Karnataka High Court
Shaikh Davul S/O Allisab Kukanor And Anr vs The State Through Shahapur Ps on 29 July, 2020
Equivalent citations: 2020 (4) AKR 489
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JULY, 2020
PRESENT
THE HON'BLE MR.JUSTICE B. A. PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL No.3525/2013
C/w
CRIMINAL APPEAL No.3535/2013
In CRL.A.No.3525/2013:
Between:
1. Shaikh Davul S/o Allisab Kukanor
Aged: 43 years, Occ: Electrician
R/o Shahapur, Dist. Yadgir
2. Rajiya W/o Shaikh Davul Kuknor
Age: 39 years, Occ: Household
R/o Shahapur, Dist. Yadgir
... Appellants
(By Sri Nandakishore Boob, Advocate)
And:
The State,
Through Shahapur P.S.
By its Public Prosecutor
High Court of Karnataka
Circuit Bench, Gulbarga
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
2
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to call for the records in S.C.No.20/2012
from the Court of the learned Sessions Judge, Yadgir and to
set aside the order dated 28.01.2013 passed by the learned
Sessions Judge at Yadgir, in S.C.No.20/2012.
In CRL.A.No.3535/2013:
Between:
Mohammed Abdul Raheem @ Baba
S/o Alisab Kukanoor
Age: 30 years, Occ: Coolie
R/o Diggi Base Shahapur
Tq. Shahapur, Dist. Gulbarga
... Appellant
(By Sri Nandakishore Boob, Advocate)
And:
The State through
Shahapur P.S.
... Respondent
(By Sri Prakash Yeli, Addl. S.P.P.)
This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C. praying to call for the records of the proceeding from
the District and Sessions Judge Court, Yadgir, in Sessions
Case No.20/2012 and allow the appeal by setting aside the
judgment and order dated 28.01.2013, and acquit the
appellant herein, in the above said conviction order.
These appeals coming on for final hearing this day,
B.A.Patil J., delivered the following:-
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JUDGMENT
Criminal Appeal No.3525/2013 has been preferred by appellants - accused Nos.2 and 3 and Criminal Appeal No.3535/2013 has been preferred by appellant - accused No.1 challenging the legality and correctness of the judgment passed by the Sessions Judge, Yadgir in S.C.No.20/2012 dated 28.01.2013 wherein the trial Court has acquitted accused Nos.1 to 3 of the offence punishable under Section 498A read with Section 34 of Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') and accused Nos.1 to 3 are convicted for the offence punishable under Section 302 read with Section 34 of IPC.
2. The case of the prosecution in brief is that the complainant Gousiya Begum had married Mahammed Abdul Raheem @ Baba S/o Alisab (accused No.1) on 05.05.2005. She gave birth to three daughters, aged 5 years, 3 years and 9 months respectively. After 4 the marriage, Gousiya Begum had come to her husband's house and for few months she was treated well. Thereafter, her husband started abusing her, assaulting her and ill-treating her saying that she was not good and she cannot do the household work properly. Her husband was not doing any work. He was not paying anything for the household expenses. He used to take the pension amount of his mother forcibly for the purpose of drinking liquor and he used to pick-up quarrel and used to assault Gousiya Begum. Davul is the brother-in-law of Gousiya Begum and Rabiya is his wife. Both of them also used to quarrel with Gousiya Begum. On 26.06.2011 at about 2.30 p.m., when Gousiya Begum questioned her husband as to why he had not gone for work, her husband, her brother-in-law and his wife picked up quarrel with Gousiya Begum and saying that he would not leave her alive, her husband brought kerosene can. The brother- in-law of Gousiya Begum and his wife caught hold both 5 hands of Gousiya Begum. Gousiya Begum was made to fall on the ground and by keeping his legs near the neck and also on the chest, Gousiya Begum's husband poured kerosene on her head and body and lit fire and ran away from the spot. By hearing her screams, Gousiya Begum's another brother-in-law Yusuf's daughter Tabassum came there and extinguished the fire by pouring water. Gousiya Begum had sustained burn injuries all over the body. The brother-in-law of Gousiya Begum brought Gousiya Begum to Government Hospital and then she was shifted to Government Hospital, Gulbarga. The parents and brothers of Gousiya Begum also came there. By receiving MLC information from the Government Hospital, Gulbarga, the PSI of Shahapur P.S. proceeded to Government Hospital, Gulbarga and recorded the statement Ex.P-14 of the complainant Gousiya Begum. He then returned to the police station and registered a case in Shahapur P.S. Cr.No.171/2011 for offences punishable under 6 Sections 498A, 504, 307 read with Section 34 of IPC. On 29.06.2011 at about 1.00 a.m. Gousiya begum succumbed to the injuries.
