JUDGMENT : Goutam Bhaduri, J 1. All the appeals are being heard together as they arise out of a common order dated 20.11.2019 passed by the Court of learned V Additional Sessions Judge, Durg in S.T. No.57/2015 whereby the appellants after trial were convicted and sentenced to undergo the life imprisonment for the offence u/s 376(2)(b), 376(d) & 376 3(Da) respectively. They were also convicted and sentenced to undergo RI for 3 for years 506-B and 315 of IPC, The details of conviction and sentence which the trial Court imposed against appellants are as follows : Accused Saurabh Bhakta (A-1) Conviction Sentence Fine Default stipulation Under section 376(2) (b) IPC & 376(d) IPC R.I., for life each Rs.20,000 Rs.20,000 RI for one month u/s 506-B IPC R.I. for 3 years Rs. 500/- RI for one month u/s 315 IPC R.I. for 3 years Rs. 500/- RI for one month Accused Chandra Prakash Pandey (A-2) Conviction Sentence Fine Default stipulation Under section 376(2) (b) IPC and 376(d) IPC R.I., for life each Rs.20,000 Rs.20,000 R.I., for one month u/s 506-B IPC R.I. for 3 years Rs. 500/- R.I. for one month Accused Dr. Gautam Pandit (A-3) Conviction Sentence Fine Default stipulation Under section 376(2)( M ) IPC and 376(d) IPC R.I., for life each Rs.20,000 Rs.20,000 R.I., for one month u/s 506-B IPC R.I. for 3 years Rs. 500/- R.I. for one month 2. The case of the prosecution is that on 07.01.2015, the prosecutrix (since deceased) lodged a report stating that when she was admitted in Supela Hospital at Bhilai, 3 accused Saurabh Bhakta (A-1), constable Chandra Prakash Pandey(A-2) and Dr. Goutam Pandit (A-3) came to her at 12.30 a.m., in the night and said that an injection was to be administered on her. The victim stated that she would get help of nurse, but the accused said that nurse has left and thereafter she was taken to a room wherein she was administered an injection thereby she felt dizzy and lost her consciousness and during such time, all they committed rape upon her. Further it was stated that if she discloses the fact to any one, her video of sexual intercourse would be uploaded in the internet. Subsequently she did not disclose it to any one and got her discharged on 20th July, from hospital. Further it was stated that if she discloses the fact to any one, her video of sexual intercourse would be uploaded in the internet. Subsequently she did not disclose it to any one and got her discharged on 20th July, from hospital. Thereafter, on 10th October, at 5.30 a.m. in the morning, she was again taken in an Indigo Car by A-1 and A-2 and they committed rape on her. On 20th October, she came to know that she is pregnant, therefore, she made a call to Saurabh on 20th December, on his mobile which was received by his mother and the victim disclosed the fact to her that she was pregnant. Thereafter A-1 gave a pill on 24th December to terminate the pregnancy. She took the pill and thereafter the pregnancy was terminated. Subsequently, the victim disclosed the entire fact on 7th January 2015 to her parents and made a report in Police Station, on the basis of which, FIR was lodged. Subsequently, the case was transferred to the Police Station having jurisdiction i.e., P.S. Supela and the FIR was registered as Crime No.10/2015 vide Ex.P-28. After the FIR, the victim was medically examined. The site map was also prepared by Ex.P-3 and accused were arrested. According to prosecution, from accused Saurabh Bhakta, one mobile of Micromax Company was seized by Ex.P-20. From Chandra Prakash Pandey a mobile of L.G. Company was seized vide Ex.P-21 and from victim, one tablet Ex.P-22 was seized. The bed-head ticket from hospital was also seized vide Ex.P-5 and admission & discharge register as also the attendance register of doctors and staff were also seized vide Ex.P-13C, 14-C, 15-C &P-16-C The I.O., further recorded the statement and videography of the victim and her mother and in continuation statement u/s 164 of CrPC was recorded. Further the call details of the accused and the victim was also received and the victim was also medically examined and the accused were arrested by Ex.P-37, P-38 and P-39. 3. After investigation, the charge sheet was filed against all the accused u/s 376(2)(d) & (g), 315, 506 read with section 34 of IPC. Thereafter the matter was committed by the JMFC to the Court of Sessions. 3. After investigation, the charge sheet was filed against all the accused u/s 376(2)(d) & (g), 315, 506 read with section 34 of IPC. Thereafter the matter was committed by the JMFC to the Court of Sessions. During the course of trial, all the accused denied the charges and claimed to be tried and in defence u/s 313 CrPC they also pleaded not guilty and answered the material question to demonstrate their innocence. On behalf of the prosecution, as many as 25 witnesses were examined and on behalf of defence, one witness was examined. During the course of trial, the victim committed suicide on 28.01.2016 and she could not be examined. The learned trial Court primarily based its conviction on the statements of prosecutrix recorded u/ss 161 & 164 CrPC by treating them a dying declaration as also the FIR and convicted and sentenced the accused mentioned above. Hence, this appeal. 4. (a) Mr. Prafull Bharat, learned senior counsel assisted by Mr. Utsav Maheshwar and Ms. Shailaja Shukla, Advocates, appearing for the appellant Gautam Pandit in Cr.A.No.1969/2019 would submit that the date of incident was the intervening night of 18th & 19th October, 2014. The FIR was lodged on 07.01.2015. It is stated that the victim was admitted in hospital on 18.04.2014 and was discharged on 20th June 2014 and on those dates the accused were on duty and further allegation of termination of pregnancy is on Saurabh Bhakta (A-1), therefore, the FIR was grossly delayed. 4(b) He would submit that the case was fixed for evidence on 5 occasions, out of which, on two occasions, the Presiding Judge was on leave and on 3 occasions, the victim did not turn up and eventually she committed suicide before the date of evidence and the last date of evidence before her death was 02.12.2015. 4(c) He would submit that the statement of father and mother would show that a new exaggerated story was narrated before the Court which is contrary to the written report and statements given u/s 164 of Cr.P.C. He would submit that the statement would further disclose that the report was made at the instance of brother of victim namely ‘S’ who is a reporter of a Newspaper. According to the statement, the incident occurred at police post at Hospital whereas the father has stated that the incident happened in the injection room of hospital These facts are missing from the report of victim. 4(d) He would submit that the statement of P.W.2, the mother, would show that on the first date, she was administered the medicine, however, despite the request, she was not discharged and on the third day, the victim was discharged from hospital which finds a complete omission in the statement given u/s 161 CrPC vide Ex.D-1. 4(e) He would further submit that as per the statement of mother, she was with the victim in the hospital and she was sleeping below the cot and the victim being major it would be highly improbable that in the presence of her mother itself, she would be forcibly taken or would be taken on any allurement from female ward. He would further submit that according to the statement, the girl for the first time came with the Police Officer Shankar Jha who disclosed the fact on 06.01.2015 to the parents of victim, but he was not examined. He would submit that complete omissions and exaggerations find place in the statement of mother. 