The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.207 of 2018 : (A) AND CRLA No.208 of 2018 : (B) In the matter of Appeals under section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 26th February, 2018 passed by the learned Additional Sessions Judge, Champua in S.T. Case No.4 of 2015. ---- Malati Mahanta (In CRLA No.207 of 2018) Bidyadhar Mahanta (In CRLA No.208 of 2018) -versus- …. Appellants State of Orissa (In CRLA Nos.207 & 208 of 2018) …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.L. Bhuyan, (Advocate in both CRLAs) For Respondent - Mr.S.S. Kanungo, Addl. Government Advocate (In both CRLAs) CORAM: MR. JUSTICE D.DASH Dr. JUSTICE S.K. PANIGRAHI Date of Hearing : 04.04.2023 : Date of Judgment: 19.04.2023 D.Dash,J. Since in both these Appeals, the judgment of conviction and order of sentence dated 26.02.2018 passed by the learned Additional Sessions CRLA Nos.207 & 208 of 2018 Page 1 of 21 {{ 2 }} Judge, Champua in S.T. Case No.4 of 2015 arising out of G.R. Case No.293 of 2014 corresponding to Jhumpura P.S. Case No.73 of 2014 of the court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Champua are under challenge; those were heard together, for being disposed of by common judgment. The Appellant No.1 is the husband of the Appellant No.2. The Appellant No.1 with his wife (Appellant No.2) and his parents, namely, Sukadev Mahanta and Rukmuni Mahanta faced the trial for commission of offence under sections 498(A)/302/304(B)/34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and section 4 of the Dowry Prohibition Act (for short, ‘the D.P. Act’). The parents of the Appellant No.1 having been acquitted of all the charges, these Appellants have been found guilty for committing the offence under section 302/34 I.P.C. Accordingly, each of them has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for one year. Being aggrieved by the above judgment of conviction and order of sentence, the Appellants (accused persons) have preferred these Appeals. 2. Prosecution case is that one Lilimani Mahanta (deceased) had
Facts
married accused Bidyadhar when his marriage with the first wife by the accused Malati was subsisting and she as his first wife with two sons was residing in a separate house being the dependents of accused, Bidyadhar. Lilimani being married by accused Bidyadhar for the second time when stayed in the house, cruelty was meted out at her by these accused persons as well as her parent-in-laws. She was tortured both physically and mentally. The demand was being advanced for bringing dowry so that she would be relieved of the problems that she was facing. Page 2 of 21 CRLA Nos.207 & 208 of 2018 {{ 3 }} On 02.10.2014, Sanatan Mahanta (Informant-P.W.8) who happens to be the brother of Lilimani received an information that his sister had received burn injuries. Having heard the same, Sanatana (Informant-P.W.8) immediately proceeded to the house where accused Bidyadhar, Malati, deceased-Lilimani and the parents of the accused Bidyadhar were residing. On arrival, he came to know that his sister Lilimani had already been shifted to District Headquarter Hospital, Keonjhar (for short, ‘DHQ Hospital’) for better treatment. So, he went there and saw his sister Lilimani lying on bed with severe burn injuries all over her body. Lilimani then told the Informant (P.W.8) that on 01.l0.2014 around 8 p.m., her husband, parent-in-laws and the other wife of her husband doused her with kerosene and set fire at her for non- fulfilment of the demand of dowry. Sanatan Mahanta thereafter went to Jhumpura Police Station and it was around 3 p.m., a written report to the above effect was presented to the Inspector-in-Charge (I.I.C.) of Jhumpura Police Station. The I.I.C. then treating the same as First Information Report (F.I.R.) immediately registered the case and directed one Sub-Inspector of Police (S.I.-P.W.12) attached to the Police Station to take up investigation. In course of investigation, the Investigating Officer (I.O.-P.W.12) examined the Informant and seized one notarized certificate under seizure list (Ext.3). Visiting the spot, prepared the spot map (Ext.15) and examined other witnesses. During spot visit, one plastic jerican containing 500 ml of kerosene, burnt saree along with one Kantha (thin mattress) were seized from the spot, i.e., the house of the accused under seizure list (Ext.1). The victim was then undergoing the treatment at DHQ Hospital, Keonjhar. This I.O. (P.W.12) then went to the hospital and examined Lilimani. On the next day, i.e., on 03.10.2014 accused CRLA Nos.207 & 208 of 2018 Page 3 of 21 {{ 4 }} Bidyadhar and his father were arrested and forwarded in custody to Court. In view of the death of Lilimani in the Hospital during treatment, inquest was held by the I.O. (P.W.12) in presence of the relations and he then prepared the inquest report (Ext.5). Post Mortem Examination was also conducted. On 17.10.2014, the I.O. (P.W.12) went to the Sub- Divisional Hospital, Champua (for short, ‘the S.D. Hospital’) and seized one bed head ticket and the dying declaration of the deceased which the Assistant Surgeon of that hospital had recorded. The I.O. (P.W.12) prior to seizure had ascertained these facts from the said doctor (P.W.11) and there he had also examined the male attendant who was the witness in whose presence, that dying declaration (Ext.14) had been recorded by P.W.11. The seized incriminating articles were sent to the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar by the order of the Court on 14.11.2014. On 21.11.2014, accused Malati and her mother-in-law- Rukmuni were arrested and forwarded in custody to the Court. 3. On completion of investigation, Final Form was submitted placing these accused persons along with two others to face the trial for commission of offence under sections 498(A)/302/304(B)/34, I.P.C. and section 4 of the D.P. Act. 4. Receiving the Final Form, learned S.D.J.M., Champua took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced against these accused persons by framing the charge for the above mentioned offences. 5. In the Trial, the prosecution in total has examined 13 witnesses. Out of them, as already stated, the Informant, who is the brother of the deceased has been examined as P.W.8 whereas the Doctor who had Page 4 of 21 CRLA Nos.207 & 208 of 2018 {{ 5 }} conducted the Post Mortem Examination over the dead body of the deceased is P.W.13 and the Doctor who is said to have recorded the dying declaration of the deceased is P.W.11. The I.O. has come to the witness box as P.W.12. The cousin brother of the deceased has also been examined as P.W.9. The prosecution besides leading the evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 19. From among those, the important are the F.I.R. (Ext.4) whereas the inquest report is Ext.5. The statement of the deceased recorded by P.W.11 in course of her treatment in the SD Hospital, Champua has been admitted in evidence and marked as Ext.14 which is said to be the dying declaration. The Post Mortem Examination Report and Chemical Examiner’s Report are Ext.19 and Ext.18 respectively. 6. The case of defence is the denial of their complicity in the said incident of burning and false implication. It is specifically said that it was Lilimani, who herself had set fire at her body and she when shouted, the accused persons had rushed to save her. Despite opportunity, the defence has not tendered any evidence either oral or documentary in support of the plea of denial and false implication. 7. The Trial Court, upon examination of the evidence of the Doctor (P.W.13) who had conducted the Post Mortem Examination over the dead body of the deceased as well as his report (Ext.19) and the evidence of P.W.12-the Investigating Officer, P.W.11, the treating Doctor at SD Hospital, Champua and P.Ws.8 and 9 the brother and cousin brother of the deceased has come to the conclusion that Lilimani CRLA Nos.207 & 208 of 2018 Page 5 of 21 {{ 6 }} died due to complication arising from severe burn injuries received by her. Having said so, the Trial Court examining the evidence of the prosecution witnesses and on going through the documents admitted in evidence from the side of the prosecution has found the charge against all the accused persons for commission of offence under sections 498(A)/304(B)/34, I.P.C. read with section 4 of the D.P. Act to have not been established beyond reasonable doubt by leading clear, cogent and acceptable evidence. However, keeping in view the evidence of the prosecution witnesses and reliance being heavily placed upon the dying declaration recorded by P.W.11, which has been admitted in evidence and marked Ext.14, the Trial Court has held these two accused persons to have caused the death of Lilimani by pouring kerosene over her body and setting her ablaze. Therefore, they having been convicted for the offence under sections 302/34, I.P.C., have been sentenced as afore- stated. 8.
