Orissa High Court
Susanta Mallik & Others vs State Of Odisha on 24 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.325 of 2019
In the matter of an Appeal under section 374 (2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 06.03.2019 passed by the learned Additional
Sessions Judge, Kendrapara in S.T Case No.141 of 2013 (106/13).
----
Susanta Mallik & Others .... Appellants
-versus-
State of Odisha
.... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellan- Mr. Satyabrata Mohanty,
(Advocate)
For Respondent- Mr.D.K.Mishra,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
Date of Hearing :12.07.2023 : Date of Judgment: 24.07.2023
D.Dash,J. The Appellants, by filing this Appeal, have assailed the judgment
of conviction and the order of sentence dated 06.03.2019 passed by the
learned Additional Sessions Judge, Kendrapara in S.T Case No.141 of
2013 (106/13), arising out of G.R. Case No.64 of 2013, corresponding to
Pattamundai P.S. Case No.37 of 2013 of the Court of learned Judicial
Magistrate First Class (JMFC), Pattamundai.
{{ 2 }}
The Appellants (accused persons) have been convicted for
commission of offence under section 302/34 of the Indian Penal Code,
1860 (in short, 'IPC'). Accordingly, they have been sentenced to
undergo imprisonment for life and pay a fine of Rs.1000/- (Rupees One
Thousand) each and in default to suffer Rigorous Imprisonment for one
month each.
2. Prosecution case is that Laxmi, the daughter of Akhaya Mallik
(Informant-P.W.2) had married accused Susanta on 09.07.2012 as per
Hindu rites, caste and custom. It is stated that at the time of marriage,
Akhaya had given cash of Rs.30,000/- and other household articles as
per the demand from the side of the accused persons, i.e. accused
Susanta, the husband of Laxmi; accused Agasti and Mukta, the parent-
in-laws of the deceased. It is further stated that Akhaya had given the
assurance that the other demands as to one colour Television (T.V.)
would be made within a month. Due to poor financial condition, Akhaya
could not fulfill the said demand and for that reason, it is stated that his
daughter Laxmi was being subjected to physical and mental cruelty by
her husband and in-laws. It is also stated that these accused persons
were assaulting Laxmi and they were not providing foods, wearing
clothes and medicines during the period and moreover, they were not
allowing Laxmi to go to her father's house. Laxmi had informed the
matter to her father (Informant-P.W.2) and accordingly, her father
(P.W.2) and mother (P.W.3) had gone to the house of the accused
persons and pacified the matter.
It is the further case of prosecution that on 04.03.2013, all the
accused persons after mounting pressure upon Laxmi to ask her father
(P.W.2) to provide that colour T.V, sprinkled kerosene over her body
and set her ablaze. Laxmi was then shifted to SCB Medical College and
{{ 3 }}
Hospital, Cuttack for better treatment. Receiving the information with
regard to said unfortunate incident, Akhaya (P.W.2) and his wife
(P.W.3) with some other villagers came to the hospital at Cuttack. There
they ascertained from Laxmi that the accused persons after assaulting
her for non-fulfillment of the demand of Colour T.V, abused her and
asked her to get out of the house. Then they doused her with kerosene
and set her ablaze. Having come to know about the incident from
Laxmi, Akhaya (P.W.2) presented a written report with the Inspector-in-
Charge (IIC) of Pattamundai Police Station and on 08.03.2013, the IIC
(P.W.20) having received the said written report treated it as an FIR and
after registration of the case, took up investigation.
3. In course of investigation, the Investigating Officer (I.O- P.W.20)
visited the spot, examined the informant and other witnesses and seized
some articles which according to him, were incriminating. He then went
to SCB Medical College & Hospital and seized the written dying
declaration of Laxmi which had been recorded by the treating physician
during treatment on 24.06.2013. Then having received the intimation
from the IIC, Mangalabag Police Station regarding the death of Laxmi
and registered the Mangalabag P.S. U.D. Case No.67 of 2013, he
collected all other papers including the post mortem report.
Finally, on completion of investigation, the I.O (P.W.20)
submitted the Final Form placing accused persons to face the trial.
