IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.671-SB of 2002 Date of decision: 4th June, 2010 Bikramjit Singh and another … Appellants Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ashok Saini, Advocate for the appellants. Mr. J.S. Bhullar, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. Present appeal has been filed by Bikramjit Singh son of Gurmukh Singh and his sister Lakhwinder Kaur @ Rano, both residents of village Mallianwali, Tehsil Batala, District Gurdaspur. They were nominated as accused in a case FIR No.33 dated 17.04.2000 registered at Police Station City Batala under Sections 376/306/342/34 IPC. The Court of Additional Sessions Judge, Gurdaspur vide its judgment dated 4th April, 2002, held the appellant Bikramjit Singh guilty of offences punishable under Sections 376 and 306 IPC; whereas Lakhwinder Kaur was held guilty for offences punishable under Sections 376 read with Section 114 and 306 IPC. Vide a separate order of even date, both the appellants were sentenced as under: Convict Bikramjit Singh Criminal Appeal No.671-SB of 2002 (i) Under Section 376 IPC The convict is sentenced to undergo R.I. for ten years. (ii) Under Section 306 IPC The convict is sentenced to undergo R.I. for seven years. Convict Lakhwinder Kaur (i) Under Section 376 IPC read with Section 114 IPC The convict is sentenced to undergo R.I. for seven years. (ii) Under Section 306 IPC The convict is sentenced to undergo R.I. for seven years. Both the sentences were ordered to run concurrently. In the present case, the deceased-prosecutrix (whose name has been withheld to protect her identity), made her statement Ex.PG to ASI Zail Masih on 17th April, 2000 at Civil Hospital, Batala at 11.40 a.m. The statement so recorded was attested by Dr.Paramjit Singh PW-4 of Civil Hospital, Batala and after the death of the deceased-prosecutrix, the same was termed as her dying declaration. The statement, when translated into English, reads as under: “Statement of (prosecutrix) daughter of Bawa Singh, caste Jat, resident of Mallianwali, Police Station Dhariwal, aged 18 years. ***** Stated that I (prosecutrix) daughter of Bawa Singh, caste Jat am resident of Mallianwali. 8/9 months ago, sister of Vikram son of Gurmukh Singh, caste Majhbi, resident of Mallianwali, whose name is Rano, had called me to her house. She locked me and Vikram in a room. Vikram forcibly committed rape with me. Due to fear and shame, I had not disclosed this fact to anybody. Vikram always promised to marry me. Now, he has refused to marry me. He is also not getting me medically treated. Fed-up with the conduct of Vikram, I have consumed the tablets. I am carrying a child of eight months in my womb. Vikram, after forcibly committing rape with me, had ruined my life. I have heard my statement, which is correct. I had consumed the tablets at Dera Road 2 Criminal Appeal No.671-SB of 2002 Phatak at about 11.00 a.m. after drawing water from the handpump installed there. RTI (prosecutrix) Sd/- Dr.Paramjit Singh, Civil Hospital, Batala.” The deceased-prosecutrix, after consumption of poisonous substance, was admitted in Civil Hospital, Batala, wherefrom a ruqa was sent to the Police Station, upon which ASI Zail Masih PW-7 along with companion police officials reached at the hospital, where the doctor attending the deceased-prosecutrix declared her fit to make statement. Since, the condition of the deceased-prosecutrix was deteriorating and the chances of her survival were less, her statement was recorded and a request was also sent to the Illaqua Magistrate. The statement of deceased-prosecutrix was recorded at 11.40 a.m. in the presence of the doctor. On the basis of dying-declaration made by the deceased- prosecutrix, formal FIR Ex.PG/2 was registered. The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted against the accused appellants in the Court of Illaqua Magistrate, who committed the case along with the accused to the Court of sessions and the same were entrusted for trial to the Court of Additional Sessions Judge, Gurdaspur. The challenge in the present appeal is to the conviction and sentence recorded by the trial Court vide its impugned judgment dated 4th April, 2002. From a perusal of the dying-declaration, following three questions are required to be answered by this Court: (a) Whether the promise to marry and refusal thereof will constitute an offence of rape or not ? 3 Criminal Appeal No.671-SB of 2002 (b) Whether the dying-declaration Ex.PG is admissible so far as the offence of rape is concerned ? (c) Whether the suicide committed by an un-wed girl carrying pregnancy of eight months on refusal of the accused to keep his words will constitute abetment to suicide or not ? Before the above said questions are dealt with and answered, it will be necessary to advert to the prosecution evidence. Balwinder Kaur, sister of the deceased-prosecutrix appeared as PW-1 and stated that she was married about 12 years ago. But for the last four years before the occurrence, she was residing with her parents, as her husband was employed at Batala. She further stated that the accused were known to her, as they were residents of village Mallianwali. Deceased-prosecutrix was her younger unmarried sister. The family of the accused was on visiting terms with that of the witness. She further stated that one or two days before her death, the deceased-prosecutrix on 17th April, 2000 brought to the notice of the witness that about 7/8 months ago accused Rano had enticed her and taken her to the house of the accused, where she was made to sit in a room and accused Bikramjit had forcibly committed sexual intercourse upon her. This act of