Orissa High Court
An Appeal From The Judgment And Order ... vs State Of Odisha on 27 May, 2025
Author: Savitri Ratho
Bench: S.K. Sahoo, Savitri Ratho
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.08 of 2014
An appeal from the judgment and order dated 06.01.2014 of the
District and Sessions Judge, Jajpur in C.T. (Sessions) No.75 of
2012.
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Susanta
@ Susil Kumar Sahu ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Ms. Rita Singh
(Amicus Curiae)
For Respondent: - Mr. Aurobinda Mohanty
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MISS JUSTICE SAVITRI RATHO
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Date of Judgment: 27.05.2025
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JCRLA No.08 of 2014 Page 1 of 58
Savitri Ratho, J.
The Hon‟ble Supreme Court in order to emphasize
the sanctity of Hindu Marriage and essence of Grihastha life, in
the case of A. Jayachandra -Vs.- Aneel Kaur reported in
(2005) 2 Supreme Court Cases 22, has observed as follows:-
"2. Parties to a marriage tying nuptial knot are
supposed to bring about the union of souls. It
creates a new relationship of love, affection,
care and concern between the husband and wife.
According to Hindu Vedic philosophy, it is
sanskar - a sacrament; one of the sixteen
important sacraments essential to be taken
during one's lifetime. There may be physical
union as a result of marriage for procreation to
perpetuate the lineal progeny for ensuring
spiritual salvation and performance of religious
rites, but what is essentially contemplated is
union of two souls. Marriage is considered to be
a junction of three important duties i.e. social,
religious and spiritual."
The saying "marriages are made in heaven" suggests
that compatible partners are destined to be together, implying
fate or divine intervention in finding a suitable couple. When it is
a love marriage, the bond is expected to be stronger as a
successful marriage requires falling in love many times, always
with same person. Both partners recognize and value each
other‟s individuality, opinions and feelings. They listen without
judgment and show consideration for each other‟s needs and
wishes. The emotional and intellectual connection between the
two souls, shared values and mutual respect goes beyond
superficial physical attraction.
2. Unfortunately such things did not happen in the
present case. The appellant and the deceased got married one
and half years before the occurrence, as they were in love. The
deceased Jayanti Sahoo sustained extensive burn injuries on the
night of 14.11.2011 while staying in the house of her husband
(appellant) and was admitted in the hospital. She was in an
advanced stage of pregnancy at that time and gave birth to a
stillborn child on 16.11.2011 and while undergoing treatment in
S.C.B. Medical College Hospital, Cuttack, she expired on
09.12.2011 due to complications arising out of the burn injuries
which she had sustained in the night of 14.11.2011.
It is no one‟s case that the deceased sustained burn
injuries on account of an accident. While it is the prosecution
case that the appellant came home in a drunken condition,
poured kerosene on the deceased and set her on fire, the
defence plea is that she set herself on fire from the dibri (lamp)
as the appellant came home in a drunken condition and created
a ruckus. To make matters worse, her family members did not
support the prosecution case during trial and resiled from their
earlier statements where they had stated about demand for
dowry and harassment and ill-treatment and threats to kill by
the appellant due to non-fulfillment of the demand of dowry,
reducing the prosecution to a mockery. Relying on the dying
declaration of the deceased recorded on 16.11.2011, the
appellant was found guilty by the learned trial Court for
commission of offences under sections 498-A, 304-B, 302 of the
Indian Penal Code (in short „I.P.C.‟) and Section 4 of the Dowry
Prohibition Act (in short „D.P. Act‟) .
3. The Supreme Court has best described this situation
in a recent decision the case of Renuka Prasad -Vrs.- State
represented by Assistant Superintendent of Police : 2025
SCC Online SC 1074 : 2025 INSC 657 observing as follows:-
"1. Prevaricating witnesses, turning hostile in
Court and overzealous investigations, done in
total ignorance of basic tenets of criminal law,
often reduces prosecution to a mockery.
Witnesses mount the box to disown prior
statements, deny recoveries made, feign
ignorance of aggravating circumstances spoken
of during investigation and eye witnesses turn
blind. Here is a classic case of 71 of the total 87
witnesses including eye-witnesses, turning
hostile, leaving the prosecution to stand on the
testimony of the police and official witnesses.
Even a young boy, the crucial eyewitness, who
saw his father being hacked to death, failed to
identify the assailants."
4. In this appeal, the appellant Susanta @ Susil Kumar
challenged his conviction and sentence for commission of
offences punishable under Sections 498-A, 304-B, 302 of the
I.P.C. and Section 4 of the D.P. Act by the learned Sessions
Judge, Jajpur in C.T. (Sessions) No.75 of 2012. The learned trial
Court has sentenced him to undergo rigorous imprisonment for
life and to pay a fine of Rs.5000/- (Rupees five thousand), in
default, to undergo R.I. for one month more for the offence
under Section 302 I.P.C., to undergo R.I. for 10 years and to
pay a fine of Rs.5,000/- (Rupees five thousand), in default, to
undergo R.I. for one month for the offence under Section 304-B
I.P.C. read with Section 498-A of I.P.C. and to undergo R.I. for
six months and to pay a fine of Rs.5,000/- (Rupees five
thousand), in default, to undergo R.I. for one month each for the
offence under and Section 4 of the D.P. Act. It was further
directed that the substantive sentences shall run concurrently.
Prosecution Case:
5. The case of the prosecution, in short, is that the
deceased Jayanti Sahu was the niece of P.W.5 Brajakishore Sahu
(informant) of village Narua. Prior to one year and six months of
the incident, the deceased had married the appellant as they
were in love. For about eight months, she lived happily in the
house of her in-laws, but thereafter she was subjected to cruelty
by her husband and in-laws, who demanded dowry of
Rs.50,000/-, which neither she nor her parents could fulfill due
to poverty. The informant visited the house of the appellant and
tried to convince him and his parents not to ill-treat the
deceased. While the matter stood thus, prior to 15 days of the
incident, the deceased informed the informant over telephone
that her husband (appellant) was assaulting her demanding cash
of Rs.50,000/-and threatening her that in the event of non-
fulfillment of such demand, she would be killed. The informant
rushed to the house of the appellant and assured the in-laws to
give the demanded amount at an earliest after arranging the
same. While the matter stood thus, on 14.11.2011 at about 9.30
p.m., the informant received news that the appellant and his
parents had tied the hands of the deceased, poured kerosene on
her body and set her on fire, as a result of which she received
serious burn injuries. Hearing her shouts, the co-villagers
reached there and sent her to Jajpur Hospital. As her condition
got worsened, she was shifted to S.C.B. Medical College and
Hospital, Cuttack for treatment. On 15.11.2011, on the report of
P.W.5, uncle of the deceased, Bari Ramchandrapur P.S. Case
No.73 of 2011 was registered against the appellant, his parents
Bipin Sahu and Sumitra Sahu and his brothers Benu Sahu and
Sudhir Sahu under Sections 498-A, 307 of the I.P.C. and Section
4 of the D.P. Act. In the hospital, she gave birth to a stillborn
child. On 16.11.2011, her dying declaration was recorded by the
Executive Magistrate (P.W.8) on requisition given by P.W.13, the
Officer in-charge, Bari Ramchandrapur police station, who is also
the Investigating Officer of the case, in the presence of woman
constable (P.W.9) and staff nurse (P.W.11). The deceased stated
in her dying declaration that the appellant had poured kerosene
on her and set her on fire. She died in the hospital on
09.12.2011 during treatment. Her post mortem examination was
conducted by P.W.4 Dr. Purnima Singh. After completion of
investigation, charge sheet was submitted only against the
appellant for the offences under Sections 498-A, 304-B, 302 of
the I.P.C and Section 4 of the D.P. Act.
