rs. 10,000/- and also demanding of a TV, but did not state those stories in their 161 statements. Thus, those statements are first time in the court and being approved version, cannot be relied upon. 15. He has also pointed out that P.W.7 Smt. Archana Das, a neighbor of the petitioners who in her cross specifically stated that the deceased Shila had good relation with her husband and others and the mother of the deceased told her about giving a TV after the death of her deceased daughter. 16. 15. He has also pointed out that P.W.7 Smt. Archana Das, a neighbor of the petitioners who in her cross specifically stated that the deceased Shila had good relation with her husband and others and the mother of the deceased told her about giving a TV after the death of her deceased daughter. 16. In support of his aforesaid contention, he has placed reliance on a decision of the Apex Court in Inderpal v. State of M.P., 2002 Crl.L.J. 926, and also the case of GM Ravi @ G Purushotham v. State of A.P., 2004 Crl L.J. 1861, and the decision of the Gauhati High Court, Agartala Bench in Biplab Chakraborty & Ors. v. State of Tripura, 2011 (2) GLT 814 : (2011) 6 GLR 775. 17. Mr. Debnath, learned Addl. P.P. while supporting the judgment of the trial court affirmed by the appellate court as impugned herein has placed reliance mainly on the evidence of P.W. 1, 2 and 3 to whom the deceased Shila disclosed about the demand of dowry and regarding torture upon her. He has also referred to that in a case of 498A IPC; the Court is to take note of Section 113(B) of the Evidence Act as by the said Act, the Legislature has given certain power to the court to take presumption so far as the dowry death is concerned. 18. He further submits that every case of the Apex Court cannot be treated as precedent unless the facts and decision stated and the facts of the case to be decided are similar in nature. He further contended that an offence relating to Section 498A is to be looked into in a different manner. Mr. Debnath tried to convince this Court regarding the truthfulness of P.W. 1 by way of referring to the demeanor recorded by the trial court, inter alia, "witness began to weep". 19. As the whole case of the prosecution is mainly based on evidence of the witness No. P.W. 1 to 5, it would be proper to reproduce the salient portion of the deposition of those witnesses before addressing to the submission of the learned counsel for the parties and discussing the law Reports cited in support of their cases. 20. 19. As the whole case of the prosecution is mainly based on evidence of the witness No. P.W. 1 to 5, it would be proper to reproduce the salient portion of the deposition of those witnesses before addressing to the submission of the learned counsel for the parties and discussing the law Reports cited in support of their cases. 20. P.W. 1, Smt. Madhabi Lata Deb, the mother of the deceased, is the informant who stated in her deposition that her deceased daughter informed him that after two months of her marriage, her son-in-law, Biresh @ Tutan Datta and other house inmates i.e. the parents, sister and brother demanded Rs. 10,000/- from her deceased daughter. She on being received of the said information expressed her inability to pay the amount as demanded. She also stated that her daughter used to weep and tell her about the torture upon her by the accused Shima Datta, sister of her son-in-law and his father Biswanath. While she was going to school by the side of the house of her daughter, one of their neighbor told her to go to GB. Hospital for seeing her daughter. Then she rushed to the hospital where she met with her son-in-law, the accused Tutan, who was going out from the hospital. On being asked by her, the accused, her son-in-law requested her to give some money for purchasing some medicine and accordingly, she had given money and thereafter, she went to the hospital where she saw her daughter lying dead. Saying the aforesaid story, she began to weep and the learned trial court recorded her demeanor. 21. P.W. 2, Sailendra Chandra Deb, the maternal uncle of the deceased, stated in his deposition that in the marriage of the deceased, her mother had given all the articles as per her ability, but after one and half month, the deceased told him that her husband and other in-laws used to torture her for collection of Rs. 10,000/- and after two months of her marriage, one T.V. was given to the husband of the deceased. He went with the informant (P.W1) and informed the accused about their inability to pay Rs. 10,000/-. But even thereafter, the torture upon the deceased increased and after six month of her marriage, on 21.1.1999, he got information about the death of the deceased. 