Reportable

IN THE SUPREME  COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRL. APPEAL NO. 1124   OF 2009 (Arising  out of S.L.P. (Crl.) No.6816/2008

Bhairon Singh         ..Appellant

Versus

State of Madhya Pradesh   ..Respondent

J U D G E M E N T

R.M. LODHA, J.

Leave granted.

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 304-B 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?

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3.          Section 32(1) of the Indian Evidence Act, 1872 reads  

thus:

“32. Cases  in  which  statement of relevant fact by  person  who  is  dead  or  cannot  be  found,  etc.,  is  relevant.--    Statements,  written or verbal,  of relevant  facts made by a person who is dead, or who cannot be  found, or who has become incapable of giving evidence,  or  whose  attendance  cannot  be  procured,  without  an  amount  of  delay  or  expense  which   under  the  circumstances  of  the  case  appears  to  the  Court  unreasonable,  are  themselves  relevant  facts  in  the  following cases:--

(1)  when  it  relates  to  cause  of  death.—When  the  statement is made by a person as to the cause of his  death,  or  as  to  any  of  the  circumstances  of  the  transaction   which  resulted  in  his  death,  in  cases  in  which  the  cause  of  that  person’s  death  comes  into  question.

Such statements are relevant whether the person  who made them was or was not, at the time  when they  were made, under expectation of death, and whatever  may be the nature of the proceeding in which  the cause  of his death comes  into  question.”

4. The  legal  position  relating  to  the  admissibility  of  

evidence  under  Section  32(1)  has  come  up  for  consideration  

before  this court time and again.    It is not necessary  to multiply  

the authorities  in this regard as reference to a three Judge Bench  

decision of this Court in  Sharad Birdhichand Sarda vs.  State of  

Maharashtra,1 will  suffice.     Regarding  the  application  of  rule  

under Section 32(1) Evidence Act, Fazal Ali,J. culled out the legal  

position as follows:

1 (1984) 4 SCC 116

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“(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

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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.”

5. A. Varadarajan, J. on the other hand referred to the  

legal position stated  by Woodroffe and Amir Ali in their Law of  

Evidence,(fourteenth edition) and Ratanlal Dhirajlal in their Law of  

Evidence (1982 Reprint).   This is how A. Varadarajan, J. dealt  

with the  admissibility of evidence under Section 32(1):

“….The position of law relating to the admissibility of  evidence  under  Section  32(1)  is  well  settled.  It  is,  therefore,  not  necessary  to  refer  in  detail  to  the  decisions of this Court or of the Privy Council or our  High  Courts.  It  would  suffice  to  extract  what  the  learned authors Woodroffe and Amir Ali have stated in  their  Law of Evidence, Fourteenth Edn. and Ratanlal  and Dhirajlal in their  Law of Evidence (1982 Reprint).  Those propositions are based mostly on decisions of  courts for which reference has been given at the end.  They  are  these:  Woodroffe  and  Amir  Ali’s  Law  of  Evidence, Fourteenth Edn.: “Page  937:  Hearsay  is  excluded  because  it  is  considered  not  sufficiently  trustworthy.  It  is  rejected  because it  lacks  the sanction  of  the  test  applied  to  admissible  evidence,  namely,  the  oath  and  cross- examination.  But  where  there  are  special  circumstances  which  give  a  guarantee  of  trustworthiness to the testimony,  it  is  admitted even  though it comes from a second-hand source. Page  941:  What  is  relevant  and  admissible  under  clause (1) of this section (Section 32) is the statement  actually made by the deceased as to the cause of his  death or of the circumstances of the transaction which  resulted in his death. Page 945-946: A statement must be as to the cause  of  the  declarant’s  death  or  as  to  any  of  the  circumstances of the transaction which resulted in his  death i.e. the cause and circumstances of the death  and  not  previous  or  subsequent  transaction,  such

