Calcutta High Court (Appellete Side)
Chandan Giri vs The State Of West Bengal on 26 February, 2014
Author: Asim Kumar Ray
Bench: Patherya, Asim Kumar Ray
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
CRA No. 126 of 2003
Chandan Giri
-Vs-
The State of West Bengal
Present :
The Hon'ble Justice Patherya
And
The Hon'ble Justice Asim Kumar Ray
For the Appellant : Mr. Sandipan Ganguly
Ms. Debanjan Bhattacharya
For the State : Mr. Manjit Singh , Public Prosecutor
Mrs, Kakali Chatterjee
Heard On : 7.3.2013, 12.3.13,13.3.13,15.3.13,22.3.13
and 26.3.13
Judgment On : 26.2.2014
Asim Kumar Ray, J.
This appeal is directed against the judgment and order of conviction dated 20-3-2003 and sentence dated 21-3-2003 passed in Sessions Trial No. XXI/December/1999 arising out of GR Case No. 698 of 1996 by the Additional District and Sessions Judge whereby the appellant has been sentenced to suffer R.I. for 5 years and to pay a fine of Rs. 5,000/- in default to suffer R.I. for one year for the offence punishable under Section 363 IPC. He has been further sentenced to suffer R.I. for 7 years and to pay a fine of Rs. 5,000/- in default to suffer R.I. for one year for the offence punishable under Section 366 IPC and also to suffer R.I. for 10 years and to pay a fine of Rs. 5,000/- in default to suffer R.I. for one year for the offence punishable under Section 376 IPC.
The case of the prosecution may be encapsulated as follows :
On 21.6.1996 the victim girl (since deceased) was enticed by the appellant on the pretext of taking her to a cinema show. She did not return home at night. A search was conducted by her parents and others but in vain. It is alleged that the victim was detained by the appellant in his house and subjected to rape on different dates. On 24-6-1996 the victim returned home and narrated the incident to her father and others. A village salish though held but to no effect. Subsequently, on 9-8-1996 a petition of complaint was filed by the de facto complainant/father before the Sub- divisional Judicial Magistrate, Contai. The petition was sent to the concerned police station with a direction to register a case and initiate investigation. On the basis of such direction Ramnagar P.S. Case No. 82 of 1996 dated 8-9-1996 under Sections 323/363/366/376/368/109 IPC was started.
On investigation charge sheet under Sections 323/363/366/368/376/109 IPC was submitted before the SDJM, Contai. After observing all the formalities the SDJM committed the case to the Court of Sessions Judge, Purba Midnapore. On receipt of the case record the Sessions Judge, Purba Midnapore transferred the same to the Court of Additional District and Sessions Judge, Contai for disposal.
The trial began before the Additional District and Sessions Judge, Contai against the appellant. Charge under Sections 323/363/366/368/376/109 IPC was framed against the appellant and two others which was read over and explained to them to which they pleaded not guilty and claimed to be tried. In course of trial prosecution examined in all 9 witnesses and beside the oral evidence prosecution produced documentary evidence and the same were marked as exhibits. The appellant was examined under Section 313 Cr.P.C. He thereafter produced and examined one witness (D.W.1). On appreciation of the evidence on record the Additional District and Sessions Judge, Contai passed the judgment, order of conviction and sentence impugned. Gourhari Giri and Madan Giri the other two accused were found not guilty to the charges levelled against them and accordingly acquitted. In the above background this appeal is before us by the appellant.
Counsel for the appellant has contended that there is no evidence on record to prove that the victim girl was enticed from the custody of her lawful guardianship by the appellant. To elaborate his contention he has relied on the evidence of P.W. 3 (father) and P.W.4 (uncle) of the victim girl. The appellant had purportedly taken away the victim girl after taking consent of her mother but the mother of the victim girl has not been examined as prosecution witness. The evidence of other witnesses are nothing but hearsay evidence and as such cannot be relied upon.
The age of the victim girl was not proved either by producing school certificate or by ossification test. The evidence of P.W.3 regarding the age of the victim girl as 16/17 years is nothing but a vague oral statement. The age of the victim girl was thus never proved. The Court cannot assume that the victim girl was a minor on the date of alleged incident.