Legal Reasoning
tests as afore-stated, we find that the prosecution has failed to prove the dying declaration (Ext.14) through clear, cogent and acceptable evidence, which is shrouded with doubtful circumstances for which the same cannot be acted upon as the sole basis for conviction in the absence of any corroboration but also we find that whether the victim, at Page 20 of 21 CRLA Nos.207 & 208 of 2018 {{ 21 }} that point of time, was in a fit state of mind and able to make the statement. We too have our serious doubts that with the extent of burn injuries and her condition as narrated by P.W.11 when she was under great pain and had been administered with intravenous injections as the possibility of her being in a state of delusion could not be completely ruled out. 19. We are, therefore, not in a position to endorse the view taken by the Trial Court. The discussion of evidence and the reasons in the aforesaid paragraphs, according to us, are sufficient to cast cloud on the genuineness of the prosecution case and therefore, we find it extremely unsafe to record the conviction only on the basis of said recording under Ext.14. 20.
Arguments
Learned counsels for the Appellants (accused persons) submitted that in the present case although it is there in the evidence that there are four sets of dying declaration; first one made before the Doctor (P.W.11), second one before the brother of the deceased (P.W.8) and the third one before (P.W.9) and the last one before the I.O. (P.W.12.), the prosecution has not proved the statement of the deceased recorded by the I.O. (P.W.12) for the reasons best known to it and, therefore, adverse inference to the prosecution case is bound to be drawn that had that been proved the other three sets of dying declarations would have been pushed under thick clouds of suspicion. He then submitted that when the dying declaration recorded by the Doctor (P.W.11) reveals that the deceased has implicated the present accused persons to have doused her Page 6 of 21 CRLA Nos.207 & 208 of 2018 {{ 7 }} with kerosene and set her ablaze, P.W.8 and 9 say that in the declarations made before them, she had implicated these accused persons as well as her parent-in-laws who have since been acquitted. According to him, the Trial Court has adopted the course in finding out the common quotient from the four dying declarations appearing as culprit, in fastening the guilt upon these accused persons to have set the deceased to fire. He submitted that from the dying declarations before the P.W.8 and P.W.9, the tendency of the deceased to falsely implicate two innocent elderly persons is very clear and that has its impact upon the veracity of the subsequent dying declaration recorded by P.W.11 which has been admitted in evidence and marked Ext.14 and that aspect having not been considered, the Trial Court has committed grave error. He submitted that the Trial Court having not accepted the dying declaration made before P.W.8 and 9 when has relied upon the dying declaration made before P.W.11, it has not taken into consideration the surrounding doubtful features as well as the impact of suppression of the statement made before P.W.12, the I.O. who has specifically stated to have recorded in the hospital. He, therefore, submitted that when the prosecution case is based upon the dying declaration to establish the complicity of these accused persons that they having sprinkled kerosene over the body of the deceased had set her ablaze, the evidence on that score being not free from doubt; the same ought not to have been relied upon to convict these accused persons. He further submitted that in view of the evidence on record that the deceased prior to her marriage with accused Bidyadhar had married another person and that marital tie having been broken, she got married with accused Bidyadhar and was residing with him and parent-in-laws with a kid in his house when accused-Malati with her two sons being too dependent upon accused- CRLA Nos.207 & 208 of 2018 Page 7 of 21 {{ 8 }} Bidyadhar were residing in a separate house; the possibility is not altogether ruled out that for some reason coming to the mind of the deceased, she herself has committed suicide and thereafter, has falsely implicated only these accused persons once and these accused persons with two other elder members of the family twice and it is not known as the prosecution has not proved that statement of the deceased given to P.W.12 as to whom whether all or any one, two or three, she had chosen to implicate at that point of time. He further submitted that the evidence on record being critically analyzed, it would be evident that Ext.14 is a concocted document created much later only to harass these accused persons and the other two who have since been acquitted. He submitted that when the Trial Court basing upon such dying declaration has acquitted all the accused persons who faced the Trial being charged under sections 498-A/304-B of the I.P.C. as well as section 4 of the D.P. Act; relying upon that dying declaration, these accused persons should not been convicted for the offence under sections 302, I.P.C. as the evidence with regard to the dying declaration does not at all pass through test of reliability and acceptability to form the solid foundation for the conviction. 