Holding

The prosecution failed to prove cruelty under Section 498A IPC; statements under Section 32 are inadmissible, and the appellant is acquitted of the charge.

Summary

The wife, Rashmirekha, hanged herself at home, leading her father to file an FIR alleging that her husband, Ganatanii Paitanaik, and his family murdered her over dowry demands. The trial court acquitted the husband of the dowry‑death charge (Sec. 304B IPC) but convicted him under Sec. 498A IPC for cruelty, sentencing him to three years' rigorous imprisonment; the High Court affirmed this conviction. On appeal, the Supreme Court examined whether the statements of the deceased, recorded under Section 32 of the Evidence Act, could be used to prove cruelty under Sec. 498A, and whether the alleged acts (taking away the child, alleged harassment, and alleged illicit relationship) amounted to cruelty. The Court held that such statements are inadmissible for Sec. 498A as they are hearsay, and that no legal evidence was produced to establish either physical or mental cruelty as defined under the section. Consequently, the prosecution failed to prove the offence beyond reasonable doubt, and the appellant was acquitted of the Sec. 498A charge, with the benefit of doubt applied.

Issues considered

Whether statements of the deceased recorded under Section 32 of the Evidence Act are admissible as evidence for an offence under Section 498A IPC.
Whether the alleged conduct of the husband constitutes cruelty within the meaning of Section 498A IPC.
Whether the benefit of doubt principle applies when evidence of cruelty is insufficient.

Legislation cited

Subjects

dowry deathcrueltySection 498AhearsayEvidence Actbenefit of doubtsuicidedowry demand

Judgment

GANANATII PAITANAIK A -
v.
STATE OF ORISSA

FEBRUARY 6, 2002

[R.P. SETHI AND BISHESHWAR PRASAD SINGH, JJ.) B

Criminal law:

Penal Code, 1860/Evidence Act, 1872-Sections 3048 & 498A/Section
32-Dowry death-Cruelty-Suicide by wife-Conviction of husband by trial C
court and High Court for cruelty-Held, mental torture and abnormfal
behaviour may amount to cruelty-Statement of deceased to her family
members is not admissible for the offence of cruelty being hearsay evidence-
On facts, no legal evidence for commission of cruelty-Hence husband
acquitted giving benefit of doubt. D
Wife of cppellant committed suicide by hanJing herself in the house.
An FIR was IOOged with the po!il:e by the father of the deceased el?:ging murder
of his daughter by the appellant and his family members. The pl'O"Aeution
established that the deceased committed suicide due to ill-treatment,
honmment end cruelty by the eppellant and his family membtrs for bringing E
wuftltimt dowry. The nppellent was convitted under s=ctioes JMB &ad 49'JA
IPC for the offence or dowry death and cruelty. Trial Court convicted the
appellant for cruelty under Section 498A IPC and sentenced him to three
years rigorous imprisonment which was upheld by High Court.

In appeal to this Court, the appellant contended that the findings by the F
trial court regarding cruelty under Section 498A IPC were not based on any
legal evidence.

Allowing the appeal, the Court

HELD: 1.1. The concept of cruelty and its effect varies from individual G
to individual and also depending upon the social and economic status to which
such person belongs. Cruelty forthe purposes of constituting the offence
under section 498A IPC need not be physical. Even mental torture or abnormal
behaviour may amount to cruelty and harassment in a given case. (848-El

1.2. The statement of the deceased made to her family members, which H
845
846 SUPREME COURT REPORTS [2002) 1 S.C.R.

A luid been taken on record with the aid of Section 32 of the Evidence Act, 1872
for the offence under section 3048 IPC is not edmissib!e in evidence for the
offence punishnb!e under section 498A IPC. It hes to be termed m being oaly
n hennny evidence. Section 32 of the Evidence Act is on exception to the
beanuy rule und deals with the statement, or declarations by a person, s!~ce
B deed, relnting to the cnus: of his or her death or the circumstances leading
to such death. If n statement which otherwise is covered by the hearsny rule
does not fan within the exceptions of Section 32 of the Evidence Act, the same
cannot be relied upon for finding the guilt of the deceDsed. [849-E-F)

1.3. There is no evidence on record to hold that the dee~ hnd
C conceived the npprehension of the nppellant hnving illicit rebltions with his
sister-hi-law, which J:cl th: deceased to end her life. There is no l:gal evidence
tendered \7hich cou!d be mede the bnsis for returning n findine with respect
to th: cl!2gcd cruelty of t~e eccused with the d~. In the nbsence of coy
ltgnl cvideace, the prosecution bas fniled to prove tbnt the oppellont bnd
cor::u:litt!Cl the ofi~nce unc!:r action 49aA IPC. Givbg t~ ep~ct tit: b:n~
D of doubt, he is acquitted of the charges under section 498A IPC.
[CS9-G-H; 851-B)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I of
1995.

