Indian Kanoon - Search engine for Indian Law

Karnataka High Court

State By Inspector Of Police Chintamani vs Mustaq Beig S/O Sunnasab on 22 July, 2011

Author: N.Ananda

Bench: N.Ananda

302 IPC and sent. the second report. The I11ves'tig21ti11g

Officer arrested the accused on 21.4.2005 and 1'eclove'r_eld-. a

plastic kerosene cam. The investzigating officer "1'ece.rd"cd --t_l_iel"

staternents of witnesses. sent: the "i:ncrin1i_'11at.inkg-V articlies to

FSL. The postmortern eXan1inat;ion7._ofi the _deavd.. b.§dy"oIf

Farzana revealed that. the d_e'a.t11 wé1s_ duel 
injuries.

vii] The investigléttiiola,  ..han_ded over to the

Police Inspector,  ..l\2'xfFl!:Cll3:V"llIl'lE3COrdeCl further
S'Lat€H1€.F1'LS.  the place of
incident,"collec-tleilit and filed charge sheet
against tried.'étcje'use:dvfo1=v:offen--ces punishable under sections
498A,    under sections 3 and  of
Dove?yprohllloltioiil'l1lCt..l' 

 viii}  learned Trial Judge framed cliaiges for an

 under section 302 IPC and for offences

punishable. sections 3 and-4 o1'Dowry Prohibition Act.

t' On behalf of prosecution PWS 1 to 36 were

."ex;11_1_1:i--I1ed. documents E3xs.Pl to P44 were marked and

  Wl\/li11CI'i€El Objects were marked. as Mos l to I2. 011 behalf of

V' deferice Dws I to 4 were exzmiined and the (.'("Jl".ll,1'8t(li(',l.0I'},-"

portions in the evidence of PWS 9 emci It W'Ci.'(.' I11:-1I'lx'€'.C§ as

'E

ii
gjt, ggzi/"vi, §',?'m,.«i;«'iu $1,

"% " burn"



PW2'?--.I):*. M. Sh a11.1<a1'appa. PV\/29-131'. Shobha V.   and

PW35~D1'.GurL11.11u1'11'1y.

7. It is the Case of the prosecution thew".  

prior to the I1'}a1'riage of first; acoulseedl é2hd._ l'd.eceaseri,

m.a'r1*iage negotiatiorls had ts,1.ge11 pl.ace*in ll1§?':l'A1€)L:1lS:€  PVR'

wherein the accused cleillandedirdowryof ~. two
rings and a gold Cl'1.alli11_."  deeedsed). PW5
(mother of deceased)   of PW1) have

given evidence  of dowry.
1)    15 days prior to the
 """   sum of Rs.20,000/~ to
"  accused. PW1 has deposed
   sum of Rs.20,000/~ was given to
upul;o'l"'ralse___asv gold chain. At the time of marriage
 'oVei*:a'ir1 gold ornamerlts were given to his

Z 'V  Farzana.

 ii}  has deposed that about 5 H10I1l,h.S prior to
the date of marrlage they had given a sum of
Rs.20.000/~ $0 the accused in their house. In
the next b1'ea1:h. she has deposed she gave 21 sum

of Rs.20.000/~ in the a'1c?<.r:2secI in the presence of

 _ §:3:#'5'-:"§xf'/'§,/L/-, 5' ' <



elder brother and mother of the accused. l3W5 has clegoosed

that: at the time of marriage they gaye-- :tw?}>'=.i.%;o.,a;1

rings. w1'istwat,ch to the accused and" ee1*t.aii'11llgol_d V' 

ornaments to their dauggli'te.:'. A 

iii} PW .1 1 Nawab Sab has  that

to the date of r11aI':1i_age th.e"mar.:'.iuage une;,€__§o'tiationsl'

took place in the h--ov1se_ o£_PW1. 'At the time of
marriage two go!d'--   'and other articles

were '§i,Vcn.  ' 

We  above witnesses as
foundvvl'in"l"th;e£r e:l€atni'hatfion~itfhclhief. We find that the
evidence are ,--~1i does not indicate that the

accused had..demahdAe.:_t dohrry. Even regarding the payment.

  of  testimonies of PWI and ii are not consistent.

  that the prosecution has failed to prove

t.hat"'accrtiscti_  demanded and accepted dowry.

Zlt is the ease of the prosecution that after the

dmaifriage the deceased was living in the house of first

 ._a_ect1sed in Adigere Village. The accused was frequently

V demanding the deceased to b1'i1'ig motley. On one or two

occasions PW .1 had giveli a sum of R5500/-- or Rs. I .000/--.

:5: 
      :



Q?»

10

It is the case of the prosectiiion that th1'ee""'e'iont',lis

prior to the date of incident the accused had deii2aiid,4ed

deceased to bring a sum of Rs.10.000/-  

house as he wanted to purchas"e.~a 

deceased informed the matter to   

panchayat in the MosqueViavt'-}§Zolar.." .__'1"h.eVpaiichayatdarst

advised accused not to matte...usu.ch«._,dem'ahds.  gave
Rs.1,000/~ to the   did not stop
harassing deceased in   '.Rs. 10,000/-. In
order to    has relied on the

evidence or   5," 3,  0, 1' ii': aged 12.