3. We have heard Sri Nandakishore Boob, learned counsel for appellants - accused and Sri Prakash Yeli, learned Additional State Public Prosecutor for the respondent-State.
4. The main grounds urged by the learned counsel for the appellants -accused are that the judgment of conviction and order of sentence passed by the trial Court is contrary to law and material placed on record. It is his further submission that the material witnesses have not supported the case of the prosecution with regard to ill-treatment and harassment said to have been caused by the accused and the trial Court has rightly acquitted the accused of the offence punishable under Section 498A of IPC. But the trial Court without appreciating the evidence in its right 7 perspective, has relied upon Ex.P-14 the complaint and Ex.P-27 the dying declaration. He has further submitted that the dying declaration which has been recorded by PW-17 has been recorded at about 10.00 p.m. and complaint Ex.P-14 has been recorded at about 11.00 p.m. subsequent to the recording of Ex.P-27.
5. He further submitted that when the dying declaration Ex.P-27 has been recorded, that itself indicates that it is the first information said to have been given by the deceased but the same has not been registered in accordance with law. In the light of the decision of the Apex Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1 the Investigating Officer before visiting, the investigation has been started and the trial Court by relying upon such document has come to the conclusion that the said dying declaration is admissible. It is his further submission that the dying declaration 8 does not contain the certification of the doctor about the fitness of the victim for making the statement. If no verification or certification by the doctor regarding the fitness of the victim to make a statement is found, either in the declaration or by a separate endorsement, then under such circumstances it creates a doubt in the case of the prosecution. In this behalf, he relied upon the decision of the Apex Court in the case of Poonam Bai vs. State of Chhattisgarh reported in 2019 SAR (Criminal)
774.
6. It is his further submission that Ex.P-14 contains the name of accused Nos.1 to 3 but subsequently when Ex.P-27 has been marked, it only contains the name of accused Nos.1 and 2. That itself creates a doubt in the case of the prosecution and it indicates that there is concoction in the case of the prosecution and creation of the documents. It is his further submission that the dying declaration of the 9 deceased does not contain the endorsement with regard to the language in which she has deposed or stated the said statement. If really PW-17 had gone to the Hospital where the deceased was admitted and had recorded her statement, he should have mentioned in Ex.P-27 about the language in which she has stated. It is his further submission that the thumb impression of right hand was taken and there is no endorsement to the effect that why right hand thumb impression has been taken on Ex.P-27. He therefore submits that there are so many suspicious circumstances which show that the dying declaration Ex.P-27 and the dying declaration recorded by the PSI as per Ex.P14 are not acceptable. The trial Court ignoring all these aspects, has come to a wrong conclusion and has wrongly convicted the accused. On these grounds he prays to allow the appeals and to set aside the judgment of conviction and order of sentence. 10
7. It is the submission of learned Additional State Public Prosecutor that though the dying declarations at Exs.P-14 and P-27 do not bear the signature of the doctor, the same will not nullify the said documents. It is his further submission that certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration could be established otherwise and the prosecution is said to have proved the guilt of the accused. In order to substantiate the said submission, he has relied upon the decision of the Apex Court in the case of Laxman vs. State of Maharashtra reported in (2002) 6 SCC 710.
8. It is his further submission that the document at Ex.P-27 clearly indicates the fact that the victim was in a position to give the statement and was conscious at the time when the said statement has been recorded. He further submitted that to discard the 11 evidence of PW-17 nothing has been elicited during the course of cross-examination and that there is consistency in the statement of the deceased as per Exs.P-14 and P-27. Though there are some minor discrepancies of not telling the name of accused No.3, the same will not take away the case of the prosecution in its entirety. He therefore submits that the trial Court has rightly relied upon Exs.P-14 and P-27 and has come to a right conclusion and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed. On these grounds he prayed to dismiss the appeals.
9. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records.
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10. The prosecution in order to establish its case, got examined 17 witnesses and got marked 28 documents, so also 4 material objects. Thereafter, statement of the accused were recorded by putting incriminating materials as against them. The accused denied the same. Accused have not chosen to lead any defence evidence and have not got marked any document.
