The admissibility and reliability of oral dying declaration as the sole basis of conviction, the principles for appreciating evidence of rustic witnesses, and the admissibility of dying declaration without corroboration.

JUDGMENT

Dr. S. Muralidhar, CJ. - The present appeal is directed against a judgment dated 4th November, 2010 passed by the learned 2nd Additional Sessions Judge, Cuttack in ST Case No.305 of 2009 convicting the Appellant for the offence punishable under Section 302 IPC and sentencing him to imprisonment for life together with fine of Rs.20,000/- and in default of payment of fine, to suffer rigorous imprisonment (RI) for six months. Of the fine amount, it was directed that Rs.19,000/- must be paid to the father of the deceased KeluPradhan (PW 1) for the death of his son AkashPradhan, who was aged about 8 years.

2. The case of the prosecution is that AkashPradhan (the deceased), who was 8 years old, was the only son of the informant (PW 1), a resident of village Bania. Four days prior to the incident, there was a hot exchange of words between the informant and the accused for which the Appellant had borne grudge against PW 1.

3. On 22 ndMarch, 2009 at about 9am on the village road, Akash was playing along with other children. At that time, the Appellant called Akash to his house. In the house, he mixed poison in the rice powder (ChaulaBhuja) and fed Akash that adulterated food. After some time, the accused lifted Akash in his arms and left him on the Pindha, i.e.the courtyard of PW 1. On being asked by BelaPradhan (PW 3) the cousin of PW 1, Akash informed her that the Appellant had administered some poison with rice powder for which he felt pain in his body. Then the condition of Akash deteriorated. The village children then called PW 1 who was in the field at a distance. Before PW 1, Akash disclosed that the Appellant had forcibly fed him rice powder after mixing it with poison. PW 1 then took Akash along with PW 3 in a rickshaw to Kalapathar Hospital. The doctor there referred him to Bhubaneswar Hospital, but on the way Akash died.

4. PW 1 then brought back the dead body to his village and reported the matter to the Inspector-in-Charge (IIC), Baideswar Police Station (PS). Basanta Kumar Pati (PW 6), who was then working as a Sub-Inspector of Police registered PS Case No.11 of 2009 and took up investigation. He visited the spot, examined the witnesses, conducted inquest over the dead body and prepared the inquest report on 23rd March, 2009 in the presence of the witnesses. He then sent the dead body in the Banki Hospital for post-mortem examination. On the same day, he arrested the Appellant. a Can

5. On completion of investigation, PW 6 submitted a charge sheet on 5th July, 2009 against the Appellant for the offence under Section 302 IPC.

6. Seven witnesses were examined by the prosecution and none for the defence. The trial Court, on an analysis of the evidence, came to the conclusion that the prosecution had been able to prove the guilt of the Appellant for the aforementioned offence beyond all reasonable doubt. One of the clinching pieces of evidence was the oral dying declaration made by the child first to PW 3 and again to PW 1.

7. The legal position as regards such oral dying declaration is well settled. In Khushal Rao v. State of Bombay AIR 1958 SC 22, it was explained as under:

"16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made ; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the pri