Qei} "F4"W"i that about 3 months prior to the

date of incidediit.  demanded the deceased to bring

a sufri of'Rs. 10.000/_:._.fi'on1 her parental house to enabie him

._'iVS Moped. The deceased informed the
:h:a'ti;er IvA'..:=.VV'i'\VI has deposed that about 20 days prior

V .V to   the accused had sent deceased to the house

 I~'-W1  bring a sum of Rs. 10.000/~. PW} did not have

.  iiioiiey. I--ie pacified and sent back the deceased.

ii) PW5 had deposed that. the deceased was being

A harassed by the accused in relatioii to dowry demand. The

  a

 The



'V V'  . inaib.i:Iit}yi.~.

was U'OLib]iI'1g his daughter in relation to demand f:)r---__moi1e.y.

He had sent for the accused and elders. The aric1;:s"ed.V'ai1d

II'

elder persons from Adigere came to the .-ir1'osqu'e{' .'Ine¥

panchayatdars advised the accused not to deinfand inoney. '

After 3 months PWIO learnt. 

From the cross»exa1r1in_a*t.ior1 PW1G,. _W*e that the

defence has sought ' to  for not
producing docunientigh-fi...:wA_deposed that the
panchayat procAeedings.VV#.ve_re  Therefore,
non   ibea ground to discard
the   't V H

 hhhh   of the accused.
PW11  demanded a sum of
Rs.1_n..,0Qo/4"  'p.u1'chaVs.e: a TVS 50. PW] pleaded his
  Khan who is said to have attended the

pianchayat"itiie did not support the case of the prosecution

<._an.d he Wéis declared as hostile witness.

 10. On E1ppf€)(3iE1fi()l'l ofthe evidence of above witnesses

" -we find that though their evidence is not consistent yet their

evidence indicates that the accused was sez'1c1i.ng the

N    a L ~ 



14

The version of the defence is that the deceased accidentally

caught fire while Iitting a kerosene stove.

12. {i} PW6 Narayan Swamy is t_he.v'"ol, 

accused. He has not supported the case;o'fppt.l*Vie' p_ro--secutjo1ii.

He has deposed that deceased suffered'i--bui'np.i--njuvries  toj

stove burst. Even during crolssafiexaminationby the learned
Public Prosecutor    anylHli1"1crirriinating
evidence against accusedsl  c.rosc'fVei§aminatio1i by the
learned courtseillgffor   deposed that
accused was  llassistance to PWs 1. and 5
and W per month. The
evidence of  was extending financial
assistancetod  -l4land'b7cannot be accepted. When PWs 1

and5:5 vvere crolssvexarnined by the learned counsel for the

accuse--dv."~i,l1ere were no suggestions that they were getting

1'lna*ncial'aIs.si:stance from the accused. The accused by

eliciting" these answers from PW6 has made an unsuccessful

's.s.a{.te.r4nptHlto establish that he was financially sound and he

la'-E16 extended finaiicial assistance to PWS 1 and 5.

[ii] PW?' Charid Pasha is the neighbour of accused. He

has deposed that on the date of incident at about 9.00 £';1.i1}.

 



i"
U:

some persons iriiormed him that Far;«:aha suff'ere"d._ burn

injuries due to stove burst. PW? Came to the hoiimsér-ijf.fi1'st

accused and shifted Fariéana to Generais "Hospi'ta1e» 

Chintamani. PW? has deposed=t'ha.1',p F5a1*;«:ai12a:v'j.vas--.:'inViWa i

condition. to speak and stated that'she.A_Astiifferedbuirn  uries

due to stove burst. PW7d.h'a~sV_ been__deCiaredr.;Vas'"hostile"

witness. During e1'oss--exaUiin.atIvon"PW7.'has._,C1€:posed that
by the time he 1'eaChved--..V:'the  accused, several
persons were pomfiiig Waterifoo  He has denied
the    accused set her
on fire by    Cross--examination by
the EearnediAoo:1r1.s_e:1=fo1'v:th.e__accused PW? has deposed that
the  that she suffered burn injuries

due to sptoveiibuprst 'befo1*e the doctors in General Hospital at

.&""ChVi'ntarha11i'aand  Hospital at Bangalore. This

V' Taiso deposed that accused was extending

fina..hCia1-assistance to PWs 1 and 5. PW? has not deposed

V'-that. :'r1v.V__t«V1is presence t.he doctors in Genera} Hospita} at

 (;h_i,ptar11ani had enquired the deceased. He has not deposed

 V fit-:3. was present when doctors enquired the deceased in

 Viotori.a Hospitai at Bangalore. 'I'he1'e,t'ore, w" hold the

defence had made LiI'1S1.}(T(I3C'.SSf1}1 at.te13'1pts t}'11'oL1g11 ev1'der:ce

g j
xi,



ass

36

of this witness to establish that the deceased suffered burn
injuries due to stove burst.
(iii) PW.£3 Rahiniunnisa is the landlady of the house in

which the accused and deceased were living. PW1.3Ihas

deposed that accused was living in her house---tierianlt _

and Farzana was living with him. She about t.

death the Farzana. During cross é';xan1iAna.tie.n "by"Lh'e»learnaed

counsel for the accused PW13  depcsedthat'; ltiiej',

deceased had suffered,bU;rri:'ii"1juijiesl. PW13 enquired
deceased   told that she
suffered    

 she learnt from others about
the death..V_oi'  not deposed that she has

ViSi'L€}d"1Zh€ housVe"of accused after the incident. It is yet

at"ac.nolt.her7l'tirisaiccessful attempt made by the accused t.o

1 deceased sufiered burn injuries due to

stove burst', 

{"i\r)__l:'PWl5 M.Lihgaiah was working as the 'iixecutive

 at Chintamani. He has deposed that on
  _'2_{i§.4.2005 has requested by the I1'1vestigati.r1g Oflltter he held

