Ram Swaroop vs State Of Delhi on 25 May, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 24th January , 2017
Decided on: 25th May, 2017
+ CRL.A. 930/2001
RAM SWAROOP ….. Appellant
Represented by: Mr. D.K. Mathur, Advocate.

versus

STATE OF DELHI ….. Respondent
Represented by: Mr. Hirein Sharma, APP for the
State with Inspector Saroj Bala
and SI Amit Kumar, PS
Ambedkar Nagar.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

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 ₹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,

CRL.A. 930/2001 Page 1 of 23
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

CRL.A. 930/2001 Page 2 of 23
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 discussing this aspect
we would be proceeding on the assumption that the deceased told
that she was raped by the appellants and due to shame she
decided to end her life. We may not be understood to mean that
we have returned a finding against the appellants at this stage
that they had raped the deceased. We shall be discussing this
aspect at the next stage of our decision when we discuss the
contours of Section 32(1) of the Evidence Act, 1872 and the
evidence brought on record.

32. The word “suicide” in itself is no where defined in
Indian Penal Code, however its meaning and import is well
known and requires no explanation. “Sui” means “self” and
“cide” means “killing”, thus implying an act of self-killing. In
short a person committing suicide must commit it by himself,

CRL.A. 930/2001 Page 3 of 23
irrespective of the means employed by him in achieving his object
of killing himself.

33. Suicide by itself is not an offence under either English
or Indian criminal law, though at one time it was a felony in
England. In England, the former law was of the nature of being a
deterrent to people as it provided penalties of two types namely:

(i) Degradation of corpse of deceased by burying it on the
highway with a stake through its chest; (ii) Forfeiture of property
of deceased by the State. At present, there is no punishment for
suicide under English law.

34. In India, suicide in itself is not an offence for
successful offender is beyond the reach of law, however attempt
to commit suicide is an offence punishable under Section 309,
IPC.

35. The offence of abetment of suicide is made punishable
by Section 306, IPC which reads as under:

“If any person commits suicide, whoever abets the
commission of such suicide, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable for fine.”

36. Section 306 does not define the expression “abet” nor is
the expression defined in Chapter II of Code, which deals with
general explanations. However, Chapter V of Code makes
provisions with respect to abetment. Section 107 in this Chapter
defines “abetment” in following terms:

“A person abets the doing of a thing, who–

First–Instigates any person to do that thing; or

Secondly–Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if an act
or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or

CRL.A. 930/2001 Page 4 of 23
Thirdly–Intentionally aids, by any act or illegal omission,
the doing of that thing.

Explanation 1–A person who, by wilful
misrepresentation, or by wilful concealment of a material fact
which he is bound to disclose, voluntarily causes or procures,
or attempts to cause or procure, a thing to be done, is said to
instigate the doing of that thing.

Explanation 2–Whoever, either prior to or at the time of
the commission of an act, does anything in order to facilitate
the commission of that act, and thereby facilitates the
commission thereof, is said to aid the doing of that act.

37. As per the prosecution the deceased was raped in the
fields. She returned home and decided to take poison as she
thought that the humiliation heaped upon her has blackened her
face and she had no face to show in the society. With this feeling
of dejection, despair, humiliation and frustration she fed a
sulphas tablet to her infant daughter and consumed sulphas
tablets herself. The rapists have not been alleged to have
conspired with the deceased for the doing of the act of consuming
sulphas. The rapists have not been alleged of doing any act in
conspiracy or any illegal omission. The rapists have not been
alleged to aid, much less intentionally aid the deceased in
consuming sulphas. Thus, the second and the third limb of
Section 107, IPC are just not attracted. The question would be
whether the first limb is attracted i.e. whether can it be said that
the rapists instigated the deceased by their act of rape to
consume sulphas.

