Kanhaiya Lal Patel and Another vs State of Madhya Pradesh (Now State of Chhattisgarh)

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 8.9.93 passed in Sessions Trial No. 146/91 by the First Additional Sessions Judge, Raigarh.

The appellants have been convicted u/s 498A IPC & Section 4 of the Dowry Prohibition Act and sentenced to undergo R.I. for 3 years & fine of Rs. 1,000 and R.I. for six months & fine of Rs.1,000 respectively, with a further direction to run the sentences concurrently.

Appellant No.2 namely Dhanmati Patel died during the pendency of the appeal on 10.12.2000, therefore, her name has been deleted from the cause-title of the appeal and the appeal filed on behalf of appellant No.2 has been dismissed as abated.

The facts, briefly stated, are as under:

The three accused persons namely Kanhaiya Patel, Setram Patel and Dhanmati Patel were prosecuted u/s 498A & 306 IPC and Section 4 of Dowry Prohibition Act. Deceased Bilaskumari was married to accused/appellant No.1 two years prior to her death which took place on 16.5.90. Accused No.2 Setram was her brother-in-law and accused No.3 appellant No.2--Dhanmati Patel was her mother-in-law. The prosecution came with a case that the deceased died suicidal death on account of abetment by the accused persons; the accused persons treated the deceased with cruelty and the husband of the deceased demanded dowry by sending two letters to the father of the deceased Barat Ram (PW1). The learned Sessions Court, on a close scrutiny of evidence led before it, held that it was not proved beyond reasonable doubts that the death of the deceased was suicidal or homicidal. Therefore, all the accused persons were acquitted of the charges framed u/s 306 IPC. The third accused i.e. Setram Patel was acquitted from all the charges framed against him. However, the two appellants were convicted and sentenced as aforementioned. The Sessions Court held that it was proved by the two letters, filed as Ex. P1 & P2, that those letters were written by appellant No.1 and demand of dowry was made by him, therefore, an offence u/s 4 of Dowry Prohibition Act was made out. The Sessions Court further held that on the evidence of Barat Ram (PW1-- father of the deceased), Sakrakunwar (PW10--mother of the deceased) and Dhanmati (PW11 bhabhi of the deceased), it was established that the deceased was being treated with cruelty by the appellants while she was residing in her in-laws place.

Mr. S.K. Tiwari, Learned Counsel appearing on behalf of the appellant, argued that the learned Sessions Judge erred in law in holding that the two letters were written by appellant No.1. The letters were not examined by any expert; even they were not compared with the handwriting of appellant No.1, the Sessions Judge without any basis held that those letters were written by appellant No.1. About treating the deceased with cruelty, he argued that there was no positive and admissible evidence to hold that the deceased was being treated with cruelty by the appellants. In fact, alleged statement of the deceased, said to have been made before the above three witnesses while her visit to the parents place, would be hearsay evidence and would not be admissible for the purpose of conviction of appellants u/s 498A IPC. He relied in the judgments rendered in the matters of Gananath Pattnaik Vs. State of Orissa, and Goverdhan Shobnath Bind Vs. State of Madhya Pradesh,

On the other hand, Mr. Rajendra Tripathi, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

I have heard the Learned Counsel for the parties at length and have also perused the records of the Sessions case.

Admittedly, the two letters (Ex. P1 & P2) were seized by the Investigating Officer from the possession of the father of the deceased, Barat Ram (PW1), Ex. P1 is an inland letter and Ex. P2 is a letter written on plain-paper. No envelope of Ex. P2 has been filed. PW1 admitted in Para-17 of the cross-examination that the above letters were brought to his house by some boys of the village who used to go to village Putkapuri for their studies. They had brought those letters from the post-office of Putkapuri. He very categorically admitted that those letters were not delivered by the post-man and the postal envelope of Ex. P2 has been lost. The hand-writing of the letters were not sent for examination by an expert. Even the Court did not adopt any method for comparing the handwriting and signature of appellant No.1 with the handwritings of the letters. Appellant No.1 has examined himself as defence witness No.2 (DW2). He specifically deposed that he had never written such letters to his father-in-law Barat Ram (PW1). In cross-examination, he only admitted that the signatures over the letters Ex. P1 & P2 appear to be that of same person. It is on this admission only, the Sessions Court recorded the finding that the above two letters were proved to be written by appellant No.1. I am unable to accept such finding of Sessions Court. The above finding is not on the basis of any material on record. Therefore, the Sessions Court erred in law in recording such finding as the fact relating to demand of dowry was not at all established by the prosecution by these letters.

The versions of Barat Ram (PW1), Sakrakunwar (PW10) and Dhanmati (PW11) relating to treating the deceased with cruelty was not admissible in evidence. They deposed that the deceased, while alive, used to tell them that she was being treated with cruelty by the appellants. We note that their such evidence was taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellants were being tried for the offence u/s 306 IPC and such statements were admissible under Clause 1 of the said Section 32 as it related to the cause of death of the deceased and the circumstance of the transaction which resulted in her death. Such statements were not admissible in evidence for the offence punishable u/s 498A IPC and has to be termed as being only a Hearsay evidence. Section 32 is an exception to the Hearsay Rule and it 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 explanations of Section 32 of the Evidence Act then the same cannot be relied upon for finding the guilt of accused persons u/s 498A. This is what the Supreme Court said in Gananath Pattnaik (supra). The said judgment was relied by this Court in Goverdhan (supra) and it was held that such kind of declaration made by the deceased in her life time would not be admissible for the purpose of conviction of the accused persons u/ s 498A IPC.

The learned Sessions Judge has recorded the finding of treating the deceased with cruelty by the appellants on the basis of the alleged declarations made by the deceased to her parents and bhabhi during her life time. On the principles led down in the above mentioned cases, the said declaration was not admissible in evidence and in the facts and circumstances of the case, the conviction based on such evidence cannot be sustained.

For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/s 498A IPC and Section 4 of the Dowry Prohibition Act are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged.