Wife's Dying Declaration Can Be Used To Prove Cruelty Even If Husband Is Acquitted Of Charges Relating To Her Death: Supreme Court

Overruling some of its earlier judgments, the Supreme Court observed that evidence of a deceased wife under Section 32 of Evidence Act with respect to cruelty could be admissible in a trial for a charge under Section 498A of the IPC.

This is, however, subject to satisfaction of two pre­conditions (1) Her cause of death must come into question in the matter (2) 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 comprising CJI NV Ramana, Justice AS Bopanna and Hima Kohli upheld the judgment of the Kerala High Court which had set aside the concurrent findings of conviction of the courts below and acquitted the appellant under Section 304B of the Indian Penal Code while confirming his conviction under Section 498A of the IPC. 

Before the Apex court, the appellant raised these two contentions: (1) 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 (relied on Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619) (2) that the evidence of PW­3 (mother of the deceased) is contradictory and cannot be relied upon to convict the appellant. Thus it was contended that there is no credible evidence to convict the appellant under Section 498A of the IPC. Opposing this appeal, the State submitted that there is sufficient evidence on record to make out a clear case for convicting the appellant under Section 498A of the IPC.

Referring to the decision cited by the accused's counsel, and also the judgments in Inderpal v. State of MP, (2001) 10 SCC 736, Bhairon Singh v. State of Madhya Pradesh, (2009) 13 SCC 80 and Kantilal Martaji Pandor v. State of Gujarat, (2013) 8 SCC 781, the court observed:

"All of these judgments also appear to follow the same line of reasoning as followed by this Court in Gananath Pattnaik case (supra), i.e., that once the Court has acquitted an accused of the charge relating to the death of an individual, the evidence of the deceased would not be admissible to prove the charge under Section 498A of the IPC simpliciter as then the case would no longer relate to the death of the deceased."

Referring to Section 32 of the Evidence Act, the bench said that the phrase "cases in which the cause of that person's death comes into question" is broader than merely referring only to cases where there is a charge of murder, suicide, or dowry death. Referring to old judgments in Parmanand Ganga Prasad v. Emperor, AIR 1940 Nag 340, Lalji Dusadh v. King ­Emperor, AIR 1928 Pat 162, Queen v. Bissorunjun Mookerjee, (1866) 6 W.R. Cr. 75, the court noted:

There have been instances where Courts have used Section 32(1) of the Evidence Act to admit statements in a case where the charge is of a different nature or even in a civil action. This is abundantly clear from the second part of Section 32(1) of the Evidence Act which specifies that such statements are relevant "whatever may be the nature of the proceeding in which the cause of his death comes into question".

From the above pronouncements, and the wordings of Section 32(1) of the Evidence Act, it appears that the test for admissibility under the said section is not that the evidence to be admitted should directly relate to a charge pertaining to the death of the individual, or that the charge relating to death could not be proved. Rather, the test appears to be that the cause of death must come into question in that case, regardless of the nature of the proceeding, and that the purpose for which such evidence is being sought to be admitted should be a part of the 'circumstances of the transaction' relating to the death. 

Further referring to Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , Pakala Narayana Swami v. King ­Emperor, AIR 1939 PC 47, the court arrived at these conclusions:

1. 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. There are, however, certain necessary pre­conditions that must be met before the evidence is admitted.
   
2. 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 of the IPC, the prosecution has also charged the accused under Sections 302, 306 or 304B of the IPC. 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.
   
3. 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. 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 court said that it is not necessary in this case to undertake the exercise to determine whether the statement of the deceased can be admitted under Section 32(1) of the Evidence Act, as this appeal can be decided even without considering this aspect, as the other evidence on record clearly proves the appellant's guilt beyond reasonable doubt. Answering the second issue also against the accused, the bench dismissed the appeal.

Case details

Surendran vs State of Kerala | 2022 LiveLaw (SC) 482 | CrA 1080 of 2019 | 13 May 2022 

CJI NV Ramana, Justice AS Bopanna and Hima Kohli  

Headnotes

Indian Evidence Act, 1872 ; Section 32(1) ; Indian Penal Code, 1860 ; Sections 498A, 304B, 302, 306 - Dying declaration - 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 , subject to meeting certain necessary pre­conditions (1) That her cause of death must come into question in the matter - For instance, matters where along with the charge under Section 498A of the IPC, the prosecution has also charged the accused under Sections 302, 306 or 304B of the IPC - 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. (2) 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. 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. [Overruled Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619 et al. to this limited extent] (Para 20-23)

Indian Evidence Act, 1872 ; Section 32(1) - Test for admissibility- The cause of death must come into question in that case, regardless of the nature of the proceeding, and that the purpose for which such evidence is being sought to be admitted should be a part of the 'circumstances of the transaction' relating to the death - The test is not that the evidence to be admitted should directly relate to a charge pertaining to the death of the individual, or that the charge relating to death could not be proved. (Para 17)

Criminal Trial - The evidence tendered by the related or interested witness cannot be discarded on that ground alone. However, as a rule of prudence, the Court may scrutinize the evidence of such related or interested witness more carefully. (Para 26)

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