38. The Madhya Pradesh High Court and the Andhra
Pradesh High Court have taken diametrically opposite views. In
the decisions Mohd. Hafeez v. State of M.P., MANU/MP/ 0238/
2009 and Kokkiligadda Veeraswamy v. State of A.P., 2005 Cri.
L.J. 869 it has been held that an accused by raping a girl
instigates her to commit suicide if there is a proximate and live
link between the offending act of the accused and the commission
of suicide by the girl. Two Judges of the same Court have taken

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the opposite view in the decisions Battula Konadulu v. State of
A.P., MANU/AP/0833/2006 and Deepak v. State of M.P., 1994
Cri. L.J. 767 where the aforesaid question was answered in
negative.

39. What is the meaning of the word “instigation”
occurring in Section 107 of the IPC?

40. The answer to the aforesaid question can be found in
the following observations of Supreme Court in the
decision Chitresh Kumar Chopra v. State, (2009) 11 SCALE 24:

“Thus, to constitute “instigation”, a person who
instigates another has to provoke, incite, urge or encourage
doing of an act by the other by “goading” or “urging
forward”. The dictionary meaning of the word “goad” is “a
thing that stimulates someone into action: provoke to action
or reaction” (See Concise Oxford English Dictionary); “to
keep irritating or annoying somebody until he reacts” (See:
Oxford Advanced Learner’s Dictionary–7th Edition).
Similarly, “urge” means to advise or try hard to persuade
somebody to do something or to make a person to move more
quickly and or in a particular direction, especially by pushing
or forcing such person. Therefore, a person who instigates
another has to “goad” or “urge forward” the latter with
intention to provoke, incite or encourage the doing of an act
by the latter. As observed in Ramesh Kumar’s case (supra),
where the accused by his acts or by a continued course of
conduct creates such circumstances that the deceased was left
with no other option except to commit suicide an
“instigation” may be inferred. In other words, in order to
prove that the accused abetted commission of suicide by a
person, it has to be established that: (i) the accused kept on
irritating or annoying the deceased by words, deeds or wilful
omission or conduct which may even be a wilful silence until
the deceased reacted or pushed or forced the deceased by his
deeds, words or wilful omission or conduct to make the
deceased move forward more quickly in a forward direction;

CRL.A. 930/2001 Page 6 of 23

and (ii) that the accused had the intention to provoke, urge or
encourage the deceased to commit suicide while acting in the
manner noted above. Undoubtedly, presence of mens rea is
the necessary concomitant of instigation.

In the background of this legal position, we may advert
to the case at hand. The question as to what is the cause of a
suicide has no easy answers because suicidal ideation and
behaviours in human beings are complex and multi-faceted.
Different individuals in the same situation react and behave
differently because of the personal meaning they add to each
event, thus accounting for individual vulnerability to suicide.
Each individual’s suicidability pattern depends on his inner
subjective experience of mental pain, fear and loss of self-
respect. Each of these factors are crucial and exacerbating
contributor to an individual’s vulnerability to end his own
life, which may either be an attempt for self-protection or an
escapism from intolerable self. (Emphasis Supplied)”

41. In the decision Gangula Mohan Ready v. State of A.P.,
2010 (1) SCALE 1, the Supreme Court observed as under:

“Abetment involves a mental process of instigating a
person or intentionally aiding a person in doing of a thing.
Without a positive act on the part of the accused to instigate
or aid in committing suicide, conviction cannot be sustained.

The intention of the Legislature and the ratio of the
cases decided by this Court is clear that in order to convict a
person under Section 306, IPC there has to be a clear mens
rea to commit the offence. It also requires an active act or
direct act which led the deceased to commit suicide seeing no
option and this act must have been intended to push the
deceased into such a position that he committed suicide.”

(Emphasis Supplied)

42. A similar view was taken by Supreme Court in the
decision Sanju @ Sanjay Singh Senger v. State of M.P., (2002) 5
SCC 371, wherein it was observed as under:

CRL.A. 930/2001 Page 7 of 23

“The word “instigate” denotes incitement or urging to
do some drastic or unadvisable action or to stimulate or to
incite. Presence of mens rea, therefore, is the necessary
concomitant of instigation.” (Emphasis Supplied)

43. The ratio of the aforenoted decisions is that in order to
convict an accused for an offence punishable under Section 306,
IPC, in respect of the act of instigation, it has to be proved by the
prosecution that the accused had the “intention” to instigate the
deceased to commit suicide.

