SUDHAKAR AND ANR.versusSTATE OF MAHARASHTRA

                         SUDHAKAR AND ANR.                                       A
                                      v.
                       STATE OF MAHARASHTRA

                               JULY 17, 2000

    [G.B. PATTANAIK, R.P. SETHI AND SHIVARAJ V. PATIL, JJ.]                      B


      Criminal Law:

      Evidence Act, 1872: Section 32(/).
                                                                                 c
      Dying declaration- "Circumstances of the transaction "-Statement by
deceased-Effect of-Deceased gave a statement to the police l ! days after
the incident in which she alleged that she was raped by the accused-She
committed suicide 5 112 months later-There was no evidence to suggest that
the deceased had committed suicide due to the humiliation suffered by her        D
on account of rape-Moreover, her statement did not suggest that a person
under normal circumstance would commit suicide after a period of 5 112
months-Held: Statement of the deceased is admissible as to the cause of the
death or the circumstances of the transaction which resulted in his death-
/I should be sufficiently or closely connected with the actual transaction--
Prosecution should prove the making of the statement as a fact-If it is in       E
writing the scribe must be produced and if it is verbal the person who heard
the deceased making the statement must be examined-Jn the circumstances
of the case, the statement does not constitute dying declaration. Penal Code,
1860: Sections 376134 and 306134.

       Rape and suicide-Accused persons allegedly raped a school teacher-        F
 Victim made a statement to the police 11 days after the incident in which she
narrated the circumstances regarding the rape-Victim committed suicide
allegedly due to humiliation on account of rape after 5 112 months-Held:
Statement of the deceased is not dying declaration and inadmissible in
evidence-Moreover, delay in lodging FIR, medical examination, non-               G
examination of material witnesses and turning hostile of witnesses assume
importance-As the prosecution failed to prove beyond all reasonable doubt
the guilt of the accused. they are entitled to acquittal-Since the charge
under S.376 is not proved suicide due to humiliation also not established-
Hence, conviction under Ss.306134 not sustainable.
                                                                                 H
                                    507
     508                    SUPREME COURT REPORTS [2000) SUPP. I S.C.R.

A          Maxim:


     of
                                     .
           "Nemo moriturus praer~mitur mentire "-Meaning and applicability


           Words and Phrases:
B
          "Circumstances of the transaction"-Meaning of-In the context of
    S.32(/) of the Evidence Act, 1872.

          The appellants-accused were convicted by the Sessions Court for
    offences under Sections 376/34 and 306/34 of the Penal Code, 1860. The
C   Sessions Court relied upon the statement made by the deceased before the
    Assistant Police Inspector treating the same as dying declaration. being
    admissible in evidence under Section 32 of the Evidence Act, 1872. The High
    Court confirmed the conviction. Hence this appeal.

D         According to the prosecution, the victim, a school teacher, was allegedly
    raped by the appellants (headmaster and a co-teacher) of the same school on
    9-7-1994. The victim narrated the incident to her mother, brother and uncle
    and subsequently to her father who came back home after a few days. The
    matter was reported to the police 11 days after the incident. The police
    recorded the statement of the victim and on that basis a crime report was
E   registered. The doctor who examined the victim reported that she had been
    subjected to sexual intercourse in the recent past. Having failed to withstand
    the humiliation to which tl1e victim was subjected on account of rape committed
    by the appellants, she was stated to have committed suicide. Autopsy was
    conducted on the same date and the cause of death was reported as poisoning.
F   In view of the subsequent development additional charge under Section 306
    read with Section 34 IPC was added against the appellants.

