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Rajasthan High Court · body

2001 DIGILAW 1831 (RAJ)

Shyam Singh Hada v. State

2001-11-22

ARUN MADAN, K.S.RATHORE

body2001
Honble MADAN, J.–These two criminal appeals have been preferred by Shyam Singh Hada (No. 668/99) and Hariom @ Pappu (No. 749/99) against a judgment dated 11.10.99 passed by Additional Sessions Judge No. 2, Bundi in Sess. Case No. 6/98 convicting & sentencing each of the appellants for offences as under :- u/S. 376(2)(g) IPC Life Imprisonment with a fine of Rs. 5,000/- (in default, 1 years further imprisonment) u/S. 302, IPC -do- (2). Both the sentences are to run concurrently. (3). The story launching prosecution against the appellant is narrated in brief thus: Nandlal (PW-1) lodged a report (Ex.P1) on 18.9.1996 alleging therein that his wife, Chanda (deceased) was working as peon in Surya Niketan School where she was called by Shyamsingh Hada (appellant) (owner of the School) on Sunday 8.9.96 for preparation of meals for his guests and therefore she went to the school at about 12 noon but she did not return back till night then at about 8 P.M. he sent his son Purshottam & Sobhag to call back Chanda but upon their return they gave out that Shyamsingh slapped Purshottam & scolded to go back, so he also sent his elder son Dinesh who came back saying that the school was locked and whereafter at about 10 O clock in the night Shyamsingh and his companions left Chanda outside his house and at that time her condition was worst; her clothes were torn, her cheeks and face besides both the elbows were having signs of abrasions and injuries of nails scratching; her upper lip was duly cut with bleeding and when he asked her then she felt ashamed to give out but then she fell down and when he asked her to accompany for the hospital, she refused being night hours. Next day in the morning when again he asked Chanda to say as to what happened on Sunday, then she narrated about rape having been committed upon her by Shyamsingh, Purshottam Paanwala, & Pappu Lightwala in a brutal manner and further gave threats of dire consequences to kill him and her family members if disclosed as to the rape and therefore, they got frightened and went in a jeep to her brothers house in Lakheri alongwith Kanwarlal and Dinesh besides Laxmi, Rupa, Geeta, Satyanarain. In Lakheri at the house of his brother in law (Kailash), the condition of Chanda had deteriorated because of her being frightened like a mad woman and ultimately she died in the night of Wednesday (11.9.96) and he could not lodge report due to threats and cremated her body in Lakheri whereafter he had to go to Haridwar to perform last rituals. It has also been alleged in the report that his wife was brutally raped by aforenamed persons with severe beating resulting into her death. Upon this report, FIR No. 349/96 was chalked out registering crime at PS Kotwali Bundi for offences punishable under Secs. 302 and 376 read with 5.34 IPC against the appellants and one Purshottam Panwala. After usual investigation, challan was filed and upon committal, the case was tried by the learned Additional Sessions Judge Bundi who in turn charged the appellants of the offences punishable under Secs. 376(2)(g), and 302 IPC, to which they denied and claimed trial. The prosecution examined as many as 33 witnesses in support of its case and got 33 documents exhibited. The appellants were examined under Sec. 313 Cr.P.C. and in defence they produced Dr. O.P. Sharma (DW 1) besides getting 7 documents exhibited. After hearing the parties, the learned trial Court convicted & sentenced each of the appellants as indicated above. Hence this appeal. (4). We have heard the learned counsel for the parties and perused the relevant record with reference to the consideration of rival contentions. (5). Starting with first attack for assailing the impugned conviction for offence of gang rape and murder, Shri S.R. Bajwa contended that the very threshold the prosecution should be criticised by throwing over the board for the delayed lodgment of the first information report so also for want of medical evidence to prove the factum of gang rape and murder, obviously because admittedly no autopsy was conducted on the body of the deceased prosecutrix as FIR itself was lodged after death and cremation of the prosecutrix, not only without her post mortem examination but also without prior information to the police by her husband (informant). Hence according to Shri Bajwa, it is not a case of a direct evidence of rape or sexual assault to the prosecutrix/deceased but after arguing at some length he conceded this case totally based on circumstantial evidence only. (6). Hence according to Shri Bajwa, it is not a case of a direct evidence of rape or sexual assault to the prosecutrix/deceased but after arguing at some length he conceded this case totally based on circumstantial evidence only. (6). FIR was lodged on 18.9.96 for the alleged gang rape and sexual assault committed on 8.9.96 by the accused appellants and other accused (who are absconding and not apprehended as yet) resulting into death of prosecutrix (deceased) on 13.9.96, inasmuch as no doubt neither police was informed nor post mortem was got conducted but as soon as the prosecutrix died on 13.9.96, she was cremated then and there. Thus, there was admittedly a delayed FIR. As expounded in Ravinder Kumar vs. State of Punjab (1), law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Twin advantage of a prompt lodgment of FIR in favour of the prosecution is that firstly it gives immediate initiation of investigation with no lapse of time and secondly it expels chances of concoction of a false version, inasmuch as barring these twin point of lodging prompt FIR, the demerits of delayed FIR does not operate as fatal to any prosecution case, rather even promptly lodged FIR is also not an unreserved guarantee for the genuineness of version given out therein. Only caution which the court has to look at the reason why there was such a delay as there may be variety of genuine causes for FIR lodgment to get delayed. The Apex Court has catalogued some of causes as follows:- ``Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. ``Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third which is a quite common hearing is, that this kith and kin of deceased common take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. The third which is a quite common hearing is, that this kith and kin of deceased common take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. ``Yet another cause is, the persons who are supported to give such information themselves could be so physically impaired that the police had to reach there on getting some nebulous information about the incident. (7). Similarly as propounded in State of Rajasthan vs. N.K. (2), a more delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case over the board. If the delay is explained as to the satisfaction of the court, it cannot be counted against the prosecution. Further, in sexual offences, delay in the lodging of the FIR can be due to various reasons particularly the reluctance of the prosecutrix or her family members to go to the police for complaining as to the incident concerning her reputation and the honour of her family because