accused continued on various occasions and deceased-prosecutrix became pregnant. Due to fear and shame that she would be ostracized, she had not disclosed the fact of pregnancy and rape to anybody. Deceased- prosecutrix further informed this witness that accused Bikramjit had assured her that there was no need to fear, as he would soon marry her and lastly, he refused to marry her. On 17th April, 2000, while this witness along with the deceased-prosecutrix and her mother Kuldip Kaur, was coming on bus from her village to Batala, at the railway crossing the bus 4 Criminal Appeal No.671-SB of 2002 stopped and deceased-prosecutrix alighted from the bus and took some poisonous tablets with water from the hand-pump. She had committed suicide due to fear of insult and humiliation at the instance of accused appellants. In cross-examination, this witness stated that the deceased- prosecutrix was illiterate and could not read or write in Punjabi. This witness was confronted with her previous statement Ex.DA, as she had made various improvements in the Court. Kuldip Kaur, mother of the deceased-prosecutrix, appeared as PW-2 and corroborated the testimony of her elder daughter Balwinder Kaur PW-1. Dr. Paramjit Singh PW-4 was a member of the Board of Doctors, who conducted autopsy on the dead-body of the deceased- prosecutrix, aged 18/19 years. The viscera was sent to the Chemical Examiner. On opening the uterus, a male foetus dead was found, which was fully developed and about 32 weeks mature. After receipt of the report Ex.PG of Chemical Examiner, the cause of death was opined as consumption of Aluminium Phasphide poisoning. This witness also proved the fact that the statement of deceased-prosecutrix was recorded in his presence on 17th April, 2000 at 11.40 a.m. It was further deposed by this witness that at the time of making her statement, the deceased- prosecutrix was fully conscious and was not under any sedative medicine. She was also not under any coercion, pressure or duress. Constable Kulwant Singh PW-3 tendered his affidavit Ex.PA to prove link evidence. HC Jaswant Singh PW-5 was a member of the police party headed by ASI Zail Masih PW-7 and in his presence, an application Ex.PA was filed by ASI Zail Masih to obtain opinion regarding fitness of the deceased-prosecutrix to make statement. Constable Kuldip Raj PW-6 had carried the viscera to the office of Chemical Examiner. 5 Criminal Appeal No.671-SB of 2002 ASI Zail Masih PW-7 proved receipt of a chit from the hospital, his arrival at the hospital in response thereto, the opinion sought from the doctor and recording of the statement Ex.PG of the deceased- prosecutrix in the presence of Dr.Paramjit Singh PW-4. MHC Narinder Singh PW-8 had kept the case property in the Malkhana and stated that till the viscera and the case property remained in his possession, the same were not tampered with. Satish Chander Draftsman PW-9 had prepared the scaled site plan Ex.PO of the spot, where the deceased-prosecutrix had consumed the poison. Thereafter, statements of the accused under Section 313 Cr.P.C. were recorded and all incriminating circumstances were put to them. They denied the same and pleaded false implication. The accused appellants stated that they had no concern with the deceased- prosecutrix. In defence, AMHC Major Singh DW-1 was examined to prove the Roznamcha for the period from 25th March, 2000 to 18th April, 2000. This witness stated that on 17th April, 2000 or 18th April, 2000, no entry was made regarding receipt of any intimation about the admission of deceased-prosecutrix in Civil Hospital, Batala. AMHC Gurwinder Singh DW-2 stated that in the Roznamcha, Police Station City Batala vide DDR No.22 dated 17.04.2000, an intimation regarding admission of deceased-prosecutrix in hospital was received and recorded at 11.35 a.m. Gurdial Singh DW-3 had brought the school admission record of the deceased-prosecutrix, wherein her date of birth was recorded as 4th May, 1978. 6 Criminal Appeal No.671-SB of 2002 Following facts stand conclusively proved from a perusal of the prosecution evidence: (i) The deceased-prosecutrix died due to consumption of Aluminium Phasphide and it was a case of suicide. (ii) The deceased-prosecutrix was pregnant and carrying a male-foetus aged about 32 weeks in her womb. (iii) The dying-declaration of the deceased-prosecutrix Ex.PG was recorded in the presence of Dr.Paramjit Singh PW-4. Mr. Ashok Saini, Advocate appearing for the appellants, has submitted that the accused had made an attempt to examine Piara Singh as DW-4, who stated that the summoned record was not available in the hospital as the same was lost during shifting of the hospital from old building to the new one. Learned counsel has further submitted that the prosecution has also not proved the bed-head ticket of the deceased- prosecutrix, wherefrom it could be inferred that at the relevant time, she was not in good health to make dying-declaration. It is stated that the deceased-prosecutrix had made her dying-declaration at 11.40 a.m. and she expired immediately thereafter. This argument cannot be accepted, as Dr.Paramjit Singh PW-4 had stated in categoric terms that in his presence the statement of the deceased-prosecutrix was recorded and at that time, she was fully conscious and was not under any sedative medicine or any coercion/pressure. It is next submitted that the dying-declaration was not recorded in question-answer form, therefore, the same should be ruled out of consideration. In the present case, the dying-declaration was very brief, therefore, it cannot be discarded simply because it was not recorded in question-answer form. In the