PRADIP MOHANTY, J & B.K.NAYAK, J. CRA NO,225 OF 1996 (Decided on 15.02.2011) ASHOK KUMAR DAS & ANR. ……… Appellants. .Vrs. STATE OF ORISSA ………Respondent. EVIDENCE ACT, 1872 (ACT NO 1 OF 1872) - S.32. CRIMINAL PROCEDURE CODE 1973 ( ACT NO 2 OF 1974) - S.154 For Appellants - M/s. R.K.Pattanaik, S.C.Puspalak, T.K.Sahoo, C.R.Behera, S.S.Jena, P.K.Nayak,S.C.Beura & A.N.Samantaray. For Respondent - Mr. Soubhagya Ketan Nayak (Addl. Govt. Advocate) PRADIP MOHANTY, J. This Criminal Appeal is directed against the judgment and order dated 06/07.08.1996 passed by the learned Additional Sessions Judge, Jajpur in S.T No.522 of 1995 (2/96). Although this appeal was initially filed by three appellants, due to death of appellant no.3-Smt. Sasikala Das on 04.03.1998 it has abated against her and is confined to appellants 1 and 2. 2. The case of the prosecution is that on 30.07.1995, the father of the deceased (P.W.8) lodged an F.I.R. before the I.I.C., Dharmasala Police Station alleging therein that his deceased-daughter had married Ashok Kumar Das (appellant no.1) three years prior to the date of occurrence. He had fulfilled all the demands of the in-laws of his daughter at the time of marriage. But, after marriage the accused persons had been demanding further dowry and on account of non-fulfilment of the same torturing his daughter. On 27.07.1995, the accused persons poured kerosene on his daughter and set her ablaze, for which she sustained severe burn injuries and succumbed to the same while undergoing treatment in the S.C.B. Medical College & Hospital, Cuttack. On receipt of the written report, the I.I.C. registered the case and directed P.W.18 to take up investigation. Accordingly, P.W.18 proceeded with the investigation and ultimately filed charge-sheet under Sections 498-A/302/304-B/34, IPC read with Section 4 of D.P. Act against the appellants 3. The plea of the appellants is that the deceased committed suicide by self immolation as she could not adjust herself in the matrimonial house. 4. In order to prove its case, prosecution examined as many as 18 witnesses including the doctor and the investigating officer and exhibited 15 documents. The defence examined three witnesses in support of its plea. 5. Learned Additional Sessions Judge, who tried the case, acquitted the appellants of the charge under Section 304-B, IPC and Section 4 of the D.P. Act. He, however, convicted all the appellants for commission of the offence under Section 302/34, IPC inter alia basing upon the dying declaration recorded by the Executive Magistrate (P.W.15) and appellant no.1 (Ashok Kumar Das) for commission of offence under Section 498-A, IPC basing upon the evidence of P.Ws.8 and 10, and sentenced all the appellants to undergo rigorous imprisonment for life for the offence under Section 302/34, IPC and appellant no.1 (Ashok Kumar Das) to undergo rigorous imprisonment for six months for the offence under Section 498-A,IPC. 6. Mr. Pattanaik, learned counsel for the appellants assails the conviction of the appellants on the following grounds: (i) Dying declaration recorded by the Executive Magistrate (P.W.15) is not believable and acceptable, since there is no certificate by the doctor that the deceased was in a fit state of mind to give such declaration; (ii) No signature/thumb impression was obtained from the deceased in the dying declaration recorded by P.W.15 nor was the same proved by any independent witness including the staff nurse, who was present at the time of recording of such declaration; (III) There was delay in lodging the FIR and the prosecution failed to explain the same; and (iv) Conviction of appellant no.1 under Section 498-A, IPC is bad in law, since there is no evidence on record that the deceased was subjected to cruelty/harassment by appellant no.1 on account of non-fulfilment of demand for dowry. 7. Mr.Nayak, learned Additional Government Advocate, vehemently contends that the dying declaration (Ext.5) was recorded by the Executive Magistrate (P.W.15) on 31.07.1995 in presence of the parents of the deceased and the independent witnesses. The occurrence took place three and half years after the marriage. P.Ws.8 and 10 have specifically deposed about the cruelty meted out to the deceased by appellant no.1 for non-fulfilment of his demand for a scooter by the parents of the deceased. Therefore, the learned Additional Sessions Judge has rightly convicted the present appellants and as such the impugned judgment and order calls for no interference by this Court. 8. Perused the LCR. P.W.1 is the sister-in-law (JAA) of the deceased. Her evidence is that she had gone to attend the call of nature to the field and on return found the deceased had sustained burn injuries and the villagers were taking her to the hospital. In cross-examination, she stated that none of the accused persons were present in the house and the husband of the deceased was serving as a Clerk in Kabirpur High School. 