V' inquest on the dead body of Fzlrzana in Victoria Hospita-11 at

I:321i1galoi*e. He recorded the stat ements of the police cnfliciats

X a
  '°=;,.' \-- g,?°tm_ egg  3



20
However, from the contents of i£x.P17, we find that PW25

has mentioned that injured alone had given stat:en'ien't that
she suffered burn injuries due to stove burst. Therefore. we

cannot piaee reliance on evidence of PW25 and also on

contents of Ex.P17 to come to the conclusion that at "E-'i_rlsi;

instance the deceased had giv"e_ii'*--.a stateincnt. 

that she suffered burn injuries dL__:_e"to_ stove  

15. After first   Hospital at
Chintarnani,   to Victoria
Hospital at    was working as
   PW29 has deposed
that  pm. a patient had been

referred fron1'--«.(}evnelral Aiiospital at Chintarnani. The patient

,_iS};t.iflE'6_:AIV.'€4'lV" buri*1«vi.nj,ii~ries. She was admitted in burns

7..wa.rCi.--- 'FlT1e3<i:1ij1i1'Cd Farzana informed her that she suffered

b1ir1i"inj't1riesf  to stove burst. PW29 had not prepared

fpany ccnternporaiieous document regarding the statement

..fgivel1i- by Farzana before her. She had not made any entries

'   accident register, 'I."herei'ore._ the evidence of PW29 is

 not supported by ciocunientary evidence. In the

{'.il'C3.1I1'1S§8,E1('CS, it is not possible to place reliaiice on the



22
"The patience is alert, conscious. physically and

mentally fit to give statement.
The patient has given statement in Hindi_...___
The patient says that she sustained 
when she was preparing tea over a ke1§o~sene__'__i"f' 
stove which burst. The patient was tal;:en:AtoVi"'
Chintamani Government Ho_spit.,al.  
took place at 8.00 a.m., at f} 
Chintamani and she was ta14<ie.1j1:"to Chintalnaahiw  
Government Hospital  10.00 '  
18.4.2005

. Latershe was__t"efer1<e_d to" Msec. The above."stat.§151ent ~,f,I'ue it my knowledge explained; to in language by the 90010:." " V' V' V' This signature or thumb impression.Vj{"here"ai*e"sporadic srnudges in the document.' 'hears the signature of Chand Pasha exaininedgll PW~7. Chand Pasha has not depo§e3ed__lA'that in.h__i_s.v presence the deceased made the 'aforesta,ted"statement in the Victoria Hospital at Bangalore uat:'"2..l15hh'p.}+.r;--.goo 18.4.2005. The Doctor who had attested the was not examined before the trial Court, even V' .,he'vJ_as not cited as a witness. Therefore, the defence cannot ~ hellhleard to say that this was the second dying declaration yffiafiié by the deceased. gotv/L=,.§fi E "Na From the copy of the case sheet, we find that on 20.4.2005 at about. 3.45 p.m., the Doctor by ti-a___me Dr.Ramesha KT had recorded that. "the patient change her statement and says that. her husba-rid ' come to lookafter her and she feelsv-tha~t.he 'abVan.doh:ed'i'._V 0 her, she wants to speak truth ab'oiut"t'he ineideiatf? 0 on the same the case sheet that "the patientvwarits.-'tc:«:.Ch.ar;gei'_thestatement because previousiy burns at the since nobody from her husbariels she wants to speak the truth. is that her husband Mustaq demairided /§":'m}n her and when she did not agree to .bring'":i1o_r1ey from her parental house, he poured kerosene husband requested her not to implicate hi11i~ot:he'r'w.iViAs;Tetihe. would be jaiied and there would be nobody

0. h Vhto tooh aftiei" the child."

The Doctors who recorded these statiemertts were not W<3XaI'i'1iI1€Ct before the trial Court. Therefore, the contents of the ctefenee tihat detteased had given second dying "'2«~*- €»L-~wé""=£ ;~= it contairis the endorsemertt. given by t.he Medical VA u _Cift'iceif reading as hereuiideri 24 declaration when was admitted in Victoria Hospital. Bangalore cannot be accepted.

18. 011 the other hand, the cor1tent.s of the_4vstat.err1_ent wouicl establish that the accused was pi*esent._.aii"a'Ioi:'g._:fwiit._ht.V deceased, had forced her to give theuhistory "of d_ue,_to " . stove burst, in order to save Tiaeféyfacctised appears to have induced his of injuries due to stove burst and rio-ti of the incident in which event',:fh.e and there will be none to look V 319, Rafi, the jurisdictional police Officer has dep'osedV.yth_at'--.afiter registering the case, he came to Victoria Ieiospitai torecord the statement of deceased and l1Ve"ihad*fg'ivei1y_a requisition to duty doctor. However, he was Duty Doctor that deceased was not in a c:o1iditioii~ Agive stat,emer1.t. The copy of the requisition given the jurisdictional Em-restigat,i.1ig Officer is marked as "um. 5'!/'L /»'4~»<.iiL%«\= 26 PW$26 recorded the st3.temer1t. of deceased as per EXP-14. PW-26 has deposed that. deceased gave her statement that her husband was demanding her to bring money. She was not abie to bring money. There§fo1=e_'§o..Von 18.4.2005 at 8.00 a.rn.. he doused kerosene H fire.

pwee dictated the state-meiltdttt Bfionnegowda, Police Constab1_e, Victoria I"iosu}d>iVVte'1:1_v.ar1_ii:1 reduced the same into Writing. dvfifixed her LTM to EX.Pw14. of decessed was recorded He has deposed that dec«e:dse'd.._.1%é1rzana and PWw26 were the the burns ward.

