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1996 Supreme(Ori) 66
High Court Of Orissa
R. K. PATRA, C. R. PAL
UDAYAKAR SAHU - Appellant
Versus
STATE OF ORISSA - Respondent
Criminal Appeal 183 Of 1993
Decided On : 04/23/1996
A.K.Acharya, D.K.DAS, D.P.Dhal, J.P.MISHRA, R.P.MOHAPATRA
A dying declaration can form the sole basis of conviction if it is found to be true and reliable.
Headnote:
MURDER - SECTION 302 IPC - DYING DECLARATION - SOLE BASIS OF CONVICTION - RELIABILITY - FACTORS TO BE CONSIDERED.
Fact of the Case:
The appellant was convicted of murder under Section 302 IPC based solely on the dying declaration of the deceased. The deceased had been stabbed in the abdomen and died from the injury. The appellant claimed that the stabbing was accidental and occurred during a struggle with the deceased.
Finding of the Court:
The court held that the dying declaration was reliable and could form the sole basis of conviction. The court considered the following factors in reaching this conclusion: * The deceased was conscious and mentally alert at the time the declaration was recorded. * The declaration was recorded in a question-and-answer format, which allowed the deceased to provide specific details about the assault. * The declaration was corroborated by the medical evidence, which showed that the deceased had sustained a stab wound to the abdomen. * There was no evidence to suggest that the declaration was made under duress or coercion.
Issues: Whether the dying declaration was reliable and could form the sole basis of conviction.
Ratio Decidendi: The court held that a dying declaration can form the sole basis of conviction if it is found to be true and reliable. The court considered the circumstances in which the declaration was made, the condition of the declarant, and the corroborating evidence in reaching this conclusion.
Final Decision: The court dismissed the appeal and upheld the appellant's conviction for murder.
R. K. PATRA, J.
( 1 ) THE appellant Udayakar Sahu, his father and uncle viz. Sanatan Sahu and Sukuta alias Sukadeb Sahu were placed on trial is the Court of the Additional Sessions Judge, Bhadrak. The appellant was charged under Section 302 IPC for having committed the murder by intentionally causing the death of Balaram Sahu. Sanatan Sahu (appellant's father, and Sukuta alias Sukadeb Sahu (brother of Sanatan Sahu) were charged under Section 323/34 IPC for having voluntarily caused hurt to Suma Sewa. The learned trial Judge acquitted Sanatam and Sukuta alias Sukadeb of the charge. He, however, found the appellant guilty under Section 302 IPC, convicted him thereunder and sentenced him to undergo rigorous imprisonment for life. The said conviction and sentences are the subject-matter of challenge in this appeal.
( 2 ) THE case of the prosecution is that deceased Balaram Sahu was the brother of the informant Katnakar Sahu, P. W. 1. The appellant and the co-accused persons are the collaterals of the deceased Balaram Sahu. By the time of occurrence there was long standing litigation between the deceased on one side and the appellant and the co-accused persons on the other. On 11-7-1991 at about 8 a. m. the deceased Balaram, his brother P. W. 1 and their mother were fencing the bari of their land. At that moment the appellant and the co-accused persons came to the spot being armed with spears. Seeing this P. W. 1 raised hullah in response to which P. W. 3 and one Suresh Behera reached at the spot. Then ensued the quarrel and the appellant stabbed on the right side belly of Balaram Sahu who after sustaining injury fell down and later succumbed to the injury in the hospital. The co-accused persons were alleged to have assaulted the mother of the deceased.
( 3 ) THE plea of the appellant was that the deceased was forbidden by him and the co-accused persons from fencing the bari. He instead of desisting from fencing, approached the appellant with a 'kata' in his hand. The appellant then caught hold of a spear which was lying nearby. There was tussle between them and the spear held by the appellant accidentally slipped from his hand and pierced in the belly of the deceased.
( 4 ) THE prosecution examined six witnesses on its behalf out of whom P. Ws. 1, 2, 3 and 5 did not support the prosecution. P. W. 4 is the doctor who conducted the post-mortem examination of the dead body of the deceased. P. W. 6 is the investigating officer. As P. Ws. 1, 2, 3 and 5 turned hostile to the prosecution, the learned trial Judge rejected their evidence. On the basis of the dying declaration Ext. 8 recorded by the doctor P. W. 4 he held the appellant guilty under Section 302 IPC.
( 5 ) P. W. 4, the doctor, held autopsy on the dead body and found the following injuries :"1. One stitched wound of 7-1/2" long on the right side of abdomen 1-1/2" lateral to the midline 2" below the right costal margin to 1" below the umblious with 14 silk stitches. 2. One stitched wound of 21/2" anteriorly on the greater curvature of stomach and another 2" long posteriorly obliquely on the greater curvature of the stomach with omental patches. 3. Stomach was perforated through and through both anteriorly and posteriorly in an axis anterior being the point of entrance and the posterior being the point of exit. "according to him the cause of the death was due to profuse haemorrhage and shock following internal haemorrhage as a result of abdominal injury and stomach injury. The doctor opined that the stab injury would cause death in the ordinary course of nature.
( 6 ) IT is not disputed before us that the deceased had homicidal death on account of the injury sustained by him. The short question that arises for consideration is whether the learned trial Judge was justified in convicting the appellant solely on the basis of the dying declaration, Ext. 2.
( 7 ) LAW with regard to dying declaration is well settled. Dying declaration is a statement by a person as to the cause
