State Of Orissa vs Rajua @ Rajakishore Natha and Others

The State is seeking leave to appeal against the judgment dated 2nd April, 2010 passed by the Additional Sessions Judge, Jagatsinghpur in S.T. Case No.584 of 2001 acquitting the Opposite Parties-accused for the offences punishable under Sections 302 read with Section 34 of IPC.

The Opposite Parties stood charged with having committed the murder of the deceased Budha @ Abhaya Sukla of Chiradia, P.S. Kujanga at around 12.30 p.m. on 22nd January, 1995 by giving him beatings.

The informant was Dibakar Mallik, the Grama Rakhi, who stated that while he had been to the Paradeep garh gate, he heard shouting near a telephone exchange. When he ran to that spot, he found the deceased being severely assaulted by the Opposite Parties-accused. After the informant shouted, the said persons are stated to have fled from the spot. Initially, an FIR was registered under Section 307 read with Section 34 of IPC at the Paradeep P.S. After the injured succumbed to the injuries on 22nd January 1995, while undergoing treatment at Paradeep Government Hospital, the offence was changed to Section 302 read with Section 34 of IPC.

The case of the prosecution was based essentially on a dying declaration stated to have been made by the deceased while undergoing treatment. This dying declaration supposed to have been recorded by Dr. Prafulla Chandra Samantaray (P.W.18) in the presence of Sub Inspector (SI) Bijaya Kumar Barik, who unfortunately expired in the course of the trial and could not be examined. To make up for this, the prosecution examined an ASI (P.W.25), who has supposed to have assisted the SI and was purportedly present at the time of making of the dying declaration by the deceased.

The trial Court was reluctant to accept the dying declaration as admissible evidence in view of the fact that there was no certificate by P.W.18 on the body of the dying declaration that the deceased was in a fit state to make such declaration. This assumes significance since the fatal injuries suffered by the deceased were on the brain and the death occurred within a few hours after the deceased being admitted to the hospital. Moreover, the signature of the SI, who recorded the dying declaration, was unable to be proved by any independent witness other than P.W.25, whose presence was nowhere recorded in the said dying declaration. Therefore, the trial Court was not prepared to accept that P.W.25 was in fact present when the dying declaration was recorded.

The time when the dying declaration recorded was also not indicated in the document itself. This is apart from the fact that many of the independent witnesses, who are supposed to have seen the assault, turned hostile in Court viz. P.Ws.5, 8, 10 and 15. As far as the other independent witnesses are concerned, leading questions were put to them by the Public Prosecutor and this rendered their evidence unreliable.

Having carefully examined the entire evidence with the assistance of the learned counsel for the State, this Court is not satisfied that the trial Court has committed any legal error which persuades this Court to grant leave to appeal to the State against the impugned judgment of the trial Court. The analysis and reasoning in the impugned judgment of the trial Court cannot be said to be suffering from any legal infirmity.

The petition is accordingly dismissed.

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