Karnataka High Court
Hanumantharayudu vs The State Of Thirumani Police Station on 14 August, 2020
Equivalent citations: AIRONLINE 2020 KAR 1687
Author: B.Veerappa
Bench: B.Veerappa
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEAL NO.1249 OF 2015
BETWEEN :
1. HANUMANTHARAYUDU
S/O NAGENDRAPPA
AGED ABOUT 37 YEARS
CHARLAPALLI VILLAGE
ANDRA PRADESH STATE - 515 766
2. MALLESHA
S/O SRINIVASULU
AGED ABOUT 23 YEARS
THIMMASAMUDRAM
KALYANDURGA TALUK
ANDHRA PRADESH STATE - 515 787 ... APPELLANTS
(BY SRI HASMATH PASHA, SENIOR COUNSEL FOR
SRI S.SRINIVASA REDDY, ADVOCATE)
AND :
THE STATE OF THIRUMANI
POLICE STATION- 572 132.
REPRESENTED BY
PUBLIC PROSECUTOR ... RESPONDENT
(BY SRI S.RACHAIAH. H.C.G.P)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
OF CONVICTION DATED 28.09.2015 PASSED BY THE COURT
OF IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MADHUGIRI IN SC.NO.69/2012 FOR THE ALLEGED
OFFENCES PUNISHABLE UNDER SECTION 302 READ WITH
SECTION 34 OF IPC.
THIS CRIMINAL APPEAL HAVING HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT ON
17.07.2020 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, PRADEEP SINGH YERUR J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The appellants herein, who were arraigned as accused Nos.1 and 2, before the IV Addl. District and Sessions Judge at Madhugiri in S.C. No. 69/2012, have preferred this appeal calling in question the Judgment of Conviction and Order of Sentence passed in the said case vide judgment dated 28th September 2015. The trial court has convicted and sentenced both the accused to undergo imprisonment for life and to pay a fine of Rs.5,000/- each, in default to pay fine, both accused shall undergo simple imprisonment for three months for the offence punishable under Section 302 r/w Sec. 34 of IPC.
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I BRIEF FACTS:
2. It is the case of the prosecution that on 26th September 2011 at 7.00PM the accused persons took the deceased E.Asha / CW1 from Nuthanamadagu Village in a Kavasaki Motor Cycle bearing Registration No. AP-02 / 5658 to the land of one Chinnaiah S/o Subbaiah of Appajihally, where castor plants were grown and slit her neck with knife causing bleeding injuries and further they doused petrol on her and set her on fire. Thereafter, the injured E.Asha succumbed to the injuries at Victoria Hospital, Bangalore on 14.10.2011 at 4.50AM.
3. It is further case of the prosecution that after the incident on 26.09.2011 at about 7.00 pm the injured was brought to Appajihalli Village. The Police was informed by somebody that a lady was cut on the throat and was set on fire. The Police brought her to the Government Hospital, Pavagada. The Police recorded her dying declaration.
4. On the basis of the said dying declaration, the Police registered a case in Cr. No.44/11 initially, for the offences :4: punishable 326, 307 r/w Sec. 34 of IPC. Thereafter, took up the investigation.
5. In the meanwhile, on 14.10.2011 at about 5.00pm the said E.Asha, succumbed to injuries.
6. The Investigating Officer after thorough investigation laid a charge sheet on 13.11.2011 against the accused persons for the offence punishable under Section 302 r/w 34 of IPC.
7. In fact, after committal of the proceedings and securing the presence of the accused, the trial Court has framed charges against them for the above said offence. The accused Nos.1 and 2 pleaded not guilty and claimed to be tried.
II WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION AND THE DOCUMENTS MARKED
8. The prosecution in order to bring home the guilt of the accused, examined as many as 18 witnesses as PWs.1 to 18, got marked 24 documents as per Exs.P.1 to P.24 and 6 material objects as MOs 1 to 6. The STATEMENTS OF THE :5: appellants were recorded by the court under Section 313 of Cr.P.C., wherein the accused have denied the entire case of the prosecution and incriminating evidence against them. The accused have not led any oral evidence nor marked any documents on their behalf in support of their case.
III FINDING AND PUNISHMENT IMPOSED
9. After appreciating the oral and documentary evidence on record, the trial Court has arrived at a conclusion that the prosecution has proved the case beyond reasonable doubt and accordingly convicted the accused persons for the offence punishable under Section 302 and sentenced to life imprisonment and also to pay a fine of Rs.5,000/- each and in default to undergo further S.I. for three months for the offence punishable under Section 302 of IPC.
10. We have heard Mr. Hasmath Pasha, the learned Senior Counsel appearing on behalf of Mr. S.Srinivasa Reddy, the learned counsel for appellants and Mr. S.Rachaiah, the learned High Court Government Pleader appearing for respondent - State.
:6:IV ARGUMENTS ADVANCED ON BEHALF OF THE APPELLANTS
11. The learned Senior counsel in his erudite argument contends that the Judgment and Order of Conviction and Sentence passed by the learned Sessions Judge is arbitrary, erroneous and contrary to the material placed on record, which is against to the settled principles of law of criminal jurisprudence. The learned Senior counsel further contended that the learned Sessions Judge has not appreciated the evidence on record and merely because the knife was found in a bush at the scene of occurrence and on that sole ground of seizure of knife, it cannot be believed without any supporting or independent supporting evidence to the alleged incident that the accused herein have committed the alleged offence. He further contends that the case of the prosecution is based on Ex.P14, being the dying declaration, but the same has not been proved in accordance with law. He further contends that Ex.P14 - dying declaration is the version of the deceased and the same is prepared by the Police to prove the case of the prosecution. The evidence of PWs.1, 2 and 3 cannot be the basis for convicting the :7: accused as PW.1 is a panch witness to Ex.P1 and PWs.2 and 3 are the panch witnesses to Ex.P2-seizure mahazar. He further contends that PWs.4 and 5 have seen PWs.6 and 8 having brought the deceased to the village in an unconscious condition. Therefore, neither PWs.4 and 5 nor PWs.6 and 8 can be treated as credible witnesses to convict the accused. He further contends that PWs.9, 10 and 11 are the inquest panchanama witnesses and their deposition cannot be the basis for proving the guilt of the accused.
12. The learned Senior counsel contended that PW.12, who is the father of the deceased has turned hostile and not supported the case of prosecution. PW.13 according to the learned Senior counsel is the Doctor who gave first aid treatment and DW.14 is the Doctor who conducted autopsy on the dead body. It is further contended that PW.15 is the Tahsildar and all these are formal witnesses and no reliance can be placed on them to convict the accused.
13. The learned Senior counsel further contended that the evidence of PW16, 17 and 18 are all Investigating :8: Officers and their version cannot be used as material to convict the appellants, as they are interested witnesses to the case. It is further contended by the learned counsel for appellants that no incriminating articles have been seized by the Police to prove the guilt of the accused. The learned Senior counsel further contends that the prosecution has miserably failed to prove the guilt of the accused as the alleged blood stained mud has not been sent to the FSL for Expert opinion. It is further contended that no material has been produced to show that the prosecution has produced any material to establish the fact that the blood at the spot belongs to that of the deceased. The learned Senior counsel further contended that the prosecution has not produced any medical records or MLC Register from the Government Hospital, Pavagada or Victoria Hospital, Bengaluru, to show any relation between the death of the deceased and the appellants. It is further contended that the prosecution has also not produced any medical case sheet belonging to that of the deceased to prove the guilt of the accused persons. The learned Senior counsel further contended that the Doctor :9: who treated the deceased for 14 days in Victoria Hospital, Bengaluru, has not been examined, which is fatal of the case of the prosecution. The learned Senior counsel further contended that the Ex.P14, which is the alleged dying declaration, is a created document by the Police, which is shrouded with suspicion and hence, the same cannot be the basis for conviction of the accused for the offence. It is further contended that Ex.P14, which is alleged to be executed in the Hospital, does not contain the statement of the Doctor with regard to the mental status and fit condition of the deceased while making the said alleged declaration.
