High Court of H.P.1

1

Whether reporters of the local papers may be allowed to see the judgment?

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

Cr. Appeal No. 541 of 2010.

Reserved on: August 12, 2016.

Decided on: August 17, 2016. State of H.P. ……Appellant.

Versus

Ravinder Sharma …….Respondent.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

Whether approved for reporting?

1

Yes.

For the appellant: Mr. M.A.Khan, Addl. Advocate General.

For the respondent: Mr. J.L.Bhardwaj, Advocate.

----------------------------------------------------------------------------------------------

Justice Rajiv Sharma, J.

The State has come in appeal against the judgment dated

28.7.2010, rendered by the learned Addl. Sessions Judge, FTC, Kullu,

H.P., in Sessions Trial No. 17 of 2010, whereby the respondent-accused

(hereinafter referred to as the accused), who was charged with and tried

for offences punishable under Sections 376, 306, 341 & 506 IPC has been

acquitted.

2. The case of the prosecution, in a nut shell, is that

deceased/prosecutrix (name withheld) was the student of 8

th class in

Government Senior Secondary School, Palach. She went to fetch water at

about 9:45 PM on 15.12.2009. When she was returning, accused stopped

her on the way, gagged her mouth with the shirt worn by her and raped

her. She tried to raise alarm, but could not do so as her mouth was

gagged. The accused also threatened to kill the deceased in case she

revealed the incident to anyone. When her mother inquired about the

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reason for delay, she narrated the incident to her parents and brother.

The matter was reported to the police and FIR Ext. PW-1/A was registered

in the Police Station. The investigation was conducted by PW-5 ASI

Bhupinder Singh, who prepared site plan Ext. PW-12/A. The prosecutrix

was medically examined by PW-9 Dr. Neena Lal. According to her, there

was physical interference with external genitalia. She handed over the

clothes and slides to the police in sealed parcel along with the letter

addressed to Director, FSL for the purpose of chemical analysis. She also

referred deceased to Radiologist for ascertaining her age. PW-11 Dr. M.L.

Bandhu issued report Ext. PW-11/B. According to the report, the

prosecutrix was between 14 to 16 years of age. Accused also produced

his underwear during the investigation. It was seized vide memo Ext. PW-

3/B. The case property was sent to FSL Junga. The birth certificate of

the prosecutrix was obtained. The date of birth of the deceased was

3.6.1996. The deceased committed suicide on the intervening night of 2-

3.1.2010. The post mortem was got conducted. In the opinion of Dr.

Satish Rana, the deceased died due to asphyxia caused by hanging. The

post mortem report is Ext. PW-10/A. The matter was investigated and

challan was put up before the Court after completing all the codal

formalities.

3. The prosecution, in order to prove its case, has examined as

many as thirteen witnesses. The accused was also examined under

Section 313 Cr.P.C. He pleaded innocence. The learned trial Court

acquitted the accused, as noticed hereinabove. Hence, this appeal.

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4. Mr. M.A. Khan, Addl. Advocate General for the State has

vehemently argued that the prosecution has proved its case against the

accused. On the other hand, Mr. J.L. Bhardwaj, Advocate, has supported

the judgment of the learned trial Court dated 28.7.2010.

5. We have heard the learned counsel for both the sides and

have also gone through the judgment and records of the case carefully.

6. PW-1 Roshani Devi testified that the prosecutrix was studying

in 8

th class in Government High School, Palach. She had gone to fetch

water on 15.12.2009 at about 9:30 PM from ‘Bauri’ near the house. She

returned after about half an hour. She was not carrying the bucket when

she came back. She told that accused caught her and gagged her mouth

with her shirt. She was having grass and soil on her back. When she

made inquiry about the source of grass and soil, she initially did not

disclose anything. When her husband had gone outside, she narrated the

incident to her. When her husb and returned and asked from the

prosecutrix, she told that she was raped by the accused. The accused

had also threatened to kill her in case she revealed the incident to

anyone. The matter was reported to the police in the morning of 16

th.

FIR Ext. PW-1/A was registered. She was also subjected to medical

examination. The prosecutrix went to the house of her grandmother and

subsequently committed suicide by hanging due to shame.