9. Learned Additional Government for the Respondent-State refuting the above submission contended that the Trial Court having thoroughly scrutinized the evidence has rightly accepted the dying declaration (Ext.14) recorded by the Doctor-by P.W.11 in fastening the guilt upon the accused persons since that dying declaration recorded under Ext.14 is free from any suspicion and safely passes through the test of reliability when viewed with further fact that P.W.11 had no reason or grudge against these accused persons to create such a statement for the purpose. CRLA Nos.207 & 208 of 2018 Page 8 of 21 {{ 9 }} 10. Keeping in view the submissions made, We have carefully read the impugned judgment passed by the Trial Court. We have also extensively travelled through the depositions of the prosecution witnesses (P.W.1 to P.W.13) and have perused the documents admitted in evidence and marked Ext.1 to Ext.19 especially Ext.4, the F.I.R., Ext.14, the dying declaration recorded by P.W.11 and Ext.19 the Post Mortem Report. 11. Admittedly, the deceased had died having received the burn injuries all over her body. The percentage of burning has been assessed by the Doctor (P.W.13) who had conducted Post Mortem Examination at DHQ Hospital where she died on 06.10.2014 in course of treatment since 02.10.2014 and the assessment of the Doctor (P.W.11) who had first treated the deceased at SD Hospital, Champua at 100%. The incident having taken place on 01.10.2014, the approximate time of the same is not stated but the Informant in the F.I.R. (Ext.4) has noted it to be around 8 p.m. which he is not deposing during his examination in course of Trial. Be that as it may, the deceased was taken to the SD Hospital, Champua after the incident and was admitted on 02.10.2014 at 12.30 a.m. as would reveal from the Bedhead ticket (Ext.13). Although, the time of discharge is not noted; that is certainly after the preliminary treatment and it was after administering the injection as immediately needed, the patient had been referred to DHQ Hospital, Keonjhar. The prosecution having not proved the Bedhead ticket of the DHQ Hospital, Keonjhar, it is also not so definitely ascertainable but judicial notice of the fact can be taken viewing the distance between Champua and Keonjhar, which is around 50-55 k.m. CRLA Nos.207 & 208 of 2018 Page 9 of 21 {{ 10 }} All these being viewed with the Bedhead ticket of SD Hospital, Champua, we may take that after the preliminary treatment at SD Hospital, the patient was admitted in DHQ Hospital on expiry of the time spent for travelling that 55 k.m. P.W.8, the brother of the deceased has arrived at the DHQ Hospital receiving the news regarding such unfortunate incident happening with his sister. He is not stating the approximate time when he arrived in the Hospital. But then he states that when he saw his sister, who was able to speak and she disclosed that these accused persons and her father-in-law and mother-in-law had poured kerosene on her and set fire at her and then closed the door. His further evidence, however, is important to be marked that accused Bidyadhar tried to extinguish fire and took her to the Hospital. The evidence of P.W.8 as regards disclosure made by the deceased before her in the above manner appears to be irreconcilable that when accused Bidyadhar was said to have poured kerosene over the deceased and set her to fire even when one may say, that taking her to the hospital may be an act of pretense pretense on the part of the accused Bidyadhar to give a different picture to remove the finger of accusation being pointed at him, but then his attempt to extinguish the fire cannot be considered in that light. P.W.8 when states that his sister disclosed before him about the incident as regards the role played by these accused persons as well as two others, in the F.I.R. (Ext.4), which has been lodged by him; he has, however, stated nothing about such declaration of the deceased and rather the version there is that as per the information received, it was the mother-in-law who had poured kerosene and accused Bidyadhar lit the fire by lighting the match stick. This Ext.4 having been lodged on 02.10.2014 at 3 p.m., P.W.8 although does not indicate that by that time, he had not gone to the DHQ Hospital, yet he states on oath that CRLA Nos.207 & 208 of 2018 Page 10 of 21 {{ 11 }} receiving telephonic message, he went to Hospital at Keonjhar and there was so told by the deceased regarding the incident. At this place, it be indicated that if one reads the deposition of P.W.8, it would be evident that this Ext.4 had been lodged after the death. The relevant portions are:- “1. xxx xxx xxx xxx “While undergoing treatment for three days, she died at Keonjhar hospital. Immediately, I