There is no positive evidence to show that the victim girl was detained in the house of the appellant. P.W. 3 and 4 have not stated in their evidence that they had seen the victim girl in a confined- state in the house of the appellant. Only P.W.7 has stated that he spoke with the victim girl when she was detained in the house of the appellant. But the presence of P.W.7 has not been stated by P.W. 3 and P.W.4 at the time when they had visited the house of the appellant though P.W.7 claimed to have accompanied them. The evidence of P.W.7 is nothing but an improved version and can not be relied upon. The evidence of P.W.3 and P.W.4 also does not reveal that P.W.7 told them about detention of the victim in the house of the appellant. Therefore, there is no evidence to show that the victim girl had been detained in the house of the appellant.
The house of the appellant and P.W.3 is interspaced by one house and the village is said to have 4000/5000 people. There is evidence to the effect that relation of P.W.3 are also the resident of that village and their house are near to the house of the appellant. P.W. 3 has stated that police came to the spot but did not recover the victim girl. The case of the prosecution is nothing but a cock and bull story as it is unbelievable that although the victim girl was detained in the house of the appellant for four days and raped there but neither the village people nor the police had come to her help. P.W. 3 and P.W.4 have stated in their evidence that the victim girl was confined in the roof of the house of the appellant. But there is evidence to the effect that the roof of the house of the appellant was a tiled one and as such there is no possibility of the victim girl being confined on such roof. Moreover, the house of the appellant consisted of one room where nearly ten persons reside. P.W. 3 and P.W.4 have claimed that they visited the house of the appellant on two occasions but despite the said house having a single room they did not see the victim girl being confined there. It is also improbable that the victim was subjected to rape by the appellant in a house having a single room wherein more than 10 persons reside.
He has contended further that P.W.1 , Dr. has opined that the victim girl had experience in sexual intercourse without any injury and violence. The same renders forcible intercourse by the appellant with the victim girl, improbable.
There was delay of 49 days in lodging the FIR from the date of incident. The incident took place on 21.6.1996. P.W.3 (father ) has stated in his evidence that the victim informed him about the incident on 24-6-96 and salish was held on 26-6-96 as stated by prosecution witness No.5, a local witness. The application under Section 156(3) Cr. P.C. before the SDJM was filed on 9-8-96. The delay in notifying public authority i.e. Sub- divisional Judicial Magistrate ,Contai creates suspicion about veracity and genuineness of the allegation. P.W. 3 and P.W.6 have stated about salishi. The salishnama which was prepared was not signed by the accused persons or seized by the police nor produced in course of evidence. The salish was held in the house of one Gunodhar Bera and it was scribed by one Durga Das Maity. Both Gunodhar Bera and Durga Das Maity have not been examined. Therefore doubt arises about holding of salish.
P.W.5 has stated in his evidence that he saw the victim and the appellant roaming in Depal market. He has also stated that he was not examined by the police. It is thus apparent that as per his own admission he was deposing for the first time after more than four years. P.W. 6 has also stated that he saw the victim and the appellant in the market. He did not disclose the same to the Investigating Officer at the time of his examination by him but has stated the same for the first time in Court. He has also stated in his evidence that he told the family members of the victim that he saw the victim and the appellant at the market but P.W. 3 has not stated that he was informed by P.W.6. No other witness has also stated that they had been informed of such fact by P.W.6. The evidence of both P.W.5 and PW6 therefore cannot be relied on. The villagers who accompanied PW3 ,PW4 and PW7 to the house of the appellant were not examined. Taking of poison by the victim is not connected to this case. The case under Sections 363 and 366 IPC has not been proved by the prosecution as from the evidence of PW3 it emerges that it was with the consent of the victim's mother that the victim was taken by the appellant . The mother of the victim has also not been examined by the prosecution . Therefore the sentence under Sections 363 and 366 IPC be set aside.
The disclosure made by the victim (since deceased ) to P.W. 3, P.W.4 and her statement recorded under Section 164 Cr. P.C. are not admissible under Section 32 of the 1872 Act. It is also not relevant under Section 8 or Section 11 of the Indian Evidence Act. The statement of the victim under Section 164 Cr. P.C. is not a substantive piece of evidence. It can only be used to contradict or corroborate the maker thereof. In the instant case the maker of the statement is no more. The statement, therefore, cannot be used as substantive evidence. The evidence in the instant case is circumstantial in nature and was required to be proved by the prosecution beyond reasonable doubt. The circumstance must form a chain to unerringly point to the guilt of the accused. The prosecution has failed to discharge the onus. The order of conviction and sentence imposed upon the appellant be set aside.
