Uzzal @ Elias Hossain Vs. The State [4 LNJ AD (2015) 220]

Case No: Criminal Appeal No. 54 of 2008

Judge: Nazmun Ara Sultana,

Court: Appellate Division ,,

Citation: 4 LNJ AD (2015) 220

Case Year: 2015

Appellant: Uzzal @ Elias Hossain

Respondent: The State

Subject: Dying Declaration,

Delivery Date: 2015-03-11


APPELLATE DIVISION
(CRIMINAL)
 
Surendra Kumar Sinha, CJ.
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Hasan Foez Siddique, J.


Judgment on
11.03.2015
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Uzzal @ Elias Hossain
. . . Appellant
=Versus=
The State
. . . Respondent
 
Evidence Act (I of 1872)
Section 32(1)

When any statement is made by a person as to cause of his death or as to any of the circumstances which resulted in his death, the same is admissible in evidence in a case in which the cause of death of that person comes into question. The expression “any of the circumstances of the transaction which resulted in his death” in the above quoted clause (1) of section 32 is wider than the expression “the cause of his death”. The words “resulted in his death” do not mean “caused his death”. Death may be homicidal or suicidal and, therefore, the word ‘death’ includes suicidal death. So, the statement of a person, who commits suicide, also is admissible under section 32 of the Evidence Act in any proceeding in which the cause of his death comes into question provided the statement relates to the cause of his committing suicide or exhibits circumstances leading to his suicidal death. . . . (23)

Evidence Act (I of 1872)
Section 32(1)

In a rape case, the victim of which, being highly shocked and humiliated by the commission of rape on her, committed suicide her statement as to rape and rapists is admissible in evidence according to section 32(1) of the Evidence Act. . . . (24)

Evidence Act (I of 1872)
Section 32(1)

Victim Mahima, being highly humiliated and shocked by the commission of gang-rape on her, committed suicide. The reason of her committing suicide is the commission of forceful gang-rape on her. In other words, the commission of gang-rape on her resulted in her committing suicide. Rape itself might not have caused her death, but rape certainly was the cause of her committing suicide. So, there cannot be any argument against the conclusion that commission of rape on victim Mahima resulted in her death. . . . (25)

Evidence Act (I of 1872)
Section 32(1)
The definite case of the prosecution is that being highly humiliated and shocked by the commission of gang-rape on her victim Mahima committed suicide. So, in this case of rape the cause of death also of victim Mahima comes into question. It needs to be mentioned here that section 32(1) of the Evidence Act has made statement of a dead person relating to cause of his death admissible in all kind of proceedings in which the cause of his death comes into question. . . . (26)

Evidence Act (I of 1872)
Section 32(1)

In our country the incident of rape is rampant. Very often the victims of rape commits suicide being highly humiliated and shocked by such rape on her. Generally there is no eye-witness of such rape, the only witness of such rape is the victim herself. The victims of rape sometimes narrate the commission of rape on them and disclose the names of the rapists to their near and dear ones before they commit suicide. In such cases the only evidence that may be made available is the hearsay evidence of such near and dear ones of the victims of rape. To hold that such hearsay evidence in a case of rape is inadmissible would be negation of justice and clear misinterpretation of the provision of section 32(1) of the Evidence Act. . . . (28)

Evidence Act (I of 1872)
Section 32(1)

Failure to punish the rapists even after discloser of their names by the victim of rape before her committing suicide is not only a great injustice to the victim of rape but injustice to the society also. . . . (30)

For the Appellant: Mr. S. M. Shahjahan, Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record.
For the Respondent: Mr. Momtazuddin Fakir, Additional Attorney General instructed by Mrs. Mahmuda Begum, Advocate-on-Record.

Criminal Appeal No. 54 of 2008
 

JUDGMENT
Nazmun Ara Sultana, J.