7. PW-2 Manoj Kumar is the brot her of the deceased. According

to him also, the prosecutrix was studying in 8

th class. His sister had gone

to fetch water on 15.12.2009 at about 9:30 PM from Bauri near the

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house. She returned after about half an hour. When she returned, his

mother enquired as to why she came late. There was grass on her hairs

and on the back of her sweater. She revealed that accused had forcibly

raped her. She was taken to the Police Station and FIR Ext. PW-1/A was

registered.

8. PW-3 Anant Ram testifie d that Tek Singh called him

telephonically on the night of 15.12.2009 at about 12:30-1:00 AM and

asked him to bring the vehicle. He reached at the house of the

complainant at about 2:00 AM and took Tek Singh, his wife, his son

Manoj and prosecutrix to Banjar in his vehicle. The matter was reported

to the police. The prosecutrix was medically examined. She produced her

clothes.

9. PW-4 Dr. Ramesh Lal Sharma has conducted the medical

examination of the accused. According to him, there was nothing to

suggest that accused was incapable of sexual intercourse. He issued MLC

Ext. PW-4/A.

10. PW-7 Mohan Lal has issued ce rtificates Ext. PW-7/A and PW-

7/B.

11. PW-8 Mohar Singh has proved birth certificate of the accused

vide Ext. PW-8/A and that of deceased vide Ext. PW-8/B.

12. PW-9 Dr. Neena Lal has medically examined the prosecutrix.

She issued MLC Ext. PW-9/A. According to her opinion, there was

physical interference with external genitalia and she was habitual of

sexual intercourse.

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13. PW-10 Dr. Satish Rana ha s conducted the post mortem

examination of the prosecutrix on 3.1.2010 at 2:00 PM. He issued post

mortem report Ext. PW-10/A. The probable time that elapsed between

injury and death was 2 to 0 hours and between death and post mortem

was 10 to 11 hours.

14. PW-11 Dr. M.L. Bandhu has proved report Ext. PW-11/B.

According to his opinion, the estimated age of the prosecutrix was

between 14 to 16 years.

15. PW-12 ASI Bhupinder Singh has carried out the investigation.

He prepared site plan Ext. PW-12/A. He took into possession the clothes

of the prosecutrix. He got the prosecutrix medically examined. He also

got the post mortem of the deceased conducted in the hospital.

16. The date of birth of the pr osecutrix was 3.6.1996. According

to Dr. M.L. Bandhu, the estimated age of the prosecutrix was between 14

to 16 years.

17. The prosecutrix had gone to fetch water on 15.12.2009 at

night. She was raped by the accused. She came back and narrated the

incident to her mother and also to her father. The FIR was registered in

the morning of 16.12.2009. According to PW-9 Dr. Neena Lal, there was

physical interference with external genitalia of the prosecutrix. She

issued MLC Ext. PW-9/A. The prosecutrix went to the house of her

grandmother and committed suicide on the intervening night of 2-

3.1.2010.

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18. PW-1 Roshani Devi has ca tegorically deposed that the

prosecutrix went to the house of her grandmother and committed suicide

by hanging herself due to shame. PW-2 Manoj Kumar, brother of the

deceased, has also deposed that his sister has told her parents that the

accused had raped her and subsequently the prosecutrix has committed

suicide by hanging herself due to shame. The cause of death of the

prosecutrix, as per the post mortem report, in the opinion of Dr. Satish

Rana, is asphyxia caused by hanging. He issued post mortem report Ext.

PW-10/A. The probable time that elapsed between injury and death was

2 to 0 hours and between death and post mortem was 10 to 11 hours.

19. There is proximate link between the rape of the accused and

committing suicide by the prosecutrix within a short span of 16 days.

The contents of FIR Ext. PW-1/A have been duly proved by PW-1 Roshani

Devi, the manner in which the prosecutrix was raped forcibly by the

accused. The accused has also threatened to kill her if she narrated the

incident to any person. In FIR Ext. PW-1/A, it could not be visualized

that due to shame, the girl might commit suicide within 15-16 days. The

incident of rape is dated 15.12.2009 and the date of hanging is

intervening night of 2-3.1.2010. It must have been very difficult for the

prosecutrix to live with the family after being forcibly raped by the

accused and it is, in these circumstances, she went to the house of her

grandmother and committed suicide by hanging.