22. He went with the informant (P.W1) and informed the accused about their inability to pay Rs. 10,000/-. But even thereafter, the torture upon the deceased increased and after six month of her marriage, on 21.1.1999, he got information about the death of the deceased. 22. P.W. 3, Arup Deb, brother of the deceased, stated that after two months of her marriage, when the deceased came to their house, she informed that the accused was demanding T.V. set. Accordingly T.V. was given. Thereafter, her sister again came and informed them that her in-laws are demanding Rs. 10,000/-. 23. P.W. 4, Prabodh Chandra Deb stated in his deposition that after one and half months of the marriage, the deceased told him about the assault and torture upon her by the accused persons and about their demands of Rs. 10,000/- and they tortured her when she failed. 24. P.W. 5, Kshitish Chandra Das stated that after six months of marriage, the deceased told him that she was living under distress and she was beaten up by her in-laws as well as her husband. They demanded Rs. 10,000/-. 25. It would also be proper to reproduce the evidence of P.W. 12. Dr. Pijush Kanti Deb, a Medical officer of IGM Hospital who at the relevant time was the Officer-in-Charge of Forensic Medical Department, and conducted the post mortem examination of the deceased. Accordingly, the salient portion of the evidence of P.W. 12 is discussed hereunder. 26. P.W. 12 in his deposition stated that he had conducted the post mortem examination upon the body of the deceased Shila and as per his opinion, the death of Shila was caused by poison due to cardio respiratory failure. The P.M. report was marked as Ext. P/4. According to this witness, no anti mortem injury either was found or detected in the body of the deceased. Only discharge from the mouth with bitter smell was found. 27. Only source of information relating to torture to the deceased Shila deposed by the witnesses is based on alleged information given by the deceased Shila before her death. Even if, it is assumed that she had informed her mother and other witnesses regarding the alleged harassment which has to be seen whether such statement can be considered as gospel truth and whether same would come within the purview of Section 32 of the Evidence Act. 28. Even if, it is assumed that she had informed her mother and other witnesses regarding the alleged harassment which has to be seen whether such statement can be considered as gospel truth and whether same would come within the purview of Section 32 of the Evidence Act. 28. As the accused petitioners have already been acquitted from the charge levelled against them under Section 304B IPC, it is not necessary to discuss regarding the said offence and in absence of the aforesaid charge, only charge under Section 498A of the IPC remains under which they were convicted and sentenced. 29. Now let us discussed regarding the section 498A. In State of Tripura v. Dulal Dey, (2008) 1 GLT 446 : (2008) 1 GLR 637, wherein myself being the learned Single Judge of Gauhati High Court, Agartala Bench dealt with an offence under Sections 498A and 304B IPC discussed regarding the effect of Section 113B of the Evidence Act and stated, inter alia, that a conjoint reading of Sections 498A and 304B IPC with Section 113B of the Evidence Act, the Court is supposed to form a presumption against the husband and matrimonial relations of a deceased wife. In that case, the question arose as to whether on presumption, the husband and matrimonial relations of the deceased wife should be treated guilty for such heinous offence like in Sections 498A/304B IPC, even when no case of cruelty is meted out either by physical or mental torture for demand of dowry in the evidence and ultimately held that it would not be proper to take such presumption unless the prosecution establishes the connection of the accused respondent with the alleged offence. It is further held that when such allegations of cruelty and/or demand of dowry is totally absent in the evidence, in that case, it would not be proper for treating every death of married woman in her matrimonial home within seven years as a dowry death, as the same would be injustice to the accused-husband and his inmates and would send a wrong message to the society, as the accident may happen at any moment to any’ person including married woman in the matrimonial home and she may commit suicide for any other reason, like a sudden quarrel on account of fault of the spouse or both, or for the fault of neither of them, it may be of selfishness, boorishness, callousness and difference of opinion on the part of one of the parties except the reasons for cruelty and demand of dowry from the husband and his relatives. 