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PETITIONER: SUDHAKAR & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       17/07/2000

BENCH: G.B.  Pattanaik, J.  R.P.  Sethi, J.  & Shivaraj V.  Patil, J

JUDGMENT:

SETHI, J. L....I..........T.......T.......T.......T.......T.......T..J

    Ms.Rakhi,  a  young girl of about 20 years of  age  was working  as  teacher  in  Zila Parishad  Primary  School  at Banegaon,  Maharashtra at a monthly salary of Rs.300/-.  The appellant  No.1 was the Headmaster and appellant No.2 was  a co-teacher  in the same school.  On one unfortunate  morning of  Saturday,  the  9th of July, 1994 Ms.Rakhi went  to  her school  in the morning as usual.  When the school was closed at  about  12o Clock in the afternoon and all  students  had gone  back  to their homes, the appellants came in the  room where  Rakhi was sitting and closed the door and windows  of the  room.  She was forcibly subjected to sexual intercourse by  the  appellants and her wailing cries did not  have  any effect  upon  them.  She was thus subjected to gang-rape  by the  appellants.   After the incident Ms.Rakhi went  to  her house  and  narrated  the incident to her  mother  Padmabai, brother  Prakash and uncle Balasaheb @ Balaji.  The incident was  also narrated to the father of the prosecutrix who came back  home after two-three days.  The matter was reported to the  police  on  20th  July, 1994.  PW15  API  Laxman  Wadje incharge police station Pathri recorded the statement of the prosecutrix  and  on that basis Crime Report  No.100/94  was registered.   Petticoat  of  the prosecutrix and  the  metal bangles which she was wearing at the time of occurrence were seized.   After  preparation  of   Panchanama,  the   seized articles  were sent to the Chemical Analyser for his report. On  6.8.1994  statements  of two  child  witnesses,  namely, Dnyaeshwar  Mujmul and Dnyaneshwar Adhav were recorded under Section  164  of  the  Criminal Procedure  Code  before  the Special  Executive  Magistrate.   Ms.Rakshi  was  taken  for medical  examination  to Dr.Gauri Rathod, PW1  who  reported that   the   prosecutrix  had   been  subjected  to   sexual intercourse  in  the  recent  past.  On  completion  of  the investigation  the charge- sheet was filed against both  the appellants in the court of Judicial Magistrate, First Class, Pathri, who committed them to the Court of Sessions Judge to stand  their  trial for the offences under Section 376  read with  Section 34 of the Indian Penal Code.  After the matter was reported to the police, the prosecutrix was sent to stay with  her  married sister Saraswatibai PW14 as it was  found that  she had lost her equilibrium of mind and was  mentally upset.   Having failed to withstand the humiliation to which she  was  subjected to on account of rape committed  by  the appellants,  Ms.Rakhi is stated to have committed suicide on

