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The State Of M.P. vs Mohd.Shahid & Anr. on 1 November, 2018

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HIGH COURT OF MADHYA PRADESH: JABALPUR
(Division Bench)

Criminal Appeal No. 541/2000

State of Madhya Pradesh ………Appellant
through P.S. Bilkhiria, Bhopal
Versus
Mohammad Shahid Another …….Respondents
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
CORAM:
Hon’ble Shri Justice Hemant Gupta, Chief Justice
Hon’ble Shri Justice Atul Sreedharan, Judge
——————————————————————————————
APPEARANCE:
Mrs. Namrata Agrawal, Government Advocate for the appellant/State.
Mr. S.C. Datt, Senior Advocate with Mr. Siddharth Datt
Ms. Kishwar Khan, Advocates for the respondents.
——————————————————————————————
Whether Approved for Reporting: Yes

Law Laid Down:

 Evidence as to the cause of death is relevant not only in relation to the
cause of death of the person making the statement but also to the
circumstances of the transaction which resulted in death. In the suicide note
when the prosecutrix has tried to convey that the accused were hungry (for
sex) and that she became their food (victim), it clearly indicates that she
was violated and that she did not want to live life of disgrace. The entire
reading of the dying declaration does not absolve the accused though she
said that they be not punished. Such suicide note is to be treated as dying
declaration and is admissible under Section 32 of the Evidence Act, 1872.

Relied – (2015) 8 SCC 494 (Tejram Patil v. State of Maharashtra);
(1984)4 SCC 116 (
Sharad Birdhichand Sarda v. State of Maharashtra)
AIR 1958 SC 22 (
Khushal Rao v. State of Bombay);
AIR 1939 PC 47 (
Pakala Narayana Swami v. Emperor);
AIR 1928 Patna 162 (
Lalji Dusadh v. Emperor).
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 The statement made by the victim soon after the incident is relevant in
terms of
Section 157 of the Act. It will have corroborative value. Thus, the
statement of the victim to her brother Nilesh (PW-7), Kashi Singh (PW-1)
“at or about the time when the fact took place” are admissible in terms of
first part of
Section 157 of the Act whereas, statement made to Investigating
Officer Manoj Sharma (PW-14), “an authority legally bound to investigate
the fact” is relevant in terms of second part of
Section 157 of the Evidence
Act to corroborate the other evidence on record.

Relied – (2000) 5 SCC 30 (State of Rajasthan v. N.K. the accused);
(1998) 2 SCC 372 (
State of T.N. v. Suresh);

AIR 1983 SC 911 (Sheikh Zakir v. State of Bihar);

AIR (39) 1952 SC 54 (Rameshwar v. State of Rajasthan).

 Even if the victim was found to be habitual to sexual intercourse as there
were no injuries on her person; and she was more than 18 years of age, does
not allow the accused to violate her and would also not mean that she had
consented for being violated by the accused. The evidence of the witnesses
and the statement of the accused under
Section 313 of CrPC does not show
that accused knew the victim and that she voluntarily submitted to the
accused. There is no rule of law that her testimony cannot be acted upon
without corroboration in material particulars. Therefore, in view of the
statement of her brother and suicide note, the question of consent does not
arise.

Relied – (2013) 7 SCC 278 (Ganga Singh v. State of Madhya Pradesh);
(2012) 7 SCC 171 [
Narender Kumar v. State (NCT of Delhi)];
(2004) 1 SCC 421 (
State of Punjab v. Ramdev Singh); and
(2000) 5 SCC 30 (
State of Rajasthan v. N.K. the accused).
——————————————————————————————
Significant Paragraphs: 25 to 27, 31 to 34, 36, 39, 40, 45 to 48,
50 to 54, 58
——————————————————————————————
Reserved on: 22.10.2018
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
CRA-541-2000
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JUDGMENT

(Pronounced on this 1st day of November, 2018)

Per: Hemant Gupta, Chief Justice:

The present appeal by the State is against an order passed by the

learned Sixth Additional Sessions Judge, Bhopal in Sessions Trial

No.357/1998 acquitting the respondents for the offences under Sections

366, 376(2)(g) of the Indian Penal Code, 1860.

2. The learned Trial Court returned a finding that there is no reliable

evidence on record regarding kidnapping of the prosecutrix and forcible

intercourse with her. The learned Trial Court further found that the only

evidence which is available on record is that the prosecutrix was found with

the accused and even if the accused have committed intercourse, it is with

her consent, as she was more than 18 years of age. The prosecutrix was

taken in a car but the fact that she has not objected to go with the accused in

car shows her consent in having relationship with the accused.

3. The prosecution was initiated on the basis of the statement of the

prosecutrix “M”, aged about 18 years given to PW-14 SHO- Manoj Sharma

at 0.10 a.m. on 18.10.1998 on the basis of which an FIR (Ex.P-23) was

lodged for the offence punishable under Sections 366 and 376(2)(g) of the

IPC. The statement is that on 17.10.1998, at about 6.00 p.m. she has gone

with her brother to Vegetable Market. Her brother is working in the tea-shop

of Manoj Kushwaha. After meeting her brother, she was standing at bus

stand at about 7.00 p.m. to take Mini-bus to reach her house. At that time,
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two boys alighted from a blue-colour Maruti car, who gave their names as

Mohammad Shahid and Mohammad Shamim and said that they know her

brother. They disclosed the name of her brother as well and said that they

will drop her home. Believing their statement, she sat in their car. When the

car crossed Patra bridge then these people sped away the car. She objected,

but they closed the glass window panes. They threatened her and told her to

keep quiet. They kept moving in the city for some time. After some time,

they went to Raisen Road and took a road, which was going towards an

agricultural land. Under threat, Shahid and Shamim, in turn, raped her in the

car. On way back, their car got stuck on the Kaccha path. They threatened

her not to raise any noise and tried to seek help to take out the car from the

soft ground. They stopped a Mini bus. Some people from the bus and the

policemen came to the spot. She told them entire story and was brought to

the police station. She disclosed the car number as MP09-HB-1927.

4. On the same day, at about 5 a.m. she was medico-legally examined

by Dr. Sushma Nigam (PW-11). The report is Ex.P-20. There was old-

ruptured hymen and that she was habitual to sexual intercourse as per the

said report. The vaginal slides were prepared. The accused were arrested on

18.10.1998 at 1.55 am vide arrest memo (Ex. P-14). Accused Mohammad

Shamim suffered a disclosure statement (Ex. P-15) at 00.40 am on

18.10.1998 that he can get his underwear recovered which is kept near the

rear seat of car number MP09-HB-1927, which is standing on Raisen road

on the Kaccha portion of the road. Ex. P-17 is the recovery memo of the

underwear of the accused Shamim taken out by him from the rear seat of the

car. Accused Mohammad Shamim in Ex. P-8 addressed to Medical Officer,
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Central Jail Hospital, Bhopal, inter alia, stated that an unknown girl aged

about 18-19 years asked for lift from them. She stated that if Rs.1000/- are

not paid, she will raise hue and cry. When they turned car back, the car got

stuck in the agricultural field. In the meantime, 3-4 constables alighted from

a passenger bus and took them to police station. They denied doing anything

wrong with the girl and that they have not taken bath and nor changed the

clothes.

5. Accused Mohammad Shahid suffered a disclosure statement (Ex. P-

16) at 00.35 am on 18.10.1998 that he can get the documents of his car

bearing registration No. MP09-HB-1927 recovered from the glove box of

the car which is standing on Raisen road on the Kaccha portion of the road.

Ex. P-13 is the recovery memo of the documents which Shahid has taken out

by himself from the glove box of the car. Ex. P-9 is the statement of accused

Shahid on the similar lines made to Medical Officer Central Jail on

22.10.1998 and that he has also not taken bath nor changed the clothes.

