Criminal Appeal (SJ) No.69 of 1997
Against the judgment and order of conviction dated 30. 01. 1997
and order of sentence dated 31. 01. 1997, passed by Shri Jaleshwar
Ram, Additional Sessions Judge, Kishanganj, in Sessions Case
No. 126 of 1996/ Tr. No. 13 of 1996
Raisuddin @ Galra, son of Zahar Ali,
Resident of Village- Malani, Police Station- Thakurganj, District-
Kishanganj.
.... .... Appellant.
Versus
The State Of Bihar
.... .... Respondent.
For the Appellant. : Mr. Ranbir Singh, Amicus Curiae.
For the Respondent
State : Mr. Parmeshwar Mehta, A.P.P.
PRESENT
THE HON'BLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J. Heard learned counsel for the appellant and
learned counsel for the State.
2. The appellant has been convicted for offence
under Section 376, 313 and 304 I.P.C. and sentenced to
undergo imprisonment for seven years for offence under
Section 376 I.P.C., five years for offence under Section
313 I.P.C. and six years for offence under Section 304
Part II of I.P.C.
3. The prosecution case as alleged in the written
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report signed by the victim Pulbati Kumari that she used
to live with her father Rup Lal Ganesh (P.W.2) and
brothers Deo Narayan Ganesh (P.W.1) and Yogi Lal
Ganesh (P.W.3) at village- Biranguri, P.S. Thakurganj,
District- Kishanganj. The appellant Raisuddin used to
come to her house to meet her brother. It is further
alleged that Raisuddin raped her by enticing her. When
she became pregnant she disclosed about pregnancy and
then Raisuddin took her across the river Mechi and get
Jaributi pushed in her vagina through a lady about 9-10
days prior to filing of the written report. When the blood
start oozing out the victim became seriously ill then she
disclosed about the occurrence to her brother Deo
Narayan Ganesh and father.
4. On the written report dated 25. 09. 1995,
F.I.R. was lodged and investigation proceeded. After
investigation charge sheet submitted under Sections 376,
313 and 304 I.P.C. and trial proceeded. During trial,
seven witnesses were examined. Witnesses P.W. 1 and 3
are brothers of the victim who deposed that they got
information through letters from their father P.W.2, Rup
Lal Ganesh that Pulbati Kumari died in Purnea hospital
3
when they were in Punjab and Harayana, so they have
been declared hostile. P.W. 2, father of the victim also
stated that Pulbati Kumari died and he had not heard
about rape. P.W. 4 has been tendered. P.W. 5 is the
Police Officer has proved the signature of Pulbati
Kumari on the written report which has been marked as
Ext. 2. He has also proved Ext. 3, the F.I.R. lodged on
the basis of said written report (Ext. 2). However, in his
cross-examination has stated that the victim when came
to the police station was very weak and was taken to
police station with the assistance of her father and
brothers. She died on 30. 10. 1995. P.W. 5 stated in his
evidence that he did not know through whom the said
written report was got written.
5. P.W.4 is the doctor who conducted autopsy
on her person has stated that cause of death of the victim
septic peritomisis and metritis and such infection can be
possible by putting indigenous medicine like Jaributi
through the vagina. P.W. 6 has stated that he did not
know how she died. P. W. 7 is the I.O. who has only
submitted the charge sheet.
6. The trial court taking into consideration the
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evidence of P.W. 5 who has proved the signature of
Prosecutrix on the written report which has been marked
as Ext. 2. The trial court and further taking into
consideration the evidence of P.W. 5 that Prosecutrix
died in course of investigation in proximity with F.I.R.
lodged on the written report. The trial court treated the
written report in evidence as dying declaration under
Section 32 of the Evidence Act. The trial court further
drawn analogy of the admission of the written report as
dying declaration on the decision reported in 1991 (2)
BLJ 245, where their lordships held that F.I.R. and
Fardbeyan could be read in evidence under Section 294
of Cr.P.C. even if the signature has not been proved by
the prosecution, when genuineness of the signature is not
doubted or challenged. The trial court that is the Learned
Additional Sessions Judge further relying upon decision
reported in A.I.R. 1984 S.C. 1622 drawn an analogy that
Prosecutrix will not tell a lie on the verge of her death.