Indian Society being what is, the sufferer of such a crime consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. (8). Thus, having benefited by the enlightenments derived of the propositions of law in State of Rajasthan vs. Narain (3), State of Punjab vs. Gurmeet Singh (4) and Karnel Singh vs. State of MP (5), we must look at the reason of the delay in FIR brought in the evidence on record. (8). Thus, having benefited by the enlightenments derived of the propositions of law in State of Rajasthan vs. Narain (3), State of Punjab vs. Gurmeet Singh (4) and Karnel Singh vs. State of MP (5), we must look at the reason of the delay in FIR brought in the evidence on record. As per FIR, when, the victim of rape (Chanda) was got left by Shyam Singh & his colleagues at about 10 P.M. in the night in front of her house, at that time informant (husband of rape victim) found his wife Chanda in a very ghastly state of health, her clothes were being torn and on her cheeks and chin besides elbows to the hands and face upto neck, he found abrasions (nail scratches) so also other injuries like cut to the lips with bleeding and when she was asked as to such a ghasty health, she was hesitant to narrate rather was scared and reluctant even to go to the hospital when asked. As per FIR, on Monday- i.e. next day, when after giving a cool thought the informant asked his wife, she narrated tale of woe saying that Shyam Singh, Purshottam Panwala, Pappu Lightwala and their colleague subjected her to sexual intercourse forcibly so also to severe beatings and then left her back to home in the last night by threatening of dire consequences that if disclosed as to the rape, then she alongwith her children would be liquidated, whereupon she told him to take her to their brothers place in village Lakheri, so she was taken in a Jeep to Lakheri where also her condition stood deteriorated and she started doing acts like a mad woman and she got much scared of the incident and ultimately she died on Wednesday night. In FIR he specifically narrated that he could not lodge report earlier as he got frightened and his wife was cremated there, whereafter he went to Haridwar to perform last rituals for three days and upon return to Lakheri on Monday when he was called by Lakheri Police to know about cause of death of his wife but he could not state to them. (9). (9). Narrating all the contents of the FIR informant (PW 1) Nandlal in his chief examination deposed that on Tuesday at about 3 p.m. after noon, Lakheri police brought him to Bundi where he was taken to the Superintendent of Police, to whom he narrated the story of gang rape with his wife by the accused persons, then he got written report and presented it to Kotwali Police of Bundi. Nandlal in his court statement (PW.1) further deposed that his wife did not give out as to her worst health condition upon return from school as she was scared of threats to kill her children having been given by the accused people, so report was neither immediately lodged nor she was taken to the hospital; that next day at about 7 a.m. Shyam Sing had also come to his house and after sometime of his departure, Suresh one of his schools teachers, had also came; that when she woke up upon asking she gave out of forcible sexual intercourse by the 4-5 accused persons including Shyam Singh to whom she was very well known. He further deposed that he took his wife (deceased) to Lakheri as they were scared of threats, and the second day Pappu had also come at Lakheri as he (Pappu) was sent by Shyam Singh and whereupon his return from Haridwar after performing last rituals on death of his wife, on Sunday they were called by Lakheri Police next day on Monday. Even as per defence. Shyam Singh (accused) was Municipal Councillor in Bundi. All these facts show that family members were being chased after incident of sexual assault to the deceased by the accused persons sometime through co-accused or subordinate teachers or Lakheri police officials and the informant (husband) was got scared by the incident inasmuch as by reason of sexual intercourse forcibly upon a poor and weaker lady not only by one man but also by 4-5 able-bodied and powerful men in the society bustling with energy and determined to fulfill their sexual lust, she ultimately succumbed and fell victim to the force employed by the accused and thereby her death put the husband busy in performing last ritual at Haridwar and giving bereavement of her death to her husband. Naturally as he lost his wife, for a grief stricken man to take some time to reach some level of placidity for giving report to his wifes last journey. The victim of rape (deceased) and her husband are illiterate rustic villagers besides belonging to lower caste in the community so also poor employed in low profile profession of tea vendor, whereas the accused persons one of whom was Municipal Councillor and Proprietor of the School, were powerful in the society and their political connections and rapport with police administration could easily be inferred. Thus firstly, there was reluctance of the prosecutrix and her family members to go to the police and complain about the incident concerning her reputation and chastity of a married woman, and secondly her family members had to struggle with several situations before deciding to approach the police, as stated above; thirdly the husband of the victim deceased was totally scared of threats and chasing the part of the accused; fourthly, the husband had suffered nervous break down by incident of gang rape followed by death of his wife, and fifthly after death, he was a grief stricken and naturally so far a bereaved widower it would take sometime being busy with performance of last rituals and further to reach some level of placidity, for giving report and lastly after all the family of the victim had to live in the village inspite of the incident of gang rape having taken place and an indication is founded in the FIR, itself where the informant has furnished plausible explanation ``the delay in lodging the report is due to fear and after death, her dead body was cremated and then he went to Haridwar, and moreover, nothing has been brought in the searching cross examination of the witnesses to doubt the truth and reasonableness of the explanation so offered, in these circumstances delay in lodging the FIR cannot be a ground to doubt prosecution case. We, therefore, find no merit in the contention based on the delay of lodging the FIR. (10). We, therefore, find no merit in the contention based on the delay of lodging the FIR. (10). Next contention urged by Shri Bajwa is that neither the place nor time of alleged rape has been reported in the so called oral dying declaration, inasmuch as exact words of such an oral dying declaration has been established by the prosecution and above all such an oral dying declaration did not relate to the facts leading to death of the deceased (rape victim) and further more this oral dying declaration was reported to the police after a lapse of ten days of the incident of rape. Shri Bajwa relied upon the decisions in Ramnath vs. State of Madhya Pradesh (6), Ratan Gond vs. State of Bihar (7). While placing reliance upon the decisions in Baldevraj vs. State of H.P. (8) and Ramsai vs. State of MP (9), Shri Bajwa contended that