SURENDRAN versus STATE OF KERELA
[2022] 4 S.C.R. 675, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Facts
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SURENDRAN
v.
STATE OF KERELA
(Criminal Appeal No. 1080 of 2019)
MAY 13, 2022
[N. V. RAMANA CJI, A. S. BOPANNA AND
HIMA KOHLI. JJ.]
Evidence Act, 1872: s. 32 – Dying declaration –  Admissibility
of – On facts, suicide attempt by the wife soon after marriage due
to harassment and dowry demands of husband and the family
members – Settlement between the parties, however, harassment
continued and wife committed suicide within two years of marriage
– Conviction of husband, his mother and two brothers u/ss. 304B
and 498A – Appellate court acquitted the brothers but maintained
the conviction of the husband and the mother – However, the High
Court acquitted the husband and his mother u/s.304B while upheld
their conviction u/s.498A and sentenced accordingly – Husband’s
case before this Court that since he was acquitted u/s. 304B, thus,
statement of wife could not be relied upon to sustain his conviction
u/s. 498A as it would not fall within the ambit of s. 32(1) – Held:
U/s. 32, 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 – s. 32(1)
has been used to admit statements in a case where the charge is of
a different nature or even in a civil action – Second part of the s.
32(1) specifies that such statements are relevant ‘whatever may be
the nature of proceeding in which the cause of death comes into
question – Test of
admissibility u/s. 32(1) is that ‘the cause of death’
must come into question in the case regardless of the nature of the
case – Purpose for which such evidence is being sought should be
a part of the ‘circumstances of the transaction’ relating to the death
– Whether the charge relating to death is proved or not is immaterial
with respect to its admissibility – On facts, it is not necessary to
examine whether the statement of the wife can be admitted u/s 32(1)
– Other evidence on record clearly proves the husband’s guilt beyond
reasonable doubt – Furthermore, evidence of the mother of the
deceased was reliable – Thus, the order passed by the High Court
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does not call for interference – Penal Code, 1860 – ss. 304B and
498A.
Dismissing the appeal, the Court
HELD: 1.1 Section 32 of the Evidence Act, 1872 relates to
the admissibility of statements made by a person who cannot be
called as witness. The Section itself specifies the circumstances
under which such statements become relevant. In the instant
case, the concern is with one such circumstance, that is, when
the person who made the statement is dead. [Para 9][681-D-E]
1.2 To rely on Section 32(1) of the Evidence Act, one of the
main conditions laid out in the sub-section is that the issue must
arise “in cases in which the cause of that person’s death comes
into question”. [Para 11][682-D]
1.3 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. 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”. Illustration (a) to
Section 32 of the Evidence Act refers to a statement made by a
deceased in a rape case which may be admitted under
the section,
which was the position in India even prior to the enactment of
the Evidence Act. [Para 14][684-B-D]
1.4 The test for admissibility under the Section 32(1) of the
Evidence Act, 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. [Para 17][686-D-F]
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1.5 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 IPC under Section 32(1) of the Evidence
Act. There are, however, certain necessary pre-conditions that
must be met before the evidence is admitted. 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 IPC, the prosecution has also charged
the accused under Sections 302, 306 or 304B 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. 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 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. [Paras 20-22][689-F-H; 690-A-B]
Gananath Pattnaik v. State of Orissa (2002) 2 SCC 619
: [2002] 1 SCR 845; Inderpal v. State of MP (2001) 10
SCC 736; Bhairon Singh v. State of Madhya Pradesh
(2009) 13 SCC 80 : [2009] 9 SCR 875; Kantilal Martaji
Pandor v. State of
Gujarat (2013) 8 SCC 781 : [2013]