This Criminal Appeal, by leave, at the instance of the convict-appellant Uzzal @ Elias Hossain is directed against the judgment and order dated 28.11.2006 and 29.11.2006 passed by the High Court Division in Death Reference No.47 of 2002 heard along with Criminal Appeal No.3448 of 2002 and Jail Appeal No.593 of 2002 rejecting the death reference and dismissing the appeals with modification of sentence of death imposed on the present accused-appellant and 3 other absconding accused to imprisonment for life with fine of Tk.25,000/-, in default, to suffer rigorous imprisonment for 6(six) months more finding them guilty under section 9(1) instead of section 9(2) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 as found by the Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Rajshahi in Nari-O-Shishu Nirjatan Case No.284 of 2000.

The prosecution case, in short, is that on 15.02.2002 at 5.00 P.M. 4 accused persons, namely, Uzzal @ Elias Hossain, Md. Farid, Md. Kamrul Hasan @ Faroque and Md. Selim Hossain, being armed with ‘hashua’, ‘chhora’, knife etc. forcibly kidnapped victim Mahima, aged about 14 years from her father’s house and took her to the nearby Bakkar’s sugar cane field and raped her there one after another. They also took naked photographs of the victim girl. Thereafter Mahima came home crying and informed the occurrence to her younger sister and to her mother and also to her brother and father when they returned home that night. The father of the victim Mahima then went to the parents and guardians of the accused persons and asked for justice and return of the said photographs and negatives, but they rebuked him and commented also that his daughter was of bad character. Thereafter on 19.02.2002 at about 11.30 A.M. the victim Mahima due to sufferings from humiliation and to preserve her self-respect and honour, took poison. She was immediately taken to Putia Hospital where she died that day at 1.00 P.M. The father of the victim Mahima then lodged First Information Report on that very day at 11.15 P.M. on the basis of which Putia Police Station Case No.21 dated 19.02.2002 was started. After completion of investigation the police submitted charge sheet against the accused persons under sections 7/9(3)/10(2) of the Nari-O-Shishu Nirjatan Daman Ain, 2000. The case was ultimately sent to the Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Rajshahi for trial where it was registered as Nari-O-Shishu Nirjatan Case No.284 of 2000. This Nari-O-Shishu Nirjatan Daman Bishesh Adalat (hereinafter referred to as adalat) held trial of the case after framing charge under sections 7/9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 against all the 4 accused persons. The charge so framed was read over to accused Uzzal @ Elias Hossain (the present appellant) who alone faced trial. The other 3 accused persons being absconding were tried in absentia. Accused Uzzal @ Elias Hossain pleaded not guilty and claimed to be tried in accordance with law.

The prosecution examined 20 witnesses and tendered one. The defence did not examine any witness. The accused Uzzal @ Elias Hossain was examined under section 342 of the Code of Criminal Procedure. The defence case of this accused-appellant was of innocence and also that out of enmity and political rivalry he was falsely implicated in this case. However, upon consideration of the evidence adduced by the prosecution and the facts and circumstances the learned judge of the adalat found all the 4 accused persons guilty under sections 7 and 9(2) of the Nari-O-Shishu Nirjatan Daman Ain, 2000, but sentenced them under section 9(2) only to death and also to pay a fine of Tk.1,00,000/- each to be paid to the victim’s father as compensation by the judgment and order dated 09.10.2002. The learned Judge of the adalat made a reference under section 374 of the Code of Criminal Procedure to the High Court Division for confirmation of death sentences imposed upon the convicted accused persons on the basis of which the above mentioned Death Reference No.47 of 2002 was started.

The convicted accused Uzzal @ Elias Hossain also preferred the above mentioned Jail Appeal No.593 of 2002 and Criminal Appeal No.3448 of 2002 against that judgment and order of conviction and sentence passed by the adalat. A Division Bench of the High Court Division heard the death reference and the above mentioned criminal appeal and jail appeal together and by the impugned judgment and order rejected the death reference and dismissed both the criminal appeal and the jail appeal but modified the conviction and sentence imposed by the adalat as already mentioned above.

