2009 Supreme(SC) 1320

2009(5) Supreme 636
SUPREME COURT OF INDIA
Dalveer Bhandari and Dr. Mukundakam Sharma, JJ.
Sukanti Moharana — Appellant
versus
State of Orissa — Respondent
Criminal Appeal No. of 2009
(Arising out of S.L.P. (Crl.) No. 428 of 2009)
Decided on : 29-07-2009

IMPORTANT POINTS
1. Once it is found that dying declaration is true and made voluntarily and as also trustworthy, there is no reason why the same should not be believed and relied upon.
2. Court must decide that the declarant was in a fit state of mind to make the declaration, but where the eye witnesses’ evidence including the evidence of a Magistrate who had recorded the dying declaration to that effect was available, mere absence of doctor’s certification as to the fitness of the declarant’s state of mind, held, would not ipso facto render the dying declaration unacceptable.
3. No reason why a dying declaration which is otherwise found to be true, voluntary and correct should be rejected only because the person who recorded the dying declaration did not or could not take the signature or the Left Thumb Impression of the deceased on the dying declaration.

Headnote:Indian Penal Code, 1860 – Sections 304B, 498A, 302 – Dowry Prohibition Act, 1961 – Section 4 – Death by burn injuries – Prosecution of appellant wife of brother of husband of deceased and husband of deceased for setting deceased on fire – Conviction by Trial Court – Appeal – High Court while acquitting husband of deceased, partly allowed appeal of appellant by setting aside her charges under sections 304B, 498A of IPC and confirming her conviction u\s 302 of IPC – Appeal – On going through contents of recorded dying declaration recorded by doctor of hospital no infirmity was found in said dying declaration – The appellant not 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 fire – The said description given by the deceased in the dying declaration recorded by the doctor was clear, unambiguous – Said dying declaration recorded by doctor was also corroborated by oral dying declaration made before PW-1 and PW-3 – Said fact was also corroborated by statement of PW-1 and PW-3 and also from the FIR which were proved through evidence of PW-1 – Doctor who recorded dying declaration was examined as a witness and he had in his deposition categorically stated that deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement – Hence said dying declaration could be relied upon as same was truthfully recorded and said statement gave a vivid account of the manner in which the incident had taken place – Deceased had suffered about 90 to 95 per cent burn injuries covering 90 to 95 per cent body surface – The post mortem report also indicated that there was bandage in her thumb as it was burnt – In such a situation, it was not possible to take her signature or LTI on the dying declaration – No reason why a dying declaration which is otherwise found to be true, voluntary and correct should be rejected only because the person who recorded the dying declaration did not or could not take the signature or the Left Thumb Impression of the deceased on the dying declaration. – No ground to interfere with order of conviction and sentence recorded by trial court and confirmed by High Court holding the appellant guilty of the offence under Section 302 IPC – Appeal dismissed. (Paras 20, 21, 28 to 34)

       Facts of the Case :

        1. Appellant wife of brother of husband of deceased and husband of deceased were prosecuted herein in the instant case for setting deceased on fire. Trial Court convicted accused persons for said offence. On appeal, High Court while acquitting husband of deceased, partly allowed appeal of appellant by setting aside her charges under sections 304B, 498A of IPC and confirming her conviction u\s302 of IPC.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        On going through contents of recorded dying declaration recorded by doctor of hospital where deceased was treated for her burn injuries no infirmity was found in said dying declaration as said dying declaration vividly mentioned 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. The appellant not 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 fire. The said description given by the deceased in the dying declaration recorded by the doctor was clear, unambiguous. No reason not to accept the said dying declaration as correct and true version of incident. Said dying declaration recorded by doctor was also corroborated by oral dying declaration made before PW-1 and PW-3.Said fact was also corroborated by statement of PW-1 and PW-3 and also from the FIR which were proved through evidence of PW-1. Doctor who recorded dying declaration was examined as a witness and he had in his deposition categorically stated that deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement. Hence said dying declaration could be relied upon as same was truthfully recorded and said statement gave a vivid account of the manner in which the incident had taken place. No ground to interfere with order of conviction and sentence recorded by trial court and confirmed by High Court holding the appellant guilty of the offence under Section 302 IPC. Appeal was dismissed.