6. Manoj Sharma (PW-14) is the SHO and the Investigating Officer,

who deposed that FIR (Ex.P-23) was written by him on the statement of the

prosecutrix. He prepared site plan (Ex.P-5) in the presence of witnesses and

arrested the accused. He deposed that on the statement of Shamim, his

underwear was taken in possession from underneath the rear seat vide

disclosure statement (Ex.P-15). On the basis of disclosure statement of

accused Shahid, car number MP09-HB-1927 was taken in possession vide

memo Ex.P-16 and also the car and the documents of vehicle vide memo

Ex.P-13. Mohammad Shahid was asked to remove his underwear, which was
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taken in possession vide memo Ex.P-18. He sent the vaginal slide and

underwear of the accused for forensic science examination vide memo Ex.P-

25. The report of the Forensic Laboratory is Ex.P-26.

7. Dr. D.S. Badkul (PW-8) has conducted medico-legal examination of

accused – Shamim at about 11.15 a.m on 22.10.1998. He is the one who

prepared report Ex.P-8 in respect of Shamim and Ex.P-9 in respect of

Shahid, who was examined by him at 11.25 am on the same day. The doctor

has given report Ex.P-8 and P-9 that the accused were capable of performing

sexual intercourse.

8. In report Ex.P-26, it has been found that Salvar of the prosecutrix

contained in packet (A), vaginal slide in packet (B), underwear of accused

Mohammad Shahid in packet (C) and underwear of accused Mohammad

Shamim contained in packet (D) were found with stains of semen but the

quantity of samples were not sufficient for serological examination of the

semen.

9. The victim committed suicide and left a suicide note (Ex.P-6) dated

22.10.1998. The suicide note is in Hindi whereas its English translation

reads as under:

“22.10.1998

I, “M”, no one is responsible for my death. I am myself
responsible. My family members and others should not be held
responsible after my death as I am committing suicide on my own.
Because neither I want to live life of disgrace nor you (Police) would
permit me to live gracefully. I asked to not to publish this incident in
newspaper but the news was published in the newspaper though I have
requested you to not to do. You would have still done the same. It is
much better that if I am not alive then neither me or my parents shall
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suffer disgrace. I withdraw my statement. Please release those boys. It
was my fault that I sat in their vehicle, being enticed. Though they were
drunk but I was in my senses. It is commonly said that if food is served
before any hungry person he would not leave it uneaten. I sat in their
vehicle by mistake and they apprehended me to be a girl of loose
character. Whatever happened to me has ruined my life, now I don’t want
to ruin the life of the boys by punishing them. I request you to leave
them and do not harass my parents and my brother by any means.

Written by me : “M”

Signed in English
Daughter of xxx

I had mixed sleeping pill in my mother’s food and therefore she is
in sound sleep. She had no clue regarding my death. So do not try to
interrogate my mother in any manner otherwise, I will not leave you
even after my death.”

10. Sohan Lal Pandey, Assistant Sub Inspector has been examined as

PW-9. He has taken the dead body in his possession on 23.10.1998 vide

memo Ex.P-10. He also took in possession writing Ex.P-6, paper and a pen

handed over by Nilesh, brother of the deceased. The recovery memo is Ex.P-

7. He also took in possession two Dupattas vide memo Ex.P-12.

11. After completion of investigation, the accused were made to stand

trial.

12. The prosecution, in order to prove the offence under Section 366 and

376(2)(g) of the IPC, examined the brother of the deceased, Nilesh (PW-7).

He deposed that two days before Diwali, his sister told him that when she

was standing on the bus stand, two persons came and disclosed his name to

her and that they will drop her to her home. Those persons took her in a car

to a jungle whereas the policemen came and took them to police station

where his sister lodged a report. She told him that these persons committed
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rape with her. She disclosed their names as Shahid and Shamim. After 2-3

days, his sister committed suicide in the house itself. The suicide note Ex.P-

6 written by his sister was found by him lying on the table, which was

handed over to the police. Such suicide note was taken in possession vide

Ex.P-7. In the cross-examination, he stated that he has studied up to 7 th class

and that Ex.P-6 was not sealed on the day, it was recovered. He reiterated

that his sister told the name of the persons who took her in car are Shahid

and Shamim. He denied the suggestion that the prosecutrix was depressed

after the news came in the newspaper. A perusal of the statement would

show that no question was put to the brother of the deceased that such

suicide note is not written by her. The witness has deposed that after the

death of his sister he found a suicide note written in her handwriting which

was taken in possession.

13. Madanlal (PW-6) is the father of the deceased. He deposed that his

son Nilesh told him about the sexual assault on her daughter. He tried to

counsel her but she was keeping quiet and after five days, she committed

suicide.

14. Apart from the statement of the brother, who is a witness of oral

dying declaration made to him, the prosecution examined PW-2 Mohd.

Shahid, the conductor of the Mini-bus. He deposed that about four months

back, at about 10-11 p.m. he was coming in a bus from Raisen to Bhopal.

Between Bilkhiria and Khajuri, he saw both the accused standing. They

stopped the bus and sought their help as their car had stuck in the

agricultural field. In the bus, there were 4-5 constables, who were on patrol
CRA-541-2000

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duty. He deposed that there was a girl in the car who was standing with the

accused. On his asking, the girl told him that she has come with the accused

for a visit. The witness was declared hostile. In cross-examination by the

public prosecutor, he deposed that there was a passenger in the vehicle who

kept sitting in the vehicle and that the girl did not disclose anything in his

presence.

15. PW-3, Pyare is the driver of the Mini-bus. He deposed that at about

11.00 p.m. he was driving Mini-bus from Raisen and two persons stopped

the vehicle. The police constables sitting in the bus alighted along with the

conductor. No conversation has taken place in his presence.

16. Kashi Singh (PW-1) is one of the constables, who were on patrol

duty. He deposed that at about 10.30 p.m., they went for patrol duty from

Police Station Bilkhiria, and when they reached near Pammi Farm, then

accused present in court stopped the bus and sought help from the driver for

removal of Maruti car stuck in the agricultural fields. Car number was 1927.

A girl was standing with the accused. On having a suspicion, he asked the

name of the persons, who disclosed their names as Shamim and Shahid. In

response to the question as to the purpose of the visit to that place, the

answer was just roaming about. He deposed that both the accused were

drunk. The girl in the car disclosed her name and said that the accused have

forcibly brought her. When the prosecutrix gave such statement, the bus and

the driver have left the place. He, along with the accused and the victim,

came to the police station and produced her before the Station House

Officer. In cross-examination by the public prosecutor, he stated that when
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he asked the accused that who is this girl, they said that she is their sister but

the girl told him that the accused have forcibly brought her. In further cross-

examination he deposed that the victim has not disclosed that she was

sexually assaulted at the site but this fact she stated in the police station. He

deposed that there was nobody else when the accused and the victim were

interrogated except him and Kishan Singh (PW-4). In further cross-

examination by the accused, he deposed that he has not seen any breakage in

the car and the girl came out of the car when she saw them. She did not

volunteer anything but disclosed when they asked from her. They came to

police station in that car only.

17. Kishan Singh (PW-4) was also in the patrol party along with Kashi

Singh (PW-1). He deposed that at about 10.30 p.m., near a Poultry Farm,

two boys stopped the bus and sought help for taking out their car. He,

Kashiram and some passengers alighted from the bus and saw that in car

there was one girl. The boys had consumed liquor. The girl told them that the

two boys are her brother and that no action be taken else their Diwali will

get spoiled. Since they had a doubt on the statement, they took the boys and

the girl to the police station in truck and left the car at that place only. The

accused are the persons who stopped their vehicle on that night. The witness

was declared hostile and in cross-examination by the public prosecutor. He

denied giving the statement that the victim has disclosed that she was

sexually assaulted.