44. In the instant case, can it be said that the rapists had
the “intention” to instigate the deceased to commit suicide?

45. The answer to the aforesaid question is an emphatic
“no” for the reason there is no material on the record wherefrom
it could be inferred that the rapists raped the deceased with an
intention to instigate her to commit suicide.

46. Thus, we hold that in the facts of the instant case, the
rapists of the accused cannot be held liable for the offence of
having abetted the suicide of the deceased.”

6. The second issue that whether the dying declaration was admissible
under Section 32 of Indian Evidence Act also came up for consideration
before this Court in Sandy @ Ved Prakash (supra) wherein this Court held-

“48. With the advent of adversarial trials, it was recognized
that oral evidence must be direct. In the context of the Indian Law
of Evidence, Section 59 of the Indian Evidence Act, 1872 mandates
that except for contents of documents and electronic records, facts
must be proved by oral evidence. Section 60 of the Indian
Evidence Act, 1872 mandates that oral evidence must, in all cases
whatever, be direct i.e. if it refers to a fact seen it must be the
evidence of he who saw; if it refers to a fact heard, it must be the
evidence of he who heard and if it refers to a fact perceived by any

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other sense or any other manner, it must be the evidence of he who
says that he perceived. But, directed by necessity, exceptions to the
said general rule of law were recognized under the common law
and find a reference even under the Indian Evidence Act, 1872.
The rule excluding hearsay evidence stands relaxed under Section
32 of the Indian Evidence Act, 1872 which makes admissible
through the mouth of somebody else a statement of fact made by a
person who is dead or cannot be found or becomes incapable of
giving evidence or whose attendance cannot be procured without
an amount of delay or expenses, but limited to Clause 1 to Clause
8 of Section 32 of the Indian Evidence Act, 1872. It may be noted
at the outset that statements of relevant facts made by a person
who is dead are treated as a relevant fact.

49. Since we are dealing with an issue of the admissibility of a
statement made by a dead person i.e. the deceased in the context of
the charge for rape, in the backdrop of the circumstance that as
per the prosecution, feeling ashamed by her being gang raped and
feeling dejected as she thought that her face has been blackened in
society, the deceased committed suicide; we need to discuss the
applicability of Section 32(1) for the proof of the deceased being
raped through the medium of her statement made to various
persons. Since the deceased admittedly died soon thereafter and
had made the statement after she had consumed sulphas tablets
and death was in her contemplation, we shall be referring to the
statement as a dying declaration as loosely understood and then
determine whether in law as well the same can be treated as her
dying declaration and admissible for the charge of rape.

50. In the context of a statement made by a person who is dead,
Section 32(1) of the Evidence Act stipulates as under:

“When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in which the
cause of that person’s death comes into question.”

51. A bare reading of Section 32(1) of the Evidence Act, 1872
makes admissible two types of statements i.e. those which fall

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within either the first limb or the second limb of Section 32(1). The
first limb of Section 32(1) uses the expression “as to the cause of
his death” and the second limb uses the expression “as to any of
the circumstances of the transaction which resulted in his death”.
But, the second limb stands immediately qualified by the further
expression “in cases in which the cause of that person’s death
comes into question”.

52. Now, ex facie, the expression “cause of his death” does not
mean “resulted in his death”. The two are distinct expressions and
convey two different meanings. The first is narrower than the
second. The first expression “cause of his death” may be linked to
the well recognized principle of “causa causan” and in that
setting, the expression “cause of his death” would mean the
immediate act (cause) which resulted in death without any
intervening event. It would mean that the death resulted as the
immediate and direct consequence of the act and in the field of
criminal law would require that the death of the person is an
integral part of the offence of which the person against whom the
accusation is made is charged of. The second limb of Section 32(1)
does not have a root in the common law principle of law
pertaining to dying declarations, but embodies “a policy of the law
keeping in view the peculiar social circumstances in India”.