           Allowing the appeal, this Court

           HELD: 1. Admissibility of the statement of the deceased before the
G Assistant Police Inspector is of paramount importance for deciding the present
    appeal. If the statement is held to be admissible in evidence, being the dying
    declaration of the deceased, the appellants may not escape their liability to
    conviction and sentence, as there exists other corroborative evidence against
    them. However, if the aforesaid report/statement is not admissible in evidence,
    the appellants may be entitled to all consequential legal benefits. In that event
H   the offence of rape may not be held to have been proved against them and if
                SUDHAKAR v. ST ATE OF MAHARASHTRA                             509
rape is not proved, the appellants cannot be held responsible for the                A
commission of the offence under Section 306 IPC. (513-F-Gl

      2. Section 32 of the Evidence Act, 1872 is an exception to the general
rule of exclusion of the hearsay evidence. Statement of a witness, written or
verba~ 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            B
procured without an amount of delay or expense, are deemed relevant facts
under the circumstances specified in Sub-sections 1 to 8 of Section 32.
                                                             (513-H; 514-AI

      3. As distinguished from the English Law, Section 32 of the Evidence           C
Act does not require that such a statement should have been made in
expectation of death. Statement of the victim who is dead is admissible in so
far as it refers to 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            D
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 mentire" i.e. a man will not meet his Maker
with a lie in his mouth. To make such statement as substantive evidence, the         E
person or the agency relying upon it is under a legal obligation to prove the
making of a 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              F
available, the prosecution is entitled to give secondary evidence thereof.
                                                                         [514-E-F]

      4.1. In this case the statement of the prosecutrix does not directly state
any fact regarding the cause of her death. At the most it could be stretched to
say referring to "circumstance of the transaction" resulting in her death.           G
                                                                        (515-B]

      4.2. 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 humiliation to which she was subjected on
account of rape committed on her person. The prosecution evidence does not           H
    510                    SUPREME COURT REPORTS [2000) SUPP. I S.C.R.

A even disclose the cause of death of the deceased. The circumstances stated in
    her statement 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 the
    said statement as a dying declaration holding it that the said statement was
    in a series of circumstances of the transaction which resulted in the death of
B   the deceased. (521-H; 522-A, BJ

            4.3. The conviction of the persons accused of offences cannot be based
    upon conjectures and suspicions. Statement of the deceased if not treated as
    a dying declaration, there is no cogent and reliable evidence, which can
C   connect the accused with the commission of the crime. In that event the other
    arguments advanced on behalf of the appellants assume importance. Other
    circumstances such as delay in lodging the FIR, medical examination of the
    prosecutrix, non-examination of material witnesses turning hostile are also
    required to be taken note of. It has also to be kept in mind that after the
    incident on 9-7-1994, the prosecutrix is shown to have attended the school on
D   10-7-1994 and 11-7-1994 as well. Her mother in cross-examination also
    stated that the deceased had told her about the incident only on 12-7-1994 at
    about 5.00 p.m. The father of the prosecutrix deposed in the court that his
    daughter did not tell him on 17th, 18th and 19th July, 1994 that she wanted
    to file a criminal complaint. [522-D-E)

E         Pakala Narayana Swami v. Emperor, AIR (1939) PC 47; Sharad
    Birdhichdnd Sarda v. State of Maharashtra, (1984( 4 SCC 116; Hanumanl v.
    Stale of M.P., (19521SCR1091; Dharambir Singh v. State of Punjab, Crl. A.
    No. 98of1958 (decided on 4-11-1958); Ratan Gondv. State of Bihar, 119591
    SCR 1336; Shiv Kumar v. State of U.P., (Crl. A. No. 55of1966 decided on 29-
F   7-1966; Ratan Singh v. State of H.P., (1997( 4 SCC 161; Najjam Faraghi v.
    State of W.B., 119981 2 SCC 45 and G.S. Walia v. State of Punjab, )1998) 5
    sec 150, relied on.
          Manohar Lal v. State ofPunjab, (1981) Cri W 1373 (P&H), approved.

