IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 251 of 2002 S tate of Uttaranchal ...…………. Appellant Versus Sanju @ Sanjaya @ Harendra Rauthan ...…………. Respondent Mr. Prabhakar Joshi, Brief Holder for appellant / State. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C.J. (Oral) In terms of Section 3 of the Indian Evidence Act, 1872, evidence means and includes, amongst others all statements, which the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry, and such statements are called oral evidence. At the same time, in terms of Section 60 of the Act, oral evidence must be direct. Such evidence, if it refers to a fact which could be heard, must be the evidence of a witness who says he heard it. Evidence tendered by such a witness, in terms of the Scheme of the Act, can be relied only when the witness giving oral evidence has permitted him to be 2 cross-examined. In the circumstances, in course of tendering oral evidence, if a witness refers to a fact which he had heard from another person is not treated as evidence, but is treated as hearsay, unless the person from whom he has heard, is also called to give evidence. In the event, such a person cannot be called to give evidence, will such statement still be hearsay? Section 32 of the Act has dealt with the situation. It is provided, amongst others, when the statement is made by a person as to the cause of his death, or as to any circumstances of the transaction which resulted in his death, then such statement is relevant in cases in which the cause of that person’s death comes into question. When such a case is under consideration, the person has already died. In such situation, it is permissible to rely on the oral evidence of a witness of what he heard from the person who is dead, as to the cause of his death, or as to any circumstances of the transaction which resulted in his death. In the instant case, the deceased, the youngest in the family, was though residing in the same village, but in a separate house. In the principal house, the father, mother and the elder brother of the deceased used to reside. The deceased used to have his meals at the principal house. On the fateful date, after the deceased had taken his meal in the night, he left the principal house, where after, two people allegedly informed the mother and the brother of the deceased that the deceased has been done away with. The 3 mother and the brother of the deceased then went and found the deceased, and allegedly at that time the deceased disclosed that it was the respondent and two others, who caused the injuries on his body. The fact remains that the injuries that the deceased sustained resulted in his death. At the trial, the mother and the brother of the deceased deposed to the effect, as above. The postmortem report suggested that the deceased suffered 21 injuries, and those 21 injuries were caused by knife and khukhri. Neither the postmortem report, nor the doctor, who conducted the postmortem examination and deposed as a prosecution witness, indicated how long the deceased could remain alive and in sense, despite having had received those injuries. The people, who allegedly informed the mother and the brother of the deceased that the deceased has been done away with, were not called to give evidence. In the circumstances, the court below held that the prosecution has failed to establish that it was the respondent, who committed the gruesome offence. In the appeal it is being contended by the State that there was no just reason not to accept the oral evidence of the mother and the brother of the deceased to the effect that injuries sustained by the deceased were caused by the respondent and two others. True, the evidence given by the mother and the brother of the deceased to the effect that the injuries sustained by the deceased were inflicted by the respondent and two others, is admissible in evidence, 4 and cannot be rejected on the ground of hearsay in view of Section 32 of the Act, but the fact remains that in relation to such evidence, the court is required to be extra cautious. It has not come on evidence as to exactly when the deceased sustained those 21 injuries. It has also not come on evidence as to how long thereafter, the mother and the brother of the deceased, met the deceased. As aforesaid, it has not come on evidence, as to whether after having had sustained such injuries, how long the deceased could remain conscious, and accordingly, could communicate to anyone as to the cause of his death, or as to circumstances which resulted in his death. At the same time, the prosecution has not brought on record any evidence to suggest why the respondent would cause such injuries to the deceased. In the absence of evidence in relation to those aspects, the court below, we are of the view, was not bound to accept the statements of the mother and the brother of the deceased, that it was the respondent and two others, who caused those injuries to the deceased, as gospel truth. The learned counsel of the appellant has cited a judgment of the Hon’ble Supreme Court rendered in the case of Meharban Singh and others Vs. State of Madhya Pradesh, reported in 2002 Supreme Court Cases (Cri) 958. In that case, the court below as well as the High Court, accepted similar oral evidence given by those, who heard the story relating to cause of death 5 and the transaction which resulted in death, as was narrated by the deceased. The reason was that there was medical evidence on record to suggest that at the time when such narration was made, the deceased was still conscious. Accordingly, in the facts and circumstances of the present case, the said judgment of the Hon’ble Supreme Court has no application. We, accordingly, dismiss the application for leave to prefer appeal, and as a result the appeal fails. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 23.12.2011 Negi