A dying declaration can suffice for conviction if recorded by an independent medical professional, confirming the declarant's consciousness, regardless of the absence of direct eyewitnesses.

JUDGMENT :

Sashikanta Mishra, J.

The appellant faced trial for committing dowry death/murder of his wife in Sessions Case No.228/1999 in the court of learned Sessions Judge, Ganjam-Gajapati at Berhampur and being convicted for the offence punishable under Section 302 I.P.C., he was sentenced to undergo rigorous imprisonment for life vide judgment dated 24.2.2004, which is impugned in the present appeal.

2. Prosecution case, briefly stated, is as follows;

The accused married one Gitanjali Palo, daughter of Prabhasini Palo, as per Hindu rites on 17.1.1999 at Jagannath Temple, Puri. It was agreed to pay Rs.2,00,000/- as dowry as demanded by the bridegroom. Prabhasini, paid Rs.50,000/-, gold ornaments, wearing apparels and several household articles. The accused used the said amount for purchasing articles for his stationary shop. The balance amount was agreed to be paid after marriage. The accused ill-treated his wife by physically and mentally torturing her demanding the balance amount. The couple was staying in a rented accommodation. On 23.3.1999, Prabhasini heard that the accused had set her daughter ablaze by pouring kerosene on her body. Hearing this, she rushed to the house of her daughter and found her with severe burn injuries all over the body with kerosene smell. Her daughter informed her that the accused had poured kerosene on her and set fire to her using a match stick. Prabhasini took her daughter on a rickshaw to the hospital with the help of others where she was treated in a critical condition. She reported the matter at Mahila P.S., Berhampur on the next date. Basing on such report, P.S. Case No.14 dated 24.3.1999 was registered under Section 498 -A/307 I.P.C. and Section 4 of the D.P. Act followed by investigation. In course of investigation, the victim having died, the case turned to Section 304 - B/302 of I.P.C. Charge sheet was accordingly submitted.

3. The plea of the accused is of complete denial.

4. To prove its case, prosecution examined 10 witnesses and proved 20 documents. Defence, on the other hand, did not adduce any oral evidence but exhibited two documents.

5. After analyzing the evidence on record, learned Sessions Judge held that the prosecution had well established its case against the accused. The dying declaration of the deceased and the evidence of the other witnesses including the informant were taken into consideration by the learned Sessions Judge in arriving at the above conclusion.

6. Heard Ms. Diptirekha Nanda, learned counsel for the appellant and Ms. Subhalaxmi Devi, learned Addl. Standing counsel for the State.

7. Ms. Nanda assails the impugned judgment of conviction on the ground that the presence of the appellant at the spot has not been proved nor his motive to cause death of the deceased. Reliance on the dying declaration is incorrect as there is no evidence to show that the deceased was in a fit state of mind to make such a statement. Prosecution never proved that the dying declaration was voluntary, truthful and free from tutoring. Though it has been alleged that there was a large gathering of people when the informant reached the spot, no one has stated about the dying declaration purportedly made by the deceased before her.

8. Per contra, Ms. Subhalaxmi Devi would contend that it is well settled that only because a person sustained 90% burn injuries does not automatically imply that he/she is not in a