4(f) Learned counsel would further submit that the bedhead ticket Ex.D-4 which relates to the victim would show that she was admitted in hospital on 18.06.2014 and the mother was also admitted on 19.06.2014 but the mother in her statement has not stated those facts. He would submit that the mother who was discharged on 21.06.2014 has not narrated those facts in her statement, therefore, this witness cannot be relied upon. 4(g) He would further submit that the statement of staff-nurse Smt. V.L.Kumar (P.W.4) would show that she was on duty on the date of incident and the Doctor (A-3) was not on duty on the same date and in the female ward this witness was posted. He would submit that from the female ward the duty register has been seized by the prosecution by Ex.P-15-C which would show that P.W.4 was on duty and Ex.P.54 would show that on the date of incident, one Dr. D.K. Patel was on duty. Thereafter, one Dr. He would submit that from the female ward the duty register has been seized by the prosecution by Ex.P-15-C which would show that P.W.4 was on duty and Ex.P.54 would show that on the date of incident, one Dr. D.K. Patel was on duty. Thereafter, one Dr. S.K. Agrawal was on duty and not the appellant A-3 but the trial Court has convicted the accused on the basis of Ex.P-1 written report, Ex.P- 19 FIR and Ex.P-17 the statement u/s 164. 4(h) He would submit that another suicide note which was alleged to have been seized by Ex.P-32(c) was never supplied to the accused, thereby serious prejudice has been caused. He submits that reading of Ex.P-1, P-19, P-17 and P-32 would show that the suicide which was committed on 28.1.2016 was not because of alleged rape or humiliation. Placing reliance in (2000) 6 SCC 671 he would submit that when the reasons have not been assigned, the said statement cannot be treated to be the statement u/s 32 of the Evidence Act as a dying declaration of deceased to say that certainly the rape was committed. 4(i) He would submit that the learned trial Court has completely failed to apply the propositions of section 32 of The Evidence Act and the statement would show that though the mobile of accused was seized, but no clipping was seized by the prosecution and despite the prosecution has produced the document of the fact that A-3 Dr. Gautam Pandit was not on duty, contrary finding has been given. 4(j) As against Ex.P-54 the duty chart, he would submit that the learned trial Court has proceeded on omissions rather than proper interpretation of the statement of the victim, therefore, the appellants who is in jail since 2015 is liable to be acquitted as no evidence is on record to sustain the conviction. 5. Appellant in Cr.A.No.1969 of 2019 Saurabh Bhakta who is represented by counsel Mr. Ashutosh Shukla, Advocate, engaged through legal aid has adopted the argument of accused A-3. 6. In respect of appellant Chandra Prakash Pandey (A-3) in Cr.A.No. 132/2020 Mr. Goutam Khetrapal, Advocate, submits that though the prosecution has relied on statement under dying declaration which was contained in the merg diary marked as Ex.P-32(C) but it was never supplied to the accused. Ashutosh Shukla, Advocate, engaged through legal aid has adopted the argument of accused A-3. 6. In respect of appellant Chandra Prakash Pandey (A-3) in Cr.A.No. 132/2020 Mr. Goutam Khetrapal, Advocate, submits that though the prosecution has relied on statement under dying declaration which was contained in the merg diary marked as Ex.P-32(C) but it was never supplied to the accused. He would further submit that non-supply of such documents has caused serious prejudice to the accused and plausible suggestion u/s 313 of CrPC was also not put to the accused to prove his innocence or raise the defence. Therefore, the conviction is liable to be set aside. 7. (a) Per contra, learned State Counsel would submit that the prosecutrix was subjected to rape which is proved by MLC of the prosecutrix and the query made to the Doctor. 7(b) He would submit that written report made by the prosecutrix which is followed by the statements u/s 161 & 164 CrPC would show that she made a report about the incident. He further submits that Ex.P-5 & P-6 which are the admission details of 18.06.2014, name of prosecutrix was not shown in the OPD whereas the date of discharge of victim was 21.6.2014 (Ex.P-9) which is proved by P.W.4. Therefore, the admission of victim was on 18.06.2014 and discharge was on 21.06.2014 and in the night of 20th June, the doctor was on duty on whom the allegation of rape is attributed. Referring to statement of mother (P.W.3), he would submit that the mother has stated that on the date of incident, the doctor (A-3) was on duty and the spot map Ex.P-3 shows that the hospital was the place of incident. Referring to Ex.P-13(C) he would further submit that it shows the duty of doctor on the date of incident and P.W.2, the father, has proved the signature of the prosecutrix over the written report. 7(c) He would further submit that as per the statement of P.W.10, Dr. Kalpana Sharma, the abortion of victim took place was proved by MLC of the victim by Ex.P-23 and the pregnancy test was found to be positive which proved to show that she was subjected to sexual assault. 7(c) He would further submit that as per the statement of P.W.10, Dr. Kalpana Sharma, the abortion of victim took place was proved by MLC of the victim by Ex.P-23 and the pregnancy test was found to be positive which proved to show that she was subjected to sexual assault. 7(d) With respect to Ex.P-32(C), the merg enquiry paper of suicide note of victim, referring to statement of P.W.19, Kaushal Kishore Wasnik, the Inspector who was conducting the merg enquiry produced the statement Ex.P-32(C) and the copies were provided to the accused to cross examine the witness. He further submits that the articles of Photograph has been proved by P.W.21, the inspector and the call details is also proved. 7(e) Referring to the case law reported in (2014) 2 SCC 776 he would submit that the conviction can be based on the dying declaration and the prosecution can very well rely on the statements u/s 161 & 164 CrPC. He further placed reliance on (2019) 11 SCC 500 Paras 11 and 12 to submit that the statement recorded u/s 161 CrPC can be considered to be a part of dying declaration. He further submits that therefore, the conviction recorded by the trial Court is well merited which does not call for any interference. 8. We have heard learned counsel for the parties and have also perused the records of the trial Court. The conviction appears to be primarily based on statement of victim u/s 161 and dying declaration and written report Ex.P-1 which is an initial report made by the victim, on the basis of which, the FIR Ex. P-19 was registered. Subsequently, the statement of the girl was recorded under Section 164 vide Ex.P-17. A reading of the said documents would show that Ex.P-1 which is an initial report made by the victim is dated 07.01.2015 wherein she states that while she was admitted at hospital, Dr.Goutam Pandit came to her along-with A- 2 & A-3 at about 12.30 at night and the doctor said that one injection is to be administered. The victim having said that she will take from the sister, the doctor told that the sister has slept and asked her to take injection from him. She accompanied them and after taking injection, she felt dizzy. The victim having said that she will take from the sister, the doctor told that the sister has slept and asked her to take injection from him. She accompanied them and after taking injection, she felt dizzy. Thereafter, all the 3 accused took her down to the room and committed rape and extended threat that if she discloses the fact to any-one, the Video of such sexual act would be uploaded in the internet. Thereafter, she got herself discharged from hospital on 20th June. 9. Thereafter on 10th October at about 5.30 a.m., in the morning, she was taken in an Indigo Car and those two people again committed rape. The names of two persons are not stated in Ex.P-1. It is stated that she came to know that she is pregnant on 28th October. Thereafter, she rang up to Saurabh (A-1) on his Mobile No. 8253059538, which was picked up by his mother