Charge:
6. Charge was framed against the appellant for
commission of offences under Sections 498-A, 304-B and 302 of
I.P.C. and Section 4 of the D.P. Act. The appellant refuted the
charges, pleaded not guilty and claimed to be tried and
accordingly, the Sessions Trial procedure was resorted to
establish his guilt.
Defence plea:
7. The defence plea was one of denial and it was
pleaded that the deceased had committed suicide by setting
herself on fire. During his examination under Section 313 Cr.P.C,
reply of the appellant to all the questions put by the learned trial
Judge was a denial and at the end, he stated that as he had
been shouting in a drunken state, the deceased set herself on
fire from the dibiri (lamp). He tried to save her but was not able
to put off the fire.
Prosecution Witnesses & Exhibits:
8. In order to prove its case, the prosecution examined
thirteen witnesses and relied on Exhibits No.1 to 6.
P.W.1 Kedar Sahu did not support the prosecution
case and was declared hostile.
P.W.2 Balaram Sahu, neighbour of the appellant
stated that three to four months back around midnight, he heard
hullah from the house of the appellant and went there to find
burn injuries on the body of the deceased and she was carried to
the hospital. He did not see the appellant at the spot. At this
stage, he was declared hostile by the prosecution as he resiled
from his earlier statement.
P.W.3 Fakira Charan Mohanty was the havildar of
Bari Ramachandrapur Police Station who was a witness to
seizure of the requisition given in the hospital for recording of
the dying declaration of the deceased vide seizure list Ext.1 and
in his cross-examination, he has stated that dying declaration of
the deceased was recorded by the Magistrate.
P.W.4 Dr. Purnima Singh was the doctor attached to
the F.M.T. Department of S.C.B. Medical College and she
conducted the post mortem examination over the dead body of
the deceased along with Dr. Agni Wesh on 09.12.2011. She has
proved the post mortem examination report vide Ext.2 and
stated about the external injuries on the deceased and condition
of the internal organs on dissection. She also stated that the
burn injuries were ante mortem in nature and caused due to
application of dry heat or fire. The total area was 80% to 90%
and fatal in ordinary course to cause death. Death was on
account of complications of the burn injuries and age of death
was 12-18 hours of the post mortem examination. In the cross
examination, she has stated that a person having 80-90% burn
injuries would be incapable to talk.
P.W.5 Brajakishore Sahu is the informant in the case
and uncle of the deceased. He has stated that due to blasting of
kerosene stove during cooking, the body of the deceased caught
fire and she died. He has proved Ext.3, the F.I.R. As he did not
support the prosecution case, he was declared hostile and was
cross-examined by the prosecution.
P.W.6 Prahallad Sahu, a co-villager of the appellant,
did not support the prosecution case and was declared hostile.
P.W.7 Manoj Kumar Sahu is the brother of the
deceased and he did not support the prosecution case.
P.W.8 Pradyumna Kumar Jena was working as Asst.
Commissioner of Police, Zone-6, Cuttack on 16.11.2011. He has
stated that the I.O. of this case submitted a requisition before
the D.C.P., Cuttack for deployment of an Executive Magistrate to
record the dying declaration of the deceased and he was directed
by the D.C.P., Cuttack to record the dying declaration. After
receipt of the requisition, he went to S.C.B. Medical College and
Hospital, Gynecology Department where the deceased was an
indoor patient. Initially the deceased was being treated in Burn
Ward, Bed No.14 but subsequently after termination of her
pregnancy, she was shifted to Gyneac Ward. He further stated
that there was about 50% burn bandage injury all over the body
of the deceased. Dr. Asit Kumar Sethy opined that the patient
was in a fit mental condition to give her statement and he gave a
written certificate which he wrote in his presence. He has stated
that he recorded the statement of the deceased in "Odia" as far
as practicable as per her version in the presence of witnesses,
namely, Sunita Das and one lady nurse. He has stated that the
deceased stated in Odia that she was the wife of Susanta Sahu
(appellant) of village Thakurpatna Bari. On Monday night at
about 11.30 p.m., her husband (appellant) came home drunk
and poured kerosene on her and set her on fire. She got burnt
and started shouting. Her parents in-law came and put off the
fire and she was taken to Jajpur Hospital and from there to „Bada
Medical‟. She was nine months pregnant. He proved the
certificate of Dr. Sethy as Ext.4 and signature of Dr. Sethy as
Ext.4/1, the dying declaration Ext.4/2 and his own signature
Ext.4/3. He has also stated that he read over the contents of the
dying declaration to the deceased and she admitted the same to
be correct, but she could not put her signature on the paper as
her thumb and fingers were bandaged due to burn injuries and
he gave an endorsement to that effect as Ext.4/4 and his
signature Ext.4/5. Sunita Dash, constable gave her signature as
Ext.4/6 and staff nurse gave her signature as Ext.4/7 in his
presence. He has also stated the dying declaration Odia Stanza
was written by him in the bed head ticket. He denied the
suggestions during cross-examination that the deceased was not
able to talk on that day due to 80% to 90% burn injuries. He has
also denied the suggestions that the patient was not in a fit
mental condition to give her statement and that he had prepared
the statement at the instance of the police.
P.W.9 Sunita Das was working as a constable on
16.11.2011 in Bari Ramchandrpur Police Station. She had
accompanied Sri Bamadev Nanda, the I.O. from the police
station to S.C.B. Medical College Hospital to assist him. The I.O.
gave a requisition to D.C.P., Cuttack for deputation of an
Executive Magistrate to record the dying declaration of the
deceased. The A.C.P. Sri P.K. Jena was deputed to record the
dying declaration of the deceased. He recorded the dying
declaration in her presence. She heard the deceased saying that
that on the date of incident, her husband came being drunk and
poured kerosene oil on her. The deceased was speaking slowly
but she could understand her talk. She gave her signature on the
dying declaration marked as Ext.4/6. She has denied the
suggestions given by the defence counsel that no dying
declaration of the deceased was recorded by Pradip Jena and
that she was deposing falsehood.
P.W.10 Jayanta Parida has stated that he wrote the
F.I.R. as per the instruction of P.W.5 Braka Kishore Sahu and
after writing the same, he read it over and explained the
contents to P.W.5 whereafter the later gave his signature. He
has proved his own signature on the F.I.R. as Ext.3/2. He has
stated that he knew nothing about the case and he did not know
the appellant and wrote the F.I.R. as per instruction of the
police.
P.W.11 Rossalini Mohanty was working as a staff
nurse in the labour room at S.C.B. Medical College and Hospital,
Cuttack. She has stated that the deceased was admitted on
being referred from burn ward to labour room. The deceased
gave a statement that her husband being drunk came in the
night, poured kerosene on her and set fire on her body for which
she received burn injuries. She further stated that in her
presence, the statement of the deceased was recorded and she
gave her signature marked as Ext.4/7. She denied the
suggestions given by the defence that she had told the police
that the patient gave such statement to her in the labour room
and that nothing was recorded in her presence and that the
patient was not in a fit condition to give any statement.
P.W.12 Maheswar Mallik was a driver who stated that
once he was coming with his vehicle and on the way, he was
requested to carry a burn lady patient to Jajpur Main Hospital
and accordingly, he brought that patient with burn injury and left
her at Jajpur Main Hospital.
