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PETITIONER: STATE OF ORISSA

       Vs.

RESPONDENT: PARASURAM NAIK

DATE OF JUDGMENT:       21/08/1997

BENCH: M.M. PUNCHHI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      This criminal  appeal by  Special Leave is filed by the State of  Orissa  challenging  the  judgment  and  order  of acquittal dated  31.7.84 passed by the High Court of Orissa. The respondent/accused  was put  up for trial for an offence punishable under  Section 302  IPC for committing the murder of his  wife, sarita  Sahu. The  Sessions court accepted the evidence of  dying declarations led by the prosecution being trustworthy and  accordingly convicted  the respondent under Section  302   IPC  and   sentenced  him   to  suffer   life imprisonment. the respondent preferred an appeal to the High court of  Orissa which  was allowed  by the Learned Division Bench of  the Said  High Court  holding that the prosecution evidence is  not sufficient to hold the respondent guilty of an offence  punishable under  Section 302 IPC for committing the murder  of his  wife. It is this order of the High Court dated 31.4.84  which is  the  subject  matter  of  challenge before us. (2)  It was  alleged by  the prosecution that on the fateful night of September 19,1979 when Sarita Sahu (since deceased) was sleeping  with her mother Balmsti Sahuani (P.W.4) in the other varandah  of their  house in village Bilaigarh, Distt. sundergarh, the  respondent poured petrol on the body of his wife, sarita  Sahu and lit the fire. Bhadra Sahu, the father of Sarita  who was sleeping nearby in the same varandah woke up   and when  the saw the blaze of fire he called his wife. It was  then noticed  that Sarita Sahu was completely burnt. She was  then taken to the Laing primary Health Centre where she succumbed  to the  burn injuries  during the same night. The first  Information  Report  came  to  be  lodged.  After completing the  necessary investigation  the respondent  was put up for trial for an offence punishable under Section 302 IPC. (3)  The respondent denied the charge and pleaded that he is innocent and  he has  been falsely implicated in the present crime. (4)  At the  outset it  may be  stated that  there is no eye witness to  the occurrence.  The prosecution  mainly  relied upon the  evidence  of  oral  dying  declaration  which  was

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alleged to  have been  made by  Sarita sahu  to  her  mother Balamati  Sahuani  (P.W.4)  and  her  elder  sister,  Malati Sahuani (P.W.5). It is alleged that Sarita also made a dying declaration which  was recorded  by Dr. Premananda Pattanaik (P.W.1). (5)  It may  be stated  that the  factum of  death of Sarita Sahu was  not challenged before the courts below Sarita sahu Was not  challenged before  the courts  below as  well as in this court.  Dr. Premananda  Pattanaik (P.W.1) noted as many as five  injuries on the dead body of Sarita Sahu and opened that she died because of extensive burn injuries. We however see no reason to interfere with the said finding . (6)  Coming to  the complicity  of  the  respondent  in  the present crime  as  stated  earlier  the  prosecution  mainly relied upon  the alleged  dying declarations  made by her to her mother,  Balmati  Sahuani  (P.W.4)  and  sister,  Malati Sahuani (P.W.5)  . The  High Court after careful Scrutiny of the evidence  did not  find the  same as  credible one and , therefore, held that it could not be the basis of conviction of the respondent. We have also gone through the evidence of both  these  witnesses  and  are  satisfied  that  the  said evidence does  not insoire  confidence in us to accept it to be credible. It is the prosecution case that during the dead hours of  the night  the occurrence  took place  when Sarita Sahu, her  mother and  father were fast asleep the father of Sarita Sahu (now dead) when got up, he saw the blaze of fire and called  his wife,  Balamti Sahuani  (P.W.4). It  is true that P.W.4 asserted in her evidence that she saw the accused when she  got up but, however her statement does not inspire confidence in  us. Both these witnesses asserted that Sarita Sahu told them that accused had poured petrol and set her on fire. It  is difficult  to accept the evidence having regard to the  extensive burn injuries sustained by Sarita Sahu who died during  the same  night. If  the evidence  of these two witnesses is  left out  then the story of the prosecution as regards the  alleged oral  dying  declaration  disappears  . Coming to  the dying  declaration (Ext.  4) recorded  by Dr. Premananda Pattanaik (P.W.1) we find that he has admitted in HIS evidence  that when  Sarita  Sahu  was  brought  to  the dispensary she  first was  given an injection and thereafter her   statement was recorded. He further stated that she was conscious at  that time.  He also  admitted  that  she  died within 15 minutes after recording her dying declaration . It is relevant to not trat Dr. Premananda Pattanaik (P.W.1) has not certified  that she  was in  her  full  senses  and  was medically fit  to make a statement although he had certified that she  was conscious.  Having regard to the fact that she had sustained  extensive burn  injuries and  died within  15 minutes  immediately   after  recording  the  statement,  it appears to  us that  she might  not be  in a  proper and fit condition to make a statement as regards her cause of death. The High  Court did  not feel it safe to rely pool the dying declaration (Ext.  4) recorded  by Dr.  Prumananda Pattanaik (P.W.1). Having regard to the facts and circumstances of the case we  also do  not think  it safe  to rely upon the dying declaration (Ext.4)  . the  view taken  by  the  High  Court cannot be  said to  be unreasonable  one. In  the result the appeal fails and the same is dismissed.