14. The learned Senior counsel further contends that the deceased admittedly did not know the language of Kannada and knew only Telugu language. But there is no statement in Ex.P14 with regard to explaining the contents of the said Ex.P14 to the deceased in the language known to her, that is Telugu. He further contends that no documents are produced by the prosecution to show the nature of treatment given to the deceased and there is no mention in : 10 : Ex.P14 that the deceased was in a condition to speak and fit mental status. Hence, on the basis of the flaw on the part of the prosecution the conviction and sentence imposed on the accused is bad in law, as the same is based on the presumptions and surmises. The learned Senior counsel further contends that the mandatory requirements of the Evidence Act and Code of Criminal Procedure, has not been followed by the learned Sessions Judge. Therefore, the finding recorded by the learned Sessions Judge is perverse and illegal, since the prosecution has not been able to establish the guilt of the accused beyond all reasonable doubt and therefore, interference by this Court is called for in this matter. The learned Senior counsel further contends that viewed from any angle, the Judgment and order of conviction and sentence is liable to be set aside as the prosecution has miserably failed to prove the guilt of the accused persons. Therefore, he sought for setting aside of the Judgment and Order of Conviction and sentence passed by the learned Sessions Judge.
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15. The learned Senior Counsel has relied on the following decisions:
1) SAMPAT BABSO KALE v. STATE OF MAHARASHTRA reported in (2019)4 SCC 739;
2) K.R.REDDY V. PUBLIC PROSECUTOR reported in AIR 1976 SC 1994;
3) MUNNU RAJA V. STATE OF M.P. reported in AIR 1976 SC 2199;
4) DALIP SINGH V. STATE OF PUNJAB reported in AIR 1979 SC 1173;
5) P. MANI V. STATE OF TAMIL NADU reported in 2006(2) Crimes 9 (SC);
6) MANIRAM V. STATE OF M.P. reported in AIR 1994 SC 840;
7) STATE OF U.P. V. ARUN KUMAR GUPTA reported in (2003)2 SCC 202;
8) REHMAT V. STATE OF HARYANA reported in (1996)10 SCC 346;
9) STATE OF KARNATAKA V. ASLAM reported in 2000 CRL.L.J. 1167;: 12 :
10) KANSA BEHERA V. STATE OF ORISSA
reported in (1987) 3 SCC 480;
11) VIJAYAKUMAR Vs. STATE reported in ILR
1994 KAR 491;
12) MEHARAJ SINGH V. STATE OF U.P. reported in
(1994)5 SCC 188;
13) B.N.KAVATAKAR V. STATE OF KARNATAKA
reported in 1994 SUPP(1) SCC 304;
14) GANGA DASS V. STATE OF HARYANA reported
in 1994 SUPP(1) SCC 534;
V ARGUMENTS ADVANCED BY THE LEARNED
HIGH COURT GOVERNMENT PLEADER
16. Per contra, Sri S.Rachaiah, learned High Court Government Pleader appearing for the respondent - State, vehemently contends that the prosecution has proved beyond all reasonable doubt the involvement of the accused in the murder of the deceased and Ex.P14 being the dying declaration would establish beyond reasonable doubt that there is direct involvement of the accused persons in slitting the throat of the deceased by knife with clear motive and : 13 : intention to cause her death. He further contends that by oral and documental evidence and through material objects produced, the prosecution has made out grounds beyond reasonable doubt for conviction of the accused persons, so also, the material objects produced at Mo1 to 6 and the FSL reports would substantiate that the accused persons had a clear motive and with a deliberate intent to commit the murder of the deceased. In furtherance of the same, the accused persons took the deceased on Kawasaki motor cycle and slit her neck and caused bleeding injuries, thereafter, they doused petrol on her and set her on fire. Due to which she succumbed to the injuries. He further contends that there is no perversity or illegality in the order passed by the learned Sessions Judge and the evidence lead by the prosecution establishes the guilt of the accused, which has not been shaken by the defence. He further contends that based on the incriminating material placed before the court learned Sessions Judge is right in convicting the accused persons for the said offence.: 14 :
17. The learned HCGP further contends that though there may be certain omissions and discrepancies in Ex.P14, it cannot be totally rejected on the ground that there is no statement made to the effect that the deceased was in a fit state of mind while making the dying declaration. He further contended that from the date of offence, ie., 26.09.2011 till the date of death, ie., on 14.10.2011, the deceased survived for 18 days in the hospital and thereby she was in a condition to make dying declaration as per Ex.P14, which has been rightly relied upon by the learned Sessions Judge to convict the accused. He further contends that faulty investigation, if any, as alleged by the learned counsel for appellants herein, would not be a ground to set aside the Judgment and order of conviction and sentence, which is based on the evidence and incriminating material produced by the prosecution before the learned Sessions Judge. Therefore, the Judgment and Order of conviction and sentence passed by the learned Sessions Judge is based on both oral and documentary evidence and material objects, which are incriminating in nature and the same does not call for any interference by : 15 : this Court and hence, he sought for dismissal of the appeal filed by the appellants.
18. The learned High Court Government Pleader has relied on the decision of the Hon'ble Apex Court in the case of RAMBAI v. STATE OF CHATTISGARH reported in (2002)8 SCC 83.
VI POINTS FOR DETERMINATION
19. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for our consideration in the present appeal are:-
"(1) Whether the appellants-accused have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused for the offences punishable under Section 302 r/w Sec. 34 of IPC in the facts and circumstances of the present case?
(2) Whether the appellants-accused are entitled for acquittal?": 16 :
VII CONSIDERATION
20. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.
21. In order to appreciate the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, we would like to consider the evidence of the prosecution witnesses and the material documents of the parties to the lis.
22. PW1 - Shanmukharadhya has deposed that after the Police arrested the accused persons, they took the panchas and Police to the spot where the accused allegedly cut the throat of the deceased and doused her with petrol and set her on fire. The accused hidden the knife in a bush. PW.1 is the witness to spot mahazar drawn by the Police and marked as Ex.P1. He has stated on that particular day the Tahsildar had called him and asked him to go as Panch witness to be drawn by Thirumani Police. Thereafter, he : 17 : along with CW3 and Police went to the spot which was shown by the accused where they had cut the throat of the deceased and then doused her with petrol and burnt her. He has further stated that there was a burnt blouse which was blood stained and a knife, which was in a bush, was shown by the accused and told that they used the knife to slit the throat of the deceased. He has further stated that there was a water can from which petrol smell was emanating and Rs.20/- note which was burnt was fallen on the caster plant. Further, he deposed that all these articles were seized as per Ex.P1. He further states that he had gone in the jeep to the spot after he received a call from the Police Station. However, in the cross-examination, he was unable to tell the registration number of the Police jeep in which he traveled to the spot. Further, he states that he does not know about the Rs.20/- currency note being blood stained. Further, this witness deposed that MO1 to 6 were seized from the spot at the instance of the accused persons.