4. Learned JMFC, Pattamundai receiving the Final Form as above,
took cognizance of the offence and after observing the formalities
committed the case to the Court of Sessions. That is how the Trial
commenced by framing charge against the said offence against the
accused.
{{ 4 }}
5. In the Trial, the prosecution in total has examined as many as
twenty (20) witnessed. As already stated P.W.2 is the father of the
deceased Laxmi and he is the informant who had lodged the FIR (Ext.7)
whereas P.W.3 is the mother of Laxmi and wife of P.W.2. The son of
P.W.2, who is the brother of deceased-Laxmi when has been examined
as P.W.4, the sister-in-law of the deceased (wife of P.W.4) has come to
the witness box as P.W.13. Two co-villagers of P.W.2 have been
examined as P.W.1 and P.W.6 and P.W.7, P.W.8, P.W.9, P.W.12,
P.W.14 and P.W.15 are the co-villagers of the accused persons. The
Doctor, who had recorded the dying declaration of Laxmi in course of
treatment has been examined as P.W.16 and P.W.17 is the Doctor, who
had conducted Post Mortem Examination over the dead body of Laxmi.
The Senior Assistant in the Department of Surgery in whose presence
the Doctor, P.W.16 had recorded the dying declaration has also been
examined as P.W.19. The Investigating Officer is P.W.20.
6. The prosecution besides leading the evidence by examining above
the witnesses, the prosecution has also proved several documents which
have been admitted in evidence and marked as Ext.1 to Ext.9/1. Out of
those, the important are the FIR, Ext.7, Inquest Report, Ext.3, the dying
declaration, Ext.5, Spot Map, Ext.8, Post Mortem Report, Ext.6.
7. The accused persons have taken the plea that Laxmi had
committed suicide by setting fire at her on her own. In support of their
defence one Doctor as D.W.1 has been examined and he has proved the
injury report of accused Susanta (husband of Laxmi).
8. The Trial Court on discussion of evidence and their critical
evaluation at length at its level has held all these accused persons guilty
of the offence punishable under section 302/34 of the IPC and they have
{{ 5 }}
been acquitted of the charges under section 498-A/304-B/406/34 of the
IPC and section 4 of the D.P. Act. Accordingly, the accused persons
have been sentenced as aforestated.
9. Learned counsel for the Appellants (accused persons) submitted
that the finding of the Trial Court that these accused persons are
responsible for the burn injuries received by the deceased leading to her
death is the outcome of unjust and improper appreciation of evidence on
record. He further submitted that the Trial Court ought not to have
accepted the recorded dying declaration of the deceased before her death
which has been admitted in evidence and marked Ext.5 and relying upon
the same, the conviction of the accused persons ought not to have been
recorded. He further submitted that when except the so called dying
declaration (Ext.5), no other evidence is available on record to link these
accused persons with causing of such burn injuries upon Laxmi, the
Trial Court has committed grave error in holding the accused persons
guilty of the offence punishable under section 302/34 of the IPC.
10. Learned counsel for the State-Respondent submitted all in favour
of the finding of the Trial Court as to the guilt of the accused persons.
He further submitted that the accused persons being the husband and
parent-in-laws of the deceased when admittedly were residing together
at the relevant time under one roof and the deceased received burn
injuries during her stay in that house, the explanation given by them that
she had committed suicide by setting fire on her is not at all believable
as no one seldom intend to commit suicide by adopting such a course of
extreme suffering. He submitted that the dying declaration has been
recorded of the Asst. Professor of the Department (P.W.16), who was
treating the deceased and that to in presence of another Senior Resident
(P.W.19). According to him, when both of them are supporting the said
{{ 6 }}
declaration made by the deceased while undergoing treatment and as no
apparent reason surfaces that they would falsely implicate these accused
persons with whom they do not have any acquaintance, the Trial Court
in when has not found any other suspicious features surrounding, the
said dying declaration and as has rather found all such other features in
support of the state of mind of the deceased, the voluntary disclosure
being made by her, the conviction of the accused persons recorded by
the Trial Court is well in order.
11. Keeping in view the submissions made, we have carefully read
the judgment of conviction impugned in this Appeal. We have also gone
through the depositions of all the witnesses P.W.1 to P.W.20 and one
D.W.1. We have also perused the documents which have been admitted
in evidence and marked Ext.1 to Ext.9/1.
