Babuli Sharma And Others vs State Of Orissa
2023 Latest Caselaw 8006 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                          CRLA No. 262 of 2013


    Babuli Sharma and others                    ....            Appellants
                                     -versus-
    State of Orissa                             ....          Respondent

   Advocates appeared in the case:

    For Appellant(s)             :          Mr. B.S. Dasparida, Advocate

    For Respondent               :          Mr. G.N. Rout, Addl. Standing
                                                                  Counsel

     CORAM:
     THE CHIEF JUSTICE
     JUSTICE G. SATAPATHY

                                JUDGMENT

24.07.2023 G. Satapathy, J.

1. This appeal challenges the judgment of conviction and order of sentence passed on 17.04.2013 by learned Additional Sessions Judge, Talcher in C.T (S.S.) No. 14 of 2011 convicting the appellants for offence punishable U/S 302/34 of Indian Penal Code, 1860 (in short, the 'IPC') read with Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short, the 'Atrocities Act') and sentencing each of the convicts to undergo imprisonment for life with payment of fine Rs. 2,000/- on each count.

2. It is relevant to note here that, this Court by an order passed on 31.07.2014 in M.C. No. 603 of 2013 had granted bail to appellant

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No. 3-Belabali @ Smt. Pratima Singh, but rest of the two appellants are reported to be inside the custody.

3. The prosecution case in brief was, on 24.11.2010 at about 7.15 a.m. in the morning, PW 10- Janaki Naik lodged an F.I.R. before IIC, Rengali Police Station alleging therein that at 12 midnight on 23.11.2010, bearing grudge and intending to kill her daughter Gita Sahoo (hereinafter referred to as the 'deceased'), the appellants conjointly had set the deceased on fire by pouring kerosene over her body, as a result the deceased ran out of her house and PW4 Khira Debi had admitted her at hospital and on being informed, PW10 reached at hospital and ascertained from her deceased daughter the names of the appellants and their intention to kill the deceased.

4. On the F.I.R. of PW 10, PW15- Harmohan Nayak, the IIC, Rengali P.S. registered P.S. Case No. 55 of 2010 and took up investigation of the case which was subsequently taken over by PW16- Bhubanananda Jena, the S.D.P.O., Pallahara, who on conclusion of investigation, placed charge sheet U/Ss. 302 IPC read with Section 3(2)(v) of the Atrocities Act with the aid of section 34 of the IPC. In the course of investigation, the dying declaration of the deceased was recorded by the Doctor and inquest as well as postmortem was conducted on the dead body of the deceased.

5. In support of its case, the prosecution had examined altogether sixteen witnesses and relied upon documents under Ext. 1 to 8 as against the sole ocular evidence of one Gobinda Chandra Sahu(DW1) by the defence. In the course of trial, the plea of the

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appellants was one of complete denial and false implication. After appreciating the evidence upon hearing the parties, the learned trial Court convicted and sentenced the appellants to the punishment indicated supra by the impugned judgment by mainly relying upon the dying declaration (Ext.3).

6. Mr. B.S. Dasparida, learned counsel for the appellants has assailed the conviction and sentence of the appellants mainly on following three grounds:

(i) Failure of the prosecution to prove the motive behind the crime renders the prosecution case suspicious and in support, reliance has been placed on the decision in Nandu Singh v. State of Madhya Pradesh, 2022 SCC Online SC 1454.

(ii) Omission to indicate the names of assailants in inquest report prove the F.I.R. to be ante dated and ante time which erodes the veracity of prosecution case and reliance has been placed in the case of Thanedar Singh v. State of Madhya Pradesh, (2002) 1 SCC 487 and Reddy Ramesh Pradhan and another v. State, (2001) 21 OCR 516.

(iii) Absence of proper certification by the doctor on dying declaration Ext.3 rendered it unreliable and on this point, reliance has been placed in the case of Sampat Babso Kale and another v. State of Maharastra, (2019) 74 OCR (SC) 692 and State of Orissa v. Parasuram Naik, AIR 1997 SC 3569.