unless such oral dying declaration is given to police at first opportunity, it should not be acted upon. (11). In Ramsai vs. State of MP (supra), two of the witnesses (PWs 18 & 20) after having discarded others evidence by the trial Court and the appellate Court, had left with the Apex Court for being examined, who spoke about the oral dying declaration but in their evidence they though found the deceased was alive with injuries all over the body but they admitted during cross examination that the deceased was not speaking clearly and was vomiting at that time, inasmuch as they further admitted that they did not inform any body about the dying declaration while they were examined on the 3rd day only when they disclosed to the police. It was a case where there was medical evidence showing that it was highly doubtful whether the deceased could have made any such oral declaration and further there was no other corroboration worth mentioning: (12). In Baldevraj vs. State of HP (supra) the accused was prosecuted for offence of murder of his wife and the FIR was showing that it was a case of accidental death as a result of burn injury and there was sole evidence of deceaseds mother as to oral dying declaration which was found to be unreliable. In Baldevraj vs. State of HP (supra) the accused was prosecuted for offence of murder of his wife and the FIR was showing that it was a case of accidental death as a result of burn injury and there was sole evidence of deceaseds mother as to oral dying declaration which was found to be unreliable. The Apex Court observed that the most important circumstance to discredit the testimony of sole evidence was that she was nowhere in the picture for four days after the occurrence when for the first time she made a statement before the police regarding the alleged oral dying declaration. It was a case where sole witness mother of deceased admitted in her deposition before the Sessions Court that she had met the sub Inspector even before her statement was taken by the police but there was nothing to show that at that time when she met the police for the first time she gave out that the deceased had made any oral dying declaration to her. According to the Apex Court there were number of infirmities apart from above, which rendered her story inherently improbable. (13). These two citations referred to above by Shri Bajwa do not render any help to the defence as the facts of these cases are entirely different than the present one as in the instant case either in cross examination or chief examination none of the prosecution witnesses who spoke about such an oral dying declaration of the deceased, admitted that before they could meet the police they did not at all inform anybody else or the police about the alleged oral dying declaration of the victim. (14). As regards other decisions cited by Shri Bajwa we find that ratio decidendi of those case is not attracted to the present case in view of distinguished facts and circumstances in which so called oral dying declaration was made to the prosecution witnesses who spoke about it. Here we may browse through the law laid down in these other citations. As regards other decisions cited by Shri Bajwa we find that ratio decidendi of those case is not attracted to the present case in view of distinguished facts and circumstances in which so called oral dying declaration was made to the prosecution witnesses who spoke about it. Here we may browse through the law laid down in these other citations. In Ramnath vs. State of MP (supra) we find that it was a case where the dying declaration was recorded by the Magistrate, therefore, the Apex Court observed that in the case of a dying declaration recorded by the Magistrate, where the exact words stated by a deceased matter and are of importance, a suggestion that the deceased might have said something by a mistake cannot be entertained. In these circumstances, the Apex Court held as under :- ``(a) Evidence Act (1872), Sec. 32 - Evidentiary value of statements as to death. It is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. (b) Evidence Act (1872), Sec. 32- Proof and corroboration. Unless one is certain about the exact words uttered by the deceased, no reliance should be placed on verbal statements of witnesses and the oral declarations made by a deceased. (15). Similarly in different set of circumstances than that of the present case, in Ratan Gond vs. State of Bihar (supra) the accused was tried for the murder of B. When Bs mother left the house in the morning, B & her sister A were both in the house. The mother finding A alone in the house when she returned enquiring from her about B, she made certain statement about B to her mother and later in the day to others. But A died before her statements could be recorded in a judicial proceeding. Hence the Apex Court held that the statements of A were not admissible either u/S. 32 or Sec. 33 of the Evidence Act and could not be referred to in the statements of the facts of the case. But A died before her statements could be recorded in a judicial proceeding. Hence the Apex Court held that the statements of A were not admissible either u/S. 32 or Sec. 33 of the Evidence Act and could not be referred to in the statements of the facts of the case. Section 33 was clearly out of the way because A made no statements in a judicial proceeding or before a person authorised by law to take her evidence. The Apex Court then observed that the only relevant clause of Sec. 32 which may be said to have any bearing is Cl. (1) which relates to statements 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. Since it was a case where the statements made by A did not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary statements related to the death of her sister, therefore, the Apex Court held that the statements did not come within Sec. 32(1) of the Evidence Act. (16). We may reiterate that any former statement made by a witness at or about the time when the incident took place, becomes usable as of corroborative value u/S. 157 of the Evidence Act; and whether the statement was made at or about the time of the incident can be decided on the facts of each case; and if there was no appreciable delay the statement made by the witness can be used for corroborating his own testimony as enumerated in Section 157 of the Evidence Act. Be that as it may, if the delay was involved in making such statement its utility at best would be restricted to confronting the maker for contradicting him and such a statement would have no corroborative value. As expounded in Rameshwar vs. State of Rajasthan (10) followed in Nathuni Yadav vs. State of Bihar (11), there is no hard and fast rule about the `at or about condition in Section 157 of the Evidence Act obviously because the main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concocting. Moreover in State of T.N. vs. Suresh (12), the Apex Court held that mere fact that there was an intervening period of a few days may not be sufficient to exclude the statement from the use envisaged in Section 157 of the Evidence Act, which in real sense envisaged two categories of statements of witnesses for being used to as to seek corroboration firstly a statement made by a witness to any person `at or about the time `when the fact took place, and secondly, a statement made by him to any authority legally bound to investigate the fact. Thus in case the statement is made to an authority competent to investigate fact, such statement gains admissibility, no matter that it was made long after the incident and if the statement is made to a non authority it looses its probative value due to lapse of time. (17). As regards dying declaration, which lending support from the dictum of law laid down in Kansraj vs. State of Punjab (13), we reiterate that Section 32 of the Evidence Act 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. 