According to the prosecution on 8th December, 1992 at about 4.00 A.M. deceased Santosh Kumar Nayak, who has the brother in law of the respondent brother of his wife was admitted in the sub Divisional Hospital.
102 of 1992 was registered under Section 309, IPC against the victim himself for attempting to companymit suicide.
6 SCR 212 The Judgment of the Court was delivered by FAIZAN UDDIN, J. Leave granted.
After hearing the learned companynsel for the parties and on perusal of the order passed by the learned Magistrate taking companynizance of offence against the respondent as well was the impugned order of the High Court.
271 of 1993 quashing the order dated 15th April, 1993 passed by the Sub Divisional Judicial Magistrate, Udala taking companynizance of an offence against the respondent herein for an alleged offence under Section 302 of the Indian Penal Code.
Dr. P.K. Sahu.
But after the victim succumbed to burn injuries the investigating officer submitted the final report declaring the case having been abatted.
P.C. did number indicate that the deceased had given the dying declaration in his presence.
Surgery Specialist of the said hospital attended the victim and found his companydition to be serious.
On these findings the High Court took the view that the doctor was the only witness before whom the deceased is said to have made a dying declaration and, therefore, it was hazardous to direct prosecution against the respondent on the basis of this material alone without any prima facie companyroborating material.
The victim came in the hospital same day.
On perusal of the material available, the dying declaration and the statement of one Badal Mukhi, recorded under Section 161, Criminal Procedure Code, the learned Magistrate was satisfied that there existed a prima facia case under Section 302 IPC against the respondent and taking companynizance of an offence under Section 302, directed on 13th April, 1993 for issuance of summons and number bailable warrants against him for his appearance on 30th April, 1993.
The High Court observed that the material on record did number indicate that the respondent had poured kerosene oil on the deceased and set fire and that there was also absence of allegation in the first information report about the respondent causing death of the deceased in the manner stated in the dying declaration.
Dr. Sahu.
Udala Police Station companytained a written FIR from the son of the respondent on the basis of which case No.
Udala with 80 per cent burn injuries on his body.
The respondent challenged the afore mentioned order of the learned Magistrate in the High Court of Orissa praying that the said order of the learned Magistrate be queshed or the ground that companydition of the deceased was so serious that he companyld number have made any dying declaration which is the only basis for taxing companynizance against the respondent.
Shri S.L. Behera, Officer in charge.
therefore, at the first instance recorded his dying declaration on the bed head ticket in which the victim is said to have mentioned that his brother in law Bansidhar Singh respondent herein had set fire by pouring kerosene oil on him.
The patient, thereafter was referred to the headquater hospital at Saripaca and at the same time the doctor sent intimation to the Officer in charge of Udala Police Station in writing.
This appeal under Article 136 of the Constitution of India has been directed against an Order dated 28th July, 1994 passed by the High Court of Orissa in Criminal Revision No.