and the victim told that she has become pregnant. Mother of Saurabh told her to keep it secret and said she would be sending her son. Thereafter, Saurabh (A-1) came on 24th December with pill to terminate the pregnancy. The said pill was taken by her on 24th December and thereafter the pregnancy was terminated with severe pain. She states that all the 3 people had committed sexual exploitation of her. Thereafter on 7th January 2015, she disclosed this fact to her parents and brother and made a report that all the 3 accused have committed wrong with her, therefore, she need justice for the reason that she do not want to marry any one and she do not want to live her life and after giving punishment to the accused, she wants to give justice to herself. In such report, the words “she wants to die” was struck off. She further states that she needs justice against 3 of them. She has lastly stated in her suicidal note that threat was extended by these 3 persons to kill her in case of report being made. 10. The FIR (Ex.P-19) is a verbatim of the written report and thereafter, the statement of victim u/s 164 (Ex.P-17) was recorded on 09.01.2015. She further states that she needs justice against 3 of them. She has lastly stated in her suicidal note that threat was extended by these 3 persons to kill her in case of report being made. 10. The FIR (Ex.P-19) is a verbatim of the written report and thereafter, the statement of victim u/s 164 (Ex.P-17) was recorded on 09.01.2015. The statement u/s 164 Ex.P-17 says that on 19th June, 2014 because of jaundice suffered by her, she along with her mother Pranapati Pandey went to Supela Government Hospital at 2.30 p.m., and as she felt dizzy she sat there. She stated that at that time, two police people came there whose names were written as Saurabh Bhakta and Prakash Pandey on the batch and both of them came near to them and said that they were on duty and offered help to them and advised to take rest in the guard room as the Doctor was not available at that time. Subsequently, she states that at 6.30 p.m., her mother prepared the slip for admission. At that time, Dr. Goutam Pandit was sitting at his room and accused Saurabh Bhakta and Prakash Pandey asked her mother to stay back and they would take the victim to the doctor. Thereafter, she was admitted in the female ward. She was given medicines and she felt asleep. She further states that at 12.30 in the night, Dr.Gautam Pandit came and said that sister (nurse) has given one less dose injection and asked her to take it. Having said that she would get it from sister (nurse) in the morning as and when she comes, on which, the Doctor said that if she does not get injected she will not recover soon, on such persuasion, she got injection from the doctor. At the time of taking injection, the other accused Saurabh Bhakta, Prakash Pandey were standing there. After injecting, she felt dizzy and started loosing her control, then the three accused took her down to the guard room and made her lie on the ground, at that time, she was not in a position to defend herself, after that the accused Saurabh Bhakta stripped her of all clothes and committed wrong with her. Thereafter, Prakash Pandey and Dr. Gautam Pandit did wrong things repeatedly. 11. Thereafter, Prakash Pandey and Dr. Gautam Pandit did wrong things repeatedly. 11. She further deposes that at about 4.30 p.m., in the morning, she was brought towards stairs and made to sit there and they went away. At 4.45 a.m., one sister came there and asked her why she was sitting. She did not disclose anything. Thereafter, her mother came and she also asked her, but she did not disclose anything because of the fact that the accused would make the video clipping which would be uploaded in the internet. Subsequently, she got herself discharged on 20th June. She states that because of fear, she did not disclose the fact to any-one. She further states that the accused Saurabh Bhakta and Prakash Pandey used to call her from their mobile. But having requested not to call again, threat was extended that her video would be made viral. 12. She further states that again she was forced to come and see how the video was prepared by them. On 10th October 2014, while she was going for coaching classes, Saurabh Bhakta and Prakash Pandey came in Indigo Car and shown her the video clipping and took her in the car to an isolated place and both of them committed rape in the car itself and threatened her not to disclose the incident. Thereafter, she did not talk with the accused. Thereafter, when she became pregnant, she rang up to A-1 Saurabh Bhakta’s mobile, but her mother picked the phone call and stated that she will send her son with medicine and asked the victim to take that medicine, which would terminate the pregnancy. On 24th December, Saurabh and Prakash came to her and gave medicine and on the same date after taking medicine, the pregnancy was terminated. 13. She further stated that on 06.12.2014 at 10.30 a.m. she went to lodge a report at Chawani Police station, but the police refused to lodge the report in absence of her parents. Thereafter, she was thinking to end her life and was sitting near Power-House. At that time, one Police Officer Shankar Jha came and she disclosed all these facts to him. Thereafter, he took her to the house and disclosed the incident to her mother on which the brother of the victim beaten her and eventually the report was made. 14. Thereafter, she was thinking to end her life and was sitting near Power-House. At that time, one Police Officer Shankar Jha came and she disclosed all these facts to him. Thereafter, he took her to the house and disclosed the incident to her mother on which the brother of the victim beaten her and eventually the report was made. 14. She further states that in the month of August, she could not recover from Jaundice, she went along with the mother to Supela Hospital to take medicine in the morning. At that time, Dr. Gautam Pandit called her in dressing room and the compounder closed the door from outside and on the threat that video would be put in the internet, he again committed rape with her and asked her to meet him. 15. The order sheet of the learned trial Court would show that on 09.09.2015 when the case was fixed for evidence of the prosecutrix, the presiding judge was on leave, as such, the case was adjourned. Thereafter, the case was fixed for evidence on 01.10.2015, 03.10.2015 and 05.10.2015, but the witnesses were not present. The order sheet dated 07.11.2015 shows that the prosecutrix was served with the summons but she did not appear. Subsequent order sheet dated 02.12.2015 would further show that summons were served on prosecutrix but she did not appear. On 02.12.2015, the prosecutrix though was served she chose not to appear, as such, the bailable warrant of Rs.500/- was issued. On 03.12.2015, the prosecutrix was present before the Court but the accused were not brought from Jail, as such, the case was adjourned. Again, summons were issued to the prosecutrix on 02.01.2016 and when the case was listed on 02.02.2016 on that date it was reported that prosecutrix has died. The victim committed suicide on 28th January 2016 therefore she could not be examined before Court. So on different occasions, the order sheet would show that the prosecutrix was though served with summons, did not come-forward to be examined and further because of the fact that either the judge was on leave or the accused were not brought from jail. 16. Under the circumstances, the statement of the father of prosecutrix P.W.2 was recorded. According to his statement, at the time of incident, the age of the victim was 19 years. She was a student of B.Sc. second year. 16. Under the circumstances, the statement of the father of prosecutrix P.W.2 was recorded. According to his statement, at the time of incident, the age of the victim was 19 years. She was a student of B.Sc. second year. According to him, the victim was admitted at Lal Bahadur Shastri Hospital Supela Bhilai in June 2014. She was taken by her mother to the hospital where she was admitted for 3 days. He further deposed that on 6th January 2015 when he came back from his duty, the victim came along with Police at about 12 o’ clock in the night and having enquired from her, she disclosed that while she was admitted in hospital, Goutam Pandit, Saurabh Bhakta, Chandra Prakash Pandey all of them have committed rape on her in injection room. He further states that at about 10.30 to 11.00 a.m., the doctor came along with other accused and said that injection is to be given. Thereafter the injection was administered on her thereby she felt dizzy and lost consciousness and during such time rape was committed. He further states that the victim stated that when she went to injection room, the accused prepared the video clipping after administration of injection. 