MADHYA PRADESH HIGH COURT
JUSTICE J.P. Gupta
Pradeep & Ors. Vs. State Of Madhya Pradesh On 24 August 2017
Law Point:
Indian Penal Code, 1860 — Section 498A — Evidence Act, 1872 — Section 32 — Cruelty — Dying Declaration — No allegation about demand of dowry — Statement of close relatives of deceased not reliable without any independent and reliable corroboration — Appellant Nos. 2 to 5 cannot be held guilty for offence under Section 498A, IPC — Conviction under Section 498A, IPC cannot be held to be correct — Findings of lower Court unsustainable and set aside.
JUDGEMENT
This appeal has been filed against the impugned judgment of conviction and sentence dated 23.1.2006 passed by Seventh Additional Sessions Judge, Jabalpur in Sessions Trial No. 447/03 whereby the appellants have been convicted for the offence punishable under Sections 498-A and 304-B of the I.P.C. and each of them has been sentenced to R.I. for 3 years along with fine of Rs. 2,000 and RI for 10 years, respectively, with default stipulation as mentioned in the impugned judgment. Both the sentences are directed to run concurrently.
2. Undisputed facts of the case are that the appellant No. 1 Pradeep has been released on 18.1.2011 from jail after serving out the entire jail sentence and on the prayer of the learned Counsel for the appellant No. 1, the appeal has been dismissed on behalf of him and his name has been deleted from the array of the cause title of the memo of appeal vide order of this Court dated 17.7.2012. Further, during pendency of this appeal, appellant No. 2 Bhagwan Das died and on his behalf, his wife Smt. Droupati has been granted leave to continue this appeal on his behalf vide order dated 6.3.2017.
3. In brief, the relevant facts of the case are that on 21.2.2002 the marriage of deceased Mamta was solemnized with the appellant No. 1 -accused Pradeep. Soon after her marriage, when the deceased Mamta was in her in-laws house, she was told by Bhagwan Das, resident of Phootatal, Jabalpur, who died during pendency of the appeal, for bringing Rs. 50,000 more in dowry from her parents. Owing to non-fulfilment of his demand, Bhagwan Das instigated husband, mother-inlaw and sisters-in-law of the deceased Manta, due to which, all the accused persons used to harass and torture the deceased in trifling matters for bringing the dowry amount from her parental house and also subjected her to cruelty physically and mentally for fulfilment of demand of dowry. The deceased was beaten several times by the accused persons and she was also pressurized for eating sulphas. The deceased had also informed in that regard to her relatives. On 10.1.2003 the deceased was also beaten by her mother in-law and sisters-in-law and she was forced to consume sulphas and ultimately, the deceased had taken sulphas and thereafter, she was admitted in National Hospital, Jabalpur, where she died on 17.1.2003. Information in that regard was given to the Police Station, Garha, District Jabalpur, on which, Crime No. 57/03 was registered for offences under Sections 498-A, 304-B of the IPC and Sections 3 / 4 of the Dowry Prohibition Act. Thereafter, the matter was taken into investigation and after completing all due formalities, the police filed the charge sheet in the Court of JMFC, Jabalpur who on its turn committed the case to the Court of Sessions for trial.
4. Learned Trial Court framed the charges for offence under Sections 498-A and 304-B of the IPC against all the accused persons. However, the accused persons abjured their guilt and pleaded false implication in the case and saying the documents produced by the prosecution to be false and forged, they claimed to be tried.
5. This appeal has been filed by the appellants / accused persons on the ground that the finding of the learned Trial Court is contrary to law and the evidence has not been appreciated in its proper perspective, which has caused prejudice to the appellants. In the case the prosecution has failed to prove necessary ingredients of the offence and the statements of prosecution witnesses are full of contradictions, omissions and improvements and also failed to consider that material witnesses are interested and closely related to the deceased and the prejudiced against the appellants because their daughter had died. The learned Trial Court has erred in relying upon the general, vague and omnibus statements against the appellants. Further, it is submitted that there is no specific allegation against the accused persons with regard to cruelty and demand of dowry. The Trial Court convicted the accused persons relying upon the dying declarations of the deceased which are full of contradictions. In the aforesaid circumstances, the appellants/accused are entitled to be acquitted of the offences.
