Narasingh Challan vs State of Orissa

Raghubir Dash, J.—This appeal is in challenge of the judgment of conviction and sentence dated 27.10.2006 passed by the learned Ad hoc Additional Sessions Judge (FTC), Malkangiri in Criminal Trial No. 33/34 of 2006 arising out of G.R. Case No. 390 of 2005 in the Court of S.D.J.M., Malkangiri corresponding to Matheli P.S. Case No. 104 of 2005 finding the appellant guilty under Section 302 Cr.P.C. and sentencing him to undergo imprisonment for life with fine of Rs. 5000/-, in default, to undergo R.I. for six months. The appellant is the husband and the deceased is his wife. Deceased brother lodged F.I.R. on 5.11.2005 alleging that spouses used to quarrel over the husband not paying any heed to the wife''s demand that her husband should stop looking after his deceased younger brother''s widow and child and, ultimately, on 5.11.2005 while the wife was sitting near the door of their house, the husband started quarreling with her asking her to leave the house and on her denial he poured kerosene on her and set her on fire. The deceased started shouting and ran to the house of one Gurubari Chalan who extinguish the fire by pouring water on her.

The police registered a case under Section 307/326/506 of I.P.C. and took up investigation. Since the deceased was already admitted to the C.H.C., Matheli for treatment, The police issued injury requisition along with a request to the Medical Officer of the C.H.C. to record dying declaration of the deceased. On the same day the deceased''s dying declaration was recorded. After examination of some witnesses, the appellant was arrested on the same day. Since the condition of the deceased deteriorated she was shifted to District Headquarters Hospital, Koraput on the next day, where she was under treatment as an indoor patient till 20.11.2005. On 20.11.2005 at about 4.30 P.M. she was declared dead. Postmortem examination was conducted on 21.11.2005. The cause of death was stated to be septicaemic shock arising from 60% burn injuries she had received. The case was then converted to one under Section 302 of I.P.C. On completion of investigation the police submitted charge-sheet on 6.03.2006 under Section 498-A and 302 of I.P.C. After supply of copy of police paper the learned S.D.J.M., Malkangiri committed the case to the Court of Sessions on 28.03.2006. After commitment, the case was transferred to the Court of Additional District Judge (FTC), Malkangiri who framed charge under Section 498-A and 302 of I.P.C. Prosecution examined as many as 16 witnesses and on behalf of the defence three witnesses were examined. For the prosecution, documents exhibited have been marked as exhibits from Ext. 1 to Ext. 21. After recording of evidence and hearing of argument the learned Sessions Court found the charge under Section 498-A of I.P.C. not prove whereas the charge under Section 302 of I.P.C. was successfully established beyond all reasonable doubt.

Learned counsel for the appellant submits that the trial Court has failed to properly appreciate the evidence on the dying declaration of the deceased which, if considered along with the other facts and circumstances available, is devoid of any credibility. It is also contended that the learned trial Court failed to properly appreciate the evidence adduced by the defence as well as other evidence which supports the defence plea that it was the deceased who poured kerosene on her person and set herself on fire and getting information the appellant, who was then absent in his house, rushed to the spot and tried to extinguish the fire and in that process he himself received some burn injuries.

Learned Counsel for the State on the other hand supports the findings rendered by the learned trial Court. He submits that the evidence of P.W.6, the informant, corroborated by the dying declaration recorded by a doctor stands undemolished and the trial Court has committed no error either in fact or in law in convicting the appellant.

In view of the rival submissions made by both sides the evidences on record are required to be analyzed in order to find out whether the finding of the learned trial Court is sustainable or not.