P.W.13 Bamadev Nanda was the O.I.C. of Bari
Ramachandrapur P.S. and he is also Investigating Officer of the
case. He stated that on 15.11.2011, he registered the F.I.R. on
receipt of the written report from P.W.5 Braja Kishore Sahu.
During investigation, he examined the informant and other
witnesses, visited the spot and prepared spot map. He proved
the formal F.I.R., his signature and the spot map. On
16.11.2011, he came to Cuttack hospital where the deceased
was undergoing treatment. He sought for permission of the
Superintendent, S.C.B. Medical College & Hospital to record the
dying declaration who was undergoing treatment in surgical burn
ICU. In response to his requisition, the D.C.P., Cuttack deputed
Sri Pradeep Kumar Jena, O.P.S, A.C.P., Zone VI, to be the
Executive Magistrate and Superintendent, S.C.B. Medical College
& Hospital deputed Dr. Asit Kumar Sethy to remain present
during the recording of dying declaration. The Executive
Magistrate recorded the dying declaration, in presence of Rojalin
Mohanty, staff nurse and Sunita Das, lady constable and he
examined the Doctor and the Executive Magistrate. He arrested
the appellant on 09.12.2011 and on that day, he got telephonic
information from Medical Outpost, S.C.B Medical College &
Hospital, Cuttack that the deceased who was undergoing
treatment had died and in this connection, Mangalabag P.S. U.D.
Case No.1506/11 was registered. After the death of the
deceased, the case turned to one under section 304-B of the
I.P.C. The I.O. denied the suggestion that he did not record the
statement of the deceased as she was unable to give such
statement. He further stated that he was present in the hospital
on the verandah, when the dying declaration was being
recorded. He has also denied the suggestion that as the
deceased had sustained 90-92% burn injuries, she was not in a
fit condition to give any declaration.
The prosecution exhibited six documents which have
already been stated while discussing the evidence of the
witnesses. Ext.1 is the seizure list, Ext.2 is the post mortem
examination report of the deceased, Ext.3 is the written F.I.R.,
Ext.4 is the certificate of Dr. Asit Kumar Sethy, Ext.4/2 is the
Odia dying declaration of the deceased, Ext.4/4 is the
endorsement on Ext.4, Ext.5 is the spot map and Ext.6 is the
prayer for addition of the offence under section 304-B of I.P.C.
Findings of Trial Court:
9. On an analysis of the facts, circumstances and
evidence on record, the learned trial Court came to the
conclusion that the oral evidence of P.Ws.9 and 11 about the
cause of death of the deceased is not only relevant but also
admissible in evidence under section 60 of the Evidence Act and
the same has not been shaken in the cross-examination.
Analysing the evidence of the doctor, the Executive Magistrate,
the I.O. and also the independent witnesses, it was held that the
deceased was in a fit and conscious state of mind to declare her
cause of death. From the facts, circumstances and the evidence
of P.Ws.6, 8, 9 and 11 and from other circumstances, the
learned trial Court came to the conclusion that having knowledge
that the deceased was pregnant for nine months, the appellant
put kerosene on her living body and set her on fire causing
severe burn injuries to which she succumbed in the hospital. The
intention of the appellant was not only to murder his wife but
also to murder a living unborn baby in the womb of the
deceased. Accordingly, it was held that the prosecution has
successfully proved its case against the appellant for the
offences punishable U/s.498-A/304-B/302 of I.P.C. and Section 4
of the D.P. Act beyond all reasonable doubt. The appellant was
found guilty of commission of such offences and sentenced to
imprisonment and fine in the manner as already mentioned
above.
Submissions of Counsel:
10. Ms. Rita Singh, learned Amicus Curiae appearing for
the appellant argued that there is no evidence regarding demand
of dowry, torture on the deceased in connection with demand of
dowry and that it is a case of accidental fire. She has challenged
the conviction of the appellant on the following grounds:
i) The doctor who gave the certificate of fitness on
the dying declaration has not been examined;
ii) The Forensic Scientific Team has not visited the
spot which is a grave lacuna in the prosecution case
and as such benefit of doubt should be given to the
appellant;
iii) The incident occurred on 14.11.2011, but F.I.R.
was lodged on 15.11.2011;
iv) The deceased died on 09.12.2011 i.e. after 24
days during treatment, but her statement was not
recorded by police;
v) Nothing incriminating has been seized from the
spot;
vi) The dying declaration is liable to be rejected on
the following grounds:-
a) No family members have been examined to prove
the dying declaration;
b) The evidence of the staff nurse (P.W.11) and lady
constable (P.W.9) who were alleged to be present
when her dying declaration was recorded, cannot be
accepted;
c) As the deceased was 80-90 percent burnt, as per
medical jurisprudence, she could not have been in a
condition to speak;
d) Neither the signature nor LTI of the deceased has
been taken on the dying declaration.
In support of her submissions, she has relied on the
following decisions:
i) Laxman -Vrs.- State of Maharashtra :
A.I.R. 2002 S.C. 2973;
ii) Paparambha Rosamma and Others
-Vrs.- State of Andhra Pradesh : (1999) 7
S.C.C. 695;
iii) Uka Ram -Vrs.- State of Rajasthan :
(2001) 5 SCC 254.
11. Mr. Aurobinda Mohanty, learned Additional Standing
Counsel on the other hand , supported the impugned judgment
and argued that the death of the deceased has been proved to
be homicidal on the basis of cogent evidence adduced by the
prosecution. The dying declaration has been recorded by an
Executive Magistrate (P.W.8) and bears the certificate of a doctor
that the deceased was in a fit and conscious state and able to
make such statement, being blemish free, can form the sole
basis of conviction as both P.W.8 and the doctor had got no
animosity against the appellant to falsely implicate him. The
appellant being the husband should have given a plausible
explanation for the burn injuries sustained by his wife
(deceased) in his own house in view of section 106 of the
Evidence Act. The defence plea of the appellant that the
deceased set herself on fire and he tried to save her is not
acceptable as he had not sustained any burn injury nor has he
taken the deceased to the hospital for treatment even though
she had sustained extensive burn injuries. Had he tried to save
the deceased, she would not have sustained such extensive
burn injuries . In support of the acceptability of dying
declaration, he has urged as follows:-
i) the dying declaration has been recorded by P.W.8,
the Executive Magistrate, who does not have any
personal animosity with the appellant so as to falsely
implicate him;
ii) The dying declaration is supported by the evidence
of two witnesses who are government servants and
have no reason to falsely implicate the appellant;
iii) Certificate has been given by the doctor that the
petitioner was fit, conscious and oriented to make
dying declaration which has been rightly accepted;
iv) LTI and signature of the deceased could not be
taken on the dying declaration as her hands were
bandaged.
He has relied on the following decisions in support of
his submissions:-
i) Purshottam Chopra and another -Vrs.-
State (Govt. of NCT Delhi) : (2020) 11 SCC
489;
ii) Vijay Pal -Vrs.- State Govt. of NCT :
(2015) 4 SCC 749;
iii) State of Karanataka -Vrs.-
Suvarnamma : (2015) 1 SCC 323;
iv) Gajoo -Vrs.- State of Uttarakhand :
(2012) 9 SCC 532;
v) Amar Singh -Vrs.- Balwinder Singh and
others : (2003) 2 SCC 518;
vi) Dhanaj Singh @ Shera and others -Vrs.-
State of Punjab : (2004) 3 SCC 654.