18. Chhaganlal (PW-10), is an agriculturist, who deposed that around

four months back, at 11.00 p.m. in the night, he had gone to leave Omkar
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Singh on his field. He saw a Maruti car stuck in the field away from the road

and that a Mini-bus was standing on the road. The police constables were

standing. A panchnama was prepared but he has not seen any girl nor has he

gone near the car. The police has taken the car vide recovery memo Ex.P-13,

to which he is signatory. He does not know the accused nor were such

accused seen at the place of occurrence. He denied that the car or the

underwear of the accused was recovered in his presence.

19. PW-12 is Onkar Singh – another agriculturist. He also saw a car

stuck in the field in which one girl was sitting and also the Mini-bus was

standing on the road. Two-three policemen were also standing. He does not

know who was the girl nor identified the accused. He denied that accused

was interrogated by the police but admitted his signature on memo Ex.P-15

and P-16. He also admitted his signature on recovery memo of car,

underwear and papers Ex.P-13, P-17 and P-18. The witness was declared

hostile.

20. With this evidence on record, the learned Trial Court returned a

finding that the presence of the accused with the victim is proved but not of

sexual assault.

21. Learned counsel for the appellant-State argued that the findings

recorded by the learned Trial Court are perverse, inasmuch as, the admissible

evidence has not been taken into consideration and the benefit of acquittal

has been wrongly granted. It is argued that the suicide note is admissible in

evidence in terms of Section 32 of the Evidence Act, 1872 (for short “the

Act”), as it is in evidence of circumstances of transaction, which led to her
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death. Learned counsel relies upon a judgment of the Privy Council in

Pakala Narayana Swami v. Emperor, AIR 1939 PC 47. She also relied

upon a judgment of the Supreme Court in Sharad Birdhichand Sarda v.

State of Maharashtra, (1984) 4 SCC 116 and a decision of the Patna High

Court in Lalji Dusadh v. Emperor, AIR 1928 Patna 162.

22. Learned counsel for the appellant-State also submitted that the

statement of the victim to her brother Nilesh (PW-7) and Kashi Singh (PW-

1) are relevant in terms of first part of Section 157 of the Evidence Act, 1872

(for short “the Act”) whereas statement given to Investigating Officer Manoj

Sharma (PW-14) is relevant in respect of second part of Section 157 of the

Act. Reliance is placed upon the judgments of the Supreme Court rendered

in Rameshwar s/o Kalyan Singh v. The State of Rajasthan, AIR (39)

1952 SC 54; Sheikh Zakir v. State of Bihar, AIR 1983 SC 911; State of

T.N. etc. v. Suresh and another etc. (1998) 2 SCC 372 and State of

Rajasthan v. N.K. the accused, (2000) 5 SCC 30.

23. On the other hand, learned senior counsel for the respondent

reiterated the argument raised before the Trial Court that the suicide note

does not name the accused, therefore, in absence of identity of the accused in

the suicide note, the findings recorded by the Trial Court cannot be said to

be unwarranted. It is also argued that as per the medical evidence, the victim

was habitual to sex and she was more than 18 years of age, therefore, the

findings recorded by the Trial Court that the prosecution has only proved the

presence of the accused with the victim and not the sexual assault, cannot be

said to be perverse which may warrant interference in the appeal against the
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acquittal. Learned senior counsel for the respondent relies upon Supreme

Court decision in Sudhakar and another v. State of Maharashtra, (2000)

6 SCC 671.

24. We find that the findings of the learned Trial Court are based on the

perverse appreciation of evidence, which are not sustainable in law. The

evidence against the accused can be discussed under the following heads.

A. Identification of the Accused:

25. Kashi Singh (PW-1), police constable, who was on patrol duty, has

identified both the accused, who have disclosed their name to this witness

when their car was stuck in the agricultural fields. He also deposed that both

the accused were drunk. In cross-examination, he admitted that the fact that

she was sexually assaulted by the accused was told by her in the police

station when he accompanied the accused and the victim to the police

station. She was in Police Station at about 00.10 a.m., that is soon after the

occurrence at about 11.00 p.m. She was medically examined at 5.00 a.m. in

the morning. The disclosure statements of the accused were recorded at

about 11.15 p.m. and 11.25 p.m. on 17.10.1998. The statement of the said

witness is to the effect that he came with the accused and the victim in the

car of the accused itself.

26. Kishan Singh (PW-4) is another constable, who was on patrol duty.

He has deposed that the boys who have stopped the bus are the accused in

Court and they had consumed liquor. There is discrepancy in his version that

the victim told the witness that the accused are her brother and that no action
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be taken else their Diwali will get spoiled. However, we find that such

discrepancy is of no consequence. Inasmuch as, even if the victim has stated

that the accused are her brother but the fact that she stated that no action be

taken against them else their Diwali will get spoiled leads to unnatural

relation between them.

27. Mohd. Shahid (PW-2), the conductor of Mini-bus deposed that it

was at around 10-11 p.m. that the bus was stopped by two accused, present

in court. She did not disclose to him that she has been sexually assaulted.

Pyare (PW-3), the driver of the Mini-bus has not alighted from the bus and

he has not identified either the accused or the victim. Kishan Singh (PW-4)

deposed that he was on the patrol duty and was asked to help the accused in

taking out their car at around 10.30 p.m. Both the boys were drunk though

the girl told them that she is their sister. He identified the accused as the

persons, who stopped the bus. Even the learned Trial Court has returned a

finding that the accused were in the company of victim in the night of 17 th

October, 1998 from about 7 p.m. to 11 p.m.

28. Thus, the presence of the accused with the victim is proved from the

testimony of Kashi Singh (PW-1) and Kishan Singh (PW-4) as well as

Mohd. Shahid (PW-2), conductor of the Mini-bus, who deposed that the

accused were the one, who stopped the bus. Kashi Singh (PW-1) and Kishan

Singh (PW-4) have proved the presence of the girl with the accused. The

said girl was the one, who was taken by Kashi Singh (PW-1) to the police

station, who has deposed the manner of occurrence to the Investigating

Officer, Manoj Sharma (PW-14).

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B. Whether Suicide Note can be treated as Dying Declaration:

29. Nilesh (PW-7), brother of the victim has also produced the suicide

note (Ex.P-6) written by the deceased, taken in possession vide memo Ex.P-7

on 23.10.1998 at about 7.30 am. Her dead body was taken in possession on

23.10.1998 vide Memo Ex. P-10. The time of death is mentioned as

22/23.10.1998 before 3.00 am. In the suicide note (Ex.P-6) dated 22.10.1998,

she has written that she does not want to live the life of disgrace nor the

police will permit her to live gracefully. She has stated that to avoid disgrace

to her and her parents, she is taking this step. She stated that it was her fault

that she sat in their vehicle. They were drunk and that she sat in their vehicle

by mistake and they thought that she is the girl of loose-character. In the

suicide note she is categorical that she will not be able to live a life of

disgrace. She stated that it will be better if she dies rather than to live a life of

disgrace to her and her family members. She has stated that both of the

accused had liquor and that whatever has happened to her has disrupted and

ruined the life and that she does not want to ruin the life of the boys by

punishing them. She was violated on 17.10.1998. She committed suicide

after four days. From her suicide note, it is clear that she was violated and

that she does not want to live life of disgrace. She has tried to convey that the

accused were hungry (for sex) and that she became their food (victim). The

entire reading of the dying declaration does not absolve the accused though

she said that they be not punished.

30. The judgment relied upon by the learned counsel for the appellant in

Lalji Dusadh (supra), was a case of trial for an offence under Sections 392
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and 397 of the IPC wherein the dying declaration was found to be

admissible. It was held that the words of Section 32 of the Act are very wide

and it is not necessary that the charge should be one of homicide. The

evidence as to the cause of death was relevant to the charge of robbery and

consequently the cause of death i.e. the assault committed by the appellant

came in question in the trial. The Court held as under:-

“……….. A further legal point is taken with regard to the dying
declarations. It is contended that so far as the charges for the offences
under Sections 392 and 397 are concerned the dying declarations are not
admissible under
Section 32(1) of the Indian Evidence Act inasmuch as
the cause of the deceased’s death does not come in question in the trial of
those charges. It is contended that on this point the Indian law is the
same as the English Law and that a dying declaration as to the cause of
the death is only admissible when the causing of the death is the subject
of the charge. I cannot agree with this view. The words of
Section 32 are
very wide and it is not necessary that the charge should be one of
homicide. The evidence as to the cause of death was relevant to the
charge of robbery and consequently, the cause of death, that is to say, the
assault committed by the appellant, came in question in the trial.
Before
the Indian Evidence Act was enacted it was held in Queen v. Bissorunjun
Mookerjee (1866) 6 W.R. Cr. 75 that there was no necessity in India for
following the very narrow rule of English Law and that a dying
declaration could be used as evidence in a charge of rape. One of the
illustrations to
Section 32 of the present Indian Evidence Act expressly
provides for such evidence where the charge is not culpable homicide
but rape.

Moreover, in this case the dying declaration was also admissible
under
Section 8 of the Indian Evidence Act as a part of the res gestae. A
statement made by the deceased immediately after the robbery regarding
the robbery and also regarding the assault committed in the course of the
robbery was admissible though the person who made it cannot be called
to depose to it on oath. The truth in
Sections 8 and 32 of the Indian
Evidence Act may overlap in some cases, but they provide for different
and distinct conditions. A statement, for instance, which would not be
admissible under
Section 8 may be admissible under Section 32.”

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31. The judgment of the Privy Council in Pakala Narayana Swami

(supra) is the celebrated judgment in respect of the statements, which are

admissible under Section 32 of the Evidence Act. The Court held as under:-

“……………..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 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……………….”

32. In Khushal Rao v. State of Bombay, AIR 1958 SC 22, the

Supreme Court held that Section 32 of the Evidence Act has been made by

the Legislature as a matter of sheer necessity by way of an exception to the

general rule that hearsay is no evidence and that evidence which has not

been tested by cross-examination, is not admissible. It was held that the

dying declaration is exception to such rule. It was also held that there is no

rule of law that a dying declaration unless corroborated by independent

witness is not to be acted upon and made the basis for conviction.

“11. The legislature in its wisdom has enacted in Section 32(1) of the
Evidence Act that “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
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death comes into question”, such a statement written or verbal made by a
person who is dead (omitting the unnecessary words) is itself a relevant
fact. This provision has been made by the legislature, advisedly, as a
matter of sheer necessity by way of an exception to the general rule that
hearsay is no evidence and that evidence which has not been tested by
cross-examination, is not admissible. The purpose of cross-examination
is to test the veracity of the statements made by a witness. In the view of
the legislature, that test is supplied by the solemn occasion when it was
made, namely, at a time when the person making the statement was in
danger of losing his life. At such a serious and solemn moment, that
person is not expected to tell lies; and secondly, the test of cross-
examination would not be available. In such a case, the necessity of oath
also has been dispensed with for the same reasons. Thus, a statement
made by a dying person as to the cause of death, has been accorded by
the legislature, a special sanctity which should, on first principles, be
respected unless there are clear circumstances brought out in the
evidence to show that the person making the statement was not in
expectation of death, not that that circumstance would affect the
admissibility of the statement, but only its weight. It may also be shown
by evidence that a dying declaration is not reliable because it was not
made at the earliest opportunity, and, thus, there was a reasonable
ground to believe its having been put into the mouth of the dying man,
when his power of resistance against telling a falsehood, was ebbing
away; or because the statement has not been properly recorded, for
example, the statement had been recorded as a result of prompting by
some interested parties or was in answer to leading questions put by the
recording officer, or, by the person purporting to reproduce that
statement. These may be some of the circumstances which can be said to
detract from the value of a dying declaration. But in our opinion, there is
no absolute rule of law, or even a rule of prudence which has ripened
into a rule of law, that a dying declaration unless corroborated by other
independent evidence, is not fit to be acted upon, and made the basis of a
conviction. No decision of this Court, apart from the decision already
noticed, has been pointed out to us as an authority for the proposition
that a dying declaration, in order to be acted upon by a court, must be
corroborated by independent evidence………

*** *** ***
CRA-541-2000
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16. On a review of the relevant provisions of the Evidence Act and of
the decided cases in the different High Courts in India and in this Court,
we have come to the conclusion, in agreement with the opinion of the
Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid
down as an absolute rule of law that a dying declaration cannot form the
sole basis of conviction unless it is corroborated; (2) that each case must
be determined on its own facts keeping in view the circumstances in
which the dying declaration was made; (3) that it cannot be laid down as
a general proposition that a dying declaration is a weaker kind of
evidence than other pieces of evidence; (4) that a dying declaration
stands on the same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with reference to
the principles governing the weighing of evidence; (5) that a dying
declaration which has been recorded by a competent Magistrate in the
proper manner, that is to say, in the form of questions and answers, and,
as far as practicable, in the words of the maker of the declaration, stands
on a much higher footing than a dying declaration which depends upon
oral testimony which may suffer from all the infirmities of human
memory and human character, and (6) that in order to test the reliability
of a dying declaration, the court has to keep in view, the circumstances
like the opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed at night;
whether the capacity of the man to remember the facts stated, had not
been impaired at the time he was making the statement, by
circumstances beyond his control; that the statement has been consistent
throughout if he had several opportunities of making a dying declaration
apart from the official record of it; and that the statement had been made
at the earliest opportunity and was not the result of tutoring by interested
parties.

17. Hence, in order to pass the test of reliability, a dying declaration
has to be subjected to a very close scrutiny, keeping in view the fact that
the statement has been made in the absence of the accused who had no
opportunity of testing the veracity of the statement by cross-
examination. But once, the court has come to the conclusion that the
dying declaration was the truthful version as to the circumstances of the
death and the assailants of the victim, there is no question of further
corroboration. If, on the other hand, the court, after examining the dying
declaration in all its aspects, and testing its veracity, has come to the
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conclusion that it is not reliable by itself, and that it suffers from an
infirmity, then, without corroboration it cannot form the basis of a
conviction. Thus, the necessity for corroboration arises not from any
inherent weakness of a dying declaration as a piece of evidence, as held
in some of the reported cases, but from the fact that the court, in a given
case, has come to the conclusion that that particular dying declaration
was not free from the infirmities referred to above or from such other
infirmities as may be disclosed in evidence in that case.”

33. The Supreme Court in Sharad Birdhichand Sarda (supra), after

review of all the cases delineated the scope of Section 32(1) of the Evidence

Act when it said as under:-

“21. Thus, from a review of the authorities mentioned above and the
clear language of
Section 32(1) of the Evidence Act, the following
propositions emerge:-

(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 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 straitjacket. 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
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instance, where the death takes 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.”

34. The judgment referred to by learned senior counsel for the

respondent in Sudhakar’s case (supra) has, in fact, held as under:-

“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.

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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 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.”

Such judgment arises out of the fact where the deceased has made a

statement after about five-and-a-half months and still further, the statement

Ex.P-9 does not directly state regarding the cause of death. Therefore, the
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judgment referred to by the learned counsel for the respondent is of no help

to the argument raised.

35. The Supreme Court in Tejram Patil v. State of Maharashtra,

(2015) 8 SCC 494 has held that dying declaration is admissible not only in

relation to the cause of death of the person making the statement and also to

the circumstances of the transaction which resulted in death.

36. The suicide note which is a dying declaration and just on the day of

writing of such letter and five days of the occurrence, the dead body was

taken in possession at about 9.30 a.m. on 23.10.1998 vide memo Ex.P-10 and

the time of death is mentioned as 22/23.10.1998 before 3.00 am in the

intervening night of 22nd and 23rd October, 1998. However, the suicide note is

corroborated by the other evidence on record, which we discuss hereinafter.

37. In view of the evidence on record, the statement Ex.P-6 in the

handwriting of the victim proved by Nilesh (PW-7) is a dying declaration, as

she died on the same day, which fact is evident from the memo Ex.P-10

having been prepared around 9.30 a.m. on 23.10.1998, wherein the time of

death is mentioned as “before 3.00 a.m. on 23.10.1998”. The argument that

the suicide note does not name the accused, is of no consequence, as the

presence of the victim with the accused at the place of occurrence is proved

from the statement of Kashi Singh (PW-1), Kishan Singh (PW-4) and also

Manoj Sharma (PW-14), who recorded the first information report. The

suicide note has to be read as a whole and not a line can be picked up from

out of context. She is referring to the accused as she is the one who has taken
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lift in the car and that she cannot take disgrace. The disgrace is the violation

of her person.

C. Relevancy of the Statement of the Victim under Section 157 of
the Evidence Act, 1872:

38. Section 157 of the Act makes it clear that the previous statement

made by a victim is admissible in evidence if it is made at or about the time

when the fact took place or before any Authority legally competent to

investigate the fact. Section 157 of the Act reads as under:-

“157. Former statements of witness may be proved to corroborate
later testimony as to same fact.– In order to corroborate the testimony
of a witness, any former statement made by such witness relating to the
same fact, at or about the time when the fact took place, or before any
authority legally competent to investigate the fact, may be proved.”

39. Nilesh (PW-7), brother of the deceased, has made a statement that

his sister told him that she was forcibly taken by accused Shahid and

Shamim and that the constables have taken her to the police station. The

statement made by the deceased to her brother is relevant evidence in terms

of Section 157 of the Evidence Act. The writing in the suicide note (Ex.P-6)

that the accused were drunk is corroborated by the statement of Kashi Singh

(PW-1) and Kishan Singh (PW-4). Kashi Singh (PW-1) stated that the victim

told him in the police station that she was sexually assaulted. The statement

of Kashi Singh made by the victim soon after the incident is relevant in

terms of Section 157 of the Act. Similarly the statement made by brother of

the victim is also relevant in terms of said provisions.

40. Manoj Sharma (PW-14), the Investigating Officer, has recorded the

FIR. The statement of the victim recorded by PW-14 is part of the
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investigations, which is relevant in terms of Section 157 of the Act. The said

provision contemplates that any former statement made by a witness relating

to the fact, at or about the time when the fact took place, or before any

authority legally competent to investigate the fact, is relevant.

41. The provision of Section 157 of the Act has been examined by the

Supreme Court in a judgment in Rameshwar’s case (supra). The Court held

as under:-

“24. Fourthly, the corroboration need not be direct evidence that the
accused committed the crime. It is sufficient if it is merely circumstantial
evidence of his connection with the crime. Were it otherwise,

“many crimes which are usually committed between accomplices
in secret, such as incest, offences with females” (or unnatural
offences) “could never be brought to justice.”

*** *** ***

27. Section 157 states that—

“In order to corroborate the testimony of a witness, any former
statement made by such witness relating to the same fact at or
about the time when the fact took place, or before any authority
legally competent to investigate the fact, may be proved.”

The section makes no exceptions, therefore, provided the condition
prescribed, that is to say, “at or about the time etc.” are fulfilled there can
be no doubt that such a statement is legally admissible in India as
corroboration. The weight to be attached to it is, of course, another
matter and it may be that in some cases the evidentiary value of two
statements emanating from the same tainted source may not be high, but
in view of
section 118 its legal admissibility as corroboration cannot be
questioned. To state this is, however, no more than to emphasise that
there is no rule of thumb in these cases. When corroborative evidence is
produced it also has to be weighed and in a given case, as with other
evidence, even though it is legally admissible for the purpose on hand its
weight may be nil. On the other hand, seeing that corroboration is not
essential to a conviction, conduct of this kind may be more than enough
CRA-541-2000

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in itself to justify acceptance of the complainant’s story. It all depends on
the facts of the case.

*** *** ***

29. The first question is whether this delay fulfills the “at or about”
condition. In my opinion, here also there can be no hard and fast rule.
The main test is whether the statement was made as early as can
reasonably be expected in the circumstances of the case and before there
was opportunity for tutoring or concoction. It was suggested that the
child could have complained to some women who were working in the
neighbourhood, but that would not be natural in a child. She would be
frightened and her first instinct would be to run home to her mother. The
High Court was satisfied on these points and so am I. Consequently, the
matter does fall within the ambit of
section 157 read with section 8,
Illustration (j).”

42. In another judgment, arising out of rape of eight years old girl,

rendered in Sheikh Zakir’s case (supra), it was held that the statement made

by the complainant to her husband immediately after the incident was found

to be admissible under Section 157 of the Evidence Act. It was held to have

corroborative value. The relevant extract of the judgment reads as under:-

“9. A reading of the deposition of the complainant shows that it has a
ring of truth around it.
Section 133 of the Indian Evidence Act says that
an accomplice shall be a competent witness against an accused person
and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. But the rule of practice is
that it is prudent to look for corroboration of the evidence of an
accomplice by other independent evidence. This rule of practice is based
on human experience and is incorporated in illustration (b) to
section
114 of the Indian Evidence Act which says that an accomplice is
unworthy of credit unless he is corroborated in material particulars. Even
though a victim of rape cannot be treated as an accomplice, on account
of a long line of judicial decision rendered in our country over a number
of years, the evidence of the victim in a rape case is treated almost like
the evidence of an accomplice requiring corroboration. (
Vide
Rameshwar v. State of Rajasthan (AIR 1952 SC 54); Gurucharan Singh
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v. State of Haryana (AIR 1972 SC 2661); and Krishan Lal v. State of
Haryana, (AIR 1980 SC 1252)). It is accepted by the Indian Courts that
the rule of corroboration in such cases ought to be as enunciated by Lord
Reading C.J. in King v. Baskerville, (1916) 2 KB 658. Where the case is
tried with the aid of a jury as in England it is necessary that a Judge
should draw the attention of the jury to the above rule of practice
regarding corroboration wherever such corroboration is needed. But
where a case is tried by a judge alone, as it is now being done in India,
there must be an indication in the course of the judgment that the judge
had this rule in his mind when he prepared the judgment and if in a
given case the judge finds that there is no need for such corroboration he
should give reasons for dispensing with the necessity for such
corroboration. But if a conviction is based on the evidence of a
prosecutrix without any corroboration it will not be illegal on that sole
ground. In the case of a grown up and married woman it is always safe
to insist on such corroboration. Wherever corroboration is necessary it
should be from an independent source but it is not necessary that every
part of the evidence of the victim should be confirmed in very detail by
independent evidence. Such corroboration can be sought from either
direct evidence or circumstantial evidence or from both. The trial court
has in the case before us found that the evidence of the complainant had
been corroborated in material particulars by the evidence of Sheikh
Lafid (P.W. 1), Juman Nadaf (P.W. 2) and Jitrai (P.W.4) the husband of
the complainant. The High Court also has acted on the evidence of these
witnesses. Sheikh Lafid (P.W. 1) has stated that he saw the appellant on
the body of the complainant and that the complainant had also told him
about the crime. Juman Nadaf (P.W. 2) has stated that when he heard the
cry of the complainant at the time of occurrence, he saw the appellant
fleeing away from that place. The trial court and the High Court have not
found any good ground to discard their testimony. Jitrai (P.W. 4) has told
the court that the complainant had mentioned to him all the details of the
incident within a short while after it took place. Rama Kant Thakur (P.W

5.), the lawyer who drafted the complaint has stated that he had prepared
the complaint which contains all the particulars of the offence under the
instructions of the complainant. Apart from the evidence of Sheikh Lafid
(P.W. 1) and Juman Nadaf (P.W. 2) about what they saw, the statement
made by the complainant to her husband immediately after the incident
is admissible under
section 157 of the Indian Evidence Act and has a
corroborative value. After considering carefully the entire material
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before us including the evidence of the witnesses examined pursuant to
the order made by this Court earlier in the light of the submissions made
at the Bar we are of the view that the judgment of the High Court does
not call for any interference under
Article 136 of the Constitution.”