Admittedly, the entire prosecution case rests on the reliability of prosecution evidence on dying declaration. Ext. 3 is the dying declaration recorded by one doctor at the C.H.C., Matheli. On police requisition this dying declaration was recorded sometime after the deceased was taken to the C.H.C. with nearly 50% burn injury as revealed from the injury report marked as Ext. 14/1 which is issued by the same doctor on the same date i.e. on 5.11.2005. This injury report reflects that the deceased had received burn injury "distributed from head and face to abdomen region involving head and face, front of chest, back of chest, front of abdomen (partly) and back of abdomen, both upper limbs". The recorded dying declaration reflects that on being asked by the doctor as to what type of chemical her husband used and for what reason the deceased answered saying that while she was sitting on her verandah her husband suddenly poured kerosene over her body and set fire without any reason. It appears the L.T.I. of the deceased has been taken on this recorded dying declaration. The dying declaration is said to have been recorded in presence of witnesses Gurubari Chalan (D.W.2) and Trinath Khura (P.W.4). But, both the witnesses deny that the dying declaration was recorded in their presence. The doctor who recorded the dying declaration could not be examined as he, reportedly, died in a road accident before he could be examined as a witness. P.W.10, another doctor of the C.H.C., who was working with the doctor who had recorded the dying declaration, has been examined as P.W.10 to prove the recorded dying declaration. It is pointed out that there is no certificate on the body of the recorded dying declaration that it was read over and explained to the deceased and that the deceased at the time of recording of the dying declaration was in mentally fit condition.

Apart from the recorded dying declaration there is evidence of P.W.6 on which the prosecution has placed immense reliance. P.W.6 is deceased''s brother. He is the informant as well. He claims that he was first informed by one Hatiram Naik that the appellant by pouring kerosene over the deceased lit fire with the help of a burning matchstick causing burn injuries for which the deceased had already been shifted to Pangam hospital. He further claims that immediately he rushed to Pangam C.H.C. and saw his sister in a critical condition. He further says that though her condition was critical, she was in a fit state of mind and was able to talk. He has further claimed that seeing him, his sister stated that the appellant quarreled with her, asked her to leave the house and when she refused to do so the appellant poured kerosene on her and set her on fire by means of a matchstick.

The deceased was shifted to District Headquarters Hospital, Koraput on the next day i.e. on 6.11.2005. P.W.11, a doctor who attended to the deceased on 6.11.2005 at District Headquarters Hospital, Koraput, has stated that the patient (deceased) was under treatment in the District Headquarters Hospital till she expired on 20.11.2005. According to him, the patient was conscious during the period of her treatment and her mental condition was fit till 17.11.2005. Further, he has stated that the face and chest of the deceased was completely burnt and she was in great pain. He further says that the condition of the patient was serious when she was received in the District Headquarters Hospital. P.W.12, another doctor who attended to the victim in the District Headquarters Hospital has stated that on 17.11.2005 when he examined the victim the latter was found to be stable and mentally fit, though she was confusing at times.

P.Ws. 1 and 2, who have turned hostile and allowed to be examined under Section 154 of Evidence Act, have stated that they were present with the deceased in the C.H.C. P.W.1 says that when she wanted to know the truth from the deceased the latter could not speak anything about the occurrence. P.W.2 says that the deceased was not in a condition to hear anything and though at times she used to speak feebly but the words were intelligible. P.W.3, appellant''s brother, has stated that while undergoing treatment the deceased was not in a condition to speak anything. P.W.4 in whose presence the dying declaration is said to have been recorded by the doctor has stated that the deceased was not in a position to speak anything. This witness admits his signature on the recorded dying declaration but does not admit that the deceased''s dying declaration was recorded by the doctor in his presence. Yet the prosecution did not seek leave of the Court to examine this witness under Section 154 of the Evidence Act. On 4.03.2006 statement of this witness was recorded under Section 164 Cr.P.C. It is marked Ext. 6. His statement under Section 164 Cr.P.C. does not reveal that he made any statement about the dying declaration.

Though during his examination under Section 313 Cr.P.C. the appellant did not take any plea other than plea of false prosecution he has come forward to adduce evidence. Examined as D.W.1, he has stated that quarrel between him and his wife (the deceased) used to take place and his deceased wife use to threaten him saying that he would either leave his company or would commit suicide if he would not stop paying for the upkeep of his brother''s widow and minor child. He has further stated that at the time of incident he was in his pan shop which is about 300 meters away from his house. On being informed by a small boy that his wife had set herself on fire he rushed to his house and tried to save his wife by extinguishing the fire. He claims that in the process of extinguishing the fire he sustained burn injuries. Ext-13 is the injury report in respect of the appellant which reflects that the appellant had sustained burn injuries over both of his upper limbs on flexor aspect extending from arms to fingers as well as over forehead, partly over zygoma of right side and tip of nose, caused by dry heat. It is not in dispute that the appellant and the deceased were examined on 5.11.2005 by the same doctor and their injury reports reveal that both of them had sustained burn injuries within 12 hours of their examination. The appellant was examined at 2.00 P.M. and the deceased at 3.00 P.M.

