Crl.A.Nos.626/08, 690/08 & 42/2010 Page 1 of 58 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 14th January, 2010 Judgment Delivered on: 19thFebruary, 2010 + CRL.APPEAL No.626/2008 SANDY @ VED PRAKASH & ORS. ……Appellants Through: Mr.R.N.Mittal, Sr.Advocate with Mr.Manoj Kumar and Mr.Nitin Sharma, Advocates Versus STATE ……Respondent Through: Mr.M.N.Dudeja, Advocate CRL.APPEAL No.690/2008 JASBIR @ LILLY ……Appellant Through: Mr.D.C.Mathur, Sr.Advocate with Mr.Rakesh Kumar and Mr.Suwarn Rajan, Advocates Versus STATE ……Respondent Through: Mr.M.N.Dudeja, Advocate CRL.APPEAL No.42/2010 DEVENDER @ KALA ……Appellant Through: Mr.Manoj Kumar and Mr.Nitin Sharma, Advocates Versus STATE ……Respondent Through: Mr.M.N.Dudeja, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? Crl.A.Nos.626/08, 690/08 & 42/2010 Page 2 of 58 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. 1. Vide impugned judgment and order dated 21.05.2008, the appellants; Devender @ Kala s/o Ram Kumar, Sandy @ Ved Prakash s/o Rajpal, Sanjay s/o Zile Singh, Sheel @ Sushil s/o Mahabir Singh and Jasbir @ Lily s/o Balbir Singh, have been convicted for the offences punishable under Section 376(2)(g) IPC and Section 306 IPC read with Section 34 IPC. For the offence punishable under Section 376(2)(g) IPC, the appellants have been sentenced to undergo imprisonment for life and pay fine in sum of Rs.5,000/-; in default to undergo simple imprisonment for a period of six months. For the offence punishable under Section 306 IPC read with Section 34 IPC, the appellants have been sentenced to undergo rigorous imprisonment for a period of five years and pay fine in sum of Rs.5,000/-; in default to undergo simple imprisonment for a period of six months. 2. The broad contours of the case set up by the prosecution against the appellants is that in the afternoon of 12.01.2002 when one Ms.‟B‟ (herein after referred to as the “Deceased”) was on her way to the agricultural fields owned Crl.A.Nos.626/08, 690/08 & 42/2010 Page 3 of 58 by her family, the appellants caught hold of her and committed rape upon her. On being raped by the appellants, the deceased felt so humiliated that she decided to end her life and on returning home consumed sulphas tablets. The deceased also administered sulphas tablets to her three years old daughter Kumari „K‟. The deceased and her daughter were removed to the hospital where the daughter of the deceased survived but the life of the deceased could not be saved. Before her death, the deceased wrote the names of the appellants on a slip of paper and told her brother-in-law Rajesh PW-1, mother-in- law Chand Kaur PW-5 and brother Sartaj PW-10, that she had been raped by the persons whose names she had written on the aforesaid slip of paper. Further the deceased also told HC Surender Kumar PW-23, that the appellants have raped her at the time when he was removing her to the hospital, i.e. the deceased made two declarations pertaining to the circumstances of her death soon before she died the same day. 3. The fact that the deceased died a suicidal death is not in dispute. The fact that the deceased committed suicide by consuming sulphas tablets is also not in dispute. Crl.A.Nos.626/08, 690/08 & 42/2010 Page 4 of 58 4. We need not note the investigation conducted by the police in the present case save and except the facts pertaining to the seizure of slip of paper on which the deceased had purportedly written the names of the appellants soon before the death, the post-mortem report Ex.PW-14/A of the deceased and the FSL report Ex.PW-33/A for the reason nothing much turns thereon. Of course we have to note the testimony of the witnesses who have deposed of the facts of what the deceased told them. 5. Relevant would it be to note that on 12.01.2002 at about 01.30 P.M. Dr.Pankaj Kumar examined the deceased at the time when she was admitted in the hospital and prepared the MLC Ex.PW-37/C of the deceased. The relevant portion of the MLC Ex.PW-37/C of the deceased reads as under:- “Alleged H/o Gang by many (? 