Case Summary
| Citation | Sudhakar v. State of Maharashtra(2000) 6 SCC 671 |
| Keywords | Sec 32(1) IEA ,proximity, circumstances of translation |
| Facts | Ms Rakhi, a young girl of 20 years of age, working as a teacher in school at 300 Rs. p.m. On one day, she was raped by headmaster and a co teacher of that school. She narrated this incident to her family and after 11 days she lodged FIR and narrated this incident and also narrated the delay in lodging FIR. Having failed to withstand the humiliation of rape, she committed suicide on her sister’s house. Autopsy showed that the cause of death was poisoning. Court relied upon the statement made to police as dying declaration under section 32 of IEA. |
| Issues | Whether the accused can be convicted solely on the basis of DD? |
| Contentions | |
| Law Points | To attract the provision of sec 32, it has to be proved that:- * Statement made by person who is dead or cannot be found or whose attendance cannot be procured without delay and expression. * Such Statement made under any of the circumstances (1)-(8) of sec 32. Statement of victim who is dead is admissible. Statement of deceased relating to cause of death or the circumstances of the transaction which resulted in death must be sufficiently or closely connected with actual transaction. It could be stretched to say referring to “circumstances of transaction” resulting in her death. This phrase was considered and explained in Pakala Narayan Swami vs Emperor. The circumstances must be 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 death will not be admissible. But the statement made by deceased that he was proceeding to spot where he was killed or that he was going to meet a particular person, or that he have been invited by such person to meet him would be circumstance of transaction. Such statement might indeed be exculpatory of the person accused. Circumstance must have some proximate relation to the actual occurrence. In this case, there is record that prosecutrix made statement has disclosed her mind for committing suicide. She commit suicide after 5 and half months, this is not a justifiable circumstance. |
| Judgement | Accused didn’t convict for the offence solely based on DD as prosecution failed to prove beyond reasonable doubt that appellant had committed forcibe sexual intercourse. Therefore they get acquittal |
| Ratio Decidendi & Case Authority |
Full Case Details
R.P. SETHI, J. – Ms Rakhi, a young girl of about 20 years of age was working as a teacher
in Zila Parishad Primary School at Banegaon, Maharashtra at a monthly salary of Rs 300.
Appellant 1 was the headmaster and Appellant 2 was a co-teacher in the same school. On one
unfortunate morning of Saturday, 9-7-1994 Ms Rakhi went to her school in the morning as
usual. When the school was closed at about 12 o’clock in the afternoon and all students had
gone back to their homes, the appellants came in the room where Rakhi was sitting and closed
the door and windows of the room. She was forcibly subjected to sexual intercourse by the
appellants and her wailing cries did not have any effect upon them. She was thus subjected to
gang rape by the appellants. After the incident Ms Rakhi went to her house and narrated the
incident to her mother Padmabai, brother Prakash and uncle Balasaheb @ Balaji. The incident
was also narrated to the father of the prosecutrix who came back home after two-three days.
The matter was reported to the police on 20-7-1994. PW 15 ASI Laxman Wadje, In-Charge,
Police Station Pathri recorded the statement of the prosecutrix and on that basis Crime Report
No. 100 of 1994 was registered. Petticoat of the prosecutrix and the metal bangles which she
was wearing at the time of occurrence were seized. After preparation of panchnama, the
seized articles were sent to the chemical analyser for his report. On 6-8-1994 statements of
two child witnesses, namely, Dnyaeshwar Mujmul and Dnyaneshwar Adhav were recorded
under Section 164 of the Criminal Procedure Code before the Special Executive Magistrate.
Ms Rakhi was taken for medical examination to Dr Gauri Rathod, PW 1 who reported that the
prosecutrix had been subjected to sexual intercourse in the recent past. On completion of the
investigation the charge-sheet was filed against both the appellants in the Court of Judicial
Magistrate, Ist Class, Pathri, who committed them to the Court of Sessions Judge to stand
their trial for the offences under Section 376 read with Section 34 of the Indian Penal Code.
After the matter was reported to the police, the prosecutrix was sent to stay with her married
sister Saraswatibai, PW 14 as it was found that she had lost her equilibrium of mind and was
mentally upset.
2. Having failed to withstand the humiliation which she was subjected to on account of
rape committed by the appellants, Ms Rakhi is stated to have committed suicide on 22-12-
1994 at about 10.30 p.m. at the house of her sister Saraswatibai. Autopsy was conducted on
the same date and the cause of death was reported as poisoning. In view of the subsequent
development, additional charge under Section 306 read with Section 34 IPC was added
against the appellants on 8-5-1995. Both the accused pleaded not guilty and claimed to be
tried. The prosecution examined 18 witnesses. However, at the trial except PW 1 Gauri
Rathod, PW 2 Padmabai, PW 3 Gangadhar, PW 12 Dr Anandgaonkar, PW 13 Sanjay
Deshpande, PW 14 Saraswatibai and PW 15 ASI Wadje, the other witnesses turned hostile.