As already stated, the prosecution case entirely rests on the ''dying declaration'' evidence. On the acceptability of a dying declaration it is observed by the Apex Court in Laxman v. State of Moharastra (2002) 23 OCR (SC) 662 as follows:--

"The Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration should look up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious stage to make the declaration, the medical opinion will not prevail, nor can it be state that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable."

In Khushal Rao Vs. The State of Bombay, referred to in 2003 (1) Crimes 162 it is observed:--

"There is no absolute rule of law or even a rule of prudence which has ripened into a rule of law that a dying declaration unless corroborated upon and made the basis of a conviction. Keeping these principles of mind we shall analyze the evidence on dying declaration available in this case."

First, we shall deal with the recorded dying declaration-Ext. 3. As already stated the witnesses in whose presence it was allegedly recorded have denied that the dying declaration was recorded by the doctor in their presence. The doctor who recorded it having died he could not be examined as a witness. Thus the dying declaration is not proved by the person who recorded it or in whose presence it was recorded. No doubt, another doctor, who is acquainted with the handwriting and signature of the doctor, who has recorded the dying declaration, has been examined to mark the dying declaration as an exhibit. But he is not competent to depose as to under what circumstances it was recorded, what was the mental condition of the person who made the statement, who else were present when the statement was made by the deceased, and the like. Thus the defence was not in a position to subject the doctor recording the dying declaration to the test of cross-examination. Under such circumstances absence of a certificate in the recorded dying declaration that the maker of the statement was in a fit mental condition to make the statement assumes great significance. Since the doctor recording the statement is dead and there is absence of such a certificate there is no expert opinion as to what was the mental condition of the deceased at the time her statement was recorded vide Ext. 3. Even other witnesses examined in this case have not categorically stated that when the statement was recorded the deceased was in a fit mental condition. Rather P.W.4 and D.W.2 in whose presence it is claimed to have been recorded have stated that the deceased was not in a position to speak. P.W.4 has not been declared hostile. That apart, though his statement under Section 164 Cr.P.C. was recorded, which is marked Ext. 6, he has not stated it before the Magistrate that in his presence dying declaration was recorded by the doctor. No doubt, D.W.2 is an interested witness. She is the widow of the appellant''s younger brother. However, though she is an illiterate tribal women, nothing could be elicited from her during her cross-examination to discredit her testimony. In cross-examination she has expressed her inability to say as to what the deceased had stated before the doctor. It is not suggested to her that in her presence the deceased made the statement vide Ext. 3 and she put her L.T.I. therein being aware of the correctness of the recorded statement. Thus the prosecution has failed to prove that at the time the dying declaration is said to have been recorded the deceased was in a fit mental condition to make the statement. Learned trial Court has banked upon the testimony of those doctors who had attended the deceased during her admission in the District Headquarters Hospital, Koraput. They are P.Ws.11 and 12. They have stated that the deceased was conscious and his mental condition was fit till 17.11.2005. But their evidence is quite irrelevant so far the credibility of the dying declaration recorded on 5.11.2005 is concerned. It is true that the deceased survived for about 15 days after having suffered 50% to 60% burn injuries. It is quite possible that while under treatment in the District Headquarter Hospital her condition gradually became stable. But, the dying declaration vide Ext. 3 was recorded on the very day of the incident. It is most probable that the deceased received instantaneous shock due to the burn injuries and because of shock and pain she was not able to speak. The witnesses are quite believable who have stated that the deceased was not in a position to speak. Almost the entire body above the waist of the deceased including head and face was severely burnt. The deceased''s brother has stated that due to such injuries it was difficult to recognize her. Thus considering the nature and gravity of injury suffered by the deceased and considering that on the same day the incident had occurred, there is great doubt that she was in a condition to make the declaration.