53. Indian law on the question of the nature and scope of dying
declaration has made a distinct departure from the English law
where only the statements which directly relate to the cause of
death are admissible. The second part of Clause (1) of Section
32, viz., “the circumstances of the transaction which resulted in
his death, in cases in which the cause of; that person’s death
comes into question” is not to be found in the English Law.

54. This distinction has been clearly pointed out in the
decision Rajindra Kumar v. State, AIR 1960 Punjab 310, where
the following observations were made:

“Clause (1) of Section 32 of the Indian Evidence Act
provides that statements, written or verbal, of relevant facts

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made by a person who is dead are themselves relevant facts
when the statement is made by a person as to the cause of his
death, or as to any of the circumstances of the transaction
which resulted in his death, in case, in which the cause of that
person’s death comes into question. It is well settled by now
that there is difference between the Indian Rule and the
English Rule with regard to the necessity of the declaration
having been made under expectation of death. In the English
Law the declaration should have been made under the sense
of impending death whereas under the Indian Law it is not
necessary for the admissibility of a dying declaration that the
deceased at the time of making it should have been under the
expectation of death.”

55. The aforesaid distinction pithily brought out by the decision
of the Punjab High Court has been cited with approval in para 18
of the decision (1984) 4 SCC 116 : AIR 1984 SC 1622, Sharad
Birdichand Sarda v. State of Maharashtra.

56. To what extent the expression “in cases in which the cause
of that person’s death comes into question, which expression
immediately succeeds the preceding expression “as to any of the
circumstances of the transaction which resulted in his death”
restricts the span of the preceding expression.

57. If it is interpreted to mean that it restricts the sweep of the
expression ‘as to any of the circumstances of the transaction which
resulted in his death’ by limiting the same to the cause of the death
of the person and cause meaning the direct cause without any
intervening event, we find no escape from the conclusion that
though appearing to be different, the two limbs of Section 32(1)
would in essence be the same. Such an interpretation would violate
the well recognized rule of interpretation that where the
Legislature has used two expressions, it is presumed that the
Legislature has intended to convey two different meanings and
requires the Court, as far as the language permits, to interpret the
words and phrases in a manner that nothing becomes
otiose i.e. redundant.

CRL.A. 930/2001 Page 11 of 23

58. Dealing with Section 32 of the Evidence Act and quoting
with approval passages from the “Law of Evidence” by Woodroffe
and Amir Ali, in the decision AIR 1959 SC 18, Ratan Gond v. State
of Bihar, the Supreme Court observed as under:

“The only relevant clause of Section 32 which may be
said to have any bearing is Clause (1) which relates to
statements made by a person as to the cause of his death or
as to any of the circumstances of the transaction which
resulted in his death. In the case before us, the statements
made by Aghani do not relate to the cause of her death or to
any of the circumstances relating to her death; on the
contrary, the statements relate to the death of her sister.

In the ‘Law of Evidence’ by Woodroffe and Amir Ali,
(Vol. II) the authors have collected all the cases at one place
and indicated their conclusions thus:

To sum up, the test of the relevancy of a statement
under Section 32(1), is not what the final finding in the
case is but whether the cause of the death of the person
making the statement comes into question in the case. The
expression ‘any of the circumstances of the transaction
which resulted in his death’; is wider in scope than the
expression ‘the cause of his death’; in other words, Clause
(1) of Section 32 refers to two kinds of statements: (1)
statement made by a person as to the cause of his death,
and (2) the statement made by a person as to any of the
circumstances of the transaction which resulted in his
death.

The words ‘resulted in his death’ do not mean ’caused his
death’. Thus, it is well settled that declarations are
admissible Only insofar as they point directly to the fact
constituting the res gestae of the homicide; that is to say, to
the act of killing and to the circumstances immediately
attendant thereon, like threats and difficulties, acts,
declarations and incidents, which constitute or accompany

CRL.A. 930/2001 Page 12 of 23
and explain the fact or transaction in issue. They are
admissible for or against either party, as forming parts of
the res gestae.”

