Orissa High Court

Sri Bholi @ Bholanath Mallik vs State Of Odisha on 3 November, 2022

    IN THE HIGH COURT OF ORISSA AT CUTTACK
                CRLA No.181 of 2011

(From the judgment of conviction and order of sentence dated
12.01.2011 passed by the learned Additional District and
Sessions Judge, Jajpur in C.T. (Sessions) No.51 of 2010)


Sri Bholi @ Bholanath Mallik                 ....           Appellant

                               -versus-

State of Odisha.                             ....          Respondent


Advocates appeared in the case:
For Appellant             :                   Mr. B.K. Behera, Adv.

                               -versus-



For Respondent                 :              Mr. S.K. Nayak, AGA


            CORAM:
            MR. JUSTICE D. DASH
            DR. JUSTICE S.K. PANIGRAHI

               DATE OF HEARING:-26.10.2022
              DATE OF JUDGMENT:-03.11.2022

  Dr. S.K. Panigrahi, J.

1. This matter is taken up through hybrid mode.

2. The Appellant has preferred this appeal, challenging the

judgment of conviction and order of sentence dated

12.01.2011 passed by the Learned Additional District and

Sessions Judge, Jajpur in C.T (Sessions) No.51 of 2010;

convicting the Appellant for the offence under Section 302

of the Indian Penal Code, 1860 (hereinafter referred to as

"the I.P.C." for brevity) and sentencing him to undergo

imprisonment for life.

I. FACTS OF THE CASE

3. The case of the prosecution, in brief, is that the Appellant

was married to the deceased, Dali and the wedding was

solemnized on 22.06.2002. On 23.07.2009, at about 6 A.M,

Narendra Mallick (P.W-8) received information from one

DharaMallick that the Appellant and his family members

had burnt his sister by pouring kerosene. On the same day,

at about 10 P.M, he lodged a written report before the OIC,

Mangalpur Police Station stating that his sister (deceased)

was subjected to torture by the Appellant and his family

members and burnt to death.

4. Based on such report, the OIC, Mangalpur P.S registered

the case-G.R Case No. 445 of 2009 and, started the

investigation. The Appellant was arrested on 26.07.2009 and

after completion of investigation; he was charge sheeted u/s

498A/302 of the Indian Penal Code. After the charge was

framed, the trial was completed by the Learned Additional

District & Sessions Judge, Jajpur and the Appellant was

convicted under Section 302 of I.P.C. and sentenced to

undergo imprisonment for life. Hence, this appeal.

II. SUBMISSIONS ON BEHALF OF THE APPELLANT

5. It is contended by Learned Counsel for the Appellant that

the trial court only relied upon the dying declaration and

the same was recorded in presence of Bishnupada Sahu,

A.S.I of Jajpur Police Station. However, the prosecution has

not examined Mr. Sahu and no reason was offered for his

non-examination.

6. Furthermore, the version of the deceased in the dying

declaration was translated by P.W-23 (Dr.Nityananda

Panda) in English. In the cross-examination, he

categorically admitted that he had not recorded the

statement of the deceased in the language spoken by her.

The dying declaration was neither signed by the deceased

nor was there any thumb impression of the deceased in the

said document. Hence, the so-called dying declaration

appears to be suspicious and having no credence.

7. It is submitted by Learned Counsel for the Appellant that

P.W-23 had not given any certificate in the dying

declaration to the effect that the deceased was able to talk

and her orientation towards her surroundings relating to

place, time and person was stable. In order to place reliance

on the dying declaration, the certificate is mandatory which

is absent in the present case. Therefore, the irregularities in

the dying declaration smack illusion.

III. SUBMISSIONS ON BEHALF OF THE RESPONDENT

8. Per Contra, it is submitted by Learned Counsel for the State

that during the week preceding the death of the deceased,

her husband (Bholi Mallik or the Appellant), elder brother-

in-law(Amin Mallik) and sister-in-law (Manorama Mallik)

drove the deceased out of the house and threatened to kill

her if she were unable to furnish a sum of Rs. 50,000/-(in

cash) and a colour television as dowry.

9. It is contended by Learned Counsel for the State that the

dying declaration given by the deceased clearly implicates

the Appellant and the learned trial court did not commit

any error or illegality and as such, the impugned order of

conviction vis-à-vis the Appellant is absolutely justified and

in accordance with law.

IV. COURT'S ANALYSIS AND REASONS:

10.The narratives presented in the instant case is that the

deceased made her statement before P.W.23 at 8:30 am on

23.07.2009 and P.W.23 was able to understand the language

of the deceased and being a doctor, he was the best person

to assess her mental state. It is not the case that a person

lacking requisite competence has recorded the dying

declaration of the deceased and its acceptance is, hence, to

be suspected for want of certificate of a doctor. Absence of a

certificate with regard to the mental state of the deceased,

under the circumstance, according to us, is not of any fatal

consequence, whereas it was recorded by none other than a

doctor himself who was then engaged in treating the

patient to save her life. Moreover, when nothing has been

elicited from him to create any doubt in mind that then the

deceased was not able to so state. It is but natural for the

doctor treating the patient to ask the cause leading to such

burn injury and that being stated, he has so noted which

thus cannot be disbelieved when no such material to come

to surface that the deceased was then tortured or forced to

say so.