23. PW2 - Rama Mohan, the seizure mahazar witness to Ex.P2 deposed that he was taken as Pancha by the : 18 : Police to the house of Govindappa and showed a motor cycle in which accused had taken the deceased to the spot and also a match box from which they lit fire to the deceased. However, it is to be noticed that this witness has turned hostile and not supported the case of prosecution. Further, he identified his signature at Ex.P2(a). The evidence of PW2 may not be beneficial to the case of the prosecution.
24. PW3 - Nagabhushana is also seizure mahazar witness to Ex.P2, turned hostile and has not supported the case of the prosecution.
25. PW4 - Sudhakara, deposed that PW6 and PW8 had brought a lady near his house on 26.09.2006 at 8.00pm and she had cut injuries and also burn injuries. He further deposed that he did not inform the Police but he told the villagers. On the next day Police brought the accused to the village, but he was not in the village on that day. He further deposed that he had not gone any where when the Police and the Mahazar was not in his presence. He did not give any statement to the Police. Further, he deposed that when the : 19 : deceased was brought to the Village the deceased was not in a position to speak as her throat was slit. However, this witness is neither an eye witness to the incident nor was able to see the deceased speak when she was brought to the village and no mahazar was drawn in presence of this witness. Therefore, the evidence of this witness does not help the case of the prosecution.
26. PW5 - Jamba Pothareddy, again a Panch witness to the Ex.P1 - Spot Mahazar, has also deposed that he has seen the deceased being brought to the Village by PW6 and PW8 with injuries. He also stated that nothing was seized in his presence, he turned hostile and has not supported the case of the prosecution. Therefore, nothing much could be attributed to the evidence of this witness.
27. PW6 - Venkatarama, PW7 - Rabhurama and PW8
- Ramanji, have deposed that they brought the deceased to the village, but all these three witnesses have turned hostile and have not supported the case of the prosecution. : 20 : Therefore, much reliance cannot be placed on these witnesses.
28. PW9 - Ramachandra Reddy, is the witness to Ex.P11 - Inquest Mahazar, which is said to have been drawn at Mortuary of Victoria Hospital. This witness also turned hostile and did not support the case of the prosecution. He put his signature to the inquest mahazar. Nothing much has been elicited from this witnesses to support the case of the prosecution.
29. PW10 - Shivashankara and PW11 - Mariyappa, have been examined by the prosecution as witness to the inquest mahazar at Ex.P11. These two witnesses also have not supported the case of the prosecution and hence no credence could be given to their evidence.
30. PW12 - Govindappa, who is none other than the father of the deceased has turned hostile to the case of the prosecution. He has stated that it was false to say that deceased had become a vagabond and that she would destroy their reputation in the society. The accused/ : 21 : appellants, who are her brother-in-laws have not killed her. This witness denied the suggestion of the prosecution that the accused are responsible for the murder of deceased. He also denied that the accused had taken the deceased on motor cycle on the said date. He has, no doubt, admitted that the deceased was taken to the hospital and admitted for treatment. In the cross-examination, this witness has stated that he has not seen the wounds on the body of the deceased. This witness is not the eye witness to the incident and having denied that the accused are not responsible and no way related to the death of the deceased, would not help the case of the prosecution to prove the guilt of the accused. This witness has not supported the case of the prosecution and turned hostile.
31. PW13 - Dr. Ravishankar.E.G., who is the doctor, deposed that on 26.09.2011 while he was working as Doctor in Government Hospital, Pavagada, the deceased was brought to the hospital. According to him, she was not in a fit state of mind to speak. He has deposed that he has given her first aid treatment. He has further stated that after : 22 : administering the first aid when the deceased recovered to speak her details were collected and Police recorded her statement. Thereafter, she was sent to Victoria Hospital, Bengaluru for better treatment. In the cross-examination this witness stated that the deceased suffered 15% burn injuries, but he denied that the deceased was not in a fit state to speak and he categorically deposed that she gave statement in Telugu and that it was in his presence, which was translated to Kannada and written as per Ex.P14. He further deposed that he has not mentioned or stated in Ex.P14 with regard to the names of other doctors who were present while giving the treatment to the deceased. He further deposed that normally in a statement of the deceased while recording the dying declaration at the beginning itself prior to recording the said statement there must be a certification by the attending doctor that the injured is in a fit condition to give a statement. This witness admits in Ex.P14 that there is no such certification and further he admitted that there is no endorsement in Ex.P14 with regard to the statement that was given in Telugu and it is translated to Kannada or that it : 23 : was reduced into writing after translation. He further admitted that in Ex.P14 the writing is in two different forms and he has denied the suggestion that he had made an endorsement in a blank paper, which has been later used by the Police. Further, this witness denied the suggestion of the defence counsel with regard to the fact that the deceased being in unconscious state and that in his presence no statement was recorded and that he is deposing falsely only with an intention to help the Police. This witness clearly admitted the fact that there is no statement in Ex.P14 which would show that the endorsement to the effect that the deceased was in a fit condition to give the statement while the same was recorded by the Police in the presence of this witness.
32. PW14 - Dr.C.N.Sumangala, is none other than the doctor who conducted the Post mortem on the deceased. She found the insized wound on the body of the deceased and neck, ie., at the front side of the neck, which was sutured and the burn injuries on the face, hands, stomach, back side, etc., and she has given report that death was : 24 : caused due to infection and burn injuries. In the cross- examination this witness stated that she cannot tell the degree of burns, she says it was more than 30% burn injuries. She also admits that if a person has 30% burn injuries, then he would be mentally imbalanced. This witness statement is merely on the PM with regard to burn injuries and percentage of burn injuries.
33. PW15 - Shivappa.H., is the Tahsildar who conducted the inquest as per Ex.P11. He has supported the case of the prosecution. In the cross-examination he denied the suggestions put forth by the learned counsel for the accused. Apart from conducting inquest this witness has deposed nothing else.
34. PW16 - Krishna Nayak, is the ASI. He has deposed that on 26.09.2011 he was SHO and he got call from some body that a lady sustained cut injuries on her throat and also burn injuries and she was brought to Appajihalli. He went in a Police jeep and called the Ambulance. In the meantime, he got cloth from the house of : 25 : PW5 - Potha Reddy, and took her to Government Hospital, Pavagada. Thereafter, he deposed that when she came to the state of speaking and got consciousness, he recorded her statement as per Ex.P14 in the presence of the Doctor. He further deposed that later on she was shifted to Victoria Hospital, Bengaluru and thereafter he tried to know the condition of the injured. When he found that the injured was not in a state to give statement again and she succumbed to injuries, he took photographs as per Ex.P17 and P18. In the cross-examination this witness has admitted that when he went to the spot, the injured Asha was not in a fit state to speak and she was unconscious. He has further deposed that he knew Telugu language very well and hence there was no need of any translator to translate the statement of the injured Asha. This witness has further stated in the cross- examination that he does not know who made the call as the said call was answered on the landline. He further stated that the deceased was not in a conscious state. Even while the deceased was admitted in the hospital she was unconscious. This witness has admitted the fact that the : 26 : physical condition of the deceased was very weak. He has further admitted that no body translated the contents of Ex.P14 to the deceased. He has stated that since he knew Telugu language he translated the contents of Rx.P14 to the deceased in Telagu language. He has further deposed that he does not know whether the deceased knew to write and read. The witness further admits that even while the deceased was admitted to Victoria Hospital she was not in conscious state. Further the witness admitted that the deceased did not know Kannada language. This witness is the important witness for the prosecution, who has brought the deceased from Appajihalli Village to Government Hospital, Pavagada and recorded the statement of the injured as per Ex.P14. We will have to deal with the statement made by this witness and also with regard to Ex.P14 - dying declaration to come to a conclusion that whether the prosecution has made out a case with regard to the guilt of the accused on the basis of Ex.P14
- dying declaration. We will deal with this witness and ex.P14 little later in detail.