2 P.W.2 is a seizure witness. He deposed that in his presence police seized the T.V. and other articles given by the parents of the deceased at the time of marriage and he put his signature in the seizure list. However, in cross-examination, he admitted that the contents of the paper had not been read over to him. P.W.3 is a co-villager of the appellants who deposed that when he along with others were playing cards in the village common room, he heard sound ‘MARI GALI, MARI GALI’ and rushed to the house of the appellants and found the deceased was caught by fire. They poured water on her to extinguish the fire and shifted the deceased to Dharmasala PHC. In cross-examination, he admitted that at the time of occurrence the appellant-Ashok had gone to school and no other inmate was present in the house. While carrying the deceased to the hospital, he met appellant-Chandramani on the way at a distance of 1 km from the place of occurrence. He also specifically admitted that the doctor asked the deceased as to how she was burnt to which she replied that she herself poured kerosene on her. He further stated that he had never heard about any cruelty shown to the deceased relating to dowry. P.W.4 is a seizure witness in whose presence police seized one cot, one TV and some utensils under Ext.3. In his examination-in-chief, he has specifically deposed that he cannot say why the articles were seized. In cross-examination, he admitted that he did not know the contents of Ext.3. P.W.5 is the Barber, who stated to have performed his duty in the marriage of the deceased and appellant-Ashok. He deposed that during marriage he had seen that father of the deceased had given five gold rings to appellant-Ashok. P.W.6 is the Priest, who stated to have performed his duty in the marriage of the deceased and appellant-Ashok. P.W.7 is a co-villager whose house is situated near the house of the appellants. He stated that hearing hullah that the deceased was burnt he rushed to the house of the appellants and found the deceased had sustained burn injuries. The deceased was taken to Dharmasala PHC from where she was shifted to Cuttack. In cross-examination, he has stated that on being asked by the doctor as to how she was burnt, the deceased replied that she herself poured kerosene on her body and tried to burn herself. P.W.8 is the informant and father of the deceased. In his examination-in-chief, he stated that at the time of marriage, father-in-law of his deceased daughter (appellant no.2) had demanded a scooter and cash of Rs.25,000/- to which he refused and accordingly the matter was dropped for sometime. But, when appellant no.2 insisted, the demand was settled at cash of Rs.15,000/-, one T.V, gold ornaments and other articles, and the marriage between the deceased and the appellant-Ashok was solemnised. He further deposed that after 3 to 4 months of the marriage the deceased told him that she was not being shown good behaviour by the appellant-Ashok, as the scooter was not given to him. In July, 1995, the brother-in-law of the deceased (Dier) informed him that the deceased caught fire due to leakage of cooking gas and that she was shifted to S.C.B. Medical College, Cuttack. He went to Cuttack and found that the entire body of his daughter was burnt. On 30.7.95, he lodged report (Ext.4) before the police on whose requisition the Magistrate (P.W.15) came and asked his injured daughter about the cause of injuries on her person. In his presence, she told that the 3 appellants poured kerosene on her and set fire to her body. Her statement was reduced to writing by the Magistrate under Ext.5, on which he signed. In cross-examination, he admitted that after getting information he rushed to S.C.B. Medical College, Cuttack and there he found the appellants were present on her side. By then, the deceased was able to talk but she used to lose her sense at times and the said condition continued till her death. He further admitted that at the time of recording of the statement by P.W.15, both the doctor and the nurse were present. P.W.9 is the sister of the deceased who has stated that on getting information about the incident from the younger brother of appellant-Ashok, she intimated the said fact to her father and went to the hospital along with her mother and found that the deceased had sustained burn injuries throughout her body. In her cross-examination, she admitted that she found her sister senseless at the hospital. P.W.10 is the mother of the deceased who corroborated the evidence of P.W.8 with regard to the demand of dowry made by the appellants at the time of marriage. In cross-examination, she admitted that the condition of the deceased was very serious. P.W.11 is the ASI of police then attached to Mangalabag PS who after receiving information from S.C.B. Medical College, Cuttack made a preliminary inquiry, intimated to Dharmasala PS about the death of the deceased and sent the dead body for post- mortem examination. P.W.12 is the constable who guarded the dead body. P.W.13 is the Sr. Clerk of S.C.B. Medical College & Hospital, Cuttack and a witness to the seizure of bed-head ticket and zimanama. P.W.14, who has been examined by the prosecution as a seizure witness, stated that nothing was seized in his presence and that on being asked by police he put his signature on the seizure list (Ext.3). P.W.15 is the Executive Magistrate who has recorded the dying declaration of the deceased. The deceased stated before him that while she was sleeping, appellants