4 in no.) people” 6. Thereafter at around 2.00 P.M. Dr.Divya Aggarwal PW-2, examined the deceased and prepared the MLC Ex.PW- 2/A of the deceased. The relevant portion of the MLC Ex.PW- 2/A of the deceased reads as under:- “There is no mark of injury seen on back, breast, axiller or abdomen or thigh or perineum..... Crl.A.Nos.626/08, 690/08 & 42/2010 Page 5 of 58 ....Mark of semen on xiphesternum and abdomen” 7. After conducting the medical examination of the deceased, Dr.Divya Aggarwal PW-2, handed over the vaginal swab of the deceased to Const. Chand Ram PW-32, who handed over the same to SI Satbir Singh PW-34, the police officer entrusted with the investigation of the present case, who seized the same vide memo Ex.PW-34/C. 8. On the same day i.e. 12.01.2002 SI Satbir Singh PW-34, seized the slip of paper Ex.PW-1/B on which the deceased had purportedly written the names of the appellants soon before her death from the residence of the deceased vide memo Ex.PW-34/A. A perusal of the aforesaid slip of paper Ex.PW-1/B shows that following five names/words are written thereon:- (i) Sady (ii) Seel (iii) Ram Kuwar (iv) Zale Ka (v) Lily. 9. Since the deceased could not be saved by the doctors and she died, on 13.01.2002 the body of the deceased was sent to the mortuary of Safdarjung Hospital where Dr.Komal Singh PW-14, conducted the post-mortem of the deceased and prepared the report Ex.PW-14/A. The post- mortem Ex.PW14/A of the deceased records that the possibility of rape being committed upon the deceased Crl.A.Nos.626/08, 690/08 & 42/2010 Page 6 of 58 cannot be ruled out. It is relevant to note that the post- mortem report Ex.PW-14/A of the deceased records that „Alleged H/o committing suicide consumption of Al. phospide tablets, after been raped by four people as per FIR 9/2002 dtd 12.1.2002‟. The post-mortem report Ex.PW-14/A of the deceased further records that following injuries were found on the person of the deceased:- “There were nail marks over- (a) inner surface of left leg 1 cm X 5 mm (b) outer surface of left leg 2 mm X 2 mm (c) over right parasternal border near the right breast 2 mm X 2 mm (d) on the right thumb 2 mm X 1 mm Bruise over the lower limb and the gums 1 cm X 2 mm. There was bruise at the posterior vaginal wall, near introits, bruise over the left labia minora 2 mm X 2 mm.” 10. On 18.01.2002 Inspector Mahavir Singh PW-30, seized some papers containing some writings stated by Rajesh PW-1, the brother-in-law of the deceased, to be in the hand of the deceased, as recorded in the memo Ex.PW-30/A. 11. The materials seized during the investigation of the present case including the vaginal swab of the deceased were sent to the Forensic Science Labortary. The papers containing the admitted handwriting of the deceased and Crl.A.Nos.626/08, 690/08 & 42/2010 Page 7 of 58 the slip of paper Ex.PW-1/B were sent to the Office of the Government Examiner of Questioned Documents. 12. Vide FSL report Ex.PW-33/A it was opined that semen was detected on the vaginal swab of the deceased. Vide report Ex.PW-38/A Sh.I.S. Rao, a handwriting expert, opined that the document Ex.PW-1/B is written in the handwriting of the deceased. 13. Armed with the post-mortem report Ex.PW-14/A of the deceased, the FSL report Ex.PW-33/A, the report Ex.PW-38/A and various seizure memos prepared during the investigation and citing the persons; namely, Rajesh PW-1, Chand Kaur PW-5, Sartaj PW-10, HC Surender Kumar PW-23, SI Om Dutt PW-29 and I.S.Rao PW-38 as witnesses, a charge sheet was filed against the appellants. 14. Needless to state the appellants were sent for trial. Charges were framed against the appellants for committing offences punishable under Sections 376(2)(g) and 306 IPC. 15. Rajesh PW-1, the brother-in-law of the deceased deposed that on 12.01.2002 at about 12.30 P.M. when he came to his house he saw the deceased vomiting and the brother of the deceased was present. On enquiry the deceased told him that five persons from the village had Crl.A.Nos.626/08, 690/08 & 42/2010 Page 8 of 58 raped her and that she had written their names on a slip of paper (Ex.PW-1/B) and had kept the same on top of the refrigerator. Thereafter his mother came to the house. When they again enquired from the deceased, she told them that Sandy, Sheel, younger son of Zile, middle son of Ram Kumar and Lily had raped her. The deceased further told them that when she was going to the agricultural fields owned by her family aforesaid five boys obstructed her. Sheel pressed her mouth while Sandy and Lily forcibly lifted her and laid her on the ground. The sons of Zile and Ram Kumar caught hold of her hands. First of all, Lily committed rape upon her and thereafter remaining four boys raped her one after the other. She further told them that she has consumed sulphas tablets as she was feeling ashamed. She also told them that she had administered sulphas tablets to her daughter „K‟. He informed the police about the aforesaid incident whereupon the police arrived at his residence and removed the deceased and her daughter „K‟ to the hospital. He accompanied the deceased to the hospital. 