NARAIN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellant, Narain Singh, has been convicted under Section 376 of the Indian Penal Code, and has been sentenced to undergo rigorous imprisonment for seven years thereunder.

(2.) THE facts of the case, which lie within a narrow compass, are these : It is said that, on the 21st of March, 1958, at about 4 a. m. appellant Narain Singh came to the house of Keshri Kaharin P. W. 1 and asked her and her daughter, Kari Kaharin, to harvest rabbi crops from his fields. As P. W. 1 Keshri Kaharin was not well at that time, she asked her daughter, Kari, to accompany the appellant for the purpose of harvesting the rabbi crops. THEreupon, Kari took one hasua and went with the appellant. After about one hour, Kari returned weeping to her house. It is said that, on inquiry by Keshri P. W. 1 and Sabitwa Kaharin P. W. 3, Kari told them that, while, she was harvesting the rabbi crops, the appellant threw her on the ground and forcibly raped her, According to the prosecution, the other witnesses, namely, P. W. 2 Basdeo Ram, P. W. 5 Moti Ram, P. W. 6 Somar Kumhar and P. W. 7 Sarjoo Singh, were also present at the time when Kari made the above statement to her mother, P. W. 1, and her aunt, P. W. 3. On inquiry by some of the witnesses about the spot where Kari was raped, the latter went to a field called Pacheari Bandh and pointed out a place-where she was alleged to have been raped. It is said that Kashi Singh, the father of the appellant, along with his wife, came to the house of Kari and made some indecent proposals asking Kari to remain in their house as a concubine. THE proposal put forward by the parents of the appellant was strongly resented by P. W. 1 the mother of Kari, and others. Kari was very such upset, and it is said that she openly stated that, since her chastity was gone she would not show her face to anybody and would end her life. People tried to console her and told her that steps would be taken to settle the matter. Sabitwa Kaharin P. W. 3 went to the Mukhiya of the village for the purpose of settling the matter, but she could not meet him. At about 12 noon that day, it is said that Kari, after putting kerosene oil on her clothes, set fire to her body. After some time she ran out of her house and fell down in the lane in front of her house. On alarm being raised, the neighbours came. THE girl was then removed to Hisua hospital at about 4 p. m. where the medical officer tried to save the girl, but he failed in his attempt. THE Sub-Inspector of Police of Hisua police station was informed by the medical officer for recording the dying declaration of the girl, but, before her statement could be recorded, the girl died on the night of the 21st of March, 1958. THE far3beyan Exhibit 2 of Keshri Kaharin was recorded, on the basis of which the first information report Exhibit 3 was drawn up by the Assistant Sub-Inspector of Police P. W. 10. After completing investigation, charge-sheet was submitted by the Sub-Inspector of Police P. W. 1.1 on the 30th of April, 1958. An inquiry under Chapter XVIII of the Code of Criminal Procedure followed, and the appellant was committed to the Court of Session to stand his trial under Section 376 of the Indian Penal Code.

(3.) THE Learned Assistant Sessions Judge has also taken the view that the statement of Kari Kaharin was admissible in evidence under Section 32(1) of the Evidence Act. Mr. K. P. Verma, learned Standing Counsel appearing for the State, frankly conceded that the statements of Kari Kaharin could not be admissible under Section 32(1) of the Evidence Act. That section refers to the actual cause of death or to the transaction resulting in death. In the instant case the rape on Kari cannot be said to be the cause of her death or transaction resulting in her death. It might have been the motive which led the unfortunate girl to set fire to her body ultimately resulting in her death. THE learned Assistant Sessions Judge has wrongly taken the view that the statements alleged to have been made by Kari to P.W. 1 and others are admissible under Section 32(1) of the Evidence Act. In my opinion, the case is not] covered by illustration (a) of Section 32 for the simple reason that Kari did not receive the bum injuries resulting in her death in the transaction in the course of which she was ravished.