8 SCR 137 – Partly Overruled.
1.6 It is not necessary for this Court to undertake the
exercise to determine whether the statement of the deceased
can be admitted under Section 32(1) of the Evidence Act. The
appeal can be decided even without considering this aspect, as
the other evidence on record clearly proves the appellant’s guilt
beyond reasonable doubt. [Para 24][690-E]
1.7 The deceased’s wife was being harassed is clear from
the evidence of PW-3 (mother of the deceased). She had
specifically stated in her chief examination that within few days of
their marriage, the appellant brought the deceased back to her
parental home with the threat that if extra dowry was not given,
he would leave her and marry another “beautiful” girl. As a result
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of such harassment, the deceased allegedly attempted suicide
for the first time by consuming poison. While she was being treated
in the hospital, a settlement was reached between the parties, to
which appellant was also a part, wherein it was agreed that no
further demands for dowry would be made. This agreement was
exhibited before the trial court. Although the High Court indicated
that the said settlement was not admissible in evidence, the fact
of its existence has been deposed by PW-9, who is an independent
witness, as well as by PW-3. Further, it was stated by PW-3 in her
chief examination that even after the settlement, the appellant
had continued to ill-treat the deceased. The deceased, due to
the ill-treatment faced by her had ultimately committed suicide
by hanging herself with a saree. [Para 25][690-F-H; 691-A]
1.8 There are concurrent findings of the courts below
upholding the reliability of the evidence of PW-3. The submission
of the appellant that the evidence of PW-3 is unreliable because
she is the mother of the deceased, cannot be accepted. 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][691-B-C]
1.9 There is no reason to interfere with the impugned
judgment passed by the High Court in confirming the conviction
of the
appellant under Section 498A IPC and sentencing him to
undergo rigorous imprisonment for one year. [Para 27][691-F]
Queen v. Bissorunjun Mookerjee (1866) 6 W.R. Cr.
75; Lalji Dusadh v. King Emperor AIR 1928 Pat 162;
Parmanand Ganga Prasad v. Emperor AIR 1940 Nag
340; Pakala Narayana Swami v. King Emperor AIR
1939 PC 47; Sharad Birdhichand Sarda v. State of
Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88;
Ilangovan v. State of T.N. (2020) 10 SCC 533 - referred
to.
Case Law Reference
[2002] 1 SCR 845
partly overruled
Para 23
(2001) 10 SCC 736
partly overruled
Para 23
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[2009] 9 SCR 875
partly overruled
Para 23
[2013] 8 SCR 137
partly overruled
Para 23
[1985] 1 SCR 88
referred to
Para 19
(2020) 10 SCC 533
referred to
Para 26
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1080 of 2019.
From the Judgment and Order dated 12.09.2018 of the High Court
of Kerala at Ernakulam in Crl. Rev. Pet. No. 1801 of 2006.
Adolf Mathew, Sanjay Jain, Advs. for the Appellant.
Harshad V. Hameed, Dileep Poolakkot, Mrs. Ashly Harshad,
Muhammed Siddick, G. Prakash, Advs. for the Respondent.
The Judgment of the Court was delivered by
N. V. RAMANA, CJI.
1. The instant appeal, by way of special leave, is directed against
judgment dated 12.09.2018 passed by the High Court of Kerala in Criminal
Revision Petition No. 1801 of 2006, whereby the High Court partly
allowed the Revision Petition filed by the appellant-husband (accused
no. 5). By way of the impugned judgment, the High Court has set aside
the concurrent findings of conviction of the courts below and acquitted
the appellant under Section 304B of the Indian Penal Code [for short
‘the IPC’] while confirming his conviction under Section 498A of the
IPC. The High Court has further modified the sentence imposed on the
appellant to rigorous imprisonment for one year.
2. The conspectus of the facts necessary for the disposal of the
appeal are as follows: the appellant married the deceased on 09.04.1995.
After the marriage, the deceased resided with the appellant and his family
members at their
matrimonial home. It is alleged that the appellant, along
with his family members, started harassing the deceased soon after the
marriage and was demanding additional dowry. Allegedly, the deceased
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attempted suicide by consuming Benzyl Hexa Chloride powder on
11.02.1996 due to the mental harassment by the accused persons.
Fortunately, she was able to recover after treatment at the Government
Hospital, Palakkad. Subsequent to this incident, mediation between the
parties took place and a settlement was reached between the parties
whereby the deceased continued to reside at the house of the accused.
Despite the above agreement, it is alleged that the harassment continued
and the deceased committed suicide by hanging on 21.10.1996, at her
own home.
3. The prosecution charged the appellant, his parents and his two
brothers under Sections 304B and 498A of the IPC. Pending trial, the
appellant’s father passed away. The Trial Court, after examining all the
witnesses and perusing the documents produced by the prosecution and
defence, convicted the accused persons under Sections 304B and 498A
of the IPC. Vide judgment dated 12.05.2006, the Appellate Court
acquitted the appellant’s brothers of both the offences. However, the
conviction and sentence against the appellant and his mother was
confirmed.
