BRUNDABAN MOHARANA & ANR.versusTHE STATE OF ORISSA

                        [2010] 11 S.C.R. 812


A               BRUNDABAN MOHARANA & ANR.
                                   V.
                      THE STATE OF ORISSA
                   (Criminal Appeal 170 of 2006)
                       SEPTEMBER 28, 2010
B
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.]

        IND/AN PENAL CODE, 1860:
c        s. 302134 - Death of a married woman by bum injuries -
    Conviction by trail court of in-laws of deceased on the basis
    of dying declarations - High Court though discarding one
    dying declaration, but affirming the convictiqn relying on the
    dying declaration which was recorded by 1.0. uls.161 CrPC ~
D   Held: In a murder case, no presumption in favour of thd
    prosecution arises - The primary pieces of evidence against
    the accused 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 1.0., which has been relied upon by the High
E   Court basing its opinion on the fact that this dying declaration
    was supported by the evidence of PW-3 and PW-7 as we/I -
    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
F   dying declaration - 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 PW-7 would
    automatically fall through - The 1.0. recorded the dying
G   declaration as a statement u/s 161 Cr.P.C. - In his cross-
    examination, he stated that condition of the victim was
    serious, though she was not able to talk, but she spoke in
    unconscious state - He also admitted that he had not
    recorded the statement of the Doctor who was treating the
H                                 812
      BRUNDABAN MOHARANA & ANR. v. STATE OF                 813
                   'ORISSA
injured - No reliance can, therefore, be placed·on this dying       A
declaratiort-, as well - The statements of PW-3 and PW-7
allegedly supporting the dying declaration, would, ipso-facto,
fall - Even assuming 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        B
have been tantamount to tutoring of the injured by these two
witnesses who were her uncle and father - The judgment of
the High Court cannot be sustained and is set aside -
Accused are acquitted - Evidence Act, 1872:... s.32 - Dying
declaration - C.ode of Criminal Procedure, 1973 - s.161.            c
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No(s). 170 of 2006.
£..
  · From the Judgment & Order dated 09.09.2003 of the High
sourt of Orissa at Cuttack in Criminal Appeal No. 242 of 1994.      D
       G. Prakash for the Appellants.
       Shibashish Misra for the Respondent.
                              ORDER
       This appeal arises out of the following facts.               E
     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 19·90,       F
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\lheir daughter Pokani came there and while
Pokani caught hold of the deceased and tied her mouth with a        G
towel, Gurubari.. the mother-in-law sprinkled kerosene pn 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         H
     814      SUPREME COURT REPORTS                [2010] 11 S.C.R.


A    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
B    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 t.he deceased
·c   was admitted in the S.C.B. Medical College & Hospital PW-8,
     the attending Doctor, recorded another dying declaration of the
     deceased 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,
D    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 304-8/34 and 498-
E    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
F    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 PW•9, the Investigating Officer who had recorded her
G    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
H    this document could not be taken in evidence as secondary
  BRUNDABAN MOHARANA & ANR. v. STATE OF                     815
                ORISSA
evidence. The High Court, accordingly, observed that it was        A
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         B
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-         c
3, a relative of the 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
                                                                   D
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.
                                                                   E

     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         F
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-7 as well.
Both PW-3 and PW-7 were categoric that they had been               G
present when the dying declarationwas 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   H
    816      SUPREME COURT REPORTS                  (2010) 11 S C.R.

A 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
B 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-
C 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 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
D         recorded her statement U/s 161 Cr.P.C. At very first of my
          asking she did npt tell anything but I told near her ear in a
          little bit loud voice that I am Bada Babu (0.1.C of Police
          Station) and I had come to know as to how she received
          injury. Thereafter, she gave her statement which I recorded.
E         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
F 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
G 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.

H         4. As already indicated above, if the dying declaration Ex.8
   BRUNOABAN MOHARANA & ANR. v. STATE OF                     817
     .._,        ORISSA
         .....__"-...
falls'thmt19h, the statements of P.W-3 and PW-7 allegedly           A
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    B
were her uncle and father. We are, therefore, of the opinion that
the judgment cannotbe sustained.,We, accordingly, allow this
appeal, set aside the order of the High _Court and direct the
appellants to be acquitted.

R.P ..                                         Appeal allowed.
                                                                    c