lodged the report before police in writing marked Ext.4 and Ext.4/1 is my signature. Police came, examined the dead body of my deceased sister, prepared a report marked Ext.5 (inquest report) and Ext.5/1 is my signature.” xxx xxx xxx xxx 6. “On the very day I visited to the hospital at 8 AM and I informed the police at Jhumpura PS on return at 10 AM. I do not remember the person who wrote the F.I.R. The contents of the FIR were not read over and explained to me”. xxx xxx xxx xxx 7. “It is a fact that I have not stated to the police during examination that my sister disclosed before me that the accused Bidyadhar and co-accused persons poured kerosene on her, set fire and closed the door. It is also a fact that I have not disclosed before police about the deceased was able to speak while undergoing treatment at Keonjhar hospital.” A thoughtful reading being given to the above casts serious doubt on his version as to the deceased to have spoken to him in the hospital when he further says that he had no knowledge as to if deceased had been earlier treated in any hospital and that police visited DHQ Hospital after two days whereas the version of P.W.12 is that on the day, he took up investigation, he had been to DHQ Hospital, after visiting the spot and seizing same materials and then had examined the deceased too, which is not proved in the Trial.” CRLA Nos.207 & 208 of 2018 Page 11 of 21 {{ 12 }} 12. P.W.9 is the cousin brother of the deceased. He has stated to have gone to the DHQ Hospital getting the news of the unfortunate incident. He does not state to have accompanied P.W.8 nor P.W.8 has stated to have gone with P.W.9. When P.W.8 states that others specifically giving the name of one Narottam to have accompanied him; said Narottam has not been examined from the side of the prosecution. This P.W.9 also is not stating the approximate time when he arrived in the hospital and when the deceased disclosed before him about the incident indicating the roles of these accused persons and two other elder members of the family. The evidence of P.W.9 is to the effect that deceased disclosed before him that her husband, parents-in-law and step sister-in-law poured kerosene and set fire at her. He is, however, not stating about the role of accused Bidyadhar thereafter in attempting to extinguish the fire which has been stated by P.W.8 to have been told by the deceased. So the complete version of the deceased before P.W.8 is not the version before P.W.9. If we take into consideration the evidence of P.W.8 and 9 and accept those for a moment, it stands that the deceased once seeing P.W.8 disclosed about the incident and thereafter again disclosed the incident before P.W.9. Then also P.W.9 whether met later or prior to P.W.8 is not ascertainable from the evidence as available. None of these two witness state that they had by then even any such information that P.W.11 had already recorded the dying declaration (Ext.14) in the SD Hospital, Champua. Both these witnesses state that they having gone to DHQ Hospital, Keonjhar, the deceased made such disclosure before them. Fact remains that the deceased being initially treated at SD Hospital, Champua had been referred to the DHQ Hospital, Keonjhar. P.W.11, the Doctor, who attended the deceased in the SD Hospital, Champua does not state as to at what time he referred the CRLA Nos.207 & 208 of 2018 Page 12 of 21 {{ 13 }} patient to the DHQ Hospital, Keonjhar and the evidence is not there on record that at what time the patient was admitted in the DHQ Hospital, Keonjhar. 13. It is surprising to note that when P.W.11 says that the document Ext.13 is the injury opinion report, it is in fact the Bedhead ticket. In this Ext.13, although the time of discharge is not put, from the date put by P.W.11 under his signature below the referral note, we can say that it was on 02.10.2014. The Bedhead ticket of DHQ Hospital, Keonjhar has neither been seized nor proved. Had this document been placed in evidence, it would have not only shown the time of admission but also as to under what condition, the deceased then was and continued under what condition for the entire period from 02.10.2014 till 06.10.2014 and what were the health parameters; whether she at any point of time during the period was in a condition to speak. Be that as it may, the position stands that no such dying declaration has been recorded by the Doctor of DHQ Hospital, Keonjhar and no such attempt has ever been made there by any Doctor of that DHQ Hospital, Keonjhar. This rather leads to doubt that had the deceased been in a condition to speak, the Doctors of DHQ Hospital, Keonjhar having got the patient for such a long period to treat would have availed that opportunity especially when there was no information before them as regards the previous dying declaration to have been recorded by P.W.11, the Doctor of SD Hospital, Champua. The referral note received at DHQ Hospital has neither been proved nor the Bedhead ticket of SD Hospital, Champua so indicate. P.W.12, the I.O. states to