Criminal Appeal (SJ) No.227 of 1998 Against the judgment and order of conviction dated 06.06 1998 and order of sentence dated 19. 06. 1998, passed by Shri Bal Krishna Poddar, 5th Additional District & Sessions Judge, Muzaffarpur, in Sessions Trial No. 176 of 1987. 1. Umesh Sah , son of Late Thagan Sah. 2. Lalo Devi, wife of Umesh Sah. Both resident of Mohalla- Purani Dharamashala, P.S. Muzaffarpur Town, District- Muzaffarpur. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Suraj Narain Pd. Sinha, Senior Advocate. Mr. Rakesh Kumar Sinha, Advocate. Mr. Mukesh Kumar, Advocate. Mrs. Meera Kumari, Advocate. Mr. Shivjee Singh. Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’ABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted for offence under Section 306 of Indian Penal Code and sentenced to undergo rigorous imprisonment for six years and further convicted for offence under Section 498 A I.P.C. and sentenced to undergo rigorous imprisonment for two years. 3. The case proceeded on the Fardbeyan of the victim recorded by S.I. M. P. Singh (not examined) of town P.S. of Sadar Police Station on 02.02.1985 at 8.05 2 A.M. to this effect “ my name is Veena Kumari alias Munni Devi, wife of Gopal Sah, Mohalla……..P.S. Nagar, District Muzaffarpur. I on 02.02.1985 at 8.05 A.M. is making statement before Darogaji of Town P.S. that my father-in-law Umesh Sah and mother-in-law always used to vex me on some pretext or other and sometimes even they assaulted me. Being aggrieved today on 02. 02. 1985 at 7.15 A.M. I sprinkle kerosene oil on my body and set on fire by matches. I have no complain against my husband. I am satisfied with my husband, but have done the occurrence only to my father- in-law and mother-in-law. This is my statement. I understood the statement read over to me and understood well and found it correct. But I am feeling suffocation so I am giving my thumb impression instead of my signature”. 4. On the said Fardbeyan of the informant, there is endorsement of Dr Ganesh Mahto. (P.W.2) as follows; “……. The statement recorded before me.” On the Fardbeyan, F.I.R. lodged and after investigation charge sheet submitted. Cognizance taken and case is committed to the Court of Sessions. Charge framed and witnesses examined. 5. The trial court convicted the appellants on 3 consideration that all the material witnesses deposed that they saw the victim burning. The doctor who conducted post mortem found death by burn injury. The main evidence to base conviction is the Fardbeyan (Ext.3) of the victim recorded by the S. I. M. P. Singh at Sadar hospital after the occurrence which was treated as dying declaration on the basis of which the F.I.R. (Ext. 2) was lodged. The said Fardbeyan was formally proved by P.W.8 as in the writing and signature of S.I., M. P. Singh which has been marked as Ext. 3. However, the said Fardbeyan neither recorded nor signed before P.W. 8. The S.I., M.P. Singh not examined. P.W. 2, doctor proved his endorsement on the Fardbeyan that the same recorded before him marked as Ext. 1. The learned Additional Sessions Judge admitted this record as dying declaration under Section 32(1) of the Evidence Act and held that relationship between the deceased and accused persons established by said dying declaration. The non- examination of witness directly on the point is not a ground to disbelieve or ignore it as it is the subject matter of the satisfaction of the court and non-examination of author of the record is not a hurdle in treating it a dying declaration. 4 6. However the Additional Sessions Judge held that it is satisfaction of court and it is settle principle of law that admissibility of dying declaration rest on principle that dying person shall not tell a lie and held Ext. 3 is dying declaration. 7. Learned counsel for the appellants challenged the order of conviction on two counts. First, that Fardbeyan formally proved is not admissible in evidence for treating as dying declaration. There is no evidence that the victim was conscious and in fit state of mind and relied upon decision reported in A.I.R. 1999 S.C. page 3455. 8. However the mode of proof of a statement, verbal or written about relevant fact about cause of death of the person, when and how admissible in evidence under Section 32(1) of the Evidence Act is one thing. The principle on which a hearsay evidence has been made admissible in evidence under Section 32 (1) of the Evidence Act as exception to general rule is another thing. The two concepts are totally different sails on two different fields. The Section 32(1) is an exception to general rule that hearsay evidence has been made admissible for the reasons that a dying person shall not 5 tell a lie and this principle has nothing to do with regard to mode of proof of an statement which is being treated as dying declaration for being admissible in evidence or not. A rumour about cause of death cannot be admitted in evidence to be treated as dying declaration. 9. The relevant portion of Section 32 of Evidence Act reads as follows; “ statement written or verbal of relevant fact made by person who is dead….are themselves relevant fact…(1) when the statement is made by person as to cause of death…. in cases in which the cause of death comes into question. 10. Hence the statement written or verbal what is to be treated as dying declaration is required to be proved. (i). If the statement is verbal statement made by the deceased then the person who heard the deceased making the verbal statement must be examined on oath as a witness under Section 60 of the Evidence Act to prove the statement. (ii). If a person who heard the deceased at the time when the statement was made recorded or made a record of the deceased’s statement he may refresh his memory by referring it under Section 159 of Evidence Act. (iii). If the person who at the time of statement made by the deceased heard the deceased making statement and recorded the statement and it has 6 no specific recollection of the statement made may testify to the fact mentioned in document, if he is sure that fact was correctly recorded then it is admissible in evidence under Section 160 of the Evidence Act. (iv). However what is admissible is oral statement of the deceased and not the record of it and such an oral statement must be proved by the person who heard it and recorded it. The formal proof of the writing of a person is not a proof of the content of the document. A formal proof will make the document admissible to the extent that it was written by the person and can be used as corroboration evidence of the person who recorded it. But it cannot be a substantive evidence. 