Karnataka High Court
M Mosin vs State Of Karnataka By Kushalanagara on 15 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
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CRL.A No. 1453 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO. 1453 OF 2018
BETWEEN:
1. M. MOSIN,
S/O LATE BASHA SAB,
AGED ABOUT 27 YEARS,
R/AT RENTED HOUSE OF KANNIKA
KARIAPPA EXTENSION,
KUSHALNAGAR SOMAVARAPET TALUK,
NATIVE OF KONANUR-SIDDAPUR,
ARAKALUGUDU TALUK,
HASSAN DISTRICT-573102
...APPELLANT
(BY SRI MOHAMMED KHAN A., ADVOCATE FOR
SRI RANGASWAMY M. T., ADVOCATE)
AND:
1. STATE OF KARNATAKA BY KUSHALANAGARA
Digitally signed by
MALATESH K C POLICE SOMAVARAPETE TALUK,
Location: High KODAGU DISTRICT,
Court of
Karnataka REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT COMPLEX, HIGH COURT,
BANGALORE-560001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
****
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CRL.A No. 1453 of 2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 02.08.2013 PASSED BY THE DISTRICT AND
SESSIONS JUDGE, KODAGU, MADIKERI, IN S.C.No.101/2012 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/accused who is none other than the husband of the deceased, filed the present Criminal Appeal against the judgment of conviction and order of sentence dated 02.08.2013 made in S.C.No.101/2012 on the file of the District and Sessions Judge, Kodagu, Madikeri, sentencing the accused to undergo imprisonment for life and to pay fine of `40,000/-, in default, to undergo rigorous imprisonment for two years, for the offence punishable under Section 302 of the Indian Penal Code.
2. It is the case of the prosecution that, on the basis of the complaint/statement of the victim as per Ex.P.14 recorded by police head costable-P.W.13 on 05.04.2012, case in Crime No.82/2012 was registered by the Kushalanagara Police against the accused for the offences punishable under Sections 498A, -3- CRL.A No. 1453 of 2018 302 and 304B of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. Accused is the husband of deceased- Rehana Banu. P.W.11-Siraj and P.W.12-Fahima are the father and mother of the deceased. P.W.5-Roshan is the brother of the deceased. On the night intervening 04.04.2012 and 05.04.2012 around 12.30 am, when P.W.10-Dr.Anitha, a Senior Specialist, Community Health Centre, Kushalanagara, was in casualty section of the Hospital, deceased was taken there by P.W.12. The deceased had sustained burn injuries. P.W.10 gave first aid treatment to the victim and intimated the Kushalanagar police as per Ex.P.12. Accordingly, P.W.13- Doddaiah, Head Constable, went to the hospital and ascertained from P.W.10 whether the victim was in a position to give statement. After getting certificate from P.W.10- Dr.Anitha that the victim was in a position to give statement, P.W.13 recorded the statement of the deceased at 1.10 am, which, after her death became the dying declaration, on the basis of which, criminal law was set into motion.