12. It is not in dispute that Laxmi died on account of severe burn
injuries sustained by her. The incident having taken place on
04.03.2013, the death of Laxmi has taken place on 16.03.2013, that is 12
days after the incident. Throughout this period, deceased Laxmi was
under treatment. It appears from the evidence of the father of the
deceased (P.W.2), mother of the deeased (P.W.3) and the brother of the
deceased (P.W.4) that during Trial, they have not supported the
prosecution case and these three important witnesses practically at
whose instance, the criminal law had been set into motion, have
surprisingly turned hostile. That path has also been followed by their co-
villagers i.e. P.W.5, P.W.6, P.W.7, P.W.8, P.W.9, P.W.10, P.W.11,
P.W.13, P.W.14 and P.W.15. The parents and brother of the deceased
and other witnesses as above have not stated anything with regard to the
demand of dowry torture on account of the non-fulfillment of the same
and no such other circumstances pointing the finger at these accused
{{ 7 }}
persons as to their involvement in dousing the deceased with kerosene
and setting her ablaze. However, undeniably the deceased received burn
injuries which has been assessed as 70% when she was in the house and
living together with the accused persons. The marriage having taken
place on 09.07.2012, the incident has taken place on 04.03.2013 much
before the expiry of a period of one year. The only piece of evidence on
which the entire prosecution case for establishment of the complicity of
these accused persons now stands is the declaration of the deceased said
to have been made before P.W.16, the Assistant Professor of SCB
Medical College and Hospital, Cuttack, who was then in the Department
of Surgery in presence of the Senior Resident Doctor, P.W.19.
13. Before going to rule upon the admissibility and acceptability of
the dying declaration (Ext.5) and decide as to with the aid of the same,
the conviction of these accused persons is how far securable; it would be
apt and proper to take note of the settled principles of law covering the
field.
14. Adverting to the main point for discussion as regards the
admissibility and acceptability of the dying declaration, first of all some
dates are required to be noted. As already stated, the incident where the
deceased received the burn injury had taken place on 04.03.2013. This
piece of dying declaration is said to have been recorded on 08.03.2013.
It has been the evidence of the father of the deceased, who is the
informant and examined as P.W.2 that her daughter was suffering from
stomach ailment and she committed suicide by setting herself on fire as
she was unable to tolerate the pain. The prosecution although has cross-
examined, this witness with the permission of the Court, we find that
the excise is absolutely in futility when the learned prosecutor except
drawing the attention of this witness, (P.W.2) to his previous statement
{{ 8 }}
before the police which the witness (P.W.2) has denied, nothing more
has been asked without putting even a single question in placing before
the Court that this P.W.2 is stating falsehood. This has also been the
state of affair in respect of the mother of the deceased (P.W.3) and the
brother of the deceased (P.W.4). As already stated, other co-villagers
have not supported the prosecution case in any manner. P.W.2, father
has stated that all along with the deceased and these accused persons
were living happily and these accused persons were also treating his
daughter (deceased) for the said ailment. He has asserted that it was by
the wrong act of her daughter that she lost her life. The same version has
also fallen from the lips of P.W.3 and P.W.4.
But they have not stated as to what was the condition of the
deceased when they saw her in the hospital. Even it has not been stated
by them that they had ever come to the hospital to see Laxmi. When it is
stated by the Assistant Professor (P.W.16) that he recorded the dying
declaration of the deceased, he does not state as to whether it was on the
basis of any requisition being made by the Investigating Officer or any
other person(s) or authority or it was on his own. More particularly, the
bed head ticket of the deceased which used to display everything in clear
terms as regards the health condition of the deceased as to her power to
speak, mental orientation etc. has been withheld from being placed in
evidence. This P.W.16 has even not breathed a word as to how in course
of treatment on suddenly on 08.03.2018 he was promoted to record such
dying declaration. He has also not been able to say the pulse rate, heart
rate, blood pressure of the victim at the relevant time. She states that all
these along with the general health condition of the deceased being
noted in the bed head ticket, the same has to be referred to which as
already said is being suppressed without any explanation. He is also not
{{ 9 }}
in a position to state as to on which date the victim had been admitted in
the hospital. It is his evidence that he had not mentioned that on whose
reference, he recorded the dying declaration. The reference letter, if any,
has not seen the light of the day. When he states that he was directed by
his authority to record dying declaration. Said authority has not come
forward to depose nor a scrap of paper issued by said authority has been
proved when it is also not said that the order was verbal. Secondly,
when the patient by then had remained for few days and although it is
expected that she would have some attendant by her side, this P.W.16
stated that at the relevant time no attendant of the victim was present.
