Judgment:
A. Pasayat, J.
1. Conviction made Under Section 302/34 of the Indian Penal Code, 1860 (in short, the 'IPC') and sentence of imprisonment for life as awarded by learned Addl. Sessions Judge, Sambalpur are asssiled by Sushania Behera and Dharmu Behera (hereinafter described as the 'accused'). They were charged with the offence of commission of murder in furtherance of common intention of one Tirthabasi Harijan (hereinafter described as the 'deceased').
2. Background facts shorn of unnecessary details are as follows :
Khira Dei, the sister of the informant Golbadan Harijan (PW 1) was given in marriage to the accused Sushanta Behera, who is the son of other accused Dharmu Behera. Due to frequent quarrel between the husband and wife, Khira came to her father's house. Accused Dharmu convened a meeting where it was decided by the Panchayat that the fault did not lie with the husband and the wife, but with their respective fathers. The deceased did not agree to allow his daughter to join her husband, although she was willing to do so. On 2-5-1987 accused Sushanta came to the house of the informant and requested him to allow his wife to go back with him. The request was turned down by the informant, as well as by his parents. Accused Sushanta was not happy with such attitude of the informant and the deceased, and threatened to teach them a lesson. On 4-5-1987 at about 10 A.M., the deceased had gone out to purchase a calf in the company of Kanhei Patra. At about 9 P. M. Kanhei Patra and Bhagia Patra came to the house of the informant and told him that the deceased use lying injured and had been brought to the house of Kanhai Patra. They requested PW 1 to come soon, as the injured was not able to talk. Immediately, the informant went to the house of Kanhei in the company of Kama! Lochan (PW 2), Ghanashyam Harijan (PW 3). his mother Raibari and wife Nandini, and found the injured tying there with injuries on the head and body. They gave some water. To the query of the informant as to what happened, the deceased stated that Sushanta and Dharmu restrained his movement and had assaulted him with lathis. Thereafter, the injured kept quiet and died. The informant came to learn from Charanga Sahu that at about 8 P. M., he heard the cry of the injured for half an hour. Though initially he did not take any notice, subsequently from the voice he could recognise that the injured was the deceased. He called Kanhei Patra, Rasananda Padhan and Bhagia Patra and went to the spot and brought the deceased to the house of Kanhei Patra therefrom. The FIR was lodged on 5-5-1987 at 8 P. M., investigation was undertaken and after completion thereof, charge-sheet was filed and accused persons faced trial. The accused persons took a plea of complete denial of the occurrence and false implication.
3. In order to further its case, prosecution examined twelve witnesses. Four of them i. e. PWs 1, 2, 3 and 4 are stated to be the witnesses relating to dying declaration made by the deceased to the effect that the accused persons had assaulted him. To gauge whether there was any complicity on the part of the accused persons with the crime, three aspects were highlighted by learned trial Judge, namely, (i) motive, (ii) threat by accused Sushanta and (iii) oral dying declaration He held motive was sufficiently established though there was no document to show that there was any decision by the Panchayat. He referred to the FIR lodged immediately after the occurrence wherein mention was made about the threat given. He also believed the witnesses to the extent that threat was given by accused Sushanta. It was observed that in view or evidence of the informant and PW 4 to the effect that accused Sushanta had threatened PW 1 with the consequences, there was possibility of Sushant feeling aggrieved and committing the act as alleged. So far as dying declaration is concerned, learned trial Judge believed the same to be acceptable, though he found that PW 2 did not stand by what he had stated during investigation. Holding that the chain of circumstances clearly indicated to the guilt of accused, learned trial Judge convicted the accused persons and sentenced them as aforesaid.
4. in appeal, it has been strenuously urged that prosecution has squarely failed to establish its case. Dying declaration aspect which was highlighted by the learned trial Judge was attacked on the ground that the same lacks credibility. it was also submitted that on the uncorroborated evidence of the witnesses regarding threat and the alleged motive, conviction should not have been made. Learned counsel for State however, submitted that the dying declaration was made voluntarily and a person who is also breathing his last would not falsely implicate anybody, more so, when the accused was his son-in-law and other accused was his Samudhi.