3. The victim gave her statement before P.W.13 that her marriage with the accused was performed about five years -4- CRL.A No. 1453 of 2018 prior to the date of incident and that two female children were born out of the marriage. For about four years after marriage, she was staying in the house of the accused who is basically from Hassan District and about a year prior to the incident, they shifted to Kushalanagara. A few months after the marriage, accused started harassing the victim physically and mentally, demanding dowry. However, no complaint was given to the police in that regard. Her family members and relatives had advised the accused to change his attitude. When things stood thus, on 04.04.2012 around 7.00 pm, accused picked up quarrel with the victim demanding dowry and assaulted her with hands. Around 8.00 pm, the accused took out kerosene from the can which was in the house and poured it on the victim when she was in the bed room and then lighted a match stick saying that he would kill her and set her ablaze, as a result of which, entire body of the victim was burnt. Being unable to bear the pain, the victim went to the house of the owner of the house viz., P.W.1-Lokesh Sagar, who extinguished the flame and informed her parents about the incident. Her parents came to the spot and took the victim to the Government Hospital, Kushalanagara, in auto rickshaw. -5- CRL.A No. 1453 of 2018
4. Based on the aforesaid statement made by the victim, the jurisdictional police registered a case. After investigation, the Investigating Officer filed the charge sheet against the accused for the offences punishable under Sections 498A, 302 and 304B of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. After committal of the matter, learned Sessions Judge secured the presence of the accused, framed the Charge, read over it to the accused in the language known to him who pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution, in all, examined 17 witnesses as P.Ws.1 to 17 and marked the documents Exs.P.1 to 17 and M.Os.1 to 4. After completion of the evidence of prosecution witnesses, statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure was recorded, wherein, the accused denied all the incriminating circumstances adduced against him by the prosecution witnesses and stated that the deceased set herself on fire by pouring kerosene. He further stated that the victim was suffering from epilepsy even prior to the marriage and he came to know about the same after the marriage. During full -6- CRL.A No. 1453 of 2018 moon days, on 3 to 4 occasions the deceased had poured kerosene on herself and attempted to commit suicide and he had informed the same to her parents. The parents of the deceased had not informed him that the deceased was suffering from epilepsy. The accused further deposed that himself and his parents took the victim to temple and tied tayta. For about 1½ months she was behaving normal. Later, again during full moon days and dark moon days she started behaving abnormal and attempted to commit suicide by hanging and pouring kerosene. He further stated that, on the date of the incident he had gone out of the house on some work. By the time he returned home, his wife-deceased had poured kerosene and set herself on fire. Immediately he went to the house of P.W.1 and informed about the incident and P.W.1 in turn informed the parents of the deceased and admitted her to the hospital.
6. Based on the aforesaid pleadings, the learned Sessions Judge framed three points for consideration. Considering both oral and documentary evidence on record, the learned Sessions Judge answered point Nos.1 and 2 in the negative holding that -7- CRL.A No. 1453 of 2018 the prosecution failed to establish beyond reasonable doubts that subsequent to the marriage, the accused was demanding dowry from the parents of the deceased and thereby committed an offence punishable under Section 4 of the Dowry Prohibition Act and further the prosecution failed to prove that the accused being the husband of the deceased was treating her with cruelty with a view to coercing her and her parents to meet his unlawful demand for dowry and thereby committed an offence punishable under Section 498A of the Indian Penal Code. The learned Sessions Judge answered the third point in the affirmative holding that the prosecution has proved beyond all reasonable doubts that on 04.04.2012 around 8.00 pm the accused in his house in Kariappa Layout, Kushalanagara, with an intention to kill the deceased poured kerosene on her and burnt her as a result of which she died in K.R.Hospital, Mysuru, on 08.04.2012 and thereby committed an offence punishable under Section 302 of the Indian Penal Code, and accordingly, sentenced the accused to undergo imprisonment for life and to pay fine of `40,000/-, in default, to undergo rigorous imprisonment for two years. Hence the present Criminal Appeal is filed.
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7. The State has not filed any appeal against the acquittal of the accused for the offences punishable under Section 498A of Indian Penal Code and Section 4 of the Dowry Prohibition Act.
8. We have heard the learned counsel for the parties.
9. Sri Mohammed Khan, learned counsel for Sri Rangaswamy.T., learned counsel for the appellant/accused contended with vehemence that there is no certificate of fitness issued by the Doctor before recording the statement of the victim as per Ex.P.14 by P.W.13. On that ground alone, the impugned judgment of conviction and order of sentence is liable to be set-aside. He further contended that since the victim sustained burn injuries to an extent of 75% as spoken to by P.W.10-Doctor, she was not in a position to give statement. He further contended that out of 17 witnesses, only 8 witnesses are independent witnesses and 4 witnesses have turned hostile and the case of the prosecution is not proved beyond reasonable doubt. He further contended that evidence of P.Ws.10, 11, 12 and 17 clearly depicts that accused was not involved in homicidal death of the deceased. The said material fact has been ignored by the learned Sessions Judge while -9- CRL.A No. 1453 of 2018 convicting the accused for the offence punishable under Section 302 of the Indian Penal Code. Therefore, sought to allow the Criminal Appeal.
10. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, contended with vehemence that on the basis of the statement of the victim-Ex.P.14 which subsequently became the dying declaration, the jurisdictional police registered a case for the offences punishable under Sections 498A, 304B and 302 of the Indian Penal Code. He further contended that on the basis of requisition from the police as per Ex.P.13, P.W.10-Dr.Anitha issued fitness certificate to the effect that the patient is in fit state of mind to give oral statement. Accordingly, the head constable-P.W.13 recorded the statement of the victim, which, later became the dying declaration after the death of the victim. Thereby, the statement of the victim was recorded only after being satisfied that she is in fit state of mind. He further contended that the fact that the victim had suffered 75% burn injuries will not debar her to give statement, as stated by the doctor-P.W.10
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CRL.A No. 1453 of 2018 that there was no problem to give statement. He further contended that the evidence of P.Ws.11 and 12, the father and mother of the deceased, P.W.10-doctor and the evidence of P.W.16-Dy.S.P. and P.W.17-CPI, clearly depicts the involvement of the accused in the offence and thereby, the learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and therefore, sought to dismiss the Criminal Appeal.
11. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present Criminal Appeal is:
"Whether the appellant/accused has made out a case to interfere with the judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused for the offence punishable under Section 302 of the Indian Penal Code, in the facts and circumstances of the present case?
12. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully.
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CRL.A No. 1453 of 2018
13. It is not in dispute that the accused and deceased are husband and wife. Out of the wedlock, two female children were born. It is the specific case of the prosecution that on the night intervening 04.04.2012 and 05.04.2012 around 7.00 pm, the accused picked up quarrel with his wife demanding dowry and around 8.00 pm poured kerosene on her and set fire. It is also not in dispute that in the hospital at about 1.10 am, P.W.13-head constable after obtaining fitness certificate from the doctor-P.W.10, recorded the statement of the victim as per Ex.P.14, which, after the death of the victim became dying declaration. The doctor has deposed that the statement of the victim was recorded in her presence. Even though the learned counsel for the appellant/accused contended that the victim was not in a position to give statement as she had suffered 75% burn, the same cannot be accepted since P.W.10-Doctor has specifically deposed on oath that the victim though sustained burn injuries to an extent of 75%, she was in a fit state of mind to give statement.
14. The doctor-P.W.10 has deposed that statement of the victim was recorded by the police and the victim stated before
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CRL.A No. 1453 of 2018 the police that, few months after the marriage, the accused started to ask her to bring dowry and harass her physically and mentally. But, no complaint was given to the police in that regard. The family members and relatives advised the accused to change his behaviour. But the accused did not change his attitude. On 04.04.2012 around 7.00 pm, the accused picked up quarrel demanding dowry and assaulted the victim with his hands. Later, he poured kerosene and set her on fire due to which she sustained burn injuries all over the body. Being unable to bear the pain she started screaming and ran towards the house of P.W.1-Lokesh Sagar. P.W.1 informed the incident to the parents of the victim. The parents of the victim came to the spot and the victim was shifted to hospital in auto. In the cross-examination, she denied the suggestion that if the external portion of the mouth is burn, it cannot be opened and if the external portion of the ear is burnt, the injured cannot hear. She denied the suggestion that a person who has sustained 75% burns would have no consciousness and will not be in a position to speak. She further deposed that when statement as per Ex.P.14 was being recorded in his presence, a nurse was present. The mother of the injured and some young
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CRL.A No. 1453 of 2018 children were present. She did not observe whether the father of the injured was present and that she does not remember whether her brothers were present. She also does not remember whether any police were present. She further denied the suggestion that the injured did not given any statement as per Ex.P.14 in his presence and Ex.P.14(c) is not her signature. She further deposed that it is false to suggest that on the request of her mother and at the instance of the police, she just made an endorsement as per Ex.P.14(a) and she signed it in her chambers. She denied the suggestion that the injured did not state before her anything as stated in paragraph 5 of her chief examination and denied the suggestion that the injured was not in a position to give statement. Nothing has been elicited in the cross-examination to prove that the victim was not in a fit condition. P.Ws.10 and 13 have stated in categorical terms that the victim was in a fit state of mind to give statement and there is no material placed on record to disbelieve the said evidence.
