ORAL JUDGMENT 1. This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 30.7.2001 passed by learned Addl. Sessions Judge, Kishanganj in Sessions trial no. 801 of 2000 by which and whereunder he convicted the sole appellant for the offences punishable under sections 313, 417 and 304A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years for the offence punishable under section 313 of the Indian Penal Code, to undergo rigorous imprisonment for one year for the offence punishable under section 417 of the Indian Penal Code and to undergo rigorous imprisonment for one year for the offence punishable under section 304A of the Indian Penal Code. However, all the sentences were ordered to run concurrently and the period already undergone by the appellant was ordered to be set off as per provision of section 428 of the Cr.P.C. 2. The brief fact, which lies to file this criminal appeal, is that P.W. 7, Samse Alam, the then Officer-in-charge of Kochadhaman police station on 11.6.2000 at 18.30 hours, on the basis of OD slip sent by In-charge of Kochadhaman, Primary Health Centre, recorded the fardbeyan of deceased Mohsina wife of late Abdul Rahim resident of village Masid garh P.S. Kochadhaman District Kishanganj in presence of P.W.1 Md Sayeed and P.W.2 Md Zahur Alam to this effect that four to five months back, the appellant established physical relationship with her giving temptation of money as well as false promise of marriage and since then he had been committing rape on her and when she became pregnant, he refused to marry her and on one pretext or the other, he enticed her and without her wish brought medicine from some village doctor and when she refused to take the aforesaid medicine the appellant forcibly administered the aforesaid medicine to her on account of which her pregnancy terminated and there was severe bleeding and severe pain in the abdomen also occurred. She further stated that when her condition started deteriorating, her co-villager brought her to Kochadhaman hospital where she gave her fardbeyan to P.W.7. 3. She further stated that when her condition started deteriorating, her co-villager brought her to Kochadhaman hospital where she gave her fardbeyan to P.W.7. 3. On the basis of the aforesaid fardbeyan, Kochadhaman P.S. case no.62/2000 for the offences under sections 376, 313 of the Indian Penal Code was registered on 11.6.2000 and on the same day, formal FIR under sections 376, 313 of the Indian Penal Code was drawn up against the appellant and FIR as well as fardbeyan were put up before the concerned court on 12.6.2000. P.W.7 took the charge of investigation. In course of investigation, informant- Mohsina died and accordingly, sections 302, 304, 315 of the Indian Penal Code were also added in the formal FIR on 19.6.2000. After completion of investigation, P.W.7 submitted charge sheet against the appellant for the offences punishable under sections 376, 313 of the Indian Penal Code. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way. 4. The sole appellant stood for trial and accordingly, he was charged for the offences punishable under sections 376, 313, 302 of the Indian Penal Code. The appellant denied the charges and claimed to be tried. 5. In course of trial, prosecution examined, altogether, seven witnesses and besides it, prosecution got exhibited post mortem report as exhibit 1, fardbeyan as exhibit 2 and also marked photo copy of inquest report as exhibit “X” for identification. The statement of the appellant was recorded under section 313 of the Cr.P.C in which he denied the prosecution story and reiterated his innocence. 6. One defence witness was also examined and the aforesaid witness proved exhibit A entry no. 92 in the injury register of hospital of Kochadhaman. 7. The learned trial court convicted and sentenced the appellant in the manner as stated above treating fardbeyan of informant- Mohsina as her dying declaration. 8. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and order of sentence arguing that findings of the learned trial court are erroneous and liable to be set aside because the findings of the learned trial court are based on surmises and conjectures. 8. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and order of sentence arguing that findings of the learned trial court are erroneous and liable to be set aside because the findings of the learned trial court are based on surmises and conjectures. Continuing his submission, he submitted that, as a matter of fact, exhibit 2, so-called fardbeyan of informant- Mohsina, was a manufactured document and she was not in a position to give her statement because admittedly, she was brought to Kochadhaman, Primary Health Centre on 11.6.2000 and D.W.1 admitted the informant- Mohsina as an emergency patient in Primary Health Centre, Kochadhaman and found her condition serious and furthermore, D.W.1 found that her Jaw was locked and she was unconscious state. Learned counsel for the appellant submitted that D.W. 1 examined informant- Mohsina at 5.30 p.m. on 11.6.2000 whereas so-called fardbeyan of informant- Mohsina was recorded by P.W.7 at 6.30 p.m. on 11.6.2000 and before recording her fardbeyan, P.W.7 did not take pain to get a certificate from doctor about the condition of informant- Mohsina. He further submitted that except P.W.7 none of the prosecution witnesses supported the prosecution case and, therefore, so-called fardbeyan of informant- Mohsina was doubtful but the learned trial court, having relied upon the aforesaid fardbeyan, recorded the impugned judgment of conviction and order of sentence which is not in accordance with law. 9. Learned counsel for the appellant relied upon a decision reported in AIR 1999 SC 3455 (Paparambaka Rosamma & ors vs. State of Andhra Pradesh) in which it has been held by the Apex Court that in absence of medical certificate that the injured was in a fit state of mind at the time of making declaration, it would be very much risky to accept subjective satisfaction of a Magistrate who opined that injured was in a fit state of mind at the time of making declaration. In the above stated case, the deceased was set on fire by the accused persons and she was brought to hospital for treatment but doctor, having found her condition serious, sent a requisition to a Magistrate for recording dying declaration of the deceased and after that Magistrate came and recorded dying declaration of the deceased. In the above stated case, the deceased was set on fire by the accused persons and she was brought to hospital for treatment but doctor, having found her condition serious, sent a requisition to a Magistrate for recording dying declaration of the deceased and after that Magistrate came and recorded dying declaration of the deceased. The aforesaid dying declaration was recorded by Magistrate in presence of the doctor in question- answer form and doctor gave a certificate to this effect that the deceased was in a fit disposing state of mind to make declaration. The Apex Court of this country declined to accept the aforesaid dying declaration on the ground that before recording declaration of the deceased, Magistrate did not take certificate from the doctor, particularly, in the circumstance when the doctor was present there. 10. Another decision citied on behalf of the appellant is AIR 1994 SC 840 (Maniram vs. State of Madhya Pradesh) in which Apex Court of this country refused to rely upon dying declaration which was recorded without attestation of a doctor regarding state of mind of its maker. 11. Learned counsel for the appellant further submitted that, no doubt, the learned trial court rightly came to the conclusion that no case under section 376 of the IPC was made out but committed error in convicting the appellant for the offence punishable under section 417 of the IPC because it would appear from the evidences available on the record that the appellant established physical relationship with the deceased with consent of the deceased-Mohsina as in the so-called fardbeyan of informant- Mohsina, it has specifically been mentioned that on account of temptation of money and promise of marriage, she established physical relationship with the appellant and therefore, informant- Mohsina was consenting party and, at best, civil damage could have been claimed for breach of promise. In support of the above stated contention, he relied upon a decision reported in (1998) 6 Supreme Court Cases 420 (Kuldeep K. Mahato vs. State of Bihar) in which it has been held by Apex court of this country that if prosecutrix is a consenting party, the offence of rape is not made out. In support of the above stated contention, he relied upon a decision reported in (1998) 6 Supreme Court Cases 420 (Kuldeep K. Mahato vs. State of Bihar) in which it has been held by Apex court of this country that if prosecutrix is a consenting party, the offence of rape is not made out. Another decision citied on behalf of the appellant is 2005(1) Supreme Court Cases 88 (Deelip Singh @ Dilip Kumar vs State of Bihar) in which it has been held by Apex court that the consent given by a woman believing man?s promise to marry her would fall within the expression “without her consent” only if it is established that from the very inception the man never really intended to marry her and the promise was mere hoax and the accused would be liable only for damages under the civil law. Learned counsel for the appellant also relied upon a decision reported in (2003) 4 Supreme Court Cases 46 in which it has been held by Apex court that the consent given by the prosecutrix to sexual intercourse with a person with whom she was deeply in love on a promise that he would marry her, on a later date, can not be said to be given a misconception of fact. It has further been held that to attract of section 90 of the IPC, two conditions must be fulfilled; firstly, it must be shown that consent was given under misconception of fact and secondly, it must be proved that the person who obtained consent, knows or has reason to believe that consent was given in consequence of such misconception. 