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Purna Chandra Singh Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 79 of 1981
Judge
Reported in1984(II)OLR756
ActsEvidence Act, 1872 - Sections 32
AppellantPurna Chandra Singh
RespondentState of Orissa
Appellant AdvocateR.C. Ram and ; B. Sahoo
Respondent AdvocateD.P. Sahoo, Standing Counsel
DispositionAppeal allowed
Cases ReferredSurajdeo Oza and Ors. v. State of Bihar.
Excerpt:
.....that it has been a settled principle of law that an order of conviction can be based solely on a dying declaration. the dying declaration is a piece of untested evidence and must, like any other evidence, satisfy the court that what had been stated therein is the unalloyed: truth and that it is absolutely safe to act upon it. the state of gujarat). in the well-known case of khushal rao v. view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night ;whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control ;that the statement has been consistent throughout if he had several..........home the charges, the prosecution had examined nineteen witnesses and had relied on the verbal dying declaration said to have been made by the deceased before the first-informant lokanath das (p. w. 1) and before p. ws. 2 to 5, the recoveries of ornaments of the deceased and the weapon of attack at the instance of the appellant and the dying declaration (ext. 11) recorded by the. doctor (p. w. 7) in the presence of two persons, namely, rabindra kumar parida (p. w. 11) and baskar chandra mohapatra (p. w. 16), who had attested it, on the day of the occurrence itself. the trial court did not place reliance on the evidence of p. w. 1 with regard to the dying declaration said to have been made by the deceased naming the appellant as the author of the crime. p. ws. 2 to 5, who were said to.....
Judgment:

B.K. Behera, J.

1. The appellant stood charged under Sections 302 and 397 of the Indian Penal Code, for committing robbery in respect of gold ornaments from the person of Dhani Bewa (hereinafter described as the 'deceased') by attacking and assaulting her to death by means of a knife on March 14, 1980, at Bolgarh in the district of Puri. To bring home the charges, the prosecution had examined nineteen witnesses and had relied on the verbal dying declaration said to have been made by the deceased before the first-informant Lokanath Das (P. W. 1) and before P. Ws. 2 to 5, the recoveries of ornaments of the deceased and the weapon of attack at the instance of the appellant and the dying declaration (Ext. 11) recorded by the. doctor (P. W. 7) in the presence of two persons, namely, Rabindra Kumar Parida (P. W. 11) and Baskar Chandra Mohapatra (P. W. 16), who had attested it, on the day of the occurrence itself. The trial Court did not place reliance on the evidence of P. W. 1 with regard to the dying declaration said to have been made by the deceased naming the appellant as the author of the crime. P. Ws. 2 to 5, who were said to have made some incriminating statements against the appellant in the course of investigation in- this regard, did not support the case of the prosecution and were put leading questions by it. The learned Sessions Judge found that the evidence did not warrant a conclusion that the ornaments of the deceased and the weapon of attack had been recovered consequent upon the statements made by the appellant. The appellant was acquitted of the charge of robbery framed against him. Accepting the dying declaration (Ext. 11) as true and trustworthy, the learned Sessions Judge has based the order of conviction of the appellant under Section 302 of Indian Penal Code solely thereon and has sentenced him to undergo imprisonment for life.

2. It is not disputed at the Bar that the deceased had did a homicidal death. Inviting our attention to the principles laid down by the Supreme Court in AIR 1958 Supreme Court 22 : 1958 Cr. L. J. 106- Khushal Rao v. State of Bombay, AIR 1972 Supreme Court 1776- Lallubhai Devchand Shah and Ors. v. The State of Gujarat, AIR 1976 Supreme Court 1994 :1976 Cr. L. J. 1548 K. Ramchandra Reddy and Ors. v. The Public Prosecutor and AIR 1978 Supreme Court 1530-The State of Haryana v. Harpal Singh and Anr. Mr. Ram has contended on behalf of the appellant that the evidence with regard to the dying declaration not only bristled with discrepancies, but was also fraught with suspicious features and it could not be said on the evidence that the deceased made a dying declaration which could form the basis of an order of conviction. The learned Standing Counsel has supported the order of conviction as well-founded on the basis of the dying declaration and has submitted that it has been a settled principle of law that an order of conviction can be based solely on a dying declaration.

3. Section 32 of the Evidence Act provides that statements, written or verbal, of relevant facts made by. a person who is dead are themselves relevant facts when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of the person's death comes into question. Such statements are admitted on the principle of necessity. Being a testimonial statement made out of Court, the declaration is open to discredit in the same way as any other witness. The dying declaration is a piece of untested evidence and must, like any other evidence, satisfy the Court that what had been stated therein is the unalloyed: truth and that it is absolutely safe to act upon it.