15. PW-11- Siraj - father of the deceased-Rehana Bhanu deposed that about five years back, the deceased and the accused were married and out of their wedlock, two children
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CRL.A No. 1453 of 2018 were born. The deceased used to go once in eight days to their house. He has further deposed that the deceased died about one year back. He has further deposed that on the date of the incident at 11.30 p.m., PW-1 came to his house and intimated that the accused poured kerosene on the deceased and lit the fire to his daughter deceased Rahana and when he, along with wife and son went to the house of the deceased, the deceased was in the water drum and there were burnt injuries on her body. Thereafter, she was shifted to the hospital. He has not asked the reason for burnt. He further stated that the deceased was in a position to speak but the accused was not there.
16. In the cross-examination by the Public Prosecutor, it has been specifically stated on oath by PW-11 that the accused with the influence of alcohol used to assault and harass the deceased and thereafter, he himself along with PWs-5 and 6 and C.W.7 has requested the accused to take care of the deceased. He further stated in the cross-examination that when PW-1 informed about the incident, they went to the house of the accused and when they enquired with the deceased Rahana, she has stated that the accused demanded
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CRL.A No. 1453 of 2018 Rs.20,000/- as dowry from the parents of the deceased and thereby quarrel took place and the accused poured kerosene on the deceased and lit the fire. He identified M.O.1-kerosene can and M.O.2-Match stick box. In the cross-examination, PW-11 has stated that till the incident occurred, the accused and the deceased were in cordial terms and there were no quarrel. He has further stated that the deceased is not used to work but denied the suggestion that she was suffering from epilepsy and suffering from mental illness. He further denied the suggestion that it is the deceased herself poured kerosene and lit the fire and she was not in a position to speak and denied further suggestion that the deceased has not stated anything about the incident and nothing has been elicited in the cross-examination of PW-11, father of the deceased.
17. PW-12-H.Pahima, who is the mother of the deceased stated on par with PW-11 and specifically stated on oath that when she went along with her husband to the house of the accused, the deceased informed that the accused was demanding Rs.20,000/- and used to harass and assault her. She has further deposed that though it was intimated to the neighbours and panchayath was held, the accused has not
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CRL.A No. 1453 of 2018 changed his attitude. About one year back at 11.30 p.m., when PW-1 intimated that the accused poured kerosene and lit the fire to the deceased, immediately they came to the house of the accused. At that time, the accused was not in the house and the deceased was in a position to speak and intimated the incident to them.
18. In the cross-examination, PW-12, mother of the deceased, has specifically denied the suggestion that the deceased and the accused were in cordial terms even after they started to stay in the garden of PW-1. She has further denied that the deceased was suffering from epilepsy often and hence, the deceased and accused were called upon to stay in Siddapura. She further denied that since the deceased was not well, she herself poured kerosene. She has further denied the suggestion that the accused is not the cause for the death of the deceased.
19. The evidence of PWs.11 and 12, the father and mother of the deceased, clearly depicts that on the date of the incident when they went to the house of the accused, accused was not in the house.
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CRL.A No. 1453 of 2018
20. PW-13 - M.E.Doddaiah-ASI who recorded the dying declaration-Ex.P14 has categorically stated on oath that he was working as Head Constable from the year 2009 to 2012 in Kushalnagar Police Station. On 4.4.2012 and 5.4.2012 at about 1.00 p.m., midnight, one servant working in Kushalnagar Government Hospital gave Ex.P12 - medical intimation to him. After receiving the same, he went to the hospital from the police station and found Rahana Bhanu-deceased taking treatment for burnt injuries. PW-10 - Dr.Anitha K., was giving treatment to the deceased. Thereafter, he requested the doctor whether the deceased is in a condition to give her statement. Accordingly, PW-10 has given the fitness certificate. Thereafter, in the presence of PW-10, PW-13 recorded the statement of the victim from 1.10 to 1.45 as per Ex.P14. On the basis of the same, case was registered by him and after her death, the statement given by the deceased was treated as dying declaration. In the cross-examination, he has stated that while recording the statement of the victim (dying declaration), he has not noticed the presence of other persons along with the deceased. He further denied the suggestion that since she sustained burnt injuries, she was not in a position to
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CRL.A No. 1453 of 2018 speak and Ex.P14 was taken at the instance of the father, mother and brother of the deceased. He further denied that she has not given any statement before him and he has also denied that PW-10 - Dr.Anitha was not present at the time of recording the statement under Ex.P14. He further denied that Ex.P14 is created only for the purpose of the present case.
