SAMA KIRSANI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Solely on the basis of a dying declaration said to have been made by Sukri Toki (to be referred to hereinafter as the deceased) that her husband (appellant) had shot an arrow at her which ultimately resulted in her death, as deposed to by the only witness (P.W. 1), a covillager of the appellant and the deceased, Mr. R.N. Panda, Sessions Judge, Koraput, has held the charge against the appellant under Section 302 of the Indian Penal Code (the TCodeT, for short) established and has recorded a finding that on the 12th April, 1980 the appellant committed murder of the deceased and accordingly the appellant has been convicted under Section 302 of the Code and sentenced to undergo rigorous imprisonment for life.

(2.) Mr. Mohanty for the appellant bas assailed the order of conviction as absolutely unfounded as according to him, the evidence of P.W. 1 was not worthy of credence and with the injuries that the deceased had on her person, she could not have made a Statement naming her husband to be the author of the crime. Regard being had to the serious infirmities in the evidence to be referred to hereinafter. Mr. Das, the learned Additional Standing Counsel, has very candidly and fairly submitted, which it is the duty of the State Counsel to do appearing as he does for the state and not for a private party interested for the persecution of the accused and not his prosecution, that he wound not support the order of conviction as the evidence on record with regard to the dying declaration could not be accepted.

(3.) It has been a settled principle of law that an order of conviction can be based solely on a dying declaration of the deceased. It is equally well-settled that the evidence on which the prosecution seeks reliance to establish the, dying declaration requires the strictest scrutiny and closest circumspection. In the instant case, there was no proof of any motive on the part of a husband to kill his wife. This would keep the Court on guard to examine the evidence with extraordinary care.