Holding

Statements of the deceased about alleged cruelty are inadmissible under Section 32(1) and Section 6, so the conviction under Section 498A cannot be sustained.

Summary

Bhairon Singh was convicted under Section 498A IPC for cruelty to his wife, based solely on the testimony of the deceased's brothers who recounted her alleged complaints of torture and dowry demands. The wife died accidentally by drowning, and the trial and High Courts acquitted him of dowry death and abetment of suicide but upheld the 498A conviction. The Supreme Court examined whether the statements attributed to the deceased could be admitted under Section 32(1) of the Indian Evidence Act or as res gestae under Section 6. It held that Section 32(1) only admits statements relating to the cause of death or its immediate circumstances, which the alleged cruelty statements do not. Section 6 was also found inapplicable because the statements were not contemporaneous with the alleged acts. Consequently, no admissible evidence existed to sustain the 498A conviction, leading the Court to set aside the conviction and order the appellant’s release.

Issues considered

Whether statements of a deceased person concerning alleged cruelty, unrelated to the cause or circumstances of death, are admissible under Section 32(1) of the Indian Evidence Act to prove an offence under Section 498A IPC.
Whether Section 6 of the Evidence Act (res gestae) can render such statements admissible.
Whether a conviction under Section 498A can be sustained in the absence of admissible evidence.

Legislation cited

Dowry Prohibition Act, 1961s. 3
Indian Evidence Act, 1872s. 32(1), s. 6
Indian Penal Code, 1860s. 304B, s. 306, s. 498A

Subjects

Evidence ActSection 32dying declarationSection 498Acrueltydowry harassmentadmissibilityhearsayres gestaecriminal conviction

Judgment

---t
[2009] 9 S.C.R. 875
~

BHAIRON SINGH A
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No.1124 of 2009)

MAY 29, 2009
B
[D.K. JAIN AND R.M. LODHA, JJ.]

PENAL CODE, 1860:

Sections 304-B, 306, 498A - Case under s.304-B and c
306 - Death of wife - Husband acquitted - Death neither
"'""- homicidal or suicidal but accidental - Oral evidence of
witnesses about what the deceased told them against the
accused about the treatment meted out to her - Whether
admissible under Section 32(1) of the Evidence Act to sustain D
conviction under Section 498A /PC - Held: Evidence of PW-
4. and PW-5 about what the deceased had told them against
the accused about the torture and harassment is inadmissible
under Section 32(1) of the Evidence Act - Such evidence
cannot be looked into for any purpose - Evidence Act, 1872,
Section 32(1 ).
E

+ lnder Pal vs. State of M.P. (2001) 10 SCC 736, relied
.....
on.

Sharad Birdhichand Sarda vs. State of Maharashtra F
(1984) 4 sec 116, referred to.
Case Law Reference:
(1984) 4 sec 116 referred to Para 4
..... - .+
c2001) 10 sec 736 relied on Para 12
G

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1124 of 2009.

875 H
876 SUPREME COURT REPORTS [2009] 9 S.C.R. ~

t
A From the Judgment & Order dated 03.01.2008 of the High
Court of M.P. at Jabalpur in Criminal Appeal No. 605 of 1993. J

R.P. Gupta, Jamshed Bey and Parmanand_Gaur for the
Appellants.
B Vibha Datta Makhija for the Respondent.

The Judgment of the Court was delivered by

R.M. LODHA, J. 1. Leave granted.
c 2. The questio:n 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
D 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?

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

thus:

"32. Cases in which stateme(lf of relevant fact by person r

who is dead or cannot be found, etc., is relevant.-- .....
L

Statements, written or verbal, of relevant facts made by a {
F person who is dead, or who cannot be found, or who has 't
become incapable of giving evidence, or whose I•
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 {--
G 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
H in his death, in cases in which the cause of that person's
BHAIRON SINGH v. STATE OF MADHYA PRADESH 877
& ORS. [R.M. LODHA, J.]
death comes into question. A

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 nat·Jre of the proceeding in which the cause of his death
B
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 C·
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:
D
"(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 E
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 F
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 G
and is, a$ 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

1. (1984) 4 sec 116. H
878 SUPREME COURT REPORTS [2009] 9 S.C.R.

'"
A 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
B 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.
c (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-
D 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.
E
(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 +
F 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
G 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
H position stated by Woodroffe and Amir Ali in their Law of
BHAIRON SINGH v. STATE OF MADHYA PRADESH 879 ,
& ORS. [R.M. LODHA, J.]
~
Evidence,(fourteenth edition) and Ratanlal Dhirajlal in their Law A
\
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 admissibHity of
evidence under Section 32(1) is well settled. It is, therefore,
B
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 c
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 D
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 E
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 F
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 G
and circumstances of the death and not previous or
: -.
subsequent transaction, such 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 H
880 SUPREME COURT REPORTS [2009] 9 S.C.R. __
"'

A 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
s 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 Born 45.)