Judicial Pronouncements on Dying Declaration:
12. Section 32 of the Indian Evidence Act, 1872 deals
with „dying declaration‟. A dying declaration made by person on
the verge of his death has a special sanctity as at that special
moment, a person is most unlikely to make any untrue
statement. The shadow of impeding death is by itself the
guarantee of the truth of the statement made by the deceased
regarding the causes or circumstances leading to his death. It is
an exception to the general rule that hearsay evidence is no
evidence and the evidence which cannot be tested by cross-
examination of a witness is not admissible in a Court of law.
Way back in the year 1958, the Supreme Court in the
case of Khushal Rao -Vrs.- State of Bombay reported in
A.I.R. 1958 S.C. 22, examined the principles governing
acceptance of dying declaration. After examining the relevant
provisions of the Evidence Act and different judicial
pronouncements, laid down the following principles:
"(i) it cannot be laid down as an absolute rule of
law that a dying declaration cannot form the
sole basis of conviction unless it is corroborated;
(ii) each case must be determined on its own
facts, keeping in view the circumstances in
which the dying declaration was made;
(iii) it cannot be laid down as a general
proposition that a dying declaration is a weaker
kind of evidence than other pieces of evidence;
(iv) a dying declaration stands on the same
footing as another piece of evidence. It has to
be judged in the light of surrounding
circumstances and with reference to the
principles governing weighing of evidence;
(v) a dying declaration which has been recorded
by a competent Magistrate in the proper manner
stands on a much higher footing than a dying
declaration which depends upon oral testimony
which may suffer from all the infirmities of
human memory and human character;
(vi) in order to test the reliability of a dying
declaration, the court has to keep in view
various circumstances including the condition of
the person concerned to make such a
statement; that it has been made at the earliest
opportunity and was not the result of tutoring by
interested parties."
In a recent decision, in the case of Rajendra -Vrs.-
State of Maharashtra reported in 2024 SCC online SC 941 :
2024 LiveLaw (SC) 506, the Hon‟ble Supreme Court has
referred to the decision in Kushal Rao (supra) and reiterated
the settled position of law that a dying declaration can form the
basis of a conviction . It has held as follows:
"25. The law relating to dying declaration is now
well settled. Once a dying declaration is found to
be authentic inspiring confidence of the court,
then the same can be relied upon and can be
the sole basis for conviction without any
corroboration. However, before accepting such a
dying declaration, court must be satisfied that it
was rendered voluntarily, it is consistent and
credible and that it is devoid of any tutoring.
Once such a conclusion is reached, a great deal
of sanctity is attached to a dying declaration and
as said earlier, it can form the sole basis for
conviction.
In the case of Uka Ram (supra), the deceased was a
mental patient who had earlier attempted suicide, the Hon‟ble
Supreme Court defined what a dying declaration is and laid down
the safeguards to be followed in case of dying declaration and
the principle behind accepting a dying declaration without cross-
examination of the maker, holding as follows:
"6. Statements, written or verbal of relevant
facts made by a person who is dead, or who
cannot be found or who has become incapable
of giving evidence, or whose attendance cannot
be procured without an amount of delay or
expense which under the circumstances of the
case appears to the court unreasonable, are
themselves relevant facts under the
circumstances enumerated under sub-sections
(1) to (8) of Section 32 of the Act. When the
statement is made by a person as to cause of
his death, or as to any of the circumstances of
the transaction which resulted in his death, in
cases in which the cause of that person's death
comes into question is admissible in evidence
being relevant whether the person was or was
not, at the time when they were made, under
expectation of death, and whatever may be the
nature of the proceeding in which the cause of
his death comes into question. Such statements
in law are compendiously called dying
declarations. The admissibility of the dying
declaration rests upon the principle that a sense
of impending death produces in a man's mind
the same feeling as that of a conscientious and
virtuous man under oath - Nemo moriturus
praesumitur mentire. Such statements are
admitted, upon consideration that their
declarations made in extremity, when the maker
is at the point of death and when every hope of
this world is gone, when every motive to
falsehood is silenced and the mind induced by
the most powerful consideration to speak the
truth. The principle on which the dying
declarations are admitted in evidence, is based
upon the legal maxim Nemo moriturus
praesumitur mentire i.e., a man will not meet
his maker with a lie in his mouth. It has always
to be kept in mind that though a dying
declaration is entitled to great weight, yet it is
worthwhile to note that as the maker of the
statement is not subjected to cross-
examination, it is essential for the court to insist
that dying declaration should be of such nature
as to inspire full confidence of the court in its
correctness. The court is obliged to rule out the
possibility of the statement being the result of
either tutoring, prompting or vindictive or
product of imagination. Before relying upon a
dying declaration, the court should be satisfied
that the deceased was in a fit state of mind to
make the statement. Once the court is satisfied
that the dying declaration was true, voluntary
and not influenced by any extraneous
consideration, it can base its conviction without
any further corroboration as rule requiring
corroboration is not a rule of law but only a rule
of prudence."
In the case of Purshottam Chopra (supra), the
Hon‟ble Supreme Court held as follows:-
"21. For what has been noticed hereinabove,
some of the principles relating to recording of
dying declaration and its admissibility and
reliability could be usefully summed up as
under:
21.1. A dying declaration could be the sole basis
of conviction even without corroboration, if it
inspires confidence of the court.
21.2. The court should be satisfied that the
declarant was in a fit state of mind at the time
of making the statement; and that it was a
voluntary statement, which was not the result of
tutoring, prompting or imagination.
21.3. Where a dying declaration is suspicious or
is suffering from any infirmity such as want of fit
state of mind of the declarant or of like nature,
it should not be acted upon without
corroborative evidence.
21.4. When the eyewitnesses affirm that the
deceased was not in a fit and conscious state to
make the statement, the medical opinion cannot
prevail.
21.5. The law does not provide as to who could
record dying declaration nor there is any
prescribed format or procedure for the same but
the person recording dying declaration must be
satisfied that the maker is in a fit state of mind
and is capable of making the statement.
21.6. Although presence of a Magistrate is not
absolutely necessary for recording of a dying
declaration but to ensure authenticity and
credibility, it is expected that a Magistrate be
requested to record such dying declaration
and/or attestation be obtained from other
persons present at the time of recording the
dying declaration.
21.7. As regards a burns case, the percentage
and degree of burns would not, by itself, be
decisive of the credibility of dying declaration;
and the decisive factor would be the quality of
evidence about the fit and conscious state of the
declarant to make the statement.
21.8. If after careful scrutiny, the court finds the
statement placed as dying declaration to be
voluntary and also finds it coherent and
consistent, there is no legal impediment in
recording conviction on its basis even without
corroboration.
xxx xxx xxx
25.1....As laid down in Vijay Pal's case and
reiterated in Bhagwan's case (supra), the
extent of burn injuries - going beyond 92% and
even to 100% - would not, by itself, lead to a
conclusion that victim of such burn injuries may
not be in a position to make the statement.
Irrespective of the extent and gravity of burn
injuries, when the doctor had certified him to be
in fit state of mind to make the statement; and
the person recording the statement was also
satisfied about his fitness for making such
statement; and when there does not appear any
inherent or apparent defect, in our view, the
dying declaration cannot be discarded. Contra to
what has been argued on behalf of the
appellants, we are of the view that the juristic
theory regarding acceptability of statement
made by a person who is at the point of death
has its fundamentals in the recognition that at
the terminal point of life, every motive to
falsehood is removed or silenced.
25.2. To a fire victim like that of present case,
the gravity of injuries is an obvious indicator
towards the diminishing hope of life in the
victim; and on the accepted principles,
acceleration of diminishing of hope of life could
only obliterate the likelihood of falsehood or
improper motive. Of course, it may not lead to
the principle that gravity of injury would itself
lead to trustworthiness of the dying declaration.