7. As against the above submissions advanced for the appellants, Mr.G.N.Rout, learned ASC has submitted that in a case of this nature, the motive behind commission of crime does not assume significance and even in absence of proof of motive, conviction may lie, if the evidence establishes the guilt of the accused persons. It is, however, submitted by him that merely because the I.O. had failed to indicate the names of the assailants in the inquest report, it would not give rise to an inference that the FIR

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was ante dated and ante timed since there was no column prescribed in the form in Orissa for inquest report to indicate the names of assailants. It is also advanced by the learned ASC that neither is it necessary nor obligatory on the part of the IO to mention the names of assailants in the inquest report, which is in fact is required to be prepared to ascertain the apparent cause of death. Besides, the learned ASC has also advanced that the evidence of P.W.10 and P.W.11 clearly disclosed the dying declaration made by the deceased in which she had held the appellants responsible for her death by stating them to have set her on fire by pouring kerosene. In response to the submission of absence of certification in Ext.3, the learned ASC has submitted that P.W.11 had clearly stated in his cross-examination that the deceased was in a fit state of mind and was able to speak and her version was intelligible which clearly strengthened the prosecution case since the Doctor is the best person to opine about the fitness of the deceased to make a statement. In support of his contentions, the learned ASC has relied upon the decisions in Brahm Swaroop and another v. State of Uttar Pradesh, (2011) 6 SCC 288 and Laxman Vrs. State of Maharashtra; (2002) 6 SCC

710.

8. On a careful analysis of the impugned judgment, it appears that the learned trial Court had relied upon the evidence of PW10 and PW11 to believe the dying declaration of the deceased and it had also taken into consideration the evidence of other witnesses, such as the evidence of PW4, PW6, PW9 and PW13. The testimonies of PWs 4 to 7 reveal that the deceased died out of burning which was also confirmed by the evidence of PW10 which was

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corroborated by the evidence of PW13 who had conducted autopsy over the dead body of deceased and opined the cause of death to be due to shock on account of burn. The prosecution had, therefore, clearly established that the deceased died out of burning which was also never disputed by the defence inasmuch as it had taken the plea for the first time in the course of cross-examination of PW10 by unsuccessfully suggesting her the following "Gita (deceased) caught fire when the stove was burst in that night, but the accused persons have not burnt her by kerosene oil and her death was accidental", but on the other hand, it was explained by the defence in the cross-examination of PW13 that the burn injuries of the deceased could not be self inflicted, however, the appellants had never taken this plea thereafter even while abjuring their guilt in the statement under section 313 of Cr.P.C. Hence, the undisputed as well as clear evidence was that the deceased Gita Sahu died out of burn injuries.

9. True it is that PW13 in her evidence had not stated about deceased suffering any homicidal death, but to take advantage of such situation, it was argued in this appeal that the failure of the prosecution to establish homicidal death of the deceased itself exonerates the appellants since absence of certification by Doctor on Ext.3 rendered it unreliable and once the dying declaration is taken out of consideration, the prosecution's claim against the appellants for the charge of murder of the deceased automatically vanishes. In this context, this Court considers it imperative to reproduce the relevant portion of the evidence of the Doctor

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PW11 who had recorded the dying declaration of the deceased, as under:

"On being requested by police, I recorded the dying declaration of the patient Gita Sahu so I asked the patient as to who had burnt her, to which she replied that Babuli Sharma along with his father-in-law and one Munda lady Balbali burnt her by pouring kerosene oil over her body. Accordingly, I recorded her statement which is marked as Ext.3 and Ext. 3/1 is my signature".

10. The above evidence was strengthened, when it was elicited by the defence in the cross-examination of PW11 that at the time of recording of Ext.3, except the mother of the deceased nobody else was present there and it was recorded on police requisition on morning hour. The defence being not satisfied had further cross- examined PW11 to explain that initially the condition of the patient was not serious and she was able to talk slowly and the patient was in a fit state of mind and was able to speak very slowly taking pause but her version was intelligible. The above evidence of PW11 was clear and unambiguous to suggest that the deceased was in a fit state of mind and was able to speak when her dying declaration was recorded by PW11.