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independent transactions being excluded as not falling  within  the  principle  of  necessity  on  which  such  evidence is received. When a person is not proved to  have  died  as  a  result  of  injuries  received  in  the  incident in question, his statement cannot be said to  be a statement as to the cause of his death or as to  any of the circumstances which resulted in his death.  (AIR 1964 SC 900.) Where there is nothing to show  that  the  injury  to  which  a  statement  in  the  dying  declaration  relates  was  the  cause  of  the  injured  person’s death or that the circumstances under which  it was received resulted in his death, the statement is  not admissible under this clause. (ILR 1901 25 Bom  45.) Page 947: Circumstances of the transaction resulting  in  his  death:  This  clause  refers  to  two  kinds  of  statements:  (i)  when  the  statement  is  made  by  a  person as to the cause of his death, or (ii) when the  statement  is  made  by  a  person  as  to  any  of  the  circumstances of the transaction which resulted in his  death. The words ‘resulted in his death’ do not mean  ‘caused  his  death’.  The  expression  ‘any  of  the  circumstances of the transaction which resulted in his  death’  is  wider  in  scope  than  the  expression  ‘the  cause of his death’. The declarant need not actually  have been apprehending death. (AIR 1964 MP 30.) Page  947:  The  expression  ‘circumstances  of  the  transaction’  occurring  in  Section  32,  clause  (1)  has  been a source of perplexity to courts faced with the  question as to what matters are admissible within the  meaning  of  the  expression.  The  decision  of  Their  Lordships  of  the  Privy  Council  in  Pakala  Narayana  Swami v. Emperor (AIR 1939 PC 47) sets the limits of  the matters that  could legitimately be brought  within  the  purview  of  that  expression.  Lord  Atkin,  who  delivered the judgment  of  the Board,  has,  however,  made  it  abundantly  clear  that,  except  in  special  circumstances  no  circumstance  could  be  a  circumstance of the transaction if it is not confined to  either  the  time actually  occupied  by the  transaction  resulting  in  death  or  the  scene  in  which  the  actual  transaction resulting in death took place. The special  circumstance permitted to transgress the time factor  is, for example, a case of prolonged poisoning, while  the special circumstance permitted to transgress the  distance  factor  is,  for  example,  a  case  of  decoying  with intent to murder.... But the circumstances must be  circumstances of the transaction and they must have  some proximate relation to the actual occurrence.

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Page  948:  ‘Circumstances  of  the  transaction’  is  a  phrase no doubt that conveys some limitations. It  is  not as broad as the analogous use in ‘circumstantial  evidence’ which includes the evidence of all relevant  factors.  It  is  on  the  other  hand  narrower  than  ‘res  gestae’.  Circumstances  must  have  some  proximate  relation  to  the  actual  occurrence,  though,  as  for  instance, in the case of prolonged poisoning they may  be related to dates at a considerable distance from the  date of actual fatal dose. Page 948:  The Supreme Court  in  the case of  Shiv  Kumar v. State of U.P.{1966 Cri.App.R (SC) 281} has  made  similar  observations  that  the  circumstances  must  have  some  proximate  relation  to  the  actual  occurrence,  and  that  general  expressions  indicating  fear or suspicion, whether of a particular individual or  otherwise and not directly to the occasion of death will  not be admissible. Page 949: The clause does not permit the reception in  evidence of all such statements of a dead person as  may  relate  to  matters  having  a  bearing  howsoever  remote  on  the  cause  or  the  circumstances  of  his  death. It is confined to only such statements as relate  to matters so closely connected with the events which  resulted  in  his  death  that  may  be  said  to  relate  to  circumstances of the transaction which resulted in his  death.  [(1939)  66  IA  66.]  ‘Circumstances  of  the  transaction which resulted  in  his  death’  means only  such facts or  series of  facts which have a direct  or  organic relation to death. Hence statement made by  the deceased long before the incident of murder is not  admissible.[1974 Cri LJ 1200 (MP).] Law of Evidence by Ratanlal and Dhirajlal (1982  Reprint) “Page 94: Circumstances of the transaction: General  expressions indicating fear or suspicion whether of a  particular  individual  or  otherwise  and  not  directly  related  to  the  occasion  of  the  death  are  not  admissible. [(1939) 66 IA 66] (18 Part 234.) Page 95: Circumstances must have some proximate  relation to the actual occurrence and must be of the  transaction  which  resulted  in  the  death  of  the  declarant.  The  condition  of  the  admissibility  of  the  evidence  is  that  the  cause  of  the  declarant’s  death  comes  into  question.  It  is  not  necessary  that  the  statement  must  be  made  after  the  transaction  has  taken place or that the person making it must be near  death or that the ‘circumstance’ can only include the