30. In Inderpal (supra), the Apex Court considered almost a similar nature of case where the witnesses of that case stated that the deceased told them regarding the harassment meted out to her by her husband and held as under: Before deciding that question we have to point out that the High Court came to a conclusion that the allegation that she committed suicide was not substantiated. A dying declaration was recorded by the Executive Magistrate in which the deceased had stated that she got burns accidentally from a stove. If that be so, death could not be the result of either any harassment or any cruelty which she was subjected to. In this context we may point out that the State has not challenged the finding of the High Court that death of Damyanti was not due to commission of suicide. 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 circumstances of the transactions which resulted in her death, in a case 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 circumstances of the transactions which resulted in her death, in a case in which the cause of death comes into question. By no stretch of imagination can the statements of Damayanti contained in Exhibit P 7 or Exhibit P8 and those quoted by the witnesses be connected with any circum-stance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498A IPC disjuncted from the offence under Section 306 IPC 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. 31. The aforesaid case of Inderpal (supra) was considered by a Division Bench of the Andhra Pradesh High Court in GM. Ravi @ G Purushotham v. State of A.P., 2004 Cri. L.J. 1861, wherein the Division Bench of the Andhra Pradesh High Court while considering the cruelty to the woman and allegations against the accused husband held, inter alia, All the witnesses in the present case, who have deposed, have only stated what according to them was told by the deceased to them with respect to the harassment meted out to her by her husband. None of these statements comes within the purview of Section 32 of the Evidence Act. Therefore, these statements in view of the judgment of the Supreme Court referred to above are not at all admissible in evidence. There is not a single witness who has stated that he/she had personal knowledge of the harassment of the deceased by the appellant. Even the father of the deceased, who stated that the accused had demanded Rs. 10,000/- for the purpose of filing an appeal in the High Court, did not state that a demand for money was made to him by the accused. He stated that the demand was made on telephone by his own daughter, the deceased. According to him, the accused had asked his wife that is the deceased, to demand money from him. Again this evidence is not admissible under Section 32 of the Evidence Act. He stated that the demand was made on telephone by his own daughter, the deceased. According to him, the accused had asked his wife that is the deceased, to demand money from him. Again this evidence is not admissible under Section 32 of the Evidence Act. Therefore, conviction under Section 498A, IPC also cannot sustain and is set aside. 32. The case of Biplab Chakraborty and Ors. (supra), decided by me while I was a Judge of Gauhati High Court, Agartala Bench wherein it is stated that each and every injury and/or harassment either by the husband or by the family members of the husband to the wife victim cannot be considered as cruelty unless the conduct of the husband and the family members are willful and are of such a nature which is likely to drive the wife to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the wife/woman. 33. In Girdhar Shankar Tawade v. State of Maharashtra, (2002) 5 SCC 177 , the Apex Court considered the explanation provided below Section 498A of the IPC and held as under: The basic purport of the statutory provision is to avoid ’cruelty’ which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word ’cruelty’ as is expressed by the legislatures. Whereas explanation (a) involves three specific situation viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of ’cruelty’ in terms of Section 498(A). 34. 34. In Manju Ram Kalita v. State of Assam, 2010(2) GLT 3419 (SC), the Apex Court stated that cruelty for the purpose of Section 498A IPC is to be considered on the strength of the explanation made thereunder, not by any other meaning as that would be different from the meaning as discussed in the statute of the Penal Code which is as under: ’Cruelty’ for the purpose of Section498A IPC is to be established in the context of Section 498A IPC as it may be a different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as ’cruelty’ to attract the provisions of Section 498A IPC, Causing mental torture to the extent that it becomes unbearable may be termed as cruelty. 35. In a case of Section 498A of the IPC, the role of the Court is heavier than other offence as in other offences, some sort of direct evidence is available and question of taking presumption under Section 113B of the Evidence Act does not always require, but in a case under Section 498A, the Legislature casts a duty upon the Court to take presumption under Section 113B of the Evidence Act when persistently demand of dowry is made either by the husband of the victim or by in-laws. Each and every demand cannot also be considered as dowry. 