LexBRUNDABAN MOHARANA & ANR. versus THE STATE OF ORISSA
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A B c [2010] 11 S.C.R. 812 BRUNDABAN MOHARANA & ANR. V. THE STATE OF ORISSA (Criminal Appeal 170 of 2006) SEPTEMBER 28, 2010 [HARJIT SINGH BEDI AND CHANDRAMAULI KR. PRASAD, JJ.] IND/AN PENAL CODE, 1860: 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. 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, in the course of a family quarrel Pitabas Moharana assaulted E F 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
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