PRADIP MOHANTY, J & B.K.NAYAK, J. CRA. NO.212 OF 1996 (Decided on 17.01.2011). PRAFULLA KU. PANDA @ BHALU ……...Appellant. .Vrs. STATE OF ORISSA ……….Respondent EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – S.32. For Appellant - M/s. S.D.Das, S.K.Samantary, A.K.Choudhury, D.Dhar, A.K.Nayak, L.Samantaray, B.K.Sinha, A.Mohanty. For Respondent - Mr. Soubhagya Ketan Nayak (Additional Govt. Advocate) PRADIP MOHANTY, J. This Criminal Appeal is directed against the judgment and order dated 24.7.1996 passed by the learned Additional Sessions Judge, Berhampur in S.C. No.30 of 1995 (S.C. No.352/95 GDC) convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution, in short, is that on 14.6.1995, P.W.17, who is the father of the deceased, lodged information at Baidyanathpur P.S. stating therein that his daughter (deceased) had married to the appellant two years ago. At the time of marriage, he had given some dowry according to his capacity to the appellant. Soon after the marriage, the deceased along with the appellant was staying jointly with her parents-in-law. After some days, the appellant started assaulting the deceased by taking liquor. Since the appellant assaulted his elder brother, last year, the elder and younger brothers of the appellant left the deceased in the house of her father (informant) and, thereafter, they became separate from the appellant. When the mother- in-law requested the informant, he allowed the deceased to come to the house of the appellant. Thereafter, the appellant used to assault the deceased. On 14.6.95, after getting information, the informant went to medical and found his daughter completely burnt and unable to say anything. At the medical, the informant got information from the local people that on 13.6.95 at about 9.00 PM, the appellant poured kerosene on the person of the deceased and set her body into fire in order to kill her. The deceased sustained burn injuries throughout her body and when she cried for help, the neighbours came and extinguished the fire. The deceased succumbed to injury on 15.06.1995 at the hospital. During investigation police visited the spot and hospital, made inquest over the dead body, sent the same for post mortem and after completion of all the formalities filed charge-sheet against the appellant under Sections 302/498-A, IPC. 3. The plea of the appellant is of complete denial of the allegations. 4. In order to prove its case, the prosecution examined as many as seventeen witnesses including the doctor and the I.O. and exhibited ten documents. The defence examined none. 5. Learned Additional Sessions Judge after conclusion of the trial while acquitting the appellant of the charge under Section 498-A, IPC convicted him under Section 302, IPC basing upon the dying declaration (Ext.17) and sentenced him as already stated hereinbefore. 6. Miss. Sonita Biswal, learned counsel for the appellant challenged the judgment of conviction mainly on the following grounds: “(i) Absolutely there is no clinching evidence to convict the present appellant under Section 302 IPC and the dying declaration basing upon which the trial court has convicted the appellant is not a valid document; (ii) Inquest report (Ext.2) does not show anything about the suspicious circumstances or the unnatural death or the cause of death; and (iii) Ext.10 has not been proved by the prosecution and conviction cannot be recorded solely basing upon the dying declaration without any corroboration. 7. Mr. Nayak, learned Additional Government Advocate contended that the dying declaration (Ext.17) has been recorded by the IO in presence of P.Ws.5, 14 & 17. Ext.17 has been proved by the IO and corroborated by the above witnesses. Conviction can be made solely on the basis of the dying declaration. P.W.10 is a child witness, who specifically stated before the IO implicating the present appellant with the crime. Ext.10, the statement of P.W.10, was recorded by the Judicial Magistrate (P.W.9) and he proved the same. The motive has been proved by the father of the deceased (P.W.17). Therefore, the trial court has not committed any illegality in convicting the present appellant under Section 302 I.P.C. 8. Perused the LCR. P.W.1 is the doctor, who treated the deceased first and specifically stated that on 13.6.1995 the deceased was admitted to the female surgical ward with 80% burn injuries. She was semi-conscious, disoriented and was in peripheral circulatory failure. The burn injuries were on the chest, both upper limbs, chest wall, back, both lower limbs and perineum. The condition of the deceased never improved and she was not in a fit stage to give dying declaration although he moved for requisition of a Magistrate. She expired on 15.9.96. In cross-examination, a suggestion was made to which he admitted that accidental cases are very common especially among women and children on account of their loose garments catching fire while sitting near the chulla. P.W.2 is the Scientific Officer, who visited the spot and took the photographs of the room and submitted his report vide Ext.3. P.W.3 has scribed the FIR at the instruction of the informant. In cross-examination, he has admitted that he had not endorsed that he read over and explained the contents to the