Multiple Dying Declarations Of Victim Not Consistent, Contrary To Each Other: Rajasthan HC Acquits Accused In 35 Yr-Old Rape Case

Recently, the Rajasthan High Court acquitted all the accused in a rape case from 1989 on the ground that the multiple dying declarations given by the victim were not consistent with each other. Conviction on the basis of such dying declarations that are contrary in material particulars can prove to be unsafe, the court iterated by relying on Bhadragiri Venkata Ravi v. Public Prosecutor High Court of Andhra Pradesh (2013).

The single-judge bench of Justice Anoop Kumar Dhand also emphasized that, on both occasions of recording the dying declarations of the deceased, the certificate as to whether the injured was medically fit to give statements was not obtained from a competent doctor by the police officer. Moreover, these statements were not recorded by or in the presence of a judicial magistrate, which resulted in a clear violation of Rule 6.22 of the Rajasthan Police Rules, 1965, the court noted.

Initially, in the statement recorded on 12.09.1989 at the Hospital, the victim alleged that the accused committed rape twice on her between the intervening night of 8th-9th of September, as a result of which she set herself ablaze on that night itself. Talking further about the specific discrepancies that could be identified through a comparison of the two dying declarations given by the victim, the bench sitting at Jaipur noted as below:

“….This fact is not in dispute that on the very next day, her second Parcha Bayan (Ex.D3) was recorded wherein she has not levelled any allegation against anyone and has specifically stated that it was an accidental fire and she caught the fire when she was putting off the 'deepak' / lamp and her clothes caught fire. Both these dying declarations are contrary to each other.”

In Bhadragiri Venkata Ravi, relied upon by the court, it has been stated by the apex court that courts should not rely on a dying declaration if it does not inspire full confidence about its correctness, as it may be the result of tutoring, prompting, or a product of imagination.

Justice Dhand, however, reminded that each dying declaration is meant to be considered independently on its own merits and cannot be rejected in its entirety for a certain variation in the other declaration. Each such declaration should be cautiously analyzed to ascertain which among them represents 'the true state of affairs', the court added.

The court also added that there are many other aspects of the prosecution version that do not instill any confidence. According to the timeline, the victim's father took her to the hospital only two days after the date of rape and alleged suicide attempt, even after the daughter got severe burns to the extent of 75%. Moreover, the confusion about the date of the injured victim's admission to the hospital, and the absence of a chemical examination report to prove the incident of sexual intercourse also didn't sit well with the single-judge bench.

“…Inspite of receiving the information of rape and fire on 10.09.1989, PW-4 Aasam kept mum for two days and he did not bother to take his injured burnt raped daughter to hospital for treatment and lodge report of such heinous incident to Police. Not taking the injured…to Hospital and not lodging report to the Police for more than two days creates serious doubts on the correctness of the story of the prosecution”, the court opined.

Though the F.I.R. indicated that one of the accused was caught by the villagers on the date of the incident, it's unclear why such an accused was not handed over to the police immediately; the court raised serious concerns about the veracity of the prosecution story.

Concluding that the trial court has erred in convicting the appellants, High Court remarked that the evidence available does not corroborate the occurrence of rape. In the absence of proof about the commission of an offense under Section 376 IPC, the conviction for abetment of suicide under Section 306 can also not be sustained, Justice Dhand underscored by referring to the Delhi High Court decision in Ram Swaroop v. State of Delhi (2017).

For Appellants: Mr. Amit Singh Shekhawat, Mr. Vipul Jain & Mr. Sunil Jain

For Respondent: Mr. Atul Sharma, PP

Case Title: Man Singh S/o Samantaram & Anr. v. State of Rajasthan

Case No: S.B. Criminal Appeal No. 445/1991

Citation: 2024 LiveLaw (Raj) 58

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