17. The father (P.W.2) further submits that accused Dr. Goutam Pandit has taken Rs.1000/- from victim and wanted the cassette but it was not given back and after two months, again Rs.2500/- was taken by the Dr.Goutam Pandit from the victim and thereafter the daughter stated that she has lost every thing and she would lodge a report. He further states that after months 3 months, in the 9th month of 2014, Dr. Gautam Pandit got the victim aborted in Lal Bahadur Hospital, Supela, and subsequently on January 7th the report was made. He proved the signature of the victim on the report Ex.P-1 the initial report by victim as also crime detail form (Ex.P-2) and the map (Ex.P-3). He also proved the signature of victim on the FIR Ex.P.19. This witness, i.e., father of victim was declared as hostile. 18(a) Thereafter, he was subjected to cross examination. The witness was confronted with the statement u/s 161 CrPC which was marked as Ex.D-2. He has stated that on 06.01.2015 the victim daughter came with the police and he enquired the facts from her. This witness, i.e., father of victim was declared as hostile. 18(a) Thereafter, he was subjected to cross examination. The witness was confronted with the statement u/s 161 CrPC which was marked as Ex.D-2. He has stated that on 06.01.2015 the victim daughter came with the police and he enquired the facts from her. If this part is not written in the Ex.D-2, he cannot tell the reason, thereby that statement finds an omission in Ex.D-2. 18(b) Likewise the statement about the place of incident that happened in injection room also finds omission. The fact that at 10.30 to 11 a.m., Dr. Pandit came and offered injection also finds omission in Ex.D-2. The fact that the victim has stated about taking money of Rs.1000/- and Rs.2500/- and demanded back the cassette also finds an omission in Ex.D-2. The fact that Goutam Pandit got the victim aborted in 9th month of 2014 at Lal Bahadur Shastri Hospital also finds an omission. Therefore, the place of incident that it was injection room and taking money by Dr. Goutam Pandit and disclosure of incident by the victim to him is not in the statement u/s 161 Cr.P.C of father of victim (P.W.2). 19. When the statements are compared to the report made by the victim, the material facts are either omitted or contradicted. The statement to the effect that on 10th October, 2014 when the victim was going to town to attend the coaching class, at that time, Saurabh Bhakta, Chandrakant Pandey and Goutam Pandit took her in an Indigo Car to an isolated place and committed rape also does not find in statement of the girl or the statement u/s 164 CrPC of the victim. The statement of father shows the exaggeration and omission, apart from it he is an hearsay witness and his statements find many contradictions too to the report made by the victim. 20 (i) Now reading the statement of P.W.3, the mother of victim shows that she at para 5 of her examination-in-chief states that Dr. Gautam Pandit and other doctors came at 10 a.m., in the ward and both were laughing. They examined other patients as also her daughter (victim) and stated that victim is suffering from Jaundice and stated that they will give medicine and she will be all right. Thereafter, the medicines started. Gautam Pandit and other doctors came at 10 a.m., in the ward and both were laughing. They examined other patients as also her daughter (victim) and stated that victim is suffering from Jaundice and stated that they will give medicine and she will be all right. Thereafter, the medicines started. This witness states that her daughter was admitted in hospital on that day and she was again checked on the next day. She stated that she asked Dr. Gautam Pandit to discharge her daughter but he stated that let her remain for the entire night in the hospital. However, the other doctors advised her to get the victim discharged and on the 3rd day, she was discharged from hospital and the victim had not disclosed anything a to her. 20(ii) Further reading of the statement of P.W.3 the mother shows that she states that in the year 2014 she fell down while she was bringing water from tap, as such, she got injury on her nose and was bleeding, therefore, she was taken to the hospital for treatment wherein they met Saurabh (A-1) who assured her to get treated. This part of statement is contradictory to Ex.D-1 the statement u/s 161. The omission also exists in 161 statement to the effect that at 10.00 a.m., Dr. Gautam Pandit along with other doctors came to the ward and they were smiling, these narrations were disclosed for the first time in the Court. With respect to the admission in hospital, ailment of jaundice suffered by victim and further that request was made by the mother to discharge her also finds an omission in Ex.D-1. 20(iii) In examination-in-chief before the Court, the mother said that after her daughter (victim) was admitted in hospital, she was given an injection and the intravenous bottle was also given and both mother and victim stayed at the hospital. Her daughter slept in hospital bed and on the floor at the instance of nurse she slept. Thereafter, she did not know anything and at about 4 a.m., when she woke up, her daughter victim was not at the ward and was sitting in the stair in ground floor. This was disclosed by a nurse to her and then she went there and took the girl back to the house, however, her daughter did not disclose anything. Thereafter, she did not know anything and at about 4 a.m., when she woke up, her daughter victim was not at the ward and was sitting in the stair in ground floor. This was disclosed by a nurse to her and then she went there and took the girl back to the house, however, her daughter did not disclose anything. This statement does not find in Ex.D-1 statement u/s 161 Cr.P.C. 20(iv) The mother further deposes that she came to know abourt the whole incident of rape when the victim girl came with police person at 11.00 to 11.30 p.m., and the police disclosed that the victim wanted to make a report. She asked that why she had gone to police station then the victim daughter said that while she was admitted in hospital, the doctor and nurse came and asked her to take injection, thereafter, the nurse was removed from there and doctor Goutam Pandit administered injection and in the injection room, other accused Saurabh (A-1) and Chandra Prakash (A-2) came and thereafter all the three committed rape with her whereas in 161 statement, she stated that all the 3 accused took her to guard room and thereafter committed rape. Therefore, the place of incident has been varied. The map filed by the Police (Ex.P-3) is proved by the father which shows that the Police guard room situates on the left side of the main gate of general hospital and in front of that, the entire premises of warandah situates. 