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35. PW17 - T.A.Thimmegowda, is the Police Inspector, who continued the investigation and he has deposed that after the deceased was given treatment and the wind pipe was joined the sound was coming from the throat of the deceased and the statement was recorded. Further, this witness has stated that he arrested the accused on 27.09.2011 and recorded their voluntary statement as per Ex.P19 & P20. Thereafter, he conducted the spot seizure mahazar as per Ex.P1 and P2. Pursuant to which he seized Material Objects as per the voluntary statement of the accused persons. He further deposed that at the instance of the accused persons MOs were recovered. In the cross- examination this witness has deposed that the accused persons were conversant with Telugu language and they were at the house of the father of the deceased, namely, Govindappa - PW12. He further stated that as PW16 - Krishna Nayak, ASI knew to speak Telugu, that has helped in recording the voluntary statement of the accused person. Several suggestions were posed to this witness, but denied : 28 : all the suggestions. Nothing much is elicited from this witness.
36. PW18 - M.M.Pasha, is the Investigating Officer, who collected the investigation and recorded the statement of certain witnesses and sent the knife MO2 to the doctor for opinion, as to whether the said knife would have caused injuries on the body of the deceased. In the cross- examination several suggestions were made to this witness, but the same has been denied by this witness.
37. The accused persons have not lead any evidence and no documents have been marked on their behalf.
38. The trial Court, based on the evidence of PWs1 to 18, Ex.P1 to P24 and MO1 to 6 has recorded the following findings:
(a) The trial Court held that PW1, who is the witness to the spot mahazar supported the case of the prosecution; so also, PW2 is seizure mahazar witness to Ex.P2. Though PW2 has turned hostile, : 29 : in view of the corroborative evidence by PW1, PW2 turning hostile would not be fatal to the case of the prosecution. PW3 is also a witness to Ex.P2 -
Seizure mahazar, though has turned hostile the trial Court has given a finding that the same will not prove fatal to the case of the prosecution. With regard to PW4, the trial Court has held that he has partly supported the case of the prosecution. It is stated that though he has deposed that "when the deceased was brought to the village she was not in a state and condition to speak as her throat was cut" and this witness is believed by the trial Court as it supported the case of the prosecution. So also, with regard to PW5, who has seen the deceased being brought to the village by PW6 and PW8. Though this witness had turned hostile, the trial Court found that it would not prove fatal to the case of the prosecution.
(b) The trial Court has held that PW6, PW7 and PW8, who are the witnesses to the deceased being : 30 : brought to the village. Though these witnesses have turned hostile, the trial Court has come to a conclusion that turning hostile of these witnesses does not help the accused to hold that they are not guilty of the offences alleged and established in view of the evidence of PW1.
(c) PW9 is the witness to the inquest mahazar, which is drawn at Mortuary at Victoria Hospital, Bangalore and though he has turned hostile, the trial Court has held that it will not prove fatal to the case of the prosecution.
(d) PW10 & PW11 are also witnesses to the inquest mahazar, who turned hostile to the case of the prosecution. But the trial Court again held that turning hostile of these witnesses does not prove fatal to the case of the prosecution.
(e) PW12 is none other than the father of the deceased.
Though this witness has turned hostile to the case of the prosecution, the trial Court has come to a conclusion that though this witness has lost one of : 31 : his daughter, ie., the deceased, in order to help the other daughters, who are married to the accused persons, this witness would be interested in the reputation of the family and therefore, naturally he would support the accused persons as they are related to his living daughters and would not put their marital life into jeopardy. Further the trial Court has come to a conclusion that the accused ought to have explained as to how the deceased sustained incised injuries to the throat and burn injuries, but they did not do so in the cross- examination of the witnesses or in their statement recorded by the trial Court under Section 313 of Cr.P.C.
(f) The trial Court has held that PW13 is the doctor, who has given the first aid treatment on 26.09.2011 to the injured when she was brought to the hospital; he has stated that the injured was not in a fit state to speak when she was brought to the hospital, but later the Police have taken the statement when she : 32 : was able to speak. Though the trial Court has come to a conclusion that 'normally, for a statement of the deceased to become dying declaration, at the beginning itself prior to recording of the statement there must be a certification by the attending doctor that the injured is in a fit condition to give statement. In entire Ex.P14 there is no such certification and moreover, Ex.P14 there is no endorsement that the statement was given and reduced into writing after translation. Therefore, even if this statement is taken as not a dying declaration still in view of the evidence of PW1 wherein it is not denied that the accused persons admitted, their having made an attempt on the life of the deceased in the presence of panchas, the mandatory requirements of a dying declaration not being conformed to in case of Ex.P14 does not prove fatal to the case of the prosecution. The trial Court has further opined that there is no worth while evidence elicited in the cross-examination of PW13. : 33 :
(g) The trial Court has given a finding with regard to PW14 that the Doctor and who conducted PM examination has stated that with 30% burn injuries a person would be mentally imbalanced. Further, the trial Court has given a finding that after the suture was given at the neck of the deceased she was in a position to speak as her sound came out, this aspect has been corroborated with the version of PW17, which has not been denied either in the cross-examination of this witness or PW16.
(h) The trial Court has given a finding with regard to PW16, who is ASI, who had gone to the village in a Police jeep and called the ambulance and since it did not come, he had taken the injured to the Government Hospital, Pavagada in his jeep and that he had recorded the statement as per Ex.P14. Though the trial Court has held that even though Ex.P14 does not conform as dying declaration, still recorded her statement. Therefore, the version of this witness helps the case of the prosecution. : 34 :
(i) With regard to PW17 the trial Court has held that after the deceased was given treatment and wind pipe was joined the sound was coming out, her statement was recorded and this has not been denied in the cross-examination of this witness. The trial Court has further given a finding that this witness has recorded voluntary statement of the accused and in the entire cross-examination of PW17 there is no suggestion by the accused persons that they did not give voluntary statement as contended by this witness. Therefore, the version of this witness will support the case of the prosecution.
(j) The trial Court has held that PW18, the Investigating Officer continued investigation and recorded the statement of certain witnesses and sent the knife to the doctor for his opinion to ascertain as the knife MO2 would have caused the injuries that were found on the body of the deceased. The trial Court has held that the seizure of the clothes of the accused which are blood : 35 : stained are not denied by the accused that the clothes belonging to them and that this portion of the evidence clubbed with the evidence of the doctor and Investigating Officer, would go against the accused.
Accordingly, based on the above findings the trial Court has come to a conclusion that the accused are guilty and liable to be convicted under the provisions of Section 302 r/w Sec. 34 of IPC and accordingly convicted the accused.
