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2014 DIGILAW 55 (ORI)

Somanath Sabar @ Telenga v. State of Orissa

2014-01-22

BISWAJIT MOHANTY, PRADIP MOHANTY

body2014
JUDGMENT The appellant, having been convicted for commission of offence under Sections 302/436 IPC and sentenced to undergo imprisonment for life for commission of offence under Section 302 IPC and to undergo rigorous imprisonment for seven years for commission of offence under Section 436 IPC, has preferred this appeal from jail. 2.The case of the prosecution is that on 18.1.2001 at about 7 : 15 PM, the informant-Pitara Sabar (P.W.3) lodged a written report before the S.I. Police (P.W.6) of Gunupur Police Station at his camp at Padidi alleging therein that on 17.1.2001 at about 5:00 PM, the appellant, came to the village and said that he would burn his mother (deceased) like a person of Odingi was set fire and saying so, he entered into the house and poured kerosene on his mother and set fire to her. Seeing this, the informant and others rushed to the spot and found that while the deceased, in order to save herself, tried to come outside the house, her burning clothes came in contact with the thatched roof as a result of which the fire got spread to other houses. Further, on 18.1.2001, the O.I.C. of Gunupur Police Station received a telephone call from an unknown person that a person had set fire upon an old lady in village Padidi. On getting this information, the O.I.C. made an entry in the station diary and directed the S.I. (P.W.6) to go to the spot for inquiry. On reaching the spot, P.W.6 found Hadia Saburuni lying unconscious with burn injuries on her person. He examined her husband-Lakia Sabar and sent the lady to S.D. Hospital, Gunupur for treatment. Subsequently, he received information that on 19.1.2001 at about 9 : 30 AM, the victim died at the hospital and after completion of the formalities, he filed charge-sheet as against the present appellant under Section 436/302 I.P.C. 3.The appellant took the plea of complete denial and took a specific plea that due to enmity, P.Ws.3, 4 and 5 falsely implicated him in this case. 4.In order to bring home the charge, during trial the prosecution examined as many as six witnesses including the doctor and the investigating officer. The defence examined none despite being provided with said opportunity. 4.In order to bring home the charge, during trial the prosecution examined as many as six witnesses including the doctor and the investigating officer. The defence examined none despite being provided with said opportunity. 5.The trial judge, who tried the case has convicted the present appellant for above offences and sentenced him thereunder with a finding that the act of the present appellant in setting fire to his mother has also caused the destruction of his house & other houses and the death of his mother. 6.Learned counsel for the appellant assails the order of conviction on the following grounds : (i)There is no direct evidence with regard to setting of fire and all the witnesses are in enmical term with the present appellant; (ii)The dying declaration (Ext.3) recorded by P.W.2 is not a believable document as because the deceased sustained 90% burn injuries and in such a situation it is not possible to give a declaration; and (iii)No intention has been proved by the prosecution and at best the conviction can be sustained u/s. 436 IPC by taking all the evidences. 7.Mr. Agarwalla, learned Additional Standing Counsel strongly contends that the evidence of the Additional Tahasildar-cum-Revenue Officer (P.W.2), who recorded the dying declaration, is sufficient to convict the present appellant under Section 302 IPC. P.Ws.3, 4 and 5 have specifically stated that the present appellant set the deceased on fire in the house to kill her. P.Ws.3, 4 and 5 specifically stated that the appellant gave a declaration that he would set fire to her mother kill her. The medical evidence also corroborated the oral evidence and the dying declaration. 8.Minutely gone through the evidence on record. P.W.1 is the doctor who initially examined the victim and found 90% deep burn injuries on her person. He prepared the injury report under Ext.1. On 19.1.2001, when the victim died, he conducted autopsy over the dead body of the deceased and found the following : “There is 90% burn of the body which is deep in nature in presence of peeled skin with blisters containing of serious fluid. There is line of redness surrounding the burn area. Internal appearance on cut section of the larynx the mucous membrance of the trachea is congested with presence of blackish shot particles. The lungs are congested the heart is congested with both chamber empty. The stomach is congested containing greyish fluid fishy in colour. There is line of redness surrounding the burn area. Internal appearance on cut section of the larynx the mucous membrance of the trachea is congested with presence of blackish shot particles. The lungs are congested the heart is congested with both chamber empty. The stomach is congested containing greyish fluid fishy in colour. The mucous membrance of the stomach is congested and there is presence of ulcer inside the duodenum. The spleen is congested enlarged and soft. Other visceras are congested the bladder is congested and empty. The brain is congested and soft a reddish brown deposit is found upon the upper surface of the duramater and thin layer of extradural blood underneath the vault. However, the whole stomach with its contents the portions of longs, heart, liver, spleen, kidney and intestine are preserved.” He opined that the cause of death was due to extensive deep burn which is antemortem in nature. In cross-examination, he admitted that he examined the deceased after about 24 hours from the time of sustaining the burns and stated that if during the treatment of the patient, the fluid balance in the body would be maintained and infection be controlled, then there was chance of the