5. We shall first deal with the dying declaration aspect. According to the prosecution the declaration was made before PWs 1, 2, 3 and 4. PW 2 as indicated above did not stand by what was allegedly to have been stated by him during investigation. PW 3 did not state before the Investigating Officer about the dying declaration. So their evidence is not of much consequence. Apart from the evidence of PW 1, the witness who deposed about the dying declaration is PW 4. Certain relevant aspects of the prosecution case, which have bearing on the dying declaration aspect need to be highlighted. From the beginning, the deceased was stated to be in the company of one Kanhei Patra. He had played a very vital role in the prosecution scenario. The deoeased had gone to the market with him. He was the person who heard about deceased lying injured first and the deceased' was brought to his house in and injured state. Surprisingly, he has not been examined as a witness. From the records, we find that he had appeared on 4-12-1987 for the purpose of tendering evidence. Surprisingly/the A. P. P. declined his examination. Similarly, Charanga Sahu is another person whose name figures in the FIR, It was from him, informant claimed to have heard about the assault. He also appeared on 4-12-1987 for the purpose of tend ering evidence. His examination was also declined. Similar is the case of Bhagirathi Patra. When a large number of witnesses who could have thrown light on the occurrence are not examined, a strong suspicion arises about the credibility of prosecution case. Additionally, we find that the socalled dying declaration has not been proved to the hilt by the prosecution.
Section 32 of the Indian Evidence Act, 1872 (in short, the 'Act') is an exception to the general rule that hearsay evidence is excluded. The exceptions embodied in this Section are with regard to statements or declarations by persons since deceased. One of such exceptions is the declaration relating to cause death. The general ground of reception of such evidence is that in the cases in question no latter evidence is to be had. Such statements are admitted on the principle of necessity. In cases of homicide, statements made by a person, since deceased, are admissible to prove the cause and circumstances of the man's death. Such statements are called dying declaration. In certain cases, English Judges have observed that such statements should be made when the person is in 'settled, hopeless expectation of imminent death.' For the first time, the phrase was used by Willes J. in R. V. Peel 2 F 4 F 21. Their admissibility rests on the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath-Namo moriturus praesumntur mentiri. As observed by Cyre CB, in R. V. Woodcock (1787) 1 Leach 500, 'the general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind induced by the most powerful considerations to speak the truth, a situation so solemn and no awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice.' The possibility of the evidence relating to the dying declaration needs consideration. It is not in record as to when assaults took place. The person who first found the deceased in an injured state has not been examined. On the contrary, the FIR itself shows that Kanhei and Bhagirathi came to the house of the informant, and told him that deceased was not able to talk. Evidence of PW 5 is also relevant in this aspect. He has stated that when water was administered to the deceased at the place of occurrence, he could not drink it, and when they saw the deceased at the place of occurrence, he was not in a state of mind to speak or understand. The evidence of the Doctor (PW 6) is to the effect that from the injuries of the nature inflicted on the deceased, death of the deceased was to be instantaneous. However, on being recalled and re-examined, he suggested that the death of the injured might have been within half an hour from the time of receipt of the injuries The time gap as deposed by the witnesses clearly shows that by the time the injured was first found lying injured, more than half an hour had elapsed as is evident from the l-|R itself. Then considering the distance travelled by Kanhei to go to the house of the informant and back to his own house, there is further time gap and therefore, it would not be safe to accept the evidence that after water was being administered, the deceased who was otherwise in unfit state of mind gave out the name of the assailants and then lapsed to silence and expired.
6. In view of the unsatisfactory nature of evidence tendered, it would be unsafe to convict the accused. Therefore, question of motive and threat given by accused Sushanta on which stress has been led by learned trial Judge cannot be considered to be material and of consequence. We set aside the order of conviction made and sentence as awarded by learned Addl. Sessions Judge, Sambalpur.
The Criminal Appeal is allowed.
D.M. Patnaik, J.
7. I agree.