20. The learned trial Court has misread the oral as well as

documentary evidence. In the instant case, initially it was a case of rape

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and out of shame, the prosecutrix has committed suicide later on. The

human blood and semen was detected on Ext. P-7 (salwar of the

prosecutrix).

21. Their lordships of the Hon’ble Supreme Court in the case of

Sharad Birdhichand Sarda vs. State of Maharashtra, reported in

(1984) 4 SCC 116, have held that 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.

Section 32 is not confined to homicide alone but includes suicide also. All

the circumstances which may be relevant to prove a case of homicide

would be equally relevant to prove a case of suicide. Their lordships have

further held that 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. It has been

held as under:

“11. The leading decision on this question, which has been

endorsed by this Court, is the case of Pakala Narayana Swami v.

Emperor where Lord Atkin has laid down the following tests:

"It has been suggested that the statement must be made after the

transaction has taken place, that the person making it must be at any

rate near death, that the "circumstances" can only include the acts

done when and where the death was caused. Their Lordships are of

opinion that the natural meaning of the words used does not convey

any of these limitations. The statement may be made before the

cause of death has arisen, or before the deceased has any reason to

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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.

----------It will be observed that "the circumstances are of the

transaction which resulted in the death of the declarant."

These principles were followed and fully endorsed by a decision of

this Court in Shiv Kumar & Ors v. The State of Uttar Pradesh where

the following observations were made:

"It is clear that if the statement of the deceased is to be

admissible under this section it must be a statement

relating to the circumstances of the transaction

resulting in his death. The statement may be made

before the cause of death has arisen, or before the

deceased has any reason to anticipate being killed,------

---A necessary condition of admissibility under the

section is that the circumstance must have some

proximate relation to the actual occurrence-------

---- The phrase "circumstances of the transaction" is a

phrase that no doubt 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"

The aforesaid principles have been followed by a long catena of

authorities of almost all the courts which have been noticed in this

case. To mention only a few important once, in Manoher Lal

& ors. v.

The State of Punjab, the Division Bench of the Punjab & Haryana

High Court observed thus:

“The torture administered sometimes manifests itself

in various forms. To begin with, it might be mental

torture and then it may assume the form of physical

torture. The physical harm done to the victim might be

increased from stage to stage to have the desired effect.

The fatal assault might be made after a considerable

interval of time, but if the circumstances of the torture

appearing in the writings of the deceased come into

existence after the initiation of the torture the same

would be held to be relevant as laid down in Section

32(1) of the Evidence Act."

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12. We fully agree with the above observations made by the

learned Judges. In Protima Dutta & Anr. v. The State while relying

on Hanumant's case (supra) the Calcutta High Court has clearly

pointed out the nature and limits of the doctrine of proximity and

has observed that in some cases where there is a sustained cruelty,

the proximity 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

years since the marriage of Sumana with 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.”

This observation taken as a whole would, in my view, imply

that the time factor is not always a criterion in determining

whether the piece of evidence is properly included within

"circumstances of transaction. "--------"In that case the

allegation was that there was sustained cruelty extending over

a period of three years interspersed with exhortation to the

victim to end her life." His Lordship further observed and

held that the evidence of cruelty was one continuous chain,

several links of which were touched up by the 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 statement of Nilima (who committed

suicide) in that regard which related to the circumstances

terminating in suicide."

15. In Chinnavalayan v. State of Madras two eminent Judges of

the Madras High Court while dealing with the connotation of the

word 'circumstances' observed thus:

"The special circumstance permitted to transgress the time

factor is, for example, a case of prolonged poisoning, while the

special circumstance 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

limitations such as 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 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 the actual

occurrence."

18. Before closing this chapter we might state that the Indian law

on the question of the nature and scope of dying declaration has

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made a distinct departure from the English law where only the

statements which directly relate to the cause of death are admissible.

The second part of cl.(1) of 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 be found in the

English law. This distinction has been clearly pointed out in the case

of Rajindera Kumar v. The State where the following observations

were made:

"Clause (1) of s. 32 of the Indian Evidence Act provides that

statements, written or verbal, of relevant facts made by a person who

is dead,--------are themselves rele-

vant facts when the statement is made by a person as to the cause of

his death, or as to any of the circumstances of the transaction which

resulted in his death, in case, in which the cause of that person's

death comes into question.---------- It is well settled by now that

there is difference between the Indian Rule and the English Rule

with regard to the necessity of the declaration having been made

under expectation of death.

