This particular decision is upheld by the High Court of Odisha through the division bench of Justice R.K Pattanaik in the case of Anjari Rout V State of Odisha (JCRLA No.88 of 2006)
the informant lodged the F.I.R. dated 29th October, 2003 describing therein about the alleged incident, where after, Nuapada P.S. Case No. 99(19) was registered under Section 307 IPC. Later on, the Appellant being the husband of the victim, who succumbed to the burn injuries she received during the incident, was charge sheeted under Section 302 IPC. The prosecution adduced oral and documentary evidence during the trial.
Having regard to the above facts and law and considering the evidence of P.W.1 and P.W.2 in particular and that of P.W.10, who recorded the dying declaration of the victim, the Court is of the view that such disclosure of the deceased appears to have been made at a time when she was in a condition to make it. The testimony of P.W.13 also adds to the veracity of the claim of the prosecution as to the dying declaration. P.W.13, in usual course of investigation, recorded the statement of the deceased under Section 161 Cr.P.C. which has subsequently been treated as a dying declaration upon her death. It is a matter of wide knowledge that when statements are recorded under section 161 Cr.P.C., it is not recorded in presence of a Magistrate or doctor but under peculiar circumstances stands converted into a dying declaration by a deeming fiction in view of section 32(1) of the Indian Evidence Act. The learned court below has duly taken notice of the legal position regarding acceptance of statement recorded under Section 161 Cr.P.C. as a dying declaration by citing a decision in the case of Tellu v. State (Delhi) 1988 CrLJ1062. In so far as smell of kerosene having not been noticed by P.W.10 while treating the victim at the hospital is concerned, it may have gone undetected for certain reasons. The absence of any such evidence could even be on account of lesser quantity of inflammable substance used. Without being engaged in any kind of wild guess work, the Court considers it to be no such ground sufficient to entirely demolish the case which is based on dying declarations of the victim found to have been acceptable and trustworthy. The death of the victim is due to burn injuries on account of the alleged mischief of the Appellant which was revealed by the victim at the hospital while receiving treatment. The evidence shows that the Appellant with others had shifted the victim to the hospital.
It is settled law that the factor which distinguishes culpable homicide from murder is the presence of special mens rea which consists of the mental attitudes indicated in Section 300 IPC and unless one of it is attributable to the act, no offence of murder is made out. In the instant case, the Appellant appears to have had an apologetic conduct for trying to save the victim, who however could not survive and died on account of Septicemia after undergoing treatment for over a fortnight. In the result, the JCRLA stands partly allowed. For the aforementioned reasons, the impugned judgment dated 19th November, 2004 passed in Sessions Case No.37/11 of 2004 by the learned Additional Sessions Judge, Nuapada is hereby modified to the extent that the Appellant is held guilty for culpable homicide punishable under Section 304, Part I, IPC and accordingly, sentenced to R.I. for 10 years and pay a fine of Rs.2000/- and further in default to undergo R.I. for 3 months.
JUDGEMENT REVIEWED BY NAISARGIKA MISHRA