The trial Judge of the Sessions Court, however, vide his judgment dated 12-7-1995 in
Sessions Case No. 135 of 1994 convicted the appellants under Section 376(2)(g) read with
Section 34 IPC and sentenced each one of them to suffer rigorous imprisonment of seven
years and to pay a fine of Rs. 1000 each, in default of payment of fine, the appellants were
directed to suffer further rigorous imprisonment for three months. The appellants were also
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convicted and sentenced for the offences punishable under Section 306 read with Section 34
IPC and sentenced to undergo rigorous imprisonment for a period of three years and to pay a
fine of Rs 500 each, in default of payment of fine, they were to suffer rigorous imprisonment
for one month more. Both these sentences were directed to run concurrently. Criminal appeal
filed by the appellants was dismissed vide the order impugned in this appeal. Not satisfied
with the findings of the courts below the appellants have preferred the present appeal with
prayer for setting aside their conviction and sentence and acquitting them of the charges.
4. It is not disputed that the prosecutrix reported the matter to Police Station Pathri on 20-
7-1994 admittedly after about 11 days from the day of occurrence. It is also not disputed that
the statement of the prosecutrix could not be recorded before any Judicial Magistrate or the
criminal court. It is, however, not denied that her statement Exhibit 59 was recorded by PW
15 on 20-7-1994 in which she had narrated the whole incident and explained the delay for not
lodging the report earlier. The courts below have relied upon the aforesaid statement treating
it as the dying declaration being admissible in evidence under Section 32 of the Evidence Act.
Admissibility of the statement of Ms Rakhi is of paramount importance for deciding the
present appeal. If the statement is held to be admissible in evidence, being the dying
declaration of Ms Rakhi, the appellants may not escape their liability to conviction and
sentence as there exists other corroborative evidence against them. However, if the aforesaid
report/statement is not admissible in evidence, the appellants may be entitled to all
consequential legal benefits. In that event the offence of rape may not be held to have been
proved against them and if rape is not proved, the appellants cannot be held responsible for
the commission of the offence under Section 306 IPC.
5. Section 32 of the Evidence Act is an exception to the general rule of exclusion of the
hearsay evidence. Statement of a witness, written or verbal, of relevant facts made by a person
who is dead or cannot be found or who has become incapable of giving evidence or whose
attendance cannot be procured without an amount of delay or expense, are deemed relevant
facts under the circumstances specified in sub-sections (1) to (8). Sub-section (1) of Section
32 with which we are concerned, provides that when the statement is made by a person as to
the cause of his death or as to any circumstances of the transaction which resulted in his
death, being relevant fact, is admissible in evidence. Such statements are commonly known as
dying declarations. Such statements are admitted in evidence on the principle of necessity. In
case of homicidal deaths, statement made by the deceased is admissible only to the extent of
proving the cause and circumstances of his death. To attract the provisions of Section 32 for
the purposes of admissibility of the statement of a deceased, it has to be proved that:
(a) The statement sought to be admitted was made by a person who is dead or
who cannot be found or whose attendance cannot be procured without an amount of
delay and expense or is incapable of giving evidence.
(b) Such statement should have been made under any of the circumstances
specified in sub-sections (1) to (8) of Section 32 of the Evidence Act.
As distinguished from the English law, Section 32 does not require that such a statement
should have been made in expectation of death. Statement of the victim who is dead is
admissible insofar as it refers to the cause of his death or as to any circumstances of the
transaction which resulted in his death. The words “as to any of the circumstances of the
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transaction which resulted in his death” appearing in Section 32 must have some proximate
relation to the actual occurrence. In other words, the statement of the deceased relating to the
cause of death or the circumstances of the transaction which resulted in his death must be
sufficiently or closely connected with the actual transaction. Due weight is required to be
given to a dying declaration keeping in view the legal maxim nemo moriturus praesumitur
mentiri i.e. a man will not meet his maker with a lie in his mouth. To make such statement as
substantive evidence, the person or the agency relying upon it is under a legal obligation to
prove the making of the statement as a fact. If it is in writing, the scribe must be produced in
the court and if it is verbal, it should be proved by examining the person who heard the
deceased making the statement. However, in cases where the original recorded dying
declaration is proved to have been lost and not available, the prosecution is entitled to give
secondary evidence thereof.
