Moharana Vs. State of Orissa  INSC 1327 (29 July 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising out of S.L.P.
(Crl.) No. 428 of 2009) Sukanti Moharana .... Appellant Versus State of Orissa
MUKUNDAKAM SHARMA, J.
The present appeal is filed against the judgment and order dated
24.06.2008 passed by the Orissa High Court at Cuttack whereby and whereunder
the High Court partly allowed the appeal filed by the appellant herein and set
aside the conviction of the appellant under Sections 304B, 498A of the Indian
Penal Code (for short `the IPC') and Section 4 of the Dowry Prohibition Act,
1961 (for short `the D.P.
convicted her under Section 302 of the IPC and sentenced her to undergo
rigorous imprisonment for life.
In order to appreciate the rival contentions advanced by the
parties and issues involved, it is necessary to set out brief facts of the case
which gave rise to the present criminal appeal:
was solemnized between the deceased Anjali and Benudhar on 15.07.1999. Deceased
Anjali died in the hospital on 14.02.2000 while under treatment for burn
injuries which she had sustained on 08.02.2000.
Moharana, the appellant herein is the wife of the brother of Benudhar, the
husband of the deceased. Informant Kabindra Ojha (PW-1) and Bharati (PW-3) are
the parents of the deceased, Nakafoldi Ojha (PW-4) is the elder brother of PW-1
whereas PW-2 is the wife of PW-4. One Laxmidhar Ojha (PW-5) who was also
examined as a witness is acquainted to brother of PW-1.
The Prosecution case is that at the time of Nirbandha of Benudhar
and deceased Anjali, the appellant and Benudhar demanded dowry, a television,
cash amounting to Rs. 8,000/- and gold ring etc. In response to the aforesaid
demand made, PW-1 gave dowry of cash amounting to Rs. 8,000/-, a portable black
and white T.V. and some gold ornaments at the time of marriage.
It is alleged that Benudhar and appellant demanded a bigger T.V.
and subjected the deceased Anjali to torture in that connection after the
also alleged by the prosecution that there was illicit relationship between the
appellant and Benudhar. The deceased used to complain regarding torture and
cruelty meted out towards her by both Benudhar and appellant as well as their
illicit relationship before her parents and other relatives.
The deceased Anjali had also written a letter to PW-2 which was
exhibited as Ext.2. disclosing her ordeal in the matrimonial home. On
08.02.2000, the parents of the deceased were informed that the deceased with
burn injuries was admitted to Head Quarters Hospital, Dhenkanal. On receipt of
the aforesaid information, the parents alongwith the brother of the deceased
went there and found that the deceased had sustained extensive burn injuries.
Deceased was thereafter shifted to S.C.B. Medical College and Hospital on the
same day for treatment. On 09.02.2000, it is alleged that the deceased regained
her senses and disclosed before PW-1 and other relatives that the appellant has
poured kerosene on her and set her on fire with a matchstick upon which the
informant (PW-1) lodged a first information report (for short `the FIR) (Ext.
1) before the O.I.C., Sadar Police Station, Dhenkanal, who registered the case
for commission of 3 offences under Sections 498A/307/34 of the IPC and Section
4 of the D.P. Act against the appellant and Benudhar.
On receipt of the aforesaid FIR, the case was registered. The
investigation of the case was entrusted to the Sub-Inspector of Police (PW-
12). PW-12 sent a message to Mangalabag Police Station, Cuttack for recording
the dying declaration of the deceased whereupon a Lecturer in the Surgery
Department of S.C.B. Medical College and Hospital, Cuttack (PW- 10) recorded
the dying declaration of the deceased on 10.02.2000 in presence of other
doctors. The said dying declaration was proved and exhibited as Ext. 8 in the
trial. Thereafter, the deceased while under treatment died on 14.02.2000 in the
hospital. After her death an inquest was conducted by PW-12 and post mortem
examination was done by PW-9.
to that, PW-13 took charge of the investigation. PW-13 completed the
investigation and thereafter submitted the chargesheet against the appellant
and Benudhar for commission of offences under Sections 498A/304B and 302 read
with Section 34 of IPC and Section 4 of the D. P.
Both the accused namely the present appellant and Benudhar denied
the charges and claimed to be tried. During the course of the trial number 4 of
witnesses were examined and on completion of the same and after hearing the
parties the trial court passed its judgment and order on 15.02.2005 whereby it
convicted the present appellant under Sections 302, 304B and 498A of IPC and
under Section 4 of the D. P. Act whereas Benudhar was convicted and sentenced
under Sections 304B and 498A IPC as well as under Section 4 of the D. P. Act.
