Orissa High Court
Sri Bholi @ Bholanath Mallik vs State Of Odisha on 3 November, 2022
Author: S.K. Panigrahi
Bench: D. Dash, S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.181 of 2011
(From the judgment of conviction and order of sentence dated
12.01.2011 passed by the learned Additional District and
Sessions Judge, Jajpur in C.T. (Sessions) No.51 of 2010)
Sri Bholi @ Bholanath Mallik .... Appellant
-versus-
State of Odisha. .... Respondent
Advocates appeared in the case:
For Appellant : Mr. B.K. Behera, Adv.
-versus-
For Respondent : Mr. S.K. Nayak, AGA
CORAM:
MR. JUSTICE D. DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-26.10.2022
DATE OF JUDGMENT:-03.11.2022
Dr. S.K. Panigrahi, J.
1. This matter is taken up through hybrid mode.
2. The Appellant has preferred this appeal, challenging the judgment of conviction and order of sentence dated CRLA No.181 of 2011 Page 1 of 12 12.01.2011 passed by the Learned Additional District and Sessions Judge, Jajpur in C.T (Sessions) No.51 of 2010; convicting the Appellant for the offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "the I.P.C." for brevity) and sentencing him to undergo imprisonment for life.
I. FACTS OF THE CASE
3. The case of the prosecution, in brief, is that the Appellant was married to the deceased, Dali and the wedding was solemnized on 22.06.2002. On 23.07.2009, at about 6 A.M, Narendra Mallick (P.W-8) received information from one DharaMallick that the Appellant and his family members had burnt his sister by pouring kerosene. On the same day, at about 10 P.M, he lodged a written report before the OIC, Mangalpur Police Station stating that his sister (deceased) was subjected to torture by the Appellant and his family members and burnt to death.
4. Based on such report, the OIC, Mangalpur P.S registered the case-G.R Case No. 445 of 2009 and, started the investigation. The Appellant was arrested on 26.07.2009 and after completion of investigation; he was charge sheeted u/s 498A/302 of the Indian Penal Code. After the charge was framed, the trial was completed by the Learned Additional District & Sessions Judge, Jajpur and the Appellant was CRLA No.181 of 2011 Page 2 of 12 convicted under Section 302 of I.P.C. and sentenced to undergo imprisonment for life. Hence, this appeal. II. SUBMISSIONS ON BEHALF OF THE APPELLANT
5. It is contended by Learned Counsel for the Appellant that the trial court only relied upon the dying declaration and the same was recorded in presence of Bishnupada Sahu, A.S.I of Jajpur Police Station. However, the prosecution has not examined Mr. Sahu and no reason was offered for his non-examination.
6. Furthermore, the version of the deceased in the dying declaration was translated by P.W-23 (Dr.Nityananda Panda) in English. In the cross-examination, he categorically admitted that he had not recorded the statement of the deceased in the language spoken by her. The dying declaration was neither signed by the deceased nor was there any thumb impression of the deceased in the said document. Hence, the so-called dying declaration appears to be suspicious and having no credence.
7. It is submitted by Learned Counsel for the Appellant that P.W-23 had not given any certificate in the dying declaration to the effect that the deceased was able to talk and her orientation towards her surroundings relating to place, time and person was stable. In order to place reliance on the dying declaration, the certificate is mandatory which CRLA No.181 of 2011 Page 3 of 12 is absent in the present case. Therefore, the irregularities in the dying declaration smack illusion.
III. SUBMISSIONS ON BEHALF OF THE RESPONDENT
8. Per Contra, it is submitted by Learned Counsel for the State that during the week preceding the death of the deceased, her husband (Bholi Mallik or the Appellant), elder brother- in-law(Amin Mallik) and sister-in-law (Manorama Mallik) drove the deceased out of the house and threatened to kill her if she were unable to furnish a sum of Rs. 50,000/-(in cash) and a colour television as dowry.
9. It is contended by Learned Counsel for the State that the dying declaration given by the deceased clearly implicates the Appellant and the learned trial court did not commit any error or illegality and as such, the impugned order of conviction vis-à-vis the Appellant is absolutely justified and in accordance with law.
IV. COURT'S ANALYSIS AND REASONS:
10.The narratives presented in the instant case is that the deceased made her statement before P.W.23 at 8:30 am on 23.07.2009 and P.W.23 was able to understand the language of the deceased and being a doctor, he was the best person to assess her mental state. It is not the case that a person lacking requisite competence has recorded the dying declaration of the deceased and its acceptance is, hence, to CRLA No.181 of 2011 Page 4 of 12 be suspected for want of certificate of a doctor. Absence of a certificate with regard to the mental state of the deceased, under the circumstance, according to us, is not of any fatal consequence, whereas it was recorded by none other than a doctor himself who was then engaged in treating the patient to save her life. Moreover, when nothing has been elicited from him to create any doubt in mind that then the deceased was not able to so state. It is but natural for the doctor treating the patient to ask the cause leading to such burn injury and that being stated, he has so noted which thus cannot be disbelieved when no such material to come to surface that the deceased was then tortured or forced to say so.