Page 947: Circumstances of the transaction resulting in
c his death: This clause refers to two kinds of statements:
(i) wheri the statement is made by a persoA as to the cause
of his death, or (ii) when the statement is made by a peraon
as to any of the circumstances of the transaction which
resulted in his death. The words 'resulted in his death' do
D not mean 'caused his death'. The expression 'any 9f 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.)
E
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
F 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 withi.n the purview of that expression. Lord
Atkin, who delivered the judgment of the Board, has,
however, made it abundantly clear that, except in special
G
circumstances no circumstance could be a circumstance
of the transaction if it is not confined to either the time
actu~lly 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
H
BHAIRON Sli\JGH v. STATE OF MADHYA PRADESH 881
/ ' & ORS. [R.M. LODHA, J.]
..
transgress the time factor is, for example, a case of A
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 B
occurrence.

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
c
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. D

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 E
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
F
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 ip his death that
may be said to relate to circumstances of the transaction G
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
H
~
882 SUPREME COURT REPORTS [2009) 9 S.C.R.

A 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
B 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 P~rt 234.)

c 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
D 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 acts done when and where the death was
caused .... Dying declarations are admissible under this
clause."
E
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
F 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
G 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).
H
BHAIRON SINGH v. STATE OF MADHJYA PRADESH 883
& ORS. [R.M. LODHA, J.J

7. The accused was charged and tried for the offences A
punishable under Sections 3048, 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), 8rindavan (PW-4), Krishan Murari (PW-5), N.P. Rajoriya B
(PW-6) 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
c
Kumari; that there was no evidence to prove that Ranjana Rani
@ Raj Kumari had committed suicide and that Ranja·na Rani
@ Raj Kumari had fallen into the well accidentally and she died.
Since the marriage of Ranjana Rani @ Raj Kumari with the b
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 1138 of the Indian
Evidence Act was not attracted. The trial court, accordingly,
acquitted the accused of the offence punishable under Sections
3048 and 306, IPC. Relying upon the testimony of PW-4 and E
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 F
the offence under Section 498A, IPC and rigorous
imprisonment for 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 G
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 H
884 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 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
B 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
c 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.

11. The moot question is: whether the statements attributed
D 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 d~ceased Ranjana Rani @ Raj Kumari had told them
E 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
F 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
G 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
H evidence of PW-4 and PW-5 is hardly an evidence in law to
BHAIRON SINGH v. STATE OF MADHYA PRADESH 885
& ORS. [R.M. LODHA, J.]
-./

establish such offence. In that situation Section 32(1) of the A
' Evidence Act does not get attracted.

12. We are fortified in our view by the decision of this Court
in lnder Pal vs. State of M.P2. , wherein this Court considered
the matter thus: B
11
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 C'
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 D
on the same line.· Exhit.;t 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. E

5. Apart from the statement attributed to the deceased
none of the witnesses had spoken of anything which they
'-
"l 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
F
(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 G
.... 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

... 2. (2001) 10 sec 736.
H
886 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 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.

B 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 the same can be
admitted in evidence. In order to make th~ statement of a
dead person admissible in law (writtervor verbal) the
statement must be as to the cause o}'her death or as to
c any of the circumstance of the transactions wh'lch 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
D any circumstance of the transaction which resulted in her
death. Even that apart, Vv11en 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)
E 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
attentJon to Section 6 of the Evidence Act and referred to a
F decisio~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
G 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
H 3. (1999) 9 sec 501.
BHAIRON SINGH v. STATE OF MADHYA PRADESH 887
& ORS. [R.M. LODHA, J.]

law with regard to Section 6 of the Evidence Act thus: A

"6. Section 6 of the Evidence Act is an exception to the
general rule whereunder the hearsay evidence becomes 1

admissible. But for bringing such hearsay evidence within
the provisions of Section 6, what is required to be
8
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 contemporaneously with the acts or
immediately thereafter. The aforesaid rule as it is stated C
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 D
set), and the only conrlition 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 E
the occurrence, provided it is near enough in time to allow
the assumption that the exciting influence continued."

7. Sarkar on Evidence (15th Edn.) summari~es the law
relating to applicability of Section 6 of the Evidence Act
fu~:
I

F
"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 G
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 H
888 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 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
B
& 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
c evidence of the truth of the matters stated. n

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
D part of the same transaction" becomes relevant by itself. To
form particular statement as part of the same transaction
utterances 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,
. E 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 "
F 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 under Section 498A, IPC is set aside. The accused
G ~--
be released forthwith, if not required in any other case.
"""'
G.N. Appeal allowed.