In the English Law the declaration should have been made under the

sense of impending death whereas under the Indian Law it is not

necessary for the admissibility of a dying declaration that the

deceased at the time of making it should have been under the

expectation of death.

21. Thus, from a review of the authorities mentioned above and

the clear language of s.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 s.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 instance, where the

death takes place within a very short time of the marriage or the

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distance of time is not spread over more than 3-4 months the

statement may be admissible under s.32.

(3) The second part of cl.1 of s.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 s.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 s.32 and, therefore,

admissible. The distance of time alone in such cases would not make

the statement irrelevant.

215. I would, however, like to state here that this approach should

be taken with great deal of caution and care and though I

respectfully agree with Fazal Ali, J. that the test of proximity cannot

and should not be too literally construed and be reduced practically

to a cut-and-dried formula of universal application but it must be

emphasised that whenever it is extended beyond the immediate, it

should be the exception and must be done with very great caution

and care. As a general proposition, it cannot be laid down for all

purposes that for instance where a death takes place within a short

time of marriage and the distance of time is not spread over three or

four months, the statement would be admissible under section 32

of

the Evidence Act. This is always not so and cannot be so. In very

exceptional circumstances like the circumstances in the present case

such statements may be admissible and that too not for proving the

positive fact but as an indication of a negative fact, namely raising

some doubt about the guilt of the accused as in this case.”

22. Their lordships of the Hon’ble Supreme Court in the case of

Nathuni Yadav and others vs. State of Bihar and another, reported

in AIR 1997 SC 1808, have held that when inmates of neighbouring

house reached the spot stating that victims mentioned names of accused

as assailants, such evidence may not be substantive evidence but has

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utility at the trial as it would fall under Section 157 of the Evidence Act.

It has been held as under:

“12. The words "at or about the time" in Section 157 of the

evidence Act are the crucial words to judge the time when the

statement was made. Whether the statement was made at or about

the time of the incident can be decided on (he fads of each case. No

hard and fast rule can be laid down for it. However. those words "at

or about the time" in Section 157

must receive a pragmatic and

liberal construction. The principle is that the time interval between

the incident and the utterance of the statement should not be such as

to afford occasion for reflection or even contempla-tion. If the time

interval was so short as between the two that the mind of the witness

who made the statement was well connected with the incident

without anything more seeping into, such statement has a credence,

and hence can be used, though not as substantive evidence, as

corroborating evidence, on the principle adumberated in Section

157 of the Evidence Act.

13. Vivian Bose J. has observed in Rameshwar v. State of

Rajasthan, AIR (1952) SC 54 that "there can be no hard and fast rule

about" at or about 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

listening and concoction". We respectfully follow the aforesaid

observation.”

23. Their lordships of the Hon’ble Supreme Court in the case of

Rattan Singh vs. State of Himachal Pradesh, reported in AIR 1997

SC 768, have held that the collocation of the words in Section 32(1)

“Circumstances of the transaction which resulted in his death" is

apparently of wider amplitude than saying "circumstances which caused

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his death". There need not necessarily be a direct nexus between

"circumstances" and “death”. 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.

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 which resulted in the death. It has been held as under:

“12. If the said statement had been made when the deceased was

under expectation of death it becomes dying declaration in evidence

after his death. Nonetheless, even if she was nowhere near

expectation of death, still the statement would become admissible

under Section 32(1) of the Evidence Act, though not as dying

declaration as such, provided it satisfies one of the two conditions

set forth in the sub- section. This is probably the one distinction

between English law and the law in India on dying declaration. In

English law, unless the declarant is under expectation of death his

(Shared Birdhichand Ser vs. State of Maharashtra: AIR 1984 SC

1622: Tehal Singh and ors vs. State of Punjab

AIR 1979 SC 1347).

13. Section 32(1) of the Evidence Act renders a statement relevant

which was made by a person who is dead in cases in which cause of

his death comes into question, but its admissibility depends upon

one of the two conditions: Either such statement should relate to the

cause of his death or it should relate to any of the circumstances of

transaction which resulted in his death.