36. The dowry means ’dos muliers Lat’ otherwise called maritagium, or marriage goods, that which the wife brings to the husband in marriage. This word should not be founded with dower-Co. Lift 31-Wharton’s law Lexicon. The definition of dowry will also be available in section 2 of the Dowry (Prohibition) Act, 196. In common parlance, dowry means where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage. In simple way we want to define the meaning of dowry then we can say a price of marriage. We can say the article demanded by the family of the bride as a price of marriage. In simple way we want to define the meaning of dowry then we can say a price of marriage. We can say the article demanded by the family of the bride as a price of marriage. In Satbir Singh v. State of Punjab : (2001) 8 SCC 633 : (2001) Crl. LJ 4625), the Hon’ble Apex Court considered the definition of "dowry" as defined under section 2 of the Dowry Prohibition Act, 1961, with reference to the offence under section 304B of the IPC, and held that it should be any property on valuable security given or agreed to be given in connection with the marriage. Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held do not fall within the ambit of ’dowry’. The Apex Court also stated in the same judgment that there are three occasions related to dowry. One is before the marriage, second is at any time after marriage, the third occasion may appear to be an unending period. But the crucial word is ’in connection with the marriage of the said parties. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent indifferent societies. Such payments are not enveloped within the ambit of ’dowry’. 37. This Court has also noted the case of Satvir Singh (supra) which was relied upon in Vikram Singh v. State of Rajasthan, 2007 Crl. LJ 1622 and referred to by this court in Dulal Dey (supra). In the case of Dulal Dey (supra) this court also took note of the case of Reema Aggarwal v. Anupam, AIR 2004 SCW 344 wherein the Apex Court again discussed regarding the term ’dowry’. Therefore, it would not be proper for this court to go for detailed discussion again in the instant appeal. 38. In the case of Dulal Dey (supra) this court also took note of the case of Reema Aggarwal v. Anupam, AIR 2004 SCW 344 wherein the Apex Court again discussed regarding the term ’dowry’. Therefore, it would not be proper for this court to go for detailed discussion again in the instant appeal. 38. In Ram Badan Sharma v. State of Bihar, AIR 2006 SC 2855 , the Apex Court held that: When the evidence judging that there has been persistent demand of dowry and because of non-fulfillment of the said amount, there was harassment, humiliation, continuous beating of the deceased, poison administered, presumption under Section 113-B of the Evidence Act will be attracted. 39. Now question here in this case is whether prosecution establishes its case relating to demand of dowry. According to this court, whatever story has come regarding the story of demand of dowry that was through the mouth of the witnesses who stated that they had been informed by the deceased wife of the accused No. 2 and daughter of P.W. 1. Thus those statements cannot be considered as evidence under Section 32 of the Evidence Act. 40. In view of the judgment of the Apex Court in Inderpal (supra) and the case of GM. Ravi alias G Purushotham (supra) which was subsequently followed by the Andhra Pradesh High Court in Sangannagari Narasimulu v. State of A.P., 2005 Cri. L.J 4168 wherein, the learned single Judge of that High Court taking note of Inderpal (supra) while considering a criminal revision petition, like the present one, relating to offence under Section 498A, restated about the application of Section 32 of the Evidence Act which is as under As seen from the above said evidence, P.W. 3 is not a direct witness to the alleged harassment of the deceased by the accused either in respect of the demand for dowry or in respect of the second marriage with the sister of deceased. The source of her information is the information said to have been given by the deceased. In cross-examination she stated that when the revision-petitioner and Mangamma visited her house they were happy and that they were happy even after the birth of their daughter. The Courts below relied on the evidence of this witness though this witness is not a direct witness for the alleged harassment. In cross-examination she stated that when the revision-petitioner and Mangamma visited her house they were happy and that they were happy even after the birth of their daughter. The Courts