patient regaining the sense. P.W.1 further stated that the burn injuries found on the person of the deceased could be caused if the wearing apparels of a person came in contract with burning DEBIRI or any burning fire. He denied a suggestion given by the defence that if there were 90% burns of the body except the scalps then there was no chance of the patient regaining his sense. He also admitted that the police gave a requisition for the examination of the patient and also for recording dying declaration if the patient was in fit state of mind to ascertain the cause. But at that time dying declaration could not be taken as she was in a state of semi-coma with inability and was not responding to verbal stimulae. P.W.2 is the Additional Tahasildar-cum-Revenue Officer, who recorded the dying declaration. He stated that on getting information over phone, he rushed to the spot where police gave a requisition for recording of the dying declaration of the victim lady. P.W.2 is the Additional Tahasildar-cum-Revenue Officer, who recorded the dying declaration. He stated that on getting information over phone, he rushed to the spot where police gave a requisition for recording of the dying declaration of the victim lady. Accordingly, in presence of her husband-Lakia Sabar and Maa Sabar (P.W.4) and police, he first put some question to the victim lady to know about her physical and mental condition to make any statement. Being satisfied, he recorded the statement verbatim as per the version of the victim lady in presence of her husband and Masa Sabar (P.W.4) and in presence of the police people. He obtained the L.T.I. of the victim, her husband and said Masa Sabar (P.W.4) on the dying declaration (Ext.3). The S.I. of Police (P.W.6) also put his signature at the bottom of the dying declaration. In cross-examination, he admitted that he recorded the dying declaration in front of her house but he had not specifically mentioned the said fact in Ext.3. Since no doctor was present at the time of recording the statement of the victim, he could not enquire as to whether the victim lady was in fit state of mind to give the statement. He has not recorded the declaration in form of question and answer. He denied a suggestion given to him by the defence that the victim lady had died by 7:45 PM. He also denied another suggestion given by the defence that the victim lady was unconscious at the time giving declaration. P.W.3 is a co-villager and informant of the case who, in his examination-in-chief, has stated that prior to the occurrence, there was a quarrel between the appellant and his mother (Deceased). The appellant poured kerosene on the body of his mother and set fire to her for which the deceased sustained burn injuries and the burning flames touched the roof of the house and the house was also burnt. He has also stated that police came to the spot on the next day and the victim lady died in the hospital. He also proved the FIR (Ext.4). In his cross-examination, he stated that he had also sustained burn injuries while he extinguished the fire. He accompanied the victim lady when police took her to hospital in an ambulance. He was present when the victim lady died in the hospital. Others villages have also tried to extinguish the fire. He also proved the FIR (Ext.4). In his cross-examination, he stated that he had also sustained burn injuries while he extinguished the fire. He accompanied the victim lady when police took her to hospital in an ambulance. He was present when the victim lady died in the hospital. Others villages have also tried to extinguish the fire. He denied a suggestion that he did not state before the I.O. that the accused set fire to his mother by lighting a match stick. He admitted in his cross-examination that prior to actual setting of fire to his mother, the accused was shouting in the village that he would set fire to the body of his mother and immediately thereafter there was fire on the body of his mother immediately. So he believed that the accused set fire to his mother. P.W.4 is another co-village and immediate neighbour of the accused who corroborated the statement of P.W.3. He specifically stated that hearing hullah of the appellant that he would kill his mother in the same way the master of village-Amadeni was brunt to death, he came out of his house and saw the accused entered into his house and poured kerosene on his mother and set fire by burning “DIBIRI”. After setting fire, the accused ran away from the spot and due to setting of fire, the cloths of the victim were burning and the flames touched the roof of the house and the roof of the house was also burnt. He and other villagers poured water on the body of the victim lady and tried to extinguish the fire and by that time, the victim lady was completely burnt. On the next day, the Magistrate came and recorded the dying declaration of the victim lady on which he put his LTI. He specifically stated that the victim lady was in sense and able to speak at the time giving the declaration. Thereafter, she was brought to S.D. Hospital, Gunupur. He also identified the DIBRI (M.O.I.) which was used for setting of fire. In cross-examination, he admitted that he had seen the accused setting fire to his mother and by the time of occurrence, he was drunk. He specifically stated that his house was also burnt in that fire. Thereafter, she was brought to S.D. Hospital, Gunupur. He also identified the DIBRI (M.O.I.) which was used for setting of fire. In cross-examination, he admitted that he had seen the accused setting fire to his mother and by the time of occurrence, he was drunk. He specifically stated that his house was also burnt in that fire. P.W.5 is another co-villager, who, in his examination in chief, has corroborated the statement of P.Ws.3 and 4 to the effect that prior to the occurrence, the appellant came to his house by abusing his mother. Hearing this, he and others went to the house of the appellant and found that the appellant