The leéimved Counsel_ for accused referring to evidence of PWw2'8x per evidence of PW*5 that deceased ;1_ot'1;r1oW'-K«éir111ada ianguage. This evidence of 38;r1d"t--r3or1ter1«ts"'o'f statement as per Ex.P~I4 are false. __'Ir1_or"der,V to" AVz.1_}:u)preciaf:e this submissi.on, we have fuliy considemd etjidence of PW»26 and PW-5. 6"':

r' (E ~ "K--m ;v"=VM.t.a/'yx ' 27 During cross~exan1ir1ation. PW--26 has deposed that deceased gave her stat.e1'11ent. in Kannada le1nguag'eV}'*e.:}Tt;gwas suggested to PW26--Chikka .Bet,taiah that educated and she knew to affix h.e»r~ Vt denied this suggestion.

21. At this juncture. it._Vts~V..neces'sa_ry '-.sta.tVeV"'tt'1rough"' V the evidence of PW~5_, Gu1ab_}a:t15._ the dnefence made unsuccessful attempt was not knowing Kannadaglanguage V d V d

22. portion of PW» 5, Gul.ahjan;.. was not knowing any language PW--5 has deposed that deceased other languages. But PW~5 has §1'1ot_.depaose,d 'thatddeceased was not knowing Kannada deceased was born and brought up in I SA:he--:"was aged about 1.8 years at the time of i1'1c'i-dent'=.".V§~h the circumstzarlces. the contention of the "~defen<:e._t'.hat, deceased did not know to speak or urlcfersttazld

--.K2;Ian.i1d21 language iooks highly improbable. J /13 R3 {:7/"»'\»~-£7";

23. PW325. Dr.Jayara1'n who is stated have recorded her statement has not deposed the lzirig-,ft:2ig.§e"A«in which deceased had given st.at:emen1 before liini. ,T.néi~e:'cr¢_ the contention that EXP-14 is no't"'t;he st'_4a1t"e.rIl1:e'ii1_ given V deceased cannot. be accepted.

During cross~eXan1inatioi1..V:oI' lE_'W--?6~,. Bettaiah, the defence had made'~~..an that the Doctor had certified about 'tiled'litihessv.'ofV_'d_eleeased after the statement as wad 1'e«coi'd'ed_.____f

24. this contention. We have gone through dying declaration marked as Ex.P-l4'on4'20.-3_l;2(l)0.5 p.m. Dr.M.Sha11karappa, the Professor of Pu'la%_tic Surgery who was in charge of burns ward 'ha:§i'made ?1V'(:~E{1'[if1'CE1'E€3 reading as here under:

have examined the patient. The patient is _cor1_scious. well oriented, mentally and pliysically "Fit to give sta.temen.t and dying . dee'lai'ation recorded by Honnegowda, PC 6580. :lA.'.Vi(%t.orle1 Hospital, in presence of Dr.i\/£.Sh2ml{a1'appa, Chlklia l3ett'ai.ah {Add}. Tahsildar, £3ar1g'alo1"e lilasl Taluk and sister /7:

Dcvaki . "

_reco_rded VvpPW0--§2'G.,.iilonnegowda to the dictation of PWC26. After..theV_vst;atenf1ve_r1t was recorded, Farzana afiixed her LTM to 'V dernanded give money. She did not give money and V' "_'o~th'er'cfore; he doused kerosene and set her on fire. attaerript has been made to establish that PW--2'7 had given

25. PW~27, Dr.M.Shankarappa has deposed that on 20.4.2005 at 5.30 p.rn., when he was working as the of burns ward in Victoria Hospitai, PW~26, along with PW20, Honnegowda came to asked PW~2'?' if the deceased was in statement. PW~»2'7 examined Farzanadang'{ou3:1d:,'tii§t~5i'1§$ 00 conscious and Physicaiiy an"d:.:VV:tfnental13*.1 a statement. Therefore, per"'E§§VrP--i4»{c).

PW~27' has deceased was recorded in her statement in Kan.nada"ia111t%ri-ageiiti 'fa;Exc'ept.V1?iA7s';'20;} 26, 27', Farzana and a nurse of the __ eise were present. He has deposed tha't..:PV\n2't3_ qt:_e'sti.o7ned deceased and answers Were herd.stateifnerit.VA'c1Farzana gave a statement that her husband "iT)ux*ir}.g cross--examination of PWa27', an unsuccessful the certificate without examining injured. PW427 was not §/Xj r &'''e/"<wa.._iZ',{gfV,- ?

that PWWQQ had not recorded the st.at.ement. of deceased and Ex.Pw19 indicates that deceased was semi coilsctousaiittshe had been given. sedatives. Therefore, the sfnbr;'iissi-o"r1a.v_o'i"

iearned Anaious Curiae that deeeasedé has Vgi"v'e'i1 second statement before. PW«29, Dr.Shobha;oa*nii'ot 'oe

31. The learned to the contents of Ex.P--14 v\}tro.1;1d has not recorded the statement it writing. The Certificate an indication that PW~27 has" said to have been given fl:PW«26, Chikka Bettaiah.