59. The aforesaid passage clearly brings out two important
legal facets. Firstly, the test of relevance is not what the final
finding in the case is, but whether the cause of the death of the
person making the statement comes into question in the case and
secondly that the declarations would be admissible even when they
constitute the res gestae of the homicide as long as the
declarations pointedly direct to a fact constituting the res gestae of
the homicide.

60. We may hasten to add by way of clarification that the
expression res gestae used by the Supreme Court is not to be
understood in the context of res gestae as understood under
Section 6 of the Evidence Act. The Supreme Court has clearly used
the expression in its generic sense.

61. To remove them away from the category of hearsay
evidence it has to be ensured that the statements of the deceased
even pertaining to circumstances of the transaction which resulted
in his death and of course statements pertaining to what caused
his death must have proximate relation to the actual occurrence.
This has been highlighted by the Privy Council in the celebrated
decision AIR 1939 PC 47, Pakala Narayana Swami v.
Emperor. Lord Atkin had laid down the following tests:

“It has been suggested that the statement must be made
after the transaction has taken place, that the person making
it must be at any rate near death, that the ‘circumstances’ can
only include the acts done when and where the death was
caused. Their Lordships are of opinion that the natural
meaning of the words used does not convey any of these
limitations. The statement may be made before the cause of
death has arisen, or before the deceased has any reason to
anticipate being killed. The circumstances must be
circumstances of the transaction; general expressions

CRL.A. 930/2001 Page 13 of 23
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…. 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…. It will be observed that ‘the
circumstances are of the transaction which resulted in the
death of the declarant’.”

62. As a matter of legal history, we may note that the aforesaid
declaration of law in Pakala Narayan Swami’s case has been
consistently followed by various High Courts and was cited with
approval in para 11 of the decision in Sharad Birdichand Sarda’s
case (supra).

63. In para 12 of the decision in Sharad Birdichand Sarda’s
case (supra), the Supreme Court cited with approval a passage
from a decision of the Calcutta High Court Protima Dutta v. The
State, 81 Cal WN 713 as under:

“This observation taken as a whole would, in my view,
imply that the time factor is not always a criterion in
determining whether the piece of evidence is properly
included within ‘circumstances of transaction’ …….. ‘In that
case the allegation was that there was sustained cruelty
extending over a period of three years interspersed with
exhortation to the victim to end her life’. His Lordship further
observed and held that the evidence of cruelty was one
continuous chain, several links of which were touched up by
the exhortation to die. “Thus evidence of cruelty, ill-treatment
and exhortation to end her life adduced in the case must be
held admissible, together with the statement of Nilima (who
committed suicide) in that regard which related to the
circumstances terminating in suicide’.”

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64. Thus, it can safely be said that in addition to the two legal
facets noted in para 59 above which flow out of the decision of the
Supreme Court in Ratan Gond’s case (supra) a third legal facet
flows out from the aforesaid decision of the Calcutta High Court
which has been approved by the Supreme Court, being that, even
in cases of suicide statements of facts relating to the circumstances
terminating in suicide would be admissible under Section 32(1) of
the Evidence Act.

65. In para 21 of the decision in Sharad Birdichand Sarda’s
case (supra) 5 propositions were held as emerging from the
language of Section 32(1) of the Evidence Act, being as under:

“(1) Section 32 is an exception to the rule of hearsay
and makes admissible the statement of a person who dies,
whether the death is a homicide or a suicide, provided the
statement relates to the cause of death, or exhibits
circumstances leading to the death. In this respect, as
indicated above, the Indian Evidence Act, in view of the
peculiar conditions of our society and the diverse nature and
character of our people, has thought it necessary to widen the
sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally
construed and practically reduced to a cut-and-dried formula
of universal application so as to be confined in a strait-jacket.
Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a
logical culmination of a continuous drama long in process
and is, as it were, a finale of the story, the statement
regarding each step directly connected with the end of the
drama would be admissible because the entire statement
would have to be read as an organic whole and not torn from
the context. Sometimes statements relevant to or furnishing
an immediate motive may also be admissible as being a part
of the transaction of death. It is manifest that all these
statements come to light only after the death of the deceased
who speaks from death. For instance, where the death takes

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place within a very short time of the marriage or the distance
of time is not spread over more than 3-4 months the statement
may be admissible under Section 32.