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22nd December, 1994 at about 10.30 p.m.  at the house of her sister Saraswatibai.  Autopsy was conducted on the same date and  the cause of death was reported as poisoning.  In  view of  the  subsequent  development   additional  charge  under Section  306 read with Section 34 IPC was added against  the appellants on 8.5.1995.  Both the accused pleaded not guilty and  claimed  to  be  tried.  The  prosecution  examined  18 witnesses.   However, at the trial except PW1 Gauri  Rathod, PW2  Padmabai,  PW3  Gangadhar, PW12  Dr.Anandgaonkar,  PW13 Sanjay  Deshpande, PW14 Saraswatibai and PW15 ASI Wadje, the other  witnesses  turned  hostile.  The Trial Judge  of  the Sessions  Court, however, vide his judgment dated  12.7.1995 in  Sessions  Case No.135/94 convicted the appellants  under Section  376(2)(g)  read  with  Section 34 of  the  IPC  and sentenced  each one of them to suffer rigorous  imprisonment of  seven  years  and  to pay fine of  Rs.1,000/-  each,  in default  of payment of fine, the appellants were directed to suffer  further rigorous imprisonment for three months.  The appellants  were  also  convicted   and  sentenced  for  the offences  punishable under Section 306 read with Section  34 IPC  and  sentenced to undergo rigorous imprisonment  for  a period of three years and to pay a fine of Rs.500/- each, in default  of  payment of fine, they were to  suffer  rigorous imprisonment  for one month more.  Both these sentences were directed  to run concurrently.  Criminal appeal filed by the appellants  was  dismissed vide the order impugned  in  this appeal.  Not satisfied with the findings of the Courts below the appellants have preferred the present appeal with prayer for   setting  aside  their   conviction  and  sentence  and acquitting  them of the charges.  Learned counsel  appearing for  the appellants has submitted that though apparently the nature  of  the  crime appears to be heinous,  yet,  in  the circumstances of the case the appellants cannot be convicted and  sentenced  as  according  to him  the  prosecution  has miserably  failed to place any legal evidence against  them. It  is contended that the evidence relied upon by the courts below  is  inadmissible  in evidence.   The  prosecution  is stated  to  have failed to explain the delay in lodging  the First  Information  Report  and   getting  the   prosecutrix medically  examined.  It is submitted that in the absence of exact cause of death of Ms.Rakhi the appellants could not be held guilty for the commission of the crime punishable under Section  306  IPC.  It is not disputed that the  prosecutrix reported  the  matter at the police station Pathri  on  20th July,  1994  admittedly after about 11 days from the day  of occurrence.   It is also not disputed that the statement  of the  prosecutrix  could not be recorded before any  Judicial Magistrate  or  the  Criminal Court.  It  is,  however,  not denied that her statement Exhibit 59 was recorded by PW15 on 20th July, 1994 in which she had narrated the whole incident and  explained the delay for not lodging the report earlier. The  courts  below have relied upon the aforesaid  statement treating  as dying declaration being admissible in  evidence under  Section 32 of the Evidence Act.  Admissibility of the statement  of  Ms.Rakhi  is  of  paramount  importance   for deciding the present appeal.  If the statement is held to be admissible  in  evidence,  being the  dying  declaration  of Ms.Rakhi,  the appellants may not escape of their  liability to   conviction   and  sentence  as   there   exists   other corroborative  evidence  against  them.    However,  if  the aforesaid  report/statement  is not admissible in  evidence, the  appellants  may be entitled to all consequential  legal benefits.  In that event the offence of rape may not be held to  have been proved against them and if rape is not proved, the appellants cannot be held responsible for the commission

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of  the offence under Section 306 of the IPC.  Section 32 of the  Evidence  Act  is an exception to the general  rule  of exclusion  of the hearsy evidence.  Statement of a  witness, written or verbal, of relevant facts made by a person who is dead  or  cannot  be found or who has  become  incapable  of giving  evidence or whose attendance cannot procured without an  amount  of delay or expense, are deemed  relevant  facts under  the circumstances specified in Sub- sections 1 to  8. Sub-section  (1) of Section 32 with which we are  concerned, provides  that when the statement is made by a person as  to the  cause  of his death or as to any circumstances  of  the transaction  which  resulted  in his death,  being  relevant fact,  is  admissible  in  evidence.   Such  statements  are commonly  known as dying declarations.  Such statements  are admitted in evidence on the principle of necessity.  In case of  homicidal  deaths,  statements made by the  deceased  is admissible  only  to  the extent of proving  the  cause  and circumstances  of  his death.  To attract the provisions  of Section  32  for  the  purposes   of  admissibility  of  the statement  of a deceased, it has to be proved that:  (a) The statement  sought to be admitted was made by a person who is dead  or  who cannot be found or whose attendance cannot  be procured  without  an  amount  of delay and  expense  or  is incapable  of  giving evidence.  (b) Such  statement  should have  been made under any of the circumstances specified  in sub-sections  1 to 8 of Section 32 of the Evidence Act.   As distinguished  from  the  English Law Section  32  does  not require  that  such  a statement should have  been  made  in expectation  of death.  Statement of the victim who is  dead is  admissible in so far as it refers to cause of his  death or as to any circumstances of the transaction which resulted in  his death.  The words "as to any of the circumstances of the  transaction  which resulted in his death" appearing  in Section  32 must have some proximate relation to the  actual occurrence.   In  other words the statement of the  deceased relating  to the cause of death or the circumstances of  the transaction which resulted in his death must be sufficiently or  closely  connected  with the  actual  transaction.   Due weight  is  required  to  be given to  a  dying  declaration keeping  in view the legal maxim "Nemo moriturus praesumitur mentire"  i.e.  a man will not meet his Maker with a lie  in his  mouth.  To make such statement as substantive evidence, the  person  or the agency relying upon it is under a  legal obligation to prove the making of a statement as a fact.  If it  is in writing, the scribe must be produced in the  Court and  if  it is verbal, it should be proved by examining  the person   who  heard  the   deceased  making  the  statement. However,   in  cases  where   the  original  recorded  dying declaration  is proved to have been lost and not  available, the  prosecution  is  entitled to  give  secondary  evidence thereof.   In  this  case the statement of  the  prosecutrix Exhibit  P-59 does not directly state any fact regarding the cause  of  her death.  At the most it could be stretched  to say   referring  to  "circumstances   of  the   transaction" resulting  in  her death.  The phrase "circumstances of  the transaction"  were  considered  and   explained  in   Pakala Narayana  Swami  v.   Emperor  [AIR   1939  PC  47]:    "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. But  statements made by the deceased that he was  proceeding to  the  spot  where  he was in fact killed, or  as  to  his reasons  for  so proceeding, or that he was going to meet  a particular  persons,  or  that he had been invited  by  such