Therefore," the does not disclose that deceased was in a fit eondit.ion to give her statement. Ir1i--supp'ort"o'fdthis submission, learned Counsel has o_d_re1iT_ed 3Z1:id.gment', of the Supreme Court in 20.10 SAR (C'31"1__.'}w case of Mukeshbhai Gopalbhai Barot Vs. '<,_State o,f_dC§ujarat;). We have gone through the decision of the "«.":3upre«n1e Court and hold finclings recorded therein are based ' 'dpon the facts obtained 'L]1€-:1"€i.1'1. There were three dying declarations given by deceased. The first two stat.enfsent.s oomplet.e1y e>;o'11e1'ated the ac.:<.:a..=.sed and the third one ,1 5 §'\'§ L M 57/":/-'W'-~ * ' :2' DJ '43 shrouded in suspicion as the clarity of the Ie1ng,uage___ttsed. the writing and t.he spacing of the words symmetrical indicate that. this could not be a person who was on the verge ofC};eat.l.'1, In the instant case, the dyingdeclaratioe. 1'5e1*'j}E:§{;P--d"to 14 was recorded at 5.30 13.n1'f""o:1Vo§"».?.0.4.2'G.05'.e deceased succumbed to irtjuriess 24.4vlVr2OAt)5. Thus, the deceased was alive Ex.P«14 was recorded.

33. Ira.thektiscttissioivtt We have held that there Was_noxideclaraticnfrecorded by the Investigating Officer or tithe' authority before Ex.Pm14 was recorded by PWj26."

3.4;;~.1:i.._e°decision reported in AIR 2002 sc 2973. the 'Honrt*'--b1e.V ' of the Supreme Court [Justice ~V G.B:uPattanaik. Justice M.B.Shah. Doraiswamy Raju, Justice and Justice D.M.DI1armadhikari, they were . have overrttled the judgmertt. of the Supreme Court * "'i*eport.ed in 1.999 AIR SCW 3440 {in the case of Paparambaka Vs. State} and approved the _§£.!CigII183Tt of the Stl}.}i"€I]'i&'. Court I/':5 fie?' {: \_ fig/"(L 'k.A£,'."i';-\j ;

«W» 34 in 1999 AIR SCW 3727 (in the case of Koli Chuniiai Vs. State).

The Constitutiion Bench of the Supreme Coa_rt:a.11as held as hereunder:

"3. The justice thetoiy yre;ga1*di'11g'i--y . acceptability of a dying--..d'eeiaratio:n declaration is made in e)_{_tferijit.y_, when gaiarty is at th.e point ot:_'deat}.i and" iy_11efi..every hope of this world is 'niotive to fa1sehood_:i's _si1enced,' xnianz induced by the néioist €cons_iderat.ion""to speak only the the same, great cautiQnI;V be ei§e1'ci's'ed' "in considering the :'v_veigi';t this species of e\n'dence on accourit of many circumstances _Wh1'ch~ rnay_'affe>.:tV"Lheir truth. The situation in which a r1;'1an___is.von death bed is so solemn and s'eifene;«--._vis the reason in law to accept. the ' his statement. It is for this reason the reqtuviifcihents of oath and CI'OSS"6XaI1'}.i1"12ttiOI1 are zd"i.spensed with. Since the accused has no power of.cross--examinatior1, the court insist that the dying declaration should be oi' such a nature as to inspire full confiderice of the court in its t1't1thfu111ess and eorre¢;:t:i1ess. The Court, however has to always be on guard to see that the st:at.emen_t.. of the deceased was not as a We 5?

1 wk' 5..-"\J..«wt{;_fi'i:;§--.t_ V ~._reference declaration must: necessarily be made to __a 1nagistrat;e and when such stfatezneiit. is 1'eeor_d<:d'i.. by a niagistrate there is no specified st:yai.ujt:o1'fy', "

form for such recording. ConseqL1.ent--iy;' what evidential value or weight. has to such statement necessarilyjdepeynds 'oyn"'tyhe--.facts__ f and circumstances of each pVar_t,i:cular case,'''Whatu=--' ' is essentially required __is.,..thai'A"'the records a dying deeIarat.io_n n1ust,."he_ satisfied that the deceased..&_was"in'A a:4._fit"'State of rnind. Where i.t_:lis___ of the magis_t13ateli¥:;{;hat to make the stat:e.n1eni_t';.V_eiten eiijahiination by the dolCto.r:"j;thell::?:d*ecla,ration'dean be acted upon lprotrided "t;h:'e.,coui't.iu'i'iiirnately holds the same to beyoiuntary ai.idy_4'tr_u'thfiful. A certification by the _doctof~ is .essei'it,ia1ly a rule of caution and therefore 'i'hee___yyolunta1y and truthful nature of declaratioii can be established otherwise. in mind the aforesaid principle, l61._:"u-s:"'now examine the two decisions of the itourt which persuaded the bench to make the the F3er1ch. In to Cori st,ii;L1t:ion "APa_paramba.ka Rosamina and Ors. V. State of Andhra Pradesh the declaration in question had been recorded by a judicial dying n'1agi.st,:"21i,e and the magisirat"e had made a note 31%-:":,,--»--i s §"\f,%.