4. Aggrieved, the appellant and his mother filed the Criminal
Revision Petition before the High Court of Kerala. As already mentioned
above, vide the impugned judgment, the High Court partly allowed the
revision petition and acquitted the appellant and his mother under Section
304B of the IPC while confirming their conviction
under Section 498A
of the IPC. The High Court, however, reduced the sentence imposed on
the appellant to rigorous imprisonment for one year, and, that of his mother
to rigorous imprisonment for one month. The appellant’s mother has not
filed any appeal before this Court.
5. The main thrust of the submissions made by the learned counsel
for the appellant are two-fold. First, 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 (for
short ‘the Evidence Act’). Second, that the evidence of PW-3 (mother
of the deceased) is contradictory and cannot be relied upon to convict
the appellant. On the strength of the above two arguments, the learned
counsel for the appellant attempts to persuade this Court that there is no
credible evidence to convict the appellant under Section 498A of the
IPC, and therefore, he should be acquitted of the same.
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6. On the other hand, the learned counsel for the respondent-
State submits that there are three concurrent finding of facts by the
Courts below which do not merit any interference by this Court in exercise
of its jurisdiction under Article 136 of the Constitution of India. Learned
counsel for the State also submits that there is sufficient evidence on
record to make out a clear case for convicting the appellant under Section
498A of the IPC.
7. Heard the learned counsel for the appellant and the respondent-
State at length.
8. Before we proceed, it is expedient to advert to the submissions
of the learned counsel for the appellant particularly that in the present
case, the appellant was acquitted under Section 304B of the IPC by the
High Court in revision and therefore, the statements of the deceased
could not have been relied upon by the High Court to sustain his conviction
under Section 498A of the IPC as it would not fall within the ambit of
Section 32(1) of the Evidence Act.
9. In this context, it is appropriate to refer to certain provisions of
Section 32 of the Evidence Act.  Section 32 relates to the admissibility of
statements made by a person who cannot be called as witness. The
Section itself specifies the circumstances under which such statements
become relevant. In the present case, we are concerned with one such
circumstance, that is, when the person who made the statement is dead.
The learned counsel for the appellant has focused
predominantly on
Section 32(1) of the Evidence Act in an attempt to exclude the evidence
of the deceased by suggesting that it does not fall within the scope of the
abovesaid sub-section and therefore, is inadmissible. The relevant portion
of Section 32 of the Evidence Act is extracted below:
32. Cases in which statement of relevant fact by person
who is dead or cannot be found, etc., is relevant. –
Statements, written or verbal, or relevant facts, made by a person
who is dead, or who cannot be found, or who has become incapable
of giving evidence, or whose attendance cannot be procured,
without an amount of delay or expense which under the
circumstances of the case appears to the Court unreasonable,
are themselves relevant facts in the following cases:
(1) When it relates to cause of death. - When the statement is
made by a person as to the cause of his death, or as to any of the
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circumstances of the transaction which resulted in his death, in
cases in which the cause of that person’s death comes into
question.
Such statements are relevant whether the person who made them
was or was not, at the time when they were made, under
expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into
question.
xxx    xxx    xxx
10. Section 32(1) of the Evidence Act is famously referred to as
the “dying declaration” section, although the phrase itself does not find
mention under the Evidence Act. The Courts have had occasion to
consider the scope and ambit of Section 32, particularly Section 32(1) of
the Evidence Act on various occasions.
11. To rely on Section 32(1) of the Evidence Act, one of the main
conditions laid out in the sub-section is that the issue must arise “in
cases in which the cause of that person’s death comes into question”.
The submission of the learned counsel for the appellant is that, in the
present case, with the acquittal of the appellant by the High Court under
Section 304B of the IPC, and the absence of any appeal challenging the
same, the present case pertains to only Section 498A of the IPC.
Therefore, the present case does not fall within the scope of the
aforementioned sub-section as it is no longer a case in which the cause
of the deceased’s death comes into question. As such, Section 32(1) of
the Evidence Act cannot be relied
upon by the Court to admit the
statements of the deceased to convict him under Section 498A of the
IPC.
12. Learned counsel for the appellant has primarily relied upon
the judgment of this Court in Gananath Pattnaik v. State of Orissa,
(2002) 2 SCC 619, wherein the Court had observed 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 PW 5,
who is the sister of the deceased. In her deposition recorded in
the court on 4-5-1990 PW 5 had stated:
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“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 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 Penal Code, 1860 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.”