Apart from what has been stated above, there are some other materials on record that make the recorded dying declaration quite suspicious. The doctor who conducted medical examination of the deceased also recorded her dying declaration on the same date. But while the injury report was received by the I.O. on 15.11.05 the dying declaration was not received by him until it is shown to have been seized on 3.03.2006 under seizure list vide Ext. 5. The case diary is totally silent as to what follow up steps the I.O. had taken with regard to the requisition he had issued to record the dying declaration till the date of the seizure. In his deposition the I.O. has not stated as to when he issued requisition to the doctor for recording of the dying declaration of the deceased. In the beginning of the case diary the I.O. has stated that since the condition of the injured/deceased was serious she could not say anything about her injury. If such was her condition, then it is doubtful if she could make any statement before the doctor on the same day. By the time the F.I.R. was lodged the deceased was already admitted in C.H.C. Matheli. The case diary does not reveal that on receipt of the F.I.R. the I.O. had ever made visit to either the C.H.C. or to the District Headquarters Hospital, Koraput though the victim underwent treatment in the Hospital for about two weeks. Till the recorded dying declaration was seized on 3.03.2006, the I.O. had no knowledge as to whether the victim''s dying declaration could be recorded or not. Had he gone to the hospital at Koraput he could have ascertained the victim''s health condition and, if found to be in a stable condition, could have got her dying declaration recorded by either a gazetted officer or a Magistrate or a doctor available at Koraput.

The dying declaration-Ext. 3 reveal that only one question was asked by the doctor to the victim which is quite objectionable. Presupposing that the victim''s husband had set fire on the deceased, the doctor has asked her as to what type of chemical her husband had used. When it is the prosecution case that because of quarrel between the husband and wife over the latter''s keeping relation with her deceased brother''s wife he set her on fire, in the recorded dying declaration the victim has allegedly stated that her husband did so without any reason. P.W.6, on the other hand, has stated that on being asked the victim told him that due to the aforestated dispute between the husband and wife kerosene was poured on her and she was burnt by her husband. Both the statements are said to have been made on the same date. But, one contradicts the other on the motive part. For the aforestated reasons the dying declaration recorded by the doctor appears to be under suspicious circumstances.

Also the evidence of P.W.6 on the dying declaration cannot be said to be reliable and trustworthy. P.W.6 is none other than the deceased''s brother. It is already observed that there is lack of evidence showing that the deceased was in a fit mental condition to make any statement as on the date of the incident. But, P.W.6 has claimed the deceased to have made a very lengthy statement as to why and how she was burnt. Under the circumstances already discussed, it is not believable that the deceased could have made such a lengthy statement to P.W.6. Though P.W.6 claims that he attended to the victim during her treatment at District Headquarters Hospital, Koraput he has not claimed that on any day subsequent to the occurrence day the deceased had made any statement as to why and how she was burnt.

In this case, the defence is found to have made out a probable case which is capable of negative the prosecution case. There is evidence on record that the appellant while trying to save the victim by extinguishing the fire received burn injuries on his person. It is also on record that the appellant along with others had taken the deceased to the hospital. It is also stated by D.Ws. 1 and 2 as well as some prosecution witnesses that she was having frequent quarrel with the appellant over the maintenance of the widow and minor child of appellant''s younger brother and the deceased used to threaten saying that she would either go away or put an end to her life if the appellant did not stop feeding the widow and the child from his pocket. That apart, the witnesses who are appellant''s neighbours have deposed that when the deceased caught fire the appellant was not in his house and that he came after the fire and struggled to put out the flame. The evidence of defence witnesses including the appellant''s could not be demolished and there is no reason why they should be disbelieved. Under such circumstances the prosecution cannot be said to have proved this case beyond reasonable doubt. In the result, we allow the appeal. The impugned judgment convicting the Appellant for the offence under Section 302 I.P.C. and sentencing him to undergo life imprisonment as well as sentence of fine is set aside. The Appellant-accused is acquitted of the charge under Section 302 I.P.C. His bail bonds stand discharged.