informant. P.W.4 is a post occurrence witness, whose house is adjacent to the house of the appellant. In his chief, he admitted that he did not know how the deceased died and she sustained burn injuries inside her house. In cross-examination, he admitted that there was no quarrel between 2 the deceased and the appellant and he was absent when his wife sustained burn injuries. Later he came in a tempo and took his wife to the hospital where she died. P.W.5 is another post occurrence witness and neighbour of the accused. He deposed that hearing hue and cry at about 9.00 PM in the house of the accused he went there and found the deceased was on ablaze. When they asked, the deceased slowly replied that while taking kerosene the same poured on her and her body came in contact with fire from the chula. Leading questions were put to this witness but he denied his knowledge. In cross-examination, he specifically stated that he came from outside and tried to put off the fire in course of which he sustained burn injuries on his hand. He also admitted that both the appellant and deceased were living happily in the house. P.W.6 is another post-occurrence and independent witness. He in his examination-in-chief has stated that on the date of occurrence he found gathering near the house of the appellant. He went there being called by others and found the appellant and his neighbour extinguishing fire from the house of the appellant. The deceased was found burning and the appellant extinguished fire from her body. He took the injured to the hospital in a tempo and she was not able to talk. This witness also declared hostile by the prosecution and leading questions were put to him but he denied the same. P.W.7 is a seizure witness and proved Ext.5, the seizure list, and Ext.6, the list of dowry articles. P.W.8 is also a post occurrence witness. He specifically stated that there was a gathering in the house of the accused. He went there and found the deceased with burn injuries. The accused was not there and arrived at the house at that time. The accused and other local people extinguished fire from the body of the deceased and took her to the hospital. This witness also declared hostile and leading questions were put to him but he denied the same. In cross-examination by the prosecution, he stated that he put his signature on Exts.7, 8 and 9 but he did not know anything about the seizure of any dowry articles. In cross-examination by the defence, he admitted that he signed at the police station at the instance of the police personnel. He also stated that accused and his wife were living happily in their house. P.W.9 is the J.M.S.C. who recorded the statement of P.W.10 under section 164 Cr.P.C. and also proved Ext.10. He also stated that P.W.10 signed in his presence. In cross-examination, he admitted that he had not recorded the statement of P.W.10 in verbatim though he had ascertained the fact from him. P.W.10 is the child witness, who turned hostile and leading questions were put to him but he denied the same. He also did not admit his signature on Ext.17. P.W.11 is the doctor, who examined the accused and found the following injuries: “(1) Blister 1 c.m. X 0.5 c.m in medial aspect of left little finger at the tip 1st degree of burn with erythematuous changes present in inner border of left palm extending from wrist joint upto the tip of the litter finger adjacent to the blister. 3 Singing of hairs in right side of chest and abdomen present 4 c.m. away from umbilicus in abdomen and 7 c.m. below at the tip of right nipple. (2) Abrasion 2 c.m. X 0.5 c.m. over left clavicle at the outer one-third present.” He opined that injury no.1 could have been caused by coming in contact with dry heat and injury no.2 could have been caused by coming in contact with rough surface. Both the injuries were simple in nature. On the same day, P.W.11 also conducted the post mortem examination over the dead body of the deceased and found the following injuries: “The hairs were singed in frontal scalp region, eye brows, eye lashes and pubic hairs were burnt. The hairs in axilla on either side were in tact. Breasts were engorged and milk was coming out from breasts on pressure. Body does not emit any peculiar smell. Burn injures epidermo-dermal burn covering almost 85 to 90 per cent body surface with blisters present. On removal of the epidermis on places, reddish bare area seen. Burns were more deep on inner aspect of both the thighs, legs, outer aspect of both upper limbs. Burn was less prominent over abdomen and a free area of size 13 cm X 16 cm situated over abdomen extending 1 cm above the umbilicus and 1 cm above symphysis pubis placed transversely. Under surface of both breasts both axillas were free from burn. A patch of size 6 cm X 6 cm was free of burn situated 2 cm above the anal-cleft posteriorly. The burnt area was smeared with carbon shoots.” He opined that all the burn injures were ante mortem in nature and could have been caused by dry heat. The cause of death was due to shock as a result of above burn injuries. In cross-examination, he specifically stated that the injuries observed by him were possible by coming to the close contact or proximity of the flame. P.W.12 is the doctor who assisted P.W.11 in