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acts done when and where the death was caused....  Dying declarations are admissible under this clause.”

6. On October 9, 1990, the body of Smt.  Ranjana Rani  

@ Raj Kumari  was found in a well in village  Pyasi.  Autopsy of  

the dead body  was done. The cause of death   was asphyxia due  

to drowning.  Smt. Ranjana Rani @ Raj Kumari had married  the  

appellant,   Bhairon  Singh,   about  10 years   before  her  death.  

Gauna ceremony is said to have been held  after three years of  

marriage.  The prosecution case is that after one year of Gauna,  

the accused  subjected his wife to torture and harassment.  The  

accused would ask his wife to ask her brother to arrange a job for  

him or  get the registry of the house at Ganj Basoda made in  his  

name  or that she should bring Rs. 1 lac to enable him to start  

business.    Ranjana Rani @ Raj Kumari is said to have told  the  

incidence of  torture  and harassment  to  her  brothers  Brindavan  

(PW-4) and Krishan Murari (PW-5).   

7. The accused was   charged and tried for the offences  

punishable under Sections 304B, 306 and 498A, IPC and under  

Section 3 of  Dowry Prohibition Act,  1961.  The prosecution in  

support of its case examined seven    witnesses  namely, Ghuman  

(PW-1),  Prakash Chand (PW-2), Dr. Sunil Kumar Pandya (PW-3),  

Brindavan (PW-4), Krishan Murari (PW-5), N.P. Rajoriya (PW-6)

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and   Lalaram  (PW-7).    The  accused  also   examined   three  

witnesses, namely,  Bala Prasad (DW-1), Surat Singh (DW-2) and  

Hanumat Singh (DW-3).

8. The  trial  court  held:   that  it  was  not  possible  to  

conclude that accused committed  the murder of Ranjana Rani @  

Raj  Kumari;  that  there was no evidence to  prove that  Ranjana  

Rani  @ Raj Kumari    had committed suicide and that  Ranjana  

Rani @ Raj Kumari  had fallen into  the well  accidentally and she  

died.  Since the marriage of Ranjana Rani @  Raj Kumari with the  

accused was held to have taken place more than seven years  

before  the  date  of  her  death,  the  trial  court   held  that  the  

presumption   under  Section  113A  and  113B  of  the   Indian  

Evidence  Act  was  not  attracted.    The  trial  court,  accordingly,  

acquitted the accused of the offence  punishable under Sections  

304B and 306, IPC.   Relying upon the testimony of PW-4 and  

PW-5, the two brothers of the deceased, the trial court, however,  

held that the accused was guilty of the offence punishable under  

Section 498A, IPC and Section 3 of Dowry Prohibition Act, 1961.  

The  trial  court  sentenced   the  accused  to  undergo  rigorous  

imprisonment for   three years  along with fine of Rs.5,000/- for the  

offence under Section 498A, IPC and  rigorous imprisonment for

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five  years  along with  fine  of  Rs.15,000/-  for  the  offence  under  

Section 3 of Dowry Prohibition  Act, 1961.

9. The accused challenged the judgment of the trial court  

in appeal before the Madhya Pradesh High Court.  The High Court  

set aside  the conviction and sentence under Section  3 of Dowry  

Prohibition Act, 1961 but maintained the conviction and sentence  

under Section 498A, IPC.