6. On the other hand learned Public Prosecutor opposed the submissions made on behalf of the appellants/accused and supported the findings of the learned Trial Court and prayed for dismissal of the appeal.
7. Having heard learned Counsel for the parties at length and on perusal of the record it is found that in this case there is no controversy with regard to the death of deceased Mamta, which had taken place within one year of her marriage with Pradeep, and nature of death of the deceased was suicidal as she died on account of consuming poisonous substance (E.D.B.). The prosecution has proved all the aforesaid facts by relevant and reliable evidence. Here, the aforesaid facts have not been assailed on behalf of the appellants; therefore, there is no need to make formal exercise to appreciate the evidence with regard to the aforesaid facts. In other words, it is confirmed that deceased Mamta committed suicide within one year of her marriage in her in-laws house.
8. With regard to conviction of the appellants is concerned, learned Trial Court has placed reliance on the dying declarations; Ex.P/1 without considering and discussing the effect of the dying declarations Ex.P/21 dated 10.1.2003 and Ex.P/24 undated and Ex.P/27 dated 15.1.2003. Dying Declaration Ex.P/21 has been recorded by the ASI, J.P. Tiwari (PW-17) in the Private National Hospital and Dying Declaration Ex.P/1 has been recorded by the Executive Magistrate, Vivek Tripathi (PW-1) and both the dying declarations have been recorded in the presence of Dr. Prakash Dixit (PW-21) and he has certified that on the date of incident i.e. on 10.1.2003 at the time of taking statement, she was conscious and fit to give her statement. But both the dying declarations are inconsistent. Dying declaration Ex.P/21, recorded 20 minutes prior to the earlier statement Ex.P/1 by the Police officer, is in detail and there is an averment with regard to demand of dowry and harassment on account of non-fulfilment of demand of dowry and assaulting her by her husband and also mentioned name of co-accused Bhagwandas (now dead) in connection with harassment with other co-accused persons. While in dying declaration Ex.P/1, there is no averment with regard to demand of dowry or any assault made by her husband Pradeep and there is no name of co-accused Bhagwandas with regard to harassment or demand of dowry by him. However, dying declaration Ex.P/21 has been recorded 20 minutes before but it has been recorded by the police officer and the deceased’s father is also police officer and also remained posted in the same police station. In such circumstances, the statement recorded by the Executive Magistrate Ex.P/1 is more reliable in comparison to dying declaration Ex.P/21.
9. So far as other dying declaration Ex.P/24, which is undated, is concerned, allegedly it is a written complaint made to the police officer by the deceased Mamta but written dying declaration has not been proved in accordance with law because neither the Ascriber of the dying declaration Ex.P/24 has been produced nor signature of the deceased Mamta on the dying declaration Ex.P/24 has been proved by any relevant witness. However, ASI J.P. Tiwari (PW-17) has stated that there is a signature of the deceased Mamta on the dying declaration Ex.P/24 but he has not stated that this signature was put in front of him by the deceased Mamta or he otherwise failure of the signature of the deceased Mamta. He has stated that complaint Ex.P/24 was given to him by the concerned TI of the Police Station. Thus, in the aforesaid circumstances, it is not proved that complaint Ex.P/24 was written by the deceased Mamta or written on her instructions, therefore, it cannot be taken into consideration. Other dying declaration Ex.P/27 dated 15.1.2003 is the statement recorded under Section 161 of Cr.P.C. by ASI J.P. Tiwari (PW-17). This statement does not contain certificate of doctor with regard to fitness of the deceased for giving statement. Hence, the statement Ex.P/27 cannot be given much value. Apart from it, this statement is fully inconsistent with earlier statements, Ex.P/1 and Ex.P/21. If the averments of this statement are with regard to one incident which took place as alleged 3 to 4 months before about marpeet and demand of dowry, compromise and mutual understanding with the appellants, parents and deceased and it also shows that a day before the incident dated 10.1.2003, mother-in-law and both sisters-in-law- appellants Nos. 3 to 5 also beaten the deceased Mamta. Therefore, this statement is totally inconsistent with the previous statements. Hona’ble the Apex Court in the judgment of Dandu Lakshmi Reddy v. State of A.P., II (1999) DMC 371 (SC)=VII (1999) SLT 106=(1999) 7 SCC 69, has held that no initial presumption can be drawn that the dying declaration contains only the truth. Dying declaration is not a deposition in Court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross-examination. Therefore, reliance can be placed on a dying declaration after ensuring truthfulness of the same. When there are inconsistencies between the multiple dying declarations, it will be unsafe to convict any person on the strength of such a fragile and rickety dying declaration. Similar view has also been expressed by the Hona’ble Apex Court in the case of Kamla (Smt.) v. State of Punjab, I (1993) DMC 4 (SC)=1992 (SLT SOFT) 169=(1993) 1 SCC 1.