G          Protima Dul/av. State, (1977) 81 Cal WN 713 (Cal), Onkar v. State of
    MP., (1974) Cri W 1200 (MP); Allijan Munshi v. State, AIR (1960) Born 290,
    Chinnavalayan v. State ofMadras, (1959) Mad W 246 (Mad); Rajindra Kumar
    v. State, AIR (1960) Punj 310; lmperatrix v. Rudra ILR (1900) 25 Born 45;
    Abdul Gani Bandukchi v. Emperor, AIR (1943) Cal 465; Mallappa
    Shivlingappa Chanagi, Re AIR (1962) Mys 82 and Moti Singh v. State of
H   U.P., AIR (1964) SC 900, cited.
                SUDHAKAR v. STATE OF MAHARASHTRA                             511
      4.4. The prosecution has failed to prove, beyond reasonable doubt, that       A
the appellants had committed forcible sexual intercourse with the deceased
under the circumstances as narrated in her statement and relied upon by the
courts below. The appellants cannot be convicted and sentenced merely on
suspicion. [522-GJ

     5.1. In the absence of the charge being proved under Section 376 of the        B
Penal Code, 1860, the prosecution could not have asked for conviction of the
appellants under Section 306 IPC as according to the prosecution it was the
commission of the rape on her person which resulted in the suicide of the
deceased, allegedly on the abetment of the appellants. If the cause for
committing suicide is not legally proved, the appellants could not be held          C
responsible for the abetment of the ultimate offence of suicide. (522-H]

      5.2. As the prosecution has failed to prove its case against the appellants
beyond all reasonable doubt, they are entitled to acquittal. In the present case
the investigating as well as the prosecution agencies have not acted promptly
and diligently as was expected under the circumstances. [523-B]                     D
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 226
of 1999.

       From the Judgment and Order dated I 1.12.98 of the Bombay High Court
in Crl.A. No. 213 of 1995.                                                          E
     R. Sundaravardhan, Ravi Adsure, S.M. Jadhav and A.M. Khanwilkar for
the Appellants.

     H.W. Dhabe, S.S. Shinde, S.V. Deshpande and G.E. Sathe for the
Respondent.
                                                                                    F
      The Judgment of the Court was delivered by

      SETHI, J. Ms.Rakhi, a young girl of about 20 years of age was working
as teacher in Zila Parishad Primary School at Banegaon, Maharashtra at a
monthly salary of Rs. 300. The appellant No. I was the Headmaster and               G
appellant No.2 was a co-teacher in the same school. On one unfortunate
morning ofS"turday, the 9th of July, 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     H
     512                    SUPREME COURT REPORTS (2000) SUPP. I S.C.R.