4. The law laid down by the Supreme Court from time to time with regard to the probative value of dying declaration may be kept in mind. Section 32 of the Evidence Act does not require that a statement should be made in expectation of death. (See AIR 1979 Supreme Court 1347-Tehal Singh and Ors. v. State of Punjab). Great weight must naturally and necessarily be attached to a dying declaration recorded very shortly after the occurrence. Merely because some friends and relatives happen to be with the deceased before the statement is recorded, the statement cannot be thrown out as tutored, (Vide AIR 1979 S. C. 1181-Habib Usman v. The State of Gujarat). In the well-known case of Khushal Rao v. State of Bombay (supra), Their Lordships of the Supreme Court have laid down :

'16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated ; (2) that each case must be determined on its own facts keeping in view of circumstances in which the dying declaration was made ; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence ; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence ; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in. view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night ; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control ; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it ; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.

If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.'

The same view has been taken by the Supreme Court in AIR 1962 S. C. 130 :1962 Cr. L. J. 196 Tarachand Damn Sutar v. The State of Mahrastra, AIR 1952 S.C. 439-Harbans Singh and Anr. v. The State of Punjab, AIR 1970 S. C. 1566_Tapinder Siagh v. State of Punjab, AIR 1972 S. C. 1557-Gopal Singh and Anr. v. The State of Madhya Pradesh, AIR 1980 S. C. 559 : 1980 Cr. L. J. 408-Kasa and Ors. v. State of Orissa, AIR .1983 S. C. 164 : 1983 Cr. L. J. 221-Ramawati Devi v. State of Bihar, AIR 1933 S. C. 274 : 1983 Cr. L. J. 426-State of Assam v. Mafiruddin Ahmed and AIR 1983 S. C. 554 : 1983- Cr. L. J. 985 Danshan Singh and Ors. v. State of Punjab.

As has been held by the Supreme Court in AIR 1972 Supreme Court 1776 {supra), a dying declaration must be closely scrutinised as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case, bearing in mind, on the one hand, that the statement is by a person who has not been examined in Court on oath and, on the other, that the dying man is normally not likely to implicate innocent persons falsely. When a dying declaration is recorded, the person who records the statement must be satisfied that the person making the statement is consciously making it understanding the implications of the words used and the responsibility of the Court is greater in holding that it was so made.

In AIR 1976 S. C. 1994 (supra) it has been laid down:

'...The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration......'

It has been held therein that it is extremely unsafe to place any reliance on the dying declaration in view of the conduct of the deceased in not making any disclosure regarding the occurrence on previous occasions when he had full and complete opportunity to name his assailants.

Dying declaration which suffers from infirmity cannot be the basis of a conviction, as held in 1981 Supreme Court Cases (Cr.) 581-Ram Manorath and Ors. v. State of U.P.

A dying declaration is not to be discarded because it does not . contain the details as to the occurrence. (Sec AIR 1981 S. C. 617 : 1981 Cr. L J. 9-State of Mahsrastra v. Krishnamurti Laxmipati Naidu).

5. The evidence with regard to the recorded dying declaration is to be analysed and tested keeping the aforesaid principles in mind. The relevant evidence in this regard is that of P. W. 7, the doctor who had recorded the dying declaration (Ext. 11) and that of P. Ws. 11 and 16, who had attested it. Of some relevance is the evidence of the doctor (P.W.6) who had conducted the autopsy and this is with regard to the capacity of the deceased to make one.

6. The dying declaration had been recorded in the Oriya language. The English rendering of Ext. 11 would read-

Dying declaration

I, Shrimati Dhani Bewa, wife of Chanda Das, Village/P.O./ P.S.-Bolgarh, District Puri, hereby state that :'Today dated 14. 3. 80 in the morning while putting the pot on the woven for cooking rice, Purna Singh, son of Hadu Singh of our village after entering our house assaulted on my face and hand and cut my throat by knife and removed 4 gold necklaces from my neck.'

The right thumb impression of the deceased has been taken thereon. This would evidently mean that the deceased was an illiterate lady.