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 was secured either by prompting or tutoring. Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The expression `circumstances of the transaction which resulted in his death mean that there need not necessarily be a direct nexus between the circumstances and death. (18). Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The expression `circumstances of the transaction which resulted in his death mean that there need not necessarily be a direct nexus between the circumstances and death. (18). 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. As propounded in Kansraj vs. State of Punjab (supra), 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, because 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 strait jacket. To attract Section 32 for admissibility of the statement of a deceased the prosecution is required to prove that such a statement or dying declaration had been made under any of the circumstances specified in Sub-Section (1) to (8) of Sec. 32 of the Evidence Act. The words `as to any of the circumstances of the transaction which resulted in his death appearing in Sec. 32 means that dying declaration must be sufficiently or closely connected with the actual transaction. 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 such statement as a fact. If it is verbal, it should be proved by examining the person who heard the deceased making the statement. 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 such statement as a fact. If it is verbal, it should be proved by examining the person who heard the deceased making the statement. 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 reveals a tell tale story, such a dying declaration would clearly fall within four corners of Section 32 and, therefore, admissible and the distance of time alone in such cases would not make the statement irrelevant, as expounded by the Apex Court in Kansraj vs. State of Punjab (supra), wherein the Apex Court held that there is no substance in the submission that the statement made by the deceased to her relations before her death was not admissible in evidence under Section 32(1) of the Evidence Act on account of the intervening period between the date of making the statement and her death. (19). Admittedly the present case is entirely based upon circumstantial evidence then in our considered view, there is no substance in the contention urged by Shri Bajwa that almost all the prosecution witnesses including daughter and son of the deceased and the informant, her brother so also the neighbourers in their testimony before the Court clearly established that whenever asked, Nandlal (PW-1) disclosed the cause of death of his wife (deceased) as of having fallen from the stairs while cleaning the school and further all of them in their deposition established that the deceased was suffering from epilepsy fitts into unconsciousness. In our view, merely because the deceased got epilepsy fits or because the informant Nandlal (PW-1) was nabbed by the police as soon as he and his son Dinesh (PW-3) got down the bus on their return from Lakheri or because Nandlal (PW- 1) was detained for 2-3 days by the police, the entire prosecution story based on circumstantial evidence and proved to the crime of the accused for causing death of deceased upon having committed gang rape, cannot be thrown out of the consideration. The case of the prosecution cannot be discarded merely on the ground or because the prosecution witnesses have brought in evidence other circumstances which in fact do not have any proximity or transaction directly connected with or related to or transaction directly connected with or related to cause of death of the deceased, revealing a tell tale story. Conviction can be recorded on the basis of the statement of the prosecution witnesses proving circumstances directly connected with or the transaction which resulted in death of the deceased, provided credibility of such witnesses is not shaken by any adverse circumstance appearing on the record against them and the trial Court at the same time is convicted that they are truthful witnesses. (20). Though the prosecution witnesses namely Suresh Kumar (PW- 7), Sirajuddin (PW-9), Janki Bai (PW-11), Hansraj (PW-12), Surendra Singh (PW-13), Ajay Kumar (PW-14), Ramesh Bhil (PW-15), Prabhu Dayal (PW-18), Nand Kishore (PW-20), Kanti Bai (PW-23), Om Prakash (PW-24) and Sanjay Kumar (PW-22), no doubt as urged by Shri Bajwa, refused to the prosecution line, thereby obviously all of them have turned hostile, but in our considered view, upon having carefully scanned their evidence, we find that from their corroborative evidence it stood clearly established that Shyam Hada (accused) was Proprietor of Surya Niketan School. Institution wherein the deceased Chanda Bai was a maid. (21). Here let us a glance through their deposition made before turning hostile before the Court. Suresh Soni (PW-7) stated that he used to teach in Surya Niketan School which was being run by Shyam Singh Hada. During cross examination by the Public Prosecutor, he admitted to have given out version in his police statement (Ex.P.10) as true and correct after having read over it. But thereafter he stated that it was under police pressure. Sirajuddin (PW 9) stated that police had seized torn old clothes vide memo (Ex.P.4) which bore his signature at E to F also. Shyam Singh was known to him. He further admitted to have contained his signature on seizure memo (Ex.P5) at C to D. He further admitted his signatures contained in memoes of seizure of bangle pieces (Ex.P.6) and other memo Ex.P.9). However, despite his turning hostile, in cross examination he admitted that it is true that the police seized ladies apparels from the house of Nanda. He further admitted to have contained his signature on seizure memo (Ex.P5) at C to D. He further admitted his signatures contained in memoes of seizure of bangle pieces (Ex.P.6) and other memo Ex.P.9). However, despite his turning hostile, in cross examination he admitted that it is true that the police seized ladies apparels from the house of Nanda. Janki Bai (PW-11) claims to be tenant of Nanda and Chanda and admitted that she had seen signs of injuries on the face and cheek of deceased when she had gone to see Chanda about her ailment. She admitted to have gone to Lakheri alongwith deceased and her husband besides others Geeta, Roop Shankar, Laxmi Bai, Shobha, Prem Shanker and Dinesh s/o deceased. During cross examination after declaring her hostile, she admitted to have given statement to the police (Ex.P.14) and admitted as correct its portion A to B. She further admitted that after two days she got telephone about death of