Being aggrieved by this judgment and order of the High Court Division the convicted accused-appellant Uzzal @ Elias Hossain filed Criminal Petition for Leave to Appeal No.215 of 2007 before this Division. This Division granted leave to consider the submissions of the learned Counsel for the leave-petitioner to the effect that there is no legal evidence at all about the alleged commission of rape by the petitioner or by other accused on victim Mahima and that the evidence of P.W.1-the father of the victim, P.W.3-the nephew of P.W.1, P.W.5-the son of P.W.1, P.W.6-the daughter of P.W.1, P.W.7-the brother of P.W.1 and P.W.8-the wife of P.W.1, being  the evidence of close relations and interested witnesses their evidence that the occurrence was narrated to them by the victim girl cannot be taken to have corroborated the occurrence allegedly narrated to them by the victim girl, more so when victim girl herself was not examined before the adalat as a witness as she died soon after the occurrence.

Mr. S. M. Shahjahan, the learned Advocate appearing for the convicted accused-appellate Uzzal @ Elias Hossain has advanced arguments before us to the effect that in this case there is practically no legal evidence at all to prove the prosecution case that this accused-appellant along with others committed rape on the victim girl Mahima. The learned Advocate has submitted that admittedly there is no eye witness of the alleged occurrence of rape committed on Mahima and the victim Mahima herself also could not give evidence before the adalat as she committed suicide soon thereafter; that some close relations of the victim Mahima though deposed in this case stating that victim Mahima told them that she was gang-raped by the four accused persons, but the evidence of these witnesses being hearsay evidence is inadmissible and as such cannot be relied on for convicting the accused persons. The learned Advocate has argued that though there are some exceptions to the rule against admissibility of hearsay evidence as provided in section 32 of the Evidence Act, but the facts and circumstances of this case do not attract the provisions of this section 32 of the Evidence Act; that since admittedly the victim girl Mahima committed suicide four days after the alleged incident of rape the cause of her death being not the rape her alleged narration of the incident of rape committed on her by the accused persons is not admissible in evidence under section 32 of the Evidence Act. The learned Advocate for the accused-appellant has made submissions to the effect also that the P.Ws.1, 3, 5, 6 and 8 being very close relations of the victim girl Mahima, their evidence also, in the absence of corroboration by independent witnesses, cannot be relied on safely, that these witnesses being highly interested witnesses their evidence to the effect that the incident of rape was narrated to them by the victim girl herself cannot be relied on as true. The learned Advocate for the accused-appellant has made further submissions to the effect that in this case the very alleged fact that victim Mahima was raped has not been proved beyond reasonable doubt. The learned Advocate has argued that though in the post mortem examination report of the dead body of victim Mahima it was stated that victim Mahima was raped forcefully, but this post mortem examination report also cannot be relied on safely inasmuch as in the inquest report there is no mention of any such injury on the dead body of victim Mahima suggesting commission of forceful rape on her.

The learned Advocate has contended that since there is no legal evidence to prove the charge against this accused-appellant the accused-appellant is entitled to be acquitted, that both the High Court Division and the adalat has committed wrong and illegality in convicting this accused-appellant.

Mr. Momtazuddin Fakir, the learned Additional Attorney General for the State-respondent has made submissions to the effect that in this case the post mortem examination report and the evidence of as many as 3 doctor witnesses-who held post mortem examination on the dead body of victim Mahima-have sufficiently proved that the victim Mahima was gang-raped before she committed suicide. The learned Additional Attorney General has argued that the inquest report cannot falsify the postmortem examination report which was prepared by a medical board consisting of 3 doctors-who had no reason to prepare an incorrect postmortem examination report. The learned Additional Attorney General has argued also that in this case though there is no eye witness of the alleged occurrence of rape, but so many natural and probable witnesses have deposed before court on oath to the effect that victim Mahima herself narrated the occurrence of rape committed on her by the 4 accused persons immediate after that occurrence and that since victim Mahima committed suicide soon thereafter the evidence of these witnesses are admissible in evidence according to the provisions of Evidence Act. The learned Additional Attorney General has argued that section 32 of the Evidence Act has provided some exceptions to hearsay rule and that the facts and circumstances of the present case justify the acceptance of the evidence of these witnesses under section 32(1) of the Evidence Act. The learned Additional Attorney General has argued that the learned Judge of the adalat and also the learned Judges of the High Court Division did not commit any wrong or illegality in relying upon the evidence of P.Ws.1, 3, 5 , 6 and 8-who all have deposed before court on oath that immediate after the occurrence of rape the victim girl Mahima herself narrated the occurrence of rape committed on her by the four accused persons. The learned Additional Attorney General has made submissions to the effect also that these P.Ws.1, 3, 5, 6 and 8 though are close relations of victim Mahima, but for this reason only their evidence cannot be discarded, rather in the facts and circumstances of this case these witnesses are most natural witnesses and there is no reason at all to disbelieve the evidence of these witnesses. The learned Additional Attorney General has contended that this accused-appellant and the other 3 accused  persons have been rightly found guilty of the offence under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and rightly convicted and sentenced thereunder.

