Brundaban Moharana & Anr vs State Of Orissa

Brundaban Moharana & Anr. ..Appellants

Vs.

The State of Orissa ..Respondent

ORDER

This appeal arises out of the following facts.

1. Amani Moharana, since deceased had been married to

Pitabas Moharana, son of appellants 2 and 3 about 5 years

prior to the incident. It appears that the in-laws and the

family members of the deceased started misbehaving with

her soon after the marriage, and at about 7 pm. on 28th

October 1990, in the course of a family quarrel Pitabas

Moharana assaulted her and then moved towards the outer

courtyard. Immediately thereafter, the in-laws of the

deceased, that is the present appellants and their daughter

Pokani came there and while Pokani caught hold of Crl.Appeal No.170 of 2006 2 the deceased

and tied her mouth with a towel, Gurubari, the mother-in-

law sprinkled kerosene on her body and Brundaban, the

father-in-law, set her ablaze. Unable to bear the pain, the

deceased ran for her life and fell down near the door steps.

She was, however, removed to the Naugaon dispensary

where she was given first aid but as her condition was

serious, she was moved to Jagatsinghpur hospital and

thereafter to the S.C.B. Medical College & Hospital for

treatment where she ultimately died. It is the case of the

prosecution that while the deceased was being treated in the

Naugaon dispensary she made a statement to Dr. Jena PW-4

and told him that she had been first assaulted by her

husband Pitabas Moharana and then set a fire by her-in-

laws and sister-in-law. This information was conveyed to

PW-1, the uncle of the deceased who lodged a First

Information Report under Section 498A, 307/34 of the IPC.

It appears that while the deceased was admitted in the

S.C.B. Medical College & Hospital PW-8, the attending

Doctor, recorded another dying declaration of the deceased Crl.Appeal No.170 of 2006 3 whereas PW-

9, the Officer In-charge of the Naugaon Police Station had

recorded yet another statement under Section 161 of the

Cr.P.C. in the Naugaon dispensary. Amani, however, died a

short while later on which the offence was converted into

one under Section 304-B of the IPC along with the other

Sections mentioned above and after investigation the

accused were charged for offences punishable under Section

302/34 and in the alternative under Section 304-B/34 and

498-A of the IPC. The trial court relying on the dying

declarations recorded by PW-8 and PW-9 convicted the

appellants herein and the daughter Pokani under Section

302/34 of the IPC but acquitted the husband Pitabas

Moharana. The trial court also found that in the absence of

any material, the charge under Sections 498-A and 304-B of

the IPC was not made out. An appeal was thereafter taken

to the High Court. The High Court observed that the only

evidence with regard to the murder were the two dying

declarations that had been recorded, one by PW-8, the

Doctor in the Medical College and Hospital and the other by Crl.Appeal No.170 of 2006 4 PW-9, the

Investigating Officer who had recorded her statement also in

the Medical Hospital in the form a statement under Section

161 of the Cr.P.C. The Court, however, observed that the

dying declaration recorded by PW-8 (Mark 6) had been

produced in evidence in the form of a Xerox copy and as

there was no evidence to show that the original had been

destroyed this document could not be taken in evidence as

secondary evidence. The High Court, accordingly, observed

that it was constrained to discard the evidence of PW-8 in so

far as it related to the dying declaration made before him.

The High Court then examined the dying declaration made

to PW-9 and marked as Ex.8. The Court noted that PW-9

had admitted in his cross-examination that though the

injured was not in a position to talk, she had nevertheless

spoken while in an unconscious state and her statement

had, accordingly, been recorded as he was under the

impression that she was not completely out of her senses.

The Court observed that the dying declaration Ex.8 was also

supported by the evidence of PW-3, a relative of the Crl.Appeal No.170 of 2006 5 deceased

who had been present there and confirmed the contents

thereof which were to the effect that Pokani had caught hold

of her and stuffed her mouth with a napkin whereas the

other two had set her on fire. The Court also observed that

a dying declaration had also been made by the deceased to

her father PW-7 in similar terms and accordingly concluded

that the dying declaration made to PW-9 was supported by

the evidence of PW-3 and PW-7. The High Court,

accordingly, dismissed the appeal. The present appeal by

way of special leave has been filed by the in-laws of the

deceased.

2. We see that we are dealing with a case of murder. No

presumption in favour of the prosecution thus arises in this

case. The primary pieces of evidence against the appellants

are the two dying declarations, one made to PW-8 which has

been disbelieved by the High Court and the other to PW-9,

the Investigating Officer which has been relied upon by the

High Court basing its opinion on the fact that this dying

declaration was supported by the evidence of PW-3 and PW- Crl.Appeal No.170 of 2006 6

7 as well.

Both PW-3 and PW-7 were categoric that they had been

present when the dying declaration was being recorded by

PW-9 and were therefore witnesses to the contents of the

dying declarations. In other words, if a doubt can be cast by

the defence that the injured was not in a position to make a

dying declaration or that the dying declaration was itself

shrouded in mysterious circumstances, the evidence of PW-

3 and 7 would automatically fall through. We have,

accordingly, gone through the evidence of PW-9 very

carefully. In his examination-in-chief, he deposed that on

the 28th November 1990, he had received written information

about a cognizable offence and a case under Section 498-A

and 307 read with Section 34 of the IPC had been registered

by him at the Naugaon Police Station and that he had

thereafter proceeded to the Naugaon Primary Health Centre

and recorded the dying declaration as a statement under

Section 161 of the Cr.P.C. In his cross-examination, he

stated as under:

"Amani was lying on the verandah of the P.H.C. When I first reached the P.H.C. I Crl.Appeal No.170 of 2006 7 found Amani lying on the verandah, her condition was serious, though she was not able to talk but she spoke in unconscious state and I recorded her statement U/s 161 Cr.P.C. At very first of my asking she did not tell anything but I told near her ear in a little bit loud voice that I am Bada Babu (O.I.C of Police Station) and I had come to know as to how she received injury. Thereafter, she gave her statement which I recorded. This fact I have not noted in my case diary but I replied so when the defence counsel cross examined me about her state of mind."

3. He also admitted that he had not recorded the

statement of the Doctor who was treating the injured. We

are of the opinion that in the light of the aforesaid statement

as the very capacity of the injured to make a statement was

in doubt, some support could have been found by the

prosecution had the attending doctor been examined or an

endorsement taken from him that the injured was fit to

make a statement. On the contrary, however, the PW-9

admitted that though the statement had been recorded in

the presence of PW-3 and PW-7 as well as the doctor, he had

still not taken his opinion. No reliance can, therefore, be

placed on this dying declaration as well. Crl.Appeal No.170 of 2006 8

4. As

already indicated above, if the dying declaration Ex.8 falls

through, the statements of PW-3 and PW-7 allegedly

supporting the dying declaration, would, ipso-facto, fall.

Even assuming for a moment that PW-3 and PW-7 had

indeed been present when the dying declaration was

recorded, no credence could be attached to such a

declaration as it would have been tantamount to tutoring of

the injured by these two witnesses who were her uncle and

father. We are, therefore, of the opinion that the judgment

cannot be sustained. We, accordingly, allow this appeal, set

aside the order of the High Court and direct the appellants

to be acquitted.

..................................J. ( HARJIT SINGH BEDI )

..........................J. ( R.M. LODHA )

New Delhi, September 28, 2010.

Crl.Appeal No.170 of 2006 9