have visited the DHQ Hospital, Keonjhar but he does not indicate the time of his arrival. It is not there in his evidence that by that time he had any information with him that the Page 13 of 21 CRLA Nos.207 & 208 of 2018 {{ 14 }} deceased first being treated in the SD Hospital, Champua, had been referred to the DHQ, Hospital, Keonjhar. He had no information with him as regards the recording of dying declaration (Ext.14) by P.W.11. He having stated that he recorded the statement of the deceased by examining her in the DHQ Hospital, Keonjhar does not state that if anyone was present by the side of the deceased at the relevant time or that then P.W.8 and 9 both or anyone of them were present. P.W.8 and 9 are also not stating that P.W.12 arrived in DHQ Hospital, Keonjhar in their presence. That statement of the deceased said to have been recorded by P.W.12 (I.O.) has not at all been proved. 14. The F.I.R. has been lodged by P.W.8 at 3 p.m. on 02.10.2014 and it reveals that the I.I.C., Jhumpura Police Station receiving that information has registered the case. Although P.W.11 states that he had intimated the matter to the Police Station after entering the same in the Police Information Registrar maintained at the SD Hospital, P.W. 12 is absolutely silent on that score and the I.I.C. has also not been examined to say anything about such receipt of intimation at any time from S.D. Hospital, Champua. P.W.12 is also not stating that at any time during his investigation, he was informed about all these reports being received from SD Hospital, Champua. He states to have seized the Bedhead ticket (Ext.13) and the dying declaration (Ext.14) only on 17.10.2014. But then he does not say as to from which source, he came to know about the existence of such documents especially the dying declaration being there in SD Hospital, Champua. It being his evidence that he seized those from the doctor of S.D. Hospital, Champua, i.e., P.W.11; that P.W.11, however, says that Ext.14 was not seized from him and it was kept in the Indoor Patient File attached with Ext.13, the injury report which he had prepared. This P.W.12 then simply states that he Page 14 of 21 CRLA Nos.207 & 208 of 2018 {{ 15 }} had seized those under the seizure list (Ext.17).In such confused state of affair in evidence, for proper appreciation of the evidence, having perused the case dairy what we find is rather startling that this P.W.12 had visited the spot with P.W.8 on 02.10.2014 and examined the witnesses (villagers), but then had not visited SD Hospital, Champua to collect any material nor to examine the Doctor or staff of that Hospital. There is absolutely no explanation to that. When P.W.12 states to have examined the deceased in the DHQ Hospital, Keonjhar, he is completely silent as to what prevented him from taking necessary step for recording the dying declaration by requisitioning the service of an Executive Magistrate or even by making a request to the Doctor attending the patient in the DHQ Hospital, Keonjhar in that regard as by then as per his evidence, he had no such information about recording of any dying declaration in the SD Hospital, Champua. There is no evidence that after recording of the dying declaration (Ext.14) on 02.10.2014 as to under whose custody the same remained till it was seized on 17.10.2014 and the evidence as to from whom it was seized is also highly discrepant and rather doubtful. This Ext.14 does not contain the seal of the SD Hospital, Champua. At this juncture, when we carefully scrutinized Ext.14, the date put there by P.W.11 is seen to be 12.10.2014 as against his version that it was on 02.10.2014, which remains wholly unexplained. On 12.10.2014 such Ext.14 could not have been come into being as the deceased was dead long prior to that date. This too renders that Ext.14 as highly suspicious document. 15. Again turning our attention to the evidence of P.W.11, we find that P.W.11 has stated about the condition of the deceased that she was having the difficulty in breathing and maintaining a low blood pressure as also complaining pain all over the body and raising noise. But then Page 15 of 21 CRLA Nos.207 & 208 of 2018 {{ 16 }} how her statement was recorded is not properly explained and it is also not stated as to how much time it took to record the same; when he began to record and when he completed. We are left in a quandry as to how long the patient was in that SD Hospital, Champua, as there is no noting to that effect on Ext.13. It is available in evidence that the patient too during the period had been given the intervenous injections such as :- Piperacillin + Tazobactam (high grade antibiotic), Dexona, Deriphyline, Pantoprazole-40, and inter muscular injection of Titanus Toxoid as also Ringer Lactate as intravenous. The blood pressure then was 86/60 hg/min, which is at the level of shock as per medical jurisprudence. Majority of injunctions being to improve breathing condition, the difficulty then faced by the patient in breathing is evident. The evidence of P.W.11 