We have considered the submissions of the learned Advocates of both the sides and gone through the impugned judgment, that of the Nari-O-Shishu Nirjatan Daman Bishesh Adalat and also the evidence on record.

In this case it is not disputed that victim Mahima, a minor girl of 14 years of age committed suicide by taking poison. Nevertheless the prosecution has proved by adducing necessary evidence that on 19.02.2002 victim Mahima committed suicide by taking poison. The evidence of P.W.18-Md. Abdul Baki Miah, Professor and Head of Forensic Department, Rajshahi Medical College Hospital, coupled with the postmortem examination report of the dead body of victim Mahima and the evidence of near relations of victim Mahima have proved sufficiently that the victim Mahima committed suicide by taking poison on 19.02.2002.

One of the questions raised in this appeal is whether victim Mahima was raped forcefully before she committed suicide. Both the adalat and the High Court Division, on careful examination and consideration of the evidence adduced by the prosecution, have arrived at a concurrent finding that the victim Mahima was gang-raped before she committed suicide. This concurrent finding of the adalat and the High Court Division does not require to be examined in this appeal inasmuch as leave to appeal was granted to consider only whether there is legal evidence to prove the commission of rape on victim Mahima by this accused appellant and other 3 absconding accused persons. However, since the learned Counsel for the appellant, at the time of making argument before us and also in the concise statement has pointed out some  discrepancies in between postmortem examination report and the inquest report of the dead body of Mahima and has argued that in view of the inquest report it cannot be said that the victim Mahima was raped before she committed suicide, we shall discuss and consider the evidence adduced by the prosecution to prove the fact that the victim Mahima was raped before she committed suicide.

The prosecution has adduced the postmortem examination report of the dead body of victim which has been marked as exhibit-6 and has also examined 3 doctors, the P.W.12-Dr. Md. Amdadur Rahman, P.W.13 Dr. Md. Anamul Haque and P.W.19 Dr. Md. Ashraful Alam-who were members of the Board of doctors which conducted the post mortem examination on the dead body of the victim Mahima and issued the exhibit-6. The P.W.12 gave evidence stating details of the injuries found on the dead body of Mahima which included 2 semi healed up echymosis on her inner and medial aspect of right upper thigh each measuring 1 inch in diameter, 3 semi healed up echymosis detected over inner and medial aspect of left upper thigh each measuring 1¼  inch in diameter, 2 semi healed up tooth bite marks detected over right breast each measuring 1/6” X 1/10”, 2 semi healed up scratch abrasion over  left breast measuring ½ X inch. The P.W.12 deposed also that the vulva and vagina of the victim were found congested, bruised and oedematous, vaginal canal was dilated, congested and bruised, hymen was ruptured. The P.W.12 has proved the postmortem examination report-the exhibit-6 prepared by them before court. The P.W.13 and P.W.19 also deposed before court in support of the postmortem examination report. In this postmortem examination report these doctor witnesses gave opinion to the effect that there were positive findings of forceful sexual act and assault on the person of Mahima. This postmortem examination report of the dead body of victim Mahima coupled with the evidence of these doctor witnesses have proved sufficiently that the victim Mahima was raped forcefully. The very nature of injuries found on the private parts of the body of the victim Mahima tells clearly that victim Mahima was raped forcefully before she committed suicide. In the opinion of doctors-the experts in this regard-Mahima was raped forcefully before her death. We find no reason not to rely on this opinion of the doctors. There is no suggestion even from the side of the accused persons as to why these 3 doctors would prepare an incorrect or false postmortem examination report and would depose lie before court on oath. The contention of the learned Advocate for the accused-appellant that since in the inquest report prepared by the police there is no mention of any such injuries found on the dead body of victim Mahima this postmortem examination report cannot be relied on-is not acceptable at all. It appears that the High Court Division, in its judgment, has rightly clarified the alleged discrepancy between the postmortem examination report and the inquest report. The High Court Division has clarified the discrepancy between the inquest report and the postmortem examination report on the dead body of the victim Mahima thus:-