As noticed, there could still be some inherent
defect for which a statement, even if recorded
as dying declaration, cannot be relied upon
without corroboration. Suffice would be to
observe to present purpose that merely for
100% burn injuries, it cannot be said that the
victim was incapable to make a statement which
could be acted upon as dying declaration."
In the case of Muthu Kutty -Vrs.- State reported
in A.I.R. 2005 S.C. 1473, the Hon‟ble Supreme Court has held:
"where the Court is satisfied that the dying
declaration was true and voluntary, it can rely
on it to sustain the conviction without any
further corroboration since the rule requiring
corroboration is merely a rule of prudence".
In the case of Betal Singh -Vrs.- State of M.P.
reported in (1996) 4 SCC 203, the Hon‟ble Supreme Court
has held:
"15. Legal position remains unaltered that dying
declaration should be scrutinized very carefully
and if the Court is satisfied after such scrutiny
that the dying declaration was true and was free
from any effort to prompt the deceased to make
such a statement and is coherent and
consistent, there is no legal impediment in
founding the conviction on it. (Kusa -Vrs.-
State of Orissa : A.I.R. 1980 S.C. 559). The
position does not change even if such a dying
declaration is put forward in a bride burning
case whether or not it has been recorded by the
police officer during investigation. (State of
Punjab -Vrs.- Amarjit Singh : A.I.R. 1992
S.C. 1817, Charipalli Shankararao -Vrs.-
Public Prosecutor, High Court of A.F., 1995
Suppl. (4) SCC 24).
In the case of Sukanti Moharana -Vrs.- State of
Orissa reported in (2009) 9 SCC 163, the Hon‟ble Supreme
Court after referring to a number of its earlier decisions on
acceptability of dying declaration and how to deal with a dying
declaration, has held as follows :
"32. The doctor who recorded the dying
declaration was examined as a witness and he
had in his deposition categorically stated that
the deceased while making the aforesaid
statement was conscious and in a fit mental
condition to make such a statement. The
aforesaid position makes it therefore clear that
the aforesaid dying declaration could be relied
upon as the same was truthfully recorded and
the said statement gave a vivid account of the
manner in which the incident had taken place.
33. There was another objection raised by the
counsel appearing for the appellant regarding
the admissibility of the aforesaid recorded dying
declaration contending interalia that the
signature or the thumb impression of the
deceased was not taken on the said dying
declaration. The said objection according to us
also is without any basis. The deceased had
suffered about 90 to 95 per cent burn injuries
covering 90 to 95 per cent body surface. The
post mortem report also indicates that there was
bandage in her thumb as it was burnt. In such a
situation, it was not possible to take her
signature or LTI on the dying declaration. There
is also no reason why a dying declaration which
is otherwise found to be true, voluntary and
correct should be rejected only because the
person who recorded the dying declaration did
not or could not take the signature or the Left
Thumb Impression of the deceased on the dying
declaration. Once it is found that the dying
declaration is true and made voluntarily and as
also trustworthy, there is no reason why the
same should not be believed and relied upon. In
this case, the said dying declaration is
corroborated by the oral dying declaration made
by the deceased before P.W.1 and P.W.3 which
is also corroborated by the medical evidence and
the facts contained in the FIR."
In the case of Nallapati Sivaiah -Vrs.- Sub-
Divisional Officer, Guntur, A.P. reported in A.I.R. 2008 S.C.
19, it is held as follows:
"18. It is equally well settled and needs no
restatement at our hands that dying declaration
can form the sole basis for conviction. But at the
same time due care and caution must be
exercised in considering weight to be given to
dying declaration in as much as there could be
any number of circumstances which may affect
the truth. This Court in more than one decision
cautioned that the courts have always to be on
guard to see that the dying declaration was not
the result of either tutoring or prompting or a
product of imagination. It is the duty of the
courts to find that the deceased was in a fit state
of mind to make the dying declaration. In order
to satisfy itself that the deceased was in a fit
mental condition to make the dying declaration,
the courts have to look for the medical opinion."
In the case of Laxman (supra), the Hon‟ble Supreme
Court has held as follows:
"3....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. In most cases, however, such
statements are made orally before death ensues
and is reduced to writing by someone like a
Magistrate or a doctor or a police officer. When it
is recorded, no oath is necessary nor is the
presence of a Magistrate absolutely necessary,
although to assure authenticity it is usual to call
a Magistrate, if available for recording the
statement of a man about to die. There is no
requirement of law that a dying declaration must
necessarily be made to a Magistrate and when
such statement is recorded by a Magistrate
there is no specified statutory form for such
recording. Consequently, what evidential value
or weight has to be attached to such statement
necessarily depends on the facts and
circumstances of each particular case. What is
essentially required is that the person who
records a dying declaration must be satisfied
that the deceased was in a fit state of mind.
Where it is proved by the testimony of the
Magistrate that the declarant was fit to make the
statement even without examination by the
doctor the declaration can be acted upon
provided the court ultimately holds the same to
be voluntary and truthful. A certification by the
doctor is essentially a rule of caution and
therefore the voluntary and truthful nature of
the declaration can be established otherwise."
In the case of Paparambaka Rosamma (supra),
the parents of the deceased as well as other close relatives had
turned hostile. Her mother in-law was also her grandmother.
None of the neighbours came forward to support the prosecution
and so there was no evidence that the deceased was subjected
to ill-treatment or there was any dowry demand. The only
grievance made in the dying declaration was that she wanted to
live separately but her husband (acquitted earlier) was not
prepared and had beaten her in the afternoon on the previous
day. The dying declaration was not accepted in the absence of
certificate of the doctor that the injured was in a fit state of mind
to give the declaration. The relevant portion of the judgment is
extracted below:
"In our opinion, the certificate appended to the
dying declaration at the end by Dr. Smt. K.
Vishnupriya Devi (P.W.10) did not comply with
the requirement inasmuch as she has failed to
certify that the injured was in a fit state of mind
at the time of recording the dying declaration.
The certificate of the said expert at the end only
says that patient is conscious while recording
the statement. In view of these material
omissions, it would not be safe to accept the
dying declaration (Ex.P-14) as true and genuine
and was made when the injured was in a fit
state of mind."
In the Case of Koli Chunilal Savji -Vrs.- State of
Gujarat reported in (1999) 9 SCC 562, the Hon‟ble Supreme
has held as follows:
"8. In view of the aforesaid decisions of this
Court, we are unable to accept the submission of
Mr. Keshwani that the two dying declarations
cannot be relied upon as the doctor has not
been examined and the doctor has not made
any endorsement on the dying declaration. With
regard to the condition of the deceased, the
Magistrate who recorded the dying declaration
has been examined as a witness. She has
categorically stated in her evidence that as soon
as she reached the hospital in the Surgical Ward
of Dr. Shukla, she told the doctor on duty that
she is required to take the statement of
Dhanuben and she showed the doctor the Police
yadi. The doctor then introduced her to
Dhanuben and when she asked the doctor about
the condition of Dhanuben, the said doctor
categorically stated that Dhanuben was in a
conscious condition. It further appears from her
evidence that though there has been no
endorsement on the dying declaration recorded
by the Magistrate with regard to the condition of
the patient but there has been an endorsement
on Police yadi, indicating that Dhanuben was
fully conscious. In view of the aforesaid evidence
of the Magistrate and in view of the
endorsement of doctor on the Police yadi and no
reason having been ascribed as to why the
Magistrate would try to help the prosecution, we
see no justification in the comments of Mr.