6. In this case the statement of the prosecutrix Exhibit P-59 does not directly state any fact
regarding the cause of her death. At the most it could be stretched to say referring to
“circumstances of the transaction” resulting in her death. The phrase “circumstances of the
transaction” was considered and explained in Pakala Narayana Swami v. Emperor:
“The circumstances must be 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 will not be admissible.
But statements made by the deceased that he was proceeding to the spot where he
was in fact killed, or as to his reasons for so proceeding, or that he was going to meet
a particular person, or that he had been invited by such person to meet him would
each of them be circumstances of the transaction, and would be so whether the person
was unknown, or was not the person accused. Such a statement might indeed be
exculpatory of the person accused. ‘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 evidence of all relevant facts. 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 a case of prolonged
poisoning they may be related to dates at a considerable distance from the date of the
actual fatal dose. It will be observed that ‘the circumstances’ are of the transaction
which resulted in the death of the declarant. It is not necessary that there should be a
known transaction other than that the death of the declarant has ultimately been
caused, for the condition of the admissibility of the evidence is that ‘the cause of (the
declarant’s) death comes into question’.”
7. The death referred to in Section 32(1) of the Evidence Act includes suicidal besides
homicidal death.
8. In Rattan Singh v. State of H.P., this Court held that the expression “circumstances of
transaction which resulted in his death” means that there need not necessarily be a direct
nexus between the circumstances and death. Even distant circumstance can become
admissible if it has nexus with the transaction which resulted in death. Relying upon Sharad
Birdhichand Sarda case, the Court held that:
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“It is enough if the words spoken by the deceased have reference to any
circumstance which has connection with any of the transactions which ended up in
the death of the deceased. Such statement would also fall within the purview of
Section 32(1) of the Evidence Act. In other words, it is not necessary that such
circumstance should be proximate, for, even distant circumstance can also become
admissible under the sub-section, provided it has nexus with the transaction which
resulted in the death.”
9. In Najjam Faraghi v. State of W.B., this Court held that the death of the declarant long
after making the dying declaration did not mean that such a statement lost its value merely
because the person making the statement lived for a longer time than expected. But to make
the statement admissible, it has to be shown that the statement made was the cause of the
death or with respect to the circumstances of the transaction which resulted in his death. The
facts mentioned in the statement are, however, required to be shown connected with the cause
of the death whether directly or indirectly. Rejecting the contention that as the injuries caused
as mentioned in the dying declaration were indirectly responsible for the cause of death, the
statement of the deceased could not be admitted in evidence, this Court in G.S. Walia v. State
of Punjab held:
“Therefore, there is no substance in the contention raised by Mr U.R. Lalit that
the injuries were only indirectly responsible for causing death of Balwant Singh and
as his death cannot be said to have been caused due to the injuries caused, the
statement made by him would not fall within Section 32 of the Indian Evidence Act.
In view of our finding on this point, the decisions in Imperatrix v. Rudra, Abdul
Gani Bandukchi v. Emperor, Mallappa Shivlingappa Chanagi, Re and Moti Singh
v. State of U.P. relied upon by Mr Lalit are of no help to him. In all these cases, the
Court had held that there was no evidence or that the evidence led was insufficient to
prove that the deceased had died as a result of injuries caused to him. As the
statement of Balwant Singh related to the cause of his death it was admissible in
evidence under Section 32 and the High Court was in error in holding otherwise.”
10. In the light of the legal position noticed hereinabove, let us examine the statement of
the deceased prosecutrix Exhibit P-59 to decide whether such a statement can be admitted in
evidence, relied upon and made a basis for conviction and sentence of the accused. In that
statement, admittedly recorded after 11 days of the day of occurrence, she had stated:
“I am serving in Balwadi of Banegaon from 2-2-1992 as a teacher. The name of
my mother is Padmabai and my father is Gangadharrao. I have one brother namely
Prakash and four sisters. I am living with my brother Prakash at Banegaon and my
father and mother are living at Mazalgaon and my mother had come to Banegaon
before 15 days.
In Banegaon the classes of Zila Parishad Primary School are held up to 4th Class
from the Balwadi. There are two teachers in our school namely (1) Sudhakar
Gndapin Bhujbal, (2) Bhaskar Babwrao Kedre and I am working as a Balwadi
teacher getting Rs 300 per month. The timing of our school is from 9.00 to 16.00
o’clock but the Balwadi classes work from 9.00 to 12.00 o’clock. The headmaster of
our school is Sudhakar Bhujbal.
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Ever since I have joined my service Sudhakar Bhujbal and Bhaskar Kedre are
teasing me. Sudhakar Bhujbal always says that your sari looks very nice; will you
come to see the picture with me? That by asking this they try to talk with me. Before
six months Sudhakar Bhujbal had touched my cheek and waist. I was afraid at that
time. But due to the fear of defamation I did not tell anything to any person and
because of it they had been adoring to proceed.
