The admissibility and reliability of dying declarations in establishing guilt in criminal cases.

JUDGMENT

Dr. S. Muralidhar, CJ. - The present appeal is directed against the judgment of conviction and order of sentence dated 21st January 2011, passed by the learned Sessions Judge, Puri in S.T. Case No.150 of 2008 convicting the Appellant for the offence punishable under Section 302 IPC and sentencing him to undergo Rigorous Imprisonment (RI) for life and to pay a fine of Rs.10,000/- and in default to undergo RI for two years.

2. It must be noted at the outset that although the Appellant was charged with murdering his wife, the deceased-Mamata, he was also charged with the offences punishable under Sections 498-A and 304-B IPC and Section 4 of the Dowry Prohibition Act, 1961 (DP Act). By the impugned judgment, he was acquitted of the later offences while being convicted for the offence punishable under Section 302 IPC.

3. The case of the prosecution was that sometime in 2004, the Appellant and the deceased Mamata had married and after her marriage, the deceased was living with the accused and his family members. Soon after the marriage, the Appellant and his family members started ill-treating the deceased on demand of dowry. On the intervening night of 16th/17th December 2007, the accused along with his family members poured kerosene over Mamata while she was asleep and set her on fire. The deceased suffered severe burn injuries and was shifted to the District Headquarters Hospital (DHH) Puri for treatment.

4. On receipt of the above information, Krushna Chandra Nayak (P.W.5), the brother of the deceased rushed to the DHH Hospital and found the deceased in a severe burnt condition. In response to a query posed by him, the deceased informed him that on the previous night when she was sleeping with her daughter in her matrimonial home, her brother-in-law took away the daughter and later, the accused sprinkled kerosene all over her body and set her afire. While undergoing treatment, the deceased died in the evening hours of 17th December, 2007 in the DHH. P.W.5 informed the Police that prior to her death, the deceased had been subjected to physical as well as mental torture at the hands of the accused. This information was reduced to writing and an FIR was registered.

5. The evidence of Dr. Abhiram Mohapatra (P.W.29) is significant. On 17th December 2007, he was attached to the DHH, Puri as Surgery Specialist. At 6.50 am, the deceased was brought in to the DHH with 90% burns. P.W.29 prepared the bed ticket. He stated in his examination-in-chief as under:

"She sustained burn injury due to assault by pouring kerosene oil. The smell of kerosene was coming out of her body. There was burn injury over her scalp hair, face, both arm, chest wall, back side of chest wall and both legs. The patient was conscious and was talking.

2. On the same day at 7.10 AM, the patient was referred to SCB Medical College and Hospital, Cuttack for better treatment. On my query, the patient disclosed that after pouring down kerosene oil on her, fire was set on her.'

6. According to P.W. 29, the deceased became unconscious at 7.30 pm and expired at 8.45 pm on 17th December, 2012. In his cross-examination, he reiterated as under:

"9. I ascertained the history of the case from the mouth of the patient. But I have not reflected in the bed head ticket that I ascertained the same from her.'

7. Therefore, it is plain that as soon as she was brought in, the deceased was able to speak and disclosed not only to P.W.29, but also to Smt. Bijayalaxmi Patasani (P.W.15), who was the Additional Tahasildar-cum-Executive Magistrate, Puri about her being set on fire by the accused. It was stated by P.W. 15 in her examination-in-chief as under:

"The I.O. of this case namely Umashankar Singh of Kumbharapara PS led me to the near of the bed of Mamata. Reaching the bed I found that the patient- Mamata had severe burn injuries on her person.

She was in a position to talk then. No doctor was available by the side of the bed of the patient then.

Other relations of the patient were there. I