12. On the strength of the aforesaid decisions, learned counsel for the appellant submitted that the prosecution miserably failed to prove the charges against the appellant and the appellant ought to have been acquitted by the learned trial court of the charges framed against him. 13. On the other hand, learned Addl. 12. On the strength of the aforesaid decisions, learned counsel for the appellant submitted that the prosecution miserably failed to prove the charges against the appellant and the appellant ought to have been acquitted by the learned trial court of the charges framed against him. 13. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and order of sentence arguing that the learned trial court rightly relied upon dying declaration of informant- Mohsina and there was no requirement to take certificate of the doctor before recording the statement of informant- Mohsina because the aforesaid statement was recorded in the form of first information report and after death of informant- Mohsina the aforesaid statement was treated by the learned trial court as her dying declaration. He further submitted that other witnesses, though they have been declared hostile, accepted some facts of the prosecution case and, therefore, the learned trial court rightly based its findings on dying declaration of informant- Mohsina as well as testimony of other prosecution witnesses. 14. As I have already stated that, altogether seven prosecution witnesses were examined on behalf of the prosecution, out of them, P.Ws. 1 2, 3 and 5 have been declared hostile whereas attention of previous statement of P.W.4 was drawn by the prosecution with permission of the court without declaring her hostile. 15. P.W.6 is Dr. Birendra Prasad who did post mortem examination of the dead body of informant- Mohsina and P.W.7 is Investigating officer of the case. 16. P.W.4, Roji is the daughter of the deceased- Mohsina. This witness deposed before the learned trial court that Mohsina was her mother and she further stated that the person who was standing in the dock had committed “Badmashi” with her mother. She further deposed that her mother was pregnant and she ate some medicines as a result of which she died. Although this witness was not declared hostile by the prosecution but her attention towards her previous statement recorded by Investigating officer was drawn with permission of the court. 17. P.W.1, Md Sayeed and P.W.2, Zahur Alam have stated nothing about the alleged occurrence and denied to have made any statement before the police. Similarly, P.W.3 also stated nothing about the alleged occurrence and denied to have made any statement before the police. 18. P.W.5, Rehana is another daughter of the deceased Mohsina. 17. P.W.1, Md Sayeed and P.W.2, Zahur Alam have stated nothing about the alleged occurrence and denied to have made any statement before the police. Similarly, P.W.3 also stated nothing about the alleged occurrence and denied to have made any statement before the police. 18. P.W.5, Rehana is another daughter of the deceased Mohsina. She deposed that her mother died of illness. She also denied to have made any statement before the police. 19. P.W.6 deposed that Board of doctors consisting of Dr. S.L.Ram Das, Dr. U. Prasad, Dr. (Mrs). T. Dhar and Dr. (Mrs). U. Kumari conducted post mortem examination on the dead body of the deceased Mohsina on 18.6.2000 and have found following injuries:- a) No external injury as present over the body of the deceased. b) On dissection uterus enlarged (14 weeks size) flably inflamed. On dissection of uterus- uterine cavity contains pus and escudative material, few placental beads are present adherent to the inner lining of the uterus. 20. This witness admitted that the Board of Directors did not preserve the fluid or pus etc. from genital canal and gas was also not preserved. He also admitted that the Board did not collect blood from the right chamber of heart though it was essential in case of criminal abortion to collect blood simple from right chamber of heart as well as fluid from vagina or entra uterine should be collected for chemical analysis. 