STATE Vs. SUBRAT BALA

JUDGEMENT

(1.) DSREF No. 3 of 2006 has been registered on the reference under Section 366, Code of Criminal Procedure from the Additional Sessions Judge, Malkanagiri to confirm the death sentence passed in Criminal Trial No. 29 of 2005. The convict while in jail preferred Jcrl No. 1 of 2007. He also filed Crl. A. No. 8 of 2007. So both the appeals and the Dsref are heard analogously and disposed of by this common Judgment.

(2.) PROSECUTION case stated in nub is that accused Subrat Bala got married to Malati in the year 2004 in accordance with their Caste custom. At the time of marriage the accused and his family members demanded a sum of Rs. 10,000/ - towards dowry, but due to financial crunch the father of the bride gave Rs. 8000/and assured to pay the balance amount later. The couple led a happy conjugal life for about two months and thereafter skirmishes erupted between them because of non -payment of the balance Rs. 2,000/ - towards dowry. The accused and his family members including accused Sankar Mandal (since acquitted), tortured the bride both physically and mentally in many a way. Ultimately on 20.4.2004 at about 8.00 A.M. while the deceased was asleep in her bed room the convict spreading kerosene oil over her, set her on fire. Thereafter she was removed to Kalimela U.G.P.H.C. While undergoing treatment she declared that on 20.8.2004 at abut 8.00 A.M. accused sprinkled kerosene over her and set her on fire. That statement was reduced into writing by the attending physician Dr. Santosh Kumar Patro. As the condition of the injured was very precarious, on the suggestion of the doctor, she was removed to the District Headquarters Hospital, Malkanagiri where she succumbed to the injuries on the same date at 11.00 A.M. an 24.8.2004 father of the deceased got the F.I.R. scribed by one Chaitanya Choudhury of Kalimela and lodged it before the O.I.C. of Kalimela P.S. As the allegations contained in the F.I.R. revealed a cognizable case, the O.I.C. registered it under Sections 498A/302/304B/34 of Indian Penal Code read with Section 4 of D.P. Act and took up investigation. In course of investigation he visited the spot, held inquest over the dead body, sent it to the morgue for autopsy, examined the witnesses, arrested the accused persons, forwarded them to Court and after conclusion of investigation, submitted Charge Sheet under Sections 498A/302/304B/34 of Indian Penal Code with Section 4 of D.P. Act against them.

(3.) ADMITTEDLY there is no eye witness to the occurrence. The Trial Court passed the order of conviction mainly relying on the dying declaration of the deceased. No doubt conviction can be made basing on the dying declaration of the deceased, but before recording the order of conviction the Court must satisfy itself that the dying declaration was voluntary, corroborative to other facts and circumstances and it is safe to act upon. In the case at hand, as found from the case record, Dr. Patro recorded the dying declaration of the deceased. P.W.4, father of the deceased, P.W.5, her brother, P.W.7, her cousin and P.W.6 have said to be present by the time deceased made the dying declaration. On perusal of the evidence of P.W.5, it is seen that while the dying declaration was recorded by the doctor, he himself and another were only present. If this part of his evidence is taken to be true, then out of P. Ws.4, 6 and 7 only one was present by the time the deceased made dying declaration. It is the salutary principle of Criminal Jurisprudence that the best available evidence should be accepted. In the present case, as stated earlier P.W.4 is the father, P.W.5 is the brother and P.W.7 is the cousin of the deceased. Even though there is nothing to show that P.W.6 was related to the deceased, it transpires from his evidence that he is her co -villager. So all these witnesses are likely to be interested for success of the prosecution. The doctor, a Government official who recorded the dying declaration of the deceased is apparently an independent witness to give evidence on the dying declaration, but his examination was withheld. Learned Public Prosecutor who conducted the case, did not take care to examine such a vital witness. The Trial Court also did not take notice of this serious lapse. Furthermore, the I.O. was also not examined in the case at hand. It appears from the deposition of P. Ws. 3 and 4 that their statements recorded under Section 161, Code of Criminal Procedure were confronted to them. Non -examination of the I.O. has resulted in non -confrontation of such statement to the I.O. for which accused/Appellant claims for benefit accordingly.