E §..«' "%.,.~ '*=~"'--é V pers_on._ "Who"

(2 an endorsement to that effect and merely beoatise an'e-ndorsement was made not on the dying declaration suspicious in any lr11a.nn'e_r;l For the reasons already indicated f13apa1"arI1ba.ka Rosamma and Ors. V. State of dying declaration orally made need not doubted. The magistrate being a disi11te1*es"te:d--._l"--V witness and is a responsible ()ffiC€I' e1nr,iWt'.he_1fe_i :_. being no oircuinst'ai:1ces or material that the magistrate had any:

accused or was in any l'».jwa},g'"~interested iabricating a dying _d.eCla1"a'tiAolna, quses--1:ion:oi"l; doubt on the deela1'avi,ion_. recorded magistrate does not arise,

5. The alsoHin_:'JtI1eV"aforesaid: case relied up0I'l_T,l1€' __o1f_Vthis' elovurtdin Harjeet Kaur V. State 'vlvhe§relin the magistrate in' 'stated that he had a.sCert,ained:l:'froInjltlztevuldoctor whether she was in a fit..oondition"'to statement and obtained deoEa--ratio_n but on the application would not earlier, we have no hesitation in coming to the Conclusion that the observations of this court in Andhra Pradesh to the effect tthat: "...in the absence of a medical (T€l'l.ifiCE1tl()D that the injured was in a fit state of mind at the time of making the deelai'at.io:1, it would be mtieli 5?

40

<.ie(:Ia1'atio11 Innst be sai.isfie(l that the deceased was in a fit state of mind. Where it is proved by the testimony of the n1'agi.sti'at,e that the declarani was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds. to be voluntary and truthful. A certification essentially a rule of caution and t'.here_fore tiie v¢£1;u.1?l'ta1;\-,: and"

truthful nature of the decla1'a:tion::"'c.an""=§Ve~' otherwise." it it i i it i In the case on hand, it isléllooviowus tlie evidence of jurisdictional Invesi.iga:i:i§f1.E§ Moliarnmed Rafi that he had noi.Ashown aniy_ huif.rv~:V..t1Q"i'ecord the dying declaration. i:u'i;i'sd.1.etional Police Officer after 1'egistei'i1--i§vivisited' Victoria Hospital and 1*equesteidlv as to the fitness of deceased give The Doctors on examination of VivC{_i1'11 ..enciors'erne11t as per EXP-21 stating that V' _ "tl:1veCpatientzby na'nVi'e'"FVarzana is not fit to given statement on p.rn as the patient is being given sedative."

Ti1erefo1'_e,""Hide jurisdictional Officer returned back to Ch.i1'ita1n};11'1i }f'o1ice Station and he had informed the Victoria /"4 =3. & {1fix/ aw. in 41 Fiospttzal Poiice to give intin1a't1'on to him after deceased becomes fit to give her statement.

35. The stat.en1e11t of deceased as per E)x.P-- 134*-sjxvas recorded at 5.45 p.m. on 20.4.2005. PW27' Dr.M. was present. when t:he statement was recordedtand'deposed that he had examined deeeased4..Farzan,_aV"tor _V1f11inutes_V> before certifying that she was fit to give statement. PW26--Chikka_ddgettadtal-xi.' that deceased was in a fit state had 1'eco1'f<V?'l§'fd'1 '§1V6C6aS€d. At the reipetitiori. when EX..Pw14 was Vtrelatixres of deceased were recording the statement namelyzf PWWZB, Chikka Bettaiah {Taiuka Magistrate}, PV\/~27, Dr.M.Sh.an1;arappa '--v.,we';}e{'r1if3t. u'nder the""intlue11ce of the Investigating Officer or _ tfhEi_e1ose« ;;eiat:s;es--..or' deceased. From the evidence of the father and rnot,he1' of detjeased. we fitld that they Could not afford to stay in Banfigalotre. to look after tI'1e1'1' dat1g11te1'. PWs.1 and 5 have deposed thé 1ti:._afte1° learning about the imticlertt. they came to Victoria '"r=*to'sptE:aE at about 8.00 p.1n. on §8.4.20(}5 and stayed there for half V' "$1.11 110:1): and }'€'EtEI'I'}f3d back. to Kolar. '1'}1erefore._ we have no reasons to st,1s1:>ect the sE:ateme1'1ts 0? I-?'Ws.20, 26 and 27 and 4?.

also the contents of dying declaration EX.P»l4. Above all, the evidence of these witnesses was not tainted with oblique motives.

36. In a decision reported in AIR 1953 L:'v1"i€' case of Dalip Sing and others Vs. The State V' Supreme Court has held:

"A witness is Iiormally'.__considered to 'be: h' independent unless he she springs sources which are likely tovbecptaintecll and that usually means that '_un1eVsis,._ t.11le,.wltnessdA has cause, such as enmity'agains_t"'t1'ie"accused, to wish to impucatelhirrifinselylff V V' "

In the cli_nliar_1_V.cl';~_ Vth"er'eV isnothing on record to inclicate 2'7~l<1ad any grudge or grievance against, acc'usedto"lfalsevlyu.ihiplihcate him. Even they were not aware ofdxthe narne 'of accused so also they were not aware oi.' the close Vr_e_I_atives of the deceased. Above witnesses ~ xiifere n.ot~xiinc1er__t1ie influence of any kind when the statement as per E)x.l?+.12£ "was recorded.

dec'1<-Meiticiii as per Ex.P~14 finds subsE.antia1 support from _ _. i, In our considered opinion, the conteni.s of dying K';

{ 1 2 ;= %{";){,_y3»' ..~%/....»«N ' 43 the subsequent conduct of accused and the defence evidence led by him.