11. PW-1 is the spot mahazar panch Ex.P-1. PW-2 is also co-panch to the spot mahazar Ex.P-1. PW-3 is the co-sister of the deceased and wife of PW-4. PW-4 is the brother-in-law of the deceased and brother of accused Nos.1 and 2. PW-5 is the daughter of PW-4 and she is said to be an eyewitness to the alleged incident. PW-6 and PW-7 are the parents of the deceased. PW-8 is the sister of accused Nos.1 and 2, PW-9 and PW-10 are the neighbourers. All these material witnesses have not supported the case of the 13 prosecution and they have been treated as hostile. During the course of cross-examination of all these witness, nothing has been elicited so as to substantiate the case of the prosecution. PW-11 is a panch witness to inquest mahazar Ex.P-12 and PW-12 is a co-panch to Ex.P-12. They have also not supported the case of the prosecution and they have been treated as hostile.
12. PW-13 is the doctor who conducted autopsy over the body of the deceased. In her evidence she has deposed that except upper limb and lower limb 90% of the burn injuries were found over the body of the deceased and she has opined that she died because of 90% of burn injuries and shock and she has issued the postmortem report as per Ex.P-13. During the course of cross-examination nothing has been elicited.
13. PW-14 is a material witness. He is the Police Officer who immediately after receipt of the information on 26.06.2011 at about 8.15 p.m. went to the 14 Government Hospital and recorded the statement of the deceased at about 11.00 p.m. in the night. In his evidence he has deposed that after recording the statement of the victim he came back to the police station and registered the case in Crime No.171/2011 thereafter he has deposed with regard to the part of the investigation which he has conducted. During the course of cross-examination he has deposed that on 26.06.2011 at about 8.15 he received the MLC information but the same has not been produced before the Court. He has further added that he has not received MLC information in writing. He has further deposed that he cannot say in which ward in the District Hospital the deceased Gousia Begum has been admitted and he has not obtained the permission of the doctor who was treating the deceased.
14. He has further deposed that he does not know at what time the deceased has been admitted in 15 the hospital and that he has not made any enquiry with the doctor whether the injured is in a position to speak and give statement. The other suggestions which have been made have been denied.
15. PW-15 is the Investigating Officer who partly investigated the case and filed the charge sheet against the accused. PW-16 is the Shirastedar who has conducted the inquest over the body of the deceased as per Ex.P-12.
16. PW-17 is the Tahsildar who has recorded the dying declaration as per Ex.P-27. In his evidence he has deposed that on 26.06.2011 he received information from Brahmapur Police Station PSI to record the dying declaration and accordingly he visited the Government Hospital and he went to the burn ward and he made an enquiry with the doctor who was in charge and went to the injured where she has been admitted and made an enquiry and as she said that she is in a position to give 16 the statement, he has recorded the dying declaration as per Ex.P-27. During the course of cross-examination he has admitted that he has not produced any document received from the police for recording the dying declaration. He has further deposed that before recording the dying declaration the date has not been mentioned in the said dying declaration. He has further deposed that beneath the signature he has mentioned the time as 10.00 p.m. He further admitted that he has mentioned the time at which he has recorded the dying declaration. He has further admitted that in Ex.P-27 to first question that the witness is conscious has not been written. He has further admitted that he has not written in the dying declaration Baba alias Abdul Raheman and he has not mentioned that he has taken the right hand thumb impression. Other suggestions have been denied.
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17. On perusal of the records, it indicates that there are two dying declarations which have been recorded by the prosecution i.e., by two officials, one is the PSI PW-14 and the another one is Tahsildar PW-17. In both the dying declarations there is no endorsement of the doctor to certify the mental fitness of the declarant. Though the learned counsel for the appellants -accused contended that in the absence of the doctor certification about the fitness of the declarant, the said declaration is not admissible, it is trite law that in the absence of doctor certification as to the fitness of the declarant it is not fatal to the case of the prosecution. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration if it is going to be established by other means and other evidence then under such circumstances same could be accepted and relied upon by the Court. This proposition of law has been laid down by the Hon'ble Apex Court in the case of 18 Laxman quoted supra at paragraph nos.3 and 5 which read as under:
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross- examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of 19 imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate is absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a 20 Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur VS. State of Punjab (1999) 6 SCC 545 wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration 21 but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma vs. State of Andhra Pradesh 1999 SCC (Cri) 1130 to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh 1999 SCC (Cri) 1130 22 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji & another vs. State of Gujarat."