16. On being cross-examined about the presence of Sartaj (the brother of the deceased) at the residence of the deceased, he stated that (Quote): „Sartaj was already present in the house. He must have also seen B vomiting. I do not know whether my bhabhi disclosed anything to Sartaj Crl.A.Nos.626/08, 690/08 & 42/2010 Page 9 of 58 or not before my arrival.‟ On being cross-examined about the first aid given to the deceased, he stated that (Quote): „We administered her desi ghee so that the poison which she had taken out comes out in the form of vomiting.... Vol. my mother gave first aid to her. The deceased was given ghee and lot of water. She tried to make her vomit.‟ On being cross-examined about the name of appellant Devender, he stated that the deceased had told him that middle son of Ram Kumar had committed rape upon her and that she does not know his name. He stated that his family and Ram Kumar belong to same extended family (kunba). He further stated that save and except appellant Sanjay his family and all the accused belong to same extended family (kunba). 17. Chand Kaur PW-5, the mother-in-law of the deceased, deposed that on one day in the year 2002 she had gone to the agricultural fields owned by her family. At around 12 P.M. when she came back to her house she saw that the deceased was vomiting and that her younger son Rajesh and brother of the deceased Sartaj were also present there. Sartaj, the brother of the deceased, had come to their house in connection with the festival of Sakranti. On making enquiries from the deceased, she told her that five persons namely Sheel, Lily, Sanjay, Kala and Sandy have raped her. The deceased further told her that she has consumed Crl.A.Nos.626/08, 690/08 & 42/2010 Page 10 of 58 sulphas tablets as she was feeling ashamed. The deceased also told them that she had administered sulphas tablets to her daughter K. The witness deposed that she had administered ghee to the deceased at the time when the deceased was vomiting. 18. Sartaj PW-10, the brother of the deceased, deposed that on 12.01.2002 he had gone to the house of the deceased to give gifts to the deceased in connection with the festival of Sakranti. When he reached there he saw that the deceased was vomiting and that brother-in-law of the deceased Rajesh was also present there. When he enquired from Rajesh he told him that five boys from the village have raped the deceased and that the deceased has consumed sulphas tablets. He made enquiries from the deceased but she was unable to speak. Thereafter Rajesh administered ghee to the deceased upon which the deceased told him that five boys namely Sandy, Sheel, one son of Ram Kumar, Sanjay who is son of Zile and Lily have raped her. She further told him that she had written the names of the aforesaid five boys on a slip of paper and kept the same on the top of refrigerator. In the meantime, the mother-in-law of the deceased also arrived there. Thereafter a PCR van came there and removed the deceased to the hospital. Rajesh was also accompanying the deceased at the time when she was Crl.A.Nos.626/08, 690/08 & 42/2010 Page 11 of 58 removed to the hospital. On being questioned about the presence of Rajesh in the house of the deceased, he stated that Rajesh was already present at the residence of the deceased at the time when he reached there. 19. HC Surender Kumar PW-23, deposed that he was present in the police control room when at around 12.55 P.M. he received a telephonic call informing him that a lady residing in the house of Kehar Singh has been raped and that she has consumed poison. On reaching the aforesaid house he saw that the deceased and one small girl have consumed poison. He removed the deceased and the girl to Sanjay Gandhi Hospital in PCR van. On the way to the hospital, the deceased told him that Sanjay, Kala, Leelu and other persons had raped her. 20. Since there was a variation between the statement of HC Surender Kumar under Section 161 Cr.P.C. and his testimony in the court, HC Surender Kumar was cross-examined by the prosecutor. On being cross-examined about the statement made by the deceased to him, he stated that: (Quote) „It is correct that the names disclosed were Sanjay S/o Zile Singh, Kala S/o Ram Kumar, Lilli S/o Balbir. It is correct that she had stated that there was fourth person whose name she does not know.