20(v) In the statement before the Court, the mother states that in order to terminate the pregnancy, mother of Saurabh (A-1) gave Rs.1200 to victim. This also does not find in police statement (Ex.D-1). At para 10 of her statement, she further states that when she came back, A-1 Saurabh Bhakta used to call the victim by phone and extended threat and asked her to join him. She states that at one time, the accused Saurabh and Chandra Prakash Pandey took the victim in a Car and committed rape which was disclosed by the victim to her. The mother further states that one Choubey used to come to their house on behalf of the accused and asked them to take back the case otherwise, her name would be tarnished. The mother further states that one Choubey used to come to their house on behalf of the accused and asked them to take back the case otherwise, her name would be tarnished. At para 11 she further states that on 27.01.2016, the advocate of accused took a signature of victim on stamp-paper and extended threat to take back her case otherwise, they will kill his brother whereby the victim became upset. She further states that offer was also made to settle the case after taking the money and the advocate including wife and father of accused Saurabh and his uncle used to extend threat, therefore, her daughter committed suicide. Therefore, the cause of suicide by the victim as per the statement of mother was otherwise something else. 20(vi) The mother in her cross examination admits the fact that on 20th the victim was discharged and whenever the victim wanted to make a report she was being threatened and intercepted by Saurabh (A-1) and Chandra Prakash (A-2) on road is an omission. She further states that her daughter victim went to police station only once to file a report and on the second day, the police registered victim’s report and before that whenever the victim went to write the report, the accused used to prevent her to lodge report. Stating the name of one Police Officer Mr. Jha, the witness stated that while the victim was weeping in a temple, the press people gathered there, at that time the police officer took the victim to their house and next day at 9 to 10 a.m., they reached to station. She further states that her husband P.W.1 joined them while the report was made and in respect of the pregnancy test she was unable to state anything also is an omission. 20(vii) While confronted with the statement that she made a statement that the victim sustained injury while fetching the water from tap, she stated that it was disclosed to the Police. She admits the fact that she disclosed for the first time in the Court that Goutam pandey and other doctors came to ward at about 10 a.m., and were smiling. She further states that she disclosed the fact that the Doctor examined the other patients and thereafter, Dr.Gautam Pandit told them that victim is suffering with jaundice and thereafter, the medicine was administered. She further states that she disclosed the fact that the Doctor examined the other patients and thereafter, Dr.Gautam Pandit told them that victim is suffering with jaundice and thereafter, the medicine was administered. She further states that while giving statement to the Police, she disclosed the fact that the victim told her that she was going to college to fill up the examination form, but victim went to lodge a report in police station also is an omission. 20(viii) Further the witness states that she disclosed to the police that her daughter was given medicine by Saurabh Bhakta to terminate the pregnancy and gave her Rs.1200/- and medicines and advised not to take the name of Saurabh Bhakta and her daughter acceded to the advice and took medicine and thereafter, the pregnancy was terminated is also a new disclosure. However, she could not state the reasons why those facts were not written in her police statement. 20(ix) The mother denied the fact that when she went for treatment with her daughter, they waited at the guard room wherein Saurabh Bhakta came and she volunteered that Saurabh came and took them to their room and the Doctor came at 5 p.m, and she stated that when she was admitted in the hospital, she was examined by Dr.Gautam (A-3) and thereafter he prepared another slip and admitted her. She admits the fact that the ward wherein she was admitted, the other patients were also there and the nurse administered the injection and medicines. She also admits the fact that in the same ward, she was sleeping on the floor of the hospital bed. She further admits that on the date of incident in the night, the nurse was sitting in the ward. She further volunteered that till she awoke, she saw the nurse was sitting. 20(x) She further admits the fact that at about 4.00 a.m., in the night, the nurse told her that her daughter is sitting in the stairs and she went there and met her daughter. At that time, she did not disclose anything, but only stated that she was having headache. She further states that after their discharge from hospital, they came back to home and nothing was disclosed by her daughter at home and after six months, the incident was disclosed. At that time, she did not disclose anything, but only stated that she was having headache. She further states that after their discharge from hospital, they came back to home and nothing was disclosed by her daughter at home and after six months, the incident was disclosed. (xi) At para 43, she further admits that she took her daughter to hospital, thereafter the slip was prepared and till her daughter was admitted in the ward, she was along with her in the ward. She has expressed her inability to say that in the night the Doctor came to examine her daughter as she (witness) was sleeping. Therefore, when the entire court statement of the mother of victim is compared to Ex.D-1, number of contradictions, exaggerations and omissions find place which pertain to the place of incident, time and non-disclosure of material facts which for the first time were disclosed before the Court. This witness is also an hearsay witness to the incident happened with victim about rape at hospital but was accompanying her during the time she was admitted. 21. Witness Smt.V.L.Kumar (P.W.4) who is a nurse was on duty as ward in-charge before whom, the treatment detail slip was seized vide Ex.P-5. The OPD slip of 18.06.2014 of the victim is proved by her vide Ex.P-6. She has further proved Ex.P-7 to Ex.P-11 of the bed-head tickets and blood test report of the victim. She states that Ex.P-6 which is of 18.06.2014 bears signature of Dr.Gautam Pandit from A to A and and at para 2 she states that the bed ticket also bears signature of Gautam Pandit posted in the Hospital on A to A and the said signature relates to victim’s admission on 18.06.2014 and thereafter on 19.06.2014 Dr. B.K. Markam has signed at B to B. She has endorsed such signatures on such papers. 22. Ex.P-13(C) which is a duty certificate shows the admission of the victim and the name of doctor who treated him is shown as Dr.Pandit and at the last column of DOR which has been demonstrated as discharge at the request of patient is of 21.4.2014. On the same duty register Ex.P-13-C, at Sl. No.24193, the admission of mother of victim is also shown that she was admitted on 19.06.2014 which also shows that the date of discharge is 21.04.2014 but this fact of admission of mother, P.W.2 mother has denied. On the same duty register Ex.P-13-C, at Sl. No.24193, the admission of mother of victim is also shown that she was admitted on 19.06.2014 which also shows that the date of discharge is 21.04.2014 but this fact of admission of mother, P.W.2 mother has denied. The document Ex.P-14-C is a duty register of Class-IV employees which shows different timings of employee from 15.06.2014 to 21.06.2014. The document Ex.P-15-C shows that it relates to a female ward where the duty of V.L. Kumar (P.W.4) was assigned. Therefore, the duty register from 15.06.2014 to 21.06.2014 produced by the prosecution shows the duty of V.L. Kumar was assigned. 