Rape case: S.C. sets aside Bombay H.C. verdict

NEW DELHI, JULY. 20. A three-member Bench of the Supreme Court has set aside a judgment of the Bombay High Court which affirmed the conviction and sentence of 7 years of rigorous imprisonment (RI) imposed, first by a trial court and later, by the Bombay High Court on each of the two accused - the headmaster and a teacher of a primary school in Maharasthra (appellants) on charge of `rape' of a woman teacher (victim) under section 376 of the Indian Penal Code (IPC) read with section 34 of IPC.

Delivering the judgment of the Bench, Mr. Justice R. P. Sethi, on scrutiny of the evidence in the case, held that the ``prosecution had failed to prove, beyond reasonable doubt, that the appellants had committed forcible sexual intercourse'' with victim on July 9, 1994 under the circumstances as narrated in Exhibit P-59 (statement made to the police by the victim on July 20, 1994) and relied upon by the courts below.

``The appellants cannot be convicted and sentenced merely on suspicions,'' the Bench said.

In view of the death of the victim due to suicide on December 22, 1994 and subsequent framing of additional charge of abetment to the commission of offence of suicide against the appellants under section 306 read with section 34 IPC, first, the trial court and later, the High Court, also convicted and sentenced the appellants to undergo RI for 3 years and to pay a fine of Rs.500 each. Both the sentences were directed to run concurrently.

An important legal question that arose for consideration before the Bench was whether the statement made by the victim (11 days after the incident) to the police (Exhibit P- 59) could be admitted in evidence (as a `dying declaration' under section 32 of Evidence Act), relied upon and made a basis for conviction and sentence of the accused.

The Bench which included Mr. Justice G. B. Pattanaik and Mr. Justice Shivraj V. Patel, in allowing an appeal from the accused, noted that the statement of the prosecutrix (victim) ``does not directly state any fact regarding the cause of her death'' (which occurred due to poisoning after five months).

``There is no legal evidence on record that the prosecutrix at or about the time of making the statement (to the police on July 20, 1994) had disclosed her mind for committing suicide allegedly on account of the humiliation to which she was subjected to on account of rape committed on her person``, and ''the prosecution evidence does not even disclose the cause of death of the deceased,'' the Bench said.

``The circumstances stated in Exhibit P-59 do not suggest that a person making such a statement would, under the normal circumstances, commit suicide after more than five and a half months,'' the Bench observed.

``The High Court was, therefore, not justified in relying upon Exhibit P-59 as a `dying declaration' holding it that the said statement was ``in series of circumstances of the transaction which resulted in the death of the deceased on December 21, 1994,'' the Bench ruled.

The Bench, however, observed that in the present case the investigating as well as the prosecution agency ``has not acted promptly and diligently as was expected under the circumstances.''