Chanda in Lakheri, so she went there alongwith her husband and neighbouring people. She further stated that though Nanda was telling about fall of his wife from the stairs but he did not disclose actual tell tale. However, during cross examination by defence counsel, she denied to the suggestion of the deceased and her husband having any cause of family feud ever before. (22). Hansraj (PW-12) claiming himself as municipal member admitted to have gone to the school of Shyam Singh situated in Tilak Chowk of Bundi on the fateful day when Shyam Singh told him of his ill health so as to decline for accompanying them for visit to the dam. Surendra Singh (PW 13) admitted himself to be teacher in Surya Niketan School of Shyam Singh (accused) and further admitted that in the school Chandra Bai (deceased) was a maid. He admitted to have gone to the place of deceased on Money and found her ill health as was disclosed by her husband, therefore, he could not teach their children at home. He admitted that on third day, he read a News in Newspaper `Angad as to the rape incident. Ajay Kumar Tyagi (PW 14) was known to Shyam Singh (accused) because of his being co-councillor in the municipality. He admitted that on third day, he read a News in Newspaper `Angad as to the rape incident. Ajay Kumar Tyagi (PW 14) was known to Shyam Singh (accused) because of his being co-councillor in the municipality. He also admitted to have gone to the place of Shyam Singh alongwith Hansraj in a jeep on the fateful day at about 12 noon where Shyam Singh declined to accompany them for the visit for picnic on the pretext of his ill health. Ramesh Bhil (PW 15) claiming himself as fellow councillor in municipality of Bundi with Shyam Singh admitted to have gone to his place of school in a jeep alongwith Hansraj and Tyagi on the fateful day but he declined to accompany them for picnic visit to the dam. (23). Nand Kishore (PW 20) claimed to have been residing in front of the house of deceased and he stated that since Chanda (deceased) was ill she came down to ease herself in the toilet then he saw a bandage being tied on her abdomen while she was climbing up the stair and on that day, Shyam Singh had come to her house because she was working in his school whereafter she was taken to Lakheri by her relatives and people of colony. During cross examination he admitted to known accused Shyam Singh and Pappu. He admitted that Pappu had come to the house of Chanda on the next day. (24). Tirath Ram (PW-22) though was not declared hostile but he stated that Shyam Singh was known to him so also Nandlal as their houses are situated in front of each others. He admitted that Shyam Singh had come to the house of Nandlal in the morning; and that Pappu was also known to him and who had come to the house of Nandlal when they were going to Lakheri when he was asked by Pappu about Nandlal and his wife so he told him that they had gone to Lakheri. (25). He admitted that Shyam Singh had come to the house of Nandlal in the morning; and that Pappu was also known to him and who had come to the house of Nandlal when they were going to Lakheri when he was asked by Pappu about Nandlal and his wife so he told him that they had gone to Lakheri. (25). Kanti Bai (PW 23) though declared hostile but stated that she had seen Chanda Bai having black spots on her face and even she during cross examination by Public Prosecutor stated that it is true that lip of Chanda was having swelling and spots on her both the cheeks and after four days of her taken to Lakheri she died, inasmuch as she admitted of Chandra Bai having been working in the school of Shyam Singh who used to come to her place often before her death. Even during cross examination by defence counsel she admitted that Chanda Bai had long spots on her cheeks and not in circle. (26). Om Prakash (PW 24) though turned hostile but admitted to have seen a bandage tied on her stomach. Sanjay PW.32 though denied to know Shyam Singh but admitted himself to be teacher in Surya Niketan School wherefrom the police had brought a Nylon slipper and saree pieces lying on the table inside the school. He admitted his signature on seizure memo of slipper (Ex.P.29) at E to F and further admitted during cross examination by the Public Prosecutor that Abid Ali had come later on. Abid Ali PW 33) stated that Shyam Singh alongwith police personnel had come to Surya Niketan School wherefrom a slipper was got recovered from a slipper was got recovered from a hall situated near big gate and that slipper was of medium size but of nylon and its seizure memo was prepared vide Ex.P.29. (27). Besides above hostile witnesses, Anupama (PW 19) Kanwarlal (PW 6), Laxmi Bai (PW 10), Jagmal Verma (PW 31) proved the school known as Surya Niketan Institute having been owned by Shyam Singh and further proved that Chanda (deceased) was serving in that school as maid. (27). Besides above hostile witnesses, Anupama (PW 19) Kanwarlal (PW 6), Laxmi Bai (PW 10), Jagmal Verma (PW 31) proved the school known as Surya Niketan Institute having been owned by Shyam Singh and further proved that Chanda (deceased) was serving in that school as maid. Kanwarlal (PW 6) in chief examination stated that Chanda Bai was serving in school situated in street infront of Charbhuja Mandir and the school was owned by Shyam Singh; that when they went to the house of Chanda where they found signs of injuries and beating on her cheeks and face and found her in evil state of condition and when her husband asked him to bring and arrange a jeep so as to take her to Lakheri where she died after 2-4 days and where he had also participated in her cremation. During cross examination he stated that though he asked Nandlal about state of condition of Chanda but he did not disclose it to him (PW 6), so he did not disclose to the police. Roop Shanker (PW 8) admitted to have been residing in lower portion of Chanda and having called him by children of Chanda (deceased) as her condition was bad and when she was being taken in a vehicle he saw signs of injuries on her cheek, neck, nose, and forehead and then she was taken to Lakheri during which he, Satyanarain, Janki, Shobha, Laxmi, and Nanda had accompanied. However, during cross examination by defence counsel he denied to the suggestion of the deceased and Nanda having family feud. Laxmi Bai (PW 10) stated that when she was called she went to the place of Chanda, whom she found sleeping but having signs of injuries on her cheeks, eyes, and neck; and she admitted that Chanda was serving in a school and whereafter she alongwith others including three women, namely wife of Roop Shankar, Janki, Shobha, Geeta and two men. Roopshankar and Satya Narain had gone to Lakheri in a jeep. She denied to have changed apparels of deceased. (28). Anupama (PW 19) admitted to have worked in Surya Niketan School of Shyam Singh and stated that on 7th September 1996 she had gone to the School to take money which was taken from her by Shyam Singh during marriage about Rs. She denied to have changed apparels of deceased. (28). Anupama (PW 19) admitted to have worked in Surya Niketan School of Shyam Singh and stated that on 7th September 1996 she had gone to the School to take money which was taken from her by Shyam Singh during marriage about Rs. 5,000/- and at that time doors were lying