On 9-7-1994 on Saturday 8/9 o’clock in the morning I had gone to my school in a
routine way. Bhaskar Kedre and Sudhakar Bhujbal had also come to the school. The
school was closed at 12 o’clock in the afternoon. All the boys and girls had gone
back to their home. That Bhaskar Kedre had closed the windows of the school and
Sudhakar Bhujbal had closed the door and came near to me. Then he had removed
his pant. At that time he was wearing ready-made underwear. Thereafter Sudhakar
Bhujbal had caught hold of me and put me on the ground. And at that time Bhaskar
Kedre had held my hands. I was crying for my mother and trying to get up. But they
did not allow me to get up. Sudhakar Bhujbal had removed his underpants and had
lifted up my sari and petticoat and pressed my breast. After that he had entered his
male organ into my vagina and had committed sexual intercourse forcibly with me.
After that Sudhakar Bhujbal had held my hands and Bhaskar Kedre had removed his
pant. At that time he was wearing reddish cotton underwear, then he had removed his
underwear and caught my both breasts and entered his male organ into my vagina
and had committed sexual intercourse with me forcibly.
It was 12.30 in the afternoon at that time. Then both of them had worn their pants
and went. I was crying and went to my house and informed this incident to my
mother Padmabai, brother Prakash and uncle Balaji. After this they had called my
father from Mazalgaon and narrated to him this incident. We had not filed any
complaint due to the fear of defamation in the society. Bhaskar Kedre and Sudhakar
Bhujbal, both of them have done sexual intercourse with me on 9-7-1994 in the
afternoon at 12.30. Therefore inquiry should be made against them.”
11. There is no legal evidence on record that the prosecutrix at or about the time of
making the statement had disclosed her mind for committing suicide allegedly on account of
the humiliation to which she was subjected to on account of the rape committed on her
person. The prosecution evidence does not even disclose the cause of death of the deceased.
The circumstances stated in Exhibit P-59 do not suggest that a person making such a
statement would, under the normal circumstances, commit suicide after more than five-and-ahalf months. The High Court was, therefore, not justified in relying upon Exhibit P-59 as a
dying declaration holding that the said statement was in series of circumstances of the
transaction which resulted in the death of the deceased on 21-12-1994.
The conviction of the persons accused of offences cannot be based upon conjectures and
suspicions. Statement Exhibit P-59 if not treated as a dying declaration, there is no cogent and
reliable evidence which can connect the accused with the commission of the crime. In that
event the other arguments advanced on behalf of the appellants assume importance. Other
circumstances such as delay in lodging FIR, medical examination of the prosecutrix, the nonexamination of material witnesses and turning hostile of witnesses including Dnyaeshwar
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Mujmul and Dnyaneshwar Adhav are also required to be taken note of. It has also to be kept
in mind that after the incident on 9-7-1994 the prosecutrix is shown to have attended the
school on 10-7-1994 and 11-7-1994 as well. Her mother in cross-examination also stated that
Ms Rakhi had told her about the incident only on 12-7-1994 at about 5.00 p.m. PW 3, the
father of the prosecutrix deposed in the Court that:
“Rakhi did not tell me on 17th, 18th, 19th July, 1994 that she wanted to file a
complaint. I did not ask Rakhi whether she wanted to file a criminal complaint. I did
not disclose before the police on 20-7-1994 that Rakhi told me that she wanted to file
criminal complaint.”
12. We are, therefore, of the opinion that the prosecution has failed to prove, beyond
reasonable doubt, that the appellants had committed forcible sexual intercourse with Ms
Rakhi on 9-7-1994 under the circumstances as narrated in Exhibit P-59 and relied upon by the
courts below. The appellants cannot be convicted and sentenced merely on suspicion.
13. In the absence of the charge being proved under Section 376 IPC, the prosecution
could not have asked for conviction of the appellants under Section 306 IPC as according to
the prosecution it was the commission of the rape on her person which resulted in the suicide
of Ms Rakhi, allegedly on the abetment of the appellants. If the cause for committing suicide
is not legally proved, the appellants cannot be held responsible for the abetment of the
ultimate offence of suicide.
14. We are, therefore, of the opinion that as the prosecution has failed to prove its case
against the appellants beyond all reasonable doubt, they are entitled to acquittal. Before
parting with the judgment we would, however, observe that in the present case the
investigating as well as the prosecution agency has not acted promptly and diligently as was
expected under the circumstances. The appeal is, therefore, allowed and the judgment of the
High Court is set aside. The appellants be released forthwith unless required in some other
case.
