IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.03.2011 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal No.498 of 2007 Sankar .. Appellant Vs State Rep. By its Inspector of Police, Kattumannarkoil Police Station, Cuddalore District. .. Respondent (Crime No.66 of 2002) Prayer:- Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment made in S.C.No.221 of 2006 dated 29.05.2007 passed by the Sessions Judge (Mahila Court), Cuddalore. For Appellant : Mr.R.John Sathyan for G.Pughazhenthi For Respondent : Mr.V.Rajagopal for Public Prosecutor JUDGEMENT The appellant is the sole accused in S.C.No.221 of 2006 on the file of the Sessions Judge (Mahila Court), Cuddalore. He stood charged for offence under Sections 376 and 306 I.P.C. But the trial Court by judgment dated 29.05.2007, found the appellant guilty only under Section 376 I.P.C., and has sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.3,000/- and in default to undergo rigorous imprisonment for three months. The trial Court has acquitted the appellant from the charge under Section 306 I.P.C. Challenging the said conviction and sentence, the appellant is before this Court with this appeal. 2.The prosecution case in brief is as follows:- P.Ws.1, 2 and 5 are the father, mother and sister respectively of the deceased Kavitha. P.W.3 is the brother of P.W.1, P.W.4 is the wife of P.W.3 and P.W.6 is the mother of P.W.1. The deceased along with her family members was residing at Kuchipalayam Village. She was studying in the Middle School at Eiyalur in VIII Standard during the relevant period. It is alleged that 16 days prior to her death, when she was sleeping along with her sister at her home, https://hcservices.ecourts.gov.in/hcservices/ about 11.00 p.m., the accused who also hails from the same village stealthily entered into her house and despite her resistance, committed rape on her. It is further alleged that the deceased did not disclose the same to her parents out of fear. On the next day of the occurrence, the deceased was found sobbing while in school. P.Ws 12 and 13 who are the Teachers in the said school inquired her. It is alleged that the deceased told them that she was raped by the accused. Thereafter, the said occurrence came to be known to the Villagers. Because of the same, the deceased got depressed. So, on 15.02.2002 at about 6.30 a.m., while she was alone at her home, she poured kerosene and set herself ablaze. She was taken to the Raja Annamalai Hospital, Chidambaram at about 11.30 a.m., on 16.02.2002. P.W.23 who was the Doctor Incharge of the said hospital admitted her after making necessary entry in the Accident Register. Though, she was conscious, according to the Doctor, she was not able to speak except murmuring few words. But the Attenders told the Doctor that she had set fire to herself on the previous day. Exhibit P.13 is the Accident Register. Then P.W.23, gave intimation to the Police. On receipt of the said intimation, P.W.27 proceeded to the hospital and recorded the statement of the deceased in the presence of P.W.19-Doctor Muralidharan. Exhibit P.20 is the said statement. Returning to the police station, at 8.30 p.m., on 16.02.2002, he registered a case in Crime No.66 of 2002 for offence under Section 376 I.P.C. Exhibit P.21 is the F.I.R. He forwarded the F.I.R and the statement to the Court. Then he handed over the case diary to the Inspector of Police for investigation. 3.P.W.28 who was the then Inspector of Police attached to the said police Station took up the case for investigation. He proceeded to the place of occurrence on 17.02.2002 at 8..00 a.m., and prepared an observation Mahazar in the presence of witnesses. He also prepared a rough sketch. Then he recovered the burnt materials from the place of occurrence and thereafter, examined P.Ws.1 to 6 and few more other witnesses and recorded their statements. On 19.02.2002, at 7.15 p.m., he arrested the accused and sent him for medical examination. P.W.22-Doctor Ramalingam examined the accused and certified that he was capable of performing sexual intercourse with a woman. On 21.02.2002, at about 7.30 p.m., the deceased died in the hospital. On receiving the said intimation, he altered the case. He proceeded to the hospital at 10.30 p.m., and conducted inquest on the body of the deceased. He examined P.Ws.1,2.3 and few more other witnesses and recorded their statements then he forwarded the body of the deceased for an autopsy. 4.P.W.16-Doctor Pandian conducted autopsy on the body of the deceased and opined that the death was due to the burn injuries. While the deceased was alive in the hospital, on intimation from the Doctor, the learned Judicial Magistrate No.I, Chidambaram (P.W.24) proceeded to the hospital and recorded dying declaration from the deceased. At about 12.20 p.m., on 16.02.2002, he recorded the statement of the deceased after ascertaining that she was https://hcservices.ecourts.gov.in/hcservices/ conscious and she was in a fit state of mind to give a statement. P.W.19-Doctor Muralidharan certified that she was conscious and fit to give statement. Exhibit P.15 is the statement recorded by P.W.24. 