(Emphasis supplied)
13. Although not cited by the learned counsel, the proposition put
forth by him appears to be supported by three other judgments of this
Court 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. All of these judgments
SURENDRAN v. STATE OF KERELA
[N. V. RAMANA, CJI.]
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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.
14. It may bear mentioning 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. 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”. Illustration (a) to Section 32 of the Evidence Act
refers to a statement made by a deceased in a rape case which may be
admitted under the section, which was the position in India even prior to
the enactment of the Evidence Act, as held by the Court in the case of
Queen v. Bissorunjun Mookerjee, (1866) 6 W.R. Cr. 75.
15. In Lalji Dusadh v. King-Emperor, AIR 1928 Pat 162, the
Patna High Court upheld the
admissibility of statements made by the
deceased in a case concerning charges under Sections 302, 392 and 397
of the IPC. In that case, the deceased victim was robbed and killed as a
part of the same transaction. The submission of the learned counsel for
the accused in that case, inter alia, was that the dying declaration of the
deceased could not be admitted under Section 32(1) of the Evidence
Act with respect to the charges under Section 392 and 397 of the IPC.
Negativing this contention, the High Court observed as follows:
“A further legal point is taken with regard to the dying declarations.
It is contended that so far as the charges for the offences under
sections 392 and 397 are concerned the dying declarations are
not admissible under section 32(1) of the Indian Evidence Act
inasmuch as the cause of the deceased’s death does not come in
question in the trial of those charges. It is contended that on this
point the Indian law is the same as the English law and that a
dying declaration as to the cause of the death is only admissible
when the causing of the death is the subject of the charge. I
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cannot agree with this view. The words of section 32 are
very wide and it is not necessary that the charge should be
one of homicide. The evidence as to the cause of death was
relevant to the charge of robbery and consequently the
cause of death that is to say the assault committed by the
appellant came in question in the trial. Before the Indian
Evidence Act was enacted it was held in Queen v. Bissorunjun
Mookerjee [(1866) 6 W.R. (Cr.) 75.] that there was no necessity
in India for following the very narrow rule of English law and that
a dying declaration could be used as evidence in a charge of rape.
One of the illustrations to section 32 of the present Indian Evidence
Act expressly provides for such evidence where the charge is not
culpable homicide but rape.”
(Emphasis supplied)
16. Further, in a proceeding with multiple charges, where one
directly relates to the death of a declarant and the other does not, the
Court has admitted the evidence of the declarant even if the prosecution
failed to prove the charge relating to death. For instance, in Parmanand
Ganga Prasad v. Emperor, AIR 1940 Nag 340, the High Court of
Nagpur held as follows:
“7. …The prosecution story as narrated by us shows that
throughout the enquiry the cause of death of Munde was material.
That being so, the mere fact that a charge of murder failed
and was not brought home to the accused would not make
the statement inadmissible for the purposes of other
offences which were committed
in the course of the same
transaction and with which the accused were charged.
8. We may also observe that in all cases regarding admissibility of
a particular piece of evidence the material time when the
admissibility has got to be decided is the time when the Court
received the evidence and not the eventual result. In this case
when the statements were filed by the prosecution and proved in
the case it could under no circumstances be argued that the cause
of death of the deceased was not in question. The cause of death
of Munde was in question as there was also a charge under S.
302, and this charge was joined with other charges in the case
under Section 239(d) as forming part of the same transaction. So,
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at the stage at which these statements were put up by the
prosecution before the Court as admissible, it could not be
argued that they were not admissible and a document once
admitted in evidence remains admissible for all purposes
in the case. The subsequent result of the case, viz., failure
of the charge of murder should not make any difference
whatsoever to the admissibility of the document. Just as their
Lordships of the Privy Council in AIR 1938 PC 130 [Babulal v.
Emperor, (1938) 25 AIR PC 130 : 174 IC 1 : 65 IA 158 : 32 SLR
476 : 39 Cr LJ 452 : ILR (1938) 2 Cal 295 (PC).] stated that the
relevant point of time in the proceedings at which the condition as
to sameness of transaction must be fulfilled is the time of
accusation and not that of the eventual result we think we would
be justified in stating the same with respect to the admissibility of
a document…”
(Emphasis supplied)
17. 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.
