UNNIMON Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 Ors. v. State of Kerala, 2010 1 KerLT 245 expressing the view that statements of the deceased to witnesses regarding the cruel treatment meted out to her by the accused is totally inadmissible under Section 32(1) of the Indian Evidence Act for sustaining a conviction under Section 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 Bairon Singh v. State of Madhya Pradesh, 2009 3 KerLT 53 (C. No. 56) SC : AIR 2009 SC 2603 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 under Section 498A. According to the learned Judge though the general rule as provided under Section 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 under Section 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 under Section 32(1) of the Indian Evidence Act or the same are inadmissible under Section 60 of the Indian Evidence Act.

(2.) 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.

(3.) 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 under Section 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 under Section 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 under Section 498A simpliciter question of cause of death cannot be relevant under Section 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 Balaram Prasad Agrawal v. State of Bihar, 1997 AIR(SC) 1830. 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 under Section 300 for murder and alternatively for 498A and the trial Judge framed charge against the accused only under Section 302 and not under Section 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 under Section 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 under Section 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.