While overruling some of its earlier judgments, the Apex Court on May 13, 2022 has in a remarkable, recent, refreshing, robust and rational judgment titled Surendran vs State of Kerala in Criminal Appeal No. 1080 of 2019 and cited in 2022 LiveLaw (SC) 482 in exercise of its criminal appellate jurisdiction observed 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 , subject to meeting certain necessary pre-conditions:

1. That her cause of death must come into question in the matter - 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. 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.
    
2. 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.

[Overruled Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619 et al. to this limited extent] (Para 20-23). The Bench of Apex Court comprising of CJI NV Ramana, Justice AS Bopanna and Justice Hima Kohli thus upheld the judgment of the Kerala High Court which had set aside the concurrent findings of conviction of the courts below and acquitted the appellant under Section 304B of the Indian Penal Code while confirming his conviction under Section 498A of the IPC. Very rightly so!

To start with, this brief, brilliant and balanced judgment authored by CJI NV Ramana for a Bench of Apex Court comprising of himself, Justice AS Bopanna and Justice Hima Kohli sets the ball rolling by first and foremost putting forth in para 1 that:
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.

To put things in perspective, the Bench then envisages in para 2 that:
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.

While continuing in the same vein, the Bench then enunciates in para 3 that, 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.

As it turned out, the Bench then states in para 4 that:
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.

It deserves mentioning that the Bench then expounds in para 14 that:
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.

While citing most relevant landmark cases, the Bench then postulates in para 15 that:
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 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).

Be it noted, the Bench then observes in para 16 that:
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).

Quite remarkably, the Bench then points out in para 17 that:
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.

It is worth noting that the Bench then encapsulates in para 19 stating that, 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 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).

Most remarkably, the Bench then points out in para 20, 21 and 22 that:

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 498 A 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 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.

As a corollary, the Bench then holds in para 23 that:
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 498 A 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.

It is worth noting that the Bench then holds in para 24 that:
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.

It merits mentioning that the Bench then mentions in para 25 that:
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 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.

It is also worth mentioning that the Bench then states in para 26 that:
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.

As a consequence, the Bench then states in para 27 that:
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.

Finally, the Bench then concludes by holding in para 28 that:
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.

All told, the Apex Court has elaborated in detail on wife’s dying declaration being used to prove cruelty even if husband is acquitted of charges relating to her death as discussed herein aforesaid. It has cited relevant case laws also and we have discussed some of them here. It definitely merits no reiteration that all courts must certainly abide by what the Apex Court has laid down in this leading case. No denying!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh