Ms Rakhi, a young girl of about 20 years of age was working as a teacher in Zila Parishad Primary School at Banegaon, Maharashtra at a monthly salary of Rs 300. Appellant 1 was the headmaster and Appellant 2 was a co-teacher in the same school. On one unfortunate morning of Saturday, 9-7-1994, Ms Rakhi went to her school in the morning as usual. When the school was closed at about 12 o’clock in the afternoon and all students had gone back to their homes, the appellants came in the room where Rakhi was sitting and closed the door and windows of the room. She was forcibly subjected to sexual intercourse by the appellants and her wailing cries did not have any effect upon them. She was thus subjected to gang rape by the appellants.
Having failed to withstand the humiliation which she was subjected to on account of rape committed by the appellants, Ms Rakhi is stated to have committed suicide on 22-12-1994 at about 10.30 p.m. at the house of her sister Saraswatibai.
It is not disputed that the prosecutrix reported the matter to Police Station Pathri on 20-7-1994 admittedly after about 11 days from the day of occurrence. It is also not disputed that the statement of the prosecutrix could not be recorded before any Judicial Magistrate or the criminal court. It is, however, not denied that her statement Exhibit 59 was recorded by PW 15 on 20-7-1994 in which she had narrated the whole incident and explained the delay for not lodging the report earlier. The courts below have relied upon the aforesaid statement treating it as the dying declaration being admissible in evidence under Section 32.
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. 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:
- 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.
- 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.
In this case the statement of the prosecutrix Exhibit P-59 does not directly state any fact regarding the cause of her death. At the most it could be stretched to say referring to “circumstances of the transaction” resulting in her death. The phrase “circumstances of the transaction” was considered and explained in Pakala Narayana Swami v. Emperor:
“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. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused.
‘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: though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that ‘the circumstances’ are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that ‘the cause of (the declarant’s) death comes into question’.”
The death referred to in Section 32(1) of the Evidence Act includes suicidal besides homicidal death.
In Rattan Singh v. State of H.P., this Court held that the expression “circumstances of transaction which resulted in his death” means that there need not necessarily be a direct nexus between the circumstances and death. Even distant circumstance can become admissible if it has nexus with the transaction which resulted in death. The Court held that:
“It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstance can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death.”
In the light of the legal position noticed hereinabove, let us examine the statement of the deceased prosecutrix Exhibit P-59 to decide whether such a statement can be admitted in evidence. In that statement she had stated:
“I am serving in Balwadi of Banegaon from 2-2-1992 as a teacher. There are two teachers in our school, Sudhakar Gndapin Bhujbal, Bhaskar Babwrao Kedre Ever since I have joined my service Sudhakar Bhujbal and Bhaskar Kedre are teasing me. Sudhakar Bhujbal always says that your sari looks very nice; will you come to see the picture with me? Before six months Sudhakar Bhujbal had touched my cheek and waist.
On 9-7-1994 on Saturday 8/9 o’clock in the morning I had gone to my school in a routine way. The school was closed at 12 o’clock in the afternoon. All the boys and girls had gone back to their home. That Bhaskar Kedre had closed the windows of the school and Sudhakar Bhujbal had closed the door and came near to me. Then he had removed his pant. At that time he was wearing ready-made underwear. Thereafter Sudhakar Bhujbal had caught hold of me and put me on the ground. And at that time Bhaskar Kedre had held my hands. I was crying for my mother and trying to get up. But they did not allow me to get up. Sudhakar Bhujbal had removed his underpants and had lifted up my sari and petticoat and pressed my breast. After that he had entered his male organ into my vagina and had committed sexual intercourse forcibly with me. After that Sudhakar Bhujbal had held my hands and Bhaskar Kedre had removed his pant. At that time he was wearing reddish cotton underwear, then he had removed his underwear and caught my both breasts and entered his male organ into my vagina and had committed sexual intercourse with me forcibly.”
There is no legal evidence on record that the prosecutrix at or about the time of making the statement had disclosed her mind for committing suicide allegedly on account of the humiliation to which she was subjected to on account of the rape committed on her person. The prosecution evidence does not even disclose the cause of death of the deceased. The circumstances stated in Exhibit P-59 do not suggest that a person making such a statement would, under the normal circumstances, commit suicide after more than five-and-a half months. The High Court was, therefore, not justified in relying upon Exhibit P-59 as a dying declaration holding that the said statement was in series of circumstances of the transaction which resulted in the death of the deceased on 21-12-1994.
We are, therefore, of the opinion that the prosecution has failed to prove, beyond reasonable doubt, that the appellants had committed forcible sexual intercourse with Ms Rakhi on 9-7-1994 under the circumstances as narrated in Exhibit P-59 and relied upon by the courts below. The appellants cannot be convicted and sentenced merely on suspicion.
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