The trial court taking into consideration the written
report as dying declaration and convicted the appellant
taking the written report as substantive evidence as what
is written in the written report is true and hold that
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Raisuddin has indulged in rape and was instrumental in
miscarriage of the pregnancy and causing death of victim
Pulbati Kumari by septic due to inducing Jaributi in her
vagina.
7. Learned counsel for the appellant however
contended that written report cannot be treated as dying
declaration.
8. Learned counsel for the State however
supported the order of conviction and sentence.
9. The question for consideration whether
conviction can be sustainable treating the written report
as dying declaration.
10. Section 32 of the Evidence Act provided
that statement, written or verbal, made by a person who
is dead with regard to his cause of death is a relevant fact
which is admissible in evidence. Hence the statement of
a person either oral or written who is dead with regard to
his cause of death is dying declaration. However this
statement either oral or written, to be treated as dying
declaration is required to be proved. It has to be proved
that the statement, oral or written actually made by the
deceased. The statement may be oral or verbal or the
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statement may be written but that statement is the
statement of the deceased is required to be proved. But
mere a rumour that deceased was heard by some one is
not admissible in evidence. If the statement is verbal
then it is required to be proved by the person who heard
it. The person who heard must come in dock to say that
he heard the statement. If a person who heard the
statement and recorded it then he may refresh his
memory by seeing the record he made. If the person
who is unable to remember what he has heard then he
may prove the record with assurance that he correctly
recorded it and he may testify the recorded statement.
To prove the statement as written statement it must be
proved that statement was in writing of the person who
made the declaration i.e. in writing of the deceased.
However, if the deceased is unable to write and record
was made on her statement then the person who recorded
the said statement must come before the court to say that
he recorded the statement on dictation of the victim and
further he must satisfy that said statement was read over
to the victim and the victim accepted what was written
on her dictation. This written record must be proved by
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the person who heard it and satisfy the court that same
was read over and explain to the victim which she found
to be correct. However, this proposition of law has been
relied on judgment in Cr. Appeal No. 227 of 1998
decided on 16. 09. 2011.
11. However it is pertinent to mention that mere
formal prove of writing or signature is only prove that
the document has been written by the person but does
not prove the content. However to proof the contents of
the document witness is to be examined on the fact.
12. However, reverting back to the facts and
circumstance of the case, here P.W. 5 has proved the
signature of the victim Pulbati Kumari on the written
report which has been marked as Ext. 2. He (P.W.5) has
not proved that who wrote the content of the written
report on which the victim signed. However, he has
stated in cross-examination that the victim when came to
the police station was very weak. She was brought to
police station being supported by her father (P.W.5) and
brothers (P.W. 1 and P.W.3). He do not know from
whom the contents of the written report, on the basis of
which F.I.R. lodged, was got written. Hence from the
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evidence it emerges that only signature of the victim on
the written report was proved. Who wrote the contents
of the written report has not been established. There is
no evidence at all that the said statement was recorded
on the statement of the victim. There is no evidence at
all of any person in the entire evidence that the victim
ever stated about the contents in the written report.
Hence the status of the written report is not more than a
rumour and merely because signature of the victim has
been proved on the written report, the content of the
written report will not be admissible in evidence under
Section 32 of the Evidence Act for treating it the dying
declaration because it has neither been proved to be
either an oral statement of the deceased. The said
content of the written report has neither been proved as
oral or verbal statement made the deceased. No person
has come forward to say that he heard the victim making
that statement and hence not an oral declaration of the
victim.
13. The said statement is not a written
statement of the victim as the same is neither in the
writing of the victim nor written on her dictation nor has
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been proved that the same has been read over and
explain to her nor that she accept it to be true. The record
of unknown person with a signature of victim is not a
written statement even if it is signed by the victim. As it
is the declaration which is admissible but not the record.