39. On re-appreciation and on careful examination of the evidence of the witnesses on the prosecution side from PW1 to PW18, documents produced at Ex.P1 to P24 and material objects marked at MO1 to MO6 and on the finding recorded by the learned Sessions Judge, we hereby analyse the materials on record as follows:
(a) It is seen from the evidence of PW1 that he is the witness to the spot mahazar. According to the prosecution the accused persons were arrested by the Police on 27.09.2011, they have taken the : 36 : panchas to the spot along with the Police where allegedly throat of the deceased was cut/slit and she was doused with petrol and set on fire. This witness has acted as pancha and Rs.20/-
currency note, which was half burnt, has been seized from the spot under Ex.P1. He has further deposed that accused No.1 has taken out knife which was hidden in a bush on the spot along with pieces of burnt blouse which are seized under Panchama Ex.P1. It is hard to believe the statement of this witness with regard to seizure of Rs.20/- half burnt currency note having been seized at the spot, as the incident had occurred on 26.09.2011 and this witness along with Police had gone to the spot on 27.09.2011, it is quite unnatural to believe that Rs.20/- half burnt currency note still lying on the spot and had not flown away due to the natural wind to other place. Further, this witness in the cross- examination was unable to tell the registration : 37 : number of the Police jeep in which he had gone to the spot along with the Police. The trial Court has believed the statement of this witness and came to a conclusion that the accused impliedly admitted their presence at the spot as there was no suggestion put by the learned counsel for the accused to this witness with regard to the fact that the accused not being present on the spot. This implication by the trial Court with regard to accused to be present at the spot is not based on any cogent evidence or positive evidence, it appears to be based on the implications and surmises and mere suspicion will not add as a proof in favour of the prosecution. It is the further case of the prosecution that MO1 to 6 were seized from the spot at the instance of the accused persons and this witness is the witness to the seizure of MO1 to 6. The trial Court has held that in view of the voluntary statement made by the accused and the seizure of MO1 to 6 : 38 : and that at the instance of the accused persons, acts as an admission of the accused with regard to the statement given to the Police, which in our opinion would not be the correct position of law with regard to recovery or seizure of articles, merely on the statement of the accused persons, would not be the sole ground to convict the accused for the offence alleged herein as the same will have to be corroborated with substantial evidence specifically pointing to the guilt of the accused. Therefore, the evidence of Pancha is not conclusive to prove the guilt of the accused persons.
(b) The evidence of PW2 shows that he was the witness to the seizure mahazar at Ex.P2, wherein one motor cycle and a match box has been seized. Nobody has spoken about the motor cycle and the presence of accused along with the deceased. This witness had turned hostile and has not supported the case of the prosecution. : 39 : Therefore, much reliance cannot be placed on the statement of this witness.
(c) So also, PW3, who is the witness to Ex.P2, has turned hostile and has not supported the case of the prosecution. No reliance could be placed on the statement of this witness as he has not supported the case of the prosecution.
(d) PW4 has deposed that he has seen PW6 and PW8 bringing the deceased to the village near his house on 26.09.2011 at 8.00pm and she had cut and burn injuries. Strangely, despite seeing the deceased being brought to the village, he has not complained to the Police or given any communication to the Police. He has clearly admitted that nothing was seized in his presence and no mahazar was drawn in his presence. Further, this witness has stated that when the deceased was brought to the village she was not in a position to speak as her throat was cut. This witness is not an eye witness. He has only seen : 40 : PW6 and 8 allegedly bring the deceased to the village. Therefore, no much reliance could be placed on the evidence of this witness as he is only a circumstantial witness and the evidence of this witness will have to be corroborated with other cogent evidence to prove the case of the prosecution pointing towards the guilt of the accused.
(e) The evidence of PW5 goes to show that he has seen the deceased being brought to the village by PW6 and 8. Similar to PW4 he has also stated that nothing was seized in his presence and he has signed any mahazar. This witness has turned hostile and thereby he has not supported the case of the prosecution.
(f) It is seen from the evidence of PWs.6 and 8 that these are the two witnesses, who had taken the deceased to the village when she was injured. But these witnesses have not supported the case of the prosecution and they have turned hostile. : 41 : The injured was unconscious, so nothing was told to them by the injured Asha. Hence, much reliance cannot be placed on the evidence of all these three witnesses.
(g) Coming to the evidence of PW9, who is the witness to the inquest mahazar at Ex.P11, which was drawn at Mortuary at Victoria Hospital. He turned hostile and he has not supported the case of the prosecution.
(h) So also, PW10 and 11 are the witnesses to the inquest mahazar Ex.P11 and these two witnesses have not supported the case of the prosecution.
(i) While examining the another witness PW12, who is the father of the deceased, even this witness has not supported the case of the prosecution and has turned hostile. Though the prosecution has tried to bring out the theory that this witness was interested in saving the life of the accused persons in view of the fact that his living daughters' marital life would be in jeopardy. : 42 : Further, the prosecution has tried to bring out the motive of the offence by the accused through this witness as the deceased has acted like a vagabond and fearing that she would destroy the respect in the society, the accused persons are brother-in-laws, have killed her. The same has not been supported by this witness in view of the fact that he has turned hostile and prosecution has cross-examined this witness, wherein the suggestion was put that this accused persons were involved in killing of his daughter, but the same has been denied by this witness. In the cross-examination, this witness was asked with regard to the accused persons taking his daughter to the fields in Appajihalli village and killing the deceased by using the knife, which has been specifically denied by this witness. Therefore, this witness has not supported the case of the prosecution though he is the father of : 43 : the deceased, which in our opinion is fatal to the case of the prosecution.
(j) On careful perusal of the evidence of PW13, it is noticed that he has given first aid treatment to the deceased and he has stated that due to cut in the throat the deceased was not in a fit condition to speak. But later the Police had taken her statement when she was able to speak and thereafter she was sent to Victoria Hospital, Bengaluru for further treatment. He has stated that deceased suffered 15% burn injuries. He has also stated that the deceased gave statement in Telugu and same was taken in his presence and was translated in Kannada and written as per Ex.P14. On perusal of Ex.P14, it is admitted by this witness that there is no endorsement or certification of the Doctor/PW13 that prior to recording of the dying declaration statement, that there was any recording with regard to the mental fit condition of the deceased to give : 44 : statement. It is further not denied by this witness that prior to recording of any dying declaration in the normal circumstance the statement of the deceased is recorded at the beginning itself with regard to certification by the attending doctor that the injured is in a fit condition to give statement. In Ex.P14 there is no such statement forthcoming with regard to fit condition or speaking condition of the deceased while making the statement. Further, there is also no endorsement to the effect that the statement given by the deceased was in Telugu and that it was translated into Kannada or that it was reduced in to writing after translation. The trial Court has given much credence to this Ex.P14 alleging that the dying declaration corroborates with the evidence of PW1. Though the trial Court has come to a conclusion that the mandatory essential requirement of the dying declaration has not been conformed in the present case as : 45 : per Ex.P14, therefore, trial Court has erroneously come to a conclusion that it does not prove fatal to the case of the prosecution. The trial Court has relied on the evidence of PW1 to substantiate Ex.P14, which is erroneous and not in accordance with law, as Ex.P14 will have to stand by its own fundamental essential requirements and it cannot be substantiated with the evidence of PW1 and in the present case the trial Court has come to a conclusion that Ex.P14 is not in accordance with the essential requirements of law. Therefore, the evidence of this witness, ie., PW13 doctor, does not instill confidence in the mind of this Court to come to a conclusion with regard to the guilt of the accused, being proved beyond reasonable doubt.
(k) Evidence of PW14 depicts that she has conducted the Post mortem on the body of the deceased and has found incised wound on the body of the deceased and on neck, ie., front side, which was : 46 : sutured and she has given report that death was because of the infection and burn injuries. The doctor deposed that a person with 30% burn injuries would be mentally imbalanced. This witness has stated that there were sutures around the neck of the deceased. It is difficult to believe that when a person's throat is cut and the wind pipe is sutured said person would be in a condition to speak. Therefore, the evidence of this witness would merely depict the burn injuries and other wounds found on the body of the deceased and would not help the case of the prosecution any where to attribute the guilt of the accused persons to the injuries sustained by the deceased.