Keshwani that the dying declaration should not
be relied upon in the absence of the
endorsement of the doctor thereon...."
In the case of Vijay Pal (supra), the Supreme Court
has held as follows:
"20. Thus, the law is quite clear that if the dying
declaration is absolutely credible and nothing is
brought on record that the deceased was in such
a condition, he or she could not have made a
dying declaration to a witness, there is no
justification to discard the same."
Standard of Proof:
In the case of Trimukh Maroti Kirkan -Vrs.- State of
Maharashtra reported in (2006) 10 SCC 681, which was a case
where the wife of the appellant was found dead in his house but
direct evidence regarding her death was not available, the Hon‟ble
Supreme Court while confirming his conviction under Section 302
I.P.C. has held as follows:
"12. In the case in hand, there is no eye-witness
of the occurrence and the case of the
prosecution rests on circumstantial evidence.
The normal principle in a case based on
circumstantial evidence is that the circumstances
from which an inference of guilt is sought to be
drawn must be cogently and firmly established;
that those circumstances should be of a definite
tendency unerringly pointing towards the guilt of
the accused; that the circumstances taken
cumulatively should form a chain so complete
that there is no escape from the conclusion that
within all human probability the crime was
committed by the accused and they should be
incapable of explanation on any hypothesis other
than that of the guilt of the accused and
inconsistent with his innocence.
13. The demand for dowry or money from the
parents of the bride has shown a phenomenal
increase in last few years. Cases are frequently
coming before the Courts, where the husband or
in-laws have gone to the extent of killing the
bride if the demand is not met. These crimes are
generally committed in complete secrecy inside
the house and it becomes very difficult for the
prosecution to lead evidence. No member of the
family, even if he is a witness of the crime,
would come forward to depose against another
family member. The neighbours, whose evidence
may be of some assistance, are generally
reluctant to depose in Court as they want to
keep aloof and do not want to antagonize a
neighbourhood family. The parents or other
family members of the bride being away from
the scene of commission of crime are not in a
position to give direct evidence which may
inculpate the real accused except regarding the
demand of money or dowry and harassment
caused to the bride. But, it does not mean that a
crime committed in secrecy or inside the house
should go unpunished.
14. If an offence takes place inside the privacy
of a house and in such circumstances where the
assailants have all the opportunity to plan and
commit the offence at the time and in
circumstances of their choice, it will be
extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if
the strict principle of circumstantial evidence, as
noticed above, is insisted upon by the Courts. A
Judge does not preside over a criminal trial
merely to see that no innocent man is punished.
A Judge also presides to see that a guilty man
does not escape. Both are public duties. (See
Stirland Vs. Director of Public Prosecution :
1944 AC 315 quoted with approval by Arijit
Pasayat, J. in State of Punjab Vs. Karnail
Singh : (2003) 11 SCC 271). The law does not
enjoin a duty on the prosecution to lead
evidence of such character which is almost
impossible to be led or at any rate extremely
difficult to be led. The duty on the prosecution is
to lead such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case."
Hostile Witness:
In the case of M. Saravan -Vrs.- State of
Karnataka reported in (2012) 7 SCC 636, it has been held by
the Supreme Court that merely because a witness has turned
hostile, it would not be fatal to the prosecution case, if the
prosecution has been able to prove its case by other cogent and
reliable evidence. The relevant portion is extracted below:
"10...The mere fact that one of the witnesses
produced by the prosecution had been declared
hostile and did not support the case of the
prosecution would not be fatal to the case of the
prosecution, particularly when the prosecution
has been able to prove its case by other cogent
and reliable evidence..."
In the case of Bhajju -Vrs.- State of M.P.
reported in (2012) 4 SCC 327 and Govindaraju @ Govinda
-Vrs.- State reported in (2012) 4 SCC 722, it has been held
by the Hon‟ble Supreme Court that the Court can take into
consideration the part of the statements of witnesses which
supports the case of the prosecution.
Defective Investigation:
In the case of Suvarnamma (supra), the Hon‟ble
Supreme Court held as follows:-
"11. It is also well settled that though the
investigating agency is expected to be fair and
efficient, any lapse on its part cannot per se be
a ground to throw out the prosecution case
when there is overwhelming evidence to prove
the offence."
In the decision in Dhanaj Singh @ Shera (supra), the
Hon‟ble Supreme Court has held as follows:-
"In the case of a defective investigation, the
Court has to be circumspect in evaluating the
evidence. But it would not be right in acquitting
an accused person solely on account of the
defect; to do so would tantamount to playing
into the hands of the investigating officer if the
investigation is designedly defective."
In the case of Gajoo (supra), the serological report
had not been produced for which Supreme Court directed that
action should be taken against the Investigating Officer, while
holding as follows:
"A defective investigation, unless affects the
very root of the prosecution case and is
prejudicial to the accused, should not be an
aspect of material consideration by the court."
Cause of death:
13. To ascertain as to whether the prosecution has been
successful in proving that the death of the deceased was
homicidal in nature, the evidence of P.W.4 Dr. Purnima Singh
who conducted post mortem examination of the deceased on
09.12.2011 is very relevant.
The deceased died on 09.12.2011 while undergoing
treatment in the S.C.B.M.C.H. for burn injuries, which was more
than three weeks after the occurrence. The injuries noticed by
P.W.4 on the deceased and her opinions are extracted herein
below:
External Injuries:
Infected dermo epidermal burn injuries
involving complete neck, the lower half of the
face, the anterior aspect of the chest, both the
thighs, back of both the legs, the whole left
upper limb, the rt, mid of forearm up to the
hand, whole of the abdomen and whole of the
back side.
The pubic hair was intact, the 1eft side
axillary hair had burnt and rt. side was singed,
scalp hair was-also singed. The eyebrows and
eyelash singed, The bum hounds were looking
unhealthy with slough formation emating putrid
odour.
There were signs of periferial healing at the
margins of the wound, No mechanical injury or
ay bodily deformity was detected at the time of
P.M, examination.
On dissection:
The internal structure of neck were intact.
On opening the chest cavity there were plural
effusion of about 200 ml. clear, colourless fluid
of both sides. Both the lungs were intact and
edematous. The pericardial sack was contained
about 100 C.C. of colourless fluid. Heart was
intact, containing fluid blood in both the
chambers. The uterus was enlarged up to 6
week size. It was empty and consistent with of
size of post delivery of one and half months back
as alleged.
Opinion:
The burn injuries detailed above are
antemortem in nature and might have been
caused due to application of dry heat in form of
fire or flame.
The total burn surface area is about 80 to
90% of the total body surface area and is fatal
to cause death of a person in ordinary course of
nature.
The death is due to the complications of
burn injuries sustained.
The age is was within about 12 to 18 hours
from the time of P.M. examination."
She has attributed the cause of death to
complications of the burn injuries and has also stated that the
burn injuries were ante mortem in nature and caused due to
application of dry heat or fire. She has also stated that the total
burn area was 80% to 90% and fatal in ordinary course to cause
death. So it is clear that the death of the deceased was due to
the burn injuries but the doctor who has conducted post mortem
has not and could not have stated if the burn injuries were
homicidal or suicidal or even accidental.
As the witnesses who had stated during investigation
that the appellant had poured kerosene on the deceased and set
her on fire, did not support the prosecution case while deposing
in Court, so we have to look at other evidence which has been
adduced by the prosecution to prove its case.