The present appellant Sukanti was sentenced by the trial court to undergo
rigorous imprisonment for life and to pay a fine of Rs. 5,000/- and in default
to undergo rigorous imprisonment for a period of one years for the offence
under Section 302 IPC. Further, she was sentenced to undergo rigorous
imprisonment for a period of 10 years under Section 304B IPC and also to
undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.
1,000/- each in default to undergo rigorous imprisonment for a further period
of three months for the offence under Section 498A IPC and also to undergo
rigorous imprisonment for a period of three months and to pay a fine of Rs.
500/- each, in default to undergo rigorous imprisonment for a period of one
month for the offence under Section 4 of the D. P. Act.
Feeling aggrieved, the present appellant as also Benudhar filed an
appeal in the High Court of Orissa at Cuttack which was partly allowed by the
High Court. The High Court while allowing the said appeal in part, set 5 aside
the conviction and sentence of the appellant under Section 304-B and Section
498A of IPC as well as under Section 4 of the D. P. Act, but conviction and
sentence under Section 302 of IPC was maintained.
So far as Benudhar is concerned his conviction and sentence under
Section 304B and 498A of IPC as well as Section 4 of the D. P. Act was set
aside and he was acquitted. Consequently, the present appeal was filed by the
present appellant on which initially a notice was issued.
The matter was thereafter ordered to be listed for hearing upon
which we heard the learned counsel appearing for the respective parties.
The learned counsel appearing for the appellant submitted that
both the courts below committed an error of fact and also of law in convicting
the appellant. It was submitted that there is no eye witness to the occurrence
and the entire case rests only on the circumstantial evidence and that also on
the alleged dying declaration stated to have been made by the deceased. It was
submitted that one dying declaration was allegedly an oral dying declaration
which was not recorded in writting whereas the second dying declaration
although recorded but the same suffers from many infirmities and therefore, the
same should not have been relied upon and should have 6 been rejected as not
reliable. He very strenuously urged that the said dying declaration did not
have any certificate of the doctor attached to it certifying that the deceased
was in a fit condition to make a statement and also the signature and the thumb
impression of the deceased was not there in the said dying declaration.
The learned counsel for the State on the other hand supported the
order of conviction and sentence. He submitted that both the courts were
correct and justified in relying upon the aforesaid dying declaration which
were recorded by the doctor (PW-10) and also on the oral dying declaration.
Having heard the learned counsel appearing for the parties, we now
proceed to analyse the entire evidence on record so as to ascertain whether or
not the conviction and sentence passed against the appellant would and could be
The marriage between the deceased Anjali and Benudhar was
solemnized on 15.07.1999 and Anjali received the burn injuries on 08.02.2000.
Parents of the deceased were informed of the incident on the same day i.e.
08.02.2000 whereupon they immediately went to the hospital and found that the
deceased was admitted to Head Quarters Hospital, Dhenkanal with extensive burn
injuries. As the injuries were very extensive 7 and grievous in nature
therefore she was shifted to S.C.B. Medical College and Hospital on the same
day for treatment. PW-1, the informant and father of the deceased and PW-3, the
mother of the deceased stated that on 09.02.2000 the deceased regained her
senses and then made a statement before PW-1 and others that appellant Sukanti
poured kerosene on her and set her on fire with a matchstick. The Investigation
Officer (PW-12) also sent a message to Mangalabag Police Station, Cuttack for
recording dying declaration of the deceased whereupon her dying declaration was
recorded by a Lecturer of the Surgery Department of the S.C.B. Medical College
and Hospital, Cuttack on 10.02.2000 in presence of other doctors.