10. The  only  evidence  to  bring  home  charge  under  

Section 498A, IPC, is that of PW-4 and PW-5.  In their deposition  

PW-4 and PW-5 stated that their sister told  them  that accused  

was  torturing her as he wanted that her brothers  arrange a job  

for him or the house at Ganj Basoda  is given to him or a cash of  

Rs.1 lac  is given to enable him to do some  business.   They  

deposed that as and when their sister come to their house, she  

would tell them  that accused used to  insert cloth in her mouth  

and give beatings for dowry.  The trial court as well as the High  

Court  relied on the evidence of PW-4 and PW-5 and held that  

charge  under  Section  498A,  IPC,  against   the  accused  was  

proved.   Apart  from the  statement  attributed  to  the  deceased,  

none of the witnesses had spoken  anything  which they had seen  

directly insofar as  torture and harassment to Ranjana Rani @ Raj  

Kumari was concerned.

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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 PW-4 and PW-5 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  

the 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  

circumstance 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 PW-4 and PW-5 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 PW-4 and  

PW-5 is hardly an evidence in law to establish such offence.  In

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that situation Section  32(1)  of  the Evidence Act does not get  

attracted.

12. We are  fortified  in  our  view by  the  decision  of  this  

Court   in   Inder  Pal  vs.   State  of  M.P2. ,  wherein  this  Court  

considered the matter thus:

“4. We  will  consider  at  first  the  contention  as  to  whether there is any evidence against  the appellant  which can be used against  him for entering upon a  finding  that  he  subjected  Damyanti  to  cruelty  as  contemplated in Section 498-A IPC. PW 1 father of  the deceased and PW 8 mother of the deceased have  stated that Damyanti had complained to them of her  plight  in  the  house  of  her  husband  and  particularly  about the conduct of the appellant. PW 4 sister of the  deceased and PW 5 a relative of the deceased have  also spoken more or less on the same line. Exhibit P-7  and Exhibit P-8 are letters said to have been written  by Damyanti. In those two letters reference has been  made to her life in the house of her in-laws and in one  of the letters she said that her husband had subjected  her to beating. 5. Apart from the statement attributed to the deceased  none of the witnesses had spoken of anything which  they had seen directly. The question is whether the  statements attributed to the deceased could be used  as  evidence  in  this  case  including  the  contents  of  Exhibits P-7 and P-8 (letters). 6. Before deciding that question we have to point out  that  the  High  Court  came  to  a  conclusion  that  the  allegation  that  she  committed  suicide  was  not  substantiated.  A  dying declaration  was  recorded  by  the Executive Magistrate in which the deceased had  stated that she got burns accidentally from a stove. If  that be so, death could not be the result of either any  harassment or any cruelty which she was subjected  to. In this context we may point out that the State has  not challenged the finding of the High Court that death  of Damyanti was not due to commission of suicide. 7. Unless the statement of a dead person would fall  within  the  purview  of  Section  32(1)  of  the  Indian  Evidence Act there is no other provision under which  

2 (2001) 10 SCC 736

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the  same can be  admitted  in  evidence.  In  order  to  make the statement of a dead person admissible in  law (written or verbal) the statement must be as to the  cause of her death or as to any of the circumstance of  the transactions which resulted in her death, in cases  in which the cause of death comes into question. By  no  stretch  of  imagination  can  the  statements  of  Damyanti contained in Exhibit P-7 or Exhibit P-8 and  those quoted by the witnesses be connected with any  circumstance of the transaction which resulted in her  death. Even that apart, when we are dealing with an  offence under Section 498-A IPC disjuncted from the  offence  under  Section  306  IPC the  question  of  her  death  is  not  an issue for  consideration  and on that  premise also Section 32(1)  of  the Evidence Act  will  stand at bay so far as these materials are concerned.”