5.Now coming back to the investigation, P.W.28 examined the Doctors who admitted the deceased in the hospital, the Doctor who treated the deceased in the hospital, the Doctor who declared her dead, the Doctor who certified about the age of the deceased and the Doctor who opined that the deceased had been subjected to sexual intercourse. He collected all the above medical certificates and recorded the statements of the said Doctors namely P.Ws.18,19, 20, 21, 22 and 23. The post mortem was conducted by a team of two doctors namely P.Ws.16 and 17. P.W.28 collected the post mortem certificate and recorded the statements of P.Ws.16 and 17 also. 6.During the course of investigation, he also examined the Teachers referred to in the statement of the deceased who are P.Ws.12 and 13. Then he handed over the investigation to P.W.29 who on completing investigation, laid charge sheet. 7..Based on the above materials, the trial Court framed charges for offence under Sections 306 and 376 I.P.C. The accused denied the same. Therefore, the trial Court went ahead with the trial. During the trial as many as 29 witnesses were examined and 29 documents were exhibited. When the accused was questioned under Section 313 Cr.P.C., in respect of the incriminating circumstances, he denied the same as false. However, he did not choose to examine any witness nor he did marked any documents in his favour. 8.Having considered all the above materials, the trial Court acquitted the accused from the charge under Section 306 I.P.C., and convicted him for offence under Section 376 I.P.C., as stated supra in this judgment and that is how the appellant is before this Court with this appeal. 9.I have heard the learned counsel for the appellant and the learned Government Advocate (crl.side) appearing for the State and also perused the records carefully. 10.As I have already narrated, P.Ws.1 to 6 are the family members of the deceased. But all these witnesses have not supported the case of the prosecution and therefore, they have been treated as hostile and their evidences are not useful in any manner for the prosecution to bring home the alleged guilt of the accused. The only evidence upon which the trial Court has placed reliance is the statement recorded by the learned Judicial Magistrate (P.W.24) admitting the same as dying declaration falling within the sweep of Section 32(1) of the Indian Evidence Act. The learned Judicial Magistrate has spoken to about the fact that while the said statement was recorded, the deceased was in a fit state of mind to make the statement. P.W.19-The Doctor has also certified to the https://hcservices.ecourts.gov.in/hcservices/ said effect. According to the trial Court, since the said statement relates to the circumstance leading to the cause of death, it is a dying declaration falling within Section 32(1) of the Act and therefore, the same is admissible in evidence. Based on the same, and even without any corroboration, the trial Court has convicted the appellant under Section376 I.P.C. But the trial Court has acquitted the accused from the charge under Section 306 I.P.C., holding that he was not responsible for the cause of her death. To put it otherwise, according to the trial Court, there is no proof that the accused either aided the deceased or induced her to commit suicide. Therefore, according to the trial Court, the offence under Section 306 I.P.C., has not been established against the accused. That is how the trial Court, while convicting the accused under Section 376 I.P.C., has acquitted him from the charge under Section 306 I.P.C. 11.In this appeal, the learned counsel for the appellant would submit that Exhibit P.15 the statement recorded by the learned Judicial Magistrate cannot be termed as dying declaration at all and the same is not admissible in evidence. He would submit that though the statement relates to the cause of the death, since the accused has been acquitted from the charge under Section 306 I.P.C., and since her cause of death is not now in question, the said statement will not fall within the ambit of Section 32(1) of the Act. 12.But the learned Government Advocate (crl.side) would submit that it squarely falls within Section 32(1) of the Act, and he would further submit that there are no reasons to reject the evidence of the learned Magistrate and the Doctor who have deposed to the effect that the deceased was in a fit mental state to give the said statement. The learned Government Advocate would further submit that notwithstanding the fact that the accused has been acquitted from the charge under Section 306 I.P.C., legally there can be a conviction under Section 376 I.P.C. Therefore, according to the learned Government Advocate, the trial Court was right in relying on the said dying declaration and to convict the accused under Section 376 I.P.C. 13.I have considered the rival submissions. 14.At the out set, I have to point out that dying declaration is an exception to the rule of hearsay. Though hearsay, a dying declaration has been made relevant under Section 32(1) of the Act. As per the said Section, to make it relevant, the statement made by the deceased should satisfy the following requirements:- (i)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 cases in which the cause of that person s’ death comes into question. https://hcservices.ecourts.gov.in/hcservices/ (ii)Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 15.If only the above conditions are satisfied, then the said statement will fall within the ambit of Section 32(1) of the Act, so as to be called as dying declaration to become relevant in evidence. 