“........... we note from the inquest report that the victim was fully clothed at the time of the inquest and, therefore, it is expected that injuries on the lower and upper parts of the thigh of the victim as well as those on her breasts would not be visible and hence that would explain why the injuries were not seen at the time of inquest.”

However, we find no reason at all not to rely on the postmortem examination report which was prepared by a medical board consisting of 3 doctors, as well as the evidence of these 3 doctors before court. In our opinion, in this case, it has been well proved that the victim Mahima was subjected to forceful rape before she committed suicide.

Now about the main question which is to be answered in this appeal. The question is whether there is any legal evidence to prove that this accused-appellant Uzzal @ Elias Hossain along with 3 other absconding accused persons committed rape on victim Mahima. In this case there is no eye witness of this incident of rape. Mahima, the victim of this rape also is no more in this world as she committed suicide shortly after commission of that rape on her. However, the prosecution case is that immediate after commission of rape on her the victim girl Mahima herself narrated the commission of rape on her by the 4 accused persons to some of her close relations, namely, her father-the P.W.1, her mother-the P.W.8, her sister-the P.W.6, her brother-the P.W.5 and also her cousin-the P.W.3. All these above named prosecution witnesses have deposed before court supporting this prosecution case.
The P.W.1, Abdul Hannan-the father of the victim Mahima and also the informant-has deposed to the effect that her daughter Mahima narrated the occurrence to her mother, sister, brother and to him in details. She (Mahima) told them that the accused Farid, Faroque, Selim and Uzzal being armed with ‘hashua‘,‘chhora‘, knife etc. abducted her from his house and took her to the nearby sugarcane filed where they undressed her and raped her one after another; accused Farid took photographs of Mahima when Selim was committing rape on her. That Mahima came home crying and narrated the occurrence to her younger sister Fahima first and then to her mother when she returned home. That when he (the witness himself) returned home from Taherpur Hat at 9.00 P.M. he was told about the occurrence by his wife and also by Mahima herself and her younger sister. That he then went to the father/guardians of the accused persons and informed them about the occurrence demanding justice and return of those photographs and negatives, but was refused and rebuked; that since his requests and begging did not bear any fruit, his daughter Mahima, in order to save her honour and self respect, took poison at about 11.30 A.M. on 19.02.2002. She was immediately admitted to Putia Hospital where she died at about 1.00 P.M. Thereafter he lodged the ejher which was marked exhibit-1 as per his identification. This witness was cross-examined at length on behalf of the accused persons, but nothing could be brought out from him to raise any suspicion about the truth of what he has deposed before court.

The P.W.3, Md. Anwar Hussain has deposed to the effect that on the next morning of the occurrence at 8.00 A.M. he went to the house of the informant and at that time the wife of the informant and the victim girl Mahima herself told him that the accused Uzzal, Farid, Selim and Faroque abducted her at the point of knife, ‘chhora‘ and took her to a sugarcane fled of Abu Bakkar and raped her there one after another. This witness stated further that on sunday at about 8/9.00 A.M. hearing hue and cry he went to the house of the informant and saw there accused Uzzal, Farid, Faroque and Selim and their father/guardians who were abusing the informant telling him that his daughter was of immoral character and that if he persisted with regard to this occurrence then his daughter’s obscene photographs would be pasted at all the street corners. This witness has identified the accused Uzzal in dock and stated also that the other 3 accused persons are absconding since after the occurrence.

The P.W.5, Md. Jahangir Alam-the elder brother of the victim also deposed to the effect that on the date of occurrence he left the house in morning and returned at about 8.30/9.00 P.M. when his mother told him that accused Farid, Faroque, Selim and Uzzal abducted Mahima from their house in her absence in the afternoon on that day and took her to the sugarcane filed of Abu Bakkar and raped her there one after another and also took pictures of Mahima when she was being raped. That on his asking Mahima also narrated that occurrence to him.