43. In State of T.N. v. Suresh (supra), the Court held that the section

envisages two categories of statements of witnesses which can be used for

corroboration. First is the statement made by a witness to any person “at or

about the time when the fact took place”. The second is the statement made

by him to any authority legally bound to investigate the fact. It was held as

under:-

“26. The section envisages two categories of statements of witnesses
which can be used for corroboration. First is the statement made by a
witness to any person “at or about the time when the fact took place”.
The second is the statement made by him to any authority legally bound
to investigate the fact. We notice that if the statement is made to an
authority competent to investigate the fact such statement gains
admissibility, no matter that it was made long after the incident. But if
the statement was made to a non- authority it loses its probative value
due to lapse of time. Then the question is, within how much time the
statement should have been made? If it was made contemporaneous with
the occurrence the statement has a greater value as res gestae and then it
is substantive evidence. But if it was made only after some interval of
time the statement loses its probative utility as res gestae, still it is
usable, though only for a lesser use.

27. What is meant by the expression “at or about the time when the
fact took place”? There can be a narrow view that unless such a
statement was made soon after the occurrence it cannot be used for
corroboration. A broader view is that even if such statement was made
within a reasonable proximity of time still such statement can be used
for corroboration. The legislature would not have intended to limit the
time factor to close proximity though a long distance of time would
deprive it of its utility even for corroboration purposes.

28. We think that the expression “at or about the time when the fact
took place” in
Section 157 of the Evidence Act should be understood in
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the context according to the facts and circumstances of each case. The
mere fact that there was an intervening period of a few days, in a given
case, may not be sufficient to exclude the statement from the use
envisaged in
Section 157 of the Act. The test to be adopted, therefore, is
this; Did the witness have the opportunity to concoct or to have been
tutored? In this context the observation of Vivian Bose, J. in
Rameshwar
vs. The State of Rajasthan (AIR 1952 SC 54) is apposite:

“There can be no hard and fast rule about the ‘at or about the’
condition in
Section 157. The main test is whether the
statement was made as early as can reasonably be expected
in the circumstances of the case and before there was
opportunity for tutoring or concoction”.

(Emphasis supplied)

29. Here when PW-1 disclosed to his brother-in-law (PW6) on 24-6-
1987 about his version of the occurrence we have not come across
anything to indicate that PW-1 was either tutored or influenced by
anybody during the interregnum. Looking at the statement from that
perspective we are inclined to treat it as a corroborative piece of
evidence giving us a reassurance regarding the truth of PW-1’s evidence
in court so far as the persons involved in the episode are concerned.”

44. In a judgment rendered in N.K. the Accused (supra), the prosecutrix

has narrated the incident to a woman and to her father. The statement of the

father was found to be admissible and relevant under Section 157 of the

Evidence Act. The relevant extract from the judgment reads, thus:-

“19. ….. Having finished his act the accused left her alone and took to
his heels. The prosecutrix was weeping. She narrated the incident to a
woman described as “the wife of Udai Singh” and to her father in quick
succession. The statement of the father of the prosecutrix corroborates
her in all material particulars and is admissible in evidence and relevant
under
section 157 as her former statement corroborating her testimony as
also under
Section 8 of the Evidence Act as evidence of her conduct……”

45. Thus, the statement of the victim to her brother Nilesh (PW-7),

Kashi Singh (PW-1) are admissible in terms of first part of Section 157 of
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the Act whereas, statement made to Investigating Officer Manoj Sharma

(PW-14) is relevant in terms of second part of Section 157 of the Evidence

Act to corroborate the other evidence on record.

D. Whether the Victim was Consenting party:

46. The learned Trial Court has returned a finding that the victim was

more than 18 years of age and has consented to have sex with the accused.

Such inference is based upon the statement of Dr. Sushma Nigam (PW-11)

which is to the effect that she was habitual to sex and that there are no

injuries on her person. Even if the victim was habitual of sex but that does

not mean that she consented to have sex with the accused.

47. The question of consent does not arise in view of statement of

Nilesh (PW-7) and her suicide note (Ex.P-6). Even if she is habitual to

sexual intercourse but that does not mean that she consented for being

violated by the accused.

48. The question: as to whether absence of injuries on the prosecutrix is

sufficient to infer consent, has been found to be untenable. In the case of

N.K. the Accused (supra), the Court held as under:-

“18. Absence of injuries on the person of the prosecutrix has weighed
with the High Court for inferring consent on the part of the prosecutrix.
We are not at all convinced. We have already noticed that the delay in
medical examination of the prosecutrix was occasioned by the factum of
the lodging of the F.I.R. having been delayed for the reasons which we
have already discussed. The prosecutrix was in her teens. The
perpetrator of the crime was an able bodied youth bustling with energy
and determined to fulfill his lust armed with a knife in his hand and
having succeeded in forcefully removing the victim to a secluded place
where there was none around to help the prosecutrix in her defence. The
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injuries which the prosecutrix suffered or might have suffered in
defending herself and offering resistance to the accused were abrasions
or bruises which would heal up in ordinary course of nature within 2 to 3
days of the incident. The absence of visible marks of injuries on the
person of the prosecutrix on the date of her medical examination would
not necessarily mean that she had not suffered any injuries or that she
had offered no resistance at the time of commission of the crime.
Absence of injuries on the person of the prosecutrix is not necessarily an
evidence of falsity of the allegation or an evidence of consent on the part
of the prosecutrix. It will all depend on the facts and circumstances of
each case.
In Sheikh Zakir vs. State of Bihar (1983) 4 SCC 10, absence
of any injuries on the person of the prosecutrix, who was the helpless
victim of rape, belonging to a backward community, living in a remote
area not knowing the need of rushing to a doctor after the occurrence of
the incident, was held not enough for discrediting the statement of the
prosecutrix if the other evidence was believable.
In Balwant Singh vs.
State of Punjab (1987) 2 SCC 27, this court held that every resistance
need not necessarily be accompanied by some injury on the body of the
victim; the prosecutrix being a girl of 19/20 years of age was not in the
facts and circumstances of the case expected to offer such resistance as
would cause injuries to her body.
In Karnel Singh vs. State of M.P.
(1995) 5 SCC 518 the prosecutrix was made to lie down on a pile of
sand. This court held that absence of marks of external injuries on the
person of the prosecutrix cannot be adopted as a formula for inferring
consent on the part of the prosecutrix and holding that she was a willing
party to the act of sexual intercourse. It will all depend on the facts and
circumstances of each case. A Judge of facts shall have to apply common
sense rule while testing the reasonability of the prosecution case. The
prosecutrix on account of age or infirmity or overpowered by fear or
force may have been incapable of offering any resistance. She might
have sustained injuries but on account of lapse of time the injuries might
have healed and marks vanished.”

49. In N.K. the Accused (supra), it was further held that the prosecutrix

complaining having been a victim of offence of rape is not an accomplice

after the crime. It was held that there is no rule of law that her testimony

cannot be acted without corroboration in material particulars. In the present
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case, though the victim has died but her dying declaration, as reproduced

above, clearly proves that she was violated by the accused when she sat in

the car driven by them. The identification of the accused is beyond doubt

from the testimony of Kashi Singh (PW-1), Kishan Singh (PW-4) as well as

by Nilesh (PW-7), the names having been disclosed by the victim to him.

50. In another judgment in Narender Kumar v. State (NCT of Delhi),

(2012) 7 SCC 171, the Supreme Court has held that even in cases where

there is some material to show that the victim was habitual of sexual

intercourse, no inference of the victim being a woman of “easy virtues” or a

woman of “loose moral character” can be drawn. Such a woman has a right

to protect her dignity and cannot be subjected to rape only for that reason.