11.In the case of Sham Shankar Kankaria v. State of

Maharashtra1, the Supreme Court observed:

"This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime,

CRLA No. 661 of 2005

the exclusion of the statement would leave the Court without a scrap of evidence.

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."

12.Now, on the aspect, whether in absence of any

corroborative evidence, there can be a conviction relying

upon the dying declaration only is concerned, the decision

of Supreme Court in the case of Smt. Paniben v. State of

Gujarat2 is required to be referred to. In the aforesaid

decision, it is specifically observed and held that there is

neither a rule of law nor of prudence to the effect that a

dying declaration cannot be acted upon without a

AIR 1992 SC 1817

corroboration. It is observed and held that if the Court is

satisfied that the dying declaration is true and voluntary it

can base its conviction on it, without corroboration.

Therefore, there can be a conviction solely based upon the

dying declaration without corroboration

13.In the case of Smt. Paniben v. State of Gujarat(supra), the

Supreme Court held as under:

"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(iii) The Court has to scrutinize 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 assailants and was in a fit state to make the declaration.

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected.

(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.

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(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."

14.In the case at hand, the doctor who had recorded the dying

declaration of the deceased vide Ext.11is an independent

witness and was only performing the duty that was

entrusted to him. He admitted that he had not put his

signature on the dying declaration recorded by him but he

categorically stated that he had examined the deceased

before recording her statements and he found her in a fit

condition to speak. This Court, is therefore, of the opinion

that the narration given by the deceased in the declaration

as to how she received the burn injuries as recorded by the

doctor is clear, unambiguous and there is no reason as to

why the same should not be accepted as correct.

15.Moreover, a bare perusal of the dying declaration reveals

that the Appellant tortured the deceased before setting her

on fire by sprinkling kerosene. The Investigating Officer

(P.W-19) who had visited the spot in course of his

investigation also seized one half-burnt gunny bag, one

half-burnt plastic mat and one plastic jerry with kerosene

and a match box containing some matchsticks. In the dying

declaration, the deceased has not implicated the other

family members of the Appellant, and only attributed the

role of burning to the Appellant. Therefore, the hostility of

witnesses cannot demolish the value and reliability of the

dying declaration of the deceased.

16.In Shudhakar v. State of M.P3,the Supreme Court observed

that:

"Normally, the Court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind but where the person recording the statement states that the deceased was in a fit and a conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. A certificate by the doctor is essentially a rule of

AIR 2012 SC 3265

caution and, therefore, the voluntary and truthful nature of the statement can be established otherwise."

17.In Sher Singh v. State of Punjab4, the Supreme Court held

that absence of doctor's certification is not fatal if the person

recording the dying declaration is satisfied that the

deceased was in a fit state of mind and the requirement of

doctor's certificate is essentially a rule of caution. This Court

in the case of Anjari Rout v. State of Odisha5 also held that

a "dying declaration" made to a doctor cannot be

questioned or should not be doubted simply because a

certificate regarding the deceased's mental state at the time

of recording the declaration was not appended to it.

18.Further, this Court also affirms the finding of the Trial

Court that the Appellant has not produced on record any

cogent explanation regarding his wife's injuries and under

what circumstances she died. Where an offence like murder

is committed in secrecy inside a house, the initial burden to

establish the case would undoubtedly be upon the

prosecution, but the nature and amount of evidence to be

led by it to establish the charge cannot be of the same

degree as is required in other cases of circumstantial

evidence. The burden would be of comparatively lighter

(2008) 4 SCC 265

JCRLA No. 88 of 2006

character. In view of Section 106 of the Evidence Act, there

will be a corresponding burden on the inmates of the house

to give a cogent explanation as to how the crime was

committed. The inmates of the house cannot get away by

simply keeping quiet and offering no explanation on the

supposed premise that the burden to establish its case lies

entirely upon the prosecution and there is no duty at all on

an accused to offer any explanation.

19.In the case of State of Tamil Nadu v. Rajendran6, the

Supreme Court observed:

"In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete."

20.This proposition fully applies to the circumstances of the

present case. In her dying declaration, the deceased clearly

implicated her husband-the appellant for inflicting physical

torture and setting fire at her by dousing her with kerosene.

On the circumstances enumerated above which have been

established by the prosecution, this Court has no hesitation

to come to the conclusion that the charge of murder has

AIR 1999 SC 3535

been proved beyond reasonable doubt as against the

accused Appellant. No plausible explanation has been

offered by the Appellant to the incriminating evidence

proved against him. He sheltered himself under the usual