PRADIP MOHANTY, J & B.K.NAYAK, J. JCRA NO.9 OF 2002 (Decided on 06.07.2011) BALARAM DANDSENA … ……Appellant. .Vrs. STATE OF ORISSA ………Respondent. EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – S.32. For Appellant - Miss. B.L.Tripathy. For Respondent - Mr. A.Rath Addl. Standing Counsel. B.K.NAYAK, J. In this Jail Criminal Appeal, the appellant has challenged the judgment and order dated 29.11.2001 passed by the learned Ad hoc Additional Sessions Judge, Sundargarh in S.T. Case No.232/16 of 1999 convicting the appellant under Section 302 of the I.P.C. and sentencing him to undergo imprisonment for life. 2. Shorn of unnecessary details, the prosecution case is that the accused-appellant and his wife-Kamala (deceased) shifted from their village-Dudikarei and stayed in the rented house belonging to P.W.6 in village-Daijimahul. On 29.03.1999 at about 9.00 P.M., the appellant became angry and annoyed with his wife as because she gave away a sum of Rs.100/- to her nephew- Baleswar Naik for his treatment on the previous day. He was annoyed because his wife had given the money without his consent and out of anger he poured kerosene from the ‘Dibiri’ over his wife, Kamala and set her on fire with a lighted match stick. After setting her on fire, he left the village. Kamala tried to extinguish the fire and crawled out of her house and raised alarm. Some neighbours and co-villagers gathered and gave her water to drink. Before them on the spot she narrated the incident. Being called the Grama Rakshi came to the spot and thereafter informed the Sadar Police Station about the incident. The I.I.C., Sadar Police Station reached the spot and before him Laxman Chhatria (P.W.11) submitted a written report which was sent to the police station where the case was registered under Sections 498-A/307 of the I.P.C. The injured victim was shifted to District Headquarters Hospital, Sundargarh in the police Jeep. Since her condition was critical, the emergency doctor (P.W.17) recorded her dying declaration. While undergoing treatment in the hospital, the victim succumbed to the burn injuries in the early hours of 31.3.1999 whereupon the I.I.C. Sadar Police Station converted the case to one of murder under Section 302 of the I.P.C. Before the death of the deceased, the I.I.C. Sadar Police Station had sent requisition to the hospital for treating the injured and in course of his investigation, he seized one match box, one Dibiri, some half burnt straws, some burnt clothes and some ashes from the spot. A futile search was made for the absconding accused, inquest over the dead body was made in presence of a Magistrate and other witnesses and thereafter postmortem examination was conducted. On 14.4.1999 the accused was arrested while he was concealing at village Lulkidihi. The Investigating Officer also seized the bed head ticket with regard to the treatment of the deceased and on completion of investigation charge-sheet was submitted against the present appellant. 3. The defence plea is one of complete denial of the prosecution case. Further the accused in his statement under Section 313, Cr.P.C. took a plea of alibi stating that on the date of occurrence he was not available in the village but had gone to village- Karamdihi to work as a daily labourer. 4. In order to establish its case, the prosecution examined twenty witnesses. P.Ws.1, 5, 7 and 8 are the co-villagers and neighbours, who came to the spot on hearing hullah of the deceased and before whom the injured narrated the incident. P.W.2 is the Grama Rakshi, who was called to the spot. P.W.3- Baleswar Naik is the nephew of the deceased to whom the deceased had given Rs.100/- on the previous day of occurrence. P.Ws.4 and 9 are post occurrence witnesses. P.W.6 is the landlord of the house where the accused and deceased were staying as tenants. P.W.10 is the mother of P.W.3 and sister of the deceased. Laxman Chhatria, the informant (P.W.11) and the Executive Magistrate (P.W.14) are witnesses to inquest. P.Ws.13 and 16 are the two doctors, who conducted postmortem examination jointly over the dead body of the deceased. P.W.15 is the witness to seizure of bed head ticket of the deceased. P.W.17 is the emergency doctor, who admitted the deceased in the hospital and recorded her dying declaration. P.W.18 is a constable and a seizure witness. P.W.19 claims no knowledge about any aspect of the prosecution case. P.W.20 is the I.I.C. of Sadar Police Station, who investigated into the case and submitted charge-sheet. The appellant led no evidence in his defence. 