While under treatment in the same hospital, the deceased died on
14.02.2000 and her post-mortem examination was carried out by the doctor namely
PW-9. A perusal of the record would also indicate that the conviction of the
appellant Sukanti for commission of the offence under Section 302 IPC was
ordered on the basis of the dying declarations more particularly relying on the
written dying declaration (Ext. 8). The doctor who recorded her dying
declaration was examined in the trial as PW-10. He had stated in his deposition
that he was attached to S.C.B. Medical College and Hospital, Cuttack as a
Lecturer in Surgery and that the deceased was admitted to Surgical Ward
(Female) on 08.02.2000 on having suffered 90 8 per cent burn injuries. He also
stated that he was associated with the treatment of the deceased till
14.02.2000 and that on 10.02.2000 at 11.20 a.m., he recorded the dying
declaration of the deceased in presence of Professor Amulya Das and two Post
Graduate students. He had also stated clearly in his evidence that the deceased
was mentally clear and was able to make proper statement while making the dying
declaration (Ext. 8) which has been proved in the trial. The PW-10 also
identified the signatures of Professor Amulya Das as well as Dr. R.N. Mahapatra
in whose presence the dying declaration (Ext. 8) was recorded.
The High Court while upholding the conviction and sentence of the
appellant under Section 302 of the Indian Penal Code also held that the dying
declaration (Ext. 8) gets independent corroboration from the oral dying
declaration made by the deceased before her parents i.e. PW-1 and PW-3 as well
as PW-4, PW-5 and PW-6. The said witnesses have testified in their evidence
that on 09.02.2000 at 9 a.m., the deceased got her sense and at about 2 p.m.,
she was able to talk properly. It was stated that on being asked as to how she
sustained burn injuries, the deceased informed PW-1 and PW-3 that the appellant
Sukanti gave her rice to eat and while she was eating, appellant Sukanti poured
kerosene oil on her back side and thereafter lighted her with a matchstick and
when she was engulfed by fire, appellant 9 Sukanti closed the door from
outside. Both PW-1 and PW-3 were subjected to extensive cross-examination but
the aforesaid part of the evidence pertaining to the oral dying declaration
made by the deceased could not be dislodged in any manner in the course of
cross-examination. The FIR (Ext. 1) which was lodged on 09.02.2000, by PW-1
itself also materially corroborates the aforesaid facts contained in the dying
declarations and the evidence of the informant in the court with regard to the
dying declaration made by the deceased implicating appellant Sukanti in causing
burn injuries to her.
Counsel appearing for the appellant Sukanti strenuously urged
before us that both the oral dying declaration allegedly made before PW-1 and
PW-3 and recorded dying declaration allegedly made before doctor are not reliable
and could not be accepted. In support of the said submission, it was submitted
that the dying declaration recorded by the doctor did not contain any
certificate given by the doctor that she was in a stable and fit mental and
physical condition to make such a statement and that the said dying declaration
also did not contain the signature or thumb impression of the deceased. She
also relied upon the evidence of DW-4 and DW-6 who were associated with the
treatment of the deceased at the Head Quarters Hospital 10 Dhenkanal and bed
head ticket (Ext. A) maintained in that hospital in her attempt to get over the
The judgments of the Courts below clearly indicate that
endorsements at the time of the admission of the deceased in Dhenkanal Hospital
made in Ext. A as well as in Cuttack Hospital made in Ext. 9 indicate that the
cause of injury received by the patient was mentioned to be an accident due to
bursting of stove, but that the said endorsements do not indicate nor the
evidence of DW-4, DW-5 and DW-6 adduced during the course of the trial show
that the aforesaid endorsements were recorded on the basis of the statements
made by the deceased. On the other hand it is indicated therefrom that Bed Head
Ticket (Ext. 9) proves and establishes that on 09.02.2000, as per the history
given by the deceased herself the treating physician had endorsed that it was a
case of homicidal burn due to ignition caused by spilling of kerosene. Further,
though no specific endorsement has been made on the dying declaration but there
is contemporaneous evidence in the form of Ext. 9/1 which makes it clear that
the Doctor recording the dying declaration had recorded that the patient was
oriented to time and place and mentally clear at the time of recording of the
We have scrutinized the contents of the recorded dying declaration
which was recorded by the doctor of the hospital where the deceased was treated
for her burn injuries. On going through the same we find no infirmity in the
said dying declaration as the said dying declaration vividly mentions the
manner in which the deceased suffered the burn injuries on pouring kerosene oil
on her by the appellant who also lighted the matchstick which caused the fire
and burnt the deceased. The appellant not only poured the kerosene oil on the
deceased and lit the fire but also closed the door after going out of the said
room where the deceased was left to burn by the fire. The said description
given by the deceased in the dying declaration recorded by the doctor is clear,
unambiguous and there is no reason why we should not accept the said dying
declaration as correct and true version of the incident.
