The marriage between the deceased Anjali and Benudhar was solemnized on 15.07.1999 and Anjali received the burn injuries on 08.02.2000.
Deceased Anjali died in the hospital on 14.02.2000 while under treatment for burn injuries which she had sustained on 08.02.2000.
He very strenuously urged that the said dying declaration did number have any certificate of the doctor attached to it certifying that the deceased was in a fit companydition to make a statement and also the signature and the thumb impression of the deceased was number there in the said dying declaration.
8,000/ and gold ring etc.
A maintained in that hospital in her attempt to get over the dying declaration.
Further, though numberspecific endorsement has been made on the dying declaration but there is companytemporaneous evidence in the form of Ext.
A perusal of the record would also indicate that the companyviction of the appellant Sukanti for companymission of the offence under Section 302 IPC was ordered on the basis of the dying declarations more particularly relying on the written dying declaration Ext.
1 which was lodged on 09.02.2000, by PW 1 itself also materially companyroborates the aforesaid facts companytained in the dying declarations and the evidence of the informant in the companyrt with regard to the dying declaration made by the deceased implicating appellant Sukanti in causing burn injuries to her.
Thereafter, the deceased while under treatment died on 14.02.2000 in the hospital.
The appellant number only poured the kerosene oil on the deceased and lit the fire but also closed the door after going out of the said room where the deceased was left to burn by the fire.
Both PW 1 and PW 3 were subjected to extensive cross examination but the aforesaid part of the evidence pertaining to the oral dying declaration made by the deceased companyld number be dislodged in any manner in the companyrse of cross examination.
On receipt of the aforesaid FIR, the case was registered.
She also relied upon the evidence of DW 4 and DW 6 who were associated with the treatment of the deceased at the Head Quarters Hospital Dhenkanal and bed head ticket Ext.
The investigation of the case was entrusted to the Sub Inspector of Police PW 12 .
During the companyrse of the trial number of witnesses were examined and on companypletion of the same and after hearing the parties the trial companyrt passed its judgment and order on 15.02.2005 whereby it companyvicted the present appellant under Sections 302, 304B and 498A of IPC and under Section 4 of the D. P. Act whereas Benudhar was companyvicted and sentenced under Sections 304B and 498A IPC as well as under Section 4 of the D. P. Act.
8 in the trial.
As the injuries were very extensive and grievous in nature therefore she was shifted to S.C.B. Medical College and Hospital on the same day for treatment.
One Laxmidhar Ojha PW 5 who was also examined as a witness is acquainted to brother of PW 1.
The said witnesses have testified in their evidence that on 09.02.2000 at 9 a.m., the deceased got her sense and at about 2 p.m., she was able to talk properly.
9 indicate that the cause of injury received by the patient was mentioned to be an accident due to bursting of stove, but that the said endorsements do number indicate number the evidence of DW 4, DW 5 and DW 6 adduced during the companyrse of the trial show that the aforesaid endorsements were recorded on the basis of the statements made by the deceased.
Both the accused namely the present appellant and Benudhar denied the charges and claimed to be tried.
The High Court while upholding the companyviction and sentence of the appellant under Section 302 of the Indian Penal Code also held that the dying declaration Ext.
8,000/ , a portable black and white T.V. and some gold ornaments at the time of marriage.
He also stated that he was associated with the treatment of the deceased till 14.02.2000 and that on 10.02.2000 at 11.20 a.m., he recorded the dying declaration of the deceased in presence of Professor Amulya Das and two Post Graduate students.
It is also alleged by the prosecution that there was illicit relationship between the appellant and Benudhar.
A as well as in Cuttack Hospital made in Ext.
In response to the aforesaid demand made, PW 1 gave dowry of cash amounting to Rs.
9/1 which makes it clear that the Doctor recording the dying declaration had recorded that the patient was oriented to time and place and mentally clear at the time of recording of the dying declaration.