A and her wailing cries did not have any effect upon them. She was thus
     subjected to gang-rape by the appellants. After the incident Ms. Rakhi went
    to her house and narrated the incident to her mother Padmabai, brother
                                                                                      -
     Prakash and uncle Balasaheba Balaji. The incident was also narrated to the
     father of the prosecutrix who came back home after two-three days. The
B   matter was reported to the police on 20th July, 1994. PW15 API Laxman Wadje
    incharge police station Pathri recorded the statement of the prosecutrix and
    on that basis Crime Report No. I 00/94 was registered. Petticoat of the
    prosecutrix and the metal bangles which she was wearing at the time of
    occurrence were seized. After preparation of Panchanama, the seized articles
    were sent to the Chemical Analyser for his report. On 6.8.1994 statements of
C   two child witnesses, namely, Dnyaeshwar Mujmul and Dnyaneshwar Adhav
    were recorded under Section 164 of the Criminal Procedure Code before the
    Special Executive Magistrate. Ms. Rakhi was taken for medical examination to
    Dr. Gauri Rathod, PW! who reported that the prosecutrix had been subjected
    to sexual intercourse in the recent past. On completion of the investigation
    the charge-sheet was filed against both the appellants in the court of Judicial
D   Magistrate, First Class, Pathri, who committed them to the Court of Sessions
    Judge to stand their trial for the offences under Section 376 read with Section
    34 of the Indian Penal Code. After the matter was reported to the police, the
    prosecutrix was sent to stay with her married sister Saraswatibai PW 14 as it
    was found that she had lost her equilibrium of mind and was mentally upset.
E
          Having failed to withstand the humiliation to which she was subjected
   to on account of rape committed by the appellants, Ms. Rakhi is stated to
   have committed suicide on 22nd December, 1994 at about 10.30 p.m. at the
   house of her sister Saraswatibai. Autopsy was conducted on the same date
   and the cause of death was reported as poisoning. In view of the subsequent
F development additional charge under Section 306 read with Section 34 IPC
 . was added against the appt~llants on 8.5.1995. Both the accused pleaded not
   guilty and claimed to be tried. The prosecution examined 18 witnesses. However,.
   at the trial except PW! Gauri Rathod, PW2 Padmabai, PW3 Gangadhar, PW12
   Dr. Anandgaonkar, PW13 Sanjay Deshpande, PW14 Saraswatibai and PWl5
G ASI Wadje, the other witnesses turned hostile. The Trial Judge of the Sessions
   Court, however, vide his judgment dated 12.7.1995 in Sessions Case No. 135/
   94 convicted the appellants under Section 376(2)(g) read with Section 34 of
   the IPC and sentenced each one of them to suffer rigorous imprisonment of
   seven years and to pay fine of Rs. 1,000 each, in default of payment of fine,
   the appellants were directed to suffer further rigorous imprisonment for three
H months. The appellants were also convicted and sentenced for the offences
          SUDHAKAR v. STATE OF MAHARASHTRA [SETHI, J.]                       513

punishable under Section 306 read with Section 34 !PC and sentenced to              A
undergo rigorous imprisonment for a period of three years and to pay a fine
of Rs. 500 each, in default of payment of fine, they were to suffer rigorous
imprisonment for one month more. Both these sentences were directed to run
concurrently. Criminal appeal filed by the appellants was dismissed vide the
order impugned in this appeal. Not satisfied with the findings of the Courts        B
below the appellants have preferred the present appeal with prayer for setting
aside their conviction and sentence and acquitting them of the charges.

       Learned counsel appearing for the appellants has submitted that though
apparently the nature of the crime appears to be heinous, yet, in the
circumstances of the case the appellants cannot be convicted and sentenced          C
as according to him the prosecution has miserably failed to place any legal
evidence against them. It is contended that the evidence relied upon by the
courts below is inadmissible in evidence. The prosecution is stated to have
failed to explain the delay in lodging the First Infonnation Report and getting
the prosecutrix medically examined. It is submitted that in the absence of exact
cause of death of Ms. Rakhi the appellants could not be held guilty for the         D
commission of the crime punishable under Section 306 IPC.

        It is not disputed that the prosecutrix reported the matter at the police
station Pathri on 20th July, 1994 admittedly after about 11 days from the day
of occurrence. It is also not disputed that the statement of the prosecutrix        E
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! 5
on 20th July, 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 as dying declaration being admissible in
evidence under Section 32 of the Evidence Act. Admissibility of the statement       F
of Ms.Rakhi is of paramount importance for deciding the present appeal. If
the statement is held to be admissible in evidence, being the dying declaration
of Ms.Rakhi, the appellants may not escape of their liability to conviction and
sentence as there exists other corroborative evidence against them. However,
if the aforesaid report/statement is not admissible in evidence, the appellants     G
may be entitled to all consequential legal benefits. In that event the offence
of rape may not be held to have been proved against them and if rape is not
proved, the appellants cannot be held responsible for the commission of the
offence under Section 306 of the !PC.