21. PW-14 - Smt.Vani has deposed that she was working as Scientific Officer, Forensic Science Laboratory, Bangalore. She has deposed that on 22.05.2012, she received four sealed articles pertaining to the case from the police. On examination, she found that first article blue coloured kerosene, match sticks in the match box were live and there were 20 sticks and she found residues of kerosene on articles 3 and 4 and after examination, all the four articles were repacked and sealed with the seal of the laboratory and sent back to the police and issued a certificate as per Ex.P15 - FSL report and she has opined as under:-
"1. Density, distillation recovery percent by volume, initial boiling point, final boiling point, quantum of residue on evaporation and UV Spectrophotometric method indicates that the sample found in the can of Article No.1 is kerosene with blue coloured dye.
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2. The live was match sticks found in Article No.2 could be used to ignite the fire.
3. Thin layer chromatographic, UV spectrophotometric and Head Space Gas Chromatographic methods have responded positive for the presence of kerosene residues in article No.3 & 4."
22. The doctor, who conducted post mortem, has specifically stated that she has suffered 60% burnt injuries and issued Post Mortem Report stating that death was due to septicaemic shock as a result of infection consequent to burns sustained.
23. The contention of the learned counsel for the appellant that since the deceased has suffered 75% burnt injuries, she was not in a position to give any statement cannot be accepted as PW-10 Doctor, who certified the fitness of the deceased and PW-13, who recorded the statement in categorical terms have deposed on oath that the deceased was in fit state of mind to give statement. Nothing has been elicited in the cross- examination of PW-10-Doctor and PW-13-ASI who recorded the statement of the deceased to disbelieve their version.
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CRL.A No. 1453 of 2018
24. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of P.V.Radhakrishna vs. State of Karnataka reported in AIR 2003 SC 2859. Even though in that case, the deceased was sustained 100% burn injuries, even then the dying declaration was accepted. The Hon'ble Supreme Court at Para 17, held as under:-
"17. The residuary question whether the percentage of burns suffered is determinative factor to affect the credibility of the dying declaration and the improbability of its recording. There is no hard and fast rule of universal application in this regard. Much would depend upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. As noted in Rambai's case (supra) physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement."
25. PW-17 - Investigating Officer who stated on oath that after holding detailed enquiry filed charge sheet against the accused. He supported the case of the prosecution.
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CRL.A No. 1453 of 2018
26. Considering the evidence of PWs.10, 11, 12, 16 and 17 and the material documents Ex.P1 - Spot Mahazar, Ex.P2 - Statement of PW-1, Ex.P3 - Statement of PW-2, Ex.P4 - Statement of PW-3, Ex.P10 - FIR, Ex.P12 - Medical Intimation, Ex.P14 - Statement/complaint of the deceased, Ex.P15-FSL report, Ex.P16 - P.M.Report and M.Os.1 to 4 clearly depicts that the accused has involved in homicidal death of the deceased. Though the learned Sessions Judge recorded a finding and acquitted the accused under the provisions of Section 4 of the Dowry Prohibition Act and Section 498A of IPC and convicted for an offence under Section 302 of IPC and though the State has not filed the appeal, the fact remains that in view of the dying declaration made by the deceased herself wherein she has stated the cause for her death is her husband who poured kerosene on the deceased and lit the fire and the evidence of dying declaration is consistent and the evidence of other prosecution witnesses are also corroborate with the same, thereby, the trial Court is justified in convicting the accused for the offence under Section 302 of IPC.
