Criminal Appeal (SJ) No.204 of 1999 Against the judgment and order of conviction dated 28. 07. 1999 and order of sentence dated 29. 07. 1999, passed by Sri Pradeep Kumar, IInd Additional Sessions Judge, Vaishali at Hajipur, in connection with Sessions Trial No. 22 of 1995. Ram Laddu Paswan, S/o Late Pritam Paswan, resident of Village- Shitalpur Kakarhatta, P.S. Biddupur, District-Vaishali. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Mr. Arun Kumar Tripathi, 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 Amicus Curiae for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 307 I.P.C. as well as under Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case as alleged by the informant Ram Sagar Rai in the Fardbeyan that on 30. 08. 1992 at about 7 P.M. he had gone to the house of Fauzdar Singh for collecting money of the milk which he has supplied. Fauzdar Singh said that he will pay the money on the next day. Then he returned from house of 2 Fauzdar. While returning, reached at Jagdamba Asthan then Ram Laddu Paswan and one unknown person catch hold of his collar and fired on his neck by which he get injured and fell down and got unconscious. He could not know what happen thereafter. He gained conscious after 8-9 days and found himself in the P.M.C.H., Rajendra Surgical Ward on Bed No. 14. Hence he is making statement. The said statement recorded by Shri R. N. Singh, A.S.I., Pirbohre Police Station Camp, P.M.C.H. and forwarded the same to the Officer-in-Charge, Town P.S. Hajipur, which was treated as Fardbeyan, on which F.I.R. was lodged as Hajipur P.S. Case no. 336/92. The informant died after four months of the occurrence. 4. The charge was framed for offence under Section 304/34 for committing culpable homicide not amounting to murder. During trial four witnesses were examined. They are P.W. 1, Munna Sah, P.W. 2 Sakal Rai, P.W.3, Vijay Rai and P.W. 4, Dr. Lalit Mohan Prasad. P.W. 4 has medically examined the victim and found multiple small punctured wound by fire arm on left side of chest near left nipple with irregular blacken inverted margin and blackening of adjoining area around 3 injured area 3” x 2” patient was immediately referred to P.M.C.H. 5. Out of four witnesses, P.W. 1 has turned hostile. He has not supported the prosecution case. He has denied to have stated before Police that Ram Laddu Paswan caused fire arm injury on the neck of Ram Sagar Rai. P.W. 2, Sakal Rai has stated in his evidence that on hulla he went to the P.O. He saw Ram Sagar Rai in unconscious state having received fire arm injury. He learnt that Ram Laddu Paswan has fired causing the death. He took him to Hajipur then to P.M.C.H. and died after four months. He has formally proved the signature of Ram Sagar Rai on Fardbeyan marked as Ext. 1. Hence evidence of this witness is only hearsay. He has not stated that from whom he learnt. P.W. 3 has stated that he saw Ram Sagar Rai in injured state and took him on rickshaw to the hospital and in the hospital he was referred to P.M.C.H. He has also stated that he learnt that Ram Laddu Paswan has fired but not stated from whom he learnt. Hence evidence of P.W. 3 is also hit by hearsay. P.W. 4, doctor found multiple small puncture wound by fire arm and age of injury six hours and injury 4 report proved as Ext. 2. 6. The documentary evidence Ext. 1 is Signature of Ram Sagar Rai formally proved on Fardbeyan, Ext. 2 is the injury report on person of Ram Sagar Rai, Ext. 3 certificate issued by Sri P. N. Singh about treatment, Ext. 4, is case diary marked as Exhibit under Section 294 I.P.C. vide order dated 02. 07. 1998. The Fardbeyan has been marked as exhibit on petition by A.P.P. that the A.S.I. R. N. Singh, who recorded the Fardbeyan has not been located so it may be marked and hence was marked as ext. 5. 7. The Trial court took into consideration the fact that from evidence adduced by prosecution Ram Laddu Paswan has been named as a person who fired upon the deceased Ram Sagar Rai causing injury on his chest and the statement of deceased Ram Sagar Rai in Fardbeyan has been proved marked as Ext. 5 and the same treated as dying declaration under Section 32 of the Evidence Act. Hence the trial court held that the statement In Fardbeyan treated as dying declaration under Section 32 of the Evidence Act is corroborated by the evidence of P.W. 2 and 3 that Ram Laddu Paswan 5 fired upon deceased informant and the injury report corroborate convicted the appellant for offence under Section 307 I.P.C. and 27 of the Arms Act and sentenced accordingly. 8. However taking into consideration the prosecution case, evidence adduced and material on record it is apparent that four witnesses have been examined. P.W. 1 has been declared hostile and evidence of P.W. 2 and 3 is hit by hearsay and hence there is no legal evidence regarding implication of the appellant. The evidence of the doctor P.W. 4 is only corroborative. The Fardbeyan marked exhibit at the request of A.PP. even without formal proof. The signature of the informant on the Fardbeyan has only formally been proved. The formal proof of the Fardbeyan is not the substantive evidence of the content. The document however is not inadmissible in evidence but is not a proof of the content of the document. Unless writer of the document is examined. The mode of proof of a fact depends on the purposes for which the document is required to proof. If the purpose to prove that who has written it then the formal proof of writing 6 and signature will do, but mere formal proof will not prove the content. The content of the document required to be proved by the writer or the person who made the statement. In the absence of such evidence the content will not be used as substantive evidence. If the statement recorded in Fardbeyan is required to be prove as dying declaration. It is required to be proved in mode and manner provided under Section 32 of the Evidence Act. as dying declaration to record conviction is not sustainable in law. 9. Section 32 of the Evidence Act provides that statement oral or documentary is relevant. However, the said statement oral or documentary is required to be proved. If it is oral statement then the person who heard the said declaration is required to depose that he heard it. However none has come forward to say that he heard the declaration. If the person who heard the statement and recorded the statement himself has to come before the court to testify that it has been recorded by him. However, neither the person who recorded the statement or before whom Ram Sagar Rai made statement has come forward to prove nor any person has come 7 forward to state that Ram Sagar Rai made statement before him was recorded by him or before him nor come to testify that statement ever recorded before him nor the statement has been proved in writing of Ram Sagar Rai to establish the dying declaration as documentary evidence nor there is any evidence that said statement recorded by him and was read over and explain to Ram Sagar Rai which he found to be correct. Hence the statement has neither been proved to be oral or documentary evidence to establish it as dying declaration. This evidence of P.W. 2 and 3 are also hit by hearsay and cannot be said that it has corroborative value. 10. Hence there is no legal evidence against the appellant to record conviction. The conviction recorded by the Trial Court is based on totally inadmissible evidence and hence not sustainable in law. 11. Hence in this case, the person who recorded the statement has not come to depose before the trial court that Ram Sagar Rai gave said statement before him and mere formally prove of the signature of Ram Sagar Rai on Fardbeyan without the evidence of Ram Sagar 8 Rai, the person who recorded the statement will not serve as admissible evidence under Section 32 of the Evidence Act to treat it as dying declaration. Hence the Fardbeyan being inadmissible in evidence is hit by hearsay and can not be treated as dying declaration. There is no other evidence regarding implication of the appellant facing the trial. 12. Hence I find and hold that prosecution has not been able to prove the charges beyond all reasonable doubt. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court. The 20th October, 2011. NAFR/m.p. ( Gopal Prasad, J.)