Motive:
14. In the present case, as the family members of the
deceased and neighbours of the appellant have not supported
the prosecution case and turned hostile, the prosecution has not
been able prove any motive on the part of the appellant to
commit the offence. Law is well settled that motive increases the
probability of commission of an offence, but motive alone cannot
prove an offence and similarly, in absence of proof of motive, it
cannot be a ground to set at naught the other evidence pointing
towards the guilt of the accused.
Evidence relating to dying declaration:
15. The law regarding dying declaration is governed by
Section 32 of the Indian Evidence Act. Importance is attached to
a dying declaration as it is the presumption and belief that a
person who is going to die and meet his/her maker will not utter
falsehood, just before his death.
As the relevant witnesses have turned hostile and the
prosecution case rests solely on the dying declaration of the
deceased, we therefore have to be very careful while examining
the dying declaration as to whether it is genuine, true and free
from all doubts and inspires confidence and whether it was
recorded when the injured was conscious and in a fit state of
mind. For this, we have to carefully examine the dying
declaration itself, the evidence of P.W.8, the Executive
Magistrate who recorded the dying declaration, the evidence of
P.W.9, the woman constable and P.W.11, the staff nurse, the
two witnesses, who have signed on the dying declaration sheet.
The evidence of P.W.13, the I.O. is also necessary to be
examined for the purpose of corroboration. The evidence of
these witnesses has already been referred to in extenso earlier
and is not being repeated, but the relevant portions are required
to be referred to while discussing the acceptability or otherwise
of the dying declaration.
16. The dying declaration contains the certificate of Dr.
Asit Ku Sethy in English vide Ext.4, the declaration of the
deceased in Odia vide Ext.4/2 and the certificate of P.W.8 in
English vide Ext.4/4. The contents of the declaration (Ext.4) are
extracted below:
"Certified that Patient Jayanti Sahoo, w/o
Susanta Sahoo of Thakurpatna, P.S.- Bari-
Ramchandrapur, Dist.- Jajpur initially admitted
to surgery treated in Burn ICU Bed No.14 and
transferred to Dept. of Obstetrics and
Gynecology for delivery on16.11.2011.
She is conscious, oriented and fit to give dying
declaration. Time 6.45 p.m. 16.11.2011. Pt
delivered a dead male child at 4.30 p.m. -
16.11.2011.
Indoor Regd. No. Sd/-
430/15.11.11 (Dr. Asit Ku Sethi)
16.11.2011
Pt having 50% burn Asst. Prof. Surgery."
The dying declaration which is in Odia is extracted
below:
" , - , - , /
ଗତ ତ ଗ ( ତ ୧୧.୩୦)
ଇ ତ
ଗଇ / ଇଗ , ଓ
ଇ ଓ ଇଗ ଓ
/ ଅ ଗ ତ /"
The certificate given below by P.W.8, the Executive
Magistrate with signatures of the two witnesses is reproduced
below: -
"Recorded by me as per her version. On
16.11.2011 at 7 p.m. at Labour Room Gyneac
(O & G), SCBMCH Cuttack in presence of
witness. I am to note here that the abovenamed
victim sustained burn injury throughout her
body and her palms have been bandaged for
which she could not put her thumb impression.
Sd/- Sd/-
Sunita Dash (16.11.2011)
16.11.11 (P.K. Jena) O.P.S.
Sd/- ACP Zone-VI Cuttack (Em)
R. Mohanty Camp (O & G), SCBMCH,
16.11.11 Cuttack."
17. P.W.13, the I.O. has stated that the Superintendent,
SCBMCH, Cuttack deputed Dr. Asit Kumar Sethi to remain
present at the time of recording of dying declaration. We find
from a perusal of the dying declaration that Dr. Asit Kumar Sethi
has given a certificate vide Ext.4 that the deceased was
conscious, oriented and fit to give the dying declaration and his
certificate and signature have been proved by P.W.8, the
Executive Magistrate.
18. Though the said Dr. Sethi is a chargesheet witness,
but the prosecution has not examined him. However, there is no
challenge to the evidence of P.W.8 that Dr. Sethi was not
present at the time of recording the dying declaration and that
he had not given any such certificate vide Ext.4. P.W.8 has
specifically denied the defence suggestion that the deceased was
not in a fit mental condition. The contentions raised by the
learned counsel for the appellant that for non-examination of Dr.
Sethi, it cannot be said that the prosecution has proved that the
deceased was in a fit state of mind, cannot be accepted.
After recording the dying declaration in Odia, P.W.8,
has given a certificate at the end that as the palms of the
deceased were bandaged due to burn injuries, her LTI could not
be taken. The declaration has also been proved by P.W.9 Sunita
Das, the police constable and P.W.11 Rojalin Mohanty, Staff
Nurse of SCBMCH, Cuttack who were present at the time of
recording and put their signatures on the dying declaration
sheet. P.W.13, the I.O. has stated during his cross-examination
as follows:
"... I was absent when the dying declaration was
taken down. When the dying declaration was
recorded, I was present in the hospital but on
the verandah."
19. As held by the Hon‟ble Supreme Court in the case of
Purushottam (supra), no hard and fast rule can be laid down
that a person with 100% burn injuries cannot be in a fit state of
mind to make a dying declaration and it depends on the facts
and circumstances of the case and that normally a person who is
going to die will not state falsehood unless the contrary is
proved.
20. In the present case, in view of the certificate of Dr.
Asit Kumar Sethi, we have no reason to reject the dying
declaration on the ground that the deceased was not in a fit
state of mind to give such declaration.
21. After perusal of the dying declaration and the
evidence of P.Ws. 8, 9, 11 and 13, we find no reason to doubt
the certificate of Dr. Asit Kumar Sethi vide Ext.4, the certificate
of P.W.8 vide Ext.4/4 or the declaration vide Ext.4/2 itself. The
dying declaration inspires confidence and there is no material
that it was the result of either tutoring, prompting or vindictive
or product of imagination. We are not only satisfied that the
deceased was in a fit state of mind to make the statement, but
also that the dying declaration was true, voluntary and not
influenced by any extraneous consideration and therefore, on
the sole basis of dying declaration, conviction of the appellant
can be sustained.
Defence Plea:
22. During his examination under Section 313 Cr.P.C.,
the appellant has taken a plea that as he came home drunk, the
deceased set herself on fire by using the dibri (lamp) and he had
tried to put off the fire but was not able to do so.
This plea has been taken only to be rejected. P.W.2
Balaram Sahu, neighbour of the appellant has stated that
hearing hullah at midnight, he had come to the house of the
appellant and saw burn injuries on the deceased but did not see
the appellant. He has also stated that the deceased was carried
to the hospital. He has not been cross-examined by the defence
on this aspect.
P.W.5, the informant has stated that while cooking
food, the kerosene stove blasted, as a result of which, the body
of the deceased caught fire. As he did not support the
prosecution case, he was declared hostile. He has however
proved the F.I.R. and his signature on the F.I.R. Neither it is the
defence plea of the appellant nor it is there in the dying
declaration that any kerosene stove blasted causing injuries to
the deceased. Therefore, the evidence of P.W.5 on this aspect is
to be outrightly rejected.
The plea of the appellant does not inspire confidence
for the following:-
i) The deceased was 8 to 9 months pregnant and
she would have not put her unborn child in danger;
ii) The deceased sustained extensive burns which
would not have happened if the appellant had tried to save her;
iii) The appellant has not stated to have sustained
any burn injuries while rescuing the deceased nor has he stated
to have taken the deceased to hospital;
iv) In the dying declaration, the deceased has stated
that hearing her shout, her parents in-law came and put off the
fire and took her to Jajpur Hospital.
Whether the contentions of the learned Amicus Curiae for
acquittal of the appellant are acceptable?
