IMPORTANT POINT
Murder – Factor which distinguishes culpable homicide from murder is presence of special mens rea which consists of mental attitudes indicated in Section 300 IPC and unless one of it is attributable to the act, no offence of murder is made out.

JUDGMENT

R.K. Pattanaik, J.—Instant appeal is preferred by the Appellant assailing the impugned judgment dated 19th November, 2004 passed in Sessions Case No.37/11 of 2004 by the learned Additional Sessions Judge, Nuapada for having been convicted under Section 302 IPC and sentenced for life imprisonment on the grounds inter alia that it is untenable in law and therefore, deserves to be set aside.

2. Briefly stated, the informant lodged the F.I.R. dated 29th October, 2003 describing therein about the alleged incident, where after, Nuapada P.S. Case No. 99(19) was registered under Section 307 IPC. Later on, the Appellant being the husband of the victim, who succumbed to the burn injuries she received during the incident, was charge sheeted under Section 302 IPC. The prosecution adduced oral and documentary evidence during the trial. On the other hand, the Appellant did not lead any evidence. The learned court below considered the evidence of the prosecution and defence plea of the Appellant and finally concluded that the deceased suffered a homicidal death and for that, held the Appellant to be liable. As a consequence, the Appellant was convicted under Section 302 IPC and sentenced accordingly.

3. Heard Mr. D. Das, learned Amicus Curiae for the Appellant and Mr. J. Katikia, learned AGA for the State.

4. As per the contention of Mr. Das, the learned court below fell into serious error by holding the Appellant guilty without properly appreciating the evidence on record and for being ignorant of the settled position of law vis-à-vis admissibility of the dying declarations. It is further contended that the dying declaration before the doctor was not worthy of acceptance since it did not have any endorsement to indicate that the deceased was by then in a fit state of mind. Mr. Das would contend that though there was sufficient time for the doctor to examine the condition of the victim and record her dying declaration in presence of the I.O. or a Magistrate but it was not done so. According to Mr. Das, the translator, who rendered assistance while recording the statement of the deceased, was not examined and therefore, adverse inference should have been drawn by the learned court below. Lastly, it is contended that the claim of pouring kerosene on the body of the victim is an afterthought since neither the I.O. nor the doctor ever found smell of any such substance and that apart, when the Appellant himself doused the fire, he can be said to have no intention to cause her death and for the above reasons, the impugned order of conviction is bad in law.

5. Per contra, Mr. Katikia contended that learned court below did not commit any error or illegality and as such, the impugned order of conviction vis-à-vis the Appellant is absolutely justified and in accordance with law. It is contended by Mr. Katikia that the deceased disclosed to her family regarding the fact that the Appellant was responsible for setting her to flame by pouring kerosene on her body which could not have been discarded by the learned court below and besides that, she even made a statement before the I.O. reiterating it and furthermore, revealed the same to the doctor just prior to her death. According to Mr. Katikia, the above dying declarations having been on record, it could not have been brushed aside and therefore, were rightly taken cognizance of by the learned court below, when the law is well settled that a dying declaration can be the sole basis of conviction, if it is otherwise found to be true and voluntary. While responding to the submission of Mr. Das that the doctor did not append any certificate to the dying declaration nor it was recorded in presence of the I.O. or a Magistrate, it is contended that in absence thereof, the same does not lose its probative value.

6. The F.I.R. was lodged by the informant father, wherein, he alleged that on 16th October, 2003, the Appellant set the victim to fire by pouring kerosene and also made an attempt to put