Supreme Court of India

Surendran vs The State Of Kerala on 13 May, 2022

Author:
N.V. Ramana

Bench:
Hima Kohli
,
A.S. Bopanna
,
N.V. Ramana

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1080 of 2019

SURENDRAN … APPELLANT

VERSUS

STATE OF KERALA … RESPONDENT

JUDGMENT

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

Signature Not Verified

further modified the sentence imposed on the appellant to rigorous

Digitally signed by

SATISH KUMAR YADAV

Date: 2022.05.13

16:44:41 IST

Reason:

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 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 two­fold. 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 PW­3 (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.

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

respondent­State 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

sub­section 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
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 sub­section 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 sub­section 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 4­5­
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 non­fulfilment of balance dowry
amount of a scooter and a two­in­one.”

and added:

“On 3­6­1987 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 mother­in­
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 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 498­A 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 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. King­Emperor
, 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
,
and
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
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 cannot
agree with this view. The words of
section
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, 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. King­Emperor, 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:

“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 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 cut­and­dried 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 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 3­4 months the statement may
be admissible under
Section 32
.

(3) The second part of clause (1) of
Section
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 cross­examined by the
accused, would be valueless because the
place of cross­examination 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
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 tell­tale 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 pre­conditions 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 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 PW­3 (mother of the deceased). She had

specifically stated in her chief­examination 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 P­3. Although the High Court

indicated that the said settlement was not admissible in evidence,

the fact of its existence has been deposed by PW­9, who is an

independent witness, as well as by PW­3. Further, it was stated by

PW­3 in her chief­examination that even after the settlement, the

appellant had continued to ill­treat the deceased. The deceased, due

to the ill­treatment 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 PW­3 was
unreliable. There are three concurrent findings of the Courts below

upholding the reliability of the evidence of PW­3. The submission of

the learned counsel for the appellant that the evidence of PW­3 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.

...........................CJI.

(N.V. RAMANA)

...........................J.
(A.S. BOPANNA)

...........................J.
(HIMA KOHLI)

NEW DELHI;

MAY 13, 2022.

22