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Judgment
The sole accused in S.C. No.203/2013 on the files of the Additional Sessions Court – III, Kasargod, has filed this appeal, under Section 374(2) of the Criminal Procedure Code [hereinafter referred as ‘Cr.P.C’, for short] challenging the conviction and sentence imposed by the Additional Sessions Judge, against him as per the judgment dated 10.02.2016. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.
Heard the learned counsel for the appellant/accused and the learned Public Prosecutor in detail. Perused the verdict under challenge and the records of the Additional Sessions Court.
In this case, on committal of suicide by the wife of the appellant/accused at 8.30 p.m., on 02.02.2012, a crime was registered alleging commission of offences punishable under Section 498A and 306 of the Indian Penal Code [hereinafter referred as ‘IPC’, for short] on the allegation that the appellant/accused subjected his wife to mental and physical harassment and persuaded her to commit suicide by pouring kerosene on her body.
The learned Additional Sessions Judge recorded evidence and completed trial. During trial, PWs 1 to 9 were examined, Exts.P1 to P13 and MO1 and MO2 were marked on the side of the prosecution. Even though, the appellant/accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of the Cr.P.C., he did not opt to adduce any defence evidence. Finally, the trial court found, that the appellant/accused committed the offence punishable under Section 498A of the IPC, while acquitting for the offence under Section 306 of the IPC. Accordingly, the appellant/accused was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.25,000/-, and default imprisonment for a further period of six months also was imposed.
The learned counsel for the appellant/accused argued that in this case, the crucial witness, who is none other than the daughter of the appellant/accused and the deceased, when examined before the Court, though admitted Ext.P1 complaint lodged by her, turned hostile to the prosecution. Similarly, PWs 2 and 3, the neighbours also turned hostile to the prosecution. Apart from Ext. P13 dying declaration and the evidence of PW9, no other evidence was available and the Additional Sessions Court relied on this evidence to enter into conviction for the offence punishable under Section 498A of the IPC. It is submitted further that even though PW9 given evidence that the mental capacity of the deceased in Ext.P13 statement, which was certified by the doctor, but the doctor was not examined and the same is fatal to the prosecution. On the above grounds, the learned counsel for the appellant/accused pressed for interference in the verdict impunged to reverse the same.
The learned Public Prosecutor zealously supported the verdict on finding that the evidence of PW9 supported by Ext. P13, the dying declaration of the deceased alone is sufficient to prove the offence punishable under Section 498A of the IPC and therefore, the conviction and sentence imposed are liable to be sustained.
Having apprised the rival submissions, the points to be determined are :
How far dying declaration can be the sole basis of conviction ?
Whether the Additional Sessions Court is justified in finding that the accused committed the offence under Section 498A of the IPC?
Whether the verdict of the Additional Sessions Court would require interference?
Order to be passed?
The case of the prosecution is that the appellant/accused subjected his wife to mental and physical harassment, and persuaded her to commit suicide by pouring kerosene on her body.
PW1 who was examined is none other than the daughter of the deceased and the appellant/accused. During chief examination, she admitted lodging of a complaint when her mother committed suicide on 02.02.2012, by admitting Ext.P1 as the complaint. But she denied the allegation in Ext.P1 that her mother committed suicide because of the harassment at the instance of her father. Accordingly, she was declared hostile. When the Public Prosecutor asked questions under Section 154 of the Evidence Act, she had answered that, now she had been residing along with her father.
Coming to PW2, PW2 given evidence supporting Ext.P2 mahazar and regarding the occurrence, as alleged by the prosecution, but she also turned hostile to the prosecution in the matter of cruelty alleged to be committed by the appellant/accused and also the instigation at the instance of the appellant/accused against the deceased in the matter of suicide of her mother. PW3, the independent witness also declared as hostile in this regard. In this matter, the evidence relied on by the learned Additional Sessions Judge to find commission of offence punishable under Section 498A of the IPC, by the appellant/accused is the evidence of PW9 supported by Ext.P13 dying declaration.
In as much as the legal sanctity of dying declaration is concerned, the law is well settled. In the decision in Jayamma v. State of Karnataka reported in [2021 ICO 649], the Apex Court decided the evidentiary value of dying declaration and the ingredients necessary to accept the same as the sole basis of conviction. Paragraph Nos.14 and 15 of the said decision are extracted as under:
“14.Before we advert to the actual admissibility and credibility of the dying declaration (Ex.P-5), it will be beneficial to brace ourselves of the case-law on the evidentiary value of a dying declaration and the sustenance of conviction solely based thereupon. We may hasten to add that while there is huge wealth of case law, and incredible jurisprudential contribution by this Court on this subject, we are consciously referring to only a few decisions which are closer to the facts of the case in hand. We may briefly notice these judgments.
A. In P.V. Radhakrishna. v. State of Karnataka (2003) 6 SCC 443 p. 16:: 2003 ICO 831, this Court considered the residuary question whether the percentage of burns suffered is a determinative factor to affect the credibility of a dying declaration and the probability of its recording. It was held that there is no hard and fast Rule of universal application in this regard and much would depend upon the nature of the burn, part of the body affected, impact of burn on the faculties to think and other relevant factor.