38. In a decision reported in (2006) 10 SCC 68lo~{'in the case of Trimukh Maroti Kirkan Vs State of Supreme Court referring to the earlier ju.dgmeI1te$ AIR 1972 SC 2077 {in the ease of AIR 1992 sc 2045 {in the "

Dr.Ravindra Prakash Mitta1),Vi2(§t}QbSCAC 'V V of State of TN. Vs. Rajendran}hatahiheld-:__ ht "Where an "aceeuse_d:':= «is to have committed._the murder and the prosecut'iofi:.e::su.cé«eec1s" evidence to show? Commission of Cri.me_ 'Vi;E11e'y;i'1-:x;yere--.eSeen ht togethei' or the offence takes_AiApita_ee.VV_i:13A tE1e'-Vvdwelling home where the resided, it has been co11eis.i:e1'11-1yt $53.: if the accused does not offer aIi_V~..e§;:plaIiatio11 how the wife received irijé'it:riuet~':~.'or ofiers an explanation which is found drags"; it is a strong circumstance which " indicates that he is responsibie for commission .. 'of the C1".ii'fl€.

In the 1'nst.ant. case, we find that after the e.xam1'nat:1'on <31' acctzsed tinder 313 Cr.i7'.C aC:£1tiSCCt tias as:'~3e1'ted that z _- f gg .t:1§/t t. W 5 44 deceased caught. fire and stifiered burn injuries due to stove burst. The accused has filed f1,11'l.hE'.1' statement in continuation of his statement under 313 C11}-'.C 1*eadi'pg as hereunder: V b i. I submit that I am the alecu:-§ed:'ifi'ss1:hel and I know the facts of thisease.

have answered to the--vs.iTo[uestions .;V)'L1.l;. 313 it statement in the aboVve--.e:ase;"-»_.IAn C(lrIlir1't1E1tliOr1 to the said stat:emeVr1't,flI_stAate;_it.I1ati_"I'flmarried to Farzana D/o.Sheikh Masai of'iitiiar.f'irL.:';h_é.~ year 2004, the said_..n1ari7iag€§;d '_e.eVlebi2'ated at my native vill.a§::;e' Cllhilfiltamarai Taluk. The said lajvslllcoolie at APIVIC, Kolar l'a"nd..'i¢a1-fiifiig iiasgso/Q"_15é:~"l day, he had 8 children, wife,' "residing in a rented house lpayisig ll'fno:dthly*--.._Hfer1t of RS250/W. The daily

-- . x maiutenahricell'-oflvthe family of the said Mastan is ; ivery I have proposed to marry Farzana on 'm'y_down cost without any Cost to the said Sheikh :'lVIasi;."ari" because the said Farzana is good looking . good conduct and character.

2': "I submit that my i'athe1win-law Syed Mstan. used to take firianeial help from me for the maintienanee of his family. I am l"i,iI'11]lI'1g small unit maliufaetiuring pi.1ffecl rice out of paddy by engaging about three persons and earning monthly income of Rs. 15.000/W. My b1'oi:lier married long ago and he ¢ 3';

§a._: 1 1 av 49 e.xan11'r.:at,ic)r1~in-chiefhas deposed that deceased c21.ng_ht. fire due to stove burst. In the cross--examinat1'oI1. "tl)."v'.f_l4[..l'hle1s deposed that he saw deceased for the first t1ih'1elv..sVS'hel engulfed by fire. DW-4 made a _Ca»t.e.goric:?alHlstaltezuenltj.thatb several people gathered there how the deceased caught firc: "'-..

40. We find filled by the accused that on the date wife F arzana was prepari1_1g--:tea, stuffed rice. Deceased vl'::t_11le.:'AstoVe, which resulted in burst Cfher:l.chudldar"cVaught fire. She shouted and to her rescue. He took a blanket xcovelredlh_el1"«lt2l+;hole body. In the process, he had su£fetr.edl'burn Immediately, his neighbors including .AI°:Vv'..~7, CAha11'1d:P_a_sha came to her rescue and shifted deceased to A"General'~_Holspital at Chintamani. The accused has 'stated that the stove which had exploded due to ._wl1.i:::h the clothes of deceased came in Contact with fire was _ gireserved by him and he may be pernlitted to produce the l V' "exploded stove before the Court'. 1' 2 I' g f 2' U:

be

45. The investigation officer 1'13.Il'}€ly, Mohgirhiiied Ralliq (PW.3()) has deposed that, he arrested on"

21.04.2005 and recorded his volimtary accused led the investigation :-o'£'1i¢e:r'_ ipzinclli witnesses to his house and showed a can '*cont£iii'ii11g._ kerosene oil and match-stick,vgoiitiwiijr to 'iii1Ais"../_; theléccused V' in his writteii st.ateiner1t IiJe(%l:2ifte1=r,_.his llsiaterilient was recording under of Criinirial Procedure, has 4s:ta1;ed (jurisdictional) police after the death of his wife and he had never given any .tlheTJChihtainani police at any point of time and all arrested in his village, as depo1sedc'by the inirestigiation officer. in order to ascertain the . xfeijacity oi'i:he._statemei1t made by the accused. we have gone llthlcotigh of the commiitai Court. The order sheet dated ..0~'l<'l2005 Iiiaiiitained by the committal court. would izeveal. tiiat, on 21.04.2005. the Police Sul_)+lI'1SpE'C.'lOI.' of l1.C§'1»i}"1fE1f}1E1.I1l {jt1risdici.ioi'ie1I police] procluced the acctised along ll or 'iffiillill 1'emzir1(E appli.caiio1'1 i.Iriroi1gI'i I--iC-147 and P0213 stzitirig that he was arresie(i in croriiiectiori with the (triirie No.56/08. i*eg,ist:e.red for the offi:-Iices pimishabie LEI'1Cl(3I' Sect:ior1w4.98«A. »= f suffered burn injuries due to stove btn'st. T}1€',I'€l"()1'(f.V.'.'"t'.C hold that the conduct of the accused. subsequent. to and also during the trial would establishjtha,t.ll:he"t attempted to suppress the incJrimir1ati1.1g veif'et;nisvtanc'e.s appearing against him.