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27. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Purshottam Chopra and another vs. State (Govt. of NCT, Delhi) reported in AIR 2020 SC 476, wherein at Paras 23, 23.1, 23.2, 25, 25.2, 25.5 has held as under:-
"23. As noticed, it is clearly established on record that the victim Sher Singh, when found engulfed in fire, information was received in PCR and its Van reached the place of incident within minutes of incident; and the victim was immediately placed in the Van and was taken to Safdarjung Hospital. Though it appears from the testimony of PW-9 Dr. H.K. Sharma as also of PW-8 Dr. Sushma that the first document prepared at the time of admission of the patient is OPD slip; and such OPD slip in this matter has not been produced on record. However, such omission of the prosecution, in our view, has no bearing on the substance of the matter because immediately after preparation of the OPD slip, the victim was taken to the Burns Ward and detailed Medico- Legal Case Report was prepared by PW-8 Dr. Sushma. The incident had taken place at about 3.00-3.15 p.m. and the MLC report (Ex. PW-8/A) was prepared by Dr. Sushma at 4.35 p.m. There had not been unnecessary time gap between the occurrence and the preparation of MLC particularly when major part of time was spent in the process of transportation.
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23.1. The significant feature of the case is that in the said MLC report (Ex. PW-8/A), PW-8 specifically mentioned the particulars and information as given out by the victim himself. As noticed, in the information particulars, this doctor clearly stated the version of the victim that he sustained burn injury 'when some Purshottam & Suresh (telwala) threatened him & then poured kerosene on him & set him on fire'. It is noticed that in Ex. PW-8/A the word 'telwala' came to be mentioned within brackets and was written in Hindi (being vernacular expression), although other contents of this document were filled up in English. PW-8 had been categorical in her assertion that the patient had himself informed her about the alleged history behind his sustaining burn injuries. There is absolutely nothing on record to disbelieve or even doubt the statement of PW-8 Dr.Sushma. On the contrary, such recording of the expressions verbatim by the doctor lends credence to her testimony and the document prepared by her. In our view, with this testimony of PW-8 it is established beyond doubt that in his first version in the hospital, the victim Sher Singh asserted that Purshottam and Suresh poured kerosene oil on him and set him on fire. It is also established that Suresh was identified by the victim as 'telwala' and it has not been doubted that in the slang expressions, the reference had been to the one dealing in some kind of oil business. These are the first traces with names and slight particulars of the assailants. As shall be noticed hereafter,
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in the sequence of circumstances, the expressions have rightly been fastened on the appellants.
23.2. It is also noteworthy that in Ex. PW-8/A, the doctor PW-8 Sushma mentioned all other features relating to the medical condition of the patient and recorded that he had suffered 'burn injuries involving whole of the body surface area-100% deep burn'. However and even while mentioning that the general condition of the patient was 'critical', it was also recorded in Ex. PW- 8/A that the patient was 'conscious, oriented'. It is but clear from the contents of Ex. PW-8/A about the condition of the victim Sher Singh that though the doctor found him to be in critical condition with 100% deep burns yet, he was conscious and oriented. In other words, he was neither unconscious nor disoriented. In yet other words, he was neither insensate nor confused. Such significant noting about the mental faculties of the victim at the time of giving out the narratives to the doctor makes it clear that even when he was suffering from the agony of 100% deep burns, he was not in an unfit state of mind; and there appears no reason to disbelieve his first version as recorded in Ex. PW- 8/A.
25. For what has been observed hereinabove, it is but clear that in his first version before the doctor, the victim Sher Singh named Purshottam and Suresh as his assailants and particulars of these persons were fully described by him in the statement
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made to PW-16 only a few hours before his demise. It has not been disputed that particulars and addresses as stated by the victim in his statement Ex. PW-16/B had been of the appellants only. It, therefore, emerges that the victim, before his demise, alleged that the appellant No. 2 had put him on fire and the appellant No. 1 was his accomplice. While recording his version in Ex. PW-8/A, the doctor PW-8 mentioned that he was conscious and oriented. On the other hand, before recording the statement of the victim (Ex. PW-16/B), PW-16 obtained the certification from PW-17 Dr. Rajesh Verma that the patient was fit to give his statement. In the given set of circumstances, we find no infirmity that the Trial Court and the High Court accepted that the victim was in a fit state of mind to give the statement. It has also not been established on record that the statements of the victim were an outcome of tutoring or figment of imagination. In other words, the statements appear to be voluntary and were given in a fit state of mind. In the given set of circumstances, the statements so made by the victim could be acted upon as dying declarations. However, before reaching to the conclusion on the basis of these statements, it would be appropriate to deal with the criticism offered on behalf of the appellants.