(l) PW15 is the Tahsildar, who conducted inquest as per Ex.P11 and his signature is at Ex. P11(a). Nothing worthwhile has been elicited through this witness to prove the guilt of the accused. : 47 :
(m) Coming to the evidence of PW16, much reliance has been placed by the prosecution to this witness. According to the prosecution, he had got a call from somebody that a lady's throat was cut and was set on fire and was brought to Appajihalli village. This witness had gone there in the Police jeep and though he had called for the ambulance, since the same did not arrive, he took the injured to Government Hospital, Pavagada and thereafter when she had gained consciousness he recorded her statement as per Ex.P14 in the presence of the doctor - PW13. He has stated that later she was shifted to Victoria Hospital at Bangalore for further treatment. The prosecution has relied on this witness to establish that the deceased was in a conscious state and has given the dying declaration to him in the presence of doctor - PW13. It is the case of the prosecution that this witness PW16 has recorded the statement of the deceased in Kannada : 48 : language. The deceased was conversant with the Telugu language and since she did not know Kannada, this witness knew Telugu language he has acted as a translator and did not call for any other person to translate the statement of the deceased. It is worth to note that in the cross- examination of this witness, where he has admitted that when he went to the spot the injured was not in a condition or state to speak and she was not in conscious state of mind. He has further stated in his cross-examination that he has not made any endorsement with regard to dying declaration having been heard in Telugu and translated into Kannada. This clearly depicts that the evidence of PW16 does not infuse confidence in this Court with regard to recording of Ex.P14 and the worthiness and genuineness of the dying declaration - Ex.P14. On perusal of Ex.P14, it is seen that even if it is taken on the face value through the naked eye it is noticed : 49 : that thumb impression and LTM of the deceased was affixed on the extreme right side of the document and the words are inserted just above and below the said LTM and so also, it is seen that there is no endorsement on the said document at Ex.P14 with regard the same being written in Kannada language after having understood the same in Telugu language. Further, it is also seen from Ex.P14 that no statement made either by doctor - PW13 or by PW16 with regard to mental fit condition of the deceased to make such a statement. It is also suspicious to note that the endorsement showing that 'it was recorded in my presence', which is in different ink alleged to have been that of the doctor. This document being the dying declaration is suspicious in nature and the same having not been proved in accordance with law and to the fundamental rule and essential requirement of statement of dying declaration, : 50 : which creates doubt in the mind of the Court with regard to veracity and genuineness of this document and hence the same cannot be believed.
(n) The prosecution has examined PW17, who is the Police Inspector, who has continued the investigation and has stated that after the wind pipe of the deceased was joined the sound came out from the throat, her statement was recorded. He has further stated that he has arrested the accused on 27.09.2011 and recorded the voluntary statement of the accused as per Ex.P19 and P20 and he has conducted the spot seizure mahazar as per Ex.P1 and P2 and seized MOs as per the voluntary statement of the accused. He has further deposed that he recovered MOs at the instance of the accused persons. It is necessary to note here that in the present case, it is not the case of the prosecution that there are eye witnesses to the incident. It is the case based : 51 : on the dying declaration as per Ex.P14, and on the basis of the circumstantial evidence. In the case of circumstantial evidence the onus lies upon the prosecution to prove the guilt, chain of events, which must undoubtedly, point towards the guilt of the accused persons and further in the case of circumstantial evidence where the prosecution relies upon the extra judicial confession, the Court has to examine it with great degree of care and caution.
(o) The Investigating Officer is examined as PW18, who concluded the investigation and recorded the statement of certain witnesses and sent knife to doctor for his opinion as to whether the knife MO2 would have caused injuries that were found on the deceased. He has denied the suggestion put forth by the accused in the cross-
examination. Nothing worth would be elicited in the evidence of this witness.
: 52 :
40. The prosecution has mainly relied on the evidence of PW1, 13, 16 to 18. PW1 has deposed to substantiate the case of the prosecution that he is the panch witness, has gone to the scene of occurrence, where the accused persons shown knife, half burnt blouse and a knife and the blood stained on the leave and mud and a water bottle and also Rs.20/- half burnt currency note were seized on the spot and marked as MO2 to 6. It is the case of the prosecution that MO2 to 6 were seized at the instance of the accused persons and that MO2 specifically the knife, a weapon used for the commission of the offence was blood stained. However, it is strange to notice that though the knife-MO2 and the blood stained mud - MO5 were recovered and seized through Ex.P2, the same were not sent to FSL for Expert Opinion. Moreover, it is the fact that there is no FSL report with regard to MO2 to 5. The only two material objects that were sent to FSL are one plastic water bottle and a match box and opinion has been given by the Scientific Officer with regard to the said two items. Therefore, out of MO1 to 6, only one item, ie., MO3 was sent to FSL and a report has been : 53 : obtained. The reliance was placed by the prosecution to implicate the accused on the basis of the evidence of PW1 and the recovery of the articles, has not been substantiated. Based on this we can come to a conclusion that there is no incriminating articles pointing to the guilt of the accused persons.
41. As already discussed, the match box was sent for the opinion to the FSL, which is no doubt proved that 'the live wax match sticks found in Article No.2 could be used to lit the fire', which is the opinion given by the Scientific Officer. But, the seizure of motor cycle is no where related to the present case as no body has seen the deceased being taken in motor cycle, much less the accused herein. It is pertinent to mention here that PW12 - Govindappa, the father of the deceased had negatived the suggestion that the deceased was taken in motor cycle by the accused persons.
VIII JUDGMENTS RELIED UPON
42. The Apex Court in the case of SAMPAT BABSO KALE AND ANOTHER vs STATE OF MAHARASHTRA reported in (2019) 4 SCC 739. In prara-15 of the said Judgment the : 54 : Hon'ble Apex Court has relied on its earlier Judgment in the case of SHAM SHANKAR KANKARIA vs STATE OF MAHARASHTRA held as follows:
"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."
43. In para-16 of the said decision, the Hon'ble Apex Court has held thus:
"In the present case, as we have already held above, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to : 55 : delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and therefore, there is a need to look for corroborative evidence in the present case."
44. Further, the Hon'ble Apex Court in the case of K.RAMACHANDRA REDDY AND ANOTHER vs THE PUBLIC PROSECUTOR reported in AIR 1976 SC 1994 at Para-6 held thus:
"The accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext. P-2. The dying declaration is undoubtedly admissible under s. 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of has imagination. The Court must be satisfied that the deceased was in a fit slate of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it : 56 : can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated AIR 1958 SC 22 by this Court in Khushal Rao v. State of Bombay where the Court observed as follows:
'On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, & agreement with the opinion of the Full Bench of the Madras IB High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, (2) that each case must be determined on its own facts keeping in view tile circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence, (S) that a dying declaration which has been recorded by Q competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying : 57 : declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night. whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control. that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination."
The above observations made by this Court were fully endorsed by a Bench of five Judges of this Court 'in Harbans Singh and Another v. State of Punjab reported in 1962 Supp(1) SCR 104/AIR 1962 SC 439. In a recent decision of this Court in Tapinder Singh v. State of Punjab reported in (1971)1 SCR 599/AIR 1970 SC 1566, relying upon the earlier decision referred to above. this Court observed as follows:
"lt is true that a dying declaration is not a deposition in court and ii is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an : 58 : exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances."