11.In the case of Sham Shankar Kankaria v. State of Maharashtra1, the Supreme Court observed:
"This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, 1 CRLA No. 661 of 2005 CRLA No.181 of 2011 Page 5 of 12 the exclusion of the statement would leave the Court without a scrap of evidence.
Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."
12.Now, on the aspect, whether in absence of any corroborative evidence, there can be a conviction relying upon the dying declaration only is concerned, the decision of Supreme Court in the case of Smt. Paniben v. State of Gujarat2 is required to be referred to. In the aforesaid decision, it is specifically observed and held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a 2 AIR 1992 SC 1817 CRLA No.181 of 2011 Page 6 of 12 corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. Therefore, there can be a conviction solely based upon the dying declaration without corroboration
13.In the case of Smt. Paniben v. State of Gujarat(supra), the Supreme Court held as under:
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected.CRLA No.181 of 2011 Page 7 of 12
(viii) 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.
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion.
But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted."
14.In the case at hand, the doctor who had recorded the dying declaration of the deceased vide Ext.11is an independent witness and was only performing the duty that was entrusted to him. He admitted that he had not put his signature on the dying declaration recorded by him but he categorically stated that he had examined the deceased before recording her statements and he found her in a fit condition to speak. This Court, is therefore, of the opinion that the narration given by the deceased in the declaration as to how she received the burn injuries as recorded by the doctor is clear, unambiguous and there is no reason as to why the same should not be accepted as correct. CRLA No.181 of 2011 Page 8 of 12
15.Moreover, a bare perusal of the dying declaration reveals that the Appellant tortured the deceased before setting her on fire by sprinkling kerosene. The Investigating Officer (P.W-19) who had visited the spot in course of his investigation also seized one half-burnt gunny bag, one half-burnt plastic mat and one plastic jerry with kerosene and a match box containing some matchsticks. In the dying declaration, the deceased has not implicated the other family members of the Appellant, and only attributed the role of burning to the Appellant. Therefore, the hostility of witnesses cannot demolish the value and reliability of the dying declaration of the deceased.
16.In Shudhakar v. State of M.P3,the Supreme Court observed that:
"Normally, the Court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind but where the person recording the statement states that the deceased was in a fit and a conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. A certificate by the doctor is essentially a rule of 3 AIR 2012 SC 3265 CRLA No.181 of 2011 Page 9 of 12 caution and, therefore, the voluntary and truthful nature of the statement can be established otherwise."
17.In Sher Singh v. State of Punjab4, the Supreme Court held that absence of doctor's certification is not fatal if the person recording the dying declaration is satisfied that the deceased was in a fit state of mind and the requirement of doctor's certificate is essentially a rule of caution. This Court in the case of Anjari Rout v. State of Odisha5 also held that a "dying declaration" made to a doctor cannot be questioned or should not be doubted simply because a certificate regarding the deceased's mental state at the time of recording the declaration was not appended to it.
18.Further, this Court also affirms the finding of the Trial Court that the Appellant has not produced on record any cogent explanation regarding his wife's injuries and under what circumstances she died. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of comparatively lighter 4 (2008) 4 SCC 265 5 JCRLA No. 88 of 2006 CRLA No.181 of 2011 Page 10 of 12 character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
19.In the case of State of Tamil Nadu v. Rajendran6, the Supreme Court observed:
"In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete."
20.This proposition fully applies to the circumstances of the present case. In her dying declaration, the deceased clearly implicated her husband-the appellant for inflicting physical torture and setting fire at her by dousing her with kerosene. On the circumstances enumerated above which have been established by the prosecution, this Court has no hesitation to come to the conclusion that the charge of murder has 6 AIR 1999 SC 3535 CRLA No.181 of 2011 Page 11 of 12 been proved beyond reasonable doubt as against the accused Appellant. No plausible explanation has been offered by the Appellant to the incriminating evidence proved against him. He sheltered himself under the usual plea of false implication and took the stance that the dying declaration has been manufactured by the Police to use the same against him. In the final evaluation, this appeal, being devoid of merits, is liable to fail and the judgment of conviction and order of sentence dated 12.01.2011 passed by the learned Additional District and Sessions Judge, Jajpur in C.T. (Sessions) No.51 of 2010 convicting and sentencing the Appellant as stated supra is maintained.
21. The appeal stands dismissed.
22. The L.C.R. be returned back forthwith.
( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree.
( D. Dash ) Judge Orissa High Court, Cuttack, Dated the 3rd Nov., 2022/B. Jhankar CRLA No.181 of 2011 Page 12 of 12