5. The learned counsel for the appellant submitted that the trial court convicted the appellant primarily basing upon the dying declaration of the deceased without any corroboration from any other evidence. It is her further submission that keeping in view the evidence of the critical condition of the victim, the dying declaration recorded by P.W.17 cannot be treated to be true and voluntary declaration. Mr. A. Rath, learned Additional Standing Counsel, on the other hand, contended that the victim made two dying declarations, first shortly after the occurrence before the neighbours, which is oral in nature, and the second one before P.W.17, the emergency doctor, which was recorded and proved as Ext.7 and that in view of the evidence of P.W.17 that in spite of the critical condition of the deceased, she was conscious and able to make a statement which he recorded considering the case to be of emergency it is his submission that there is nothing on record to suspect the true and voluntary nature of the dying declaration. It is also submitted that the trial court has taken into consideration the seizure of incriminating articles from the spot, the bed head ticket and the long abscondance of the accused soon after the occurrence as corroborative pieces of evidence. 6. The evidence of two doctors, P.Ws. 13 and 16, who conducted the post mortem examination over the dead body of the deceased and the postmortem report, Ext.3 make it clear that the deceased had sustained extensive burn injuries except on the lower part of abdomen below umbilicus, anteromedial aspect of both thighs and lateral aspects of the neck and forehead. There was charring of skin. On dissection the doctors found the 2 brain and its coverings were congested. Larynx, trachea, lungs, lever, spleen and kidneys were congested. The death was due to shock resulting from extensive burn injuries, which were ante mortem in nature. There is no material on record nor there is defence suggestion that the deceased received burn injuries accidentally or that she set herself on fire in her attempt to commit suicide. 7. Now, the question is whether the appellant set the deceased on fire out of rage as because the deceased gave Rs.100/- to her nephew without the consent of the appellant. In the absence of eyewitness to the occurrence, the prosecution has relied upon the dying declaration, Ext.7 recorded by the doctor (P.W.17) and also the testimony of neghbours and co-villagers such as P.Ws.1, 5, 7 and 8, who have stated that on hearing cries of Kamala, they came to the spot and found Kamala crawling out of her house and her whole body was on fire, the wearing apparels on her body were burnt. On her asking the witnesses gave her water and on their query she stated that her husband set her on fire by pouring kerosene from ‘Dibiri’ being annoyed as because she gave Rs.100/- to her nephew. She also informed the witnesses that after setting her on fire her husband fled away. In cross-examination, these witnesses have stated that Kamala was groaning in pain due to burn injuries and was stammering and her speech was indistinct. Merely, because the speech was indistinct and unclear, it cannot be said that these witnesses viz; P.Ws.1, 5, 7 and 8 concocted a story to falsely implicate the appellant. They are independent witnesses, who have no axe to grind against the appellant. On the basis of such information received by these witnesses from the deceased soon after the occurrence, P.W.11 lodged the F.I.R. (Ext.10). The F.I.R. contains clearly what the deceased has stated before the witnesses outside her house soon after the occurrence. 8. The Investigating Officer (P.W.20) arrived at the spot being telephonically informed by P.W.2, the Grama Rakshi. P.W.20 has stated that on the spot he found the victim lying with serious condition and so he made arrangement and shifted her to the District Headquarters Hospital, Sundargarh for her medical treatment. He also sent requisition (Ext.6/2) to the hospital for treating the injured and getting her dying declaration recorded. P.W.17 was the Asst. Surgeon attached to the District Headquarters Hospital, Sundargarh. According to him, he admitted the victim woman in the hospital at 11.45 P.M. on 29.3.1999 in the female surgical ward and prepared the indoor ticket (Ext.5). It is further stated by him that the patient was severely burnt, but she was conscious. Her pulse was 88 and blood pressure was 120/88. Chest