open and so she entered into the room situated inside the school, where she found to her horror one maid servant of the school namely Chanda lying unconscious and when she was returning back, found Suresh teacher of the school whom she asked as to what happened then he refuted to say something even about Shyam Singh so she turned back and while was out on the street, she was called by Shyam Singh from behind. During cross examination she deposed that when her statement was recorded by the Magistrate, her memory was fresh and she gave out correct date of her going to the school on 8.9.96 and on 7.9.96 she had not gone to the school. Despite searching cross examination she deposed that Suresh had met during her visit to the school upon her return back at the gate of the school, rather she stressed saying that Shyam Singh had given three calls loudly and it was only upon third call that she responded by turning back. During cross examination she reiterated as to what she deposed in her cross examination with regard to Suresh, a Teacher, and she admitted to have given her version to the Magistrate correctly. (29). Prem Shanker (PW 5) corroborated version of other prosecution witnesses with regard to the deceased being maid servant in the school of Shyam Singh, having seen spots of injuries on her face and cheeks so also near the eyes, and he further admitted of having seen blouse, petticot, and saree seized by the police in his presence vide Ex.P.9. Similarly Prithviraj (PW 4) corroborated the testimony of the prosecution witnesses as to having seen signs of injuries on the face of the deceased and her having been serving in the school of Shyam Singh and as to her having been brought in Lakheri where she died and was cremated. (30). Now we may analyse the circumstantial evidence appearing in the statements of Nandlal (PW 1), Shobhag Kanwar (PW 2), and Dinesh (PW 3). (30). Now we may analyse the circumstantial evidence appearing in the statements of Nandlal (PW 1), Shobhag Kanwar (PW 2), and Dinesh (PW 3). The factum of Chanda (deceased) having been serving as maid in the school of Shyam Singh and her visit on duty upon direction of Shyam Singh on Sunday 8.9.96 have been proved by these trioka witnesses. All these trioka witnesses deposed that Chanda (deceased) had gone to the school to perform her duty as maid on Sunday at about 8 A.M. in the morning but she did not return back house till late evening and in the meanwhile Shobhag Kanwar (PW 2) and her younger brother had also gone to the school in the after noon when their mother (deceased) was busy in cooking meals in the school; and they further proved that Dinesh was sent by Nandlal (PW-1) to the school in the night hours to call Chanda back but at that time they found the school as closed. Shobhag Kanwar (PW 2) deposed that when had gone to the school, he found Shyam Singh in a vest and underwear and in a room inside the office, clothes of her mother were lying but Chanda was not there. She further deposed that on next morning she saw her mother having injuries with black spots on her face near the eyes and then her mother insisted upon to take her to Lakheri and not to the hospital, then she upon having shown her police version (Ex P7) A to B portion (weeping voices of a lady slowly and slowly were coming out of inside room) admitted to have given out such version to the police. She deposed that her mother died in Lakheri and after her cremation the police had come. (31). She deposed that her mother died in Lakheri and after her cremation the police had come. (31). Dinesh (PW 3) in his deposition stated that when his mother did not return back from the school then his father told him to go to the school where it was found locked so he turned back and when he was urinating at the ground floor he saw Shyam Singh and Pappu having brought his mother to leave her at their house on a scooter and at that time, his mother was having injuries sustained on her elbow and swelling on her eyes and lips and she was wearing saree and petticot but those were torn; and next day she was taken in a jeep to Lakheri where she died during their three days stay. He deposed that during their stay Pappu had also come there in Lakheri and that after her cremation he alongwith his father had gone to Haridwar to perform her last rituals. Despite searching cross examination he deposed that he had seen Pappu and Shyam Singh for having left his mother outside his house when he was to urinate at the ground floor of his house and at that time Shyam Singh was wearing white Kurta and Pyjama. (32). Now crucial witness is Nandlal husband of deceased Chanda and to whom deceased Chanda had narrated the story of gang rape on the part of accused Shyam Singh, Pappu lightwala and others Purshoottam Panwala, before her death and after commission of offence of gang rape when she was got left at her house outside it in the street. (32). Now crucial witness is Nandlal husband of deceased Chanda and to whom deceased Chanda had narrated the story of gang rape on the part of accused Shyam Singh, Pappu lightwala and others Purshoottam Panwala, before her death and after commission of offence of gang rape when she was got left at her house outside it in the street. Nandlal (PW 1) not only proved the first information report but also corroborated his version given at the earliest point to the police recorded under Sec. 161 so also to the Magistrate recorded under Sec. 164 Cr.P.C. Nandlal (PW 1) deposed that his wife was maid in the Surya Niketan School whose Proprietor was Shyam Singh; on Sunday when he was in his house, Shyam Singh and Pappu had come to his house and were saying that for cooking meals, the services of his wife was required on Sunday because some guests had come to their place, so his wife had gone to the school at 12 noon and when she did not turn back till 8 P.M. in the evening, his son Purshottam and Sobhag had also gone to the school to call her but they were returned back by Shyam Singh after having slapped them and, therefore, he had no option but to send his elder son Dinesh at about 10 P.M. in the night but he also turned back upon having found the school locked and in the meantime within 10 minutes, Shyam Singh and Pappu both on their scooter came to leave his wife Chanda and left her outside his house in the street and at that time he saw her having torn apparels on her person and her lips were cut and there were signs of injuries on both the cheeks on her face near eyes with blakish spots and upon inquiry she was scared to narrate because of alleged threats of killing her children. However, on the next morning, according to Nandlal (PW 1) she upon persistent query said that she was gang raped having been committed by 4-5 persons out of whom she knew only Shyam Singh and all of whom were drunken and they torn her apparels in drunken state. However, on the next morning, according to Nandlal (PW 1) she upon persistent query said that she was gang raped having been committed by 4-5 persons out of whom she knew only Shyam Singh and all of whom were drunken and they torn her apparels in drunken state. He further deposed that this story was narrated by his wife only to him and she was also saying that as there was danger of having her children killed, hence she insisted to take her to