(3) The second part of Clause (1) of Section 32 is yet
another exception to the rule that in criminal law the
evidence of a person who was not being subjected to or given
an opportunity of being cross-examined by the accused,
would be valueless because the place of cross-examination is
taken by the solemnity and sanctity of oath for the simple
reason that a person on the verge of death is not likely to
make a false statement unless there is strong evidence to
show that the statement was secured either by prompting or
tutoring.

(4) It may be important to note that Section 32 does not
speak of homicide alone but includes suicide also, hence all
the circumstances which may be relevant to prove a case of
homicide would be equally relevant to prove a case of
suicide.

(5) Where the main evidence consists of statements and
letters written by the deceased which are directly connected
with or related to her death and which reveal a tell-tale story,
the said statement would clearly fall within the four corners
of Section 32 and, therefore, admissible. The distance of time
alone in such cases would not make the statement irrelevant.”

66. Let us have a look to Illustration (a) to Section 32 of the
Evidence Act. It reads as under:

“The question is, whether A was murdered by B;
or
A dies of injuries received in a transaction in the
course of which she was ravished.

The question is, whether she was ravished by B;
or The question is, whether A was killed by B under such
circumstances that a suit would lie against B by A’s
widow.

CRL.A. 930/2001 Page 16 of 23

Statements made by A as to the cause of his or her
death, referring respectively to the murder, the rape,
and the actionable wrong under consideration, are
relevant facts.”

67. We highlight the last part of the illustration, which
pertaining to a case of rape, treats as a relevant fact statements
made by the victim of rape as to the cause of her death referring
even to the rape. The illustration brings out the umbilical
relationship between an offence; the circumstances of the
transaction pertaining to the offence and; the death. Indeed there
exists a direct and organic relationship between the three and
gives primacy to none. In the Treatises on the law of evidence:
Sarkar’s Law of Evidence (12th Edition) at page 353 the learned
authors of the Treatises while bringing out the distinction between
the English Law and Indian Law, with reference to case law have
written:

“Under the English law, it is essential to the
admissibility of dying declarations, first, that the declarant
should have been in actual danger of death at the time when
they were made; secondly, that he should have had a full
apprehension of his danger; and lastly, that death should
have ensued. These three things must be proved to the
satisfaction of the Judge, before a dying declaration can be
received: Both in England and America, evidence of this
description (dying declarations, is not admissible in any civil
case and in criminal cases it is not admissible upon charges
other than homicide; or as to homicides other than that of the
declarant. The latter part of this limitation was somewhat
infringed in R v. Baker, 2 M Rob 53. In R v. Hind, 8 Cox
300, in which R v. Baker (supra) was cited, POLLOCK CB,
held adopting the doctrine of R v. Mead, 2 B C 605, that
the true rule confined the declarations to charges involving
the homicide of the declarant. These restrictions do not
appear in Section 32. It is not required that the maker should
be in expectation of imminent death, not is it restricted to
cases of homicide only. It is admissible also in civil cases.

CRL.A. 930/2001 Page 17 of 23

Summary–Thus under the Act–

(1) A dying declaration is relevant whether the person
who made it was or was not, at the time when it was made
under expectation of death, that is, it is immaterial whether
there existed any expectation of death at the time of the
declaration. In a Calcutta case it has been observed that the
necessity of recording a dying declaration arises only when
the hopes of life are given up. Upendra v. R, 52 CLJ 425. It is
common sense that there is no need to record dying
declaration until that stage is reached or it is apprehended
that a person will not survive.

[In re Shk Tinoo, 15 WR 11 and R v. Ujrail, 2 NWP 12,
it was held that before a dying declaration was admitted it
should be proved that the person making it knew that he was
dying or believed himself to be in danger of approaching
death. It was decided under Section 29 of Act 2 of 1855 which
was similar to the English Law with the exception that the
declarant might have entertained hope of recovery].