10. In view of the aforesaid case laws of the Hon’ble Apex Court, looking to the inconsistencies in the dying declarations no reliance can be placed on them. However, in the present case, dying declaration Ex.P/1 recorded by the Executive Magistrate may be relied, in which, there is an averment with regard to demand of dowry or harassment on account of non-fulfilment of demand of dowry by the appellants. There is only allegation that the deceased consumed some poisonous substance because her husband and mother-in-law or sister-in-law harassed her. There is no averment as to which type and kind of harassment was made. Therefore, no such inference can be drawn that husband of the deceased and mother-in-law of the deceased or which sisters-in-law of the deceased abetted the deceased to commit suicide. In this statement there is no such averment which requires to come to the conclusion that the harassment was of the nature of the cruelty defined under Section 498-A of the IPC.
11. Learned Trial Court has also relied upon the statement of the deceased father Shobharam (PW-4), brother Ajay (PW-5), mother Yashoda (PW-10), Sister Asha (PW-13). They all have stated in the hospital during treatment that the deceased narrated them that before the incident, the deceased husband appellant No. 1, mother-in-law appellant No. 3 and Sister-in-law appellant Nos. 4 and 5 had beaten her in connection with demand of dowry and they usually used to harass her. But in this regard, Shobharam (PW-4) has not made any statement in his police statement Ex.D/1 and Yashoda (PW-10) has not made any statement in her police statement Ex.D/3 and Asha (PW-13) has also not made any statement in her police statement Ex.D/4. Brother of the deceased namely Ajay has stated that on 10.1.2003 the deceased told him that 2-3 days before of the incident her husband/appellant No. 1 and mother-in-law/appellant No. 3 or sisters-in-law/ appellant Nos. 4 and 5 had beaten her. But the deceased in her statement Ex.P/1 (dying declaration) has not made such statement. Similarly, in dying declaration Ex.P/21 she has not made such statement. She has only disclosed that her husband had beaten her 2 -3 days before the incident. Therefore, with regard to appellant Nos. 3, 4 and 5, the statement of Ajay (PW-5) cannot be deemed to be true and as mentioned earlier, the statements of other witnesses are contrary to their earlier statements recorded under Section 161 of Cr.P.C. Hence, they are also not reliable.
12. In view of the aforesaid discussion, in this case it cannot be deemed to be proved that the appellant Nos. 2 to 5 subjected the deceased to cruelty soon before her death in connection with demand of dowry. Therefore, appellant Nos. 2 to 5 cannot be held guilty of the offence under Section 304-B of the IPC.
13. With regard to offence under Section 498-A of the IPC is concerned, Shobharam (PW-4), Ajay (PW-5), Yashoda (PW-10), Asha (PW-13) and husband of Asha (PW-13) namely Rakesh (PW-11) have stated that on 21.5.2002 appellant No. 1 Pradeep on the instigation of other coaccused had beaten the deceased in connection with demand of dowry and to save herself, the deceased went to the house of neighbor Bharat Singh who informed the father of the deceased Shobharam and then Shobharam informed Rakesh and thereafter, they went to the house of Bharat Singh where the deceased narrated the aforesaid incident and after coming to the house, she also stated to her brother Ajay (PW-5), sister Asha (PW-13) and mother Yashoda (PW-10); but independent witness Bharat Singh (PW-12) has denied to be such type of incident. Apart from it, Rojnamcha Ex.P/18 recorded on the instance of Rakesh (PW-11) does not disclose to be such incident. In this report it is only contended that relatives of the parents of the deceased Mamta had informed that the deceased’s husband, mother-in-law and sisters-in-law were abusing and beating her and she was under great fear. In this regard there is no allegation about demand of dowry. In the aforesaid circumstances, the statements of the close relatives of the deceased Mamta are not reliable without any independent and reliable corroboration and the appellant Nos. 2 to 5 cannot be held guilty on the aforesaid evidence with regard to commission of offence under Section 498A of the IPC.
