Whether dying declaration given by wife is admissible for conviction of husband U/S 498A of IPC simplicitor?
Before discussing the evidence, it would
be appropriate to refer to the question which had
come up for consideration before the Hon'ble the
Supreme Court in the matter of Bhairaon Singh vs.
State of M.P. (supra). The question recorded by
the Hon'ble Supreme Court in the above Judgment in
Para 2 is as under:
"2. The question that arises for consideration
in this appeal by special leave is : in a case
where accused has been acquitted of the offence
punishable under Sections 304B and 306, IPC,
and the death of wife is neither homicidal nor
suicidal but accidental, whether the oral
evidence of witnesses about what the deceased
had told them against the accused about the
treatment meted out to her is admissible under
Section 32(1) of the Evidence Act to sustain
conviction under Section 498A IPC?"
The Hon'ble Supreme Court then dealt with
the provisions under Section 32(1) of the Indian
Evidence Act, 1872 and the concerned law on the
subject and after referring to the evidence of the
brothers of the victim in that matter, observed in
Para 11 as under:
"11. The moot question is: whether the
statements attributed to the deceased could be
used as evidence for entering upon a finding
that the accused subjected Ranjana Rani @ Raj
Kumari to cruelty as contemplated under
Section 498A, IPC. In our considered view,
the evidence of PW4 and PW5 about what the
deceased Ranjana Rani @ Raj Kumari had told
them against the accused about the torture and
harassment is inadmissible under Section 32(1)
of the Evidence Act and such evidence cannot
be looked into for any purpose. Except Section
32(1) of Indian Evidence Act, there is no
other provision under which the statement of a
dead person can be looked into in evidence.
The statement of a dead person is admissible
in law if the statement is as to the cause of
death or as to any of the circumstances of the
transactions which resulted in her death, in a
case in which the cause of death comes into
question. What has been deposed by PW4 and
PW5 has no connection with any circumstance
of transaction which resulted in her death.
The death of Smt. Ranjana Rani @ Raj Kumari
was neither homicidal nor suicidal; it was
accidental. Since for an offence under Section
498A simpliciter, the question of death is
not and cannot be an issue for consideration,
we are afraid the evidence of PW4 and PW5 is
hardly an evidence in law to establish such
offence. In that situation Section 32(1) of
the Evidence Act does not get attracted."
8. In view of the above observations of the
Hon'ble the Supreme Court, it is clear that what
victim told PW1 and PW2 against the accused
about the alleged demand and harassment would be
inadmissible evidence under Section 32(1) of the
Indian Evidence Act and the said evidence cannot
be looked into as here also death appears to be
accidental.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.93 OF 2003
Subhash s/o Purandas Pawar,
VERSUS
The State of Maharashtra
CORAM: A.I.S. CHEEMA, J.
DATE OF PRONOUNCING JUDGMENT: 15TH JUNE, 2016.
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