'Dying Declaration Need Not Be Addressed To A Particular Person': Orissa HC Upholds Conviction Of Man For Brother's Murder

The Orissa High Court has held that a dying declaration need not be addressed to a particular person and even the deceased yelling in pain, disclosing name of the murderer, can also be accepted as a valid dying declaration, if Court is satisfied about the voluntariness as well as veracity of the declaration.While upholding the conviction of a man for murder of his brother, the Division Bench of Justice Sangam Kumar Sahoo and Justice Savitri Ratho further held –“The dying declaration is a substantive evidence only for the reason that a person in acute agony is not expected to tell a lie and in all probability, it is expected from such person to disclose the truth and an order of conviction can be safely recorded on the basis of dying declaration, if the Court is fully satisfied that the declaration made by the deceased was voluntary, true and reliable and in such case, no further corroboration can be insisted.” Prosecution CaseOn 28.06.2009, the ASI of Larambha outpost received a telephonic information from an unknown person regarding the murder of the deceased for which he proceeded to village Damkipali to enquire into the matter. Upon reaching there, the informant, who is the son of the deceased, presented a written report informing the circumstances under which the death of the deceased occurred. It was alleged that while he was taking rest after taking lunch, his elder father (P.W.13) and cousin brother (P.W.16) informed him that the appellant caught hold of his deceased father near his house and after tying his neck by means of a napkin with a wooden post, killed him by stabbing with a Trisul (trident) on his head and body. Thereafter, he packed the dead body in a gunny bag, loaded it on his bicycle and went towards the jungle.Upon receiving such written information, an FIR under Section 302 (punishment for murder)/201 (causing disappearance of evidence of offence) of the IPC was registered and investigation was conducted. On completion of investigation, the police found prima facie involvement of the appellant as well as his wife in commission of the alleged offences and therefore, submitted the chargesheet against them.By analysing the evidence on record, the trial Court found that the death of the deceased was homicidal in nature. From the testimony of two eye-witnesses as well as medical evidence, the Court further held that the prosecution has proved its case beyond all reasonable doubts against the appellant under Sections 302/201. However, it acquitted the wife of the appellant of all the charges. High Court's FindingsThe High Court examined the post-mortem report of the deceased which indicated homicidal brain injury along with injury to peritoneum. The cause of death was opined to be due to the brain injury accompanied by shock.Being convinced about homicidal nature of death of the deceased, the Court then went on to examine the testimonies of two eye-witnesses. Elder brother (P.W.13) and nephew (P.W.16) of the deceased heard him shouting for help for which they proceeded to the relevant spot. P.W.13 deposed that he heard somebody calling him 'Dada Dada' and upon hearing such sound, he went towards the direction from where such sound was coming and found the deceased lying at the backside of a house and the appellant was standing near him by holding a lathi. The appellant threatened him of dire consequences for which he returned.Similarly, P.W.16, the son of P.W.13, stated to have heard a sound 'Dakatar mote mari deuchi mote bancha bancha' (Daktar is killing me, please save me). Upon hearing the shout, he along with his father (P.W.13) proceeded towards that direction and they found the deceased lying at the backside of a house and the appellant was standing near him holding a bamboo lathi affixed with Trishul (trident). He also deposed that the appellant threatened them of dire consequences. On hearing the same, his father went inside the village out of fear and he alone witnessed the incident by concealing himself. He further stated that the appellant went inside his house, brought a gunny bag and put the dead body of the deceased inside the same, tied it by means of a rope, loaded the same on the middle of the bicycle and went towards the jungle.It was contended on behalf of the appellant that though both the aforesaid witnesses were in the same house and heard somebody shouting, still both of them deposed to have heard two different things. However, the Court rejected such argument by observing –“What exactly was heard by the two might be little discrepant, but as rightly pointed out by the learned State counsel, P.W.13 was aged about sixty years whereas P.W.16 was thirty five years. Therefore, their power of audibility which refers to the ability of human ear to detect and perceive sounds, encompassing the range of frequencies and sound levels may be different. It is a normal phenomena that as people grow older, their ability to hear, particularly high frequency sounds, declines, a...

'Dying Declaration Need Not Be Addressed To A Particular Person': Orissa HC Upholds Conviction Of Man For Brother's Murder

Jyoti Prakash Dutta

Tags