7. Ext. 11 had been recorded at 3. 10 p. m. The doctor (P. W.7), who had held the post mortem examination, had, while describing the internal injuries, testified that the right internal and external carotic and jugular vein had been cut and the trachea had been cut below the thyroid gland. He has opined that in case the trachea is cut and the cut portion is left open, the injured cannot talk, but if the opening is closed by putting a finger or by putting a bandage, the injured can talk with difficulty. When an extract from Modi's Medical Jurisprudence, 13th Edition, at page 268, regarding the neck injuries was brought to his notice, he stated in his cross-examination :

'In a wound of the lyrynx below the vocal cord and that of the trachea, no speech is possible. I do not dispute the said proposition of Modi, but that is possible only if the wound is allowed to be kept in open. Modi has also said in the said paragraph that in case the opening is closed, the injured can whisper.'

Whether a person is in. a position to make a dying declaration is to be judged on the basis of the evidence of the doctor who had recorded it. [See. AIR 1978 Supreme Court 1530 (supra), ]

If the cumulative effect of the circumstances of the case would read to the irresistible conclusion that the deceased was unconscious and could never have made any statement, the evidence with regard to the dying declaration is to be rejected. ( See AIR 1982 Supreme Court 1021 Kaka Singh alias Surendra Singh v. State of Madhya Pradesh).

The doctor (P. W. 7) who had recorded the dying declaration in the instant case had testified that he had dressed all the injuries noticed on the deceased and had got them stitched. It would, however, be noticed from his evidence that at 2.20 p. m., the deceased vomitted profuse blood, the hoarseness of her voice was noticed and she became restless. This doctor then took steps for recording the dying declaration as the condition of the patient was sinking and after issuing a requisition (Ext. 5) to the police officer, who came and requested him to record the dying declaration, he recorded it. His evidence was that after the dying declaration was recorded, the deceased again vomitted blood at 4. 05 p. m., profusely and in spite of best attempts on his part, she succumbed to the injuries at 4.10 p. m. All this would show that the dying declaration had been recorded when the deceased, aged about seventy-five years, was in utter agony and would be in a position to speak a few words with great difficulty.

8. With regard to the appreciation of the evidence of a doctor who had recorded a dying declaration, the learned Sessions Judge has referred to the observations of the Supreme Court in AIR 1976 S. C. 1782-Abdul Majid Rahman v. State of Gujarat to the following effect:

'...There was absolutely no basis for doubting the integrity and veracity of Dr. Shah.......There is absolutely nothing in that statement which could raise a suspicion that the deponent was biased in favour of the prosecution or ill-disposed towards the accused. The doctor was the best person to opine about the fitness of the deceased to make the statement he did. The doctor found that life was ebbing fast in the patient. There was no time to call the police or a Migistrate- In such a situation, the doctor was justified indeed, he was duty bound- to record the dying declaration of the deceased. He was a disinterested, respectable witness. The trial Judge was, therefore, wholly unjustified in rejecting the evidence of the Medical Officer.'

It has been held by the learned trial Judge that there was nothing to disbelieve the evidence of the doctor. The Supreme Court has observed in AIR 1983 S. C. 66 Mayur Panabhai Shah v. State of Gujarat that a doctor's evidence is to be appreciated like that of any other witness and there is no presumption that a doctor is always a witness of truth. The evidence of P. Ws. 7, 11 and 16 needs careful scrutiny.

9. The learned Sessions Judge has observed that a dying declaration can be taken to be a true version and accepted even if it is recorded without details and in this connection, reference has been made to the observations of the Supreme Court in AIR 1976 S. C. 1519- Jayoraj v. The State of Tamil Nadu as follows :

'...When the deponent was in severe bodily pain, and words were scarce, his natural impulse would be to tell the Magistrate, without wasting his breath on details, as to who had stabbed him. The very brevity of dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring. The substratum of the dying declaration was fully consistent with the ocular account given by the eye-witnesses.

10. Brevity of a dying declaration containing a few words would not warrant its rejection on that ground. A dying person with fatal injuries must be in severe agony. The groaning utterances of a dying person in the grip of dreadful agony cannot be judged by standard of fullness of particulars which witnesses may give in other situations, as observed by the Supreme Court in AIR 1980 S. C. 1226 : 1980 Cr. L. J. 925-Som Nath v. State of Haryana.

Shortness of the statement itself appears to be the guarantee of truth. (See AIR. 1979 S. C. 1505-Surajdeo Oza and Ors. v. State of Bihar.

The dying declaration, in the instant case, is not to be -discarded merely because it was a brief statement as the deceased was in great agony then.