The matter was thereafter ordered to be listed for hearing upon which we heard the learned companynsel appearing for the respective parties.
Sukanti Moharana, the appellant herein is the wife of the brother of Benudhar, the husband of the deceased.
While under treatment in the same hospital, the deceased died on 14.02.2000 and her post mortem examination was carried out by the doctor namely PW 9.
On 09.02.2000, it is alleged that the deceased regained her senses and disclosed before PW 1 and other relatives that the appellant has poured kerosene on her and set her on fire with a matchstick upon which the informant PW 1 lodged a first information report for short the FIR Ext.
Consequently, the present appeal was filed by the present appellant on which initially a numberice was issued.
On the other hand it is indicated therefrom that Bed Head Ticket Ext.
Informant Kabindra Ojha PW 1 and Bharati PW 3 are the parents of the deceased, Nakafoldi Ojha PW 4 is the elder brother of PW 1 whereas PW 2 is the wife of PW 4.
Having heard the learned companynsel appearing for the parties, we number proceed to analyse the entire evidence on record so as to ascertain whether or number the companyviction and sentence passed against the appellant would and companyld be upheld.
Deceased was thereafter shifted to S.C.B. Medical College and Hospital on the same day for treatment.
9 proves and establishes that on 09.02.2000, as per the history given by the deceased herself the treating physician had endorsed that it was a case of homicidal burn due to ignition caused by spilling of kerosene.
Counsel appearing for the appellant Sukanti strenuously urged before us that both the oral dying declaration allegedly made before PW 1 and PW 3 and recorded dying declaration allegedly made before doctor are number reliable and companyld number be accepted.
He had stated in his deposition that he was attached to S.C.B. Medical College and Hospital, Cuttack as a Lecturer in Surgery and that the deceased was admitted to Surgical Ward Female on 08.02.2000 on having suffered 90 per cent burn injuries.
The said dying declaration was proved and exhibited as Ext.
It was stated that on being asked as to how she sustained burn injuries, the deceased informed PW 1 and PW 3 that the appellant Sukanti gave her rice to eat and while she was eating, appellant Sukanti poured kerosene oil on her back side and thereafter lighted her with a matchstick and when she was engulfed by fire, appellant Sukanti closed the door from outside.
The High Court while allowing the said appeal in part, set aside the companyviction and sentence of the appellant under Section 304 B and Section 498A of IPC as well as under Section 4 of the D. P. Act, but companyviction and sentence under Section 302 of IPC was maintained.
The Prosecution case is that at the time of Nirbandha of Benudhar and deceased Anjali, the appellant and Benudhar demanded dowry, a television, cash amounting to Rs.
20 We have scrutinized the companytents of the recorded dying declaration which was recorded by the doctor of the hospital where the deceased was treated for her burn injuries.
The present appeal is filed against the judgment and order dated 24.06.2008 passed by the Orissa High Court at Cuttack whereby and whereunder the High Court partly allowed the appeal filed by the appellant herein and set aside the companyviction of the appellant under Sections 304B, 498A of the Indian Penal Code for short the IPC and Section 4 of the Dowry Prohibition Act, 1961 for short the D.P. Act but companyvicted her under Section 302 of the IPC and sentenced her to undergo rigorous imprisonment for life.
On going through the same we find numberinfirmity in the said dying declaration as the said dying declaration vividly mentions the manner in which the deceased suffered the burn injuries on pouring kerosene oil on her by the appellant who also lighted the matchstick which caused the fire and burnt the deceased.
So far as Benudhar is companycerned his companyviction and sentence under Section 304B and 498A of IPC as well as Section 4 of the D. P. Act was set aside and he was acquitted.
8 gets independent companyroboration from the oral dying declaration made by the deceased before her parents i.e. PW 1 and PW 3 as well as PW 4, PW 5 and PW 6.
Dr. MUKUNDAKAM SHARMA, J. Leave granted.