23. As against this, another document is produced by prosecution i.e., the duty of Doctors Chart Ex.P.54 proved by P.W.21 would show that Dr.S.K. Agrawal, S.M.O., was to perform the duty on the relevant date i.e., 14.09.2021 from 3.30 p.m., to 8.30 p.m. Likewise, Dr. D.K. Patel was to perform duty on 13, 18th & 24 and Dr. Gautam Pandit was assigned duty on 2nd, 11th, 16th and 20th and 29th. Dr. Patel and Dr. Agrawal who appear to be on duty on relevant dates on 19, 21, 13, 18, have not been examined by prosecution. Prama facie, the document which has been produced by the prosecution vide Ex.P-54 about the emergency duty of Civil Hospital, Supela, Bhilai does not show the duty of Dr.Gautam Pandit (A-3) on 18th or 19th but it shows to be of 20th and thereafter on 29th and as per the prosecution on 20th the victim was discharged. 24. Ex.P-8 shows that the victim was admitted on 18.06.2014 and as per the statement of P.W.4 who was a nurse on duty, at para 9, she stated that on 18.6.2014, the victim was admitted at 6 p.m., and on 18.06.2014 according the witness, the duty of Doctor Gautam Pandit was from 8.00 a.m., to 1 p.m., and thereafter from 5.00 p.m., to 6.00 p.m. On that date, as per Ex.P-54 Dr. Gotam Pandit (A-3) was on duty at male examination ward MLC from 13th to 18th as such it appears that in the admission ticket (Ex.P-8) at the time of admission, the accused may be there as the victim was admitted in hospital on 18.06.2014 at about 6 p.m. On that date as per Ex.P-54 Dr.Gotam Pandey (A-3) was on duty at male examination ward MLC from 13th to 18th. The nurse at Para-11 further states that Dr.Gautam Pandit was on duty subsequently on 19.06.2014 from 8.00 a.m., to 1.00 p.m., whereas this do not match with the duty-chart Ex.P-54 which shows that Dr.Gautam pandit was on duty from 8.30 a.m. to 1.00 p.m. and 5.00 p.m. to 6 p.m., on 5th, 10th, 20th 28th June, 2014. Further the document which is produced by the accused Ex.D-4 shows that the victim was admitted on 18th June and the OPD slip of mother (P.W.3) is of 19th June in the same hospital and she was discharged on 21.06.2014. Therefore, the inconsistency comes to fore as there are two sets of documents which have been relied by the prosecution. One set of documents in the statement Ex.P-54 do not show that Dr. Gautam Pandit was on duty either on 18th or 19th but his duty is shown on 20th June and at MLC from 13th to 18th June. P.W.4 who was nurse in the female ward shows that Gautam Pandit (A-3) was on duty in the morning, which ended at 1.00 a.m., thereafter for one hour in the evening from 5-6 p.m., and subsequently on the next date on 19.06.2014 from 8 a.m. to 1 p.m., the duty chart and statements do not match and creates a doubt. When there are two sets of documents, one favours the accused, the court would lean in his favour to hold it. 25. With respect to place of incident, the victim was admitted in first floor of the hospital and in order to come to the ground floor, the statement of P.W.4 would show that two warandahs are to be crossed and then after 100-150 steps away, the female ward exists and in female ward, one nurse always remains in the ward in day and night and she further states that the nurse had to remain in the ward for all the time and all the documents of the patients of their treatment remains with the nurse. Who was on duty on the same date of incident has not been brought by the prosecution. There are inconsistencies in the statement of father and mother as compared to the documents which were seized by the prosecution. The mother P.W.3 was stated to be admitted in hospital and document Ex.P-13-A & C would show that at Serial 24193, she was admitted in hospital on 19th June. There are inconsistencies in the statement of father and mother as compared to the documents which were seized by the prosecution. The mother P.W.3 was stated to be admitted in hospital and document Ex.P-13-A & C would show that at Serial 24193, she was admitted in hospital on 19th June. Whereas in the statement of mother she completely disowned the same. If the mother was also admitted in the same hospital in the same female ward, the narration of incident creates a doubt as she was with the victim even on 18th night at female ward. Further statement of mother (P.W.3) would show that she has exaggerated certain things before the Court and major omissions find place in Ex.D-1. Reading the said statements and documents cumulatively would show that there are lot of inconsistencies and exaggerations appear in the statements brought forward by prosecution including the documents of duty chart. 26. Ex.P-2 which is a map would show the place of incident. The place of incident is in the left side of the main gate of general hospital. Ex.P-9 would show on the left side of the main gate, the police helping booth exists wherein the alleged incident happened. On the right side of the main gate, Doctors room exists. Both places are at main entrance of hospital. The learned Sessions Court has brushed aside all the omissions, exaggerations and contradictions exist in the statements of witnesses as also the place of incident, instead, primarily based the conviction on written report made by Ex.P-1, FIR (Ex.P-19) and statements recorded u/s 164 Cr.P.C., which is Ex.P-17 and the suicide note Ex. P-32 which was seized during merg enquiry. All the aforesaid statements were taken take to be admissible u/s 32 of the Indian Evidence Act as dying declaration to hold that the victims are guilty of rape and causing abortion and extending threat. The primary conviction of accused is for the offence of rape, not for abetment of suicide. No charges either was framed for abetment of suicide. 27. The primary conviction of accused is for the offence of rape, not for abetment of suicide. No charges either was framed for abetment of suicide. 27. Section 375 of the Indian Penal Code defines rape as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case, if she is under 18 years of age." The commission of rape can be established if it falls under the following categories : 1. Against her will 2. Without her consent. 3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. 4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. 5. With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 6. With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. 28. Reading of section 375 would show that in order to come over the accusation u/s 375, the accused can raise defence that it was a consensual sex or with her consent. However, the consent cannot be universal carved out by exceptions, which are embodied in section itself. Therefore, it would be further open to the accused to demonstrate before the Court that allegations of rape cannot be accepted simplicitor by statement of victim either u/s 161 or 164 of CrPC with the aid of Section 32 of Indian Evidence Act. The defence was available to the accused to fall back to the statutory defence. 29. The learned trial Court has convicted the accused by the aid of section 32 of the Indian Evidence Act taking it to be a dying declaration to hold that statements u/s 161 & 164 CrPC prove the rape. The defence was available to the accused to fall back to the statutory defence. 