11. In this connection observations made by Taylor J, (King Emperor Vrs. Mathura Thakur and others) reported in VI Calcutta Weekly Notes page 81, “…..With regard to the so-called dying declaration the witnesses should not have been allowed to prove the document as if it was a substantial piece of evidence in the case. The relevant fact to be proved was the statement made by the deceased person admissible under Sec. 32 of the Evidence Act. That statement is not the document made by the Magistrate but the verbal statement made by the deceased person. …..” “…. The only way of proving the statement was therefore by the oral evidence of some witnesses who heard it made, the said witness being at liberty to refresh his 7 memory by referring to the note made by him or read over by him or about the time the statement was made…” 12. However in case of written statement, if the statement to be proved is written statement then it must be proved that such statement was so made by deceased written by himself in his own hand writing and signed by himself. The statement must be produced. But a written reproduction by another person of what a deceased person said which was read over to deceased and attested by him is not a written statement. 13. If the statement made by the deceased is recorded on the dictation of the deceased, not recorded in answer to any question, the dictated statement is read over to the deceased and admitted by the deceased to be correct and signed by him to the correct and it is proved by some other person who was present there to have heard it correctly recorded and the dictated statement was read over to the deceased and admitted by him to be correct, then it becomes the written statement. The written statement can be put in evidence without calling the person. Then the said recorded statement are admissible in evidence under Section 64 and 67 of the 8 Evidence Act. This can be treated a substantive evidence and may be proved without calling the person who recorded it. 14. In this regard it is pertinent to quote observation of a passage from AIR 1931 Madras page 431; “……. We guard ourselves from saying that when a dying declaration has been recorded and has been read over to the deponent and agreed to be correct it can be put in by itself and treated as substantive evidence without calling the person who recorded it, as we are of the opinion that the evidence of the person who recorded it or in his unavoidable absence some other person who was present and heard it correctly recorded should always be taken to make the written record admissible. Ext. B was therefore correctly admitted in evidence in the lower court as a record of the statement made by the deceased by P.W. 1 from which P.W.1 refreshed his memory. …” 9 15. Learned counsel for the appellant however, relied upon decision reported in A.I.R. 1999 SC 3455 : 1999 (7) SCC 695 for proposition that unless there is certification of the doctor to the effect that declarant was in fit state of mind the dying declaration could not be relied upon. 16. However, before come to the fact of the case, it is pertinent to mention that decision relied upon by the learned counsel for the appellant stand overrules by a larger Bench in decision reported in 2002 (6) SCC page 710 accepting the view expressed in Koli Chunilal Savji reported in 1999 (9) SCC 562 and laid the principle in case of recording of dying declaration and it is relevant to quote a passage from decision reported in 2002 (6) SCC 710; “The juristic theory regarding acceptance of a dying declaration is that such dying declaration is made in extremity when the party is at the point of death and when every hope of this world is gone when every motive to falsehood is silenced and the man is induced by the most powerful consideration to speak only truth. …The court, however, has always to be on guard to see that the statement of deceased was not as a result of 10 either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable….. . What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the person who recorded the declaration that the declarant was fit to make the statement even without examination by the doctor. 17. Hence taking into consideration the principle enunciated the question for consideration how to prove the dying declaration in the present case. There is evidence to show that the victim died out of burning, but there is no evidence that who drive her for 11 committing suicide or who subjected her to cruelty. None of the witness has deposed about subjecting cruelty by the appellants except P.W. 1. However P.W. 1 stated that there used to have been quarrel between victim and her mother-in-law but in cross-examination he has stated no quarrel occurred before her and so evidence of P.W.1 is of no consequence. Hence only evidence on which the case hinges is the Fardbeyan of the victim and question is whether it can be treated as dying declaration. The question is how to prove the statement of the victim for treating it as dying declaration and whether the deceased was in a condition to speak out the declaration. It is apparent that Section 32 of the Evidence Act speaks out about the statement verbal or a written and as discussed above the principle that if statement is verbal then the person who heard the statement must come before the court to depose that he heard the declaration made by the deceased. 18. However under the facts and circumstances of this case, the person who heard recorded the statement is Mr. M.P. Singh, but he has not been examined nor has come before the court to depose what he heard. There is no explanation about his absence that why he did not 12 turn up in this case to depose in the case. Hence Mr. M.P. Singh neither deposed nor come to testify that he heard and recorded the Fardbeyan to prove it a dying declaration. 