Orissa Vs. Parasuram Naik  INSC 677
(21 August 1997)
PUNCHHI, S.P. KURDUKAR
criminal appeal by Special Leave is filed by the State of Orissa challenging the judgment and order
of acquittal dated 31.7.84 passed by the High Court of Orissa.
respondent/accused was put up for trial for an offence punishable under Section
302 IPC for committing the murder of his wife, sarita Sahu. The Sessions court
accepted the evidence of dying declarations led by the prosecution being
trustworthy and accordingly convicted the respondent under Section 302 IPC and
sentenced him to suffer life imprisonment. the respondent preferred an appeal
to the High court of Orissa which was allowed by the Learned Division Bench of
the Said High Court holding that the prosecution evidence is not sufficient to
hold the respondent guilty of an offence punishable under Section 302 IPC for
committing the murder of his wife. It is this order of the High Court dated
31.4.84 which is the subject matter of challenge before us.
was alleged by the prosecution that on the fateful night of September 19,1979 when Sarita Sahu (since deceased)
was sleeping with her mother Balmsti Sahuani (P.W.4) in the other varandah of
their house in village Bilaigarh, Distt.
the respondent poured petrol on the body of his wife, sarita Sahu and lit the
fire. Bhadra Sahu, the father of Sarita who was sleeping nearby in the same varandah
woke up and when the saw the blaze of fire he called his wife.
then noticed that Sarita Sahu was completely burnt.
was then taken to the Laing primary Health Centre where she succumbed to the
burn injuries during the same night.
first Information Report came to be lodged. After completing the necessary
investigation the respondent was put up for trial for an offence punishable
under Section 302 IPC.
The respondent denied the charge and pleaded that he is innocent and he has
been falsely implicated in the present crime.
the outset it may be stated that there is no eye witness to the occurrence. The
prosecution mainly relied upon the evidence of oral dying declaration which was
alleged to have been made by Sarita sahu to her mother Balamati Sahuani (P.W.4)
and her elder sister, Malati Sahuani (P.W.5). It is alleged that Sarita also
made a dying declaration which was recorded by Dr. Premananda Pattanaik
may be stated that the factum of death of Sarita Sahu was not challenged before
the courts below Sarita sahu Was not challenged before the courts below as well
as in this court. Dr. Premananda Pattanaik (P.W.1) noted as many as five
injuries on the dead body of Sarita Sahu and opened that she died because of
extensive burn injuries. We however see no reason to interfere with the said finding
Coming to the complicity of the respondent in the present crime as stated
earlier the prosecution mainly relied upon the alleged dying declarations made
by her to her mother, Balmati Sahuani (P.W.4) and sister, Malati Sahuani (P.W.5)
. The High Court after careful Scrutiny of the evidence did not find the same
as credible one and , therefore, held that it could not be the basis of
conviction of the respondent. We have also gone through the evidence of both
these witnesses and are satisfied that the said evidence does not insoire
confidence in us to accept it to be credible. It is the prosecution case that
during the dead hours of the night the occurrence took place when Sarita Sahu,
her mother and father were fast asleep the father of Sarita Sahu (now dead)
when got up, he saw the blaze of fire and called his wife, Balamti Sahuani
(P.W.4). It is true that P.W.4 asserted in her evidence that she saw the
accused when she got up but, however her statement does not inspire confidence
in us. Both these witnesses asserted that Sarita Sahu told them that accused
had poured petrol and set her on fire. It is difficult to accept the evidence
having regard to the extensive burn injuries sustained by Sarita Sahu who died
during the same night. If the evidence of these two witnesses is left out then
the story of the prosecution as regards the alleged oral dying declaration disappears
to the dying declaration (Ext. 4) recorded by Dr. Premananda Pattanaik (P.W.1)
we find that he has admitted in HIS evidence that when Sarita Sahu was brought
to the dispensary she first was given an injection and thereafter her statement
was recorded. He further stated that she was conscious at that time. He also
admitted that she died within 15 minutes after recording her dying declaration
. It is relevant to not trat Dr. Premananda Pattanaik (P.W.1) has not certified
that she was in her full senses and was medically fit to make a statement
although he had certified that she was conscious. Having regard to the fact that
she had sustained extensive burn injuries and died within 15 minutes
immediately after recording the statement, it appears to us that she might not
be in a proper and fit condition to make a statement as regards her cause of
High Court did not feel it safe to rely pool the dying declaration (Ext. 4)
recorded by Dr. Prumananda Pattanaik (P.W.1). Having regard to the facts and
circumstances of the case we also do not think it safe to rely upon the dying
declaration (Ext.4) . the view taken by the High Court cannot be said to be
unreasonable one. In the result the appeal fails and the same is dismissed.