In Lallubhai Devchand Shah and others v. State of Gujarat, this Court laid special stress on the fact that one of the important tests of the reliability of a dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind and observed as follows:
"The Court, therefore, blamed Dr. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a "fit state of mind" to make the statement. The "fit state of mind" referred to is in relation to the statement that the dying man was making. In other words, what the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding."
45. The Hon'ble Supreme Court in the case of MANIRAM vs STATE OF M.P. reported in AIR 1994 SC 840. In this Judgment the learned counsel for the appellants has relied the ratio of the Hon'ble Apex Court and brings to our notice about the finding that there was no attestation by the doctor with regard to patient being conscious and signature : 59 : or thumb impression of the deceased was not taken. In the said case the dying declaration shows that the Sub-Inspector was present and had affixed his signature on Ex.P19 therein and put the date and time, which is exactly the recording of the dying declaration as recorded by PW10. In the body of the dying declaration, we find only signature of PW9 after that there is an endorsement of the Tahsildar that the declarant was in the state of senses and was fully aware of what she had stated. Admittedly, in the present case, there is no satisfactory certification either by the concerned Police Inspector-PW.16, who recorded the dying declaration of the deceased or by the Doctor-PW.13 in whose presence it was recorded that the deceased was in a "fit state of mind", as the entire case of the prosecution is based on Ex.P14-dying declaration. On that ground alone, the impugned judgment and conviction is liable to be set aside.
46. The entire case of the prosecution is based on the evidence of PW16 - Krishna Nayak, ASI, who while on duty on 26.09.2011 received a telephonic information that in Appajihalli Village one lady was assaulted and brought to the : 60 : village with burn injuries and her throat being cut and was not in a position to speak and also not in a conscious state. This witness called the ambulance and since the same did not arrive, he shifted the deceased to the Government Hospital, Pavagada and after initial treatment, it is the case of the prosecution that this witness recorded the dying declaration / statement of the deceased when she regained consciousness, as per Ex.P14. Thereafter, he went to the Police Station and registered a case in Cr. No. 44/2011 and submitted FIR as per Ex.P16 and subsequently, injured was sent to Victoria Hospital for further treatment. As discussed earlier that this witness has stated that though the deceased was not having conscious when she was brought to the Appajihalli Village from the spot of occurrence of crime and so also, when she was shifted to Government Hospital, Pavagada, she did not regain consciousness. It is the case of the prosecution that in the intermediate period of treatment she regained consciousness and this witness recorded the statement of the deceased which was put into writing as per Ex.P14, which is the last statement of the deceased. According to this witness, : 61 : the deceased was not having knowledge of Kannada and she knew only Telugu language. So she narrated the things to this witness in Telugu language and he recorded the same in Kannada after translating it. It is also the case of the prosecution that this witness recorded Ex.P14 in the presence of the doctor PW13.
47. If these witnesses have to be believed we have to carefully examine Ex.P14 and analyze whether the said dying declaration is free of any extraneous influence and whether the deceased made statement by way of dying declaration. On perusal of Ex.P14, as stated earlier, we have noticed several discrepancies and essential fundamental requirements of making out or recording of the dying declaration, is not forthcoming in Ex.P14. PW16 has not stated in Ex.P14 that he has translated the statement of the deceased made in Telugu to Kannada and neither the statement was explained to the deceased and read over in the language known to her. This witness has also not made any endorsement with regard to the deceased being in a fit condition to give such declaration. In view of the fact that : 62 : this statement alleged to have been made in the presence of the doctor PW13, there is no statement and endorsement of the doctor to the effect that the deceased was in a "fit state of mind" to make such a declaration. Therefore, Ex.P14 is shrouded with suspicion and creates doubt in the minds of this Court regarding its truthfulness and it being voluntary and that it is a result of extraneous influence. The same cannot be believed. Rightly, the trial Court has come to a conclusion that the mandatory requirement of the dying declaration is not forthcoming in Ex.P14 and it has also held that there is no declaration of the doctor and no certification in Ex.P14 with regard to the fit state of mind of the deceased. Though the trial Court come to a conclusion that Ex.P14 is not in conformity with the mandatory requirement. The learned trial Judge has erroneously come to a conclusion that it will not prove fatal to the case of the prosecution. In our opinion, such a finding is flawed in view of the several catena of Judgments of the Hon'ble Apex Court and in view of the provisions of Section 32 of the Indian Evidence Act. This Court clearly holds that Ex.P14 has not proved test of its : 63 : veracity and has not complied the essential requirements under Section 32 of the Indian Evidence Act.
48. The evidence of PW17 and PW18, who are official witness, namely, PSI and CPI, Investigating Officers. PW17, has visited the Government Hospital, Pavagada on 26.09.2011 at 9.00am and he has also noticed that the deceased was not in a position to talk and neither she was in a state of consciousness. But he further states that after certain treatment when she regained consciousness, the statement was recorded. He had taken up the investigation from PW16 and arrested the accused No.1 and 2, recorded their voluntary statement as per Ex.P19 & P20 and effected the recovery of knife and other articles from the spot under mahazar Ex.P2. PW18 has conducted the investigation and filed the charge sheet.
49. The entire case of the prosecution is based on the circumstantial evidence. In the present case there is no eye witness and the conviction of the accused is based on the circumstantial evidence and evidence of the prosecution. It : 64 : is also not the case of the prosecution that there is last seen theory of the accused with the deceased. The motive has not been established in this case by the prosecution as the evidence of PW12, who is none other than the father of the deceased, has specifically and categorically stated that the accused are not involved in the murder of his daughter, ie., deceased Asha. When there is no eye witness to the incident and no last seen theory and no motive is made out by the prosecution, we have to consider whether the circumstantial evidence based on which the accused persons have been convicted has passed the fundamental test of the evidence required to convict the accused based on the circumstantial evidence.
50. Whether the Judgment and order of conviction and sentence passed by the trial Court could be sustainable in law and in view of the admitted fact that no body had seen that accused persons committing the murder of the deceased.
: 65 :
51. While dealing with conviction based on circumstantial evidence the circumstance from which the conclusion of the guilt is to be drawn should be in the first instance fully established and all the facts so established should be consistent with only one hypothesis ie., the guilt of the accused, which would mean that the onus lies on the prosecution to prove the chain of events is complete and not leave any doubt on the mind of the Court.
52. The Hon'ble Apex Court in catena of decisions has laid down the test for dealing with the case arising on circumstantial evidence. The Hon'ble Apex Court in the case of KANSA BEHERA vs STATE OF ORISSA reported in (1987)3 SCC 480, in Para-12 it is held as follows:
"As regards the recovery of a shirt or a dhoti with blood stains which according to the serologist report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small blood stains on the cloths of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence : 66 : about the blood group is only conclusive to connect the blood stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn."
The learned counsel for the appellants has relied on the aforesaid decision to show that MO5 - Blood Stained Mud and MO2 - Knife was not sent to the FSL to obtain Experts opinion from the Scientific Officer and so also no reports were obtained with regard to blood group of the deceased with regard to any of the incriminating articles or material objects. Hence, he contends that the prosecution has not established beyond reasonable doubt the recovery and the circumstance which put together, would lead to only one hypothesis, ie., to the accused persons, to convict under Section 302 r/w 34 of IPC.