Lakheri, where the was taken in a jeep whereafter three days, she died and succumbed to the rape. He also deposed that the police had seized the apparels including blouse, petticot and saree so also bangles which she was wearing at the time of commission of gang rape on the part of the accused. (33). Having carefully perused the entire evidence of Nandlal (PW 1) we found that though searching cross examination was made to this witness but on irrelevant and immaterial aspect. Moreover during cross examination the defence counsel merely asked the questions so as to confront the witness of his former statements but the cross examiner utterly failed to comply with requirement of Section 145 Cr.P.C. so as to impeach the testimony of the prosecution witnesses because law is well settled that mere inconsistency in evidence is not sufficient to impair the credit of the witness. Even a former statement seemingly inconsistent with the evidence need not be sufficient to amount to contradiction obviously because only such inconsistent statement which is liable to be contradicted would affect the credit of a witness. Moreover, unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety, because even corroboration of evidence with mathematical niceties cannot be expected in criminal cases and therefore trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In the instant case, while contradicting the prosecution witnesses especially husband (PW 1) and family members of deceased, his attention was not called to those parts of it which were used for impeaching their evidence and merely the cross examiner put questions to the prosecution witnesses as to their previous statements either given out to the police u/S. 161 or to the Magistrate u/S. 164 Cr.P.C. without such statements being shown to them. Therefore, the testimony of Nandlal (PW 1) so also other prosecution witnesses on material particulars (such as the deceased having gone to the school, the accused having come to the house of deceased for calling her even on Sunday, the deceased having been serving as mind in the school, the deceased having left by the accused outside her house after having committed gang rape upon her person in the school on Sunday, the children Sobhag Kanwar and Purshottam having gone to the school to call back their mother (deceased) but were returned back upon having been slapped by the accused in the school, Dinesh (PW 3) and Nandlal (PW 1) having seen the accused Shyam Singh and Pappu on a scooter outside their house when the deceased was being left outside house in the street, when she was having torn apparels on her body and she was having bad state of health, and also the factum of the deceased having narrated the story of gang rape on the part of the accused persons in the school, before her death to her husband (PW 1) inasmuch as whereafter they were chasen by Shyam Singh and Pappu to their house as well as Lakheri) in court on that score would not vitiate the prosecution case inasmuch as the cross examiner failed to proceed to comply with the procedure prescribed in the second limb of Section 145 Cr.P.C. Even otherwise, the mere fact that there was an intervening period of a few days in a given case may not be sufficient to exclude the statement from the use envisaged in Section 157 of the Evidence Act. (34). (34). Merely because Nandlal (PW 1) did not disclose the version given out by his wife (deceased) before her death or after she was subjected to going rape by the accused persons, as to the cause of her death, and merely narrated other story than given out by the deceased, (i.e. she had fallen from stairs and got injured) or because the FIR lodged on 18.9.96 was not a voluntary report which was made only after he was detained by the police for more than three days, or because his statement was also got recorded before the Magistrate under Sec. 164 Cr.P.C. or that after death of his wife he failed to arrange post mortem examination or consigned her dead body to flames without informing the police, his testimony in court looses its probative value. (35). That apart, in the instant case, dying declaration of Chanda (deceased) that she was subjected to gang rape by 4-5 persons including the accused appellants Shyam Singh and Pappu and their friends, in the school, was verbal and was not only sufficiently but also closely connected with the actual transaction, which was disclosed to her husband (PW 1) after she was left to her house and before her death, and such a statement was proved by examining Nandlal (PW 1) in evidence as he had heard that dying declaration or statement of deceased Chanda after she was subjected to gang rape and before her death and in our considered view, this statement was directly connected with and related to her death revealing a tell tale story, therefore, such a dying declaration of deceased would clearly fall within four corners of Section 32 of the Evidence Act and, therefore, admissible and the distance of time alone or non-disclosure of such a dying declaration to other relatives in peculiar facts of this case of gang rape allegation would not make the statement doubtful or irrelevant. There is nothing on record to suggest that the relations of husband of the deceased with accused persons were strained. There was no motive for the prosecutrix (deceased) or her husband to falsely implicate the accused in the commission of crime which would not put her chastity at stake. Unless the evidence discloses that she and her husband had strong reasons to falsely implicate the accused, ordinarily the Court should have no hesitation in accepting her version regarding gang rape incident. Unless the evidence discloses that she and her husband had strong reasons to falsely implicate the accused, ordinarily the Court should have no hesitation in accepting her version regarding gang rape incident. (36). As the deceased was not a willing person and was a victim of the forcibly committed sexual assaults which are attributed to 4-5 persons including the accused appellants, she resisted the accused and perpetrator of the crime and in the process she sustained abrasions on her lumber regions as well as elbow joints besides on her face, cuts on lips, cheeks and chin. Hence it is not possible to believe that a woman would suffer such abrasions or cuts with bleeding while having sexual intercourse with her husband or her fall from the stairs. The presence of abrasions on her elbow joints and cuts with bleeding on lips and face supply ample evidence of struggle during the act and that the accused had violated her person in a gang rape incident of which she was so much scared that she persuaded her husband to get her shifted to Lakheri obviously because of consistent threats of dire consequences and because of herself being a poor caste lady in comparison to powerful politically and abled accused persons. Merely because a victim is dead and consequently could not be examined can never be a ground to acquit the accused if there is evidence otherwise available proving the criminal act of the accused, may be especially in view of circumstantial evidence having been adduced by the prosecution on record. We must not forget here that in the present case, the offence is of gang rape culminating into death of the victim but the medical evidence