The objections raised by the counsel appearing for the appellant
which are of technical nature with regard to recording and admissibility of the
aforesaid dying declaration. We are however, of the considered opinion that the
said dying declaration recorded by the doctor is also corroborated by the oral
dying declaration made before PW-1 and PW-3 and the said fact also finds
corroboration from the statement of PW-1 and PW-3 and also from the FIR which
were proved through the evidence of PW-1.
Section 32 of the Indian Evidence Act, 1872 deals
with the statement of persons who cannot be called as witnesses as because they
are dead or they cannot be found or they have become incapable of giving
evidence or their evidence cannot be procured without an amount of delay or expense.
statements themselves are relevant facts in certain cases. The aforesaid
Section 32 was enacted as an exception to the general rule as reflected in
Section 60 of the said Act which mandates that oral evidence in all cases must
be direct i.e. if it refers to a fact which could be seen, it should be the
evidence of a witness who says he saw it, whereas if it refers to a fact which
could be heard, it must be the evidence of a witness who says he heard it or if
it refers to a fact which could be perceived by any other sense or in any other
manner, it must be the evidence of a witness who says he perceived it by that
sense or in that manner.
The question as to admissibility of such a dying declaration came
up for consideration before this Court in several cases. We have considered the
Constitution Bench decision of this Court in Laxman v. State of Maharashtra
reported in (2002) 6 SCC 710. In the said case also there was a dying
declaration and a question regarding the admissibility of the said dying
declaration was raised. In that connection this Court held that 13 the Court
must decide that the declarant was in a fit state of mind to make the
declaration, but where the eye witnesses' evidence including the evidence of a
Magistrate who had recorded the dying declaration to that effect was available,
mere absence of doctor's certification as to the fitness of the declarant's
state of mind, held, would not ipso facto render the dying declaration
unacceptable. It was also held that the evidentiary value of such a declaration
would depend upon the facts and circumstances of the particular case.
In paragraph 3 of the said judgment, this Court discussed the
juristic theory recording acceptability of a dying declaration in the following
manner:- "3. The juristic theory regarding acceptability of a dying
declaration is that such declaration is made in extremity, when the party is at
the point of death and when every hope of this world is gone, when every motive
to falsehood is silenced, and the man is induced by the most powerful
consideration to speak only the truth. Notwithstanding the same, great caution
must be exercised in considering the weight to be given to this species of
evidence on account of the existence of many circumstances which may affect
their truth. The situation in which a man is on the deathed is so solemn and
serene, is the reason in law to accept the veracity of his statement....."
The Constitution Bench in that case also referred to an earlier
decision of this Court in Koli Chunilal Savji v. State of Gujarat (1998) 9 SCC
303, 14 wherein it was held that the ultimate test is whether the dying
declaration can be held to be a truthful one and voluntarily given and in the
said decision it was also held that before recording the declaration, the
officer concerned must find that the declarant was in a fit condition to make
the statement in question. The aforesaid ratio of the said decision was
affirmed in the Laxman case(supra).
There is another very recent decision of this Court in Vikas and
Others v. State of Maharashtra reported in (2008) 2 SCC 516 wherein all the
earlier relevant decisions on the point have been indexed and referred to and
relied upon. The said decision specifically reiterates the principle governing
the dying declaration which was stated in the case of Paniben v. State of
Gujarat reported in (1992) 2 SCC 474. In paragraph 45 of the said judgment, it
was stated thus:- "45. The Court, referring to earlier case law, summed up
principles governing dying declaration as under:
case4, SCC pp. 480-81, para 18) "18. (i) There is neither rule of law nor
of prudence that dying declaration cannot be acted upon without corroboration.
the court is satisfied that the dying declaration is true and voluntary it can
base conviction on it, without corroboration.
This Court has to scrutinise the dying declaration carefully and must ensure
that the declaration is not the 15 result of tutoring, prompting or
imagination. The deceased had opportunity to observe and identify the
assailants and was in a fit state to make the declaration.
Where dying declaration is suspicious it should not be acted upon without
the deceased was unconscious and could never make any dying declaration the
evidence with regard to it is to be rejected.
dying declaration which suffers from infirmity cannot form the basis of
Merely because a dying declaration does not contain the details as to the
occurrence, it is not to be rejected.
Equally, merely because it is a brief statement, it is not to be discarded. On
the contrary, the shortness of the statement itself guarantees truth.