11. The authority in Sampat Babso Kale (supra) relied on for the appellants to assail Ext.3 for want of proper certification appears to be not applicable to the present case inasmuch as the deceased in relied on case was admitted to the hospital with 98 % burn injury and she was injected with a painkiller before the dying declaration was recorded and thereby, the Apex Court considered therein that after administration of sedatives in the form of

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painkiller, the possibility of deceased being in a state of delusion cannot be ruled out, but in this case, the deceased had sustained burn injury up to 70% and she was in a fit state of mind as per the evidence of the Doctor (PW11). In the same sense, the other authority relied on for the appellants in Parasuram Naik (supra) was also found distinguishable from the present case.

12. On the other hand, the evidence of PW10 clearly transpires about oral dying declaration made by the deceased before her which was corroborated by the F.I.R. Ext.1. Additionally, no suggestion was ever made by defence to PW10 that the deceased was neither in a fit state of mind nor was conscious at the time of making oral dying declaration to her. Whether there is any strict rule prescribed for certification in respect of fit mental state before recording the dying declaration of the deceased and what is its importance has been made clear by a Constitutional Bench of five Judges of Apex Court in Laxman Vrs. State of Maharashtra; (2002) 6 SCC 710 in following words:-

"3. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, 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 the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."

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13. It is therefore, very clear that same value is attached to both oral and written dying declaration, provided such dying declaration must be voluntary and truthful and is required to be established/proved by way of credible evidence. A Court is not precluded to act upon the oral dying declaration of the deceased, if the same is otherwise established with clear and unimpeachable evidence and when it is established by the positive evidence that the deceased was conscious and in a fit state of mind while making the dying declaration, even the same is oral one, the same can be acted upon and has got definite evidentiary value. In this case, the evidence of PWs10 and 11 clearly established the dying declaration made by the deceased in which the deceased had clearly implicated the appellants in setting her to fire by pouring kerosene and in the sequence of events, the evidence of autopsy conducting Doctor-PW13 revealed that the smell of kerosene was emitting from the burnt body of the deceased.

14. It is also argued by the learned counsel for the appellants that the F.I.R. was ante dated and ante timed because the names of assailants were not mentioned in the inquest report and in this regard, the decision in Thanedar Singh (supra) was relied upon, but in this context, on a careful glance of the inquest report, it unambiguously revealed that all the columns of the inquest report appears to have been duly filled in by giving the reference of the P.S. Case No and such other facts such as FIR number, date and the cause of death, which were unsuccessfully disputed by the appellants. What is the true purport and object of inquest report has been reiterated by Apex Court more than once in a plethora of decisions. The fundamental purpose of holding inquest report is to

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know the apparent cause of death, such as whether it was suicidal, homicidal or accidental and it is never meant to ascertain the perpetrator(s)/assailant(s) of the crime or as to who was responsible for the death of the deceased. According to law, inquest report cannot be read as substantive evidence nor can it be used to discard the evidence which is otherwise clear, unambiguous and credible as well as establishes the prosecution case, but when there appears manipulation in it or it is otherwise a product of embellishment, the defence can certainly take advantage of it. Above all, when there is no column in it for recording the names of the accused persons in the State of Orissa, the veracity of prosecution case cannot be doubted for omission to indicate the names of the assailants in the inquest report. There remains no dispute in the present case that no cross-examination was made to the I.O. to elicit anything to suggest that the FIR was ante dated or ante timed, even the defence had not suggested to the IO that the FIR was ante dated and ante timed nor made any cross-examination with regard to omission to state the name of the assailants in the inquest report. No explanation was offered as to how the defence was prejudice for failure of the prosecution to indicate the names of appellants in the inquest report.