      Section 32 of the Evidence Act is an exception to the general rule of         H
    514                      SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A   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 I to 8. Sub-section (I) of
B   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, statements made by the deceased is admissible only
C 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
D                 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 I to 8 of Section 32 of
                  the Evidence Act.
E
           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 in so far as it refers to 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
F   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
G   in view the legal maxim "Nemo moriturus praesumitur mentire" 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 a 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.
H   However, in cases where the original recorded dying declaration is proved to
         SUDHAKAR v. STATE OF MAHARASHTRA [SETHI. J.J                       515
have been Jost and not available, the prosecution is entitled to give secondary    A
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" were considered        B
and explained in Pakala Narayana Swami v. Emperor, AIR (1939) PC 47:

       "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     C
       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           D
       accused. Such a statement might indeed be exculpatory of the person
       accused. "Circumstances of the transaction" is a phrase no doubt that
       coveys 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           E
       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 kncwn transaction other than that the death of the        F
       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( I) of the Evidence Act includes         G
suicidal besides homicidal death. Fazal Ali, J. in Sharad Birdhichand Sarda
v. State of Maharashtra, [1984] 4 SCC 116 after referring to the decisions of
this Court in Hanumant v. State of Madhya Pradesh, [1952] SCR 1091;
Dharambir Singh v. State of Punjab, [Criminal Appeal No. 98 of 1958, decided
on November 4, 1958]; Ratan Gondv. State ofBihar, [1959] SCR 1336; Pakala
Narayana Swami (supra); Shiv Kumar v. State of VIiar Pradesh, [Criminal            H
    516                    SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A Appeal No. 55 of 1966, decided on July 29, 1966]; Mahnohar Lal v. State of
    Punjab, [1981] Cri.LJ 1373 (P&H)] and other cases, held:

           "We fully agree with the above observations made by the learned
           Judges. In Protima Dutta v. State, [1977] 81CalWN713 while relying
           on Hanumant Case the Calcutta High Court has clearly pointed out
B          the nature and limits of the doctrine of proximity and has observed
           that in some cases where there is a sustained cruelty, the proximate
           may extend even to a period of three years. In this connection, the
           high Court observed thus:

                    The 'transaction' in this case is systematic ill-treatment for
c                   years since the marriage of Sumana and incitement to end
                    her life. Circumstances of the transaction include evidence of
                    cruelty which produces a state of mind favourable to suicide.
                    Although that would not by itself be sufficient unless there
                    was evidence of incitement to end her life it would be relevant
                    as evidence.
D
           This observation taken as a whole would, in my view, imply that the
           time factor is not always a criterion in determining whether the piece
           of evidence is properly included within 'circumstances of
           transaction' ... ' In that case the allegation was that there was sustained
E          cruelty extending over a period of three years interspersed with
           exhortation to the victim to end her life'. His Lordship further observed
           and held that the evidence of cruelty was one continuous chain,
           several links of which were touched up by the exhortations to die.
           'Thus evidence of cruelty, ill-treatment and exhortation to end her life
           adduced in the case must be held admissible, together with the
F          statement of Nilima (who committed suicide) in that regard which
          .related to circumstances terminating in suicide'.

          Similarly, in Onkar v. State of Madhya Pradesh, [1974] Cri.LJ 1200
          while following the decision of the Privy Council in Pakala Narayana
          Swami's case, the Madhya Pradesh High Court has explained the
G         nature of the circumstances contemplated by Section 32 of the Evidence
          Act thus:

                    The circumstances must have some proximate relation to the
                    actual occurrence and they can only include the acts done
                    when and where the death was caused .... Thus a statement
H                   merely suggesting motive for a crime cannot be admitted in
 SUDHAKAR v. STATE OF MAHARASHTRA [SETHI, J.]                      517

         evidence unless it is so intimately connected with the           A
         transaction itself as to be a circumstance of the transaction.
         In the instant case evidence has been led about statements
         made by the deceased long before this incident which may
         suggest motive for the crime.

In Allijan Munshi v. State, AIR (1960) Born 290 the Bombay High           B
Court has taken a similar view.