21. P.W.7, Samse Alam deposed that on 11.6.2000 he was posted as Officer-in-charge of Kochadhaman police station and on the same day at about 6 p.m. he got OD slip sent by In-charge of Kochadhaman, Primary Health Centre. He entered sanha of the aforesaid OD slip and went to Kochadhaman Primary Health Centre where he recorded statement of Mohsina who disclosed before him that teacher of Primary School, Masid garh used to commit rape on her after giving temptation of money as well as promise of marriage and when she became pregnant, the aforesaid teacher provided her local medicine as a result of which her bleeding started and her condition became precarious and after that she was brought to hospital by the villagers. The aforesaid statement was made in presence of Zahur Alam (P.W.2) and Md Sayeed (P.W.1). The aforesaid statement was made in presence of Zahur Alam (P.W.2) and Md Sayeed (P.W.1). This witness further deposed that after recording the statement of Mohsina, he read over the aforesaid statement to her and having found her statement correct, she put her right thumb on her statement and he also took the signatures of the above stated witnesses. This witness proved fardbeyan of Mohsina as exhibit 2. This witness further said that he took the charge of investigation and recorded further statement of Mohsina and also inspected the place of occurrence. This witness learnt in course of investigation that Mohsina died at Kishanganj hospital. He further stated that he prepared inquest report on the dead body of the deceased Mohsina. On being cross-examined by the defence, he admitted that he did not take certificate from doctor of Kochadhaman, Primary Health Centre before recording the statement of Mohsina. He further admitted that he did not take any step to get dying declaration of Mohsina recorded. He also admitted that he did not seize anything from the place of occurrence. 22. From perusal of the entire evidence available on the record, it is apparent that except fardbeyan of the deceased Mohsina , there is nothing on the record to prove the guilt of the appellant and the impugned judgment reveals that the learned trial court based his findings on fardbeyan of the deceased Mohsina treating the same as her dying declaration. 23. Learned counsel for the appellant has challenged the genuiness of the aforesaid fardbeyan arguing that the aforesaid document was a fabricated document and, as a matter of fact, the exhibit 2, so-called fardbeyan of deceased, is not the statement of the deceased. 24. It is an admitted position that when condition of Mohsina started deteriorating, she was brought to Kochadhaman Primary Health Centre by her villagers on 11.6.2000 and on the same day at about 5.30 p.m. she was got admitted in Kochadhaman, Primary Health Centre and when the deceased Mohsina was brought to Kochadhaman, Primary Health Centre, D.W. 1 found that she was unconscious and her jaw was locked. 25. 25. D.W. 1 has been examined on behalf of the appellant and he proved the aforesaid fact as well as entry in the admission register of the hospital which is exhibit A. From perusal of exhibit A, it is apparent that when Mohsina was brought to Kochadhaman, Primary Health Centre, she was unconscious and her jaw was locked and accordingly, she was referred to Sadar hospital, Kishanganj for better treatment on the same day. 26. P.W.7 stated that he recorded the statement of Mohsina on 11.6.2000 at 6.30 p.m. at Kochadhaman, Primary Health Centre. Therefore, it is admitted case of the prosecution that statement of the deceased Mohsina was recorded within one hour after her arrival in Kochadhaman, Primary Health Centre. Exhibit A as well as deposition of defence witness no.1 reveal that she was unconscious state and was not in a position to speak when she was brought to Kochadhaman, Primary Health Centre and P.W.4 has also stated at para 4 of her cross-examination that her mother became unconscious at the home and she was not able to speak and after that she was brought to hospital. Similar statement has been made by P.W.5. 27. The learned trial court disbelieved the deposition of D.W. 1 as well as exhibit A on the ground that fardbeyan of Mohsina was recorded at 6.30 p.m. whereas D.W.1 found her in unconscious state at 5.30 p.m. So, she might have regained her consciousness at 6.30 p.m. In my view, the aforesaid finding of the learned trial court is based only on surmises and conjectures because prosecution has not adduced any evidence to show this fact that the deceased Mohsina regained her consciousness at 6.30 p.m. at the time of recording her fardbeyan. Moreover, D.W.1, specifically, stated that her jaw was locked and her condition was deteriorating and accordingly, she was referred to Sadar hospital, Kishanganj for better treatment. The aforesaid statement as well as exhibit A reveal that the deceased Mohsina was not in a position to speak when she was brought to Kochadhaman, Primary Health Centre and there is nothing on the record to show that she became capable to speak within one hour from her arrival at Kochadhaman, Primary Health Centre. 