and lungs were clear and heart was normal. In the same night on police requisition he prepared the injury report (Ext.6). Thereafter, he recorded the dying declaration of the injured victim vide Ext.7 as he apprehended that the patient might die at any moment. The dying declaration was recorded verbatim what the patient expressed at that time. It is also the testimony of P.W.17 that the injured was conscious and in a fit condition to give her dying declaration. In cross-examination, he has stated that he was on emergency duty in the hospital at the relevant time and finding the extensive burn injuries and the critical condition of the patient, he felt that it was a case of emergency and therefore, he recorded the dying declaration of the patient and did not send any requisition to the Magistrate. After recording, P.W.17 put his signature on Ext.7 and got the LTI of the patient appended on Ext.7 through the hospital Peon. It is fairly admitted by him that he has not mentioned on Ext.7 any certificate to the effect that the patient was in a fit 3 condition to give any dying declaration. Learned counsel for the appellant has contended that when the patient had severe and extensive burn injuries, which is undisputedly between 70% to 90%, and P.W.17 having not appended any endorsement on Ext.7 to the effect that the patient was in a fit condition to make a statement, Ext.7 cannot be accepted as a true dying declaration. The contention is not tenable inasmuch as there is no legal requirement for a certificate of the Medical Officer in each and every case. In the instant case, the bed head ticket (Ext.5) of the injured reveals that at the time of her admission in the hospital on the date of occurrence, she was conscious and her pulse rate and blood pressure were normal. To the same effect is the oral evidence of P.W.17, who himself recorded the dying declaration. Therefore, absence of any endorsement or certificate on the body of Ext.7 will not affect the dying declaration adversely so as to make it unworthy of credence (see (2003) 6 SCC 443; P.V. Radhakrishna v. State of Karnataka and (2007) 12 SCC 754; State of Rajasthan v. Parthu). There is no material on record to show that the dying declaration (Ext.7) was the result or product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily, inasmuch as, it receives corroboration from the evidence of P.Ws.1, 5, 7 and 8 and also from the testimony of the post occurrence witnesses, who deposed that on arrival at the spot, they learnt from other witnesses gathered earlier that the deceased informed that she was set on fire by her husband, as because she gave Rs.100/- to her nephew (P.W.3). The motive for the crime which has been described in the dying declaration also receives corroboration from the testimony of P.W.3, who stated that his aunt-Kamala (deceased) gave him Rs.100/- on the previous day of the occurrence for his medical treatment and with that money he came to the District Headquarters Hospital, Sundargarh for treatment and got himself admitted as indoor patient in the hospital and stayed for four days. He saw her aunt-Kamala in the hospital when she was brought there for treatment with burn injuries. At the time she came to the hospital, she was conscious. Admittedly, Kamala succumbed to the burn injuries in the intervening night of 30/31.3.1999. In the circumstances, there is no infirmity in the dying declaration which the trial court has accepted as a piece of credible and trustworthy evidence. 9. Apart from the clear, cogent and trustworthy dying declaration which gets corroboration from the other oral testimony of witnesses, it is also established from the evidence that the appellant absconded soon after setting the deceased on fire and despite repeated search he could be apprehended until 14.4.1999, i.e., seventeen days after the occurrence when he was found in another village. This is a strong incriminating circumstance against the appellant. Besides, though a plea was taken by the appellant that on the date of occurrence he was not present in the house but had gone to another village, namely, Karamdihi to work, the same has not been proved. Rather, the appellant, a daily labourer staying away from home for seventeen days and being apprehended from another place falsifies the defence plea. 10. In the light of the aforesaid discussions, we find no infirmity in the impugned order of conviction and sentence. The JCRA has no merit and is accordingly dismissed. Appeal dismissed. 4 5