18. The phrase ‘circumstances of the transaction’, as occurring
in the section, has been interpreted by the Privy Council in the judgment
that is considered the locus classicus on admissibility of evidence under
Section 32(1) of the Evidence Act, Pakala Narayana Swami v. King-
Emperor, AIR 1939 PC 47. In that case, the Privy Council was dealing
with a case of murder wherein one of the main pieces of evidence against
the accused was the statement made by the deceased to his wife. The
defence argued that such evidence had to be excluded due to the hearsay
rule. However, the said evidence was admitted under Section 32(1) of
the Evidence Act and the accused was convicted. In appeal, one of the
questions the Privy Council had to answer related to whether the
deceased’s statement was properly admitted or not. In that context, the
Privy Council observed as under:
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“A variety of questions has been mooted in the Indian courts as to
the effect of this section. It has been suggested that the statement
must be made after the transaction has taken place, that the person
making it must be at any rate near death, that the “circumstances”
can only include the acts done when and where the death was
caused. Their Lordships are of opinion that the natural meaning
of the words used does not convey any of these limitations. The
statement may be made before the cause of death has arisen, or
before the deceased has any reason to anticipate being killed.
The circumstances must be circumstances of the
transaction : general expressions indicating fear or
suspicion whether of a particular individual or otherwise
and not directly releated to the occasion of the death will
not be admissible. But statements made by the deceased
that he was proceeding to the spot where he was in fact
killed, or as to his reasons for so proceeding, or that he
was going to meet a particular person, or that he had been
invited by such person to meet him would each of them be
circumstances of the transaction, and would be so whether
the person was unknown, or was not the person accused. Such a
statement might indeed be exculpatory of the person accused.
“Circumstances of the transaction” is a phrase no doubt
that conveys some limitations. It is not as broad as the
analogous use in “circumstantial evidence” which includes
evidence of all relevant facts. It is
on the other hand
narrower than “res gestae.” Circumstances must have some
proximate relation to the actual occurrence : though, as for
instance in a case of prolonged poisoning, they may be
related to dates at a considerable distance from the date of
the actual fatal dose.
It will be observed that “the circumstances” are of the transaction
which resulted in the death of the declarant. It is not necessary
that there should be a known transaction other than that the death
of the declarant has ultimately been caused, for the condition of
the admissibility of the evidence is that “the cause of [the
declarant’s] death comes into question.” In the present case the
cause of the deceased’s death comes into question. The transaction
is one in which the deceased was murdered on March 21 or 22 :
and his body was found in a trunk proved to be bought on behalf
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of the accused. The statement made by the deceased on March
20 or 21 that he was setting out to the place where the accused
lived, and to meet a person, the wife of the accused, who lived in
the accused’s house, appears clearly to be a statement as to some
of the circumstances of the transaction which resulted in his death.
The statement was rightly admitted.”
(Emphasis supplied)
19. This principle of law has been upheld by this Court on various
occasions. In Sharad Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116, this Court summarized the principles of Section
32(1) of the Evidence Act, including relating to “circumstances of the
transaction”:
“21. Thus, from a review of the authorities mentioned above and
the clear language of Section 32(1) of the Evidence Act, the
following propositions emerge:
(1) Section 32 is an exception to the rule of hearsay and makes
admissible the statement of a person who dies, whether the death
is a homicide or a suicide, provided the statement relates to the
cause of death, or exhibits circumstances leading to the death. In
this respect, as indicated above, the Indian Evidence Act, in view
of the peculiar conditions of our society and the diverse nature
and character of our people, has thought it necessary to widen
the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally construed
and practically reduced to a cut-and-dried formula of
universal application so as to be confined in a straitjacket.
Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a
logical culmination of a continuous drama long in process
and is, as it were, a finale of the story, the statement
regarding each step directly connected with the end of the
drama would be admissible because the entire statement
would have to be read as an organic whole and not torn
from the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as
being a part of the transaction of death. It is manifest that
all these statements come to light only after the death of
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the deceased who speaks from death. For instance, where
the death takes place within a very short time of the marriage
or the distance of time is not spread over more than 3-4
months the statement may be admissible under Section 32.
