The dying declaration must have a close nexus with the actual transaction leading to the death, and there must be a proximate and live link between the alleged offence and the suicide to establish abetment under Section 306 IPC.

1. Convicted for offences punishable under Sections 376/306 IPC vide impugned judgment dated 22nd November, 2001 on the strength of dying declaration of the deceased prosecutrix and the testimony of her husband coupled with the medical evidence, Ram Swaroop prefers the present appeal.

2. Vide impugned order on sentence dated 22nd November, 2001 Ram Swaroop was directed to undergo rigorous imprisonment for a period of 10 years for the offence punishable under Section 376 IPC and rigorous imprisonment for a period of 8 years for the offence punishable under Section 306 IPC and directed to pay fine of Rs. 5000/- each on both the counts and in default whereof to undergone simple imprisonment for two years on each count.

3. Process of law was set into motion on receipt of DD No.25 Ex.PW6/A on 11th February, 2000 at PS Ambedkar Nagar which was handed over to PW 6 SI Manish Kumar. On reaching the spot along with Constable Gajraj, he was informed that the injured has been sent to Safdarjung Hospital. An application was filed by SI Manish Kumar before the attending doctor for recording the statement of injured whereon the doctor opined the injured to be fit for making statement. Thus, the statement of prosecutrix who died later was recorded whereon FIR No. 43/2000 under Section 376 IPC was registered vide Ex.PW-6/B. After the death of the prosecutrix, Section 306 was added in the course of investigation. Statement of PW-3 husband of the prosecutrix was also recorded. The deceased in her statement disclosed that she was residing at Madangir and was aged about forty years. She had been working as a labourer and was having four daughters and a son. About one month ago, a contractor by the name of Ram Swaroop who resided in Sangam Vihar and with whom she was working, forcibly raped her. She did not disclose the incident of rape fearing disgrace. Thereafter, she tried several times to call him so that he may come and repent on his misdeed but he did not turn up. On 11th February, 2000 at about 3.30 PM when she was alone at her house and was feeling too much dejected because of the incident of rape, she poured kerosene oil and burnt herself, as she felt that she was not able to show her face to anyone. She further stated that her husband knew the contractor Ram Swaroop and his house.

4. Learned counsel for the appellant relying upon the decision of the Supreme Court reported as (2000) 6 SCC 671 Sudhakar & Anr. Vs. State of Maharashtra and the Division Bench of this Court reported as 2010 (4) JCC 2416 Sandy @ Ved Prakash & Ors. Vs. State contends that even as per the statement of the prosecutrix recorded soon before the death, since the alleged rape was committed one month prior to the incident, the same cannot be an instigation or abetment by the appellant driving the prosecutrix to commit suicide. He thus contends that the appellant is entitled to be acquitted for the offence punishable under Section 306 IPC. He further states that the statement so recorded by the Investigating Officer is not sufficient to convict the appellant for the offence punishable under Section 376 IPC also as under Section 32 of the Indian Evidence Act, statement of the deceased recorded soon before the death can be used only when the circumstances leading to the death of the deceased are in question and not to convict the appellant for offence which happened one month prior to the incident.

5. The two issues raised in the present appeal i.e. whether the commission of offence of rape would amount to abetment of suicide and whether the dying declaration of the deceased was admissible in evidence and sufficient to base the conviction for offence punishable under Section 376 IPC came up for consideration before this Court in Sandy @ Ved Prakash (supra) wherein this Court on the first issue held: -

“31. Thus, we first proceed to consider whether the offenders (whoever committed the rape) could be held guilty for abetting the suicide of the deceased. While discussin