14. One more aspect requires to be considered in this case. When appellants accused are acquitted under Section 304B of the I.P.C. then the evidence which come in the purview of dying declaration under Section 32 of the Evidence Act cannot be read with regard to evidence under Section 498-A of the I.P.C. as in the offence under Section 498-A of I.P.C. question of death of deceased does not come in the purview of consideration. Therefore, the statements which are admissible under Section 32 of the Evidence Act as relevant to the death of deceased is not admissible with regard to offence under Section 498-A of the I.P.C., as has been held by the Apex Court in the case of Gananath Pattnaik v. State of Orissa, I (2002) SLT 729=(2002) 2 SCC 619. The relevant para 10 is reproduced hereinbelow:
“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 PW 5, who is the sister of the deceased. In her deposition recorded in the Court on 4.5.1990 PW 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-fulfilment 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 now-a-days. 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 (sic).
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 304B 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.
2. In the case of Inder Pal v. State of M.P., reported in 2001(10) SCC 736 wherein the Apex Court considered the matter and held as under:
“7. 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. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A, 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.
2. Relying upon this judgment, the Apex Court further confirmed the same view in the case of Bhairon Singh v. State of M.P., reported in (2009) 13 SCC 80.
3. In view of the aforesaid propositions of law, when no offence under Section 304-B, I.P.C. against the appellants is made out then the statement given by deceased to their parents and other relatives or social worker before the death with regard to illtreatment and harassment by the appellants are not admissible as they come in the purview of hearsay evidence. Then, in absence of other evidence, the fact with regard to the conviction of offence under Section 498A of the I.P.C. remain unestablished, therefore, in view of aforesaid reasons, the appellants conviction under Section 498A of I.P.C. cannot be held to be correct.
4. In view of the aforesaid discussion, the findings of the learned Trial Court are not sustainable as the prosecution has failed to prove the charges beyond reasonable doubt. Hence, this appeal is allowed and the impugned judgment of conviction and order of sentence passed against the appellant Nos. 2 to 5 are hereby set-aside. AppellantsNos. 2 to 5 are acquitted of the charges levelled against them. Appellant Nos. 3 to 5 are on bail. Their bail bonds are discharged. Fine amount, if any deposited by the appellants, the same be returned back to them.
5. A copy of this order be sent to the Trial Court for information and compliance.This appeal has been filed against the impugned judgment of conviction and sentence dated 23.1.2006 passed by Seventh Additional Sessions Judge, Jabalpur in Sessions Trial No. 447/03 whereby the appellants have been convicted for the offence punishable under Sections 498-A and 304-B of the I.P.C. and each of them has been sentenced to R.I. for 3 years along with fine of Rs. 2,000 and RI for 10 years, respectively, with default stipulation as mentioned in the impugned judgment. Both the sentences are directed to run concurrently.
2. Undisputed facts of the case are that the appellant No. 1 Pradeep has been released on 18.1.2011 from jail after serving out the entire jail sentence and on the prayer of the learned Counsel for the appellant No. 1, the appeal has been dismissed on behalf of him and his name has been deleted from the array of the cause title of the memo of appeal vide order of this Court dated 17.7.2012. Further, during pendency of this appeal, appellant No. 2 Bhagwan Das died and on his behalf, his wife Smt. Droupati has been granted leave to continue this appeal on his behalf vide order dated 6.3.2017.
3. In brief, the relevant facts of the case are that on 21.2.2002 the marriage of deceased Mamta was solemnized with the appellant No. 1 -accused Pradeep. Soon after her marriage, when the deceased Mamta was in her in-laws house, she was told by Bhagwan Das, resident of Phootatal, Jabalpur, who died during pendency of the appeal, for bringing Rs. 50,000 more in dowry from her parents. Owing to non-fulfilment of his demand, Bhagwan Das instigated husband, mother-inlaw and sisters-in-law of the deceased Manta, due to which, all the accused persons used to harass and torture the deceased in trifling matters for bringing the dowry amount from her parental house and also subjected her to cruelty physically and mentally for fulfilment of demand of dowry. The deceased was beaten several times by the accused persons and she was also pressurized for eating sulphas. The deceased had also informed in that regard to her relatives. On 10.1.2003 the deceased was also beaten by her mother in-law and sisters-in-law and she was forced to consume sulphas and ultimately, the deceased had taken sulphas and thereafter, she was admitted in National Hospital, Jabalpur, where she died on 17.1.2003. Information in that regard was given to the Police Station, Garha, District Jabalpur, on which, Crime No. 57/03 was registered for offences under Sections 498-A, 304-B of the IPC and Sections 3 / 4 of the Dowry Prohibition Act. Thereafter, the matter was taken into investigation and after completing all due formalities, the police filed the charge sheet in the Court of JMFC, Jabalpur who on its turn committed the case to the Court of Sessions for trial.
