The admissibility and relevance of dying declarations in establishing the cause of death and the circumstances of the transaction resulting in death, as well as the elements of abetment and the offense under Section 354 of the Indian Penal Code.

D. M. DHARMADHIKARI, J.

( 1 ) THE two accused in this case have appealed to this Court against their conviction under Section 354 and 306 of the Indian Penal Code, sentencing them to one and three years rigorous imprisonment, respectively to run concurrently.

( 2 ) THE prosecution case is that Miss Asha aged about sixteen years committed suicide by setting herself afire. The prosecution relied on three dying declarations made by the deceased between 24-1-1985 and 25-1-1985. The alleged date of incident is 24-1-1985 at 10. 00 p. m. It has come in the evidence of prosecution witnesses that one young man Eknath was a conductor on a bus. He used to visit Ku. Asha frequently even at odd hours. The incident is said to have taken place in the house of the deceased when she was sleeping in a room with her young brother and father Ramchandra (P. W. 3), who was sleeping in the adjoining room. The alleged dying declaration, first in point of time, is Ex. P-5, recorded by Dr. B. M. Malviya (P. W. 1 ) who examined her soon after the incident with burn injuries. In her statement to the doctor, her version of the incident was that when she came out of the room at 10. 00 in the night for easing herself, the two accused persons, who lived as her tenants in the same house, approached her and made overtures for sexual intercourse. When she refused, the accused were said to have threatened her that they would defame her. In the same statement, she admitted that at that time the bus conductor was with her.

( 3 ) THE above statement Ex. P. 5 recorded by Dr. Malviya was made on 25-1-1985 at about 3. 00 a. m. in the night. The second alleged dying declaration has been made to the police which is recorded as Dehati Nalishi or FIR marked as Ex. P. 12. This statement to the police was made on 25-1-1985, twenty minutes after the earlier statement made to the doctor. In her statement to the police, which was recorded by S. O. , H. S. Parmar (P. W 8) the version of the incident given by her is said to be a material improvement over her initial version. In the F. I. R. lodged by her, it was stated that while she was sleeping with her brother Parmanand, the two accused persons, at 10'o clock in the mid-night knocked the door. She opened the door and found one of the accused-appellant No. 2 Babulal s/o Kadu Rao at the door, but she did not give him entry and closed the door. After ten minutes, when she gut up to go to the bath room, conductor Eknath came to her, as he used to come frequently. In the meantime the two accused persons entered the room and both of them caught hold of her and asked her that they be allowed to commit sexual intercourse. When she refused, they threatened that they would defame her and would commit rape. She started weeping. Although they did not commit any sexual intercourse but caught hold of her and thus out-raged her modesty. It is her statment that she then asked Eknath to leave the room. After this incident she again got up at 11. 00 in the night and poured kerosene on her body and lit herself afire.

( 4 ) THE third dying declaration is recorded as Ex. P. 6 by Naib Tahsildar Rakesh Babu Khare (P. W. 7) on 25-1-1985 at 2. 44 p. m. In her statement made to the Naib Tahsildar, she implicated only appellant No. 2 Babulal and stated that he misbehaved with her, tried to kiss her and made overtures towards her, which she repelled. Thereafter, she was threatened with defamation and hence she set herself afire the same night. She also stated that the other accused was also present at the time of the incident.

( 5 ) THE conviction of the appellants fully rests on the dying declarations Ex. P. 5, Ex. P. 6 and Ex. P. 12 made by the deceased at three different points of time mentiond above.

( 6 ) THE learned counsel for the accused assails the conviction mainly on two grounds. Firstly it is submitted that accepting the entire prosecution story, there is no case made out of abetment of suicide under Section 306 of the I. P. C. , as there was

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