Md. Wasim vs State Of Odisha

S.K. Panigrahi, J

The petitioner has filed the instant application under Section 439 of Cr. P.C seeking bail in connection with Bahalda P.S. Case No.72 of 2019

corresponding to G.R. Case No.619 of 2019 pending before the court of the learned S.D.J.M., Rairangpur. The petitioner herein is the accused in

connection with alleged commission of offences punishable under Sections 498(A), 304(B), 302, 34 of the I.P.C. read with Section 4 of the Dowry

Prohibition Act.

The case of the prosecution is that the marriage was solemnised between the deceased and the petitioner/Abdul Wasim, S/o Abdul Mashid of

village Baddundu three years ago. After marriage, the deceased was subjected to cruelty for demand of dowry. On 15.11.2019 the petitioner and the

deceased had a severe quarrel. On 16.11.2019 at about 4 A.M., the petitioner poured kerosene over the body of the deceased and set her ablazed,

subsequent to which, she succumbed to death in the hospital. Thereafter, the informant (brother of the deceased) lodged the FIR in the Bahalda Police

Station.

3.Heard Mr. S. S. Ray, learned counsel appearing for the petitioner and Mr. Manoj Kumar Mohanty, learned Additional Standing Counsel for the

State and perused the case records pertaining to the instant case.

Learned counsel for the petitioner has submitted that the petitioner has been falsely implicated in the case and the prosecution has failed to establish

a prima facie case against the petitioner. The allegations as stated in the FIR are omnibus in nature and there is absolutely no allegation of any specific

overt act against the present petitioner. The dying declaration recorded by Senior Medical Officer clarifies that she was cutting onions in the kitchen

while the incident took place and there was no person nearby the victim. Subsequently, the kerosene jerrycan fell down over the gas and set fire.

Moreover, the statements of material witnesses show that at the time of the occurrence, the accused had been to nearby pond to take a bath.

Therefore, there is no ingredient of Section 302 of IPC present in this case. Hence, he may be granted bail.

5.Learned counsel for the State submits that at the time of occurrence of the incident i.e. at 4 A.M., which is quite early in the morning and the

statements of witnesses in support of his alibi seems improbable considering the difficulty in availability of witnesses at such an early morning in the

Winter season. Further, he has contended that the dying declaration recorded by the Medical Officer is dubious in nature as it has been recorded in a

questionnaire form which is not the standard method. He has further emphasised the fact that the I.O. has also not relied on the dying declaration and

has attached Section 302 IPC in the charge sheet. In view of these, the bail petition deserves to be rejected.

6.Heard learned counsel for the parties at length. The circumstances though look suspicious but the declaration made by the deceased under Section

32 of the Evidence Act is admissible in evidence. In K. Ramachandra Reddy and Anr. v. The Public Prosecutor (1976) 3 SCC 618., it was held that a

great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a

case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring,

prompting or a product of his imagination. It was further held that the Court must be satisfied that the deceased was in a fit state of mind to make the

statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence

or rancour. Once the Court is satisfied that the dying declaration is true and voluntary, it can be sufficient to find the conviction even without any

further corroboration.

7.In State of Uttar Pradesh v. Ram Sagar Yadav (1985) 1 SCC 552, the Court speaking through Chandrachud, C.J. iterated that:

“It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. See Khushal Rao v. State of Bombay AIR

1958 SC 22.; Harbans Singh v. State of Punjab AIR 1962 SC 439 and Gopal Singh v. State of M.P. 1972(3) SCC 268. There is not even a rule of prudence which

has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out

whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or

convincing that the Court may, for its assurance, look for corroboration to the dying declaration.â€​

3 In K.R. Reddy v. Public Prosecutor AIR1976SC1994, evidentiary value of dying declaration was observed as under:

“Para 6.The dying declaration is undoubtedly admissible under section 32 & not being statement on oath so that its truth could be tested by cross-

examination, the court has to apply the scrutiny & the closest circumspection of the statement before acting upon it. While great solemnity and sanctity is

attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to connect a case as to implicate an innocent person, yet

the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The court must be

satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe & identify his assailants & that

he was making the statement without any influence or rancor. Once the court is satisfied that the dying declaration is true & voluntary, it can be sufficient to

found the conviction even without further corroboration.â€​

8.In the present case, the dying declaration recorded by the Senior Medical Officer clearly indicates that no one was present with the deceased when

the incident occurred and that the kerosene jerrycan fell over the gas and caught fire. This has been further corroborated by the statement of the

witnesses wherein they have stated that the accused was not in the house when the incident occurred.

7 9.The learned Additional Sessions Judge, Rairangpur has relied on the contention of the Public Prosecutor that dying declaration recorded by the

Medical Officer is dubious in nature as it has been recorded in a questionnaire form which is not the standard method. However, it is a settled position

of law that a dying declaration should always be recorded in a questionnaire form. In the case of Harshad @ Hasmukh Bhanabhai v. State of Gujarat

1999 (2) GLR 182, the Gujarat High Court has stated that:

“Para 41. The circumstances which lend authenticity and assurance to a dying declaration are as under:

(i) That the dying declaration, preferably, be recorded in question-answer form and as far as practicable in the words of the declarant which depends the oral

testimony which may suffer from various human behavioural discrepancies and mistakes including failure of memory and human character.

(ii) That in order to test the reliability of the dying declaration, the Court is obliged to keep in mind the circumstances like the opportunity of the dying man for

observation, for example, whether there was sufficient light or not if the crime is committed, at night, whether the declarant was in a position to identify the

assailants, whether he was in good mental faculty to remember the incident and certain circumstances beyond his control on account of mental and physical

position as then prevailed.

(iii) That his statement was made at the earliest available opportunity without any help or aid or tutoring, he can make several dying declarations if he is in a

mentally fit state of condition to make and it may happen that some discrepancy or some deficiency may enter into the dying declaration if more than one dying

declaration are taken or relied on. It has also to be shown that it has been signified from the record that it was his own version which was uninfluenced by any

other source and it was his truthful, voluntary assertion of the incident.

(iv) That the dying declaration may be oral or written. In case dying declaration is recorded by an authorised officer like the Executive Magistrate, it can be

relied upon if he has properly recorded the same after taking all requisite precautions.â€​

But this aspect requires a thorough discussion through trial and at this stage no clear position emerges unless trial is conducted.

10.In Khushal Rao vs. The State of Bombay (1958) SCR 552 t,he Apex Court has laid down, inter alia, that a dying declaration which was recorded

by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and as far as practicable, in the words of the

maker of the declaration 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. Additionally, in the case of State Delhi (Administration) vs. Laxman Kumar & Ors. (1985) 4 SCC

476, it was held that:

“Para 26.This Court pointed out in Khushal Rao (1958) SCR 552 (supra), that a dying declaration stands on the same footing as another piece of evidence

and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; that a dying declaration

which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the

words of the maker of the declaration, 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, and that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances

like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of

the man of remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has

been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been

made at the earliest opportunity and was not the result of tutoring by interested parties.â€​

11.Having considered the matter in the aforesaid perspective and guided by the precedents cited hereinabove, this Court allows the prayer of the

petitioner. Accordingly, the Court in seisin over the matter will enlarge the petitioner on bail imposing some stringent terms and conditions as deems fit

and proper with further condition that he will cooperate with the investigation and shall not mis-utilise the liberty granted to him.

12.However, it is made clear that any of the observations made hereinabove with respect to the fact of the case, shall not come in the way or

prejudicially affect the fair trial of the present case.

The Bail Application is accordingly disposed of.