18. Even in the case of Poonam Bai quoted supra, it has been observed that in order to rely upon the dying declaration it can be a sole basis for conviction but it should be of such a nature that it inspires full confidence of the Court and in that light the same can be relied upon. At paragraph Nos.10 to 17 it has been observed as under:
10. There cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable. In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor.
Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case. The real test is as 23 to whether the dying declaration is truthful and voluntary. It is often said that man will not meet his maker with a lie in his mouth. However, since the declarant who makes a dying declaration cannot be subjected to cross-examination, in order for the dying declaration to be the sole basis for conviction, it should be of such a nature that it inspires the full confidence of the court. In the matter on hand, since Exh. P2, the dying declaration is the only circumstance relied upon by the prosecution, in order to satisfy our conscience, we have considered the material on record keeping in mind the well-established principles regarding the acceptability of dying declarations.
11. The Naib Tehsildar-cum-Executive Magistrate (P.W.1) has deposed that the police had sent a requisition to the Tehsildar (as per Exh. P-3), who in turn requested P.W.1 to go to the spot and record the statement of the injured. P.W.1 has also deposed that he received such requisition at 12.15 p.m. on the date of the incident, and immediately thereafter, he went to the hospital and recorded the statement of the victim (Exh.P-1). He has also deposed that he drew the panchnama regarding the recording of the dying 24 declaration in the presence of three persons. It is to be noted that the dying declaration (Exh.P-2) as produced before the Trial Court is only a photocopy, which is not admissible in evidence. The original copy of the dying declaration has not been produced before the Trial Court. Also, though it has been stated by the Naib Tehsildar-cum-Executive Magistrate (P.W.1) that he had taken the signature of three witnesses, the photocopy of the dying declaration does not contain the signature of any witness.
It is the case of the prosecution that P.W. 1 recorded the dying declaration in the hospital. But he has admitted in his cross-examination that none of the doctors were present on that day, and that the hospital was closed since it was a Sunday. He has also admitted in his cross-examination that he did not put any question to the victim to find out whether she was in a position to make a statement or not. He also did not try to verify whether the victim had the power to recollect the incident in question. Hence, it is clear that P.W. 1 did not satisfy himself about the fitness of the victim to make a statement. No verification or certification of the doctor regarding the fitness of the victim to make a statement can be found on the dying declaration either. In 25 addition, absolutely no reasons are forthcoming either from the Investigating Officer (P.W. 12) or from the Naib Tehsildar-cum-Executive Magistrate (P.W. 1) as to why the original dying declaration was not produced before the Trial Court.
12. Moreover, the records do not reveal a clear picture of what happened at the time of occurrence or subsequently. The Investigating Officer (P.W. 12) has admitted that he went to the spot of the offence at about 12.15 p.m., immediately after getting news of the incident at about 12 o' clock. When he arrived, the victim was unconscious, and her skin was peeling off. He was the first person to reach the scene of offence, and shifted her to the hospital while she was still unconscious. If it is so, it is quite unbelievable as to how the victim could have made such a lengthy statement as found in Exh.P-2 at about 12.15 to 12.30 p.m., that too in an unconscious condition, before P.W.1. To add to this, there is not even a whisper in the deposition of the Investigating Officer about the presence of the Naib Tehsildar-cum-Executive Magistrate (P.W.1) or about him recording the dying declaration at about 12:15 p.m. The Investigating Officer has spoken neither about the requisition 26 sent by him as per Exh.P-3 nor about the alleged dying declaration (Exh.P-2) which is stated to have been recorded by P.W.1. Notably, the Naib Tehsildar has deposed that when he went to the hospital, the police were already there. If it was so, and if he had really recorded the dying declaration as per Exh.P-2, the Investigating Officer would have deposed about the same before the Trial Court. But such records are not forthcoming. In such circumstances, the role of the Naib Tehsildar-cum-Executive Magistrate (P.W. 1) appears to be highly suspicious.
It is also curious to note that the Investigating Officer has deposed that he went to the spot immediately after getting the oral information about the incident, whereas the crime came to be registered based on the FIR of Lalita Sahu (P.W.2) at about 15:30 hours, i.e. 3.30 p.m.