present case, the dying- 7 Criminal Appeal No.671-SB of 2002 declaration was duly corroborated by the testimony of PW-1 Balwinder Kaur and PW-2 Kuldip Kaur. So far as questions No.1 and 2 formulated above are concerned, reliance can be placed upon a judgment rendered by Hon’ble the Apex Court in ‘Sudhakar v. State of Maharashtra’ 2000(3) RCR (Criminal) 383, wherein it was held as under: “7. The death referred to in Section 32(1) of the Evidence Act includes 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, Dharmbir Singh v. State of Punjab, Criminal Appeal No. 98 of 1958 decided on November 4, 1958, Ratan Gond v. State of Bihar, 1959 SCR 1336, Pakala Narayana Swami (supra), Shiv Kumar v. State of Uttar Pradesh, Criminal Appeal No. 55 of 1996, decided on July 29, 1966, Manohar Lal v. State of Punjab, 1981 Cri. LJ 1373 (P&H) and other cases, held : "We fully agree with the above observation made by the learned Judges. In Protima Dutta v. State, 1977(81) Cal. WN 713, while relying on Hanumant case the Calcutta High Court has clearly pointed out the nature and limits of the doctrine of proximate 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 years since the marriage of Sumana and incitement to end her life. Circumstances of the transaction include 8 Criminal Appeal No.671-SB of 2002 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 which the statement of Nilima (who committed suicide) in that regard which related to circumstance terminating in suicide'. Similarly, in Onkar v. State of Madhya Pradesh, 1974 Cri.L.J. 1200, while following the decision of the Privy Council in Pakala Narayana Swami case, the Madhya Pradesh High Court has explained the 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 merely suggesting motive 9 Criminal Appeal No.671-SB of 2002 for a crime cannot be admitted in evidence unless it is so intimately connected with the 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 Bom 290, the Bombay High Courts 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 factor is, for example, a case of prolonged poisoning, 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, does not convey any of the limitations such as (1) 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 circumstance must be circumstances of the transaction and they must have some proximate relation to 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 part of clause (1) of 10 Criminal Appeal No.671-SB of 2002 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 observations were made : Clause (1) 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 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 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 language of Section 32(1) of the Evidence Act, the following propositions emerge : (1) 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 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 11 Criminal Appeal No.671-SB of 2002 character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of unviable 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 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 and 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 distance of time is not spread over more than 3-4 months the statements may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of 12 Criminal Appeal No.671-SB of 2002 homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statements irrelevant." 8. In Ratan Singh v. State of Himachal Pradesh, 1997(1) RCR(Crl.) 550 : 1997(4) SCC 161, this Court held that the expression "circumstances of transaction which resulted in his death" mean that there need not necessarily be a direct nexus between the circumstances and death. Even distant circumstances 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 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 Sections 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstance can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death." In Najjam Faraghi @ Nijjam Faruqui v. State of West Bengal, 1998(1) RCR(Crl.) 402 : 1998(2) SCC 45, this Court held that the death of declarant long after making 13 Criminal Appeal No.671-SB of 2002 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 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 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 of Punjab, 1998 (3) RCR(Crl.) 30 : 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 caused due to the injuries caused, the statement made by him would not all within Section 32 of the Indian Evidence Act. In view of our finding on this point the decision in Imperatrix v. Rudra, ILR (1900)25 Bom. 45 : 2 Bom LR 331, Abdul Gani Bandukchi v. Emperor, AIR 1943 Cal 465 : 45 Cri. LJ 71, Mallappa Shivlingappa Chanagi, Re, AIR 1962 Mys 82 : (1962)1 Cri. LJ 619 and Moti Singh v. State of U.P., AIR 1964 SC 900 : (1964)1 Cri. LJ 727 relied upon by Mr. Lalit are of no help to him. In all these cases, the court has 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 death it was 14 Criminal Appeal No.671-SB of 2002 admissible in evidence under Section 32 and the High Court was in error in holding otherwise." On the touchstone of above observations, rape being part of the circumstances which constituted transaction leading to death, dying- declaration is admissible qua offence of rape also. That being so, let it be determined from perusal of dying-declaration whether offence of rape is made out or not. So far as the allegation of rape is concerned, it was committed 8/9 months before the date of death. The accused continued to have sexual intercourse with the deceased-prosecutrix. There was a promise to marry her. The deceased-prosecutrix had