PURNA CHANDRA SINGH Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE appellant stood charged under Sections 302 and 397 of the Indian Penal Code, for committing robbery in respect of gold ornaments from the person of Dhani Bewa (hereinafter described as the 'deceased') by attacking and assaulting her to death by means of a knife on March 14, 1980, at Bolgarh in the district of Puri. To bring home the charges, the prosecution had examined nineteen witnesses and had relied on the verbal dying declaration said to have been made by the deceased before the first -informant Lokanath Das (P. W. 1) and before P. Ws. 2 to 5, the recoveries of ornaments of the deceased and the weapon of attack at the instance of the appellant and the dying declaration (Ext. 11) recorded by the. doctor (P. W. 7) in the presence of two persons, namely, Rabindra Kumar Parida (P. W. 11) and Baskar Chandra Mohapatra (P. W. 16), who had attested it, on the day of the occurrence itself. The trial Court did not place reliance on the evidence of P. W. 1 with regard to the dying declaration said to have been made by the deceased naming the appellant as the author of the crime. P. Ws. 2 to 5, who were said to have made some incriminating statements against the appellant in the course of investigation in - this regard, did not support the case of the prosecution and were put leading questions by it. The learned Sessions Judge found that the evidence did not warrant a conclusion that the ornaments of the deceased and the weapon of attack had been recovered consequent upon the statements made by the appellant. The appellant was acquitted of the charge of robbery framed against him. Accepting the dying declaration (Ext. 11) as true and trustworthy, the learned Sessions Judge has based the order of conviction of the appellant under Section 302 of Indian Penal Code solely thereon and has sentenced him to undergo imprisonment for life.

(2.) IT is not disputed at the Bar that the deceased had did a homicidal death. Inviting our attention to the principles laid down by the Supreme Court in AIR 1958 Supreme Court 22 : 1958 Cr. L. J. 106 - Khushal Rao v. State of Bombay, AIR 1972 Supreme Court 1776 - Lallubhai Devchand Shah and Ors. v. The State of Gujarat, AIR 1976 Supreme Court 1994 :1976 Cr. L. J. 1548 K. Ramchandra Reddy and Ors. v. The Public Prosecutor and AIR 1978 Supreme Court 1530 -The State of Haryana v. Harpal Singh and Anr. Mr. Ram has contended on behalf of the appellant that the evidence with regard to the dying declaration not only bristled with discrepancies, but was also fraught with suspicious features and it could not be said on the evidence that the deceased made a dying declaration which could form the basis of an order of conviction. The learned Standing Counsel has supported the order of conviction as well -founded on the basis of the dying declaration and has submitted that it has been a settled principle of law that an order of conviction can be based solely on a dying declaration.

(3.) THE law laid down by the Supreme Court from time to time with regard to the probative value of dying declaration may be kept in mind. Section 32 of the Evidence Act does not require that a statement should be made in expectation of death. (See AIR 1979 Supreme Court 1347 -Tehal Singh and Ors. v. State of Punjab). Great weight must naturally and necessarily be attached to a dying declaration recorded very shortly after the occurrence. Merely because some friends and relatives happen to be with the deceased before the statement is recorded, the statement cannot be thrown out as tutored, (Vide AIR 1979 S. C. 1181 -Habib Usman v. The State of Gujarat). In the well -known case of Khushal Rao v. State of Bombay (supra), Their Lordships of the Supreme Court have laid down :