13.           The learned counsel for the State, however, invited our  

attention to Section 6 of the Evidence Act and referred to a  

decision of this  Court  in  Sukhar  vs. State of U.P.3

14.               Section 6 of the Evidence Act reads thus:

“6.  Relevancy  of  facts  forming  part  of  same  transaction.--  Facts which, though not in issue, are  so  connected with a  fact in issue as to form part of  the  same  transaction,  are  relevant,  whether  they  occurred at  the same time and place or  at  different  times and places.”

15.        In the case of, Sukhar,  this Court  noticed position of law  

with regard to Section 6 of the Evidence Act  thus:  

“6. Section 6 of the Evidence Act is an exception to  the  general  rule  whereunder  the  hearsay  evidence  becomes  admissible.  But  for  bringing  such  hearsay  evidence within the provisions of  Section 6,  what  is  required to be established is that  it  must be almost  contemporaneous with the acts and there should not  be  an  interval  which  would  allow  fabrication.  The  statements  sought  to  be  admitted,  therefore,  as  forming  part  of  res  gestae,  must  have  been  made  

3 (1999) 9 SCC 507

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contemporaneously  with  the  acts  or  immediately  thereafter.  The  aforesaid  rule  as  it  is  stated  in  Wigmore’s Evidence Act reads thus: “Under  the  present  exception  [to  hearsay]  and  utterance is by hypothesis, offered as an assertion to  evidence  the  fact  asserted  (for  example  that  a  car  brake was set  or not set),  and the only condition is  that it shall have been made spontaneously, i.e. as the  natural  effusion  of  a  state  of  excitement.  Now  this  state of excitement may well continue to exist after the  exciting  fact  has  ended.  The  declaration,  therefore,  may  be  admissible  even  though  subsequent  to  the  occurrence, provided it is near enough in time to allow  the assumption that the exciting influence continued.” 7. Sarkar  on  Evidence (15th  Edn.)  summarises  the  law  relating  to  applicability  of  Section  6  of  the  Evidence Act thus: “1. The declarations (oral or written) must relate to the  act which is in issue or relevant thereto; they are not  admissible merely because they accompany an act.  Moreover the declarations must relate to and explain  the fact they accompany, and not independent facts  previous or subsequent thereto unless such facts are  part of a transaction which is continuous. 2.  The  declarations  must  be  substantially  contemporaneous  with  the  fact  and  not  merely  the  narrative of a past. 3. The declaration and the act may be by the same  person, or they may be by different persons, e.g., the  declarations of the victim, assailant and bystanders. In  conspiracy, riot & c the declarations of all concerned  in the common object are admissible. 4.  Though admissible  to explain  or  corroborate,  or  to  understand the significance of the act, declarations are  not evidence of the truth of the matters stated.”

16. The rule embodied  in Section 6  is usually known as the rule  

of res gestae.   What it means is that a fact  which, though not  

in issue, is so connected with the fact in issue “as to form part   

of the same  transaction”  becomes relevant by itself.  To form  

particular statement as part of the same transaction utterances

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must  be  simultaneous  with  the  incident   or  substantial  

contemporaneous  that is made either during or immediately  

before or after its occurrence.  Section 6 of the Evidence Act,  

in  the  facts  and  circumstances  of  the  case,   insofar  as  

admissibility of a statement of PW-4 and PW-5 about what the  

deceased had told them against the accused  of the treatment  

meted out to her is concerned,  is not at all attracted.

17.  We hold, as it must be,  that there is not an iota of  

evidence which can be admitted in law to be used against the  

appellant for the offence punishable under Section 498A, IPC.

18.         Consequently,  the appeal has to be allowed  and is  

allowed and the conviction and sentence passed on the appellant

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under Section 498A, IPC is set aside.  The accused be released  

forthwith,  if not required in any other case.

……………………J           (D.K. Jain)

……………………J (R.M. Lodha )

New Delhi, May 29, 2009