In Chinnavalayan v. State of Madras, (1959) Mad LJ 246 two eminent
Judges of the Madras High Court while dealing with the connotation
of the word 'circumstances' observed thus:

         The special circumstances permitted to transgress the time
                                                                          c
         factor is, for example, a case of prolonged p0.soning, while
         the special circumstances permitted to transgress the distance
         factor is, for example, a case of decoying with intent to
         murder. This is because the natural meaning of the words,
         according to their Lordships, do not convey any of the           D
         limitations such as (I) that the statement must be made after
         the transaction has taken place, (2) that the person making·
         it must be at any rate near death, (3) that the circumstances
         can only include acts done when and where the death was
         caused. But the circumstances must be circumstances of the
         transaction and they must have some proximate relation to        E
         the actual occurrence.

Before closing this chapter we might state that the Indian law on the
question of the nature and scope of dying declaration has made a
distinct departure from the English Law where only the statements
which directly relate to the cause of death are admissible. The second    F
part of clause ( 1) of Section 32, viz., "the circumstances of the
transaction which resulted in his death, in cases in which the cause
of that person's death comes into question" is not to be found in the
English Law. This distinction has been clearly pointed out in the case
of Rajindra Kumar v. State, AIR (1960) Punj 310 where the following       G
observations were made:

    Clause(!) of Section 32 of the Indian Evidence.Act provides that
    statements, written or verbal, of relevant facts made by a person
    who is dead, .... are themselves relevant facts when the statement
    is made by a person as to the cause of his death, or as to why        H
    518                    SUPREME COURT REPORTS [2000) SUPP. I S.C.R.

A               of the circumstances of the transaction which resulted in his
                death ... It is well settled by now that there is difference between
                the Indian Rule and the English Rule with regard to the necessity
                of the declaration having been made under expectation of death.

          In the English Law the declaration should have been made under the
B         sense of impending death whereas under the Indian Law it is not
          necessary for the admissibility of a dying declaration that the deceased
          at the time of making it should have been under the expectation of
          death.

          Thus, from a review of the authorities mentioned above and the clear
c         language of Section 32(1) of the Evidence Act, the following
          pr~positions emerge:


          "(l) Section 32 is an exception of 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
D
               cause of death, or exhibits circumstances leading to the death. In
               this respect, as indicated above, the Indian Evidence Act, in view
               of the peculiar conditions of our society and the diverse nature
               and character of our people, has thought it necessary to widen
               the sphere of Section 32 to avoid injustice.
E
          (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
F               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
G
                transaction of death. It is manifest that all these statements come
                to light only after the death of the deceased who speaks from
                death.. For instance, where the death takes 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
H               under Section 32.
         SUDHAKAR v. STATE OF MAHARASHTRA [SETHI, J.]                       519
       (3)   The second part of clause (I) of Section 32 is yet another exception   A
             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         B
             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                C
             circumstances which may be relevant to prove a case of homicide
             would be equally relevant to prove a case of suic ·de.

       (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      D
             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."

       In Ratan Singh v. State of Himachal Pradesh, [1997] 4 SCC 161 this
Court held that the expression "circumstances of transaction which resulted         E
in his death" mean 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. Relying upon
Sharad Birdhichand Sarda 's case (supra) the Court held that:

       "It is enough if the words spoken by the deceased have reference to          F
       any circumstance which has connection with any of the transactions
       which ended up in the death of the deceased. Such statement would
       also fall within the purview of Section 32(1) of the Evidence Act. In
       other words, it is not necessary that such circumstance should be
       proximate, for, even distant circumstances can also become admissible
       under the sub-section, provided it has nexus with the transaction            G
       which resulted in the death."

