Unnimon vs State of Kerala

Pius C. Kuriakose, J.—This appeal before us is on a reference made by a learned Single Judge of this Court, V.K. Mohanan(J.). The learned Judge has opined that the judgment of another learned Judge of this Court V. Ramkumar (J.)) in Mony @ Suresh Kumar and Others Vs. State of Kerala, expressing the view that statements of the deceased to witnesses regarding the cruel treatment meted out to her by the accused is totally inadmissible u/s 32(1) of the Indian Evidence Act for sustaining a conviction u/s 498A I.P.C., requires reconsideration. The learned Single Judge did notice that in Mony @ Suresh Kumar''s case (cited supra) reliance had been placed on the judgment of the Supreme Court in Bhairon Singh Vs. State of Madhya Pradesh, for taking such a view. According to the learned Judge, the fact situation obtaining in the case decided by the Supreme Court is entirely different from the fact situation in the present case. Referring to the definition given to the term "cruelty" as per explanation to Section 498A, the learned Judge has observed that though specific provisions like Section 113A and 113B of the Indian Evidence Act dealing with presumptions as to abetment of suicide by a married woman and presumptions as to dowry death are not available with reference to Section 498A I.P.C., Section 114 of the Evidence Act does enable the court to presume the existence of certain facts which may be relevant in prosecutions for offence u/s 498A. According to the learned Judge though the general rule as provided u/s 60 of the Evidence Act is to exclude hearsay evidence, Section 32 provides an exception to the same. The learned Judge has further observed that by virtue of the second para to Sub-Section 1 of Section 32, time factor is not at all relevant in accepting facts made relevant u/s 1 of Section 32 and the learned Judge who decided Suresh Kumar''s case (cited supra) has not ventured to consider the above position and has proceeded simply to rely on the judgment of the Supreme Court in Bairon Singh''s case (cited supra). The learned Judge expresses the opinion that the view expressed in Mony ''s case that statement is not the correct proposition of law. The learned Judge expresses anguish at the present day scenario of dowry deaths and suicides of married girls increasing. The learned Judge refers to the statistics in this regard revealed to the Parliament by the Central Home Minister and states that the same itself is sufficient to disturb a judicial mind. The learned Judge notices with concern that a section of the people are misusing the matrimonial bondage as just as a venue for generating income and that this has resulted in young brides becoming victims of cruelty due to dowry related disputes. According to the learned Judge the dictum laid down in Mony @ Suresh Kumar''s case (supra) does not appear to be in accordance with the quest of a civilised society and hence, has made the reference for deciding whether the statements made about cruelty made to the deceased prosecution witnesses while the deceased was alive would fall u/s 32(1) of the Indian Evidence Act or the same are inadmissible u/s 60 of the Indian Evidence Act.

We have heard the submissions of Sri. S.U. Nazar the Public Prosecutor for the State and also those of Sri. Rafiq, the learned Counsel for the Appellant. Sri. Rafiq, the learned Counsel for the Appellant submitted that the reference order was unwarranted as in this particular case the conviction entered into by the learned Sessions Judge is not based on statements made by the deceased to prosecution witnesses during her life time. The conviction rests solely on two dying declarations. The judgment in Mony @ Suresh Kumar''s case (supra) does not lay down any new legal proposition. The judgment of the Supreme Court in Bairon Singh''s case (cited supra) which was binding on the learned Judge was followed.