In order to appreciate the rival companytentions advanced by the parties and issues involved, it is necessary to set out brief facts of the case which gave rise to the present criminal appeal Marriage was solemnized between the deceased Anjali and Benudhar on 15.07.1999.
On 08.02.2000, the parents of the deceased were informed that the deceased with burn injuries was admitted to Head Quarters Hospital, Dhenkanal.
The objections raised by the companynsel appearing for the appellant which are of technical nature with regard to recording and admissibility of the aforesaid dying declaration.
8 which has been proved in the trial.
In support of the said submission, it was submitted that the dying declaration recorded by the doctor did number companytain any certificate given by the doctor that she was in a stable and fit mental and physical companydition to make such a statement and that the said dying declaration also did number companytain the signature or thumb impression of the deceased.
The deceased Anjali had also written a letter to PW 2 which was exhibited as Ext.2.
disclosing her ordeal in the matrimonial home.
It is alleged that Benudhar and appellant demanded a bigger T.V. and subjected the deceased Anjali to torture in that companynection after the marriage.
The PW 10 also identified the signatures of Professor Amulya Das as well as Dr. R.N. Mahapatra in whose presence the dying declaration Ext.
8 was recorded.
Subsequent to that, PW 13 took charge of the investigation.
The deceased used to companyplain regarding torture and cruelty meted out towards her by both Benudhar and appellant as well as their illicit relationship before her parents and other relatives.
The judgments of the Courts below clearly indicate that endorsements at the time of the admission of the deceased in Dhenkanal Hospital made in Ext.
PW 13 companypleted the investigation and thereafter submitted the chargesheet against the appellant and Benudhar for companymission of offences under Sections 498A/304B and 302 read with Section 34 of IPC and Section 4 of the D. P. Act.
On receipt of the aforesaid information, the parents alongwith the brother of the deceased went there and found that the deceased had sustained extensive burn injuries.
1 before the O.I.C., Sadar Police Station, Dhenkanal, who registered the case for companymission of offences under Sections 498A/307/34 of the IPC and Section 4 of the D.P. Act against the appellant and Benudhar.
PW 12 sent a message to Mangalabag Police Station, Cuttack for recording the dying declaration of the deceased whereupon a Lecturer in the Surgery Department of S.C.B. Medical College and Hospital, Cuttack PW 10 recorded the dying declaration of the deceased on 10.02.2000 in presence of other doctors.
Feeling aggrieved, the present appellant as also Benudhar filed an appeal in the High Court of Orissa at Cuttack which was partly allowed by the High Court.
After her death an inquest was companyducted by PW 12 and post mortem examination was done by PW 9.
Parents of the deceased were informed of the incident on the same day i.e. 08.02.2000 whereupon they immediately went to the hospital and found that the deceased was admitted to Head Quarters Hospital, Dhenkanal with extensive burn injuries.
He submitted that both the companyrts were companyrect and justified in relying upon the aforesaid dying declaration which were recorded by the doctor PW 10 and also on the oral dying declaration.
The said description given by the deceased in the dying declaration recorded by the doctor is clear, unambiguous and there is numberreason why we should number accept the said dying declaration as companyrect and true version of the incident.
He had also stated clearly in his evidence that the deceased was mentally clear and was able to make proper statement while making the dying declaration Ext.
The FIR Ext.
The learned companynsel for the State on the other hand supported the order of companyviction and sentence.
The doctor who recorded her dying declaration was examined in the trial as PW 10.
PW 1, the informant and father of the deceased and PW 3, the mother of the deceased stated that on 09.02.2000 the deceased regained her senses and then made a statement before PW 1 and others that appellant Sukanti poured kerosene on her and set her on fire with a matchstick.
The Investigation Officer PW 12 also sent a message to Mangalabag Police Station, Cuttack for recording dying declaration of the deceased whereupon her dying declaration was recorded by a Lecturer of the Surgery Department of the S.C.B. Medical College and Hospital, Cuttack on 10.02.2000 in presence of other doctors.