The P.W.6, Fahima Khatun-younger sister of the victim also has fully corroborated the prosecution case by stating to the effect that on the date of occurrence her brother left the house in the morning at 6.00 A.M. and her father went to the market at 1.00 P.M. and that at 3.00 P.M. she and her sister Mahima went to watch TV at the house of their uncle Abdul Wahed and Mahima returned home at 4.00 P.M. while she remained there until 10/15 minutes before dusk; when she returned home she found Mahima crying and upon her query she told her that at about 5.30 P.M. when there was no one else at home, accused Uzzal, Farid, Faroque and Selim suddenly threatened her with ‘chhora‘ and knife and tide a ‘gamcha’ to her mouth and took her to the sugarcane filed of Abu Bakkar and undressed her and raped her one after another; Mahima had told her also that while Selim was raping her accused Farid took pictures of her in the nude and accused Uzzal said that he could now make blue films. This P.W.6 stated also that when her mother reached home just after magrib prayer she and Mahima narrated the whole occurrence to her and at 8.00 P.M. when her brother reached home her mother and Mahima narrated the occurrence to him and when her father returned home at 9.00 P.M. her mother and Mahima narrated the occurrence to him also.

The P.W.8 Mst. Sanowara is the mother of the victim. This witness also has fully corroborated the prosecution case. She has stated to the effect that immediate after the occurrence when she returned home his daughter victim Mahima told her crying that the accused Farid, Faroque, Selim and Uzzal abducted her and took her to the sugarcane field of Abu Bakkar and raped her there one after another and also took obscene pictures of her.

All these above named prosecution witnesses have been cross-examined at length on behalf of the accused persons, but nothing material could be brought out to make the evidence of these witnesses false or unreliable. We find no reason to disbelieve the evidence of these witnesses. Rather, we find that the above stated evidence of P.Ws.1, 3, 5, 6 and 8 have proved well the very fact of narration of the incident of rape by the victim Mahima herself to her near relatives immediate after commission of that rape on her. From the side of the accused-appellant it has been argued that the P.Ws.1, 3, 5, 6 and 8 being close relations of the victim Mahima are all interested witnesses and as such their evidence cannot be relied on unless corroborated by independent witnesses. But we are unable to accept this argument of the learned Advocate for the accused-appellant. Rather, we find that in the facts and circumstances of the present case these prosecution witnesses, namely, the P.Ws.1, 3, 5, 6 and 8 are most natural and probable witnesses. It is most natural and probale that victim Mahima-a minor girl of 14 years only, being gang-raped by 4 accused persons, would disclose about that rape on her to her close relations only. It cannot be expected that victim Mahima would disclose about the commission of rape on her to many other non-related persons also. In our society where rape on a girl is considered as most shameful and disgraceful for the girl, the non-discloser of the fact of commission of rape on her by the victim Mahima  to many other non-related persons is most natural. The defence though suggested that there were enmity and ill feelings between the informant side and the accused persons for political and other reasons and out of that enmity the informant and his other relations deposed falsely against the accused persons, but those defence suggestions were not substantiated at all by any evidence or by cross-examining the prosecution witnesses. Both the trial court and the High Court Division have concurred that the suggested enmity in between the informant side and the accused persons have not been proved at all. In the circumstances we find no reason to disbelieve the evidence of the P.Ws.1, 3, 5, 6 and 8 as to the fact that immediate after commission of rape on her victim Mahima narrated the said occurrence of rape to these witnesses. The evidence of these P.Ws. as to the fact that immediate after the commission of rape on her victim Mahima told them about that rape-is direct and as such there cannot be any controversy about admissibility of this part of evidence of these P.Ws.

Now the question is whether the evidence of these P.Ws.1, 3, 5, 6 and 8 stating what they were told by the victim Mahima are admissible in evidence or not. The evidence of these witnesses disclosing what they heard from victim Mahima about commission of rape on her by the accused persons are, no doubt, hearsay evidence.