Sri. S.U. Nazar, the Public Prosecutor also submitted that the reference was perhaps unwarranted. But the learned Public Prosecutor submitted further that the judgment in Mony @ Suresh Kumar''s case requires to be clarified, lest in all cases where the offence u/s 498A is alleged, the evidence of witnesses regarding statements made to them by the deceased during their life time may be ignored and the accused will be eligible for automatic acquittal irrespective of the question whether other offences like 304B and 306 are also charged against them by the police, Mr. Nazar would refer to the judgment of the Supreme Court in Bairon Singh''s case (supra) and submit that the death which was subject matter of that case was neither homicidal nor suicidal but was dearly found to be an accidental. The accused was found to be guilty of offence only u/s 498A and this was why the Supreme Court also noticed that the statement of crucial witnesses in that case (P Ws.4 and 5) had no connection whatsoever with any circumstance or transaction which resulted in the death of the deceased in that case one Ranjana Rani. What has been held by the Supreme Court is only that for offence u/s 498A simpliciter question of cause of death cannot be relevant u/s 32(1) of the Indian Evidence Act. Strong reliance was placed by the learned Public Prosecutor on an earlier judgment of the Supreme Court in Balram Prasad Agrawal Vs. State of Bihar and others, . It was submitted that in that case which was one of commission of suicide by a married woman due to harassment by in-laws and the police had charge sheeted the accused u/s 300 for murder and alternatively for 498A and the trial Judge framed charge against the accused only u/s 302 and not u/s 498A, the Supreme Court had clearly held that the fact that some information was given to the father of the deceased which prompted him to rush to the police and the fact that the neighbours did not deny about the information that they had given to him or the fact of their having had a meeting with him will not be hit by the Rule of exclusion of hearsay evidence in Section 60 of the Indian Evidence Act. Referring to para 12 of the judgment Mr. Nazar submitted that the Supreme Court has also held that in a case where the deceased committed suicide by jumping into a well due to the cruel treatment inflicted on her by the husband and in-laws evidence of the father of the deceased that she was ill-treated by her husband and in-laws for dowry and being issueless and that she had once attempted to jump into the same well but was saved by the neighbours and the further evidence that cruel treatment was not stopped even after she gave birth to two sons is acceptable on the basis of the presumptions which are drawable u/s 114(d) of the Indian Evidence Act. Mr. Nazar would again refer to Section 32(1) and submit that in the present case the police charge was not for offence u/s 498A alone, but also was for 304-B and 306 I.P.C. That being the position, statement by any witness that the deceased had told the witness during her life time that cruel treatments were meted out to the deceased by the accused compelling her to put an end to her life by committing suicide will be a statement falling within Section 32(1) as such a statement will certainly be a statement relating to cause of death.

As we proceed to answer this reference, it has to be understood clearly as to what is the ratio of the judgment in Mony @ Suresh Kumar''s case. V. Ramkumar (J.) in his judgment refers to the judgment of the Supreme Court in P. Rathinam v. Union of India AIR1994 SCW 1764, the judgment of a Division Bench of this Court in Kunchu v. State 1986 KLT 17 (C. No. 33)) another judgment of the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, and also to the book "The Melancholy Marriage" authored by Mary K. Hinchliffe, Douglas Hooper and F. John Roberts and to Coleridge''s "Ode to Dejection" and opines that it will be difficult to arrive precisely at the reasons that led Sunitha, the deceased to commit suicide and held that the statements by the prosecution witnesses as to what Sunitha told them during her life time cannot be safely relied on. However, the exact legal ratio of the judgment is only that in a case where the only surviving offence against the accused is the offence u/s 498A I.P.C., statements by prosecution witnesses that the deceased had during her life time reported about the cruelty, torture, harassment etc, by her husband or in-laws will not be admissible u/s 32(1) of the Indian Evidence Act. The above pronouncement of the learned Judge is on the basis of the judgment of the Supreme Court in Bairon Singh''s case.

Having gone through the judgment of the Supreme Court in Bairon Singh''s case and also the judgment in Mony @ Suresh Kumar''s case we are convinced that the learned Judge who delivered the judgment in Mony @ Suresh Kumar''s case has completely relied on the judgment of the Supreme Court and has only reiterated the ratio of the judgment of the Supreme Court. As the judgment of the Supreme Court was binding on the learned Judge as well as on us also, we do not think that it is possible to consider the correctness or otherwise of the above ratio laid down in Suresh Kumar''s case, in this reference, Nevertheless, in deference to the reference order passed by V.K. Mohanan (J.) and also the submissions of the learned Public Prosecutor and as we also share the concerns expressed by Mohanan (J.) and on academic considerations, we are proceeding to consider the issue referred to us briefly.