She has a right to refuse to submit herself to sexual intercourse to anyone

and everyone because she is not a vulnerable object or prey for being

sexually assaulted by anyone and everyone. Merely because a woman is of

easy virtue, her evidence cannot be discarded on that ground alone rather it

is to be cautiously appreciated and the court is required to adjudicate

whether the accused committed rape on the victim on the occasion

complained of. The relevant extracts from the said decision read as under:-

“20. It is a settled legal proposition that once the statement of the
prosecutrix inspires confidence and is accepted by the court as such,
conviction can be based only on the solitary evidence of the prosecutrix
and no corroboration would be required unless there are compelling
reasons which necessitate the court for corroboration of her statement.
Corroboration of testimony of the prosecutrix as a condition for judicial
reliance is not a requirement of law but a guidance of prudence under the
given facts and circumstances. Minor contradictions or insignificant
discrepancies should not be a ground for throwing out an otherwise
reliable prosecution case.

CRA-541-2000

—33—

21. A prosecutrix complaining of having been a victim of the offence
of rape is not an accomplice after the crime. Her testimony has to be
appreciated on the principle of probabilities just as the testimony of any
other witness; a high degree of probability having been shown to exist in
view of the subject-matter being a criminal charge. However, if the court
finds it difficult to accept the version of the prosecutrix on its face value,
it may search for evidence, direct or substantial (sic circumstantial),
which may lend assurance to her testimony. (
Vide Vimal Suresh
Kamble v. Chaluverapinake Apal S.P. [(2003) 3 SCC 175]
and
Vishnu v. State of Maharashtra [(2006) 1 SCC 283]).

*** *** ***

26. Even in cases where there is some material to show that the victim
was habituated to sexual intercourse, no inference of the victim being a
woman of “easy virtues” or a woman of “loose moral character” can be
drawn. Such a woman has a right to protect her dignity and cannot be
subjected to rape only for that reason. She has a right to refuse to submit
herself to sexual intercourse to anyone and everyone because she is not a
vulnerable object or prey for being sexually assaulted by anyone and
everyone. Merely because a woman is of easy virtue, her evidence
cannot be discarded on that ground alone rather it is to be cautiously
appreciated. (
Vide State of Maharashtra v. Madhukar Narayan
Mardikar [(1991) 1 SCC 57]:
State of Punjab v. Gurmit Singh [(1996) 2
SCC 384]: and
State of U.P. v. Pappu [(2005) 3 SCC 594]).

27. In view of the provisions of Sections 53 and 54 of the Evidence
Act, 1872, unless the character of the prosecutrix itself is in issue, her
character is not a relevant factor to be taken into consideration at all.

28. The courts while trying an accused on the charge of rape, must deal
with the case with utmost sensitivity, examining the broader probabilities
of a case and not get swayed by minor contradictions or insignificant
discrepancies in the evidence of the witnesses which are not of a
substantial character.”

51. The Supreme Court in its decision in State of Punjab v. Ramdev

Singh, (2004) 1 SCC 421, has held that even if it is accepted that the victim

had lost her virginity earlier, it did not and cannot in law give licence to any
CRA-541-2000

—34—

person to rape her. It is the accused who was on trial and not the victim. The

Court held as under:-

“13. … Even assuming that the victim was previously accustomed to
sexual intercourse, that is not a determinative question. On the contrary,
the question which was required to be adjudicated was did the accused
commit rape on the victim on the occasion complained of. Even if it is
hypothetically accepted that the victim had lost her virginity earlier, it
did not and cannot in law give licence to any person to rape her. It is the
accused who was on trial and not the victim. Even if the victim in a
given case has been promiscuous in her sexual behaviour earlier, she has
a right to refuse to submit herself to sexual intercourse to anyone and
everyone because she is not a vulnerable object or prey for being
sexually assaulted by anyone and everyone. …

14. It is well settled that a prosecutrix complaining of having been a
victim of the offence of rape is not an accomplice after the crime. There
is no rule of law that her testimony cannot be acted upon without
corroboration in material particulars. She stands on a higher pedestal
than an injured witness. In the latter case, there is injury on the physical
form, while in the former it is both physical as well as psychological and
emotional. However, if the court of facts finds it difficult to accept the
version of the prosecutrix on its face value, it may search for evidence,
direct or circumstantial, which would lend assurance to her testimony.
Assurance, short of corroboration as understood in the context of an
accomplice would do.”

52. In another judgment rendered in Ganga Singh v. State of Madhya

Pradesh, (2013) 7 SCC 278, the fact that the accused have not stated in

their statements under Section 313 of the Code of Criminal Procedure, 1973

(for short “the CrPC”) that sexual intercourse was with the consent of the

victim, therefore, the Court was not correct in recording the finding that

there was consent. The Court held as under:-

“16. We further find that the appellant has not taken a defence in his
statement under
Section 313 of the Criminal Procedure Code that the
CRA-541-2000

—35—

sexual intercourse was with the consent of PW-5. Instead, he has denied
having had any sexual intercourse with PW-5 and has taken a stand that
he has been falsely implicated on account of a quarrel between him and
the husband of PW-5. Yet, the trial court held that there was proof of
sexual intercourse between the appellant and PW-5, but the sexual
intercourse was with the consent of PW-5. We are of the considered
opinion that as the appellant had not taken any defence of consent of
PW-5, the trial court was not correct in recording the finding that there
was consent of PW-5 to the sexual intercourse committed by the
appellant and should have instead considered the defence of the
appellant that he had been falsely implicated because of a quarrel
between him and the husband of PW-5. We have, however, considered
this defence of the appellant but find that except making a suggestion to
PW-2, the appellant has not produced any evidence in support of this
defence. As PW-2 has denied the suggestion, we cannot accept the
defence of the appellant that he was falsely implicated on account of a
quarrel between the appellant and the husband of PW-5.”

53. Thus, even if the victim was habitual to have sexual intercourse, it

does not allow the accused to violate her. The evidence of the witnesses and

the statement of the accused under Section 313 of CrPC does not show that

accused knew the victim and that she voluntarily submitted to the accused.

The accused have offered no explanation in their Section 313 statement as to

why the prosecution witnesses have deposed against them. The material

witnesses except the brother of the victim are independent witnesses, who

have no axe to grind against the accused and in fact, there is no such

suggestion as well.

E. Medical Evidence:

54. The vaginal slide prepared by PW-11, Dr. Sushma Nigam has human

spermatozoa and on the underwear of the accused, there are stains of sperm.

From the writing Ex.P-8 and P-9 given to the Medical Officer, the accused
CRA-541-2000

—36—

have categorically stated that they have not changed their clothes nor they

had taken bath. Such statement is accepted by the accused in their statement

under Section 313 of the CrPC. The underwear of Shahid was taken in

possession after the same was got removed from the accused whereas

underwear of the other accused Shamim was recovered from the back seat of

the car.

55. The vaginal slide was prepared by Dr. Sushma Nigam (PW-11) at

about 5 a.m. on 18.10.1998 i.e. almost within six hours of the occurrence,

which is said to have taken place between 7 p.m. to 11 p.m. The FIR was

lodged at 0.10 a.m. on 18.10.1998. The accused were arrested at 1.55 a.m.

on 18.10.1998. Before the arrest, accused Shamim suffered a disclosure

statement (Ex.P-15) at 00.40 a.m. on 18.10.1998 that he can get his

underwear recovered. The underwear of the other accused Shahid was taken

in possession after he was asked to remove the underwear. In the statement

under Section 313 Cr.P.C. the accused have accepted having made such

statement as correct. In the FSL Report (Ex.P-26), Salvar of the prosecutrix

in Packet (A), vaginal slide in packet (B), underwear of accused Mohd.