15. For a moment, accepting but not admitting the argument for omission to indicate the name of assailants in the inquest report renders it suspicious, this Court feels that merely because the IO had committed a mistake to omit to mention the names of the assailants in the inquest report or he was not diligent in this regard, it does not necessarily mean by implication or otherwise

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that the reliable or clinching evidence adduced by the witnesses should be discarded by the Court on the selfsame ground. In this regard, this Court is fortified with the decision Brahm Swaroop(supra), wherein after noticing the names of the accused to have not been filled up in the inquest report, the Apex Court has been pleased to observe that omissions in the inquest report are not sufficient to put the prosecution out of Court. The above narration and discussions made it apparently clear that the objections raised by the learned counsel for the appellants to consider the omission of names of appellants in inquest report makes the case of the prosecution to be suspicious is clearly unacceptable and the case law relied on in this regard in Thanedar Singh(supra) and Reddy Ramesh Pradhan(supra) are found distinguishable in the factual scenario of the present case.

16. Absence of motive is also advanced for the appellants as another ground to reject the prosecution case in the present appeal, but law is very well settled that motive plays a crucial role in a case based on circumstance evidence and it assumes great significance, but it appears that when there is direct evidence, the motive becomes secondary. In this case, the prosecution evidence clearly established the case against the appellants mainly on the dying declaration which in law is a admissible piece of evidence and conviction can also lie solely on the basis of dying declaration, provided the same is truthful, voluntary and otherwise not influenced by any extraneous consideration. It is also equally clear that a Court can convict the accused only on the basis of a dying declaration. Neither the defence in the trial nor the appellants in the appeal could validly dispute the dying

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declaration which is otherwise established by the prosecution by clinching and clear evidence. Since the oral dying declaration as deposed to by PW10 and written dying declaration Ext.3 by PW11 could not be disputed/demolished in any manner, rather the cross-examination of these two witnesses strengthened and confirmed the dying declaration to be voluntary and truthful laying foundation to act upon it and thereby, the learned trial Court had not committed any illegality in acting upon such dying declaration. Hence, in this case the motive becomes insignificant and the decision relied on by the appellants in Nandu Singh(supra) is found distinguishable from the facts of the present case.

17. Admitted evidence on record neither discloses the crime to have been committed because the deceased belonged to Scheduled Caste community nor had any of the witnesses ever spoken in their evidence about the appellants committing the crime only because of the caste of the deceased, which is the essence of the ingredients of Section 3(2)(v) of Atrocities Act and therefore, the conviction and sentence of the appellants for offence under Section 3(2)(v) of Atrocities Act is unsustainable.

18. After having carefully examined the evidence on record vis-à- vis the impugned judgment with the assistance of learned counsel for the parties, this Court finds that the learned trial Court had not committed any illegality in convicting the appellants for offence under section 302/34 of IPC and in the aforesaid situation, this Court while setting aside the impugned judgment of conviction and order of sentence for offence under Section 3(2)(v) of

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Atrocities Act confirms the conviction and sentence of the appellants for offence under Section 302/34 of the IPC.

19. In the result, the appeal stands partly allowed to the above extent, but in the circumstance with no order as to costs. Consequently, the judgment of conviction and order of sentence of the appellants for offence under Sections 302/34 of IPC is hereby confirmed.

20. Since Appellant No.3-Belabali @ Smt. Pratima Singh is on bail, her bail bonds stand cancelled and she is directed to surrender to custody forthwith and in any event, not later than 20th August 2023 failing which the IIC of the concerned PS will take steps forthwith to take her into custody to serve out the remainder of her sentences, whereas Appellant No. 1-Babuli Sharma and Appellant No.2-Pandu @ Naba Kishore Maharana being in custody are directed to suffer the remainder of their sentence unless their sentences are remitted by appropriate authority of State Government. A copy of this judgment be delivered forthwith to the IIC of the concerned PS for necessary action.

(G. Satapathy) Judge

(Dr. S. Muralidhar) Chief Justice

Signature Not Verified Digitally Signed Signed Kishore by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 24-Jul-2023 17:19:10

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