15. When Kanta Devi (deceased) made the statement that

appellant was standing with a gun she might or might not have been

under the expectation of death. But that does not matter. The fact

spoken by the deceased has subsequently turned out to be a

circumstance which intimately related to the transaction which

resulted in her death. The collocation of the words in Section 32(1) "

Circumstances of the transaction which resulted in his death" is

apparently of wider amplitude than saying "circumstances which

caused his death". There need not necessarily be a direct nexus

between "circumstances" and death. It is enough if the words spoken

by the deceased have reference to any circumstance which has

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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 admissibile under the sub-

section, provided it has nexus with the transaction which resulted in

the death. In Sharad Birdhi Chand Sarda`s case (cited supra) this

Court has stated the above principle in the following words :

"The test of proximity cannot be too literally construed and

practically reduced to a cut and dried formula of universal

application so as to be confined in a strait-jacket. Distance of

time would depend or vary with the circumstances of each

case. For instance, where death is a logical culmination of a

continuous drama long in process and is, as it were, a finale of

the story, the statement regarding each step directly

connected with the end of the drama would be admissible

because the entire statement would have to be read as an

organic whole and not torn from the context. Sometimes

statements relevant to or furnishing an immediate motive

may also be admissible as being a part of the transaction of

death."

16. Even apart from section 32(1) of the Evidence Act, the

aforesaid statement of Kanta Devi can be admitted under section

6 of the Evidence Act on account of its proximity of time to the act of

murder. Illustration `A' to section 6 makes it clear. It reads thus:-

"A is accused of the murder of B by beating him. Whatever

was said or done by A or B or the by standers at the beating or

so shortly before or after as to form part of the transaction is a

relevant fact."

Here the act of the assailant intruding into the courtyard during

dead of the night, victim`s identification of the assailant, her

pronouncement that appellant was standing with a gun and his

firing the gun at her, are all circumstances so intertwined with each

other by proximity of time and space that the statement of the

deceased became part of the same transaction. Hence it is admissible

under Section 6 of the Evidence Act.”

24. In the present case also, as noticed hereinabove, the FIR was

registered at the instance of the prosecutrix promptly stating therein that

she was raped by the accused on 15 .12.2009. She committed suicide

after 16 days. The FIR had direct nexus with her death due to shame.

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The prosecutrix was medically examined by PW-9 Dr. Neena Lal. The

learned trial Court has not even discussed the medical evidence,

statement of PW-9 Dr. Neena Lal, whereby she has categorically testified

that there was physical interference with external genitalia of the

prosecutrix.

25. There are series of circumstances which led to the death of

the prosecutrix. The rape committed by the accused upon the prosecutrix

and thereafter her going to the house of grandmother and committing

suicide due to shame. Thus, the judgment relied upon by the learned

trial Court in the case of Sudhakar vs. State, reported in 2000 (6) SCC

671, is distinguishable.

26. The learned trial Court has mi sread the provisions of Sections

6 & 8 of the Indian Evidence Act. Merely that DNA profile was not

developed by the scraping from nails and smegma would not dent the

case of the prosecution in view of the overwhelming evidence of the

mother of the prosecutrix PW-1 Roshani Devi and brother PW-2 Manoj

Kumar, the manner in which the prosecutrix was raped. The statements

are also duly supported by medical evidence. The prosecution has duly

proved that accused had raped the deceased on 15.12.2009. He also

abetted and instigated the suicide by the prosecutrix by hanging on the

intervening night of 2-3.1.2010. The accused has illegally confined the

prosecutrix and has also criminally intimidated her. Thus, accused has

committed offences punishable under Sections 376, 306, 341 & 506 IPC.

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27. Accordingly, the appeal is al lowed. The judgment of acquittal

rendered by the learned trial Court in Sessions Trial No. 17/2010 dated

28.7.2010 is set aside. Accused is convicted under Sections 376, 306,

341 & 506 IPC. The accused be produced for hearing on quantum of

sentence on 26.8.2016. Production warrant be prepared accordingly and

sent to the quarter concerned for execution, forthwith.

( Rajiv Sharma ),

Judge.

August 17, 2016,

( Vivek Singh Thakur ),

(karan) Judge.

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