Counsel of the appellant has cited the decisions reported in (2009) 13 SCC 80 (Bhairon Singh -vs- State of Madhya Pradesh ) and (1984) 4 SCC 116 (Sharad Birdhichand Sarda -vs- State of Maharashtra ) in support of his contention.
Counsel for the State submits that the statement of the victim recorded under Section 164 Cr. P.C. has no probative value. However, provisions laid down in Section 6,7,8 and 11 of the Indian Evidence Act, 1872 aids the prosecution. The fact in issue is the rape of the victim and hence it is a relevant issue. The victim has committed suicide and the same though not a relevant issue but has never been refuted by the defence during trial. Her committing suicide is a fact under Section 6 of the Evidence Act and the same is relevant fact under Section 7 of the said Act. Her committing suicide is a subsequent conduct relevant under Section 8 of the Evidence Act. It has been contended further that though her committing suicide is not a fact in issue and not relevant, but at the same time it becomes relevant in view of the provisions of Section 11 as her suicide cannot be de-linked with the other relevant issue of kidnapping and rape. Examination of the victim by the doctor is a fact, relevant under Section 7 and 8 of the Evidence Act. Her statement regarding the act of rape just after the incident to her father is a conduct, relevant under Section 8 of the Evidence Act. Salishi is a fact under Sections 6 and 7 of the Evidence Act. Victim's participation in the salishi and statement regarding the act of rape is a conduct relevant under Section 8 of the Evidence Act. Victim's statement to P.W.7 regarding the act of rape committed upon her by appellant after returning from the house of the appellant and her feelings that "she is unable to show her face before any person out of shame" are relevant under Section 14 though not relevant under Section 32 of the Evidence Act.
It has been further contended by counsel for the State that there may be a long time gap between the victim's statement recorded under Section 164 Cr.P.C. and that made to her parents or at the salishi and to other persons regarding the act of committing rape by the appellant and her subsequent death but it is a series of facts having probative value under Sections 6, 7 and 8 of the Evidence Act. The victim being a minor had to depend on her father to initiate the legal proceeding and in fact there was no delay caused by the victim girl as she reported the incident promptly to her father and others after the incident. Her conduct in informing the father and others about the incident shows her conduct about the incident and her intention to prosecute the accused promptly.
It has been contended by counsel for the State that P.W.1 (Doctor) conducted examination of the victim in reference to a police case. PW 3 and PW 4 have stated with reference to conduct of the victim and statement made by her to them. PW 5 and PW 6 are independent witnesses who have stated about the victim and accused being last seen together and existence of salishi and matter dealt therewith. P.W. 6 has also stated that "Anjali committed suicide subsequently out of shame". P.W. 7 has stated with reference to conduct of the victim and statement made to him. He has also stated that "Anjali only stated to me that she is unable to show her face before any person out of shame". In course of examination under Section 313 Cr. P.C. the appellant has stated about his knowledge about the suicide of the victim (vide question No. 9 ).
The following decisions have been cited by counsel for the State :
1. (1907) 9 Bom L R 107 (R.D.Sethna -vs-Mirza Mahomed Shirazi)
2. 1960 Cri L J 894 Bombay (Allijan Munshi -vs- State )
3. 1996 Cri L J 285 Bombay and
4. 1992 Cri L J 2860 Therefore, the judgment and order of conviction and sentence be affirmed.
In reply counsel for the appellant submits that the long gap in dates will not connect the victim's conduct to suicide committed by her. The victim returned on 24.6.1996 and the saalish was held in the 1st week of July and on its failure the FIR was filed in August. There is delay and the 164 statement inadmissible. If admissible then veracity comes in question which renders it inadmissible. Therefore the 164 statement should not be accepted . It cannot be used as a substantive piece of evidence as 164 statement can only be used for corroboration or contradiction. Section 8 of the 1872 Act can also not be elevated to substantive piece of evidence. 1992 Cr LJ 2860 is distinguishable. Section 32 and 11 stand on the same footing as held in A(1935) Qudh 41 and A (1940) Mad. 273.