16.In the case on hand, of course, a perusal of the dying declaration would go to show that the deceased has stated that the accused committed rape on her and because of the same, she got depressed and it was because of the shame, she set fire to herself. There is no doubt that the death was due to the injuries sustained due to self-immolation as spoken to by the Doctor. Therefore, it is crystal-clear that the said statement relates to the circumstance as to her cause of death. Thus, the said statement satisfies the first limb of Section 32(1) of the Act. Then coming to the second limb, as we have already noticed the accused has been acquitted from the charge under Section 306 I.P.C. If once there has been acquittal for offence under Section 306 I.P.C., the question regarding the cause of her death, does not any more remain before the Court under consideration. What now remains before the Court in question is, as to whether the accused committed rape on her or not. Now it is no more in issue as to why she committed suicide. Therefore, in my considered opinion, because the accused has been acquitted of the offence under Section 306 I.P.C., the cause of her death does not remain for consideration before this Court and thus, the said statement made by the deceased does not satisfy the second limb of Section 32(1) of the Act. 17.In this regard, the learned counsel for the appellant relies on a judgment of the Hon’ble Supreme Court in Bhairon Singh v. State of Madhyapradesh (2009(13) SCC 80) wherein after making a complete survey of various judgments as well as various text books on this subject, the Hon’ble Supreme Court has held that in such a situation, Section 32(1) of the Act will not stand so as to make the statement admissible in evidence as dying declaration. In the said judgment, in paragraph No.17, the Hon’ble Supreme Court has referred to the judgment in Inderpal v. State of M.P (2001(10) SCC 736). In paragraph No.7 of the Inderpal’s case, the Hon’ble Supreme Court has held as follows:- “7.Unless the statement of a dead person would fall within the purview of Section 32(1) of the Evidence Act, 1872 there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances https://hcservices.ecourts.gov.in/hcservices/ of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A I.P.C., disjuncted from the offence under Section 306 I.P.C., the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned” (Emphasis supplied) 18.In Bhairon Singh ‘s case (cited supra) where the accused stood charged for offence under Sections 498-A, 304-B and 306 I.P.C., he was acquitted from the charges under Sections 304-B and 306 I.P.C. However, placing reliance on the statement made by the deceased, conviction was recorded by the trial Court under Section 398-A I.P.C., alone. While considering the admissibility of the said statement, in such circumstances, after following Inderpal’s case (cites supra) and various other judgments, in paragraph No.23, the Hon’ble Supreme Court has held as follows:- “23.We hold, as it must be, that there is not an iota of evidence which can be admitted in law to be used against the appellant for the offence punishable under Section 498-A I.P.C. Consequently, the appeal has to be allowed and is allowed and the conviction and sentence passed on the appellant under Section 498-A I.P.C., is set aside. The accused be released forthwith, if not required in any other case.” 19.A close reading of the above judgments of the Hon’ble Supreme Court would make it clear that unless the second limb of Section 32(1) of the Act is also satisfied the statement of the deceased will not fall within the scope of Section 32(1) of the Act so as to be admitted as relevant evidence. The view which I have expressed in respect of Exhibit P.15, in this case is fortified by the law laid down by the Hon’ble Supreme Court as referred to above. Therefore, I have no doubt that Exhibit P.15, the statement made by the deceased in this case, though satisfies the first limb of Section 32(1) of the Act, since it does not satisfy the second limb of Section 32(1) of the Act, the same does not fall within the sweep of Section 32(1) of the Act and so, the said statement is not admissible in evidence. https://hcservices.ecourts.gov.in/hcservices/ 20.As I have already stated, except Exhibit P.15, there is no other evidence against the accused in respect of the alleged rape said to have been committed by him on the deceased. Since Exhibit P.15 is not admissible in evidence and since there is no other evidence, the accused is entitled for acquittal and the judgment of the trial Court is liable to be interfered with. 21.In the result, the criminal appeal is allowed and the conviction and sentence imposed on the appellant is set aside and he is acquitted. Fine amount, if any, paid by the appellant who is now acquitted shall be refunded to him. Bail bond if any shall stand discharged. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jbm To 1.The Sessions Judge (Mahila Court), Cuddalore. 2.The Inspector of Police, Kattumannarkoil Police Station, Cuddalore District. 3.The Public Prosecutor, High Court, Madras. 4.The District Collector, Cuddalore 5.The Director General of Police, Chennai. 6.The Superintendent, Central Prison, Cuddalore +1 CC to Mr.G.Pugazhenthi, Advocate, S.R.No.21896 Crl.A.No.498 of 2007 BK(CO) SRA(9/6/2011) https://hcservices.ecourts.gov.in/hcservices/