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 2 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 4 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 5 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 6 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 7 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 8 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 9 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 11 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 12 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 13 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 The…28th…September,2011. NAFR/m.p. ( Gopal Prasad, J.)