Having considered the submissions of the parties, P.W.1 /Dr. B.K.Nanda has stated in his evidence that on 1-10-1996 as per requisition of Ramnagar P.S. he examined the victim aged about 16 years. On examination of the victim he gave his report (Ext. 2) where he has opined that the victim has experience in sexual intercourse without any injury and violence. In his cross-examination he has stated that one Mukti Pada Panda identified the victim to him.
P.W. 3 is the de facto complainant/father of the victim. He has stated that his daughter/victim used to read in Class-VI in Depal High School, Ramnagar P.S. She was 16/17 years old at the time of incident. On 6th Ashwin, 1403 B.S. Chandan Giri took his daughter on the plea that they were going to see cinema after taking consent of his wife/mother, of the victim. On that day he was not present at home. On return to his house on the following day in the morning he came to know from his wife/mother of the victim that the appellant had taken his daughter to see cinema but the victim did not return. He searched for his daughter for two days but in vain. He went to the house of the appellant who told him that his daughter did not come to his house. He thereafter reported the incident to the police station. One Gopal Manna , resident of Depal reported to him that he saw his daughter with the appellant at 6 p.m. when they were passing in front of his house. He once again visited the house of the appellant when the appellant stated that his daughter was not in his house. He reported the matter again to the police. He has also stated that after three days his daughter returned to his house and reported to him that she was driven out after being assaulted by the appellant. She reported to him that she was raped by the appellant and was kept detained on the roof of the house. A salishi was held in the village where accused persons were present. The victim was also present and she narrated the incident to the local village people. The Accused persons admitted the statement of the victim but refused to sign before the Panchayat. Thereafter he went to the Court and filed the case as the police station did not take any action. His daughter committed suicide by taking poison. He was subjected to cross-examination and in course of his cross- examination he has stated that the house of Chandan is intervened by one house from his house. 4000/5000 people reside in their village. He has stated that salishi was held at the house of Gunadhar Bera and salishnama was written by one Durga Das Maity, but has no knowledge about the whereabouts of the salishnama. He has also stated that Chandan Giri has a one storied house having tiled shed. There is only one room in that house. He found his daugther lying in the house of Chandan Giri but he was not allowed to bring her back . His daughter returned home alone. He filed the case after 10./15 days of the incident.
P.W. 4 is the uncle of the victim. He has stated alike his brother(P.W.3 ) about the incident and about the house of Chandan Giri. The victim committed suicide by taking poison after 5/6 months from the date of incident.
P.W.5 is a local resident who has stated that he saw the appellant take away the victim. He was present during salishi. The victim narrated the entire incident at the salishi. He had no talk with police over the incident.
P.W. 6 is another local resident who stated that on 6th Ashar , 1403 B.S. the incident took place and he saw both the appellant and the victim together at Depal Market at 6 p.m. in the evening and on the next day he came to know that the victim was found missing. He reported to the family members of P.W.3 that he saw the victim with the appellant at Depal Market at 6 p.m. the previous evening. He was present in the salishi where the victim reported the incident. The victim committed suicide subsequently out of shame. He was cross-examined and in course of cross-examination he has stated that he did not state to the police that on the following day of the incident in the morning while he was proceeding to market came to know in front of the house of de facto complainant (P.W.3) that his daughter was missing. He did not state to police that the victim committed suicide due to shame subsequently.
P.W. 7 is another uncle of the victim who has stated about the incident alike P.W.3 and P.W.4. The victim committed suicide by taking poison after 15-16 days. He has further stated that they had no talk with the victim at the house of the appellant and she was crying then. She was crying and saying that she is unable to show her face before the public out of shame and as such she was not willing to come with them. Talk was held in the veranda of the appellant.
P.W. 8 (IO) has stated about the registration of the case and endorsement of the same to him for investigation. In course of investigation he visited the place of occurrence and examined witnesses . Recovered the victim girl and sent her to Contai Sub-divisional Hospital for medical examination and then to the Court of SDJM, Contai for recording her statement under Section 164 Cr. P. C. He collected the medical report of the victim and the statement recorded under Section 164 Cr. P.C. He arrested two accused persons, namely , Gourhari Giri and Madan Giri. He was subjected to cross-examination and in course of cross-examination he has stated that he made a prayer for ossification test of the victim girl but did not know whether ossification test was held or not.