The said declaration of the deceased reduced into writing by P.W.16
which had been proved by him and marked Ext.5 does not find any
certificate as to the state of mind of the victim at the relevant time or
even any mention about those. When no such attendant was present at
the site whether any other person was present in word or not is not stated
by P.W.16 and why then their presence was not sought for as a mark of
transparency is not explained. It has also not been noted by P.W.16 in
Ext.5 that the statement of the victim was voluntary. The Left Thumb
Impression (LTI) of the deceased was not endorsed nor any official seal
has been put on that. He states that said document had been kept in a
sealed cover in the file that was being maintained for the treatment of
the victim and it was in official custody. P.W.19, the Senior Resident
Doctor in whose presence Ext.5 is said to have been recorded by P.W.16
has simply stated that the patient was in a fit condition to give dying
declaration. He however interestingly states that the relations of the
patient were asked to remain outside the ward which is completely
divergent to the version of P.W.16 who says that none were present at
the time. This creates a doubt in mind that why such a course which is
not transparent was so adopted by P.W.16 in proceeding to record the so
{{ 10 }}
called dying declaration Ext.5. As per the version of P.W.20 it was on
the basis of his requisition and he says that it was recorded when he was
very much present in the hospital and just outside the ward and after
recording the dying declaration, he too signed over that. The accused
persons were arrested thereafter. There is absolutely no other evidence
coming from any of the independent witnesses nor even the parents and
brother of the deceased that during the treatment, the deceased was in a
condition to speak properly by understanding the question. As already
stated the bed head ticket has not been placed during trial and thus with
the above surrounding suspicious the best evidence being withheld, it
would call for drawal of adverse inference on the proper condition of
health and mind of the victim which touches upon the voluntariness of
the version so said to have been recorded by P.W.16. Moreover, when
P.W.20, the I.O although says that such dying declaration was recorded
at his instance, his silent as to when the dying declaration was seized
although he has proved the relevant seizure list (Ext.9). This P.W.20, the
I.O when says to have examined the patient in the hospital, the statement
which had been recorded by him has not been admitted in evidence. He
does not say that whether at that time any of the relation of the patient
was present in the hospital by her side or not and no explanation is given
that if anybody was present why he/she was not associated in the
process. P.W.16 or P.W.19 also do not say that after recording of the
said declaration, the patient was read over and explained with the
contents and she had admitted the same to have been truely and
correctly written. Another suspicious feature appears as to how the LTI
of the patient appeared in that Ext.5 when P.W.16 does not state that he
took the LTI. P.W.19 also does not say so who took the LTI of that
patient which remains a mystery and in addition to that there is no
endorsement of anyone to the said LTI.
{{ 11 }}
In view of the discussion of evidence, we find that the dying
declaration which has been admitted in evidence and marked Ext.5 does
not inspire confidence to rule in favour of the complicity of the accused
persons as to deceased having set herself to fire is derived support the
case of the defence from the evidence of D.W.1 that accused Susanta
(husband of the deceased), too had sustained some burn injuries on his
right palm, left year and left palm and had been treated at SCB Medical
College and Hospital, Cuttack, which has not been proved by the
prosecution to be false.
15. In the result, the Appeal stands allowed. The judgment of
conviction and order of sentence dated 06.03.2019 passed by the learned
Additional Sessions Judge, Kendrapara in S.T Case No.141 of 2013
(106/13) are hereby set aside.
The Appellant Nos.1 & 2, namely, Agasti Mallik and Mukta
Mallik since on bail, their bail bonds shall stand discharged and
Appellant No.1 (Susanta Mallik) is in custody, he be set at liberty
forthwith, if his detention is not required in connection with any other
case.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi),
Judge.
Gitanjali
Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 24-Jul-2023 14:52:34