does not clingly establish the proof of rape as required by law and moreover the presence of smegma was inconsistent with a recent intercourse and that it would take about 24 hrs. to accumulate if the smegma is rubbed during intercourse. (See Parikhs Text Book of Medical Jurisprudence and Toxicology P. 439). (37). It appears that the accused were lust ridden end seeing the victim alone lost control over themselves and took her by force inside the room of the school. There is nothing surprising in the conduct of a man who is lust ridden in behaving in a carefree manner trying to make most of the situation of the prosecutrix being alone and helpless. (38). There is nothing surprising in the conduct of a man who is lust ridden in behaving in a carefree manner trying to make most of the situation of the prosecutrix being alone and helpless. (38). We are reminded of the observations of the Apex Court in State of AP vs. Gangula Satya Murthy (14), according to which the Courts are expected to show great responsibility while trying an accused on charges of rape and the Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses which are not of a fatal nature to throw out allegations of rape; and the Courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation. (39). Merely because the police got statement of informant (husband of the victim of gang rape) (PW 1) recorded u/S. 164 Cr.P.C. it cannot be held that he made material improvements or that his contemporaneous as well as subsequent conduct (PW1s) smacked of active accomplice to the impugned offences. Similarly merely because he was detained by the police though during cross examination to the police officials who appeared in the witness box they all denied to such detention and even PW-1 denied to such suggestion; or merely because he failed to lodge the FIR immediately or failed to get his wife (victim of gang rape) medically examined or failed to arrange her post mortem examination or that he consigned the dead body to flames without informing the police, he cannot be said to be guilty of offence under Sec. 201 IPC or an accomplice and that being so, we do not find any substance in the contentions raised by Shri Bajwa to presume his testimony (PW 1) unworthy of credit being an accomplice in view of Section 114(b) of the Evidence Act. We have already dealt with this peculiar aspect of the case in earlier part of this judgment while scanning not only the evidence of PW- 1 (husband of gang rape victim cum deceased) but also owner prosecution witnesses. (40). We have already dealt with this peculiar aspect of the case in earlier part of this judgment while scanning not only the evidence of PW- 1 (husband of gang rape victim cum deceased) but also owner prosecution witnesses. (40). We must reiterate that there can also be no hand and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. In fact the whole effort and endeavour in the case should be as to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. Furthermore, unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straight away condemned and their evidence cannot be discarded in its entirely. The omission in the police statement by itself or the former one u/S. 164 Cr.P.C. would not necessarily render the testimony of witness unreliable. Failure on the part of the informant (PW 1) to either immediately lodge the FIR or to inform the police for getting victim of gang rape medically examined before her death, especially in the circumstances of the accused persons having been chasing after commission of gang rape to the victim and family members, and the omissions in the earlier statement if found to be of trivial details, as in the present case the same would not cause any dent in the testimony of PW1 or his corroborative evidence. Even if there is contradiction in statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. (See State of H.P. vs. Lekhraj (15). On an analysis of the statement of the husband (PW 1) and children (PW 2 & PW 3) of the victim of gang rape, their statement either u/S.161 or 164 Cr.P.C. and the deposition made by them during investi- gation, it can be concluded that there is no material improvement, much less contradiction in the deposition made by them before the trial Court. The so called improvements or conduct of the prosecution witnesses particularly PW1 are in fact the details of the narrations extracted by the Public Prosecutor and the defence counsel in the course of their examination in chief and cross examination. We are unable to conclude that they are not speaking the truth or that they cannot inspire confidence in the mind of any reasonable person or authority to adjudge disputed questions of fact, so as to eschew entirely their evidence from consideration, whatsoever. (41). We are also conscious of the prestine rule that the burden of proof is on the prosecution to prove the guilt of the accused and this rule should not be taken as a fossilise doctrine as though it admits no process of intelligent reasoning. That apart, the doctrine of presumption is not alien to the above pristine rule, nor would it impair the temper of the rule. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position as has been recognised by the legislature by incorporation of Sec. 114 in the Evidence Act. (See State of W.B. vs. Mir Mohammad Omar (16). (42). Section 114 would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts unless the accused by virtue of his special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference. (43). The incriminating circumstances wrung out of the prosecution evidence and enumerated in the impugned judgment of conviction passed by the trial Court and discussed hereinabove, unmistakably and inevitably lead to the guilt of the appellants for offence of gang rape culminating into death of victim of such gang rape. Nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellants. Nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellants. During examination of the accused appellants and questioning them u/S. 313 Cr.P.C., the appellants instead of making atleast any attempt to explain or clarify the incriminating circumstances inculpating them and connecting them with the crime by their adamant attitude of total denial of everything, have not only lost the opportunity but stood self condemned. (44). For all the reasons stated supra, we have no hesitation to agree with the findings of the trial Court holding the appellants guilty of offences under Sec. 376 as well as 302 IPC for committing gang rape resulting into death of victim Chanda w/o Nandlal (PW 1). The deceased meekly went with the accused from her house on the call of the accused to attend their guests in their school for being served as a maid apparently reposing faith and confidence but the appellants seem to have not only betrayed the confidence reposed but also took advantage of the loneliness of the helpless woman, the quantum of punishment imposed is commensurate with the gravity of the charges held proved and call for no interference by this Court. (45). Resultantly, these two appeals are dismissed. The impugned conviction and sentences under the judgment passed by the trial Court in appeal are upheld. The accused appellants are in jail. They be retained to serve out remaining portions of the sentences.