25.2. Another emphasis laid on behalf of the appellants is on the fact that the victim Sher Singh had suffered 100% burns and he was already in critical condition and further to that, his condition was regularly deteriorating.
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It is, therefore, contended that in such a critical and deteriorating condition, he could not have made proper, coherent and intelligible statement. The submissions do not make out a case for interference. As laid down in Vijay Pal's case and reiterated in Bhagwan's case (supra), the extent of burn injuries - going beyond 92% and even to 100% - would not, by itself, lead to a conclusion that victim of such burn injuries may not be in a position to make the statement. Irrespective of the extent and gravity of burn injuries, when the doctor had certified him to be in fit state of mind to make the statement; and the person recording the statement was also satisfied about his fitness for making such statement; and when there does not appear any inherent or apparent defect, in our view, the dying declaration cannot be discarded. Contra to what has been argued on behalf of the appellants, we are of the view that the juristic theory regarding acceptability of statement made by a person who is at the point of death has its fundamentals in the recognition that at the terminal point of life, every motive to falsehood is removed or silenced. To a fire victim like that of present case, the gravity of injuries is an obvious indicator towards the diminishing hope of life in the victim; and on the accepted principles, acceleration of diminishing of hope of life could only obliterate the likelihood of falsehood or improper motive. Of course, it may not lead to the principle that gravity of injury would itself lead to trustworthiness of the dying
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declaration. As noticed, there could still be some inherent defect 4 for which a statement, even if recorded as dying declaration, cannot be relied upon without corroboration. Suffice would be to observe to present purpose that merely for 100% burn injuries, it cannot be said that the victim was incapable to make a statement which could be acted upon as dying declaration.
25.5. For what has been discussed hereinabove, we are clearly of the view that the two statements Ex. PW-8/A and Ex. PW- 16/B have rightly been accepted as dying declarations of Sher Singh, as made few hours before his demise and there is no reason to discard the same. In the given set of facts and circumstances, where these two dying declarations inspire confidence, we are clearly of the view that they could be relied and acted upon even without corroboration.
28. The learned counsel for the appellant further contended that PWs.-1 and 2 have turned hostile but the allegation is proved by the evidence of PW-17 - IO and supported by voluminous evidence of prosecution witnesses viz., PWs.10, 11, 12, 13 and 17 and material documents referred to supra thereby the trial Court is justified in convicting the accused for the offence punishable under Section 302 of IPC.
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29. On re-appreciation of the entire material on record, the finding recorded by the learned Sessions Judge that the accused is involved in homicidal death of the deceased, which attracts the provisions of Section 302 of IPC cannot be interfered with by this Court exercising the powers under the provisions of Section 374(2) of Cr.P.C.
30. For the reasons stated above, the points raised in the present appeal has to be answered in negative holding that the accused has not made out any ground to interfere with the reasoned judgment and order of conviction passed under the provisions of Section 302 of IPC and is sentenced to undergo life imprisonment and pay a fine of Rs.40,000/-.
31. In view of the above, we pass the following:
ORDER
(i)The Criminal Appeal filed by the appellant/accused is hereby dismissed being devoid of merits.
(ii) The impugned judgment of conviction and order of sentence passed by the District and Sessions Judge, Kodagu, Madikeri dated
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02.08.2013 made in S.C.No.101/2012 convicting the appellant/accused for the offence punishable under Section 302 of IPC and sentencing him to undergo life imprisonment with a fine of `40,000/-, in default, to undergo rigorous imprisonment for two years, is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE kcm-paragraphs 1 to 14, PRS-paragraphs 15 to end.