26 October 2020


Judgments

High Court of Bombay

Purushottam Sitaram Bakal and Ors. Vs. The State of Maharashtra

MANU/MH/2035/2017

07.09.2017

Criminal

Statements of a person who dies, are admissible, if the statements relate to the cause of death, or explain circumstances leading to the death

The Appellants faced trial for offence punishable under Sections 306 and 498-A read with Section 34 of Indian Penal Code, 1860 ('IPC'). They have been acquitted of offence punishable under Section 306 read with Section 34 of IPC and have been convicted of offence punishable under Section 498-A read with Section 34 of Indian Penal Code and are sentenced to suffer rigorous imprisonment for two years and to pay fine. The State is challenging the acquittal of the accused for offence punishable under Section 306 of IPC and accused are challenging the conviction under Section 498-A read with Section 34 of IPC.

The ingredients of Section 498-A of IPC are articulated in Girdhar Shankar Tawade v. State of Maharashtra. Thus, the basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislature: whereas Explanation (a) involves three specific situations 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 of IPC.

Cruelty for the purpose of section 498-A of IPC is statutorily defined. Cruelty which may be constitute a matrimonial offence may not necessarily be the cruelty envisaged under Explanation (a) and (b) to Section 498-A of IPC. The evidence on record must be tested on the anvil of the statutory definition of cruelty and the articulation of the H Supreme Court on the scope and ambit of Section 498-A of IPC.

The prosecution case entirely rests on the testimony of the four family members of the deceased. The evidence of PW 1 on the ill-treatment, to the extent the evidence is hearsay, is not admissible and the said aspect shall be dealt with at a later stage in the judgment. The evidence is even otherwise too sketchy, general and grossly insufficient to prove cruelty within the meaning of Explanation (a) and Explanation (b) of Section 498-A of IPC.

The evidence which is based on what Deceased narrated is hearsay and is not admissible under Section 32(1) of the Indian Evidence Act, 1872. The prosecution has not proved that, Deceased committed suicide. PW1 asserts that, deceased narrated the instances of ill-treatment when she met her family members. The statements attributed to the deceased are clearly inadmissible, since the death of Sarswati is neither homicidal nor suicidal. Section 32(1) of Evidence Act, is an exception to the rule of hearsay and statements of a person who dies, whether the death is a homicide or a suicide, are made admissible if the statements relate to the cause of death, or explain circumstances leading to the death. Suicidal death is not proved, the statements attributed to deceased are not statement which are admissible under Section 32(1) of the Indian Evidence Act and to the extent the evidence of PW1 and other family members is hearsay, the evidence is clearly inadmissible.

The evidence of PW 2 is not only sketchy, vague and inherently unreliable due to proved omissions, the evidence is inadmissible since the evidence is entirely hearsay. PW2 is not a witness to the alleged ill-treatment. The ill-treatment is said to be narrated to her by the deceased. Similarly, the evidence of PW3 and PW4 is entirely hearsay and inadmissible.

The evidence of the family members of the deceased is mostly, if not entirely inadmissible and Section 32(1) of the Indian Evidence Act, does not come into play since cause of death or the circumstances leading to death was not an issue in so far as offence under Section 498-A of IPC, is concerned. However, even if the evidence is taken at face value, the prosecution has not established cruelty of the nature and extent which can be the basis of conviction under Section 498-A of IPC. Criminal Appeal is allowed and the accused are acquitted of offence punishable under Section 498-A read with Section 34 of IPC. Appeal filed by State is dismissed.

Relevant

Girdhar Shankar Tawade v. State of Maharashtra MANU/SC/0361/2002
: (2002) 5 SCC 177

Tags : Conviction Legality Circumstantial evidence

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