REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 170 OF 2006

Brundaban Moharana & Anr.                             ..Appellants

Vs.

The State of Orissa                                            ..Respondent

O R D E R

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

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  

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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  

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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  

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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-

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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  

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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.

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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.

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