poured kerosene and set fire on her body. To the query of P.W.15, the deceased gave the above answer in a feeble voice which was recorded in verbatim in presence of her parents. He also stated that he recorded the statement of the deceased at 6.00 PM and at 6.15 the condition of the deceased deteriorated and she was not able to make any further statement. Her parents, father-in-law and some other co-villagers were present at the time of recording of such statement on which they had signed. In cross- examination, P.W.15 admitted that one Nirupama had put her signature on Ext.5 but he cannot say whether she was a staff nurse or not. The doctor was not present at the time of recording of Ext.5 and he (P.W.15) had not obtained any certificate from the doctor with regard to the fitness of the deceased for recording her statement. He further admitted that he did not obtain the signature/thumb impression of the deceased on Ext.5, as she was not in a proper state of mind by the time of its recording. P.W.16 is the Addl. Tahasildar, Cuttack who held inquest over the dead body and proved inquest report Ext.6. P.W.17 is the doctor, who conducted autopsy over the dead body of the deceased. He opined that all the injuries were ante mortem in nature covering 60-65% 4 of the body and might have been caused by flame and fire. The death was due to shock resulting from the said burn injuries. P.W.18 is the investigating officer, who investigated into the matter, visited the spot, examined the witnesses and seized the kerosene container from the house of the appellants in presence of the witnesses. On 13.9395, H.R.P.C. took charge of the investigation and seized the bed-head ticked and filed charge-sheet after re-examining the witnesses. In cross-examination, he admitted that he examined Nirupama, the staff nurse, and one Jadunath Parida, but said Nirupama and Jadunath were not cited as witnesses by the Inspector, who submitted charge-sheet. It has been elicited from him in cross-examination, that on 31.07.1995, he went to the hospital and found the deceased in an unconscious condition. He has also admitted that P.W.8 had not stated before him that the Magistrate asked the deceased about the cause of her injuries in his presence to which she replied that her father-in-law, mother-in-law and husband had poured kerosene and set fire on her body and that statement was reduced to writing by P.W.15 on which he signed. 9. It is found from analysis of evidence made above that the death of the deceased took place three and half years of her marriage due to burn injuries. When the deceased caught fire, the appellants were not present in the house. Hearing the cry of the deceased, P.Ws.3 and 7 arrived and with the help of other villagers removed her first to Dharmasala PHC and from there to S.C.B. Medical College, Cuttack. As is evident from the impugned judgment, the appellants have been convicted under section 302/34, IPC mainly basing on the dying declaration (Ext.5) recorded by the Executive Magistrate (P.W.15). As it appears, on 31.07.1995 at about 6.00 PM the dying declaration (Ext.5) was recorded by P.W.15 and at that time some of the independent witnesses were present including the staff nurse Nirupama and one Jadunath Parida. But, these two independent witnesses, namely, Nirupama and Jadunath have not been examined by the prosecution to prove Ext.5. No certificate has been obtained from the treating doctor with regard to the fitness of the deceased for giving her statement. On Ext.5, P.W.15, who recorded the statement of the deceased, had given an endorsement that at 6.15 PM deceased was found half conscious (COMA), for which she was not able to put her signature on the dying declaration (Ext.5). Failure to take the thumb impression/signature on the dying declaration makes the same vulnerable. The I.O. admitted that on 31.07.1995 at about 8.15 AM he went to the hospital and found the deceased in half conscious stage. P.W.8 has stated the said fact in the FIR. It has been held by the apex court in the case of Laxman V. State of Maharashtra; AIR 2002 SC 2973 that what is essentially required is that person who records the dying declaration must be satisfied that the deceased was in fit state of mind. In the said case, further it has been held that 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. Therefore, by applying the above ratio, this Court is not inclined to accept the dying declaration as a true and voluntary statement. As regards delay in lodging the FIR, admittedly the occurrence took place on 27.07.1995 and the FIR was lodged on 30.07.1995. In view of the evidence of P.W.8 that he was engaged in the treatment of his daughter and that he could not immediately decide what to do, the delay in lodging the FIR cannot affect the prosecution case. 5 So far as the conviction of appellant-Ashok Kumar Das under Section 498-A, IPC is concerned, there is no direct material against him with regard to subjecting the deceased to cruelty and harassment. 10. In the result, the appeal is allowed and the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Jajpur in S.T No.522 of 1995 (2/96) is set aside and the appellants are acquitted of the charges. Appeal allowed. 6