28. The aforesaid statement as well as exhibit A reveal that the deceased Mohsina was not in a position to speak when she was brought to Kochadhaman, Primary Health Centre and there is nothing on the record to show that she became capable to speak within one hour from her arrival at Kochadhaman, Primary Health Centre. 28. The learned trial court discarded the testimony of D.W. 1 on the ground that he made some exaggerated statement saying that the condition of the deceased - Mohsina was very serious but he did not mention the aforesaid fact in exhibit A rather he only mentioned that patient’s condition was deteriorating. In my view, on the basis of the aforesaid ground only the testimony of D.W. 1 could not have discarded because admittedly, he mentioned in exhibit A that condition of the deceased was deteriorating and he referred the deceased to Sadar hospital, Kishanganj for better treatment just after her arrival in hospital. So, even if he did not give the finding of seriousness of the deceased in exhibit A, it can not be said that he made exaggerated statement before the court because admittedly, he mentioned in exhibit A that condition of the deceased was deteriorating and he referred the deceased to Sadar hospital, Kishanganj for better treatment. Furthermore, the learned trial court did not rely on exhibit A on the ground that the deceased - Mohsina was attended by D.W.1 at 5.30 p.m. whereas P.W.7 recorded her statement on 6.30 p.m. and between the aforesaid period, she was treated by doctor and, therefore, this inference could not have been drawn that she was unconscious at 6.30 p.m. also. 29. P.W.7 deposed that statement of the deceased Mohsina was recorded in presence of P.W.1 and P.W. 2 but both the aforesaid witnesses stated nothing about recording of statement of the deceased Mohsina nor their attention was drawn towards their signatures on the so-called statement of the deceased Mohsina . 30. P.W. 5, daughter of Mohsina stated that Daroga had taken thumb impression of her mother as well as signatures of P.W. 1 and P.W 2 on a plain paper and her mother had not given any statement before the police. 31. 30. P.W. 5, daughter of Mohsina stated that Daroga had taken thumb impression of her mother as well as signatures of P.W. 1 and P.W 2 on a plain paper and her mother had not given any statement before the police. 31. As I have stated that there was nothing before the learned trial court to come on the conclusion that at 6.30 p.m. the deceased - Mohsina was conscious and she was in a fit state of mind, except the statement recorded by P.W.7. Admittedly, the above statement of deceased Mohsina recorded by P.W.7 has been challenged by the appellant on the ground that the aforesaid statement is not statement of deceased Mohsina. 32. Admittedly, the deceased alive for near about six days after recording her statement from the date of her admission in Kochadhaman, Primary Health Centre but mere surviving of the deceased for six days is not an indication of this fact that on 11.6.2000 at 6.30 p.m. she was in conscious state and she was in a fit state of mind to give her statement. 33. No doubt, dying declaration can form the sole basis of conviction without corroboration when it is voluntary, true and reliable but if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuiness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. 34. No doubt, before recording fardbeyan , it is not essential to take certificate of the doctor and fardbeyan can be treated as dying declaration after death of its maker but in the present case, admittedly, P.W.7 went to Kochadhaman Primary Health Centre having receipt of OD slip sent by DW.1 and furthermore, it has come in the deposition of D.W. 1 as well as exhibit A that when deceased – Mohsina was brought to Kochadhaman, Primary Health Centre, DW 1 found her in unconscious state with locked jaw at 5.30 p.m. and therefore, it was incumbent duty of P.W.7 to take advise either from D.W. 1 or from any other doctor of Kochadhaman Primary Health Centre to this effect as to whether deceased – Mohsina was in a position to speak or not though he was not legally bound to do so. Furthermore, it is an admitted position that P.W.7 himself took charge of investigation and recorded further statement of deceased – Mohsina but even before recording her further statement, he did not mention this fact in the case diary that he found deceased – Mohsina in fit state of mind and she was able to give her further statement. 35. The learned trial court has given findings that the case was registered under sections 376 and 313 of the IPC and P.W.7 was not under impression that the deceased was about to die as he had registered case under sections 376 and 313 of the IPC and that was the reason P.W.7 did not take any precaution for getting her statement recorded as dying declaration. 