13. The trial court has taken pains to evaluate the entire material on record and has rightly come to the conclusion that the so-called dying declaration (Exh.P-2) is unbelievable and not trustworthy. Valid reasons have also been assigned by the trial court for coming to such a conclusion. Per contra, the High Court while setting aside the said finding has not adverted to 27 any of the reasons assigned by the trial court relating to the authenticity or reliability of the dying declaration. The view taken by the trial court, in our considered opinion, is the only possible view under the facts and circumstances of the case.
14. As far as the oral dying declaration is concerned, the evidence on record is very shaky, apart from the fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself. As per the case of the prosecution, the deceased had made an oral dying declaration before Lalita Sahu (P.W. 2), Pilaram Sahu (P.W.
3), Parvati Bai (P.W. 4), and others. Though P.Ws. 2, 3 and 4 have deposed that the deceased did make an oral dying declaration before them implicating the appellant, this version is clearly only an afterthought, inasmuch as the same was brought up before the trial court for the first time. In their statements recorded by the police under Section 161 of the Code of Criminal Procedure, these witnesses had not made any statement relating to the alleged oral dying declaration of the deceased. These factors have been noted by the trial Court in its detailed judgment. Thus, the evidence of P.Ws. 2, 3 and 4 relating to the oral 28 dying declaration is clearly an improved version, and this has been proved by the defence in accordance with law.
15. Since the evidence relating to the dying declarations has not been proved beyond reasonable doubt by the prosecution, in our considered opinion, the High Court was not justified in convicting the appellant, inasmuch as there is no other material against the appellant to implicate her. The motive for the offence, as alleged by the prosecution, has also not been proved.
16. Having regard to the totality of the facts and circumstances of the case, we conclude that the judgment of the High Court is liable to be set aside, and the same is accordingly set aside and that of the trial court is restored. As the appellant is acquitted of the charges levelled against her and she is in custody, we direct that the appellant be released forthwith, if not required in connection with any other case.
17. The appeal is allowed accordingly."
19. Keeping in view the ratio laid down in the above decisions we are of the considered opinion that on 29 perusal of Exs. P-14 and P-27 there is no endorsement of the doctor as to the mental fitness of the declarant. Merely because the doctor has not certified regarding the state of mind of the deceased, the truthfulness of the nature of the document cannot be brushed aside. The Court is duty bound to verify the other evidence which has been produced in this behalf and thereafter come to the conclusion whether the declaration given by the deceased appears to be just and proper.
20. In that light Exs.P-14 and P-27 are required to be taken into consideration with reference to the evidence of PW-17. PW-17 has deposed that he received a requisition from Brahmapur Police Station to record the dying declaration. Thereafter he had been to the Government Hospital and immediately went to the burn ward and made enquiry with the doctor about the fitness of the declarant to give declaration. He has further deposed that the declarant said that she is able 30 to give the statement and she is in a fit condition and thereafter he has recorded the dying declaration in the form of question and answer as per Ex.P-27. During the course of cross-examination he has admitted that he has not produced the requisition received from the police to record the said dying declaration and he has not even mentioned from what time to what time the said dying declaration has been recorded. When he himself has deposed that the doctor has accompanied him and told about the fitness of the injured, then if he was present at that place, why he has failed to take an endorsement with regard to the fitness of the injured to make a declaration. That itself creates a suspicion about Ex.P-27 including Ex.P-14. If really that the said declaration is considered to be a correct declaration, then under such circumstances the omission of the name of accused No.2 itself creates a doubt. Even a perusal of the records it shows that he has made the signature and beneath the same he has mentioned the 31 time as 10.00 p.m. and has not mentioned the date and no endorsement has been made as to why he has taken the thumb impression of right hand instead of left.
21. Another fact which has been deposed by this witness is that when he has recorded the dying declaration as per Ex.P-27, he could have rightly mentioned in which language he has asked the question and in which language the said delcarant has given her answers. So when that material information is not contained in Ex.P-27, then under such circumstances it creates a doubt in the case of the prosecution to the effect that the injured was in a fit state of mind so as to make the declaration as stated by PW-17 and as recorded by him as per Ex.P-27. Looking from any angle the dying declaration which is said to have been recorded as per Ex.P-27 itself creates doubt.
