Pokani Alias Prakashini Mohapatra And ... vs State Of Orissa on 9 September, 2003
In this connection, reference may be made to a decision of this High Court in the case of Prabhu @ Prabhu Dayal Agrawalla v. State, reported in (1989) 2 OLR 574. In the aforesaid case, this Court while interpreting Section 65 of the Evidence Act observed that when primary evidence has not been proved in accordance with law nor any basis has been shown for admission of secondary evidence, secondary evidence is not admissible. We have not referred to several other decisions in this regard since the law Is well settled. Exts. 6 and 7 being xerox copies of the dying declaration recorded by
P.W. 8 as well as Bed Head ticket and there being no explanation as to what happened to original, said secondary evidence produced before the Court and marked exhibits in spite of objection by the defence counsel are not admissible in evidence and therefore no reliance can be placed on the Exhibits 6 or 7. We are, therefore, constrained to discard the evidence of P.W. 8 so far as it relates to dying declaration made before him. P.W. 9 is the I.O. who in his evidence has stated that on receipt of casualty memo (Ext. 4) he proceeded to Nuagaon P.H.C. and examined the deceased and recorded her statement under Section 161, Cr,.P.C. which was marked as Exhibit 8. In cross-examination he has stated that the deceased was lying on the varandah and her condition was serious. Though she was not able to talk, but she sopke in unconscious state and this witness recorded her statement under Section 161, Cr.P.C. Much reliance is placed by the learned counsel for the appellants on this part of the statement made in cross-examination and it is argued that since the P.W. 9 admits that the deceased in in unconscious state, she could not have made any statement or declaration as claimed by this witness. In the very same paragraph this witness has again explained that the deceased had not totally lost her sense or was unable to talk, this witness has further stated that he recorded statement of the deceased under Section 161, Cr.P.C. in presence of the witness including the doctor.