29. The learned trial Court has convicted the accused by the aid of section 32 of the Indian Evidence Act taking it to be a dying declaration to hold that statements u/s 161 & 164 CrPC prove the rape. The merg statement which was seized by the Police is marked as Ex.P-32(C) and it being a suicide note was not part of the charge sheet and the perusal of the records would show that it was produced during the trial. The order sheet dated 08.05.2017 of the learned trial Court would show that on the date when such Ex.P-32, dying declaration was marked, the accused were not before the Court as they could not be brought from jail. The learned Sessions Judge has held that Ex.P-1 which is a report by the victim on which the FIR Ex.P-19 was registered would be admissible under section 32 of the Evidence Act and contents therein have been taken to be true statement of fact and convicted the accused as aforesaid. The learned Sessions Judge has held that Ex.P-1 which is a report by the victim on which the FIR Ex.P-19 was registered would be admissible under section 32 of the Evidence Act and contents therein have been taken to be true statement of fact and convicted the accused as aforesaid. For the sake of brevity, Ex.P-1 which is initial report on which the FIR (Ex.P-19) was registered as follows : Fkkuk izHkkjh Nkouh fnukad 07-01-2015 twu 2014 dks eSa 'kke 6%30 cts,MfeV lqisyk vLirky gqbZ rFkk ew>s ihfy;k gqvk FkkA fQj rhu yksx lkSjHk HkRrk dkWUlVscy] izdk'k ik.Ms dkWUlVscy rFkk MkW- iafMr xkSre esjs ikl jkf= 12%30 cts vk, vkSj dgus yxs dh rqEgkjh,d bUtsD'ku nsuk gksxk eSa cksyh lj eSa flLVj ls ys ywaxh ysfdu mlus dgk dh flLVj lks xbZ gS eq>ls ys yks rks fQj tc eSaus og batsD'ku fy;k rks eq>s pDdj vk x;k fQj og rhuksa eq>s uhps :e esa ysdj x, vkSj mu rhuksa us esjs lkFk xyr dke fd;k vkSj fQj /kedh nh dh vxj fdlh ls ;g ckr cksysxh rks rsjk fofM;ks baVjusV ij Mky nsaxs rks fQj eSusa 20 twu dks gkWfLiVy ls fMLpktZ ys fy;k fQj eSa 10 vDVwcj dks lwcg 5%30 dks eq>s bafMxks dkj esa ysdj dgha nwj x, vkSj fQj ls mu nksuks us esjs lkFk xyr fd;k fQj eq>s 28 vDVwcj dks irk pyk dh eSa izsxusaV gwa fQj eSus 20 fnlEcj dks lkSjHk ds uEcj ij 8253059538 ij dkWy fd;k rks ml dkWy dks mldh eEeh us fjflo fd;k fQj eSaus crk;k dh vaVh eSa izsxusaV gwa rks fQj lkSjHk us 24 fnlacj dks xksyh ykdj fn;k izsxusalh [kRe djus ds fy, rks fQj eSus og xksyh 24 fnlacj 12%00 cts [kk;k vkSj fQj izsxusalh [kRe gks xbZA vkSj esjs lkFk mu rhuksa us nSfgd 'kks"k.k ¼cykRdkj½ fd,A rks fQj eSus ?kj esa 7 tuojh 2015 dks ?kj esa eEeh] ikik vkSj HkbZ;k dks crk;h gwa fQj eSa eEeh ds lkFk,Q-vkbZ-vkj- ntZ djkus ds fy, vk;h ;g rhuksa us esjs lkFk cgqr T;knk xyr fd;s gS eq>s bUlkQ pkfg, D;ksafd eSa vc u fdlh ls 'kknh ugha djuk pkgrh gwa vkSj vc eSa ftUnxh thuk ugha pkgrh gwa bu rhuks dks ltk fnykdj [kqn ¼ihfM+rk vkjrh½ dks bUlkQ nsuk pkgrh gwaA bu rhuksa ls eq>s bUlkQ pkfg, buds }kjk eq>s fjiksVZ djus ij tku ls ekjus dh /kedh nh xbZ FkhA 30. The suicide note produced by the prosecution vide Ex.P-32 which was proved by P.W.19. The relevant portion of the note written by the victim reads as under : Iyht eEeh ikik eq>s ekQ dj nsuk] vc u rks eq>s bUlkQ feysxk vkSj u gh eSa ftUnxh esa vc vkxs cढ ikÅaxh esjh viuh odhy eq>s cksyh gS dh tc :i;ks ls fcd xbZ gS vkSj eq>s dksVZ ls Hkxk fn;k tk,xk vkSj eq>ls esjh odhy 27-01-2016 dks LVkWEi lkbZu djk yh gS blfy, eSa vc viuh ftUnxh [kRe djus tk jgh gqaA vkSj ;s lgh rks gS] tc Hkh eSa c;ku rkjh[k ij nsus tkrh gqa rc tt xk;c jgrh gSA vkSj esjh odhy eq>s lkbZu Hkh ugha djus nsrh gSA blfy, eSa [kRe gks tkÅaxh rks esjh Vsa'ku Hkh [kRe gks tk,xh vkSj eq>s fQj dksbZ jaMh Hkh ugh cksysxkA gks lds rks eq>s ekQ dj nsuk esjh I;kjh ek¡ eq>s ekQ dj nsuk vc vkSj ugh th ldrh esjh bTtr cckZn gks xbZ gSA lkSjHk HkDrk] xkSre iafMr vkSj pUnz izdk'k ik.Ms dh otg ls Q¡klh yxk jgh g¡qA 31. With respect to the suicide made by the daughter, the mother of victim during examination before the Court has made a statement at para 11, the relevant portion of which reads as under : odhy ds }kjk 27-01-16 dks LVkEi i= esa vkjrh ds gLrk{kj djokdj mls /kedh fn, fd] viuk dsl okil ys yks] ugh rks rsjs HkkbZ dks ekj Mkysaxs],oa ftlls vkjrh {kqC/k gks x;h] mls iSls ysdj ekeyk [kre djus dh Hkh /kedh nh tkrh] mls odhy ds }kjk] lkSjHk dh choh] lkSjHk dk ekek],oa mlds firk ds }kjk /kedh nh tkrh Fkh] blfy, esjh iq=h vkjrh us Qkalh yxkdj vkRegR;k dj yhA 32. The suicide note Ex.P-32 was not part-and-parcel of the charge sheet. Therefore, naturally the stated facts were not put to the accused to explain the circumstances as per Section 313 of CrPC. The Supreme Court time and again has held that section 313 is not a mere empty formality. In Kalicharan v. State of UP (2023) 2 SCC 583 while dealing with the requirement of explaining a circumstance appearing in any evidence against the accused the Supreme Court held that section 313 CrPC is not merely an empty formality. At paras 27, 28, 29 the court held thus : “27. In Kalicharan v. State of UP (2023) 2 SCC 583 while dealing with the requirement of explaining a circumstance appearing in any evidence against the accused the Supreme Court held that section 313 CrPC is not merely an empty formality. At paras 27, 28, 29 the court held thus : “27. Questioning an Accused Under Section 313 Code of Criminal Procedure is not an empty formality. The requirement of Section 313 Code of Criminal Procedure is that the Accused must be explained the circumstances appearing in the evidence against him so that Accused can offer an explanation. After an Accused is questioned Under Section 313 Code of Criminal Procedure, he is entitled to take a call on the question of examining defence witnesses and leading other evidence. If the Accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the Accused will not be in a position to explain the said circumstances brought on record against him. He will not be able to properly defend himself. 28. In para 21 of the decision of this Court in Jai Dev v State of Punjab, (1963) 3 SCR 489 : AIR 1963 SC 612 , it was held thus: (SCC pp. 620-21, para 21) 21. In support of his contention that the failure to put the relevant point against the Appellant Hari Singh would affect the final conclusion of the High Court, Mr. Anthony has relied on a decision of this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat, 1951 SCC 1060 : AIR 1953 SC 468 ]. In that case, this Court has no doubt referred to the fact that it was important to put to the Accused each material fact which is intended to be used against him and to afford him a chance of explaining it if he can. But these observations must be read in the light of the other conclusions reached by this Court in that case. It would, we think, be incorrect to suggest that these observations are intended to lay down a general and inexorable Rule that wherever it is found that one of the points used against the Accused person has not been put to him, either the trial is vitiated or his conviction is rendered bad. It would, we think, be incorrect to suggest that these observations are intended to lay down a general and inexorable Rule that wherever it is found that one of the points used against the Accused person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The examination of the Accused person Under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers Under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the Accused person. It would not be enough to put a few general and broad questions to the Accused, for by adopting such a course the Accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the court should put to the Accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not the Accused has been fairly examined Under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the Accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. It is obvious that no general Rule can be laid down in regard to the manner in which the Accused person should be examined Under Section 342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the Accused person. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material. 29. In para 145 of the well known decision of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : 1984 SCC (Cri) 487], it was held thus: “145. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material. 