Full Judgment
R.K. Patra, J.
1. The appellant Laba Behera stands Convicted Under Section 304, Part of the Indian Penal Code (in brief IPC) and sentenced to undergo rigorous imprisonment for seven years.
2. Briefly stated, the prosecution Case is that the grand-father of the deceased Govinda (hereinafter referred to as the deceased') after reclaiming a piece of government land had planted some mango trees. Prior to the occurrence, the appellant cleared up a portion of that land' with a view to cultivate the same for which there was hitch between the deceased and the appellant. On 11.10-1988 just before the evening when the deceased was returning from his field and was passing on the path in front of the house of the appellant, he (appellant), his wife accused No. 3 and their son, accused No. 2 attacked the deceased with axes, lathis causing severe breeding injuries on the head and other parts of his body. As' the decease'd did not return to his house, his wife in anxiety sent her son (PW 1) to search for his father. PW 1 in course of search found his father (deceased) fying injured on the path in front of the house of the appellant. On enquiry from his father (deceased), PW 1 could' know that the appellant, his wife accused No. 3 and their son accused No. 2 assaulted him on account of which he had sustained bleeding injuries. PW 1 reported the matter at the focal police station. After the arrival of police, the deceased was removed to the local dispensary for treatment and thereafter he was taken to Deogarh Sub-divisional hopita for treatment. He, however, died at Deogarh hospital on 16-11-1988, After completion of investigatiorr, charge-sheet was fried and the appellant along with his wife and son faced trial in the Court of Additional Sessions Judge, Sambalpur Under Section 304, Part T of IPC. The trial Judge found the appellant and his son accused No. 2 guilty Under Section 304 Part I, IPC and sentenced each of them to undergo rigorous imprisonment for seven years. Accused No. 3, the wffe of the appellant, was found guilty Under Section 323 of (PC and was sentenced to undergo rigorous imprisonment for three months.
3. The appellant took the plea of denial,
4. There is' no eye witness to the occurrence. The conviction of the appellant is based solely on the alleged dying declaration made by the deceased before his son PW 1.
5. Sri R. N. Acharya, teamed counsel for the appellant, has contended that the evidence of PW 1 does not conclusively establish that his father made dying declaration implicating the appellant. He has also urged that the cause of death of the deceased being not on account of assault, the statement of PW 1 that his father had made dying declaration implicating the appellant is not admissible in evidence.
6. PW 1 has stated that when he came out in search of his father (deceased), he found him lying injured in front of the house of the appellant on his query, he told him that the appellant, his son accused' No. 2 assaulted him with axes and accused No. 3 assaulted him with lathi. To the question put by the Court, PW 1 has stated that he saw his father lying on the ground with his face downwards and the accused persons were assaulting him. This is clearly a contradictory statement. Be that as it may, let me examine the dying declaration said to have been made by the deceased before his son PW 1. The dying declaration is the statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. Such statement is admissible in evidence Under Section 32(1) of the Evidence Act. PW 12 is the doctor who conducted post mortem examination on the dead body of the deceased. After noticing external injuries, he has stated that the cause of death of the deceased was due to haemorhage and shock and was due to erosion of popliteal artery resulting from non-healing of the wound on the thigh. From the evidence of the doctor it is clear that the cause of death of the deceased was due to non-healing of the wound on the thigh. Apart from the fact that there is no evidence that the; appellant had caused any thigh injury on the deceased, the dying declaration made by him is not admissible in evidence. In the case of Moti Singh and Anr. v. The State of Uttar Pradesh, AIR 1964 SC 900, the Supreme Court observed in paragraph 16 of the judgment as follows :
'...Clause (1) of Section 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. When Gayacharan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent State.'
In view of this, the statement of the deceased before his son PW 1 that he assaulted by the appellant clearly falls outside the ambit and is not strictly within the permissible limits laid down by Section 32(1) of the Evidence Act. The statement of PW 1 implicating the appellant is thus inadmissible. There is no other evidence to connect the appellant with the crime. As such he is entitled to be acquitted.
7. For the reasons mentioned above, the conviction and sentence passed against the appellant are hereby set aside and he is acquitted. He be set at liberty forthwith if his detention is not required in any other case.
8. The Jail Criminal Appeal is allowed.