poured kerosene from the burning DIBIRI on his mother and threw the same on her as a result of which the wearing apparels of the deceased got burnt and she sustained burn injuries. In cross-examination, he admitted that though his house situates in a different SAHI but the same is adjacent to the SAHI of the accused. He denied a suggestion given by the defence that he had not stated before the IO that he himself and others carried the inured from her house to the nearby Mahula trees. He also admitted that Masa Sabar (P.W.4) also helped him in shifting the injured from her house and that the injured was shifted to hospital in a vehicle on the next day night. P.W.6 is the I.O. of the case and stated that after getting information from an unknown person, that some body set fire upon an old lady in Village-Padidi, the O.I.C. of Gunupur Police Station made an entry in the station diary and directed him to go to the spot. Accordingly, he proceeded to the spot and found Hadia Sabaruni (deceased) lying unconscious in her house with burn injuries. He examined the husband of the deceased and at that time Pitar Sabar (informant) gave a written report to him. After receiving the said report, he took up investigation and sent the same to the police station for registration of the case. He proved the said report (Ext.4). He recorded the statement of the injured. In his presence, the dying declaration was also recorded by the Additional Tahasildar (P.W.2). After receiving the said report, he took up investigation and sent the same to the police station for registration of the case. He proved the said report (Ext.4). He recorded the statement of the injured. In his presence, the dying declaration was also recorded by the Additional Tahasildar (P.W.2). Thereafter, the injured was shifted to hospital for her treatment and on 19.1.2001, when he received information that the injured was succumbed to injury, he went to the hospital and conducted inquest. Thereafter, he sent the dead body for post mortem examination. He sent the viscera for chemical examination and made some query with regard to sign of poisoning. After completion of the investigation, he filed charge-sheet against the appellant under Sections 436/302 IPC. In cross-examination, he admitted that prior to receiving the FIR, he had examined the husband of the deceased and till he received the message over phone, there was no information regarding the alleged occurrence. Defence has not elicited a single word from the mouth of the witnesses to demolish the case of the prosecution. 9.On analysis of the evidence, it is clear that the occurrence took place on 17.1.2001 at about 5:00 PM and on the very same day, both P.Ws.4 and 5 said that hearing the shout of the appellant that he would kill his mother by setting fire both had come to the spot. P.W.4 specifically stated that hearing hullah of the appellant that he would kill his mother in the same way as the master of village-Amadeni was brunt to death, he came out of his house and saw the accused entered into his house and poured kerosene on his mother and set fire by burning “DIBIRI”. After setting fire, the accused ran away from the spot and due to setting of fire, the cloths of the victim were burning and the flames touched the roof of the house and the roof of the house was also burnt. P.W.5 has said that prior to the occurrence, the appellant came to his house by abusing his mother. Hearing this, he and others went to the house of the appellant and found the appellant poured kerosene from the burning DIBIRI on his mother threw the same to her as a result of which the wearing apparels of the deceased got burnt and she sustained burn injuries. Hearing this, he and others went to the house of the appellant and found the appellant poured kerosene from the burning DIBIRI on his mother threw the same to her as a result of which the wearing apparels of the deceased got burnt and she sustained burn injuries. Thus it is wrong to say that there exists no direct evidence with regard to setting of fire. Thus there being direct evidence, question of motive loses its importance. The deceased made a dying declaration before Additional Tahasildar (P.W.2) who recorded the same in presence of other witnesses and the husband of the deceased. The deceased specifically implicated the appellant in the dying declaration which has been proved under Ext.3. In the case of Laxman v. State of Maharashtra; AIR 2002 SC 2973 , it has been held that it is essentially required that a person who records the statement must be satisfied that the deceased was in fit state of mind. On perusal of the dying declaration (Ext.3) and the statement of the Additional Tahasildar (P.W.2), who recorded the said statement, it is clear that initially P.W.2 put some questions to the injured lady and after being satisfied, he recorded the statement. Therefore, it cannot be said that the injured was not in fit state of mind while giving the dying declaration. In his cross-examination, an attempt was made to demolish the evidence, but it has failed. There is no material discard the evidence of P.Ws.2 and 3. Moreover, P.W.4, a witness to the dying declaration also corroborated the statement of P.W.2. P.W.4 also proved the dying declaration (Ext.3). The doctor (P.W.1) who initially treated the injured lady and thereafter conducted the autopsy over the dead body, has also said that he received the patient with 90% burn injuries. He specifically opined that the cause of death was due to deep burn injuries which is antemortem in nature. He also corroborated the case of the prosecution. 10.In view of the above, there is no dispute that the present appellant was the author of the crime, who committed the murder of his mother and also damaged the house of the neighbours by setting fire. 11.In the result, the Jail Criminal Appeal being devoid of merit stands dismissed and the order of conviction recorded by the trial Court is hereby confirmed. Appeal dismissed.