53. The Hon'ble Apex Court in several cases held that certain conditions must be fulfilled before a case against an accused can be said to be fully established. In the case of SHARAD BIRDHICHAND SARDA vs STATE OF MAHARASHTRA : 67 : reported in AIR 1984 SC 1622, the Hon'ble Apex Court held as follows:
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court, where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and : 68 : (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
54. While following the essentials of the tests laid down by the Hon'ble Apex Court, it depends upon the present facts of this case to find out whether the prosecution has established the chain of circumstance to prove the guilt of the accused persons. We must say in the affirmative that none of the aforesaid circumstances and the chain of link circumstance is established by the prosecution to prove the guilt of the accused persons. As stated earlier no one has seen the accused persons murdering the deceased, no one has last seen the accused persons with the deceased, no motive has been attributed by any of the witness, the recovery of the articles and recording of the voluntary statement by PW17 & PW18 would not merely by itself establish the guilt of the accused without proving the above said circumstance. The MO2 and 5 have not been sent to : 69 : FSL for test, the prosecution has not produced even the MLC Register Extract to establish any records with regard to the fact to implicate the accused persons to have committed the murder. The most important and relevant piece of evidence, ie., the weapon used for murder, has not been sent to the FSL thereby creating a doubt in the mind of the Court. The Doctor who treated the deceased in Victoria Hospital is not examined.
55. Sri S.Rachaiah, learned High Court Government Pleader has relied on the judgment of the Hon'ble Apex Court in the case of RAMBAI v. STATE OF CHATTISGARH reported in (2002)8 SCC 83, wherein at para-6 it is held as under:
"6. So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman v. State of Maharashtra wherein overruling the judgment of this Court in Laxmi v. Om Prakash it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on the sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant : 70 : is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW 19 Dr Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration. That apart, from the narration of the questions and answers in the dying declaration it is clear that the deceased was in a fit state of mind to make the statement. But the learned counsel for the appellant contended that we should examine the contents of the dying declaration in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission into the hospital she was alternating between consciousness and unconsciousness, as also earlier attempts to record her dying declaration had failed. Therefore the learned counsel contends that it is not safe to place reliance on the dying declaration. We have carefully perused the evidence of PWs 12 and 11 who recorded the dying declaration and PW 19 who is the doctor who certified the condition of Vidya Bai from their evidence. We are satisfied that the deceased at the time she made the dying declaration was in a fit condition of mind to make such statement. Having found no discrepancy in the statement of the deceased we are inclined to accept the same as held by the courts below. Learned counsel then contended that from the evidence of the husband, DW 2 himself, it is clear that : 71 : the deceased must have suffered burn injuries while she was cooking lunch, therefore, it is not safe to rely upon the prosecution evidence to convict the appellant. We notice the courts below have considered this argument and taking the preponderance of evidence and also the factum that the husband of the deceased had resiled from his statement made before the investigating officer have held that it is not safe to rely upon DW 2. In such a situation we are unable to take a contra-view from the one taken by the courts below."
56. Having gone through the above said judgment of the Hon'ble Apex Court, the position of law with regard to admissibility of dying declaration is now settled by a Constitution Bench judgment of the Hon'ble Apex Court in the case of Laxman v. State of Maharashtra reported in (2002)6 SCC 710. But in the present case on hand, it is not only the case where there is no certificate of Doctor or endorsement of the Doctor with regard to fit mental condition of the injured while making the statement, it is also seen in the present case that there are several discrepancies in Ex.P14-dying declaration. The translation made from Telugu to Kannada by PW.16 is not forthcoming in Ex.P14 so also PW.13 has stated that when the injured was brought, she was not in a fit condition to speak and that she was : 72 : unconscious. Apart from that, it is the case of the Doctor that throat of the deceased was slit and they had sutured the windpipe and it is difficult to believe that under such circumstances, the injured Asha would have been in a position to speak and consequently, even after performing the surgery of joining the windpipe, it is difficult to believe that she would have been in a position to give a statement. So, therefore, we are of the opinion that the deceased was not in a position to speak, as admittedly, even according to the evidence of PWs.13 and 16, the deceased was brought unconscious and remained unconscious and she got conscious only during the period of giving statement, is not believable by this Court.
57. We have analysed Ex.P14 along with other circumstantial evidence and corroborative evidence. In order to prove the guilt of the accused, it should pinpoint to the accused and prove beyond reasonable doubt that it is the accused alone who would have committed the murder and none else, which has not been established in the present case. The dying declaration-Ex.P14 cannot be looked in : 73 : isolation to come to a conclusion to prove the guilt of the accused, which in our opinion in the present case, the prosecution has failed to prove beyond reasonable doubt the veracity and genuineness of Ex.P14 and the chain of circumstances pointing towards the guilt of the accused. When such a doubt is created, the same is not proved beyond reasonable doubt by the prosecution with regard to the chain of events and necessarily the benefit of doubt will have to go to the accused.
58. On consideration of all these relevant facts, vital piece of evidence of PW1 to 18, Ex.P1 to P24 and MOs 1 to 16, it could be safely concluded that the offence sought to be committed by the appellants - accused persons has not been proved or established beyond all reasonable doubt. The fact that there is no eye witness in the present case and that there is no last seen theory of the accused with the deceased and no motive is established and the prosecution has failed to provide sufficient explanation as to why the weapon used for the commission of offence, ie., MO2-Knife and MO5 - Blood stained articles, were not sent to the FSL for Expert : 74 : opinion, which goes to show that the prosecution has not established any link or chain of circumstance to show that the accused persons have committed the murder of the deceased. In our view from the circumstance and the conclusion, the guilt of the appellants herein has not been fully established beyond all shadow of doubt as the circumstances are not conclusive in nature. There is neither chain of events nor link to the circumstances leading to the conclusion that the offence is committed by the accused persons and none else.
IX CONCLUSION
59. As stated earlier, the prosecution must prove beyond reasonable doubt that it is only the accused persons and no body else who have committed the crime and there cannot be a theory of guilt that may be established against the accused persons. To prove the conviction against the accused persons the prosecution must prove all the chain of events pointing towards the guilt of the accused persons and the same must be proved beyond all reasonable doubt. : 75 : Therefore, the impugned Judgment and order of conviction and sentence is not sustainable in law.
Accordingly, we answer the first point in the affirmative holding that the appellants/accused have made out valid grounds to interfere with the impugned judgment and order of conviction and sentence of the trial Court. The second point is answered in favour of the appellants/accused and they are entitled to be acquitted.
60. For the reasons stated above, this appeal deserves to be allowed and the impugned Judgment and order of conviction and sentence of the trial Court is liable to be set aside. In the result, we pass the following Order:
X ORDER (1) The appeal is allowed;
(2) The Judgment and Order of conviction and sentence dated 28.09.2015 passed by the IV Addl. District and Sessions Judge at Madhugiri in S.C.No. 69/2012, is hereby set aside, by reversing the findings;
(3) Consequently, the appellant Nos.1 and 2 - accused persons are acquitted of the charges for the offence : 76 : punishable under Section 302 read with Section 34 of IPC;
(4) The appellants / accused persons are set at liberty forthwith, if they are not required in any other case; (5) Registry is directed to communicate the operative portion of this Judgment to the concerned Jail Authorities to release the appellants / accused persons, if they are not required in any other case; (6) Registry is also hereby directed to send back the records to the trial Court along with a copy of this Judgment;
(7) If the appellants / accused persons have deposited any fine amount, the same is ordered to be refunded to them on proper identification and acknowledgment.
(8) The appellants / accused persons shall strictly adhere to the Standard Operative Procedure as prescribed by the Central Government as well as State Government and in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE VK