29. In para 145 of the well known decision of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : 1984 SCC (Cri) 487], it was held thus: “145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the Appellant in his examination Under Section 313 of the Code of Criminal Procedure, 1973 have to be completely excluded from consideration.” (Emphasis applied) 33. In the instant case, the questions put to the accused do not touch upon the suicidal note which was marked as Ex.P-32 and the document of merg enquiry, was not supplied to the accused and the record of the proceeding would show that on the date when such examination was made and such documents were exhibited, the accused were not before the Court. Consequently non-supply of such documents and lack of opportunity to the accused to explain any circumstances appearing in the evidence against him would jeopardize their right and would lead to defeat all the rules as the accused were not apprized and supplied the material documents to explain the position of circumstances brought on record against them so as to defend them properly. Therefore in order to hold the written report and suicidal note to be gospel truth, the prosecution needs to establish the circumstances of transaction, which resulted in death. 34. Apart from the aforesaid proposition whether conviction of rape could be sustained by solely admitting the statement of deceased u/s 161 or 164 CrPC or FIR by aid of section 32 of the Indian Evidence Act. Section 32 deals with the cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. It reads as under : “32. Section 32 deals with the cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. It reads as under : “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant – Statements, written or verbal of relevant facts made by a person, who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expenses, which under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases :- (1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 35. In Sudhakar Vs. State of Maharashtra (2000) 6 SCC 671 , the Supreme Court had occasion to deal with similar nature of facts and circumstances wherein the rape was alleged to be committed by the accused and thereafter the prosecutrix committed suicide, leaving behind a suicide note explaining what was done to her and on that basis, the appellants were convicted. At para 5, the Court while elaborating the provisions of section 32 and explaining the phrase ‘circumstances of the transaction’ observed thus : “5. Section 32 of the Evidence Act is an exception to the general rule of exclusion of the hearsay evidence. Statement of a witness, written or verbal, or 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 be procured without an amount of delay or expense, are deemed relevant facts under the circumstances specified in sub-sections (1) to (8). Statement of a witness, written or verbal, or 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 be procured without an amount of delay or expense, are deemed relevant facts under the circumstances specified in sub-sections (1) to (8). Subsection (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, statement 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. State of the victim who is dead is admissible insofar as it refers to the cause of his death or as to any circumstances of the transaction which resulted in his death. 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 mentiri 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 the statement as a fact. 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 the 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.” 36. Further in the said case of Sudhakar (supra) at para 6, the Supreme Court relying on a case law laid down in Pakala Narayana Swami v. Emperor AIR 1939 Privy Council 47 reiterated the observations made therein and held that the statement of prosecutrix does not directly state any fact regarding the cause of her death and at the most it could be stretched to say referring to “circumstances of the transaction” resulting in her death. The Court further observed that the phrase “circumstances of the transaction” was considered and explained in Pakala Narayana Swami v. Emperor (supra), relevant portion of which is extracted – “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/she was proceeding to the spot where he/she was in fact killed, or as to his reasons for so proceeding, or that he/she was going to meet a particular person, or that he/she had been invited by such person to meet him/her 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 transaction” is a phrase no doubt that conveys 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………. It will be observed that circumstances are of the transaction which resulted in death of the declarant. 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………. It will be observed that circumstances are of the transaction which resulted in death of the declarant. It is not necessary that there should be a known transaction other than that the death of declarant has ultimately been caused, for the condition of the admissibility of the evidence is that ‘the cause of (declarant’s) death comes into question.” 37. In the instant case, the statements of the victim i.e., written report (Ex.P-1), FIR (P-19), statement u/s 164 CrPC (P-17) and even the suicide note (Ex.P-32) circumstances do not directly state the facts resulting the cause of her death. Instead, if Ex. P-32 is minutely examined, it would show that she felt certain humiliation in the Court as certain stamp papers were got signed and she was sent away from the Court by taking her signature by the advocate on stamp paper and further it appears that she was not happy with the events that whenever she went to Court to give her statement, it could not be recorded. She explained that she would not be further humiliated and would not be called with any bad name. Reading of it would go to show that prosecutrix does not directly state any fact regarding the cause of her death and at the most it could be stretched to say referring to “circumstances of the transaction” resulting in her death. 38. Therefore, in the instant case, there is no legal evidence to record the finding that making initial report had disclosed her mind for committing suicide due to humiliation suffered by victim because of rape which she was subjected. The evidence of the prosecution would show that the victim did not disclose it for a considerable time. There has been inconsistency in the evidence of prosecution to allow the theory of proximity with any accused. Despite the mobile was seized from the accused, no video or contents were shown to be produced. The inconsistencies also exist in the statements u/s 161 & 164 CrPC compared to each other and also with hear-say statements of father (P.W.2) and mother (P.W.3). Despite the mobile was seized from the accused, no video or contents were shown to be produced. The inconsistencies also exist in the statements u/s 161 & 164 CrPC compared to each other and also with hear-say statements of father (P.W.2) and mother (P.W.3). The MLC report of Ex.P-23 proved by P.W.1 is about no definite opinion and when there are two sets of evidence, the one which supports in favour of the accused is required to be considered. 39. Therefore, though the statements might have been made by the victim about the commission of sexual assault and abortion, but those facts cannot be accepted with the aid of section 32 of the Act which is an exception to the general rule of exclusion of the hearsay evidence. The appellants were not tried for abetment of suicide. In case of homicidal death, the statement made by deceased is admissible only to the extent of proving cause of circumstances of his or her death. 40. For the foregoing reasons, the conviction of the appellants cannot be allowed to sustain. Consequently they are acquitted of the charges. In the result, the appeals are allowed and the impugned judgment of conviction and order of sentence passed by the learned trial Court are set aside. The appellants are stated to be in jail since 2014. They be set at liberty forthwith if not required in any other offence. A copy of this judgment be immediately sent to the Secretary, High Court Legal Services Authority, Bilaspur, for necessary action.