HARI CHARAN Vs. THE STATE

JUDGEMENT

(1.) I had the privilege of reading the well -reasoned judgment written by my Learned brother, Justice Ashim Kumar Banerjee. I agree to toto with what my Learned brother has held and I affirm the same. However, I felt that I should also add a few words and hence this effort. In the instant case the statement of the victim said to have been recorded by the Executive Magistrate acts in two ways, first as a F.I.R. and then as a dying declaration. Treating the same as a F.I.R. investigations have been made and in course thereof evidences have been collected and the same have been sought to be proved at the trial. The informations contained in the F.I.R. supply three distinct informations i.e. refusal on the part of the victim to pay a sum of Rs. 5000/ - to the accused; burning by the accused of the victim; and biting of the victim by the accused after the burning. The investigation could not collect any evidence to support the first allegation. The investigation could not also collect any evidence to support the third allegation. The investigation, how collected some evidence in support of the second allegation. The first evidence so collected is the injury report prepared by the attending Doctor at the Primary Health Centre, who attended the victim at about 4.15 pm on the date of incident. That report apart from recording statements giving an impression that the victim was at that time in deposable mind, recorded the following :

(2.) In addition to that, evidence in the oral form, said to have been made before the Investigating Officer by certain persons, were obtained and of such persons a few had been examined at the trial. The Doctor concerned who was examined at the trial supplied the words "the patient" before the sentence extracted above during her examination at the trial. It was contended that a written document can be explained and the Doctor in fact explained the same while giving evidence. It is true that a written document can be explained by parole evidence, but in the name of giving explanation if a word, which is not there in the written document is sought to be supplied, that is not permissible. Even assuming the words "the patient" could be supplied, then the evidence of the Doctor is to the effect that the patient had told the Doctor that her husband caused the burn. This piece of evidence has to be weighed with the other evidences available and the probative value of this piece of evidence has to be weighed in the light of evidence that has come on record. As my Learned brother has pointed out, while the Doctor at the Primary Health Centre, the mother and the brother of the accused deposed during the trial that the victim told them that she was burnt by her husband, two sons of the victim, the neighbor of the victim, to whom refuge was sought by the victim immediately after the incident, as well as the Taxi Driver, who took the victim to the Primary Health Centre, said otherwise. It has not been proved in evidence that either the Taxi driver or the neighbor or the Doctors were anyway dependent either upon the accused or upon the parental family of the victim. As pointed out by my learned brother very little weightage could be given to these statements to make a conviction. Some of these statements could be taken into account as part of circumstantial evidence provided the circumstances could be established. As has been pointed out by my Learned brother the fact that the husband was present when the incident occurred has not been established. It has been correctly pointed out by my Learned brother that merely because the husband did not act in the fashion, the learned Session Judge though he should have acted, do not establish the circumstances leading to any inference upon which these conflicting statements given by these six witnesses could be weighed in such a manner so as to convict the accused. The logical conclusion therefore, would be that the evidence collected during the course of investigation treating the statements said to have been made by the accused as F.I.R. did not yield such conviction that the accused could be convicted.

(3.) As has been pointed by the my Learned brother in so far as the dying declaration is concerned the same must be weighted appropriately and every effort must be made to sustain the same, but then in order to do so the court's conscience must be clear to the effect that the declaration which has been produced as the dying declaration is in fact the dying declaration of the victim. The second thing that the court would be required to do is to ascertain whether at the time of dying declaration was given the victim was in a disposable position both mentally and physically to give such declaration. The person who is obtaining a dying declaration is not necessarily required to have witnesses present. But when witnesses are available there must be strong reason for not having such witnesses. My learned Brother has already pointed out that at the time when the dying declaration was obtained, people sitting around the victim had witnessed obtaining of such dying declaration, but none of them was named and none came forward to corroborate the same. As has been pointed out by my learned Brother the Magistrate concerned did not bother at 6.00 p.m. in the evening to find out whether the victim was in a disposable mind. There is no statement either in the dying declaration itself or in the evidence that the Magistrate made any effort to find out the mental or physical condition of the victim.