In Najjam Faraghi@ Nijjam Faruqui v. State of West Bengal, [1998] 2 SCC
45 this Court held that the death of declarant long after making the dying
declaration did not mean that such a statement lost its value merely because
the person making the statement lived for a longer time than expected. But          H
    520                    SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A to make the statement admissible, it has to be shown that the statement made
    was the cause of the death or with respect to the circumstances of the
    transaction which resulted in his death. The facts mentioned in the statement
    are, however, required to be shown connected with the cause of the death
    whether directly or indirectly. Rejecting the contention that as the injuries
B   caused as mentioned in the dying declaration were indirectly responsible for
    the cause of death, the statement of the deceased could not be admitted in
    evidence, this Court in G.S. Walia v. State ofPunjab, [1998] 5 SCC 150 held:

            "Therefore, there is no substance in the contention raised by Mr.U.R.
            Lalit that the injuries were only directly responsible for causing death
            of Balwant Singh and as his death cannot be said to have been
c           caused due to the injuries caused, the statement made by him would
            not fall within Section 32 of the Indian Evidence Act. In view of our
            finding on this point the decision in Imperatrix v. Rudra, !LR (1900)
            25 Born 45: 2 Born LR 331], Abdul Gani Bandukchi v. Emperor, AIR
            (1943) Cal 465:47 CWN 332:45 Crl. LJ 71], Mallappa Shivlingappa
D           Chanagi, Re AIR ( 1962) Mys 82: ( 1962) 1 Cri.LJ 619 and Moti Singh
            v. State of UP., AIR (1964) SC 900: (1964) 1Cri.LJ727 relied upon by
            Mr.Lalit are of no help to him. In all these cases, the court had held
            that there was no evidence or that the evidence led was insufficient
            to prove that the deceased had died as a result of injuries caused to
            him. As the statement of Balwant Singh related to the cause of his
E           death it was admissible in evidence under Section 32 and the High
            Court was in error in holding otherwise."

          In the light of the legal position noticed hereinabove, let us examine the
    statement of deceased prosecutrix Exhibit P-59 to decide whether such a
F   statement can be admitted in evidence, relied upon and made a basis for
    conviction and sentence of the accused. In that statement, admittedly recorded
    after 11 days of the day of occurrence, she had stated:

            "I am serving in Balwade of Banegaon from 2.2.92 as a teacher. The
            name of my mother is Padmabai and my father is Gangadharrao. I have
G           one brother namely Prakash and four sisters. I am living with my
            brother Prakash at Banegon and my father and mother are living at
            Mazalgaon and my mother had come to Banegaon before 15 days.

            In Banegaon the classes of Zila Parishad Primary School are held up
            to 4th Class from the Balwadi. There are two teachers in our school
H           namely (I) Sudhakar Gndapin Bhujbal (2) Bhaskar Babwrao Kedre and
       SUDHAKAR v. STATE OF MAHARASHTRA (SETHI, J.)                      521
      I am working as a Balwadi Teacher getting Rs. 300 per month. The          A
      timing of our school is from 9.00 to 16.00 O' Clock but the Balwade
      classes work from 9.00 to 12.00 O' clock. The headmaster of our
      school is Sudhakar Bhujbal.

      Eversince I have joined my service Sudhakar Bhujbal and Bhaskar
      Kedre are teasing me. Sudhakar Bhujbal always says that your sari         B
      looks very nice will you come to see the picture with me? That by
      asking this they try to talk with me. Before six months Sudhakar
      Bhujbal had touched my cheek and waist. 1 was afraid at that time. But
      due to the fear of defamation I did not tell anything to any person and
      because of it they had been adoring to proceed.
                                                                                c
      On 1.7.94 on Saturday 8/9 O' clock in the morning I had gone to my
      school in a routine way Bhaskar Kedre and Sudhkar Bhujbal had also
.-    come to the school. The school was closed at 12'0 clock in the
      afternoon. All the boys and girls had went back to their home. That
      Bhaskar Kedre had closed the windows of the school and Sudhakar           D
      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 hold 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 under pant and had            E
      lifted up my sari and petticot and pressed my breast. After that he has
      entered his male organ into my vagina and had committed sexual inter
      course forcibly with me. After that Sudhakar Bhujbal had hold my
      hands and Bhaskar Kedre had removed his pant. At that time he was
      wearing reddish cotton underwear then he had removed his underwear        F
      and caught my both breasts and entered his male organ into my
      vagina and has committed sexual inter course with me forcibly.