4. Learned Trial Court framed the charges for offence under Sections 498-A and 304-B of the IPC against all the accused persons. However, the accused persons abjured their guilt and pleaded false implication in the case and saying the documents produced by the prosecution to be false and forged, they claimed to be tried.
5. This appeal has been filed by the appellants / accused persons on the ground that the finding of the learned Trial Court is contrary to law and the evidence has not been appreciated in its proper perspective, which has caused prejudice to the appellants. In the case the prosecution has failed to prove necessary ingredients of the offence and the statements of prosecution witnesses are full of contradictions, omissions and improvements and also failed to consider that material witnesses are interested and closely related to the deceased and the prejudiced against the appellants because their daughter had died. The learned Trial Court has erred in relying upon the general, vague and omnibus statements against the appellants. Further, it is submitted that there is no specific allegation against the accused persons with regard to cruelty and demand of dowry. The Trial Court convicted the accused persons relying upon the dying declarations of the deceased which are full of contradictions. In the aforesaid circumstances, the appellants/accused are entitled to be acquitted of the offences.
6. On the other hand learned Public Prosecutor opposed the submissions made on behalf of the appellants/accused and supported the findings of the learned Trial Court and prayed for dismissal of the appeal.
7. Having heard learned Counsel for the parties at length and on perusal of the record it is found that in this case there is no controversy with regard to the death of deceased Mamta, which had taken place within one year of her marriage with Pradeep, and nature of death of the deceased was suicidal as she died on account of consuming poisonous substance (E.D.B.). The prosecution has proved all the aforesaid facts by relevant and reliable evidence. Here, the aforesaid facts have not been assailed on behalf of the appellants; therefore, there is no need to make formal exercise to appreciate the evidence with regard to the aforesaid facts. In other words, it is confirmed that deceased Mamta committed suicide within one year of her marriage in her in-laws house.
8. With regard to conviction of the appellants is concerned, learned Trial Court has placed reliance on the dying declarations; Ex.P/1 without considering and discussing the effect of the dying declarations Ex.P/21 dated 10.1.2003 and Ex.P/24 undated and Ex.P/27 dated 15.1.2003. Dying Declaration Ex.P/21 has been recorded by the ASI, J.P. Tiwari (PW-17) in the Private National Hospital and Dying Declaration Ex.P/1 has been recorded by the Executive Magistrate, Vivek Tripathi (PW-1) and both the dying declarations have been recorded in the presence of Dr. Prakash Dixit (PW-21) and he has certified that on the date of incident i.e. on 10.1.2003 at the time of taking statement, she was conscious and fit to give her statement. But both the dying declarations are inconsistent. Dying declaration Ex.P/21, recorded 20 minutes prior to the earlier statement Ex.P/1 by the Police officer, is in detail and there is an averment with regard to demand of dowry and harassment on account of non-fulfilment of demand of dowry and assaulting her by her husband and also mentioned name of co-accused Bhagwandas (now dead) in connection with harassment with other co-accused persons. While in dying declaration Ex.P/1, there is no averment with regard to demand of dowry or any assault made by her husband Pradeep and there is no name of co-accused Bhagwandas with regard to harassment or demand of dowry by him. However, dying declaration Ex.P/21 has been recorded 20 minutes before but it has been recorded by the police officer and the deceased’s father is also police officer and also remained posted in the same police station. In such circumstances, the statement recorded by the Executive Magistrate Ex.P/1 is more reliable in comparison to dying declaration Ex.P/21.
9. So far as other dying declaration Ex.P/24, which is undated, is concerned, allegedly it is a written complaint made to the police officer by the deceased Mamta but written dying declaration has not been proved in accordance with law because neither the Ascriber of the dying declaration Ex.P/24 has been produced nor signature of the deceased Mamta on the dying declaration Ex.P/24 has been proved by any relevant witness. However, ASI J.P. Tiwari (PW-17) has stated that there is a signature of the deceased Mamta on the dying declaration Ex.P/24 but he has not stated that this signature was put in front of him by the deceased Mamta or he otherwise failure of the signature of the deceased Mamta. He has stated that complaint Ex.P/24 was given to him by the concerned TI of the Police Station. Thus, in the aforesaid circumstances, it is not proved that complaint Ex.P/24 was written by the deceased Mamta or written on her instructions, therefore, it cannot be taken into consideration. Other dying declaration Ex.P/27 dated 15.1.2003 is the statement recorded under Section 161 of Cr.P.C. by ASI J.P. Tiwari (PW-17). This statement does not contain certificate of doctor with regard to fitness of the deceased for giving statement. Hence, the statement Ex.P/27 cannot be given much value. Apart from it, this statement is fully inconsistent with earlier statements, Ex.P/1 and Ex.P/21. If the averments of this statement are with regard to one incident which took place as alleged 3 to 4 months before about marpeet and demand of dowry, compromise and mutual understanding with the appellants, parents and deceased and it also shows that a day before the incident dated 10.1.2003, mother-in-law and both sisters-in-law- appellants Nos. 3 to 5 also beaten the deceased Mamta. Therefore, this statement is totally inconsistent with the previous statements. Hona’ble the Apex Court in the judgment of Dandu Lakshmi Reddy v. State of A.P., II (1999) DMC 371 (SC)=VII (1999) SLT 106=(1999) 7 SCC 69, has held that no initial presumption can be drawn that the dying declaration contains only the truth. Dying declaration is not a deposition in Court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross-examination. Therefore, reliance can be placed on a dying declaration after ensuring truthfulness of the same. When there are inconsistencies between the multiple dying declarations, it will be unsafe to convict any person on the strength of such a fragile and rickety dying declaration. Similar view has also been expressed by the Hona’ble Apex Court in the case of Kamla (Smt.) v. State of Punjab, I (1993) DMC 4 (SC)=1992 (SLT SOFT) 169=(1993) 1 SCC 1.
10. In view of the aforesaid case laws of the Hon’ble Apex Court, looking to the inconsistencies in the dying declarations no reliance can be placed on them. However, in the present case, dying declaration Ex.P/1 recorded by the Executive Magistrate may be relied, in which, there is an averment with regard to demand of dowry or harassment on account of non-fulfilment of demand of dowry by the appellants. There is only allegation that the deceased consumed some poisonous substance because her husband and mother-in-law or sister-in-law harassed her. There is no averment as to which type and kind of harassment was made. Therefore, no such inference can be drawn that husband of the deceased and mother-in-law of the deceased or which sisters-in-law of the deceased abetted the deceased to commit suicide. In this statement there is no such averment which requires to come to the conclusion that the harassment was of the nature of the cruelty defined under Section 498-A of the IPC.
11. Learned Trial Court has also relied upon the statement of the deceased father Shobharam (PW-4), brother Ajay (PW-5), mother Yashoda (PW-10), Sister Asha (PW-13). They all have stated in the hospital during treatment that the deceased narrated them that before the incident, the deceased husband appellant No. 1, mother-in-law appellant No. 3 and Sister-in-law appellant Nos. 4 and 5 had beaten her in connection with demand of dowry and they usually used to harass her. But in this regard, Shobharam (PW-4) has not made any statement in his police statement Ex.D/1 and Yashoda (PW-10) has not made any statement in her police statement Ex.D/3 and Asha (PW-13) has also not made any statement in her police statement Ex.D/4. Brother of the deceased namely Ajay has stated that on 10.1.2003 the deceased told him that 2-3 days before of the incident her husband/appellant No. 1 and mother-in-law/appellant No. 3 or sisters-in-law/ appellant Nos. 4 and 5 had beaten her. But the deceased in her statement Ex.P/1 (dying declaration) has not made such statement. Similarly, in dying declaration Ex.P/21 she has not made such statement. She has only disclosed that her husband had beaten her 2 -3 days before the incident. Therefore, with regard to appellant Nos. 3, 4 and 5, the statement of Ajay (PW-5) cannot be deemed to be true and as mentioned earlier, the statements of other witnesses are contrary to their earlier statements recorded under Section 161 of Cr.P.C. Hence, they are also not reliable.