(3) The second part of clause (1) of Section 32 is yet another
exception to the rule that in criminal law the evidence of a person
who was not being subjected to or given an opportunity of being
cross-examined by the accused, would be valueless because the
place of cross-examination is taken by the solemnity and sanctity
of oath for the simple reason that a person on the verge of death
is not likely to make a false statement unless there is strong
evidence to show that the statement was secured either by
prompting or tutoring.
(4) It may be important to note that Section 32 does not speak of
homicide alone but includes suicide also, hence all the
circumstances which may be relevant to prove a case of homicide
would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and
letters written by the deceased which are directly connected
with or related to her death and which reveal a tell-tale
story, the said statement would clearly fall within the four
corners of Section 32 and, therefore, admissible. The
distance of time alone in such cases would not make the
statement irrelevant.”
(emphasis supplied)
20. A reading of the above pronouncements makes it clear that, 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 pre-conditions that must be met before the evidence
is admitted.
21. 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
SURENDRAN v. STATE OF KERELA
[N. V. RAMANA, CJI.]
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[2022] 4 S.C.R.
has come into question, whether the charge relating to death is proved
or not is immaterial with respect to admissibility.
22. 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.
23. To the above extent therefore, the judgments of this Court in
Gananath Pattnaik (supra), Inderpal (supra), Bhairon Singh (supra)
and Kantilal Martaji Pandor (supra), wherein it has been held that the
evidence of the deceased cannot be admitted under Section 32(1) of the
Evidence Act to prove the charge under Section 498A of the IPC only
because the accused stands acquitted of the charge relating to the death
of the deceased, may not be correct. These judgments stand overruled
to that limited extent.
24. Coming to the present case, we are of the opinion that it is not
necessary for this Court to undertake the exercise to determine whether
the statement of the deceased can be admitted under Section 32(1) of
the Evidence Act. As the learned counsel for the State rightly points out,
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.
25. The fact that the deceased’s wife was being harassed is clear
from the evidence of PW-3 (mother of the deceased). She had specifically
stated in her chief-examination that within few days of their marriage,
the appellant brought the deceased back to her parental home with the
threat that if extra dowry was not given, he would leave her and marry
another “beautiful” girl. As a result of such harassment, the deceased
allegedly attempted suicide for the first time by consuming poison. While
she was being treated in the hospital, a settlement was reached between
the parties, to which appellant was also a part, wherein it was agreed
that no further demands for dowry would be made. This agreement was
exhibited before the Trial Court as Ext P-3. Although the High Court
indicated that the said settlement was not admissible in evidence, the
fact of its existence has been deposed by PW-9, who is an independent
witness, as well as by PW-3. Further, it was stated by PW-3 in her
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chief-examination that even after the settlement, the appellant had
continued to ill-treat the deceased. The deceased, due to the ill-treatment
faced by her had ultimately committed suicide by hanging herself with a
saree.
26. The learned counsel for the appellant, despite his best efforts,
could not persuade this Court that the evidence of PW-3 was unreliable.
There are three concurrent findings of the Courts below upholding the
reliability of the evidence of PW-3. The submission of the learned counsel
for the appellant that the evidence of PW-3 is unreliable because she is
the mother of the deceased, cannot be countenanced. It is a settled
principle of law that 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. This Court in Ilangovan v. State of
T.N., (2020) 10 SCC 533 has held as follows:
“7. With respect to the first submission of the counsel for the
appellant, regarding the testimonies of related witnesses, it
is settled law that the testimony of a related or an interested
witness can be taken into consideration, with the additional
burden on the Court in such cases to carefully scrutinise
such evidence (see Sudhakar v. State, (2018) 5 SCC 435).
As such, the mere submission of the counsel for the appellant,
that the testimonies of the witnesses in the case should be
disregarded
because they were related, without bringing to the
attention of the Court any reason to disbelieve the same, cannot
be countenanced.”
27. In view of the above, we see no reason to interfere with the
impugned judgment passed by the High Court in confirming the conviction
of the appellant under Section 498A of the IPC and sentencing him to
undergo rigorous imprisonment for one year.
28. The appeal is, accordingly, dismissed. The appellant is on bail.
His bail bonds stand cancelled and he is directed to surrender within a
period of one week from today before the concerned authorities to serve
out the remaining period of sentence.
Nidhi Jain
Appeal dismissed.
(Assisted by : Shashwat Jain, LCRA)
SURENDRAN v. STATE OF KERELA
[N. V. RAMANA, CJI.]