Normally the court in order to satisfy whether the deceased was in a fit mental
condition to make the dying declaration looks up to the medical opinion. But
where the eyewitness has said that the deceased was in a fit and conscious
state to make this dying declaration, the medical opinion cannot prevail.
the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon."
After referring to the decision of this Court in Khushal Rao v.
State of Gujarat reported in AIR 1958 SC 22, the principle formulated earlier
was reiterated that where a dying declaration is recorded by a competent
Magistrate, it would stand on a much higher footing inasmuch as a competent
Magistrate has no axe to grind against the person named in the 16 dying
declaration of the victim and in absence of circumstances showing anything to
the contrary, he should not be disbelieved by the court.
The aforesaid principles which are laid down are fully applicable
to the facts of the present case as in this case the dying declaration was
recorded by a doctor who was most disinterested witness. It was also
categorically stated by the doctor that at the time when she made her dying
declaration, she was in a fit state of mind.
In the case of Nallapati Sivaiah v. Sub-Divisional Officer,
Guntur, A.P. reported in AIR 2008 SC 19, in paragraph 18 it was stated thus;
It is equally well settled and needs no restatement at our hands that dying
declaration can form the sole basis for conviction. But at the same time due
care and caution must be exercised in considering weight to be given to dying
declaration in as much as there could be any number of circumstances which may
affect the truth. This Court in more than one decision cautioned that the
courts have always to be on guard to see that the dying declaration was not the
result of either tutoring or prompting or a product of imagination. It is the
duty of the courts to find that the deceased was in a fit state of mind to make
the dying declaration. In order to satisfy itself that the deceased was in a
fit mental condition to make the dying declaration, the courts have to look for
the medical opinion."
In the said decision this Court also referred to a decision of the
aforesaid Constitution Bench and reiterated that there is no requirement of law
that the dying declaration must necessarily contain a certification by the
doctor that the patient was in a fit state of mind especially when the dying
declaration was recorded by a Magistrate. It was also held in the said decision
that it is the testimony of the Magistrate that the declarant was fit to make
statement gains importance and that reliance can be placed upon such a
declaration even in the absence of the doctor provided the court ultimately
holds the same to be voluntary and truthful.
When we apply the aforesaid principles to the facts of the present
case we are of the considered opinion that both the courts were totally
justified and also right in relying upon the two dying declarations one
recorded by the doctor (PW-10) and the other i.e. oral dying declaration made
to PW-1 and PW-3. The two technical objections which were raised by the counsel
for the appellant, one regarding the doctor's certification and endorsement as
to mental fitness of the deceased, the same was held by this Court to be a rule
of prudence and not the ultimate test as to whether or not the said dying
declaration was truthful or voluntary.
The doctor who recorded the dying declaration was examined as a
witness and he had in his deposition categorically stated that the deceased
while making the aforesaid statement was conscious and in a fit mental
condition to make such a statement. The aforesaid position makes it therefore
clear that the aforesaid dying declaration could be relied upon as the same was
truthfully recorded and the said statement gave a vivid account of the manner
in which the incident had taken place.
There was another objection raised by the counsel appearing for the
appellant regarding the admissibility of the aforesaid recorded dying
declaration contending inter alia that the signature or the thumb impression of
the deceased was not taken on the said dying declaration. The said objection
according to us also is without any basis. The deceased had suffered about 90
to 95 per cent burn injuries covering 90 to 95 per cent body surface. The post
mortem report also indicates that there was bandage in her thumb as it was
burnt. In such a situation, it was not possible to take her signature or LTI on
the dying declaration. There is also no reason why a dying declaration which is
otherwise found to be true, voluntary and correct should be rejected only
because the person who recorded the dying declaration did not or could not take
the signature or the Left Thumb Impression of the deceased on the dying
declaration. Once it is found that 19 the dying declaration is true and made
voluntarily and as also trustworthy, there is no reason why the same should not
be believed and relied upon. In this case, the said dying declaration is
corroborated by the oral dying declaration made by the deceased before PW-1 and
PW-3 which is also corroborated by the medical evidence and the facts contained
in the FIR.
Therefore, taking an overall view of all the facts and
circumstances of the case and the evidence on record, we find no ground to
interfere with the order of conviction and sentence recorded by the trial court
and confirmed by the High Court holding the appellant guilty of the offence
under Section 302 IPC. The present appeal therefore deserves to be dismissed
which we hereby do. The order of conviction and sentence recorded against the
appellant is therefore upheld.
.......................................J. [Dalveer Bhandari]
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