B. In Chacko v. State of Kerala (2003) 1 SCC 112 p. 3, 4 :: 2002 ICO 658, this Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns. It was held that it would be difficult to accept that the injures could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded "patient conscious, talking" in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case.
C. In Sham Shankar Kankaria v. State of Maharashtra (2006) 13 SCC 165 p. 10, 11 :: 2006 ICO 11846, it was re-stated that the dying declaration is only a piece of untested evidence and must like any other evidence satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. Further, relying upon the decision in Paniben v. State of Gujarat (1992) 2 SCC 474 p. 18:: 1992 ICO 144 wherein this Court summed up several previous judgments governing dying declaration, the Court in Sham Shankar Kankaria (Supra) reiterated::
(i)There is neither Rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. [(1976) 3 SCC 104]);
(ii)If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 :: 1985 ICO 232 and Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 :: 1983 ICO 339]);
(iii)The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 :: 1976 ICO 453]);
(iv)Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 :: 1973 ICO 75]);
(v)Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. [1981 Supp SCC 25]);
(vi)A dying declaration which suffers from infirmity cannot form the basis of conviction. (Sec Ram Manorath v. State of U.P. [(1981) 2 SCC 654 :: 1981 ICO 68]);
(vii)Merely because a dying declaration does not contain the details as to the occurrence, it is not-to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455]);
(viii)Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769:: 1979 ICO 315]);
(ix)Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 ICO 429]);
(x)Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 ICO 391]);
(xi)Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700 :: 1982 ICO 84])
15.It goes without saying that when the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the Accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general Rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the decease admissible. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction.”
Reading Ext.P13, the same would recite that on the date of occurrence, in between 8.30 p.m. and 9.00 p.m, the husband reached her residence in an intoxicating stage and told something to her and when she replied, the husband disliked it and he beat her and when he beat her continuously, she poured kerosene on the body and put fire.
PW9 deposed in support of Ext.P13 and according to PW9, while she was working as Judicial First Class Magistrate, Hosdurg – II, at 11. a.m., on 04.02.2012, she recorded the statement of the victim, on getting medical advice from Dr.Swapna, the duty Medical Officer of the District Hospital, Kanhangad, where the victim was admitted, certifying that the patient was fit to give statement verbally. Thus, the statement of the victim, Lissy Kurian Thomas was recorded and as per the statement, the victim reiterated what is stated in Ext.P13. In fact, in the instant case, relying on these evidences, the learned Additional Sessions Judge found commission of offence under Section 498A of the IPC by the appellant/accused.
'Cruelty' under Section 498A of the IPC reads as under:-
“498A. Husband or relative of husband of a woman subjecting her to cruelty.—
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.— For the purpose of this section, “cruelty” means—
(a)any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
The explanation (a) to Section 498A defines 'cruelty' as any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman. The allegation of cruelty discussed above falls within the ambit of Explanation (a) to Section 498A and therefore, the learned Additional Sessions Judge rightly found commission of offence under Section 498A of IPC by the appellant/accused.
Even though it is argued by the learned counsel for the appellant/accused that as per the version of PW1, Lissy Kurian Thomas committed suicide because of mental disorder, her evidence is quiet insufficient to believe the mental disorder of Lissy Kurian Thomas without support of cogent and convincing evidence. Since the law is settled that (1) when the dying declaration directly relates to the cause of death or the circumstances of the transaction that resulted in death (2) the deceased must be of sound mind and conscious when making the statement and (3) the statement is voluntary, free from any coercion, tutoring or prompting, then the same can be the sole basis of conviction.
In the decision in Subramani v. State of Karnataka reported in [2026 KHC 6184 : 2026 INSC 249], it is held that once a doctor certifies the deceased was fit to make a statement, the police officer’s contrary view that she was unconscious does not discredit the declaration.
In view of the above discussion, the conviction imposed by the learned Additional Sessions Judge for the offence punishable under Section 498A of IPC is liable to be confirmed.
Regarding the sentence, the learned counsel for the appellant/accused submitted that the appellant/accused is a person who is looking after PW1 and another child and his detention in custody will be fatal to their interest and canvassed maximum leniency in the matter of sentence. Acting on this submission and in the interest of justice, the sentence imposed can be reduced.
In the result, this criminal appeal is allowed in part. The conviction under challenge is upheld. The sentence imposed by the Additional Session’s Court is modified as under :-
The appellant/accused is sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.10,000/-, and in default of payment of fine, to undergo simple imprisonment for a further period of one month. The appellant/accused is given set-off for the period of sentence he had already undergone in connection with this crime.
The order suspending sentence and granting bail to the appellant/accused stands vacated, with direction to the appellant/accused to appear before the Additional Sessions Court-III, Kasargod forthwith, to undergo the modified sentence, failing which, the Additional Sessions Court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the Additional Sessions Court concerned, forthwith, for information and compliance.