2000 Supreme(SC) 1080

2000(5) Supreme 205
SUPREME COURT OF INDIA
(From Bombay High Court)
G.B. Pattanaik R.P. Sethi & Shivaraj V. Patil, JJ.
Sudhakar & Anr. -Appellants
versus
State of Maharashtra -Respondent
Criminal Appeal No. 226 of 1999
Decided on 17-7-2000
Counsel for the Parties :
For the Appellants : R. Sundaravardhan, Sr. Advocate, Ravi Adsure, S.M. Jadhav and A.M. Khanwilkar, Advocates.
For the Respondent : H.W. Dhabe, Sr. Advocate, S.S. Shinde, S.V. Deshpande and G.B. Sathe, Advocates.

IMPORTANT POINTS
1. To treat a statement as dying declaration under Section 32 of Evidence Act, 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. 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 a statement as a fact.
2. Statement made to police officer by an alleged rape victim, after 11 days of incident, who allegedly committed suicide after 5½ months of alleged incident but had not disclosed her mind at or about the time of making the statement for committing suicide on account of humiliation could not be treated/relied upon as dying declaration especially when prosecution even did not disclose cause of action for death.
3. Where charge of rape on victim on account of which allegedly she committed suicide was not legally proved, punishment for abetment of suicide could not be visited with.

Headnote:(i) Indian Evidence Act, 1872-Section 32-Dying declaration-Rape victim-Statement to police about incident after 11 days of alleged gang rape-Suicide by victim 5½ months after alleged rape-Statement of prosecutrix did not directly state any fact regarding cause of her death-Statement had not disclosed her mind for committing suicide allegedly on account of humiliation to which she was subjected to on account of rape committed on her-Prosecution evidence did not even disclose cause of death of deceased-Courts below not justified in relying upon statement as dying declaration holding it that said statement was in series of circumstances of transaction which resulted in death of deceased.

       Section 32 of the Evidence Act is an exception to the general rule of exclusion of the hearsy 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 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, statements 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 in so far as it refers to 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 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 mentire" 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 a 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. (Para 5)

       In the instant 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. 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 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 a half months. The High Court was, therefore, not justified in relying upon Exhibit P-59 as a dying declaration holding it that the said statement was in series of circumstances of the transaction which resulted in the death of the deceased on 21.12.1994. (Paras 6 to 10)

       (ii) Indian Penal Code, 1860-Section 376-Rape-Alleged gang rape of teacher in school by Headmaster and co-teacher-Appeal against conviction-FIR lodged after 11 days of alleged incident-Statement recorded by police-Prosecutrix committing suicide after 5½ months of alleged incident-Statement of prosecutrix did not directly state any fact regarding cause of death-Prosecutrix had not disclosed her mind at or about time of making statement for committing suicide on account of humiliation-Prosecution did not even disclose cause of death-High Court not justified in relying upon statement as a dying declaration-No cogent and reliable evidence to connect accused with commission of crime-Charge of forcible sexual intercourse not proved beyond reasonable doubt-Conviction set aside.

       Held : 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 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 a half months. The High Court was, therefore, not justified in relying upon Exhibit P-59 as a dying declaration holding it that the said statement was in series of circumstances of the transaction which resulted in the death of the deceased on 21.12.1994. (Para 10)

       The conviction of the persons accused of offences cannot be based upon conjunctions 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 even the other arguments advanced on behalf of the appellants assume importance. Other circumstances such as delay in lodging the FIR, medical examination of the prosecutrix, the non examination of material witnesses and turning hostile of witnesses including the Dnyaeshwar 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 9th July, 1994, the prosecutrix is shown to have attended the school on 10th and 11th July, 1994 as well. (Para 10)

       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. The prosecution has failed to prove its case against the appellants beyond all reasonable doubt, they are entitled to acquittal. (Paras 11 and 13)

       (iii) Indian Penal Code, 1860-Section 306-Abetment of suicide-Alleged gang rape on victim by Headmaster and co-teacher of her school-Victim allegedly committed suicide after 5½ months of incident out of humiliation-Prosecution failed to prove forcible rape on victim-Acquittal of accused person for offence under Section 376 IPC-Cause for committing suicide not legally proved-Accused persons cannot be held responsible for abetment of ultimate offence of suicide.

       Held : 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 of the 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. (Para 12)