Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 897 (MP)

Bhelka v. State of M. P.

2000-08-25

S.P.KHARE

body2000
Appellants Bhelka and Ashok Kumar have been convicted under Section 376(2)(g) IPC and sentenced to rigorous imprisonment for ten years and to a fine of Rs. 1.000/-. Deceased Leelabai. aged about 50 years, was mother of Vimla Soni (PW 7) and was living with her in Gandhi Nagar Ward, Jagdalpur. On 10.8.1996 at about 7 p.m. Leelabai left her house to bring medicine for her daughter. Prosecution case is that accused Bhelka took Leelabai from her house in his rickshaw. He was residing near the house of the deceased. Leelabai did not return to her house in the night. Next day in the morning Vimla Soni (PW 7) learnt from another woman that her mother is lying in an unconscious condition in Ganga Munda market. She went there and found her mother. She brought her to her house. She continued to remain unconscious upto 15.8.1996. She gained consciousness at 2 a.m. on 15.8.1996 in the house of her daughter. Vimla Soni (PW 7) then asked her what has happened to her. She told her daughter slowly that accused Bhelka took her in his rickshaw to Dongaghat where accused Ashok Sharma was already there. She also disclosed that both the accused persons consumed liquor and made her also to drink and thereafter they had sexual intercourse with her one by one. The deceased further narrated that the accused persons put a piece of cloth in her mouth when she tried to cry. She became unconscious and regained her consciousness in the house of her daughter. She was admitted in the hospital in the same night and she died before the dawn. Dr. Heena Ahmed (PW 10) conducted the autopsy on the body of Leelabai on 16.8.1996 but she could not give any opinion as to the cause of her death. She had also sealde her clothes and given to a constable. Her report is Ex. P-4. During the course of investigation the bundle containing the clothes of the deceased was seized by B.R. Sinha (PW 6). Sub-Inspector of Police as per seizure memo Ex. P-6. These clothes were sent to the Forensic Science Laboratory. Raipur. Seminal stain., and human spermatozoa were found on the sari article 'B’. The appellant were charged for the offences punishable under Sections 376(2)(b) and 302 Indian Penal Code by the trial Court. Sub-Inspector of Police as per seizure memo Ex. P-6. These clothes were sent to the Forensic Science Laboratory. Raipur. Seminal stain., and human spermatozoa were found on the sari article 'B’. The appellant were charged for the offences punishable under Sections 376(2)(b) and 302 Indian Penal Code by the trial Court. After appreciation of the evidence on record the trial Court acquitted the appellants for the offence punishable under Section 302 IPC on the ground that they cannot be held liable for causing the death of Leelabai as there was no definite evidence on that point. The trial Court found the appellants guilty for the offence of committing gang rape on deceased Leelabai which is punishable under Section 376(2)(g) IPC. The trial Court mainly relied upon the oral dying declaration made by the deceased to her daughter Vimla Soni (PW 7) on 15.8.1996. In this appeal it has been argued that the said dying declaration was never made by Leelabai and it is the product of imagination of her daughter Vimla Soni (PW 7). That is not corroborated by any other evidence and. therefore. it cannot form the basis of conviction. It is also argued that the said dying declaration is not admissible in evidence as it was not a statement "as to cause of the death" or "as to any of the circumstances of the transaction" which resulted in her death. The evidence on record has been carefully scrutinised by this Court. The prosecution case mainly depends upon the testimony of Vimla Soni (PW 7). She has deposed that accused Bhelka took her mother in his rickshaw as she wanted to buy medicine. Her mother did not return in the night. Next morning she came to know that her mother is lying unconscious. In the market. She went there She found her mother In an unconscious condition. She brought her to her house. She remained unconscious for 2-3 days. She gained consciousness on the fourth day and then she disclosed that accused Bhelka and Ashok Sharma have committed rape on her one by one. She also told her that these two persons took her to a hotel and gave her egg to eat and liquor to drink. She was admitted in the hospital and she died early morning. She gained consciousness on the fourth day and then she disclosed that accused Bhelka and Ashok Sharma have committed rape on her one by one. She also told her that these two persons took her to a hotel and gave her egg to eat and liquor to drink. She was admitted in the hospital and she died early morning. in cross-examination she has stated that accused Ashok Sharma had kept her mother for sometime as his wife and then he had deserted her. She has further stated that her mother used to consume liquor and she was In the habit of not returning to her house in the night when she used to drink heavily. There was smell from her mouth when she brought her to her house. Vimla Soni (PW 7) has admitted that she was treating appellant Ashok Sharma as her enemy when he left her mother. It is found from the evidence of Vimla Semi (PW 7) that she does not say that her mother had disclosed to her that the accused persons put a piece of cloth in her mouth after committing rape on her and then she became unconscious. Radhabai (PW 8) was also cited on the point that the deceased had made a dying declaration before her also. But she has not supported the prosecution case. She has been declared hostile. Nirbhay Singh (PW 4) has also stated that the deceased did not disclose anything to him. He has also been declared hostile. The testimony of Vimla Soni (PW 7) is not of unimpeachable character. It is not unlikely that she is implicating appellant Ashok Sharma in this crime because he had deserted her mother after keeping her for sometime as his wife and she is suspecting appellant Bhelka because he had taken her mother in his rickshaw. Admittedly her mother Leelabai remained unconscious for three days after the incident and it is doubtful whether on the fourth day she was in a position to talk to her and disclose to her that she was subjected to rape by accused Bhelka and Ashok Sharma. This part of the testimony of Vimla Soni (PW 7) does not find corroboration from the statement of any other witness. Vimla Soni (PW 7) did not lodge any report at the police station after it was told by her mother that the accused persons had subjected her to rape. This part of the testimony of Vimla Soni (PW 7) does not find corroboration from the statement of any other witness. Vimla Soni (PW 7) did not lodge any report at the police station after it was told by her mother that the accused persons had subjected her to rape. It is very hazardous to place reliance on the uncorroborated testimony of Vimla Soni (PW 7). As stated above her mother was in the habit of drinking and not returning to her house in the night. That shows her conduct and character. In such a situation it is difficult to rely upon her evidence. It is not definite that the deceased had made any dying declaration to her daughter. It is further doubtful that it was true. The oral dying declaration must he of such a nature on which full reliance can be placed by the Court. That test is not satisfied in the present case. As mentioned above the appellants have been acquitted of the charge under Section. 302 IPC by the trial Court. It has been held that the appellants are not responsible for causing the death of Leelabai. The acquittal of the appellants on this count has not been challenged by the State. The alleged rape is not shown to be the cause of the death or a circumstance of the transaction which resulted in death of the deceased. Therefore. the alleged dying declaration made by the deceased to her daughter is not admissible in evidence. There is a recent decision of the Supreme Court in Sudhakar v. State of Maharashtra. AIR 2000 SCW 2630 . In that case the prosecutrix made a statement to the police that she was raped by two persons. She died after five months of the making of that statement. The question arose whether that statement could be treated as her dying declaration. It was held by the Supreme Court that the said statement is not admissible as a dying declaration as it was not in series of circumstances of the transaction which resulted in death of the deceased. Therefore. in the present case also the alleged statement of the deceased to her daughter regarding rape committed by the appellants is not admissible in evidence. The appeal is allowed. The conviction and sentence are set aside and the appellants are acquitted of the charge under Section 376(2)(g) IPC.