Section 498A I.P.C. reads as follows:

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

(underlining ours)

(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 view that going by the definition of the term ''cruelty'' given u/s 498A wilful conduct which leads to suicide of the victim or it can cause danger to the life of the victim is also included and hence the cause of the death or the circumstance leading to the death of the victim can be an issue and hence any statement pertaining to the cause of the death will be relevant u/s 32(1) cannot be said to be totally unsound. However, the judgment of the Supreme Court in Bairon Singh''s case (cited supra) holds the field and the judgment of the learned Single Judge in Mony @ Suresh Kumar''s case (cited supra) regarding the admissibility of the statements of prosecution witness regarding what the deceased had told them is expressed relying on the above judgments. At the same time, considering the social conditions prevalent in our society and the increasing number of deaths and suicides relating to dowry and the cruelties that are being meted out over dowry disputes, we feel that it will be profitable to issue certain clarifications regarding the view expressed in Suresh Kumar''s case (cited supra).

In Bairon Singh''s case (cited supra), the charge against the accused was not only u/s 498A of I.P.C. but also under Sections. 304B, 306 and Section 3 of the Dowry Prohibition Act. The trial court found the accused guilty of offences u/s 498A I.P.C. and Section 3 of the Dowry Prohibition Act. The accused alone appealed to the Madhya Pradesh High Court. The Madhya Pradesh High Court, considering the appeal, exonerated the accused from the offence u/s 3 of the Dowry Prohibition Act. The Supreme Court considered the appeal preferred by the accused only. The prosecution virtually conceded before the Supreme Court that the only offence which can be sustained against the accused is one u/s 498A. The Supreme Court''s judgment itself proceeds on the basis that the death of the deceased was neither homicidal nor suicidal but was purely accidental. This is very clear from para 11 of the judgment of the Supreme Court and also from para 7 of the judgment of the Supreme Court in Inderpal v. State of M.P. AIR2001 SCW 5092 quoted in para 12. It is on the basis of the clear finding that the death in question was accidental, that the Supreme Court gives its pronouncement on Section 32(1) of the Indian Evidence Act in the context of the offence u/s 498A IPC. But in a case where enquiry by the trial court is also on the question whether an accused is guilty of offence under Sections. 306 or 304B, then certainly the statement made by the deceased regarding the cause of her death or regarding the circumstances which led to her death will be relevant. In such cases Section 113A and Section 113B of the Evidence Act also may become relevant.

Mohanan (J.) in his reference order observes that even though provisions like Section 113A and 113B of the Indian Evidence Act may not be applicable in cases of Section 498A I.P.C., it may be possible to draw presumption u/s 114 of the Indian Evidence Act in such cases. There is support for the above view from the Supreme Court judgment in Balaram Prasad Agrawal ''s case (cited supra). We, however, will only observe that drawing presumptions in favour of the prosecution beyond the statutory illustrations given u/s 114 will not be safe.

As we come back to the facts of the present case what we notice is that as per the First Information Report the Police had charged the accused for the offence u/s 304B I.P.C. Later when Final Report was submitted to the court, offences under Sections 306 and 498A I.P.C. were also added. When the accused is being prosecuted for offence under Sections 304B and 306 I.P.C. naturally statements by prosecution witnesses as to what the deceased told them regarding the cause of the death or regarding the circumstances which led to the death will be relevant. We will only observe that as far as the present case is concerned, these statements were relevant during the trial by the trial court. We are therefore, inclined to answer the reference issuing a clarification that in cases where the accused is being prosecuted for offence like Sections 304B and 306 I.P.C. just because the offence u/s 498A is also alleged against the accused, the statements of prosecution witnesses as to what the deceased told them regarding the cause of death and the circumstances that led to the death will not become irrelevant u/s 32(1). Reference is answered accordingly.