23. The contentions of the learned Amicus Curiae for
acquitting the appellant are not acceptable for the following
reasons:
i) A conviction can be based only on a dying
declaration if it inspires confidence;
ii) Even if the relations of the deceased have turned
hostile, it will not be fatal to the prosecution case since other
evidence pointing to the guilt of the appellant more particularly
dying declaration are available;
iii) Non-examination of the doctor who gave the
certificate on the dying declaration regarding fitness of mind of
the deceased is not fatal to the prosecution case as his certificate
and signature have been duly proved by the Executive
Magistrate (P.W.8);
iv) The failure of the forensic team to visit the spot
may be a lacuna in the investigation but the same will not be
fatal to the prosecution case as it is the settled principle of law
that any defect in investigation cannot be a ground to reject the
prosecution case in toto;
v) There is no delay in lodging F.I.R. as the incident
occurred on 14.11.2022 night and the deceased was first taken
to Jajpur Hospital and then to SCBMCH, Cuttack on 15.11.2011
and the F.I.R. has been lodged also on 15.11.2011 which was
after such admission in the Hospital at Cuttack and it cannot be
lost sight of the fact that the primary concern of the family
members was to save the life of the deceased.
In the case of Amar Singh (supra), it is held that
there is no hard-and-fast rule that any delay in lodging the FIR
would automatically render the prosecution case doubtful. It
necessarily depends upon facts and circumstances of each case
whether there has been any such delay in lodging the FIR which
may cast doubt about the veracity of the prosecution case and
for this a host of circumstances like the condition of the first
informant, the nature of injuries sustained, the number of
victims, the efforts made to provide medical aid to them, the
distance of the hospital and the police station etc. have to be
taken into consideration.
vi) The reason for absence of LTI of the deceased in
the dying declaration sheet has been explained by P.W.8 stating
that her palms were bandaged. This explanation also holds good
for absence of her signature on the declaration sheet;
vii) Failure of the I.O. to record the statement of the
deceased under Section 161 Cr.P.C is not fatal to the
prosecution, as the dying declaration has been recorded
promptly.
Conviction of appellant under Section 304-B and Section
498-A I.P.C. and Section 4 of the D.P. Act:
24. It was the prosecution case that there was demand
of dowry and the deceased was being harassed and treated with
cruelty as the demand was not fulfilled. Soon before her death,
the appellant had threatened to kill her if the demand of the
appellant and his family members for dowry was not fulfilled.
None of the relatives of the deceased and the co-
villagers have supported the prosecution case as regards
demand of dowry and ill-treatment and torture of the deceased.
Law is well settled as held in case of Madhusudan
Singh -Vs.- State of Bihar reported in A.I.R. 1995 S.C.
1437, that the F.I.R. does not constitute substantive evidence,
however it can be used as a previous statement for the purpose
of corroboration/contradiction to the maker thereof. The
allegation has to be proved at the trial. Conviction cannot be
based only on the allegation in the F.I.R. In the case of Utpal
Das -Vs.- State of West Bengal reported in (2010) 46
Orissa Criminal Reports (SC) 600, it is held that the first
information report does not constitute substantive evidence. It
can, however, only be used as a previous statement for the
purposes of either corroborating its maker or for contradicting
him and in such a case, the previous statement cannot be used
unless the attention of witness has first been drawn to those
parts by which it is proposed to contradict the witness. In the
case of Chaitu Naik -Vs.- State of Orissa reported in (2015)
60 Orissa Criminal Reports 906, it is held that a statement
recorded under Section 161 of Cr.P.C. is not a substantive piece
of evidence. In view of the proviso to sub-section (1) of Section
162 of Cr.P.C., the statement can be used only for the limited
purpose of contradicting the maker thereof in the manner laid
down in the said proviso. Such a statement cannot be treated as
evidence in the criminal trial but may be used for the limited
purpose of impeaching the credibility of a witness.
It is pertinent to note that even the deceased herself
has not stated about such demand and torture in her dying
declaration. Thus, we find sufficient force in the contention of the
learned counsel for the appellant that there is absence of
evidence regarding motive to commit the crime and harassment
and ill treatment on account of demand for dowry soon before
the death of the deceased. Thus, we have no choice but to acquit
the appellant from the charges under Sections 498-A, 304-B of
the I.P.C as well as Section 4 of the D.P. Act.
Conviction of the appellant under section 302 of I.P.C.:
25. Even though the charge under Section 498-A of
I.P.C. and Section 4 of the D.P. Act could not be proved, the
motive to kill the deceased has also not been proved, but as
discussed above, availability of motive is not mandatory for
convicting an accused of an offence under Section 302 of I.P.C.
In the case in hand, as per the dying declaration, the
appellant came home drunk and poured kerosene on the body of
the deceased and set her on fire. Hence absence of motive in
these circumstances will not be a ground to disbelieve the dying
declaration, as it is otherwise reliable.
Death of the deceased was due to burn injuries.
There are no eye witnesses who have seen the appellant setting
the deceased on fire her on fire. But in her dying declaration, she
has implicated the appellant to have poured kerosene on her and
set her on fire. The dying declaration has been recorded by
P.W.8, an Executive Magistrate who was deputed by the D.C.P.
to record the same and he has recorded the declaration in the
presence of two witnesses who are government servants i.e.
P.W.9, a woman constable and P.W.11, a staff nurse. None of
these three witnesses have any animosity with the appellant so
as to falsely implicate him, nor has any suggestion to that effect
been put to them. That apart, the dying declaration has been
recorded by P.W.8 himself in his own handwriting and contains
the certificate of a doctor that the deceased was a in a fit
condition to give the same. It has also been mentioned below
the dying declaration by P.W.8 that the LTI of the deceased
could not be taken on the declaration sheet as her palms were
bandaged. Merely because the relatives of the deceased are not
witnesses to the dying declaration or the doctor who gave the
certificate has not been examined, the dying declaration cannot
be disbelieved as the certificate and signature of the doctor has
been proved by P.W 8 and this has not been challenged in cross-
examination by the defence.
The dying declaration proves that the appellant by
pouring kerosene on the deceased and setting her on fire, has
intentionally committed her murder and therefore, the
prosecution has successfully established the charge under
section 302 of I.P.C. against the appellant.
Conclusion:
26. In view of the foregoing discussions, we are of the
humble view that the conviction of the appellant for commission
of the offences under Section 498-A and Section 304-B of the
I.P.C and Section 4 of the Dowry Prohibition Act is liable to be
set aside and accordingly, we set aside the same and acquit the
appellant of the charges under Sections 498-A/304-B of the
I.P.C. and Section 4 of the Dowry Prohibition Act.
27. The conviction of the appellant for commission of the
offence under Section 302 I.P.C and sentence passed thereunder
by the learned trial Court stands confirmed.
28. In the result, the JCRLA is partly allowed.
Trial Court records with a copy of this judgment be
sent to the concerned Court forthwith for information and
necessary action.
29. Before parting with the judgment, we put on record
our appreciation to the efforts of Ms. Rita Singh, learned Amicus
curiae and Mr. Aurobindo Mohanty, learned Additional Standing
Counsel who have prepared the case thoroughly and argued
sincerely and rendered their valuable assistance in arriving at the
above decision. The learned Amicus Curiae shall be entitled to
the professional fees, which is fixed at Rs.10,000/- (rupees ten
thousand).
..............................
Savitri Ratho, J.
S.K. Sahoo, J. I agree.
..............................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 27th May 2025/Subhalaxmi/Sukanta
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 27-May-2025 14:47:19