12. In view of the aforesaid discussion, in this case it cannot be deemed to be proved that the appellant Nos. 2 to 5 subjected the deceased to cruelty soon before her death in connection with demand of dowry. Therefore, appellant Nos. 2 to 5 cannot be held guilty of the offence under Section 304-B of the IPC.
13. With regard to offence under Section 498-A of the IPC is concerned, Shobharam (PW-4), Ajay (PW-5), Yashoda (PW-10), Asha (PW-13) and husband of Asha (PW-13) namely Rakesh (PW-11) have stated that on 21.5.2002 appellant No. 1 Pradeep on the instigation of other coaccused had beaten the deceased in connection with demand of dowry and to save herself, the deceased went to the house of neighbor Bharat Singh who informed the father of the deceased Shobharam and then Shobharam informed Rakesh and thereafter, they went to the house of Bharat Singh where the deceased narrated the aforesaid incident and after coming to the house, she also stated to her brother Ajay (PW-5), sister Asha (PW-13) and mother Yashoda (PW-10); but independent witness Bharat Singh (PW-12) has denied to be such type of incident. Apart from it, Rojnamcha Ex.P/18 recorded on the instance of Rakesh (PW-11) does not disclose to be such incident. In this report it is only contended that relatives of the parents of the deceased Mamta had informed that the deceased’s husband, mother-in-law and sisters-in-law were abusing and beating her and she was under great fear. In this regard there is no allegation about demand of dowry. In the aforesaid circumstances, the statements of the close relatives of the deceased Mamta are not reliable without any independent and reliable corroboration and the appellant Nos. 2 to 5 cannot be held guilty on the aforesaid evidence with regard to commission of offence under Section 498A of the IPC.
14. One more aspect requires to be considered in this case. When appellants accused are acquitted under Section 304B of the I.P.C. then the evidence which come in the purview of dying declaration under Section 32 of the Evidence Act cannot be read with regard to evidence under Section 498-A of the I.P.C. as in the offence under Section 498-A of I.P.C. question of death of deceased does not come in the purview of consideration. Therefore, the statements which are admissible under Section 32 of the Evidence Act as relevant to the death of deceased is not admissible with regard to offence under Section 498-A of the I.P.C., as has been held by the Apex Court in the case of Gananath Pattnaik v. State of Orissa, I (2002) SLT 729=(2002) 2 SCC 619. The relevant para 10 is reproduced hereinbelow:
“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 PW 5, who is the sister of the deceased. In her deposition recorded in the Court on 4.5.1990 PW 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-fulfilment 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 now-a-days. 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 (sic).
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 304B 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.
2. In the case of Inder Pal v. State of M.P., reported in 2001(10) SCC 736 wherein the Apex Court considered the matter and held as under:
“7. 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. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A, 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.
2. Relying upon this judgment, the Apex Court further confirmed the same view in the case of Bhairon Singh v. State of M.P., reported in (2009) 13 SCC 80.
3. In view of the aforesaid propositions of law, when no offence under Section 304-B, I.P.C. against the appellants is made out then the statement given by deceased to their parents and other relatives or social worker before the death with regard to illtreatment and harassment by the appellants are not admissible as they come in the purview of hearsay evidence. Then, in absence of other evidence, the fact with regard to the conviction of offence under Section 498A of the I.P.C. remain unestablished, therefore, in view of aforesaid reasons, the appellants conviction under Section 498A of I.P.C. cannot be held to be correct.
4. In view of the aforesaid discussion, the findings of the learned Trial Court are not sustainable as the prosecution has failed to prove the charges beyond reasonable doubt. Hence, this appeal is allowed and the impugned judgment of conviction and order of sentence passed against the appellant Nos. 2 to 5 are hereby set-aside. AppellantsNos. 2 to 5 are acquitted of the charges levelled against them. Appellant Nos. 3 to 5 are on bail. Their bail bonds are discharged. Fine amount, if any deposited by the appellants, the same be returned back to them.
5. A copy of this order be sent to the Trial Court for information and compliance.
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