11. The evidence of P. Ws. 7, 11 and 16 with regard to the mode of recording the dying declaration and as to whether she was clear and audible was not quite consistent. No certificate has been recorded by P. W. 7 that the deceased, an old and illiterate lady with multiple injuries on her person, was in a position to make the dying declaration. The doctor had not certified that after the dying declaration (Ext. 11) was recorded, it was read over to the deceased, The inverted comma occurring before the words and figures Today date 14. 3. 80' and at the end have undoubtedly been given in a separate ink and not simultaneously with the recording of the dying declaration. The doctor has explained in his evidence that the portion within inverted commas was the declaration made by the deceased and not the other portion in the beginning, such as, 'I, Shrimati Dhani Bewa, wife of Chanda Das; Village/P.O./P.S. Bolgarh, District Puri, hereby state that'. If that was not a part of the dying declaration, it is not understood as to why it was so recorded. It was highly unlikely because of the illiteracy of the deceased that she would not only utter the word 'today', but also give the date, month and year according to the calendar. According to P. W. 7, he had questioned the deceased as to how she had sustained the injuries in the presence of P. Ws. 11 and 16 and she gave the reply which he had recorded verbatim. The evidence of P. W. 11 was that in his presence, the doctor put questions to the deceased regarding the assault on her and 'she was giving answers and the doctor was recording answers verbatim'. The evidence of P. W. 16 was that on being 'interrogated', the deceased gave out the name of her assailant and the doctor recorded the statement. According to this witness, the doctor did not note the questions put, but only noted the replies given by the deceased. His statement in cross-examination was that the doctor had, in all, put eight to ten questions out of which he remembered only two to three. If the doctor had put questions as had been deposed to by P. Ws. 11 and 16, the questions put to and the answers given by the deceased ought to have been recorded in the form of questions and answers. This had not been done.

12. P. W. 7 had admitted in his cross-examination that the voice of the deceased was 'very feeble and inaudible. This was also the evidence of P. W. 11. He had deposed

'...She was giving answers in a very feeble voice and it was not audible to me. ...'

'2. I could not follow the version of Dhani as her voice was feeble and it was not audible to me. By the time the statement was recorded. Bhaskar Chandra Mohapatra of our village was also present. Besides him, the police A. S. I. and some female members of the village were present. I have not gone through the statement recorded by the doctor. I have simply put my signature and left the place. 4 or 5 others were present in the room. But I cannot name any one of them. As 1 have not heard from the mouth of Dhani and as I have not read the statement Ext, 11 prior to putting my signature, I now cannot assert that this is really the statement of Dhani recorded by the doctor.

For the statements made by P. W. 11, the learned trial Judge held that his evidence was not worthy of credence. Because of the suspicious features in the evidence of P. Ws. 7 and 11 as to whether what had been stated by the deceased was audible and because of the positive assertion made by P. W. 11 that it was not, P. W. 16, as one can reasonably guess, was made to say on a later date when he was examined that he could hear each word spoken by the deceased when the doctor recorded the dying declaration of the deceased verbatim. He had admitted in his cross-examination that the deceased was able to speak with difficulty. The suggestion of the defence was that Hadu Singh, the father of appellant, was on litigating terms with his (P. W. 16's) father. P. W. 16 did not give straightforward answer and avoided by saying that he was not aware if there was any litigation between his father and father of the appellant. P. W. 16 does not appear to us to be a witness of truth.

13. Regard being had to the aforesaid suspicious features and infirmities in the evidence adduced at the trial with regard to the recorded dying declaration, we find that it would be unsafe and hazardous to accept Ext. 11 and base a conviction thereon. The deceased did have the opportunity of naming the appellant as the author of the crime before her co-villagers, but there was no acceptable evidence that she had made any such statement. In the light of the surrounding facts and circumstance of the case, we are not prepared to accept the finding recorded by the trial Court that Ext. 11 had properly been recorded and that it contained a true version as to how the deceased met with her death. While solemnity and sanctity are to be attached to the words of a dying person who, on the verge of death, is not likely to tell lies, a dying declaration must be subjected to strictest scrutiny and closest circumspection before acting upon it, as observed in AIR 1976 5. C. 1994 (supra). Judged in the light of the principles laid down by the Supreme Court in the reported cases referred to by us with regard to the probative value of a dying declaration, we find that the evidence on which reliance had been placed by the prosecution with regard to the dying declaration was far short of the mark. It is certainly not a fit case, in our view, to base a conviction of the appellant on the dying declaration said to have been made by the deceased naming the appellant as the author of the crime unsupported and uncorroborated by any other evidence.

14. For the aforesaid reasons, we are of the view that the prosecution had failed to establish the charge under Section 302 of the Indian Penal Code against the appellant.

15. We would allow the appeal, set aside the order of conviction and sentence passed -against the appellant and direct that he be at liberty forthwith.

G.B. Patnaik, J.

16. I agree.


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