E From the Judgment and Order dated 25.5.94 of the Orissa High Court
in Crl.A. No. 94of1992.

K.P. Singh and Sanjiv Das for the Appellant.

J.K. Das for the Respondent.
F
The Judgment of the Court was delivered by:

SETHI, J. The appellant was charged for the commission of offences
punishable under Sections 304B and 498A of the Indian Penal Code for
allegedly subjecting his wife to cruelty and causing the dowry death. After
G trial, the appellant was acquitted of the charge framed against him under
Section 304B but convicted under Section 498A of the Indian Penal Code and
sentenced to three years rigorous imprisonment. The appeal filed by the ""
appellant against his conviction and sentence under Section 498A IPC was
dismissed vide the judgment impugned in this appeal.

H The facts of the case are that the appellant's marriage with Rashmirekha
GANANATH PATTANAIK v. STATEOFORISSA [SETHl,J.] 847

was solemnised on 4.3.1984. A male child was born to the parties on 9.5.1985. A
Rashmirekha, the wife of the appellant died by hanging herself in the bathroom
regarding which the appellant is stated to have lodged a written report to the
Police Station Sahid Nagar and he infonned the family members of the deceased.
PWl, the father of the deceased thereafter lodged an FIR alleging therein that
his daughter was murdered by the appellant and his family members. During
the investigation it transpired that the deceased had committed suicide on B
account of dowry demands, allegedly made by the appellant and his family
members. It was further revealed that the deceased had been subjected to ill-
treatment, harassment and cruelty. The appellant was alleged to be having
• illicit connection with his brother's wife. The accused totally denied the
occurrence. In his statement, recorded under Section 313 of the Code of C
Criminal Procedure, he admitted that the deceased was his wife but asserted
that he was having very cordial relations with her. There was no demand of
dowry either by him or his brother or his family members. According to him
the deceased had committed suicide which is not related to either cruelty or
harassment or demand of dowry.
D
Upon analysis of the prosecution evidence, the trial court concluded
that, "in absence of any acceptable evidence to establish the foundational
fact, the accused cannot be held guilty for the offence under Section 3048
of IPC''. The trial court, however, found the appellant guilty for the offence
under Section 498A IPC by finding:
E
"In this case there is evidence that the accused has given purshes to
the deceased in presence of PW4. He has taken away the child from
her as stated by PW5. There is also evidence that the deceased was
not allowed to sit on the scooter by the accused and he was frequently
staying absent in the house. He also failed to explain his position in F
relation to his sister-in-law Bijayalaxmi to the deceased for which there
was an impression that he had illicit relationship with Bijayalaxmi. I
find the evidence of the witnesses on this score is consistent. Taking
away the child and the further ill treatment of the accused to the
deceased as indicated above amounts to cruelty in as much as by the
said conduct of the accused, it could be much possible that the G
deceased Rasmirekha could be driven to commit suicide."

The aforesaid findings were confinned by the High Court vide the order
impugned.

It is conceded before us that no appeal or revision has been filed H
SUPREME. COURT REPORTS (2002] I S.C.R.

A against the judgment of the trial court by which the appellant was acquitted
of the charge framed against him under Section 3048 of the Indian Penal
Code.
..
We do not agree with the argument of the learned counsel for the
appellant that even on proof of the aforesaid circumstances, as noticed by
B the trial court, no case was made out against the appellant as, according to
him, those facts even proved do not constitute cruelty for the purposes of
attracting the provisions of Section 498A of the Indian Penal Code. Cruelty
for the purposes of aforesaid section has been defined under the Explanation
of the Section to mean:
c "(a) any wilful conduct which is of such a nature as is likely to drive
•
the woman to commit suicide or to cause grave injury or danger
to life, limb or health (whether mental or physical) of the woman;·
or
(b) harassment of the woman where such harassment is with a view
D to coercing here or any person related to her to meet eny unlawful
demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such
demand."
The concept of cruelty and its effect varies from individual to individual
E also depending upon the social and economic status to which such person
belongs. "Cruelty" for the purposes of constituting the offence under the
aforesaid section need not be physical. Even mental torture or abnormal
behaviour may amount to cruelty and harassment in a given case.

Learned counsel for the appellant then submitted that the findings
F returned by the trial court regarding the cruelty within the meaning of Section
498A of the Indian Penal Code are not based on any legal evidence.

To hold that the accused had once given pushes to the deceased which
drove her to commit suicide are based upon the alleged testimony of PW4
G who is the mother of the deceased. We have minutely read the statement of
the aforesaid witness and do not find any mention of her having seen the
accused pushing the deceased which, in tum, could be held to be "cruelty"
driving her to commit suicide.