Shahid in packet (C) and underwear of accused Mohd. Shamim in packet

(D) were found with stains of semen but the quantity was not sufficient for

serological examination of the semen. Keeping in view the proximity of

preparation of vaginal slide and also the recovery of undergarments of the

accused and the fact that the same was found to be stained with semen,

corroborates the version of the victim given to the Investigating Officer,

Manoj Sharma (PW-14), Kishan Singh (PW-1) and to her brother Nilesh

(PW-7) apart from the dying declaration contained in suicide note (Ex.P-6).

CRA-541-2000

—37—

56. The vaginal slide was prepared within six hours of the occurrence

and such vaginal slide is found to have spermatozoa. The underwear of the

accused also have stains of human semen. Such underwear were also taken

in possession soon after the occurrence. Therefore, medical evidence

corroborates the other evidence, as discussed hereinabove.

F. Scope of Interference in Appeal against Acquittal:

57. The Supreme Court in State of Uttar Pradesh v. Munshi, (2008) 9

SCC 390 set aside the order of acquittal passed by the High Court on the

ground that it is not only cryptic but also non-reasoned. In the present case,

the learned Sessions Judge has reproduced the statements but granted

benefit of doubt to the accused on the ground that it was a case of consent of

the victim only because in the medical report she was found to be habitual to

sex.

58. In N.K. the Accused (supra), the Supreme Court held that an

unmerited acquittal does no good to the society. If the prosecution has

succeeded in making out a convincing case for recording a finding as to the

accused being guilty, the court should not lean in favour of acquittal by

giving weight to irrelevant or insignificant circumstances or by resorting to

technicalities or by assuming doubts and giving benefit thereof where none

exists. The extract from the Judgment reads as under:-

“9. Having heard the learned counsel for the parties we are of the
opinion that the High Court was not justified in reversing the conviction
of the respondent and recording the order of acquittal. It is true that the
golden thread which runs throughout the cobweb of criminal
jurisprudence as administered in India is that nine guilty may escape but
one innocent should not suffer. But at the same time no guilty should
CRA-541-2000

—38—

escape unpunished once the guilt has been proved to hilt. An unmerited
acquittal does no good to the society. If the prosecution has succeeded in
making out a convincing case for recording a finding as to the accused
being guilty, the court should not lean in favour of acquittal by giving
weight to irrelevant or insignificant circumstances or by resorting to
technicalities or by assuming doubts and giving benefit thereof where
none exists. A doubt, as understood in criminal jurisprudence, has to be a
reasonable doubt and not an excuse for a finding in favour of acquittal.
An unmerited acquittal encourages wolves in the society being on the
prowl for easy prey, more so when the victims of crime are helpless
females. It is the spurt in the number of unmerited acquittals recorded by
criminal courts which gives rise to the demand for death sentence to the
rapists. The courts have to display a greater sense of responsibility and to
be more sensitive while dealing with charges of sexual assault on
women.
In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3
SCC 217, this Court observed that refusal to act on the testimony of a
victim of sexual assault in the absence of corroboration as a rule, is
adding insult to injury. This Court deprecated viewing evidence of such
victim with the aid of spectacles fitted with lenses tinted with doubt,
disbelief or suspicion. We need only remind ourselves of what this Court
has said through one of us (Dr A.S. Anand, J. as his Lordship then was)
in
State of Punjab v. Gurmeet Singh (1996) 2 SCC 384 (SCC p. 403,
para 21):

“[A] rapist not only violates the victim’s privacy and personal
integrity, but inevitably causes serious psychological as well as
physical harm in the process. Rape is not merely a physical
assault — it is often destructive of the whole personality of the
victim. A murderer destroys the physical body of his victim, a
rapist degrades the very soul of the helpless female. The courts,
therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such cases
with utmost sensitivity. The courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the statement of
the prosecutrix, which are not of a fatal nature, to throw out an
otherwise reliable prosecution case.”

CRA-541-2000

—39—

59. In a three Judge Bench judgment in Criminal Appeal No.913/2016

(Hemudan Nanbha Gadhvi v. State of Gujarat), the appeal filed by the

accused was dismissed. The Supreme Court examined the appreciation of

the evidence of hostile witness and the fact that the prosecurtrix turned

hostile. The Court held as under:-

“8………..The observations with regard to hostile witnesses and the duty
of the court in
State vs. Sanjeev Nanda, 2012 (8) SCC 450 are also
considered relevant in the present context:

“101…..if a witness becomes hostile to subvert the judicial
process, the court shall not stand as a mute spectator and every
effort should be made to bring home the truth. Criminal justice
system cannot be overturned by those gullible witnesses who
act under pressure, inducement or intimidation. Further,
Section 193 IPC imposes punishment for giving false evidence
but is seldom invoked.”

9. A criminal trial is but a quest for truth. The nature of inquiry and
evidence required will depend on the facts of each case. The
presumption of innocence will have to be balanced with the rights of the
victim, and above all the societal interest for preservation of the rule of
law. Neither the accused nor the victim can be permitted to subvert a
criminal trial by stating falsehood and resort to contrivances, so as to
make it the theatre of the absurd. Dispensation of justice in a criminal
trial is a serious matter and cannot be allowed to become a mockery by
simply allowing prime prosecution witnesses to turn hostile as a ground
for acquittal, as observed in
Zahira Habibullah Sheikh vs. State of
Gujarat, (2006) 3 SCC 374 and
Mahila Vinod Kumari vs. State of
Madhya Pradesh, (2008) 8 SCC 34. If the medical evidence had not
confirmed sexual assault on the prosecutrix, the T.I.P. and identification
therein were doubtful, corroborative evidence was not available, entirely
different considerations may have arisen.

10. It would indeed be a travesty of justice in the peculiar facts of the
present case if the appellant were to be acquitted merely because the
prosecutrix turned hostile and failed to identify the appellant in the dock,
CRA-541-2000

—40—

in view of the other overwhelming evidence available. In Iqbal vs. State
of U.P.,(2015) 6 SCC 623, it was observed as follows:

“15. Evidence of identification of the miscreants in the test
identification parade is not a substantive evidence. Conviction
cannot be based solely on the identity of the dacoits by the
witnesses in the test identification parade. The prosecution has
to adduce substantive evidence by establishing incriminating
evidence connecting the accused with the crime, like recovery
of articles which are the subject matter of dacoity and the
alleged weapons used in the commission of the offence.”

11. The corroboration of the identification in T.I.P is to be found in the
medical report of the prosecutrix considered in conjunction with the
semen found on the clothes of the prosecutrix and the appellant
belonging to the Group B of the appellant. The vaginal smear and
vaginal swab have also confirmed the presence of semen. A close
analysis of the facts and circumstances of the case, and the nature of the
evidence available unequivocally establishes the appellant as the
perpetrator of sexual assault on the prosecutrix. The serologist report
was an expert opinion under
Section 45 of the Evidence Act,1872 and
was therefore admissible in evidence without being marked an exhibit
formally or having to be proved by oral evidence.”

60. In view of the evidence on record and the judgment referred to by

the learned counsel for the parties, we find that the judgment passed by the

learned Trial Court granting benefit of doubt to the respondent is clearly

perverse, untenable and defeats the cause of justice.

61. Consequently, the impugned judgment of the Trial Court is set aside.

The appellants are convicted for an offence punishable under Section 376(2)

(g) of the IPC and sentenced to undergo imprisonment for life, as the

violation of the victim has ultimately led to her death. The respondents-

accused (1) Mohammad Shahid s/o Sattar and (2) Mohammad Shamim s/o
CRA-541-2000

—41—

Matesh Mohammad shall surrender themselves forthwith within a week to

serve the sentence, failing which they shall be taken into custody.

62. In the result, the appeal succeeds and stands allowed.

(HEMANT GUPTA) (ATUL SREEDHARAN)
CHIEF JUSTICE JUDGE
S/

Digitally signed by SACHIN CHAUDHARY
Date: 2018.11.02 12:34:52 +05’30’

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