P.W. 4 did not state to him at the police station that the appellant detained the victim in his house for three days. He did not state to him that Rajani Bar, Gunadhar Bera, Kunja Jana and others accompanied his elder brother to the house of the appellant for search of victim. He did not state that the father of the victim went to the house of the appellant but did not find the victim. He did not state to him that the accused persons drove away the victim after assaulting her. He did not state to him that on return to the house the victim narrated the incident to him. He did not state to him that there was panchayat in their village and the accused persons confessed their guilt but did not sign the salishnama prepared in the village. He did not state to him that victim committed suicide after taking poison.
He has further stated that P.W. No.6 did not state to him that on previous day of the incident he saw Chandan and victim were loitering in Dipal market in the evening. He did not state to him that after two days of the incident there was salishi and in that salishi victim stated that she was raped by Chandan at his house. He did not state to him that in the salishi accused persons were asked to put signature for admitting their guilt but they declined. He did not state to him that in the salishi accused persons confessed their guilt.
He has also stated that P.W. 7 did not state to him that victim was subjected to rape by the accused Chandan. He did not state to him that after two days of the incident he came to know that the victim was confined at the house of Chandan Giri. He did not state to him that Chandan Giri took away the victim to see cinema. He did not state to him that at first his elder brother went to the house of Chandan Giri to bring the victim and thereafter he also accompanied his elder brother to the house of Chandan Giri for bringing the victim when she was crying.
P.W. No. 9 is the Judicial Magistrate who recorded the statement of the victim under Section 164 Cr. P.C. The date of the incident of the alleged offence is 21-6-1996 and the date of filing the complaint is 9-8-1996. The complaint was sent to Officer- in-charge, Ramnagar P.S. under Section 156(3) Cr. P.C. by SDJM, Contai directing him to treat the same as FIR and report. On receipt of the complaint on 8-9-1996 Ramnagar P.S. case No. 82 of 1996 dated 8-9-96 was started. On plain perusal of the complaint it appears that there was 49 days delay in lodging the same.
The FIR maker father (P.W.3) has stated that his daughter was enticed by the appellant on the pretext of taking her to cinema with the consent of her mother i.e. the wife of the FIR maker. The mother of the victim has not been examined as prosecution witness. It has come in evidence of the father that on the date of incident he was away from the house and returned home on the following day. On returning home he came to know about the incident from his wife. Therefore, the prosecution case of enticing the victim from the custody of her lawful guardian is based on hearsay evidence.
The age of the victim as claimed by the father was 16/17 years. There was prayer for ossification test to ascertain the age of the victim but no report of such test produced before the Court. No document was produced by the prosecution regarding age of the victim. The father has stated in his evidence that he has not filed any paper showing the age of his daughter though his daughter was a student of Depal School . The evidence of the father about the age of the victim is not supported by any scientific test report and document. It is not safe to rely on such evidence. Therefore, it cannot be said with certainty that on the date of the alleged incident the victim was a minor and in case of doubt of the victim's age, the benefit of the doubt will go in favour of the appellant.
The doctor has said in his evidence that the victim has experience in sexual intercourse without any injury and violence and the doctor's report is marked as exhibit -2. The evidence of doctor renders the allegation of forcible intercourse by the appellant with the victim girl improbable. Furthermore, Mukti Pada Panda who identified the victim before the doctor has not been examined as prosecution witness.
On close reading of the evidence of P.Ws. 4, 5 and 6 it appears that the evidence of P.Ws.4 and 6 is developed as they did not make the statements before the Investigating Officer. P.W.5 has himself stated that he was not examined by the Investigating Officer. The evidence of P.W. 7 is also an improvement as will appear from the evidence of the Investigating Officer.
P.Ws. 3 and 4 have stated in their evidence that the victim girl was confined in the house of appellant. The appellant has a tiled shed house having one room. Eight other family members stayed in that room (vide deposition of D.W.1,Mukteswar Manna) . It is not possible to keep the victim in confind state on tiled shed roof. It is also difficult to accept that the act of rape upon the victim girl would take place in the house which has a single room wherein eight persons reside.