(2) The admissibility of dying declaration is not confined
to the case of homicide only, but it would be admissible,
whatever the charge may be, provided the cause of death
comes under inquiry: Illustration (a) shows that in a charge
of rape, a woman’s dying declaration is admissible as to the
circumstances of the transaction resulting in her death. In
England a dying declaration is not admissible to prove rape
[R v. Newton, 1 F F 641], or robbery [R v. Lloyd, 4 C P
233].

(3) A dying declaration is admissible in this country in
civil suits, under the terms, “whatever may be the nature of
the proceeding in which the cause of death comes into
question.” Thus in a suit for damages for death caused by a
railway accident due to the negligence of the company, the
declaration of the passenger killed, as to the cause of his
death is admissible. Illustration (a) shows that it is receivable
in civil as well as in criminal cases.”

CRL.A. 930/2001 Page 18 of 23

68. It thus stands crystal clear that the second limb of
Section 32(1) of the Evidence Act, 1872 is not restricted by the
fact that in the cases before the Court, with reference to the cause
of the maker’s death/the death has to be a fact in issue i.e. the
death is not an ingredient of the offence. In whatever manner the
cause of death comes into question, in a proceedings where the
circumstances of the transaction have a proximate and a direct
cause with the person’s death, whatever be the offence under
inquiry, the statements would be admissible in evidence.

69. This goes on to evince the fact that learned Judges and
fraternity of Jurists could not have been impervious of the fact
that there are two distinct expressions used in Section 32(1), and
there are two distinct limbs of the said section; obviously, the
second following the first and thus neither the two limbs nor the
two expressions could be given a meaning which is but the same;
the learned Judges and Jurists have been conscious of the fact
that the two limbs and the two expressions embody two distinct
meanings. They were conscious that any interpretation which
disregarded the aforesaid had to be discarded as unacceptable.”

7. In Sudhakar Anr. (supra) the Supreme Court held that the statement
of the deceased should have a close nexus with the actual transaction. On
the facts, it was noted that the statement of the deceased giving the
circumstance in which she was allegedly raped by two accused was recorded
by police 11 days after the occurrence and she committed suicide after 5½
months of the occurrence. At the time of making the statement there was
nothing indicating the deceased’s mind for committing suicide on account of
the humiliation suffered by her due to rape, nor the circumstances stated in
the statement suggested that a person making such statement would under
normal circumstance commit suicide after a lapse of 5½ months. It was held
that the statements did not constitute a dying declaration to be admissible

CRL.A. 930/2001 Page 19 of 23
under Section 32 of the Indian Evidence Act. Further in view of the delay in
lodging the FIR, medical examination, non-examination of the material
witness and further witnesses turning hostile, it was held that the prosecution
has failed to prove beyond reasonable doubt the charge for offence
punishable under Sections 376/34 IPC as well.

8. In the present case, prosecution has relied upon three dying
declarations of the deceased, first in the MLC, then to the Investigating
Officer and the third one to her husband. PW-1 Dr. Rajat Kumar Prasad
proved the MLC of the deceased Ex.PW-1/A wherein the alleged history
given by the informant herself was noted as “allegedly sustained burn injury
when she poured kerosene oil over her while making tea and set her on fire.
Allegedly she had sexual assault 1 month back.” In the cross-examination
Dr. Rajat Kumar Prasad stated that patient was able to speak when brought
to the hospital and the alleged history was written by him in his own
handwriting.

9. The second dying declaration was made by the deceased to the
Investigating Officer PW-6 SI Manish Kumar who took the endorsement of
the Doctor who opined the injured to be fit for statement vide Ex.PW-6/B
and recorded the statement of the deceased vide Ex.PW-6/A. Contents of
Ex. PW-6/B as recorded by SI Manish Kumar have been noted hereinabove
in para-3.

10. The third dying declaration according to the prosecution was made to
the husband of the deceased who deposed that on the date when his wife got
burn injuries she told him that she was raped by the accused and as a result
of the anguish she poured kerosene and lit herself. Thereafter he took his

CRL.A. 930/2001 Page 20 of 23
wife to the hospital. He clarified that his wife had not disclosed about the
incident of rape prior to the day when she got burn injuries.