19. However, P.W. 2 has come to depose that statement made before him and at the time of statement he was present there and he has also come to depose that what the victim was stating was being recorded by Mr. M. P. Singh. However, in his deposition he has not stated that what the victim stated. However, he has proved his signature which he testify on the document that the statement was made before him. 20. P.W. 8 has formally proved the Fardbeyan that it is in the writing of Mr. M. P. Singh, but has stated that the said statement was not recorded before him nor written nor signed before him. 21. However, it is pertinent to mention that what is admissible in evidence is oral statement of the deceased and not the record of it and such oral statement must be proved by the person who recorded it and heard it. The formal prove of the record is only admissible as corroborative evidence of Mr. M.P. Singh but cannot be treated as evidence under Section 32 of the Evidence Act 13 to treat as dying declaration and hence to prove the statement as verbal statement, the person who heard must come before the court to depose that he heard and depose what he has heard. However, neither Mr. M. P. Singh who recorded come before the court to say he heard the deceased making declaration nor P.W. 8 have come to say that he heard and hence the said declaration has not been proved as verbal statement. 22. However, if the statement is to be proved is a written statement made by a person who is dead then it must be proved that the said written statement is in writing of the person who is dead. 23. However the written statement is also not proved to be in the hand writing of the deceased to be treated as dying declaration. However, a written reproduction by another person of what the deceased person said and attested by him is not written statement, but it has to be proved that said written statement have been actually made by the deceased person and it must be shown that dictated statement was read over to the deceased and admitted by him to be correct and the statement was recorded on the dictation and not in answer to any question. However, P.W. 2 has stated that 14 statement was made before him, but he has not stated what statement was made by the victim nor has stated that the written statement was read over and explained to the victim. P.W.2 has stated in his evidence that Daroga was asking question from the patient and then was being written by him. Hence apparently it was not on the dictation of the victim but was in answer to question. Hence absence of Mr. M. P. Singh who recorded the statement having not been examined nor prosecution mentioned the unavoidable reason of his absence. Hence said Fardbeyan not admissible in evidence as written statement of deceased to be treated as dying declaration. However, Ext. 2 itself shows that the statement was recorded and it was read over to the victim, but Mr. M.P.Singh who recorded it has come forward to say that he recorded it and he read over the contents of the recorded statement to the deceased which she understood and accepted to be correct and testify the Fardbeyan. Hence in such circumstance there is great doubt about admissibility of Ext. 2 as written statement of deceased to be treated as a dying declaration. 24. However the evidence of P.W. 2 to the effect that Fardbeyan was recorded before him. He heard 15 the dying declaration was correctly recorded and he endorse signed. However he has not stated that the said statement was read over and explained to the victim. Nor has stated victim accepted that statement is correct. Hence it does not confirm the requirement of law for admissibility of written statement of the deceased. The admission of document mere on fact that P.W. 2 has stated that the statement recorded before him and he endorsed on the document is a weak piece of evidence. 25. However, even accepting the document as dying declaration, then further circumstance as apparent from evidence of P.W.2 that the victim was admitted in hospital and was injured having burn injury as apparent from the evidence of P.W.7. P.W. 2 has further stated in his cross-examination that the said girl had burnt injury and she used to sometime come in conscious state and sometime she used to become unconscious. He has further stated that she used to give statement at intervals. However, this evidence of P.W. 2 itself indicates that the victim was not in a fit condition. However, there is endorsement in the Fardbeyan that statement recorded before him, but there is no endorsement of P.W. 2 that the victim was conscious or was in a fit state to depose. 16 26. However it is settled principle that enunciated by Hon’ble Supreme Court that what is essentially required is that the person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind. Here neither the person who recorded the statement has turned up to say that the victim was in a fit state of mind nor the doctor P.W. 2 have made any endorsement to the effect that she was conscious and in a fit state of mind, nor has said so in his evidence nor there is any endorsement to that effect on Fardbeyan, Exhibit.3. 27. To the contrary there is evidence that the victim at the time of recording statement used to become sometime conscious and sometime become unconscious. It is apparent that from the statement recorded in dying declaration is a very short period but the statement is in most concise and precise manner and hence taking into consideration the condition of the victim and as per evidence of P.W.2 that she was making statement at a interval and was used to be sometime conscious and sometime unconscious and in such state such concise and precise statement which includes name and address of the victim itself does not inspire confidence. Hence 17 even if said dying declaration is admissible as a written statement of the victim recorded on her statement before P.W. 2 for which P.W. 2 testify, even then it does not inspire confidence in view of the fact that there is no satisfaction of either the doctor or the person who recorded the statement that the victim was in a fit state of mind to make the statement which is the requirement of law as enunciated by Hon’ble Apex Court. 28. Hence it is not safe to convict the appellants on the basis of Fardbeyan (Ext.3) treating as dying declaration. Hence, I find and hold that prosecution has not been able to prove the case beyond all reasonable doubts and hence order of conviction and sentenced recorded by the lower court is hereby set aside and the appeal is allowed and the appellants have been acquitted and discharged from their liabilities of bail bond, if any. Patna High Court The 16th ..September, 2011. NAFR/m.p. ( Gopal Prasad, J.)