Another circumstance of cruelty is with respect to taking away of the
H child from the deceased. To arrive at such a conclusion, the trial court has
> GANANATH PATTANAIK v. STATE OF ORISSA [SETHI, J.] 849
referred to the statement of PW5, who is the sister of the deceased. In her A
deposition recorded in the court on 4.5.1990 PW5 had stated:

.. "Whenever I had gone to my sister, all the times she was complaining
that she is not well treated by her husband and in-laws for non-
fulfilment of balance dowry amount of scooter and twin one."
B
and added:

"On 3 .6.1987 for the last time I had been to the house of the deceased
i.e. to her separate residence. Swoma, Snigdha, Sima apa, Baby Apa
accompanied me to her house on fr.at day. At that time the deceased
complained before us as usual !Ind added to that she said that she c
is being assaulted by the accused now-a-days. She further complained
before us that the accused is taking away the child from her, and that
her mother in-law has come and some conspiracy is going against her
(the deceased). She further told that "MATE AU BANCHEI
DEBENAHIN". D
Such a statement appears to have been taken on record with the aid of
Section 32 of the Indian Evidence Act at a time when the appellant was being
tried for the offence under Section 304B and such statement was admissible
under Clause (I) of the said section as it related to the cause of death of the
deceased and the circumstances of the transaction which resulted in her E
death. Such a statement is not admissible in evidence for the offence punishable
under Section 498A of the Indian Penal Code and has to be termed as being
only a hearsay evidence. Section 32 is an exception to the Hearsay Rule and
deals with the statements or declarations by a person, since dead, relating to
the cause of his or her death or the circumstances leading to such death. If
a statement which otherwise is covered by the Hearsay Rule does not fall F
within the exceptions of Sectio11 32 of the Evidence Act, the same cannot be
relied upon for finding the guilt of the accused.

Another finding for recording the guilt of the accused is that once the
deceased was not allowed to sit on the scooter by the accused and that he G
was frequently staying absent from his house. Learned counsel, appearing for
the respondent, fairly conceded that no witness has stated to that effect and
~
-4 we feel that such a finding is not based upon any legal evidence.

The alleged relationship of the appellant with his sister-in-law is stated
to be another circumstance which led the deceased to commit the suicide. H
SUPREME COURT REPORTS (2002] I S.C.R.
_\
850
A Again there is no evidence on the record to hold that the deceased had
conceived the apprehension of the appellant having illicit relations with his
sister-in-law which led her to end the life. Learned counsel for the appellant
has taken us through letters Exhibit A to F, stated to have been written by
..
the deceased as admitted by PW4. In one of the letters the deceased is shown
to have written to her mother stating:
B
"Please inform me when the result of Tutu shall be declared and also
send the new address of Bada Bhai in the letter have told you have
occasion not to spread bad rumour against the sister-in-law (wife of
Kai/ash Patnaik) and not to discuss about her with anybody; can
these discussions will at all lead to a better understanding, rather •
c it will create more misundel'standing and aggravating the situation
and which is already in vogue. I came to know that you are telling
to others that she is not providing me proper food, allowing me to
wear good cloth and giving ill-treatment. I want to know who has
given you these false information about her and as I remember, have
D never discussed about this to you; it is wrong to presume that she
is misbehaving me; but you have been getting wrong information
about her from others. When it comes to her knowledge that you have
made discussion against her it creates rift and misunderstanding in
our family; further I would like to bring your notice this is to report
to her by those you discuss about her. Further why are you discussing
E with others regarding my stay; whether it is at village-home or at
Bhubaneshwar. I have made number of fervent appeals to you not to
make any bad discussion against her but you are not heeding to my
advise and continuing same against her. By doing this, you are isolating
me from rest of the family members."
F (Emphasis Supplied) '
In view of the aforesaid letter it could not be held that the deceased had
conceived an apprehension about the relationship of the appellant with his
sister-in-law.

G It fo!lows, therefore, that there was no legal evidence tendered in the
case which could be made the basis for returning a finding with respect to
the alleged cruelty of the accused with the deceased. In the absence of any
legal evidence produced in the case, we are of the opinion that the prosecution
has failed to prove, beyond doubt, that the appellant had committed the
offence under Section 498A of the Indian Penal Code and find that it is a fit
H case where he is entitled to be given the benefit of doubt.
GAN ANA TH PATTANAIK v. STATE OF ORISSA [SETHI, J.] 851

In view of our finding that there is no legal evidence to connect the A
accused with the commission of the offenct: under Section 498A of the Indian
Penal Code, this appeal is allowed by setting aside the impugned judgment
...
of the High Court as also of trial court. Giving him the benefit of doubt, the
appellant is acquitted of the charge under Section 498A of the Indian Penal
Code. His bail bond stands discharged.
B
B.S. Appeal allowed.