conducting the post-mortem examination over the dead body of the deceased. P.W.13 is a witness to the inquest and the dead body challan under Ext.13 and also a witness to the seizure list (Exts.14 and 15). P.W.14 is a post occurrence witness who also stated that the back door of the house was found open and he along with P.W.5 threw water to put off fire. The appellant came in a Tempo and took the deceased to the medical in that Tempo. He also proved Exts.7, 8, 9, 15 and 16. P.W.15 is the IO who deposed that on 14.06.1995, as per the direction of the I.I.C., he investigated into the matter, examined the informant, visited the spot, requested Scientific Officer to inspect the spot and examined the deceased in the medical college. On arrival at the medical, he found victim was not in a fit state of condition to give answer. He applied to the Sub-Collector, Berhampur to record the dying declaration of the injured lady as her condition was deteriorating at that time by deputing a Magistrate. He also requested the treating doctor to record the dying declaration but as per the opinion of the doctor, the condition of the victim was below normal and the doctor advised not to disturb the victim. Thereafter, he examined the victim and recorded her statement in presence of Mangulu Sahu, Tuna Behera and Simanchal Panigrahi. He had not obtained the LTI/signature as the same was not 4 required under section 161 Cr.P.C. He also examined Mangulu Sahu and Tuna Behera available at site. After completing all formalities, he filed charge-sheet. P.W.16 is the Certificate Officer-cum-Executive Magistrate in whose presence, police conducted inquest over the dead body of the deceased. In cross-examination, he admitted that he cannot say as to whether the name of the father of the deceased finds place in the report or not. P.W.17 is the father of the deceased. He deposed that his daughter came to her matrimonial home after her marriage and used to stay there. His son-in-law used to take liquor at time. He also rebuked him some time for his drinking habit. He stated that one person of their village came to medical and on his return, he informed him about his daughter. He went to the medical and found his daughter with burn injuries through out her body and unable to talk. The family members of the in-law house were present along with some neighbours. Thereafter, he went to the PS and lodged the FIR. FIR corroborated the statement of this witness. In cross-examination, he admitted that the FIR was scribed at the police station and he put his signature and he dictated the FIR at the instruction of the police. 9. On scrutiny of the entire evidence, it is crystal clear that the conviction has been based on the dying declaration (Ext.17). The IO mentioned names of three witnesses in whose presence the statement of the deceased was recorded. Ext.17 bears no signature of those witnesses, namely, Mangulu Sahu, Tuna Behera and Simanchal Panigrahi (father of the deceased). Mangulu Sahu has been examined as P.W.14. In his evidence, he has not whispered a single word about recording of the dying declaration. Similarly, Kuna Behera (P.W.5) has not been examined by the prosecution. All the above witnesses have not stated about the dying declaration. They specifically stated that the deceased was not in a position to give statement. The doctor (P.W.1), who examined the injured, also specifically stated that the deceased was not in a position to give statement and she was semi-conscious. The father of the deceased (P.W.17) admitted the said fact. The IO stated that he applied to the Sub-collector to record the dying declaration of the deceased as her condition was deteriorating at that time. He also requested the treating doctor to record the dying declaration but the doctor said that the condition of the victim was below normal and advised him not to disturb the patient. Thereafter, he recorded the dying declaration in presence of P.Ws.5, 14 and 17. But since none of these witnesses (P.Ws.5, 14 and 17) speaks a single word about the dying declaration, it is difficult to place any reliance on Ext.17. In fact, no corroboration is there with regard to dying declaration. The Magistrate (P.W.9) recorded the statement of P.W.10 under section 164 Cr.P.C. which has been denied by P.W.10 while he was cross-examined by the prosecution. Therefore, his evidence cannot be utilized against the appellant. By referring to a decision in the case of Palak Ram V. State of U.P.; AIR 1974 SC 2165 the Apex Court has held in State of U.P. V. Atar Singh and others; AIR 2008 SC 411 that it would not be prudent to base conviction on a dying declaration made to the investigating officer which is not signed by the person making it and has not been taken in the presence of witnesses. The present case squarely covers by the aforesaid decision. In view of the above, there is absolutely no material to convict the present appellant. Accordingly, the judgment and order dated 24.7.1996 passed by the learned 5 Additional Sessions Judge, Berhampur in S.C. No.30 of 1995 (S.C. No.352/95 GDC) convicting the appellant under section 302 I.P.C. and sentencing him to undergo imprisonment for life is set aside. 10. The Criminal Appeal is accordingly allowed. 6