The judgment established that for a statement to be admissible as a dying declaration, it must be proven to be the statement of the deceased, meeting the criteria set forth in Section 32 of the Evidence Act.

Gopal Prasad, J.

1. Heard learned counsel for the appellant and learned counsel for the State.

2. The appellant has been convicted for offence under Section 376, 313 and 304 I.P.C. and sentenced to undergo imprisonment for seven years for offence under Section 376 I.P.C., five years for offence under Section 313 I.P.C. and six years for offence under Section 304 Part II of I.P.C.

3. The prosecution case as alleged in the written 2 report signed by the victim Pulbati Kumari that she used to live with her father Rup Lal Ganesh (P.W.2) and brothers Deo Narayan Ganesh (P.W.1) and Yogi Lal Ganesh (P.W.3) at village- Biranguri, P.S. Thakurganj, District- Kishanganj. The appellant Raisuddin used to come to her house to meet her brother. It is further alleged that Raisuddin raped her by enticing her. When she became pregnant she disclosed about pregnancy and then Raisuddin took her across the river Mechi and get Jaributi pushed in her vagina through a lady about 9-10 days prior to filing of the written report. When the blood start oozing out the victim became seriously ill then she disclosed about the occurrence to her brother Deo Narayan Ganesh and father.

4. On the written report dated 25. 09. 1995, F.I.R. was lodged and investigation proceeded. After investigation charge sheet submitted under Sections 376, 313 and 304 I.P.C. and trial proceeded. During trial, seven witnesses were examined. Witnesses P.W. 1 and 3 are brothers of the victim who deposed that they got information through letters from their father P.W.2, Rup Lal Ganesh that Pulbati Kumari died in Purnea hospital when they were in Punjab and Harayana, so they have been declared hostile. P.W. 2, father of the victim also stated that Pulbati Kumari died and he had not heard about rape. P.W. 4 has been tendered. P.W. 5 is the Police Officer has proved the signature of Pulbati Kumari on the written report which has been marked as Ext. 2. He has also proved Ext. 3, the F.I.R. lodged on the basis of said written report (Ext. 2). However, in his cross-examination has stated that the victim when came to the police station was very weak and was taken to police station with the assistance of her father and brothers. She died on 30. 10. 1995. P.W. 5 stated in his evidence that he did not know through whom the said written report was got written.

5. P.W.4 is the doctor who conducted autopsy on her person has stated that cause of death of the victim septic peritomisis and metritis and such infection can be possible by putting indigenous medicine like Jaributi through the vagina. P.W. 6 has stated that he did not know how she died. P. W. 7 is the I.O. who has only submitted the charge sheet.

6. The trial court taking into consideration the evidence of P.W. 5 who has proved the signature of Prosecutrix on the written report which has been marked as Ext. 2. The trial court and further taking into consideration the evidence of P.W. 5 that Prosecutrix died in course of investigation in proximity with F.I.R. lodged on the written report. The trial court treated the written report in evidence as dying declaration under Section 32 of the Evidence Act. The trial court further drawn analogy of the admission of the written report as dying declaration on the decision reported in 1991 (2) BLJ 245, where their lordships held that F.I.R. and Fardbeyan could be read in evidence under Section 294 of Cr.P.C. even if the signature has not been proved by the prosecution, when genuineness of the signature is not doubted or challenged. The trial court that is the Learned Additional Sessions Judge further relying upon decision reported in A.I.R. 1984 S.C. 1622 drawn an analogy that Prosecutrix will not tell a lie on the verge of her death. The trial court taking into consideration the written report as dying declaration and convicted the appellant taking the written report as substantive evidence as what is written in the written report is true and hold that Raisuddin has indulged in rape and was