LexSTATE OF ORISSA versus BANSIDHAR SINGH
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A B STATE OF ORISSA v. BANSIDHAR SINGH DECEMBER 5, 1995 [N.P. SINGH AND FAIZAN UDDIN, JJ.] Code of Criminal Procedure, 1973-Section 397-Quashing of Criminal Proceedin~Scope of-Veracity of dying declaration-l.P.C. Section--302. C 1he deceased was admitted in a hospital with 80 per cent bum injury. In his dying declaration given to the doctor attending him and recorded on the bed head ticket he alleged that the respondent who was his brother-in-law, had burnt him by pouring kerosene oil on him. The police registered a case of attempt to suicide against the D deceased on the basis of a written FIR from the son of the respondent. After the death of the deceased, a final report was submitted declaring the case to have been abated. The Magistrate, on the basis of the dying declaration and statement E of a hospital attendant recorded under section 161 Cr. P.C. found a prima facie case under Section 302 I.P.C. against the respondent and took cog· nizance of the offence. This was challenged by the respondent before the High Court. The High Court quashed the proceeding against the respondent F holding that : (a) The material on record did not indicate that the respon· dent had poured kerosene oil on the deceased and set him on fire. (b) the statement of the hospital attendant does not indicate that the dying . declaration was made in his presence. (c) statements given by the father· in-law, wife and daughter-in-law of the respondent showed that the G deceased was mentally unsound at the time of occurrence. Hence this appeal. Allowing the appeal, this Court HELD : 1. It was not a case where the taking of cognizance of the H offence against the respondent deserved quashing by the High Court. On 212 STATE v. BANSIDHARSINGH 213 the contrary it is a fit case where the cognizance should be taken against A the respondent for the alleged offence and the Magistrate was justified in doing so. [217-D] 2. The Magistrate in his order has clearly mentioned that the hospi- tal attendant has stated in his case diary statement that the victim dis- . closed before the doctor that he requested his brother-in-law not to pour kerosene oil on him as be may die and therefore, the observations of the High Court that hospital attendant did not state the dying declaration was made by the victim in his presence, appear to be a mistaken view. [216,F] B 3. The veracity, reliability and truthfulness of the alleged dying C declaration would be tested only after the evidence is recorded in the court and if on proper evaluation of such evidence, the Court comes to the conclusion that the dying declaration is truthful version of the deceased relating to the circumstances of his death then there is no question of any further corroboration as the conviction can be founded only on such dying D declaration. But in case the court finds that the dying declaration suffers any inherent infirmity it is bound to be rejected. In the present case the High Court rejected the dying declaration before its veracity could be tested at the Trial. [216-D] 4. The Court also took into consideration the statements of certain E persons for purposes of testing the reliability of the alleged dying declara- tion. Such evidence could be adduced in the defence during the trial but the High Court took into account the statement of certain persons to the effect that the deceased was a person of unsound mind at the investigation stage itself whose evidence is yet to be recorded at the Trial and made F observation that the deceased was a person of unsound mind and therefore the dying declaration could not be relied on. [217-A-B] State of Haryana and Others. v. Bhajanlal and Others., [1992] 1 Supl. sec 336, referred to. G CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1600 of 1995. From the Judgment and Order dated 28.7.94 of the Orissa High Court in Cr!. R. No. 271 of 1993. H 214 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R. A Indrajeet Roy, Advocate General, Orissa, P.N. Misra for AK. Panda for the Appellant. K.S. Bhati, AK. Singh, H.G.P. Khattar and Ms. Kusum Sharma for the Respondent. B The Judgment of the Court was delivered by FAIZAN UDDIN, J. 1. Leave granted. 2. 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 C of Orissa in Criminal Revision No. 271 of 1993 quashing the order dated 15th April, 1993 passed b
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