To get the status of declaration it must be established
that the said record was recorded correctly at the
dictation of the declarant and was read over and
explained to her and unless the same is done is not
admissible in evidence treat it as a dying declaration.
14. However, the trial court treated the written
report as dying merely on the pretext that written report
and death of the victim was proximate and draw analogy
on the basis of A.I.R. 1984 S.C. 1622 that Prosecutrix
will not tell a lie.
15. However, it is pertinent to mention that
admissibility or relevancy of the statement oral and
written is one thing, but Section 32 of the Evidence Act
is admissible in Evidence Act as an exception to the
general rule that hearsay evidence has been admitted in
evidence is another thing. However, before treating a
declaration or statement to be a dying declaration it is
10
required to be proved that the statement is really
statement made by the deceased so that rumour may not
take place of prove. The considerations of those
materials are required to be relevant i.e. admissible in
evidence. The mode of prove of oral statement is under
Section 60 of Evidence Act and in case of written
statement under section 64 and 67 of the Evidence Act.
16. However, in decision reported in
A.I.R.1984 S.C. 1622 the evidence of the dying
declaration was the letter of the deceased addressed to
her sisters and friends as well as oral statement made by
the deceased to her father, mother, sisters, and friends.
The father, mother, sister and friends deposed in that
case as P.W. 2, 3, 4, 5, 6 and 20. They in their evidence
stated that the deceased disclosed about the occurrence
of ill treatment about subjecting cruelty and demand.
This evidence and statement of the witnesses about
disclosure by victim admissible in evidence to prove as
oral statement of the deceased. Letter in the writing of
the victim was admissible as written statement in the
writing of the victim. Hence the statement of the victim
which was proved by these witnesses by their
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depositions in court was treated as dying declaration.
17. However, here in the facts and
circumstances of the case, none has come forward to
depose that the victim ever disclosed about the fact
mentioned in the written report. Here the father has
turned hostile and has not supported the case that victim
ever disclosed before him about the rape or about the
fact of termination of pregnancy of putting Jaributi
causing death. Neither P.W. 1 and 3 brothers of the
victim have come forward nor P.W. 6 has come forward
to prove that victim ever disclosed them about rape or
termination of pregnancy the cause of death. Hence
analogy drawn on the basis of decision reported in A.I.R.
1984 S.C. has not sustainable regarding admissibility of
the statement to be treated as dying declaration.
18. The trial court further misconceived drawn
the analogy on the basis of decision reported in 1991 (2)
BLJ 245 that written report admissible in evidence under
Section 294 Cr.P.C. Section 294 Cr.P.C. and decision
reported in 1991 (2) BLJ 245 is only mean to cover those
documents which requires formally proved. To prove
the document formally only mean that document has
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been written by the person, but the content of the
document is not proved by formally proving the
document. One cannot say that by formally proving the
Fardbeyan in writing of the victim, he has proved the
prosecution case to record the conviction. It can only be
said to be a prove that the said Fardbeyan is in writing of
so and so, but to prove the content made in the
Fardbeyan the author of the Fardbeyan is required to
come to prove the fact else it has only the status of
corroborative evidence. The content of a document
which is not substantive evidence is required to be
proved on deposition by a competent witness and to be
tested by cross-examination can never be tendered in
evidence by formal prove. Hence learned trial court
misconceive itself taking the written report as dying
declaration or formally proving the signature of the
victim Pulbati Kumari on written report marked as Ext.
2.
19. However, except written report there is no
evidence at all regarding implication of the accused
person to record conviction and written report cannot be
treated as a dying declaration as written report is neither
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oral nor documentary evidence as there is no evidence to
proof that any statement either written or documentary is
the statement of the deceased with regard to the cause of
death.
20. Hence order of conviction and sentence
recorded by the lower court is hereby set aside and the
appeal is allowed.
Patna High Court ( Gopal Prasad, J.) The...28th...September,2011. NAFR/m.p.