‟ He further deposed Crl.A.Nos.626/08, 690/08 & 42/2010 Page 12 of 58 that the deceased told him that she had consumed sulphas tablets as she was feeling ashamed on account of the fact that she had been raped by the aforesaid persons. He flashed the aforesaid information given by the deceased to the police control room. 21. SI Om Dutt PW-29, deposed that on 12.01.2002 he was posted as duty officer at the police control room. At around 12.55 P.M. he received a wireless information to the effect that a lady residing in the house of Kehar Singh has been raped and that she has consumed poison. 22. On being cross-examined by the learned Additional Public Prosecutor about the wireless information received by him in relation to the incident in question he stated that (Quote): „It is correct to suggest commander C- 75 gave information to me on wireless that „B‟ W/o Dalbir aged 30-31 years had been raped by Sanjay S/o Zile Singh, Lilli S/o Dalbir, Kala S/o Ram Kumar and by one other person at 10 O‟ clock.‟ He deposed that he had handed over the original PCR form recording the aforesaid message to the investigating officer. He further deposed that the said PCR form is not present in the documents filed by the prosecution before the trial court. (However, it may be noted here that a PCR form recording the aforesaid message was Crl.A.Nos.626/08, 690/08 & 42/2010 Page 13 of 58 filed by the prosecution before the trial court and is part of the record). 23. I.S.Rao PW-38, a handwriting expert, deposed that the report Ex.PW-38/A was prepared by him. 24. In their statements under Section 313 Cr.P.C. the appellants pleaded innocence and denied everything. 25. In defence, appellants Jasbir Singh and Sanjay examined two witnesses namely Dr.A.K.Pandey DW-1 and Dr.Gopal Bhagat DW-2. 26. Dr.A.K.Pandey DW-1, Incharge, Medical Office, MCD Primary Health Centre, Mehrauli deposed that appellants Jasbir Singh and Sanjay were admitted in MCD Primary Health Centre, Mehrauli in 11.01.2002 as they were suffering from gastroentitus and that they were discharged from the said centre on 14.01.2002. 27. Dr.Gopal Bhagat DW-2, deposed that he was working as Chief Medical Officer in MCD Primary Health Centre, Mehrauli between the years 1996 and 2003. He deposed that village Laudpur (place of residence of the appellants) is at a distance of about 30-35 kms from the said centre. Appellants Jasbir Singh and Sanjay were admitted in MCD Primary Health Centre, Mehrauli in 11.01.2002 and that Crl.A.Nos.626/08, 690/08 & 42/2010 Page 14 of 58 they were discharged from the said centre on 14.01.2002. On being cross-examined about the facilities available at the said centre he deposed that (Quote): „It is correct that the health center is not a super speciality hospital for gastro- intelstinal cases. It is correct that there are other primary health center between village Ladpur and my center in vicinity of Mehrauli.‟ 28. Holding that the dying declarations made by the deceased to Rajesh PW-2, Chand Kaur PW-5, Sartaj PW-10 and HC Surender Kumar PW-23 is an admissible piece of evidence and that the said dying declarations are reliable as the post-mortem report Ex.PW-14/A of the deceased and FSL report Ex.PW-33/A duly corroborate the same (rape), the learned Trial Judge has convicted the appellants. With regard to the evidence adduced by the defence, learned Trial Judge has held that the evidence of Dr.A.K.Pandey DW-1 and Dr.Gopal Bhagat DW-2, does not inspire any confidence for the reason it cannot be believed that appellants Jasbir Singh and Sanjay would travel a distance of 30-35 kms to get themselves treated for gastroentitus at MCD Primary Health Centre, Mehrauli particularly when the said centre was not even a super-speciality hospital for gastro-intestinal cases. Crl.A.Nos.626/08, 690/08 & 42/2010 Page 15 of 58 29. From the narratives noted by us in the preceding paragraphs, it is evident that the main plank of the case of the prosecution against the appellants is the statements made by the deceased to Rajesh PW-1, Chand Kaur PW-5, Sartaj PW-10 and HC Surender Kumar PW-23 soon before her death. 