below relied on the evidence of this witness though this witness is not a direct witness for the alleged harassment. She did not even state that she went to the house of the accused and questioned them as to why they were harassing the deceased either for the dowry or to persuade her to accept for the second marriage of A-1. The only source of information for this witness is the alleged information given by the deceased- Mangamma. Even if it is assumed that the deceased-Mangamma had informed her mother about the alleged harassment, the statement of Mangamma to her mother cannot be taken as gospel truth and the said statement is very weak piece of evidence as the deponent is not subjected to cross-examination. Further such statement of the deceased made to her mother even if true is not admissible in evidence. Admittedly, the statement is not in relation to the cause of death of the deceased in this case. When the said statement was not regarding the cause of her death, it does not come within the purview of S. 32(1) of the Evidence Act. The evidence of P.W. 3 that her daughter informed her about the harassment becomes hearsay, which is not admissible in evidence. 41. The learned Single of the Andhra Pradesh High Court also placed reliance on the decision of the Apex Court in Gananath Pattnaik v. State of Orissa, 2002 SCC (Cri) 461. In that case, the trial court like the case in hand acquitted the appellant therein from the charge under Section 304B IPC and convicted under Section 498A of the IPC and the said findings of the learned trial court were confirmed by the High Court and being aggrieved by that, the appellant Gananath Pattnaik preferred the appeal before the Apex Court. The Apex Court in the said case considered the Section 498A explanation and also noted that the cruelty for the purpose of an offence under Section 498A always need not be physical even in a given case, it would be mental torture or abnormal behavior. The Apex Court in the said case considered the Section 498A explanation and also noted that the cruelty for the purpose of an offence under Section 498A always need not be physical even in a given case, it would be mental torture or abnormal behavior. The Apex Court in that case also considered as to the admissibility of the evidence of P.W. 5 who was the sister of the deceased, relying upon whose evidence, the learned trial Court convicted the appellant therein under Section 498Aand while acquitting the appellant therein held as under 10. Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of P.W. 5, who is the sister of the deceased. In her deposition recorded in the court on 4.5.1990 P.W. 5 had stated: Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfillment of balance dowry amount of a scooter and a two-in-one.’ and added: On 3.6.1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima Apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from her, and that her mother-in-law has come and some conspiracy is going against her (the deceased). She further told that ’mate au banchei debenahin. Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304-B and such statement was admissible under clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498-A of the Indian Penal Code and has to be termed as being only a hearsay evidence, Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused. * * * 14. It follows, therefore, that there was no legal evidence tendered in the case which could be made the basis for returning a finding with respect to the alleged cruelty of the accused with the deceased. In the absence of any legal evidence produced in the case, we are of the opinion that the prosecution has failed to prove, beyond doubt, that the appellant had committed the offence under Section 498-A of the Indian Penal Code and find that it is a fit case where he is entitled to be given the benefit of doubt. 42. Though in the instant case, P.W. 1 to 5 of the prosecution witnesses stated regarding the demand of dowry by the accused petitioner No. 2 and his family members, but the said statements of those witnesses cannot be taken as legal evidence as the same does not fulfill the requirement of Section 32 of the Evidence Act in view of the judgment of Inderpal (supra) as well as Gananath Pattnaik (supra). In absence of the legal evidence relating to demand of dowry, it has to be held that prosecution fails to prove its case against the accused petitioners beyond reasonable doubt. Thus, they are entitled to be acquitted. Accordingly, the conviction and sentence passed by the trial Court vide his judgment dated 22.9.2003 and affirmed by the appellate court vide impugned judgment dated 14.3.2005 are hereby set aside. In the result, the revision petition is allowed. As the petitioners are on bail, their bail bonds shall stand discharged. Send down the L.C. records.