36. Admittedly, the deceased survived for six days after recording exhibit 2 and furthermore, it is an admitted position that she was referred by D.W. 1 to Sadar Hospital, Kishanganj and after that he was brought to Sadar Hospital, Kishanganj where she died after six days. P.W.7 admitted at para 6 of his cross-examination that there were residences of SDO, CJM, and Judicial Magistrates in Kishunganj but admittedly, between the aforesaid period of six days, he did not take any step to get the statement of deceased – Mohsina recorded under section 164 of the Cr.P.C though he was aware of this fact that condition of Mohsina was serious. Therefore, in my view, after taking totality of the evidence, exhibit 2 is not free from suspicion and it is unsafe to rely on exhibit 2, so-called fardbeyan of deceased – Mohsina. 37. Admittedly, except exhibit 2 there was nothing before the learned trial court to convict the appellant and for convicting the appellants the learned trial court took aid of exhibit 2 as well as deposition of P.W.4. P.W.4, the daughter of the deceased, stated in her deposition that the appellant had committed Badmashi with her mother who was pregnant. This witness has not been declared hostile by the prosecution and without declaring hostile, the learned trial court permitted the prosecution to draw the attention of this witness towards her statement recorded under section 161 of the Cr.P.C. 38. This witness has not been declared hostile by the prosecution and without declaring hostile, the learned trial court permitted the prosecution to draw the attention of this witness towards her statement recorded under section 161 of the Cr.P.C. 38. No doubt, entire statement of a hostile witness can not be rejected and the prosecution can rely on the statement of a hostile witness, if the aforesaid statement is in favour of the prosecution but in the instant case, admittedly, P.W.4 has not been declared hostile and she made contradictory statement in her examination-in-chief as she stated in her statement that her mother was suffering from illness and she ate some medicine as a result of which she died. Although this witness stated that the appellant had committed Badmashi with her mother but only the above stated statement of P.W.4 is not sufficient to come on the conclusion that the appellant had established physical relationship with mother of P.W.4. Furthermore, this witness stated that she does not know the name of the appellant. This statement of P.W.4 can not be doubted because admittedly, at the relevant time, the appellant was working as a teacher in the village of P.W.4. So, it is quite natural that the appellant was known to P.W.4 but she was not aware about the name of the appellant. 39. P.W.6 is one of the members of Medical Board and according to this witness post mortem of the deceased was held by Medical Board. This witness proved the post mortem report as exhibit 1 and Medical Board found that cause of death of the deceased was cardio failure due to tetanus which may be subsequent to septic abortion. 40. P.W.6 admitted at para 7 of his cross-examination that Medical Board did not preserve fluid, puse etc. found in genital canal. Similarly, gas etc. found in intestine of the deceased was also not preserved. This witness further stated that Medical Board did not collect blood from right chamber of the deceased. This witness further admitted that in cases of criminal abortion blood sample from right chamber of heart as well as fluid from vagina should be collected for chemical analysis. Therefore, from perusal of the statement of this witness, it is clear that the deceased died of cardio failure due to tetanus which may be subsequent to septic abortion but on account of non-perseverance of fluid, gas etc. Therefore, from perusal of the statement of this witness, it is clear that the deceased died of cardio failure due to tetanus which may be subsequent to septic abortion but on account of non-perseverance of fluid, gas etc. as well as due to non-collection of blood sample from right chamber of heart of the deceased, it was very difficult to come on the conclusion that the deceased died on account of criminal abortion and, in my view, the prosecution failed to prove this fact that the deceased died because of criminal abortion. 41. As I have already stated that exhibit 2, so-called fardbeyan of the deceased- Mohsina, is not free from doubt and suspicion and except the aforesaid exhibit 2, there is nothing on the record to prove the guilt of the appellant and, therefore, I am of the opinion that prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and the appellant is entitled to get the benefit of doubt. 42. On the basis of the aforesaid discussions, this criminal appeal is allowed and the impugned judgment of conviction and sentence order is, hereby, set aside. Appellant is on bail. He is discharged from the liability of bail bonds.