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person  to  meet him would each of them be circumstances  of the  transaction,  and  would be so whether the  person  was unknown,  or  was not the person accused.  Such a  statement might   indeed  be  exculpatory  of  the   person   accused. "Circumstances of the transaction" is a phrase no doubt that coveys  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:  though, as for instance,  in  a  case of prolonged poisoning  they  may  be related to dates at a considerable distance from the date of the  actual  fatal  dose.   It will be  observed  that  "the circumstances"  are of the transaction which resulted in the death  of  the  declarant.  It is not necessary  that  there should  be a known transaction other than that the death  of the  declarant has ultimately been caused, for the condition of  the admissibility of the evidence is that "the cause  of (the declarant’s) death comes into question".

    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],  Dharambir Singh vs.  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 1966, decided on July 29, 1966],  Mahnohar Lal  v.   State of Punjab[1981 Cri.LJ 1373 (P&H)] and  other cases,  held:   "We fully agree with the above  observations 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 proximity 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  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 circumstances terminating in suicide’.

    Similarly,  in Onkar v.  State of Madhya Pradesh  [1974

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Cri.LJ  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 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 Court 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, do 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  circumstances  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  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

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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  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 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 distance of time is not spread  over  more than  3-4  months  the  statement may  be  admissible  under Section 32.

    (3) The second part of clause (1) of Section 32 is year 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  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 statement irrelevant."

    In Ratan Singh vs.  State of Himachal Pradesh [1997 (4) SCC  161] this Court held that the expression "circumstances of  transaction which resulted in his death" mean that there

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need   not  necessarily  be  a  direct  nexus  between   the circumstances  and  death.   Even distant  circumstance  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 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."

    In  Najjam  Faraghi @ Nijjam Faruqui v.  State of  West Bengal  [1998 (2) SCC 45] this Court held that the death  of declarant  long  after making 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 (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  fall  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 465:47 CWN 332:45  Cril.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 had 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 admissible in evidence under Section 32 and the High Court was in error in holding otherwise."

    In the light of the legal position noticed hereinabove, let us examine the statement of deceased prosecutrix Exhibit@@        JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ P-59  to decide whether such a statement can be admitted  in@@ JJJJJJJJJJJJJJJ evidence,  relied  upon and made a basis for conviction  and sentence  of  the  accused.  In that  statement,  admittedly recorded  after  11 days of the day of occurrence,  she  had stated:  "I am serving in Balwade of Banegaon from 2.2.92 as a  teacher.  The name of my mother is Padmabai and my father is Gangadharrao.  I have one brother namely Prakash and four sisters.  I am living with my brother Prakash at Banegon and

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my  father and mother are living at Mazalgaon and my  mother had come to Banegaon before 15 days.

    In Banegaon the classes of Zila Parishad Primary School are  held  up to 4th Class from the Balwadi.  There are  two teachers  in our school namely (1) Sudhakar Gndapin  Bhujbal (2)  Bhaskar  Babwrao  Kedre and I am working as  a  Balwadi Teacher  getting  Rs.300/-  per month.  The  timing  of  our school  is  from  9.00  to 16.00’ O Clock  but  the  Balwade classes work from 9.00 to 12.00’ O clock.  The headmaster of our school is Sudhakar Bhujbal.

    Eversince I have joined my service Sudhakar Bhujbal and Bhaskar  Kedre are teasing me.  Sudhakar Bhujbal always says that  your  sari  looks very nice will you come to  see  the picture  with me?  That by asking this they try to talk with me.  Before six months Sudhakar Bhujbal had touched my cheek and  waist.  I was afraid at that time.  But due to the fear of  defamation  I  did not tell anything to any  person  and because of it they had been adoring to proceed.

