The importance of direct evidence and the admissibility of reported witnesses' evidence when the victim's statement is not recorded as a dying declaration.

P.K.Deb, J.

1. The sole appellant has been convicted under Sec. 376 read with Sec. 312 of the Indian Penal Code by the Ten Additional Sessions Judge. Munger, in Sessions Trial No. 621/86 and sentenced to three years rigorous imprisonment under Sec. 312 of the Indian Penal Code and seven years rigorous imprisonment under Sec. 376 of the Indian Penal Code.

2. PW 3 Jitan Yadav, a co-villager of the appellant lodged fardbeyan on 72-1985 at 6 p.m. at his house before the S.I. of Sono Police Station (PW 5) alleging therein that his daughter Vmani Devi (sin & deceased) aged about fifteen years was bleeding from her private part two days earlier and when her mother Chamia Devi (PW 2) enquired from her she was told that she was in the process of menses. On the previous day she was found bed-ridden having pain and then again enquiry was made by PW 2 from her daughter and then only she disclosed that she was having pregnancy of three months through accused-appellant Sakaldeo Sah and with a view to abortion the appellant is alleged to have put herbal root kept or inserted in her private part by one lady of village Terukha. After insertion of that herbal root the abortion took place in the early morning of the next day but the bleeding did not stop. It was further staled in the fardbeyan that the condition of his daughter was deteriorating faster. It was disclosed in the fardbeyan that his daughter Vmani Devi was married but her "Gauna had not yet been done. It was also stated that she was preparing Biri for supply to Sakaldeo Sah. On the basis of the aforesaid fardbeyan formal FIR was registered being Sono P.S. Case No. 11/86 and then the investigation had been taken up. The victim girl Vmani Devi was medically examined and she was taken to hospital and she remained in hospital for some days but because of strike of the employees of the hospital she was taken back home and as per doctors advice treatment was going on but such treatment did not recover the girl rather her condition further deteriorated and then she was shifted to Jhajha hospital where she remained for treatment for about two days and on the third day she died and then she was cremated. During the course of investigation, it appears that the statement of the victim girl was recorded by the Investigating Officer and there was also prayer for recording her statement under Sec. 164. Cr. P.C. before the Magisterial Court but her statement was not recorded.

3. The defence is complete denial rather it was urged that as there was land dispute between the informant and the accused-appellant he has been falsely implicated in the case. The charge-sheet was submitted against the accused-appellant on completion of investigation under Secs. 376/313 of the Indian Penal Code. On commitment charges were framed in the Sessions Court under the same Sections of the Indian Penal Code. When the charges were read over, and explained to the accusedappellant he pleaded not guilty. For and on behalf of the prosecution as many as five witnesses have been examined including the Investigation Officer who is PW 5. PW 1 Borhan Yadav while PW 2 is Chamiya Devi, mother of the victim girl. PW 3 Jitan Yadav is the father of the victim. PW 4 is Dr. Nirmala Singh who had medically examined Vmani alias Dimani Devi. For and on behalf of the defence, three witnesses have been examined to prove false implication because of land dispute between the informant and the accused-appellant.

4. On carefully scrutinising the impugned judgment, it could be found that the learned Sessions Judge when found that there was no much legal evidence for the purpose of conviction of the accusedappellant he had resorted to surmises, conjectures, etc. as the crime as alleged was definitely of serious nature. At the very outset, it should be mentioned here that except the reported evidence of the victim girl, there is no other evidence on record directly involving the, accused-appellant with the crime. It is surprising to note