22. Be that as it may, on perusal of Ex.P-14 which is said to have been recorded by PW-14, as per 32 the evidence of PW-13 the doctor who has conducted the autopsy over the body of the deceased, she has deposed that the deceased had suffered with 90% burn injuries. Ex.P-14 is in the narration form and is a detailed statement of one and half page and the said declaration is recorded in such a fashion that somebody has sat and dictated the said declaration. The same is considered to be highly impossible that too when the injured has suffered with 90% burn injuries. When the injured has got admitted in the hospital and already she was under treatment, under such circumstances some medicines and sedative injections could have been also applied and administered, under such circumstances, how it was possible for the injured to give such a detailed declaration in the narration form, has not been clearly explained by the prosecution.
23. Be that as it may, even the evidence of PW- 14 does not clearly goes to show that whether he 33 himself has recorded statement or it is dictated to somebody and is reduced into writing. When the declaration is recorded, it must be either in the form of question and answer or it must go stepwise. Instead, it is recorded that the injured has narrated about all the history of the family and thereafter about the incident which is said to have taken place. If in this backdrop, documents are perused, it also creates doubt in the case of the prosecution. Looking from any angle, both the declarations do not repose the confidence of this Court so as to hold that the deceased made a declaration.
24. Be that as it may, even it is pointed out from the Bar during the course of argument that Ex.P-27 dying declaration has been recorded by PW-17 at 10.00 p.m. and Ex.P-14 the complaint has been recorded at about 11.00 p.m. subsequent to the recording of Ex.P-
27. In a cognizable case it is the mandatory direction 34 for registration of the FIR on receipt of the information disclosing a cognizable offence and if on preliminary enquiry if the case has not been registered and subsequently he goes and starts to record the declaration and thereafter if he registers the case, then it is not permissible in law. This proposition of law has been laid down by the Apex Court in Lalita Kumari's case (supra) wherein the Hon'ble Apex Court at paragraph Nos.115 and 119 has observed as under:
"115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offence, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.35
119. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex-facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR."36
25. Keeping in view the ratio laid down in the above decisions and on perusal of the records, PW-17 has deposed before this Court that he received the information from the concerned police and thereafter he has gone to record the declaration as per Ex.P-27, that itself indicates that the police were already aware of the fact that a cognizable offence has taken place and in that light they have directed PW-17 to record the dying declaration and even the prosecution has not produced any material to show that earlier to the registration of the complaint as per Ex.P-14 a case has been registered or an entry has been made in the Station House Diary about the information. In the absence of such material, it creates a doubt in the case of the prosecution. It is well settled proposition of law that when all the material witnesses have not supported the case of the prosecution and the prosecution case rests on only the dying declaration by the deceased as per Ex.P-14 and P- 27 and if the recording of the said dying declaration 37 itself creates a doubt, then the benefit of doubt should go to the accused.
26. We have given our thoughtful consideration and perused the judgment of the trial Court. No doubt, the trial Court by referring to various decisions has come to the conclusion that the accused persons have committed alleged offence. We are also conscious of the fact that the death of the deceased has been taken place within six years after the marriage and a presumption under Section 113A of the Evidence Act has to be drawn. But always the initial burden is there upon the prosecution to establish the fact that the deceased died an unnatural death due to the ill-treatment and harassment said to have been caused by the accused persons. The material witnesses who have been examined have not supported the case of the prosecution. In that light, on the basis of Ex.P-14 and P-27 no presumption can be drawn that too when the 38 said documents are not trustworthy and reliable and a doubt has been created on such documents. Taking into consideration all these aspects, we pass the following:
ORDER The appeals are allowed. The judgment of conviction and order of sentence passed by the Sessions Judge, Yadgir in S.C.No.20/2012 dated 28.01.2013 is set aside and appellants - accused Nos.1 to 3 are acquitted of all the charges levelled against them.
The bail bonds of accused Nos.2 and 3 stand cancelled.
The learned Sessions Judge is hereby directed to refund the fine amount, if the same has been deposited by the accused, on proper identification and acknowledgement.
The Jail Authorities are hereby directed to release accused No.1 Shri Mahammed Abdul Raheem alias 39 Baba S/o Allisab Kukanor forthwith, if he is not required in any other case.
The Registry is hereby directed to intimate the Principal District and Sessions Judge, Yadgir and the concerned Jail Authorities through e-mail to release the appellant - accused No.1 Shri Mahammed Abdul Raheem alias Baba S/o Allisab Kukanor forthwith, if he is not required in any other case.
The Registry is also directed to send back the trial Court records.
Sd/-
JUDGE Sd/-
JUDGE swk