As a general rule hearsay evidence is excluded and direct evidence must always be given. But there are important exceptions to this rule. Section 32 of our Evidence Act has provided some exceptions to this rule of exclusion of hearsay evidence. The relevant portion of section 32 of the Evidence Act is quoted below:-
 
            “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 expense 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.”

From the above quoted provision of section 32 of the Evidence Act it is evident that when any statement is made by a person as to cause of his death or as to any of the circumstances which resulted in his death, the same is admissible in evidence in a case in which the cause of death of that person comes into question. The expression “any of the circumstances of the transaction which resulted in his death” in the above quoted clause (1) of section 32 is wider than the expression “the cause of his death”. The words “resulted in his death” do not mean “caused his death”. Death may be homicidal or suicidal and, therefore, the word ‘death’ includes suicidal death. So, the statement of a person, who commits suicide, also is admissible under section 32 of the Evidence Act in any proceeding in which the cause of his death comes into question provided the statement relates to the cause of his committing suicide or exhibits circumstances leading to his suicidal death.

So, in a rape case, the victim of which, being highly shocked and humiliated by the commission of rape on her, committed suicide her statement as to rape and rapists is admissible in evidence according to section 32(1) of the Evidence Act.

In the present case victim Mahima, being highly humiliated and shocked by the commission of gang-rape on her, committed suicide. The reason of her committing suicide is the commission of forceful gang-rape on her. In other words, the commission of gang-rape on her resulted in her committing suicide. Rape itself might not have caused her death, but rape certainly was the cause of her committing suicide. So, there cannot be any argument against the conclusion that commission of rape on victim Mahima resulted in her death.

The definite case of the prosecution is that being highly humiliated and shocked by the commission of gang-rape on her victim Mahima committed suicide. So, in this case of rape the cause of death also of victim Mahima comes into question. It needs to be mentioned here that section 32(1) of the Evidence Act has made statement of a dead person relating to cause of his death admissible in all kind of proceedings in which the cause of his death comes into question.

Victim Mahima narrated the commission of rape on her by 4 accused persons to P.Ws.1, 3, 5, 6 and 8 and these P.Ws. have deposed before court on oath to that effect. The evidence of these P.Ws. to the effect that victim Mahima stated to them that the accused persons committed rape on her, therefore, though hearsay, is admissible in evidence according to section 32(1) of the Evidence Act.

In our country the incident of rape is rampant. Very often the victims of rape commits suicide being highly humiliated and shocked by such rape on her. Generally there is no eye-witness of such rape, the only witness of such rape is the victim herself. The victims of rape sometimes narrate the commission of rape on them and disclose the names of the rapists to their near and dear ones before they commit suicide. In such cases the only evidence that may be made available is the hearsay evidence of such near and dear ones of the victims of rape. To hold that such hearsay evidence in a case of rape is inadmissible would be negation of justice and clear misinterpretation of the provision of section 32(1) of the Evidence Act.

Failure to punish the rapists even after discloser of their names by the victim of rape before her committing suicide is not only a great injustice to the victim of rape but injustice to the society also.

Now the question comes whether the victim Mahima told the truth to her near relatives. It has been well proved in this case that the victim Mahima was raped forcibly before she committed suicide. We find no reason why the victim Mahima would falsely implicate these four accused persons letting the real rapists escape. She was gang-raped and immediate after that occurrence of gang-rape she disclosed the names of these accused persons as rapists to her near relations. We find no reason not to believe these statements of the victim Mahima as true.

So, from the above discussion it is evident that in this case though there is no direct evidence of commission of rape on the victim Mahima by the accused persons, but there are some other indirect evidence, which are quite admissible in evidence as per section 32(1) of the Evidence Act and these evidence have proved beyond all reasonable doubt that this accused-appellant Uzzal @ Elias Hossain along with 3 other convicted accused persons committed rape on victim Mahima. In our opinion the Adalat as well as the High Court Division did not commit any wrong at all in finding these four accused persons guilty of having committed the offence of rape on victim Mahima.

            We find no reason to interfere with the impugned judgment and order of the High Court Division.

            In the circumstances this criminal appeal be dismissed.