Therefore from the above the evidence of PW 4 ,5,6 and 7 cannot be relied on as it is an improvement . PW 2 and 8 are formal witness. PW 3 came to know of the incident initially from his wife, who has not been examined and later the victim but there is nothing to corroborate the said statement . There is also no salishnama. PW 1 (Doctor) has stated that the victim had experience in intercourse and no injury was detected or mark of violence found in the vulva region. Therefore the case under Section 376 IPC was not substantiated. P.W.3 in his evidence has stated that the appellant took the victim with the consent of her mother and the case under Section 363 and 366 IPC also finds no support.
Counsel for the State has sought to rely on Sections 6,7,8 and of the Evidence Act. Admittedly the statement of the victim girl recorded under Section 164 Cr. P.C. is not a substantive piece of evidence and the same can only be used to either contradict or corroborate the maker thereof. The narration of incident by the victim to her father, uncle and others and also at the salishi and the evidence adduced through prosecution witnesses in support thereof is no evidence in view of the bar under Section 32(1) of the Indian Evidence Act. It is a fact that the disclosure statement of the victim cannot be treated as substantive piece of evidence as the victim was not available for facing cross-examination. The person who stated about the disclosure made to them by the deceased, at best can be cross-examined about the veracity of the fact that the victim had made certain disclosure to them but the genuineness of such disclosure /statement could only be tested through cross-examination of the maker thereof. Thus, an untested version of the incident given by the victim cannot be made relevant under Sections 8 and 11 of the Indian Evidence Act though such statement is not admissible by virtue of Section 32 of the Indian Evidence Act, especially when the evidence of vital witnesses placed hereinbefore is inconsistent , fragile and not worthy of credence.
The evidence of the FIR maker /father and uncle/P.W.4 regarding the narration of the incident alleged to have been made before them by the victim cannot be accepted and solely on the basis of such statement conviction cannot be recorded. There is also discrepancy regarding the date of committing suicide by the victim.
In Bhairon Singh -vs- State of Madhya Pradesh (supra) the legal question relating to the admissibility of the evidence under Section 32(1) came up for consideration. The Apex Court in 1984( 4) SCC 116 (Sharad Birdhichand Sarda -vs- State of Maharashtra ) has dealt with this issue and the citations need not be multiplied. Para 21 and 202 are quoted below. The legal position as observed by the Hon'ble Apex Court is as follows :
"21 (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Evidence Act, 1872 in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally construed and practically reduced to a cut -and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstance of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as in organic while and not torn from the context. Sometimes statements relevant to or finishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.
(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and , therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."
A. Varadarajan, J. on the other hand referred to the legal position stated by Wodroffe and Amir Ali in their Law of Evidence (14th Edn. ) and Ratanlal and Dhirajlal in their Law of Evidence (1982 Reprint ) This is how A. Varadarajan, J. dealt with the admissibility of evidence under Section 32(1) :
202..... The position of law relating to the admissibility of evidence under Section 32(1) is well settled . It is, therefore, not necessary to refer in detail to the decisions of this Court or of the Privy Council or our High Courts. It would suffice to extract what the learned authors Woodroffe and Amir Ali have stated in their Law of Evidence , 14th Edn. And Ratanlal and Dhirajlal in their Law of Evidence , (1982 Reprint )14th Edn. Those propositions are based mostly on decisions of courts for which reference has been given at the end. They are these :
Woodroffe and Amir Ali's Law of Evidence , 14th Edn.: " Page 937 :Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the test applied to admissible evidence, namely, the oath and cross-examination. But where there are special circumstances, which give a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second -hand source.
Page 941 : What is relevant and admissible under clause (1) of this section (Section 32) is the statement actually made by the deceased as to the cause of his death or of the circumstances of the transaction which resulted in his death.
Page 945-946: A statement must be as to the cause of the declarant's death or as to any of the circumstances of the transaction which resulted in his death i.e. the cause and circumstances of the death and not previous or subsequent transaction, such independent transactions being excluded as not falling within the principle of necessity on which such evidence is received. When a person is not proved to have died as a result of injuries received in the incident in question, his statement cannot be said to be a statement as to the cause of his death or as to any of the circumstances which resulted in his death. Where there is nothing to show that the injury to which a statement in the dying declaration relates was the cause of the injured person's death or that the circumstances under which it was received resulted in his death, the statement is not admissible under this clause.