      It was 12.30 in the afternoon at that time. Then both of them had worn
      their pants and went I was crying and went to my house and informed
--4
      this incident to my mother Padmabai brother Prakash and uncle Balaji. G
      After this they had called my father from Mazalgaon and narrated to
      him this incident. We had not filed any complaint due to the fear of
      defamation in the society. Bhaskar Kedre and Sudhakar Bhujbal both
      of them have done sexual inter course with me on 9.7.94 in the after
      noon at 12.30. Therefore inquiry should be made against them."
                                                                                H
     522                   SUPREME COURT REPORTS (2000] SUPP. I S.C.R.

A          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 rape committ~':! on her person. The prosecution evidence
   does not even disclose the cause of death of the deceased. The circumstances
B 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 it that the said statement was
   in series of circumstances of the transaction which resulted in the death of
  the deceased on 21.12.1994. The conviction of the persons accused of offences
C cannot be based upon conjunctions and suspicions. Statement Exhibit P-59
  if not treated as a dying declaration, there is no cogent and reliable evidence
  which can connect the accused with the commission of the crime. In that
  event the other arguments advanced on behalf of the appellants assume
  importance. Other circumstances such as delay in lodging the FIR, medical
  examination of the prosecutrix, the non examination of material witnesses and
D turning hostile of witnesses including the Dnyaeshwar Mujmul and

                                                                                     -
  Dnyaneshwar Adhav are also required to be taken note of. It has also to be
  kept in mind that after the incident on 9th July, 1994, the prosecutrix is shown
  to have attended the school on I0th and I Ith July, 1994 as well. Her mother
  in cross-examination also stated that Ms.Rakhi had told her about the incident
E only on 12th July, 1994 at about 5.00 p.m. PW3, the father of the prosecutrix
  deposed in the court that:

            "Rakhi did not tell me on 17th, 18th, 19th July, 1994 that she wanted
            to file a complaint. I did not ask Rakhi whatever she wanted to file a
            criminal complaint. I did not disclose before the police on 20.7.1994
F           that Rakhi told me that she wanted to file criminal complaint."
          We are, therefore, of the opinion that prosecution has failed to prove,
    beyond reasonable doubt, that the appellants had committed forcible sexual
    intercourse with Ms.Rak.hi on 9.7 .1994 under the circumstances as narrated in
    Exhibit P-59 and relied upon by the courts below. The appellants cannot be
G   convicted and sentenced merely on suspicion.

         In the absence of the charge being proved under Section 376 !PC, the
  prosecution could not have asked for conviction of the .appellants under
  Section 306 of the !PC as according to the prosecution it was the commission
  oftl1e rape on her person which resulted in the suicide of Ms.R.akhi, allegedly
H on the abetment of the appeilants. If the cause for c1Hnrnitting suicide is not
         SUDHAKAR v. STATE OF MAHARASHTRA [SETHI, J.]                  523
legally proved, the appellants cannot be held responsible for the abetment of A
the ultimate offence of suicide.

       We are, therefore, of the opinion that as the prosecution has failed to
prove its case against the appellants beyond all reasonable doubt, they are
entitled to acquittal. Before parting with the judgment we would, however,
observe that in the present case the investigating as well as the prosecution B
agency has not acted promptly and diligently as was expected under the
circumstances. The appeal is, therefore, allowed and the judgment of the High
Court is set aside. The appellants be released forthwith unless required in
some other case.

VS.S.                                                     Appeal allowed.