Dismissed
State of Odisha v. Madhaba Mallik
Orissa HCCRLLP/28/2019
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from the order text
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13.11.2020 This matter is taken up through…
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CRLLP. No. 28 of 2019
Heard learned Addl. Government Advocate for the appellant.
This application has been filed by the State to grant leave to file the Appeal challenging the judgment dated 27.12.2018 passed by the learned Addl. Sessions Judge, Nimapara in S.T. Case No. 57/58/328 of 2016/2014 arising out of G.R. Case No. 448 of 2014 wherein the Court below has observed that the prosecution has failed to prove any of the charges against the accused under Sections 498(A)/302/294/436/506 of the Indian Penal Code read with Section 4 of the D.P.C.Act and acquitted the accused thereof under Section 235(1) of Cr.P.C.
ks
Learned Addl. Government Advocate submitted that P.W.14 the doctor has recorded the dying declaration of the victim in the hospital on the same day in presence of the Executive Magistrate. Hence the impugned judgment is liable to be set aside.
From the impugned judgment it appears that the dying declaration has not presented before the court below nor it was explained how it was lost. Prosecution has failed to prove the first dying declaration of the deceased recorded by the doctor
2
P.W.17.
In view of the above, we are not inclined to grant leave to file appeal in absence of dying declaration which is not part of the record nor any explanation was given by the prosecution to prove the same. Accordingly the CRLLP is dismissed.
……………… S.Panda,J.
…..……………… S.K.Mishra, J
State
S. Panda
S. K. Mishra
As recorded by the court registry
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