Page 947 : Circumstances of the transaction resulting in his death: This clause refers to two kinds of statements: (i) when the statement is made by a person as to the cause of his death, or (ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words "resulted in his death" do not mean "caused his death". The expression "any of the circumstances of the transaction which resulted in his death" is wider in scope than the expression " the cause of his death". The declarant need not actually have been apprehending death.
Page 947 :The expression "circumstances of the transaction" occurring in Section 32 clause (1) has been source of perplexity to courts faced with the question as to what matters are admissible within the meaning of the expression. The decision of Their Lordships of the Privy Council in Pakala Narayana Swami v. Emperor sets the limits of the matters that could legitimately be brought within the purview of that expression . Lord Atkin, who delivered the judgment of the Board, has, however, made it abundantly clear that, except in special circumstances no circumstance could be a circumstance of the transaction if it is not confined to either the time actually occupied by the transaction resulting in death or the scene in which the actual transaction resulting in death took place. The special circumstances permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder... But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence .
Page 948 : "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes the evidence of all relevant factors. It is on the other hand narrower than "res gestae"/ Circumstances must have some proximate relation to the actual occurrence, though, as for instance , in the case of prolonged poisoning they may be related to dates at a considerable distance from the date of actual fatal dose.
Page 948 :The Supreme Court in Shiv Kumar v. State of Uttar Pradesh has made similar observations that the circumstances must have some proximate relation to the actual occurrence, and that general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly to the occasion of death will not be admissible.
Page 949 :The clause does not permit the reception in evidence of all such statements of a dead person as may relate to matters having a bearing howsoever remote on the cause or the circumstances of his death. It is confined to only such statements as relate to matters so closely connected with the events which resulted in his death that may be said to relate to circumstances of the transaction which resulted in his death. " Circumstances of the transaction which resulted in his death" means only such facts or series of facts which have a direct or organic relation to death. Hence, statement made by the deceased long before the incident of murder is not admissible.' Law of Evidence by Ratanlal and Dhirajlal (1982 Reprint ) Page 94:Circumstances of the transaction .- General expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death are not admissible.
Page 95 : Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. The condition of the admissibility of the evidence is that the cause of the declarant's death comes into question. It is not necessary that the statement must be made after the transaction has taken place or that the person making it must be near death or that the "circumstances" can only include the acts done when and where the death was caused. ... Dying declarations are admissible under this clause'".
The case in hand though under Sections 363/366/368/323/376/109 IPC, there is evidence on record that the victim committed suicide after five/six months by taking poison at her house. But the statement which she made before her father and others is not the statement relating to her death. The expression circumstances of the transaction occurring in Section 32(1) of the 1872 Act is a phrase no doubt that conveys some limitations as observed by the Hon'ble Apex Court. Circumstances must have proximate relation to the actual occurrence and must be of the transaction which results in death of the victim/declarant. The aforesaid proximate relation is missing in the instant case. Therefore, application of Sections 6,7,8,11 and 14 of the Indian Evidence Act in so far as the admissibility of the evidence of father/ P.W.3 , uncle /P.W.4 and others about what the deceased had stated to them against the accused is not attracted.
No case under Section 376 IPC has been made out by the prosecution. The evidence of PW1 (Doctor ) also does not support the case under Section 376 IPC. Therefore in the absence of any link between the offence under Section 376 IPC and death of the victim, Sections 6,7,8 and 11 will not apply. Going by the evidence on record and the legal position of admissibility of the statement of the victim in the light of the observations of the Hon'ble Apex Court the evidence on record is no evidence in the eye of law Accordingly, the impugned judgment, order of conviction dated 20-3-
2003 and sentence dated 21-3-2003 passed in Sessions Trial No. XII/December/1999 arising out of GR Case No. 698 of 1996 by the Additional District and Sessions Judge, Contai is set aside .
The appeal is allowed and accordingly disposed of.
Appellant Chandan Giri be released forthwith , if not wanted in any other case.
Send a copy of this order to the Superintendent of the concerned Correctional Home for compliance.
Urgent Photostat certified copy of this judgment, if applied for, is given to the parties on usual undertaking.
I agree, (Patherya, J. ) (Asim Kumar Ray, J. )