under the circumstance that he had recorded the version of the deceased hearing from her also becomes highly suspicious and doubtful. He is completely silent that after the treatment when the deceased came to a stable condition that he was able to record her statement then; it was immediately on arrival or sometime after initial treatment as aforesaid. The time spent there is not shown through evidence. The death of the deceased having taken place on 06.10.2014, her dying declaration said to have been recorded by P.W.11 for the first time is coming to light on 17.10.2014. That apart, the last version of the examination of the deceased by P.W.12 is not placed in evidence and the explanation for non-proving the same is also not forthcoming. This Ext.14, the proved dying declaration is not in question and answer form and that being on a plain paper, there is no mention of recording of the same in the Bedhead ticket, Ext.13. With the above evidence, the prosecution to provide corroboration has not examined the male staff nurse, who has signed on Ext.14. Furthermore, P,W.11 has not provided CRLA Nos.207 & 208 of 2018 Page 16 of 21 {{ 17 }} the explanation that it being not possible to take the thumb impression of the deceased for the burn, he had not so taken. That apart said witness who has been withheld from examination has not put any date under his signature. 16. The position of law as to the evidentiary value of dying declaration and the sustenance of the conviction solely based thereupon has been well said in several decision of the Apex Court as well as other Courts. We may hasten to add that while there is long line of case laws by the Apex Court on this subject, we are referring to only a few decisions which are closer to the facts of the given case. (A) In P.V. Radhakrishna. v. State of Karnataka11, the Apex Court considered the residuary question whether the percentage of burns suffered is a determinative factor to affect the credibility of a dying declaration and the probability of its recording. It was held that there is no hard and fast rule of universal application in this regard and much would depend upon the nature of the burn, part of the body affected, impact of burn on the faculties to think and other relevant factor. (B) In Chacko v. State of Kerala12, the Apex Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns It was held that it would be difficult to accept that the injured could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner Page 17 of 21 CRLA Nos.207 & 208 of 2018 {{ 18 }} in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded “patient conscious, talking” in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case. (C) In Sham Shankar Kankaria V. State of Maharashtra, (2006) 13 SCC 165, it was restated that the dying declaration is only a piece of untested evidence and must like any other evidence satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. Further, relying upon the decision in Paniben v. State of Gujarat (1992) 2 SCC 479, wherein the Apex Court (at SCC pp.480-81, para 18) summed up several previous judgments governing dying declaration, the Court in Sham Shankar Kankaria (supra) reiterated: (at SCC pp. 172-73, Para 11) (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.(1976) 3 SCC 104); (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 and Ramawati Devi v. State of Bihar (iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the CRLA Nos.207 & 208 of 2018 Page 18 of 21 {{ 19 }} assailants and was in a fit state to make the declaration. (See K.Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC618]); (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. (1974) 4 SCC 264); (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. (1981 Supp SCC 25); (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.; (1981) 2 SCC 654); (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455]); (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769]); (ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152]); (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390]); CRLA Nos.207 & 208 of 2018 Page 19 of 21 {{ 20 }} (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700])” 17. It goes without saying that when the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the decease admissible. Such statement, classified as a “dying declaration” is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction. 18. The evidence as discussed in detail above being put to the legal
Decision
In the result the Appeals are allowed. The judgment of conviction and order of sentence dated 26.02.2018 passed by the learned Additional Sessions Judge, Champua in S.T. Case No.4 of 2015 are hereby set aside. The Appellants (Accused persons), namely, Malati Mahanta and Bidyadhar Mahanta, who are in jail custody, be set at liberty forthwith, if their detention is not required in connection with any other case. S.K. Panigrahi I agree. Himansu CRLA Nos.207 & 208 of 2018 (D. Dash) Judge. (Dr. S.K. Panigrahi) Judge. Page 21 of 21