30. Pertaining to the alleged statements made by the deceased as spoken of by Rajesh PW-1, Chand Kaur PW-5, Sartaj PW-10 and HC Surender Kumar PW-23, it was urged by learned counsel for the appellants that if it was held that the appellants were not guilty of the charge of abetting the suicide of the deceased, the statements of the deceased pertaining to the offence of rape cannot be treated as dying declarations under Section 32(1) of the Evidence Act 1872 and hence the same would be inadmissible in evidence. 31. Thus, we first proceed to consider whether the offenders (whoever committed the rape) could be held guilty for abetting the suicide of the deceased. While discussing this aspect we would be proceeding on the assumption that the deceased told that she was raped by the appellants and due to shame she decided to end her life. We may not be understood to mean that we have returned a finding against the appellants at this stage that they had raped the Crl.A.Nos.626/08, 690/08 & 42/2010 Page 16 of 58 deceased. We shall be discussing this aspect at the next stage of our decision when we discuss the contours of Section 32(1) of the Evidence Act 1872 and the evidence brought on record. 32. The word „suicide‟ in itself is no where defined in Indian Penal Code, however its meaning and import is well known and requires no explanation. „Sui‟ means „self‟ and „cide‟ means „killing‟, thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. 33. Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types namely:- (i) Degradation of corpse of deceased by burying it on the highway with a stake through its chest; (ii) Forfeiture of property of deceased by the State. At present, there is no punishment for suicide under English law. 34. In India, suicide in itself is not an offence for successful offender is beyond the reach of law, however Crl.A.Nos.626/08, 690/08 & 42/2010 Page 17 of 58 attempt to commit suicide is an offence punishable under Section 309 IPC. 35. The offence of abetment of suicide is made punishable by Section 306 IPC which reads as under:- “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable for fine.” 36. Section 306 does not define the expression “abet” nor is the expression defined in Chapter II of Code, which deals with general explanations. However, Chapter V of Code makes provisions with respect to abetment. Section 107 in this Chapter defines “abetment” in following terms:- “A person abets the doing of a thing, who- First- Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything Crl.A.Nos.626/08, 690/08 & 42/2010 Page 18 of 58 in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. 37. As per the prosecution the deceased was raped in the fields. She returned home and decided to take poison as she thought that the humiliation heaped upon her has blackened her face and she had no face to show in the society. With this feeling of dejection, despair, humiliation and frustration she fed a sulphas tablet to her infant daughter and consumed sulphas tablets herself. The rapists have not been alleged to have conspired with the deceased for the doing of the act of consuming sulphas. The rapists have not been alleged of doing any act in conspiracy or any illegal omission. The rapists have not been alleged to aid, much less intentionally aid the deceased in consuming sulphas. Thus, the second and the third limb of Section 107 IPC are just not attracted. The question would be whether the first limb is attracted i.e. whether can it be said that the rapists instigated the deceased by their act of rape to consume sulphas. 38. The Madhya Pradesh High Court and the Andhra Pradesh High Court have taken diametrically opposite views. In the decisions reported as Mohd Hafeez v State of MP MANU/MP/0238/2009 and Kokkiligadda Veeraswamy v State Crl.A.Nos.626/08, 690/08 & 42/2010 Page 19 of 58 of AP 2005 Cri.L.J. 869 it has been held that an accused by raping a girl instigates her to commit suicide if there is a proximate and live link between the offending act of the accused and the commission of suicide by the girl. Two Judges of the same Court have taken the opposite view in the decisions reported as Battula Konadulu v State of AP MANU/AP/0833/2006 and Deepak v State of MP 1994 Cri.L.J. 767 where the aforesaid question was answered in negative. 39. What is