11. Analyzing the facts in the present case on the touchstone of the law
laid down by the Hon’ble Supreme Court in Sudhakar Anr. (supra) and the
Division Bench of this Court in Sandy @ Ved Prakash (supra), it can safely
be held that there was no abetment/instigation by the appellant, even if the
allegation of rape is accepted to be true, soon before the death of the
deceased, forcing/persuading her to commit suicide. There was no
proximate or live link between the commission of alleged offence of rape
and the suicide committed. Hence the conviction of Ram Swaroop for
offence punishable under Section 306 IPC cannot be sustained.

12. As noted above, no complaint of rape was lodged by the prosecutrix
for one month thus, there was no medical evidence to corroborate the version
of the deceased except the three dying declarations made. In the dying
declaration made in the MLC the name of Ram Swaroop does not figure,
whereas it is mentioned in the statement made to the police officer Ex.PW-
6/B on the basis of which FIR was registered and as disclosed to her
husband.

13. In the decision reported as 1958 SCR 552 Khushall Rao vs. The State
of Bombay the Hon’ble Supreme Court held that it is not an absolute rule nor
even a rule of prudence that has ripened to a rule of law that to sustain the
order of conviction, dying declaration must be corroborated by other
independent evidence. Rule of caution requires that the dying declaration be
subjected to close scrutiny since the evidence is untested by cross-
examination. The declaration must be accepted, unless such declaration can
be shown not to have been made in expectation of death or to be otherwise

CRL.A. 930/2001 Page 21 of 23
unreliable. Any evidence adduced for this purpose can only detract from its
value but does not affect its admissibility. The dying declaration, therefore,
may be tested as any other piece of evidence. Once the court reaches the
conclusion that the dying declaration is true, no question of corroboration
arises. The dying declaration cannot be placed in the same category as
evidence of an accomplice or a confession.

14. It is thus settled by catena of decisions that if after careful scrutiny of
the dying declaration the Court is satisfied that it is true and free from any
effort to induce the deceased to make false statement and is coherent and
consistent, there is no legal impediment to form such dying declaration, the
basis of conviction even if there is no corroboration. As noted in the MLC
though history of sexual assault is mentioned but the name of the assailant
has not been mentioned. Further for one month the deceased did not disclose
about the offence of rape to anyone including her husband. Testimony of her
husband also did not disclose that during this period of one month the
deceased felt depressed, neglected or had a changed behavior.

15. As against the evidence of the prosecution noted above, Ram Swaroop
has examined witnesses in defence of which DW-1 and DW-3 are the
neighbours of the deceased. The consistent statement of the defence
witnesses is that the husband of the deceased used to hardly work for three-
four days in a month and was in the habit of playing cards, gambling and
drinking whole of the day. The deceased used to earn the livelihood for the
family and there was a constant quarrel between the husband and the wife.
Even in the night preceding the incident, a quarrel took place between the
husband and the wife.

CRL.A. 930/2001 Page 22 of 23

16. Further DW-2 is the daughter-in-law and widow of the pre-deceased
son of PW-3 and the deceased. She also stated that a quarrel took place
between the deceased and her husband on 10th February, 2000. PW-3 was
not earning and he used to beat the deceased. When she consoled her
mother-in-law, PW-3 warned her not to interfere. On the request of the
deceased she had not gone to the job on that day. At about 3.00 PM, she had
gone to the market to purchase vegetables and when she came back she
found that her mother-in-law had set herself on fire.

17. In view of the evidence led by the prosecution and the evidence of the
defence including that of the daughter-in-law of PW-3 and the deceased,
conviction of Ram Swaroop for offence punishable under Section 376 IPC
can also not be sustained.

18. Consequently the impugned judgment of the conviction and order on
sentence are set aside. Appeal is disposed of.

19. The bail bond and the surety bond of the appellant are discharged.

20. TCR be returned.

21. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.

(MUKTA GUPTA)
JUDGE
MAY 25, 2017
‘v mittal’

CRL.A. 930/2001 Page 23 of 23

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