48. The learned Trial haslhot"eetjnetdered the fact. that the accused. the house, when the incident. t.0el§ being t.he husband Of 11:16' at. out with truth as to the the deceased had ca.ught;..AVtrliall has dealt with the ease. as if "the deceased were strangers to each 0t:her;<--..'_lhe learn.ed'«tlrial Judge has completely ignored theéettled Vp1'inc":'pl€.S._.0f apprec1'at:i0:1 of evidence, in a case 'rel'at;iVng_tol 'L:_ri'nat.ural death of a wife in the house of the husband; t.hat':lite0 in the presence of the husband. 49_,Al:'The learned trial Judge has rejected the conterlts declaration {EXP} 4) and the evidence of PW.26 81 2'7 stai.i11g that, the deceased had given. three dying declaratierts. In the discussion made supra. we have held that the decreased had not given any other stat..en'1ent in the " Z?

gal' U:

'-€> has found fault with the '.l.'alu1«: lilxeeiitive Magist:rai.ef"l?W.26} for not recording the dying cleelarai.ion in. handwriting and also for not certifying that Vsiai-ei'iie'iit'. given by the deceased was V0l.Ll'l'}1{<'.'{y a11dd'\3\»'lii.hoL1t:'..airy influence. In the discussion made (we have the decision of the Constit.'Li_tibnal Benet} Court. There is no;__ i'equiifeniei1t."'..of law --.r_hat.E a dying declaration must _rnagistrate. What is essential required is."i.hat::i.he' vinliolllrecords a dying declaration theildeceased was in a fit state of held that certificatioii by rule of caution and therefore, the voluni._ary of the declaration. can be established otherwise. Therefore, the finding recorded by the lat"leai*i1eQ1i,h'iaVl Judge EXP. 14 cannot be sustained. There is e«..ce:r_tifVieat.i'onV about mental fitness of the deceased made by .Sl'1a11karappa on the top of EX.P.i4. The learned Wirial Jti;rl§}:e has found fault with the c_:ertii"ieati.on made by I*'t11'i,l'1eI'. the learned trial Judge has failed to zxotiee ll V t',l'1i.1.i:. saE'isl'a1eiio1'i of the person who records the dying (.ieei.z"iraiioi'1 about, the n1e.;'i%..al l'iE':1'1ess oi' tiie cleeeased is izhe Criteriori for dec:idi11g rbreclibility of the dying de(ii21rai'.ioi1. +.Zv€--:n in the I "ts. -' ii. . -'W:/"Eu. §}~""v"~' "gt 6! EXP. 14 [dying declaration} was that of some ot.l'1er person. In the discussion made supra. we have held that the person involved in recording the dying declaration of the deceased, namely PW.20 [HC-2931}, Pw.2s {".ra1u1g_..._cJE5:§§'¢£;~t:§;s; Magistrate) and PW.27 (Dr. Shankarappa} k;AI:1lC)\V7\l./Ill it accused and they did not have a1q3t»?'5biiquc'mo;t;-\.%¢5.i_.o, _iaise1'y implicate the accused in the crime. :4'We'h.ave Shaik Musthaf. the father of t:'l1,e"d.ecea.sed uworkiiig it as coolie in tl1e.APMC,.;-- to stay in Bangalore to ufl"'r'1'ere were no unseen hands declaration Ex.P. 1.4 into .t':r_ialH Judge has unnecessarily suspected the dying declaration Ex.P.14 and the evidence of VPWs.é0,v26. 27 and 29. The learned trial '\./ ~..i.,JluVd'gle has hot. considered the falsity of defence evidence and the offered by the accused, which in our considere~d_flopiiiion has provided strong circumstance against.l_j.hc accused. The conduct" of the accused in giving _t'al_sefe:>;planat.io1'1 with regard to his arrest, and production V befrare the Magistrate and an attempt made by him to establish that it is a case of stove burst, and false evidence adduced on behall' of the accused would provide ,..

m_;;"'%:'{' ,5 .

'$23 ff/4«':,»~«. :?~'v-"

62

a strong circunistanee against. him. The conduct of accused leads to an adverse inference against him that at riij1iti_al stages. he had not allowed the deceased her independent statement; before the doctor at»..C'i1Vinta113arii'." 0 The learned trial Judge has relied on several'*-de*cisi0r1AS,.' however, ignored the settled,' princi;5'1.es"' of :relatiri;g to appreciation of evidence in a where'-thue'vvife:§suffered burn injuries in the 'h_o'use.'Vof:.husband and in the presence of her husband, _"T1r1eife'fore';'~we--flcannot sustain the imPU5§H€€1JUd§{fri%::it.

of d1s.euVssion made by us in the preceding that the prosecution has proved bey.or"1d doubt that on 18.04.2005 at about 007.030 arnn'or.V:8v.00:a.m, in the house of the accused, the . accused po-ui*ed kerosene on his wife Farzzana and set her on ar"e7.:wit'h i~h"te'nt.io1.1 and knowledge of Causing her death. developed septicernia due to burn injuries and diced at"'l0.1.5 p.m on 24.04.2005 and therefore, we hold '"f.h'at:;A the accused guilty of an effeiice punishable under it 0' section 302 of the Indian Pena} Code. Dav age/~ K