    On  1.7.94 on Saturday 8/9’O clock in the morning I had gone to my school in a routine way Bhaskar Kedre and Sudhkar Bhujbal  had also come to the school.  The school was closed at  12’O clock in theafternoon.  All the boys and girls  had went  back to their home.  That Bhaskar Kedre had closed the windows  of  the school and Sudhakar Bhujbal had closed  the door and came near to me.  Then he had removed his pant.  At that  time he was wearing ready made underwear.   Thereafter Sudhakar  Bhujbal  had caught hold of me and put me  on  the ground.   And at that time Bhaskar Kedre had hold my  hands. I  was crying for my mother and trying to get up.  But  they did  not  allow me to get up.  Sudhakar Bhujbal had  removed his  under  pant and had lifted up my sari and petticot  and pressed my breast.  After that he has entered his male organ into  my  vagina  and  had  committed  sexual  inter  course forcibly  with me.  After that Sudhakar Bhujbal had hold  my hands  and Bhaskar Kedre had removed his pant.  At that time he  was earing reddish cotton underwear then he had  removed his  underwear  and caught my both breasts and  entered  his male  organ  into my vagina and has committed  sexual  inter course with me forcibly.

    It  was 12.30 in the afternoon at that time.  Then both of  them had worn their pants and went I was crying and went to my house and informed this incident to my mother Padmabai brother  Prakash  and  uncle Balaji.  After  this  they  had called  my  father from Mazalgaon and narrated to  him  this incident.  We had not filed any complaint due to the fear of defamation  in  the  society.  Bhaskar  Kedre  and  Sudhakar Bhujbal  both of them have done sexual inter course with  me on  9.7.94  in the after noon at 12.30.   Therefore  inquiry should be made against them."

    There  is  no  legal  evidence   on  record  that   the prosecutrix at or about the time of making the statement had@@                   JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ disclosed  her  mind  for committing  suicide  allegedly  on@@ JJJJJJJJJJJJJJJJJJJJJJJJJ account  of the humiliation to which she was subjected to on account  of  rape committed on her person.  The  prosecution evidence  does  not even disclose the cause of death of  the deceased.   The circumstances stated in Exhibit P-59 do  not suggest  that a person making such a statement would,  under

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the  normal  circumstances, commit suicide after  more  than five  and a half months.  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 21.12.1994.  The conviction of the persons   accused   of  offences   cannot  be   based   upon conjunctions  and suspicions.  Statement Exhibit P-59 if not treated  as  a  dying declaration, there is  no  cogent  and reliable  evidence  which can connect the accused  with  the commission  of the crime.  In that event the other arguments advanced  on  behalf  of the appellants  assume  importance. Other  circumstances  such  as  delay in  lodging  the  FIR, medical  examination of the prosecutrix, the non examination of  material  witnesses  and turning  hostile  of  witnesses including  the  Dnyaeshwar Mujmul and Dnyaneshwar Adhav  are also  required to be taken note of.  It has also to be  kept in  mind  that  after the incident on 9th  July,  1994,  the prosecutrix is shown to have attended the school on 10th and 11th  July, 1994 as well.  Her mother in cross-  examination also  stated  that Ms.Rakhi had told her about the  incident only  on 12th July, 1994 at about 5.00 p.m.  PW3, the father of  the  prosecutrix deposed in the court that:  "Rakhi  did not  tell me on 17th, 18th, 19th July, 1994 that she  wanted to  file  a  complaint.  I did not ask  Rakhi  whatever  she wanted  to  file a criminal complaint.  I did  not  disclose before  the police on 20.7.1994 that Rakhi told me that  she wanted to file criminal complaint."

We are,  therefore,  of  the opinion that  prosecution  has failed   to  prove,  beyond   reasonable  doubt,  that   the appellants  had  committed forcible sexual intercourse  with Ms.Rakhi  on 9.7.1994 under the circumstances as narrated in Exhibit  P-59  and  relied upon by the  courts  below.   The appellants  cannot  be  convicted and  sentenced  merely  on suspicion.   In the absence of the charge being proved under Section  376  IPC, the prosecution could not have asked  for conviction of the appellants under Section 306 of the IPC as according  to  the prosecution it was the commission of  the rape  on  her  person  which  resulted  in  the  suicide  of Ms.Rakhi,  allegedly on the abetment of the appellants.   If the  cause for committing suicide is not legally proved, the appellants  cannot  be held responsible for the abetment  of the  ultimate offence of suicide.  We are, therefore, of the opinion that as the prosecution has failed to prove its case against the appellants beyond all reasonable doubt, they are entitled  to acquittal.  Before parting with the judgment we would,  however,  observe  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.   The  appeal is, therefore, allowed and  the judgment  of the High Court is set aside.  The appellants be released forthwith unless required in some other case.